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The Oxford Handbook of International Cultural Heritage Law
9780198859871, 0198859872

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Table of contents :
Cover
INTERNATIONAL CULTURAL HERITAGE LAW
Copyright
Contents
List of Abbreviations
Table of Cases
Table of Legislation
List of Contributors
Chapter 1 Introduction
1. Introduction
2. Defining Cultural Heritage
3. Whose Heritage?
4. Towards International Cultural Heritage Law
PART I HISTORICAL OVERVIEW
Chapter 2 Intellectual CooperationOrganisation, Unesco, And The Culture Conventions
1. Introduction
2. Intellectual Cooperation Organisation
2.1 International Regime of Antiquities and Excavations
2.2 Protection of National Artistic and Historical Treasures
2.3 Folk Arts and Traditions
2.4 Protection of Monuments and Works of Art in Time of War
3. United Nations Educational, Scientific and Cultural Organization
3.1 Protection of Cultural Property in the Event of Armed Conflict
3.2 World Heritage
3.3 Regulation of Archaeological Sites and Transfer of Cultural Objects
3.4 Safeguarding Intangible Cultural Heritage and Diversity of Cultural Expressions
4. Conclusion
PART II SUBSTANTIVE ASPECTS
Chapter 3 Cultural Heritage and International Humanitarian Law
1. Introduction
2. Prefatory Clarifications
3. The Conventional and Customary Corpus
3.1 Historical Background
3.2 Conventional International Humanitarian Law
3.2.1 The 1954 Hague Convention and Its First and Second Protocols
3.2.2 General Multilateral Treaties on International Humanitarian Law
3.3 Customary International Humanitarian Law
4. Substantive Obligations
4.1 Customary International Law and the 1954 Hague Convention
4.1.1 Attacks against Cultural Property or Objectives in Its Vicinity
4.1.2 Destruction of or Damage to Cultural Property under Own Control
4.1.3 Use of Cultural Property or Its Immediate Surroundings
4.1.4 Dangers to Cultural Property Resulting from Military Operations
4.1.5 Misappropriation and Vandalism of Cultural Property
4.1.6 Measures Specific to Cultural Property in Occupied Territory
4.2 The 1954 Hague Convention Only
4.2.1 Safeguarding of Cultural Property
4.2.2 Services or Specialist Personnel within Armed Forces
4.2.3 Respect for Personnel Engaged in the Protection of Cultural Property
4.3 The Second Protocol to the 1954 Hague Convention Only
4.3.1 Archaeological Excavations in Occupied Territory
4.3.2 Alteration to or Change of Use of Cultural Property in Occupied Territory
4.3.3 Immunity of Cultural Property under Enhanced Protection
4.4 1977 Additional Protocols I and II Only
5. Ancillary Rules
5.1 Distinctive Marking of Cultural Property
5.2 Military Measures and Dissemination
5.3 Penal Measures
5.4 Cooperation and Assistance of States Parties
6. The Institutional Framework
7. Enforcement
7.1 State Responsibility
7.2 Individual Criminal Responsibility and Consequent Reparations
8. Conclusion
Chapter 4 Intentional Destruction of Cultural Heritage
1. Introduction: Intentional Destruction of Cultural Heritage—a Scourge of Human History
2. Mens Rea of Intentional Destruction of Cultural Heritage
3. Written Rules of International Law Concerning Intentional Destruction of Cultural Heritage
4. Intentional Destruction o f Cultural Heritage as a War Crime
5. Intentional Destruction of Cultural Heritage as a Crime against Humanity
6. Intentional Destruction ofCultural Heritage as Evidence of the Intent to Commit Genocide
7. Intentional Destruction of Cultural Heritage as a Violation of Human Rights
8. Intentional Destruction of Cultural Heritage as Offence against Humanity as a Whole
9. The UNSC and Intentional Destruction of Cultural Heritage as Threat to International Peace and Security
10. Prosecution of Individuals Responsible for Intentional Destruction of Cultural Heritage
11. Intentional Destruction of Cultural Heritage and State Responsibility
12. Conclusion: Prohibition of Intentional Destruction of Cultural Heritage under Customary International Law
Chapter 5 International Criminal Law and the Protection of Cultural Heritage
1. A Variety of Approaches to the Protection of Cultural Heritage through International Criminal Law: The Civilian Use, Cultural Value, and Human Dimension Rationales
2. Acts against Cultural Property as War Crimes
2.1 The Origins of the Civilian-Use/Cultural-Value Divide and Its Endurance in International Instruments Dealing with Individual Criminal Liability
2.1.1 The Geneses of the Two Approaches
2.1.2 The Incoherent Development of Rules Penalizing Acts against Cultural Property
2.2 The Civilian Use/Cultural Value Divide in the Comparison of the ICC Statute and Protocol II to the 1954 Hague Convention
2.2.1 The Definition of Offences
2.2.2 The Cultural-Value Approach Making Its Way through the Jurisprudence of ICTs
2.2.2.1 Case Law of the ICTY
2.2.2.2 Case Law of the ICC
3. Acts against Cultural Property as Crimes against Humanity
3.1 The Lack of a Specific Definition of the Crime of Cultural Persecution and the Developments of ICT’s Case Law
3.2 ICTY Case Law on the Crime of Persecution
4. The Missing Piece: Cultural Genocide
4.1 ICTY Case Law on the Mens Rea of Genocide
4.2 A Case Study: ‘Cultural Genocide’ in Cambodia under the Khmer Rouge Regime
5. Harmonizing the Prosecution of Crimes against Cultural Heritage
Chapter 6 The Responsibilities to Protect Cultural Heritage and Prevent Cultural Genocide
1. Introduction
2. The Responsibility to Protect Persons
3. The Extension of R2P to Cultural Heritage
3.1 Theory
3.2 Safe Havens
3.3 Cultural Protected Zones
3.4 Two, but not Four, Well-established Concerns or Targets of R2P
4. Cultural Genocide and Cultural Cleansing
4.1 An Overview
4.2 Historical Examples
4.2.1 From Rome to North America and Australia
4.2.2 The Holocaust
4.2.3 The Yugoslav Civil War
4.3 The Law Today and Its Discontents
4.4 Ethnic and Cultural Cleansing
4.5 Culturecide
4.6 Other Legal Issues: The Iraq and Syria Conflicts
5. Moving Forward
Chapter 7 Cultural Heritage and Disasters
1. Introduction
2. The Lack of a Specialist ICHL Instrument to Address Disaster Scenarios
3. Disaster Risk Reduction and the Protection of Cultural and Natural Heritage
3.1 Assessing the Legal Relevance of International Cultural Heritage Law Instruments for DRR Activities
3.2 The Influence of International Disaster Law Paradigms in the Protection of World Heritage Sites
4. The Cross-Fertilization between International Disaster Law Instruments and International Cultural Heritage Law Ones for the Protection of Cultural Heritage through DRR Activities
5. Relief and Recovery Phases and the Safeguard of Cultural and Natural Heritage
6. Concluding Remarks: The Need for Increased Cross-Fertilizations between International Disaster Law and International Cultural Heritage Law
Chapter 8 Cultural Heritage, Transitional Justice, and Rule of Law
1. Introduction
2. New International Order
2.1 League of Nations, ICO, and Moral Disarmament
2.2 United Nations, UNESCO, and Intellectual Solidarity
3. Post-conflict and Transitional Justice
3.1 Justice and Combatting Impunity
3.1.1 Accountability of Perpetrators
3.1.2 Serious Crimes under International Law
3.1.3 Amnesties and Vetting
3.2 The Right to Truth
3.3 Right to Remedy and Reparation
3.3.1 Right to Remedy
3.3.2 Right to Reparation
3.3.2.1 Restitution
3.3.2.2 Compensation and Rehabilitation
3.3.2.3 Satisfaction
3.3.2.4 Guarantees of Non-recurrence
4. Sustaining Peace
5. Conclusion
Chapter 9 Theft and Illegal Excavation: Legal Principles for Protection of the Archaeological Heritage
1. Introduction
2. The International Market in Antiquities
3. State Control over Archaeological Artefacts
3.1 Control over Archaeological Excavation and Artefacts
3.1.1 Control over Archaeological Exploration and Excavation
3.1.2 Control of the Market and Export
3.2 State Ownership of Antiquities
3.3 Recognition of State Ownership in Foreign Courts
3.3.1 Foreign State Ownership in US Courts
3.3.2 Recognition of State Ownership in UK Courts
3.3.3 Comparison of the US and UK Approaches
3.3.4 Model Provisions on State Ownership of Undiscovered Cultural Objects
4. International and Regional Legal Instruments Affecting the Status of Archaeological Artefacts
4.1 International Conventions
4.1.1 The 1995 UNIDROIT Convention
4.1.2 The 1970 UNESCO Convention
4.2 Models of Implementation of the 1970 UNESCO Convention
4.2.1 Reciprocal Restrictions
4.2.2 Bilateral Agreements
4.2.3 Hybrid Approach
4.2.4 Designation Requirement
4.3 United Nations Security Council Resolutions
5. Conclusion
Chapter 10 Grasping The Nettle of Illicit Export, Import, And Transfer Of Ownership of Cultural Objects
1. Introduction
2. Second World War Trigger
3. Laying the Foundation of Illicit Trafficking in Cultural Property
4. Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954
5. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970
6. A Lack of Synergy
7. UNIDROIT Convention
8. Resolving Legal Conundrums
9. UNESCO–UNIDROIT Model Provisions on State Ownership of Cultural Objects
10. Intergovernmental and Non-governmental Organizations
10.1 Introduction—beyond Laws and Regulations
10.2 UNO
10.3 UNODC
10.4 UNESCO
10.5 Subsidiary Committee to the Meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property
10.6 ICOM
10.7 Interpol
10.8 National Cultural Heritage Police Units
10.9 World Customs Organization
10.10 The European Union
11. Uniform Standard for Documentation and Identification
12. UNESCO–WCO Model Export Certificate for Cultural Goods
13. International Committee of the Blue Shield
14. Networking
15. Cooperative Network for the Protection against Trafficking in Cultural Property
16. Code of Ethics
17. Conclusion
Chapter 11 World Cultural Heritage
1. Overview
2. Identification and Delineation of World Cultural Heritage
3. Determination of ‘Outstanding Universal Value’
4. The Process of Inscription in the World Heritage List
5. World Heritage in Danger
6. Deletion from the World Heritage List
7. Reporting on the State of Conservation of World Heritage Sites
8. International Assistance
9. The Impact of the WHC on International Law
10. Conclusion
Chapter 12 Landscape as Cultural Heritage
1. Introduction
2. The Etymology of ‘Landscape’ and Its Conceptualization as Heritage
3. Early International Protection of Landscape
3.1 UNESCO Instruments
3.2 Council of Europe Instruments
4. Landscape as World Heritage
4.1 Natural Landscapes and the First Twenty Years
4.2 Cultural Landscapes
4.3 Problematizing Landscapes as World Heritage
4.4 The Impact of World Heritage on Global Landscape Governance
5. The European Landscape Convention
5.1 Origins of the ELC
5.2 Paradigm Shift: From Landscape as Heritage to Landscape as Public Space
5.3 Problematizing the ELC from a Legal Perspective
6. Concluding Remarks
Chapter 13 Underwater Cultural Heritage
1. Introduction
2. Access
3. Jurisdiction
4. UNCLOS
5. Articles 149 and 303
6. Ownership
7. Protection
8. Why Was the 2001 Convention Needed?
9. UNCLOS and the 2001 Convention
10. Maritime Zones
10.1 Continental Shelf/Exclusive Economic Zone
10.2 The Area
11. Nationality and Port State Powers
12. Salvage
13. State Vessels and Aircraft
14. Awareness and Information
15. The Annex
16. General Principles
17. The Archaeologist
18. Reports
19. Conclusion
Chapter 14 The Environment and Cultural Heritage
1. Introduction
2. International Policy Instruments and Soft-Law Declarations
2.1 Stockholm Declaration
2.2 World Charter for Nature
2.3 World Commission Environment and Development
2.4 Rio Declaration
2.5 The Earth Charter
2.6 Millennium Development Goals
2.7 Sustainable Development Goals and Cultural Heritage
2.8 IUCN Draft Covenant
2.9 IUCN World Declaration on the Environmental Rule of Law
2.10 Draft Global Pact for the Environment
3. The Heritage Instruments
3.1 Hague Convention
3.2 World Heritage Convention
3.3 World Heritage Operational Guidelines
3.4 Universal Declaration on Cultural Diversity
3.5 Underwater Cultural Heritage Convention
3.6 Convention on Safeguarding the Intangible Cultural Heritage
3.7 ICH Operational Directives
3.8 Convention on Diversity of Cultural Expressions
4. The Environmental Instruments
4.1 Whaling Convention
4.2 Fur Seals Convention
4.3 Agreement on Polar Bears
4.4 Ramsar Convention
4.5 CITES
4.6 Convention on Migratory Species
4.7 Convention on Biological Diversity
4.8 Convention on Climate Change
4.9 Convention to Combat Desertification
4.10 Treaty on Plant Genetic Resources
5. Indigenous Heritage and Environment
5.1 ILO Convention 169
5.2 Declaration on the Rights of Indigenous Peoples
6. Conclusion
Chapter 15 Safeguarding Intangible Cultural Heritage
1. Introduction: Normative and Related Operational Activities of UNESCO (1990–2003)
2. Subsequent Implementation and Limitations
3. Relationship to Other International Agreements
3.1 Intellectual Property Regime and the 2003 Convention
3.2 Human Rights Law and the 2003 Convention
3.3 Environmental Law and the 2003 Convention
4. Relationship to Other Regional Agreements
4.1 African Region
4.2 Europe (Council of Europe)
4.3 The Americas
4.4 South East Asia
5. Conclusion
Chapter 16 Language as Cultural Heritage
1. Introduction: The Linguistic Heritage as Part of the Cultural Heritage
2. The National Level: Linguistic Heritage Law as Part of Language Law
3. The Limited Role of International Law Instruments
Chapter 17 Cultural Heritage and Human Rights
1. Introduction
2. UNESCO Cultural Heritage Instruments and Human Rights
2.1 Cultural Heritage Conventions
2.2 Other UNESCO Instruments
3. Human Rights Instruments and Cultural Heritage
3.1 The Right to Take Part in Cultural Life
3.2 The Right to Enjoy Culture for Minorities and Indigenous Peoples
3.3 Other Human Rights Relevant to Cultural Heritage
3.4 Individual and Collective Rights and Cultural Heritage
4. A Human Rights Approach to Cultural Heritage
4.1 Access, Contribution, Participation, Enjoyment
4.2 Limitations of Rights and Harmful Cultural Practices
5. Concluding Remarks
Chapter 18 Indigenous Peoples and Cultural Heritage
1. Introduction
2. The United Nations Declaration on the Rights of Indigenous Peoples
2.1 The Road towards the Declaration
3. Rights to Cultural Heritage in the UN Declaration
4. The Cultural Heritage of Indigenous Peoples: A Holistic Concept
5. Indigenous Peoples’ Rights to Their Cultural Heritage in Other International Instruments and Jurisprudence
6. Indigenous Peoples’ Rights to Their Cultural Heritage in Customary International Law
6.1 State Practice and Opinio Juris
6.2 The International Law Association and ILA Resolution No 5/2012
7. Good Practices
8. Conclusion
Chapter 19 Cultural Heritage and Women
1. Introduction
2. Women’s Cultural Rights: La Lutte Continue
2.1 Disentangling Culture, Cultural Rights, and Cultural Heritage
2.2 Securing Women’s Cultural Rights: Universality, Cultural Diversity, and Non-discrimination
2.3 Advancing Women’s Cultural Rights: ‘Negative Practices’, Essentialism, and the Importance of Agency
3. The Recognition of Women within the Framework of International Cultural Heritage Law
3.1 Legal Silence through the Years: The Drafting of Cultural Heritage Treaties
3.2 Gender in Practice: The Implementation of Cultural Heritage Treaties
3.3 Remedying Gender-Blindness in Cultural Heritage: How UNESCO Is Leading the Line
4. Conclusion
Chapter 20 Cultural Heritage and Intellectual Property
1. Introduction
2. Intangible Cultural Heritage in the Intellectual Property Discourse
2.1 Definitions
2.2 TCE and TK
3. Interfacing Cultural Heritage and Intellectual Property Protection
3.1 Intellectual Property Law
3.2 TK and Patents
3.3 TCE/TK and Trademarks
3.4 TCE and Copyright
4. Conclusion
Chapter 21 Cultural Heritage in International Investment Law
1. Introduction
2. International Investment Governance
3. The Diaspora of Cultural Heritage-Related Disputes before International Investment Treaty Tribunals
3.1 Fair and Equitable Treatment
3.2 Expropriation
4. Critical Assessment
5. Policy Options
5.1 A Treaty-Driven Approach to Promote the Consideration of Cultural Concerns in International Investment Law
5.2 A Judicially Driven Approach to Promote the Consideration of Cultural Heritage in International Investment Arbitration
5.3 Counterclaims
6. Conclusions
Chapter 22 National Treasures at the Intersection between Cultural Heritage and International Trade Law
1. Introduction
2. The 1970 UNESCO Convention on Illicit Trafficking of Cultural Property and Its Implementation
2.1 Core Definitions and Obligations
2.2 National Controls on Exportation and Importation of Cultural Property
2.3 Bilateral Arrangements on Exportation and Importation of Cultural Property
3. Quantitative Restrictions and National Treasures in the World Trade Organization
3.1 The Prohibition on Quantitative Restrictions in the WTO
3.2 The Most-Favoured Nation Obligation in the WTO
3.3 The National Treasures Exception in the WTO
3.3.1 Article XX(f) of the GATT 1994
3.3.2 Comparing the Meaning of ‘National Treasures’ and‘ Cultural Property’
3.3.3 Stringency of the ‘Chapeau’ Requirements of the Exception
3.4 Potential for a WTO Dispute
3.5 UNESCO’s Assumption Regarding the Nexus between the 1970 UNESCO Convention and the WTO
4. National Treasures Exceptions in Other internationaI Agreements
4.1 European Union
4.2 Other Preferential Trade Agreements
4.3 International Investment Agreements
5. Conclusion
PART III GENERAL INTERNATIONAL LAW
Chapter 23 Custom and General Principles of International Cultural Heritage Law
1. Introduction
2. Customary Law
3. The Customary Law Prohibition of the Intentional Destruction of Cultural Heritage in the Context of Conflict
4. Illicit Transfers from Territories under Military Occupation
4.1 Is This Practice Evidence of a Customary Rule?
5. General Principles
5.1 General Principles as Expression of a General Consensus of the International Community
5.1.1 The Principle of Cultural Heritage of Humanity
5.1.2 World Cultural Heritage
5.2 General Principles Derived from Domestic Law
5.2.1 The Sovereign Right of Every State to Declare Cultural Property Located in Its Territory as Part of the National Patrimony
5.2.2 The Principle of Due Diligence
5.3 Aspirational Principles of Progressive Realization
5.4 Principles of Procedural Character
5.5 Peremptory Principles of Jus Cogens?
6. Conclusions
Chapter 24 Cultural Heritage and State Immunity
1. Introduction
2. Cultural Heritage Property and Immunity from Jurisdiction
2.1 Commercial Transaction Exception
2.2 Property-Related Exceptions
2.3 Expropriation Exception under the US FSIA
3. The State of International Law on Execution Immunity for Cultural Heritage Property
3.1 Execution Immunity for Cultural Heritage Property under the UNCSI
3.2 Status of UNCSI’s Antiseizure Norms in Light of Subsequent Practice
4. Conclusion
Chapter 25 Cultural Heritage and State Succession
1. Introduction
2. Territorial Change and Cultural Heritage
3. Cultural Heritage and the Codification of the Law on State Succession
4. The Practice of State Succession
5. State Succession and International Cultural Heritage Obligations
6. State Succession to International Responsibility for Cultural Heritage Wrongs
7. State Succession and Global Cultural Heritage Governance
Chapter 26 Cultural Heritage and State Responsibility
1. Introduction
2. Responsibility in Cultural Heritage Conventions
3. State Responsibility for Offences against Cultural Heritage in International Humanitarian and International Criminal Law
4. General Norms on State Responsibility and Breaches of International Obligations Concerning Cultural Heritage
4.1 Attribution of Wrongful Acts to States
4.2 Substantive Aspects of the Breaches Affecting the Obligations Relating to Cultural Heritage
4.3 Circumstances Precluding State Responsibility for Offences against Cultural Heritage
4.4 Consequences Arising from State Responsibility Affecting Cultural Heritage
5. Conclusions
Chapter 27 Remedies
1. Introduction
2. Remedies for Stolen Cultural Property
2.1 Restitution, Repatriation, and Return of Tangible Cultural Items
2.2 Remedies for Misappropriated Intangible Cultural Items
3. Remedies for Historical Processes of Group Cultural Destruction
4. Remedies for Intentional Destruction of Cultural Heritage
4.1 The Post-conflict Ad Hoc Approach to Cultural Destruction
4.2 The Al Mahdi Reparation Order of the ICC: Paradigmatic Shift or Yet Another Ad Hoc Practice?
5. Concluding Remarks
PART IV PROCEDURAL AND INSTITUTIONAL ASPECTS
Chapter 28 International Dispute Resolution Mechanisms
1. Introduction
2. Litigation before Domestic Courts
3. Litigation before International Tribunals
3.1 International Adjudication of Cultural Heritage Cases
3.2 Virtues and Vices of International Adjudication
4. Resolution of Cultural Heritage Cases through ADR
4.1 The Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation
4.2 The ICOM–WIPO Art and Cultural Heritage Mediation Program
5. Beyond International Dispute Resolution Mechanisms: Reaching Fair and Just Solutions through ADR
Chapter 29 The Role of Domestic Courts
1. Introduction
2. Immunity
2.1 Immunity of Defendant
2.2 Immunity of Art Object
2.3 Return Guarantees
3. Jurisdiction of Domestic Courts
3.1 International Jurisdiction
3.1.1 Habitual Residence of the Defendant
3.1.2 Location of the Art Object
3.1.2.1 Location: Suit for Return by the Owner
3.1.2.2 Location: Declaration that Plaintiff in Possession is the Owner
3.1.2.3 Location: Suit for Return by Country of Origin of Art Objects Illegally Exported
3.1.2.4 Location: Country of Origin Prohibiting the Export of Art Objects
3.1.2.5 Location: Suit of Custom Authorities of the Importing Country
3.1.3 Doing Business of the Defendant
3.1.4 Presence of the Defendant
3.1.5 Locus Delicti Commissi
3.2 Subject Matter Jurisdiction
3.2.1 Special Jurisdiction of Administrative Courts
4. Governing Law
4.1 Lex Contractus
4.2 Lex Rei Sitae
4.3 Lex Loci Delicti Commissi
4.4 Lex Successionis
4.5 Lex Loci Protectionis
4.6 Lex Fori
4.7 Public Law
4.7.1 Public International Law: Spoils of War by Taking Booty, Prize, and Looting
4.7.1.1 War on Land
4.7.1.2 War on Water
4.8 National Law: Expropriation of All People or Discriminated Citizens
4.8.1 Expropriation of Colonial Territories
4.8.2 Expropriation of Everybody Because of Change of Economy
4.8.3 Act of State Doctrine
4.8.4 Expropriation of Persecuted Jewish Citizens
4.8.5 Sale or Destruction of ‘Degenerate Art’
4.8.6 Forfeiture of Smuggled Objects
4.9 National Law: Export Prohibitions
4.9.1 General Law
4.9.2 Export Prohibitions of Member States or States Parties
4.9.3 Export Prohibitions of Third States
5. Application of Substantive Law
5.1 Foreign Substantive Law
5.2 Substantive Law
5.2.1 Holocaust Art
5.2.2 Spoils of War
5.2.3 Smuggled Art
5.2.4 Foreign Patrimony Laws
5.2.5 Stolen Art
5.2.6 Converted Art
5.2.7 Misattributed Art
6. Correction by the Lex Fori
6.1 Public Order of the Forum State
6.2 Overriding Mandatory Rules
6.3 Public Order of Third States
7. Recognition of Foreign Judgments
7.1 Claims for Recovery of Holocaust Art Located Abroad
7.2 Submission of Defendant Living Abroad to Foreign Jurisdiction
8. Conclusion
Chapter 30 Alternative Dispute Settlement Mechanisms
1. Introduction
2. ADR Means
2.1 Negotiation
2.2 Mediation
2.3 Conciliation
2.4 Arbitration
2.5 The Institutionalization of ADR
2.5.1 The UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation
2.5.2 WIPO and ICOM
3. Conclusion: Can ADR Enhance Dispute Resolution Efficiency in the Area of Cultural Heritage?
Chapter 31 International Cultural Heritage Law: The Institutional Aspects
1. UNESCO as the World Cultural Institution within the UN System
2. The Recent Strengthening of the Cooperation between the UN and UNESCO
3. The Structure of UNESCO
4. The UNESCO Heritage Conventions
4.1 Cultural Properties during Armed Conflicts
4.2 Illicit Exports of Cultural Properties
4.3 The World Cultural and Natural Heritage
4.4 Underwater Cultural Heritage
4.5. Intangible Cultural Heritage
4.6 Cultural Diversity
Chapter 32 The Participation of Non-State Actors In The Implementation of Cultural Heritage Law
1. Introduction
2. Non-State Actors and the Protection of Cultural Property in Armed Conflict
2.1 Armed Non-State Actors and the Protection of Cultural Property in Armed Conflict
2.2 NGOs and Civil Society and the Protection of Cultural Property in Armed Conflict
3. Non-State Actors and the Protection of Cultural Heritage from Trafficking
3.1 Amending the ‘Due Diligence’ Requirement within the Private Sector
4. Non-State Actors and World Cultural Heritage Governance
5. Non-State Actors and the Safeguarding of Intangible Cultural Heritage
6. Concluding Remarks
Chapter 33 Codes of Ethics
1. Origin and Role of Ethical Rules and Codes of Conduct in the Field of Cultural Heritage Law
2. The Main Contents of the Codes of Ethics and the Related Issues
2.1 Acquisition and Transfer of Items and Collections
2.2 Origin of Items and Collections
2.3 Professional Conduct
2.4 De-accessioning Policies and Procedures
2.5 Sanctions
3. The Interaction between Codes of Ethics and International and Domestic Law Rules
4. Codes of Ethics as Art Market Regulation Instruments
5. Concluding Remarks
PART V REGIONAL APPROACHES
Chapter 34 Africa
1. Introduction
2. Movable Cultural Objects
3. Brief Country Survey of National Legislations
4. Reflections on Country Survey
5. Security of Museums
6. Database
7. Strengthening and Upgrading Legislation
7.1 Administrative Measures
7.2 Participation in the Armed Conflict, Illicit Trafficking, UNIDROIT, and Underwater Cultural Heritage Conventions
8. Intangible Cultural Heritage
9. African Participation in Intangible Cultural Heritage and Cultural Diversity Conventions
10. Neglect of Immovable Cultural Heritage—Monuments and Sites
11. Participation in the World Heritage Convention
12. The Way Forward
Chapter 35 Asia
1. Introduction
2. East Asia
2.1 The Rise of Asia in the Art Market and Its Shadow
2.2 Domestic Legislation on the Protection of Cultural Heritage
2.2.1 China
2.2.2 Japan
2.2.3 Korea
2.3 (Lack of) International Cooperation in East Asia
2.4 Return of Cultural Objects to Their Countries of Origin
3. South East Asia
3.1 Serious Challenges for the Protection of Cultural Heritage in South East Asia—the Cambodian Experience
3.2 Overview of the Domestic Legislation for the Protection of Cultural Heritage in South East Asia
3.3 (Lack of) International Cooperation in South East Asia
3.4 Return of Cultural Objects to Their Countries of Origin
4. Concluding Remarks
Chapter 36 Oceania
1. Introduction
2. Oceanic States and International Law
3. Regional Programmes
4. Regional Organizations
5. World Heritage
6. World Heritage List
6.1 World Heritage Operational Guidelines
6.2 Legal Pluralism and Customary Land Ownership
6.3 UNESCO SIDS Action Plan 2016–2021
7. Intangible Cultural Heritage
8. Remaining UNESCO Conventions
9. Comparative National Approaches
10. Conclusion
Chapter 37 Central and South America
1. Introduction
2. Domestic Law Trends across the Region
3. The Universal in the Regional
4. Forging Regional Identity through Heritage
5. Policy Programmes: Development through Culture
6. Standard-Setting in the Americas: Roerich and Beyond
7. Concluding Remarks
Chapter 38 Europe
1. Introduction
2. A Regional Response?
3. The Council of Europe
3.1 Competence and Instruments
3.2 Substantive Measures
3.3 The European Convention on Human Rights and the Preservation and Protection of Cultural Heritage
4. The European Union
4.1 Competence and Instruments
4.2 Substantive Law and Policy
4.3 Cultural Heritage and Human Rights in EU Law
5. The CoE and the EU: Friends and Rivals?
Chapter 39 Middle East and North Africa
1. Introduction
2. International Approaches to Protecting the Past
3. National Legislative Approaches
3.1 Elements of National Cultural Heritage Legislation?
3.1.1 Government Oversight
3.1.2 Definition of Cultural Property and Date
3.1.3 Ownership and Transfer of Cultural Objects
3.1.4 Inventories and Records
3.1.5 Archaeological Excavations and Surveys
3.1.6 Trade in Cultural Items
3.1.7 Export and Import Controls
3.1.8 Cultural Heritage Crime and Penalties
4. Conclusion
Chapter 40 North American Cultural Heritage Law
1. Domestic Regulation in North America
1.1 Mexican Domestic Protection, Nationalization
1.2 United States Domestic Protection
1.3 Canadian Domestic Protection of Heritage
1.4 Special Law Enforcement Efforts Devoted to Cultural Heritage
2. Engagement with International Efforts
3. The United States and the 1970 UNESCO Convention
4. Prosecution of Illicit Trafficking of Cultural Property in the United States
5. The Key Role Played by Customs and Border Protection in the United States
6. The Protect and Preserve International Cultural Property Act
6.1 Canada and the 1970 UNESCO Convention
6.2 The World Heritage Convention
6.3 Underwater Cultural Heritage
7. Conclusion
Index

Citation preview

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T h e Ox f o r d H a n d b o o k o f

I N T E R NAT IONA L C U LT U R A L H E R I TAGE L AW

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The Oxford Handbook of

INTERNATIONAL CULTURAL HERITAGE LAW Edited by

FRANCESCO FRANCIONI and

ANA FILIPA VRDOLJAK

1

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1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © the several contributors 2020 The moral rights of the authors have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020931361 ISBN 978–0–19–885987–1 Printed and bound by CPI Group (UK) Ltd, Croydon, cr0 4yy Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Contents

List of Abbreviationsix Table of Casesxxv Table of Legislationxxxix List of Contributorslxiii

1. Introduction

1

Ana Filipa Vrdoljak and Francesco Francioni

I . H I STOR IC A L OV E RV I E W 2. Intellectual Cooperation Organisation, UNESCO, and the Culture Conventions13 Ana Filipa Vrdoljak and Lynn Meskell

I I . SU B STA N T I V E A SP E C T S 3. Cultural Heritage and International Humanitarian Law

43

Roger O’Keefe

4. Intentional Destruction of Cultural Heritage

75

Federico Lenzerini

5. International Criminal Law and the Protection of Cultural Heritage

100

Micaela Frulli

6. The Responsibilities to Protect Cultural Heritage and Prevent Cultural Genocide

121

James A. R. Nafziger

7. Cultural Heritage and Disasters

145

Giulio Bartolini

8. Cultural Heritage, Transitional Justice, and Rule of Law Ana Filipa Vrdoljak

169

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vi contents

9. Theft and Illegal Excavation: Legal Principles for Protection of the Archaeological Heritage

200

Patty Gerstenblith

10. Grasping the Nettle of Illicit Export, Import, and Transfer of Ownership of Cultural Objects

227

Folarin Shyllon

11. World Cultural Heritage

250

Francesco Francioni

12. Landscape as Cultural Heritage

272

Amy Strecker

13. Underwater Cultural Heritage

295

Patrick J. O’Keefe

14. The Environment and Cultural Heritage

318

Ben Boer

15. Safeguarding Intangible Cultural Heritage

347

Janet Blake

16. Language as Cultural Heritage

371

Bruno de Witte

17. Cultural Heritage and Human Rights

379

Yvonne Donders

18. Indigenous Peoples and Cultural Heritage

407

Dalee Sambo Dorough and Siegfried Wiessner

19. Cultural Heritage and Women

431

Joseph Powderly and Rafael Braga da Silva

20. Cultural Heritage and Intellectual Property

459

Mira Burri

21. Cultural Heritage in International Investment Law Valentina Vadi

483

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contents vii

22. National Treasures at the Intersection between Cultural Heritage and International Trade Law

507

Tania Voon

I I I . G E N E R A L I N T E R NAT IONA L L AW 23. Custom and General Principles of International Cultural Heritage Law

531

Francesco Francioni

24. Cultural Heritage and State Immunity

551

Riccardo Pavoni

25. Cultural Heritage and State Succession

581

Andrzej Jakubowski

26. Cultural Heritage and State Responsibility

605

Patrizia Vigni

27. Remedies

642

Elisa Novic

I V. P RO C E DU R A L A N D I N ST I T U T IONA L A SP E C T S 28. International Dispute Resolution Mechanisms

665

Marc-André Renold

29. The Role of Domestic Courts

687

Kurt Siehr

30. Alternative Dispute Settlement Mechanisms

718

Alessandro Chechi

31. International Cultural Heritage Law: The Institutional Aspects Tullio Scovazzi

737

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viii contents

32. The Participation of Non-State Actors in the Implementation of Cultural Heritage Law

760

Kristin Hausler

33. Codes of Ethics

787

Manlio Frigo

V. R E G IONA L A P P ROAC H E S 34. Africa

811

Folarin Shyllon

35. Asia

835

Keun-Gwan Lee

36. Oceania

860

Craig Forrest and Jennifer Corrin

37. Central and South America

878

Lucas Lixinski

38. Europe

908

Rachael Craufurd Smith

39. Middle East and North Africa

931

Morag M. Kersel and Mounir Bouchenaki

40. North American Cultural Heritage Law

959

Derek Fincham

Index

981

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List of Abbreviations

AA AAAG AAG AAL AAM AAMD AARLS AAT ACHPR ACHR ACLU ADAAArt ADR AFADUAM AFDI AFRICOM AHR AHSS AIJC AILR AIV AJ AJI&CL AJIL AJP ALJ AltLJ AmA AMC ANF

Art et archeologie: recueil de législation comparée et de droit international Annals of the Association of American Geographers Association of American Geographers Art Antiquity and Law American Alliance of Museums Association of Art Museum Directors Annual Review of Law and Social Sciences Administrative Appeals Tribunal African Commission on Human and Peoples’ Rights American Convention on Human Rights American Civil Liberties Union Dealers Association of America Alternative Dispute Resolution Anuario de la Facultad de Derecho de la Universidad de Madrid Annuaire Français de Droit International International Council of African Museums American Historical Review Annales. Histoire, Sciences Sociales Anuario Iberoamericano de Justicia Constitucional American Indian Law Review Human Rights Committee of the Advisory Council on International Affairs of the Ministry of Foreign Affairs (Netherlands) Art Journal Arizona Journal of International & Comparative Law American Journal of International Law Aktuelle Juristische Praxis Austrian Law Journal Alternative Law Journal American Anthropologist American Maritime Cases Al-Nusrah Front

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x list of abbreviations ANSA AOSIS AP I

AP II

AQ AR ARPA ASEAN AsJIL ASSEHR AU AUILR AULR AYIL BARCE BFSP BIC BIT BJC BJIL BJWA BKR BSK BUILJ BYBIL CA CAELJ CAME CARICOM CBD CCAAA CCPIA CCR CDC

armed non-State actor Alliance of Small Island States Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts 1977 (Additional Protocol I) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts 1977 (Additional Protocol II) Anthropological Quarterly Alberta Reports Archaeological Resources Protection Act of 1979 (United States) Association of Southeast Asian Nations Asian Journal of International Law Advances in Social Science, Education and Humanities Research African Union American University International Law Review American University Law Review Australian Yearbook of International Law Bulletin of the American Research Center in Egypt British and Foreign State Papers Bulletin of Intellectual Co-operation bilateral investment treaty British Journal of Criminology Brooklyn Journal of International Law Brown Journal of World Affairs Bulletin Kunst & Recht Blätter für Schuldbetreibung und Konkurs Boston University International Law Journal British Year Book of International Law Current Anthropology Cardozo Arts and Entertainment Law Journal Conference of Allied Ministers of Education Caribbean Community Convention on Biological Diversity Coordinating Council of Audiovisual Archives Association Convention on Cultural Property Implementation Act Committee on Conventions and Recommendations Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Cultural Diversity Convention)

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list of abbreviations xi CDCPP CEDAW CELAC CERD CESCR CETS CFR CHM ChicJIL CHRLR CHRT CIDI CINOA CIS CITES CJ CJIL CJLA CLR CLRA CLSC CLWR CM CMAS CnJIL CNPPA CoE ColLR ConLR COP CPAC CPB CPIA CPK CPTA

Steering Committee for Culture, Heritage, and Landscape Convention on the Elimination of All Forms of Discrimination Against Women Community of Latin American and Caribbean States Committee on the Elimination of Racial Discrimination Committee for Economic, Social and Cultural Rights Council of Europe Treaty Series Charter of Fundamental Rights of the European Union common heritage of mankind Chicago Journal of International Law Columbia Human Rights Law Review Canadian Human Rights Tribunal Consejo Interamericano para el Desarrollo Integral (Inter-American Council for Integral Development) International Confederation of Art and Antique Dealers Commonwealth of Independent States Convention on International Trade in Endangered Species of Wild Flora and Fauna Court of Justice Chinese Journal of International Law Columbia Journal of Law and the Arts Commonwealth Law Reports Congress of Local and Regional Authorities Crime, Law and Social Change Common Law World Review Committee of Ministers Conservation and Management of Archaeological Sites Connecticut Journal of International Law Commission on National Parks and Protected Areas Council of Europe Columbia Law Review Connecticut Law Review Conference of the Parties Cultural Property Advisory Committee Customs and Border Protection (United States) Convention on Cultural Property Implementation Act (United States) Communist Party of Kampuchea Swiss Federal Statute on International Cultural Property Transfer

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xii list of abbreviations CRC CSICH CTS CUHKLR CWC CWILJ CWRJIL CWRLR DACH DGA DGAM DJATIPL DJILP DoA DPCE DRM DRR DSB DUDI EAC ECCC ECHR ECOSOC ECSC ECtHR ECJ ECOSOC UN ECR EE EEA EEC EELPJ EIA EJCPR EJIL EJIR EJLR

Convention on the Rights of the Child Convention for the Safeguarding of the Intangible Cultural Heritage Consolidated Treaty Series City University of Hong Kong Law Review Culture Without Context: Newsletter of the McDonald Institute for Archaeological Research California Western International Law Journal Case Western Reserve Journal of International Law Case Western Reserve Law Review Department of Antiquities and Cultural Heritage (Palestine) Directorate General of Antiquities (Lebanon) Directorate General of Antiquities and Museums (Syria) DePaul Journal of Art, Technology & Intellectual Property Law Denver Journal of International Law and Policy Department of Antiquities (Jordan; Libya) Diritto Pubblico Comparato e Europeo digital rights management disaster risk reduction Department of State Bulletin Diritti umani e diritto internazionale European Advisory Commission Extraordinary Chambers in the Courts of Cambodia European Convention on Human Rights United Nations Economic and Social Council European Coal and Steel Community European Court of Human Rights European Court of Justice Economic and Social Council European Committee of the Regions Europa Ethnica European Association of Archaeologists European Economic Community Environs: Environmental Law and Policy Journal environmental impact assessment European Journal of Criminal Policy and Research European Journal of International Law European Journal of International Relations European Journal of Law Reform

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list of abbreviations xiii EJPL ELC ELN ELQ ELR EP EPS ERR ESCR ESIL ETS EU EuP EUROPOL EWCA EYCH FAO FARC FCA FCR FDI FILJ FLNKS FLR FRD FRG FRY FSIA FSM FTA FYIL GA GATT GBY GCJIPR GI GJICL

European Journal of Public Law European Landscape Convention Colombian Ejército de Liberación Nacional Ecology Law Quarterly European Law Review European Parliament European Politics and Society Einstazstab Reichsleiter Rosenberg Committee on Economic, Social and Cultural Rights European Society of International Law European Treaty Series European Union European Papers European Union Agency for Law Enforcement Cooperation England and Wales Court of Appeal European Year of Cultural Heritage Food and Agricultural Organization Fuerzas Armadas Revolucionarias de Colombia Federal Court of Australia Federal Court Reports (Australia) foreign direct investment Fordham International Law Journal Front de Libération Nationale Kanak et Socialiste (Kanak and Socialist National Liberation Front) Fordham Law Review Federal Rules Decisions Federal Republic of Germany Federal Republic of Yugoslavia Foreign Sovereign Immunities Act (United States) Federated States of Micronesia Free Trade Agreement Finnish Yearbook of International Law General Assembly General Agreement on Tariffs and Trade Gugong Bowuyuan Yuankan Gáldu Čála: Journal of Indigenous Peoples Rights geographical indication Georgia Journal of International and Comparative Law

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xiv list of abbreviations GJIL Georgetown Journal of International Law GPNRJ Great Plains Natural Resources Journal GWILR George Washington International Law Review GWR George Wright Forum GYIL German Yearbook of International Law HCR Human Rights Council HEAR Holocaust Expropriated Art Recovery Act of 2016 (United States) HHRJ Harvard Human Rights Journal HILJ Harvard International Law Journal HIR Harvard International Review HLPF High Level Political Forum HLR Harvard Law Review HRC Human Rights Committee HRLR Human Rights Law Review HRQ Human Rights Quarterly HS Heritage & Society HVO Hrvatsko vijeće obrane (Croatian Defence Council) IAA Israel Antiquities Authority IACtHR Inter-American Court of Human Rights IASC Interagency Standing Committee IC International Conciliation ICA International Council on Archives ICBS International Committee of the Blue Shield ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICCROM International Centre for the Study of the Preservation and Restoration of Cultural Property ICE United States Immigration and Customs Enforcement ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICG Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore ICHC Convention for the Safeguarding of the Intangible Cultural Heritage ICIC International Committee on Intellectual Cooperation ICISS International Commission on Intervention and State Sovereignty ICJ International Court of Justice ICJ Reports International Court of Justice Reports of Judgments, Advisory Opinions and Orders

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list of abbreviations xv International and Comparative Law Quarterly International and Comparative Law Review Intellectual Cooperation Organisation International Council of Museums International Council of Museums Asia-Pacific Alliance International Council of Museums—Latin America and Caribbean Alliance ICOMOS International Council on Monuments and Sites ICOM-SEE International Council of Museums—South East Europe Alliance ICPRCP Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (Intergovernmental Committee for Promoting the Return of Cultural Property) ICRC International Committee of the Red Cross ICRMW International Convention on the Rights of Migrant Workers and Their Families ICSID International Centre for Settlement of Investment Disputes ICSIDR— ICSID Review—Foreign Investment Law Journal FILJ ICLQ ICLR ICO ICOM ICOM-ASPAC ICOM-LAC

ICTR ICTY IFLA IDI IDL IEC IEHC IFAR IFARJ IFLA IFSA IGC IHL IHRLR IIA IIIC IIPFWH IJCP IJHS

International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Federation of Library Associations and Institutions Institut de Droit international international disaster law Institut d’Estudis Catalans High Court of Ireland International Foundation for Art Research International Foundation for Art Research Journal International Federation of Library Associations and Institutions Immunity from Seizure Act of 1965 (United States) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore international humanitarian law Intercultural Human Rights Law Review international investment agreement International Institute for International Cooperation International Indigenous Peoples’ Forum on World Heritage International Journal of Cultural Property International Journal of Heritage Studies

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xvi list of abbreviations IJIA IJLI ILA ILC ILM ILR ILO IMC IMO IMT INTERPOL IO IP IPR IRIPCL IRRC IS ISIL ISIS IsLR ISSJ ITLOS IUCN IWGIA IYHR IYIL JAAL JAC JCCH JCH JCHMSD JCMS JComMS JCP JDI JEMAHS JGH

Italian Journal of International Affairs International Journal of Legal Information International Law Association International Law Commission International Legal Materials International Law Reports International Labour Organization International Music Council International Museum Office International Military Tribunal International Criminal Police Organization International Organization intellectual property Intellectual Property Reports International Review of Intellectual Property and Competition Law International Review of the Red Cross International Spectator Islamic State of Iraq and the Levant Islamic State of Iraq and Syria Israel Law Review International Social Science Journal International Tribunal for Law of the Sea International Union for the Conservation of Nature and Natural Resources International Work Group for Indigenous Affairs Israel Yearbook of Human Rights Italian Yearbook of International Law Journal of Art, Antiquity & Law Journal of Architectural Conservation Journal of Colonialism and Colonial History Journal of Cultural Heritage Journal of Cultural Heritage Management and Sustainable Development Journal of Conservation and Museum Studies Journal of Common Market Studies Journal of Cultural Property Journal du droit international Journal of Eastern Mediterranean Archaeology and Heritage Studies Journal of Global History

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list of abbreviations xvii JGR JICJ JIDS JIEL JMRIPL JPR JQ JS JWH JWIP JWT JYI KAFTA KR L&CLR LCP LGBTQI LHT LLALR LN LNOJ LNTS LR LS LUP MAB MDGs MEA MEJIEL MENA MERCOSUR MFN MI MiJIL MINUSMA MJECL MJICL MJIL

Journal of Genocide Research Journal of International Criminal Justice Journal of International Dispute Settlement Journal of International Economic Law John Marshall Review of Intellectual Property Law Journal of Peace Research Jerusalem Quarterly Juristische Schulung Journal of World History Journal of World Intellectual Property Journal of World Trade Japanese Yearbook of International Law Free Trade Agreement between the Republic of Korea and Australia Kunst und Recht Lewis & Clark Law Review Law and Contemporary Problems lesbian, gay, bisexual, transgender/transsexual, queer, and intersex Living Human Treasures Loyola of Los Angeles Law Review League of Nations League of Nations Official Journal League of Nations Treaty Series Landscape Research Libyan Studies Landscape and Urban Planning Man and Biosphere Programme Millennium Development Goals Multilateral Environmental Agreements Merkourios Utrecht Journal of International and European Law Middle East and North Africa Southern Common Market most-favoured nation Museum International Michigan Journal of International Law Multi-dimensional Integrated Stabilization Mission in Mali Maastricht Journal of European and Comparative Law Macquarie Journal of International and Comparative Law Melbourne Journal of International Law

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xviii list of abbreviations MLN MLR MNLA MoA MI MOMA MoTA MoU MSG MSILR MSLN NAFTA NAGPRA NATO NCCR NDFP NEA NELR NGO NGT NILR NJIL NNHRR NQHR NSPA NSR NTC/FLA NYIL NYUJILP NZPIL OA OAS OASDRIP OCBC OCHA OECD OHCHR

Modern Language Notes Military Law Review National Movement for the Liberation of Azawad Egyptian Ministry of Antiquities Modern Italy Museum of Modern Art Palestinian Ministry of Tourism and Antiquities Memorandum of Understanding Melanesian Spearhead Group Michigan State International Law Review Monthly Summary of the League of Nations North American Free Trade Agreement Native American Graves Protection and Repatriation Act (United States) North Atlantic Treaty Organization Swiss National Centre of Competence in Research National Democratic Front of the Philippines Near Eastern Archaeology New England Law Review non-governmental organization Norsk Geografisk Tidsskrift Netherlands International Law Review Nordic Journal of International Law Netherlands Network of Human Rights Research Netherlands Quarterly of Human Rights National Stolen Property Act of 1934 (United States) Nova Scotia Reports National Transitional Council/Free Libyan Army Netherlands Yearbook of International Law New York University Journal of International Law & Policy New Zealand Journal of Public & International Law Österreichisches Anwaltsblatt Organization of American States Organization of American States’ Declaration on the Rights of Indigenous Peoples Central Office for the Fight against Trafficking in Cultural Property United Nations Office for the Coordination of Humanitarian Affairs Organisation for Economic Co-operation and Development Office of the United Nations High Commissioner for Human Rights

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list of abbreviations xix OMC open method of co-ordination ONCA Ontario Court of Appeal ONCS Ontario Superior Court of Justice OSCE Organization for Security and Cooperation in Europe OUV outstanding universal value PACE Parliamentary Assembly (Council of Europe) PAM (ASIL) Proceedings of the Annual Meeting (American Society of International Law) PARSE Platform for Artistic Research Sweden PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice PCT Patent Cooperation Treaty PD Piske Din Shel Bet Hamishpat Haelyon (Decisions of the Israeli Supreme Court) PDNA Post-Disaster Needs Assessments PE Politique européenne PEQ Palestine Exploration Quarterly PIF Pacific Islands Forum PILNJZ Public Interest Law Journal of New Zealand PKK/HPG Kurdistan Workers’ Party/People’s Defence Forces PloSG PLoS Genetics PNGNCJ Papua New Guinea National Court of Justice PPDU Processi di Pace e Dignità Umana PREMA Prevention dans les Musees Africains PSYCHE Protection System for Cultural Heritage PTA Preferential Trade Agreements QB Queen’s Bench Reports QIL Questions of International Law QLJ Queen’s Law Journal RCADI Recueil des cours de l’Académie de droit international RCADIH Recueil des Cours de l’Académie de Droit International de La Haye RDA Revista de Direito Ambiental RDI Rivista di diritto internazionale RDIPP Rivista di diritto internazionale privato e processuale RECIEL Review of European, Comparative and International Environmental Law RFDC Revue française de droit constitutionnel RGDIP Revue Générale de Droit International Public RGSP Register of Good Safeguarding Practices

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xx list of abbreviations RIAA RIO RIS RLD RSC R2P SAARC SA&CLR SADC SAHRA SAHRIS SAJS SAP SBAH SC SCC SDGs SDLR SFRY SIA SIDI SIDS SLR SPC SPLM SPLM/A SPREP STAB STLR SUJSSHA SYIL TC TCE TDKL TEEC TEU

Reports of International Arbitral Awards Review of International Organizations Review of International Studies Revista de Llengua i Dret/Journal of Language and Law Rules of the Supreme Court Responsibility to Protect South Asian Association for Regional Cooperation Santander Art & Culture Law Review Southern African Development Community South African Heritage Resources Agency South African Heritage Resources Information System South African Journal of Science Spoliation Advisory Panel (United Kingdom) State Board of Antiquity and Heritage (Iraq) Security Council Supreme Court of Canada Sustainable Development Goals San Diego Law Review Socialist Federal Republic of Yugoslavia State Immunity Act of 1982 (Canada) Society of International Law and European Union Law (Italy) Small Island Developing States Stanford Law Review Pacific Community (formerly South Pacific Commission) Sudan People’s Liberation Movement Sudan People’s Liberation Movement and Army Pacific Regional Environment Programme Scientific and Technical Advisory Body St Thomas Law Review Silpakorn University Journal of Social Sciences, Humanities, and Arts Singapore Yearbook of International Law Territori della Cultura traditional cultural expressions Traditional Knowledge Digital Library Treaty Estabishing the European Economic Community Treaty on European Union

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list of abbreviations xxi TFEU TFV TILJ TJCIL TJICL TK TKRC TLR TPC TRC TRIPS TS UCAP UCDLR UCH UCHC UCLA JI & FA UCLA UDHR UKHL UKTS UNASUR UNCAT UNCITRAL UNCLOS UNCSI UNCTAD UNDP UNDRIP UNECE UNESCO UNGA UN GAOR UNHCR UNICRI

Treaty on the Functioning of the European Union Trust Fund for Victims Texas International Law Journal Tulsa Journal of Comparative & International Law Tulane Journal of International and Comparative Law traditional knowledge Traditional Knowledge Resource Classification Texas Law Review Italian Carabinieri Headquarters for the Protection of Cultural Heritage Truth and Reconciliation Commission Trade Related Aspects of Intellectual Property Rights The Sciences UNIDROIT Convention Academic Project UC Davis Law Review Underwater Cultural Heritage Convention on the Protection of Underwater Cultural Heritage (2001) Journal of International & Foreign Affairs Universal Declaration of Human Rights United Kingdom House of Lords United Kingdom Treaty Series Union of Nations of South America United Nations Convention against Torture United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United Nations Convention on Jurisdictional Immunities of States and Their Property United Nations Conference on Trade and Development United Nations Development Programme United Nations Declaration on the Rights of Indigenous Peoples United Nations Economic Commission for Europe United Nations Educational, Scientific and Cultural Organization United Nations General Assembly United Nations General Assembly Official Records United Nations High Commissioner for Refugees United Nations Interregional Criminal and Justice Research Institute

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xxii list of abbreviations UNODC UNSC UNSW UNSWLJ UNTOC UNTS UPJIL URLR USC USIA USL VAT VCLT VCSSP VCSST VJIL VJLT VJTL VOC WATCH WCO WCON WEF WGIP WHC WHIPCOE WHL WHO WHS WIPO WLR WPWL WTO

United Nations Office on Drugs and Crime United Nations Security Council University of New South Wales University of New South Wales Law Journal United Nations Convention against Transnational Organized Crime United Nations Treaty Series University of Pennsylvania Journal of International Law University of Richmond Law Review United States Code United States Information Agency List of Intangible Cultural Heritage in Need of Urgent Safeguarding (Urgent Safeguarding List) value-added tax Vienna Convention on the Law of Treaties Vienna Convention on Succession of States in Respect of State Property, Archives and Debts Vienna Convention on Succession of States in Respect of Treaties Virginia Journal of International Law Virginia Journal of Law and Technology Vanderbilt Journal of Transnational Law Vereenigde Oostindische Compagnie (United East India Company) World Association for the Protection of Tangible and Intangible Cultural Heritage World Customs Organization WCO News World Economic Forum Working Group on Indigenous Populations Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) World Heritage Indigeous Peoples’ Council of Experts World Heritage List World Health Organization World Heritage sites World Intellectual Property Organization Weekly Law Reports Working Papers in Women’s Law World Trade Organization

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list of abbreviations xxiii WWR YIHL YILC YJIL YLJ

Western Weekly Reports Yearbook of International Humanitarian Law Yearbook of the International Law Commission Yale Journal of International Law Yale Law Journal

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Table of Cases

I N T ER NAT IONA L A N D R EGIONA L African Commission on Human and Peoples’ Rights Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of Endorois Welfare Council) v Kenya Communication No 276/2003, 25 November 2009�� 8, 32, 188, 189, 429, 651 Nubian Community in Kenya v Republic of Kenya, Communication No 317/2006, 30 May 2016 �� 187 Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria, Communication No 155/96, 27 May 2002�� 651 African Court on Human and Peoples’ Rights African Commission on Human and Peoples’ Rights v The Republic of Kenya, Application No 006/2012, Judgment of 26 May 2017 �� 88, 188, 397 Eritrea–Ethiopia Claims Commission Central Front—Eritrea’s Claims 2, 4, 6, 7, 8 & 22, Partial Award, Decision of 28 April 2004, (2009) 26 RIAA 115 (Stela of Matara case)��616, 619, 627, 637, 640, 657 Eritrea’s Damages Claims, Final Award (2009) 140 ILR 235��72 Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 & 26, Partial Award (2005) 135 ILR 565��54 European Court of Human Rights (ECtHR) Ahunbay v Turkey, Application No 6080/06, 29 January 2019 ��398, 914, 919, 920, 929 Akdas v Turkey, Application No 41056/04, 16 February 2010 �� 920 Beyeler v Italy, Application No 33202/96, 5 January 2000 ��398, 671, 920 Cangi v Turkey, Application No 25973/15, 29 January 2019 �� 921 Catholic Archdiocese of Alba Iulia v Romania, Application No 33003/03, 25 September 2012��398 Chrysostomos v Turkey, Application No 66611/2009, 4 January 2011 ��672 Debelianovi v Bulgaria, Application No 61951/00, 29 March 2007��398 Former King of Greece and others v Greece, Application No 25701/94, 23 November 2003�� 671 Holy Monasteries v Greece, Application Nos 13092/87, 13984/88, 9 December 1994�� 671 Jorgić v Germany, Application No 74613/01, 12 July 2007��140 Kirovi v Bulgaria and Turkey, Application No 58694/00, 2 October 2006�� 572 Kozacioglu v Turkey, Application No 2334/03, 19 February 2009��291, 398, 671, 920, 921 Lautsi and others v Italy, Application No 30814/06, 18 March 2011�� 919 Manoilescu and Dobrescu v Romania and Russia, Application No 60861/00, 3 March 2005�� 572

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xxvi table of cases Osmanoglu and Kocabas v Switzerland, Application No 29086/12, 10 January 2017�� 919 Prince Hans-Adam II of Liechtenstein v Germany, Application No 42527/98, 12 July 2001�� 578, 671 Sargsyan v Azerbeidzjan, Application No 40167/06, 16 June 2015��398 Treska v Albania and Italy, Application No 26937/04, 29 June 2006�� 572 Wallishauser v Austria (No 2), Application No 14497/06, 20 June 2013�� 574 European Court of Justice (ECJ) Commission v Greece, Case C-198/89, [1991] EU:C:1991:79, [1991] ECR I-735�� 925 Commission v Italy, Case 7/68, ECLI:EU:C:1968:51, [1968] ECR 423�� 522, 672, 922 Daiber v Hauptzollamt Reutlingen, Case 200/84, EU:C:1985:403, [1985] ECR 3363��693 Fachverband der Buchund Medienwirtschaft v LIBRO Handelsgesellschaft mbH, Case C-531/07, EU:C:2009:276 [2009] ECR I-3717 �� 523 Gmurzynska-Bscher v Oberfinanzdirektion Köln, Case 231/89, ECLI:EU:C:1990:386, [1990] ECR I-4003��693 Extraordinary Chambers in the Courts of Cambodia (ECCC) Case No 001–001/18-07-2007-ECCC/SC, 26 July 2010�� 120 Human Rights Chamber for Bosnia and Herzegovina Catholic Archdiocese of Vrhbosna v Federation of Bosnia and Herzegovina, No CH/02/9628, Decision on Admissibility and Merits, 6 June 2003 (Catholic Archdiocese of Vrhbosna)��657 Islamic Community in Bosnia and Herzegovina v Republika Srpska, No CH/96/29, Decision on Admissibility and Merits, 11 June 1999 (Islamic Community, Banja Luka case)��657 Islamic Community in Bosnia and Herzegovina v Republika Srpska, No CH/99/2656, Decision on Admissibility and Merits, 6 December 2000 (Islamic Community, Bijeljina case)��657 Islamic Community in Bosnia and Herzegovina v Republika Srpska, No CH/01/7701, Decision on Admissibility and Merits, 22 December 2003 (Islamic Community, Mrkonjic Grad case)��657 Islamic Community in Bosnia and Herzegovina v Republika Srpska, No CH/98/1062, Decision on Admissibility and Merits, 9 November 2000 (Islamic Community, Zvornik case)��657 Islamic Community in Bosnia Herzegovina v Republika Srpska, No CH/98/1062, Decision on Review, 9 February 2001 (Islamic Community, Zvornik case) �� 189 Islamic Community in Bosnia Herzegovina v Republika Srpska, No CH/98/1062, Decision on Admissibility and Merits, 12 October 2001 (Islamic Community, Zvornik case) �� 189 Human Rights Committee (HRC) Fernando v Sri Lanka, Communication No 1189/2003, 31 March 2005 �� 397 Kitok v Sweden, Communication No 170/1984 and 197/1985, 27 July 1988�� 395, 396 Kivenmaa v Finland, Communication No 412/1990, 31 March 1994�� 397 Länsman et al v Finland, Communication No 511/1992, 8 November 1994�� 395, 396 Länsman et al v Finland, Communication No 671/1995, 30 October 1996�� 395, 396

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table of cases xxvii Mahuika et al v New Zealand, Communication No 547/1993, 27 October 2000�� 395, 396, 399 Mahuika et al v New Zealand, Communication No 547/1993, 27 October 2000��396 Mavlonov and Sa’di v Uzbekistan, Communication No 1334/2004, 19 March 2009�� 417 Ominayak, Chief of the Lubicon Lake Band v Canada, Communication No 167/1984, 26 March 1990��396, 399 Paadar et al v Finland, Communication No 2102/2011, 5 June 2014 �� 395, 396 Poma v Peru, Communication No 1457/2006, 24 April 2009)��396 Ross v Canada, Communication No 736/97, 18 October 2000 �� 397 Shchetoko et al v Belarus, Communication No 1009/2001, 11 July 2006�� 397 Shin v Republic of Korea, Communication No 926/2000, 16 March 2004 �� 397 Zundel v Canada, Communication No 1341/2005, 20 March 2007�� 397 International Centre for Settlement of Investment Disputes (ICSID) Bear Creek Mining Corporation v Republic of Peru, Case No ARB/14/21, Award, 30 November 2017 ��494, 495, 496 Burlington v Ecuador, Case No ARB/08/5, Decision on Counterclaims, 7 February 2017�� 505 Compañia del Desarrollo de Santa Elena S.A. v Republic of Costa Rica, Case No ARB/96/1, Award, 17 February 2000�� 500 Crystallex International Corporation v Bolivarian Republic of Venezuela, Case No ARB(AF)/11/2, Award, 4 April 2016��489 Dominion Minerals Corp. v The Republic of Panama, Case No ARB/16/13, Request for Arbitration, 29 March 2016 (pending)�� 498 Marion and Reinhard Hans Unglaube v Republic of Costa Rica, Case No ARB No. 09/20, Award, 16 May 2012�� 500 Parkerings-Compagniet AS v Lithuania, Case No ARB/05/08, Award, 11 September 2007��269, 284, 525, 676 Perenco v Ecuador, Case No ARB/08/6, Interim Decision on the Environmental Counterclaims, 11 August 2015 �� 503 Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, Case No ARB/84/3, Award, 20 May 1992��284, 526, 675 Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partuergoa v The Argentine Republic, Case No ARB/07/26, Award, 8 December 2016��499, 505 WHL. SSP v Egypt, Case No ARB/84/3, Award, 20 May 1992��269 Inter-American Court of Human Rights (IACtHR) Aloeboetoe v Suriname, Reparations and Costs, Inter-American Court of Human Rights, Series C No 15, 10 September 1993��652 Caso de las comunidades afrodescendientes desplazadas de la cuenca del río cacarica (Operación Génesis) v Colombia, Preliminary Objections, Merits, Reparations, and Costs, Series C No 270, 20 November 2013 �� 651 Garifuna Community of Punta Piedra and Its Members v Honduras, Case No 12.761, filed 11 October 2013��429 Garifuna Community of Triunfo de la Cruz and Its Members v Honduras, Case 12.548, filed 21 February 2013��429

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xxviii table of cases Kaliña and Lokono Peoples v Suriname, Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs, Series C No 309, 25 November 2015 �� 187, 188, 189, 191, 192, 397, 422 Mayagma (Sumo) Awas Tingni Community, Judgment on Merits, Reparations, and Costs, Series C No 79, 31 August 2001�� 89, 422, 651, 652 Moiwana Community v Suriname, Merits, Reparations, and Costs, Series C No 124, 15 June 2005�� 188, 190, 422, 651, 652, 653 Plan de Sánchez Massacre v Guatemala, Merits, Series C No 105, 29 April 2004�� 652, 653 Rio Negro Massacres v Guatemala, Preliminary Objections, Merits, Reparations and Costs, Series C No 250, 4 September 2012 ��183 Saramaka People v Suriname, Preliminary Objections, Merits, Reparations, and Costs, Series C No 172, 28 November 2007 �� 422, 429, 651 Sawhoyamaxa Indigenous Community v Paraguay, Merits, Reparations and Costs, Series C No 146, 29 March 2006�� 190, 422, 492, 500 Yakye Axa Indigenous Community v Paraguay, Merits, Reparations, and Costs, Series C No 125, 17 June 2005 ��422, 652 International Court of Justice (ICJ) Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment of24 May 2007, [2007] ICJ Rep 582��389 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgmentof 3 February 2015, [2015] ICJ Rep 24�� 85, 390, 535, 569, 622, 624 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), GL No 140, ICGJ 429, Judgment on Preliminary Objections of 1st April 2011��390 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005, [2005] ICJ Rep 168�� 47, 59 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 February 2002, [2002] ICJ Rep 1��389 Avena and Other Mexican Nationals (Mexico v United States of America), Judgment of 21 March 2004, [2004] ICJ Rep 12��389 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase), Judgment of 5 February 1970, [1970] ICJ Rep, 3��143, 599, 600, 635 Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Preliminary Objections, Judgment of 11 July 1996, [1996] ICJ Rep 595 �� 618 Case Concerning Military and Para-military Activities in and Against Nicaragua (Nicaragua v United States of America), Judgment of 27 June 1986, [1986] ICJ Rep 14�� 541 Case Concerning Oil Platforms (Iran v United States of America), Judgment of 12 December 1996, [1996] ICJ Rep 803�� 52 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Serbia & Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep 43�� 32, 58, 60, 63, 85, 140, 390, 534, 549, 616, 621, 637, 673

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table of cases xxix Certain Iranian Assets (Iran v United States of America), Preliminary Objections, Judgment of 13 February 2019, [2019] ICJ Rep 7�� 577 Certain Property (Liechtenstein v Germany), Preliminary Objections, Judgment of 10 February 2005, [2005] ICJ Reports 6�� 534, 578, 673 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), Judgment of 12 October 1984, [1984] ICJ Rep 24��652 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment of 14 July 2009, [2009] ICJ Rep 66 ��535 Frontier Dispute (Burkina Faso v Niger), Judgment of 16 April 2013, [2013] ICJ Rep 44��535 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, [2012] ICJ Rep 99��560, 561, 573, 576, 638, 674 LaGrand (Germany v United States of America), Judgment of 27 June 2001, [2001] ICJ Rep 466�� 389, 637 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep 16��542 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep 136�� 47, 542 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, Revised 4 March 2019��542 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), Judgment of 14 June 1993, [1993] ICJ Rep 33�� 52 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment of 27 June 1986, [1986] ICJ Rep 14�� 620 North Sea Continental Shelf (Federal Republic of Germany v Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep 3�� 574 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, [2012] ICJ Rep 422 ��390 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Provisional Measures, Order of 18 July 2011, [2011] ICJ Rep 537��673 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Judgment of 11 November 2013, [2013] ICJ Rep 281�� 86, 613, 614, 617, 638, 673 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, [1951] ICJ Rep 15 ��599 Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment of 15 June 1962, [1962] ICJ Rep 6�� 534, 672 Western Sahara, Advisory Opinion of 12 October 1975, [1975] ICJ Rep 12��542 International Criminal Court (ICC) Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Case No ICC-01/19–7, Request for authorisation of an investigation pursuant to article 15, 4 July 2019��180

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xxx table of cases Prosecutor v Ahmad Al Faqi Al Mahdi, Case No ICC-01/12–01/15-171, Judgment and Sentence, 27 September 2016��3, 10, 30, 54, 73, 77, 78, 81, 84, 91, 96, 109, 110, 114, 135, 136, 142, 179, 191, 269, 284, 381, 538, 542, 614, 615, 627, 658, 659, 660, 675 Prosecutor v Ahmad Al Faqi Al Mahdi, Case No ICC-01/12–01/15–236, Reparations Order, 17 August 2017 ��30, 32, 185, 189, 191, 638, 655, 658, 659, 660, 675 Prosecutor v Bosco Ntaganda, Case No ICC-01/04–02/06–309, Pre-Trial Chamber, Decision on Confirmation of Charges, 9 June 2014 ��54 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Case No ICC-01/04–01/07–717, Pre-Trial Chamber, Decision on Confirmation of Charges, 30 September 2008 ��54 Prosecutor v Thomas Lubanga Dyilo, Case No ICC-01/04–01/06–2842, Trial Chamber Judgment, 14 March 2012��48 Prosecutor v Thomas Lubanga Dyilo (Amended Order for Reparations (Annex A), Case No ICC-01/04–01/06, Appeals Chamber, 3 March 2015��658 Prosecutor v Thomas Lubanga Dyilo (Décision fixant le montant des réparations auxquelles Thomas Lubanga Dyilo est tenu), Case No ICC-01/04–01/063379-Red, Trial Chamber II, 15 December 2017�� 661 International Criminal Tribunal for Rwanda (ICTR) Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (Judgment), Case No ICTR-99-52-A, 28 November 2007��181 Prosecutor v Kayishema and Ruzindana (Judgment), Case No ICTR-95-1, 21 May 1999��117 International Criminal Tribunal for the Former Yugoslavia (ICTY) Prosecutor v Anto Furundzija, Case No IT-95-17-1-T, Trial Chamber, Judgment of 10 December 1998 �� 618 Prosecutor v Biljana Plavsić, Case No IT-00-39 &40-1-S, Trial Chamber, Judgment of 27 February 2003�� 113 Prosecutor v Dario Kordić & Mario Cerkez, Case No IT-95-14-2-T, Trial Chamber, Judgment of 26 February 2001�� 82, 113, 631, 675, 765 Prosecutor v Dario Kordić & Mario Cerkez, Case No IT-95-14-2-A, Appeals Chamber, Judgment of 17 December 2004��50, 54 Prosecutor v Duško Tadić, Case No IT-94-1-T, Trial Chamber, Judgment of 2 October 1995�� 537 Prosecutor v Dusko Tadić, Case No IT-94-1-A, Appeals Chamber, Interlocutory Decision on Jurisdiction of 2 October 1995��48, 81, 608, 621 Prosecutor v Dusko Tadić, Case No IT-94-1-A, Appeals Chamber, Judgment of 15 July 1999�� 608 Prosecutor v Enver Hadžihasanović and Amir Kubura, Case No IT-01-47-T, Trial Chamber, Judgment of 15 March 2006�� 108, 109, 675 Prosecutor v Jadranko Prlić et al, Case No IT-04-74-T, Trial Chamber III, Judgment of 29 May 2013 �� 55, 83, 87, 109, 113 Prosecutor v Miodrag Jokić, Case No IT-01-42, Second Amended Indictment, 27 August 2003�� 107 Prosecutor v Miodrag Jokić, Case No IT-01-42-1-S, Trial Chamber I, Judgment of 18 March 2004 �� 23, 90, 91, 108, 109, 138, 179, 674

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table of cases xxxi Prosecutor v Miroslav Kvocka, Case No IT-98-30-1-A, Appeals Chamber, Judgement of 28 February 2005��114 Prosecutor v Momčilo Krajišnik, Case No IT-00-39-T, Trial Chamber, Judgment of 27 September 2006��117 Prosecutor v Nikola Sainović et al, Case No IT-05-87-T, Trial Chamber, Judgment of 26 February 2009�� 113 Prosecutor v Pavle Strugar, Case No, ICTY-IT-01-42, Rule 98 bis Motion, 21 June 2004�� 179 Prosecutor v Pavle Strugar, Case No IT-01-42-T, Trial Chamber II, Judgment of 31 January 2005 �� 23, 81, 91, 108, 109, 269, 284, 608, 613, 615, 626, 627, 631, 635, 640, 674 Prosecutor v Pavle Strugar, Miodrag Jokić, Milan Zec, Vladimir Kovačević, Case No IT-01-42, Initial Indictment, 22 February 2001�� 107 Prosecutor v Radislav Krstić, Case No IT-98-33-T, Trial Chamber, Judgment of 2 August 2001��84, 116, 117, 137, 139, 549 Prosecutor v Radoslav Brðanin, Case No IT-99-36-T, Trial Chamber II, Judgment of 1 September 2004��81, 631 Prosecutor v Radoslav Brdanin, Case No IT-99-36-A, Appeals Chamber, Judgment of 3 April 2007 ��114 Prosecutor v Radovan Karadžić, Case No IT-95-5-18-T, Trial Chamber, Judgment of 24 March 2016�� 113, 117 Prosecutor v Radovan Karadžić and Ratko Mladić, Case No IT-95-5-18-R61, Trial Chamber, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996��116 Prosecutor v Stanlislav Galić, Case No IT-98-29-A, Appeals Chamber, Judgment of 30 November 2006 �� 55 Prosecutor v Tihomir Blaškić, Case No IT-95-14-T, Trial Chamber, Judgment of 3 March 2000�� 82, 112 Prosecutor v Tihomir Blaškić, Case No IT-95-14-A, Appeals Chamber, Judgment of 29 July 2004 ��137, 138 Prosecutor v Vidoje Blagojević and Dragan Jokić, Case No IT-02-60-T, Trial Chamber, Judgment of 17 January 2005��117 Prosecutor v Vujadin Popović, Case No IT-05-88-A, Appeals Chamber, Judgment of 30 January 2015 ��114 Prosecutor v Zdravko Tolimir, Case No IT-05-88-2-A, Appeals Chamber, Judgment of 8 April 2015��117 Prosecutor v Zoran Kupreskić, Case No IT-95-16-T, Trial Chamber, Judgment of 14 January 2000��112 International Military Tribunal for Germany (Nuremberg Tribunal) Case of United States et al. v Hermann Goering et al. of 1946, (1947) 6 Federal Rules Decisions 69��701, 709 Judgment of 30 September and 1 October 1946, (1947) 41 AJIL 172 ��110, 568 Permanent Court of Arbitration (PCA) Iron Rhine (‘IJzeren Rijn’) Railway (Belgium v Netherlands), (2005) 27 RIAA 35�� 52 South American Silver Limited v the Plurinational State of Bolivia, Case No 2013–15, Award, 22 November 2018�� 494

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xxxii table of cases Permanent Court of International Justice (PCIJ) Factory of Chorzów case (Germany v Poland) (Merits) (1928), PCIJ Rep. Series A No. 17 ��643 Minority Schools in Albania case (1935) PCIJ, Series A/B, No 64�� 23 United Nations Commission on International Trade Law (UNCITRAL) Al-Warraq v Indonesia, Final Award, 15 December 2004�� 505 Cosigo Resources, Ltd, Cosigo Resources Sucursal Colombia, Tobie Mining and Energy, Inc. v Republic of Colombia, Notice of Demand and Demand for Arbitration and Statement of Claim, 19 February 2016 �� 498 Cosigo Resources, Ltd, Cosigo Resources Sucursal Colombia, Tobie Mining and Energy, Inc. v Republic of Colombia, Respuesta de la Repblica de Colombia a la Solecitud de Arbitraje de las Demandantes, 16 March 2016�� 499 Glamis Gold, Ltd v United States of America, Award, 8 June 2009 �� 284, 490, 499, 525 Grand River Enterprises Six Nations, Ltd, et al v United States of America, Award, 12 January 2011�� 426, 488 World Trade Organisation (WTO) Brazil — Measures Affecting Imports of Retreaded Tyres (European Communities v Mexico) - AB-2007-4 – Appellate Body Report, WT/DS332/AB/R, 3 December 2007 (Brazil — Retreaded Tyres)��517, 518, 520 China — Measures Related to the Exportation of Various raw Materials (United States v China) - AB-2011-5 – Appellate Body Reports WT/DS394/AB/R ; WT/ DS395/AB/R ; WT/DS398/AB/R, 30 January 2012 (China — Raw Materials)�� 514 European Communities — Measures Affecting Asbestos and Products Containing Asbestos (Canada v European Communities) - AB-2000-11 - Appellate Body Report, WT/DS135/12, 11 April 2001 (EC — Asbestos)��517 European Communities — Measures Affecting the Approval and Marketing of Biotech Products (United States v European Communities) - Panel Reports, WT/DS291/R ; WT/DS292/R ; WT/DS293/R, 29 September 2006 (EC — Approval and Marketing of Biotech Products)��520 European Communities — Measures Prohibiting the Importation and Marketing of Seal Products (Canada v European Communities) - AB-2014-1 - AB-2014-2 Appellate Body Reports, WT/DS400/AB/R ; WT/DS401/AB/R, 22 May 2014 (EC — Seal Products)��515 European Communities — Regime for the Importation, Sale and Distribution of Bananas (Ecuador, Guatemala, Honduras, Mexico and United States v European Communities) - AB-1997-3 - Appellate Body Report, WT/DS27/AB/R, 9 September 1997 (EC — Bananas III)��515 Mexico — Tax Measures on Soft Drinks and Other Beverages (United States v Mexico) - AB-2005-10 - Appellate Body Report, WT/DS308/AB/R, 6 March 2006 (Mexico — Taxes on Soft Drinks)��520 Peru — Additional Duty on Imports of Certain Agricultural Products (Guatemala v Peru) - AB-2015-3 - Appellate Body Report, WT/DS457/AB/R, 20 July 2015 (Peru — Agricultural Products)��520 United States — Certain Country of Origin Labelling (COOL) Requirements (Canada v United States) - AB-2012-3 – Appellate Body Reports, WT/DS384/ AB/R ; WT/DS386/AB/R, 29 June 2012 (US — COOL)��515

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table of cases xxxiii United States — Definitive Anti-Dumping and Countervailing Duties on Certain Products from China (China v United States) - AB-2010-3 - Appellate Body Report, WT/DS379/AB/R, 11 March 2011 (US — Anti-Dumping and Countervailing Duties (China))��520 United States — Import Prohibition of Certain Shrimp and Shrimp Products (India, Malaysia, Pakistan and Thailand v United States) - Recourse to Article 21.5 of the DSU by Malaysia - AB-2001-4 - Appellate Body Report, WT/DS58/ AB/RW, 22 October 2001 (US — Shrimp)��517, 520 United States — Measures Affecting the Production and Sale of Clove Cigarettes (Indonesia v United States) - AB-2012-1 - Appellate Body Report, WT/DS406/ AB/R (US — Clove Cigarettes) ��515 United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Mexico v United States) - Recourse to article 21.5 of the DSU by Mexico - AB-2015-6 - Appellate Body Report,WT/DS381/AB/RW, 20 November 2015 (US — Tuna II (Mexico)) ��517 United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Mexico v United States) - Recourse to article 21.5 of the DSU by Mexico - AB-2015-6 - Appellate Body Report, WT/DS381/AB/RW2, 14 December 2018 (US — Tuna II (Mexico II))��517 NAT IONA L Australia Bulun Bulun v R & T Textiles (Pty) Ltd (1998) 41 IPR 513 ��480, 648 Buzzacott v Hill [1999] FCA 639 ��284 Buzzacott v Hill [1999] FCA 1192 (1 September 1999)�� 653 George Milpurrurru, Banduk Marika, Tim Payunka and the Public Trustee of the Northern Territory v Indofurn Pty Ltd, Brian Alexander Bethune, Raymond King and Robert James Rylands (1994) 54 FCR 240��480, 648 Kruger v Commonwealth (1997) 190 CLR 1�� 653 Nulyarimma v Thompson [1999] FCA 1192��286 Storm Seymour Jacklin v Minister for the Arts and the Centenary of Federation [2001] AATA 416��512 Austria BG Wien (District Court of Vienna) 21.6.2011, 72 E 1855/11 z-20 (Diag Human v Czech Republic)�� 575 OGH (Supreme Court) 16.4.2013, 3 Ob 39/13a (Diag Human v Czech Republic)�� 575, 577 OGH (Supreme Court) 20.10.2005, Juristische Blätter 2006, 178 (Unterberger) ��690, 697 OGH (Supreme Court) 29.5.1990, Österreichisches Recht der Wirtschaft 1991, 108 �� 699 OGH (Supreme Court) 3.3.1966, Juristische Blätter 1967, 367 ��711 Belize Aurelio Cal v Attorney General of Belize, Supreme Court, 18 October 2007 ��422 Bosnia and Herzegovina Islamic Community in Bosnia and Herzegovina, Constitutional Court, Case No AP-743/12, 21 July 2015��657

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xxxiv table of cases Canada Indian Residential Schools, Re (2000) 258 AR 377 (Court of Queen’s Bench of Alberta)�� 653 Marquis de Somerueles (1813) Stewart’s Vice-Admiralty Reports 482 (Nova Scotia Court of Vice-Admiralty)��702 R v Yorke (1998) 166 NSR (2d) 130��222 Raubach et al v The Attorney General of Canada et al [2005] 1 WWR 334 (Manitoba Court of Queen’s Bench)�� 653 Schreiber v Germany and Canada [2002] SCC 62��560 Tracy v Iran [2016] ONSC 3759 (Ontario Superior Court of Justice); [2017] ONCA 549 (Ontario Court of Appeal)��576 France Cass 15 April 1988, Juris—Classeur Périodique 1988, Jur 21,06, Revue critique de droit international privé 78 (1989)��693 Cass 20 February 1996, Juris-Classeur Périodique 1996, Jur 22, 672��693 Cass 22 February 1978, Recueil Dalloz 1978, 601�� 712 Cour d’appel Paris 2 June 1999, no 1998/19209, (Christan Gentili di Giuseppe and Others v Musée du Louvre) �� 709 Tribunal civil de la Seine, 12 July 1954 (De Keller c. Maison de laPensée française), Journal du droit international (Clunet) 82 (1955) 118 ��688, 703 Tribunal civil de la Seine 17 April 1885 (Duc de Frias v baron Pichon), Journal du droit international (Clunet) 13 (1886) 593�� 699, 710 Tribunal de grande instance de Paris, 3e chambre 4e section, 3 December 2015, Case No 15/03456 (Antik Batik Sasu v IM Production)�� 649 Germany Bundesgerichtshof (Federal High Court), 16 June 1994, Entscheidungen des Bundesgerichtshofs in Zivilsachen 126, 252�� 700 Bundesgerichtshof (Federal High Court), 16 March 2012, Neue Juristische Wochenschrift 2012, 1796 (Posters of Hans Sachs case)��704 Bundesgerichtshof (Federal High Court) 22 June 1972, 59 Entscheidungen des Bundesgerichtshofes in Zivilsachen 82 (Nigeria case)��707 Bundesgerichtshof (Federal High Court) 5 October 1989, Neue Juristische Wochenschrift 1990, 899��711 Landgericht Augsburg (Regional Court of Augsburg), 17 January 2012, Zeitschrift für Urheber- und Medienrecht 2014, 67; Oberlandesgericht München 20 March 2014, Neue Juristische Wochenschrift 2015, 81 (Tapestry case)��697 Landgericht Berlin (Regional Court of Berlin), 1 November 1928, 56 Journal du droit international (Clunet)184 (1929)��703 Oberlandesgericht Celle (High Court of Celle) 17 September 2010, Gewerblicher Rechtsschutz und Urheberrecht- Rechtsprechungs-Report 2011, 24 �� 699 Oberlandesgericht München (High Court of Munich), 18 March 2013 (2013) 15 Kunst und Recht 77 (Mosaics from Lythrankomi case)��704 Oberlandesgericht München (High Court of Munich), 20 March 2014, Neue Juristische Wochenschrift 2015, 81 (Tapestry case)�� 712

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table of cases xxxv Oberlandesgericht Schleswig (High Court of Schleswig), 10 February 1989, Neue Juristische Wochenschrift 1989, 3105(German–Greek coins case)�� 696 Preußisches Ober-Tribunal, 24 June 1864, 53 Entscheidungen des Königlichen Ober-Tribunals, 49�� 701 Reichsgericht (German Imperial Court), 11 March 1932, Entscheidungen des Reichsgerichts in Zivilsachen �� 135, 339 (Ruisdael case) ��696, 712 Ireland Salafia v Minister for the Environment, Heritage and Local Government and Others (Tara and M3 Motorway) [2006] IEHC 61 �� 291 Israel Attorney-General of the Government of Israel v Adolf Eichmann (1968) 36 ILR 5�� 111 Candu v Minister of Defence (1989) 43(1) PD 738��59 Hess v Commander of IDF Forces in the West Bank (2004) 58(3) PD 443�� 56, 59 Ruidi and Maches v Military Court of Hebron (1970) 24(2) PD 419��59 Shikhrur v Military Commander of the Judea and Samaria Region (1990) 44(2) PD 233��59 Italy Consiglio di Stato (Council of State), 23 September 1991 (Pagenstecher v Provinvia autonoma di Bolzano), Foro italiano 1992, III, 1–6��693 Consiglio di Stato (Council of State), Case No No 3154, 23 June 2008 (Associazione Nazionale Italia Nostra Onlus v Ministero per i Beni le Attività Culturali et al)��596 Corte di Cassazione. 24 November 1995, n 12,166, (Governo di Francia c. De Contessini) Foro italiano 1996, I, 1, 907 �� 699, 710 Corte di Cassazione, Preliminary order on jurisdiction, No 19784, ILDC 2458, 5 October 2015, (2015) 25 Italian Yearbook of International Law 511 (General Consulate of Peru in Milan v Tabibnia)��557, 558, 560 Corte d’appello di Roma (Rome Court of Appeal), 9 July 1946, (Bentivoglio c. Ministero della pubblica istruzione Giurisprudenza italiana 1948, I, 2, 170; confirmed by Corte di Cassazione 31 December 1948, n 1951, Foro italiano, 1949, I, 4)�� 701 Tribunale penale di Pesaro (Pesaro Criminal Tribunal), (2018) 1/2 IFAR Journal 13 ��715 Netherlands Hoge Raad (Supreme Court), Nederlandse Jurisprudentie 1999 no 44, 169, 8 May 1998 (Jan van der Heyden case)�� 699, 709 Hoog Raad (Supreme Court), 30 September 2016 (Morning Star International Corporation v Gabon)��569 Hof ’s-Gravenhage (Appeal Court of The Hague), 7 March 2002, Nederlands internationaal privaatrecht 2002 No 248, 413 (Autocefale Grieks-Orthodoxe Kerk te Cyprus v W O A Lans) ��704 Rechtbank Amsterdam (Amsterdam District Court), Case No C/13/577586/HA ZA 14–1179, 14 December 2016, confirmed by the Appeal Court on 16 July 2019�� 584, 736

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xxxvi table of cases Papua New Guinea Somare v Zurenuoc [2016] PGNC 124��877 Poland Supreme Administrative Court, Case No II OSK 821/08, 16 September 2008 (Via Baltica Bypasses case)�� 291 Switzerland Appellationsgericht Basel-Stadt (Basel Court of Appeal), 18 August 1995, Basler Juristische Mitteilungen 1997, 17, 21–6 = Schweizer Zeitschrift für Internationales und Europäisches Recht 7 (1997) 472; affirmed by Bundesgericht 22 May 1996, Praxis des Internationalen Privat- und Verfahrensrechts 1999, 472��707, 716 Bundesgericht (Federal Tribunal), 18 March 1943, Entscheidungen des Schweizerischen Bundesgerichts 69, part II, 110��711 Bundesgericht (Federal Tribunal), 16 October 1956, Entscheidungen des Schweizerischen Bundesgerichts 82, part II, 411 ��697, 712 Bundesgericht (Federal Tribunal), 13 December 1968, Entscheidungen des Schweizerischen Bundesgerichts 94, part II, 297�� 699 Bundesgericht (Federal Tribunal), 6 February 1985, 82 ILR 24 (English translation), (1986) 42 Annuaire suisse de droit international 60 (French translation), (Italian State v X and Court of Appeal of the Canton of the City of Basle)�� 556 Bundesgericht (Federal Tribunal), 8 April 2005, Entscheidungen des Schweizerischen Bundesgerichts 131 III 418. Comments by Regula Berger-Röthisberger ��713 Bundesgericht (Federal Tribunal), 16 November 2005, (Office des poursuites et faillites du district de Martigny v Compagnie Noga d’importation et d’exportation SA)��575, 688 Bundesgericht (Federal Tribunal), 29 January 2008, Case No 5A.334/2007/frs (Office des poursuites et faillites du district de Martigny v Compagnie Noga d’importation et d’exportation SA)�� 574, 577 Bundesgericht (Federal Tribunal), Case No 1C 22/2012, 30 August 2012 (A v B)�� 668 United Kingdom Attorney-General of New Zealand v Ortiz [1982] 3 All ER 432; [1982] QB 349, revd [1982] 3 All ER 432; [1984] AC 1, affd [1983] 2 All ER 93; [1984] AC 1; [1984] 1 AC 1; [1983] 2 WLR 809; [1983] 2 AllER 93; [1983] 2 Lloyd’s Rep 265 (HL)�� 213, 692, 705, 706, 707, 717, 719 Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62�� 574 City of Gotha v Sotheby’s/Cobert Finance S.A. (HC, 9 September 1998), unreported��710 Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2007] EWHC 705 (QB), revd [2007] EWCA Civ 1374; [2008] 1 All ER 1177 �� 211, 212, 213, 214, 215, 218, 226, 545, 556, 609, 632, 667, 668 Kingdom of Spain v Christie’s, Manson & Woods [1986] 1 WLR 1120; [1986] 3 All ER 28 (Ch D)�� 692, 705, 706 Kuwait Airways Corp v Iraq Airways Co (no 3) [2002] UKHL 19, [2002] All ER 209; [2002] 2 AC 883��213

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table of cases xxxvii Leaf v International Galleries, [1950] 2 KB 86 (CA) �� 712 Maharanee of Baroda v Wildenstein [1972] 2 QB 283 (CA)�� 694, 712, 716 Ortiz v Attorney-General of New Zealand [1984] AC 1(CA and HL)�� 545 Princess Paley Olga v Weisz [1929] 1 KB 718 (CA)��703 R v Tokeley-Parry [1999] Crim LR 578 (CA)�� 208, 213, 973 Thwaytes v Sotheby’s [2016] WLR 2143 (Ch D)�� 712 Vilca & Ors v Xstrata Ltd & Anor [2016] EWHC 389 (QB)��762 Winkworth v Christie, Manson and Woods [1980] 2 WLR 937 (Ch D)��691, 698, 716 United States Abelesz v Magyar Nemzeti Bank, 692 F.3d 661, (7th Cir 2012) �� 565, 566 Agudas Chasidei Chabad v Russian Federation, 466 F.Supp. 2d 6 (DDC 2006), 528 F.3d 934 (DC Cir 2008), 729 F. Supp. 2d 141 (DDC 2010), 798 F.Supp. 2d 260 (DDC 2011)�� 563, 564, 638 Autocephalous Church of Cyprus and the Republic of Cyprus v Goldberg & Feldman Fine Arts Inc, 717 F.Supp 1374 (SD Ind 1989), affirmed 917 F.2d 278 (9th Cir 1990)�� 539, 667, 698, 716 Bakalar v Vavra, 550 F.Supp 2d 548 (SDNY 2008); 619 F.3d 136 (2d Cir 2010); 819 F.Supp 2d 293 (SDNY 2011) ��692 Banco Nacional de Cuba v Sabbatino, 376 US 398 (1964)��704 Bank Markazi v Peterson, 136 S.Ct. 1310 (20 April 2016)��576 Brancusi v United States, 54 Treasury Division under Customs and Other Laws 428 (Cust Ct 1928) ��693 Cassirer v Kingdom of Spain, 461 F.Supp. 2d 1157 (CD Cal. 2006), 616 F.3d 1019, 49 ILM 1492 (9th Cir 2010); certiorari denied 131 S.Ct. 3057 (2011)�� 563, 564 Cassirer v Thyssen-Bornemisza Collection Foundation, 862 F.3d 951 (9th Cir 2017)�� 698, 709, 714 De Csepel v Republic of Hungary, 808 F.Supp. 2d 113 (DDC 2011) (de Csepel I), 714 F.3d 591 (DC Cir 2013) (de Csepel II), 169 F.Supp. 3d 143 (DDC 2016) (de Csepel III), 859 F.3d 1094 (DC Cir 2017) (de Csepel IV), certiorari denied 139 S.Ct. 784 (2019)�� 555, 563, 564, 566, 688 Estate of Nelson v Rice, 12 P.3d 238 (CA Arizona 2000)��691, 697, 712 Feist Publications v Rural Telephone Service Co., 499 U.S. 340 (1991)��478 Hahn v Duveen, 234 NY Supp 185 (Supr Ct 1929)�� 690 Kunstsammlungen zu Weimar v Elicofon, 678 F.2d 1150 (2d Cir 1982)�� 691, 699, 701, 710, 712 Letelier v Chile, 488 F.Supp. 665 (DDC 1980) ��560 Magness v Russian Federation, 54 F.Supp. 2d 700 (SD Tex. 1999)�� 556 Malewicz v City of Amsterdam, 362 F.Supp. 2d 298 (DDC 2005) (Malewicz I), 517 F.Supp. 2d 322 (DDC 2007) (Malewicz II)��553, 563, 564 Marei von Saher v Norton Simon Museum of Art, 754 F.3d 712 (9th Cir 2014), No 16–56308 of 30 July 2018 (9th Cir 2018); certiorari denied by the Supreme Court of the United States on 20 May 2019�� 699, 703, 709 Maria Altmann v Republic of Austria, 142 F.Supp 2d 1187 (CD Calif 2001); affirmed 317 F.3d 954 (9th Cir 2002); certiorari denied 327 F.3d 1246 (9th Cir 2003), 541 U.S. 677 (2004)��188, 559, 563, 564, 632, 639, 687, 690, 694, 714, 715, 716, 726, 735

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xxxviii table of cases Matter of Flamenbaum, 978 NYS 2d 708, 2013 NY Slip Op 07510 (Court of Appeals, 14 November 2013)�� 699, 710 Matter of Grand Jury Subpoena, 677 NY 2d 872 (Sup Ct NY City 1998); United States v Portrait of Wally, 105 F.Supp 2d 288 (SDNY, 2000)��689, 700, 705 New York v Nancy Wiener, Criminal Complaint (21 December 2016)�� 209 Philipp v Germany, 248 F.Supp. 3d 59 (DDC 2017), 894 F.3d 406 (DC Cir 2018)��563, 564, 566, 709, 714 Reif v Nagy, Supreme Court of the State of New York, New York County: Commercial Division, index 161,799/2015, Judgment of 4 April 2018, Kunst und Recht 20 (2018) 66 ��700, 709, 713 Republic of Turkey v Metropolitan Museum of Art, 762 F.Supp 44 (SDNY 1990)�� 209 RMS Titanic Inc. v The Wrecked and Abandoned Vessel Believed to be the RMS Titanic 1996 AMC 2481�� 301 Rubin v Islamic Republic of Iran, 709 F.3d 49 (1st Cir 2013), 830 F.3d 470 (7th Cir 2016)……�� . 573, 576, 577 Schoeps v Bayern, 27 F.Supp. 3d 540 (SDNY 2014), 611 F. App’x 32 (2nd Cir 2015)��556, 694 Simon v Hungary, 812 F.3d 127 (DC Cir 2016) �� 565, 566, 567 Sotheby’s Inc. v Shene, 04 Civ 10067 (TPG) (SDNY of 23 March 2009) ��692, 710 Strogaoff-Scherbatoff v Weldon, 420 F.Supp 18 (SDNY 1976)��703, 704 Toledo Museum of Art v Claude George Ullin, 477 F.Supp 2d 802 (ND Ohio 2006) ��692 United States v An Antique Platter of Gold 991 F.Supp 222 (SDNY 1997), affirmed on other grounds 184 F.3d 131 (2d Cir 1999)�� 211, 973 United States v An Original Manuscript Dated November 19, 1778, 1999 WL 97894 (SDNY 1999)��974 United States v Approximately Four Hundred Fifty (450) Cuneiform Tablets et al CV17-3980 (EDNY 2017)��211 United States v Corrow, 941 F.Supp. 1553 (D N Mex. 1996), 119 F.3d 796 (10th Cir. 1997)�� 964, 965 United States v Diaz, 499 F.2d 113 (9th Cir. 1974)��962 United States v Hollinshead, 495 F.2d 1154 (9th Cir 1974)�� 207, 695, 974 United States v. Kramer, 168 F.3d 1196 (10th Cir. 1999)��965 United States v McClain, 545 F.2d 988 (5th Cir. 1977), 593 F.2d 658 (5th Cir. 1979)�� 207, 209, 214, 215, 545, 695, 961, 972, 973, 974 United States v One Tintoretto Painting, 691 F.2d 603 (2d Cir 1982) ��693, 705 United States v Painting known as Hannibal, 578 Fed Appx. 10 (2nd Cir. 2014)�� 975 United States v Portrait of Wally, 105 F.Supp. 2d 288 (SDNY 2000), 663 F.Supp. 2d 232 (SDNY 2009), No. 99-CV-09940 (SDNY filed 29 July 2010)�� 208, 669, 685, 709, 721 United States v Schultz 178 F.Supp 2d 445 (SDNY 2002), affirmed 333 F.3d 393 (2d Cir 2003)�� 208, 209, 213, 214, 215, 226, 609, 695, 973 United States v Shivers, 96 F.3d 120 (5th Cir. 1996)��963 United States v Tidwell, 191 F.3d 976 (9th Cir. 1999)�� 964, 965 Westfield v Germany, 633 F.3d 409 (6th Cir 2011)��556, 688 Whitacre v State, 619 NE 2d 605 (Ind 1993) �� 204

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Table of Legislation

I N T ER NAT IONA L A N D R EGIONA L I NST RUM EN TS African Union African Charter on Human and Peoples’ Rights 1981 (Banjul Charter) �� 606 Art 22(1)��366, 389 Art 29�� 365 African Convention on Conservation of Nature and Natural Resources (revised) 2003��286 Charter for African Cultural Renaissance 2014 recital 1��366 Art 10(2) ��366 Art 11(2)��366 Cultural Charter for Africa 1976�� 382 Association of Southeast Asian Nations (ASEAN) Agreement on Disaster Management and Emergency Response 2005 Arts 5 to 8 ��161 Charter of the Association of Southeast Asian Nations 2007 (ASEAN Charter) recital 3��368 Art 1(9) ��368 Art 14��368 Declaration on Cultural Heritage 2000�� 858 s 1 �� 857 s 10(6)(b)�� 857 Caribbean Community (CARICOM) Agreement establishing the Caribbean Disaster Emergency Management Agency 2008 Art XIX��161

Council of Europe Convention on Mutual Assistance in Criminal Matters 1959 ��556, 696 Convention on Offences relating to Cultural Property 2017 (Nicosia Convention)�� 605, 614, 913 Art 10(1)�� 80, 94 Art 12�� 608 Art 21�� 609 Art 23(5)�� 775 Art 24(2)�� 775 Convention on the Conservation of European Wildlife and Natural Habitats 1979 (Berne Convention) �� 276, 289 Convention on the Protection of the Archaeological Heritage 1992 (Valletta Convention)��245, 277, 289, 298, 913, 914 Art 2�� 277 Art 2(i)�� 278 Art 2(ii)�� 278 Art 3(b) ��915 Arts 5 and 6��915 Art 9��915 Convention on the Protection of the Architectural Heritage of Europe 1985 (Granada Convention)��160, 277, 289, 913, 914, 915, 916 Art 1(3)�� 277 Art 7�� 277 Arts 10 to 13�� 277 Art 14�� 916 European Charter for Regional and Minority Languages 1992��913 Preamble�� 377 Art 12��377, 378

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xl table of legislation European Convention for the Protection of the Audiovisual Heritage 2001��913 — Protocol to the European Convention for the Protection of the Audiovisual Heritage, on the Protection of Television Productions 2001��913 European Convention on Human Rights 1950 (ECHR) ��606, 657, �� 672, 912, 915, 918, 921, 928, 929 Art 8��919, 920 Art 9�� 672, 919 Art 10�� 919, 920, 921 Art 10(2) ��920 Art 11 �� 672, 919 Art 12�� 919 Art 35��672 Protocol 1, Art 1 ��671, 672, 920 Protocol.1, Art 2��920 Protocol 16 �� 912 European Convention on the Protection of the Archaeological Heritage 1969 (London Convention)�� 245, 277, 913, 914 European Cultural Convention 1954 �� 910 Art 2��913 Art 4��913 Art 5�� 914 Art 8(1)�� 912 European Landscape Convention 2000�� 272, 278, 287–93, 366, 913, 917, 918, 921 Preamble�� 288, 290, 915 Art 1(a)��288, 915 Art 1(c)�� 916 Art 2��289 Art 3��289 Art 5(a) ��289 Art 5(b) ��289 Art 5(c) �� 289, 290 Art 5(d)��289 Art 6��289 Art 6(C to D) �� 916 Art 6(d)��290 — Protocol Amending the European Landscape Convention 2016 Art 2��292

Framework Convention for the Protection of National Minorities 1995 (FCNM) �� 913, 915 Framework Convention on the Value of Cultural Heritage for Society 2005 (Faro Convention)�� 7, 11, 361, 781, 912, 914, 915, 916, 918, 920, 921, 923, 930 recital 5��366 Art 1��365, 382 Art 1(c)��366 Art 2��462 Art 2(3) �� 365 Art 2(a) ��362, 763, 917 Art 2(b)�� 367, 763, 917 Art 4��365, 917 Art 7(b)�� 917 Art 11 �� 367 Art 12��367, 382 Art 12(a)�� 917 Art 17��915 Statute of the Council of Europe 1949 (Treaty of London) �� 909 Art 1(a)��911 Art 1(b) ��911 Art 1(c)�� 912 Arts 3 and 4�� 910, 914 European Union Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968�� 716 Charter of Fundamental Rights of the European Union 2016 (CFR) Art 22��928, 929 Art 51�� 923 Art 52.5�� 923 Art 52(7) ��929 Treaty establishing the European Coal and Steel Community 1951�� 909 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community 2007��922 Treaty of Rome 1957 (EEC Treaty)��921, 922 Art 237�� 910

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table of legislation xli Treaty on European Union 2007 (TEU) �� 910, 932 Art 2�� 910 Art 3.3��922 Art 3(3)��924, 929 Art 6.1 �� 921 Treaty on the Functioning of the European Union 2007 (TFEU) Art 207.4(a)�� 923 Art 21��693 Art 216�� 923 Art 220�� 923 Art 28��693 Art 292�� 925 Art 34�� 522 Art 35�� 522 Art 36��522, 672, 921 Art 107�� 925 Art 107.3(d)��922 Art 107(3)(d)�� 925 Art 167��926, 927, 929, 930 Art 167(1)��922 Art 167(2)��922 Art 167(3)��923, 928 Art 167(4) ��924, 929 Art 167(5)��924 Council Regulation (EEC) No 3911/92 of 9 December 1992 on the export of cultural goods �� 522 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation)�� 716 Council Regulation (EC) 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96��926 Art 3��224 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to noncontractual obligations (Rome II) Art 16��713 Regulation (EC) No 593/2008 of the European Parliament and of the

Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) OJ L 177, 4.7.2008, p. 6–16 Art 4(1)(b)��697 Art 9(2)��713 Council Regulation (EC) 116/2009 of 18 December 2008 on the export of cultural goods��213, 218, 245, 802, 846 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I recast) Art 6(1) ��693 Art 7(4) �� 691 Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe Programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC�� 926 Council Regulation (EU) 1332/2013 of 13 December 2013 amending Regulation (EU) 36/2012 concerning restrictive measures in view of the situation in Syria Art 4��224 Commission Regulation (EU) 651/2014 declaring certain categories of aid compatible with the internal market in application of arts 107 and 108 of the Treaty ��926 Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State��692, 705 Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art �� 700, 926 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/ EU on the assessment of the effects of

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xlii table of legislation certain public and private projects on the environment ��924 Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast)�� 213, 217, 245, 522, 579, 706, 773, 804, 806, 807, 846, 926 Art 2(2)(b)�� 584 Art 10�� 806 Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU (Fifth Money Laundering Directive)��776 Decision No 1313/2013/EU of the European Parliament and of the Council on a Union Civil Protection Mechanism Art 4(1) �� 168 Art 4(6)�� 167 Art 5��161 Decision (EU) No 2019/420 of the European Parliament and of the Council amending Decision No 1313/2013/EU Arts 5 and 6��161 Geneva Conventions Convention Relative to the Protection of Civilian Persons in Time of War 1949 (Geneva Convention IV) ��104, 117, 136, 179, 629 Art 1�� 635 Art 3��613, 765 Art 3(1)��62 Art 27��62 Art 33��52, 58, 103 Art 53��52, 56, 536 Art 64�� 52 Convention relative to the Treatment of Prisoners of War 1949 (Geneva Convention III) ��629

Art 1�� 635 Art 3��613, 765 Art 3(1)��62 Art 13��62 — Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts 1977 (AP I)�� 53, 64, 73, 103, 179 Pt V, s II��612, 635 Art 1(3)��50 Art 1(4) ��50 Art 38(1)��51, 65 Art 49(1) �� 53 Art 51(2)��62 Art 51(3)��62 Art 51(4)�� 51, 55 Art 51(5)(b)�� 51, 55 Art 52�� 536, 630 Art 52(1)��51 Art 52(2) �� 51, 54, 64 Art 53�� 50, 51, 53, 56, 64, 80, 612, 613, 614, 625, 630 Art 53(a)��64, 65 Art 53(b) �� 65 Art 53(c)�� 53, 631 Art 57��51 Art 57(2)(a)(i)�� 54 Art 57(2)(a)(ii) �� 55 Art 57(2)(a)(iii)�� 55 Art 57(2)(b)��54, 55 Art 58��51 Art 58(a) ��58, 770 Art 58(c) ��57, 58 Art 59�� 129 Art 60�� 129 Art 75��62 Art 80��66 Art 83��66 Art 85(4)(d)��68, 80, 104, 107 Art 91(1)�� 612 — Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts 1977 (AP II)��53, 64, 103 Art 1(1)�� 50, 765 Art 6(5) �� 180

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table of legislation xliii Art 7(1)(i) ��51 Art 13(2)��62 Art 13(3)��62 Art 16�� 50, 51, 54, 56, 64, 65, 80, 104, 612, 613, 614, 625 Art 91�� 186 Hague Conventions Convention (II) with Respect to the Laws and Customs of War on Land, and Annex: Regulations concerning the Laws and Customs of War on Land and Regulations 1899 (Hague II)�� 14, 80, 451 — Regulations concerning the Laws and Customs of War on Land, annexed to Convention concerning the Laws and Customs of War on Land 1899 (1899 Hague Regulations)�� 102, 451, 701 Art 23(g) �� 52 Art 27�� 51, 80, 764 Art 28�� 52 Art 43�� 52 Art 47�� 52 Art 56��51 Convention (IV) respecting the Laws and Customs of War on Land, and Annex 1907 (Hague IV)�� 14, 80, 451, 591 Art 56��177 — Regulations concerning the Laws and Customs of War on Land, annexed to Convention concerning the Laws and Customs of War on Land 1907 (1907 Hague Regulations)��102, 104, 105, ��106, 451, 701 Art 5��51 Art 21�� 65 Art 23(g) ��52, 56, 58 Art 27�� 80, 591, 764 Art 28�� 52, 58 Art 42��47 Art 43�� 52, 59 Art 46�� 538 Art 47��52, 58, 538 Art 55�� 536 Art 56��56, 58, 591 Art 58�� 58

Convention (IX) concerning Bombardment by Naval Forces in Time of War 1907 (Hague IX) ��51 Art 5��80 International Centre for Settlement of Investment Disputes (ICSID) Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1965 (ICSID Convention)�� 675 Art 46��504 International Labour Organization (ILO) Convention concerning Indigenous and Tribal Peoples in Independent Countries 1989 (ILO Convention 169)��493, 494, 496–7, 499 recital 6 �� 343 Art 1�� 343 Art 2�� 363 Art 4��344 Art 4(1) �� 343 Art 5�� 363 Art 7(3) ��344 Art 7(4) ��344 Art 8�� 363 Art 12��410 Art 13�� 344, 420 Art 15�� 420, 497 Art 16��420 Art 22�� 363 Art 23�� 363 Art 28�� 363 Art 28(3) ��410 Art 31�� 363 Indigenous and Tribal Populations Convention 1957 (ILO Convention 107)��410 League of Nations International Act concerning Intellectual Co-operation 1938�� 25 Treaty of Peace between the Allied and Associated Powers and Austria together with Protocol and Declarations 1919 (Treaty of Saint-Germain) Pt VIII, s II, Annexes I to IV ��590 Art 184�� 71

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xliv table of legislation Art 191 �� 71 Art 196��590 Treaty of Peace between the Allied and Associated Powers and Bulgaria 1919 (Treaty of Neuilly) Art 126�� 71 Treaty of Peace between the Allied and Associated Powers and Germany 1919 (Treaty of Versailles)�� 16 Art 245�� 71 Art 247�� 72, 171 Treaty of Peace between the Allied and Associated Powers and Hungary 1920 (Treaty of Trianon) Art 168�� 71 Art 175�� 71 Arts 177 and 178��171 Treaty of Peace with Turkey 1920 (Treaty of Sèvres)�� 19 Arts 144 to 147 ��171 Art 422�� 71 Treaty of Riga 1921 Art 11 ��590 Organization of American States (OAS) American Convention on Human Rights 1969��189, 367, 492, 493, 494, 606, 651 Art 21��422 Charter of the Organization of American States 1948 (OAS Charter) Art 48��893, 894 Arts 93 to 98�� 893 — Protocol of Amendment to the Charter of the Organization of American States 1970 (Protocol of Buenos Aires)�� 893 — Protocol of Amendments to the Charter of the Organization of American States 1993 (Protocol of Managua)�� 893 — Protocol of Amendments to the Charter of the Organisation of American States 1988 (Protocol of Cartagena de Indias)�� 893 Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador) 1976 �� 382, 884, 903, 905, 906 Art 2�� 367, 904

Art 3�� 904 Art 7�� 904 Arts 10 to 15�� 904 Art 14�� 904 Art 16�� 904 Art 18�� 904 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women 1994 (Convention of Belém do Pará)��493, 494 Pan-American Union Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments 1935 (Roerich Pact)��45, 103, 884, 903 Art I��902 Art III��902 South Asian Association for Regional Cooperation (SAARC) Agreement on Rapid Response to Natural Disasters 2011 Art 4��161 Southern African Development Community (SADC) Protocol on Trade in the Southern African Development Community (SADC) Region 1996 Art 9(f) �� 523 United Nations Charter of the International Military Tribunal—Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis 1945 (Nuremberg Charter) �� 135 Art 6��83, 102 Art 6(c) ��110 Charter of the United Nations 1945 (UN Charter) Chapter VII��93, 98, 538, 637, 740 Art 1(3)�� 592, 737 Art 2(4)��68, 541, 583 Art 13(1b)�� 737 Art 42�� 93

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table of legislation xlv Art 55�� 737 Art 56��492 Art 57(1)�� 737 Art 73a�� 737 Art 103��492 Art 105�� 745 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1985 (UN Convention against Torture – UNCAT)�� 418 Art 14�� 186 Convention against Transnational Organized Crime 2000 (UNTOC – Palermo Convention)�� 238, 239 Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters 1998 (Aarhus Convention)��11, 268, 290, 291, 547 Convention on Biological Diversity 1992 (CBD)�� 289, 340–1, 547, 795, 900, 901 recital 7 ��340 recital 20 ��340 Art 8�� 341 Art 8(j)�� 286, 341, 363, 364, 499, 562 Art 10�� 341 Art 16��335 — Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity 2014 �� 341 Art 5(2) �� 562 Art 5(5)�� 562 Art 6(2)�� 562 Art 7�� 562 Art 12�� 562 Art 16�� 562 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES)�� 339, 795 Convention on Jurisdictional Immunities of States and their Property 2004 (UNCSI)��558–80 Pt IV��571 Art 2(c) ��553

Art 3(1)(a)�� 572 Art 6(1) �� 558 Art 6(2)(a)�� 558 Art 6(2)(b)�� 558 Art 8(2)(b)�� 558 Art 10��553 Art 12��560 Art 13(a)�� 559 Art 13(b)�� 559 Art 13(c)��560 Art 14��561 Art 14(a) ��561 Art 14(b) ��561 Arts 18 to 21�� 574 Art 18��569 Art 19(c)��571 Art 21�� 574 Art 21(1)��570, 571 Art 21(1)(a) �� 572 Art 21(1)(d)��570, 638 Art 21(1)(e) ��570, 638 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects 1980 (CCWC) — Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices 1980 Art 6(1)(b)(ix)��51 — Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices 1996 Art 7(1)(i) ��51 Convention on the Conservation of Migratory Species of Wild Animals 1979 (CMS – Bonn Convention) Art III(5)(c)��340 Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW)�� 418, 457 Art 5��440, 453 Art 5(a) ��404, 440 Art 10�� 398 Art 13��390 Art 13(c)�� 438, 440

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xlvi table of legislation Convention on the Elimination of Racial Discrimination 1965 (ICERD) Art 5��390 Art 5(e)(vi) ��436 Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention)�� 28, 81, 117, 119, 131, 132, 137, 138, 141, 143, 144, 535, 653, 674 Art II �� 112, 115, 116, 534 Art II(C) �� 565, 566 Art III(c)�� 180 Art IX�� 637 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998 (Rotterdam Convention)�� 547 Convention on the Rights of Migrant Workers and Their Families 1990 (ICRMW) Art 12�� 397 Art 13�� 397 Art 30�� 398 Art 43��390 Convention on the Rights of the Child 1989 (CRC) Art 29(c) �� 418 Art 29(d)�� 418 Art 30�� 418 Art 31��390 Convention on the Settlement of Matters Arising out of the War and the Occupation 1952 (Convention on Settlement) Arts 1 to 4 �� 71 Art 1(4) ��47 Convention to Combat Desertification in those Countries experiencing Serious Drought and/or Desertification, particularly in Africa 1994 (UNCCD) �� 364 Preamble�� 342 Art 17(1)(c) �� 342 Art 18(02) �� 342 Art 18(10)�� 342 Framework Convention on Climate Change 1992 (FCCC)�� 341–2

International Convention on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences 1977 (Nairobi Convention)��244, 245 Annex XI�� 245 International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD) Art 6�� 186 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (ICRMW)�� 418 International Covenant on Civil and Political Rights 1966 (ICCPR) �� 389, 605, 915 Art 1�� 398, 399, 400, 416 Art 1(1)�� 503 Art 1(2)�� 503 Art 2�� 186 Art 4(2)��396 Art 18�� 397 Art 18(3)��405 Art 19�� 397 Art 19(3)��405 Art 21��405 Art 27��87, 376, 377, 395, 396, 399, 400, 402, 416, 417, 418, 435, 436, 643, 916 Pt IV (Arts 28 to 45)�� 389 Art 41�� 389 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)��389, 605 Art 1�� 398, 399, 400 Art 1(1)�� 503 Art 1(2)�� 503 Art 1(3)�� 438 Art 2(2) ��438, 439 Art 2(3) �� 438 Art 3�� 438 Art 4��405 Art 13�� 398, 435 Art 14�� 398, 435 Art 15�� 9, 361, 433, 643, 763, 920 Art 15(1)(a) �� 88, 390, 391, 400, 417, 434, 435, 436, 439, 441 Art 15.1(a) ��916, 917

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table of legislation xlvii Art 15(1)(b) �� 435 Art 15(1)(c) �� 435 Art 15(2)��394 Art 55�� 438 Optional Protocol �� 389 International Treaty on Plant Genetic Resources for Food and Agriculture 2001 (IT PGRFA) Art 9(1) �� 342 Art 9(2)�� 342 Rome Statute of the International Criminal Court 1998 (Rome Statute)�� 106, 109 Art 6��116 Art 7(1)(d)��139 Art 7(1)(h)�� 81, 112, 139 Art 7(2)(g)�� 87, 112, 139 Art 8(2)(a)(iv)��630 Art 8(2)(b)(ix) �� 54, 81, 105, 614 Art 8(2)(b)(xiii) �� 56, 58 Art 8(2)(b)(xvi) �� 58 Art 8(2)(c)�� 81 Art 8(2)(e)(iv)�� 54, 81, 105, 614, 675 Art 8(2)(e)(v) �� 58 Art 8(2)(e)(xii)�� 56, 58 Art 8(2)(f)��48 Art 8(a)(ix)��643 Art 8(e)(iv)��643 Art 11 �� 95 Art 12�� 95 Art 23(5)(e)�� 180 Art 25(4) �� 97, 615 Art 38(1)(d)��427 Art 68�� 186 Art 75�� 186 Art 75(2) �� 73 Statute of the International Court of Justice 1945 (ICJ Statute) Art 38��493, 540 Art 38(1)(c)�� 541 Art 38(1)(d)�� 524 Statute of the International Criminal Tribunal for Rwanda 1994 (ICTR Statute) Art 2��116 Art 3(h)��111 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the

Territory of the Former Yugoslavia since 1991 1993 (ICTY Statute)��136 Art 2(d)��630 Art 3(b) ��630 Art 3(d)�� 80, 104, 105, 107, 108, 112, 269, 656, 674 Art 4��116 Art 4(2)��116 Art 5(h)�� 83, 111, 113 Treaty of Peace with Bulgaria 1947 Art 22(1)�� 71 Art 22(3) �� 71 Treaty of Peace with Finland 1947 Art 24�� 71 Treaty of Peace with Hungary 1947 Art 24(1) �� 71 Art 24(3) �� 71 Treaty of Peace with Italy 1947 Art 37�� 72 Art 75(1)�� 71 Art 75(9) �� 71 Art 12(1)�� 72 Art 12(3)�� 72 Annex XIV, Art 1 ��591 United Nations Convention on the Law of the Sea 1982 (UNCLOS)�� 304–5, 306 Art 149�� 298–9, 304 Art 303��298–9, 304, 310 Art 303(3) ��309 Art 303(4) �� 305 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts 1983 (VCSSP)�� 585, 594 Art 2(b)�� 587 Art 3�� 583 Art 8�� 588 Art 28(7) ��590 Art 30(3) ��590 Art 31(4)��590 Vienna Convention on Succession of States in Respect of Treaties 1978 (VCSST)�� 585 Art 6�� 583 Art 16�� 598 Vienna Convention on the Law of Treaties 1969 (VCLT) Preamble��492, 506 Art 18(b) ��558, 575

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xlviii table of legislation Art 30�� 501 Art 31�� 391, 613 Art 31(1)��519, 520, 524 Art 31(3)��520 Art 31(3)(c) �� 52, 489, 492, 493, 494, 502, 503, 520, 524, 525, 920 Art 32��525 Art 53�� 503 United Nations Educational, Scientific and Cultural Organization (UNESCO) Agreement on the Importation of Educational, Scientific and Cultural Materials 1950 (Florence Agreement)��197 — Protocol to the Agreement on the Importation of Educational, Scientific or Cultural Materials 1976 (Nairobi Protocol)��197 Charter on the Preservation of Digital Heritage 2003�� 401 Convention concerning the Protection of the World Cultural and Natural Heritage 1972 (World Heritage Convention)�� 6, 8, 10, 11, 29, 30, 31, 32, 37, 38, 107, 148, 156, 197, 250–71, 272, 278–9, 285, 289, 293, 319, 329–30, 331, 347, 348, 350, 362, 363, 384, 418, 419, 432, 450, 451, 452, 455, 526, 532, 543, 546, 592, 606, 635, 642, 747, 750–4, 776–81, 786, 825, 828, 832, 836, 854, 856, 862, 863, 866, 874, 882, 883, 884, 886, 894, 960, 977–9 recital 4 ��174 recital 5��174 recital 6 ��174 recital 7 ��267 Art 1�� 5, 146, 151, 240, 251, 254, 256, 257, 263, 280, 668 Art 2��5, 146, 151, 251, 258, 259, 263, 285 Art 3�� 252, 259 Art 4�� 150, 151, 152, 155, 259, 260, 487, 610, 619, 625, 634, 777 Art 5��150, 151, 152, 155, 259, 634, 777 Art 5(a)(e)�� 777 Art 6�� 259, 534, 634 Art 6(1) ��262

Pt III (Arts 8 to 10)�� 383 Art 8��251 Art 8(1)�� 258 Art 8(2) �� 258 Art 8(3) ��255, 258, 779 Art 10(2) ��779 Art 10(3) ��779 Art 11 �� 149, 150, 255, 261, 264, 634 Art 11(1)�� 258 Art 11(2)��260, 263 Art 11(3)��259, 260 Art 11(4)��163, 174, 261, 262 Art 11(5)��260 Art 13(7)��780 Art 13(d)(ii)�� 285 Art 14(c)�� 285 Art 15��267 Art 15(3)(b)(iii)��780 Art 16��267 Art 16(1)��267 Art 16(2) ��267 Art 16(5)��267 Art 17��780 Arts 19 to 26 ��267 Arts 19 to 28 �� 258 Art 21�� 149, 150, 163 Art 22��149, 163 Art 27��386, 779 Art 29��252, 265, 270, 383, 625 Art 29(1)�� 265 Art 29(2) �� 265 Art 29(3) ��265, 266 Art 34�� 617 Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (1954 Hague Convention)�� 4, 6, 12, 28, 29, 30, 43, 44, 46–9, 50, 60, 64, 68, 70, 72, 102, 105, 108, 117, 127, 141, 179, 230, 231, 239, 250, 251, 253, 329, 348, 379, 387, 431, 450, 451, 453, 509, 532, 536, 539, 589, 598, 602, 608, 609, 612–3, 614, 642, 747, 749, 768–71, 784, 786, 795, 802, 822, 823, 825, 836, 862, 874, 884, 903, 933, 965 Preamble�� 9, 28, 43, 55, 174 recital 2 �� 28, 43, 74, 542 recital 3 ��28

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table of legislation xlix Chapter I��48 Chapter II��48 Chapter III ��48 Chapter IV ��49 Arts 1 to 4 ��233, 238 Art 1��46, 51, 53, 103, 571 Art 1(a)��47 Art 1(b) ��47 Art 1(c)��47 Art 3�� 48, 57, 60, 148, 767 Art 4��47 Art 4(1) �� 54, 56, 64, 67, 104 Art 4(2)�� 54, 56, 67, 630 Art 4(3) �� 58, 67 Art 4(4)�� 53, 631 Art 4(5) �� 60 Art 5(2) �� 59 Art 6��48, 65 Art 7��48, 610 Art 7(1)��66 Art 7(2) �� 61 Arts 8 to 14 �� 142 Art 8(1)(a)��48 Art 8(4)�� 57 Art 8(5) ��48 Art 9��48 Art 10�� 65 Art 11 ��48 Art 12�� 58 Art 12(3)�� 54 Art 13�� 58 Art 14(1)(a)�� 58 Art 15�� 61, 62 Art 16�� 65, 247, 902 Art 16(2) �� 65 Art 17(1)(a) �� 65 Art 17(2)(a)�� 65 Art 17(3)�� 65 Art 17(4)�� 65 Art 18(1)�� 47, 48 Art 18(2)��47 Art 18(3)��48 Art 19��613 Art 19(1)��48, 765 Art 19(2)��766 Art 19(3)�� 69, 766 Art 20�� 46, 69

Art 22��613 Art 23�� 142, 769 Art 23(1)�� 69, 766 Art 23(2) ��69 Art 24�� 129 Art 25��66 Art 26(2)��69 Art 27��69 Art 28�� 66, 67, 177, 609 Art 33��934 Art 36��902 Regs Chapter II��48 Regs Chapter III��48 Regs Chapter IV��49 — Protocol for the Protection of Cultural Property in the Event of Armed Conflict 1954 (First Hague Protocol)�� 29, 35, 46–9, 53, 105, 127, 230, 231, 233, 387, 509, 539, 592, 608, 768, 795, 822, 823, 884, 933 para 1�� 46, 60 para 1(3)��645 para 3�� 189 para 5�� 58 para 10��934 — Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1999 (Second Hague Protocol)�� 46–9, 53, 62–4, 65, 69, 72, 105, 177, 233, 509, 605, 747–8, 768, 795, 822, 823, 884, 933 Chapter 3�� 56 Chapter 6��69 Art 1(b) ��46 Art 1(f)�� 54 Art 1(g)�� 60 Art 2�� 49, 613 Art 2(a) ��64 Art 2(b)��64 Art 3(1)��48 Art 3(2) ��766 Art 4��49 Art 5��48, 57, 60, 74, 148, 764, 766, 767 Art 6�� 630, 631 Art 6(a)�� 54 Art 6(b)�� 56

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l table of legislation Art 6(c) �� 55, 56 Art 7(a) �� 54 Art 7(b)�� 55 Art 7(c) �� 55 Art 7(d)(i)�� 54 Art 7(d)(ii) �� 55 Art 8�� 57, 766 Art 8(a) �� 58 Art 8(b)�� 58 Art 9(1)(a)�� 60 Art 9(1)(b)�� 62, 63 Art 9(1)(c)�� 63 Art 9(2)�� 63 Art 10��29, 49 Art 10(a) �� 56 Art 10(b) �� 74 Art 10(c) ��49 Art 11 ��49 Art 11(10)��49 Art 11(3)��69 Art 12��63, 64 Art 13(1)(b) ��64 Art 13(1)(c) ��64 Art 14��49 Arts 15 to 20 ��67 Art 15��106, 608, 609 Art 15(1)��67, 179 Art 15(1)(a) to (e)��67 Art 15(1)(c) ��80 Art 15(1)(e) ��766 Art 15(2)��178, 608 Art 16�� 80, 94 Art 16(01)�� 178 Art 16(10)(c)�� 178 Art 17�� 80, 178 Art 18�� 80, 178 Art 21��67, 178, 230, 231, 822 Art 21(a) and (b)��67 Art 22�� 765 Art 22(1)��48 Art 23��69 Art 23(3)(b)��49 Arts 24 to 27��69 Art 27(1)(a)��49 Art 27(3) �� 69, 70, 768 Art 29��69, 148 Art 29(4)(iii) and (iv) ��770 Art 30(1) �� 66, 770

Art 30(3)(a)��66 Art 30(3)(b)��66 Art 32(1) to (3)��69 Art 32(2) ��766 Art 32(4) ��68 Art 33(1)��69, 148 Art 33(2)�� 68, 148 Art 33(3)��69 Art 37(2) ��70 Art 38��608, 611, 613 Arts 40 to 42��49 Art 43(1)��934 Convention for the Safeguarding of the Intangible Cultural Heritage 2003 (Intangible Cultural Heritage Convention)�� 6, 9, 10, 11, 37, 38, 157, 160,161, 175, 250, 334–5, 348, 349–76, 384, 418, 419, 431, 450, 452, 453, 509, 532, 543, 561, 562, 642, 650, 747, 756–8, 781–5, 786, 795, 802, 827, 828, 829, 836, 842, 863, 872, 874, 882, 883, 884, 891, 901, 917 Preamble�� 334 recital 1��348, 366 recital 2 ��348, 366 recital 4 ��369 recital 7 ��174 recital 13��174 recital 18�� 828 Pt I (Arts 1 to 3) ��351 Art 1�� 5, 77, 384, 855, 856 Art 1(a)�� 372 Art 1(b) ��561 Art 2�� 5, 37, 77, 86, 371, 372, 384, 419, 825 Art 2(1) �� 351, 362, 385, 403, 453, 461, 561, 756, 781 Art 2(2) ��37, 461, 767 Art 2(2)(a)��371 Art 2(a) �� 385 Art 2(d)�� 334 Pt II (Arts 4 to 10) �� 351,383 Art 7��358, 455 Art 8(4)��357, 784 Pt III (Arts 11 to 15) ��351 Art 11 �� 7, 386, 561, 610 Art 11(b)��356, 362, 781 Art 12(1)��561 Art 13(a)�� 782 Art 13(d)(i)(ii)�� 782

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table of legislation li Art 14�� 386, 783 Art 15�� 352, 356, 362, 782 Pt IV (Arts 16 to 18)��351 Art 16��352 Art 17�� 352, 354, 783 Art 18��352, 783 Pt V (Arts 19 to 24) ��351 Art 23(1)��561 Pt VI (Arts 25 to 28)��351 Art 25(3)(c)(iii)��784 Art 26(1) ��829 Pt VII (Arts 29 and 30)��351 Art 29�� 383 Pt VIII (Art 31))��351 Art 35�� 617 Pt IX (Arts 32 to 38)��351 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (1970 UNESCO Convention)��4, 6, 10, 33, 35, 109, 197, 201, 211, 213, 214, 217, 219, 221, 222, 225, 226, 236, 239, 240, 244, 245, 250, 251, 253, 348, 387, 509, 510, 516–21, 525, 526, 527, 532, 578, 589, 592, 593, 595, 609, 623, 689, 706, 714, 717, 747, 771–3, 784, 786, 791, 792, 795, 796, 802, 803, 815, 822, 836, 839, 842, 843, 844, 845, 846, 850, 852, 856, 858, 859, 862, 874, 884, 897, 933, 937, 949, 950, 952, 956, 957, 965, 970–2, 977 Preamble�� 34 recital 1�� 34 recital 2 �� 34 recital 7 �� 174, 175 recital 8 ��174 Art 1�� 47, 216, 218, 220, 231, 510–7, 516, 572, 942, 966 Art 1(c)�� 34 Art 2��34, 547, 584 Art 2(1)�� 511 Art 2(2) ��60, 511 Art 3��60, 220, 223, 232, 233, 511, 584 Art 4��216, 571 Art 4(a) ��942 Art 5�� 821, 947 Art 5(a) �� 511 Art 5(b) �� 234, 238 Art 5(d)��947

Art 6�� 584, 952 Art 6(a)��232, 511 Art 6(b)�� 232, 843 Art 6(c) �� 232 Art 7��232, 584, 638, 727, 771, 962, 970 Art 7(b)�� 34 Art 7(b)(i)�� 511 Art 7b(i)�� 772 Art 7(b)(i)�� 843, 952 Art 7(b)(ii)��234, 511, 557, 645, 668, 727 Art 9��34, 220, 223, 232, 511, 548, 850, 954, 962, 970, 971 Art 10(a) ��949 Art 10(b) �� 232 Art 11 ��60, 233 Art 13��962 Art 13(d) �� 34 Art 14��821 Art 15�� 904, 905 Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 (Cultural Diversity Convention)�� 9, 10, 38, 175, 376, 388, 403, 419, 507, 508, 543, 642, 785, 802, 825, 828, 829, 884, 920 Preamble��38, 174 Art 1(c)��420 Art 1(d) ��420 Art 1(g)�� 38 Art 1(h) �� 38 Art 2�� 38, 420, 747, 758–9 Art 2(1)�� 437 Art 4��5, 240 Art 4(8)��420 Art 5�� 921, 924 Art 5(1)�� 38 Art 6(2)(a)��634 Art 7(1)�� 785 Art 11 �� 785 Art 13�� 336 Art 20(2)�� 38 Convention on the Protection of Underwater Cultural Heritage 2001 (2001 Underwater Cultural Heritage Convention)�� 6, 301–17, 333–4, 348, 353, 384, 510, 532, 543, 634, 754–6, 795, 802, 823, 825, 836, 862, 875, 876, 882, 884, 960, 979

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lii table of legislation recital 1��174 Art 1��5, 510 Art 1(6) �� 301 Art 1(8)�� 310 Art 1(a)��333 Art 2(3) �� 633 Art 2(5) ��302, 314 Art 2(7) �� 310, 979 Art 2(9)�� 311, 315 Art 2(10) �� 302 Art 3�� 305 Art 4�� 310 Art 5�� 302 Art 7��305, 310, 633 Art 7(3) �� 311 Art 8�� 310 Art 9�� 307 Art 9(1)(b)��306 Art 10��307, 310 Art 10(7) �� 311 Art 11 �� 307 Art 11(4)�� 307 Art 12��307, 310 Art 13�� 307 Art 14��309 Art 15��309 Art 16��308 Art 18�� 610 Art 19(2)��313 Art 20��312, 313 Art 22��314 Art 33�� 303 Art 94��204 Annex ��303, 304, 308, 313–4, 314, 315, 316, 334, 629 Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (Ramsar Convention)��338–9 International Convention against Doping in Sport 2005 Preamble�� 746 Protocol to the Agreement on the Importation of Educational, Scientific or Cultural Materials 1976 (Nairobi Protocol)��197 Universal Copyright Convention 1952 �� 197, 348, 358

UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995 (1995 UNIDROIT Convention)�� 35, 201, 217, 219, 222, 236, 237, 249, 387, 510, 532, 545, 578, 623, 747, 773–5, 786, 793, 795, 802, 803, 804, 806, 807, 823, 825, 836, 842, 843, 845, 850, 858, 884 Preamble�� 34 recital 3 ��647 Art 1��4, 231, 856 Art 1(c)�� 34 Art 2�� 216 Art 3��638, 645, 792, 803 Art 3(1)�� 234 Art 3(2) ��216, 218, 221, 225, 226, 234, 711 Art 3(3)�� 233 Art 3(7) �� 234 Art 3(8) ��646 Art 4�� 546, 804 Art 4(1) ��234, 773, 804 Art 4(4)��804 Art 5��645, 792, 803 Art 5(2) �� 584 Art 5(3)(d)��420 Art 6(2)�� 806 Art 7(2) ��420 Art 7(b)�� 34 Art 8�� 557 Art 8(1)��235, 238, 245 Art 8(2) �� 680 Art 9�� 34 Art 10(1)��646 Art 10(2) �� 646, 668 Art 10(3) ��646 Art 16�� 557 Annex ��4 World Intellectual Property Organization (WIPO) Berne Convention for the Protection of Literary and Artistic Works 1886 ��468 Art 15(4)(a)�� 36 Convention Establishing the World Intellectual Property Organization 1967 (WIPO Convention)�� 729

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table of legislation liii Paris Convention on the Protection of Industrial Property 1883��468 Patent Cooperation Treaty 1970 (PCT)�� 473 World Trade Organization (WTO) Agreement on Technical Barriers to Trade 1994 (TBT Agreement) Art 2.1��515 Agreement on Trade-related Aspects of Intellectual Property Rights 1994 (TRIPS) ��469–70, 472 Art 8(a) and (b) ��360 Art 13��479 General Agreement on Tariffs and Trade 1947 (GATT 1947)��516, 524 General Agreement on Tariffs and Trade 1994 (GATT 1994) �� 514–27 Art I��515 Art I:1�� 514, 515, 517, 521, 526 Art III��515 Art XI��519 Art XI:1 ��514, 515, 517, 521, 522 Art XI:2�� 514 Art XI:2(a)�� 514 Art XX�� 516, 517, 519, 521, 523, 524, 525 Art XX(b) ��517, 518 Art XX(f)��515–6, 516, 517, 520, 521, ��522, 523, 524, 525, 526, 527 Art XX(g) ��519, 520 Annex 1C��360 Other International, Regional and Bilateral Instruments Agreement between Australia and the Socialist Republic of Vietnam on the Reciprocal Promotion and Protection of Investments 1991 (Australia–Vietnam BIT)�� 527 Agreement between Thailand and Cambodia to Combat against Illicit Trafficking and Cross-Border Smuggling of Movable Cultural Property and to Restitute it to the Country of Origin 2000 �� 856 Agreement between the Government of the Republic of Lithuania and the Government of the Kingdom of

Norway on the Promotion and Mutual Protection of Investments 1992 (Lithuania–Norway BIT) Art IV��525 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Bolivia for the Promotion and Protection of Investments 1988 (UK–Bolivia BIT)�� 493 Agreement on the Conservation of Polar Bears 1973 Art III�� 338 Art III(1) �� 365 Agreement to Amend the Singapore–Australia Free Trade Agreement 2016 �� 527 Free Trade Agreement between Canada and Peru 2008 (Canada–Peru Free Trade Agreement)��495–7 French–Swiss Treaty 1869��693 International Convention for the Regulation of Whaling 1946��337–8, 428 North American Free Trade Agreement 1992 (NAFTA) Art 1105 ��488–9, 525 North Pacific Fur Seal Interim Convention 1957��364 Art VII��338, 365 Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany 1954 Sch IV �� 71 Trans-Pacific Partnership Agreement 2016 (TPP) �� 527 Treaty between Federal Republic of Germany and Poland on Good Neighbourly Relations and Friendly Cooperation 1991�� 595 Treaty of Cooperation Between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties 1970��970 Art I��970 Art III��970

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liv table of legislation Treaty of Westphalia 1648�� 170 Treaty on Friendship, Partnership and Cooperation between Italy and Libya 2008 �� 595 Vienna Treaty of Peace between Italy and Austria-Hungary 1866 Art XVIII��590 NAT IONA L L EGISL AT ION Algeria Law No 98-04 of 15 June 1989 on the Protection of the Cultural Heritage��938, 942 art 3 ��943 art 8 ��943 arts 10 to 40��946 arts 50 to 56��946 art 51��943 art 61��944 art 62 �� 952 arts 70 to 76��948 arts 91 to 105��954 art 94 �� 955 Law No 90-30 of 1 December 1990 Executive Decree No 05-79 of 2005 �� 938 Executive Decree No 05-79 of 2005�� 941 Executive Order No 06-155 of 11 May 2006��950 Executive Order No 09-229 of June 2009 ��950 Angola Law on Author’s Rights 1990 art 4(f)��826 Australia Historic Shipwrecks Act 1976 (Cth) �� 297, 876 Protection of Movable Cultural Heritage Act 1986 (Cth) s 7��512 s 8��512 s 10(6)(b)��512 s 14(1)�� 219 Underwater Cultural Heritage Act 2018 (Cth) ��876

Austria Civil Code 1811 s 402�� 701 Belgium Judicial Code 2004 art 1412ter (1)�� 579 Bolivia Constitution 2009 art 289 ��880 Law providing legal protection of its national folklore 1967 art 1��826 Botswana Monuments and Relics Act 1970 ��830 Brazil Decree No.3.551 (4 August 2000)�� 881 Burkina Faso Constitution 1991�� 833 art 30 ��813 Cambodia Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Democratic Kampuchea 2004 art 1�� 117 art 7 ��81, 117 art 9 �� 117, 119 Canada Cultural Property Export and Import Act 1985�� 965–7, 977 s 11�� 966 s 37(2)�� 219, 222 Customs Act 1985��977 Justice for Victims of Terrorism Act 2012�� 576 Manitoba Foreign Cultural Objects Immunity from Seizure Act 1976��570 Safe Streets and Communities Act Pt I�� 576

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table of legislation lv State Immunity Act (SIA) s 12(1)�� 576 s 12(1)(d) �� 576 s 16�� 576 China Law on Intangible Cultural Heritage 2011 �� 841 Law on the Protection of Cultural Relics 1982��840 art 1�� 841 art 63 �� 841 Penal Code art 151��840 art 264 ��840 art 328 ��840 Colombia Constitution 1991 Title I, art 10��193 Cook Islands Constitution 1965�� 877 Costa Rica Constitution 1949 art 89 ��880 Cyprus Antiquities Law�� 297 Constitution 1960 art 2(7)��442 Denmark Forest Reserve Act 1805�� 274 Egypt Ordinance of August 15, 1835 on Protective Measures for Antiquities�� 203 Law No 117 of 1983 on Antiquities Protection�� 209, 814, 816–7, 938, 942, 949, 974 art 1��208 art 5 ��204 art 6 �� 206, 208, 814, 944 art 7 �� 205, 814 art 8 �� 205, 814, 945, 946, 949 art 9 �� 952

arts 12 to 14��946 arts 16a to 16m ��949 art 23��944 art 26 ��946 arts 31 to 38��948 arts 40 to 47��954 Law No 3 of 2010 Promulgating the Antiquities’ Protection Law �� 938, 942 Equatorial Guinea Constitution 1991 art 6 ��813 Ethiopia Constitution 1991 art 55(1) �� 814, 815 Proclamation to Provide for Research and Conservation of Cultural Heritage 2000��815 art 1�� 814 art 3 �� 814 art 4 �� 814 art 14(1) �� 814 art 14(2)�� 814 Federated States of Micronesia Chuuk Lagoon Monuments Act�� 875 Historical Sites and Antiquities Act�� 875 Finland Act Prohibiting the Seizure of Certain Exhibition Items on Loan in Finland 2011�� 579 France Law of 12 August 1911 for the Conservation of the Beauty of Landscapes�� 274 Constitution 1958 art 75-1�� 374 Law No 2016–925 of 7 July 2016 on Creative Freedom, Architecture and Heritage art 56 �� 58 Gabon Law Instituting Protection for Copyright and Neighbouring Rights 1990 art 6 ��826

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lvi table of legislation Germany Act on the Protection of Cultural Property (Cultural Property Protection Act) 2016�� 219, 222 art 49(1)��692 Ghana Decree establishing the Ghana Museums and Monuments Board 1969 ��830 Greece Law 5351/32 ‘On Antiquities’ 1932�� 203 Guatemala Constitution 1985 art 61��880 Guinea Constitution 1990 art 19��813 Indonesia Act on the Protection of Cultural Property 1992�� 852 Act on [Tangible] Cultural Heritage 2010 art 20�� 852 Iran Legal Bill 1979��212 Iraq Antiquities Law No 59 of 1936 and the amendments No 120 of 1974 and No 164 of 1975 art 3 �� 225 Law No 55 of 2002 for the Antiquities & Heritage of Iraq��938, 942 art 5(1)��946 art 10 ��944 art 12��944 art 22(3)��949 arts 29 to 36��948 art 35(1) ��949 art 38 �� 955 art 38 to 47��954 art 40(1)(1)�� 955 art 41�� 953 art 41(1) �� 955

Emergency Protection for Iraqi Cultural Antiquities Act 2004��224 Constitution 2005 s 1, art 4 ��193 Israel Antiquities Law 5738-1978��937, 938, 943, 945 Chap 1, s 2�� 944, 950 Chap 1, s 6��944 Chap 3��948 Chap 4�� 949, 950 Chap 4, ss 15 to 18�� 952 Chap 4, ss 15 to 22��206 Chap 4, s 15(a)�� 952 Chap 4, s 17��950 Chap 4, s 21�� 955 Chap 4, s 22(a) ��951, 952 Chap 4, s 22(b)��951 Chap 9��942 Chap 9, s 7��942 Chap 10, s 37��954 Chap 10, s 38�� 954, 955 Vesting Law 1978��206 Antiquities Authority Law 5749–1989�� 938 Loan of Cultural Objects (Restriction of Jurisdiction) Law 2007�� 579 Italy Civil Code art 1153��698 Code of the Cultural and Landscape Heritage 2004�� 203 art 10 ��204 art 65 ��206 art 66��206 arts 74 to 87�� 218 art 88(1)��204 art 89(1)��204 art 90(1)��204 art 91(1) ��206 art 92(1)��207 art 92(2)��207 Law n. 100/2012 �� 167 Japan Act on Controls on the Illicit Export and Import of Cultural Property 2002

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table of legislation lvii art 4 �� 843 art 6 �� 843 Act on Facilitation of Exhibition of Overseas Works of Art in Japan 2011��569 Act on the Civil Jurisdiction with respect to a Foreign State 2009��569 Ancient Capitals Preservation Law��842 Civil Code art 6 �� 843 Foreign Exchange and Foreign Trade Law art 52�� 843 Landscape Act��842 Law on the Preservation of Historic Sites, Places of Scenic Beauty and Natural Monuments 1919 ��842 Law on the Preservation of Important Art Objects and Others 1933��842 Law on the Preservation of National Treasure 1929 ��842 Law on the Protection of Cultural Properties 1950��842 art 44��842 art 82 �� 843 Jordan Law No 24 of 1934��939 Antiquities Law (No 51) of 1966�� 59 Law of Antiquities, Law No 21 of 1988, amended by Law No 23 for the year 2004 art 2(7)��943 art 2(11) ��204 art 5c��945 art 5g ��946 art 5C��945 art 7 ��945 art 8(b)��205 art 8a ��944 art 12a��947 arts 14-20��204 art 15��944 arts 16 to 22��948 art 23��205, 949 art 24 ��206, 953 arts 26 to 28��954 art 27 �� 955 art 27(a)�� 955 Amending Law No 23 of 2004 ��939 Regulations for Archaeological Projects in Jordan based on the provisions

of the Jordanian Antiquities Law No 21 for the year 1988 and its amendments 2016 ��204, 939 Kenya Antiquities and Monuments Act 1983�� 816, 830 National Museums Act 1983�� 816 National Museums and Heritage Act 2006 s 46�� 816 s 49�� 816 Kiribati Constitution 1979�� 877 Korea Civil Code��844 Cultural Property Protection Law 1962��833 Law on the Preservation and Promotion of Intangible Cultural Property 2015�� 845 Law on the Protection of Cultural Properties 1962��844–5 art 69ter��844 art 78 ��844–5 art 87(5)��844 Lebanon Law No 651 of 1926�� 953 Regulation on Antiquities, Law No 166 of 1933 �� 939, 943, 947, 948, 953 art 12��944 Antiquities Law, No 37 of 2008�� 939, 943, 953 art 2A(b)��943 arts 4 to 16��947 art 5(2)��944 art 12�� 944, 945, 950 art 12(1) �� 953 arts 20 to 46 ��946 art 20��954 arts 56 to 72��948 Decree No 3065 of 2016�� 939, 945, 953 art 4 ��945 art 9 �� 953 art 10 ��950 Lesotho Historical Monuments, Relics, Fauna and Flora Act 1967��830

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lviii table of legislation Libya Antiquities Law, No 3 of 1994 (1424 PD) �� 940, 943 art 1��943 art 2 ��943 art 5 ��945 art 8 �� 953 art 23��949 art 28 ��944 arts 51 to 55 ��948 arts 51 to 58��954 Madagascar Constitution 2010 art 26 ��813 Legislation/Decree 82-029 of 6 November 1982 on the Protection, Safeguarding and Conservation of the National Heritage�� 816 art 25�� 814 art 39 �� 814 art 42 �� 814 Malawi Copyright Act 1987 s 2��826 Monuments and Relics Act 1991��830 Malaysia Antiquities Act 1976�� 851–2 s 3(3)�� 852 Pt VI (ss 21 to 25)�� 852 National Heritage Act 2005 �� 851–2, 856 Pt IV�� 852 Pt V �� 852 s 2(1)�� 852 s 4�� 852 s 83�� 852 s 84�� 852 Treasure Trove Act 1957��851, 852 Mali Decree No. 203/PG instituting a National Commission for the Safeguarding of the National Cultural Heritage 1985��815 Decree No. 275 Regulating Archaeological Excavations 1985 art 11��815

Law No. 85-40 Concerning the Protection and Promotion of the National Cultural Heritage 1985�� 815 Decree No. 299 Regulating the Excavation, Commercialization and Export of Cultural Goods 1986��815 Law No. 86-61 Concerning Dealers in Cultural Goods 1986��815 Mexico Federal Law on Monuments and Archaeological, Artistic and Historical Zones 1972�� 972, 973 Namibia National Heritage Act 2004 s 24�� 816 Nauru Constitution 1968�� 877 Geneva Conventions Act 2012 �� 863 National Heritage Act 2017�� 875 Netherlands Act of 9 December 2015, relating to the Combining and Amendment of Rules Regarding Cultural Heritage (Heritage Act) ��512 s 4.23��206 s 6.3.1 �� 222 s 6.3.2�� 222 New Zealand Trade Marks Act 2002 s 17(1)(c)�� 475 Nigeria Antiquities (Prohibited Transfers) Act 1974��815 Antiquities Act 1953��815 Copyright Act 1988 s 31 �� 827 s 31(5)��826 s 32�� 827 s 33(1)(d) �� 827 National Commission for Museums and Monuments Act 1979��830 National Museums and Monuments Act 1979��815

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table of legislation lix Niue Taoga Nieu Act 2012�� 873 Palau Second Constitutional Convention 15 July 2005��876, 877 Palestine Provisional Law on Antiquities, No 51 of 1966�� 940 Decree-Law No 11 about Tangible Cultural Heritage 2018�� 937, 940, 943 Title V�� 940 art 1��943 art 4B��944 art 5(1)��945 art 6(3)(3) ��946 art 7(1)��948 art 10 ��942 art 11��942 art 15(4)��949 art 26(6)��949 art 27(4)��949 art 28(2)(B)�� 953 arts 59 to 71��954 art 65 �� 955 art 71�� 955 art 72 ��944 Papua New Guinea Constitution 1978 s 7(3)�� 877 s 45��876, 877 s 155(4)�� 877 National Cultural Property (Preservation) Act 1965�� 877 Philippines National Cultural Heritage Act 1966�� 853 National Cultural Heritage Act 1974�� 853 National Cultural Heritage Act 2009�� 852 art II�� 853 art VI�� 853 Poland Museum Act 1996 s 4a�� 579 Russian Federation Federal Law N 64-FZ (15 April 1998)�� 593

Samoa Constitution 1960�� 877 art 102��869 Constitution 1978 s 110 ��869 Solomon Islands Constitution 1978�� 877 s 114(2)(b) ��869 South Africa National Heritage Resources Act 1999 Chap I, Pt 2 (ss 11 to 26)��815 s 23��815 South Sudan Constitution 2011 art 23�� 194 art 33�� 194 Spain Law on National Parks 1916�� 274 Constitution 1978 art 3 �� 374 Law No 16 of 23 June 1985�� 297 Law 10 of 26 May 2016 for the Protection of the Cultural Heritage art 2 �� 374 Civil Code art 1955��698 art 1956��698 Sudan Interim National Constitution 2005 �� 194 Switzerland Private International Law Act 1987 art 19��713, 714 Constitution 1999 art 44(3)�� 722 art 184(3)�� 575 Federal Act on the International Transfer of Cultural Property 2003 (Cultural Property Transfer Act)��34, 706, 714 art 7 �� 220, 223, 714 Ordinance establishing Economic Measures towards the Republic of Iraq 2003 art 1a��224

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lx table of legislation Federal Law No 520.3 of 20 June 2014 on the Protection of Cultural property in the Event of Armed Conflict, Natural Disaster or Emergency art 12�� 58 Ordinance on Sanctions against Syria 2014 art 9A(1)��224 Civil Code art 728(1)��686 Syria Decree-Law No 222 on the Treatment of Antiquities in the Syrian Arab Republic 1963�� 940, 943 art 4 �� 225 Antiquities Law, No 1 of 1997 ��940, 943, 948 art 4 ��944 art 4A��945 art 4B��945 art 32��945 art 34,1��945 art 36 ��944 arts 41 to 55��948 art 42 ��948 art 52��948 arts 58 to 68��954 art 66�� 955 art 68 �� 955 art 69.1�� 953 Tanzania Antiquities Act 1964��815 Antiquities (Amendment) Act 1979��815 Monuments Preservation Ordinance 1937 ��815 Thailand Proclamation on Temple Boundary and Temple Looters 1851�� 854 Antique Objects Act 1957 art 2(ii)�� 855 Act on Ancient Monuments, Antiques, Objects of Art, and National Museums 1961 �� 854 Act on Ancient Monuments, Antiques, Objects of Art, and National Museums (No 2) 1992 art 22 �� 854

art 38 �� 854 art 39 �� 854 Law on National Heritage 2005 Pt II, Ch 3 �� 854 art 3(i) �� 854 art 19�� 854 art 24 �� 854 art 35�� 854 art 36 �� 855 art 36(2)�� 855 Protection and Preservation of Antique Objects Law 2015 art 4(a)�� 855 arts 15 to 20�� 855 art 15�� 855 Act Promoting and Safeguarding the Intangible Cultural Heritage 2016�� 854 Tunisia Law on Literary and Artistic Property 1994��826 Turkey By-law on Antiquities 1869��936 Vesting Decree 1906��206 Law on the Conservation of Cultural and Natural Property Law 1983 art 5 ��207 Regulation on the Trade of Movable Cultural Property and the Audit of Workplaces and Warehouses pertaining to such trade 1984��205 Tuvalu Constitution 2008�� 877 s 11(b)��876 Uganda Constitution 1992 recital 25��813 United Kingdom Cultural Property (Armed Conflicts) Act 2017 s 28�� 58 Dealing in Cultural Objects (Offences) Act 2003 s 2(2)��221

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table of legislation lxi s 2(4) ��221 s 2(5)��221 European Union Return of Cultural Objects Regulation 1994 (SI 1994/501)��213 Export Control (Syria Sanctions (Amendment) Order 2014 (SI 2014/1896) para 2��224 Human Tissue Act 2004 ��798 Iraq (United Nations Sanctions) Order 2003 (SI 2003/1519) s 8��224 Protection of Wrecks Act 1973 �� 297 Return of Cultural Objects Regulations 1994 (SI 1994/501)��692 Treasure Act 1996��205 Tribunals, Courts and Enforcement Act 2007 s 135(1) �� 579 United States Antique Ceremonial Textiles from Coroma, 58 Fed Reg 29,349 (1993)�� 971 Antiquities Act 1906, 16 USC §§ 431–433m��962 § 431��962, 963 § 432��962 § 433��962 Archaeological Material from the Sipan Archaeological Region, 55 Fed Reg 19,029 (1990)�� 971 Archaeological Resources Protection Act 1979, 16 USC §§ 470aa–470mm (ARPA)�� 204, 962 § 470ee��963 s 6(d)��963 s 7��963 s 8(b) ��963 Colorado Rev Stat § 24-80-401(1) ��204 Constitution 1783 art I, s 8(8)��467 Convention on Cultural Property Implementation Act 1983, 19 USC §§ 2601–2613 (CPIA)�� 34, 211, 220, 223, 513, 956–7, 970–1, 974, 976 § 303�� 232

§ 2602�� 971 § 2603�� 971 § 2606 �� 971 § 2607�� 971 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act 2016, 28 USC § 1605�� 562 Foreign Sovereign Immunities Act 1976, 28 USC §§ 1330, 1332, 1391(f), 1441(d), 1602–1611 (FSIA) �� 554, 556, 562–9, 632, 688 § 1605A �� 576 § 1605(a)(2)�� 555, 688 § 1605(a)(3)��553, 562–3 § 1605(a)(4)�� 559 § 1605(h)��564 § 1605(h)(1)��564 § 1605(h)(2)(A)�� 565 § 1605(h)(2)(B)(ii)�� 565 § 1605(h)(2)(B)(iii)�� 565 § 1605(h)(3)(C)�� 565 § 1610(g) �� 577 Holocaust Expropriated Art Recovery Act 2016, 22 USC § 1621 (HEAR) �� 568 Immunity from Seizure Act 1965, 22 USC § 2459 (IFSA)�� 564, 570, 573 § 2459(a) �� 554 Import Restrictions on Prehispanic Artifacts from El Salvador, 60 Fed Regs 13, 352, 13,361 (1995)�� 971 Importation of Pre-Columbian Monumental or Architectural Sculpture or Murals, 19 USC §§ 2091–2095 (1988)��970 Indiana Historic Preservation and Archaeology Act, IC § 14-3-3.4–15��204 Lanham Act 1946, 15 USC 1052(a)��476 Maine Rev Stat Ann, tit 27, § 374 ��204 National Stolen Property Act 1934, 18 USC §§ 2314–2315 (NSPA)�� 207, 208, 211, 214, 215, 972–4 Native American Graves Protection and Repatriation Act 1990, 25 USC §§3001–3013; 18 USC §1170 (NAGPRA)��963–5 § 1170��964

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lxii table of legislation Protect and Preserve International Cultural Property Act 2016, 19 USC §§ 2601–2603, §2606��58, 127, 224, 976 § 2601��706 § 2602��706 Restatement (Second) of Conflict of Laws 1969 s 06��698 s 09��698 s 246��698 Restatement (Third) of Foreign Relations Law 1987 s 443�� 703 US Code of Laws 18 USC §545�� 975 19 USC §1497 �� 975

19 USC §1595�� 975 22 USC § 287e��969 Vanuatu Constitution 1980 art 30(1)��869 art 73 ��869 Convention for the Safeguarding of the Intangible Cultural Heritage Act 2009�� 873 Custom Land Management Act 2013��870 Vietnam Law on Cultural Heritage 2001 art 13�� 853 art 43(1)�� 853

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List of Contributors

Giulio Bartolini is Associate Professor of International Law, Department of Law, Roma Tre University editor-in-Chief of the Yearbook of International Disaster Law. He is responsible for the Jen Monnet Project ‘Disseminating Disaster Law for Europe’. Email: [email protected] Janet Blake is Associate Professor of Law at the University of Shahid Beheshti (Tehran) where she is Head of the Human Rights Department, and she is a member of the Cultural Heritage Law Committee of the International Law Association. Since 1999, she has been International Consultant to UNESCO in the area of normative activities related to safeguarding intangible cultural heritage and, since 2015, has been a Global Facilitator for UNESCO’s Capacity-building under the 2003 Convention and has provided advice at governmental level on developing national law and policy for ICH safeguarding. Her research monograph on International Cultural Heritage Law was published by Oxford University Press in June 2015 and her Commentary on UNESCO’s 2003 Convention (co-edited with Lucas Lixinski) was published by Oxford University Press in February 2020. Email: [email protected] Ben Boer Distinguished Professor, 1000 Talents Program Research Institute of Environmental Law, Wuhan University; Emeritus Professor, Sydney Law School; Co-editor, Chinese Journal of Environmental Law. Email: [email protected] Mounir Bouchenaki was elected Director-General of ICCROM in November 2005. His appointment at ICCROM followed a long career at UNESCO, where he was Assistant Director-General for Culture from end 1999 to early 2006. Previously, Mr Bouchenaki had been Director of the Division of Cultural Heritage and Director of the World Heritage Center at UNESCO, and in his own country, Director of Antiquities, Museums and Historic Monuments. He holds a PhD in archaeology and ancient history from the Arts Faculty of Aix-en-Provence and has published a number of books and articles in French on cultural heritage. Email: [email protected] Mira Burri is a senior lecturer at the Faculty of Law of the University of Lucerne, Switzerland. She teaches international intellectual property, media, internet and trade law. Prior to joining the University of Lucerne, Mira Burri was a senior fellow at the World Trade Institute at the University of Bern, where she led a project on digital technologies and trade governance as part of the Swiss National Centre of Competence in Research (NCCR): Trade Regulation. Mira’s current research interests are in the areas of digital trade, culture, copyright, data protection, and internet governance. She

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lxiv list of contributors is the principle investigator of the project ‘The Governance of Big Data in Trade Agreements’, sponsored by the Swiss National Science Foundation. She is the author of numerous publications in peer-reviewed journals and editor of a number of book projects, such as Trade Governance in the Digital Age (Cambridge University Press 2012), The Classification of Services in the Digital Economy (Springer 2013) and Big Data and Global Trade Law (Cambridge University Press 2020). Mira consults the European Parliament, UNESCO, the WEF, and others on issues of digital innovation and cultural diversity. Email: [email protected] Alessandro Chechi is Senior Researcher, Faculty of Law at the University of Geneva. Email: [email protected] Jennifer Corrin is Director of Comparative Law in the Centre for Public, International and Comparative Law at The University of Queensland (UQ). Jennifer’s research focuses on law reform and development in plural legal regimes. Before joining UQ, Jennifer spent five years at the University of the South Pacific, having joined the faculty after nine years in her own legal firm in Solomon Islands. Email: [email protected] Rafael Braga da Silva is an Attorney at Law. He holds a LL.M. from University for Peace and United Nations Interregional Criminal and Justice Research Institute (UNICRI). He also holds a LL.M. Adv. Studies in Public International Law cum laude, from the Grotius Centre for International Legal Studies, Leiden University. Email: [email protected] Bruno de Witte is Professor of European Union Law at Maastricht University and a part-time professor at the European University institute in Florence. His main field of research is the constitutional law of the European Union, but he also writes on the legal aspects of cultural diversity, minority protection, and language regulation. Email: [email protected] Yvonne Donders is Professor of International Human Rights and Head of the Department of International and European Law at the University of Amsterdam. She also works as Commissioner at the Netherlands national Human Rights Institute. She holds a PhD from the Law Faculty of Maastricht University on cultural human rights and the right to cultural identity. Her current research and teaching focus on public international law; international human rights law, in particular economic, social, and cultural rights; and human rights and cultural diversity. She is a regular consultant for UNESCO and for the UN Office of the High Commissioner for Human Rights. She is currently Chair of the Steering Committee of the Netherlands Network of Human Rights Research (NNHRR), Member of the Human Rights Committee of the Advisory Council on International Affairs of the Ministry of Foreign Affairs (AIV), Member of the Editorial Board and Executive Editor of the Netherlands Quarterly of Human Rights (NQHR), Member of the Board of the Royal Netherlands Society of International Law (KNVIR) and Chair of the Advisory Board of the “Shelter City” project for human rights defenders. Email: [email protected]

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list of contributors lxv Dalee Sambo Dorough PhD, an Inuk from Alaska, is a Senior Scholar and Special Adviser on Arctic Indigenous Peoples at the University of Alaska Anchorage and serves as the International Chair of the Inuit Circumpolar Council [2018–2022]. She is also co-Chair of the ILA Committee on the Implementation of the Rights of Indigenous Peoples. Email: [email protected] Derek Fincham has pursued a research interest in Art Law, Cultural Property Criminality, and Cultural Heritage. He is a Professor of Law at South Texas College of Law in Houston. He serves on the Editorial Boards of the International Journal of Cultural Property and the Santandar Art and Culture Law Review. Fincham received his PhD in Law from the University of Aberdeen King’s College, his JD from Wake Forest, and his BA from the University of Kansas. Email: [email protected] Craig Forrest is the Director of the Marine and Shipping Law Unit, and Fellow of the Centre for Public, International and Comparative Law at the University of Queensland. Professor Forrest teaches and undertakes research in the areas of maritime law, private international law, and cultural heritage law. Email: [email protected] Francesco Francioni (Doctor of Laws, Florence, and LLM, Harvard) is Professor Emeritus of international law at the European University Institute, Florence and Professor of international law at LUISS University, Rome. He is a member of the Institut de droit international, a member of the editorial board of the Italian YBk of International Law, and the founder and General Editor (with A. Vrdoljak) of the Oxford University Press series Cultural Heritage Law and Policy. He has been a member of the Italian delegatin in numerous international negotiations and diplomatic conferences, as well as President of the UNESCO World Heritage Committee 1997–1998. He has been Judge ad hoc in the UN Tribunal of the Law of the Sea and currently is Arbitrator at the Permanent Court of Arbitration (The Hague). He has published extensively in the field of public international law, in English, Italian and French languages. He has been visiting professor at Oxford University (1998–2003), Columbia Law School (Winter term 2013), Cornell Law School (1984, 1985, 1986), and Texas Law School from 1987 to 2008. In 2018 he gave the General Course in international law at the Chinese (Xiamen) Academy of International Law. Email: [email protected] Manlio Frigo is Full Professor of International and European Law and of International Contracts and Arbitration Law at the Milan State University (Università degli Studi di Milano), Department of International, Juridical, Political and Historical Studies; Member of the Steering Committee of the PhD in International Economic Law of the Bocconi University, Milan; Member of the Committee on Cultural Heritage Law of the ILA (International Law Association); Member of the Committee on Cultural Heritage Law of the ILA; Counsel at BonelliErede, Milan office; and Member of the Focus Team Art & Cultural Property. Email: [email protected] Micaela Frulli is a Professor of International Law. She was Marie Curie Fellow and Jean Monnet Fellow at the European University Institute. She has published extensively in

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lxvi list of contributors the field of public international law. Her research interests include international criminal law, the law of immunities, and the law of international organizations. Email: [email protected] Patty Gerstenblith is Distinguished Research Professor of Law at DePaul University and Director of its Center for Art, Museum & Cultural Heritage Law. In 2011, President Obama appointed her to serve as Chair of the President’s Cultural Property Advisory Committee in the Department of State on which she had previously served as a Public Representative in the Clinton administration. In 2019, she was an Expert for the Fulbright Specialist Project at the Department of Antiquities of Jordan and currently serves as Secretary of the Board of Directors of the U.S. Committee of the Blue Shield, a Research Associate at the University of Pennsylvania Museum of Anthropology and Archaeology, and a member of the editorial board of the journal Art Antiquity and Law. She was the Editor-in-Chief of the International Journal of Cultural Property, founding President of the Lawyers’ Committee for Cultural Heritage Preservation, and an officer for the American Bar Association’s Section of International Law International Art and Cultural Heritage Committee. She lectures widely in the United States and abroad on the international trade in art and antiquities and protection of cultural heritage during armed conflict. The fourth edition of her casebook, Art, Cultural Heritage and the Law, was published in 2019. Gerstenblith received her AB from Bryn Mawr College, PhD in art history and anthropology from Harvard University, and JD from Northwestern University. Before joining the DePaul law faculty, Gerstenblith clerked for the Honorable Richard D. Cudahy of the U.S. Court of Appeals for the 7th Circuit. Email: [email protected] Kristin Hausler is the Dorset Senior Fellow and Director of the Centre for International Law at the British Institute of International and Comparative Law (London). She studied law in Switzerland and Canada, as well as art history at Christie’s (NYC). Beforehand, she worked at the Museum of Anthropology (Vancouver) on a repatriation project with Indigenous communities. She has also contributed to the work of Geneva Call on engaging armed non-State actors in the protection of cultural heritage. Kristin regularly provides training on international law and cultural heritage law. She is a member of the ILA Committee on Global Cultural Heritage Governance. Email: [email protected] Andrzej Jakubowski is an Assistant Professor at the Institute of Legal Studies, University of Opole, Poland, and the Chair of the ILA Committee on Participation in Global Cultural Heritage Governance. He also serves as the Deputy Editor-in-Chief of the Santander Art and Culture Law Review. Dr Jakubowski authored the book State Succession in Cultural Property and edited the volume Cultural Rights as Collective Rights: An International Law Perspective and co-edited two other volumes: Fragmentation vs. the Constitutionalisation of International Law: A Practical Inquiry, and Cultural Heritage in the European Union: A Critical Inquiry into Law and Policy. Email: andrzej. [email protected]

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list of contributors lxvii Morag M. Kersel is Associate Professor of Anthropology at DePaul University, Director of the Museum Studies Minor, and affiliated faculty with the Center for Art, Museum & Cultural Heritage Law in the College of Law at DePaul University. She earned her PhD from the Department of Archaeology at the University of Cambridge where she studied the legal trade in antiquities in Israel. She is a co-author (with Christina Luke) of U.S. Cultural Diplomacy and Archaeology: Soft Power, Hard Heritage (Routledge 2013), coeditor (with Matthew T. Rutz) of Archaeologies of Text: Archaeology, Technology and Ethics (Oxbow 2014), and co-editor (with N. Brodie, C. Luke, and K. Walker Tubb) of Archaeology, Cultural Heritage, and the Antiquities Trade (University Press Florida 2006). Email: [email protected] Keun-Gwan Lee is a Professor of Law at the School of Law, Seoul National University, Korea. He received his LL.B. from Seoul National University, LL.M. from Georgetown University Law Center and Ph.D. from the University of Cambridge. His research interests include, among others, the history and theory of international law (in particular, the ‘reception’ of modern international law in East Asia), the law of state succession, the law of the sea, and the international protection of cultural heritage. He served as director of studies (English-speaking section) at the Hague Academy of International Law in 2010. He served as the Chairperson of the Intergovernmental Committee for Promoting the Return of Cultural Property (UNESCO) from 2012 to 2014. He gave a lecture on the subject of return of cultural objects to their countries of origin at the Hague Academy of International Law in 2018. Email: [email protected] Federico Lenzerini is Ph.D., International Law, and Professor of International Law at the Department of Political and International Sciences of the University of Siena (Italy). He is also Professor at the LLM programme in Intercultural Human Rights at the St. Thomas University School of Law, Miami (FL), USA, and Professor at the Tulane-Siena Summer School on International Law, Cultural Heritage and the Arts. He has been Consultant to UNESCO (Paris), Counsel to the Italian Ministry of Foreign Affairs for international negotiations related to cultural heritage, and member of the Italian delegation at meetings of the World Heritage Committee. Email: [email protected] Lucas Lixinski Associate Professor, Faculty of Law, UNSW Sydney. Rapporteur, International Law Association Committee on Participation in Global Cultural Heritage Governance. Vice President, Association of Critical Heritage Studies. Email: l.lixinski@ unsw.edu.au Lynn Meskell is the Shirley R. and Leonard W. Ely, Jr. Professor of Humanities and Sciences in the Department of Anthropology at Stanford University and A.D. White Professor-at-Large at Cornell University. She is Honorary Professor at the University of the Witwatersrand, Johannesburg, and a Fellow of the Australian Academy of the Humanities. Her books include A Future in Ruins: UNESCO, World Heritage and the Dream of Peace (Oxford University Press 2018), The Nature of Heritage: The New South Africa (Blackwell 2012), Object Worlds in Ancient Egypt: Material Biographies Past and Present (Berg 2004), Private Life in New Kingdom Egypt (Princeton University

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lxviii list of contributors Press 2002) and Archaeologies of Social Life: Age, Sex, Class Etcetera in Ancient Egypt (Blackwell 1999). She is also the founding editor of the Journal of Social Archaeology. Email: [email protected] James A. R. Nafziger holds the Thomas B. Stoel Chair in International Law at the Willamette University College of Law. Author or editor of several books and scores of scholarly articles and book chapters on cultural heritage law, he is the former Chair of the Cultural Heritage Law Committee of the International Law Association. He currently serves as a Vice Chair of the ILA and Secretary of the American Society of International Law. Email: [email protected] Elisa Novic works as a Transitional Justice and Business & Human Rights expert at Avocats Sans Frontières in Brussels, Belgium. She holds a PhD in international law from the European University Institute, Florence, Italy. Email: [email protected] Patrick J. O’Keefe has worked in the field of heritage law and management since 1970 when, as an officer in the Australian Department of Foreign Affairs, he took part in negotiation of the treaty on old Dutch shipwrecks between Australia and the Netherlands. He has written many books, articles, and reports on all aspects of the broader field. He has advised the Council of Europe, the European Union, the World Bank, UNESCO, and the Commonwealth Secretariat, as well as bodies such as the International Council of Museums and the International Council on Monuments and Sites and individual governments and private clients. Email: [email protected] Roger O’Keefe is Professor of International Law at Università Bocconi, Milan, and Honorary Professor of Law at University College London. He is joint general editor of the Oxford University Press series Oxford Monographs in International Law and a full member of the International Institute for Humanitarian Law, Sanremo. Email: [email protected] Riccardo Pavoni is Associate Professor of International and European Law in the Department of Law of the University of Siena. In 2014, he was awarded the Italian National Scientific Qualification as full professor of International and European Union Law. He is currently academic coordinator of the EU-funded Jean Monnet Module on European Union Law and Sustainable Development (2017–2020). He has taught courses at many academic institutions and within a variety of international programs and schools, including at the Academy of European Law of the EUI (2012) and at the Summer Schools organized by the Art-Law Centre of the University of Geneva (2013; 2014). In July 2019, he taught a course on ‘International Legal Protection of Cultural and Natural Heritage in Armed Conflict’ at the International Law Winter Course (15th edition) of the Universidade Federal de Minas Gerais (Belo Horizonte). He serves as co-director of the Tulane-Siena Institute for International Law, Cultural Heritage and the Arts. He has been a visiting professor at various institutions, including the Universidad Autónoma de Bucaramanga (2013; 2019), Tulane University School of Law (2010), and the University of Amsterdam (2006). He is a member of the Board of Editors

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list of contributors lxix of the Italian Yearbook of International Law and a member of the Editorial Board of the Oxford Reports on International Law in Domestic Courts. He is a member of the European Society of International Law (ESIL) and of the Italian Society of International Law and European Union Law (SIDI). His publications and research activities cover various areas of public international law and European Union law, such as environmental law and human rights, cultural heritage law, the law of international immunities, and international and EU law in domestic legal systems. Email: [email protected] Joseph Powderly Ph.D. (2017, NUI, Galway), is Associate Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. His research focuses broadly on issues relevant to international criminal law, international human rights law, and cultural heritage law. His monograph, Judges and the Making of International Criminal was published by Brill/Nijhoff in 2020. He is a member of the editorial boards of the Leiden Journal of International Law and the Criminal Law Forum. Email: [email protected] Marc-André Renold is a Full Professor of Art and Cultural Heritage Law at the University of Geneva and the Director of its Art-Law Centre. Since March 2012 he holds the UNESCO Chair in international cultural heritage law at the University of Geneva. He is the author or co-author of many publications in the field of international and comparative art and cultural heritage law. He has been, since its inception, an editor of the Studies in Art Law series (27 volumes published to date). He is also Attorney-at-law, Member of the Geneva Bar, where he practices in the fields of art and cultural heritage law, intellectual property, and public and private international law. Email: [email protected] Tullio Scovazzi is professor of international law at the University of Milano-Bicocca, Milan, Italy. He occasionally participates, as legal expert, in intergovernmental negotiations and meetings relating to human rights, cultural law, and law of the sea. Email: [email protected] Folarin Shyllon was Dean at the Faculty of Law, University of Ibadan, where he is currently an Adjunct Professor. He is on the editorial board of the International Journal of Cultural Property and Art Antiquity and Law. He is currently the chairperson of the Nigerian Chapter of UNESCO’s Memory of the World Committee. Email: foshyllon@ gmail.com Kurt Siehr studied law at the Universities of Hamburg and Michigan (Ann Arbor), passed bar examinations in Hamburg, and got his PhD degree at Hamburg University. He taught as full professor of the University of Zürich private law, private international law, and comparative law. He still teaches comparative law at Charles University of Prague and art law in Vienna and at the University of Tel Aviv. After retirement he joined the Max Planck Institute of Comparative and International Private Law in Hamburg as retired senior researcher. He has written treatises (1986, 2001, 2002, 2008, and 2018) and commentaries (since 1983) on German and Swiss private international law, and co-authored Art and Law (2012). Email: [email protected]

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lxx list of contributors Rachael Craufurd Smith is a Reader in European Union Law at The University of Edinburgh. Her interests span the fields of media law and the protection and promotion of cultural diversity, at domestic, European, and international levels. She is a founding editor of the Journal of Media Law and has participated in the European Union supported Media Pluralism Monitor, which evaluates the state of media freedom in Europe, advising on the United Kingdom. Email: [email protected] Amy Strecker is an Associate Professor at the Sutherland School of Law, University College, Dublin. She previously worked at Leiden University, where she taught international cultural heritage law, was part of an ERC Synergy project on the impact of colonial encounters on the Caribbean, and coordinated an international summer school on cultural heritage, human rights, and international law. Amy’s research focuses primarily on the interplay between landscape and law, including heritage, environment, property, and human rights. She is the author of Landscape Protection in International Law (Oxford University Press, 2018), co-editor of Heritage and Rights of Indigenous Peoples (Leiden University Press, 2017) as well as several articles and book chapters on the role of law in heritage and landscape governance. Email: [email protected] Valentina Vadi is a Professor of International Economic Law at Lancaster University, United Kingdom. She has published more than eighty articles in various areas of public international law in top journals, including the Harvard International Law Journal and the European Journal of International Law. She is the co-editor (with Hildegard Schneider) of Art, Cultural Heritage and the Market: Legal and Ethical Issues (Springer: 2014), and (with Bruno De Witte) of Culture and International Economic Law (Routledge 2015). Valentina Vadi is the author of Cultural Heritage in International Investment law and Arbitration (Cambridge University Press 2014) and Cultural Heritage in International Economic Law (Brill, forthcoming 2020). Email: [email protected] Patrizia Vigni is Researcher of International Law at the Department of Business and Legal Studies of the University of Siena, Italy. She is also Lecturer of International and European Trade Law in the same department. She graduated in Law at the University of Siena and, then, achieved the Magister Juris at University of Oxford and the Doctorate in International Law at the University of Siena. Her main research fields are: the Antarctic Treaty system, the interaction between global treaty regimes, international dispute settlement, the law of the sea, the conservation of world cultural heritage, consular and diplomatic protection, and EU citizenship. Email: [email protected] Tania Voon University of Melbourne. Email: [email protected] Ana Filipa Vrdoljak is Professor of Law, Faculty of Law, and UNESCO Chair of International Law and Cultural Heritage at the University of Technology Sydney. She is visiting Professor at Renmin Law School, Beijing. She is the author of International Law, Museums and the Return of Cultural Objects (Cambridge University Press 2006, 2nd edn forthcoming) and editor of The Cultural Dimension of Human Rights (Oxford University Press 2013) and International Law for Common Goods: Normative Perspectives

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list of contributors lxxi in Human Rights, Culture and Nature with Federico Lenzerini (Hart Publishing 2014). She is co-General Editor, with Francesco Francioni, of the Oxford University Press book series Cultural Heritage Law and Policy, and Oxford Commentaries on International Cultural Heritage Law, Advisory Board member of the International Journal of Cultural Property, and President of the International Cultural Property Society. She has served on expert panels for the UN High Commissioner for Human Rights, UNESCO, and the European Commission. She holds a Doctor of Philosophy (Law) from the University of Sydney. Email: [email protected] Siegfried Wiessner is a Professor of Law at St. Thomas University School of Law and the Founder and Director of its LL.M. and J.S.D. Programs in Intercultural Human Rights. From 2008 to 2012, he served as the Chair of the International Law Association’s Committee on the Rights of Indigenous Peoples. Email: [email protected]

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chapter 1

I n troduction Ana Filipa Vrdoljak and Francesco Francioni

1. Introduction Social media and new technologies have vastly expanded our access to culture, locally and globally. This new age of globalization has opened the diversity of cultures up to us as never before. Conversely, these same changes have fuelled rising intolerance, xenophobia, and the attendant suppression and destruction of culture and cultural heritage. While the technologies may be different, this cycle of forces has been with us since antiquity. The general public and scholars revelled in or condemned the destruction of religious monuments and cultural objects two thousand years ago, as we do today. We only need look at the frieze on the Arch of Titus in Rome, erected in 82 ad to celebrate the sacking of Jerusalem, or read the castigation of Verres by Cicero.1 In our own time, we have the deliberate destruction of centuries-old monumental Buddhas in Bamiyan, Afghanistan, and mausoleums in Timbuktu, Mali, streamed across the world and onto our personal, handheld devices, along with the condemnation of such acts by the UN Security Council and the International Criminal Court.2 Public outcry in response to these acts of cultural destruction has challenged the deficiencies in, or lack of, national, regional, and international responses and the inef fectiveness of the law. Early interventions for the protection of cultural heritage were part of nascent efforts to codify the rule of war from the nineteenth century, at a time when no treaty law protection existed. However, the same charge—the lack of treaty protection of cultural heritage—cannot be levelled today. If anything, the inverse is true. There are currently seven culture treaties, six overseen by the UN Educational, Scientific and Cultural Organization (UNESCO) in Paris and one by UNIDROIT in Rome. This 1 See Hugo Grotius, De jure belli ac pacis. Libri tres, James Brown Scott (ed) (Clarendon Press 1925) 658–62. 2 UNSC Res 2347 (24 March 2017) and Prosecutor v Ahmad Al Faqi Al Mahdi (27 September 2016) ICC-01/12–01/15, Judgment and Sentence (27 September 2016) para 29 (hereafter ‘Al Mahdi Judgment and Sentence’).

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2 Ana Filipa Vrdoljak and Francesco Francioni tally does not included regional culture conventions. Most specialist areas of international law—from international humanitarian law to international criminal law, from human rights law to environmental law, and from intellectual property law to trade law—have dedicated treaty provisions and specialized practice on cultural heritage. A similar phenomenon is transpiring in general public international practice in respect of custom, general principles, State responsibility, and reparations. Therefore, the protection and promotion of cultural heritage is far from a niche field in international law. The challenge it faces is bringing these disparate areas and diverse practices together into a coherent, consistent body of law.

2. Defining Cultural Heritage In introducing this Handbook of International Cultural Heritage Law, we are aware of the eternal questions that haunt this subject—that is, the legal definition of ‘cultural heritage’ and the determination of who owns cultural heritage. As to the first question, it is not our intention to provide an a priori definition of cultural heritage in this Handbook. Rather than proceeding from a set definition, we are guided by the expanding parameters of what is encompassed by international cultural heritage law contained in the specialist culture conventions, specialist areas of international law, and general international law as developed over the last century. The definition contained in successive cultural conventions adopted by UNESCO and other international bodies has grown from immovable, tangible heritage covering monuments and sites and buildings housing collections of cultural objects, books, and archives covered by early inter national humanitarian law and the 1954 Hague Convention,3 to include (in chronological order): • tangible, movable heritage of archaeological, prehistoric, historic, literary, artistic, or scientific significance, including rare collections and specimens of flora, fauna, and minerals, antiquities, objects dismembered from monuments and archaeological sites, paintings, drawings, sculpture, prints, manuscripts and books, stamps, archives, furniture, and musical instruments (covered by the 1970 UNESCO Convention and 1995 UNIDROIT Convention);4

3 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 (‘1954 Hague Convention’). 4 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231, art 1 (‘1970 UNESCO Convention’); UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (adopted 24 June 1995, entered into force 1 July 1998) (1995) 34 International Legal Materials 1322, art 1 and annex (‘1995 UNIDROIT Convention’).

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Introduction 3 • immovable cultural and natural heritage, including monuments, groups of buildings, sites, natural features, geological and physiographical formations, natural sites, and cultural landscapes (covered by the 1972 World Heritage Convention);5 • immovable, movable cultural and natural heritage, including sites, structures, buildings, artefacts, and human remains and their archaeological and natural context, vessels, aircraft and other vehicles and their content, and objects of prehistoric character (covered by the 2001 Underwater Cultural Heritage Convention);6 • intangible cultural heritage, including practices, representations, expressions, knowledge and skills and associated instruments, objects, artefacts, and cultural spaces (covered by the 2003 Intangible Cultural Heritage Convention),7 and cultural expressions, cultural activities, goods and services, and cultural industries (covered by the 2005 Cultural Diversity Convention).8 The evolving and expanding ambit of the cultural heritage covered by the cultural conventions over the last seventy years reflects the expanding and diversifying membership of UNESCO and priorities of its Director-General at the relevant times (Chapter 2). Addressing cultural loss fuelled by the unregulated trade in cultural objects was a priority for new States following independence from the 1930s through to decolonization up to the 1970s; more recently, addressing the lacunae in existing culture conventions concerning intangible heritage became a priority for Asian and African States facing the challenges of rapid economic development in the late twentieth century. This compartmentalization and evolution of the definition of cultural heritage is less clearly delineated in specialist areas of international law and general international law, which are not necessarily bound by the definitions arising from the culture conventions. For example, multilateral treaties covering intellectual property in operation since the nineteenth century can offer protection for elements of intangible heritage such as cultural expressions or knowledge (Chapter 20). International trade and investment law can, and has, covered sites, cultural objects, and intangible heritage (Chapters 21 and 22), while treaties covering State succession over several centuries have included movable and immovable cultural heritage (Chapter 25). It is important to recall that, while these treaties and specialist areas of international law may potentially cover the same mani festation of cultural heritage, the terminology used to define it reflects the objectives and purposes of the differing legal regimes. 5 Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 arts 1 and 2 (‘World Heritage Convention’); Operational Guidelines for the Implementation of the World Heritage Convention (12 July 2017) UNESCO Doc WHC 17/01, paras 46 and 47. 6 Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 2562 UNTS 1, art 1 (‘2001 Underwater Cultural Heritage Convention’). 7 Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1, art 2 (‘Intangible Cultural Heritage Convention’). 8 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 UNTS 311, art 4 (‘Cultural Diversity Convention’).

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4 Ana Filipa Vrdoljak and Francesco Francioni Two further aspects of this evolving understanding of cultural heritage in international law that must be highlighted reflect significant shifts not necessarily obvious on reading the definitions contained in the culture conventions. The first is the movement from an emphasis on cultural property to cultural heritage.9 The 1954 Hague Convention and 1970 UNESCO Convention refer to ‘cultural property’ in their titles, while the 1972 World Heritage, 2001 Underwater Cultural Heritage, and 2003 Intangible Cultural Heritage Conventions embody the shift in their titles. It is no coincidence that this changing emphasis is likewise propelled by the changing membership of the United Nations and UNESCO. It reflects the movement of numerical dominance away from Western countries—where cultural manifestations are often conceptualized in domestic law in terms of property law—to States in Africa, Asia, and the Global South where it is viewed in less transactional terms, with an emphasis on custodianship in communal and intergenerational terms. It also reflects the influence of other areas of international law, including human rights law (Chapter 17) and environmental law (Chapters 13 and 14) on the development of international cultural heritage law, and the increasing engagement of non-State actors, including Indigenous peoples and non-governmental organizations (Chapters 18 and 32). So, for example, the 1970 UNESCO Convention refers to the ‘illicit import, export and transfer of ownership of cultural property’, while the 2003 Intangible Cultural Heritage Convention in its definition states: ‘intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature, their history, and provides them with a sense of identity and continuity’. The second aspect, related to this development and driven by many of the same forces, is the promotion of a holistic understanding of cultural heritage. The practice of UN human rights bodies (especially mechanisms related to Indigenous peoples) and the jurisprudence of regional human rights courts have emphasized the interrelatedness not only of all forms of cultural heritage but of natural and cultural heritage (Chapter 18). The compartmentalization of cultural heritage across the cultural conventions and continued siloing of operation is the result of historical and institutional circumstances within UNESCO (Chapters 2 and 31) and is not likely to change in the medium term. This situation is arguably being exacerbated with the intervention of other specialist fields of international law in the regulation of norms concerning cultural heritage, such as international criminal law (Chapter 5) and international investment law (Chapter 21). Despite efforts within UNESCO to facilitate coordination among these treaty frameworks,10 the duplication of work and oft-competing priorities means this is 9 Lyndel V. Prott and Patrick J. O’Keefe, ‘ “Culture Heritage” or “Cultural Property”?’ (1992) 1 International Journal of Cultural Property 307; Janet Blake, ‘On Defining the Cultural Heritage’ (2000) 49 International and Comparative Law Quarterly 61; Manlio Frigo, ‘Cultural Property v cultural heritage: A “battle of concepts” in international law?’ (2004) 86 International Review of the Red Cross 367; Francesco Francioni, ‘A Dynamic Evolution of Concept and Scope: From Cultural Propety to Cultural Heritage’ in Abdulqawi A. Yusuf (ed), Standard Setting in UNESCO, Vol II: Conventions, Recommendations, Declarations and Charters Adopted by UNESCO (UNESCO 2007) 221. 10 Joint Statement by the Chairpersons of the Committees of the UNESCO Culture Conventions (29 June 2015) accessed 15 August 2019.

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Introduction 5 also having a detrimental impact on cultural heritage protection by needlessly stretching the limited resources of the Organization and Member States.

3. Whose Heritage? Despite the persistent structural bias of the current multilateral system, which elabor ates and implements international cultural heritage law within the traditional paradigm of sovereignty and interstate relations, there is increasing recognition of the role of other non-State actors in this field. These include the international community, peoples, groups and communities, individuals, civil society, and corporations. The UN Special Rapporteur on Cultural Rights, in her Access to Cultural Heritage report of 2011, recognized the need to acknowledge these multiple interests and prioritize their competing claims in respect of cultural heritage.11 Unfortunately, this phenomenon of competing claims is made acute by the compartmentalization of the culture conventions and further fragmentation of international cultural heritage law throughout specialized fields of international law. However, there have been some steps towards prioritizing the claims of peoples and individuals who created the cultural heritage through their participation in decision-making processes concerning its protection. Among the culture conventions, the 2003 Intangible Cultural Heritage Convention is most actively engaged in endeavouring to ensure the effective participation of ‘communities, groups and relevant non-governmental organizations’ (Chapter 15).12 In the regional context, the Council of Europe has adopted the Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) as an overarching set of principles covering participatory rights and access to justice applicable in interpreting its existing culture treaties (Chapter 38).13 The dominance of States within international cultural heritage law persists, however, and the incursion of non-State actors in the field remains limited and largely hindered by States themselves. This is a product of the intergovernmental nature of our multilateral system generally and of the significance of culture and cultural heritage to the communal imagining of the modern nation state.14 A cursory examination of the culture conventions lays bare that it is the State that defines what, whether, how, and when heritage will be protected. It is States that drive the drafting and adoption of these treaty texts, as well as their implementation on the multilateral and national levels. The ground-breaking World Heritage Convention provides a stark example given its nearuniversal ratification. While it opened the door to recognition of the interest of the 11 UNCHR, Report of the Independent Expert in the Field of Cultural Rights. Access to Cultural Heritage (21 March 2011) UN Doc A/HRC/17/38, paras 5 and 8 (hereafter ‘Access to Heritage report’). 12 2003 Intangible Cultural Heritage Convention (n 7), art 11. 13 Framework Convention on the Value of Cultural Heritage for Society (adopted 27 October 2005, entered into force 1 June 2011) CETS No 199 (Faro Convention). 14 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso 1996).

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6 Ana Filipa Vrdoljak and Francesco Francioni international community in cultural and natural sites of outstanding universal import ance and the role of expert advisory bodies in their identification and protection, its governing framework, including the World Heritage Committee, has been resistant to broadening the effective participation of non-State actors in its decision-making (Chapter 11). This resistance has been especially prolonged and contested in respect of Indigenous peoples and the inscription of their lands on the World Heritage List, despite repeated interventions by UN and regional human rights bodies (Chapter 18).15 The interests and priorities of States are having a similar impact in general international law as it relates to cultural property, as reflected in the clash between human rights and State immunity (Chapter 24). Given this continuing dominance of States, it is also imperative to recognize that not all States are equal. The discrepancy in political and economic power among States is reflected in compromises embodied in the text of treaties and the day-to-day operation of their implementation by intergovernmental committees and UNESCO internation ally and by relevant regional bodies locally. For instance, the 1970 UNESCO Convention and affiliated intergovernmental committee on return or restitution embody the competing interests of States referred to as ‘source’ countries, which seek to regulate the international market in cultural objects, and ‘market’ countries, which advocate limiting the regulation of the market (Chapters 9 and 10). Originally championed by ‘source’ countries, the compromises negotiated into the final text, the long-held resistance to ratification by many ‘market’ countries, and limited effectiveness of the intergovernmental committee have led some to pursue other avenues within the UN system of seeking to tighten the regulation of the illicit market through its UN Office of Drugs and Crime. The protection and promotion of cultural heritage in international law by necessity recognizes a role for the international community. This development is evidenced with an articulation of an international community beyond the society of States, the promotion of the ‘cultural heritage of mankind’ as a common good, and international cooper ation in the protection and promotion of this common concern. The conceptualization of an international community to oversee the protection of cultural heritage could only occur with the ceding of authority and sovereignty of States through their signing of relevant treaties. Yet, not even the World Heritage Convention, with 193 States Parties, can claim to represent the international community in this field.16 Under treaty law, obligations under the Convention are owed to the other States Parties and not the world at large.17 The International Criminal Court, in its reparation order in the Al Mahdi case (2017), recognized the interest of not only the relevant State but also the international 15 See, for example, Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Merits) Communication 276/2003 African Commission on Human and Peoples’ Rights (25 November 2009). 16 Francesco Francioni, ‘Introduction’ in Francesco Francioni and Federico Lenzerini (eds), World Heritage Convention: A Commentary (Oxford University Press 2008) 5. 17 Roger O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53 International and Comparative Law Quarterly 189.

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Introduction 7 community, represented by UNESCO, in the World Heritage–listed site in Timbuktu damaged and destroyed in part by the defendant.18 This is an important step, and one that, ironically, remains at odds with the characterization of the cultural crime committed by the defendant as a ‘war crime’, rather than a ‘crime against humanity’, as would have been logical in view of the harm suffered by the ‘international community’. This notwithstanding, the expansion of the rationale for cultural heritage protection and promotion beyond national interests is complemented by an emphasis on its ‘universal importance’, a concept encapsulated in the phrase ‘cultural heritage of mankind’. Originating in the preamble of the 1954 Hague Convention, it has been reaffirmed repeatedly in subsequent culture conventions. It must be distinguished from the concept of ‘common heritage of humankind’ in international law, used in reference to space and oceans. The phrase in the cultural heritage context must be read with the adjoinder following it in the 1954 Convention: ‘since each people makes its contribution to the culture of the world’. It is recognition of cultural heritage as a common concern because it ensures cultural diversity. This interpretation is especially pronounced in respect of the 2003 Intangible Cultural Heritage and 2005 Cultural Diversity conventions (Chapters 15 and 22). Finally, SC Resolution 2347 (2017), the Security Council’s first resolution dedi cated to cultural heritage, moves the international law obligations of Member States from inter partes to erga omnes in respect of deliberate destruction, looting, and smuggling. This trend to expand obligations beyond treaty obligations of States Parties has occurred in successive Security Council resolutions since the 1990s (Chapter 26).19 Since the mid-twentieth century, individuals are recognized in international law applicable to cultural heritage as attracting both rights and obligations. Under human rights law and related intellectual property regimes, individuals have the right to participate in cultural life generally and enjoy the fruits of their creative, literary, or scientific labours pursuant to article 27 of the Universal Declaration of Human Rights and article 15 of the International Covenant on Economic, Social and Cultural Rights (Chapter 20).20 Other human rights also provide individuals with rights vis-à-vis cultural heritage in its broadest sense, including freedom of expression, right to education, and right to family life (Chapter 17).21 However, individuals, unlike States, can be held criminally responsible under international law for damage and destruction of cultural heritage (Chapter 5). From the conviction of Alfred Rosenberg by the International Military Tribunal at Nuremberg after World War II to the first war crimes prosecution in respect of cultural property before the permanent International Criminal Court 18 Prosecutor v Ahmad Al Faqi Al Mahdi (Reparation Order) ICC-01/12–01/15 (17 August 2017) (Al Mahdi Reparation Order). 19 UNSC Res 661 (6 August 1990); UNSC Res 1483 (22 May 2003); UNSC Res 2139 (22 February 2014); UNSC Res 2322 (12 December 2016). 20 Universal Declaration of Human Rights, UNGA Res 217A(III) (10 December 1948) (‘UDHR’); International Covenant on Economic, Social and Cultural Rights UNGA Res 2200A(XXI) (adopted 16 December 1966, entered into force 3 January 1976) (‘ICESCR’); General Comment No 21 (21 December 2009) UN Doc E/C/12/GC/21; and Recommendation on the Right to Participate in Cultural Life, adopted by UNESCO General Conference, 19th session (26 November 1976). 21 Access to Heritage Report (n 11).

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8 Ana Filipa Vrdoljak and Francesco Francioni in 2016, the international community has demonstrated its commitment to holding perpetrators of such acts to account.22 The recognition of the role of peoples, communities, and groups in international cultural heritage law has been precipitated by developments in international law generally and human rights law specifically. For decades after the adoption of the Universal Declaration there had been a firm bias against the construction of cultural rights as true human rights. However, with the adoption of article 27 of the International Covenant on Civil and Political Rights in 1966, specialist declarations on minorities and Indigenous peoples rights in the late twentieth and early twenty-first centuries, and related human rights mechanisms, there has been an acknowledgement of the individual and collective aspects of such cultural rights. These developments are beginning to have a profound impact on our understanding of cultural heritage and the manner of its protection and promotion by States and intergovernmental organizations, such as UNESCO (Chapters 16 and 18). Where there had been resistance to any referencing of cultural human rights during the drafting of the 1970 UNESCO Convention,23 the 2003 Intangible Cultural Heritage and 2005 Cultural Diversity Conventions explicitly reference Indigenous peoples, communities, and groups and human rights law. The import ance of cultural heritage for the effective enjoyment of human rights has been likewise recognized in respect of persons with disabilities, women, youth and children, migrants and refugees, LGBTQI people, and others, both in respect of participation in cultural life of society generally and of their own communities (Chapter 19).24 The increasing intervention of these peoples has pushed the evolution of the definition of cultural heri tage and challenged the strictures to participation and decision-making related to its safeguarding and promotion. The recognition of the overlap between cultural and natural heritage has meant that there has been cross-fertilization between the development of international cultural heritage law and international environmental law (Chapter 14). The 1972 World Heritage Convention was adopted in the same year as the Declaration of the United Nations Conference on the Human Environment (Stockholm Convention).25 They embody a common ethos of fostering international cooperation for safeguarding of a common concern of humanity. To this end, it is not surprising that this same wellspring has promoted the role of civil society and experts in achieving these aims. The World Heritage Convention explicitly defines the role of three advisory bodies to assist the World Heritage Committee in respect of nominations for inscription on the World Heritage lists and ongoing monitoring of protected sites (Chapter 11). Although not nominating specific expert bodies, the 2003 Intangible Cultural Heritage Convention has a similar provision for expert guidance in respect of inscription and monitoring. 22 Judgment of the International Military Tribunal, Nuremberg 1946 (1947) 41 American Journal of International Law 172 at 237 (Rosenberg Judgment); and Al Mahdi Judgment and Sentencing. 23 UNESCO, Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property: Preliminary Report (8 August 1969) UNESCO Doc SHC/MD/3, paras 9 and 10. 24 Access to Heritage report (n 11). 25 Declaration of the United Nations Conference on the Human Environment (16 June 1972) UN Doc A/Conf.48/14/Rev.1 (1973), (1972) 11 International Legal Materials 1416.

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Introduction 9 The operation of civil society (including NGOs) is limited within the context of the culture conventions to observer status and far removed from that envisaged under the Council of Europe’s Faro Convention modelled on the Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Århaus Convention).26 However, NGOs and representative organizations have actively engaged in the promotion and protection of cultural heritage in the context of human rights law and international humanitarian law.

4. Towards International Cultural Heritage Law A note on the overall structure of this Handbook is in order. It is not the editors’ contention that there is a coherent, discrete body of law encapsulated by the term ‘international cultural heritage law’. Not even the six culture conventions overseen by UNESCO fit this description. However, it is increasingly the case that almost every specialist area of international law and major areas of general international law have dedicated provisions relating to cultural heritage, which are lex specialis. Despite the compartmentalization of the culture conventions and the fragmentation of culture and cultural heritage throughout international law, there is growing evidence of cross-fertilization between these regimes and their interpretation of treaties and treaty provisions. It is through a distillation of these instruments, practice of States and intergovernmental organizations, and growing jurisprudence that we may start to better understand the norms, rights and obligations, and enforcement mechanisms which may define international cultural heritage law. This mindset informs the structure of this Handbook. The importance of UNESCO and its culture conventions is acknowledged and described by way of a background overview to this area of the law, its institutional framework, and its limitations (Chapter 2). However, the structure of the body of the Handbook is not overtly determined by the UNESCO culture conventions. The order of the topics covered in the substantive aspects in Part II is inspired by the chronological order of the adoption for the culture conventions; they move beyond the convention to cover relevant specialist bodies on international law. So, for example, the 1954 Hague Convention and its protocols are dealt within in chapters covering international humanitarian law, intentional destruction, international criminal law, and the responsibility to protect (Chapters 3, 4, 5, and 6), while the overlap between natural and cultural heritage is considered in chapters concerning world heritage, landscape, underwater heritage, and the environment (Chapters 11, 12, 13, and 14). This phenomenon of treating cultural heritage differently is not only discernible in specialist areas of international law. It is likewise taking place across general inter 26 Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 28 June 1998, entered into force 30 October 2001) 2161 UNTS 447 (‘Århaus Convention’).

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10 Ana Filipa Vrdoljak and Francesco Francioni national law, which informs international law practice broadly. Part III examines how dedicated practices and provisions relating to cultural heritage inform key areas of general international law including custom and general principles (Chapter 23), State responsibility (Chapter 26), and remedies (Chapter 27). It is also important to recall that policy and political discussions which inform the rules governing general international law invariably overlap with complementary specialist areas of international law and practice. So, for example, norms and practices relating to State succession (Chapter 25) and State immunity overlap with those arising in respect of transitional justice (Chapter 8), human rights law (Chapter 17), and regulation of the transfer of cultural objects (Chapters 9 and 10). The role of dispute resolution procedures and non-State actors in the interpretation, elaboration, and implementation of cultural heritage law is examined in Part IV covering procedural and institutional aspects. As occurs with international law generally, the role of international, regional, and domestic courts in the development of the law is fundamental (Chapters 28 and 29). However, this is especially pronounced in respect of international cultural heritage law, because cultural heritage protection (whether it concerns monuments and sites, cultural objects, or intellectual property) can engage public international law and private international law rules. It is also an explanation for the dominance of alternative means of dispute resolution in this field (Chapter 30). The central role of actors other than States in implementation is explored in respect of UNESCO (Chapter 31), non-State actors (Chapter 32), and professional and industry bodies (Chapter 33). Part V provides a taster to the richness of international and State practice on inter national cultural heritage law across the regions including Africa, Asia, Oceania, Central and South America, Europe, Middle East and North Africa, and North and Central America. While issues and concerns may overlap with those at the international level, regional practice in this field provides a better appreciation of the differing and competing priorities between States. For example, where priorities may be negotiated down or framed in a particular way in multilateral fora, they can take on a different, more prominent, hue in regional contexts. So, for example, cultural loss visited by illicit trade from archaeological sites has been a persistent priority for decades for States in Central and South America and the Middle East and North Africa; and the adverse impact of development on intangible heritage remains a guiding priority for States in Asia, Africa, and Oceania. It is the editors’ hope that by drawing out and delineating these various norms and practices in international law concerning cultural heritage, this Handbook may facilitate a more coherent understanding and effective implementation of international cultural heritage law over time. For this reason we are especially grateful for the time, care, and commitment as well as the expertise of each of the contributing authors, who are leading authorities in their respective fields, and the tireless work and commitment of our editors, Merel Alstein and Jack McNichol at Oxford University Press. We also acknowledge the funding and support provided by the University of Technology Sydney for this project through the UNESCO Chair in International Law and Cultural Heritage.

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Pa rt I

H ISTOR IC A L OV E RV I E W

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chapter 2

I n tellect ua l Cooper ation Orga n isation, U n esco, A n d The Cu lt u r e Con v en tions Ana Filipa Vrdoljak and Lynn Meskell

1. Introduction The drive to address actual or threatened damage or destruction of cultural property through law at the national and international levels predates the rise of contemporary international organizations such as the League of Nations and the United Nations. When they were formed, these international organizations remain defined by their Member States and their respective national priorities. In the late nineteenth century and the early twentieth century, the scramble to formulate collective national identities by new states led to national laws to protect and preserve monuments and sites and to regulate the circulation of antiquities.1 These same forces informed and propelled multi lateral efforts to regulate, to prevent, or at least to minimize the potentially destructive impact of war on cultural property,2 of the unregulated trade in art and antiquities, and 1 See Gerard Baldwin Brown, The Care of Ancient Monuments (Cambridge University Press 1905) (hereafter Brown, Care); and George Hill, Treasure Trove in Law and Practice from the Earliest Time to the Present Day (Clarendon Press 1936) (hereafter Hill, Treasure Trove). 2 See Convention (II) with Respect to the Laws and Customs of War on Land, and Annex: Regulations concerning the Laws and Customs of War on Land and Regulations (adopted 29 July 1899, entered into force 4 September 1900) (1898–99) CTS 429, (1907) 1(supp.) American Journal of International Law 129 (Hague II); and Convention (IV) respecting the Laws and Customs of War on Land, and Annex (adopted 18 October 1907, entered into force 26 January 1910) (1907) 208 CTS 77, (1908) 2(supp.) American Journal of International Law 90 (Hague IV).

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14 Ana Filipa Vrdoljak and Lynn Meskell globalization on folk arts and traditions. This growing emphasis on the need for international cooperation through multilateralism necessarily made cultural heritage a concern of the international organizations formed after the two world wars in the twentieth century. The League of Nations and the United Nations would both have specialist agencies overseeing their work on cultural heritage. However, like their parent bodies, the Intellectual Cooperation Organisation (ICO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), and their agendas, priorities and accomplishments or otherwise in this field, were dictated by their Member States. The League’s work was initially propelled by European concerns and by a coterie of intellec tuals, diplomats, and non-governmental organizations who promoted the importance of transnational intellectual cooperation. The agenda gradually shifted with the growing participation of states from the Americas, Asia, and the Middle East. This movement continued apace after the Second World War. Over the decades, UNESCO’s interven tion in the field likewise indelibly changed with its expanding membership and the evermore-pressing calls for effective participation by non-state actors such as Indigenous peoples, minorities, and non-governmental organizations (NGOs). As the shortcomings of current multilateral frameworks in this field and the challenges facing UNESCO are increasingly laid bare, these calls serve as a reminder that cultural heritage is entwined with the Organisation’s broader mandate concerning human rights, rule of law, develop ment, and peace. Yet, like its predecessor, UNESCO is an intergovernmental organiza tion, dominated by the interests and priorities of its Member States. This chapter is intended to serve as an overview of multilateral interventions in the field of cultural heritage and its legal protection over the last century. It is not intended to provide in-depth discussion of any particular specialist treaty nor intersection with specialist areas of international law. This is ably done by the individual contributions which follow. Instead, we seek to provide some modest context as to how and why these legal developments have emerged and evolved as they have done since the rise of inter national organizations since the early twentieth century. We focus particularly on the work of these specialist cultural international organiza tions, because they spearheaded the adoption and implementation of the leading trea ties on cultural heritage. The first part examines the early work of the League of Nations’ ICO from its inception in 1920s until its demise at the end of the Second World War. The second part considers the work of its successor, UNESCO, in realizing many of the pro jects initially commenced by the International Institute for International Cooperation (IIIC, or the Institute). Finally, the concluding observations consider the challenges which both organizations faced in realizing their mission in the cultural field. We seek to show that their priorities and work programmes evolved with their expanding member ships while seeking to remain true to their constitutive instruments. A deeper under standing of the ideals, challenges, and tensions which have marked the internal workings of UNESCO, its forerunner, and their Members States is fundamental to appreciating the instruments and initiatives in the cultural field that they adopted and seek to implement.

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ICO, UNESCO, and the Culture Conventions 15

2. Intellectual Cooperation Organisation Initiatives to regulate the international protection of cultural heritage during the interwar period has its genesis in the promotion of intellectual cooperation in the League of Nations.3 The proponents of intellectual cooperation built upon the increasingly globalized networks of scholarly societies which were facilitated by technological developments in communication and transportation of the nineteenth and early twentieth centuries.4 The intellectual cooperation which these associations enabled traversed languages, cultures, and distances. Indeed, their members often had more in common (language, education, social class, opportunities) with each other than they did with their own broader national societies.5 A cosmopolitan outlook was invariably, though not strictly speaking a necessary, characteristic.6 The interwar decades were characterized by a new spirit of internationalism and global reach, not only with the establishment of international agencies but also with the increase in NGOs that resulted in the expansion of international organizations, councils, committees, and networks.7 Saving the monumental past and works of art, ensuring the future of archaeological excavation and museum collections, documenting folk arts and traditions, and protecting the rights and conditions of intellectual workers (including artists) were issues that were gaining international attention, albeit driven by Western intellectuals and guided by their national attachments and individual ambitions. Despite intense lobbying, a specialist cultural agency was not a priority for the dele gates at the Paris peace conferences of 1919 following the First World War. The objectives of the League of Nations, the inter-governmental organization established by the subse quent Treaty of Versailles, included preventing war through collective security, settling disputes between countries through negotiation, and improving global quality of life.8 However, it was not long before proponents again argued that efforts to achieve these 3 See Daniel Laqua, ‘Transnational intellectual cooperation, the League of Nations and the problem of order’ (2011) 6 Journal of Global History 223 at 226–7 (hereafter Laqua, ‘Transnational’); Jean-Jacques Renoliet, l’UNESCO oubliée: la Société des Nations et la cooperation intellectuelle, 1919–1946 (Publications de la Sorbonne 1999); and Frederick Samuel Northedge, ‘International Intellectual Co-operation within the League of Nations: its conceptual basis and lessons for the present’ (PhD thesis, University of London, 1953) (hereafter Northedge, ‘International Intellectual’). 4 See Akiya Iriye, Cultural Internationalism and World Order (John Hopkins University Press 1997), 12–50 (hereafter Iriye, Cultural Internationalism); and Stephen Kern, The Culture of Time and Space, 1880–1918 (Harvard University Press, 2003). 5 Iriye, Cultural Internationalism (n 4), 65–6. 6 See Glenda Sluga, Internationalism in the Age of Nationalism (University of Pennsylvania Press 2013), 45–76; and Iriye, Cultural Internationalism (n 4), 51–90. 7 See Lynn Meskell, A Future in Ruins: UNESCO, World Heritage and the Dream of Peace (Oxford University Press 2018), 1–27 (hereafter Meskell, A Future). 8 Treaty of Peace between the Allied and Associated Powers and Germany (adopted 28 June 1919, entered into force 10 January 1920) (1919) 225 CTS 189, (1919) 13(supp.) American Journal of International Law 151 (Treaty of Versailles).

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16 Ana Filipa Vrdoljak and Lynn Meskell objectives needed to move beyond economics and politics. The emphasis on ‘spiritual and moral rapprochement’ in the pursuit of peace through intellectual cooperation informed the establishment of the Intellectual Cooperation Organisation by the League’s Assembly and its work in the field of culture heritage.9 The International Committee on Intellectual Cooperation (ICIC, or the Committee) sat in Geneva; while the International Institute of Intellectual Cooperation, which carried out its recom mendations, was hosted in Paris.10 The ICIC did not advocate for the creation of a super-state or a realization of a uniform culture for all states.11 Instead, it fostered the idea that international peace depended upon countries having self-confidence and tolerance arising from knowledge of their own culture. This objective would be realized through the recognition and promotion of two competing principles: the diversity of national cultures and their universality.12 The Committee’s first chairperson, Henri Bergson, explained that the culture of a people was incomplete in itself and could only truly be understood in context with other cultures.13 Nonetheless, it was clear that these aims remained informed by racial theory and imperial objectives which drove the European ruling and intellectual elites’ ongoing adherence to a unilinear progress of ‘civilization’ and ‘development’, despite the carnage and destruction of the First World War.14 The Committee was a largely European group ing, and this affected its agenda concerning cultural property. However, the Intellectual Cooperation Organisation was conceived as a ‘universal’ organization: transcending the boundaries of League membership, it brought together intellectuals from various coun tries and encouraged dialogue not only between states but also between civilizations.15 It was more international in its outlook than pre-war intellectual cooperation efforts, with active participation from countries in the Americas and Asia.16 The IIIC opened its headquarters in Paris in 1926,17 and had a succession of French directors until its closure in 1939.18 States established national commissions for intellectual 9 Intellectual Cooperation Organisation, Work of the International Committee on Intellectual Cooperation, Report of the French Representative (16 September 1933) LN Doc C.500.1933.XII, 6. See Henri Bonnet, ‘Intellectual Co-operation’ in World Organization (Institute on World Organization, 1942), 189–210 (hereafter Bonnet, ‘Intellectual Co-operation’). 10 Laqua, ‘Transnational’ (n 3), 226–7. 11 See Northedge, ‘International Intellectual; (n 3) 47–48. 12 See Northedge, ‘International Intellectual; (n 3) 50 and 55; and Susan Pedersen, “Back to the League of Nations”, (2007) 112(4) The American Historical Review 1091–1117 (hereafter Pedersen, ‘Back to the League’) describing this dynamic as it relates to the League generally. 13 See Henri Bergson, The Meaning of the War (T. F. Unwin Ltd 1915) (hereafter Bergson, The Meaning). See Iriye, Cultural Internationalism (n 4) 63–4; and Daniel Laqua, ‘Transnational’ (n 3), at 224. 14 See Northedge, ‘International Intellectual’ (n 3) 28; and Laqua, ‘Transnational’ (n 3) 233. 15 See Corinne A. Pernet, ‘Twists, Turns and Dead Alleys: The League of Nations and Intellectual Cooperation in Times of War’ (2011) 6 Journal of Global History 342 at 343 (hereafter Pernet, ‘Twists’). 16 Iriye, Cultural Internationalism (n 3) 58 and 65; and Laqua, ‘Transnational’ (n 3) 224 and 228. 17 The IIIC received funding from France and contributions from countries in Europe, Latin America, Asia and the Middle East: Jimena Canales, ‘Einstein, Bergson and the Experiment that Failed: Intellectual Cooperation at the League’ (2005) 120(5) Modern Language Notes 1168 at 1169, 1173–5, 1180–3 (hereafter Canales, ‘Einstein, Bergson’). 18 This included author and essayist Julien Luchaire (1926–30), diplomat, Henri Bonnet (1931–40), and Jean-Jacques Mayoux (1945–6).

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ICO, UNESCO, and the Culture Conventions 17 cooperation and appointed delegates to represent their interests at the Institute.19 The International Museum Office (IMO), which led the Institute’s work on cultural heritage, was also established in 1926 and headquartered in Paris.20 Leading museum officials, archivists, librarians, artists, philosophers, academics, and folklorists, as well as legal experts, were involved in the preparation of its draft normative instruments. The countries from which these experts were drawn was limited but more diverse than one would assume, with their travaux préparatoires recording responses from museum officials in Latin America, Asia, and Oceania. In 1940, the IMO assessed that its own formation and subsequent activities were governed by ‘the internationality, the uniqueness and the universal ownership’ of cultural objects.21 Nonetheless, its agenda was strongly shaped by European priorities. The work of the IIIC through its Department of Art and Archaeology and the IMO in the 1920s and early 1930s in the field of cultural heritage covered a draft international convention on the protection of national artistic and his torical treasures, a draft international convention for the protection of monuments and works of art in time of war, a proposed international regime of antiquities and excavations, and a bureau for the International Committee for Folk Arts and Traditions, together with work on promoting the rights of intellectual workers through copyright and labour conditions.22 While the relevance of the League itself declined during the 1930s, the Intellectual Cooperation Organisation had its ‘most productive phase’.23 The Institute’s final director, Henri Bonnet, observed that the Organisation was ‘not neutral’ about the war; instead, he emphasized, there was a need to reinforce intellectual cooperation efforts.24 The League’s Secretariat pressed it to undertake and realize various nominative initiatives in the field of cultural heritage, with significant engagement from countries beyond Europe including the United States, several Latin American countries, and Japan.25

2.1 International Regime of Antiquities and Excavations While the delegates to the Paris peace conferences did not engage with cultural heritage or intellectual cooperation broadly, the resultant peace agreements did not ignore cultural heritage completely. Rather, their sparing references signalled the subsequent 19 There was thirty-four national committees by the end of the 1920s; and forty-four state delegations and forty-five national commissions worked with the Institute by 1939: Hiroshi Daifuku, ‘Museums and monuments: UNESCO’s pioneering role’ (1998) 50(1) Museum International 9 (hereafter Daifuku, ‘Museums’); and Iriye, Cultural Internationalism (n 3) 64. 20 The Monthly Summary of the League of Nations (1926) vol VI(1)1, 9–12; and League of Nations Official Journal Special Supplement (1926), No 44, 110. 21 Anon., ‘Comparative Legislation and International Law in the field of Art and Archaeology’ (1940) No 7–8, Bulletin of Intellectual Co-operation 345 (emphasis added) (hereafter Anon., ‘Comparative Legislation’). 22 See (December 1937) 18 League of Nations Official Journal 994–5. 23 Pernet, ‘Twists, Turns’ (n 15), 343. 24 Bonnet, ‘Intellectual Co-operation’ (n 9), 189–90 and 209. For the importance of Bonnet’s leader ship of IIIC in internationalizing its activities, see Iriye, Cultural Internationalism (n 3) 93. 25 Daifuku, ‘Museums’ (n 25), 9.

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18 Ana Filipa Vrdoljak and Lynn Meskell priorities of the League’s interventions in this field. The League of Nations, through the work of its ICO, had grand ambitions for cultural heritage around the world, particu larly in fostering research into ancient civilizations, the protection of selected sites, and the establishment of permanent museum collections. Through Article 421 and Annex of the proposed treaty of peace with Turkey of 1920 (Treaty of Sèvres),26 the drafters sought to ensure equal treatment for archaeological research and excavations to the nationals of all Member States. Although it was never ratified, its basic tenets would be reflected in domestic laws adopted by new Member States of the League, especially those in the Middle East.27 The IIIC organized a number of international conferences in the 1930s through its International Museum Office to develop standards and prepare normative instruments in the field of cultural heritage.28 The Athens Charter for the Restoration of Historic Monuments adopted in 1931 specifically focused on monumental preservation and embraced a one-world concept of cultural heritage by entreating states to assume a greater role in conserving the artistic and archaeological property of mankind.29 The IMO’s Secretary, Jules Destrée, noted that there was general agreement at the conference that the preservation and protection of masterpieces which ‘represent[ed] civilisation’s highest power of self-expression’ was the concern of the entire international community and should be manifested in the ‘idea of international solidarity’ and mutual assistance.30 In response, and at the ICIC’s request, the Assembly of the League adopted the ‘Resolution concerning the Protection of Historical Monuments and Works of Art’ in 1932 (1932 Resolution), which guided the Organisation’s initiatives in the field until its demise.31 The overarching philosophy of the Resolution was that cultural property was the ‘heritage of mankind’ and that its preservation was the responsibility of ‘the commu nity of states, which are the guardians of civilisation’.32 It promoted measures recogniz ing the symbiotic relation between the mutual understanding among peoples through the appreciation of their diverse cultures and the protection of cultural property.33 It recommended that the League inculcate tolerance towards relics of the past, whatever 26 Treaty of Peace with Turkey (adopted 10 August 1920, not ratified) Cmd 964 (1920) 113 BFSP 652, and (1921) 15(supp) American Journal of International Law 179 (Treaty of Sèvres). 27 Hill, Treasure Trove (n 1). 28 Including the Rome Conference of 1930, covering the preservation of paintings and sculptures, and the Athens Conference of 1931, covering restoration and preservation of architectural monuments. 29 See IIIC, Dossier de Correspondence. Office International des musées, Conservation des oeuvres d’art, architecture, Conference d’Athenes, 1930–33, OIM.IV.17, IMO Archives, IIIC, UNESCO Archives, Paris (hereafter IIIC, ‘Conference d’Athenes, 1930–33’); and Meskell, A Future (n 7), 6. 30 Anon., ‘League of Nations’ Intellectual Co-operation Organisation’ (October–November 1932) Information Bulletin 165–6 (hereafter Anon., ‘League of Nations’). 31 Resolution concerning the Protection of Historical Monuments and Works of Art of the Sixth Committee of the League Assembly (1932 Resolution), LN Doc.CL.176.1932.XII, adopted by the ICIC on 23 July 1932 and approved by the Assembly of the League of Nations on 10 October 1932 (1932 Resolution). 32 Third recital, 1932 Resolution. See Athens Charter of 1931 in Resolution VII on Conservation of Monuments and International Collaboration, IIIC, in ‘Conference d’Athenes, 1930–3’ (n 29) (Athens Charter). 33 Fifth and Sixth recitals, 1932 Resolution.

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ICO, UNESCO, and the Culture Conventions 19 the civilization or period to which they belong. This social mission would be augmented with exchanges between public collections of states which ‘ensur[ed] a better knowledge of the national genius of the different peoples beyond the borders within which they found expression’.34 Furthermore, the Resolution stated that the preservation of works of art raised such complex historical and technical problems that it was difficult to locate all the necessary experts within one country. To reinforce these objectives, in 1932 the Institute established the Institute of Archaeology and History of Art in Rome which served as clearing house for all institutes and departments of archaeology and art history, an index of all archaeological excavations and exhibitions, and all related activities and publications, worldwide.35 In 1937, the League and the ICIC began work on the adoption of an internationally agreed system of antiquities and excavations based on the recommendations contained in the Charter adopted at the International Conference on Excavations (1937 Cairo Charter),36 organized by the IMO and hosted by Egypt. The Charter, prepared by a panel of largely European and American experts, reinforced the main principles contained in the Treaty of Sèvres. It emphasized accessibility to the cultural ‘resources’ from archaeo logical sites through ‘a system of international co-operation in the matter of antiquities and excavations calculated to develop archaeological research, and to conduce to improved knowledge of ancient civilizations’.37 It was envisaged that the Institute would advise on excavations and all forms of international collaboration arising out of arch aeological research. It required museums to ‘satisfy themselves that nothing in its intrin sic character or the circumstances in which it is offered . . . warrants the belief that the object is the result of clandestine excavation or any other illicit operation . . . ’.38 If suspi cion was aroused, they were to notify the relevant authorities. The government and museum should then assist with the repatriation of the object to their country of origin; however, this did not extend to archaeological materials.39 Rather, a ‘moral agreement among museums’ was the preferred route because ‘these institutions display an ever more enlightened spirit of international solidarity and understanding’.40 Instead, to curb illicit trade and enable museums to fulfil their ‘scientific and education mission’, states were encouraged to provide legal means of acquiring archaeological materials, with the IMO to facilitate the resolution of any dispute between the country of origin and a

34 Sixth recital, 1932 Resolution (emphasis added). 35 See Horst Blanck, ‘The Instituto di Corrispondenza Archeologica’ (2008) 2 Fragmenta 63–78; and Alain Schnapp, ‘Archéologie et tradition académique en Europe aux XVIIIe et XIXe siècles’ (1982) 37(5 and 6) Annales. Histoire, Sciences Sociales 760–77. 36 See Euripide Foundoukidis and IMO, Final Act of the International Conference on Excavations (International Museums Office, 1937); and (1937) 39–40 Mouseïon 251–5 (hereafter Foundoukidis and IMO, Final Act). 37 Report of the Committee on the Work of its Nineteenth Plenary Session, ICIC, League of Nations. Geneva, 9 August 1937. UNESCO Archives, file reference C. 327 M. 220.1937. XII. 38 Recommendation 15, Section III, Cairo Charter. 39 Recommendations 16 and 17, Section III, Cairo Charter. 40 Foundoukidis and IMO, Final Act (n 36), 3; and Preamble, Section III, Cairo Charter.

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20 Ana Filipa Vrdoljak and Lynn Meskell collecting institution.41 The latter recommendations were augmented by the IMO’s Recommendation regarding International Art Exhibitions. It stressed their educative purpose of ‘promot[ing] intellectual rapproachement, the education of public taste, and the progress of historical and artistic research’, with governments encouraged to take all necessary steps to facilitate the importation and return of loaned objects.42 These efforts to promote the access to and circulation of cultural objects, particularly archaeological finds, were counterbalanced by another initiative promoted by newly independent states during the same period.

2.2 Protection of National Artistic and Historical Treasures The regulation of the trade in art and antiquities proved problematic for several states and led to their emphasis on the urgent need for international cooperation to be realized through the preparation and adoption of a specialist multilateral instrument. The ques tion of the return of specific art works, collections, and archives between certain countries following the First World War was explicitly addressed in various Paris peace treaties following the intervention of the Dutch and Belgian delegations in 1919.43 After the establishment of the League, the international regulation of the transfer and return of art works, antiquities, fragments of monuments, and archaeological finds removed in contravention of national law was placed on the Institute’s agenda by European as well as Central and South American countries. In response to the Athens Charter, Jules Destrée argued that there was a need for the public to appreciate its own cultural heritage but also to be inculcated with the ‘spirit of international solidarity’ which was best achieved through the international movement for exchange and cooperation between museums and other collecting institutions.44 This sentiment was reiterated in the 1932 Resolution, which requested that Member States enact domestic laws permitting the transfer of cultural objects ‘of no interest’ to their national museums and limiting scheduling ‘to [objects] of special interest to the artistic or archaeological heritage of the country’.45 While the IMO conferences were primarily organized to foster technical preserva tion and protection of cultural property, they also had a ‘legal’ aspect, ‘in the form of

41 Section II, Recommendations 13(b) and (c); and Section III, Recommendations 18, 21, and 22, Cairo Charter. It also recommended the conclusion of bilateral agreements under the auspices of the IMO: Recommendation 27. 42 Recommendation regarding International Art Exhibitions, adopted at the seventeenth session of the Assembly of the League of Nations (23 November 1936) CL.207, 1936, XII. 43 Ana Filipa Vrdoljak, ‘Enforcing Restitution of Cultural Property through Peace Agreements’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 22–39 (hereafter Vrdoljak, ‘Enforcing Restitution’). 44 Anon. ‘League of Nations’ (n 30) 165–6. 45 Jules Destrée, ‘Annual Report of the President of the Directors’ Committee of the International Museums Office, Note by the Secretary, of the Intellectual Co-operation Organisation’, 1 July 1932, ICIC/273, 7 (hereafter Destrée, ‘Annual Report’); and Recommendation 4, 1932 Resolution.

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ICO, UNESCO, and the Culture Conventions 21 international agreements’.46 At the behest of the Italian Committee, a convention g uaranteeing the integrity of national collections was a central recommendation of the 1932 Resolution.47 During the course of 1930s, the Organisation would oversee the drafting and redrafting of three iterations of the convention designed to facilitate cooperation in the restitution of cultural objects removed contrary to domestic laws. The draft International Convention on the Repatriation of Objects of Artistic, Historical or Scientific Interest which have been Lost, or Stolen or Unlawfully Alienated or Exported (1933 IMO draft) was triggered by alienation or export of an object contrary to national legislation, regardless of whether it was in a collection or removed from an archaeological site.48 However, in response to concerns of certain states, subsequent drafts broadened to include a wider range of objects and covered those in private collections, but they also narrowed to cover only those scheduled as of ‘national importance’, thereby excluding archaeological excavations.49 These changes were retained and extended in the final draft International Convention for the Protection of National Collections of Art and History (1939 IMO draft) prepared following the Cairo Conference and just before the commencement of the Second World War.50 Its application was confined to scheduled objects only; and the act triggering its operation was contrary to the property rights ‘under the criminal law of the claimant state’.51 Iraq argued for a return to the wording of the 1933 draft where the trigger was the lack of export authorization. It noted that illegal excavations were difficult to control; and stolen objects were not always known and therefore not capable of being scheduled.52 Other states opposed this argument, maintaining that prior possession was fundamental for a restitution request.53 It also promoted the appreciation of all cultures by promoting export for exhibition, loan, study, or conservation.54 The draft explicitly provided that it would not apply retroactively;55 and with precedence given to ‘diplomatic channels’ in resolving disputes 46 Anon., ‘International Cooperation in the Sphere of Art’ (1932) 13 LNOJ 1776–7 (hereafter Anon., ‘International Cooperation’). 47 Charles de Visscher, International protection of works of art and historic monuments, US Documents and State Papers, International Information and Cultural Series, No 8 (US Department of State Publication 1949) 857 (hereafter Visscher, ‘International Protection’); and Anon., ‘International Cooperation’ (n 46) 1776. 48 Destrée, ‘Annual Report’ (n 45) 7. The 1933 IMO draft reproduced in Visscher, ‘International Protection’ (n 46) 865–6. 49 Visscher, ‘International Protection’ (n 48) 859. Draft International Convention for the Protection of National Historic or Artistic Treasures (1936 IMO draft) reproduced in Visscher, ‘International Protection’ (n 47) 866–8. 50 1939 IMO draft reproduced in Visscher, ‘International Protection’ (n 48) 869–71. See Charles de Visscher, ‘Le projet définitif établi en 1939 en vue de la conférence diplomatique’ (1939) 1 Art et archeologie: recueil de législation comparée et de droit international 78–9 (hereafter Visscher, ‘Le projet’). 51 Art 2(1), 1939 IMO draft. 52 Iraqi delegation to Secretary General, League of Nations, 21 May 1936, OIM.IV.27.II, 162–3. 53 ICIC, Report of the Committee on the Work of its Nineteenth Plenary Session, 9 August 1937, C.327.M.220.1937.XII, 69. 54 Art 2(2), 1939 IMO draft. The provision gave a ‘legitimate owner’ whose objects were abroad for an exhibition or repair the same rights he or she would have in their own state. 55 Euripide Foundoukidis to Ugo Aloisi, 15 March 1935, OIM.IV.27.II, 104–5 referring to Art 2(3), 1939 IMO draft.

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22 Ana Filipa Vrdoljak and Lynn Meskell under the instrument.56 The draft would not be finalized or adopted because of the war. Charles de Visscher concluded that this initiative tried to reconcile two ‘worthy’ inter ests: the drive of a country to preserve cultural objects representing its national heritage; which may result in a ‘chauvinistic idea’ of export prohibitions, impeding the ‘more lofty point of view’ of the ‘eminently universal educational role of the work of art throughout the world’.57

2.3 Folk Arts and Traditions The original impetus for an international instrument covering intangible heritage originated in Europe during the inter-war period and was the high-water mark in positive protection of minorities in international law. The peace treaties adopted by the Paris peace conferences incorporated minorities protections applicable to newly independent states in Central and Eastern Europe.58 These international guarantees bestowed equal rights to minorities to establish, control, and manage their own ‘charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein’.59 The rationale for this guarantee was explained by the Permanent Court of International Justice in Minority Schools in Albania (1935). It found that ‘no true equality between the majority and a minority’ could be attained where the minority was ‘deprive[d] of its own institutions’ and ‘compelled to renounce that which constitute[d] the very essence of its being as a minority’.60 The ICO’s promotion of cultural diversity must be understood in this overall context of the League’s mandate system. Related to this, national commissions on folk art were established to systematically collate, record and study folk arts and traditions ‘to make known to the public the spe cific characters of the different races, regions, or localities and their common traits, and to familiarise it with the technical and aesthetic principles of handicrafts’.61 However, these efforts were driven by ethnographers and folklorists rather than by the minorities themselves.62 Nonetheless, Eastern and Central European states welcomed a specialist 56 Art 4(1), 1939 IMO draft. This position departed from the judicial avenues incorporated in the 1933 IMO draft but accorded with the spirit of the 1937 Cairo Charter: Visscher, ‘Le projet’ (n 51) 99. 57 Visscher, ‘International Protection’ (n 48) 859. 58 Minority guarantee contained in Arts 2, 3, 7 and 8 of the Treaty between the Principal Allied and Associated Powers and Poland (adopted 28 June 1919, entered into force 10 January 1920, (1919) CTS 189, (1919) 13(supp.) American Journal of International Law 151 (Peace Treaty with Poland) was the template upon which subsequent minority protections imposed on other states seeking recognition or entry into the League. 59 Art 9, Peace Treaty [w]ith Poland. 60 Minority Schools in Albania case (1935) PCIJ, Series A/B, No 64, 17. 61 League of Nations Official Journal, 18th Year, No 12 (December 1937) 1049. 62 League of Nations Official Journal, 18th Year, No 11 (November 1937) 994. When the work on folk arts and traditions was transferred to the Institute’s Department of Art and Archaeology, the focus became comparative study which served to highlight links between cultures.

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ICO, UNESCO, and the Culture Conventions 23 conference in Prague in the hope of realizing their goal of a normative instrument on folklore. However, it too was thwarted by the outbreak of the Second World War.

2.4 Protection of Monuments and Works of Art in Time of War Despite its interventions in the field of cultural heritage, the Institute and the IMO repeatedly resisted calls to prepare a convention for the protection of cultural property during wars or civil strife, deeming such efforts ‘highly laudable’ but ‘impractical’.63 The Athens Charter recommendation calling for this initiative was judged ‘both difficult and inopportune’, at a time when all the League’s efforts were devoted towards pacifism and ‘bringing about the situation calculated to eliminate war’.64 Instead, the IMO remained focused on safeguarding efforts at the national level.65 But, by the mid 1930s, the escalat ing Spanish civil war meant these calls by Central and South American countries could no longer be ignored.66 With its potential impact on the rules of war, the proposed treaty engaged museum experts from the major powers, including the United States.67 The preamble of the ensuing preliminary draft international convention with regulations (1938 IMO draft Convention) provided the following rationale for international protec tion: ‘Being convinced that the destruction of a masterpiece, whatever nation may have produced it, is a spiritual impoverishment for the entire international community.’68 This sentiment would be reaffirmed by the IIIC and IMO as the war approached. In 1938, the Institute’s Director reported that ‘[t]he countries possessing artistic treasures are merely their custodians and remain accountable for them to the international community’.69 By 1940, the IMO affirmed that ‘any injury to these treasures . . . consti tutes a loss to mankind as a whole, to the present and to future generations’.70 The inter national conference scheduled to finalize and adopted the 1938 IMO draft in The Hague was cancelled because of the Second World War.71 Instead, the Declaration Concerning the Protection of Historic Buildings and Works of Art in Time of War, reduced to ten articles, was adopted by Belgium, Spain, Greece, 63 League of Nations Official Journal, 18th Year, No 12 (December 1937) 1047. 64 Ibid. 65 Ibid. 66 League of Nations Official Journal, 18th Year, No 12 (December 1937) 1047. 67 Pernet, ‘Twists, Turns’ (n 17); and Gary B. Ostrower, ‘The United States and the League of Nations, 1919–1939’ in United Nations Library and Graduate Institute of International Studies, The League of Nations in Retrospect: Proceedings of the Symposium (Walter de Gruyter 1983) 128–43. 68 Second and third preambular recitals, 1938 IMO draft, reproduced in Visscher, ‘International Protection’ 861. See Report by the Directors’ Committee of the International Museums Office to the International Committee on Intellectual Co-operation for the Year 1937/38, together with a Preliminary Draft International Convention on the Protection of Historic Buildings and Works of Art, in League of Nations Official Journal, 19th Year, No 11 (November 1938) 937. 69 League of Nations Official Journal, 19th Year, No 11 (November 1938) 961. 70 Anon., ‘Comparative Legislation and International Law in the Field of Art and Archaeology’ (1940) 7–8 Bulletin of Intellectual Co-operation 345. 71 UNESCO Doc CBC/7, 3, para 8.

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24 Ana Filipa Vrdoljak and Lynn Meskell the United States, and the Netherlands (1939 Declaration).72 Its truncated preamble stated ‘that the loss of a masterpiece is a cultural impoverishment, not only for the nation which has produced it, but also for the entire international community’. This sentiment was reaffirmed in substantive provisions covering safeguarding measures prior to armed conflict and during belligerent occupation. At the outbreak of the war, US President Roosevelt requested reassurances from Germany, France and the United Kingdom that civilian populations and property would be spared.73 Germany, France, the United Kingdom, and Poland responded affirmatively. Indeed, a joint French and British state ment on 3 September 1939 advised that they ‘solemnly and publicly affirm . . . to preserve, with every possible measure, the monuments of civilisation’.74 The belligerents largely adhered to these assurances until 1943.75 The International Act concerning Intellectual Cooperation prepared to grant the Institute greater autonomy from Geneva came into effect in January 1940.76 Its preamble reaffirmed the importance of the preservation of the cultural heritage of mankind through the promotion of intellectual cooperation.77 ICIC Vice-President Gonzague de Reynold observed in 1938 that the Organisation was defined by four principles: its ser vice to intellectual life; solid national bases; respect for diversity and originality of all forms of culture and all aspects of civilization; and the ‘supreme aim’ of universality (with internationality being a means to this end).78 The Institute was closed between 1940 and 1944, though it reopened in February 1945, continuing its work until the end of 1946 when UNESCO took over part of its responsibility. The International Museums Office likewise ceased operation in 1946.

3. United Nations Educational, Scientific and Cultural Organization It is not possible to properly understand UNESCO’s culture conventions without understanding the history of the Organization itself, its dystopian beginnings, and its utopian promise. Unlike the League of Nations and the ICIC before them, the discus sions concerning the establishment of UNESCO occurred in tandem with those for the 72 Visscher, ‘International Protection’ (n 48) 859–60. 73 IMO, La protection des monuments et oeuvres d’art en temps de guerre (IIIC 1939) 222 (hereafter IMO, La protection). 74 IMO, La protection (n 71) 225–6. 75 Patrick J. Boylan, ‘Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954)’, UNESCO Doc CLT-93/WS/12 (1993), 35–7 (hereafter Boylan, ‘Review’). 76 International Act concerning Intellectual Co-operation, 3 December 1938, in force April 1940, League of Nations Official Journal, 20th Year, No 2 (February 1939) 73–192. See Pernet, ‘Twists, Turns’ (n 17) 346. 77 Ibid. 78 League of Nations Official Journal, 19th Year, No 11 (November 1938) 919–25.

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ICO, UNESCO, and the Culture Conventions 25 United Nations, during the Second World War.79 While there was always the intention to have a dedicated agency for the promotion of culture and protection of cultural heri tage, its form was a source of considerable debate.80 Preventing the brutal ideologies of fascist and totalitarian ideologies from emerging in the future became a touchstone of UNESCO; perhaps more so than the League, UNESCO placed culture front and centre. Education, culture, and heritage would have to be tethered in new ways at UNESCO in order to achieve a new world order. In late 1942, a Conference of Allied Ministers of Education (CAME) convened to plan the reconstruction of education systems in a liber ated Europe, with cultural reconstruction also on the agenda.81 On 16 November 1945, forty-four states gathered in London to establish an international body for educational and cultural cooperation under the aegis of the United Nations. At the earlier San Francisco Conference, US President Harry S. Truman stressed the importance of a new international commitment to cultural and educational cooperation following the global conflict. This sentiment was inspired by his predecessor Franklin D. Roosevelt’s convic tion that ‘civilization is not national—it is international’.82 In his speech at the London conference, British Prime Minister Clement Atlee declared that ‘the peoples of the world are islands shouting at each other over seas of misunderstanding’. He recognized that in the future ‘we are to live in a world of democracies, where the mind of the common man will be all important’.83 It was the New Zealand delegate who made the linkage between peace, democracy, and education, the promotion of which became the declared raison d’être of the Organization.84 Intellectual cooperation remained de fil rouge of the new organization, facilitated by the involvement of former ICO personnel.85 UNESCO’s Constitution provides 79 See F. R Cowell, ‘Planning the Organisation of UNESCO, 1942–1946: A Personal Record’ (1966) 10(1) Journal of World History 210–36 (hereafter Cowell, ‘Planning’); and Pernet, ‘Twists, Turns’ (n 17) 354–5. 80 Cowell, ‘Planning’ (n 80). 81 See Walter H. C. Laves and Charles A. Thomson, Unesco: Purpose, Progress, Prospects (Indian University Press 1957) 11–13 (hereafter Laves and Thomson, Unesco); Akira Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World (University of California Press 2002); Euripide Foundoukidis, ‘Cultural Reconstruction’, LN Doc.IICI/OIM/7, (IIIC, 1945); and Roger-Poi Droit, Humanity in the Making: Overview of the Intellectual History of Unesco 1945–2005 (UNESCO 2005) 24. 82 Paul Betts, ‘Humanity’s New Heritage: Unesco and the Rewriting of World History’ (2015) 228(1) Past & Present 252–3. 83 Welcoming Address by the British Prime Minister the Rt. Hon. C. R. Attlee (Prime Minister of Great Britain and Northern Ireland), Conference For The Establishment of the United Nations Educational, Scientific And Cultural Organisation, held at the Institute of Civil Engineers, London accessed 17 February 2017. 84 Laves and Thomson, Unesco (n 82) 6; and Vincenzo Pavone, From the Labyrinth of the World to the Paradise of the Heart: Science and Humanism in Unesco’s Approach to Globalization (Lexington 2008) 1 (hereafter Pavone, From the Labyrinth). 85 See John Toye and Richard Toye, ‘One World, Two Cultures? Alfred Zimmern, Julian Huxley and the Ideological Origins of UNESCO’ (2010) 95(319) History 308–331 (hereafter Toye and Toye, ‘One World’); and Glenda Sluga, ‘UNESCO and the (One) World of Julian Huxley’ (2010) 21(3) Journal of World History 393–418 (hereafter Sluga, ‘UNESCO’).

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26 Ana Filipa Vrdoljak and Lynn Meskell that: ‘[T]he wide diffusion of culture . . . [is] indispensable to the dignity of man and constitute[s] a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern.’ Harking back to the sentiments first enunciated after the First World War, it then records that peace cannot be ‘based exclusively upon the political and economic arrangements of governments’ but must also be founded upon ‘the intellectual and moral solidarity of mankind’.86 To achieve this objective it was empowered to adopt international agreements to ‘promote the free flow of ideas by word and image’ and to ‘maintain, increase and diffuse knowledge’, including by facilitating the conservation and protection of the ‘world’s inheritance of books, works of art and monuments of history and science’ and ‘the exchange of publications, objects of artistic and scientific interests and other materials of information’.87 By 1976, Deputy Assistant Director-General Gérard Bolla noted that UNESCO had already adopted three conventions and six recommendations on culture which had the dual aims of ‘identifying, protecting and presenting cultural property of Member States and, at the same time, of facilitating the development of cultural exchange, including the exchange of cultural objects’.88 As at April 2019, there are six specialist conventions, twenty-four recommendations, and six declarations in the cultural field adopted and/or overseen by UNESCO. UNESCO’s interventions in the field of culture over the last half-century have been defined by the changing profile of its membership and its Directors-General drawn from various regions of the world. Successive waves of new Member States during decol onization in the 1960s and 1970s and the dismantling of federations after the Cold War has made a significant impact in the Organization’s priorities and normative instru ments concerning cultural heritage.89 More recently, the actors seeking to engage in UNESCO decision-making has expanded further. UNESCO work has been driven by experts drawn from relevant fields, whose their effective engagement remains dependent on the goodwill of Member States. The function and influence of experts has been increasingly critiqued since the 1980s, at a time when the importance of the effective participation of related groups, communities, and individuals was increasingly being advocated. These phenomena have necessarily imbued post-war multilateral normative efforts for the protection of cultural property.

86 Preamble, Arts 1 and 2, Constitution of UNESCO, 16 November 1945, in force 4 November 1946, 4 UNTS 275 (hereafter UNESCO Constitution). See Cowell, ‘Planning’ (n 80), 225; and Theodore Besterman, UNESCO: Peace in the Minds of Men (Methuen & Co, 1951), 6–7 (hereafter Besterman, UNESCO). 87 Arts 1 and 2, UNESCO Constitution. 88 Draft Recommendation on the International Exchange of Cultural Property, 6 August 1976, UNESCO Doc.19C/25, Annex II, Report of the Special Committee of Governmental Experts, 2. 89 See Anon., ‘UNESCO 1947 and 1948’ (1948) 26 International Conciliation 71 (hereafter Anon., UNESCO 1947); Charles S. Ascher, ‘The Development of UNESCO’s Program’ (1950) 4(1) International Organization 12 (hereafter Ascher, ‘Development’); and Reinhold Niebuhr, ‘The Theory and Practice of UNESCO’ (1950) 4(1) International Organization 3 (hereafter Niebuhr, ‘Theory and Practice’).

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ICO, UNESCO, and the Culture Conventions 27

3.1 Protection of Cultural Property in the Event of Armed Conflict In contrast to its predecessor, the question of a specialist instrument for the protection of cultural property during armed conflict was one of UNESCO’s first agenda items. The year that the Geneva Conventions of 1949 were adopted, UNESCO’s General Conference resolved to protect ‘all objects of cultural value, particularly those kept in museums, libraries and archives, against the probable consequences of armed conflict’.90 In response, the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention) was drafted and negotiated during the height of the Korean War and the escalating Cold War.91 The preparatory expert report covered Allied responses to the devastation visited by the Second World War and emphasized the need for preventive and punitive measures.92 Preventive measures reflected those in the ICO’s earlier draft convention; while the punitive measures echoed those arising from the International Military Tribunal, Nuremberg and related war crimes trials, and the Universal Declaration on Human Rights and Genocide Convention adopted by the UN General Assembly in 1948.93 These developments affirmed that the destruction of a group and their culture is an affront to humanity as a whole. The recognition of the impact of these developments on the rationale for the international protection of cul tural heritage is encapsulated in the preamble of the 1954 Hague Convention. It makes clear that the purpose of the Convention is to ensure the contribution of all peoples and their cultures—not cultural property in and of itself.94 As at June 2019, the Convention has 133 States Parties (including all five permanent members of the Security Council), with more than half the ratifications occurring after 2001.95 Also, the United Nations 90 Resolution 6.42, in Records of the General Conference of the United Nations Educational, Scientific and Cultural Organization, Fourth Session, Paris 1949, Resolutions (UNESCO 1949), 27. 91 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 (1954 Hague Convention). See Historical Note concerning the Draft Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) UNESCO Doc CBC/7. 92 George Berlia, ‘Report on the International Protection of Cultural Property by Penal Measures in the Event of Armed Conflict’, 8 March 1950, UNESCO Doc.5C/PRG/6, Annex I, 12 (hereafter Berlia, ‘Report’). 93 UNESCO Docs 5C/PRG/6, Annex I, 12–21; and 7C/PRG/7, Annex I, 5 and Annex II, 20. See Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, UN GAOR Supp (No 12) 11, UN DocA/1316 (1950); 1950 ILCYb 374, vol II, and (1950) 44 American Journal of International Law 126; Convention on the Prevention and Punishment of the Crime of Genocide, UNGA Res.260A(III) (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277; and Universal Declaration of Human Rights, GA Res.217A(III) (10 December 1948) and (1949) 43(supp) American Journal of International Law 127. 94 1954 Hague Convention, second and third recitals, preamble. 95 See States Parties to the 1954 Hague Convention at accessed 21 June 2019. There has also been a significant increase in the States Parties to the First Hague Protocol covering cultural objects during this period. As at June 2019, there were 110 States Parties to the 1954 Hague Protocol with all permanent members of the Security Council being States Parties bar the United States. It is unfortunate that the United States has yet to ratify the First Protocol given its prominent and leading role in the post–Second World War restitution effort.

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28 Ana Filipa Vrdoljak and Lynn Meskell has indicated its willingness to be bound by this framework including in respect of peacekeeping operations.96 Yet the limitations of the 1954 Hague framework became manifest during the Yugoslav conflicts of the 1990s when cultural property was deliberately targeted by the combat ants. The review launched by UNESCO led to the adoption of the Second Hague Protocol in 1999 which defined the parameters of military necessity, special protection violation of which attracted criminal responsibility, and obligations relating to crimin alizing and prosecuting such violations. The special protection regime under the 1954 Hague Convention was deemed so onerous that it remained underutilized.97 In response to this limitation, the Second Hague Protocol created a category of enhanced protection (Article 10); and a Committee which accepts nominations from High Contracting Parties, non-governmental organizations, and other parties and which advises all Parties of the request.98 When deciding whether to list a property, the Committee evaluates its ‘excep tional cultural significance, and/or its uniqueness, and/or if its destruction would lead to irretrievable loss for humanity’.99 The framework (including the Committee and List) adopted under the Second Hague Protocol owes much to the framework created under the Convention concerning the Protection of the World Cultural and Natural Heritage (1972 World Heritage Convention).100 As at mid 2019, twelve sites in seven countries have been included in the List of Cultural Property under Enhanced Protection,101 with limited funding to facilitate these efforts as compared to funding available under other cultural conventions frameworks. Successive civil wars and regional armed conflicts in the late twentieth and early twenty-first centuries led to the establishment of international criminal tribunals which have prosecuted international crimes related to the destruction and damaging of cul tural property. UNESCO has been involved in various capacities in these initiatives. However, the 1954 Hague Convention is often sidelined for the purposes of war crimes under international criminal law. In several armed conflicts in the last quarter-century, sites were deliberately targeted because of their significance to an ethnic or religious 96 Secretary-General’s Bulletin on the Observance by UN Forces of International Humanitarian Law, UN Doc.ST/SGB/1999/13 (1999) [6.6.]. 97 Chapter II and Regulations, 1954 Hague Convention. As at July 2015, only Austria, Germany, Mexico, The Netherlands, and the Holy See have refuges and/or sites inscribed on the International Register of Cultural Property under Special Protection, UNESCO Doc.CLT/HER/CHP (2015). 98 Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004) 2253 UNTS 212, Arts 10 and 11 (Second Hague Protocol); and Guidelines for the Implementation of the 1999 Second Protocol of the Hague Convention of 1954 (Guidelines), at accessed 4 April 2019, guidelines 44 and 51 (Second Protocol Guidelines). 99 1999 Second Protocol Guidelines, guideline 32. 100 Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 (World Heritage Convention). 101 Secretariat of the 1954 Hague Convention and its two (1954 and 1999) Protocols, List of Cultural Property under Enhanced Protection, at accessed 4 April 2019.

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ICO, UNESCO, and the Culture Conventions 29 group and universal importance recognized by inscription on the World Heritage List. This development was first registered by the International Criminal Tribunal for former Yugoslavia (ICTY) in a series of prosecutions arising from the shelling of the World Heritage–listed old city of Dubrovnik in the 1990s.102 This trend was affirmed by the International Criminal Court in the prosecution and reparations order arising from the destruction of mausoleums and manuscripts in Timbuktu, Mali, in 2012.103 With its universal uptake and ubiquity of its lists, the World Heritage Convention is deferred to by international criminal courts instead of the 1954 Hague Convention in determining war crimes against protected cultural property.104 While UNESCO was awarded a sym bolic sum by way of reparations in the ICC’s Trial Chamber’s Reparations Order in Al Mahdi in 2017 in recognition of the impact on the international community of the destruction of mausoleums and manuscripts at the World Heritage–listed site, it priori tized the losses experienced by the local inhabitants.105 It found that collective repar ations to the Timbuktu community would have a positive flow-on effect which would benefit Mali and the international community. More recently, the UN Security Council has recognized the negative impact of the deliberate destruction and illicit trade in cul tural property on peace and security in a series of resolutions covering Syria and Iraq, which in turn led to its first resolution dedicated to cultural property in 2017.106

3.2 World Heritage Perhaps UNESCO’s major contribution to the development of a body of general principles and customary norms of international law in the field of cultural heritage protection, which had no inter-war ICO precedent, is the World Heritage Convention adopted by its General Conference in 1972.107 The same year, the UN Conference on the Human Environment adopted its Stockholm Declaration, a milestone in international 102 Statute of the International Criminal Tribunal for the Former Yugoslavia, UNGA Res 827 (25 May 1993) as amended, Art 3(d), (ICTY Statute); Prosecutor v. Jokić (Judgment) ICTY-IT-01–42/1-S (18 March 2004); and Prosecutor v. Strugar (Judgment) ICTY-IT-01-42-T (31 January 2005). 103 Prosecutor v Al Mahdi (Judgment and Sentencing) ICC-01/12–01/15 (27 September 2016) (Al Mahdi Judgment and Sentence). 104 As at April 2019, there were 193 States Parties to the World Heritage Convention, at accessed on 5 April 2019; and 193 UN Member States, at accessed 5 April 2019. 105 Prosecutor v Al Mahdi (Reparations Order) ICC-01/12–01/15 (17 August 2017) (Al Mahdi Reparations Order), 11. 106 UNSC Res 661 (6 August 1990); UNSC Res 1483 (22 May 2003); UNSC Res 2139 (22 February 2014); UN SC Res 2199 (12 February 2015) (with implementation oversight by the UN Analytical Support and Sanctions Monitoring Team); UNSC Res 2322 (12 December 2016); and UNSC Res 2347 (24 March 2017). 107 Evaluation of UNESCO’s Standard-setting Work of the Culture Sector Part III–1972 Convention Concerning the Protection of the World Cultural and Natural Heritage, Draft Report, UNESCO Doc. IOS/EVS/PI/132 (2014).

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30 Ana Filipa Vrdoljak and Lynn Meskell environmental law. The World Heritage Convention enshrines a system of collective protection, based on modern scientific methods, for the protection of cultural and natural heritage deemed as having ‘outstanding universal value’.108 Combining the con servation of nature and culture in one treaty is often considered the most innovative achievement. In the lead-up to its negotiation and adoption, the Convention’s main con cern was the increasing threat to heritage sites worldwide, from catastrophic flooding in Florence and Venice to the relocation of the Nubian monuments with the construction of the Aswan Dam by Egypt. New and proliferating forms of danger, destruction, and deterioration signalled not only a loss for the respective nations but also a harmful impoverishment to the heritage of all nations. Given their outstanding interest, these masterpieces in terms of history, science, conservation, or aesthetics should be ‘pre served as part of the world heritage of mankind as a whole’.109 The World Heritage Convention created the ultimate inventory, the World Heritage List, and furthered the agency’s technocratic goals of listing, standardizing, monitoring, and conserving the past. Establishing a register of the world’s outstanding sites required a vast bureaucracy: formation of an international legal instrument, a Secretariat for managerial matters, Advisory Bodies comprised of technical experts, internal and external committees, auditors, independent evaluators, experts and consultants, and States Parties and their national bureaucracies. A framework deemed so successful that it has been copied and instituted for UNESCO culture conventions adopted before and since the World Heritage Convention. On the positive side, the status the World Heritage label bestows ensures that a global public is more aware of conservation issues. Without the Convention it is easy to imagine that the scale of unhindered industrialized development would have proceeded unchecked. On the negative side, the List creates a competitive arena for nationalist aspirations and rivalries where conservation priorities are increasingly outstripped by the potential developments that accompany the World Heritage brand.110 The World Heritage framework also lays bare the privileged role of experts in heritage protection at the international level. Its advisory bodies, namely the International Union for the Conservation of Nature and Natural Resources (IUCN), the International Council on Monuments and Sites (ICOMOS), and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), all based in Europe, reflect the international professionalization and bureaucratization of heritage as a scientific field. They produce technical evaluations, monitor conservation progress, and provide training. In tandem with changing political orientations at UNESCO, their development evinces how the Organization has shifted from a globally oriented humanist 108 This abstract quality, known by its acronym OUV and added only at the end of the drafting process, has been a source of debate and controversy amongst States Parties, Advisory Bodies, and academics from the very beginning. See Sophie Labadi, Unesco, Cultural Heritage and Outstanding Universal Value (Altamira Press 2013); Bernd von Droste, ‘The Concept of Outstanding Universal Value and Its Application’ (2011) 1(1) Journal of Cultural Heritage Management and Sustainable Development 16; and Henry Cleere, ‘The 1972 Unesco World Heritage Convention: A Success or Failure’ (2011) 4(2) Heritage & Society 173. 109 World Heritage Convention, preamble. 110 Meskell, A Future (n 7).

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ICO, UNESCO, and the Culture Conventions 31 organization towards a pragmatic, intergovernmental organization focused on technical assistance rather than cultural and educational reform.111 There are also fundamentally different cultural notions of conservation and, while Eurocentrism has been the order of the day there too, from the ideas of the IMO’s Athens and Cairo Charters to UNESCO’s World Heritage Convention and Venice Charter, there are other ways of living with the past. Most normative instruments fail to adequately embrace diverse cultural and historic modes of preservation and restoration. There are further issues, including site use, access, and management, rather than the cordon sanitaire that typically remains in force. By adhering to a purely monument-centred, fabric-based approach, there is a risk of fundamentally misunderstanding ancient places and their living histories. This further elides the communities whose knowledge and skill created them and the associated traditions that persist today. Perhaps most importantly, we must ask who are the beneficiaries of international conservation efforts and who are the victims. There are problems of violence and serious infractions of human rights, often perpetrated by governments, that threaten the lives of inhabitants in and around World Heritage Sites. These matters are increasingly being addressed by international, regional, and national human rights bodies.112 The response of UNESCO and its World Heritage Centre (the Convention’s Secretariat) has been more muted given the intergovernmental nature and the influence of its Member States. Quotidian acts of social injustice need to be traced and confronted more readily in intergovernmental spheres, rather than simply focussing on the fate of monuments. Conservation and conflict have long been embroiled throughout human history, yet it is the human dimension of both that surely matters. This has recently come to the fore before the International Criminal Court, the International Court of Justice, and the African Court of Human and Peoples’ Rights.113

3.3 Regulation of Archaeological Sites and Transfer of Cultural Objects International cooperation in the regulation of the transfer and restitution of cultural objects, another initiative which had stalled before the ICO, was taken up by UNESCO in the post–Second World War period at the behest of newly independent countries. In the same year that the Declaration on the Granting of Independence to Colonial Countries and Peoples was adopted by the UN General Assembly, Peru and Mexico 111 Vincenzo Pavone, ‘From Intergovernmental to Global: Unesco’s Response to Globalization’ (2007) 2(1) The Review of International Organizations 81 (hereafter Pavone, ‘From Intergovernmental’). 112 Ana Filipa Vrdoljak, ‘Indigenous Peoples, World Heritage and Human Rights’ (2018) 25(3) International Journal of Cultural Property 245–81 (hereafter Vrdoljak, ‘Indigenous peoples’). 113 See Al Mahdi Reparations Order; Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia) (Judgment) ICJ Reports 2007, 43 (Genocide I case); and Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Merits) Communication 276/2003 African Commission on Human and Peoples’ Rights (25 November 2009).

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32 Ana Filipa Vrdoljak and Lynn Meskell placed the drafting of a specialist instrument back on UNESCO’s agenda.114 Newly independent states became acutely aware of the cultural losses they had suffered during colonization and which continued after their independence. The first culture instrument adopted by UNESCO was the Recommendation on International Principles applicable to Archaeological Excavations (1956 Recommendation).115 It borrowed heavily from the Cairo Charter, with significant differences that underscore the preoccupations and divisions among Member States.116 It reaffirms that museums should ensure acquisi tions are not from unauthorized excavations, from theft, or otherwise illicitly removed from the country of origin and should facilitate restitution requests of these objects.117 Conversely, it urged Member States to cede, exchange, or deposit cultural objects not needed by their own national institutions to museums of other countries.118 These obligations were reinforced in the Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import, and Transfer of Ownership of Cultural Property (1964 Recommendation), which also urged the adoption of specialist multilateral instrument to curb the illicit trade.119 The United States objected to the draft recommenda tion, noting that its museums displayed the ‘cultural heritage of mankind’ and ‘deserved encouragement . . . and not the threat of being impeded in this dedicated purpose’.120 By contrast, the International Council of Museums (ICOM) maintained that there was no tension between the ‘legitimate desire of states to preserve their national cultural heritage in their own territory’ and the ‘idea of a universal cultural heritage or a steady increase in international exchange in the cultural field’. However, it was not optimistic that a dedicated convention could be realized.121 Yet, with the ever-growing membership of the UNESCO during decolonization, momentum was for a multilateral agreement.122 The Organization adopted its second specialist instrument in the field of culture, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention) in 1970.123 The Convention acknowledges it is ‘one of the main causes of the impoverishment of the cultural heritage of countries of origin’, and international cooperation is ‘one of the most 114 UNGA Res1514(XV) (14 December 1960); and Iriye, Cultural Internationalism (n 4) 131–76. 115 Resolution 4.32(c), of the ninth session of the General Conference of UNESCO, 5 December 1956 (1956 Recommendation). 116 Meskell, A Future (n 7). 117 Paras 30 and 31, 1956 Recommendation. 118 Para 23(e), 1956 Recommendation. 119 Paras 13 and 16, Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property, adopted by the General Conference of UNESCO on 19 November 1964. See Means of Prohibiting the Illicit Export, Import and Sale of Cultural Property, Preliminary Report, UNESCO Doc. UNESCO/CUA/123 (1963), 10. 120 Ibid. 121 Technical and Legal Aspects of the Preparation of International Regulations to Prevent the Illicit Export, Import and Sale of Cultural Property, UNESCO Doc. UNESCO/CUA/115 (1962), 10–11. 122 See Report on the Possibility of Drafting a Convention concerning the Illicit Export, Import and Transfer of Ownership of Cultural Property, UNESCO Doc 78EX/9 (1968), 3. 123 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered in force 24 April 1972) 823 UNTS 231 (1970 UNESCO Convention).

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ICO, UNESCO, and the Culture Conventions 33 efficient means of protecting each country’s cultural property against [such] dangers’.124 It promotes international cooperation to facilitate the effectiveness of domestic laws concerning the transfer of cultural objects including export controls. Similarly, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995 UNIDROIT Convention),125 covering the related private international law rules, regis ters ‘the irreparable damage frequently caused by [the illicit trade]’.126 However, while the 1970 UNESCO Convention recognizes the ‘indefeasible’ right of each State Party to nominate certain cultural property as ‘inalienable’ and legislate to prohibit its export,127 the enabling legislation of key States Parties, like the United States and Switzerland, which host large art markets, detracted from the multilateral cooperation championed by its proponents.128 Also, these countries differentiated treatment of objects removed from museum collections or archaeological sites.129 The latter is explicitly covered by the 1970 UNESCO Convention but is subject to a different enforcement regime.130 Likewise, the UNIDROIT Convention distinguishes between the rules governing the ‘restitution’ of cultural objects described as ‘stolen’ (including those removed from unlawful excava tions) and the ‘return’ of cultural material which had been ‘illicitly exported’.131 This shift since the inter-war period is explained by the changing dynamics within UNESCO with the influx of newly independent states, growing public awareness of the adverse impact of the illicit trade, and adoption of regional multilateral agreements regulating archaeological excavations. International cooperation promoted by these various multilateral initiatives on movable heritage emphasizes its adverse impact on the culture and identity of relevant peoples and the cultural heritage of mankind. The UNESCO’s Declaration of the Principles of International Cultural Co-operation of 1966 elaborated upon this rationale.132 It recognizes that ‘each culture has a dignity and value which must be respected and preserved’ and that ‘in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind’.133 The preamble of the 1970 UNESCO Convention references the Declaration and reaffirms that the ‘interchange of cultural property among nations . . . enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations’.134 However, it contains no substantive provision for international exchange.135 By contrast, other contemporaneous multilateral

124 1970 UNESCO Convention, Art 2. 125 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (adopted 24 June 1995, entered into force 1 July 1998) (1995) 34 ILM 1322 (1995 UNIDROIT Convention). 126 1995 UNIDROIT Convention, preamble. 127 1970 UNESCO Convention, Art 13(d). 128 See Swiss Federal Act on the International Transfer of Cultural Property of 20 June 2003; and U.S. Convention on Cultural Property Implementation Act, 19 U.S.C. 2601. 129 UNESCO Doc 16C/17, Annex II, para 19. 130 1970 UNESCO Convention, Arts 1(c), 7(b), and 9. 131 UNIDROIT Convention, Arts 1(c), 7(b), and 9. 132 Adopted by the General Conference of UNESCO on 4 November 1966 (1966 Declaration). 133 1966 Declaration, Art 2. 134 1970 UNESCO Convention, first and second recitals, preamble. 135 UNESCO Doc 78EX/9 Annex, 11.

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34 Ana Filipa Vrdoljak and Lynn Meskell initiatives do promote international exchange of cultural objects.136 More recently, the promotion of the international exchange for study, restoration or temporary exhibitions has led to successive domestic laws covering immunity from seizure.137 Like the ICO before it, UNESCO tries to strike a balance between facilitating national laws on movable heritage and promoting the international exchange. The 1970 UNESCO Convention’s slow uptake by states and its overall effectiveness has been stymied by these competing objectives. It has long endured the resistance of countries hosting major art and antiquities markets, whose participation is crucial to its success.138 The 1995 UNIDROIT Convention,139 and the 1954 Hague Protocol covering cultural objects during belligerent occupation,140 have met similar resistance. These shortcomings have been addressed by UNESCO and Member States within the Organization and beyond. Efforts have been made to bolster the Convention’s institutional framework, including strengthening the possible mandate of the existing but underutilized Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or Restitution in case of Illicit Appropriation141 and establishing a Subsidiary Committee.142 The adoption of the Convention on the Protection of the Underwater Cultural Heritage, long resisted by the major maritime powers because of its interjection into the UN Convention on the Law of the Sea, was an important extension of these efforts to regulate the trade in cultural objects.143 Also, there have been concerted moves to crim inalize the illicit trade in cultural objects in other UN and regional fora, including the Security Council, ECOSOC,144 the UN Office of Drugs and Crime,145 and the Council 136 1964 Recommendation, [9]; 1995 UNIDROIT Convention, Art 5(2); and 1976 Recommendation, preamble. 137 See for example Australia: Protection of Objects on Loan Act 2013 (Cth); European Union: EEC Council Directive 93/7 of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State, Official Journal L of 27 March 1993, 74; UK: Tribunals, Courts, and Enforcement Act 2007 (UK) and Protection of Cultural Objects on Loan (Publication and Provision of Information Regulations, s 134); and U.S.: Exemption from Judicial Seizure of Cultural Objects imported for Temporary Exhibition and Display, Pub. L. No 89–259 (S.2273) 79 Stat.985 (1965), 22 U.S.C. 2459 and Foreign Cultural Exchange Jurisdictional Immunity Clarification Act Pub. L. No 114–319, 28 U.S.C. § 1603(h). 138 Including United States (1983), France (1997), United Kingdom (2002), Japan (2002), Switzerland (2003), Germany (2007), and the Netherlands (2009), year denoting when they become States Parties, at accessed 25 April 2019. 139 France, the Netherlands, and Switzerland have signed but not ratified, at accessed 25 April 2019. 140 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 (First Hague Protocol). Including France (1957), the Netherlands (1957), Switzerland (1962), Germany (1967), United Kingdom (2017). The United States is the only Security Council permanent member that has not ratified the protocol. 141 Res 20 C4/7.6/5 (1978) adopted during the 20th session of the UNESCO General Conference. 142 Res 3.MSP 11 of the Meeting of States Parties to the 1970 UNESCO Convention, UNESCO Doc. C70.15/3.MSP/Resolutions (2015). 143 Convention on the Protection of Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 2562 UNTS 1. 144 ECOSOC Res 2003/29 (22 July 2003); ECOSOC Res 2004/34 (21 July 2004); and ECOSOC Res 2008/23 (24 July 2008). 145 International Guidelines for Crime Prevention and Criminal Justice Responses with Respect to Trafficking in Cultural Property and Other Related Offences, GA Res 69/281 of 28 May 2015, UN Doc A/

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ICO, UNESCO, and the Culture Conventions 35 of Europe.146 Security Council resolutions have recognized the role of the illicit trade in financing terrorist activities and in response have called on international cooperation in ts suppression through the sanctions monitoring framework. Such initiatives are significant as they define obligations for all UN Member States, not just the States Parties to relevant culture conventions.

3.4 Safeguarding Intangible Cultural Heritage and Diversity of Cultural Expressions The safeguarding of intangible heritage and cultural diversity also re-emerged in the late twentieth century through its championing by new UNESCO Member States from Asia and Oceania, and Central and Eastern Europe, who had come into the fold following decolonisation during the 1960s and 1970s, and the end of the cold war in the 1990s, respectively. The later events fuelled the rekindling of minorities protection as an issue for the international and European organizations, which would again colour the way in which international protection of intangible heritage would be rationalized and framed. At the same time, the push to formulate and adopt a dedicated UN instrument on the rights of Indigenous peoples, drafted and negotiated from the 1980s to 2007, significantly inform this endeavour. After the Second World War, the earliest efforts to provide international legal protection for ‘folklore’ (as intangible cultural heritage was known) arose as an extension of existing copyright regimes. The ongoing and escalating exploitation of intangible heritage led developing countries, for whom such heritage represented a significant component of their economies and cultural heritage, to lobby for a revision of the existing intellectual property regimes (IPRs). Developed countries resisted such efforts, arguing that such knowledge formed part of the public domain, and challenged any extension of the protec tion afforded by classic IPRs. The addition of a new article covering folklore in the Berne Convention for the Protection of Literary and Artistic Works led a number of states to pass complementary national legislation.147 However, the collaboration between UNESCO and the World Intellectual Property Organization (WIPO) in the field would eventually diverge. While the specialist UNESCO instrument covering intangible heritage would be realized in 2003 during the tenure of UNESCO Director-General RES/69/281; and Model Treaty for the Prevention of Crimes that Infringe on the Cultural Heritage of Peoples in the Form of Movable Property, adopted by 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, in UNODC, Compendium of United Nations standards and norms in crime prevention and criminal justice (2006) 202, and UNGA Res 45/121 (14 December 1990). 146 Convention on Offences relating to Cultural Property (adopted 3 May 2017, not in force) CETS No 221. 147 Art 15(4)(a) of the Stockholm (1967) and Paris (1971) Acts of the Berne Convention, Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, amended 28 September 1979 accessed 24 July 2019. Including Papua New Guinea (1967), Tunisia (1967), Bolivia (1968), Chile (1970), Morocco (1970), Algeria (1973), Senegal (1973), and Kenya (1975).

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36 Ana Filipa Vrdoljak and Lynn Meskell Koïchiro Matsuura, similar efforts within the World Intellectual Property Organization (WIPO) have still to be finalized. UNESCO’s response eventually led to the General Conference’s adoption of the Recommendation on the Safeguarding of Traditional Culture and Folklore in 1989.148 Central and Eastern European states championed the Recommendation on ideological grounds to raise the importance of popular ethnic culture; it also addressed developing countries concerns about ongoing loss and exploitation of their intangible heritage.149 Nonetheless the instrument was subject to criticism on many fronts, including the very term ‘folklore’ and its ‘static’ interpretation of culture, its privileging of scientists and researchers over source communities, and the failure to address the issues of prior informed consent of the relevant community. Most significant was the categorization of intangible heritage as a ‘universal heritage’ because of its importance to the cultural identity of a specific group or community; and the deliberate avoidance of the appli cation of the phrase the ‘common heritage of mankind’ as it is commonly used in international law.150 Reflective of developments at state and international levels in the intervening decade and a half, the Convention for the Safeguarding of the Intangible Cultural Heritage (Intangible Cultural Heritage Convention) adopted in 2003 used the World Heritage Convention as an inspiration but went beyond it.151 It embraces a broader, more holistic definition of cultural heritage when compared to existing culture conventions. Yet, the dominance of nation-state interests remains evident, with language being protected only as a vehicle of other forms of intangible heritage.152 The final text also recognizes the importance of the participation of non-state actors including Indigenous peoples and local communities.153 In the context of contemporaneous work undertaken in the United Nations (and regional organizations) on minorities protection and Indigenous peoples, it was not surprising that this Convention mirrored their language and preoccupations. The Convention is informed by the international human rights rubric and recognizes the importance of intangible cultural heritage to cultural diversity and sustainable development.154 The role of the States Parties continues to be significant, but they are obliged to seek the ‘participation’ of communities, groups, and relevant 148 Recommendation on the Safeguarding of Traditional Culture and Folklore, adopted by the UNESCO General Conference 15 November 1989 (1989 Recommendation). 149 Samantha Sherkin, A Historical Study on the Preparation of the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore, at accessed 24 July 2019, 7–8 (hereafter Sherkin, ‘Historical Study’). 150 See UNESCO Doc.25C/33, Annex II, para 28; Janet Blake, ‘On defining the cultural heritage’, (2000) 49 International and Comparative Law Quarterly 61 at 69; and Lyndel Prott, ‘International stand ards for cultural heritage’ in UNESCO World Culture Report (UNESCO 1998), 228. 151 Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1 (hereafter ‘Intangible Cultural Heritage Convention’). 152 Intangible Cultural Heritage Convention (n 151) Art 2. 153 UNESCO Doc 161 EX/15, paras 22 and 25; and Annex, 3, para.11. 154 Art 2(2), Intangible Cultural Heritage Convention. See also Art 7, Declaration of the Responsibilities of the Present Generations Towards Future Generations, adopted by the UNESCO General Conference 12 November 1997.

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ICO, UNESCO, and the Culture Conventions 37 non-governmental organizations.155 Adopted three decades after the World Heritage Convention, the Intangible Cultural Heritage Convention has had the fastest take-up rate of all UNESCO’s culture conventions.156 Given its final text and Operational Directives adopted by its intergovernmental committee, it has come under much less criticism than the World Heritage framework in responding to the participation of non-state actors; but, like its predecessor, it is not immuned from interstate competition and conflict. The final culture convention adopted by UNESCO is the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005 (Cultural Diversity Convention).157 The General Conference had adopted the Universal Declaration on Cultural Diversity in 2001,158 following a succession of initiatives addressing the importance of culture, cultural policy, and cultural rights in the context of globalization, pluralism, and diversity.159 However, a binding instrument on cultural rights, recom mended by the Declaration, gradually was transformed into a vehicle for the promotion of the diversity of cultural expressions. This push within UNESCO was designed to address what had increasingly been viewed as the failed effort to achieve this aim before the World Trade Organization. This Convention’s adoption and final text, together with the ratification drive, was propelled by a coalition of francophone countries and the European Union. In the process, it shifted from a human rights instrument to a treaty more attuned to trade-related concerns, with a corresponding move towards the lan guage and principles of international trade, intellectual property, and development law. One of its objectives is the recognition that cultural goods and services cannot be treated as ordinary consumer goods because they are ‘vehicles of identity, values and meaning’.160 Like the Intangible Cultural Heritage Convention, while predominantly referencing the rights and obligations of States Parties, it does recognize the role of minorities and Indigenous peoples in respect of their ‘traditional cultural expressions’.161 However, there has been limited engagement from Indigenous peoples with this instrument; with WIPO’s ongoing efforts to finalize instruments covering traditional knowledge and traditional cultural expressions being viewed as a priority, instead.

155 Intangible Cultural Heritage Convention, Art 11(b). Self-governing groups within states can accede to the Convention in certain circumstances (Art 33). 156 As at May 2019, it has 178 States Parties accessed 3 May 2019. 157 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 UNTS 311 (Cultural Diversity Convention). It has 145 States Parties as at May 2019 accessed 3 May 2019. 158 UNESCO Universal Declaration on Cultural Diversity (2 November 2001) UNESCO Doc 31C/ Res.25, Annex I; (2002) 41 ILM 57 (Universal Declaration). 159 Including the Conference on Cultural Policies in Mexico (1982), the ‘Our Creative Diversity’ Report (1995), the Power of Culture Conference in Amsterdam (1996), the Conference on Cultural Policies for Development Conference in Stockholm (1998), and the two World Culture Reports (1998 and 2000). 160 Cultural Diversity Convention, Art 1(g). 161 Cultural Diversity Convention, preamble, Arts 1(h), 2, 5(1), and 20(2).

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38 Ana Filipa Vrdoljak and Lynn Meskell While the expansion of UNESCO’s normative instruments has been important for the recognition of cultural heritage in its many forms, including those that are especially important to non-European peoples, there continues to be a siloing of the protection of cultural heritage within UNESCO itself and the implementation regimes of its culture conventions. Consolidation of these efforts and limited resources of the Organization and its Member States has met with limited success to date, despite the increasing recog nition of the importance of adopting a holistic understanding of cultural heritage and its protection. Indeed, as is the case with the protection of intangible heritage, there is an increasing fragmentation of these normative regimes within and beyond UNESCO.

4. Conclusion In this chapter we have outlined the history and development of the League of Nations and the United Nations with regard to the role of their respective specialist agencies, the ICO and UNESCO, overseeing cultural heritage. We provide a brief context as to how and why particular legal developments have emerged and evolved since the rise of international organizations since the early twentieth century. What this shows is an increasing emphasis on the protection of cultural heritage that inspired international cooperation through multilateralism. It reminds us that intense periods of cultural destruction also prompted the action of international organizations, themselves initiated in the aftermath of two world wars. This brief history underscores how the ICO and UNESCO were indelibly shaped by the agendas, priorities, and accomplishments of their Member States, particularly those that were the victors in the preceding global conflicts. This pattern has only intensified over time, with powerful nation states setting the agendas and limiting the effectiveness of conventions, whether those concerning protection during armed conflict, the return of cultural property, or promotion of cultural diversity. This is particularly significant when it runs contrary to UNESCO’s broader mandate as set down in its constitution and reflective of its place as the pre-eminent culture agency in the United Nations system; that is, a commitment to human rights, non-discrimination and rule of law. For example, in respect of UNESCO’s premier culture convention, recently we have seen how the World Heritage Committee has ignored ongoing, significant human rights violations related to properties inscribed on the World Heritage List.162 It has continued to inscribe such properties on the list despite clear evidence that the Indigenous peoples had not been consulted, contrary to international law obligations concerning free, prior, and informed consent; and the repeated interventions of UN mechanisms on the rights of 162 ACHPR Res 197 (5 November 2011) Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage site; UNCHR. Access to Heritage. Report of the independent expert in the field of cultural rights (21 March 2011) UN Doc A/HRC/17/38, 21; Stefan Disko and Helen Tugendhat, Expert Workshop on the World Heritage Convention and Indigenous Peoples, Report (IWGIA 2013).

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ICO, UNESCO, and the Culture Conventions 39 Indigenous peoples.163 Moreover, we suggest that, while some of the culture conventions acknowledge the link to human rights law and international law generally, this is not necessarily realized in their day-to-day implementation by UNESCO or its Member States. Much more needs to be done to ensure that the culture conventions work not only in harmony with each other but also consistently with international human rights law. To this end, taken together we suggest that future studies adopt nuanced and grounded understandings of the challenges and tensions that characterize the internal workings of UNESCO, coupled with the imperatives of their Members States, that remain fundamental to appreciating the instruments and initiatives in the cultural field. There is a need to be clear-eyed about how the utopian founding ideals of UNESCO have gradually been replaced by intergovernmental imperatives. It is often said that what was once an Organization led by great statesmen was quickly transformed into one directed by great states. The result is that today’s UNESCO (like its parent body, the United Nations) is only a reflection of its former ambition for peace and mutual understanding between peoples.164 Politicians and the designs of predatory states have increasingly hijacked that mission so that the overreach of governments is now prevalent in the implementation of all conventions concerned with protecting cultural heritage. As UN Secretary-General Antonio Guterras recently stated, to fulfil its purpose the United Nations must also change and focus on delivery, not process, and on people, not bureaucracy.165 Institutional alternatives to UNESCO are, however, lacking currently, and the measure of international oversight that the UN affords remains vital. Another real and unstated issue is that scholars and practitioners envisage inter national organizations, and the legal instruments that they have adopted, to be more powerful than they really are and expect them to deliver on impossible promises. The hopes and aspirations of UNESCO, while not fatally flawed, were nonetheless tainted by the same human history and politics that it sought to overcome. As the successor to the League of Nations, the Organization advanced its mission over the subsequent seventy years in the best of times and the worst of times. Founded in London on 16 November 1945, UNESCO has remained ‘poised between the impossible expectations of its charter and the abysmal realities it had to confront daily, an elusive hope bouncing in the wake of bipolar and multilateral conflict and confrontation, where poverty, hunger, disease, ignorance, and underdevelopment had first claims on the minds of men in most parts of the world’.166

163 Vrdoljak ‘Indigenous peoples’ (n 113). 164 Pavone, ‘From Intergovernmental to Global’ (n 112). 165 Antonio Guterres (UN Secretary-General), ‘My Vision for Revitalizing the United Nations’, at accessed 30 May 2017. 166 William Preston, Edward S. Herman, and Herbert L. Schiller, Hope and Folly: The United States and Unesco 1945–1985 (University of Minnesota Press 1989) 5.

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Pa rt I I

SU B STA N T I V E A SPE C T S

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chapter 3

Cu ltu r a l H er itage a n d I n ter nationa l H um a n ita r i a n L aw Roger O’Keefe

1. Introduction The beginnings of what today we call international cultural heritage law can be traced to venerable rules on the treatment of cultural sites and objects in war—that is, to inter national humanitarian law, the body of rules of public international law dedicated to the regulation of the conduct of armed conflict.1 Centuries later, it was in relation to wartime protection that States concluded the first-ever multilateral treaty in the field of international cultural heritage law, the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, known as the 1954 Hague Convention.2 It was in the preamble to this Convention, furthermore, that States first gave voice in a formal international legal instrument to the metaphysical and ethical conviction on which the corpus of international cultural heritage law is premised, namely 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’.3

1 International humanitarian law is also known as the law of armed conflict or the laws of war. 2 Convention for the Protection of Cultural Property in the Event of Armed Conflict, with Regulations for its Execution (opened for signature 14 May 1954, entered into force 7 August 1956) 249 UNTS 240 (hereafter ‘1954 Hague Convention’ and ‘Regs’ respectively). 3 Preamble (second recital) 1954 Hague Convention. See generally R. O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge University Press 2006) 8–10, 13–18, 20–1, 39–41, 51, 53–5, 59–61, 68, 71, 91, and 94–5.

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44 Roger O’Keefe There is now a detailed body of international humanitarian law on the protection of cultural heritage in armed conflict. Indeed, enthusiasm for the task and overlapping institutional mandates have led to a measure of over-proliferation. That said, the applicable rules are reducible to some relatively straightforward propositions, while the mandates and jurisdictions of the interested international bodies are mutually supportive. Although the newcomer may feel daunted, there is no reason why the superabundance of international rules and institutions relevant to the protection of cultural heritage in armed conflict should give rise to perplexity.

2. Prefatory Clarifications The present account deals only with tangible cultural heritage—that is, with buildings and other monuments of historic, artistic, or architectural significance, with archaeological sites, with artworks, antiquities, manuscripts, books, and collec tions of the same, with archives, and so on. It does not extend to intangible cultural heritage. Although many rules of international humanitarian law serve in practice to protect intangible c ultural heritage in armed conflict,4 they are generally not self-consciously viewed, and even less were they self-consciously conceived, in this light. Similarly, an account is given here only of international humanitarian law. While other bodies of public international law and, indeed, of international cultural heritage law also serve in practice to regulate the conduct of States and individuals, albeit not non-State armed groups as such, in armed conflict,5 they are not the present focus. As to terminology, ‘tangible cultural heritage’ and ‘cultural property’ are used here interchangeably, with the latter being employed, according to context, either in a lay sense or in the formal legal sense specified in the 1954 Hague Convention.6 Cultural property is in turn divided descriptively into its ‘immovable’ and ‘movable’ forms, the labels being self-explanatory. By ‘protection’ is meant protection from destruction and damage and from all forms of misappropriation.

4 Any rule of international humanitarian law which protects the civilian population or individual civilians, civilian objects, and so on serves indirectly to protect intangible cultural heritage. 5 See O’Keefe, The Protection of Cultural Property (n 3) 305–16 and 343–59; R. O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (2010) 11 Melbourne Journal of International Law 339; R. O’Keefe, ‘Tangible Cultural Heritage and International Human Rights Law’ in L. Prott et al. (eds), Realising Cultural Heritage Law: Festschrift for Patrick O’Keefe (Institute of Art and Law 2013) 87; R. O’Keefe, ‘Protection of Cultural Property’ in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) 492 at 507–19; R. O’Keefe et al., Protection of Cultural Property: Military Manual (UNESCO/International Institute of Humanitarian Law 2016) paras 12–33. See also Chapters 5–7, 11, 12, and 18 in this Handbook. 6 See Sections 3.2.1 and 3.2.2.

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Cultural Heritage and International Humanitarian Law 45

3. The Conventional and Customary Corpus 3.1 Historical Background As early as the sixteenth century, moral theologians and writers on the law of nations were enunciating rules which sought to regulate both the destruction and the plunder of cultural property in war. The same period also saw the birth of the metaphysical vision of cultural property as a universal estate, later to be termed a ‘heritage’, common to all peoples, a vision sometimes ad idem and sometimes at odds with the international legal position. Modified in the wake of the Napoleonic Wars and challenged by the techno logical and strategic revolutions of the nineteenth century, the customary international rules regulating the wartime treatment of cultural property were codified at the end of the nineteenth and beginning of the twentieth centuries as part of the wider codifications of the laws and customs of war.7 In the resultant treaties, cultural property was treated for some purposes as a species of enemy property generally, while for others it was treated specifically as cultural property.8 After World War I,9 various efforts were made to establish a further, specialized treaty regime for the wartime protection of cultural property,10 starting with a 1919 proposal by the Netherlands Archaeological Society,11 which was partly reflected in an optional provision of the 1923 draft Hague Rules of Aerial Warfare.12 A draft text dedicated in part to the question, instigated by Nikolai Roerich, the first designer for Diaghilev’s Ballets Russes, was picked up and adopted by a number of States of the Pan-American Union as the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments 1935, known as the Roerich Pact.13 In 1938, the International Museums Office of the League of Nations finalized a Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Times of War, with annexed 7 For historical developments up to and including these codifications, see O’Keefe, The Protection of Cultural Property (n 3) 5–34. 8 See Section 3.2.2. 9 For historical developments related to World War I and its immediate aftermath, see O’Keefe, The Protection of Cultural Property (n 3) 35–44. 10 See ibid, 41–3, 47–9, and 53–61. 11 See ‘Pays-Bas. La protection des monuments et objets historiques et artistiques contre les destruc tions de la guerre. Proposition de la Société néerlandaise d’archéologie’ (1919) 26 Revue Générale de Droit International Public 329. 12 See art 26 draft Hague Rules of Aerial Warfare, UK Misc No. 14 (1924), Cmd 2201. 13 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (adopted 15 April 1935, entered into force 26 August 1935) 167 LNTS 290 (hereafter ‘Roerich Pact’). The Roerich Pact, applicable on a regional basis only, does not form part of the corpus of international humanitarian law, governing as it does the treatment of tangible cultural heritage as much in peacetime as in war. Although still in force among eleven States of the Americas, including the USA, it has effectively fallen into desuetude. See generally O’Keefe, The Protection of Cultural Property (n 3) 51–2.

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46 Roger O’Keefe Regulations for its execution,14 but World War II broke out before a diplomatic conference for its conclusion could be held.15 The war spurred the eventual adoption of the 1954 Hague Convention,16 which in turn inspired further rules of international humanitarian law for the protection of tangible cultural heritage in armed conflict.

3.2 Conventional International Humanitarian Law There are three multilateral treaties dedicated specifically to the protection of tangible cultural heritage in armed conflict. There are also provisions on tangible cultural heritage in various general multilateral treaties in the field of international humanitarian law, along with provisions of more general scope applicable in equal measure to such heritage.

3.2.1 The 1954 Hague Convention and Its First and Second Protocols In 1954, States concluded in The Hague, under the aegis of the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Convention for the Protection of Cultural Property in the Event of Armed Conflict, along with Regulations for its execution.17 The 1954 Hague Convention was supplemented at the time of its conclusion by an optional protocol,18 now known as the First Protocol, and a process of review undertaken in the 1990s with a view to updating and improving aspects of the Convention culminated in 1999 with the conclusion of a Second Protocol.19 This ‘Hague’ regime remains the cornerstone of the protection of tangible cultural heritage under international humanitarian law.20 The 1954 Hague Convention and its two Protocols are the only treaties in the field of international humanitarian law to use the term ‘cultural property’,21 the definition of which for the purposes of all three instruments22 is found in article 1 of the Convention. 14 LNOJ, 19th Year, No 11 (November 1938) 937. 15 For historical developments related to World War II and its immediate aftermath, see O’Keefe, The Protection of Cultural Property (n 3) 61–91. 16 See ibid, 91–4. 17 See n 2. The Regulations constitute an integral part of the Convention, as made clear in art 20 1954 Hague Convention. 18 Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (opened for signature 14 May 1954, entered into force 7 August 1956) 249 UNTS 358 (hereafter ‘First Protocol’). For the immediate background to the First Protocol, see O’Keefe, The Protection of Cultural Property (n 3) 195–6. 19 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (opened for signature 26 March 1999, entered into force 9 March 2004) 2253 UNTS 212 (hereafter ‘Second Protocol’). For the immediate background to the Second Protocol, see O’Keefe, The Protection of Cultural Property (n 3) 236–41. 20 As of 26 August 2019, 1954 Hague Convention had 133 States Parties, First Protocol 110, and Second Protocol 82. 21 For the less generic terms used in the relevant general international humanitarian law treaties, see Section 3.2.2. 22 See para 1 First Protocol (First Protocol referring to its provisions as ‘paragraphs’); art 1(b) Second Protocol. The definition of ‘cultural property’ for the purposes of the 1954 Hague Convention and its two

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Cultural Heritage and International Humanitarian Law 47 In accordance with article 1(a), ‘cultural property’ within the meaning of the Convention refers to ‘movable or immovable cultural property of great importance to the cultural heritage of every people’23—that is, to cultural property of great importance to the national cultural heritage of each respective State Party, as determined first and foremost by that party.24 In the practice of States Parties, the total immovable cultural property to which the Convention and its First and Second Protocols apply is generally in the order of tens of thousands of items in the territory of each party, while the few figures available for movable cultural property tentatively point to the contents of a hundred to a few hundred museums, art galleries, libraries, and archives per party.25 The Convention applies during international armed conflicts between two or more States Parties, an application which extends to the partial or total occupation of the territory of one State Party by another,26 a situation known as ‘belligerent occupation’.27 The provisions of the Convention relating to respect for cultural property, by which is meant the various paragraphs of article 4 (headed ‘Respect for cultural property’), apply also during non-international armed conflicts in the territory of a State Party and in this Protocols is specific to these three treaties. Compare Chap V art 1(4) Convention on the Settlement of Matters Arising out of the War and the Occupation (signed 26 May 1952, entered into force 5 May 1955) 332 UNTS 219 (hereafter ‘Convention on Settlement’); art 1 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231 (hereafter ‘1970 UNESCO Convention’). 23 Art 1(a) 1954 Hague Convention goes on to give examples of cultural property as defined therein, namely ‘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 [same]’. The term ‘cultural property’ for the purposes of the 1954 Hague Convention and its two Protocols extends, in accordance with art 1(b) 1954 Hague Convention, to buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in art 1(a) 1954 Hague Convention, as well as to refuges intended to shelter such movables in the event of armed conflict; and, in accordance with art 1(c) 1954 Hague Convention, to centres containing a large amount of cultural property as defined in art 1(a) and (b), labelled ‘centres containing monuments’. 24 For more detailed explanations, see O’Keefe, The Protection of Cultural Property (n 3) 103–6 and 109–11; R. O’Keefe, ‘Protection of Cultural Property’ in D. Fleck (ed), The Handbook of International Humanitarian Law (3rd edn, Oxford University Press 2013) 425 at 428–30 and 433; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 44–7. 25 For details, see O’Keefe, The Protection of Cultural Property (n 3) 106–8; O’Keefe, ‘Protection of Cultural Property’ (n 24) 430. 26 See art 18(1) and (2) 1954 Hague Convention. See also the situation provided for in art 18(3) 1954 Hague Convention. See generally O’Keefe, The Protection of Cultural Property (n 3) 96–7. 27 For the concept, commencement, and termination of belligerent occupation, see art 42 Regulations concerning the Laws and Customs of War on Land, annexed to Convention concerning the Laws and Customs of War on Land (signed 18 October 1907, entered into force 26 January 1910) UKTS No 9 (1910), Cd 5030 (hereafter ‘1907 Hague Regulations’), considered consonant with customary international law in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep 2004, 136 (hereafter ‘Wall’) at 167, para 78 and at 172, para 89, and in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, ICJ Rep 2005, 168 (‘Armed Activities’) at 229–30, para 172. See also O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 163–9. By definition, belligerent occupation cannot exist in non-international armed conflict.

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48 Roger O’Keefe context bind all parties to the conflict, State and non-State forces alike.28 The Second Protocol applies during both international armed conflict, including belligerent occu pation, and non-international armed conflict, without formal distinction, in the latter context again binding all parties to the conflict.29 In addition, certain provisions of the Convention and Second Protocol apply during peacetime.30 For its part, the First Protocol applies only during belligerent occupation and peacetime.31 The Convention ostensibly offers two levels of protection for cultural property. What is commonly referred to as ‘general protection’32 extends to all immovables and mov ables satisfying the definition of cultural property in article 1 of the Convention, whereas ‘special protection’ imposes a supplementary, nominally stricter33 standard of respect in relation to a narrower range of cultural property.34 The second has never worked as intended and is effectively defunct.35 The Convention also lays down rules on the transport of cultural property during armed conflict,36 the treatment of personnel

28 See art 19(1) 1954 Hague Convention. See also O’Keefe, The Protection of Cultural Property (n 3) 97–8. For the purpose of the 1954 Hague Convention and its two Protocols, a non-international armed conflict (also referred to as an armed conflict not of an international character) can be defined as ‘pro tracted armed violence between governmental authorities and organized armed groups or between such groups within a State’: Prosecutor v Dusko Tadić, IT-94–1, Appeals Chamber, Interlocutory Decision on Jurisdiction, 2 October 1995, para. 70; Prosecutor v Thomas Lubanga Dyilo, ICC-01/04–01/06–2842, Trial Chamber Judgment, 14 March 2012, para. 533. See also art 8(2)(f) Rome Statute of the International Criminal Court (opened for signature 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (hereafter ‘Rome Statute’) (where, to avoid circularity, ‘protracted armed conflict’ should be taken to read ‘pro tracted armed violence’). 29 See arts 3(1) and 22(1) Second Protocol. Art 3(2) Second Protocol provides as per art 18(3) 1954 Hague Convention, mutatis mutandis. See generally O’Keefe, The Protection of Cultural Property (n 3) 245–7. 30 See art 18(1) 1954 Hague Convention, referable to e.g. arts 3, 6, and 7 1954 Hague Convention; art 3(1) Second Protocol, referable to e.g. art 5 Second Protocol. 31 See O’Keefe, The Protection of Cultural Property (n 3) 196–8. 32 See Chap I 1954 Hague Convention (‘General provisions regarding protection’). 33 In reality the difference is negligible: see arts 9 and 11 1954 Hague Convention. See also O’Keefe, The Protection of Cultural Property (n 3) 140–1 and 156–62; O’Keefe, ‘Protection of Cultural Property’ (n 24) 444. 34 See Chap II 1954 Hague Convention and Chap II Regs. See also O’Keefe, The Protection of Cultural Property (n 3) 141–4. 35 Chiefly on account of the difficulty of satisfying the criterion of eligibility laid down in art 8(1)(a) 1954 Hague Convention, only ten centres containing monuments, comprising the Vatican City and recently nine centres in Mexico, along with eight refuges for movable cultural property, six of them in the Netherlands, have ever been entered in the International Register of Cultural Property under Special Protection provided for in Chap II 1954 Hague Convention and Chap II Regs. The Vatican City’s entry was possible only thanks to a special undertaking by Italy ostensibly under art 8(5) 1954 Hague Convention. Four of the refuges have since been removed at the request of the respective States Parties, leaving the Register to comprise, as of 26 August 2019, ten centres containing monuments (nine of them in Mexico) and four refuges (three in the Netherlands and one in Germany): see International Register of Cultural Property under Special Protection, UNESCO Doc CLT/HER/CHP (23 July 2015). See gener ally O’Keefe, The Protection of Cultural Property (n 3) 144–56. As among States Parties to the Second Protocol, special protection has effectively been replaced by the regime of ‘enhanced’ protection pro vided for in Chap 3 Second Protocol: see Section 4.3.3. 36 See Chap III 1954 Hague Convention and Chap III Regs. See also O’Keefe, The Protection of Cultural Property (n 3), 162–5; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), para. 111.

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Cultural Heritage and International Humanitarian Law 49 engaged in the protection of cultural property,37 and the creation and use of a ‘distinctive emblem’ for cultural property.38 The Second Protocol to the 1954 Hague Convention,39 which supplements rather than supplants the Convention as among States Parties to both,40 leaves intact the latter’s architecture and operates by reference back to its provisions, elaborating on, refining, and in places adding to them.41 The Second Protocol maintains two different levels of protection for cultural property, but for all intents and purposes it replaces the Convention’s regime of special protection with a regime of ‘enhanced’ protection.42 Only ‘cultural heritage of the greatest importance for humanity’ which is protected by ‘adequate domestic legal and administrative measures recognising its exceptional cul tural . . . value and ensuring the highest level of protection’, which is not used for military purposes or to shield military sites, and which is inscribed on the International List of Cultural Property under Enhanced Protection by the Committee for the Protection of Cultural Property in Armed Conflict benefits from enhanced protection under the Second Protocol.43 To the extent that it can be considered part of international humanitarian law,44 the First Protocol to the 1954 Hague Convention deals solely with the exportation of cultural property from occupied territory. 37 See Chap IV 1954 Hague Convention. See Section 4.2.3. 38 See Chap V 1954 Hague Convention and Chap IV Regs. See Section 4.2.1. 39 The Second Protocol is accompanied, pursuant to arts 23(3)(b) and 27(1)(a), by non-binding Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (as amended, 16 December 2019) (hereafter ‘Guidelines’). 40 See art 2 Second Protocol. See also O’Keefe, The Protection of Cultural Property (n 3) 242–5. It ought to go without saying that States Parties to the Second Protocol must also be States Parties to the Convention. 41 See arts 40–42 Second Protocol. 42 See art 4, Chap 2 (‘General provisions regarding protection’), and Chap 3 (‘Enhanced protection’) Second Protocol. Except where the rules on enhanced protection represent lex specialis, namely in rela tion to acts of hostility against and certain uses of cultural property, the general provisions of the 1954 Hague Convention and Second Protocol regarding protection of cultural property apply as much to cultural property under enhanced protection as to any other cultural property within the meaning of the Convention and Second Protocol: see art 4(a) Second Protocol. 43 See arts 10 and 11(10) Second Protocol. Art 10(c) Second Protocol further conditions eligibility for enhanced protection on a declaration by the State Party with control over the cultural property that the property will not be used for military purposes or to shield military sites. The International List of Cultural Property under Enhanced Protection (as amended, December 2017), the first inscriptions on which were made in November 2010, currently numbers twelve entries, from eight States Parties (Azerbaijan, Belgium, Cambodia, Cyprus, Italy, Georgia, Lithuania, and Mali). For the grant, on the one hand, and the suspension or cancellation, on the other, of enhanced protection, see arts 11 and 14 Second Protocol respectively. See also Guidelines, paras 31–93. See generally O’Keefe, The Protection of Cultural Property (n 3) 263–271. For the Committee for the Protection of Cultural Property in Armed Conflict, see Section 6. 44 The First Protocol deals additionally with the importation of cultural property from occupied territory and the return of cultural property deposited abroad for the duration of hostilities, neither of which falls within international humanitarian law properly so called. See O’Keefe, The Protection of Cultural Property (n 3) 196–8.

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50 Roger O’Keefe

3.2.2 General Multilateral Treaties on International Humanitarian Law Each of the two 1977 Additional Protocols to the 1949 Geneva Conventions contains a provision relating specifically to the protection of tangible cultural heritage.45 The motivation behind these provisions was to affirm in a single concise article in each instrument the essential obligations of respect for cultural property embodied more exhaustively in the 1954 Hague Convention. The subsidiary character of the pair is highlighted by a ‘without prejudice’ clause in the chapeau to each,46 which makes it clear that the provisions are not intended to modify the existing legal obligations of those States Parties to the relevant Additional Protocol which are also States Parties to the Convention.47 The desire was to avoid the ‘parallel application of two divergent systems for the protection of cultural property, which could only be a source of confusion’.48 The scope of the immovables and movables encompassed by article 53 of Additional Protocol I, applicable to international armed conflict,49 and article 16 of Additional Protocol II, applicable to a certain type of non-international armed conflict,50 both of which speak of ‘the historic monuments, works of art or places of worship which constitute the cul tural or spiritual heritage of peoples’, is essentially the same as that covered by the 1954 Hague Convention and its Protocols.51 Beyond the lex specialis represented by these two provisions, tangible cultural heritage is considered prima facie a civilian object like any 45 See art 53 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (opened for signature 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (hereafter ‘AP I’) and art 16 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (opened for signature 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (here after ‘AP II’). As of 26 August 2019, there were 174 States Parties to AP I and 168 to AP II. See generally O’Keefe, The Protection of Cultural Property (n 3) 207–18 and 230–2. 46 Art 53 AP I and art 16 AP II both provide in relevant part: ‘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’. Art 53 AP I adds ‘and of other relevant international instruments’. 47 The point is underscored in resolution 20 (IV) (‘Protection of Cultural Property’) of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977 (7 June 1977): see Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977 (Federal Political Department 1978) (hereafter ‘Records 1974–1977’) vol 1 part I, 213. See generally O’Keefe, The Protection of Cultural Property (n 3) 207–9. 48 CDDH/SR.53, para 4, Records 1974–1977, vol VII, 142 (FRG). 49 See art 1(3) and (4) AP I. 50 In accordance with art 1(1) AP II, AP II applies to non-international armed conflicts taking place in the territory of a State Party between the State Party’s armed forces and ‘dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’. 51 See e.g. Prosecutor v Dario Kordić and Mario Čerkez (hereafter ‘Prosecutor v Kordić and Čerkez’), Appeals Chamber, Judgment, IT-95–14/2-A, 17 December 2004, para 91, citing Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC/ Martinus Nijhoff 1987) 646, para 2064. But compare Central Front, Eritrea’s Claims 2, 4, 6, 7, 8 & 22 (Eritrea/ Ethiopia), Partial Award (2004) 135 ILR 295 at 330, para 113. For further details, see O’Keefe, The Protection of Cultural Property (n 3) 209–15 and 230–1; O’Keefe, ‘Protection of Cultural Property’ (n 24) 430–3.

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Cultural Heritage and International Humanitarian Law 51 other52 and as a consequence benefits in international armed conflict from, inter alia, the prohibition on indiscriminate attacks, the mandatory precautions in attack, and the mandatory precautions against the effect of attacks laid down in Additional Protocol I.53 Additional Protocol I also prohibits the improper use of the distinctive emblem of cultural property provided for in the 1954 Hague Convention.54 The 1977 Additional Protocols were not the first general multilateral treaties in the field of international humanitarian law to include provisions on the protection of tangible cultural heritage. The 1899 and 1907 Hague Regulations on the Laws and Customs of War on Land and the 1907 Hague Convention on naval bombardment contain articles to this effect.55 Nor are the 1977 Additional Protocols the last general multilateral treaties on international humanitarian law specifically to regulate the protection of tangible c ultural heritage in armed conflict, with the 1980 and 1996 Protocols to the Conventional Weapons Convention on mines, booby traps, and other devices both containing provisions to this end.56 Both the 1899 and the 1907 52 Civilian objects are defined negatively in art 52(1) AP I as those objects which are not military objectives as defined in art 52(2) AP I, viz ‘objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutraliza tion, in the circumstances ruling at the time, offers a definite military advantage’. 53 See art 51(4) and (5)(b), art 57, and art 58 AP I respectively. See generally O’Keefe, The Protection of Cultural Property (n 3) 204–7 and 218–20. Consider also O’Keefe, The Protection of Cultural Property (n 3) 220–3. 54 See art 38(1) AP I. See also O’Keefe, The Protection of Cultural Property (n 3) 223–4. 55 See arts 27 and 56 Regulations concerning the Laws and Customs of War on Land, annexed to Convention concerning the Laws and Customs of War on Land (signed 29 July 1899, entered into force 4 September 1900) UKTS No 1 (1901), Cd 800 (hereafter ‘1899 Hague Regulations’); arts 27 (‘buildings dedicated to religion, art, science, or charitable purposes, [and] historic monuments’) and 56 (‘institu tions dedicated to religion, charity and education, the arts and sciences’, plus ‘historic monuments [and] works of art and science’) 1907 Hague Regulations; art 5 (‘sacred edifices, buildings used for artistic, scientific, or charitable purposes, [and] historic monuments’) Convention concerning Bombardment by Naval Forces in Time of War (signed 18 October 1907, entered into force 26 January 1910) UKTS No 13 (1910), Cd 5117. See generally O’Keefe, The Protection of Cultural Property (n 3), 24–30 and 31–2. 56 See art 6(1)(b)(ix) Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices to Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (opened for signature 10 October 1980, entered into force 2 December 1983) 1342 UNTS 137; art 7(1)(i) Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices to Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (opened for signature 3 May 1996, entered into force 3 December 1998) 2048 UNTS 93. The relevant provisions speak of ‘historic monu ments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples’. In other words, the property protected is identical to the property covered by art 53 AP I and art 16 AP II, which in turn is essentially the same as cultural property within the meaning of art 1 1954 Hague Convention. In the last regard, see e.g. the Russian Federation’s Declaration on Becoming Party to the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as Amended on 3 May 1996, 2 March 2005, 2308 UNTS 134, para 3 (‘For the purposes of interpreting sub paragraph 1(i) of article 7, of Protocol II, the Russian Federation understands the cultural or spiritual heritage of peoples as cultural property in the terms of article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954’). See generally O’Keefe, The Protection of Cultural Property (n 3) 302–5.

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52 Roger O’Keefe Hague Regulations also embody general rules, applicable equally to tangible cultural heritage, on the destruction and seizure of enemy property, on pillage, and on the rights and obligations of an occupying power,57 while the Fourth 1949 Geneva Convention does the same on the latter two subjects.58

3.3 Customary International Humanitarian Law Alongside the conventional rules, a body of customary international humanitarian law, both lex specialis and lex generalis, further serves to protect tangible cultural heritage in both international armed conflict, including belligerent occupation, and non-international armed conflict.59 Many of the relevant conventional rules, if not declaratory of customary international law when agreed, have come to reflect it in the period since, while others must now be interpreted and applied in the light of later customary international rules.60

4. Substantive Obligations The following substantive obligations, which can be divided into four groups based on the precise States and, where relevant, non-State armed groups bound by them, can be drawn from the conventional and customary corpus of international humanitarian law on the protection of tangible cultural heritage in armed conflict.61

57 See arts 23(g), 28, 43, and 47 1899 Hague Regulations; arts 23(g), 28, 43, and 47 1907 Hague Regulations. See generally O’Keefe, The Protection of Cultural Property (n 3) 23–4 and 30–3. 58 See arts 33, 53, and 64 Convention Relative to the Protection of Civilian Persons in Time of War (opened for signature 12 August 1949, entered into force 21 October 1950) 973 UNTS 287 (hereafter ‘Geneva Convention IV’). 59 See generally O’Keefe, The Protection of Cultural Property (n 3) 316–43. 60 See art 31(3)(c) Vienna Convention on the Law of Treaties, Vienna (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, as consonant with customary international law; Oil Platforms (Iran v United States of America), Judgment, ICJ Rep 2003, 161 at 182, para 41; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, ICJ Rep 1984, 246 at 291, para 83; Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), Judgment, ICJ Rep 1993, 8 at 58, para 46; Iron Rhine (‘IJzeren Rijn’) Railway (2005) 27 RIAA 35 at 66, paras 58–9 and 75, para 84. 61 In addition to the secondary materials cited below, see J. Toman, Cultural Property in War: Improvement in Protection. Commentary on the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (UNESCO 2009); N. van Woudenberg and L. Lijnzaad (eds), Protecting Cultural Property in Armed Conflict: An Insight into the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (Martinus Nijhoff 2010); Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, Cambridge University Press 2010), 170–85.

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Cultural Heritage and International Humanitarian Law 53

4.1 Customary International Law and the 1954 Hague Convention A core of substantive obligations for the protection of tangible cultural heritage applies, in its quality as customary international law, where a State which is party to none of the relevant treaties is engaged in armed conflict. The same obligations apply, in part as treaty law interpreted and applied in the light of later customary international law and in part as customary international law alone, as between, or in non-international armed conflicts in the territory of, States Parties to the 1954 Hague Convention.62 All of these obligations63 apply, at a minimum,64 in relation to cultural property as defined in the Convention.65 Unless otherwise stated,66 they apply during both international armed conflict, including belligerent occupation, and non-international armed conflict, in the latter case binding all parties, State and non-State, to the conflict.

4.1.1 Attacks against Cultural Property or Objectives in Its Vicinity Two fundamental obligations for the protection of cultural property govern acts of armed violence by a party to the conflict, whether by land, sea or air, in situations where the cultural property is not under the territorial or physical control of that party.67 First, it is prohibited to direct an attack68 against cultural property unless at the time the property constitutes a military objective and there is no feasible alternative for 62 In international armed conflicts between, or in non-international armed conflicts on the territory of, as the case may be, States Parties to the 1954 Hague Convention which are also parties to any or all of the First or Second Protocols or 1977 Additional Protocol I or II, various of the following obligations equally apply, by virtue of the relevant provision or provisions of the applicable Protocol (see Section 3.2.2), in their more straightforward quality as treaty law. 63 In addition to the obligations outlined in the text and footnotes below, reprisals against cultural property, whether involving its destruction or damage or its misappropriation, are absolutely prohibited, at least in international armed conflict: see art 4(4) 1954 Hague Convention (international and noninternational), art 53(c) AP I (international), and customary international law (probably international only). For the UK’s reservation to AP I, according to which it regards itself as entitled, subject to strict conditions, to take reprisals against cultural property protected by art 53 AP I in the event of the provi sion’s breach by an opposing party by way of serious deliberate attacks against such property, see J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (Cambridge University Press, 2005) vol II, part 2, 3452, para 955. See generally O’Keefe, ‘Protection of Cultural Property’ (n 24) 440–1; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), para 162. 64 The first four obligations apply more broadly in relation to all historical monuments, works of art, and the like. 65 See Section 3.2.1. 66 For the few rules specific to belligerent occupation, see Section 4.1.6. 67 It may be that the cultural property is under the territorial or physical control of an opposing party to the conflict. Alternatively, it may be that the cultural property is under the territorial or physical con trol of no party to the conflict. 68 The customary definition of the term ‘attack’ as used in international humanitarian law comports with art 49(1) AP I, which defines ‘attacks’ as ‘acts of violence against the adversary, whether in offence or defence’. The rules governing attacks relate to where persons or objects against which armed violence is directed—for example, by way of aerial or artillery bombardment or machine-gun fire—are not under

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54 Roger O’Keefe obtaining a similar military advantage.69 A military objective is 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 neutralization, in the circumstances ruling at the time, offers a definite military advantage.70 In the overwhelming majority of cases cultural property will not constitute a military objective.71 But there are rare circumstances in which it may. Historic fortresses, barracks, arsenals, and the like could be considered by their nature to make an effective contribution to military action. That said, when decommissioned or used for purely ceremonial purposes they are better characterized as historic monuments, and when still in service they are better seen as contributing to military action, if at all, through their use. Next, historic bridges, railways stations, docks, and other forms of civil infrastructure could conceivably make an effective contribution to military action via their purpose, defined as ‘the future intended use of an object’.72 Today, however, one might expect more modern transport links to bear most if not all of the military burden. The location of cultural property— that is, its position on the battlefield in relation to the positions of the opposing parties— could make an effective contribution to military action, for example by obstructing a the territorial or physical control of the party directing the violence. See e.g. Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04–01/07–717, Pre-Trial Chamber, Decision on Confirmation of Charges, 30 September 2008, paras 266–9; Prosecutor v Bosco Ntaganda, ICC-01/04–02/06–309, Pre-Trial Chamber, Decision on Confirmation of Charges, 9 June 2014, para 45. See also O’Keefe et al., Protection of Cultural Property: Military Manual (n 5) para 86; R. O’Keefe, ‘Cultural Property Protection and the Law of War Crimes’ (2017) 38 NATO Legal Gazette 40 at 45; W. Schabas, ‘Al Mahdi Has Been Convicted of a Crime He Did Not Commit’ (2017) 49 Case Western Reserve Journal of International Law 75 at 76–93 and 101–102. But compare Prosecutor v Al-Mahdi, ICC-01/12–01/15–171, Trial Chamber, Judgment and Sentence, 27 September 2016, paras 11–12 and 15–16. 69 See art 4(1) and (2) 1954 Hague Convention (in the light of subsequent customary international law), arts 1(f) and 6(a) Second Protocol, the ‘without prejudice’ clauses of art 53 AP I and art 16 AP II, and customary international law. Consider also art 8(2)(b)(ix) and (e)(iv) Rome Statute. See generally O’Keefe, The Protection of Cultural Property (n 3) 121–3, 126–30, 204–9, 215–18, 230–2, 251–6, and 318–26; O’Keefe, ‘Protection of Cultural Property’ (n 24) 434–8; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 85–94. The prohibition on directing attacks against cultural property is complemented by the precautions in attack mandated by art 7(a) and (d)(i) Second Protocol and art 57(2)(a)(i) and (b) AP I, which accord with customary international law in at least international armed conflict. See generally O’Keefe, The Protection of Cultural Property (n 3) 206–7, 257, and 329–31; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 95–101, highlighting best practice. 70 The customary definition of a military objective accords with that in art 52(2) AP I, as reproduced in art 1(f) Second Protocol: see e.g. Prosecutor v Kordić and Čerkez, Appeals Chamber, Judgment, IT-95– 14/2-A, 17 December 2004, paras 52–4 and 59; Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 & 26 (Eritrea/Ethiopia), Partial Award (2005) 135 ILR 565 at 608, para 113; Henckaerts and Doswald-Beck, Customary International Humanitarian Law (n 63) vol I, 29, rule 8. 71 It is on this account that parties to the conflict are absolutely prohibited from attacking means of transport engaged exclusively in the transfer of movable cultural property: see art 12(3) 1954 Hague Convention and customary international law. For the intentional destruction of cultural heritage more broadly, see Chapter 5 in this Handbook. 72 Western Front, Aerial Bombardment and Related Claims at 611, para 120, endorsing UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press 2004) 56, para 5.4.4, in turn endorsing Sandoz et al., Commentary on the Additional Protocols (n 51), 636, para 2022 (‘intended future use’).

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Cultural Heritage and International Humanitarian Law 55 line of sight or fire. But at least where a party has deliberately positioned itself so as to take advantage of the obstruction, the contribution to military action is better characterized as a function of the passive or de facto use of the cultural property. Ultimately, it is in practice chiefly by its use that cultural property might conceivably make an effective contribution to military action.73 Even then, the property will not constitute a military objective unless at the time its total or partial destruction, capture, or neutralization offers the attacking party a definite military advantage; and where the property does constitute a military objective, its attack will be lawful only if no feasible alternative for obtaining a similar military advantage exists.74 Secondly, it is prohibited to direct an attack against a military objective, such as a tank, a military headquarters, or a munitions factory, if this cannot be done without inflicting on cultural property damage which would be excessive in relation to the con crete and direct military advantage anticipated.75 The test is one of proportionality,76 even if the word is not used. Although the assessment called for is not an exact science, it must be made in good faith. In its application to cultural property, proportionality implicates qualitative as much as quantitative factors. The extent of incidental loss likely to be occasioned by damage to or destruction of such property is a question not just of square or cubic metres but also of the cultural value represented thereby. In this light, it is significant that cultural property within the meaning of the 1954 Hague Convention is by definition of great importance to the cultural heritage of the people of the State in whose territory it is situated and that the preamble to the Convention declares that damage to cultural property belonging to any people whatsoever means damage to the 73 See e.g. the finding, not challenged on appeal, in Prosecutor v Jadranko Prlić et al., Trial Chamber, Judgment, IT-04-74-T, 29 May 2013, vol 3, para 1582 that, on account of its use by the adversary for reinforcement and resupply, the Old Bridge at Mostar constituted a military objective at the time of the attack which destroyed it. 74 In the rare event that cultural property constitutes a military objective and there is no feasible alter native for obtaining a similar military advantage to that offered by attacking it, two further obligations apply, as a matter strictly of treaty law, where a party to the conflict is bound by the Second Protocol. Art 6(c) Second Protocol requires that any decision to attack the property be taken, unless circumstances do not permit, by an officer commanding a force equivalent in size to at least a battalion, while art 6(d) Second Protocol requires that any such attack be preceded, whenever circumstances permit, by an eff ective warning. 75 See art 7(c) and (d)(ii) Second Protocol, arts 51(4) and (5)(b) and 57(2)(a)(iii) and (b) AP I, and customary international law. Consider also art 8(2)(b)(iv) Rome Statute. See generally O’Keefe, The Protection of Cultural Property (n 3) 131–2, 218–19, 257–9, and 327–9; O’Keefe, ‘Protection of Cultural Property’ (n 24) 438–9; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 112–15. See also US Department of Defense, ‘Report to Congress on the Conduct of the Persian Gulf War— Appendix on the Role of the Law of War’ (1992) 31 ILM 612 at 626; E.-C. Gillard, ‘Proportionality in the Conduct of Hostilities. The Incidental Harm Side of the Assessment’, Chatham House Research Paper (Royal Institute of International Affairs, 2018), paras 71, 142–7, and 152. The prohibition on directing attacks liable to cause disproportionate incidental (or ‘collateral’) damage to cultural property is comple mented by the precautions in attack mandated by art 7(b) and (d)(ii) Second Protocol and art 57(2)(a)(ii) and (b) AP I, which accord with customary international law in at least international armed conflict. See generally O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 116–24, highlighting best practice. 76 Prosecutor v Stanlislav Galić, Appeals Chamber, Judgment, IT-98-29-A, 30 November 2006, para 190.

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56 Roger O’Keefe cultural heritage of all mankind.77 Only the anticipation of very considerable concrete and direct military advantage, in cases overwhelming, will in practice justify an attack likely to cause significant incidental damage to cultural property.

4.1.2 Destruction of or Damage to Cultural Property under Own Control Wilful destruction or damage by a party to the conflict of or to cultural property under its own control is prohibited unless military necessity imperatively requires it.78 To be lawful, any such destruction or damage must offer a definite military advantage, and no feasible alternative for obtaining a similar military advantage must exist. In practice, military necessity will only very rarely, if ever, justify a party in destroying or damaging cultural property under its control.79 In those circumstances where it may, the extent of the destruction or damage must not exceed the measure of military necessity.80

4.1.3 Use of Cultural Property or Its Immediate Surroundings It is prohibited in armed conflict to make any use of cultural property or its immediate surroundings which is likely to expose the property to destruction or damage unless military necessity imperatively requires it, meaning that the use offers a definite military advantage and no feasible alternative for obtaining a similar military advantage exists.81 The qualified prohibition goes beyond the active use of cultural property or its immediate surroundings for hostile purposes to embrace any passive or de facto use likely to draw fire on the property. Examples include the deliberate interposition of cultural property in the line of fire, for instance by retreating to a position obscured from the opposing 77 See Sections 1 and 3.1.1. Both points are all the more telling in the case of cultural property under the regime of enhanced protection provided for in Chap 3 Second Protocol, which is by definition ‘cultural heritage of the greatest importance for humanity’, in the words of art 10(a) Second Protocol. 78 See art 4(1) and (2) 1954 Hague Convention, arts 23(g) and 56 1907 Hague Regulations, art 53 Geneva Convention IV, and customary international law. Consider also art 8(2)(b)(xiii) and (e)(xii) Rome Statute. See generally O’Keefe, The Protection of Cultural Property (n 3), 23, 31–2, 130–1, 215–18, 230–2, and 331–4; O’Keefe, ‘Protection of Cultural Property’ (n 24) 439–40 and 452–3; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 125–7 and 179–81. 79 For the intentional destruction of cultural heritage more broadly, see Chapter 5 in this Handbook. 80 See e.g. Hess v Commander of IDF Forces in the West Bank (2004) 58(3) PD 443. In the rare event that imperative military necessity justifies destroying or damaging cultural property, art 6(c) Second Protocol requires that any decision to this effect by a party to the conflict bound by the Second Protocol be taken, unless circumstances do not permit, by an officer commanding a force equivalent in size to at least a battalion. 81 See art 4(1) and (2) 1954 Hague Convention, art 6(b) Second Protocol, the ‘without prejudice’ clauses of art 53 AP I and art 16 AP II, and customary international law. See generally O’Keefe, The Protection of Cultural Property (n 3) 120–6, 215–18, 230–2, 256–7, and 334–5; O’Keefe, ‘Protection of Cultural Property’ (n 24) 441–2 and 452–3; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 130–7 and 182–4, highlighting best practice. In the rare event that imperative military neces sity justifies using cultural property or its immediate surroundings for purposes likely to expose the property to destruction or damage, art 6(c) Second Protocol requires that any decision to this effect by a party to the conflict bound by the Second Protocol be taken, unless circumstances do not permit, by an officer commanding a force equivalent in size to at least a battalion.

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Cultural Heritage and International Humanitarian Law 57 party’s view by a monument, and the effective incorporation of such property into a defensive line.82 Nor is it only use in combat that the rule prohibits. If it is foreseeable that the use of cultural property as a field headquarters or barracks, for example, will expose it to attack, such use is forbidden unless military necessity imperatively requires it. Nor, indeed, need any use expose the property to attack for it to fall foul of the rule. The qualified prohibition is on any use of cultural property or its immediate surroundings during armed conflict which is likely to expose the property to destruction or damage, with the consequence that the foreseeability of more than de minimis deterioration in the state of preservation of cultural property is enough to render such use prima facie impermissible. So, for example, the likelihood of damage to fragile archaeological strata and objects from vibration, pressure of weight, backdraft, rotor wash, downdraft, scorching, and so on renders unlawful, in the absence of imperative military necessity, the use of any area within or adjacent to the perimeter of an archaeological site as an air strip or helicopter pad, the deployment within or adjacent to that perimeter of heavy vehicles, such as mobile missile-launchers or fuel tankers, the positioning within or adjacent to that perimeter of heavy containers, or the detonation within or adjacent to that perimeter of captured ordnance. A fortiori, it renders unlawful, within or adjacent to that perimeter, any earthworks, such as the levelling of ground for an airstrip, the dig ging of trenches, latrines or pits for storage tanks or generators, or the filling of sandbags or ‘hescos’. The prohibition, absent imperative military necessity, on the use in armed conflict of the immediate surroundings of cultural property for purposes likely to expose the property to destruction or damage also has implications for any potentially damaging use of the waters above and seabed around underwater cultural heritage.83 The posting in armed conflict of armed guards on or near cultural property for the purpose of its protection does not constitute use of the property or its immediate sur roundings for purposes likely to expose the property to destruction or damage.84

4.1.4 Dangers to Cultural Property Resulting from Military Operations Parties to the conflict are obliged to take all feasible precautions to protect cultural property under their control against the dangers resulting from military operations.85 To the 82 See e.g. the German ‘Gustav line’ around the abbey at Monte Cassino during World War II. 83 See O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), para 134. See also Chapter 14 in this Handbook. 84 Although art 8(4) 1954 Hague Convention makes the point only in relation to cultural property under special protection, the principle is a general one. 85 See art 8 Second Protocol, art 58(c) AP I, and customary international law. See also O’Keefe, The Protection of Cultural Property (n 3), 206–7 and 259; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 142–4. Unlike the peacetime obligation of safeguarding of cultural property provided for in art 3 1954 Hague Convention and elaborated on in art 5 Second Protocol (see Section 4.2.1), the obligation on a party to the conflict to take all feasible precautions to protect cultural property under its control against the dangers resulting from military operations is confined neither to cultural property within a State’s own territory, in the case of international armed conflict, nor, in the case of non-international conflict, to the government side.

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58 Roger O’Keefe maximum extent feasible, they must remove cultural property from the vicinity of military objectives or provide for its adequate in situ protection,86 and they must avoid locating military objectives near cultural property.87 What is to be considered feasible will vary with the urgency of the military situation and with logistical capacity. Whether a military objective is ‘near’ cultural property is a question of reasonable appreciation. The answer will depend in part on the weaponry that one might expect an opposing party to deploy against the objective.

4.1.5 Misappropriation and Vandalism of Cultural Property All forms of theft, pillage, or other misappropriation and of vandalism of cultural property by parties to the conflict are prohibited.88 The prohibition is absolute. No claim of military necessity can legally justify conduct of this sort by any party to the conflict. Additionally, parties to the conflict are obliged in territory held by them89 to prohibit, to prevent, and, if necessary, to put a stop to all forms of theft, pillage, or other misappro priation and of vandalism of cultural property by others,90 meaning in practice by the local populace or organized criminal groups. The obligations to prevent and to put a 86 See art 8(a) Second Protocol, art 58(a) and (c) AP I, and customary international law. Consider also UN Security Council Res 2347 (2017), 24 March 2017, para 16. See generally O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 145–9, highlighting best practice. The transport of cul tural property abroad for safekeeping is envisaged in arts 12 and 13 1954 Hague Convention, art 18 Regs, and para 5 First Protocol. See also in this connection art 12 Federal Law No 520.3 of 20 June 2014 on the Protection of Cultural property in the Event of Armed Conflict, Natural Disaster or Emergency (Switzerland); Protect and Preserve International Cultural Heritage Act 2016 (USA); art 56 Law No 2016–925 of 7 July 2016 on Creative Freedom, Architecture and Heritage (France); s 28 Cultural Property (Armed Conflicts) Act 2017 (UK). 87 See art 8(b) Second Protocol, art 58(c) AP I, and customary international law. See also O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 150–1. The rule overlaps to a degree with the prohibition, unless military necessity imperatively requires otherwise, on any use of the immediate surroundings of cultural property which is likely to expose the property to destruction or damage. 88 See art 4(3) 1954 Hague Convention, arts 23(g), 28, 47, and 56 1907 Hague Regulations, art 33 Geneva Convention IV, and customary international law. Consider also art 8(2)(b)(xiii) and (xvi) and (e)(v) and (xii) Rome Statute. For the same a fortiori reasoning as used to read a prohibition into art 4(3) 1954 Hague Convention, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, ICJ Rep 2007, 43 (here after ‘Application of the Genocide Convention’) at 112, para 166. See generally O’Keefe, The Protection of Cultural Property (n 3) 23, 30, 31, 33, 132–4, and 336–8; O’Keefe, ‘Protection of Cultural Property’ (n 24) 443 and 453; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 152–6 and 185–6. See also Chapter 10 in this Handbook. Parties to an international armed conflict are also prohibited from requisitioning cultural property in the territory of an opposing party and from seizing, placing in prize, or capturing cultural property being transferred to safety: see arts 4(3) and 14(1)(a) 1954 Hague Convention and customary international law. On the prohibition on placing in prize, see also The Marquis de Somerueles, Stewart’s Vice-Admiralty Reports (Nova Scotia) 482 (1813). 89 The obligation is not limited to belligerent occupation. It applies, in the context of international armed conflict, equally with respect to territory under the unconsolidated control of another State’s armed forces, and it applies during non-international armed conflict, including with respect to territory under the control of a non-State armed group. 90 See art 4(3) 1954 Hague Convention and customary international law. See generally O’Keefe, ‘Protection of Cultural Property’ (n 24) 443 and 453; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 157–61 and 187–94, highlighting best practice. See also Chapter 10 in this Handbook.

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Cultural Heritage and International Humanitarian Law 59 stop to the commission of such acts by others are obligations of due diligence, by which is meant that a party to the conflict must take all necessary and reasonable measures within its power to these ends. The obligation to prohibit, in contrast, is strict.

4.1.6 Measures Specific to Cultural Property in Occupied Territory The most fundamental obligations governing the conduct of belligerent occupation are that the occupying power must respect, unless absolutely prevented, the laws in force in the occupied territory and must take all measures within its power to restore and to ensure, as far as possible, public order and civil life.91 These obligations have implica tions for cultural property situated in the occupied territory, including in the territory’s internal waters and, where the occupying power exercises the requisite control, its terri torial sea.92 The first obligation means that the occupying power must, unless absolutely prevented from doing so, leave in place and abide by any laws in force in the territory for the protection and preservation of immovable or movable cultural property, including by allowing the competent authorities to exercise their powers under such laws. The second obligation means that the occupying power must ensure, as far as possible, that any such laws are adequately enforced, whether by the competent authorities and local police and courts or, failing this, by the occupying power itself.93 Going beyond these basic obligations, the occupying power must as far as possible support the competent authorities in safeguarding and preserving cultural property situated in the occupied territory.94 Where it proves necessary to take measures to preserve cultural property damaged by military operations and the competent authorities are unable to take such measures, the occupying power must as far as possible, and in close cooperation with the competent authorities, take the most necessary measures of preservation.95 91 See art 43 1907 Hague Regulations and customary international law. See also Wall (n 27) at 172, para 89, and Armed Activities (n 27) at 231, para 178. 92 See generally O’Keefe, The Protection of Cultural Property (n 3) 32–3, 83–6, 135, and 340–3; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 170–5. See also Chapter 14 in this Handbook. The second of the customary obligations reflected in art 43 1907 Hague Regulations requires the occupying power to ensure, inter alia and as far as possible, that the competent authorities of the occupied territory respect any international human rights obligations by which the displaced power may be bound: see Armed Activities (n 27) at 231, para 178. This will include any international human rights obligations with implications for tangible or intangible cultural heritage, for which see Chapter 18 in this Handbook. 93 See e.g. Candu v Minister of Defence (1989) 43(1) PD 738, especially at 742; Shikhrur v Military Commander of the Judea and Samaria Region (1990) 44(2) PD 233 at 234–235; Hess v Commander of IDF Forces in the West Bank (2004) 58(3) PD 443, para 17. Consider also the factual background to Ruidi and Maches v Military Court of Hebron (1970) 24(2) PD 419, involving the enforcement by the Israeli occupa tion authorities in the occupied West Bank of the export licence requirement of the Jordanian Antiquities Law (No 51) of 1966. 94 See art 5(1) 1954 Hague Convention and customary international law. See generally O’Keefe, The Protection of Cultural Property (n 3) 135–40; O’Keefe, ‘Protection of Cultural Property’ (n 24) 453–4; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 195–9, highlighting best practice. 95 See art 5(2) 1954 Hague Convention and customary international law. See generally O’Keefe, The Protection of Cultural Property (n 3), 137–8; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), para 200.

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60 Roger O’Keefe Finally, the occupying power must prohibit and prevent in relation to the occupied territory any illicit export, other removal, or transfer of ownership of cultural property.96 A fortiori, the occupying power is prohibited from engaging in any such acts itself.97 By ‘illicit’ is meant contrary to the law in force in the occupied territory or to international law or otherwise under compulsion.98 The obligation to prevent any illicit export, other removal, or transfer of ownership of cultural property is an obligation of due diligence, meaning that the occupying power must take all necessary and reasonable measures within its power to these ends. The obligation to prohibit such acts is strict.

4.2 The 1954 Hague Convention Only Further substantive obligations for the protection of tangible cultural heritage in armed conflict bind only States Parties to the 1954 Hague Convention, in relation to cultural property within the meaning of the Convention.99

4.2.1 Safeguarding of Cultural Property States Parties to the 1954 Hague Convention must prepare in peacetime, by taking such measures as they consider appropriate, for the safeguarding of cultural property in their territory against the foreseeable effects of armed conflict.100 Measures of this sort may101 include 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 its adequate in situ protection, and the designation of civilian authorities responsible for the safeguarding of cultural property.102 A State Party is not 96 See para 1 First Protocol (extending on its face to all export, illicit or not), art 9(1)(a) Second Protocol, and customary international law. Consider also arts 2(2) and 11 1970 UNESCO Convention. See generally O’Keefe, The Protection of Cultural Property (n 3) 259–61; O’Keefe, ‘Protection of Cultural Property’ (n 24) 454–5; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 203–5, highlighting best practice. See also Chapter 11 in this Handbook. 97 For the same a fortiori reasoning as used to read a prohibition into art 9(1)(a) Second Protocol, see Application of the Genocide Convention (n 88) at 112, para 166. 98 See e.g. art 1( g) Second Protocol. Consider also arts 3 and 11 1970 UNESCO Convention. 99 Recall Section 3.2.1. 100 See art 3 1954 Hague Convention. As made clear in art 4(5) 1954 Hague Convention, a party to the conflict is not relieved of its obligations of respect for cultural property by reason of the fact that an opposing State Party has not undertaken measures of safeguard in accordance with art 3 1954 Hague Convention. See generally O’Keefe, The Protection of Cultural Property (n 3) 111–16 and 249–51; O’Keefe, ‘Protection of Cultural Property’ (n 24) 450–2. See also N. J. McCamley, Saving Britain’s Art Treasures (Leo Cooper 2003); O’Keefe, The Protection of Cultural Property (n 3) 86–7; D. G. Youkhanna and M. Gibson, ‘Preparations at the Iraq Museum in the Lead-Up to War’ in L. Rothfield (ed), Antiquities under Siege: Cultural Heritage Protection after the Iraq War (Altamira Press 2008) 27. 101 Where States Parties to the 1954 Hague Convention are also parties to its Second Protocol, art 5 Second Protocol provides that such measures ‘shall’ include, ‘as appropriate’, the examples given in the text. 102 See art 5 Second Protocol, adding nothing of substance to art 3 1954 Hague Convention, on which it represents no more than a gloss. See also Guidelines, paras 27–9. Consider too Resolution II of the Final Act of the Intergovernmental Conference on the Protection of Cultural Property in Armed

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Cultural Heritage and International Humanitarian Law 61 obliged to undertake equally rigorous preparations in relation to each item of cultural property in its territory but instead may prioritize its resources as it sees fit.

4.2.2 Services or Specialist Personnel within Armed Forces States parties to the 1954 Hague Convention must plan or establish in peacetime within their armed forces services or specialist personnel tasked with securing respect for cul tural property in the event of armed conflict and with cooperating with the civilian authorities responsible for safeguarding it.103 Such services need not be permanently constituted, provided that a State Party plans in peacetime for their establishment in the event of armed conflict. Nor need any specialist members of the armed forces be full-time military professionals104 or belong to the army, navy, or air force.105

4.2.3 Respect for Personnel Engaged in the Protection of Cultural Property During an international armed conflict between States Parties to the Convention, which includes the belligerent occupation of one State Party’s territory by another, personnel engaged on behalf of the opposing party in the protection of cultural property must, as far as is consistent with the interests of security, be respected.106 This means that such personnel may not be made the object of attack, unless and for as long as they take direct

Conflict, Records of the Conference convened by the United Nations Educational, Scientific and Educational Organisation held at The Hague from 21 April to 14 May 1954 (Staatsdrukkerij-en uitgeverijbedrijf 1961) 78. 103 See art 7(2) 1954 Hague Convention. The civilian authorities in question include the competent authorities in occupied territory. See generally O’Keefe, The Protection of Cultural Property (n 3) 41, 77–80, and 119–120; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 66–70, highlighting best practice; M. Olbryś, ‘The Polish Contribution to Protection of the Archaeological Heritage in Central South Iraq, November 2003 to April 2005’ (2006) 8 Conservation and Management of Archaeological Sites 88; L. Rush, ‘Dealing the Heritage Hand: Establishing a United States Department of Defense Cultural Property Protection Program for Global Operations’ in L. Rush (ed), Archaeology, Cultural Property, and the Military (Boydell Press 2010) 86; F. Schipper et al., ‘Cultural Property Protection in the Event of Armed Conflict—Austrian Experiences’ in L. Rush (ed), Archaeology, Cultural Property, and the Military (Boydell Press 2010) 145; S. Zellmeyer, ‘The Role of the Swiss Armed Forces in the Protection of Cultural Property’ in L. Rush (ed), Archaeology, Cultural Property, and the Military (Boydell Press 2010) 158. 104 A State Party may prefer to assign the role to reservists or to persons enlisting on the outbreak of armed conflict, especially where such personnel are archaeologists or other relevant cultural heritage professionals in civilian life. 105 Consider e.g. the Carabinieri Tutela Patrimonio Culturale, the specialized cultural heritage protec tion unit within the Arma dei Carabinieri, Italy’s militarized police force, which is considered a branch of the armed forces. See Carabinieri Unit for the Protection and Safeguarding of Italian Cultural Heritage, ‘Italian Carabinieri and the Protection of Iraq’s Cultural Heritage’ in L. Rothfield (ed), Antiquities under Siege: Cultural Heritage Protection after the Iraq War (Altamira Press 2008) 135; P. Foradori, ‘Protecting Cultural Heritage During Armed Conflict: The Italian Contribution to “Cultural Peacekeeping” ’ (2017) 22 Modern Italy 1. 106 See art 15 1954 Hague Convention. See also O’Keefe, ‘Protection of Cultural Property’ (n 24) 457–8; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), para 225.

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62 Roger O’Keefe part in hostilities.107 It also means that, should they fall into the hands of the opposing party, they may not be detained, unless the interests of security compel this, and must under no circumstances be mistreated.108 Where both they and the cultural property for which they are responsible fall into the hands of the opposing party, such personnel must be allowed to continue to carry out their duties.109

4.3 The Second Protocol to the 1954 Hague Convention Only A third set of substantive obligations for the protection of tangible cultural heritage in armed conflict applies only as between or, depending on the obligation, in noninternational armed conflicts in the territory of those States Parties to the 1954 Hague Convention which are also parties to its Second Protocol. Some of these obligations apply in relation to all cultural property within the meaning of the Convention and the Second Protocol,110 while others apply only in relation to the select list of cultural property protected under the Second Protocol’s regime of ‘enhanced’ protection.111

4.3.1 Archaeological Excavations in Occupied Territory A State Party to the Second Protocol in occupation of the whole or part of the territory of another State Party must prohibit and prevent any archaeological excavation in the occupied territory (including in its internal waters and, where the requisite control is exercised, its territorial sea), save where this is strictly required to safeguard, record, or preserve cultural property.112 A fortiori, the occupying State Party is itself prohibited

107 In the case of civilian personnel engaged in the protection of cultural property, this prohibition overlaps with the general prohibition on making individual civilians the object of attack unless and for such time as they take direct part in hostilities: see art 51(2) and (3) AP I and art 13(2) and (3) AP II, as consonant with customary international law. 108 In relation to both civilian and military personnel engaged in the protection of cultural property, the prohibition on mistreatment overlaps with the general prohibitions on mistreatment of civilians and military personnel who fall into the hands of an opposing party: see, as consonant with customary inter national law, arts 3(1) and 27 Geneva Convention IV; arts 3(1) and 13 Convention relative to the Treatment of Prisoners of War (opened for signature 12 August 1949, entered into force 21 October 1950) 75 UNTS 135; art 75 AP I. 109 See art 15 1954 Hague Convention. 110 In addition to the substantive obligations outlined in Sections 4.3.1–4.3.3, recall from nn 74, 80, and 81 the procedural obligations with respect to the level of command at which a party to an armed conflict to which the Second Protocol applies takes any decision to attack cultural property or to use it or its immediate surroundings for any purpose likely to expose it to destruction or damage. 111 Recall Section 3.2.1. 112 See art 9(1)(b) Second Protocol. Consider too art 32 Recommendation on the International Principles Applicable to Archaeological Excavations, Paris, 5 December 1956, Records of the General Conference, Ninth Session, New Delhi 1956: Resolutions (UNESCO 1957) 40. See generally O’Keefe, The Protection of Cultural Property (n 3) 138–9 and 261–3; O’Keefe, ‘Protection of Cultural Property’ (n 24) 455–6; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 206–9. See also Chapters 10 and 14 in this Handbook.

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Cultural Heritage and International Humanitarian Law 63 from engaging in archaeological excavations in the territory.113 These obligations are not confined to illicit archaeological excavations114 but extend, by way of precaution, to digs authorized by the competent authorities of the occupied territory. Whereas the obligation to prohibit archaeological excavations is strict, the obligation to prevent them is an obligation of due diligence, meaning that the occupying State Party must take all necessary and reasonable measures within its power to this end. In the event that any archaeological excavation is strictly required to safeguard, record, or preserve cultural property, it must, unless circumstances do not permit, be carried out in close cooperation with the competent authorities.115

4.3.2 Alteration to or Change of Use of Cultural Property in Occupied Territory A State Party to the Second Protocol in occupation of the whole or part of the territory of another State Party must prohibit and prevent any alteration to or change of use of cul tural property in the occupied territory (including in its internal waters and, where the requisite control is exercised, its territorial sea) which is intended to conceal or destroy cultural, historical, or scientific evidence.116 A fortiori, the occupying State Party is itself prohibited from engaging in such acts.117 Alteration of cultural property involves changes to the fabric of the object, structure, or site. Whereas the obligation to prohibit specified alterations to and changes of use of cultural property is strict, the obligation to prevent the same is an obligation of due diligence, meaning that the occupying State Party must take all necessary and reasonable measures within its power to these ends. Where any alteration to or change of use of cultural property is not intended to conceal or destroy cultural, historical, or scientific evidence, it must, unless circumstances do not permit, be carried out in close cooperation with the competent authorities.118

4.3.3 Immunity of Cultural Property under Enhanced Protection Parties to an armed conflict, international or non-international, to which the Second Protocol applies owe stricter obligations of respect for cultural property under enhanced protection than for other cultural property protected under the Convention and Second Protocol. The upshot of these special, more demanding obligations is what the Second Protocol refers to, with a degree of overstatement, as the ‘immunity’ of cultural property under enhanced protection.119 This immunity of cultural property 113 For the same a fortiori reasoning as used to read a prohibition into art 9(1)(b) Second Protocol, see Application of the Genocide Convention (n 88) at 112, para 166. 114 As it is, these will in practice fall within the rules on all forms of theft, pillage, or misappropriation and of vandalism of cultural property (see Section 4.1.5). 115 See art 9(2) Second Protocol. 116 See art 9(1)(c) Second Protocol. See generally O’Keefe, The Protection of Cultural Property (n 3) 262–3; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 210–12. 117 For the same a fortiori reasoning as used to read a prohibition into art 9(1)(c) Second Protocol, see Application of the Genocide Convention (n 88) at 112, para 166. 118 See art 9(2) Second Protocol. 119 See art 12 Second Protocol.

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64 Roger O’Keefe under enhanced p rotection differs from the protection afforded by the Convention and Second Protocol to all other cultural property in three ways.120 First, parties to an armed conflict to which the Second Protocol applies are prohibited from attacking cultural property under enhanced protection unless by its use, and its use alone, it becomes a military objective; unless the attack is the only feasible means of terminating this use; and unless all feasible precautions are taken in the choice of means and methods of attack with a view to terminating the use and avoiding or, failing this, minimizing damage to the cultural property.121 Next, all acts of hostility against cultural property under enhanced protection other than attacks are absolutely prohibited.122 In other words, all wilful destruction of or damage to cultural property under a party to the conflict’s own control is forbidden, with no allowance made for military necessity. Thirdly and similarly, parties to the conflict are absolutely prohibited from using cultural property under enhanced protection or its immediate surroundings in support of military action,123 military necessity again providing no justification for relaxation of the stricture.

4.4 1977 Additional Protocols I and II Only In the rare event that a State is party to 1977 Additional Protocol I, 1977 Additional Protocol II, or both but not to the 1954 Hague Convention and, a fortiori, not to its Second Protocol, the obligations it owes, in international and non-international armed conflict respectively, as regards cultural property falling within article 53 of Additional Protocol I and article 16 of Additional Protocol II are in three respects more demanding, paradoxically, than if it were party to the specialist Hague regime.124 First, States Parties to Additional Protocols I and II on their own are prohibited from attacking cultural property unless by its use, and its use alone, the property becomes a military objective.125 120 See generally O’Keefe, The Protection of Cultural Property (n 3) 271–4; O’Keefe, ‘Protection of Cultural Property’ (n 24) 448–50; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 106–10, 129, and 139–41. Recall (n 42) that, apart from these special obligations of respect, the obli gations owed by a State Party to the Second Protocol in relation to cultural property under enhanced protection are the same as those owed in relation to any other cultural property within the meaning of the Convention and Second Protocol. 121 See arts 12 and 13(1)(b) and (2)(a) and (b) Second Protocol. In addition, except where the requirements of immediate self-defence do not permit, the attack must be ordered at the highest operational level of command, the attacking party must notify the opposing forces of its intention to attack the property unless the latter terminate their use of the property to military ends, and the attacking party must give the opposing forces a reasonable period of time in which to terminate this use: see art 13(2)(c) Second Protocol. 122 See art 12 Second Protocol, read in the light of the wording of art 4(1) 1954 Hague Convention (‘any act of hostility directed against’). In other words, all wilful destruction of or damage to cultural property under a party to the conflict’s own control is prohibited, even where military necessity might be said imperatively to require it. 123 Art 12 Second Protocol. 124 See generally O’Keefe, The Protection of Cultural Property (n 3) 215–18; O’Keefe, ‘Protection of Cultural Property’ (n 24) 434–5, 437, 440, and 442. 125 See art 53(a) AP I in combination with art 52(2) AP I and art 16 AP II in combination with custom ary international law.

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Cultural Heritage and International Humanitarian Law 65 Secondly, they are absolutely prohibited from engaging in any act of hostility against cultural property other than an attack.126 Finally, they are absolutely prohibited from using cultural property in support of the military effort.127 In other words, where a State is party to Additional Protocol I, Additional Protocol II, or both but not to the 1954 Hague Convention, the obligations it owes in respect of the cultural property covered by the Additional Protocols, which is equivalent to cultural property within the meaning of the 1954 Hague Convention,128 are in substance the same as those owed by States Parties to the Convention and Second Protocol in respect of cultural property under enhanced protection.129

5. Ancillary Rules International humanitarian law additionally embodies various rules ancillary to its substantive obligations for the protection of tangible cultural heritage in armed conflict which are designed to promote and facilitate the latter’s implementation and enforcement.

5.1 Distinctive Marking of Cultural Property To facilitate its recognition, States may, but are not obliged to, mark cultural property with the distinctive emblem of cultural property provided for in the 1954 Hague Convention.130 When used once, the distinctive emblem indicates the general level of protection afforded by the Convention and, in relevant cases, its two Protocols to all cultural property as defined in the Convention.131 During armed conflict, the misuse of the distinctive emblem132 and the use for any purpose whatsoever of a sign resembling the emblem133 are prohibited.

126 See art 53(a) AP I and art 16 AP II. 127 See art 53(b) AP I and art 16 AP II. 128 Recall Section 3.2.2. 129 Recall Section 4.3.3. 130 See arts 6 and 16 1954 Hague Convention and art 21 Regs. See also art 17(4) 1954 Hague Convention. See generally O’Keefe, The Protection of Cultural Property (n 3) 116–18; O’Keefe, ‘Protection of Cultural Property’ (n 24) 459–61; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 213–24. 131 See art 17(2)(a) 1954 Hague Convention. When used three times in an inverted triangular formation, the emblem designates, inter alia, immovable cultural property under special protection: see arts 16(2) and 17(1)(a) 1954 Hague Convention. In accordance with art 10 1954 Hague Convention, the distinctive marking of cultural property under special protection is obligatory during armed conflict. The Second Protocol to the 1954 Hague Convention provides for no distinctive emblem for cultural property under enhanced protection. By way, however, of Decision 6.SP 2 of 9 December 2015, the Sixth Meeting of the Parties to the Second Protocol endorsed amendments to the Guidelines in order to create such an emblem, to specify modalities for its optional use, and to encourage such use during armed conflict: see Guidelines, paras 94–113. 132 See art 17(3) 1954 Hague Convention and art 38(1) AP I (deliberate misuse). 133 See art 17(3) 1954 Hague Convention.

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66 Roger O’Keefe

5.2 Military Measures and Dissemination States parties to the 1954 Hague Convention must introduce in peacetime into their military regulations or instructions provisions designed to ensure observance of the Convention, while States Parties to the Second Protocol must, as appropriate, incorporate into their military regulations guidelines and instructions on the protection of cultural property in armed conflict.134 In a related vein, States Parties to the Convention must include the study of the Convention in their programmes of military and, if possible, relevant civilian training, while States Parties to the Second Protocol must, as appropriate, develop and implement, in cooperation with UNESCO and relevant governmental and non-governmental organizations, peacetime military and civilian training and educational programmes on the protection of cultural property in armed conflict.135 Finally but no less importantly, States Parties to the Convention must foster in the members of their armed forces a spirit of respect for the culture and cultural heritage of all peoples.136

5.3 Penal Measures States parties to the 1954 Hague Convention are obliged 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 . . . Convention’.137 It is unclear whether this obligation relates only to breaches of the Convention committed in international armed conflict or extends to breaches in non-international armed conflict as well.138 Pursuant to this obligation, States Parties are permitted but not required to assert universal jurisdiction over criminal breaches of the Convention committed or ordered to be committed by 134 See art 7(1) 1954 Hague Convention; art 30(3)(a) Second Protocol. See generally O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 56–9, highlighting best practice. Consider also arts 80 and 83 AP I. 135 See art 25 1954 Hague Convention; art 30(3)(b) Second Protocol. See generally O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 62–5, highlighting best practice. See also L. W. Rush, ‘The Importance of Training Cultural Property Protection—An Example from the U.S. Army’ (2017) 38 NATO Legal Gazette 80. 136 See art 7(1) 1954 Hague Convention. See generally O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 60–1, highlighting best practice. See also art 30(1) Second Protocol, in which States Parties undertake ‘to endeavour by appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect for cultural property by their entire population’. 137 See art 28 1954 Hague Convention. See generally O’Keefe, The Protection of Cultural Property (n 3) 188–92; O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (n 5) 359–64. See also Chapter 6 in this Handbook. 138 See O’Keefe, The Protection of Cultural Property (n 3) 192–3; O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (n 5) 360.

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Cultural Heritage and International Humanitarian Law 67 nationals of other States Parties.139 Although the obligation itself draws no distinction between the Convention’s core rules on respect for cultural property140 and its other rules, such as the requirement to support the competent authorities of occupied terri tory in safeguarding and preserving the territory’s cultural property, it would be consist ent with State practice as regards criminalization of other breaches of international humanitarian law for a State Party to reserve penal sanctions for wilful breaches of the former and to stipulate disciplinary sanctions for other breaches. The Second Protocol to the 1954 Hague Convention enumerates five war crimes, known collectively as ‘serious violations’ of the Second Protocol, in respect of which States Parties owe a suite of obligations of suppression through their own or another willing State Party’s criminal law and courts.141 The serious violations, which are capable of commission in international and non-international armed conflict alike and which must all be committed with intent, comprise making cultural property under the Second Protocol’s regime of enhanced protection the object of attack; using cultural property under enhanced protection or its immediate surroundings in support of military action; extensive destruction or appropriation of cultural property protected under the 1954 Hague Convention and Second Protocol; making cultural property protected under the Convention and Protocol the object of attack; and theft, pillage, or misappropriation of, or acts of vandalism directed against, cultural property protected under the Convention.142 In addition to the regime applicable to serious violations, the Second Protocol obliges States Parties to adopt such legislative, administrative, or disciplinary measures as may be necessary to suppress any use of cultural property in violation of the Convention or Second Protocol and any illicit export, other removal, or transfer of ownership of cultural property from occupied territory in violation of the Convention or Second Protocol.143 This would justify, but not require, legislative measures by a State Party to establish as criminal offences under its domestic law the violations referred to.

139 See also A. R. Carnegie, ‘Jurisdiction over Violations of the Laws and Customs of War’ (1963) 39 British Year Book of International Law 402 at 409; Y. Dinstein, ‘International Criminal Law’ (1985) 20 Israel Law Review 206 at 216. 140 These comprise the prohibitions in art 4(1)–(3) 1954 Hague Convention, namely the qualified pro hibition on acts of hostility, including attacks, against cultural property; the qualified prohibition on use of cultural property or its immediate surroundings for purposes likely to expose the property to destruc tion or damage; and the prohibition on any form of theft, pillage, or misappropriation or of vandalism of cultural property. 141 See arts 15–20 Second Protocol. See generally O’Keefe, The Protection of Cultural Property (n 3) 274–87; O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (n 5) 370–9. See also Chapter 6 in this Handbook. 142 See art 15(1)(a)–(e) Second Protocol respectively. The chapeau to art 15(1) Second Protocol requires that the acts be in violation of the Convention or Second Protocol. 143 See art 21(a) and (b) Second Protocol respectively. See generally O’Keefe, The Protection of Cultural Property (n 3) 287–8; O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (n 5) 380. The obligation in art 21 Second Protocol is stated to be without prejudice to art 28 1954 Hague Convention.

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68 Roger O’Keefe For its part, 1977 Additional Protocol I, applicable to international armed conflicts, defines as a grave breach of the Protocol, with the penal obligations for States Parties that this entails, certain intentional attacks on cultural property in breach of the Protocol.144

5.4 Cooperation and Assistance of States Parties In situations of serious violations of the Second Protocol to the 1954 Hague Convention, States Parties are obliged to act, jointly through the Committee for the Protection of Cultural Property in the Event of Armed Conflict145 or individually, in cooperation with UNESCO and the United Nations and in conformity with the Charter of the United Nations.146 The obligation to ‘act’ is intentionally unprescriptive, although the object and purpose of the Second Protocol leave no doubt that the action must be directed towards bringing the serious violations of the Second Protocol to an end. The requirement of conformity with the UN Charter makes it clear that such action may not contravene the prohibition on the unlawful use of force in article 2(4) of the Charter.147 States parties to the Second Protocol are further encouraged, but not obliged, to give technical assistance of all kinds, through the Committee for the Protection of Cultural Property in the Event of Armed Conflict, to those States Parties or other parties to an armed conflict to which the Second Protocol applies which request it, as well as through other multilateral means and bilaterally.148

6. The Institutional Framework The 1954 Hague Convention brings with it an institutional regime.149 The Convention and its Regulations provide for an elaborate international system of ‘control’, meaning implementation and compliance, in the event of an international armed conflict to which the Convention applies, although this cumbersome and impracticable set-up has 144 See art 85(4)(d) AP I. See generally O’Keefe, The Protection of Cultural Property (n 3) 224–9; O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (n 5) 365–70. See also Chapter 6 in this Handbook. 145 For the Committee, see Section 6. 146 See generally O’Keefe, The Protection of Cultural Property (n 3) 295. Consider also the non-binding paras 138–140 (‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’) of UN General Assembly Res 60/1, 16 September 2005, especially para 139; ‘Expert Meeting on the “Responsibility to Protect” as Applied to the Protection of Cultural Heritage in Armed Conflict (Paris, 26–7 November 2015): Final Report’ (2015) and ‘Expert Meeting on the “Responsibility to Protect” and the Protection of Cultural Heritage: Recommendations’ (2015); UN Security Council Res 2347 (2017), 24 March 2017, para 5. See too Chapter 7 in this Handbook. 147 Consider also UN Security Council Res 2347 (2017), 24 March 2017, para 5. 148 See arts 32(4) and 33(2) Second Protocol respectively. See also Guidelines, paras 142–51 and Annex III, Table 1. See generally O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 239–41. 149 See also Chapter 31 in this Handbook.

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Cultural Heritage and International Humanitarian Law 69 effectively fallen into desuetude.150 Of more practical relevance is the right of initiative in both international and non-international armed conflict granted to UNESCO.151 For their part, States Parties may seek technical assistance from UNESCO in organizing the protection of cultural property or in connection with any other problem arising out of the application of the Convention or its Regulations.152 In addition, they must submit to the Director-General of UNESCO periodic reports on their implementation of the Convention and its Regulations, in principle every four years.153 The Convention fur ther provides for meetings of the parties, which, while taking place only once prior to 1995, have now become a biennial fixture.154 Even if it has not abolished the Convention’s control regime, the Second Protocol to the 1954 Hague Convention creates a new institutional framework to facilitate and supervise inter partes the protection of cultural property in armed conflict.155 This framework comprises an intergovernmental Committee for the Protection of Cultural Property in the Event of Armed Conflict, whose tasks include the grant of enhanced protection to eligible cultural property via its inclusion on the List of Cultural Property under Enhanced Protection and the grant of international assistance to States Parties and other parties to a conflict;156 a centralized Fund for the Protection of Cultural Property in the Event of Armed Conflict;157 and a biennial Meeting of the Parties,158 to which the Committee reports on the implementation of the Protocol. UNESCO is again granted a right of initiative in both types of armed conflict,159 and the parties may seek technical assistance from it in organizing the protection of cultural property or in con nection with any other problem arising out of the application of the Second Protocol.160 Finally, States Parties to the Second Protocol are required to submit periodic reports

150 See art 20 1954 Hague Convention and Chap I Regs. See generally O’Keefe, The Protection of Cultural Property (n 3) 167–72. 151 See arts 23(2) and 19(3) 1954 Hague Convention respectively. See generally O’Keefe, The Protection of Cultural Property (n 3) 175–84. 152 See art 23(1) 1954 Hague Convention. See generally O’Keefe, The Protection of Cultural Property (n 3) 172–75; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 229–31. 153 See art 26(2) 1954 Hague Convention. 154 See art 27 1954 Hague Convention. 155 See Chap 6 Second Protocol. See also Chapter 31 in this Handbook. 156 See arts 24–7 and 32(1)–(3) Second Protocol. See also Guidelines, paras 122–41 and 155–72 and Annex III, Tables 1 and 2. See generally O’Keefe, The Protection of Cultural Property (n 3) 288–92 and 295–7; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5) paras 232–3. Consider too the relations between the Committee and non-governmental organizations—among them The Blue Shield (formerly ‘International Committee of the Blue Shield’), the International Centre for the Study of the Preservation and Restoration of Cultural Property (Rome Centre/ICCROM), and the International Committee of the Red Cross (ICRC)—envisaged in art 11(3) and especially art 27(3) Second Protocol. See also Chapter 32 in this Handbook. 157 See art 29 Second Protocol. See also Guidelines, paras 127–141 and 155–72 and Annex III, Tables 1 and 2. See generally O’Keefe, The Protection of Cultural Property (n 3) 292–93. 158 See art 23 Second Protocol. See generally O’Keefe, The Protection of Cultural Property (n 3) 293–4. 159 See art 33(3) Second Protocol. 160 See art 33(1) Second Protocol. See also Guidelines, paras 152–4 and 173 and Annex III, Tables 1 and 3. See generally O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 230–1.

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70 Roger O’Keefe on their implementation of the Protocol,161 although to the Committee, not to the Director-General of UNESCO as under the Convention. In addition, UNESCO enjoys a general constitutional mandate to assure ‘the conser vation and protection of the world’s inheritance of books, works of art and monuments of history and science’162 pursuant to which it actively takes measures, beyond the confines of the roles accorded it by the 1954 Hague Convention and its Second Protocol, to promote and facilitate the protection of tangible cultural heritage in armed conflict in accordance with the provisions and broader principles of international humanitarian law.163 For its part, the International Committee of the Red Cross (ICRC), the leading organization for the promotion of respect for international humanitarian law, also plays a role in facilitating implementation of and compliance with the international rules on the protection of tangible cultural heritage in armed conflict, including through its advisory status before the Committee for the Protection of Cultural Property in the Event of Armed Conflict.164 A memorandum of understanding concluded in 2016 between UNESCO and the ICRC recognizes that the ICRC ‘may assist in rescuing specific cultural property at imminent risk, for example by facilitating the evacuation of collections and/or providing supplies and equipment needed to undertake emergency safeguarding measures’.165

7. Enforcement The two main legal means of enforcing, in the event of their breach, the substantive obligations of international humanitarian law for the protection of tangible cultural 161 See art 37(2) Second Protocol. See also Guidelines, paras 117–21. 162 See art II(1)(c) Constitution of the United Nations Educational, Scientific and Cultural Organization (signed 16 November 1945, entered into force 4 November 1946) 4 UNTS 275. See also ‘Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict’, UNESCO Doc 38 C/49 (2 November 2015), adopted by the General Conference of UNESCO by way of resolution 38 C/Res.48, Records of the General Conference, 38th session, Paris, 3–18 November 2015. Volume 1: Resolutions (UNESCO 2016) 41; UN Security Council Res 2347 (2017), 24 March 2017, preamble (second and fifteenth recitals) and para 13. See too Chapter 31 in this Handbook. 163 See generally O’Keefe, The Protection of Cultural Property (n 3) 184–8. Consider in this light e.g. UNESCO’s #Unite4Heritage campaign, launched in 2015 in response to the deliberate destruction of cultural heritage in armed conflict by violent extremist groups. In connection with this campaign, see Italy–UNESCO Memorandum of Understanding on the Italian National ‘Taskforce in the framework of UNESCO’s Global Coalition Unite4Heritage’ (signed 16 February 2016). 164 See art 27(3) Second Protocol. See generally O’Keefe, The Protection of Cultural Property (n 3) 234; O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), paras 234–6. See also Chapter 32 in this Handbook. 165 See art 1(vi) UNESCO–ICRC Memorandum of Understanding (signed 29 February 2016). Such assistance must be at the request of UNESCO or a party to the conflict, must have the agreement of all parties to the conflict, and must be provided in close consultation with concerned local actors, including the competent national authorities.

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Cultural Heritage and International Humanitarian Law 71 eritage in armed conflict are State responsibility under international law and individual h criminal responsibility under international or national law.166

7.1 State Responsibility Some of the customary obligations of international humanitarian law for the protection of tangible cultural heritage in armed conflict have been enforced in the past by way of reparations provisions, both restitutionary and compensatory, in post-war treaties of peace. After World War I, the Treaty of Versailles compelled Germany to restore to France ‘works of art carried away from France by the German authorities in the course of the war of 1870–1871 and during this last war’, in accordance with a list prepared by the French government.167 Similar terms were imposed on Austria by the Treaty of St Germain, on Hungary by the Treaty of Trianon, and on Bulgaria by the Treaty of Neuilly.168 Restitution and, in the event that this was materially impossible, compensa tion were later required of the defeated European Axis States in respect of cultural property unlawfully removed from occupied territory during World War II, with the compensation demanded of most of them being in kind.169 In Italy’s case, the obligation of restitution extended to cultural treasures taken during its post–World War I occupation

166 See generally Chapters 28 and 29 in this Handbook. Depending on the national law in question, it may also be possible to challenge a measure in alleged breach of one of these obligations by way of public-law proceedings in a national court: see e.g. the Israeli cases cited in nn 80 and 91. 167 See art 245 Treaty of Peace between the Allied and Associated Powers and Germany (signed 28 June 1919, entered into force 10 January 1920) UKTS No 4 (1919), Cmd 153 (hereafter ‘Treaty of Versailles’). 168 See arts 184 and 191 Treaty of Peace between the Allied and Associated Powers and Austria (signed 10 September 1919, entered into force 16 July 1920) UKTS No 11 (1919), Cmd 400; arts 168 and 175 Treaty of Peace between the Allied and Associated Powers and Hungary (signed 4 June 1920, entered into force 31 July 1921) UKTS No 10 (1920), Cmd 896; art 126 Treaty of Peace between the Allied and Associated Powers and Bulgaria (signed 27 November 1919, entered into force 9 August 1920) UKTS No 5 (1920), Cmd 522. See also art 422 Treaty of Peace with Turkey (signed 10 August 1920, never in force) UKTS No 11 (1920), Cmd 964. 169 See art 22(1) and (3) Treaty of Peace with Bulgaria (signed 10 February 1947, entered into force 15 September 1947) 41 UNTS 169; art 24(1) and (3) Treaty of Peace with Hungary (signed 10 February 1947, entered into force 15 September 1947) 41 UNTS 51; art 75(1) and (9) Treaty of Peace with Italy (signed 10 February 1947, entered into force 15 September 1947) 49 UNTS 3 (hereafter ‘Treaty of Peace with Italy’); Chap V arts 1–4 Convention on Settlement, as amended by Sch IV Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany (signed 23 October 1954, entered into force 5 May 1955) 332 UNTS 219. The reference to ‘the United Nations Declaration of 5 January 1943’ in the relevant provisions is to the Inter-Allied Declaration against Acts of Dispossession committed in Territories under Enemy Occupation or Control, 5 January 1943, Misc No 1 (1943), Cmd 6418, which names ‘works of art’ as the first example of property systematically spoliated by the Axis powers. See also, in terms of restitution, art 24 Treaty of Peace with Finland (signed 10 February 1947, entered into force 15 September 1947) 48 UNTS 229 (restitution of historic monuments and museum valuables). Compensation in kind by substituting like for like is often referred to alternatively as restitution in kind. See generally A. Vrdoljak, ‘Enforcement of Restitution of Cultural Heritage through Peace Agreements’ in F. Francioni and J. Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 22.

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72 Roger O’Keefe of parts of what became Yugoslavia and during its later invasion of Ethiopia.170 When it comes to the destruction of tangible cultural heritage, compensation in kind was imposed on Germany by the Treaty of Versailles as reparation for the former’s unlawful torching of the university library in Leuven (Louvain) and its devastation of other cultural immovables and movables in Belgium during World War I.171 As for enforcement through State responsibility by international courts and tribunals, the Eritrea Ethiopia Claims Commission, having found Ethiopia responsible as occupying power for deliberate damage, contrary to customary international law, to the Stela of Matara, a historic monument of great importance to the cultural heritage of Eritrea,172 awarded Eritrea compensation equal to the sum spent restoring the stela ‘plus an additional amount to reflect, in part, [its] unique cultural significance’.173

7.2 Individual Criminal Responsibility and Consequent Reparations Breaches of certain of the customary obligations of international humanitarian law for the protection of tangible cultural heritage in armed conflict also constitute war crimes174 under customary international law for which persons responsible have been prosecuted before international and national criminal courts and tribunals.175 In addition to these customary war crimes, the 1954 Hague Convention, its Second Protocol, and 1977 170 See respectively art 12(1) and (3) and art 37 Treaty of Peace with Italy. See also art VI(a) and Annexes A–C (especially C) Agreement between Italy and Ethiopia concerning the Settlement of Economic and Financial Matters Issuing from the Treaty of Peace and Economic Collaboration (signed 5 March 1956, entered into force 4 July 1956) 267 UNTS 190. 171 See art 247 Treaty of Versailles. 172 See Central Front, Eritrea’s Claims 2, 4, 6, 7, 8 & 22 at 329–30, paras 107–14. It went without saying in the Commission’s discussion that the damage inflicted on the stela by way of an explosive fastened at its base by one or several soldiers of the Ethiopian army was not justified by military necessity. 173 Final Award, Eritrea’s Damages Claims (Eritrea/Ethiopia) (2009) 140 ILR 235 at 319, para 223. 174 A war crime is a breach (synonymously, ‘violation’) of an obligation under international humanitarian law for which an individual can in principle be held criminally responsible. At least as regards violations of customary international humanitarian law, the individual criminal responsibility of the war criminal arises under international law itself, although it may be implemented via the medium of national law. Not every breach of international humanitarian law is punishable as a war crime. 175 For a full list, see O’Keefe et al., Protection of Cultural Property: Military Manual (n 5), Appendix IV. See also the ongoing case of Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC01/12–01/18. See generally O’Keefe, The Protection of Cultural Property (n 3) 343–50; O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (n 5) 3–20; O’Keefe, ‘Cultural Property Protection’ (n 68); F. Lenzerini, ‘The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage’ in F. Francioni and J. Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 40. Certain acts against tangible cultural heritage can also constitute crimes against humanity, as well as furnishing evidence of the requisite specific intent of genocide: see O’Keefe, The Protection of Cultural Property (n 3) 350–6; O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (n 5) 380–9. See generally Chapter 6 in this Handbook.

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Cultural Heritage and International Humanitarian Law 73 Additional Protocol I all oblige States Parties to punish by means of their national criminal law and courts or those of another willing State Party persons responsible for certain intentional breaches of their provisions relating to tangible cultural heritage.176 Furthermore, in proceedings before the International Criminal Court, the Court may make an order against a convicted person specifying appropriate reparations to victims, which may include, inter alia, restitution and compensation.177 In the context of crimes against tangible cultural heritage, it may be appropriate for the Court—in addition to individual reparations to natural persons who, and to organizations or institutions which, have suffered particular material or moral harm on account of damage to, or destruction or misappropriation of, heritage178—to order the payment of collective reparations to any local community for which the heritage is culturally significant and the payment of symbolic collective reparations to both the relevant national community, in the form of the State in whose territory the heritage is situated, and the international community as a whole, as represented informally by UNESCO.179

8. Conclusion There are limits to what international law can do to civilize war. No rules will ever restrain parties to an armed conflict or individuals who, motivated by malice, ideology, or arrogance and convinced of their impunity, bear contempt for law itself. This applies as much in relation to the protection of cultural heritage as to the protection of any other value in armed conflict. Nazi Germany’s systematic plunder and devastation of the tan gible cultural heritage of the occupied Soviet Union and the iconoclastic destruction by Islamist extremists of cultural sites in Iraq, Syria, and Mali were phenomena beyond the power of law to prevent. International law has purchase only where abiding by it holds intrinsic value. History shows that international legal compliance mechanisms can do little on their own to restrain perversity. As it is, one of the gravest threats today to tangible cultural heritage in armed conflict is its organized theft by private actors taking no part in hostilities and not bound to this extent by rules of international law. The breakdown of order that accompanies armed conflict and the corrupting lure of the worldwide illicit market in art and antiquities continue to drive the looting of movable cultural property in war zones and occupied 176 Recall Section 5.3. See generally The Penal Protection of Cultural Property: The Fight Against Impunity in the Framework of the 1954 Hague Convention and its 1999 Second Protocol (UNESCO 2017). 177 See art 75(2) Rome Statute. 178 In accordance with rule 85 of the ICC’s Rules of Procedure and Evidence, ICC Doc ICC-ASP/1/3 and Corr.1, part II.A, the term ‘victims’ generally means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court but can extend to organiza tions or institutions which have sustained direct harm to any property of theirs dedicated to, inter alia, art or science or to their historic monuments. 179 See e.g. Prosecutor v Al Mahdi, ICC-01/12–01/15, Trial Chamber, Reparations Order, 17 August 2017.

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74 Roger O’Keefe territory. While international humanitarian law obliges all parties to a conflict to prohibit, prevent, and, if necessary, put a stop to this, success is ultimately a question of capacity. The best will in the world cannot post guards on all ten thousand archaeological sites in Iraq. Insofar, however, as international law is capable of mitigating the consequences of war, the law on the protection of tangible cultural heritage in armed conflict is as capable as any. The record shows, perhaps to the surprise of many, that the relevant rules of inter national humanitarian law are by and large observed. Unlawful destruction and mis appropriation of tangible cultural heritage by parties to a conflict and other unlawful disregard for the wartime fate of cultural immovables and movables have been excep tions since at least the turn of the twentieth century—devastating exceptions, but excep tions nonetheless, and usually condemned as such by other parties to the conflict and States generally, leading on occasion to reparation or prosecution in accordance with international law. Moreover, the international humanitarian law on the protection of tangible cultural heritage does not stake everything on the goodwill of the potential destroyer or plunderer. Certain rules applicable before and during armed conflict seek to keep or move cultural property out of harm’s way or to insulate or secure it in situ,180 protecting it regardless of an opposing party’s compliance with its obligations. In sum, international humanitarian law gives tangible cultural heritage a fighting chance of emerging from armed conflict unscathed. It is for this reason that in resolution 2347 (2017) of 24 March 2017, the United Nations Security Council—‘[d]eplor[ing] and condemn[ing] the unlawful destruction of cultural heritage . . . as well as the looting and smuggling of cultural property from archaeological sites, museums, libraries, archives, and other sites, in the context of armed conflicts’—encouraged all Member States that had not yet done so ‘to consider ratifying the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocols, as well as other relevant international conventions’.181 Increasingly, too, there are synergies between the wartime and peacetime protection of tangible cultural heritage. The greater emphasis in the Second Protocol to the 1954 Hague Convention on peacetime contingency planning for, inter alia, ‘emergency meas ures for protection against fire or structural collapse’ and ‘the removal of movable cul tural property or the provision for [its] in situ protection’182 stands heritage in good stead in the event of natural disaster,183 while the requirement that cultural property be protected by ‘adequate domestic legal and administrative measures recognising its exceptional cultural . . . value and ensuring the highest level of protection’184 before it can qualify for the Second Protocol’s regime of enhanced protection provides an added incentive to States to put their day-to-day heritage law and practice in order. In this way, international humanitarian law can help to preserve ‘the cultural heritage of all mankind’185 without a shot being fired. 180 Recall Section 4.1.4. 181 UN Security Council Res 2347 (2017), 24 March 2017, paras 1 and 7 respectively. See also, inter alia, UN General Assembly Res 69/281, 28 May 2015, para 13; European Parliament resolution of 30 April 2015 on the destruction of cultural sites perpetrated by ISIS/Da’esh (2015/2649(RSP)) para 18. 182 Art 5 Second Protocol. 183 See also Chapter 8 in this Handbook. 184 Art 10(b) Second Protocol. 185 Preamble (second recital) 1954 Hague Convention.

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chapter 4

I n ten tiona l Destruction of Cu ltu r a l H er itage Federico Lenzerini

1. Introduction: Intentional Destruction of Cultural Heritage—a Scourge of Human History The practice of deliberate destruction of cultural heritage has represented a plague accompanying humanity throughout all phases of its history and involving many different human communities either as perpetrators or victims. Examples of this scourge include the destruction of the Temple of Serapis in Alexandria of Egypt in ad 391—ordered by the Roman Emperor Theodosius to obliterate the last sanctuary of non-Christians; the devastation of the Somnath temple and its jyotirlinga (devotional object representing the God Shiva) in Gujarat (India) by Mahmud of Ghazni in 1024; the attempted demolition of the Pyramid of Menkaure, in Egypt, by Sultan Al-Aziz Uthman, in the late twelfth century; the repeated attacks perpetrated during the Jordanian occupation of Jerusalem against Jewish sites following the conquest of the Old City by the Arab Legion in 1948; the systematic plan of destruction of mosques and other religious buildings during the Balkan wars in the former Yugoslavia in the 1990s1; the demolition of the Babri Mosque 1 See András J. Riedlmayer, Destruction of Cultural Heritage in Bosnia-Herzegovina, 1992–1996: A Post-War Survey of Selected Municipalities (report to the International War Crimes Tribunal for the former Yugoslavia 2002); Helen Walasek, Bosnia and the Destruction of Cultural Heritage (Routledge 2015).

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76 Federico Lenzerini in Ayodhya, Uttar Pradesh (India), by a large group of Hindu Kar Sevaks (activists) in 1992; the pulling down of the Stari Most (Old Bridge) in Mostar, in November 1993; the blatant destruction of two ancient giant Buddha statues in the Afghan valley of Bamiyan by the Taliban in March 2001;2 the destruction of cultural heritage in Iraq during the American-led coalition’s invasion of 2003;3 the devastation of the ancient city of Timbuktu, in Mali, by the extremist Islamic group Ansar Dine in June–July 2012; the burning of the Church of the Multiplication of the Loaves and Fishes, in Israel, by Jewish extremists, also in June 2015; to end with the systematic destruction of irreplaceable cultural treasures of humanity by ISIL/Da’esh in the occupied territories, including the Ahmed al-Rifai shrine and tomb in Tal Afar, the Al-Qubba Husseiniya Mosque and the Jonah’s tomb in Mosul, in Iraq, and the Armenian Genocide Memorial Church, in Deir ez-Zor, Syria, in 2014; the Museum in Mosul and Nimrud in Iraq, the Sufi Mosque in Tripoli, Libya, as well as the Virgin Mary Church in Tel Nasri, in Syria, in 2015; and the Roman city of Palmyra—including the Lion of Al-lāt—also in Syria, in June–August 2015 and January 2017.4

2. Mens Rea of Intentional Destruction of Cultural Heritage The minimum common denominator of the examples just provided, and most other similar cases occurring since ancient times, rests in the discriminatory intent of the per petrators, who do not pursue the goal of destroying the cultural heritage as such but rather that of annihilating the communities for which the latter is of special importance and by which it is perceived as an essential element of their own life, cultural identity, and distinctiveness. The ‘cultural heritage’ of a people is not limited to the tangible expressions of art, architecture, religion, poetry, or writing in general but also includes 2 See Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan in International Law’ (2003) 14 European Journal of International Law 619 ff; Kevin D. Kornegay, ‘Destroying the Shrines of Unbelievers: The Challenge of Iconoclasm to the International Framework for the Protection of Cultural Property’ (2014) 221 Military Law Review 153 ff. 3 See Peter G. Stone and Joanne Farchakh Bajjaly (eds), The Destruction of Cultural Heritage in Iraq (Boydell & Brewer 2008). 4 See Caitlin V. Hill, ‘Killing a Culture: The Intentional Destruction of Cultural Heritage in Iraq and Syria under International Law’ (2016) 45 Georgia Journal of International and Comparative Law 191 ff. Even after the blatant instances of destruction of cultural heritage perpetrated by ISIL, it seems that the practice in point continues to recur, although through less manifest means. For instance, it has recently been reported that the government of Azerbaijan would have destroyed tens of thousands of Armenian cultural monuments in Djulfa, a sacred site for Armenian Christians located at the border with Iran; see Dale Berning Sawa, ‘Monumental loss: Azerbaijan and “the worst cultural genocide of the 21st century” ’ The Guardian (1 March 2019) accessed 10 December 2019; Simon Maghakyan, ‘This Year’s UNESCO Session Was an Insult to World Heritage’ (9 July 2019) accessed 10 December 2019.

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Intentional Destruction of Cultural Heritage 77 its intangible heritage, which is ‘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’.5 More generally, cultural heritage includes the ‘expressions of the people’s spirituality, and the body of values which give meaning to life’.6 Its categorization into different kinds (tangible, intangible, spiritual, etc.) is simply descriptive and approximate, as one single piece of heritage may assume different meanings for a community, depending on the values it incorporates as perceived by the people concerned. For instance, a building which is considered of outstanding universal value7—i.e. of exceptional significance for humanity as a whole—may at the same time have a special spiritual and social (intan gible) significance for a given community, for which it greatly transcends the artistic, architectural, aesthetic, and economic worth of the property concerned. It is exactly such a special spiritual and social significance which is usually targeted by the perpet rators of acts of intentional destruction of cultural heritage. Indeed, when they destroy a piece of cultural heritage, they demolish much more than an outstanding and irreplaceable object. They destroy the special—often spiritual—connection between that object and a human community, a fundamental element of the cultural and social identity of the latter, ultimately upsetting the community as such. The real target of most acts of intentional destruction of cultural heritage is, therefore, not the heritage in itself but the human communities for which such a heritage is of special significance. In the sixteenth century, Niccolò Machiavelli wrote that ‘he who becomes master of a city accustomed to freedom and does not destroy it, may expect to be destroyed by it, for in rebellion it has always the watchword of liberty and its ancient privileges as a rallying point, which neither time nor benefits will ever cause it to forget’.8 In other words, if you really want to destroy a people, its pride, its self-esteem, and its sense of belonging to its own cultural identity, you need to destroy its cultural heritage. This reality has been denounced, much more recently, by the United Nations Educational, Scientific and Cultural Organization (UNESCO), affirming that ‘the loss of heritage during times of conflict can deprive a community of its identity and memory, as well as the physical testimony of its past. Those destroying cultural heritage seek to disrupt the social fabric of societies.’9 Intentional destruction of cultural heritage 5 Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1, art 2. 6 See UNESCO, Mexico City Declaration on Cultural Policies (1982) UNESCO Doc CLT/MD/1, November 1982, Part IV, para 23. 7 The quality of ‘outstanding universal value’ qualifies for World Heritage status under the World Heritage Convention (Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151); see Chapter 11 in this Handbook. 8 Niccolò Machiavelli, Il Principe (The Prince) (1532) 51. 9 See International Criminal Court (ICC), Prosecutor v Ahmad Al Faqi Al Mahdi (hereafter Al Mahdi) Case No. ICC-01/12–01/15, ‘UNESCO Amicus Curiae Observations submitted pursuant to Rule 103 of the Rules of Procedure and Evidence’, 2 December 2016 accessed 8 September 2017, para 1.

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78 Federico Lenzerini ‘carries a message of terror and helplessness; it destroys part of humanity’s shared memory and collective consciousness; and it renders humanity unable to transmit its values and knowledge to future generations’.10 In the end, the mens rea of perpetrators of intentional destruction of cultural heritage usually consists in the intention of targeting a human community. Obviously, this produces very significant implications when it comes to the legal definition and qualification of the offence in point. In this respect, it is also necessary to keep in mind that, in some of the concrete instances of intentional destruction of cultural heritage, the targeted community is even the international community as a whole, or at least the majority of it, because the perpetrators are moved by the fanatic conviction that all cultural manifestations not belonging to their own cultural model are to be eradicated forever from the world as examples of wrong, false, deceitful, immoral, or infidel beliefs or views. This is what the UNESCO Director-General has defined as ‘cultural cleansing’.11 This fanaticism, for instance, inspired the Taliban to raze to the ground the two ancient giant Buddha statues in the Afghan valley of Bamiyan in 2001—on the basis of the assumption that the ‘real God is only Allah, and all other false gods [had to] be removed’12—or the extremist religious group Ansar Dine to devastate the mausoleums of the Islamic saints located in the ancient city of Timbuktu, in Mali, in June–July 2012— in order to regulate ‘the morality of the people of Timbuktu, and of preventing, suppressing and repressing anything perceived [. . .] to constitute a visible vice’13—or ISIL to systematically and extensively destroy cultural heritage in Iraq, Syria, and Libya—so as ‘to remove not only symbols of other faiths, but also anything valued by those who follow Islam in a different way’.14

10 See Expert Report—Reparations Phase, Al Mahdi, Dr Marina Lostal, 28 April 2017 (amended on 3 May 2017) accessed 8 September 2017, para 44. 11 UNESCO, ‘Director-General Irina Bokova firmly condemns the destruction of Palmyra’s ancient temple of Baalshamin, Syria’ (UNESCO News, 1 September 2015) accessed 8 September 2017. 12 See Francioni and Lenzerini, ‘The Destruction of the Buddhas of Bamiyan in International Law’ (n 2) 626. 13 See Al Mahdi (n 9), judgment of 27 September 2016, para 33. On the Al Mahdi case, see Emily McGeorge, ‘Prosecution of Cultural Heritage Destruction: Framework, Precedents and Recent Developments in International Criminal Law’ (2016) 3 Public Interest Law Journal of New Zealand 204, 220 ff; Karolina Wierczyńska and Andrzej Jakubowski, ‘Individual Responsibility for Deliberate Destruction of Cultural Heritage: Contextualizing the ICC Judgment in the Al-Mahdi Case’ (2017) 16 Chinese Journal of International Law 695 ff. On destruction of cultural heritage by ISIL, see Federica Mucci, ‘Intentional Destruction of Cultural Heritage by ISIS: The Reaction of the International Community Against This Specific Aspect of the Aggression to Peace and Human Rights’ (2016) 2 Processi di Pace e Dignità Umana 1 ff; Hill, ‘Killing a Culture’ (n 4) 191 ff. 14 See Stephen Stenning, ‘Destroying Cultural Heritage: More Than Just Material Damage’, British Council (21 August 2015) accessed 8 September 2017.

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Intentional Destruction of Cultural Heritage 79

3. Written Rules of International Law Concerning Intentional Destruction of Cultural Heritage No multilateral binding instrument specifically devoted to intentional destruction of cultural heritage exists at the international level at the time of this writing. The main specific standard-setting instrument produced so far by the indignation of the inter national community for such a heinous felony is the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (2003 UNESCO Declaration).15 While quite disappointing for the textual choices made by its drafters— especially the use of the conditional ‘should’ with respect to all main State duties arising from its text, which makes the Declaration quite weak—as well as for certain deficiencies in its final text,16 such an instrument highlights the most significant legal implications characterizing its subject matter. First, it requests UNESCO Member States to ‘take all appropriate measures to prevent, avoid, stop and suppress acts of intentional destruction of cultural heritage, wherever such heritage is located’,17 both in situations of armed conflict and in peacetime; the combination of the phrase ‘wherever such heritage is located’ with the applicability of the provision also in peacetime makes it clear that the duty in point covers instances of destruction of cultural heritage perpetrated by a State within its own territory, which is hence considered unlawful under international law. Another notable feature of the Declaration resides in the proclamation of the principle of international responsibility both for States which ‘intentionally [destroy] or intentionally [fail] to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity’18 and for individuals ‘who commit, or order to be committed, acts of intentional destruction’ of such cultural heritage.19 In any event, the lack of binding provisions specifically dealing with intentional destruction of cultural heritage is only apparent. This is evident if one considers that the wrong in point may be plainly subsumed within the broader category of hostile acts against cultural heritage generally speaking. These acts were first prohibited by provisions included in some of the Hague Conventions on the laws and customs of war of 1899 and 1907, establishing that ‘[i]n sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or char itable purposes, historic monuments, hospitals, and places where the sick and wounded 15 The full text of the Declaration is available at accessed 8 September 2017. 16 See, in this respect, Federico Lenzerini, ‘The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage: One Step Forward and Two Steps Back’ (2003) XIII Italian Yearbook of International Law 131 ff. 17 See art III.1. 18 Art VI. 19 Art VII.

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80 Federico Lenzerini are collected, provided they are not being used at the time for military purposes’.20 Seventy years later, the 1977 Protocols I and II additional to the 1949 Geneva Conventions on humanitarian law provided for the prohibition to commit ‘acts of hostility directed against the 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, respectively for international and non-international armed conflicts.21 Also, Article 85(4)(d) of the I Protocol includes among the grave breaches of the Protocol itself the act of ‘making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement [. . .] the object of attack, causing as a result extensive destruction thereof [. . .]’. Subsequently, the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, adopted in 1999,22 included ‘extensive destruction or appropriation of cultural property protected under the Convention and this Protocol’ among the serious violations of the Protocol itself (article 15(1)(c)). Article 16 also requests States Parties to ‘take the necessary legislative measures to establish [their] jurisdiction’ over the said offence when it is committed in their own territory, when the alleged offender is one of their own nationals or even when the alleged offender is present in their territory. Finally, articles 17 and 18 provide for the application of the principle of aut dedere aut judicare for persons allegedly responsible of the violation in point. At the regional level, article 10, para. 1 of the 2017 Council of Europe Convention on Offences relating to Cultural Property23 is worth mentioning, stating that ‘[e]ach Party shall ensure that the following conducts constitute a criminal offence under its domestic law, when committed intentionally: (a) the unlawful destruction or damaging of movable or immovable cultural property, regardless of the ownership of such property’.

4. Intentional Destruction of Cultural Heritage as a War Crime In addition to the provisions described in the previous section, other rules concerning intentional destruction of cultural heritage exist in the framework of international criminal law. In particular, the offence in discussion is qualified as either a violation of the laws and customs of war or a war crime by article 3(d) of the 1993 Statute of the 20 See, in particular, art 27 of Regulations annexed to Convention II of 1899, art 27 of Regulations annexed to Convention IV of 1907 and art 5 of Convention IX of 1907. 21 See, respectively, art 53 of Protocol I and art 16 of Protocol II. 22 2253 UNTS 172. 23 CETS No. 221.

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Intentional Destruction of Cultural Heritage 81 International Criminal Tribunal of the Former Yugoslavia (ICTY),24 article 20(e)(iv) of the 1996 International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind,25 article 8(2)(b)(ix) of the 1998 Rome Statute of the International Criminal Court (ICC Statute),26 and article 7 of the 2004 Cambodian Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Democratic Kampuchea.27 This characterization has been confirmed by the consolidated jurisprudence of the ICTY, which in a number of cases has applied article 3(d) of its Statute to instances of wilful damage to, or destruction of, cultural heritage—especially of religious character28—also confirming that such a crime ‘has [. . .] already been criminalized under customary international law’,29 including in the event of non-international armed conflict.30 Likewise, in 2016 the ICC sentenced Mr Ahmad Al Faqi Al Mahdi—member of the extremist Islamic group Ansar Dine—to nine years of imprisonment for war crimes in violation of article 8(2)(e) (iv) of the ICC Statute, for intentionally directing attacks against ten buildings of religious and historical character in Timbuktu, Mali, in June and July 2012.31 The same position has finally been shared by the UN Security Council (UNSC), which, in Resolution 2347 of 24 March 2017,32 affirmed that ‘directing unlawful attacks against sites and buildings dedicated to religion, education, art, science or charitable purposes, or historic monuments may constitute, under certain circumstances and pursuant to international law a war crime and that perpetrators of such attacks must be brought to justice’.33

24 32 ILM 1159 (1993). 25 See accessed 20 November 2017. 26 2187 UNTS 3. 27 See accessed 20 November 2017. For a detailed study on the Khmer Rouge’s destruction of Cambodia’s heritage, see Caroline Ehlert, Prosecuting the Destruction of Cultural Property in International Criminal Law (Martinus Nijhoff 2014) 175 ff. 28 See Federico Lenzerini, ‘The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage’, in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 40, 48–9; Micaela Frulli, ‘Advancing the Protection of Cultural Property through the Implementation of Individual Criminal Responsibility: The Case-law of the International Criminal Tribunal for the Former Yugoslavia’ (2005) XV Italian Yearbook of International Law 195, 196–201. 29 See Prosecutor v Brđanin, Case IT-99-36-T, Trial Chamber II, Judgment of 1 September 2004, para 595; Prosecutor v. Strugar (hereafter Strugar) Case IT-01-42-T, Trial Chamber II, Judgment of 31 January 2005, para 229. 30 See Prosecutor v Tadić, Case IT-94–1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, Decision of 2 October 1995, paras 27 and 98; Strugar (n 29) Trial Chamber II, Judgment of 31 January 2005, para 230. 31 See Al Mahdi (n 13). 32 On Resolution 2347/2017, see Kristin Hausler, ‘Cultural heritage and the Security Council: Why Resolution 2347 matters’ (2018) Questions of International Law, Zoom-in 48, 5 ff. accessed 7 February 2019. 33 See para 4.

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82 Federico Lenzerini

5. Intentional Destruction of Cultural Heritage as a Crime against Humanity As emphasized in Section 2 above, in most instances of deliberate destruction of cultural heritage the target of perpetrators is not the heritage in itself but, rather, the communities and persons for whom the heritage is of special significance. This reveals a clear discriminatory and persecutory intent against the targeted cultural groups or even against the international community as a whole (with the exception of those who share the same iconoclastic views of the persons responsible for the crime). Consistently, already at the end of World War II, the International Military Tribunal at the Nuremberg Trials qualified destruction of synagogues as persecution, amounting to a crime against humanity.34 Subsequently, in the early 1990s, the International Law Commission held that ‘[p]ersecution may take many different forms, for example [. . .] the systematic destruction of buildings or monuments representative of a particular social, religious, cultural or other group’.35 It is evident that in practice the crime in point is not really—or not only—a crime against property but, rather and primarily, a crime against persons. This characterization should produce—and actually produces—notable implications in legal terms, especially as regards the qualification of the crime and prosecution of perpetrators. In this regard, the ICTY has developed a very sound approach, going beyond the characterization of intentional destruction of cultural heritage as a war crime and finding that, when perpetrated with the requisite discriminatory intent, [intentional destruction of religious cultural heritage] amounts to an attack on the very religious identity of a people. As such, it manifests a nearly pure expression of the notion of ‘crimes against humanity’, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects [. . .] [T]herefore [. . .] destruction and wilful damage of institutions dedicated to [. . .] religion or education, coupled with the requisite discriminatory intent, may amount to an act of persecution,36 34 See International Military Tribunal, Nuremberg, ‘Judgment’ 1947 41 American Journal of International Law 172, 243–7 and 294–5; see, in this respect, Ana Filipa Vrdoljak, ‘The Criminalisation of the Intentional Destruction of Cultural Heritage’ in Tiffany Bergin and Emanuela Orlando (eds), Forging a Socio-Legal Approach to Environmental Harms (Routledge 2017) 237, 250; Federico Lenzerini, ‘Intentional Destruction of Cultural Heritage, Crimes Against Humanity and Genocide: Towards an Evolutionary Interpretation of International Criminal Law’ (2017) Europa Ethnica n 3/4, 66 ff. 35 See Report of the International Law Commission on the Work of Its 43rd Session, 29 April–19 July 1991, para 268. 36 See Prosecutor v Kordić & Cerkez, Case IT-95–14/2-T, Trial Chamber, Judgment of 26 February 2001, para 207 (emphasis added); see also Prosecutor v Tihomir Blaškić, Case IT-95-14-T, Judgment of 3 March 2000, para 227, stating that ‘persecution may take forms other than injury to the human person, in particular those acts rendered serious not by their apparent cruelty but by the discrimination they seek to instil within humankind [. . .] [P]ersecution may thus take the form of confiscation or destruction of [. . .] symbolic buildings [. . .].’

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Intentional Destruction of Cultural Heritage 83 which is actually included among crimes against humanity.37 While this reasoning applies principally to cultural heritage of religious character—in light of its spiritual significance for the people concerned—it may well be extended to non-religious heritage, provided that it represents an essential element of the cultural identity of a given community or group. This position has been reiterated by the ICTY in subsequent cases. In particular, in 2013 the Trial Chamber III qualified the intentional destruction of the Stari Most in Mostar, perpetrated in November 1993, as crime of persecution, in consider ation of the ‘intention of [the perpetrators of] discriminating against the Muslims of the Municipality of Mostar and violating their basic rights to life, human dignity, freedom and property’,38 taking into account the ‘undeniable cultural, historical and symbolic value [the bridge had] for the Muslims’.39 This finding was later reversed by the Appeals Chamber, on the basis of the assumption that ‘no reasonable trier of fact could have found, beyond reasonable doubt, that the [perpetrators] had the specific intent to discriminate’,40 an intent the existence of which is indispensable to qualify the crime against humanity of persecution.41 The position taken in this case by the Appeals Chamber, however, does not affect the idea in principle that intentional destruction of cultural heritage amounts to a crime against humanity, provided that perpetrators are moved by a discriminatory intent. The validity of the approach of the ICTY was confirmed by the African Commission on Human and Peoples’ Rights immediately after the destruction by Ansar Dine of the buildings of religious and historical character in Timbuktu in 2012. On that occasion, the Commission joined ‘the international community in expressing its dismay and concern over such shameful and disgraceful acts’ and condemned ‘in the strongest possible terms such barbaric and unspeakable acts which it considers as war crimes and crimes against humanity and which are inconsistent with [. . .] human rights and international humanitarian law’.42 Similarly, in May 2015 the UN General Assembly declared that ‘destruction of cultural heritage, which is representative of the diversity of human culture, erases the collective memories of a nation, destabilizes communities and threatens their cultural identity’;43 in so doing, the General Assembly emphasized that the main value affected by destruction of cultural goods is the cultural and spiritual significance 37 See, inter alia, art 6 of Charter of the International Military Tribunal—Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (‘London Agreement’) (Nuremberg Charter) (8 August 1945) accessed 12 September 2017; art 18 of the International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind (n 25); art 5(h) of the Statute of the ICTY (n 24 above); art 7.1(h) of the ICC Statute (n 26). 38 See Prosecutor v Prlić et al (hereafter Prlić et al) Case IT-04–74, Trial Chamber III, Judgment of 29 May 2013, para 1713. 39 Ibid, para 1711. 40 Prlić et al, Judgment of 29 November 2017, para 423. 41 Ibid, para 422. 42 See African Commission on Human and Peoples’ Rights, ‘Press release on the destruction of cultural and ancient monuments in the Malian city of Timbuktu’ (10 July 2012) accessed 9 September 2017 (emphasis added). 43 See Resolution 69/281 of 28 May 2015, ‘Saving the cultural heritage of Iraq’.

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84 Federico Lenzerini of cultural heritage, which is ‘intimately associated with the history and culture of the people [concerned]’,44 as well as a fundamental element of their cultural and distinctive identity. In light of the foregoing, it is quite surprising that in the Al Mahdi case the ICC—while noting that the gravity of the destruction of the mausoleums of Islamic saints perpetrated in Timbuktu in 2012 was further increased by the ‘discriminatory religious motive invoked for the destruction of the sites’45—only sentenced the defendant for war crimes, without duly considering the issue under the perspective of crimes against humanity.

6. Intentional Destruction of Cultural Heritage as Evidence of the Intent to Commit Genocide Genocide, as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,46 is the physical or biological destruction—in whole or in part—of ‘a national, ethnical, racial or religious group’. It requires the presence of the specific intent (dolus specialis) by the perpetrator(s) to destroy the targeted group. As noted by the ICTY, while in practice one of the methods used to destroy a human group may consist in the ‘purposeful eradication of its culture and identity resulting in the eventual extinction of the group as an entity distinct from the remainder of the community’,47 the meaning of the word ‘genocide’ under customary international law is still today limited to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.48

At the same time, however, where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, 44 See Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) 2064. 45 See Al Mahdi (n 13), para 81. On the Al Mahdi judgment and the issue of crimes against humanity, see Pierfrancesco Rossi, ‘The Al Mahdi Trial Before the International Criminal Court: Attacks on Cultural Heritage Between War Crimes and Crimes Against Humanity’ (2017) Diritti umani e diritto internazionale 87–100. 46 78 UNTS 277. 47 See Prosecutor v Krstić, Case No. IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para 574. 48 Ibid, para 580.

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Intentional Destruction of Cultural Heritage 85 attacks which may legitimately be considered as evidence of an intent to physically destroy the group. In this case, [the deliberate destruction of mosques and houses belonging to members of the group must be taken] into account as evidence of intent to destroy the group.49

This means, in other words, that the existence of a systematic and deliberate plan of destruction of cultural heritage may disclose evidence of the intent to destroy a human community—i.e. intent to commit genocide—on the condition that it is accompanied by physical or biological destruction of the targeted group. This position has been completely endorsed by the International Court of Justice (ICJ), although the ICJ has contextually reiterated that, in itself, ‘the destruction of historical, religious and cultural heritage cannot be considered to be a genocidal act within the meaning of [. . .] the Genocide Convention’.50 At the same time, it is indubitable that intentional destruction of cultural heritage is a typical element that may qualify cultural genocide51 (which, as just explained, is not included within the scope of the more restricted concept of ‘genocide’),52 consisting in the total or partial destruction of a culture, even though its bearers are not physically exterminated.

7. Intentional Destruction of Cultural Heritage as a Violation of Human Rights As noted in Section 5 above, intentional destruction of cultural heritage is to be primarily considered as a crime against persons. Using the words of the United Nations Special Rapporteur on cultural rights, Karima Bennoune, ‘when cultural heritage is under attack, it is also the people and their fundamental human rights that are under attack’.53 49 Ibid. 50 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Serbia & Montenegro), Judgment of 26 February 2007, International Court of Justice Reports 2007, 43, para 344. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015 accessed 9 September 2017, para 390. 51 See Yvonne Donders, ‘Cultural Genocide’ in Andreas J. Wiesand, Kalliopi Chainoglou, Anna Śledzińka-Simon, and Yvonne Donders (eds), Culture and Human Rights: The Wroclaw Commentaries (De Gruyter 2016) 132. See also Brittany Neihardt, ‘The Intentional Destruction of Cultural Heritage as a Tool for Ethnocide: The Case of Kuwait’ (independent thesis 2017) accessed 7 June 2018. 52 See Yuval Shany, ‘The Road to the Genocide Convention and Beyond’ in Paola Gaeta (ed), The UN Genocide Convention: A Commentary (Oxford University Press 2009) 3, 9. 53 See ‘UN rights expert calls to stop intentional destruction of cultural heritage’ (News and Events, 26 October 2016) accessed 12 September 2017.

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86 Federico Lenzerini Also, it ‘is impossible to separate a people’s cultural heritage from the people itself and that people’s rights’.54 It is, therefore, inevitable that destruction of cultural heritage produces repercussions in terms of human rights violations. The Preamble of the 2003 UNESCO Declaration emphasizes that ‘cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’.55 Also, as previously highlighted, according to the African Commission on Human and Peoples’ Rights, acts of deliberate destruction of cultural heritage are ‘barbaric and unspeakable’ and are ‘inconsistent with the African Charter on Human and Peoples’ Rights and other African and international legal instruments on human rights’.56 Likewise, the Human Rights Council, in 2014, in describing the situation of human rights in Iraq, referred to ‘the rampant destruction of monuments, shrines, churches, mosques and other places of worship, archaeological sites and cultural heri tage sites’ among the human rights violations perpetrated in that country.57 Indeed, as emphasized by Francesco Francioni, ‘cultural heritage [is] an important dimension of human rights, in as much as it reflects the spiritual, religious, and cultural specificity of minorities and groups’;58 further, the concept of human dignity, which informs [. . .] human rights [. . .] includes people’s entitlement to the respect of the cultural heritage that forms an integral part of their identity, history and civilization. Destruction or desecration of symbolic objects and sites that are essential to the enactment of a people’s culture (be it a library, a place of worship, a sacred site for indigenous peoples) is a violation of their collective dignity no less than a violation of their personal dignity.59

This is authoritatively confirmed by article 2 of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage,60 which, in defining such heritage, emphasizes that it ‘provides [communities and groups] with a sense of identity and continuity’. Even the ICJ, in the case concerning the interpretation of its own judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear,61 ‘encompassed the human rights to life and to personal integrity, as well as cultural and spiritual world heritage’, going ‘well

54 See ‘Report of the Special Rapporteur in the field of cultural rights’, UN Doc A/71/317, 9 August 2016, para 53. 55 See fifth recital. 56 See African Commission on Human and Peoples’ Rights (n 42). 57 See Res S-22/1 of 1 September 2014, UN Doc A/HRC/RES/S-22/1 of 3 September 2014, seventh recital of the Preamble. 58 See Francesco Francioni, ‘Plurality and Interaction of Legal Orders in the Enforcement of Cultural Heritage Law’ in Francioni and Gordley (eds), Enforcing International Cultural Heritage Law 9, 12. 59 See Francesco Francioni, ‘Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity’ (2004) 25 Michigan Journal of International Law 1209, 1212. 60 See n 5. 61 See Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) accessed 12 September 2017.

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Intentional Destruction of Cultural Heritage 87 beyond State territorial sovereignty, bringing territory, people and human values together’, as explained by Judge Cançado Trindade.62 In practical terms, the characterization of intentional destruction of cultural heritage as a human rights violation derives quite plainly from its qualification as persecution, as explained in Section 5 above. In fact, as stressed by the International Law Commission, the common characteristic of the many forms the crime of persecution may take is ‘the denial of the human rights and fundamental freedoms to which every individual is entitled without distinction’.63 Similarly, article 7.2(g) of the ICC Statute defines persecution as ‘the intentional and severe deprivation of fundamental rights contrary to inter national law by reason of the identity of the group or collectivity’. The link between the crime of intentional destruction of cultural heritage as persecution and human rights violations has also been emphasized by the ICTY—for instance, when it held that the destruction of the Stari Most in Mostar in November 1993 translated into a violation of ‘the Muslim population’s basic rights to life, freedom and dignity’.64 Even leaving aside the particularly serious violations reaching the threshold of crimes against humanity, intentional destruction of cultural heritage normally translates into a breach of a number of internationally recognized human rights. These include (but are not necessarily limited to) the following: - right to non-discrimination, as destruction of cultural heritage is usually perpetrated with a discriminatory intent, i.e. to discriminate against one or more communities for their cultural characteristics; - right to religion, as deprivation of religious buildings and/or objects obviously hinders people and communities in properly enjoying their right to manifest their own religion; - freedom of expression, of which cultural expression is an essential component;65 - right of minorities to enjoy their own culture, pursuant to article 27 of the 1966 International Covenant on Civil and Political Rights.66 As emphasized by the African Court on Human and Peoples’ Rights, ‘protection of the right to culture goes beyond the duty, not to destroy or deliberately weaken minority groups, but requires respect for, and protection of, their cultural heritage essential to 62 See ‘Separate opinion of Judge Cançado Trindade’ to the Judgment of 11 November 2013 accessed 12 September 2017. See also Patty Gerstenblith, ‘The Destruction of Cultural Heritage: A Crime against Property or a Crime against People?’ (2016) 15 John Marshall Review of Intellectual Property Law 336, 384. 63 See the International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind (n 25), 49. 64 Prlić et al (n 38), para 1712 (see Section 5). 65 See Human Rights Committee, General comment No. 34, art 19: Freedoms of opinion and expression, UN Doc CCPR/C/GC/34, 12 September 2011, para 11. 66 999 UNTS 171; art 27 reads as follows: ‘[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’.

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88 Federico Lenzerini the group’s identity’. This right is to be conceived under both an individual and collective perspective;67 - right to take part in cultural life—provided for by article 27 of the Universal Declaration of Human Rights and article 15 of the 1966 International Covenant on Economic, Social and Cultural Rights.68 In fact, this right implies the existence of an obligation for States to ‘[r]espect and protect cultural heritage in all its forms, in times of war and peace, and natural disasters’, as well as to ‘[r]espect and protect cultural heritage of all groups and communities’;69 - right to cultural identity, as cultural heritage is an essential element of it;70 - cultural rights in general, as such rights ‘protect the rights for each person, individually and in community with others, as well as groups of people, to develop and express their humanity, their world view and the meanings they give to their existence and their development [. . .] They may also be considered as protecting access to cultural heritage and resources that allow such identification and development processes to take place’;71 - right to property—this right, as it relates to cultural heritage, is mainly to be considered under a collective perspective. It is the right of a people or a community to keep possession of the cultural heritage of particular significance for its cultural identity, to preserve the social and spiritual connection existing with such a heri tage, as well as to transmit it to future generations. In this respect, the notion of cultural heritage, as elaborated in Section 2 above, is particularly broad, and ‘there is a significant overlap between tangible and intangible heritage [a]s [. . .] attacks on tangible and intangible cultural heritage are interconnected [. . .] For example, when mausoleums and ancient Islamic manuscripts were being destroyed by armed groups in northern Mali, various forms of cultural practice were also under attack, including religious practices, singing and music. Local populations were greatly affected, in an integrated way, by assaults on both forms of cultural heritage.’72 Heritage may, therefore, include not only religious buildings or sacred 67 See African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No. 006/2012, Judgment of 26 May 2017 accessed 12 September 2017, para 179. 68 993 UNTS 3. 69 See Committee on Economic, Social and Cultural Rights, General comment No 21 Right of everyone to take part in cultural life (art 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/21, 21 December 2009, para 50. 70 On the right to cultural identity see, inter alia, Yvonne Donders, Towards a Right to Cultural Identity? (Intersentia, 2002). See also Federico Lenzerini, ‘La distruzione intenzionale del patrimonio culturale come strumento di umiliazione dell’identità dei popoli’, in Lauso Zagato (ed), Le identità culturali nei recenti strumenti UNESCO (CEDAM 2008) 3–25. 71 See Report of the independent expert in the field of cultural rights, Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, UN Doc A/HRC/14/36, 22 March 2010, para 9. 72 See UN Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, UN Doc A/HRC/31/59, 3 February 2016, para 77.

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Intentional Destruction of Cultural Heritage 89 objects but also land and natural resources, provided that they have a cultural significance for the community concerned. This is particularly true for Indigenous peoples, who keep with their ancestral lands and natural resources a relationship which is not ‘merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations’;73 - right of Indigenous peoples to their cultural heritage—in particular, Indigenous peoples, as collectivities, have ‘the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures’.74 This right is strictly interconnected with the previous one and largely overlaps with it, on account of the fact that almost all elements of Indigenous peoples’ life—including lands, natural resources, human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, and sports and traditional games, as well as visual and performing arts—are to be subsumed within the concept of ‘Indigenous peoples’ cultural heritage’. Any violation of the right of Indigenous peoples to their material and spiritual relationship with their ancestral lands inevitably translates into the rupture of the most important expressions of their own cultural heritage, especially those of intangible character. At the same time, in the real world, in consideration of the indissoluble interconnection of all collective rights of Indigenous peoples, destruction of their cultural heritage—either tangible or intangible—usually translates into a breach of principal Indigenous peoples’ rights, including the right to self-determination, right to autonomy or self-government, right to cultural identity, and, obviously, land rights. In sum, one may conclude that today a right to culture and to cultural heritage exists under international law—if not expressly recognized by relevant instruments, at least in the form of an implied right deriving from the sum of all rights listed above—as well as that ‘control of cultural property [and protection from its destruction] is an inherent part of that right’.75 In cases of intentional destruction of cultural heritage, this right may find indirect protection by means of the enforcement of the above rights, in the relevant (domestic and international) fora and to the extent that they are enforceable. Undoubtedly, ‘the more that cultural property is treated as a human rights issue, as opposed to a property issue, the broader obligations that nations have with respect to it’.76 In fact, in contem porary international law—as well as in domestic law—many more avenues are available 73 See Inter-American Court of Human Rights, The Mayagna (Sumo) Awas Tingni Community v Nicaragua, Series C No. 79, Judgment of 31 August 2001, para 149. 74 See United Nations Declaration on the Rights of Indigenous Peoples, UN GA Res 61/295 of 13 September 2007, art 31. 75 See Kimberly L. Alderman, ‘The Human Right to Cultural Property’ (2013) 20 Michigan State International Law Review 69, 81. 76 Ibid, 79.

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90 Federico Lenzerini to obtain protection against human rights breaches than against violations done to cultural heritage (strictly considered). It follows that treating intentional destruction of cultural heritage as a human rights breach may allow much more effectiveness in protecting such heritage against hostile acts.

8. Intentional Destruction of Cultural Heritage as Offence against Humanity as a Whole Most recent cases of intentional destruction of cultural heritage have in common the circumstance that the target of perpetrators was not a particular community that they wanted to annihilate but rather the international community as a whole, with the exception of those who share their same ideals.77 As noted by Ana Vrdoljak, it is ‘cultural and religious diversity which the perpetrators find abhorrent and seek to expunge through such acts’.78 In all those cases, these ‘crimes against culture’79 assume the characterization not only of crimes against persons but also and especially of crimes against the international community as a whole. International awareness of this characterization matured in particular following the destruction of the Afghan Buddhas of Bamiyan in 2001,80 which persuaded UNESCO to proceed with the drafting of the 2003 UNESCO Declaration, article II.2 of which considers intentional destruction of cultural heritage as an ‘unjustifiable offence to the principles of humanity and dictates of public conscience’. In international practice this argument has been especially developed by the ICTY, particularly with respect to the shelling in December 1991 of the Old Town of Dubrovnik, in Croatia, which had been inscribed on the UNESCO World Heritage List since 1979.81 As is well known, properties inscribed on this list are considered of ‘outstanding universal value’82 and are protected in the interest of the international community as a whole. Mindful of this, in 2004 the ICTY found that the shelling of the Old Town of Dubrovnik represented ‘a violation of values especially protected by the international community’,83 because ‘[t]he whole of the Old Town of Dubrovnik was considered, at the time of the events contained in the Indictment, an especially import ant part of the world cultural heritage’.84 It follows that ‘[t]he shelling attack on the Old 77 See Section 2. 78 Vrdoljak, ‘The Criminalisation of the Intentional Destruction of Cultural Heritage’ (n 34), 255. 79 Francioni and Lenzerini, ‘The Destruction of the Buddhas of Bamiyan in International Law’ (n 2), 621. 80 Ibid, passim. 81 See accessed 12 September 2017. 82 See text corresponding to n 7. 83 See Prosecutor v Jokić (hereafter Jokić) Case IT-01–42/1-S (Judgment) Trial Chamber I (18 March 2004), para 46. 84 Ibid, para 51.

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Intentional Destruction of Cultural Heritage 91 Town was an attack not only against the history and heritage of the region, but also against the cultural heritage of humankind’.85 The same concept was reiterated one year later, when the ICTY confirmed that the above shelling had hit a property which was of ‘great importance to the cultural heritage of every people’,86 for the reason that ‘the Old Town of Dubrovnik in its entirety was entered onto the World Heritage List in 1979’.87 Similar considerations were developed by the ICC in the Al Mahdi case, noting that the fact that the destroyed buildings in Timbuktu were inscribed on the World Heritage List demonstrated ‘their special importance to international cultural heritage’;88 consequently, ‘their attack appears to be of particular gravity as their destruction does not only affect the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also people throughout Mali and the international community’.89 Also, the African Commission on Human and Peoples’ Rights, with respect to the destruction of mausoleums in Timbuktu, emphasized the special importance of those monuments given the fact that they were ‘classified by UNESCO as a world heritage and are a symbol of the greatness of Africa [. . .] an eloquent testimony to the significant role played by Africa in the history of humanity’.90 Similarly, in 2015, the UNESCO Director-General Irina Bokova, concerned by the escalation of hostilities in Bosra and Idlib, in Syria, declared that ‘[a]ll Syrians must unite for the protection of their shared cultural heritage [. . .] [which] belongs to all Syrians and to all humanity’,91 implying that its destruction would affect humanity as a whole. Even the ICC Statute— in the very first recital of its Preamble—implicitly confirms this position, affirming that ‘all peoples are united by common bonds, their cultures pieced together in a shared heritage’.92 What practical implications arise from the characterization of intentional destruction of cultural heritage as offence against humanity as a whole? There are no rules establishing any particular consequence in this respect, but, as emphasized by the ICTY, ‘since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site’93 in the interest of humanity as a whole. It follows that the circumstance in point may be considered in the phase of prosecution of perpetrators as an aggravating factor in determining the length of their sentence.

85 Ibid (emphasis added). 86 Strugar (n 29), para 232. 87 Ibid, para 327 (footnotes omitted). 88 Al Mahdi (n 13), para 46. 89 Ibid, para 80. 90 See ‘Press Release on the Destruction of Cultural and Ancient Monuments in the Malian City of Timbuktu’ (n 42). 91 See ‘The Director-General of UNESCO calls for all Syrians to commit to the safeguarding of cultural Heritage in Bosra and Idlib’, 2 April 2015 accessed 12 September 2017. 92 For a more comprehensive assessment of the significance of cultural heritage for all mankind, see Ana Filipa Vrdoljak, ‘Intentional destruction of cultural heritage and international law’ (2007) XXXV Thesaurus Acroasium 377, 387–9. 93 Jokić (n 83), para 53 (emphasis added).

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92 Federico Lenzerini

9. The UNSC and Intentional Destruction of Cultural Heritage as Threat to International Peace and Security In the past few years, the UNSC has addressed the issue of intentional destruction of cultural heritage on several occasions, starting with Resolution 1483 of 22 May 2003. In this resolution, in particular, the UNSC stressed ‘the need for respect for the archaeological, historical, cultural, and religious heritage of Iraq, and for the continued protection of archaeological, historical, cultural, and religious sites, museums, libraries, and monuments’.94 Subsequently, in Resolution 2170 of 15 August 2014, the UNSC strongly condemned ‘ISIL, [Al Nusrah Front (ANF)] and all other individuals, groups, undertakings and entities associated with Al-Qaida for ongoing and multiple criminal terrorist acts aimed at causing [. . .] destruction of property and of cultural and religious sites’.95 In a more detailed manner, in Resolution 2199 of 12 February 2015, the UNSC condemned ‘the destruction of cultural heritage in Iraq and Syria particularly by ISIL and ANF, whether such destruction is incidental or deliberate, including targeted destruction of religious sites and objects’.96 The same position was reiterated in Resolution 2249 of 20 November 2015, in which the UNSC condemned ‘in the strongest terms the continued gross, systematic and widespread abuses of human rights and violations of humanitarian law, as well as barbaric acts of destruction and looting of cultural heritage carried out by ISIL also known as Da’esh’.97 Finally, in Resolution 2347 of 24 March 2017, the UNSC, in addition to qualifying unlawful attacks against sites and buildings dedicated to religion, education, art, science or charitable purposes, or historic monuments as war crimes,98 deplored and condemned ‘the unlawful destruction of cultural heritage, inter alia destruction of religious sites and artefacts [. . .] in the context of armed conflicts, notably by terrorist groups’.99 The UNSC also stressed that ‘Member States have the primary responsibility in protecting their cultural heritage and that efforts to protect cultural heritage in the context of armed conflicts should be in conformity with the Charter’;100 this implies, inter alia, that States should ‘take preventive measures to safeguard their nationally owned cultural property and their other cultural property of national importance in the context of armed conflicts’.101 Last but not least, the Resolution contemplates the possibility of entrusting UN peacekeeping forces with the task of ‘assisting relevant authorities, upon their request, in the protection of cultural heritage from destruction, illicit excavation, looting and smuggling in the context of

94 Twelfth recital of the preamble. 95 Fifth recital of the preamble and para 2. 96 Para 15. 97 Para 3. 98 See text corresponding to n 33. 99 Para 1. 100 Para 5. 101 Para 16.

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Intentional Destruction of Cultural Heritage 93 armed conflicts, in collaboration with UNESCO’.102 An attempt to implement this suggestion was made in 2016, when, on 16 February, UNESCO and the Italian government signed an agreement on the establishment of a Task Force, comprising cultural heritage experts and members of the Carabinieri, with the purpose of contributing to the protection of cultural heritage in situations of crisis.103 It is evident that the work of a body of this kind is not easy to put into operation. At the time of this writing, however, the initiative Unite4Heritage has already found realization, in the form of training that the Carabinieri have provided for Iraqi specialists in the field of protection of cultural heritage.104 In addition to the foregoing, it is notable that, in Resolution 2249 of 20 November 2015, the UNSC determined that ‘by [. . .] its eradication of cultural heritage and trafficking of cultural property [. . .] the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh), constitutes a global and unprecedented threat to international peace and security’.105 This determination was reiterated in Resolution 2347, in which the UNSC noted ‘with grave concern the involvement of non-State actors, notably terrorist groups, in the destruction of cultural heritage and the trafficking in cultural property and related offences, in particular at the continued threat posed to international peace and security by the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh), Al-Qaida and associated individuals, groups, undertakings and entities, and reaffirming its resolve to address all aspects of that threat’.106 The characterization of intentional destruction of cultural heritage as threat to international peace and security was implicitly confirmed in another statement included in the same Resolution, in which the Council emphasized that ‘the unlawful destruction of cultural heritage [. . .] and the attempt to deny historical roots and cultural diversity in this context can fuel and exacerbate conflict and hamper post-conflict national reconciliation, thereby undermining the security, stability, governance, social, economic and cultural development of affected States’.107 This characterization, in principle, authorizes the UNSC to take all necessary measures to bring such a threat to an end, including measures under Chapter VII of the UN Charter, in particular measures implying the use of force under article 42. This seems to be the path followed by the UNSC in Resolution 2249—in which it called ‘upon Member States that have the capacity to do so to take all necessary measures [. . .] on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordin ate their efforts to prevent and suppress terrorist acts committed specifically by ISIL [. . .] and all other individuals, groups, undertakings, and entities associated with Al Qaeda, 102 Para 19. 103 See ‘Italy creates a UNESCO Emergency Task Force for Culture’ (UNESCO News 16 February 2016) accessed 7 June 2018; see also ‘Caschi blu della cultura: nasce la Task Force “Unite4Heritage” ’ 16 February 2016 accessed 4 June 2019. 104 See Maria Novella Topi, ‘Unite4Heritage: carabinieri addestrano specialisti iracheni per tutela patrimonio’ 16 April 2018 accessed 4 June 2019. 105 Fifth recital of the Preamble. 106 Sixth recital of the Preamble (emphasis added). 107 Fifth recital of the Preamble.

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94 Federico Lenzerini and other terrorist groups [. . .] and to eradicate the safe haven they have established over significant parts of Iraq and Syria’.108 However, doubts might be cast on whether the expression ‘terrorist acts’ included in this statement refers to all unlawful acts perpetrated by ISIL (therefore including intentional destruction of cultural heritage) or is rather to be intended as having a more restricted meaning.

10. Prosecution of Individuals Responsible for Intentional Destruction of Cultural Heritage Article VII of the 2003 UNESCO Declaration requests States to ‘take all appropriate measures, in accordance with international law, to establish jurisdiction over, and provide effective criminal sanctions against, those persons who commit, or order to be committed, acts of intentional destruction of cultural heritage of great importance for humanity’. Similarly, article 16 of the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict provides for the obligation of States Parties to ‘take the necessary legislative measures to establish [their] jurisdiction’ over extensive destruction of cultural heritage when it is committed in their territory, when the alleged offender is one of their nationals, or even when the alleged offender is present in their territory. Also, article 10, para. 1 of the Council of Europe Convention on Offences relating to Cultural Property requests States Parties to ‘ensure that the following conducts constitute a criminal offence under its domestic law, when committed intentionally: (a) the unlawful destruction or damaging of movable or immovable cultural property, regardless of the ownership of such property [. . .]’. Apart from the existing pertinent treaty regimes, the main avenue available at the international level to ensure appropriate prosecution of authors of the crime of intentional destruction of cultural heritage is represented by international criminal law, through the tribunals established in order to prosecute and punish the authors of inter national crimes. As ascertained in the previous sections, these crimes actually include intentional destruction of cultural heritage, qualified both as a war crime and, implicitly, as a crime against humanity. The latter characterization implies—in terms of prosecution of perpetrators—a very significant corollary, because, while the rules on war crimes are only applicable in the event of an armed conflict, those concerning crimes against humanity also cover crimes committed in time of peace. The extent to which prosecution of the crime of intentional destruction of cultural heritage is possible is therefore expanded. However, international criminal law has the inherent limitation of being of restricted application; almost all international or mixed tribunals existing at present have a competence which is strictly limited in time and in space, as they may only operate 108 Para 5 (emphasis added).

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Intentional Destruction of Cultural Heritage 95 with respect to crimes committed in the territories and in the periods of time to which their statutes or institutive treaties refer. The only exception in this regard is represented by the ICC, which, however—although its Statute is open to ratification by all countries in the world—is only competent for crimes committed on the territory (or vessel or aircraft) of a State Party to its Statute or which has accepted the jurisdiction of the Court, as well as when the person accused of a crime is a national of a State which is party to the Statute or has accepted the jurisdiction of the Court,109 in any case after the entry into force of its Statute for the State concerned.110 Therefore, for instance, in general the ICC would have no jurisdiction to prosecute the crimes committed by members of ISIL in the territories of Iraq, Libya, and Syria, as none of these countries has yet ratified its Statute.111 At the same time, however, as noted by the ICC Prosecutor Fatou Bensouda in April 2015, the Court might ‘exercise personal jurisdiction over alleged perpetrators who are nationals of a State Party [particularly those] foreign fighters [who] have joined the ranks of [ISIL] in the past months alone, including significant numbers of State Party nationals from, inter alia, Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia’, among others, for the crime of ‘wanton destruction of cultural property’.112 Another option for the prosecution of international crimes—including deliberate destruction of cultural heritage—would reside in the possible application by domestic courts of the principle of universal jurisdiction,113 which, under customary international law, allows courts of whatever State to prosecute the authors of said crimes regardless of where the crime was committed, the accused’s nationality, or the accused’s place of residence, only the presence of the alleged perpetrator in the territory of the State concerned being necessary. However, while this principle has been applied in a few prominent cases,114 in practice domestic courts are usually disinclined to use the option in point, unless it is explicitly contemplated by their own domestic legislation. In order to improve the chances of prosecution of perpetrators of intentional destruction of cultural heritage, the human rights approach advocated in Section 7 above would help notably. In fact, international human rights law is in principle much more advanced than international criminal law in terms of enforcement and reparation mechanisms, offering many more opportunities to obtain justice, both for victims of violations and for the society at large. In recent times, however, such a ‘structural’ gap between human rights law and international criminal law seems to have been notably bridged, thanks in 109 See ICC Statute, art 12. 110 Ibid, art 11. 111 See accessed 9 February 2019. 112 ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the alleged crimes committed by ISIS’, 8 April 2015 accessed 14 September 2017 (italics in the original text). 113 On the concept of universal jurisdiction, see Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press 2004). 114 See accessed 14 September 2017.

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96 Federico Lenzerini particular to the Reparations Order released by the Trial Chamber VIII of the ICC, on 17 August 2017, in the context of the Al Mahdi case.115 In its Order the Chamber noted that [r]eparations in the present case are designed—to the extent achievable—to relieve the suffering caused by the serious crime committed, address the consequences of the wrongful act committed by Mr Al Mahdi, enable victims to recover their dignity and deter future violations. Reparations may also assist in promoting reconciliation between the victims of the crime, the affected communities and the convicted person.116

It consequently ordered individual, collective, and symbolic reparations for the community of Timbuktu affected by the destruction of its own cultural heritage, to a total amount of 2.7 million euros. In particular, individual reparations were ordered ‘for those whose livelihoods exclusively depended upon the Protected Buildings’,117 while collect ive reparations were assigned to ‘the community of Timbuktu as a whole’.118 Both forms of reparations included redress for moral harm, ‘for the mental pain and anguish of those whose ancestors’ burial sites were damaged in the attack’ (at the individual level), and ‘for the mental pain/anguish and disruption of culture of the Timbuktu community as a whole’ (at the collective level).119 The Chamber also considered the harm suffered by the Malian and the international communities as a whole, and, while it was of the opinion that ‘addressing the harm suffered by the community of Timbuktu will also effect ively address the broader harm suffered by Malians and the international community as a whole’,120 it considered appropriate a symbolic gesture whereby both the Malian State and the international community—represented by UNESCO—would receive one symbolic euro as part of the reparations award.121

11. Intentional Destruction of Cultural Heritage and State Responsibility According to article VI of the 2003 UNESCO Declaration, ‘[a] State that intentionally destroys or intentionally fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity [. . .] bears the responsibility for such destruction, to the extent provided for by international law’. Many cases of intentional destruction of cultural heritage produce both individual and State responsibility simultaneously, since individual perpetrators of 115 Available at accessed 30 December 2017. 116 Ibid, para 28. 117 Ibid, para 83. 118 Ibid. 119 Ibid, para 90. 120 Ibid, para 54. 121 Ibid, paras 106 and 107.

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Intentional Destruction of Cultural Heritage 97 the crime are often State organs, and it is frequently planned and carried out as part of a deliberate governmental plan. The two forms of responsibility, however, remain well distinguished from each other, as confirmed by article 25(4) of the ICC Statute, affirming that none of its provisions ‘relating to individual criminal responsibility shall affect the responsibility of States under international law’. Along the same lines, the International Law Commission’s commentaries to the 2001 Articles on Responsibility of States for Internationally Wrongful Acts make it clear that ‘the question of individual responsibility is in principle distinct from the question of State responsibility’.122 When it comes to State responsibility for acts of intentional destruction of cultural heritage, it is opportune to reflect on the characterization of the latter as a war crime and a crime against humanity. Generally speaking, no appreciable difference exists between State responsibility for international crimes and for ‘ordinary’ violations of international law, except as regards the fact that international crimes, especially crimes against humanity, amount to violations of peremptory norms of general international law (jus cogens),123 which in many cases ‘overlap’ with obligations owed ‘to the international community as a whole’.124 Unlike ‘ordinary’ breaches of international law, ‘serious breaches of obligations arising under peremptory norms of general international law can attract additional consequences, not only for the responsible State but for all other States’,125 and, to the extent that they overlap with obligations to the international community as a whole (as it is usually the case with the crime of intentional destruction of cultural heritage), ‘all States are entitled to invoke responsibility’ for their violation.126 State responsibility for intentional destruction of cultural heritage may also be conceived in terms of responsibility to protect (R2P) such heritage.127 R2P consists in the responsibility of each state ‘to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity’, while the international community has the responsibility to help States to protect populations from such crimes.128 The three pillars of R2P—as specified by the UN Secretary-General—are the following: 1) each state has the responsibility to protect its populations from said crimes; 2) the international community has the responsibility to assist States in fulfilling their R2P; 3) when a state manifestly fails to fulfil its own R2P, the international community has the responsibility to take timely and decisive action through peaceful diplomatic and humanitarian means and, if that fails, through other more forceful means, including the use of military force.129 Since intentional destruction of cultural heritage amounts to a war crime and a 122 See International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) accessed 14 September 2017, 142. 123 Ibid, 85. 124 Ibid, 111. 125 Ibid, 112. 126 Ibid. 127 See, on this point, Federico Lenzerini, ‘Terrorism, Conflicts and the Responsibility to Protect Cultural Heritage’ (2016) 51(2) The International Spectator 70–85; James Cuno, ‘The Responsibility to Protect the World’s Cultural Heritage’ (2016) XXIII Brown Journal of World Affairs 97–109. 128 See UN General Assembly, Res 60/1, 2005 World Summit Outcome, UN Doc A/RES/60/1, 24 October 2005, para 138. 129 See UN General Assembly, ‘Implementing the responsibility to protect. Report of the SecretaryGeneral’, Doc A/63/677, 12 January 2009, para 11.

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98 Federico Lenzerini crime against humanity, it is straightforwardly subsumed within the scope of R2P. As regards the modalities through which R2P may be realized in concrete terms, its third pillar clearly shows that the United Nations, regional organizations, and even single States may act to protect populations from intentional destruction of cultural heritage in territories where the territorial state manifestly fails to comply with its own R2P. In this respect, the denotation of intentional destruction of cultural heritage as an offence against humanity as a whole makes the international obligation to prevent and avoid such destruction an obligation erga omnes, with respect to which any State other than the one directly injured by a violation may take lawful measures to ensure cessation of the breach and reparation in favour of the injured state or other victims of the breach, pursuant to the rule enshrined by article 54 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts. Among the possible measures to be taken in this respect, even recourse to military force would be possible, although only as ‘a last resort [and taking] the relevant decision [. . .] with the utmost caution’130 and preferably with the authorization and under the guidance of the UNSC, acting pursuant to Chapter VII of the UN Charter. This conclusion is corrob orated by the characterization of intentional destruction of cultural heritage as a threat to peace.131

12. Conclusion: Prohibition of Intentional Destruction of Cultural Heritage under Customary International Law Each human being passes through this world like a star shining for an instant and then falling down into the abysses of the universe. However, during such a short presence, any person—individually as well as within the community to which he or she belongs— may find the way to leave tracks to posterity and to make his or her star continue shining and challenging the passing of time. These light tracks represent the best of our passage in this world; they continue to shine through millennia with their beauty and brightness, keep our memory alive, bear with themselves the value of our essence and identity to the benefit of future generations, who make them part of their own identity and life, to become better and richer people. The sum of those light tracks is the cultural heritage of humanity. When a piece of this heritage is destroyed, an irreplaceable part of the 130 See Peter Hilpold, ‘From Humanitarian Intervention to the Responsibility to Protect’ in Peter Hilpold (ed), The Responsibility to Protect (R2P). A New Paradigm of International Law? (Brill/Nijhoff 2014) 1, 31. See also Lenzerini, ‘Terrorism, Conflicts and the Responsibility to Protect Cultural Heritage’ (n 127) 81. 131 See Section 9.

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Intentional Destruction of Cultural Heritage 99 c ommon inheritance of humanity is obliterated forever, the memory of those who created it is lost, and the cultural identity of those for whom the destroyed heritage is an essential part of life today is upset by an unhealable wound. Protection of cultural heritage against destruction is today a moral and legal imperative representing one of the priorities of the international community. In this respect, two rules of customary international law exist prohibiting intentional destruction of cultural heritage both in time of war and in peacetime—complementing the norms described in the previous sections. Concerning in particular the context of armed conflicts, the existence of such a customary rule is beyond any doubt and, as previously noted, has been certified by the ICTY with respect to both international and non-international armed conflicts.132 However, even in peacetime, acts of deliberate destruction of cultural heritage—at least of such heritage that is of great importance for humanity—are to be considered as prohibited by customary international law, by a rule finding its rationale in the fact that the significance of such a heritage transcends national borders, making the latter a fundamental value to be protected in the interest of the international community as a whole.133 Both the rules just noted are the source of erga omnes obligations upon all States and the whole of humanity, including not only present but future generations.

132 See text corresponding to nn 29 and 30. 133 For a comprehensive assessment of the legal arguments supporting the existence of the rules of customary international law indicated in the text, see Lenzerini, ‘The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage: One Step Forward and Two Steps Back’ (n 16) 132–40. For a more comprehensive analysis of the protection of cultural heritage under customary international law, see Chapter 23 in this Handbook.

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chapter 5

I n ter nationa l Cr im i na l L aw a n d the Protection of Cu ltu r a l H er itage Micaela Frulli

1. A Variety of Approaches to the Protection of Cultural Heritage through International Criminal Law: The Civilian Use, Cultural Value, and Human Dimension Rationales In the last two decades, international criminal law has become a crucial tool to foster the protection of cultural heritage. On the normative level, the main developments in this field consisted in the introduction of several rules criminalizing acts against cultural property or heritage1 in binding treaties and other international instruments dealing with the protection of cultural property in times of armed conflict. In addition, international criminal tribunals (hereafter ICTs) paved the way for implementing 1 There is no universally accepted definition of either cultural property or cultural heritage. Scholars have written excellent studies on the difference between these two legal concepts. See, for instance, Manlio Frigo, ‘Cultural Property v Cultural Heritage: A “Battle of Concepts” in International Law?’(2004) 86 International Review of the Red Cross 367. It is contended in this article that cultural property of uni versal value falls within the more specific concept of cultural heritage and deserves specific protection also in terms of penal sanctions.

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International Criminal Law and the Protection 101 individual criminal responsibility at the international level and, in their turn, advanced the development of new interpretations of the notions of crimes against humanity and genocide in order to include, in certain cases, serious attacks against cultural property in these two categories. The impression stemming from a comprehensive overview of relevant practice is that of three different and partially divergent rationales that have characterized the criminal ization of acts against cultural property and the adjudication of individual criminal liability in this area. The first two approaches—which I label civilian use and cultural value—emerged at different stages in international humanitarian law (IHL) and had a strong impact on the drafting of rules criminalizing acts against cultural property com mitted in times of armed conflict (see Section 2). The third approach, the human dimension approach, developed from the jurisprudence of ICTs and characterizes both the qualification of acts against cultural property as crimes against humanity (see Section 3) and the possible inclusion of this kind of act among the elements to be considered when assessing the mental element of the crime of genocide (see Section 4). The three approaches are in some ways at odds with each other. However they reflect three different existing dimensions underlying the protection of cultural heritage, and every effort should be made in order to reconcile the three rationales and to render them complementary rather than contradictory (Section 5).

2. Acts against Cultural Property as War Crimes If one looks at the criminalization of attacks against cultural property committed in times of war, two main courses of action may be detected.2 The first—which I call the civilian-use rationale—embodies a predominant IHL orientation and puts forward the main concern traditionally underlying the protection of cultural property during armed conflict, that is to say, sparing civilians from the consequences of war. The safeguard of property per se is only marginally taken into account.3 The second perspective devel oped more recently and reflects what I term a cultural-value approach, intended to

2 Scholars who have dealt with the legal protection of cultural property often refer to two ways of thinking about cultural property, opposing cultural internationalism to cultural nationalism as the two rationales underlying different treaties in this field: see John Henry Merryman, ‘Two ways of thinking about cultural property’ (1986) 80 American Journal of International Law 831. I will explore different lines of distinction that seem better to reflect the differences in legal instruments which focus on the criminal prosecution of crimes against cultural property. 3 Micaela Frulli, ‘The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest for Consistency’ (2011) 22 European Journal of International Law 203.

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102 Micaela Frulli directly criminalize acts against cultural heritage with a view to specifically protect the property for its intrinsic and universal value.

2.1 The Origins of the Civilian-Use/Cultural-Value Divide and Its Endurance in International Instruments Dealing with Individual Criminal Liability 2.1.1 The Geneses of the Two Approaches The first binding instruments providing for specific rules on the protection of cultural property date back to the Hague Conferences of 1899 and 1907. The Hague regulations reflected the civilian-use idea to spare the civilian population and those no longer taking part in the hostilities from deliberate attacks. These provisions were addressed to States and did not have the specific purpose of criminalizing individual behaviour; however, their wording (and the rationale underlying it) influenced the language employed many years later in the rules establishing individual liability for war crimes against cultural heritage.4 An attempt at establishing individual criminal liability at the international level for violations of the laws of war, including attacks against cultural property, was made after World War I. The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (established by the Preliminary Peace Conference of Paris in 1919) presented a draft list of war crimes, including the ‘wanton destruction of religious, charitable, educational and historic buildings and monuments’.5 However, political disagreement prevented the establishment of effective accountability mechan isms, and it was only after World War II that the punishment of war crimes, including those against cultural property, gained momentum. Article 6 of the Nuremberg Charter, establishing the International Military Tribunal, listed as war crimes ‘plunder of public and private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity’. This definition is quite vague and incomplete, and it still embodies a civilian-use justification. Its principal merit lies in the fact that it is the first international rule penalizing acts against cultural property that served as a basis for international criminal trials. The second, cultural-value–oriented, perspective prompted the development of a specific international treaty dedicated to the protection of cultural property in times of armed conflict. One of the reasons underlying the adoption of the 1954 Hague 4 See Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 annexed to Convention (IV) respecting the Laws and Customs of War on Land, art 27: ‘In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to reli gion, 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’; and art 56: ‘All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.’ 5 (1947) American Journal of International Law 14, 95, 114–15.

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International Criminal Law and the Protection 103 Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter the 1954 Hague Convention) was precisely the need to establish penal sanc tions. The latter were considered a decisive tool for the enforcement of IHL provisions protecting cultural property and crucial for purposes of deterrence and prevention.6 The sponsors of the 1954 Hague Convention intended to address the protection of a spe cific segment of cultural property whose protection was not distinctively addressed by the 1949 Geneva Conventions—namely, property of universal cultural value falling within the more definite concept of cultural heritage.7 During the preparatory phase leading to the adoption of the treaty, reference was often made to the protection of cul tural treasures of inestimable value, and this aim is clearly reflected in the definition of cultural property which opens the Convention.8 The idea emerged to protect this kind of property for itself, because of its intrinsic value and importance to humanity,9 above and beyond its everyday use by civilians, its importance for local communities, the civil ian casualties that could be caused by acts against such property, and the consequences that its destruction could bring on civilians living nearby. The results, however, were very limited in terms of penal provisions inserted in the Convention and very inadequate in terms of practical implementation.10 The endeavour to ensure the protection of cultural property per se, and not simply as ordinary civilian property, persisted with the 1977 Additional Protocols I and II to the 6 See, for instance, the position expressed by G. Berlia, ‘Report on the International Protection of Cultural Property by Penal Measures in the Event of Armed Conflict’ (8 March 1950) UNESCO Doc 5C/ PRG/6, Annex I, at 2. 7 See n 1. 8 Art 1, Definition of Cultural Property: ‘For the purposes of the present Convention, the term “cul tural property” shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or his tory, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of his torical 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; (b) 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 subparagraph (a); (c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as “centers containing monuments.”’ This is a very broad definition of cultural property that underlines the importance for the whole of humanity of property representing the cultural heritage of every people: for the first time the two expressions—cultural property and cultural heritage—were used in the same text. 9 This idea was not a new one; it was already enshrined in the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, signed in Washington in 1935 by twenty-one American states (better known as the Roerich Pact) with the aim ‘to preserve in any time of danger all nationally and privately owned immovable monuments which form the cultural treasure of peoples’, in times both of war and of peace. 10 The only provision inserted is the rather vaguely formulated art 28, which did not receive actual implementation at domestic level. Yet this was a common fate for all provisions criminalizing serious violations of the laws of war. The first criminal trials, at the domestic level, dealing with grave breaches of the 1949 Geneva Conventions took place only in the 1990s, see Rafaëlle Maison, ‘Les premiers cas d’application des disposition pénales des Conventions de Genève par le juridictions internes’ (1995) 6 European Journal of International Law 260.

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104 Micaela Frulli Geneva Conventions of 12 August 1949 (AP I and AP II). Article 53 AP I prohibits ‘any acts of hostility [. . .] directed against the historic monuments, works of art or places of worship’ that constitute ‘the cultural or spiritual heritage of peoples’, except where these properties are used for military purposes. It also forbids the use of cultural property ‘in support of the military effort’, in consonance with the 1954 Hague Convention, article 4(1). Article 16 AP II clarifies that these prohibitions also apply in the context of noninternational armed conflicts. Moreover, and more importantly in the perspective of enforcing individual criminal responsibility, article 85(4)(d) AP I establishes that an attack against ‘clearly-recognized historic monuments, works of arts or places of worship, which constitute the cultural or spiritual heritage of peoples’ constitutes a grave breach of the AP I and, hence, a war crime. No parallel provision is contained in AP II.

2.1.2 The Incoherent Development of Rules Penalizing Acts against Cultural Property It took a long time for new rules criminalizing attacks against cultural property (and other IHL violations) to be inserted in international instruments. In fact, when it hap pened the two different ways of approaching the criminalization of acts against cultural property described above re-emerged and progressed along parallel lines. Quite sur prisingly, there was no attempt to make them converge. The civilian-use approach is epitomized in the provisions on offences against cultural property—clearly inspired by traditional IHL rules—contained in the statutes of ICTs established by the UN Security Council in the 1990s. A close look at the statutes reveals that the provisions proscribing acts against cultural property were still inspired by general IHL instruments—mainly the Hague Regulations of 1907 and the Geneva Conventions of 1949—and that there was no attempt to draw offences more specifically shaped to criminalize serious acts against cultural heritage, notwithstanding the exist ence of the 1954 Hague Convention and the 1977 AP I and II. Relevant provisions include in their listing historic monuments, buildings dedicated to education and religion, and hospitals and places where the sick and wounded are collected. Hospitals need special protection because their destruction implies the killing of many civilians, sick and wounded, and impairs access to medical care by other people in the continuing conflict; churches and schools as well, although in other ways. The civilian-use approach sets as a clear priority the safeguarding of civilians, and protection is essentially afforded to buildings and immovable property. However, the traditional IHL approach fails to address the concern that historic buildings, monuments, and works of art deserve protection above and beyond their material dimension, precisely because of their cultural value both for the local commu nity and for humanity as a whole. The most relevant example is article 3(d) of the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which criminalizes acts of ‘seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’. This provision moves a small step forward—for at least it deals only with cultural property and no longer lists historic monuments together with

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International Criminal Law and the Protection 105 hospitals—but the phrasing chosen reflects no differentiation among different elements of property, and it only marginally takes into account the cultural value of the protected property. This is rather surprising, since extensive destruction of invaluable cultural property was taking place in the former Yugoslavia when the ICTY Statute was drafted, and there were specific suggestions by the UN Committee of Experts about the need to provide for criminal sanctions against these acts, with explicit reference to the rules contained in the 1954 Hague Convention. It is, therefore, disappointing that in the final text of the ICTY Statute the language echoes older and less precise provisions, in light of the fact that all belligerents were parties to the 1954 Hague Convention and to its First Protocol.11 The ICTY Statute, in its turn, influenced the following steps taken to introduce provi sions criminalizing acts against cultural heritage in subsequent international instru ments. Most likely, the lack of more specific offences in the ICTY Statute—which brought the ICTY judges to a rich and elaborated jurisprudence on the issue—had as a positive consequence, at least, an emphasis on the need to include adequately defined criminal offences describing acts against cultural property in the text of Protocol II to the 1954 Hague Convention. Admittedly, the wording of article 3(d) also had a negative impact on the drafting of the rules criminalizing acts against cultural property included in the ICC Statute, which are rather backward-looking with respect to crimes against cultural property, as will be exposed below.

2.2 The Civilian Use/Cultural Value Divide in the Comparison of the ICC Statute and Protocol II to the 1954 Hague Convention 2.2.1 The Definition of Offences The ICC Statute adopts a twofold approach to war crimes, and it penalizes separately offences committed in international and non-international armed conflicts; there is thus an imperfect correspondence between the two spheres.12 The provisions specific ally prohibiting acts against cultural property—articles 8(2)(b)(ix) and 8(2)(e)(iv)—are identical for both international and non-international armed conflicts, and, at least in this respect, the ICC Statute is in line with the approach followed by the 1954 Hague Convention and its Protocol II, which are applicable in international and non-international armed conflicts. However, their text recalls the language of the Hague Regulations of 11 Yugoslavia was a High Contracting Party to the 1954 Hague Convention and 1954 Hague Protocol; after its dissolution the successor States have all become parties: Croatia (1992), Slovenia (1992), Bosnia and Herzegovina (1993), The Former Yugoslav Republic of Macedonia (1997), Serbia (2001), and Montenegro (2007). 12 The distinction is regrettable in many respects, and it has been widely criticized by scholars for being retrograde: see Antonio Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 150.

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106 Micaela Frulli 1907 since it forbids ‘intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’. This very general list of protected property reverts to including in the same provision acts against historic monuments, hospitals, and places where the sick and wounded are collected. The widely recognized necessity to draft more specific provisions and to take into consideration a cultural-value approach for the purposes of criminaliz ing conduct against cultural property of universal importance, which prompted in those same years the negotiation of Protocol II to the 1954 Hague Convention, was completely overlooked. On the other hand, Protocol II to the 1954 Hague Convention advances the cultural-value rationale and—building on the precise definition of cultural property included in the Convention—defines a set of serious offences to the Protocol itself. Article 15 reads: 1. 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. A cultural-value approach may be also inferred from the introduction of a differenti ation in gravity for acts against cultural property. The Protocol de facto distinguishes between two classes of offences and provides that those committed against property under enhanced protection entail more serious consequences. All the offences listed in article 15 of Protocol II to the 1954 Hague Convention are labelled as serious violations, but only the first three—among which the first two concern property under enhanced protection—correspond to what are called grave breaches in the Geneva Conventions and Additional Protocols. Accordingly, States Parties also have a duty to try or extradite any person who committed such serious violations—that is to say, to exercise universal jurisdiction whenever an alleged offender of another State Party is present on their territory. Looking for some consistency between the two legal instruments under review, one finds at least a positive feature characterizing both the provisions of Protocol II to the 1954 Hague Convention and the ICC Statute. None of the mentioned provisions requires

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International Criminal Law and the Protection 107 destruction to occur in order to penalize attacks against cultural property: it suffices that the attack was intentionally directed at the protected property.13

2.2.2 The Cultural-Value Approach Making Its Way through the Jurisprudence of ICTs However, notwithstanding the missed opportunity to take into consideration a culturalvalue rationale in the drafting process of ICT Statutes, a brief overview of the case law of the ICTY and of the ICC shows that this approach filtered through the reasoning of both courts and is reflected in a few of their final judgments. 2.2.2.1 Case Law of the ICTY The conflict in the former Yugoslavia showed the magnitude of the damages caused by serious attacks against cultural monuments of great importance for the cultural heritage of humanity; it suffices here to mention the Mostar Bridge, the National Library in Sarajevo, and the Old Town of Dubrovnik to give the idea of an incomparable loss.14 The focus will be here mainly on cases related to the destruction of historic monuments,15 to see whether provisions drafted with a civilian-use rationale were adequate to pursue a cultural-value purpose. The most relevant cases refer to the destruction of historic monuments in the Old Town of Dubrovnik: an initial indictment against Strugar, Jokić, Zeć, and Kovacević was issued on 22 February 200116 but remained sealed until October 2001. The indictments relating to this case these were later amended and separated.17 The Jokić case is one of the most interesting to show how cultural-value considerations entered into the picture. In establishing the facts of the case, the Trial Chamber main tained that ‘Jokić was aware of the Old Town’s status, in its entirety, as a United Nations Educational, Scientific and Cultural Organization (UNESCO) World Cultural Heritage site pursuant to the 1972 Convention for the Protection of the World Cultural and 13 Contra art 85(4)(d) Additional Protocol I to the Geneva Conventions. There are other very serious inconsistencies between the two documents, specifically regarding the lack of any mention of movable property in the ICC Statute and the delicate issue of military necessity; see Frulli, ‘The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict’ (n 3). 14 See Annex XI. Destruction of cultural property report, attached to the Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) UN doc S/1994/674/Add 2 (Vol V) 28 December 1994. 15 It is not possible here to give full account of the ICTY case law dealing with serious attacks against institutions dedicated to religion or education charged under art 3(d) and under less specific provisions contained in the ICTY Statutes. For detailed analyses, see Micaela Frulli, ‘Advancing the Protection of Cultural Property through the Implementation of Individual Criminal Responsibility: The Case-Law of the International Criminal Tribunal for the Former Yugoslavia’ (2005) 15 The Italian Yearbook of International Law 195 (hereafter Frulli, ‘Advancing the Protection of Cultural Property‘); Serge Brammertz, Kevin C. Hughes, Alison Kipp, and William B. Tomljanovich, ‘Attacks against Cultural Heritage as a Weapon of War: Prosecutions at the ICTY’ (2016) 14 Journal of International Criminal Justice 1143. 16 Prosecutor v Strugar, Jokić, Zec, Kovacević (Initial Indictment), IT-01-42 (22 February 2001). 17 See, for instance, Prosecutor v Jokić (hereafter Jokić) IT-01-42, Second Amended Indictment (27 August 2003), Counts 4–6.

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108 Micaela Frulli Natural Heritage’.18 Throughout the judgment, express reference is made to all the most important international conventions on the protection of cultural property, and the Jokić Chamber did not miss the opportunity to dwell at length on the issue. The judges underlined that ‘[t]he whole of the Old Town of Dubrovnik was considered, at the time of the events contained in the Indictment, an especially important part of the world cultural heritage. It was, among other things, an outstanding architectural ensemble illustrating a significant stage in human history. The shelling attack on the Old Town was an attack not only against the history and heritage of the region, but also against the cultural heritage of humankind.’19 In fact, this was the first time that the ICTY judges had to pronounce themselves on a very serious attack on an internationally protected town full of historic monuments, rather than ‘only’ attacks on single institutions or buildings dedicated to religion or edu cation. In grounding their sentencing decision, the judges took into account the gravity of such crimes and stressed at length the reasons why these kinds of attacks against cul tural heritage bear an inherent gravity.20 Later on, Pavle Strugar was also sentenced for the shelling of the Old Town of Dubrovnik.21 It is also interesting to stress that also the human dimension rationale (that mainly characterizes the qualification of acts against cultural property as crimes against human ity, as will be shown in Section 3) sneaks into the assessment of gravity made by the ICTY judges with respect to acts to be charged as war crimes under article 3(d) of the Statute. In Hadzihasanovic and Kubura, the judges stressed that the spiritual value of religious institutions must be taken into account when assessing the gravity of acts against cultural property and eventually found that vandalizing religious sites may be a war crime under article 3(d) .22 Another ICTY judgment that took into account the various dimensions underlying the offences against cultural property is Prlić et al. concerning the destruction of the Old 18 He was further aware that a number of buildings in the Old Town and the towers of the Old Town’s Walls were marked with the symbols mandated by the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. Jokić (Judgment) IT-01-42/1-S (18 March 2004) para 23. 19 Ibid, para 51. 20 ‘The Trial Chamber finds that, since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially pro tected site, such as the Old Town, constituted of civilian buildings and resulting in extensive destruction within the site.’ They also underlined the fact that restoration is possible but that it can never return the buildings to their original status: ‘Restoration of buildings of this kind, when possible, can never return the buildings to their state prior to the attack because a certain amount of original, historically authentic, material will have been destroyed, thus affecting the inherent value of the buildings’, ibid, para 51. 21 The Strugar Chamber built its reasoning on the Jokić case in condemning the accused; Prosecutor v Strugar (hereafter Strugar) (Judgment) IT-01-42-T (31 January 2005). 22 ‘The Chamber considers that the seriousness of the crime of destruction of or damage to institu tions dedicated to religion must be ascertained on a case-by-case basis, and take much greater account of the spiritual value of the damaged or destroyed property than the material extent of the damage or destruction’, Prosecutor v Hadzihasanovic and Kubura (Judgment) IT-01-47-T (5 December 2006) para 63.

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International Criminal Law and the Protection 109 Bridge of Mostar (Stari Most) and other religious properties in East Mostar.23 On one hand, the Trial Chamber highlighted the historical and symbolic value of the Old Bridge and expressed surprise that the prosecution failed to qualify the destruction of the bridge as that of a historic monument, separately from other religious buildings. On the other, the judges stressed, as had already been done in Hadzihasanović and Kubura, that the bridge was particularly important for the Muslim community24 and affirmed that its destruction ‘had a significant psychological impact on the Muslim population in Mostar’, making some room for the human dimension rationale.25 However, the Appeals Chamber partially reversed the Trial Chamber findings and found that the destruction of the Old Bridge of Mostar was justified by military necessity, thus failing to take into account the Stari Most as a landmark of cultural property.26 2.2.2.2 Case Law of the ICC As said above, the provisions on war crimes against cultural property inserted in the ICC Statute are quite regressive. However, the first ICC judgment dealing with the destruction of cultural property, the Al Mahdi case, has partially taken into account the inputs offered by the ICTY jurisprudence both in terms of a cultural-value approach and, to a more limited extent, of a human dimension rationale.27 In assessing the gravity of the crimes, the ICC Trial Chamber (following the ICTY example in Jokić and Strugar) referred to the universal cultural value of the damaged sites—for the most part listed in the UNESCO World Heritage Convention28—and stated that their destruction was extremely serious because it affected not only the local population but also the international community.29 It has been contended that 23 Prosecutor v Prlić et al (hereafter Prlić et al) (Judgment) IT-04-74-AT (29 May 2013). 24 ‘The Old Bridge also symbolized the link between the communities, despite their religious differences. Lastly, the Chamber notes that although the Old Bridge was one of the major symbols of the Balkan region, it was of particular value to the Muslim community’; ibid, para 1282. 25 ‘In addition, the Chamber also established [. . .] that between June and December 1993, the HVO deliberately destroyed ten mosques in East Mostar, which had no military value, as well as the Old Bridge of Mostar on 8 November 1993, whose destruction had a major psychological impact on the morale of the population; that the HVO had to be aware of that impact—as well as of the impact of the destruction of ten institutions dedicated to religion—in particular because of its great symbolic, cultural and historical value’; ibid, vol 3 para 1960. 26 Prlić et al. (Judgment), IT-04-74-A (29 November 2017) para 414 (Judge Pocar dissenting). 27 The Prosecutor v Ahmad Al Faqi Al Mahdi (hereafter Al Mahdi) (Judgment) ICC-01/12-01/15 (27 September 2016). See Paige Casaly, ‘Al Mahdi before the ICC: Cultural Property and World Heritage in International Criminal Law’ (2016) 14 Journal of International Criminal Justice 1199; Mohamed Elewa Badar and Noelle Higgins, ‘Discussion Interrupted: The Destruction and Protection of Cultural Property under International Law and Islamic Law—the Case of Prosecutor v Al Mahdi’ (2017) 17 International and Comparative Law Review 486. 28 ‘UNESCO’s designation of these buildings reflects their special importance to international cultural heritage, noting that “the wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of man and constitute a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern”. Attacking these mausoleums and mosques was clearly an affront to these values’; Al Mahdi (n 27) para 46. 29 Ibid, para 80.

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110 Micaela Frulli international criminal law used World Heritage status as ‘a proxy for gravity in the c ommission of the war crime of internationally directing attacks against cultural heritage’.30 Indeed, setting the World Heritage List as a parameter for assessing the grav ity of the destruction of cultural property is one of the possible ways to take into account the cultural-value dimension that was neglected when drafting the provisions inserted in the ICC Statute. However, this does not mean that the destruction of cultural property not included in the UNESCO list may not be qualified as a war crime; other factors may be taken into account, including the impact of the destruction of the sites on the local population and on their identity embodied on religious and cultural sites. In fact, the ICC Trial Chamber noted that the inhabitants of Timbuktu (and of Mali more generally) had a strong emo tional attachment to the damaged sites and suffered their destruction as an attack aimed at breaking their soul.31 Hence, the universal value of cultural heritage is not the only aspect to be considered; actually, the human dimension will often surface in this kind of case, since cultural sites are always inextricably linked to the identity and history of the populations living nearby and attaching special significance to religious place, buildings, or historic monuments.32

3. Acts against Cultural Property as Crimes against Humanity Other categories of international crimes may better serve the purpose of highlighting the gravity of the destruction of cultural property in terms of their impact on the identity and on the rights of the local communities: the category of crimes against humanity and, more specifically, the crime of persecution. The qualification of attacks against cultural and religious sites as crimes against humanity of persecution is not a recent develop ment but dates back to the Charter and the judgment of the Nuremberg International Military Tribunal. Article 6 of the Charter establishing the International Military Tribunal, under para graph (c), defined ‘[c]rimes against humanity’ as ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not 30 Casaly (n 27), 1216; the author considers this as a ‘negative’ development. 31 ‘The Chamber notes the testimony of P-431 [. . .], the witness testified that destroying the mauso leums, to which the people of Timbuktu had an emotional attachment, was a war activity aimed at break ing the soul of the people of Timbuktu’; Al Mahdi (n 27), para 80 32 See Federica Mucci, ‘Short and Quickly Delivered, yet Quite Full of Meaning: The International Criminal Court Judgment about the Intentional Destruction of Cultural Heritage in Timbuktu’ (2016) 8 European Journal of Public Law 415, 420–1.

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International Criminal Law and the Protection 111 in violation of the domestic law of the country where perpetrated’ (emphasis added). It is noteworthy that persecution on political, racial, or religious grounds was already clearly listed among crimes against humanity and that subsequent definitions borrowed from article 6(c) this terminology, providing for the same discriminatory grounds. However, the requirement that persecution—as any other crime against humanity—be perpetrated ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal’ compromised the possibility of prosecuting crimes against humanity per petrated ‘before the war’, and the judgments ultimately confirmed such a shortcoming, with a few convictions under this count. The Tribunal sentenced Alfred Rosenberg, on the charge of crimes against humanity, for having organized the systematic plunder of public and private property in countries invaded by Germany, including the seizure of art treasures and collections from museums and libraries.33 Similarly, the judges found Julius Streicher guilty of crimes against humanity for having ordered the destruction of the Nuremberg Synagogue in 1938.34 At a later time, in 1960, Israeli judges condemned Adolf Eichmann for war crimes and crimes against humanity, establishing that the destruction of synagogues and other buildings dedicated to religion may amount to persecution.35 Finally, the International Law Commission (ILC) dealt with this issue during the preparatory works of the Draft Code of Crimes against Peace and Security of Mankind. In its 1991 report, the ILC underlined that the systematic destruction of monuments, buildings, or sites bearing a highly symbolic value for a specific social, religious or cultural group must be included among acts of persecution.36 It is indeed on these precedents that the ICTY based its jurisprudence on the prosecution of acts against cultural property as crimes against humanity.

3.1 The Lack of a Specific Definition of the Crime of Cultural Persecution and the Developments of ICT’s Case Law Looking at the provisions describing crimes against humanity in the ICT’s statutes, one does not find a specific definition of persecution. The only clear element stemming from the definitions is the discriminatory element characterizing acts of persecution and differentiating these acts from other crimes against humanity. The ICTY Statute, under article 5(h), lists among crimes against humanity ‘persecu tions on political, racial and religious grounds’,37 echoing article 6(c) of the Nuremberg Charter. Given the general character of these provisions, the scope of the crime against 33 See Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 American Journal of International Law 172. 34 Ibid. 35 Attorney-General of the Government of Israel v Adolf Eichmann (District Court of Jerusalem, 1961, para 57). The judgment may be found in 136 International Law Reports, at 5. 36 See Report of the International Law Commission on the Work of its Forty-Third Session, UN doc A/46/10/suppl 10 (1991), at 268, commentary on art 21, para 9. 37 The formula is identical in art 3(h) of the ICTR Statute.

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112 Micaela Frulli humanity of persecution, including its cultural dimension, has mostly been defined through the jurisprudence. The ICC Statute added some details to the definition of persecution: article 7 appears to some extent more progressive than the previous rules, but it also bears elements of restraint. On the positive side, article 7(1)(h) mentions, besides the traditional grounds of persecution, ‘ethnic’, ‘national’, ‘gender’, and ‘cultural’ grounds.38 The listing of dis criminatory grounds is not exhaustive, since the article also covers ‘other grounds that are universally recognized as impermissible under international law’. In addition, article 7(2)(g) further clarifies that persecution means ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. However, the Statute appears to be narrower than customary inter national law with respect to one element of the definition: persecution, in order to fall within the Court’s jurisdiction, must be committed ‘in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court’, while apparently under customary international law this is not required.

3.2 ICTY Case Law on the Crime of Persecution The ICTY made a great effort to elaborate its own definition of persecution as a crime against humanity and, in doing so, it also included attacks against cultural and religious property in the scope of the crime of persecution. As a first step, in Kupreskić, the ICTY judges found that the material element of the crime of persecution may include various kinds of acts against persons but also against property, if they reach a certain degree of seriousness. In fact, they found that the comprehensive destruction of homes and property belonging to the Muslim population wiped out the livelihood of that part of the population and amounted to a gross or blatant denial of their fundamental human rights, and, more specifically, being committed on discriminatory grounds it constituted persecution.39 A few months later, in the Blaskić trial judgment, it was explicitly stated that attacks against institutions dedicated to religion may amount to persecution. Blaskić was found guilty of war crimes under article 3(d) of the ICTY Statute for ordering acts of damage or destruction against institutions dedicated to religion or education belonging to the Muslim civilian population of Bosnia and Herzegovina. The Chamber additionally qualified such acts as persecution.40 The judges stressed that when the destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments, and to works of art and science is committed with a discriminatory intent, in order to annihilate a community reflecting its cultural identity 38 It has been said that the ICC Statute restores the criminality of persecution of groups excluded from protection by the exhaustive list under art II of the Genocide Convention. See in this sense Gregory H. Stanton, ‘Why the World Needs an International Convention on Crimes against Humanity’ in Leila Nadya Sadat (ed), Forging a Convention for Crimes against Humanity (Cambridge University Press 2011) 345, 356. 39 Prosecutor v Kupreskić (hereafter Kupreskić) (Judgment) IT-95-16-T (14 January 2000) para 631. 40 Prosecutor v Blaškić (hereafter Blaškić) (Judgment), IT-95-14-T (3 March 2000) para 233.

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International Criminal Law and the Protection 113 in the heritage concerned, it reaches a higher degree of gravity. The Appeals Chamber upheld this position, reaffirming that cultural property is to be protected not only for its own sake, but also because it represents the identity of a particular group.41 In the Kordić/Cerkez judgment, Trial Chamber I added another element when it maintained that attacks against religious or cultural sites or buildings aim at destroying the very identity of the targeted group. According to the judges, similar acts of destruction, when perpetrated with a discriminatory intent, amount to an attack on the very religious identity of a people. They also added that such attacks manifest ‘a nearly pure expression of the notion of “crimes against humanity”, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects’.42 Subsequently, a substantial number of suspects have been sentenced under article 5(h) for attacks against cultural and religious property. The cultural and historical importance of (damaged or destroyed) monuments and institutions dedicated to educa tion and religion has been increasingly emphasized in the judgments. To give another relevant example, one may quote the following excerpt from the Plavsić judgment: 29 of the 37 municipalities listed in the Indictment possessed cultural monuments and sacred sites that were destroyed. This includes the destruction of over 100 mosques, 2 mektebs and 7 Catholic churches. Some of these monuments were located in the Foca, Visegrad and Zvornik municipalities, and dated from the Middle Ages. They were, quite obviously, culturally, historically and regionally significant sites. As one example, the Prosecution referred to the wanton destruction of the Alid`a mosque in Foca, which had been in existence since the year 1550. According to the witness, this mosque was a ‘pearl amongst the cultural heritage in this part of Europe’.43

Significantly, the ICTY has further crystallized the requirements of the underlying act of ‘destruction of religious or cultural buildings as a form of persecution’ in Sainović et al.44 Lately, in Karadžić, the Trial Chamber found that the wanton destruction of cultural moments and sacred sites constituted acts of persecution as a crime against humanity.45 Most recently, in Prlić et al, the destruction of mosques and of the Old Bridge of Mostar were also qualified as crimes against humanity. The Trial Chamber found that the Old Bridge of Mostar was of ‘immense cultural, historical and symbolic value for the Muslims in particular’.46 The judges also noted that its destruction resulted in virtually total isolation of the inhabitants of the Muslim enclave in Mostar and that ‘the destruction of the Old Bridge had a serious effect on the morale of the population in Mostar, particularly on the Muslims residing in East Mostar’.47 Lastly, the Trial Chamber found that the HVO (Bosnian Croat army) committed all these crimes ‘with the intention 41 Blaškić (n 40) (29 July 2004) para 149. 42 Kupreskić (n 39), para 207. 43 Prosecutor v Plavsić (Judgment) IT-00-39&40/1-S (27 February 2003) para 44. 44 Prosecutor v Sainović et al (Judgment), IT-05-87-T (26 February 2009) para 206. 45 Prosecutor v Karadžić (Judgment) IT-95-5/18-T (24 March 2016), paras 2554, 2556, 2559. 46 Prosecutor v Prlić et al. (hereafter Prlić et al) (Judgment), IT-04-74-AT (29 May 2013) vol 2, para 1585. 47 Ibid, vol 2, para 1357.

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114 Micaela Frulli of discriminating against the Muslims of the Municipality of Mostar and violating their basic rights to life, human dignity, freedom and property between May 1993 and April 1994, and that these crimes constitute the crime of persecution’.48 Regrettably, however, the Appeals Chamber overturned the trial judgment and acquitted the defendants of the charge of persecution arising from the destruction of the Old Bridge of Mostar, in light of the fact that the destruction was considered justified by military necessity.49 This decision is indeed to be criticized because it failed to acknow ledge that persecution as a crime against humanity does not require the underlying acts to be crimes under international law.50 Irrespective of its conclusion that the destruction of the Stari Most did not constitute wanton destruction unjustified by military necessity, the Appeals Chamber failed to determine whether such destruction could still be con sidered an act of persecution as a crime against humanity. Indeed, in light of the findings of the Trial Chamber, summarized above, pointing out the symbolic value of the Old Bridge of Mostar to Muslims and showing that the HVO intended to discriminate against Muslims through its destruction, the conclusions of the Appeals Chamber are deceiving and represent a step backwards in the tendency to foster a human dimension rationale in prosecuting crimes against cultural heritage. This very concise overview shows that the destruction of cultural, religious, or his toric monuments not only bears an inherent gravity but may also constitute a serious crime against persons, who are injured by the devastation brought to sites and monu ments bearing a highly symbolic value for them. Through the destruction of institutions dedicated to education and religion, those affected are also very often deprived of some of their fundamental rights. Some may argue that classifying attacks against cultural property as crimes against humanity undermines the importance attached to protection of cultural heritage per se by again focusing on individuals. In my opinion, the opposite view may be upheld: cat egorizing attacks against cultural or religious institutions as acts of persecution shows how important cultural property is for the life and identity of every human group and, on a more general level, for the heritage of mankind. In other words, the cultural value and the human dimension rationales are mutually reinforcing and do not exclude each other, as one may infer also from the Al Mahdi case. It is remarkable that, although the case was dealing ‘only’ with charges of war crimes, the judges referred to a discrimin atory element.51 48 Ibid, vol 3, paras 1171–3. 49 See supra, paragraph 2B. 50 As highlighted by Judge Pocar in his Dissenting Opinion appended to the Judgment. See also Prosecutor v Popović (Judgment) IT-05-88-A (30 January 2015) para 738; Prosecutor v Brdanin (Judgment) IT-99-36-A (3 April 2007) para 296; Prosecutor v Kvocka (Judgement) IT-98-30/1-A (28 February 2005) para 323. 51 See Mucci (n 32) 412. Some authors contended that it would have been preferable and more appro priate to charge Al Mahdi under the heading of crimes against humanity instead of prosecuting him for war crimes. See Sebastián A. Green Martínez, ‘Destruction of Cultural Heritage in Northern Mali, a Crime Against Humanity?’ (2015) 13 Journal of International Criminal Justice 107; and William Schabas, ‘Al Mahdi Has Been Convicted of a Crime He Did Not Commit’ (2017) 49(1) Case Western Reserve Journal of International Law 75.

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International Criminal Law and the Protection 115

4. The Missing Piece: Cultural Genocide The Nuremberg judgment never used the term ‘genocide’, since such crime was not included in the Statute of Tribunal, although the judges actually described at length what a few years later would be legally defined as genocide in the 1948 Convention on the Prevention and the Punishment of the Crime of Genocide. In compliance with the principle of nullum crimen sine lege, the Nazi war criminals were convicted by the Nuremberg Tribunal for the atrocities committed, including acts of persecution and destruction of cultural heritage, under the charges of war crimes and crimes against humanity. As it is well known, the term ‘genocide’ was invented by Raphael Lemkin, a Polish jurist, and in his view this appalling crime undoubtedly included a cultural dimension. In his words, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.52

However, the definition of genocide inserted in the 1948 Convention on the Prevention and the Punishment of the Crimes of Genocide does not include ‘cultural genocide’. The definition encompasses only acts of physical or biological destruction committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.53 This result reflects a conscious choice made by States participating in the negotiation of the Convention to opt for a narrow definition.54

52 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Carnegie Endowment for International Peace 1944) 79–80. 53 Art II: ‘In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.’ 54 See Elisa Novic, The Concept of Cultural Genocide. An International Law Perspective (Oxford University Press 2016), at 27.

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116 Micaela Frulli The definition of genocide crystallized in this form in subsequent international instruments: it may be found almost unaltered in the Statutes of the ICTs, respectively article 4 of the ICTY Statute, article 2 of the ICTR Statute, and article 6 of the ICC Statute. Notwithstanding the restricted definition of genocide, the heinous crimes committed in many conflicts and crises clearly showed that the attempted physical elimination of a specific group inevitably goes together with the attempt to destroy the cultural and religious symbols of the same group. Institutions and buildings dedicated to religion or education, monuments, museums, libraries, and any other objects that could recall the existence of the target group are to be destroyed in order to annihilate the group itself. This held certainly true for the crimes committed in the former Yugoslavia, and the ICTY gave a relevant contribution to the ‘reappraisal’ of the cultural dimension of the crime of genocide, at least as far as the mens rea is concerned.55

4.1 ICTY Case Law on the Mens Rea of Genocide In fact, the ICTY case law also fostered the human dimension rationale by classifying the destruction of cultural property as an element to be considered for assessing the mens rea of genocide. In the Krstić case, Trial Chamber I firmly established that the destruction of institutions dedicated to religion or culture may be considered as an element to prove the specific intent (dolus specialis) required for the crime of genocide.56 The Trial Chamber reaffirmed that customary international law confines the definition of genocide to acts aiming at the physical or biological destruction of all or part of a specific group. However, it also pointed out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group. In this case, the Trial Chamber will thus take into account as evidence of intent to destroy the group the deliberate destruction of mosques and houses belonging to members of the group.57 55 Prosecutor v Karadžić and Mladić (Review of the Indictment Pursuant to Rule 61) IT-95-5/18-R61 (11 July 1996) para 94: ‘The intent may also be inferred from the perpetration of acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group–acts which are not in themselves covered by the list in article 4(2) but which are committed as part of the same pattern of conduct.’ 56 The mens rea of the crime is defined by article II of the Genocide Convention as ‘the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such’. 57 Prosecutor v Krstić (hereafter Krstić) (Judgment) IT-98-33-T (2 August 2001) para 580. The Trial Chamber recalled a number of decisions that have read the intent to destroy as encompassing evidence relating to acts that involved cultural and other non-physical forms of destruction, such as the UNGA Resolution on ethnic cleansing (Res 47/121 of 18 December 1992) and the Decision of the Federal Constitutional Court of Germany of 12 December 2000, Federal Constitutional Court, 2 BvR 1290/99, 12 December 2000.

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International Criminal Law and the Protection 117 Judge Shahabudden further elaborated on this issue in his partial dissenting opinion appended to the Krstić Appeals judgment, where he added: ‘The destruction of culture may serve evidentially to confirm an intent, to be gathered from other circumstances, to destroy the group as such. In this case, the razing of the principal mosque confirms an intent to destroy the Srebrenica part of the Bosnian Muslim group’.58 The ICTY has restated such an approach in several cases. In Blagojević and Jokić the judges held that ‘[w]hile the listed acts [of genocide] indeed must take a physical or bio logical form, the same is not required for the intent’.59 In Krajišnik60 and in Karadžić61 the Trial Chambers endorsed this interpretation. Interestingly, the ICTR also held that attacks on property belonging to the group could provide sufficient evidence of the specific intent.62 The ICTY case law on crimes against humanity and on the assessment of the mental element of genocide set out very precious precedents indeed, also paving the way for the prosecution of serious crimes against cultural heritage committed in times of peace, not only in times of armed conflict.

4.2 A Case Study: ‘Cultural Genocide’ in Cambodia under the Khmer Rouge Regime It is interesting to move a step backwards in time to address the appalling crimes com mitted in Cambodia in the 1970s under the Khmer Rouge regime, since they included the systematic targeting of cultural and religious property, prosecuted many years later by the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC is a mixed criminal court established in 2003 to adjudicate the former political and military leaders responsible for the ‘crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recog nized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979’.63 58 Krstić (n 57) IT-98-33-A (19 April 2004) Dissenting Opinion Judge Shahabudden, para 53. 59 Prosecutor v Blagojević and Jokić (Judgment) IT-02-60-T (17 January 2005) para 659. 60 Prosecutor v Krajišnik, (Judgment) IT-00-39-T (27 September 2006) para 854. 61 ‘The Genocide Convention and customary international law prohibit only the physical and bio logical destruction of a group, not attacks on cultural or religious property or symbols of the group. However, while such attacks may not constitute underlying acts of genocide, they may be considered evidence of intent to physically destroy the group’; Prosecutor v Karadžić (Judgment) IT-95-5/18-T (24 March 2016) para 553. See also Prosecutor v Tolimir (Judgment) IT-05-88/2-A (8 April 2015) para 230. 62 Prosecutor v Kayishema and Ruzindana (Judgment) ICTR-95-1 (21 May 1999) para 93: ‘[T]he Chamber considers evidence [. . .] the physical targeting of the [. . .] property [of the group].’ 63 Art 1, Law on the establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, 27-10-2004, available at accessed June 2018. Art 6 mentions unnecessary destruction of property as set forth in the 1949 Geneva Conventions, art 7 explicitly criminalizes violations of the 1954 Hague Convention on Cultural property, and art 9 mentions genocide.

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118 Micaela Frulli In April 1975, the Communist Party of Kampuchea (CPK), also known as the Khmer Rouge, seized power in Cambodia and renamed the country ‘Democratic Kampuchea’.64 The CPK’s leadership comprised, among others, Pol Pot, as Prime Minister, and Ieng Sary, Deputy Prime Minister and Minister of Foreign Affairs. Pol Pot’s dictatorial regime massacred and dislocated almost two million Cambodians, targeting all those elements in the Cambodian society regarded as enemies of the new communist system.65 In add ition, the Khmer Rouge targeted several ethnic and religious minorities such as the Cham Muslims and ethnic Vietnamese, Chinese, and Thai. In particular, with respect to the Khmer Rouge’s attack on Cham Muslims, more than one-third of them perished during Democratic Kampuchea:66 they were killed or forcibly transferred, and their reli gious and political leaders were executed.67 An equally serious attack was levelled by the Khmer Rouge against Buddhism. The Khmer Rouge deliberately attacked and destroyed pagodas, Buddhist monasteries, sanctuaries, statuary, relics, and schools. The Khmer Rouge also perpetrated acts of destruction of libraries and burning of books during Democratic Kampuchea, targeting primarily Buddhist literature. From the foregoing short account of the extensive destruction of cultural property during the regime, it may be inferred that the Khmer Rouge’s plan was to eradicate Buddhism and any other religion, such as Cham culture and the practice of Islam, Catholicism among the Vietnamese, and animism practised by the highlands tribes in Cambodia.68 Following the 1979 invasion of Cambodia by Vietnam, the government of the newly installed People’s Republic of Kampuchea issued Decree-Law No. 1 establishing a People’s Revolutionary Tribunal to judge the genocide and other atrocities committed by the Pol Pot–Ieng Sary regime.69 Since the Decree-Law already presumed that the accused were guilty, the trial, held in absentia, imposed the death penalty on Pol Pot and Ieng Sary. However, it was regarded by the international community and by commenta tors as a politically designed ‘show trial’.70 In spite of this, it is noteworthy that the Decree-Law defined genocide as ‘the planned mass killing of innocent people, the forced evacuation of the inhabitants of towns and villages, the rounding up of the population and forcing them to labour in physically exhausting conditions, the banning of religious practices, the destruction of economic and cultural institutions and social relations’.71 This 64 On Khmer Rouge destruction of Cambodian heritage and its prosecution, see Caroline Ehlert, Prosecuting the Destruction of Cultural Property in International Criminal Law: With a Case Study on the Khmer Rouge’s Destruction of Cambodia’s Heritage (Brill 2013); Anees Ahmed and Ilze Tralmaka, ‘Prosecuting Genocide at the Khmer Rouge Tribunal’ (2009) 1 City University of Hong Kong Law Review 105. 65 See in this sense Ehlert (n 64). 66 See Ahmed and Tralmaka (n 64). 67 ECCC, Case 002 (002/19-09-2007-ECCC-OCIJ) Closing Order (Indictment) 15 September 2010, para 756. 68 See in this sense Ehlert (n 64) and Ahmed and Tralmaka (n 64). Christian churches were also destroyed by the Khmer Rouge, e.g. the French Catholic Cathedral in Phnom Penh. 69 UN Doc A/C.3/34/1. 70 Suzanna Linton, ‘Putting Cambodia’s extraordinary chambers into context’ (2007) 11 Singapore Yearbook of International Law 195. 71 UN Doc A/34/491, 34 (emphasis added).

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International Criminal Law and the Protection 119 definition had the principal merit of showing how the physical and cultural dimensions of a genocidal campaign are intertwined; nonetheless, it is still hotly debated whether the crimes against cultural property committed in Cambodia during the Khmer Rouge regime amounted to acts of genocide. When the ECCC had the chance to prosecute crimes committed by the Khmer Rouge,72 the judges referred to the conventional notion of genocide and refrained from broadening the definition. Hence, the ECCC prosecuted Khmer Rouge’s acts against cultural property mainly as war crimes and crimes against humanity.73 Some scholars have argued that the available evidence of the targeting of the Chams and the Buddhist monks by the Khmer Rouge regime could support a prosecution—by the ECCC—of those responsible under the count of genocide and suggested this would be the preferred option, due to the enormous public, historical, and jurisprudential significance of such a choice.74 Others contended that the acts targeting cultural and religious property could be considered as evidence of a genocidal intent.75 William Schabas indirectly recognized that the attack brought against the Muslim Cham and the Buddhist as ‘essentially cultural genocide’ and, as such, falling short of what is proscribed by the Genocide Convention.76 Some scholars wholly rejected such a qualification.77 Most commentators regarded acts against cultural property committed during the Pol Pot regime as amounting to crimes against humanity, in particular the crime of per secution.78 According to Ehlert, the Khmer Rouge’s destruction of cultural property constituted the deprivation of a fundamental right and, as a consequence, the first requirement of the underlying offence of persecution was satisfied; moreover, given that primarily religious cultural property was targeted, such acts of destruction were dis criminatory on religious grounds.79 Therefore, although the mental element of persecu tion—namely to discriminate on religious or other grounds—can only be evaluated on a case-by-case basis, the Khmer Rouge destruction of cultural property may reasonably be charged and prosecuted as a crime against humanity of persecution. In point of fact, 72 Article 9 of the Law on ECCC provides that the subject matter jurisdiction of the ECCC includes ‘the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide’. 73 See Ehlert (n 64). 74 See in this sense Ahmed and Tralmaka (n 64). See also Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975–79 (3rd edn, Yale University Press 2008) 251–310; Adam Jones, Genocide: A Comprehensive Introduction (2nd edn, Routledge 2011) 283–309. 75 See in this sense John B. Quigley, The Genocide Convention: An International Law Analysis (Ashgate 2006), at 104, citing UN Doc A/53/850-S/1999/231, Annex: Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135. 76 William Schabas, ‘Problems of International Codification: Were the Atrocities in Cambodia and Kosovo Genocide?’ (2001) 35 New England Law Review 287. 77 See Barry Sautman, ‘Cultural Genocide in International Context’ in B. Sautman (ed), Cultural Genocide and Asian State Peripheries (Palgrave Macmillan 2006) 1–37, at 8: Caroline Fournet, The Crime of Destruction and the Law of Genocide: Their Impact on Collective Memory (Ashgate 2007) 43. 78 See Sautman (n 77); Ehlert (n 64). 79 See Ehlert (n 64). Art 5 of the Law on the Establishing of the ECCC prohibits ‘persecutions on political, racial, and religious grounds’.

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120 Micaela Frulli the ECCC Trial Chamber found in Case 001 that ‘as early as 1975, persecution [. . .] clearly included an act or omission which discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law’,80 and Kaing Guek Eav (alias Duch) was convicted, inter alia, for persecution.

5. Harmonizing the Prosecution of Crimes against Cultural Heritage The comparative analysis undertaken above has shown the gaps, the inconsistencies, and the retrograde aspects in the normative framework for the prosecution of crimes against cultural heritage. This fragmented picture is the by-product of a stratification of rules occurring in dif ferent moments and in different contexts and, as highlighted at the outset, reflects three different dimensions underlying the criminalization of acts against cultural heritage and their prosecution through international criminal law: the civilian use, the cultural value, and the human dimension rationales. However, the analysis of existing case law on the issue, in particular the jurisprudence of ICTs, has shown that, on most occasions, the judges involved in adjudicating individ ual criminal liability for acts against cultural property charged as war crimes and/or crimes against humanity strove to reconcile the three different dimensions. Of course, the Chambers gave precedence to one or the other approach depending on the case at issue and also depending on the qualification of the crime made by the Office of the Prosecutor in the relevant indictments; but, in many cases, the judges endeavoured to take into account the whole spectrum of reasons underlying the protection of cultural property and, hence, the need to prosecute the individuals committing acts against cul tural heritage for a variety of reasons and under different headings. Indeed, reconciling these three different dimensions seems the only possible direction to advance the pro tection of cultural property and heritage through the tools offered by international criminal law.

80 ECCC (Judgment), Case 001–001/18-07-2007-ECCC/SC (26 July 2010) para 376.

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chapter 6

The R esponsibilitie s to Protect Cu lt u r a l Her itage a n d Pr ev en t Cu ltu r a l Genocide James A. R. Nafziger

1. Introduction The concept of a State’s limited responsibility to protect persons against atrocities (R2P), though still quite new, is already respected and modestly operational as a polit ical principle or, arguably, as soft law. It is importantly related to the international crime of genocide, as acknowledged, for example, by the title and mission of the United Nations Office on Genocide Prevention and the Responsibility to Protect. Extending R2P beyond the protection of persons to cultural heritage, especially when threatened by genocidally motivated destruction, may be an idea whose time has come.1 Section 2 of this chapter will discuss the background and content of R2P. Section 3 will consider its applicability to cultural heritage. Section 4 will introduce the concept of cultural genocide and its sibling, cultural cleansing, against a background of armed con flict. With reference to R2P, the intentional mass destruction of cultural material already has been accepted under international law as evidence of atrocity crimes against per sons. Somewhat paradoxically, however, although cultural genocide has become prom inent in international discourse as a threat to fundamental human rights and global

1 See Federico Lenzerini, ‘Terrorism, Conflicts and the Responsibility to Protect Cultural Heritage’ (2016) 51(2) Italian Journal of International Affairs 70.

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122 James A. R. Nafziger order, it lacks a secure foundation in international law. Section 5 will suggest moving forward to do so within a framework related to R2P.

2. The Responsibility to Protect Persons The concept of R2P originated in disenchantment with the inadequacy and inefficacy of international responses to atrocities, particularly in the Middle East, North Africa, the Great Lakes region of Africa, and the former Yugoslavia during the 1990s. This disenchantment arose against a background of highly partisan and unevenly applied instances of humanitarian (extraterritorial) intervention over many years and around the world. Indeed, ‘[t]he history of humanitarian intervention is bloody and often arbi trary in nature’.2 In 2001 an International Commission on Intervention and State Sovereignty (ICISS), initiated by Canada in response to express concerns of United Nations SecretaryGeneral Kofi Annan, issued a report titled ‘Responsibility to Protect’.3 It proposed an entirely new framework to replace a so-called unilateral right of humanitarian interven tion. Accordingly, States would instead bear the responsibility to prevent, to react to, and to rebuild from mass atrocities against persons at risk within their respective territories and jurisdictions. Later, in the ICSS’s run-up to the Millennium +5 (World) Summit in 2007, the need became apparent for some sort of bottom-line response in the proposed framework to a State’s failure to protect persons within its territory.4 The World Summit reformulated the work of the ICISS by adopting three pillars of responsibility,5 which are of equal importance and continue to define R2P. Pillar I requires States to protect all persons within their respective territories and jurisdictions from four crimes of atrocity: war crimes, crimes against humanity, genocide, and ethnic cleansing. Pillar II calls upon the international community to assist States in building capacity, to respond effectively in humanitarian crises. Pillar III, proposed by the 2 Sabine von Schorlemer, The Responsibility to Protect as an Element of Peace (Development and Peace Foundation Policy Paper 28, Stiftung Entwicklung und Frieden 2007) 3 (recalling the chequered history of unilateral humanitarian intervention). 3 International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre 2001), following Kofi Annan’s challenge to find an effective substitute for the much-abused doctrine of humanitarian intervention; see United Nations Millennium Report (United Nations 2000). 4 Most importantly, the United Nations High-Level Panel on Threats, Challenges and Change con firmed a collective international responsibility ‘exercised by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing and serious violations of humanitarian law which sovereign governments have proved powerless or unwill ing to prevent’: UN A/59/565 (2 December 2004). 5 2005 World Summit Outcome, UN Doc A/RES/60/1, 24 October 2005, para 138, 139.

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The Responsibilities to Protect Cultural Heritage 123 African Union in direct response to the repeated failures of humanitarian intervention, provides that if a State is ‘manifestly failing’ to protect its population (whether nationals or not), other States are prepared to respond collectively in a ‘timely and decisive man ner’, taking any of a full range of political, economic, and military measures. The words ‘responsibility’, ‘protect’, and ‘persons’ all require interpretation as the con cept becomes more instrumental. For example, what persons, exactly, enjoy protection? The intended scope is to include all persons within a State’s territory or jurisdiction, but civil war or its imminence can be problematic, especially in instances of tribal or other interethnic brutality, which is to say in virtually all of the most serious contemporary conflicts. A particularly perverse violation of R2P occurs when a government not only fails to protect persons within its territory but manifests an intent to commit genocide and other atrocities against them, as occurred during the Holocaust and the Khmer Rouge reign of terror in Cambodia. The three-pillar formulation makes clear that R2P is designed to be a bulwark against all atrocities without, of course, denying broader, more or less colloquial invocations of R2P. These range, for example, from likely or imminent natural disasters or threats to violations of human rights that do not amount to mass atrocities. The formulation also makes clear that, although States bear the primary responsibilities, international institutions may also play an important subsidiary role, for example, in helping fund and organize capacity-building as well as by acting to authorize enforcement measures to support Pillar III. The threshold criteria for such authorization, including reliable metrics for evaluating State capacity and effective control during crises, can only evolve over time. R2P remains largely political, though it may be emerging as soft law by repeated refer ences to it in international discourse. Within the United Nations, the Security Council has adopted scores of resolutions, beginning in 2006, that cite the principle.6 The General Assembly has convened several annual interactive meetings on its implementa tion. Since 2009 the Secretary-General has issued annual reports directed towards ful filment of a collective responsibility among States. Beyond the UN Charter institutions, a Special Adviser to the Secretary-General on R2P has worked alongside a Special Adviser on the Prevention of Genocide. The Human Rights Council, assisted by its Special Procedures and Universal Periodic Review, has helped anchor the monitoring process in human rights. Regional organizations also have been active, for example the African Commission on Human and People’s Rights and the European Parliament in its promotion of R2P within the European Union (EU). The EU has now joined over fifty States in a cooperative Global Network of R2P Focal Points. NGOs are also active. These include, for example, the Global Centre for the Responsibility to Protect and the 6 R2P was first cited by the UN Security Council in Resolution 1674 concerning the protection of civilians in armed conflict; UN Doc S/RES/1674 (2006). For subsequent invocations of the concept by the Security Council and other references to it within the United Nations, see Global Centre for the Responsibility to Protect, About R2P accessed 25 November 2017. See also background information on the Responsibility to Protect at accessed 25 November 2017.

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124 James A. R. Nafziger Asia-Pacific Centre for the Responsibility to Protect. At least two NGOs—the Global Action Against Mass Atrocity Crimes and the Latin American Network on Genocide and Mass Atrocity Prevention—have integrated R2P into their primary missions. No longer, then, can extraterritorial intervention, even for the most generous reasons, escape scrutiny if it is justified as a right to intervene in the territory of another State. Instead, intervention must be seen as a last-resort, collective responsibility of States to protect persons at risk of becoming victims of mass atrocities.

3. The Extension of R2P to Cultural Heritage 3.1 Theory UNESCO has recognized that an extension of R2P to cultural heritage would strengthen safeguards of it when it is under threat.7 These include enhanced military defence, cul tural protected zones, and safe havens. The modern law of armed conflict, the jus in bello, also contains specific safeguards.8 National and international prosecutions, after the commission of an attack on heritage, might also be regarded as safeguards if they serve to deter such attacks in the future. What distinguishes R2P, its value added, is above all its emphasis on a State’s responsibility to prevent threats to heritage within its territory, including its provisions for assistance in building a State’s capacity to meet such threats, and its support for internationally authorized intervention if a State is unable or unwilling to assume an appropriate response to threats. Obviously a stable, well-respected basis for intervention may in itself help deter the commission of international crimes. Moreover, R2P as a whole can help fulfil the intergenerational responsibility to convey important heritage intact.9 An obvious constraint on an extension of R2P to cultural heritage is, however, the limitation of its scope to the threat of mass atrocities. Is even the worst, most massive attack on heritage an ‘atrocity’? That has been repeatedly questioned. Still, it is generally accepted, at least, that mass attacks on cultural heritage are often precursors or con comitants of atrocities against persons. Each type of threat may be insufficient in itself to constitute an atrocity, but, taken together, they may satisfy that requirement of R2P.10 If so, then, bringing cultural heritage within the ambit of R2P could strengthen the 7 UNESCO, Concept Paper: Proposal for an Expert Group Meeting to Discuss the Application of Responsibility to Protect Cultural Property (UNESCO 2015) 1. 8 See, for example, James A. R. Nafziger, ‘Protection of Cultural Property’ in M. Cherif Bassiouni (ed), Introduction to International Criminal Law (3rd ed, Martinus Nijhoff 2008) 977. 9 See Ana F. Vrdoljak, ‘Reparations for Cultural Loss’ in Federico Lenzerini (ed), Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford University Press 2008) 197. 10 See pronouncements of international courts discussed in Part 4, in particular at nn 58, 59, 60, 61, 62, 63, 64, 66, and 67 below.

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The Responsibilities to Protect Cultural Heritage 125 commitment of States and international organizations to take account of the heritage in budgeting, enforcement, and other decision-making. Indeed, R2P could play an especially important role in deterring and responding to acts of genocide, as will be discussed in Section 3. It has been wisely observed that ‘[s]tate responsibility indeed allows for the introduction of a macro-perspective of the process of mass criminality, unlike individual responsibility, which intends to link one perpetrator’s individual intent to a specific context’.11 The Khmer Rouge regime’s mass killings of its own population constituted a particu larly perverse, pre-R2P example of genocide that highlights the value that R2P can add in the name of justice. Case 002 is particularly interesting because it involved attacks on cultural heritage. There the Extraordinary Chambers in the Courts of Cambodia took account of the charges in the indictment of the destruction by the Khmer Rouge military of Buddhist and Moslem places of worship and sacred texts as well as its conversion of religious edifices into military facilities, warehouses, and pig farms.12 Although attempts to apply R2P would likely have failed to prevent such developments, its reinforcement of the principle of State responsibility would have facilitated the prosecu tions of responsible officials, thereby avoiding the delays and expense that individual prosecutions for crimes against humanity and war crimes often entail. At the very least, such reinforcement in criminal cases can help offset the difficulty of establishing the mens rea of a genocidal intent. In 2015 UNESCO convened a meeting of experts to provide guidance on the possible extension of R2P to cultural heritage. Its Recommendations13 provide a framework for further deliberation and application. The core provisions of the Recommendations restate Pillar I (para 2) and recommend the establishment of safe havens (para 3) and cultural protected zones (para 4). The Recommendations do not specifically address Pillar III. According to Pillar I, operationalizing R2P should begin with preventative measures by States of the sort associated with the precautionary transfer of cultural material by museums in Iraq, Afghanistan, and Syria in the face of armed conflict and concomitant looting. Proactive approaches for site protection in potential or actual zones of armed conflict are essential. Such measures would include, most obviously, strengthening barriers to protect designated sites from desecration, pillage, and looting

11 Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (Oxford University Press 2016) 154. See generally Andrzej Jakubowski, ‘State Responsibility and the International Protection of Cultural Heritage in Armed Conflicts’ (2015) 2(2) Santander Art & Culture Law Review 147. 12 See Federico Lenzerini, ‘The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 40, 59, and at 43 (description of the Khmer Rouge Tribunal). 13 Expert Meeting on the ‘Responsibility to Protect’ and the Protection of Cultural Heritage, Recommendations, 27 November 2015 accessed 25 August 2019. See Danish Institute for International Studies, Frederik Rosén, UNESCO Adopts Recommendations to Protect Cultural Heritage (Danish Institute for International Studies 2016).

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126 James A. R. Nafziger as well as augmenting police or military protection.14 Safe havens and cultural protected zones are of particular importance, insofar as they are premised in the laws of armed conflict. The elaboration of best practices for safe havens, in particular, has developed accordingly in recent years. In regard to Pillar II of the R2P, a Memorandum of Understanding between the International Committee of the Red Cross and UNESCO15 provides as follows: Upon the request of UNESCO or a party to the conflict, with the agreement of all parties to the conflict and in close consultation with the local actors concerned (including competent national authorities), the ICRC may assist in rescuing specific cultural property at imminent risk in several ways, for example, by facilitating the evacuation of collections and/or providing supplies and equipment needed to undertake emergency safeguarding measures.

3.2 Safe Havens Security Council Resolution 2347,16 which was adopted unanimously as the firstever Security Council resolution devoted to cultural heritage, reiterates the primary responsibility of States to safeguard their cultural heritage in the face of armed conflict. They must therefore take several specific measures, for example, by ‘[a]dopting adequate and effective regulations on export and import, including certification of provenance where appropriate, of cultural property, consistent with international standards’.17 The document also encourages States to establish safe havens in their territories. In 2008 the International Law Association adopted Guidelines for the Establishment of Safe Havens for Cultural Materials.18 These Guidelines established a comprehensive framework for application by States, museums, organizations, and professionals. They extend beyond the contingencies and exigencies of potential or actual atrocities, pri marily in armed conflict, that are the exclusive concern of R2P. Natural disasters, for example, may also imperil cultural material (such as the infamous floods in Florence, New Orleans, and Dresden, volcanic eruptions in Italy and Indonesia, earthquakes in Italy, Mexico, Pakistan, China and Iran, and fires in the United States and Australia). Other threats include unauthorized excavations, for example, in Guatemala, Iraq, Italy, and Turkey, and public projects, for example, dam construction in China and highway construction in Greece. 14 See Laurie D. Rush, ‘Illicit Trade in Antiquities: A View “From the Ground” ’ in Francioni & Gordley, Enforcing International Cultural Heritage Law (n 12) at 65, 70–73. 15 Signed Geneva, 29 February 2016. 16 Maintenance of International Peace and Security: Destruction and Trafficking of Cultural Heritage by Terrorist Groups and in Situations of Armed Conflict, 24 March 2017, UN Doc S/RES/2347. 17 Ibid, para 17(b). 18 International Law Association, Report of the Seventy-Third Conference 379, 380 et seq; ibid, Resolution 2/2008, adopted unanimously, at 1104 (hereinafter ‘Guidelines’). For commentary, see Alessandro Chechi, ‘Rescuing Cultural Heritage from War and Terrorism: A View from Switzerland’ (2015) 2(1) Santander Art & Culture Law Review 83, 92.

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The Responsibilities to Protect Cultural Heritage 127 Whatever the cause of a threat, cultural material may need to be removed temporarily to safe havens for safekeeping and proper preservation until it can be safely returned to its original site. The ILA Guidelines are intended to provide a framework, setting the terms for the establishment and conduct of such safe havens and for the return of cultural material held for safekeeping and preservation there. The initiator of the temporary relocation may be a State, a private owner, a museum, or another entitled person or entity. The Guidelines, each followed by explanatory comments, address the following matters in detail: governmental establishment and supervision of safe havens, obligations of source States or entities, deference to other international instruments, and assistance by UNESCO and other international bodies. Of particular importance are the obligations that define the proper stewardship of safe havens, ranging from a general responsibility of host States involving the safekeeping and preservation of material to specific strictures against lending material without the consent of the source State or entity and against using proceeds from such loans or exhibitions for any purpose other than for safekeeping and preserving the material. A safe haven is to be ‘governed by the law of the State in which it is located, but shall accord due respect to the laws and traditions of the source State of cultural material’.19 Of particular importance is a model contract for the establishment of a safe haven that is attached to the Guidelines. Within the scope of R2P, safe havens are a type of protection or ‘refuge’ under the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts20 and the related Protocol I.21 National legislation also provides for safe havens, most notably that of Switzerland, which was inspired by NGO initiatives for safekeeping of material in Switzerland that had been removed from Afghanistan. The Swiss law primarily seeks to safeguard material originating outside its borders, as contemplated by article 18 of the Hague Convention, but broadens the scope of that provision; it is an Ordinance on the Protection of Cultural Property in the Event of Armed Conflicts, Disaster or Emergency Situations. The new law has led to the establishment of temporary housing in Zurich for cultural material imperilled in conflict zones abroad. Other States, including the United States and China,22 have also adopted measures for the establishment of safe havens. Other initiatives have followed that are premised in measures set forth in the ILA Guidelines, as adapted to particular institutional needs. For example, the Association 19 Guidelines (n 18). 20 Signed at The Hague, 14 May 1954, 249 UNTS 240. See also the Regulations for the Execution of the Convention thereunder. 21 Signed at The Hague, 14 May 1954, 249 UNTS 358 (providing rules to govern the international transfer for safekeeping of cultural material at risk). 22 See, respectively, Protect and Preserve International Cultural Property Act, 19 USC 2601 (2016), providing for safe havens of Syrian material; Wang Kaihao, ‘China Answers Call for Relics “Safe Havens” ’ China Watch (29 March 2017).

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128 James A. R. Nafziger of Art Museum Directors (AAMD), acting on behalf of its members in the United States, Canada, and Mexico, adopted Protocols for Safe Havens for Works for Cultural Significance from Countries in Crisis.23 These protocols seek to offer a refuge for cultural material from ‘depositors’ of ‘works of Cultural Significance’ from countries in crisis. Examples of a depositor are ‘museums in the affected area that hold works; governmental entities of or within the affected areas; US government authorities who have seized works on entry to or in the United States; or private individuals, companies or organizations who own or come into possession of works, whether in the affected area or after removal from the area’.24 The protocols are intended for adoption primarily by member institutions but also, in whole or in part, by non-member institutions who wish to assist in the safeguarding effort. Accordingly, member institutions ‘should consider whether legal protections, such as immunity from seizure are available in the safe haven country’.25 They should also adopt best practices for inventorying and documenting the condition of pertinent works, transporting them to safe havens, and maintaining proper storage conditions, conservation and restoration of material, record-keeping, publication of pertinent data, scholarly access and exhibition of material, education programmes, and eventual return of works. A concluding provision acknowledges that member museums ‘should consult with legal counsel before accepting or returning a work’.26 One variation of the AAMD’s Protocols is a proposal by a leading museum director for a ‘safe harbour’ for heritage artefacts in circulation outside their likely modern coun try of origin. After safe harbourage, they are to be returned once27 stability in the region has been restored. It is unclear whether provision for such a ‘safe harbour’ of artefacts would entail their deposit in an officially designated safe haven. Nor is it clear why such artefacts, if they are already ‘in circulation outside their likely modern country of origin’ would benefit from a safe harbour, or why, if they are so harboured, they should be returned to ‘their likely modern country of origin’ only when stability of an entire region has been restored. Another initiative, supporting Pillars I and II of R2P, addresses the practical need for an infrastructure to help establish safe havens. In 2016 some forty States, in the Abu Dhabi Declaration28 supporting Pillar III, approved plans to establish a fund with a tar get of $100 million to help States safeguard heritage sites or zones of armed conflict, to establish an international network of safe havens and other mutual cooperation, to finance preventative and emergency operations, to combat illegal trafficking of artefacts, and to help restore damaged heritage.

23 AAMD Standards & Practices, 1 October 2015 (hereafter ‘AAMD Guidelines’). 24 Ibid, para 2. 25 Ibid, para 3. 26 Ibid, para 14. 27 James Cuno, ‘The Responsibility to Protect the World’s Cultural Heritage’ (2016) 23 Brown Journal of World Affairs 97 (despite its title, the article does not otherwise discuss the responsibility to protect). Mr Cuno is President and CEO of the J. Paul Getty Trust. 28 3 December 2016.

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The Responsibilities to Protect Cultural Heritage 129

3.3 Cultural Protected Zones Unlike the establishment of safe havens, the establishment of cultural protection zones would normally occur only after the instigation of armed conflict. Even so, such zones fit well within Pillar I of the R2P as a preventative measure. Paragraph 4 of the UNESCO Recommendations ask UNESCO Member States and the UNESCO Secretariat to ‘give due consideration to the idea of “cultural protected zones”, in accordance with article 24 of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, articles 59 and 60 of [the] 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, and the Charter of the United Nations’. The International Law Commission’s Draft Principles on the Protection of the Environment in Relation to Armed Conflicts is also significant.29 Under the heading ‘Protected zones’, that document provides somewhat more narrowly that ‘[a]n area of major and cultural importance designated by agreement as a protected zone shall be protected against any attack, so long as it does not contain a military offensive’.30 The Final Report of the UNESCO expert meeting in 2015 cautioned that cultural pro tected zones ‘could realistically be established only with the consent of all relevant par ties to the armed conflict. It was inconceivable in practice that such zones could successfully be imposed on the belligerents. The representatives of certain organizations present recounted the limited success to date of analogous zones and areas provided for in international humanitarian law and of attempts during the conflict in Syria to broker and maintain local agreements not to engage in hostilities in the vicinity of significant immovable cultural heritage.’31 Moreover, ‘[t]he UNESCO Secretariat emphasized that its ability to assist in the creation and maintenance of “cultural protected zones” was dependent on the consent of the State in whose territory the conflict took place’.32

3.4 Two, but not Four, Well-established Concerns or Targets of R2P Of the four atrocity crimes with which R2P is concerned, two—war crimes and crimes against humanity—have generated substantial jurisprudence related to cultural heri tage, to which reference will be made in Section 3. This jurisprudence is, however, a ‘seemingly normative mess’.33 To be sure, one can speak loosely of ‘cultural war crimes’ 29 International Law Commission, Second Report on the Protection of the Environment in Relation to Armed Conflicts, 28 May 2015, UN Doc A/CN. 4/685 (2015). 30 Ibid, Part Two, Draft Principle II-5 (emphasis added). 31 UNESCO, Expert Meeting on the ‘Responsibility to Protect’ as Applied to the Protection of Cultural Heritage in Armed Conflict, Paris, 26–7 November 2015, Final Report, para 27. 32 Ibid., para 28. 33 Novic, The Concept of Cultural Genocide (n 11) 141.

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130 James A. R. Nafziger and ‘cultural crimes against humanity’. But the gist of the extant jurisprudence (though clearly not adding up to stare decisis) treats illegal attacks on cultural material (not, for example, justified as military necessity) only as significant evidence of a mens rea to commit atrocities against persons. Even the most egregious mass destruction of heritage does not in itself constitute an atrocity. It might be expected that this approach should also govern instances of the other two atrocity crimes: genocide and ethnic cleansing in the context of attacks on cultural heri tage. But neither cultural genocide nor its younger sibling, cultural cleansing, has achieved much recognition as more than political vocabulary. Indeed, as we shall see, the concept of cultural genocide, embracing the inseparability of imperilled groups of persons from their cultural heritage, was rejected in the final stages of drafting the definitive Genocide Convention. Given, however, the enormity of genocide and cleansing, as well as their prominence and further development in political and colloquial discourse, these atrocity crimes merit special attention, particularly as largely overlooked concerns or targets of R2P.

4. Cultural Genocide and Cultural Cleansing 4.1 An Overview The concept of cultural genocide has been elusive in the past, is evolving at the present time, and is capable of enhancement in the future. Its codification and criminalization is problematic, partly because it overlaps the domains of war crimes and crimes against humanity.34 But its viability in international discourse is profound, and its gradual con version into a legal norm is indicated. The key questions are: What does the concept mean today, what can it mean in the future, and how can it become more instrumental? To answer these questions, it will be instructive to begin by looking briefly at the past. In 1933, the very year when Hitler became Chancellor and a little more than a decade before Raphael Lemkin, a Polish lawyer of Jewish origin, coined the term ‘genocide’,35 Lemkin made a farsighted proposal. Motivated by aspirations of cultural diversity and multiculturalism, Lemkin abhorred the wilful and systematic destruction of a nation’s cultural and artistic works (‘vandalism’) and the extermination of racial, religious, or 34 Ibid, vi (Preface), proposing a reconceptualization of the related regime of international law that would be oriented towards a new crime of persecution based on the synergies among cultural rights, cultural heritage, and genocide prevention. 35 See Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Carnegie Endowment for International Peace 1944) ch 9. See generally Ana F. Vrdoljak, ‘Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law’ (2009) 20 European Journal of International Law 1163; William A Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press 2000).

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The Responsibilities to Protect Cultural Heritage 131 social collectivities (‘barbarity’). These offences formed the basis of Lemkin’s definition, in 1944, of genocide. Later, in an incomplete, unpublished history of genocide, his exam ination of atrocities during the Spanish conquest of South America led him to identify six forms of cultural genocide: destruction of leadership, forced conversion, prohibition of cultural activities, destruction of religious and cultural symbols, destruction of cul tural centres, and looting.36 Such actions, if deliberate and not just the result of gradual changes any culture may undergo, should be made international crimes, Lemkin argued.37 Lemkin initiated and promoted the 1948 Genocide Convention.38 After it entered into force it became ‘a cornerstone of the United Nations system and a litmus test for the rule of international law’.39 Its original draft prohibited an intended act to eradicate a group’s culture (cultural genocide).40 In Lemkin’s view, the deliberate destruction of culture—what he also described as a national pattern—was a fundamental act of genocide, which could also be a predicate of the systematic elimination of a people. His concept of cultural genocide was that it involved two phases: destruction of the national pattern or culture of an oppressed group, as a whole or in part, and replacement by the oppressor of its own national pattern or culture—that is, its own institutions and culture. Lemkin viewed this second phase as an attribute of colonization, based on his studies of the Spanish conquests in the Western Hemisphere. Accordingly, as an act of imperialism, everything from traditional folkways and language to cultural monuments would be wiped out and recast or rebuilt in the oppressor’s image. 36 See Michael A. McDonnell and A. Dirk Moses, ‘Raphael Lemkin as Historian of Genocide in the Americas’ (2005) 7 Journal of Genocide Research 501, 507. 37 See Raphael Lemkin, ‘Genocide as a Crime Under International Law’ (1947) 41 American Journal of International Law 145, 146; see also William Korey, Raphael Lemkin: ‘The Unofficial Man’ Midstream (June–July 1989) at 45. 38 Formally, the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (opened for signature 9 December 1948, entered into force 12 January 1951) 78 UNTS 277. 39 Matthew Lippman, ‘Genocide’ in Bassiouni, Introduction to International Criminal Law (n 8) 403, 434; see also von Schorlemer, The Responsibility to Protect (n 2) 3: The Convention on the Prevention and Punishment of the Crime of Genocide (1948) is of p articular importance, also in relation to customary international law. It contains the ‘hard core’ of the responsibility to protect: the duty to prevent and to punish genocide (Article 1), which must be understood in the legal sense, not simply as a moral or political obligation. Since the judgment of the International Court of Justice (ICJ) in the case of Bosnia and Herzegovina vs. Serbia and Montenegro (2007) at the latest, the message must be clear to everyone: anyone who does not fulfil his obligation to prevent genocide, also in a country other than his own, breaches current international law and can be held not only morally but also legally accountable. In this context, the obligation to prevent genocide entails a specific duty of conduct: State authorities must show due diligence and take all reasonable measures within their power to prevent genocide. Closely linked to this, incidentally, are the Articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission (ILC): ‘A gross or systematic failure’ by a responsible State triggers the positive obligation of other States to cooperate to bring to an end, through lawful means, this serious breach. This legal duty of cooperation in order to end a serious breach of the law is very close to the concept of the collective responsibility to protect. 40 Draft Convention on the Crime of Genocide, UN Doc E/447(26 June 1947), art (11)(3)(e), Eighty-third Meeting, Paris, 25 October 1948, UN GAOR, Com 6, Sess. 3, UN Doc A/E.6/SR. 83 (25 October 1948).

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132 James A. R. Nafziger The final version of the Genocide Convention, however, makes no mention of cultural genocide and explicitly prohibits only one pertinent practice, and that perhaps by acci dent: the forced removal of children, deliberately depriving them of their cultural roots. The decision not to explicitly prohibit cultural genocide resulted from several factors: first, the opposition of Western Hemisphere and Western Europe representatives, notably of Canada, to the categorical inclusion of political, social, and cultural dimensions of genocide, even though they were three of the eight categories in Lemkin’s listing of genocidal acts; second, a more specific fear of some countries that their colonial and other treatment of minority peoples could be branded as cultural genocide; third, the risk that an overly broad definition of genocide would weaken support for the proposed conven tion and, indeed, for the fledgling regime of human rights taking shape in the late 1940s; fourth, the related preference to lob the apparently hot potato of cultural deprivation to other fora, such as the then-current debate on human rights and minorities; fifth, the argument that the promise, or even expectation, that the emerging Universal Declaration of Human Rights would include a measure on cultural genocide (which it never did); sixth, the argument that closing libraries, suppressing languages, or destroying historical monuments paled in significance by contrast with the horrors of the Holocaust involving the wholesale slaughter of innocent human beings in gas chambers and other atrocious treatment of Jews, Poles, Roma, and others; seventh, the perceived lack of a relationship between cultural wrongs and the intent to destroy a group whole or in part; and eighth, an assumption that claims of cultural genocide were adequately addressed under the established Nuremberg rubric of crimes against humanity and war crimes. This last objection initiated a recurring debate about the need for a separate crime of genocide.41 The Convention does, of course, single out four categories of persons—national, eth nic, racial, and religious—whose survival is at stake and whose protection therefore warrants special attention by the international community. They all have profoundly cultural dimensions, but that is not the same as explicitly protecting them from a spe cific intent to destroy their culture. Even so, despite the rejection of cultural genocide as an express target of the 1948 Convention, the concept has nevertheless evolved into a secure concept in the discourse of international relations and will likely continue to evolve as an instrument of human rights and humanitarian discourse. Ironically, the Convention has been described as a ‘seriously flawed document’42 in part for one of its ‘major weaknesses’:43 the failure to include cultural as well as social and political groups within its protective scope. Instead of Lemkin’s eight categories of genocide, physical and biological acts alone have less ambitiously come to define the Convention’s reach.

41 Clair De Than and Edwin Shorts, International Criminal Law and Human Rights (Sweet and Maxwell, 2003) 84, summarizing the debate as follows: ‘Genocide, in many cases, already overlaps with other international crimes such as war crimes and crimes against humanity. If any future definition is too wide, why have a separate classification of this crime at all? On the other hand, if any definition is too narrow, then it may become all too easy for defendants to raise a successful defense for what is regarded as the worst of all possible crimes.’ See Novic, The Concept of Cultural Genocide (n 11). 42 See de Than and Shorts, International Criminal Law and Human Rights (n 41) 67. 43 Ibid.

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4.2 Historical Examples 4.2.1 From Rome to North America and Australia The deliberate intent to eradicate a foreign culture is nothing new. When, for example, the ancient Romans sowed the ground of Carthage with salt, part of the idea was to assimilate their bitter enemies by depriving them of their cultural memory in a cam paign of damnatio memoriae. Raphael Lemkin cited the much later Spanish conquest of natives in the New World and the more subtle destruction of their culture by the estab lishment of governmental authority over them and missions to revise their fundamental belief systems. More recent claims of cultural genocide by that name have included, to cite just a few scattered examples, the suppression of Korean traditions, languages, and even names during the Japanese occupation of Korea between 1910 and 1945, the deprivation of tribal culture and looting of cultural artefacts throughout colonial Africa, South Africa’s checquered removal of Blacks from their cultural moorings and relocation of them to remote Bantustans during the era of apartheid, and the suppression of Native American and First Nation cultures in North America, ranging, for example, from the prohibition of potlatch ceremonies among the Kwakiutl on the Canadian west coast to the massive displacement of tribes and reinstallation of them in often inhospitable natural and cul tural environments throughout the United States. Contemporary examples are legion, for example the predominantly Han Chinese displacement of cultural traditions and cohesion in Tibet.44 In 2016 the Canadian Human Rights Tribunal, in a lengthy opinion,45 ruled that the federal government had discriminated against Aboriginal children by underfunding educational and social welfare services on First Nation reserves. That certainly was not genocidal, but the opinion recalled the forced, long‑term removal of some 150,000 Aboriginal children from their homes for re-education in distant, so-called Residential Schools. In 1883, Hector Langevin, Public Works Minister of Canada, enunciated the policy of deliberately separating children from their families in order to civilize them. It was well established that this practice, between 1879 and 1986, had often resulted in terrible abuses of children at the schools and the deaths of as many as 6,000 of them. These abuses were so wrenching that the tribunal actually included the following advice to readers of the opinion: Please note that the information below contains graphic facts about Residential Schools. If this information causes distress, especially for survivors and their families,

44 See ‘The Plateau, Unpacified’ The Economist (17 September 2016) 43 (noting the Dalai Lama’s characterization of Chinese policy, more generally, as cultural genocide); Jaspreet K. Sandhar, ‘Cultural Genocide in Tibet: The Failure of Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples in Protecting the Cultural Rights of Tibetans’ (2015) 2(1) Santander Art & Culture Law Review 175. 45 First Nations Child and Family Caring Society of Canada v Assembly of First Nations, 2016 CHRT 2.

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134 James A. R. Nafziger a 24-hour Indian Residential Schools Crisis Line has been set up to provide support, including emotional and crisis referral services.46

This was in a judicial opinion, not on a television screen. Significantly, the tribunal also quoted a Statement of Apology that the former Prime Minister Stephen Harper of Canada issued in 2008, as follows: Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed some sought, as it was infamously said, ‘to kill the Indian in the child’. Today we recognize that this policy of assimilation was wrong, has caused great harm and has no place in our country.47

In 2015 the Indian Residential Truth and Reconciliation Commission of Canada, in even stronger terms than the Harper Statement, flatly described the intended assimilation of Aboriginal children as ‘cultural genocide’.48 That description is in keeping with the Genocide Convention’s only direct opening to a claim of cultural genocide, namely the forcible transfer of children. It should be noted, of course, that a primary motivation for the establishment in the United States of Indian schools was to replace Indian languages with English.49 Similarly, the Australian Human Rights Commission concluded that the centuries-old practice of transferring Aboriginal children constituted cultural genocide, by that name, insofar as it led to the destruction of a fundamental cultural unit of Aboriginal life.50

4.2.2 The Holocaust Of course, the Holocaust has dominated our understanding of genocide, just as it fuelled Raphael Lemkin’s initiative to draft a treaty that would combat and respond to his pro posed crime of genocide. Two years before that initiative became reality, several of the German defendants in the Nuremberg Trial, most notably Alfred Rosenberg, as head of the Einsatzstab Rosenberg,51 were convicted for the crimes of ‘plunder of public or

46 Ibid, para 405. 47 Ibid, para 411 (emphasis added). 48 Truth and Reconciliation Commission of Canada, Final Report of the Truth and Reconciliation Commission of Canada: Honouring the Truth, Reconciling for the Future (Government of Canada 2015); see also ‘Canada’s Forced Schooling of Aboriginal Children Was “Cultural Genocide,” Report Finds’ The New York Times (2 June 2015). 49 Report of the US Indian Peace Commission (1868). 50 Australian Human Rights Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Commonwealth of Australia 1997). 51 See Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, Misc No 12, cmd. 6964 (1946).

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The Responsibilities to Protect Cultural Heritage 135 private property’ and ‘devastation not justified by military necessity’.52 Specifically, the defendants were found to have engaged in the looting and seizure of Jewish-owned art and the systematic emptying and destruction of museums, libraries, galleries, and historic buildings in the Soviet Union and Poland. When the underlying crimes were committed, the concept of what later became known as cultural genocide was at best embryonic. Nor was genocide as a whole a crime under the Nuremberg Charter. Instead, Rosenberg and others were prosecuted and con victed of war crimes. An obvious point is that, in both theory and actual practice, the concept of cultural genocide overlaps the more firmly established categories of war crimes and crimes against humanity that became enshrined for all time as crimes of atrocity in the Nuremberg Charter. Unfortunately, the Rome Statute, establishing the International Criminal Court, took a step backward by limiting the possibility of pros ecuting for destruction of cultural heritage to war crimes alone. On 2 May 2016, the International Criminal Court (ICC), for the first time in its his tory, established a Trial Chamber to hear a case referred to it by Mali, a State Party to the Rome Statute, against one of its own nationals for the war crime of destroying cultural heritage.53 The ensuing trial was also the first to try a Jihadist. The defendant, Ahmad Al Faqi Al Mahdi, was the leader of a fundamentalist morality brigade called Hesbah formed by a radical coalition government of al-Qaeda and Ansar Dine in Timbuktu, Mali.54 He was accused of attacking and ordering the demolition in 2012 of ten religious and historic buildings in Timbuktu, namely a fifteenth-century mosque and nine ancient mausoleums. Al Mahdi admitted his guilt, cooperated with prosecutors, showed remorse, and argued that he deliberately limited the extent of the destruction. He was sentenced to nine years in prison,55 and, in subsequent proceedings, was assessed 2.7 million euros as individual, collective, and symbolic reparations for damage to pro tected buildings, consequential economic loss to members of the local community, and moral harm.56 52 Charter of the International Military Tribunal, annexed to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, done 8 August 1945. 53 Prosecutor v Ahmad Al Faqi Al Mahdi ICC-01/12–01/15 (hereafter ‘Prosecutor v Al Mahdi’). 54 For concise summaries of the case, see Lucas Lixinski, International Heritage Law For Communities (Oxford University Press 2019) 222; Ana Filipa Vrdoljak, ‘Introductory Note to Prosecutor v Ahmad Al Faqi Al Mahdi: Judgment and Sentence & Reparations Order (International Criminal Court)’ (2018) 57(17) International Legal Materials. 55 Prosecutor v Al Mahdi (Judgment and Sentence, 27 September 2016) ICC-01/12–01/15–171. See Russell Goldman and Marlise Simons, ‘Court Takes a Stand to Protect Antiquities’ The New York Times (30 September 2016) A8; Marlise Simons, ‘Smashing of Shrines Punished as War Crimes’ New York Times (28 September 2016) A4, observing: ‘Mr Mahdi’s case has put a new focus on cultural destruction as a war crime, or as a crime against humanity. It reflects a growing belief that international law must address deliberate attacks on a people’s heritage when they are an intrinsic part of warfare, meant to destroy a group’s history and identity.’ 56 Prosecutor v Al Mahdi (n 53) Reparations Order (17 August 2017).

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136 James A. R. Nafziger The Reparations Order observed as follows: ‘The destruction of cultural heritage erases part of the heritage of all humankind. The Chamber finds it appropriate to acknowledge the suffering endured by the Malian community and the international community as a whole as a result of the destruction of the Protected Buildings—all but one of which were UNESCO World Heritage Sites.’57 This blended victimization of local, national, and international communities as a result of intentional destruction of their shared cultural heritage highlights the significance of the Al Mahdi Case.

4.2.3 The Yugoslav Civil War Recent civil wars in two theatres of conflict—the former Yugoslavia and the Middle East (Syria and Iraq)—have reinforced the concept of cultural genocide in the two senses of destroying intangible cultural foundations such as a community’s expression of its val ues in archives and distinctive educational and scholarly resources as well as tangible cultural heritage such as museums and their exhibits. Deliberate cultural destruction in both intangible and tangible senses of the concept was rampant throughout the Yugoslav civil war. For example, the attacks on Sarajevo by troops from Srpska, or Serbian Bosnia, were widely interpreted as genocidal initiatives to obliterate the cultural heritage and identity of Muslim Bosniaks and Catholic Croats—in other words, ‘to wipe out’58 their culture. Prime examples included the immolation of the National Library of BosniaHerzegovina in Sarajevo with a barrage of phosphorus bombs and the targeting of uni versity professors in the humanities for assassination. Of course, the characterization of these acts as essentially ‘cultural’ is arguably compromised by the claim that they were also motivated by impulses of nationalism, anti-elitism, and belligerence. Whatever the motivations for such atrocities on both or all sides of the Yugoslav civil war, the International Criminal Tribunal for the Former Yugoslavia (ICTY) convicted several defendants of crimes against humanity and war crimes involving plunder of historic and religious edifices and devastation of cultural monuments not justified by military necessity. ‘The demolition by the planting of explosives or by bulldozers, jack hammers, or other wrecking equipment’59 led to several prosecutions and convictions. World-renowned targets included the Old Town of Dubrovnik, Croatia; eleven Ottoman mosques in Mostar and Stolac; and the iconic Old Bridge in Mostar, ironically serving over the ages to facilitate Muslim and non-Muslim exchange and interchange.

4.3 The Law Today and Its Discontents Under the ICTY Statute and the century-old laws of war upon which it was based, these acts were at least war crimes. The ICTY went further, however, in ruling that several of 57 Ibid, para 53. 58 Tom Verde, ‘Saving Sarajevo’s Literary Legacy’ Aramco World (January/February 2016) 24, 30. 59 Roger O’Keefe, ‘Protection of Cultural Property’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) 492, 513 (a com prehensive but concise summary of legal developments in response to the destruction of cultural mater ial in time of armed conflict).

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The Responsibilities to Protect Cultural Heritage 137 the offences were grave breaches of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War60—the Fourth Geneva Convention—in other words, offences arguably at the level of genocidal acts. It is important to keep in mind that both a grave breach of humanitarian law and an act of genocide entail the greatest measure of opprobrium and the most serious consequences for a perpetrator. Even so, the ICTY judgments did not explicitly establish that the deliberate destruction of even the most important heritage of a culture is in itself an act of genocide, given the absence of an explicit prohibition of cultural genocide in the Genocide Convention. Instead, as inter national law stands today, such acts are deemed simply to provide evidence of an intent to commit genocide. For example, in 2016 the International Court of Justice decided a case brought by Croatia against Serbia titled Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide.61 The Court rejected Croatia’s claim that Serbia had committed grave breaches of international law by deliberately destroying cultural institutions, historic monuments, and sacred sites of the Croats and other non-Serb populations. Instead, the Court cited language in an earlier case to the effect ‘that it may take account of attacks on cultural and religious property in order to establish an intent to destroy a group physically’.62 Such cautious pronouncements, rooted securely in the Genocide Convention, restate the law today. Thus, the concept of cultural genocide is still simply a useful evidentiary tool to establish the requisite mens rea of an intent to commit a genocidal act rather than a definition of a distinct atrocity in itself. It could be instead a more powerful deterrent to the destruction of cultural heri tage if it achieved greater status in international criminal law. Significantly, however, the ICTY’s convictions of defendants for crimes against humanity involving the wanton destruction of cultural heritage can be interpreted to have pushed the envelope of legal authority a little further. In the landmark case of Prosecutor v Blaškić,63 for example, the ICTY found the defendant guilty of ordering the damage or destruction of Muslim Bosniak religious and educational institutions. The tribunal ruled that such acts on political or religious grounds, in the language of the tri bunal’s statute, may encompass ‘not only bodily and mental harm and infringement upon individuals, but also acts . . . targeting property, so long as the victimized persons [of attacks against property] were selected on grounds linked to their belonging to a par ticular community’.64 This language conforms to the definition of genocide in the 1948 60 Signed 12 August 1949, 6 UST 3516, TS No 3365, 75 UNTS 287 (effective 2 February 1956) (‘Fourth Geneva Convention’). 61 ICJ General List No 118, 3 February 2015, reprinted in (2015) 54 International Legal Materials 795. 62 54 International Legal Materials at 864, para 390 (emphasis added). See also Prosecutor v Radislav Krstić, Trial Chamber (Judgment) (2001) IT-98-33-T, para 580. 63 Prosecutor v Tihomir Blaškić, Appeals Chamber (Judgment) (2004) IT-95-14-T. 64 Ibid (emphasis added). The tribunal explained, further, that a crime against humanity ‘may take forms other than injury to the human person, in particular those acts rendered serious not by their apparent cruelty but by the discrimination they seek to instill within humankind . . . [P]ersecution may thus take the form of confiscation or destruction of private dwellings or business, symbolic buildings or means of subsistence.’

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138 James A. R. Nafziger Convention in instances when the offences are widespread despite the use of the term ‘community’ rather than a specific group or groups, as in the Convention. But how far can and should the envelope of the Genocide Convention be pushed? As noted earlier, one explanation for the decision to delete any explicit reference to cultural groups or culture itself during the negotiations leading to the Convention was that cul tural genocide was already covered by the Convention’s explicit purpose of protecting members of national, ethnic, racial, and religious groups from specified acts against their persons. The problem with this argument is, however, that culture, as a distinct category, does not necessarily square completely with any of the four protected groups. For example, the use of language, certain gendered practices, and other cultural funda ments may be at risk of obliteration but would not be easily included within the ambit of any of the four groups that the Convention identifies. Even if the concept of cultural genocide extends beyond the scope of the Convention’s four groups, the overall scope of crimes defined by the Genocide Convention, as inter preted, has been unfortunately narrowed mostly to physical or biological acts directly against persons. Consequently, claims of genocide based on acts directly against tan gible or intangible cultural property are treated as if they must be closely linked to par ticular persons or groups of persons regardless of whether their physical survival is at stake. Even the ICTY’s envelope-pushing opinion in Blaškić acknowledged the necessity of that link. What this limitation means is that the concept of cultural genocide, although it is evolving progressively, continues to be relegated to the status of an evidentiary elem ent in proving an intent to destroy persons or groups. It also means that attacks directly against the cultural heritage of humankind as a whole—that is, not limited to the heritage of a single person or group of persons—generally escape protection under the Convention even though they may be profoundly important to multiple groups of persons; there seems to be little or no recognition of obligations erga omnes. It is significant, however, that at least one of the ICTY decisions explicitly held that the shelling attack on Dubrovnik constituted not only a regional war crime but also one ‘against the cultural heritage of humankind’.65

4.4 Ethnic and Cultural Cleansing Beyond the Convention’s black-letter language looms the crime of ethnic cleansing. Although its meaning is unclear, it does have a surprisingly long historical pedigree, going back to at least 1806 during the Serbian uprising against the Ottoman Empire. More than a hundred years later, Ethnische Säuberung and Judenrein were of course hallmarks of the Nazis. Canada’s Residential School programme, discussed earlier, is perhaps another example of ethnic cleansing. Today, the Office of the United Nations 65 Prosecutor v Dragan Jokić, Trial Chamber (Judgment) (2004) IT-01–42/I-S, para 51.

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The Responsibilities to Protect Cultural Heritage 139 Adviser on the Prevention of Genocide, in its official Analysis Framework, has listed ‘ethnic cleansing . . . to reach the fundaments of [a particular] group’ as well as ‘[t]he destruction of or attacks on cultural and religious property and symbols . . . that may be designed to annihilate the historic preserve of the group or groups’.66 Similarly, the for mer Director-General of UNESCO, Irina Bokova, importantly addressed the problem of ‘cultural cleansing’ in Iraq and Syria. She has defined ‘cultural cleansing’, however, as destruction that ‘cannot be decoupled from the killing of people, as violent extremists attack anything that can sustain diversity, critical thinking and freedom of opinion— schools, teachers, cultural minorities, and monuments’.67 The treatment of Rohingya in Myanmar is yet another example. On Director-General Bokova’s initiative, the UNESCO Meeting of Experts in 2015 on extensions of R2P to cultural heritage considered cultural cleansing as an actionable abuse of fundamental human rights. Two questions were raised. Should the responsibil ity of States to protect persons within their jurisdiction be interpreted to include protec tions against cultural cleansing? Is cultural cleansing tantamount to ethnic cleansing under R2P, a term in line with provisions of the Rome Statute that established the International Criminal Court (ICC)68 and expressed in the United Nations Special Adviser’s Analytic Framework? The consensus emerged that, although in theory cultural and ethnic phenomena may differ from each other, in practice they coincide as evidence of an intent ‘to destroy [a group] in whole or in part’, in the language of the Genocide Convention. Still, ethnic cleansing is not the same as genocide despite a few pronouncements to that effect by the UN General Assembly and other sources. That is because ethnic cleans ing is understood simply to involve the forced removal of ethnic or related groups from particular geographical areas, often but not always to achieve ethnic homogeneity. Ethnic cleansing does not necessarily entail any dolus specialis or a specific intent to destroy a group, although it may lead to genocide in some instances. Thus, ethnic cleansing, monstrous as it can be, fundamentally reflects a strategy to redefine a population map rather than to destroy the population. Accordingly, the ICTY observed in Prosecutor v Krstić, for example, that ‘[a] clear distinction must be drawn between physical destruction and mere dissolution of a group’69 even though an attack directed against cultural or religious property ‘may legitimately be considered as evidence 66 United Nations Office on Genocide Prevention and the Responsibility to Protect, Framework for Atrocity of Crimes (2015). 67 Irena Bokova, ‘Fighting Cultural Cleansing: Harnessing the Law to Preserve Cultural Heritage’ (2015) 36 Harvard International Review 4. 68 For example, art 7(1)(h) of the Rome Treaty, avoiding the language of mass atrocities, prohibits ‘[p] ersecution’ against any identifiable group. ‘Persecution’, in turn, is defined by art 7(2)(g) as the ‘inten tional and severe deprivation of fundamental rights contrary to international law by reason of the iden tity of the group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds’ (emphasis added). Rome Statute of the International Criminal Court, 17 July 1998, UN Doc No A/Confirmation. 183/9. Also, art 7(1)(d) of the Rome Statute prohibits ‘forcible transfer of populations’. 69 Prosecutor v Krstić (n 62), para 562.

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140 James A. R. Nafziger of an intent to physically destroy the group’.70 The European Court of Human Rights71 and the International Court of Justice72 later adopted similar distinctions.

4.5 Culturecide An alternative concept, lying somewhere between cultural cleansing and cultural genocide, or perhaps covering them both, is that of ‘culturecide’. It recognizes that the physical and biological requirements for commission of genocide—usually involving mass killings—do not allow for cultural destruction. The concept of culturecide therefore ‘points to the possibility of “killing a culture” without the necessity to physically exterminate its depositories’.73 Calling egregious practices ‘simply “destruction of culture”, “loss of cultural heritage” or “forced assimilation” in the context of dramatic suffering of thousands of people seems no longer enough today: not in the political sense, and neither in the moral or legal one’.74

4.6 Other Legal Issues: The Iraq and Syria Conflicts Today, the concept of cultural genocide is still likely to remind us immediately of the destruction by the so-called Islamic State (ISIS) in Iraq and Syria of World Heritage Sites, monuments, and artefacts despite the military demise of ISIS in those States.75 In Iraq the sledgehammering of ancient statutes in the Mosul museum and the destruction of the ancient cities of Nimrud and Hatra horrified the world. In Syria massive looting among the stately colonnades of Apamea, as well as the deliberate obliteration of the Temples of Bel and Baal Shamin and the funerary towers in Palmyra, were 70 Ibid., para 580. 71 Jorgić v Germany, App No 74613/01, 12 July 2007 (Judgment) §45. 72 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Serbia & Montenegro) [2007] ICJ Rep 43, paras 190, 344, 390, reprinted in 46 ILM 188 (2007) (ruling that a State can be held responsible for acts of genocide (seek ing to destroy a population) but that Serbia violated the Genocide Convention only by failing to prevent genocide at Srebrenica, Bosnia, and not by manifesting the necessary specific intent to liquidate an entire group despite evidence of what amounted to ethnic cleansing). 73 Hanna Schreiber, ‘Cultural Genocide: Culturecide and An Unfinished or Rejected Project of International Law?’ in Grazyna Michalowska and Hanna Schreiber (eds), Culture(s) in International Relations (Peter Lang Verlag 2017) 319, 334. 74 Ibid, 346. 75 See, for example, ‘ISIS, War and the Threat to Cultural Heritage in Iraq and Syria’ (2016) 16(4) International Foundation for Art Research Journal 16–57, an informative symposium on this theme; James Harkin, ‘Murdering History’ (2016) 46 Smithsonian 38; Emma Cunliffe, Nibat Muhesen & Marina Lostal, ‘The Destruction of Cultural Property in the Syrian Conflict: Legal Implications and Obligations’ (2016) 23 International Journal of Cultural Property 1; Ömür Harmansah, ‘ISIS, Heritage, and the Spectacles of Destruction in the Global Media’ (2015) 78 Near Eastern Archaeology 170: Michael D. Danti, ‘Ground-Based Observations of Cultural Heritage Incidents in Syria and Iraq’ (2015) 78 Near Eastern Archaeology 132.

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The Responsibilities to Protect Cultural Heritage 141 also monstrous. As if to follow the playbook of genocide, ISIS also assassinated the octogenarian archaeologist who apparently had volunteered to take charge of protect ing the Palmyra site. Of course, in certain instances the brutal attacks by ISIS against specific groups, such as the Yazidis in Iraq, support arguments of genocidal intent based, at least in part, on direct attacks against culture. All of these actions could more easily be classified as grave breaches of international law if cultural genocide were in itself an established crime of atrocity such as a war crime or a crime against humanity. In November 2015 the United Nations Security Council did go so far as to include the ‘eradication of cultural heritage and trafficking of cultural property’76 on a list of acts that constituted a threat to international peace and security— a kind of red alert—but fell short of describing such actions as genocide. The reference to trafficking of cultural property recalled an earlier Security Council Resolution on looting of Iraqi artefacts.77 One problem of characterizing the acts of ISIS as genocidal is that, taken together, the pulverized targets were historically and culturally differentiated: Assyrian statuary, Roman temples, Shiite mosques, Christian churches and monasteries, and even Sunni mosques. A plausible explanation for the explosion of the Temple of Baalshamin was merely that it had served as a backdrop for summer music concerts in recent years and thereby offended strict prohibitions against public music. This is a good example of an attack on a specifically cultural phenomenon rather than on one of broader significance. To be sure, the overall religious zealotry and hostility of ISIS to any hint of idolatry, its general disrespect for history itself, and its apparent determination to erase memory— like the damnatio memoriae of the Romans—may have blurred and made less relevant the cultural diversity of the ISIS targets. A sort of diffuse iconoclasm seems to have been a pervasive impetus for the deliberate destruction of heritage.78 But those motivations hardly overcome the Genocide Convention’s requirement of a specific, single intent to victimize persons within an identifiable and coherent category (national, ethnic, racial, or religious). A complex intent is insufficient. Thus, even as evidence of a mixed intent to destroy cultural heritage of some sort or mixture, claims of cultural genocide by ISIS under the Convention are questionable. An additional problem is, of course, the inadequacy of international law in responding to acts by non-State actors such as ISIS, despite its pretentions of constituting a sovereign caliphate that was tantamount to a State with international legal personality. Another non-ISIS example of an arguably ambiguous intent to commit what unques tionably was a war crime against significant cultural heritage was the targeting and destruction by an Islamist moral brigade of ancient buildings in Timbuktu, Mali. All but

76 See SC Res 2249 (20 November 2015) UN Doc S/RES/2249. 77 See SC Res 1483 (22 May 2003), UN Doc S/RES/1483. 78 See Cunliffe, Muhesen, and Lostal, ‘The Destruction of Cultural Property in the Syrian Conflict’ (n 75) 4, 13 (‘Iconoclasm is not a specific crime, but it represents the removal of people’s ability to participate in the cultural life of the community, as covered under general [international humanitarian law], and it causes cultural property damage as defined in the 1954 Hague Convention.’)

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142 James A. R. Nafziger one of the buildings were protected UNESCO World Heritage Sites.79 To be sure, the intent was unquestionably inspired by religious fundamentalism, but, in the throes or aftermath of civil conflict in Timbuktu, the criminal acts may have had secondary mili tary or political motives. Whether the motive for the acts was mixed in that way, they amounted to sheer vandalism of cultural heritage and barbarity against a culture, to recall Raphael Lemkin’s terminology.

5. Moving Forward An ounce of prevention, coupled with the prospect of an ounce of principled, agreedupon intervention, is certainly worth a pound of cure in the effort to combat attacks on cultural heritage and culture itself. The concept of R2P can therefore be instrumental, particularly at the level of cultural genocide. The foundation for so applying the concept lies in international law. For example, the 1954 UNESCO Convention’s provisions for special protection or refuge of cultural material in the event of armed conflict80 helps support the R2P’s Pillar I. Similarly, the Convention’s encouragement of parties to call on UNESCO for assistance in protecting materials supports Pillar II.81 Perhaps the time has come, therefore, to move beyond the limitations of the Genocide Convention, as interpreted, without impairing its capacity to help deter and respond to atrocities against racial, ethnic, religious, or national groups. Perhaps, as in the Al Mahdi Case, an intent to destroy either a physical or a non-physical foundation of a culture (the opposite of complying with R2P), whatever its current viability or relative location, should be enough to constitute cultural genocide. The concept might then become an offence in itself, not just evidence of an act of genocide, so as to serve by itself as a basis for prosecution, and under R2P, intervention. Gaining such recognized legal status could provide a substantial deterrent to the destruction of cultural heritage. Such a development would provide a powerful disincentive to deprive groups of people of their cultural heritage, in either the physical sense of destroying their cultural institutions, monuments, and sacred sites or the non-physical sense of impairing or depriving them of their access to and use of their language, other cultural practices, and even ways of life. In the physical or tangible sense of cultural genocide, UNESCO’s 2003 Declaration Concerning the Intentional Destruction of Cultural Heritage82 offers a platform of soft law for constructing a more instrumental concept of cultural genocide, assisted by R2P. It was adopted in response to the Taliban’s obliteration in 2001 of two colossal ancient Buddhas with both eastern and western characteristics that reflected their Silk Road location in the Bamiyan Valley of Afghanistan.83 In the interest of 79 See Prosecutor v Al Mahdi (n 53). 80 1954 Hague Convention (n 20) arts 8–14. 81 Ibid, art 23. 82 UNESCO Doc 32/Res. 33 (2003), 17 October 2003 (hereafter UNESCO Declaration). 83 See, for example, Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14 European Journal of International Law 638.

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The Responsibilities to Protect Cultural Heritage 143 transmitting cultural heritage to succeeding generations, the Declaration defines ‘intentional destruction’ as an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case in so far as such acts are not already governed by fundamental principles of international law.84

The Declaration also confirms a link between the intentional destruction of cultural heritage (the opposite of R2P) and gross violations of human rights and, during armed conflict, humanitarian law. Indeed, a broad platform of human rights law and, during armed conflict, humanitarian law helps support an enhanced or enlarged concept of cultural genocide, not only on the physical or tangible side but also on the non-physical or intangible side. But this platform is limited insofar as the law has only haphazardly generated individual civil or criminal responsibility beyond the injunctive and compen satory relief that is available against those States that have violated binding treaty obliga tions. That is so, even though the Nuremberg experience taught us that all persons have obligations, as subjects of international law, to avoid grave breaches of human rights and humanitarian law towards everyone in the world, erga omnes.85 A second platform of pertinent soft law is the United Nations Declaration on the Rights of Indigenous Peoples.86 Although it does not adopt the concept of cultural genocide explicitly, it nevertheless underscores the viability of the concept’s essential elements under international law. For example, article 7(2) provides that ‘Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group’. Article 8 adds that ‘Indigenous peoples and individuals have the right not to be subjected to forced assimi lation or destruction of their culture. The same provision then requires States to “pro vide effective mechanisms for prevention of, and redress for” several actions including: “(a) Any action which has the aim or effect of depriving them of their integrity as dis tinct peoples, or of their cultural values or ethnic identities”; and (b) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights.’ The ‘prevention of ’ language certainly bespeaks the concept of R2P. Despite these two Declarations, however, the decision in 1948 not to include cultural genocide explicitly within the comprehensive Genocide Convention continues to con strain progressive development of the law despite an impressive lex ferenda of norms, pronouncements, and progressive trends today. It might be noted ironically that the 84 See UNESCO Declaration (n 82) art II(2). 85 See UNESCO, WHC/2002/CONF. 202/8, 24 May 2002. The seminal pronouncement of the principle of human rights obligations erga omnes may be found as a dictum in the Case Concerning the Barcelona Traction, Light & Power Co, Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, paras 33, 34. 86 UN Doc A/RES/61/295 (2007).

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144 James A. R. Nafziger Convention, building on Rafael Lemkin’s work before the Holocaust, was designed most immediately to respond to its horrors. These included the clear intent of the Nazis to eradicate essential cultural foundations and material of Jews, Poles, the Roma, and other groups. Given the Convention’s travaux and black-letter authority as treaty law, there is little chance, despite reasonable aspirations,87 that cultural genocide will become recognized under customary international law as an actionable wrong in its own right, nor is it likely that obligations to protect cultural heritage will become erga omnes vis-à-vis the inter national community as a whole.88 To be sure, important judicial and other decisions, especially during the past two decades, have taken the concept of cultural genocide well beyond the outmoded constraints of the Convention. It therefore has emerged beyond those constraints as an effective tool of evidence on the issue of intent, the mens rea, to commit one or more of the prohibited acts of genocide directed against targeted groups of people. It is also an influential concept in political and colloquial discourse. Indeed, it has been aptly observed that ‘the concept of banning cultural genocide in international law has not really be “rejected”; it is in fact “silently present”. Its presence in international law is silent because it is hidden under different names (e.g. forced assimi lation or forcible transfer of children) and fragmented in diverse international law instruments: human rights law, international humanitarian law, international criminal law and international cultural heritage law.’89 A possible next step, however difficult it might be to achieve, would be worthwhile if only to articulate and publish progressive principles to facilitate discourse about how best to prevent cultural genocide. That step would be to carefully draft two optional protocols to the Convention. One would directly establish as an act of genocide the intent to eradicate the cultural heritage and, more broadly, the culture of a group of per sons as a whole or in part.90 A second protocol would explicitly adopt the pillars of R2P. Such protocols would aim to deter and respond to the destruction of both a culture’s physical or tangible manifestations and its non-physical or intangible foundations. The Recommendations adopted at UNESCO’s Meeting of Experts in 2015 concerning the extension of R2P to cultural heritage emphasized that ‘the ultimate objective of protecting cultural heritage is the protection of the living culture of populations and humanity, of human rights and dignity, and of the interests of past and future generations’.91 It would seem that deliberately impeding that objective by comprehensively destroying either tangible or intangible underpinnings of a culture ought to constitute a crime of cultural genocide in itself and not just provide evidence of crimes against persons physically. The concept of R2P, with its insistence on the responsibility of States to prevent such crimes, could be instrumental in moving forward to protect the cultural heritage. 87 See, for example, Sandhar, ‘Cultural Genocide in Tibet’ (n 44) 194: ‘Cultural genocide, therefore, needs to be addressed in customary international law and not to be seen as inferior or secondary to physical genocide.’ 88 See Jakubowski, ‘State Responsibility’ (n 11) 158, 163. 89 Schreiber, ‘Cultural Genocide’ (n 73) 345 (footnotes omitted). 90 Lippman, ‘Genocide’ (n 39) 433. 91 Recommendations 13, Preamble.

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Chapter 7

Cu ltu r a l H er itage a n d Disasters Giulio Bartolini

1. Introduction Recent disasters have demonstrated how cultural and natural heritage1 can suffer significantly from calamitous events. This might be the case for UNESCO World Heritage Sites, as experienced with the earthquake in the Kathmandu Valley in 2010, and for cultural property in general, commonly affected by major calamities. Despite the frequency and magnitude of disasters, the international legal framework has paid little attention to legal challenges posed by the protection of cultural and natural heri tage in disaster settings, a situation compounded by the absence of in-depth scholarly analysis.2 Against this background this chapter will examine how international cultural heritage law (ICHL) has so far addressed this topic, also in light of the increasing crossfertilization with inputs provided by an emerging branch, namely international disaster law (IDL)3—that is, those international instruments aimed to address legal and oper ational issues in the event of disasters.

1 On the different implications of the use of terms such as cultural property or cultural heritage, see L. Prott and P. J. O’Keefe, ‘ “Cultural heritage” or “cultural property”?’ (1992) 1 International Journal of Cultural Property 307 ff.; M. Frigo, ‘Cultural Property v. Cultural Heritage: A “Battle of Concepts” in International Law?’ (2004) IRRC 367 ff. In this paper, the first term is preferred. 2 See however the conference report ‘Protection and safeguard of cultural heritage from risks con nected to natural and man-made disasters’ (2014), available at . 3 A. de Guttry, M. Gestri, and G. Venturini (eds), International Disaster Response Law (Springer 2012); D. Caron, M. J. Kelly, and A. Telesetsky (eds), The International Law of Disaster Relief (Cambridge University Press 2014); S. C. Breau and K. Samuel (eds), Research Handbook on Disasters and International Law (Elgar 2016).

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146 Giulio Bartolini This chapter will exclusively address disaster scenarios. Even if this latter notion could not yet be qualified as a term of art in international law,4 practice delineates converging trends on its constitutive elements,5 as recently emphasized by similar definitions adopted by the ILC Draft Articles on the ‘Protection of persons in the event of disasters’,6 which defines disaster as a ‘calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’, and by the ‘Report on terminology relevant for the Sendai Framework for Disaster Risk Reduction’7, endorsed by the UN General Assembly in 2017.8 This emerging term also better frames the ratione materiae scope of this paper. For instance, an armed conflict per se could not be categorized as a disaster,9 thus allowing us to skip analysis related to wartime scenarios, an area already addressed by ICHL. Similarly, the term ‘disaster’ can cover both sudden-onset and slow-onset emergencies, while its origins can be traced in natural events or human-made hazards.10 The subsequent analysis will thus be carried out according to the so-called ‘cycles of a disaster’, commonly arranged along the phases of mitigation and preparedness, relief and recovery11—that is, the cyclical processes and patterns that disaster events follow. As a result it will adopt a holistic approach towards the main legal, institutional, and operative challenges to the protection of cultural and natural heritage along the temporal phases of a disaster. In particular, Section 2 assesses early attempts by ICHL to address this topic, Section 3 focuses on risk reduction activities, and Section 4 analyses post-hazards issues. While specific attention is paid to the heritage fulfilling the high ‘quality’ threshold provided in articles 1 and 2 of the 1972 World Heritage Convention (WHC),12 the focus will also be extended to cultural and natural heritage in the broadest sense, especially in light of the potential relevance and cross-fertilization with IDL. 4 Preliminary report on the protection of persons in the event of disasters by Eduardo ValenciaOspina, UN Doc. A/CN.4/598 (5/5/2008) 152, para 46: ‘There is no generally accepted legal definition of the term in international law.’ 5 See G. Bartolini, ‘A Taxonomy of Disasters in International Law’, in F. Zorzi Giustiniani, E. Sommario, F. Casolari, and G. Bartolini (eds), Routledge Research Handbook of Human Rights and Disasters (Routledge 2018) 10 ff. 6 According to art 3, let a of the Draft Articles. See Report of the International Law Commission, Sixty-eighth session, UN Doc A/71/10, 2016, 14 (hereafter ILC Report 2016). For its Commentary see ibid, 22–4. 7 Report of the open-ended intergovernmental expert working group on indicators and terminology relating to disaster risk reduction, UN Doc. A/71/644 (1/12/2016). 8 UN Doc A/RES/71/276 (13/2/2017). 9 See ILC Report 2016 (n 6), 22, para 2; Report of the open-ended intergovernmental expert working group (n 7) 18. 10 ILC Report 2016 (n 6) 23, para 4. 11 M. Nthakomwa, ‘Cycles of a Disaster’ in K. B. Penuel and M. Statler (eds), Encyclopedia of Disaster Relief (Sage 2011) 96–8. 12 On such criteria, see A. A. Yusuf, ‘Article 1. Definition of Cultural Heritage’ in F. Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press 2008) 23 ff; C. Redgwell, ‘Article 2. Definition of Natural Heritage’ in ibid, 63 ff.

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Cultural Heritage and Disasters 147

2. The Lack of a Specialist ICHL Instrument to Address Disaster Scenarios None of the specialist ICHL instruments has disasters as the main focus of its ratione materiae scope of application. This lacuna should not, however, be interpreted as a lack of legal relevance for this scenario, being mainly the result of law-making priorities attributed to other issues, as testified by past practice. For instance, in 1981 the Director-General was entrusted by resolution 4/08 of the UNESCO General Conference to submit to the Executive Board a report on the ‘Desirability of adopting an international instrument on the protection of the cultural heritage against natural disasters and their consequences’, as finally elaborated in 1983.13 This report was already able to capture key elements relevant for a potential standardsetting initiative through the identification of a series of multifaceted measures States could be requested to adopt in the pre-disaster phases (for example, incorporation of cultural property issues in disaster management plans; risk assessments; plans to evacu ate movable property) and post-disaster scenarios (such as involvement of cultural experts in relief mechanisms; shoring up of damaged buildings). On the assumption that ‘some form of normative action is desirable . . . [and] further standard-setting action is feasible’,14 the Director-General finally suggested the elaboration of a Recommendation. This proposal was not endorsed by the subsequent General Conference. Notwithstanding the evaluation that ‘the protection of the cultural heritage against natural disasters is not fully ensured by existing international instruments and that it would therefore be useful to prepare as soon as possible complementary provisions’, this body recognized it as essential ‘to give priority, in keeping with available resources, to the activities required for the implementation’.15 Even if the DirectorGeneral’s suggestion was not followed up, the rationale behind the proposal to foster ICHL standard-settings related to disasters—that catastrophes are a major challenge—has not changed since then. Subsequent sections will thus assess how ICHL institutions have progressively addressed this topic, including in light of the contribution provided by IDL instruments and the increasing cross-fertilization between the two sectors.

13 22 C/26. The Annex includes the report of the Director-General. 14 22 C/26, para 55. 15 23 C/11.2.

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148 Giulio Bartolini

3. Disaster Risk Reduction and the Protection of Cultural and Natural Heritage Following the disaster cycle, a preliminary focus is devoted to disaster risk reduction (DRR), namely activities ‘preventing new and reducing existing disaster risk’,16 a catchall definition able to cover both the mitigation and preparedness phases. Attention will be paid both to the 1972 WHC and cultural heritage in its broadest sense, including interactions with paradigms pertaining to IDL.

3.1 Assessing the Legal Relevance of International Cultural Heritage Law Instruments for DRR Activities Even if there are no specialist instruments devoted to disasters, existing treaties can still provide some points of reference towards such scenario. A first reference could be made to the 1954 Hague Convention and its 1999 Second Protocol, as both treaties require States to adopt preventive measures in peacetime to foster the protection of cultural property during armed conflicts. For instance, article 3 of the 1954 Convention includes a general obligation to prepare for the safeguarding of cultural property against the effects of hostilities, ‘by taking such measures as they consider appropriate’. Such activities, as already suggested in the drafting process of the Treaty,17 could result in the recording of cultural properties, the adoption of architectonic measures designed to protect immovable properties against collapse, and the management of refuges or trans portation in case of danger. Equally, article 5 of the 1999 Second Protocol details in more concrete terms this obligation,18 also listing ‘steps to be taken in peacetime to ensure overall risk-prevention’,19 as complemented by other provisions.20 However, even if such measures might also have a positive impact where such properties are affected by a dis aster, they can hardly be qualified as conclusive. Therefore, the analysis should be extended to specialist instruments, in particular the 1972 WHC, so as to contextualize its obligations in light of disasters. 16 See UN Office for Disaster Risk Reduction, Terminology, at . 17 7/C/PRG, Annex I, 8. See R. O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge University Press 2006) 111–16. 18 On this provision O’Keefe, The Protection of Cultural Property (n 17), 249–51. 19 CLT/CH/94/608/2, 6. Art 5 refers, for example, to the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse or the removal of movable cultural property. 20 See art 29 of the Second Protocol on the Fund for the Protection of Cultural Property for support ing peacetime activities. Similarly see art 33, paras 1 and 2 for technical assistance to the provided by UNESCO or States in this area.

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Cultural Heritage and Disasters 149 First, the few WHC provisions making express reference to disaster scenarios should be mentioned. In particular, article 21, dealing with international assistance,21 affirms: ‘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’. Forms of assistance, as exemplified in article 22,22 should therefore be primarily targeted for this context, regardless of the current inscription of the relevant heritage in the World Heritage List,23 in order to implement the principle of solidarity proclaimed by the Preamble.24 Such measures are managed through the Operational Guidelines for the Implementation of the World Heritage Convention (hereafter, Operational Guidelines), periodically reviewed by the World Heritage Committee (WH Committee hereafter) to complement treaty provisions through a practically oriented approach. The 2017 Operational Guidelines provide different forms of support, including ‘Emergency Assistance’ to be ‘requested to address ascertained or potential threats facing properties’ caused by sudden phenomena as ‘land subsidence, extensive fires, explosions, flooding or human-made disasters including war’.25 According to guidelines provided in the application form, as adopted by the WH Committee in 2007, emergency assistance can only cover ‘cases when an imminent danger related to a natural or human-made disaster is threatening . . . a World Heritage property’ or to assess whether or not imminent danger is present as a result of a disaster.26 Therefore, once the effects of disasters have significantly affected the World Heritage List, other lines of assistance should be explored, such as ‘Conservation and Management’. Assistance measures could therefore be mobilized in the pre-disaster phases, and their relevance has also been confirmed by their special status. In fact, while States Parties in arrears of payment of their contributions to the World Heritage Fund cannot request international assistance, such limitation ‘does not apply to requests for emergency assistance’.27 Nonetheless, according to surveys undertaken by UNESCO for the fourth Global Platforms for DRR, States have not fully exploited this possibility. Assistance provided to the pre-disaster phases was limited to 0.3 per cent of the budget allocated to international assistance, ‘an important indicator of how little consideration the topic has received from States Parties’.28 Similarly, article 11 of the WHC, dealing with endan 21 On international assistance, see C. Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010), 262–7; A. Lemaistre, F. Lenzerini, ‘Articles 19–26. International Assistance’, in Francioni, The 1972 World Heritage Convention (n 12) 305 ff. 22 According to art 2,2 assistance might take the form of, for example, studies on technical problems, provisions of experts, training activities, supply of equipment, loans, etc. 23 Lemaistre and Lenzerini, ‘Articles 19–26’ (n 21), 309. 24 J. Musitelli, ‘World Heritage between Universalism and Globalization’ (2002) 11 Journal of Cultural Property 323, 326. 25 Operational Guidelines for the Implementation of the World Heritage Convention, WHC.17/01, para 241. Reference is made to Emergency Assistance, Preparatory Assistance, Conservation and Management Assistance. 26 Decision 31COM 18A. The form is available in WHC-07/31.COM/18B, 10/52007,14. Relevant refer ences at ibid, 23. 27 Operational Guidelines (n 25), para 237. 28 Heritage and Resilience. Issues and Opportunities for Reducing Disaster Risks (UNESCO 2003) 23.

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150 Giulio Bartolini gered world heritage, makes reference to disasters as events potentially able to activate this provision. Even if, theoretically, article 11 might also be used to address a lack of appropriate DRR measures, its relevance has been limited to post-hazard phases, as explored in Section 4. Even if articles 21 and 11 of the WHC are the only provisions with a clear textual refer ence to disasters, other WHC rules should be properly interpreted to identify States’ obligations in such contexts. In particular, the general obligation to identify, protect, conserve, present, and transmit world heritage to future generations, as expressed in article 4, provides a strong basis to articulate the duty of States to properly act to prevent and minimize detrimental effects potentially caused by disasters. Other activities might also be relevant, as highlighted by the tentative list included in article 5, where reference is made to legal, technical, administrative, and financial measures, including ‘scientific and technical studies . . . [to] make the State capable of counteracting the dangers that threaten its cultural and natural heritage’ and the integration of ‘the protection of that heritage into comprehensive planning programmes’—that is, catch-all references able to be translated into operative measures in the area of DRR. Nonetheless, some scholars have pinpointed the limited value of such provisions, seeing them as being a sort of ‘soft obligation’ in the WHC system due to a series of caveats included in these articles. For instance, article 4 provides that a State will fulfil this duty ‘to the utmost of its own resources and, where appropriate’, while, according to article 5, States ‘shall endeavor in so far as possible, and as appropriate for each country’ to establish the proposed measures. Such wording has led authors such as Lenzerini to substantially deny article 4 any legal value, affirming that ‘Article 4 only refers to a duty (and not a technical “obligation”) . . . which is not capable of being translated into specific requirements, but in practice it simply entails a commitment to not acting in ways which are manifestly at odds with the purposes of the Convention’,29 a position partly mitigated by Carducci, according to whom ‘[t]his duty is relative in terms of the performance it demands. It reflects sensitivity to real cultural and/or social and/or eco nomic variables.’30 In my opinion, conversely, the peculiar situation raised by potential disasters affecting world heritage might permit better framing of State obligations. The due diligence character of these obligations, clearly spelled out by the wording of these provisions, should indeed act as a legal parameter of reference to assess best efforts measures required by States in such circumstances. First, the flexible nature of due diligence obligations is usually parameterized in light of more objective criteria able to clarify their content, such as the degree of predictability of the harm which might affect the interest protected by international rules or the same weighing of interests the State was requested to protect,31 a combination of elements 29 F. Lenzerini, ‘Article 12. Protection of Properties not Inscribed on the World Heritage List’ in Francioni, The 1972 World Heritage Convention (n 12) 207. 30 Guido Carducci, ‘Articles 4–7. National and International Protection of the Cultural and Natural Heritage’ in Francioni, The 1972 World Heritage Convention (n 12) 116. 31 For these criteria, see R. Pisillo-Mazzeschi, ‘Due Diligence’ e responsabilità internazionale degli Stati (Milano 1989) 261–76; The ‘Due Diligence’ Rule and the Nature of the International Responsibility of States (GYIL 1992) 44. Similarly, see J. Kulesza, Due Diligence in International Law (Brill Nijhoff 2016) 264.

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Cultural Heritage and Disasters 151 able to assume a specific role in our context. In case of world heritage prone to be involved in disasters, whose identification can nowadays be more easily determined through scientific evidence, such as maps of hazards or technical assessments on the resilience of the World Heritage Site,32 measures requested under article 4 could assume a stringent character due to the ‘context-dependent’33 nature of relevant due diligence obligations. The obligation of conduct/means34 characterizing article 4 WHC might be realized through taking the necessary, diligent steps towards the end of preventing, or at least minimizing, detrimental effects caused by disasters, particularly by a set of positive measures identifiable also in light of guidelines provided by international institutions to be subsequently explored in Section 3.2. Similarly, in light of the outstanding universal value characterizing objects fulfilling criteria provided by articles 1 and 2, the adoption of positive discriminatory approaches, attributing priority to actions addressing potential damages to World Heritage Sites in comparison with similar detrimental effects faced by other cultural properties, could be justified. Second, and more relevantly, the due diligence character of articles 4 and 5 also implies its evolving nature. As recently recognized by the ITLOS, ‘ “due diligence” is a variable concept. It may change over time . . . in light, for instance, of new scientific or technological knowledge’,35 also implying, as maintained by the ILA Study Group on this subject, that ‘the strictness of the applicable standard can be enhanced and mature into a more demanding system of legal accountability’,36 thus partly losing its character of a flexible norm of behaviour. In this context, therefore, an increasing relevance might be attributed to practice developed by international organizations and other relevant fora aimed at identifying relevant technical or scientific standards, them being potentially significant to evaluate State efforts to comply with due diligence obligations.37 Indeed, as maintained in some areas, ‘due diligence may tend to have an ever more technical character, capable of measurement in terms of technical and scientific standards of 32 For example, G. Accardo and A. Giovagnoli, ‘The Risk Map of Italian Cultural Heritage’ (2013) 9 Journal of Architectural Conservation 41. As for the geological hazard map of Manila’s historic and heritage sites, including enlisted UNESCO sites, see data and maps provided by the National Commission for Culture and the Arts . 33 T. Koivurova, ‘Due Diligence’ in R. Wolfrum (ed), Max Planck Encyclopedia of Public International Law. Volume III (Oxford University Press 2012) 245, para 44. 34 This terminology does not follow the definitions proposed by Roberto Ago to reverse the more traditional distinction between obligations of means/conduct and obligations of result as followed in civil law system, as proposed in draft articles 20–3 on State responsibility adopted on first reading by the ILC. For criticisms, see J. Crawford, Second report on state responsibility, UN Doc. A/CN.4/498, par. 52 ff. On this debate, see C. P. Economides, ‘Content of the Obligation: Obligation of Means and Obligations of Result’ in J. Crawford, A. Pellet, and S. Olleson (eds), The Law of International Responsibility (Oxford University Press 2010) 371–81. 35 Ibid, para 117. 36 ILA Study Group on Due Diligence in International Law, Second Report, July 2016, 3. 37 See Pisillo-Mazzeschi, Due Diligence (n 31) 382–6, 399; The ‘Due Diligence’ Rule (n 31) 45; Kulesza, Due Diligence (n 31) 269; O. Yoshida, The International Legal Régime for the Protection of the Stratospheric Ozone Layer: International Law, International Régimes, and Sustainable Development (Kluwer Law International 2001) 66.

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152 Giulio Bartolini behaviour that are commonly accepted by States’,38 a solution potentially applicable to disaster scenarios and DRR measures. In this regard reference could be made to the increasing identification by significant institutions, such as UNESCO and its Advisory Bodies, of appropriate measures, best practices and technical activities aimed to guide States on DRR activities, as well as in light of paradigms developed in IDL instruments (explored in Section 3.2). Third, potential ‘mitigating’ factors for the extent of international obligations might have a reduced role, as for the difficulties, especially of an economic nature, States can face.39 Due to the community interest to be protected, as emphasized by the erga omnes character of obligations provided by the WHC,40 this element can have a reduced scope in this context, as already underlined in other areas where the possibility of accommodating due diligence standards pertaining to erga omnes obligations to the level of development of the concerned State was rejected.41 As for DRR measures relevant to the protection of world heritage, the scope for inactive States to escape responsibility can thus hardly be maintained, in light of: (a) the outstanding nature of world heritage, representing the inheritance received from the previous generations to be safeguarded and handed on to following ones; (b) the non-renewable character of such sites in light of major disasters; and (c) the possibility of assuming a proactive role—for instance, seeking international assistance through mechanisms managed by the WHC. Therefore, due diligence obligations provided by articles 4 and 5 might assume an evolutionary and more tailored interpretation since their original drafting, based partly on context-based scenarios linked with disaster settings and partly on the possibility of clarifying applicable standards in light of subsequent practice largely influenced by the cross-fertilization with IDL paradigms.

3.2 The Influence of International Disaster Law Paradigms in the Protection of World Heritage Sites As mentioned, a relevant feature of current practice is the increasingly influence and cross-fertilization with IDL instruments with regard to both world heritage and cultural property in general, as explored in Section 3.3. This can be exemplified with regard to the 1972 WHC and the development of a specific DRR strategy for World Heritage proper 38 ILA Study Group on Due Diligence in International Law, First Report, March 2014, 29–30. 39 On this issue, see P. D’Argent and A. De Vaucleroy, ‘Le contenu de l’omission illicite: la non utiliza tion de moyens raisonnables’ in S. Casella (ed), Le standard de due diligence et la responsabilité internationale (Pedone 2018) 256–9. 40 On the erga omnes character of some obligations under the WHC, as art 4, see G. P. Buzzini and L. Condorelli, ‘Article 11. List of World Heritage in Danger’ in Francioni, The 1972 World Heritage Convention (n 12) 260; Roger O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) International and Comparative Law Quarterly 190. 41 See International Tribunal for Law of the Sea (ITLOS), Seabed Disputes Chamber, ‘Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area’, Advisory Opinion, 1/2/2011, para 159.

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Cultural Heritage and Disasters 153 ties. In particular, following the request made in 2004 by the WH Committee to elaborate a risk-preparedness strategy,42 the draft document prepared by the World Heritage Centre in 200643 was finally adopted in 2007 by the WH Committee as the ‘Strategy for risk reduction at World Heritage Properties’.44 Its aim was to integrate heritage concerns into national disaster reduction policies and provide guidance to States Parties, the WH Committee, the World Heritage Centre, and the Advisory Bodies on integrating DRR management of World Heritage Sites. The particular significance of this document is provided by its structure and content, representing an innovative translation of DRR paradigms, as elaborated by relevant IDL instruments, into ICHL. Significantly, the Strategy’s format was structured to mirror the five ‘Priorities of Action’ and their related ‘Key Activities’ elaborated by the UN World Conference on Disaster Reduction in the ‘Hyogo Framework for Action 2005–2015’45 and subsequently endorsed by the UN General Assembly.46 In particular, DRR para digms and actions expressed in this IDL document were sanctioned by the WH Committee’s Strategy in its own five ‘Objectives’, each accompanied by two ‘Priority Actions’ modelled according to examples provided in the Hyogo Framework but adapted to reflect the specific concerns of World Heritage properties. As an example, Priority for Action No. 2 of the Hyogo Framework aimed to ‘Identify, assess and monitor disaster risks and enhance early warning’, according to an approach reiterated for other priorities identified by the IDL instrument (see Table 7.1).47 Even if the Hyogo Framework was the background document for the WH Committee’s development of its own document, the legal peculiarities of the UNESCO Strategy should also be pinpointed. As is known, activities promoted by the UN in relation to DRR have been marked by a soft-law approach, in contrast to regional and sectorial treaties where obligations pertaining to DRR could be identified.48 The three global strategies adopted by UN World Conferences (Yokohama, Hyogo, Sendai), even if subsequently endorsed in UN General Assembly resolutions, cannot be qualified as imposing per se binding commitments, regardless of their impact on subsequent practice.49

42 See para 3 of Decision 28 COM 10B, 2004. 43 WHC-06/30.COM/7.2, 26/5/2006. This document was more extensive in content than the final one. 44 Decision 31 COM 7.2. For the text of the Strategy see WHC-07/31.COM/7.2. 45 A/CONF.206/6, Resolution 2. 46 UN Doc. A/RES/60/195. 47 See other ‘Priorities of Action’ of the Hyogo Framework mirrored by the UNESCO Objectives: ‘1. Ensure that disaster risk reduction is a national and a local priority with a strong institutional basis for implementation’/‘1. Strengthen support within relevant global, regional, national and local institutions for reducing risks at World Heritage properties’; ‘3. Use knowledge, innovation and education to build a culture of safety and resilience at all levels; Reduce the underlying risk factors’/‘2. Use knowledge, inno vation and education to build a culture of disaster prevention at World Heritage properties’; ‘4. Reduce the underlying risk factors’/3. Identify, assess and monitor disaster risks at WH properties’; ‘5. Strengthen disaster preparedness for effective response at all levels’/5. Strengthen disaster preparedness at World Heritage properties for effective response at all levels’. 48 See Section 4. 49 See in this regard K. Samuel, M. Aronsson-Storrier, and K. Bookmiller (eds), The Cambridge Handbook of Disaster Risk Reduction and International Law (Cambridge 2019).

Priority for Action/Objective

Identify, assess, and monitor disaster risks and enhance early warning

Identify, assess, and monitor disaster risks at WH properties

Relevant Document

2005 Hyogo Framework

2007 UNESCO Strategy

‘The first step to reduce disasters and mitigating their impact is the identification of possible risk factors . . . The vulnerabilities from disasters to World Heritage properties must be therefore identified, assessed in their level of priority and closely monitored . . . ’ (WHC-07/31.COM/7.2, p. 4)

‘The starting point for reducing disaster risk and for promoting a culture of disaster resilience lies in the knowledge of the hazards and the physical, social, economic and environmental vulnerabilities to disasters . . . ’ (UN Doc. A/CONF.206/6, Resolution 2, para 17)

Rationale for this Priority/Objective (excerpts from relevant documents)

Action 3.2 ‘Develop a World Heritage Risk Map at the global level or at regional levels to assist States Parties and the Committee to develop better responses’ (ibid)

‘Develop, update periodically and widely disseminate risk maps and related information to decision-makers, the general public and communities at risk in an appropriate format’ (ibid)

Related Key Activities/Priority Actions

Table 7.1 Comparison between the 2005 Hyogo Framework and the 2007 UNESCO Strategy

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Cultural Heritage and Disasters 155 However, in relation to the WHC, a stronger claim can be made for the autonomous legal relevance of similar DRR measures. Indeed, activities envisaged by the UNESCO Strategy, even if largely inspired by the 2005 Hyogo Framework, have a sound and separ ate legal basis under articles 4 and 5 of the WHC. In this regard the reference included in the 2007 Strategy, according to which ‘[t]hese objectives correspond to the spirit of Article 5 of the World Heritage Convention requiring States Parties to take all necessary measures to ensure the protection, conservation and presentation of the cultural and natural heritage situated on their territory’,50 cannot but be shared. In this context, therefore, the synergy between paradigms originally developed in IDL instruments, even of a soft-law character, and proper obligations laid down in ICHL can be particu larly appreciated. In particular, a functional relationship can be identified between the WHC and subsequent UN and UNESCO DRR strategies, in that the former articulates the duty to protect and transmit world heritage to future generations and the latter articulate modalities and measures States should adopt to discharge this duty, thus con tributing to better clarifying standards required of States to fulfil their due diligence obligations under article 4 WHC. As a result, as well as through subsequent activities developed by UNESCO and Advisory Bodies in this area, it is possible to provide a more concrete and evolving interpretation of this provision, rightly pinpointed by Forrest as ‘important and central to the protective regime established in the Convention’,51 whose legal parameters might also be better contextualized by external references, such as DRR paradigms able to inform ICHL. Furthermore it could be noted that the attention of UNESCO and its Advisory Bodies to disaster scenarios and DRR activities has progressively developed. Mention could be made of the ‘Nomination format’, namely the form to be filled out by States to support the nomination of World Heritage properties, as elaborated in the Operational Guidelines. In 1997, a separate item on ‘Natural disasters and preparedness (earthquakes, floods, fires, etc.)’52 was included in the section on ‘Factors affecting the property’—that is, elements likely to threaten the outstanding universal value of a property. This brief reference was modified in 2005 so as to include a more direct request for States to ‘[i]temize those disasters which present a foreseeable threat to the property and what steps have been taken to draw up contingency plans for dealing with them, whether by physical protection measures or staff training’.53 This wording, reiterated in subsequent versions, permits to highlight this issue and indeed current nomination texts include sections evaluating threats posed by disasters. Still, DRR measures suggested by States have sometime been limited to risk assessments or their implementation postponed to future periods.54 50 WHC-07/31.COM/7.2, para 10. 51 Forrest, International Law (n 21) 244. 52 Operational Guidelines for the Implementation of the World Heritage Convention, WHC-97/2, 17. 53 Operational Guidelines for the Implementation of the World Heritage Convention, WHC. 05/2, 104. 54 See the Nomination Text for the site of Aphrodisias in Turkey, 2017, 51, at . Regarding this property, particularly prone to earthquakes and floods, refer ence is made to projects aimed at ‘Determining the Earthquake Resilience of all Archaeological, Traditional and Modern Structures at the Ancient City and Taking the Necessary Measures . . . Determining the Damage that May Result Due to Overflows and Floods at the Ancient City and Vicinity through Computer Modeling and Developing Intervention Methods . . . Drafting the Disaster Management and Emergency Action Plan’.

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156 Giulio Bartolini Mention could also be made of policy documents, such as the 2008 Olympia Protocol for International Cooperation aimed to raise awareness of the 2007 Strategy,55 and the technical support elaborated by UNESCO Advisory Bodies. For instance, to provide technical content to measures envisaged by the 2007 Strategy, in 2010 the three Advisory Bodies of the WH Committee—the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), the International Council on Monuments and Sites (ICOMOS), and the International Union for Conservation of Nature (IUCN) developed in the World Heritage Resource Manual on Managing Disaster Risks for World Heritage.56 This document contextualizes DRR management principles to World Heritage properties contexts and aims to integrate plans and actions tailored to such properties into national and local disaster manage ment. Finally, Advisory Bodies, mainly ICCROM,57 have developed mentoring and training activities, such as first aid for cultural heritage or specific disaster risk management tools. In this latter case, the difficulties in solely focusing on world heritage are self-evident, being in contrast related to the necessity to provide attention to the protection of cultural heritage at large, as analysed in Section 3.3.

4. The Cross-Fertilization between International Disaster Law Instruments and International Cultural Heritage Law Ones for the Protection of Cultural Heritage through DRR Activities While previous analysis was mainly focused on the 1972 WHC, the relevance of IDL instruments should also be explored to address their contribution to the protection of cultural and natural heritage in the broadest sense (thus including the heritage not meeting the high threshold set by the 1972 WHC). In this latter case, too, the growing relevance of IDL, first addressed with regard to DRR, may offer guidance for reinforcing this protection, including in light of the increasing cross-fertilization between this sec tor and ICHL. 55 See proceedings at . 56 In this regard see Early Risk Preparedness: A Management Manual for World Cultural Heritage, developed by Herb Stoves for ICOMOS, ICCROM, and UNESCO in 1998. 57 See ICCROM Programme on Disaster and Risk Management. A Background Paper (2013), at . See also and .

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Cultural Heritage and Disasters 157 A first point of reference is the emerging attention to cultural heritage, as expressed in the same IDL instruments pertaining to DRR such as the UN strategies. In particular, it was not until the Sendai Framework for DRR 2015–2030 that specific attention to cultural heritage was included in due terms. In previous outcome documents of UN World Conferences on DRR (Yokohama and Hyogo), mention of such issues was minimal, leading to a marginalization of this sub-problem and its challenges. At Hyogo, only one key activity of Priority 4 (‘Reduce the Underlying Risk Factor’) requested that States ‘[p]rotect and strengthen . . . culturally important lands . . . in order to render them adequately resilient to hazards’.58 Conversely, specific attention was paid to the beneficial role traditional knowledge might have in increasing resilience and the need to adapt DRR actions to different cultural contexts.59 Such elements deserve a separate examination to emphasize both challenges to developing culturally sensitive DRR policies and the relevance of intangible culture to fostering DRR activities, as recognized by UN human rights bodies with regard to traditional knowledges, including Indigenous knowledges.60 Also in this latter case, the beneficial cross-fertilization between IDL and ICHL has been a slow process. Suffice it to say that the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage does not pay attention to this issue. Only in 2016 did the General Assembly of States Parties modify the Operational Directives to implement this Convention, by including a section on ‘Community-based resilience to natural disasters and climate change’ encouraging States ‘to ensure recognition of, respect for and enhancement of knowledge and practices concerning geoscience, particularly the cli mate, and harness their potential to contribute to the reduction of risk, recovery from natural disasters’.61 Similarly it was only in 2017 that the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage started to include in its sessions a specific item devoted to ‘Intangible Cultural Heritage in emergencies’62 aimed to progressively focus on the contribution of intangible cultural heritage to DRR strategies and, conversely, the importance of disaster risk management strategies for the safe guarding of such heritage. On such a basis the significant shift recorded in the Sendai Framework should be wel comed, as it properly identifies the protection of cultural heritage as a specific target of DRR activities. In particular, the current ‘Expected outcome’ endorsed by the UN Conference has been identified in ‘[t]he substantial reduction of disaster risk and losses in lives, livelihoods and health and in the economic, physical, social, cultural and 58 See para 4 of the Hyogo Framework with regard to key activity (ii) Social and economic devel opment practices. 59 Hyogo Framework for Action 2005–2015, paras 13, 18. 60 Human Rights Council, Promotion and protection of the rights of indigenous peoples in disaster risk reduction, prevention and preparedness initiatives. Study by the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/27/66 (7/8/2014). 61 See Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, 2016, para 191. 62 ITH/17/12/COM/15.

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158 Giulio Bartolini environmental assets of persons, businesses, communities and countries’.63 Likewise, the protection of cultural assets has been included in the ‘guiding principles’ relevant to the implementation of the Framework.64 This emphasis has been reflected in the key activities related to the identified four priorities. For instance, under Priority 1 ‘Understanding disaster risks’, States are required to ‘systematically evaluate, record, share and publicly account for disaster losses and understand the economic, social, health, education, environmental and cultural heritage impacts’.65 Similarly, for Priority 3 ‘Investing in disaster risk reduction for resilience’, States are requested to ‘protect or support the protection of cultural and collecting institutions and other sites of histor ical, cultural heritage and religious interest’. This specific focus in the Sendai Framework directs attention to some further reflections related to: (a) the impact the new UN DRR Strategy will have on UNESCO activities, and (b) its legal implications. Concerning the first element, UNESCO could eventually update its 2007 Strategy, in order to adapt it to the new DRR paradigms provided by the Sendai Framework. Second, a more far-reaching effect can be recognized, namely the progressive shift of attention by UNESCO from World Heritage properties to cultural heritage as such with regard to DRR activities. Such development is strictly linked with the 2015 ‘Strategy for the reinforcement of the Organization’s actions for the protection of culture and the promo tion of cultural pluralism in the event of armed conflict’66 adopted in 2015 by the General Conference and to be implemented by an Action Plan elaborated by the DirectorGeneral. In this context, an interesting move could be recorded, enlarging the scope of application of this Strategy from armed conflict scenarios, solidly grounded on ICHL treaties, to disaster settings, with a cascade effect on DRR aspects. The shifting ratione materiae scope of application of this initiative could be recorded since the first partnership implementing this Strategy, namely the 2016 Memorandum of Understanding between Italy and UNESCO aimed at favouring the rapid mobiliza tion of heritage experts ‘in response to a request by a Member State facing crisis or natural disaster’.67 Such a change has finally been endorsed by UNESCO bodies. In par ticular, in June 2017 the Executive Board decided to ‘take into consideration crisis and emergency situations associated with natural disasters in the scope of the Action Plan’,68 as reflected in Annex II to the Action Plan adopted by the Executive Board, detailing the establishment of the rapid response mechanism composed of national heritage experts (the so-called ‘Roster Unite4Heritage’) to be deployed for the protection of ‘cultural heritage from threats that may arise in emergency situations associated to possible 63 Sendai Framework, para 16. 64 Ibid, para 19, let c, where ‘Managing the risk of disasters is aimed at protecting . . . cultural . . . assets’ is qualified as a guiding principle in the implementation of the Sendai Framework. 65 Ibid, para 24, let d. 66 38 C/Resolution 48. For details on the Strategy, see 38 C/49. 67 See Memorandum of Understanding between the Government of the Italian Republic and UNESCO on the Italian National ‘Task Force in the framework of UNESCO’s Global Coalition Unite4Heritage’ (16/2/2016) art 1. 68 201 EX/SR.10, 5/6/2017, para 14.

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Cultural Heritage and Disasters 159 armed conflicts and/or natural disasters . . . at anyone of the three stages of the emergency management process, that is before, during and after’.69 Additionally, the 39th session of the General Conference held in November 2017 endorsed an Addendum to the 2015 Strategy aimed at creating a significant and timely synergy between this latter document and external DRR inputs provided by the Sendai Framework.70 This Addendum lays out a strategic framework for UNESCO’s activities ‘to enhance Member States’ capacity to successfully implement the culture and heritagerelated provisions’ of the Sendai Framework,71 in particular identifying as targets the capacity to ‘(1) Strengthen the ability of Member States to prevent, mitigate and recover the loss of cultural heritage and diversity as a result of disasters . . . (2) Incorporate con sideration for culture into the DRR sector and humanitarian action related to disas ters’.72 To realize these goals the Addendum adopts a familiar drafting technique, namely mirroring and adapting to the cultural heritage context the four priorities and related actions elaborated by the UN DRR Framework. The Addendum will thus focus atten tion on: ‘Priority 1: Understanding disaster risk to culture’; ‘Priority 2: Strengthening disaster risk governance of the culture sector to manage disaster risk’; ‘Priority 3: Investing in disaster risk reduction of culture for resilience’; and ‘Priority 4: Enhancing disaster preparedness for effective response and to “Build Back Better” in recovery, rehabilitation and reconstruction of culture’. In each case a series of actions73 tailored to realize such goals in the cultural context has also been identified. This Addendum thus deserves specific attention, being the first global policy instrument specifically adapting DRR paradigms to the cultural domain, in contrast to the previous focus on world heri tage. It thus addresses one current challenge, namely the inconsistencies in the integra tion and consideration of the cultural sector in the overall DRR agenda and vice versa. Such an interest, in line with the institutional mandate provided to UNESCO by article I of its 1945 Constitution, must be welcomed both as a significant example of the cross-fertilization between IDL and ICHL and as representing an opportunity to intro duce some further reflections on the legal framework pertaining to this area. In particular, such an issue appears strictly linked with the broadest debate among scholars on the possible recognition of customary provisions imposing duties on States to respect and protect cultural heritage located in their territories against situations able to affect its characteristics. Specialist ICHL treaties do not articulate such an obligation

69 For the current Action Plan, see Annex I to document 201 EX/5 Part I (E). 70 Doc 202 EX/5 Part I (H), Annex (8/8/2017). 71 39 C/57, Annex I (24/10/2017) 3. 72 Ibid, 3. 73 For proposed actions see, for instance, under Priority 1: ‘there is a need to build the capacities of national authorities, agencies, site managers and communities—through training, the promotion of applied research, and access to intersectoral tools that draw from new information technologies—to undertake multi-hazard risk assessments for the culture sector in order to effectively prioritize risks and inform emergency preparedness. There is also a need to disseminate methodologies and tools for assess ing risks to intangible cultural heritage’. Similarly, under Priority 3: ‘there is a need to promote the broader inclusion of disaster risk management as an integral component of site management plans, including for historic urban areas, heritage sites, museums and other cultural repositories’.

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160 Giulio Bartolini for cultural heritage in the broadest sense, thus not addressing specific contexts dealing with the WHC or armed conflict scenarios. Reference to this issue has mainly been included in soft-law instruments, such as the 1972 ‘Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage’ applicable to assets having a ‘special value’.74 This Recommendation suggests States take a series of measures centred on the principle that ‘[t]he cultural and natural heritage represents wealth, the protection, conservation and presentation of which impose responsibilities on the States in whose territory it is situated’,75 also highlighting in para 25 the relevance of measures ‘(to) guard against natural disasters and calamities’. Similar requests have also been included in other UNESCO non-binding instruments, such as the 1978 ‘Recommendation for the protection of movable cultural property’, which also includes a reference to disaster scenarios.76 Beyond the UNESCO realm, binding provisions could be identified in the 1985 Council of Europe Convention for the Protection of the Architectural Heritage of Europe,77 articulating measures aimed to protect monuments, groups of buildings, and sites of ‘conspicuous . . . interest’. Linked to this treaty, Recommendation No. R (93) 9 of the Committee of Ministers to Member States on the protection of architectural heritage against natural disasters details, in its practically oriented Annexes, legislative, adminis trative, financial, educational, and other measures for conserving the architectural heritage.78 On such premises very few scholars have claimed for the existence of a customary rule able to generally impose on States the respect and protection of cultural heritage located in their territories, especially for those assets not having a universal outstanding value. This approach can be inferred not only with regard to authors generally sceptical of the identification of customary rules in ICHL79 but also with regard to scholars keen to spell out general rules in this area.80 Few authors have claimed the recognition of a ‘principe general de protection du patrimonie culturel par l’Etat de situation . . . face à des risques de dommages’, including potential disasters, still with the significant caveat that ‘ces obligations sont pour l’essentiel en construction’.81 74 For relevant definitions, see paras 1 and 2 of the Recommendation. 75 Ibid, para 4. 76 See para 12, let h of this Recommendation, according to which States should ‘ensure that the staff of museums and similar institutions also receive the necessary training to enable them, in the event of disasters, to co-operate effectively in the rescue operations carried out by the competent public services’. 77 Council of Europe, Convention for the Protection of the Architectural Heritage of Europe, Granada, 3/10/1985, ETS, No. 121. The Convention has forty-two States Parties. 78 Recommendation No. R (93) 9 of the Committee of Ministers to member States on the protection of the architectural heritage against natural disasters (23/11/1993). 79 O’Keefe, World Cultural Heritage (n 40), 189 ff. 80 See F. Francioni, ‘Au-delà des traités: l’émergence d’un nouveau droit coutumier pour la protection du patrimonie culturel’ (2007) 111 Revue générale de droit international public 19 ff. 81 See C. Bories, Le patrimoine culturel en droit international: les compétences des états à l’égard des éléments du patrimoine culturel (Pedone 2014) 197 and extensively 175–98.

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Cultural Heritage and Disasters 161 As it might be complex, from an ICHL perspective, to identify obligations on States to respect and protect cultural heritage located in their territories, attention should be brought to the potential contribution provided by IDL in this regard. As mentioned, the Sendai Framework identifies, as the expected outcome, ‘[t]he substantial reduction of disaster risk and losses in . . . cultural . . . assets of persons, businesses, communities and countries’, a goal nowadays expected to be further supported by the 2017 Addendum to the 2015 UNESCO Strategy. Even if, as underlined above, UN DRR frameworks do not have a binding character per se, they are nonetheless able to influence States’ actions in this area. Past UN Frameworks have led to the creation of around seventy national multi-stakeholder platforms for DRR aimed at coordinating the implementation of goals elaborated in UN strategies or the adoption of commitments at the universal and regional level, including establishing regional forums to foster cooperation in this regard.82 The realization of the abovementioned expected outcome will also be favoured by the planned implementation process, namely monitoring activities to be realized through voluntary State reports assessing achievements and failures on the basis of indi cators for the global targets elaborated by an intergovernmental group of experts and endorsed by the UN General Assembly.83 As for cultural heritage, goals will be assessed under Global Target C, namely ‘Reduce direct disaster economic loss in relation to global gross domestic product (GDP) by 2030’. In fact, under indicator C-6, States should provide information on ‘[d]irect economic loss to cultural heritage damaged or destroyed attributed to disas ters’. Even if this ‘economic’ approach would not be particularly apt for cultural heri tage, it will permit collection of data and assessment of States’ performances, with an obvious encouragement to adopt DRR measures tailored for protecting cultural assets to comply with this target. Still, the Sendai Framework, as well as its translation into the 2017 UNESCO Addendum, is not hard law, and, in this regard, it might be opportune to explore whether other sources could be relevant to identify proper obligations. Under IDL instruments some regional binding provisions do indeed impose on States obligations to strengthen their mitigation and preparedness capacities, adopt appropriate measures to monitor hazards, promote risk assessments, develop disaster management capacities and plan ning, and share good practices, measures which might also have a positive impact for the protection of cultural heritage.84 Furthermore, in the 2016 Draft articles on the ‘Protection of persons in the event of disasters’ the ILC included article 9.1 providing 82 For an overview, see ILC Report 2016 (n 6), 44–7. 83 See Report of the open-ended intergovernmental expert working group (n 7), 5–9. 84 See, for instance, Association of Southeast Asian Nations, Agreement on Disaster Management and Emergency Response, 2005, arts 5 (Risk Identification and Monitoring), 6 (Prevention and Mitigation), 7 (Disaster Early Warning) and 8 (Preparedness); Decision No 1313/2013/EU of the European Parliament and of the Council on a Union Civil Protection Mechanism, art 5 (Prevention Actions) and Decision (EU) No 2019/420 of the European Parliament and of the Council amending Decision No 1313/2013/EU, arts 5 (Prevention Actions) and 6 (Risk Management); art 4 of the SAARC Agreement on Rapid Response to Natural Disasters, 2011; Agreement establishing the Caribbean Disaster Emergency Management Agency, 2008, art XIX.

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162 Giulio Bartolini that ‘[e]ach State shall reduce the risk of disasters by taking appropriate measures, including through legislation and regulations, to prevent, mitigate, and prepare for dis asters’; the legal value of this provision was particularly debated during the drafting process.85 The foundations for this provision have been identified by the ILC in the rule on sovereignty, able to accommodate duties of protection along with the traditional ‘sovereignty duties’,86 and obligations emanating from international environmental law and human rights law.87 This latter element might also play a specific role with regard to cultural heritage, especially through the so-called ‘human dimension’ of ICHL88 as exemplified by the practice of the UN Committee on Economic, Social and Cultural Rights, which has underlined how ‘States parties are obliged to: (a) Respect and protect cultural heritage in all its forms, in times of war and peace, and natural disasters . . . Such obligations include the care, preservation and restoration of historical sites, monuments, works of art and literary works, among others.’89 ILC Draft Article 9 can, therefore, play a role in emphasizing the possible existence of duties incumbent upon States to adopt measures pertaining to DRR, including with regard to cultural heritage, especially as this text could be translated into a treaty as requested by the ILC (and currently under evaluation at the request of the UN General Assembly).90 In this regard the protection of cultural heritage might indirectly benefit from the emergence, at treaty or customary level, of rules imposing on States the adoption of measures relevant for DRR, as the ‘cultural’ dimension of DRR—that is, measures aimed to specifically address vulnerabilities of cultural heritage in case of potential disasters and strengthen the integration of the culture sector and disaster risk management— should be a priority area of interest for actions required of States in light of its relevance for affected communities, where the 2017 Addendum to the 2015 UNESCO represents a timely contribution to better frame potential measures in this area.

85 Some States, such as the USA, the UK, and Russia, have expressed doubts regarding possibility of identifying legal obligations in the DRR area. Conversely, several other States and IOs, such as the EU, have welcomed this provision. For an overview of positions, see Eduardo Valencia-Ospina, Eighth Report on the protection of persons in the event of disaster, paras 177–86. For some criticisms, see S. Murphy, ‘Protection of Persons in the Event of Disasters and other Topics: The Sixty-Eight Session of the International Law Commission’ (2016) American Journal of International Law 720–6. 86 S. Besson, ‘Sovereignty’, in Wolfrum (ed), Max Planck Encyclopedia (n 33), paras 123–7. See in this regard the UN Secretary-General’s High Level Panel on Threats, Challenges and Change, UN Doc A/ RES/59/565, 2004, para 29. 87 ILC Report 2016 (n 6), 43. 88 See for further references the symposium on ‘The Human Dimension of International Cultural Heritage Law’ in European Journal of International Law, 2011. 89 UN Doc E/C.12/GC/21, 21/12/2009, para 50. 90 UN Doc A/71/10, 2016, para 46; UN Doc A/RES/71/141 (13/12/2016). See also G. Bartolini, ‘A uni versal treaty for disasters? Remarks on the International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters’ (2017) 99 International Review of the Red Cross 1103 ff.

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Cultural Heritage and Disasters 163

5. Relief and Recovery Phases and the Safeguard of Cultural and Natural Heritage A second area of interest, also in light of the disaster cycle, is the legal framework pertain ing to the protection of cultural and natural heritage in the aftermath of a disaster. In such cases disaster management studies usually make a distinction between the so-called relief or response phase, namely the immediate actions following a disaster, and the recovery phase, which starts once the emergency is under control. Also in this case our interest will focus on the legal and institutional framework provided by ICHL and IDL. With regard to the 1972 WHC, the analysis in Section 3.1 is also relevant in posthazards scenarios. First, international assistance under articles 21–22 of the WHC might also be mobilized for post-hazards effects and, according to the Operational Guidelines’ proper lines of assistance, might be identified under the ‘Conservation and Management’ category, aimed at the conservation, management, and preservation of world heritage. Second, a disaster can be the triggering event for inscribing a property in the List of the World Heritage in Danger91 under article 11.4 of the WHC, in order to attract the attention of the international community to the risks faced by the property and promote the provision of assistance. Under para 4, examples of situations posing ‘serious and specific dangers’ to cultural and natural heritage might include ‘calamities and cata clysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods and tidal waves’, according to criteria further detailed in the Operational Guidelines.92 For instance, in 2004 the Iranian city of Bam was inscribed in the separate lists of World Heritage and World Heritage in Danger due to the 2003 earthquake.93 Still, a positive approach by affected States cannot be taken for granted, and the relevance of this mechanism could be limited by non-legal elements, such as the self-restraint approach adopted by the Committee with regard to the listing process. In fact, even if the WH Committee autonomously decides to inscribe a site in this list in case of an ‘urgent need’, in the absence of State consent and a request for assistance,94 we cannot record any instance where this power has been exercised in relation to disasters. This circumstance is exemplified by the 2015 Nepalese earthquake and the political-legal struggle regarding the inscription of the Kathmandu Valley property in this list due to the opposition of Nepal. For instance, even if the WH Committee was already keen in 2015 to recognize ‘that the extensive damage of the earthquake to the property repre sents both ascertained and potential danger, in accordance with paragraphs 177 to 179 of 91 See Buzzini and Condorelli, ‘Article 11’ (n 36), 175 ff.; Forrest, International Law (n 21), 257–60. 92 Operational Guidelines (n 25) paras 179–80. 93 See 28 COM 14B.55 and 28 COM 15C.1. 94 See Buzzini and Condorelli, ‘Article 11’ (n 36); Forrest, International Law (n 21) 259.

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164 Giulio Bartolini the Operational Guidelines’95—that is, factual criteria to inscribe a property into this list—subsequent decisions have been unable to finalize it. This situation appears at odds with similar recommendations made by ICOMOS, ICCROM, and members of the WH Committee, due to concerns on delays and inadequate activities, as assessed by on-site missions held in 2015 and 2017.96 Most recently, and quite surprisingly, the draft decision 41 COM 7B.95, circulated in June 2017 and in which the proposal for the inscription was included,97 was not endorsed by the WH Committee until its July session held in Krakow.98 Finally, the role played by Advisory Bodies in addressing relevant aspects, such as the authenticity and integrity of World Heritage in post-disaster scenarios, should be mentioned. For example, in 2017 ICOMOS elaborated the Guidance on reconstruction for World Heritage cultural properties, to address these aspects in light of challenges posed by post-disaster scenarios, in order to tailor for this specific context previous documents, such as the 1964 Venice Charter.99 Apart from World Heritage, mention could be made of several initiatives managed by UNESCO and its Advisory Bodies in post-disaster scenarios. For instance, as analysed in Section 3.3, the extension of the 2015 UNESCO Strategy to disaster scenarios would permit deployment of the rapid response mechanism composed of national heritage experts, the so-called Roster Unite4Heritage, as well as ‘immediate response and recov ery initiatives’ related to disasters.100 Its relevance should be assessed in the future, including in light of potential overlap with similar past initiatives such as technical assessments or mobilization of cultural experts managed by ICCROM101 or by UNESCO itself—for instance, through its recently established Emergency Preparedness and Response Unit.102 Additionally, the ability of UNESCO to foster resources of the international community in post-disaster phases should be mentioned. An early example was provided by the urgent appeal launched by the General Conference in 1966 in response to floods affecting Tuscany and Venice,103 subsequently reiterated on different occasions including through the establishment of coordination bodies, such as the International Coordination Committee for the Safeguarding of Haitian Cultural Heritage established

95 39 COM 7B.69. 96 See the debate leading to 40 COM 7B.41 in WHC/16/40.COM.INF.19, 81–85. See also Report on the Joint World Heritage Centre/ICOMOS/ICCROM reactive monitoring missions to Kathmandu Valley, 2015, para 5.2.11, and ibid, 2017, para 5.4. 97 WHC/17/41.COM/7B.Add.2, 25. 98 41 COM 8B.52. 99 ICOMOS, Guidance on Post Trauma and Reconstruction for World Heritage Cultural Properties (UN 2017). 100 Annex II to document 201 EX/5 Part I (E), 1. 101 See, for instance, ‘ICCROM supports Myanmar after the earthquake’ (8 September 2016) . 102 Technical support have also been carried out in the past. See, for instance, UNESCO, The Skopje Earthquake of 26 July 1963: Report of the UNESCO Technical Assistance Mission (UNESCO, 1968). 103 As for the appeal, see .

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Cultural Heritage and Disasters 165 by the Executive Board in the aftermath of the 2010 earthquake.104 This body, composed of ten independent experts, including some of Haitian origin, was entrusted with collaborating with the Director-General in the identification of measures to improve international cooperation and multi-donor actions in support of safeguarding Haitian culture, finally resulting in the short-, medium-, and long-term plans adopted at its session held in July 2010 and attended by more than 130 observers from Member States, international technical and professional organizations, and partners of UNESCO.105 Regardless of its relevance, this latter example also draws attention to the need to better integrate the cultural heritage dimension and UNESCO efforts in the broader international coordination systems pertaining to post-disaster scenarios. In this regard reference could be made to the global coordinating mechanisms developed by the UN, mainly through UNGA Resolutions 46/182 and 57/150, aimed to attribute to UN bodies, such as the UN Emergency Relief Coordinator, the Humanitarian Coordinator, and the UN Country Team, leadership in coordinating multilateral assistance, including that provided by States, international organizations, and NGOs.106 In this regard some changes could be proposed, especially to better integrate the cultural heritage sector, nowadays largely undermined. As is known, the current system has been arranged around the ‘cluster approach’ mechanism providing UN and non-UN humanitarian organizations with ‘a clear system of leadership and accountability for all the key sectors or areas of humanitarian activity’.107 However, cultural heritage has not been included among the eleven global clusters, even if UNESCO is one of the actors participating in the ‘Early Recovery’ and ‘Education’ ones. In our opinion, devoting a single cluster to this issue as well as to cultural aspects of post-disaster scenarios, under UNESCO leadership, might promote the relevance of these elements as an additional ‘key’ component of relief/recovery activities, avoiding current undermining. For instance, as recognized by UNESCO,108 usually no specific attention is devoted to this area, as exemplified by the UN flash appeal launched after the 2005 tsunami when no funds for the rehabilitation of cultural heri tage were requested. A survey of recent OCHA flash appeals devoted to disasters109 highlights that only in relation to Nepal, under the early recovery cluster, was a request made for financing support for the ‘Preservation of relics and valuable items, and safe

104 184 EX/33. Its Annex includes the Statues of the International Coordination Committee. 105 First Plenary Session of the International Coordination Committee for the Safeguarding of Haitian Cultural Heritage, Final Report, CLT/5.01/10/1.CIC/4 (23/10/2010). 106 G. De Siervo, ‘Actors, Activities and Coordination in Emergencies’ in De Guttry, Gestri, and Venturini, International Disaster Response Law (n 3) 485 ff. 107 IASC, Guidance Note on Using the Cluster Approach to Strengthen Humanitarian Response (24/11/2006), 4. Emphasis in original. 108 WHC-06/30.COM/7.2, para 21. 109 Flash Appeals aim to finance a coordinated response for the first three to six months of an emergency. See .

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166 Giulio Bartolini debris management of World Heritage buildings affected by the earthquake in Nepal’.110 According to the rationale underpinning the cluster approach, a specialized ‘culture’ cluster, under UNESCO’s lead, will provide national authorities and international assisting actors with a clear single voice and technical expertise able to coordinate multilateral efforts in this area and avoid overlap. Additionally, in the recovery phase UNESCO plays a role in the post-disaster needs assessments (PDNA) model developed by the UNDP, the World Bank, and the European Union,111 a specific section of which is devoted to culture. UNESCO experts have car ried out assessments on damage to cultural heritage in disaster settings in, for instance, Vanuatu, Nepal, and Fiji.112 Moreover, UNESCO Advisory Bodies have also managed relevant activities, such as the ‘first-aid’ training for cultural heritage managed by ICCROM in several affected States,113 or the ICOMOS Disaster Relief Task Force, even if budget constraints might act as a limit. Activities aimed at protecting cultural heritage can also be channelled through ‘common’ disaster relief/recovery operations managed by regional or bilateral IDL instruments or realized on an ad hoc basis. It is self-evident that personnel and equipment supporting the preservation of cultural heritage might be qualified as relief personnel,114 potentially benefiting from the privileges provided by relevant IDL instruments.115 However, no data are available on the effective deployment of specialized personnel for performing such activities, which mainly appear as an additional task rather than a specific focus of relief teams.116 A final mention could also be made of activities carried out by NGOs with a specialization in this area,117 which obviously can hardly rely on privileges provided by IDL instruments due to their legal status.

110 OCHA, ‘Nepal. Flash Appeal Revision, April–September 2015’ . 111 See . 112 See, for instance, for the 2016 cyclone in Fiji and for the 2015 cyclone in Vanuatu . 113 See n 101 for Myanmar or, for Nepal, . 114 For this term, see ILC Report (n 6), 27. 115 S. Silingardi, ‘The Status of Emergency Workers’ in De Guttry, Gestri, and Venturini, International Disaster Response Law (n 3) 551 ff. 116 See, for instance, the damage assessments carried out by the Italian firefighters in the aftermath of the 2015 Nepalese earthquake, also involving cultural properties in the Kathmandu Valley (Italian Civil Protection, Terremoto in Nepal . 117 See the Prince Claus Fund’s programme on ‘Cultural Emergency Response’ or the ‘Cultural Emergency Programme’ of the Global Heritage Fund . See similarly the Haiti Cultural Recovery project managed by the Smithsonian Institution .

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Cultural Heritage and Disasters 167 Difficulties in integrating a specific focus on cultural heritage into the disaster relief/ recovery discourse are exemplified by the EU Civil Protection Mechanism. Cultural heritage relief is not among the areas of activities selected for the creation of ‘modules’— that is, pre-committed response capacity arranged by EU States to perform key predefined tasks.118 Similarly, at the national level, specific attention to cultural heritage issues in disaster management discourse cannot be taken for granted. For instance, a review of disaster management legislation emphasizes that only in a few instances has the protection of cultural heritage been identified as a specific task attributed to civil protection authorities or have representatives of a ministry of cultural properties been included in multi-stakeholder civil protection committees.119 It is clear that only a shift in priorities by relevant stakeholders can bring international assisting actors to fully exploit the legal possibilities provided by IDL instruments for the benefit of protecting cultural heritage.

6. Concluding Remarks: The Need for Increased Cross-Fertilizations between International Disaster Law and International Cultural Heritage Law As examined above, although disasters are a significant challenge for the protection of cultural and natural heritage, interest in addressing this issue through proper standardsettings and relevant initiatives has been limited for a long period. Still, some changes could nowadays be appreciated. In particular, a more contextualized and evolutionary interpretation of existing treaty provisions and the development of innovative practice tailored to address such contexts could provide States pertinent guidance on measures to be adopted in such scenarios. In this regard the increasing influence and cross-fertilization between ICHL and IDL instruments might play a fruitful role in strengthening the protection of cultural and natural heritage, especially in fostering a legal and policy framework pertaining to heritage not covered by the 1972 WHC. At the same time the integration of cultural heritage issues into the disaster conversa tion and vice versa still needs to be promoted in all phases of the disaster cycle. Within IDL instruments and institutions, specific attention to this topic is largely lacking, pre 118 On modules, see art 4.6 Decision No. 1313/2013/EU (n 84). Tasks for modules are specified in Annex II to the Commission Implementing Decision of 16 October 2014 laying down rules for the imple mentation of Decision No. 1313/2013/EU. Reference is made, for instance, to search and rescue activities or emergency temporary camps. 119 Legislation is available in the Disaster Law Database managed by the IFRC . In Italy, through Law n. 100/2012, such competence was expressly attributed to the Civil Protection Department and a representative of the Ministry of Cultural Properties has been included in the national Civil Protection Operative Committee.

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168 Giulio Bartolini venting proper assessment of its relevance. This might be exemplified by the same legal definitions of ‘disaster’ provided by IDL instruments. Currently, few definitions highlight damage to cultural heritage as a distinctive element potentially affected by disasters, with the clear intention of emphasizing their relevance due to their intangible relationship to human beings and the need to preserve them for future generations. A major example is provided by EU law, which defines disaster as ‘any situation which has or may have a severe impact on people, the environment, or property, including cultural heritage’,120 in line with a few other treaties.121 Conversely, the large majority of legal definitions of disaster limit their reference to events capable of affecting three broad categories: people, property, and the environment.122 This solution has also been maintained by article 3(a) of the ILC Draft Articles, which refer only in the Commentary to ‘cultural assets’ as a component of the term ‘large-scale material or environmental damage’123 included in the relevant definition. It is self-evident that ‘atomization’ of the cultural dimension of disasters in IDL instruments might contribute to increase sensitivity to this issue and favour the adoption of tailored measures by relevant actors. Similarly, the increasing attention paid by ICHL instruments and institutions to disaster settings still needs to be fostered in light of the reduced relevance of this scenario in comparison with efforts devoted to other contexts. Disasters are a major challenge to cultural and natural heritage, and only a proper reassessment of the focuses and prior ities of involved stakeholders can guarantee a better protection for the benefit of affected societies, the international community, and future generations. 120 Art 4.1 Decision No. 1313/2013/EU (n 84). 121 See art 2 of the 1998 Agreement among States of the Black Sea Economic Cooperation on collabo ration in Emergency Assistance to natural and man-made disasters, making reference to ‘cultural dam age to human lives or environment’. 122 Bartolini, ‘A Taxonomy’ (n 5) 10 ff. 123 ILC Report 2016 (n 6) 24, para 9.

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chapter 8

Cu ltu r a l H er itage , Tr a nsitiona l J ustice , a n d Ru le of L aw Ana Filipa Vrdoljak

1. Introduction The destruction, plunder, and suppression of cultural heritage have fuelled conflicts from antiquity to the present day. From Cicero, Grotius, and Lord Castlereagh to the Security Council in our own age, all have recorded the adverse effects of such acts on peace between nations and peoples.1 The development of international cultural heritage law has been told as being deeply connected to damage and destruction, actual or threat ened, arising from armed conflict (and lately disasters, natural or otherwise). This stance has been reinforced by the earliest international law interventions in the protection of cultural heritage, invariably adopted in response to public outcry to such acts of destruc tion. They evidence Walter Benjamin’s observation that there is ‘no document of civil ization which is not at the same time a document of barbarism’.2 Yet, while wars and other threats have been the trigger for the codification efforts, the overall objective of these initiatives is the pursuit of a sustainable peace. Modern international law is not only a story of the humanization of the rules of war through international humanitarian law and more recently international criminal law. 1 Hugo Grotius, De jure belli ac pacis. Libri tres, James Brown Scott (ed) (Clarendon Press 1925) 658 and 662 (citing Cicero); and Lord Castlereagh [to Allied Ministers] (September 1815) Hansard Parliamentary Debates (1816) vol 32 ser 1 col 298. 2 Walter Benjamin, ‘Theses on the Philosophy of History’, in Hannah Arendt (ed), Illuminations (Pimlico 1999) 248.

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170 Ana Filipa Vrdoljak International law is predominantly engaged with the rule of law post-conflict in peacemaking processes. This is manifest at the multilateral level with the post-war settlements following World Wars I and II and regionally through the work of human rights courts from the late twentieth century and the proliferation of peace agreements and constitutional negotiations following the end of the cold war. Culture and cultural heritage have proved integral to each and every one of these processes. Today, the inter national community recognizes that ‘peace not only is the absence of conflict’ and that culture and cultural heritage can play a proactive, preventative role in fostering a ‘positive, dynamic participatory process where dialogue is encouraged and conflicts are solved in a spirit of mutual understanding and cooperation’.3 This chapter examines the complex and evolving understanding of the interrelationship between cultural heritage and efforts to secure and sustain peace. It begins with an over view of the new international order sought to be created by the post–World War I and II peace settlements and the role of specialist culture bodies within the intergovernmental frameworks in promoting the role of culture and cultural heritage in peace efforts. Then, the role of culture rights and cultural heritage is considered within the transitional justice framework enunciated by the United Nations covering the right to justice and accountability, the right to truth, the right to remedy and reparation, and guarantees of non-recurrence. Illustrations are drawn from the burgeoning jurisprudence of regional human rights courts and international criminal courts and State practice arising from the proliferation of peace processes since 1989. Finally, there is consideration of the pre ventative role of cultural heritage and cultural rights in sustaining peace beyond the post-conflict context and the UN and UNESCO efforts to promote a culture of sustain able peace in the twenty-first century.

2. New International Order Until the 1990s, the preponderance of peace agreements concerned international armed conflicts—that is, conflicts between existing States. Treaties from the 1648 Treaty of Westphalia to the post-1945 peace agreements moved beyond the immediate interstate conflict and endeavoured to attain lasting peace through the establishment of a new international order. Many of these peace settlements addressed the ‘cultural’ (from cultural rights guarantees for minorities to reparations for cultural loss) to varying, but limited, degrees.4 These provisions in part defined—and were defined by—these treaties which framed the transition to a new, post-war international order. 3 UN, ‘Culture of Peace Declaration and Programme of Action’ UNGA Res 53/243 (6 October 1999) UN Doc A/RES/53/243, preamble (hereafter ‘UN Culture of Peace Declaration and Programme of Action’). 4 See Ana Filipa Vrdoljak, ‘Enforcing Restitution of Cultural Property through Peace Agreements’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 22–39; Wojciech W. Kowalski, Art Treasures and War (ILA 1998).

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Cultural Heritage, Transitional Justice, and Rule of Law 171 The key culture conventions which underpin international cultural heritage law today were adopted and overseen within institutional frameworks that emerged from peace agreements following the global conflicts of the twentieth century. The emergence and evolution of this body of international law must be understood in this context. In this section, the multifarious connections between cultural heritage and peace are examined in the context of peace agreements following the two world wars and the emergence of specialist culture agencies under the auspices of international organiza tions established by those agreements; the efforts of these agencies to foster a sustainable peace beyond political and economic means; and the relevance of the protection of culture and cultural heritage to these initiatives.

2.1 League of Nations, ICO, and Moral Disarmament The treaties emerging from the Paris peace conferences after World War I recognized the potential significance of cultural heritage in legitimizing, building, and sustaining peace. However, this post-war peace settlement did not adopt a holistic approach to cultural heritage. Instead, it engaged it in varying roles.5 This lack of a coherent under standing of the role of culture and cultural heritage in peace efforts was similarly reflected in the initial refusal to create a specialist cultural agency under the auspices of the League of Nations. However, with the establishment of the Intellectual Cooperation Organisation (ICO), the League’s remit expanded beyond political and economic initia tives (see Chapter 2). Its raison d’être was described as ‘the promotion of collaboration between nations in all fields of intellectual effort in order to promote a spirit of inter national understanding as a means to the preservation of peace’.6 The ICO sought to realize this objective through the recognition and promotion of the diversity of national cultures and their universality.7 To achieve this it fostered the international exchange of scholars, international exhibitions, translations and circulation of books, and the related drafting and adoption of normative instruments concerning cultural heritage.8 Unrealized because of the intervention of World War II, the ICO’s codification efforts in respect of cultural heritage were informed by broader interwar efforts to reinforce the rule of law at the international level. However, calls for the preparation by the ICO of a

5 Treaty of Peace between the Allied and Associated Powers and Germany (28 June 1919, entered into force 10 January 1920) (1919) 225 CTS 189, (1919) 13(supp) AJIL 151 (‘Treaty of Versailles’) art 247; Treaty of Peace with Turkey (10 August 1920, not ratified) Cmd.964 (1920), (1921) 15(supp) AJIL 179 (‘Treaty of Sevrès’) arts 144–147; and Treaty of Peace between the Allied and Associated Powers and Hungary (adopted 4 June 1920, entered into force 17 December 1921) 6 LNTS 187 (‘Treaty of Trianon’) arts 177 and 178. 6 Gilbert Murray, ‘Note on Intellectual Co-operation and Moral Disarmament’ in League of Nations Official Journal 12th Year (February 1931) 210 (hereafter ‘Murray, “Note”’). 7 See Frederick Samuel Northedge, International Intellectual Co-operation within the League of Nations: Its Conceptual Basis and Lessons for the Present (PhD thesis, University of London, 1953) 50 and 55 (hereafter ‘Northedge, International Intellectual Co-operation’). 8 See Akiya Iriye, Cultural Internationalism and World Order (John Hopkins University Press 1997) 63–4.

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172 Ana Filipa Vrdoljak specialist instrument covering cultural heritage during armed conflict were resisted.9 It was considered contrary to the League’s focus on bringing about the elimination of war.10 This resistance to the realities of increasing threats to peace during the 1930s could not be sustained indefinitely. As the progress to war accelerated, the ICO reinforced its intellectual cooperation efforts, especially as they related to culture.11 It supported the push for the disarmament conference organized by the League to include ‘moral disarmament’.12 The Polish delegation called for punitive measures—including amending national penal codes to punish incitement to war and incitement of hatred designed to undermine friendly relations13—and preventative measures to be led by the ICO, including compulsory instruction in schools on the League’s work and importance of international cooperation, and elimination of textbooks ‘arousing hatred of foreigners etc’.14 The latter initiatives were included in the draft convention prepared in 1933, which stated in its preamble: ‘[T]he inter-dependence of States calls not only for their co-operation in the political sphere, but also for an effort of mutual understanding between peoples themselves.’15 With the escalating Spanish civil war, the ICO relented and prepared a draft international convention for the protection of historic buildings and works of art in time of war.16 Its preparatory report relied heavily on practice over several preceding centuries contained in peace agreements and, more recently, multilat eral instruments on international humanitarian law.17 While the finalization and adoption of the draft convention was stymied by the outbreak of World War II,18 the Allied powers issued successive warnings that they would hold the perpetrators of acts contrary to the laws and customs of war and of civil ized nations to account at the end of the conflict.19 The International Military Tribunal, sitting in Nuremberg after the war, tried, convicted, and sentenced perpetrators of crimes against peace, war crimes, and crimes against humanity, including the destruction 9 League of Nations Official Journal 18th Year, No 12 (December 1937), 1047. 10 See Alfred Zimmern, The League of Nations and the Rule of Law 1918–1935 (Macmillan and Co 1936); D. J. Maxwell, ‘Sir Alfred Zimmern Revisited: 50 Years On’ (1986) 12(4) Review of International Studies 279. 11 Henri Bonnet, ‘Intellectual Co-operation’ in World Organization (IWO 1942) 189. 12 Murray, ‘Note’ (n 6). 13 LN Doc Conf.D/CG142, Conference Documents, Vol II, 701, in Proposals submitted by the Political Commission (15 March 1932) 143 accessed 5 May 2019. 14 Memorandum from the Polish Government concerning the Attainment of Moral Disarmament (23 September 1931) LN Doc C.602.M.240.1931.IX. 15 Conference for the Prevention and Limitation of War, Text adopted by Committee for Moral Disarmament (20 November 1933) LN Doc Conf.D/CDM36 accessed 5 May 2019. 16 League of Nations Official Journal 19th Year (November 1938), 937–41. 17 Charles de Visscher, International Protection of Works of Art and Historic Monuments (US Department of State Publication 1949) 821 (hereafter ‘Visscher, International Protection’). 18 Ibid, 859–60. 19 Declaration of the Allied Nations against Acts of Dispossession Committed in Territories under Enemy Occupation or Control (5 January 1943) Cmd 6418 Misc No 1 (1943), (1943) 8 Department of State Bulletin 21 (hereafter ‘1943 London Declaration’).

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Cultural Heritage, Transitional Justice, and Rule of Law 173 and damage, and systematic confiscation of cultural property (Chapter 5). The ICO’s International Museum Office Director emphasized the need for ‘cultural reconstruction’ following the war.20 The occupying Allied powers’ systematic restitution of property, including cultural property on Axis territory, territory formerly occupied by Axis Powers, and neutral States, formed part of this effort.21

2.2 United Nations, UNESCO, and Intellectual Solidarity Unlike the League of Nations, the preparatory work for the ICO’s successor commenced during the war and before the establishment of the United Nations. Though driven by Allied education ministers, this initiative was still heavily informed by preoccupations of the diplomats and scholars who had promoted intellectual cooperation during the interwar period.22 The Constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO), adopted on 16 November 1945, starts with words: ‘That since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed.’23 It notes that ‘the wide diffusion of culture . . . [is] indis pensable to the dignity of man and constitute[s] a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern’. Harking back to the sentiments enun ciated after World War II, it records that peace cannot be grounded exclusively on the political and economic arrangements of States but must also be founded upon ‘the intel lectual and moral solidarity of mankind’.24 To achieve this aim, the Organization was tasked with the conservation and protection of the world’s cultural ‘inheritance’—including by recommending multilateral instruments—and encouraging international intellectual ‘cooperation among the nations’ through international exchange of people, publica tions, and information.25 These objectives were reaffirmed by the Declaration of Principles of International Cultural Co-operation adopted at UNESCO’s General Conference in 1966, which also referenced UN human rights instruments in support.26 This Declaration recognizes that ‘each culture has a dignity and value which must be respected and preserved’ and that ‘in their rich variety and diversity, and in the reciprocal 20 Euripide Foundoukidis, ‘Cultural Reconstruction’, LN DocIICI/OIM/7 (1945). 21 Ana Filipa Vrdoljak, International Law, Museums and the Return of Cultural Objects (Cambridge University Press 2006) (hereafter ‘Vrdoljak, International Law’) 140–50. 22 See John Toye and Richard Toye, ‘One World, Two Cultures? Alfred Zimmern, Julian Huxley and the Ideological Origins of UNESCO’ (2010) 95(319) History 308. 23 Constitution of UNESCO (adopted 16 November 1945, entered into force 4 November 1946) 4 UNTS 275, preamble, arts 1 and 2 (hereafter ‘UNESCO Constitution’). 24 Ibid. 25 Ibid, art 1(2)(c). UNESCO’s first international instrument was the Agreement for Facilitating of the International Circulation of Visual and Audio Materials of an Educational, Scientific and Cultural Character (adopted 10 December 1948, entered into force 12 August 1954) 197 UNTS 3. 26 Declaration of Principles of International Cultural Co-operation, adopted 4 November 1966, in Records of the General Conference, 14th session, Paris 1966 (UNESCO 1967) Vol 1, 82 (hereafter ‘1966 UNESCO Declaration’).

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174 Ana Filipa Vrdoljak influences they exert on one another, all cultures form part of the common heritage belonging to all mankind’.27 The UNESCO Constitution and 1966 Declaration have been repeatedly reaffirmed by successive culture instruments adopted by the Organization in intervening decades.28 In contrast to its predecessor, the first specialist instrument on cultural heritage prepared by UNESCO was the Convention for the Protection of Cultural Property in the Event of Armed Conflict (‘1954 Hague Convention’).29 The preparatory report emphasized pre ventative and punitive measures.30 It referenced the ICO’s preliminary work and recent responses to the damage and destruction visited by World War II, including the Nuremberg Judgment, the Allied restitution programmes, and related peace treaties. The twin principles of diversity and universality promoted during the interwar period are encapsulated in the 1954 Hague Convention’s preamble when it acknowledges that ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of mankind, since each people makes its contribution to the culture of the world’.31 This sentiment is reaffirmed in the Convention concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’), which promotes international cooperation for the protection of natural and cultural heritage sites of ‘outstanding universal value’ during armed conflict and peacetime.32 Sites inscribed on the World Heritage List have increasingly been targeted in armed conflicts, and inscription is used by courts as evidence of protected status under international humanitarian law and international criminal law (see Chapter 3). The World Heritage Committee has endeavoured to increase awareness of the threat to such sites and enhance their protection by inscribing them on the World Heritage in Danger List.33 27 Ibid, art 1(a) and (c). 28 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231 (hereafter ‘1970 UNESCO Convention’) second and seventh recitals, preamble; Convention concern ing the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 (hereafter ‘WHC’) fourth recital, preamble; Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 2562 UNTS 3 (hereafter ‘Underwater Heritage Convention’) first recital, preamble; Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1 (hereafter ‘Intangible Cultural Heritage Convention’) seventh and 13th recitals, preamble; and Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 UNTS 311 (hereafter ‘Cultural Diversity Convention’) preamble. 29 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 (hereafter ‘1954 Hague Convention’). See UNESCO, ‘Historical Note concerning the Draft Convention for the Protection of Cultural Property in the Event of Armed Conflict’ (1954) UNESCO Doc CBC/7. 30 UNESCO ‘Report on the International Protection of Cultural Property by Penal Measures in the Event of Armed Conflict’ (8 March 1950) 5C/PRG/6, Annex I, 12 (hereafter ‘Berlia Report’). 31 1954 Hague Convention (n 29) second recital, preamble. 32 WHC (n 28) fifth and sixth recitals, preamble. 33 Ibid, art 11(4). This provision references disasters and development related threats rather than armed conflicts. As of May 2019, of the fifty-four properties currently on the List of World Heritage in Danger, more than half are listed because of threats arising from armed conflict, civil strife, or belligerent occupation.

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Cultural Heritage, Transitional Justice, and Rule of Law 175 Another interwar initiative resuscitated by UNESCO Member States is the regulation of the trade in cultural objects. The preamble of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (‘1970 UNESCO Convention’) notes that the illicit trade in cultural property ‘is an obstacle to that understanding between nations which it is part of UNESCO’s mission to promote’.34 It is the only culture convention with a dedicated dispute resolution mechanism affiliated with it.35 The most recent culture conventions adopted by the General Conference cover intangible cultural heritage. Their drafting and adoption occurred during a period of heightening interethnic and interreligious conflicts as well as economic and technological changes that have led the international community to revisit the importance of cultural diversity and cultural rights.36 These cultural conventions explicitly reflect and reference these concerns.37

3. Post-conflict and Transitional Justice The period after 1989 was defined by a sharp escalation in armed conflicts within existing States, which were invariably characterized by ethnic and religious divisions.38 In response, there was a maturation of the jurisprudence of regional human rights bodies and an exponential rise in peace agreements.39 Unsurprisingly, given the nature of these conflicts, both modalities engaged and elaborated upon the role of cultural rights and cultural heritage in periods of transition from conflict to a sustainable peace. Yet, when assessing the volume and nature of these post–cold war responses to threats to peace, legal scholars and international organizations have focused predominantly on their civil and political aspects. The United Nations adopted various guidelines and recommenda tions which refine and reinforce rule of law principles, human rights, combatting

34 1970 UNESCO Convention (n 28) seventh recital, preamble. 35 Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or Restitution in case of Illicit Appropriation, UNESCO GC Res 20 C4/7.6/5 (1978) and Res 33C/46 (25 August 2005); and Rules of Procedure (1989) UNESCO Doc CC.89/CONF.213/COL.3; and Rules of Procedure for Medication and Conciliation (2010) UNESCO Doc CLT-2010/CONF.203/ COM.16/7. 36 UNESCO Universal Declaration on Cultural Diversity (2 November 2001) UNESCO Doc 31C/ Res.25, Annex I; (2002) 41 ILM 57 (hereafter ‘2001 UNESCO Declaration’); and Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNGA Res 47/135 (18 December 1992). 37 Intangible Cultural Heritage Convention (n 31); and Cultural Diversity Convention (n 28). 38 Lotta Harbom and Peter Wallensteem, ‘Armed conflicts 1946–2009’ (2010) 47(6) Journal of Peace Research 501. 39 Joakim Kreutz, ‘How and when armed conflicts end’ (2010) 47(2) Journal of Peace Research 243.

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176 Ana Filipa Vrdoljak impunity, and democratic governance.40 Related to these developments, Christine Bell has argued that the hybridization of international and constitutional law manifest in peace agreements is leading to a specialized body of law governing peacemaking.41 These conflicts, and related human rights jurisprudence and peace processes, have intensified multilateral law-making and scholarship on cultural rights and cultural heri tage.42 Reiteration and elaboration of existing human rights norms, and adoption of specialist international and regional minority instruments, have led to a resurgence in cultural rights protection and promotion of cultural diversity43 and growing awareness and condemnation of the adverse impact of the destruction of cultural heritage on peace and security, discussed above. This section reviews key elements of transitional justice— namely, justice and combatting impunity, the right to truth, and the right to a remedy and reparations—through the lens of culture and cultural heritage.

3.1 Justice and Combatting Impunity Accountability for serious crimes under international law is fundamental to the rule of law.44 The UN Secretary-General has observed that justice and peace are mutually 40 See UNSC ‘Secretary-General Comments on Guidelines Given to Envoys’ (10 December 1999) UN Press Release SG/SM/7257; UNGA ‘Report of the Panel on United Nations Peace Operations’ (2000) UN Doc A/55/305-S/2000/809, 10; and UNSC ‘The Rule of Law and Transitional Justice in Conflict and PostConflict Societies, Report of Secretary-General’ (23 August 2004) UN Doc S/2004/616, 21–23 (hereafter ‘2004 Rule of Law Report’). 41 Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford University Press 2008) 305–37. 42 Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Martinus Nijhoff 2006); Jiri Toman, Cultural Property in War: Improvement in Protection (UNESCO 2010); and Elsa Stamatopoulou, Cultural Rights in International Law (Martinus Nijhoff 2007). 43 2001 UNESCO Declaration (n 36); Declaration on Cultural Diversity, adopted by Council of Europe, Committee of Ministers (7 December 2000); Charter for African Cultural Renaissance, adopted by African Union at Sixth Ordinary Session (24 January 2006); Declaration on ASEAN Unity in Cultural Diversity: Towards Strengthening ASEAN Community, adopted by the Ministers responsible for Culture and Arts of ASEAN Member States (17 November 2011); and appointment of the first UN Independent Expert on Cultural Rights in 2009. 44 See UNCHR, ‘Report on the Question of Impunity of Perpetrators of Human Rights Violations (Civil and Political)’ (26 June 1997) UN Doc E/CN.4/Sub.2/1997/20, Annex II: Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (hereafter ‘Principles to Combat Impunity’); UNCHR, ‘Final Report on the Question of Impunity of Perpetrators of Human Rights Violations (economic, social and cultural rights)’ (27 June 1997) UN Doc E/CN.4/Sub.2/1997/8 (hereafter ‘Final Report on Impunity (ESCR)’); UNCHR, ‘Independent Study of Best Practices, Including Recommendations to Assist States in Strengthening their Domestic Capacity to Combat all Aspects of Impunity’ (27 February 2004) UN Doc E/CN.4/2004/88 Annex (hereafter ‘Independent Study’); UNCHR, ‘Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity’ (8 February 2005) UN Doc E/CN.4/2005/102/Add.1 (hereafter ‘Updated Set of Principles to Combat Impunity’); UNSC, ‘Rule of Law and Transitional Justice in Conflict and PostConflict Societies: Report of Secretary-General’ (12 October 2011) UN Doc S/2011/634 (hereafter ‘2011 Rule of Law Report’); and UNGA, ‘Delivering Justice: Programme of Action to Strengthen the Rule of

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Cultural Heritage, Transitional Justice, and Rule of Law 177 r einforcing, noting that the issue is not ‘whether to pursue justice and accountability, but rather when and how’.45 Its aim is to hold perpetrators to account, provide justice to victims, reduce the recurrence of conflict by countering extremism and fostering recon ciliation, and restore public confidence in institutions.46 This rationale has been deployed from the end of World War II and the work of the International Military Tribunal at Nuremberg through to the International Criminal Court today. Through the articulation and enforcement of human rights, international humanitarian law, and international criminal law norms, there has been an elaboration of the obligation of States to investigate, prosecute, and punish the perpetrators of serious crimes in international law generally and as it relates to cultural heritage. Three elements of the obligation to combat impunity in international law are considered: accountability of perpetrators; crimes against cultural property as serious crimes under international law; and the roles of amnesties and vetting.

3.1.1 Accountability of Perpetrators International law requires States to investigate through criminal, administrative, or disciplinary proceedings ‘serious crimes under international law’ and other gross violations of human rights and to charge, try, and, if found guilty, sentence perpetrators and to make reparations to the victims.47 They have the primary obligation; however, where they are unable or unwilling to do so, they must cooperate with international or internationalized tribunals.48 From its earliest codifications, international humanitarian law has required that violations of the prohibition against the seizure, destruction, or wilful damage of cultural property during armed conflict and belligerent occupation be ‘made subject to legal proceedings by the competent authorities’.49 This obligation was reaffirmed by the 1954 Hague Convention, which requires High Contracting Parties to ‘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 commit violations of its obligations.50 The limitation of existing obligations became clear during the Yugoslav conflicts of the 1990s. The Second Protocol to the 1954 Hague Convention, adopted in Law at the National and International Levels’ (16 March 2012) UN Doc A/66/749 (hereafter ‘Delivering Justice’). 45 2004 Rule of Law Report (n 40), para 21. 46 Ibid, para 38. 47 Updated Set of Principles to Combat Impunity (n 44) Definitions A and B; Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty Of War Crimes and Crimes Against Humanity, UNGA Res 3074 (XXVIII) (1973); Independent Study (n 44), paras 24–56; Delivering Justice (n 44), para 37; and OHCHR, Rule of Law Tools for Post-Conflict States: Prosecution Initiatives (UN 2006). 48 Updated Set of Principles to Combat Impunity (n 44), principles 20 and 21. 49 See International Declaration concerning the Laws and Customs of War (27 August 1874) (1907) 1 AJIL(supp.) 96, art 8; and Convention (IV) respecting the Laws and Customs of War on Land, and Annex (adopted 18 October 1907, entered into force 26 January 1910) (1907) 208 CTS 77, (1908) 2(supp.) AJIL 90, art 56. 50 1954 Hague Convention (n 29), art 28.

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178 Ana Filipa Vrdoljak 1999, provides further detail concerning this obligation. Parties to the Second Protocol must introduce domestic penal legislation (establishing jurisdiction and appropriate penalties) concerning serious violations occurring within their territory or perpetrated by nationals.51 Universal jurisdiction must be established for serious violations of enu merated crimes.52 If a party does not prosecute, it must extradite to a country that can and which meets minimum standards in international law.53 Further, a party may intro duce legislative, administrative, or disciplinary measures that suppress the intentional use of cultural property in violation of the Convention or Second Protocol.54 The UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (‘2003 UNESCO Declaration’), adopted in response to the deliberate destruction of the monumental Buddhas in Bamiyan, Afghanistan, provides for State and individual responsibility for intentional destruction of cultural heritage and outlines the obligation to cooperate (see Chapter 4).55 It also calls on States to establish jurisdiction (including universal jurisdiction) and effective criminal sanctions against individuals who commit or order others to commit such acts. It requests States cooperate with one another and UNESCO, including through information-sharing, consultation in cases of actual or impeding destruction, assistance in respect of educational, awareness-raising and capacity-building programmes for prevention and repression, and assistance with judi cial and administrative processes. Successive resolutions by the Security Council, Human Rights Council, and UNESCO in response to deliberate attacks against cultural property have invoked the need to end impunity and likewise called on States to cooper ate in bringing perpetrators to justice.56 This obligation to prosecute international crimes involving damage, destruction, or pillage of cultural property has been incorporated into the jurisdiction of international and internationalized criminal tribunals since the end of World War II. With the cooperation of States, and more recently UNESCO, these tribunals have tried, convicted, and sentenced those charged with violations of the laws and customs of war, crimes against humanity, and genocide in respect to attacks against cultural property (see Chapter 5). In the lead-up to Mali’s referral of Ahmad Al Faqi Al Mahdi to the International Criminal Court for its first prosecution of war crimes against cultural property, the ICC Prosecutor advised that ‘[t]hose who are destroying religious buildings in Timbuktu should do so in full knowledge that they will be held accountable and 51 Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004) 2253 UNTS 212, arts 15(2) and 16(1). 52 Ibid, art 16(10)(c). 53 Ibid, arts 17 and 18. 54 Ibid, art 21. See also ‘Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict’ (22 March 2012) UNESCO Doc CLT-09/CONF/219/3 REV.4, 28. 55 Declaration concerning the Intentional Destruction of Cultural Heritage, adopted by the UNESCO General Conference (17 October 2003) arts VI, VII, VIII (hereafter ‘2003 UNESCO Declaration’). 56 See UNSC Res 2139 (22 February 2014) UN Doc S/RES/2139 (2014) para 13; UNCHR Res S-22/1 (1 September 2014); and UNESCO, ‘Executive Board Item 31 Protection of Iraqi Heritage: Explanatory Note’ (1 October 2014) UNESCO Doc 195EX/31, paras 6 and 8.

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Cultural Heritage, Transitional Justice, and Rule of Law 179 justice will prevail’.57 Subsequent Security Council resolutions on Mali affirmed the importance of justice and of holding perpetrators to account for the peace process in the country through its cooperation with the ICC.58 Like international criminal law pro ceedings stretching back to Nuremberg, the ICC’s decision has been subject to criticism concerning justice and accountability specifically and its contribution to the peace process broadly.

3.1.2 Serious Crimes under International Law The obligation to investigate and prosecute covers acts which are described as ‘serious crimes against international law’. This includes grave breaches of the Geneva Conventions of 1949 and Additional Protocol I of 1977, genocide, crimes against human ity, and other internationally recognized human rights violations which States are required to penalize.59 International criminal law and international human rights jurisprudence has consistently indicated that the damage, destruction, or confiscation of cultural property fall within these categories of serious crimes in international law (see Chapter 5). The 1954 Hague Convention and its Second Protocol list attacks on property under enhanced protection, using such property or its immediate surround ings in support of military action, extensive destruction or appropriation of cultural property covered by general protection, making such property the object of attack, and theft, pillage, or misappropriation of property under general protection as serious violations.60 In practice, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICC have found that attacks on sites and monuments on the World Heritage List are war crimes, violating the prohibition against protected sites.61 The Security Council has emphasized the seriousness of acts of intentional destruction and illicit traffic of cultural property, including their role in strengthening and financing recruitment and operational activities that undermine peace and security.62 Acts against cultural property have also been found to come within the ambit of the crimes of genocide and crimes against humanity, thereby recognizing that these also encompass gross violations of international human rights norms beyond the theatre of war or belligerent occupation. This has been confirmed by the jurisprudence from the 57 ICC Prosecutor’s Statement on Mali (1 July 2012) accessed 4 October 2015. 58 UNSC Res 2164 (25 July 2014) UN Doc S/RES/2164 (2014). See UNGA Res 69/196 (26 January 2015) International Guidelines for Crime Prevention and Criminal Justice Responses with Respect to Trafficking in Cultural Property and Other Related Offences UN Doc A/RES/69/196; and Council of Europe, European Convention on Offences relating to Cultural Property (adopted 3 May 2017, not in force) CETS no 221. 59 Updated Set of Principles to Combat Impunity (n 44) Definitions, B. 60 Second Hague Protocol (n 54), art 15(1). 61 Prosecutor v Pavle Strugar (Rule 98 bis Motion) ICTY-IT-01–42 (21 June 2004) paras 80–1; Prosecutor v Miodrag Jokić (Trial Judgment) ICTY-IT-01–42/1-S (18 March 2004) paras 23, 49, and 51; and Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentencing) ICC-01/12–01/15 (27 September 2016) para 20 (hereafter ‘Al Mahdi Judgment and Sentencing’). 62 UNSC Res 661 (6 August 1990); UNSC Res 1483 (22 May 2003); UNSC Res 2139 (22 February 2014); UNSC Res 2322 (12 December 2016); and UNSC Res 2347 (24 March 2017).

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180 Ana Filipa Vrdoljak International Military Tribunal at Nuremberg (IMT), ICTY, and, more recently, the ICC (see Chapter 5).63 Provisions relating to incitement of genocide may become more rele vant in international criminal prosecutions given the escalating use of deliberate destruction of cultural heritage to fuel racial and religious animus and violence.64 Also, the deliberate targeting and execution of museum officials and archaeologists by these same perpetrators has led to calls for their designation as human rights defenders, thereby attracting the special protection this would entail.65

3.1.3 Amnesties and Vetting The question of amnesties and vetting complicates the obligation of States to not uphold rules aiding impunity.66 While amnesties can foster peace and reconciliation, wholesale amnesties have been rejected by regional human rights courts and domestic courts.67 The United Nations has rejected amnesty for genocide, war crimes, or crimes against humanity, including persecution; and existing amnesties cannot bar prosecution before courts the UN has established or assists.68 However, it is acknowledged that comprehen sive prosecution is neither feasible nor advisable for achieving reconciliation.69 However, international human rights law requires States to undertake a good-faith effort to combat impunity in respect of gross violations human rights, including cultural rights relating to access to cultural heritage.70 This obligation likewise applies in respect to serious violations of international humanitarian law.71

63 See also Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Arrest Warrant) ICC01/12–01/18–2 (27 March 2018); and Situation in Bangladesh and Myanmar (Request for authorisation of an investigation pursuant to art 15) ICC-01/19–7 (4 July 2019). 64 Convention on the Prevention and Punishment of the Crime of Genocide, UNGA Res 260A(III) (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 art III(c) (Genocide Convention); and Statute of the International Criminal Court (adopted 7 July 1998, entered into force 1 July 2002) UN Doc A/CONF 183/9; 2187 UNTS 90, art 23(5)(e) (hereafter ‘Rome Statute’). 65 Report on Intentional Destruction of Cultural Heritage. Report of the Special Rapporteur in the Field of Cultural Rights (9 August 2016) UN Doc A/71/317, 19–21. 66 Updated Set of Principles to Combat Impunity (n 44), principles 22–4, 27, and 28. See also Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (adopted 26 November 1968, entered into force 11 November 1970) UNGA Res 2391 (XXIII) annex, 754 UNTS 73. 67 Report on Impunity (n 44), paras 1–6. 68 2004 Rule of Law report (n 40), para 64(c); Independent Study (n 44), para 8; 2011 Rule of Law Report (n 44), para 67; and Delivering Justice (n 44), para 37(b). 69 2004 Rule of Law report (n 40), para 32; Independent Study (n 44), paras 28ff; and Updated Set of Principles to Combat Impunity (n 44), para 50. 70 Final Report on Impunity (ESCR) (n 44), paras 29, 35 and 142(b); and UNCHR, ‘Cultural Rights: Tenth Anniversary Report, Report of the Special Rapporteur in the field of Cultural Rights’ (17 January 2019) UN Doc A/HRC/40/53 para 78. 71 See 2004 Rule of Law report (n 40), para 27; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 art 6(5) (AP II); and Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY IT-94–1 (2 October 1995) para 134.

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Cultural Heritage, Transitional Justice, and Rule of Law 181 Vetting the public service of post-conflict societies of persons responsible for past abuses has been deemed necessary for the reinforcement of the rule of law and recon ciliation processes.72 Vetting is an assessment of an individual’s integrity to determine their capacity to hold public office. It is distinguishable from wholesale dismissal or dis qualification because of political affiliation or association with a prior regime. While this process usually involves police, armed forces, and the judiciary, it can extend to include the media and educators involved in international crimes such as incitement to genocide.73 Vetting must be conducted in public and in accordance with international human rights standards, including the right to due process and non-discrimination.74

3.2 The Right to Truth Closely linked to combatting impunity is the right to truth.75 The Human Rights Council (and its predecessor) has repeatedly emphasized the importance of a holistic approach covering judicial and non-judicial means to enable justice and accountability, provide reparations to victims, and promote reconciliation and non-recurrence.76 The inalienable collective right of people to know the truth concerning the circumstances and reasons leading to gross human rights violations and serious international humani tarian law violations is seen as fundamental to preventing revisionism or denial and to ensuring non-recurrence.77 The duty to remember is concomitant with the right to know. This duty is related to collective knowledge of the history of oppression, which forms part of a people’s heritage and is designed to prevent its extinction from commu nal memory and to guard against revisionism.78 The difficulties around the duty to remember have been acknowledged by the UN Special Rapporteur on Cultural Rights.79 72 Updated Set of Principles to Combat Impunity (n 44), principle 36(a); and UNCHR, ‘Vetting of Members of Security Institutions. Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence’ (21 October 2015) UN Doc A/70/438. 73 See Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (Judgment) ICTR-99-52-A (28 November 2007). 74 2004 Rule of Law report (n 40), para 52; OHCHR, Rule of Law Tools for Post-Conflict States. Vetting: An Operational Framework (United Nations, 2006); and UNCHR, ‘The Right to Truth and Challenges faced by Truth Commissions. Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence’ (28 August 2013) UN Doc A/HRC/24/42 (hereafter ‘Right to Truth Report’). 75 HRC Res 21/7 (10 October 2012) para 1; HRC Res 12/12 (12 October 2009) para 1; and HRC Res 9/11 (18 September 2008) para 1. See UNCHR, ‘The Right to Access Information. Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression’ (4 September 2013) UN Doc A/63/362 para 36 (hereafter ‘Right to Access Information Report’). 76 UNGA Res 68/165 (21 January 2014); HRC Res 21/7 (10 October 2012); and UNCHR Res 2005/66. 77 Updated Set of Principles to Combat Impunity (n 44), principle 2 and paras 17–25; 2004 Rule of Law report (n 40), paras 14–23; and Right to Access Information Report (n 75), paras 28–38. 78 Updated Set of Principles to Combat Impunity (n 44), principle 3; and Principles to Combat Impunity (n 44), principle 2. 79 UNCHR, ‘Report of the Special Rapporteur in the Field of Cultural Rights: Memorialization Processes’ (23 January 2014) UN Doc A/HRC/25/49 para 11 (hereafter ‘Memorialization Report’).

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182 Ana Filipa Vrdoljak The right to truth also has an individual dimension. Victims and their families have an imprescriptible right to know the circumstances of the violation and, in case of death or disappearance, the fate of the victim and location of their bodies.80 While commissions of inquiry (truth commissions) and preservation and access to archives have been the primary means of fostering the right to truth, more recently there has been growing awareness and openness to other modalities. All of these mechanisms, either explicitly or implicitly, have cultural or cultural heritage dimensions. Over the last four decades, commissions of inquiry have been established in every region of the world to address past human rights abuses.81 Various factors maximize the effectiveness of this mechanism to realize the collective and individual right to truth.82 The commission’s role should extend beyond fact-finding to encompass recom mendations for legislative reform and other modes of combatting impunity and fostering reconciliation.83 The Comisión para el Esclarecimiento de la la Verdad, la Convivencia y la No Repetición (‘Colombian Commission’), established under the Comprehensive Agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, or FARC) in 2015, is mandated to address the right to truth, including violations of cultural rights to ‘lay the foundations for coexistence, reconciliation and non-repetition’.84 These commissions do not replace civil, administrative, or criminal courts, particularly in establishing indi vidual criminal responsibility. A 2013 UN review concluded that truth commissions function most successfully when they give ‘voice’ to victims in the public sphere, foster general social integration by officially acknowledging atrocities and aiding in ending the ‘cycles of resentment and mistrust’, help to set up reform priorities, and provide vital information for other justice measures, including prosecutions and reparations pro grammes.85 The Colombian Commission is tasked with creating national, regional, and territorial spaces for public discussion and reflection or ‘cultural’ ceremonies where par ticipants in the conflict can take responsibility and request forgiveness for suffering caused to individuals and their adverse impact on society generally.86 Persons who engage in this process can be subject to sanctions, including rebuilding of schools and

80 Updated Set of Principles to Combat Impunity (n 44), principle 4; and Right to Access Information Report (n 75), 39–47. 81 2004 Rule of Law report (n 40), para 50. See generally OHCHR, Rule of Law Tools for Post-Conflict States. Truth Commissions (United Nations, 2006); Right to Truth Report (n 74). 82 Updated Set of Principles to Combat Impunity (n 44). 83 Ibid, principle 12. 84 Comprehensive System of Truth, Justice, Reparation and Non-repetition, including the Special Jurisdiction for Peace; and Commitment to Human Rights, Agreement on the Victims of Conflict (Colombia and FARC) (15 December 2015) translated accessed 2 August 2019 (hereafter ‘Peace Agreements Database PA-X’) art 5.1.1.1.4 (hereafter ‘Colombia–FARC Comprehensive System: Agreement on Victims’); and Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace in Colombia (Colombia and FARC) (24 November 2016) 146 art 5.1.1.1.2, translated in in Peace Agreements Database PA-X (n 84) (hereafter ‘Final Agreement between Colombia and FARC’). 85 Right to Truth report (n 74), para 24. 86 Colombia–FARC Comprehensive System: Agreement on Victims (n 84) art 5.1.1.1.4.

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Cultural Heritage, Transitional Justice, and Rule of Law 183 community centres, or environmental recovery activities, ‘provided they are in accordance with the ethnic and cultural traditions and customs of the communities’.87 Treaty law and peace agreements have long recognized that archives form part of the cultural heritage of a people. Preservation of and access to archives is essential to the right to know and duty to remember in the context of peace processes.88 Records of past human rights violations are integral to maintaining the collective memory and must not be destroyed, removed, hidden, or tampered with. Considerations concerning the repository of archives include physical access, preservation, and trustworthiness in the eyes of victims and other stakeholders.89 The obligation extends to third-party States, which are expected to cooperate and restore archives. In addition, access must be granted to victims and their families to enable them to realize their rights to remedies and reparations; to alleged perpetrators to mount a defence; to the commissions of inquiry to facilitate their work; and to persons engaged in historical research, subject to restrictions concerning privacy and security of victims and witnesses.90 Special atten tion must be paid to the archives of places of detention or places where serious human rights and humanitarian law violations took place, especially when there has been denial of their occurrence. The right to truth extends to broader notions of memorialization and truth-seeking, which overlap with reparations and non-recurrence.91 The Inter-American Court of Human Rights and truth and reconciliation commissions have respectively ordered or recommended the construction of public memorials or museums addressing past crimes.92 Memorialization is reflected on the World Heritage List, with the inscription of the Island of Gorée (1975),93 the Auschwitz-Birkenau German Nazi Concentration and Extermination Camp (1979),94 the Hiroshima Peace Memorial (1996),95 Robben 87 Ibid, 50. 88 Updated Set of Principles to Combat Impunity (n 44), principles 14 to 18. See International Council of Archives and UNESCO, ‘Report on the Management of the Archives of Security Services of Former Repressive Regimes’ (ICA and UNESCO, 1995, updated 2009); UNCHR, ‘Report of the Office of the High Commissioner for Human Rights on the Seminar on Experiences of Archives as a Means of Guaranteeing the Right to Truth’ (14 April 2011) UN Doc A/HRC/17/21. 89 Right to Truth report (n 74), para 86. 90 See UNCHR, ‘Protecting Witness and Victims. Report of the UN High Commissioner for Human Rights on the Right to Truth’ (28 July 2010) UN Doc A/HRC/15/33; Right to Access Information Report (n 75), paras 56–68, and Challenges in the Implementation of National Laws on Access to Information Annex B 18–20. 91 Memorialization Report (n 79), para 6. 92 Masacres de Río Negro v Guatemala (Preliminary Objections, Merits, Reparations and Costs) InterAmerican Court of Human Rights Series C No 250 (4 September 2012) paras 279 and 280; and Memorialization Report (n 79), paras 36–44. 93 Island of Gorée, Senegal, described as ‘the largest slave-trading centre on the African coast’ which serves as ‘a reminder of human exploitation and as a sanctuary for reconciliation’ accessed 27 May 2016. 94 Auschwitz-Birkenau—German Nazi Concentration and Extermination Camp (1940–1945), Poland, described as the largest in the Third Reich and ‘[a]ccording to historical investigations, 1.5 million peo ple, among them a great number of Jews, were systematically starved, tortured and murdered in this camp’ accessed 27 May 2019. 95 Hiroshima Peace Memorial (Genbaku Dome), Japan, site of the first atomic bomb explosion in armed conflict: ‘Not only is it a stark and powerful symbol of the most destructive force ever created by

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184 Ana Filipa Vrdoljak Island (1999),96 and the Old Bridge Area of the old City of Mostar (2005).97 The UN Special Rapporteur on Cultural Rights, Farida Shaheed had observed that ‘all post-conflict and divided societies confront the need to establish a delicate balance between forgetting and remembering’.98 Any human rights–based approach to memorialization encom passes the often complex nature and relationship between victims, perpetrators, heroes, timing, the fate of monuments and sites of past repressive regimes, the need to promote critical thinking and civil engagement, the role of artists, museums of history, memory, and the managing of remains.99 The Special Rapporteur has emphasized that when schools, cultural institutions, cultural symbols, and cultural heritage are deliberately targeted during armed conflicts, memorialization must extend beyond violations of civil and political rights to include social and cultural rights. She observed that in the transitional justice context, cultural rights require policies which promote cultural interaction and understanding between people and communities, sharing of viewpoints and perspectives about the past, and ‘design of a cultural landscape that is reflective of cultural diversity’.100 Therefore, the right to truth through memorialization processes encompasses the right to participate in cultural life, including the right to access, par ticipate in, enjoy, and contribute to cultural heritage;101 the right to freedom of opinion and expression, including the right to artistic expression and creativity;102 and the right to access information.103

3.3 Right to Remedy and Reparation Traditionally, the right to a remedy and reparations for violations of international humanitarian law and human rights law was a matter of interstate responsibility, with a limited number of claims addressing cultural rights and cultural heritage having been heard by the Permanent Court of International Justice and the International Court of

humankind; it also expresses the hope for world peace and the ultimate elimination of all nuclear weapons’ accessed 27 May 2019. 96 Robben Island, South Africa, described as ‘the maximum security prison for political prisoners, witness the triumph of democracy and freedom over oppression and racism’ accessed 27 May 2019. 97 Old Bridge Area of the City of Mostar, Bosnia Herzegovina, destroyed during the Yugoslav wars and described as ‘a symbol of reconciliation, international co-operation and of the coexistence of diverse cultural, ethnic and religious communities’ accessed on 27 May 2019. 98 Memorialization Report (n 79), para 17. 99 Ibid, paras 49–97. 100 Ibid, paras 46–8; and Right to Truth Report (n 74), para 89. 101 UNCHR, ‘Report of the Independent Expert in the Field of Cultural Rights: Access to Cultural Heritage’ (21 March 2011) UN Doc A/HRC/17/38, paras 5 and 8. 102 UNCHR, ‘Report of the Independent Expert in the Field of Cultural Rights. Right to Freedom of Artistic Expression and Creativity’ (23 March 2013) UN Doc A/HRC/23/34 (hereafter ‘Freedom of Expression Report’). 103 Right to Access Information report (n 74).

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Cultural Heritage, Transitional Justice, and Rule of Law 185 Justice.104 In the late twentieth century, international, regional, and national human rights bodies progressively recognized the right of victims of these violations to remedy and reparation, with regional human rights courts developing a growing body of juris prudence in respect of cultural heritage.105 The UN Basic Principles and Guidelines on the Right to Remedy and Reparations, and Updated Set of Principles to Combat Impunity that emerged from this jurisprudence inform ICC’s reparation orders.106 They were utilized by the Court in Al Mahdi, its first reparations order against a defendant convicted of war crimes concerning cultural property.107 Many contemporary peace agreements also recognize the right of victims of a conflict to a remedy and reparations. Differing objectives and approaches between court proceedings and peace processes become manifest in respect of this element of transitional justice. Despite these develop ments, the UN Special Rapporteur on Transitional Justice recently observed that the implementation gap between the law and practice on remedy and reparation has reached ‘scandalous proportions’.108

3.3.1 Right to Remedy The right to justice overlaps with the victim’s right to equal and effective access to judicial remedy.109 As noted earlier, the State has primary competence in prosecution of perpetrators.110 To render effective access to justice for victims, States are required to disseminate information through public and private avenues about the remedies avail able for gross violations of human rights law or serious violations of humanitarian law, provide proper assistance to victims seeking remedies, render available all appropriate legal and diplomatic modes to facilitate exercise of this right, minimize the impact of proceedings on victims, and permit NGOs to institute and participate in criminal

104 Nathaniel Berman, ‘“But the Alternative is Despair”: European Nationalism and the Modernist Renewal of International Law’ (1993) 106(8) Harvard Law Review 1792; Eleni Polymenopoulou, ‘Collective Cultural Claims Before the International Court of Justice’ in Andrzej Jakubowksi (ed), Cultural Rights as Collective Rights: An International Law Perspective (Brill Nijhoff 2016) 278–87. 105 UNCHR, ‘Reparations to Victims in the Aftermath of Gross Violations of Human Rights and Serious Violations of International Humanitarian Law. Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence’ (14 October 2014) UN Doc A/69/518 para 14 (hereafter ‘Reparations Report’). 106 UNGA, ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’, UNGA Res 40/34 (29 November 1985); UNCHR ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ (21 March 2006) UN Doc A/RES/60/147 (hereafter ‘Basic Principles and Guidelines on Reparations’); and Updated Set of Principles to Combat Impunity (n 44). 107 Prosecutor v Al Mahdi (Reparation Order) ICC-01/12–01/15 (17 August 2017) (hereafter ‘Al Mahdi Reparation Order’). 108 Reparations Report (n 105), 2, paras 48–80. 109 Basic Principles and Guidelines on Reparations (n 106), paras 12–14; UNCHR, ‘General Comment No 31, Nature of the General Legal Obligation on States Parties’ (26 May 2004) UN Doc CCPR/C/21/ Rev.1/Add.13; UNCHR. ‘CAT General Comment No3, Implementation of Art 14’ (13 December 2012) UN Doc CAT/C/GC/3 (hereafter ‘General Comment No 3’). 110 Updated Set of Principles to Combat Impunity (n 44), principle 19.

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186 Ana Filipa Vrdoljak proceedings on behalf of victims.111 The importance of language (and effective translation) has long been recognized as a cornerstone of access to justice; more recently, there is growing awareness of the importance of cultural competence training of judicial and legal officers and court staff.112 These developments have largely been articulated in respect of the rights of the accused. It is only through the practice of international criminal courts (for example, the translation and broadcast of proceedings before the ICTY and work of the ICC Victims Participation and Reparation Section)113 and regional human rights courts (for example, orders by the Inter-American Court for the translation and distribution of its judgments) that their significance for victims has been increasingly recognised.

3.3.2 Right to Reparation The right to justice is intimately tied to the right of victims, and of their families and dependants, to reparations.114 States have a duty to provide victims of violations of inter national human rights law and international humanitarian law with the ability to pursue redress against the perpetrator (procedural component) and seek reparations (substan tive component).115 ‘Victims’ have been defined as persons who have ‘individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions’.116 The right to remedies for victims incorporates equal and effective access to justice; adequate, effective, and prompt reparations for harm sustained; and access to relevant information concerning violations and reparation mechanisms.117 Victims should have access to ‘readily available, prompt and effective’ remedies through criminal, civil, administrative, or disciplinary proceedings, including those available at the 111 See Independent Study (n 44), paras 43–44; Basic Principles and Guidelines on Reparations (n 106), paras 12–13; Updated Set of Principles to Combat Impunity (n 44) principle 33; and General Comment No 3 (n 109), paras 19–44. 112 Reparations Report (n 105), para 76; and Agreement on the Identity and Rights of Indigenous Peoples (Guatemala) (31 March 1995) in Peace Agreements Database PA-X (n 84) Annex II, Part 3 (here after ‘Guatemalan Agreement on Identity and Rights’). 113 ICC ‘Victims before the International Criminal Court: A Guide for the Participation of Victims in the Proceedings of the ICC’ www.icc-cpi.int/about/victims/Documents/VPRS_Victim-s_booklet.pdf> accessed 5 August 2019, 4 and 27. 114 Basic Principles and Guidelines on Reparations (n 106), para 8. 115 Updated Set of Principles to Combat Impunity (n 44), principle 31. See Universal Declaration of Human Rights GA Res.217A(III) (10 December 1948) art 8; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 2; International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) UNGA Res 2106 (XX) annex, 660 UNTS 195 art 6; Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) UNGA Res 39/46, annex, 1465 UNTS 85 art 14; AP II art 91; Rome Statute (n 64) arts 68 and 75; OHCHR, Rule of Law Tools for Post Conflict States: Reparations Programmes (UN 2008) (hereafter ‘OHCHR, Reparations Programmes’); Dinah Shelton, Remedies in International Human Rights Law (2nd ed, Oxford University Press 2005) (hereafter ‘Shelton, Remedies’). 116 See Reparations Report (n 105), paras 38–42. 117 Basic Principles and Guidelines on Reparations (n 106), para 11.

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Cultural Heritage, Transitional Justice, and Rule of Law 187 international and regional levels.118 These mechanisms should be accessible on an individual and collective basis. For example, the Human Rights Chamber for Bosnia and Herzegovina (‘BiH Chamber’) established under the Dayton Peace Agreement of 1995 recognized the representative capacity of organizations and institutions.119 Also, the ICC Rules of Procedure and Evidence define victims as including institutions or organizations that have sustained direct harm to their property ‘dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes’.120 Victims and civil society (particularly women and minorities) should be involved in the development and imple mentation of reparation programmes.121 States must provide victims with ‘adequate, effective and prompt’ reparation proportional to the gravity of the violation and harm sustained by them.122 Reparations cover restitution, compensation, rehabilitation, satisfaction, and guarantees for non-repetition, and include material and symbolic reparation. 3.3.2.1 Restitution Restitution is the primary mode of reparation. It is only when restitution is impossible or inadequate that other remedies are considered. For example, Yemen’s National Dialogue Conference Outcomes Document of 2014 provides the national government will return to libraries and institutions all expropriated manuscripts, books, and other objects and compensate them for war damage; reacquire looted antiquities, heritage sites, and manuscripts, including those that have been smuggled out of the country, and strengthen punishment for those responsible; and restore the global economic status of the city of Aden through preservation of its historic heritage and antiquities and com pensation for damage to its landmarks, antiquities, and environment.123 Restitution is designed to restore the victim to the position they were in prior to the violation. However, human rights bodies have emphasized that for restitution to be effective it must address the structural causes of the violation, including any kind of discrimination,124 thereby moving beyond restorative to transformative justice. It includes restoring liberty, identity, family life and citizenship,125 enjoyment of other human rights, and 118 Updated Set of Principles to Combat Impunity (n 44), principle 32 (subject to the restrictions on prescription outlined in principle 23); and OHCHR, Reparations Programmes (n 115) 15–18. 119 General Framework Agreement for Peace in Bosnia and Herzegovina (Bosnia and Herzegovina and (former) Yugoslavia) (21 November 1995) Annex 6, in Peace Agreements Database PA-X (n 84) (hereafter ‘Dayton Peace Agreement’). 120 ICC, Rules of Evidence and Procedure (2nd ed, ICC, 2013), rule 85(b). 121 Reparations Report (n 105), paras 30 and 33; UNCHR, ‘The Right to a Remedy, Report of the Special Rapporteur on Violence against Women’ (23 April 2010) UN Doc A/HRC/14/22. 122 Basic Principles and Guidelines on Reparations (n 106), para 15. 123 National Dialogue Conference Outcomes Document (Yemen) (25 January 2014) Chapter 2, Section 1, 21, 30–2, in Peace Agreements Database PA-X (n 84) (hereafter ‘2014 Yemeni National Dialogue’). 124 General Comment No 3 (n 109), para 8. 125 See The Nubian Community in Kenya v The Republic of Kenya (Merits) Communication 317/2006 African Commission on Human and Peoples’ Rights (30 May 2016) 35; Case of the Kaliña and Lokono

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188 Ana Filipa Vrdoljak restoration of property and employment.126 Restitution is particularly prominent in respect of cultural heritage and the return of human remains.127 The international com munity has sanctioned restitution as a remedy where cultural property was removed contrary to the rules of armed conflict or as part of the crimes against humanity of per secution and genocide.128 For example, the restitution of cultural objects to Holocaust survivors and their heirs has been reaffirmed in soft-law instruments129 and the deci sions of domestic courts.130 The identification and return of the remains of persons who were killed or disappeared as part of human rights or humanitarian law violations has a cultural dimension.131 The Agreement between Colombia and the FARC on Victims of the Conflict provides for ‘wherever possible the dignified return of remains of those persons who are missing due to the armed conflict to their families, while respecting different ethnic and cultural traditions’.132 In the Moiwana Community Case, the Inter-American Court ordered the repatriation of ancestral remains and recognized the ongoing intergenerational harm suffered by the Indigenous community because of its inability to bury and care for the remains of victims of a massacre according to their prescribed religious and cultural practices.133 While restitution is the ‘preferred’ remedy, it is often not feasible in cases involv ing human rights violations. Restitution-in-kind may be sanctioned in limited circumstances.134 For example, the BiH Chamber in the Zvornik Mosques case declined Peoples v Suriname (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C no 309 (25 November 2015) 71 [305] (hereafter ‘Kaliña and Lokono Peoples case’). 126 See Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Merits) Communication 276/2003 African Commission on Human and Peoples’ Rights (25 November 2009) (hereafter ‘Endorois Welfare Council case’); African Commission on Human and Peoples’ Rights v Republic of Kenya (Judgment) no 6/2012 African Court of Human and Peoples’ Rights (26 May 2017). 127 Basic Principles and Guidelines on Reparations (n 106), principle 19; Shelton, Remedies (n 115) 298. 128 Ana Filipa Vrdoljak ‘Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity’ (2011) 22(1) European Journal of International Law 17. 129 See Washington Conference Principles on Nazi-Confiscated Art (adopted 3 December 1998) accessed 25 July 2019; ce Resolution 1205, Parliamentary Assembly (4 November 1999) in Official Gazette of the Council of Europe (November 1999). 130 See Republic of Austria v Altmann 372 F 3d 1246 (9th Cir 2003); 539 US 987 (2004) 124 SC 46. 131 Basic Principles and Guidelines on Reparations (n 106), principle 4. See also International Convention for the Protection of All Persons from Enforced Disappearance UNGA Res 61/177 (adopted 20 December 2006, entered in force 23 December 2010) UN Doc A/RES/61/177; Updated Set of Principles to Combat Impunity (n 44), para 63; UNCHR ‘Study of the Right to Truth: Report of the Office of the High Commission for Human Rights’ (8 February 2006) UN Doc E/CN.4/2006/91 para 59 (hereafter ‘Right to Truth Study’). 132 Colombia–FARC Comprehensive System: Agreement on Victims (n 84), 5.1.1.2. 133 Moiwana Community v Suriname (Preliminary Objections, Merits, Reparations and Costs) InterAmerican Court of Human Rights Series C No 124 (15 June 2015) Separate Opinion of Judge Cançado Trindade, paras 47ff (hereafter ‘Moiwana Community case’). 134 Shelton, Remedies (n 115), 298.

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Cultural Heritage, Transitional Justice, and Rule of Law 189 to sanction the removal of an Orthodox Church constructed on the site of a destroyed mosque. Instead, it ordered restitution-in-kind by requiring Republika Srpska to make a parcel of land available to the Islamic community and permit reconstruction of the mosque on the alternate site.135 However, the international community does not con done retention of cultural property as war reparations.136 3.3.2.2 Compensation and Rehabilitation Compensation can be used to provide full reparations, insofar as the damage cannot be made good by restitution, the damage is ‘economically assessable’, and it is ‘appropriate and proportional’ to the gravity of the violation in each case.137 Its purpose is corrective and rehabilitative rather than punitive.138 This head of reparation includes physical or mental harm, lost opportunities such as employment and education, material loss such as loss of earnings, moral damage, and costs for legal, medical, psychological, and social services.139 In the Kaliña and Lokono Peoples case, the Inter-American Court found the respondent State had violated the American Convention on Human Rights, resulting ‘in the harm to extremely representative values of the applicant and on the cultural heritage to be transmitted to future generations’. It ordered Suriname to establish a community development fund and allocate a sum of US$1 million covering pecuniary and nonpecuniary damages suffered, to be administered according to the will of the applicants’ representative.140 In the Al Mahdi case, involving destruction and damage to the mauso leums in Timbuktu which had been reconstructed before the trial, the ICC ordered payment for consequential economic loss to individual victims whose livelihoods were exclusively dependent on the protected sites as well as collective reparations for the community to ameliorate financial losses suffered.141 In the Endorois Welfare Council case, the African Commission recommended that Kenya pay adequate compensation, including royalties arising from a reserve established on the Endorois’ traditional lands without their consent.142 Compensation also covers moral harm arising from violation of cultural rights and cultural loss. The ICC’s reparation order in Al Mahdi covered moral harm, with an award of individual reparations for the mental pain and anguish suffered by persons whose ancestors were buried at the sites attacked and collective reparations for the 135 Islamic Community in Bosnia Herzegovina v Republika Srpska (Decision on Admissibility and Merits) No CH/98/1062 (12 October 2001) Human Rights Chamber for Bosnia and Herzegovina, Digest, Decisions on Admissibility and Merits 1996–2002 (2003) 177 at 194; and Decision on Review (9 February 2001), paras 33 and 34. 136 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 para 3 (First Hague Protocol). 137 Articles on Responsibility of States for Internationally Wrongful Acts GA Res 58/83 (12 December 2001) UN Doc A/56/10/2001 art 36(1) (‘Articles on State Responsibility’); Basic Principles and Guidelines on Reparations (n 106), principle 20; and OHCHR, Reparations Programmes (n 115) 27–32. 138 See Shelton, Remedies (n 115) 314. 139 Reparations Report (n 105), para 20. 140 Kaliña and Lokono Peoples case (n 125), paras 292–9. 141 Al Mahdi Reparation Order (n 107), paras 119–28. 142 Endorois Welfare Council case (n 126), recommendations.

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190 Ana Filipa Vrdoljak ental pain and ‘disruption of culture’ to Timbuktu as a whole through rehabilitation m including public, symbolic measures (such as memorials and commemorations). It awarded Mali and UNESCO the symbolic sum of one euro each, noting that the collective reparations to the Timbuktu community would have a positive flow-on effect.143 The Inter-American Court in the Sawhoyamaxa Indigenous Community case, when assess ing compensation for moral damage, noted that denial of rights over traditional lands involved ‘a detriment to values that are highly significant to the members of [the Sawhoyamaxa community], who are at risk of losing or suffering irreparable damage to their lives and identities, and to the cultural heritage of future generations’.144 In the Srebrenica cases, the BiH Chamber ordered Republika Srpska to pay compensation to the Foundation of the Srebrenica-Potocari Memorial and Cemetery to enable families to bury the deceased according to their traditional religious beliefs and facilitate collective memory of the victims of the massacres.145 Accordingly, this award was also a form of rehabilitation. Rehabilitation aims to restore the dignity and reputation of victims and is designed to ‘address massive trauma that can be life-long or even multigenerational’.146 It includes provision of medical and psychological care and social services.147 The Committee on Torture has noted that effective rehabilitation service and programmes must take into account a victim’s culture, personality, history, and background and be accessible without discrimination.148 In the Moiwana Community case, the Inter-American Court accepted the Commission’s submissions that Suriname establish a development fund to provide health, housing, and educational programmes for a community subject to a massacre carried out by military forces.149 The Inter-American Commission argued the fund represented the respondent’s ‘willingness to pay for reasonable costs of survivors and family members to commence cultural activities’.150 While human rights bodies like the Committee and Court address past human rights violations, peace agreements take a broader role regarding culture and cultural heritage in rehabilitation, considering its importance in the future and focusing not only on victims but also on reconciliation between groups and communities and return and 143 Al Mahdi Reparation Order (n 107), paras 129–33. 144 Sawhoyamaxa Indigenous Community v Paraguay (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C no 146 (29 March 2006) paras 221–222. 145 The ‘Srebrenica Cases’, Decision on Admissibility and Merits, Nos CH/01/8397 et al. (7 March 2003) Human Rights Chamber for Bosnia and Herzegovina, Digest, Decisions on Admissibility and Merits 1996–2002 (2003), para 217. 146 Basic Principles and Guidelines on Reparations (n 106), principle 21; Updated Set of Principles to Combat Impunity (n 44), principle 34; and Shelton, Remedies (n 115) 394. See UNCHR, ‘Study concern ing the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report of Special Rapporteur’ (2 July 1993) UN Doc E/CN.4/ Sub.2/1993/8, 56 (hereafter ‘Van Boven Principles’); Reparations Report (n 105), paras 35–6; General Comment No 3 (n 109), para 12; and UNCHR, ‘Role of Rehabilitation Centres for Victims of Torture, Report of the Special Rapporteur on Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment’ (10 August 2010) UN Doc A/65/273. 147 Van Boven Principles (n 150) 57. 148 General Comment No 3 (n 109), para 15. 149 Moiwana Community case (n 133), paras 213–15. 150 Ibid.

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Cultural Heritage, Transitional Justice, and Rule of Law 191 reintegration of refugees who had fled the conflict. The 2015 Agreement between Colombia and FARC provided for a ‘psycho-social rehabilitation plan’ which fostered co-existence and non-repetition and included ‘restoration and generation of social, cul tural, artistic, recreational, and sports activities’.151 The Arusha Peace and Reconciliation Agreement for Burundi of 28 September 2000 incorporates intensive language courses for returnees to ease resettlement and integration.152 The Accord pour le paix et la réconciliation au Mali issu du processus d’Alger included a series of interim measures prior to its implementation to promote ‘peace, democracy and the acceptance of cultural diver sity’ in order to ensure the ‘return, reinstallation and reinsertion of those Malians living outside the country, as well as the rehabilitation of victims’.153 3.3.2.3 Satisfaction The remaining two forms of reparation—satisfaction and guarantees of non-repetition— are intended not only as redress for individual victims but also to facilitate the society’s efforts to remember, resist revisionism, and prevent future violations. Accordingly, there is a greater degree of overlap between peace agreements and the jurisprudence of regional human rights courts and the ICC. For the victims, satisfaction includes the cessation of ongoing violations, public disclosure and verification of the facts of the violations, and official declarations restoring the reputation, dignity, and rights of the victims.154 For the society at large and the process of reconciliation, satisfaction should include judicial sanctions against the perpetrators, inclusion of an accurate account of past violations in the public domain, especially in educational materials, and commem orations of victims and memorial days.155 In the Kaliña and Lokono Peoples case, the Inter-American Court ordered Suriname to translate and publish the judgment in the government gazette, national newspapers, and radio broadcasts accessible to the Kaliña and Lokono peoples;156 in the Al Mahdi case, the ICC ordered collective reparation for the protection and maintenance of the protected sites and measures to ensuring non-repetition, together with video excerpt of the defendant’s apology to be translated into local languages and circulated in Timbuktu. In addition, the Court had extensive evidence led about the crime and its impact on victims even though the perpetrator had entered a guilty plea.157 The Colombian Commission will have its final report disseminated 151 Colombia–FARC Comprehensive System: Agreement on Victims (n 84), art 5.1.3.4.2. 152 Arusha Peace and Reconciliation Agreement for Burundi (28 September 2000) Protocol IV Reconstruction and Development, Chapter I: Rehabilitation and Resettlement of Refugees and Sinistres, art 4, in Peace Agreements Database PA-X (n 84). 153 Accord pour le paix et la reconciliation au Mali issu du processus d’Alger (Agreement for Peace and Reconciliation in Mali resulting from the Algiers Process) (20 June 2015) Annex 1, Ch 13, art 39, in Peace Agreements Database PA-X (n 84). 154 Basic Principles and Guidelines on Reparations (n 106), principle 22; Updated Set of Principles to Combat Impunity (n 44), principle 34; Reparations Report (n 105), para 33; and General Comment No 3 (n 109), paras 16 and 17. 155 Basic Principles and Guidelines on Reparations (n 106), para 22. 156 Kaliña and Lokono Peoples case (n 125), paras 312–13. 157 Al Mahdi Judgment and Sentencing (n 61); Al Mahdi Reparations Order (n 107), paras 60–71.

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192 Ana Filipa Vrdoljak in the ‘most wide-ranging and most accessible manner, including through cultural and educational initiatives, such as the promotion of exhibitions, with the recommendation of its inclusion in the academic curriculum’, and its conclusions are to be taken up by the National Memory Museum.158 3.3.2.4 Guarantees of Non-recurrence The guarantee of non-repetition as reparation has potentially the most far-reaching impact in efforts towards the re-establishment of the rule of law and reconciliation postconflict and following gross violations of human rights and serious violations of inter national humanitarian law. This remedy can include review and reform of laws which contributed to the violations; removal or debarment from public office of perpetrators of violations; ensuring that civilian proceedings comply with international human rights law, including standards of due process, fairness, and impartiality; strengthening the judiciary; effective civilian control of the military, security, and police forces and educating them in human rights and humanitarian standards;159 ensuring that all public servants adhere to codes of ethics; protecting legal, medical, and healthcare professionals, journalists, and human rights defenders; promoting and implementing mechanisms for preventing, monitoring, and resolving social conflicts; and institutional reforms and measures necessary to ‘ensure respect for the rule of law, foster and sustain a culture of respect for human rights, and restore or establish public trust in government institutions’.160 These initiatives, particularly the final one, have come to the fore in the last two decades as the United Nations has actively promoted a ‘culture of peace’, discussed below. While these efforts largely address civil and political rights, they necessarily incorporate social and cultural rights aspects to properly realize this goal.161 Recent practice on guarantees of non-recurrence highlights three possible spheres of intervention: official State intervention including ratification of relevant treaties,162 justice and security sector reform, constitutional reform including separation of powers, bill of rights, and removal of discriminatory laws; civil society intervention through legal empowerment and an enabling environment; and cultural and personal dispositions

158 Final Agreement between Colombia and FARC (n 84), 146, art 5.1.1.1.4. 159 Kaliña and Lokono Peoples case (n 125), para 309. 160 Updated Set of Principles to Combat Impunity (n 44), principles 35–38; Basic Principles and Guidelines on Reparations (n 106), principle 23; and General Comment No 3 (n 109), para 18. 161 UNCHR, ‘Guarantees of Non-recurrence, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence’ (7 September 2015) UN Doc A/HRC/30/42, 21–23 (hereafter ‘Non-recurrence Report’); Joint Study of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence and the Special Adviser to the SecretaryGeneral on the Prevention of Genocide. Note to Secretariat (1 March 2018) UN Doc A/HRC/37/65, 15–17 (hereafter ‘Joint Study’); and Acts in Arts and Culture to Promote Human Rights. Report of the Special Rapporteur in the field of Cultural Rights (4 January 2018) UN Doc A/HRC/37/55 (hereafter ‘Arts and Culture Report’). 162 Dayton Peace Agreement (n 119), annexes 4 and 6.

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Cultural Heritage, Transitional Justice, and Rule of Law 193 allowing for the preventative capacity of education reform,163 arts and culture,164 recreational and sporting activities,165 and trauma counselling.166 The Final Agreement between Colombia and FARC of 2016 specifically lists these initiatives and recognizes that ‘ethnic people need to have control of the events that affect them and their lands, territories and resources, maintaining their own institutions, cultures and traditions’ and that ‘it is fundamental to incorporate the ethnic and cultural perspective’ into the interpretation and implementation of the peace agreement.167 Indeed, the Final Agreement provides that this ‘ethnic and cultural perspective’ will be taken into account in the design of judicial and non-judicial mechanisms with the right to participate and be consulted being ‘respected and guaranteed, when appropriate’.168 As noted, intra-State conflicts and their aftermath dominate contemporary inter national law responses from human rights and international criminal law jurisprudence and peace agreements. Given the interethnic and interreligious nature of these conflicts, human rights, particularly cultural rights and cultural heritage, have figured prominently these responses. Often they reflect the themes which preoccupied interwar efforts in respect of minority guarantees for new States and covered protections concerning civil and political rights, including recognition of multiple official languages to ensure effective participation169 and economic, social, and cultural rights. Recognition of language is vital for all human rights and is an important mode of fostering tolerance and diversity.170 Provisions covering monuments and sites can range from the relevant religious or eth nic group having authority to agreement on joint or shared authority.171 Two prominent examples include the Bosnia and Herzegovina and Guatemala conflicts. Following an 163 See UNCHR, ‘On Writing and Teaching History: Report of the Special Rapporteur in the Field of Cultural Rights’ (9 August 2013) UN Doc A/68/296 (hereafter ‘Teaching History Report’). 164 See Intercongolese Negotiations: The Final Act (Democratic Republic of Congo) (2 April 2003) Res No DIC/CHSC/06 relating to Culture and Inter-ethnic Co-existence in the Democratic Republic of Congo, in Peace Agreements Database PA-X (n 84); Programme of the Republic of Croatia for the Establishment of Trust, Accelerated Return, and Normalization of Living Conditions in War-affected Regions (3 October 1997) Part C arts 15, 16, in Peace Agreements Database PA-X (n 84); 2014 Yemeni National Dialogue (n 123), 149, arts 76 and 77. 165 See Colombia–FARC Comprehensive System: Agreement on Victims (n 84), art 5.1.3.4.2. 166 Non-recurrence Report (n 165), 22. 167 Final Agreement between Colombia and FARC (n 84), 6.2.1 and 6.2.2. 168 Ibid, 6.2.3. 169 See Constitution of Iraq (15 October 2005) Section 1 (Fundamental rights) art 4, in Peace Agreements Database PA-X (n 84) (hereafter ‘2005 Iraqi Constitution’); and Framework Agreement on Bangsamoro between Philippines and Mindanao, Annex on Power Sharing (8 December 2013) Part II arts 21 and 24, in Peace Agreements Database PA-X (n 84). 170 See Political Constitution of Colombia (1 July 1991), in Peace Agreements Database PA-X (n 84) Title I, art 10; 2005 Iraqi Constitution (n 169) public and private education; Agreement reached in the Multi-Party Negotiations (Ireland and United Kingdom) (10 April 1998) 21, in Peace Agreements Database PA-X (n 84) (‘Good Friday Agreement’). 171 See Istanbul Process on Regional Security and Cooperation for a Secure and Stable Afghanistan (2 November 2011) 16, Section C, in Peace Agreements Database PA-X (n 84); Protocol concerning Israeli and Palestinian Cooperation Programs, in Israeli and Palestinian Interim Agreement on the West Bank and Gaza Strip (28 September 1995) Annex VI, in Peace Agreements Database PA-X (n 84) (‘Oslo II’); Agreement for Peace and Reconciliation in Mali (n 153) Annex 3; Bougainville Peace Agreement (Papua New Guinea and Bougainville) (30 August 2001) art 79 in Peace Agreements Database PA-X (n 84).

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194 Ana Filipa Vrdoljak armed conflict marred by large-scale ethnic cleansing and systematic destruction of cultural heritage, the 1995 Dayton Peace Agreement established a human rights tribunal in Bosnia and Herzegovina and Commission to Preserve National Monuments;172 the 1996 Agreement for Firm and Lasting Peace, which ended the decades-long Guatemalan civil war, included the Comprehensive Agreement on Human Rights and Agreement on Identity and the Rights of Indigenous Peoples, in recognition of its disproportionate and devastating impact upon them.173 After 1945, recognition of new States outside the colonial context or dismantling of federated States has been rare, only arising after large-scale interethnic conflict. Nonrecurrence initiatives in peace agreements in this category likewise invite comparison with interwar peace treaties covering State succession and including minority protections and specific provisions on cultural heritage (including archives). Two instances sanc tioned by peace processes concern Kosovo and South Sudan. In both cases, efforts to prevent non-recurrence of conflict and human rights abuses have been found wanting. The power-sharing arrangement established under the 2005 Comprehensive Peace Agreement between Sudan and the Sudan People’s Liberation Movement (SPLM) was designed to recognize and promote cultural diversity and local languages and the right of the self-determination of the people of South Sudan, to be exercised through an inter nationally monitored referendum.174 Following the plebiscite in 2011, a declaration of independence was issued which referenced the ‘years of conflict and the immeasurable suffering of our people resulting from the conflict’ and stated its ‘resolve ‘to establish a system of governance that upholds the rule of law, justice, democracy, human rights, and diversity’.175 Similarly, minority protections were incorporated into subsequent peace agreement with Sudan and included in South Sudan’s constitution, together with provisions covering succession or access to cultural heritage and archives.176 Within two years, the new state was riven by civil war, which continues to date.177 172 Declaration concerning the Constitution of the Federation of Bosnia and Herzegovina (with pro posed Constitution of the Federation of Bosnia and Herzegovina annexed) (18 March 1994) Part I, art 6, in Peace Agreements Database PA-X (n 84); Agreement on Commission to Preserve National Monuments, in Dayton Peace Agreement (n 119), Annex 8, 103–6. 173 Guatemalan Agreement on Identity and Rights (n 112), Part 3; Agreement on the Implementation, Compliance and Verification Timetable for the Peace Agreements of Guatemala (29 December 1996) Annex II, Parts 2 and 4, in Peace Agreements Database PA-X (n 84), which established a joint Commission on Holy Places to ‘ensure respect for Mayan spirituality’. 174 Comprehensive Agreement between the Republic of Sudan and the Sudan People’s Liberation Army and Sudan People’s Liberation Movement (9 January 2005) Chapter II, art 2.8, Chapter V, Part 1 and Schedule A, in Peace Agreements Database PA-X (n 84). 175 Application of the Republic of South Sudan for Admission to the Membership of the United Nations (9 July 2011) UN Doc A/65/900-S/2011/418. 176 Implementation Matrix for Agreements between the Sudan and South Sudan (12 March 2013) art 9, in Peace Agreements Database PA-X (n 84); The Interim National Constitution of the Republic of Sudan (6 July 2005) Part 1, arts 4(b), 5(1), 5(2), 5(3), 8(1)–8(5), 47, and Schedule C, arts 9 and 10, in Peace Agreements Database PA-X (n 84); Constitution of South Sudan (2011) arts 23 (Religious Rights) and 33 (Rights of Ethnic and Cultural Communities). 177 Report of the Commission on Human Rights in South Sudan (23 February 2018) UN Doc A/ HRC/37/71; HRC Res.37/31 (23 March 2018); Report of the Secretary-General on South Sudan

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Cultural Heritage, Transitional Justice, and Rule of Law 195 The declaration of the independence of Kosovo in 2008 arose from the Comprehensive Proposal for the Kosovo Status Settlement prepared by the UN Special Envoy, designed to promote ‘a spirit of tolerance, dialogue and support reconciliation between the Communities’.178 In addition to promoting equality, the Comprehensive Proposal con tained positive obligations pertaining to minorities. It required Kosovo to refrain from assimilationist policies and establish conditions conducive for communities and their members ‘to preserve, protect and develop their identities’. Additionally, Kosovo has ‘a special duty to ensure effective protection of the sites and monuments’ of all communities and to promote their heritages as ‘an integral part of the heritage of Kosovo’.179 Serbia, for its part, was to undertake to return cultural objects removed from Kosovar territory. The declaration of independence affirmed the new state would be ‘a democratic, secular and multi-ethnic republic’ and indicated its acceptance of obligations contained in the Comprehensive Proposal.180 Several of these obligations are reflected in its 2008 Constitution and domestic law. However, interethnic unrest and violence against people and property because of their ethnic or religious affiliation continues in the country. The UN Special Rapporteur on Cultural Rights deplored the heightened politicization of cultural heritage issues in 2016. She noted it was designed to ‘deprive displaced people of anything which they could return to, as well as to erase the history of their presence and claim monopoly or monolithic identity’.181

4. Sustaining Peace The proliferation of armed conflicts following the end of the cold war precipitated reviews and re-evaluations within the United Nations and its organs and agencies concerning the nature of their mission and their methods of pursuing it. Much of this reassessment centred on achieving and sustaining peace in post-conflict situations and conflict prevention. A centrepiece of this shift is the General Assembly’s Declaration and Programme of Action on a Culture of Peace of 1999, which recalls the purposes and

(28 February 2018) UN Doc S/2018/163; SC Res 2406 (5 March 2018); Agreement on the Resolution of the Conflict in South Sudan (17 August 2015), requiring the establishment of a Commission for Truth, Reconciliation and Healing, Hybrid Court for South Sudan, and Compensation and Reparation Authority: UN Doc A/HRC/37/71, 16–17. 178 UNSC, ‘Comprehensive Proposal for the Kosovo Status Settlement’ (2007) UN Doc S/2007/168/ Add.1, Annex II, 2.6. 179 Ibid, Annex II, art 2. 180 Kosovo ‘Declaration of Independence’ (17 February 2008), in Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, ICJ (22 July 2010) Introductory Note, Dossier 192. 181 Report of the Special Rapporteur in the Field of Cultural Rights on her Mission to Serbia and Kosovo (19 January 2018) UN Doc A/HRC/37/55/Add.1, paras 73 and 74.

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196 Ana Filipa Vrdoljak principles of the UN Charter and the preamble of UNESCO’s Constitution.182 The Declaration and Programme of Action has been described as one of the ‘most significant legacies of the United Nations’. 183 A culture of peace is defined as including ‘adherence to the principles of freedom, justice, democracy, tolerance, solidarity, cooperation, pluralism, cultural diversity, dialogue and understanding at all levels of society and among nations’.184 It acknowledges that this can only be achieved by ‘advancing under standing, tolerance and solidarity among all civilizations, peoples and cultures, includ ing towards ethnic, religious and linguistic minorities’.185 Its programme of action echoes interwar efforts in respect of intellectual cooperation through the exchange of people and cultural heritage and contemporary peace agreements’ promotion of arts and culture, sporting activities, collaborative research in science, education, and the role of media and new technologies.186 As well as recognizing the role of government, civil society, and media in the promotion of these objectives, the programme identifies the importance of parents, teachers, politicians, journalists, religious bodies and groups, intellectuals, those engaged in scientific, philosophical, creative, and artistic activities, health and humanitarian workers, social workers, and non-governmental organizations to these tasks.187 This extension beyond political and civil society to the cultural sphere in fostering resilience within communities and sustaining peace has increasingly permeated the work of the United Nations, UNESCO, and its human rights bodies. UNESCO’s role in the operationalization of the aims of this and related General Assembly initiatives has been repeatedly acknowledged, noting that it is the UN’s spe cialized agency on education and culture. In response, the organization’s interventions, especially as they relate to cultural heritage, encompass the promotion of human rights, especially cultural rights in respect of access to heritage, promotion of tolerance and understanding through cultural exchange and education, promotion of diversity and

182 UN Culture of Peace Declaration and Programme of Action (n 3) preamble; and subsequent reso lutions up to and including UNGA Res 73/126 (19 December 2018) Follow-up to the Declaration and Programme of Action on a Culture of Peace, UN Doc A/RES/73/126. It is a continuum of UN initiatives addressing post-interethnic and interreligious conflict situations and conflict prevention which refer to the need to enhance respect, appreciation, and acceptance of cultural diversity and cultural heritage: Declaration of Principles on Tolerance adopted by the UNESCO General Conference, Res 5.61 (16 November 1995); UNGA Res 56/6 (21 November 2001) Global Agenda for Dialogue among Civilizations, UN Doc A/RES/56/6, art 2 (hereafter ‘Global Agenda’); and UNGA Res 61/221 (14 March 2007) on promotion of interreligious and intercultural dialogue, understanding and cooperation for peace, UN Doc A/RES/61/221 (and following). 183 Letter from M. F. E. Spinosa Garcés, President of the General Assembly, to Permanent Representatives and Permanent Observers to the United Nations (25 June 2019), at accessed 4 August 2019. 184 UN Culture of Peace Declaration and Programme of Action (n 3), art 1(i). 185 Ibid, art 3(m). 186 Global Agenda (n 182) Part B. UNESCO Action Plan for the International Decade for the Rapprochement of Cultures (2013–2022) UNESCO Doc 194 EX/10 (hereafter ‘UNESCO Action Plan’). 187 UN Culture of Peace Declaration and Programme of Action (n 3), art 8.

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Cultural Heritage, Transitional Justice, and Rule of Law 197 dialogue, and rule of law through treaties adoption and implementation.188 UNESCO’s Universal Declaration on Cultural Diversity, adopted in 2001, affirmed that respect for cultural diversity, tolerance, dialogue, and cooperation ‘in a climate of mutual trust and understanding’ were guarantees of international peace and security.189 The Declaration also recognizes the ‘specific mandate’ bestowed on the organization ‘to ensure the pres ervation and promotion of the fruitful diversity of cultures’.190 The General Conference also adopted a resolution on acts constituting crimes against the common heritage of humanity concerning destructive acts against sites of universal importance, including looting and illicit excavations, and called on Member States to ratify the UNESCO cul ture conventions.191 This action eventually led to the adoption of the Declaration on Intentional Destruction and informed the first Security Council resolution dedicated to cultural heritage, adopted in 2017 following UNESCO’s entreaty.192 The latter emphasizes that looting, smuggling, and ‘unlawful destruction of cultural heritage’ and ‘attempt[s] to deny historical roots and cultural diversity’ can escalate conflict and stymie post-conflict reconciliation. Peace agreements finalized during this period embrace this broader notion of fostering a ‘culture of peace’ and ‘reconciliation’ through cultural activities and cultural heritage. For example, an agreement between Sudan and the SPLM encourages cultural activities for youth to ‘deepen the culture of peace among them’,193 while the Dar-Es-Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes Region of 2014 promotes policies of national unity based on ‘multiculturalism, the culture of peace and dialogue, to build a common destiny on shared African cultural values’.194 The Doha Document for Peace in Darfur of 2011 provided for the entrenching of a culture of peace ‘using such means as tribal chiefs, religious scholars, civil society organ izations, the media and educational institutions’.195 This language and related non-recurrence initiatives in the cultural field have been taken up by various UN human rights mechanisms and applied beyond the post-conflict and transitional justice context to pursue conflict and atrocity prevention and sustainable peace. The Special Rapporteurs on transitional justice and cultural rights and the Special 188 UNESCO, Programme of Action, Culture of Peace and Non-Violence. A Vision in Action (UNESCO 2013); UNESCO Action Plan (n 186); UNESCO, A Long Walk to Peace: Towards a Culture of Prevention (UNESCO 2018). 189 2001 UNESCO Declaration (n 36), second and seventh recitals, preamble and art 2. 190 Ibid, 10th recital, preamble and art 12. It specifically references the Florence Agreement of 1950 and its Nairobi Protocol of 1976, Universal Copyright Convention, 1966 UNESCO Declaration (n 26), 1970 UNESCO Convention, World Heritage Convention, and 1989 UNESCO Recommendation. 191 UNESCO, Records of the General Conference 31st session 2001 (UNESCO 2002) vol 1, 65. 192 2003 UNESCO Declaration (n 55); and UNSC Res 2347 (24 March 2017). 193 Joint Final Communique and Resolutions: Dinka Malual and Missenriyya Grassroots Peace Conference (14 November 2008) Resolutions Section 1, art 6(b), in Peace Agreements Database PA-X (n 84). 194 Dar-Es-Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes Region (20 November 2004) art 31, in Peace Agreements Database PA-X (n 84). 195 Doha Document for Peace in Darfur (31 May 2011) Chapter V, art 58, Agreement in Peace Agreements Database PA-X (n 84).

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198 Ana Filipa Vrdoljak Adviser on Prevention of Genocide have emphasized the importance of education, particularly the teaching of history and the role of religious leaders; the role of arts and culture in fostering empathy and understanding of the complex nature of victimiza tion; and archives as tools for transitional justice and education against denial and revisionism.196 While the significance of culture and cultural heritage for transitional justice and conflict prevention is being recognized more broadly within the UN system, however, it remains largely sidelined from rule of law, governance, and human rights. It is viewed as a value-add, rather than being integral to these objectives.

5. Conclusion This chapter has endeavoured to show that while the initial impetus for the protection of cultural heritage in international law is driven by actual or threatened armed conflict, the persistent objective of these interventions has been to avoid or minimize the impact of such acts on attaining and sustaining peace. The pursuit of this objective has been, and remains, multilayered and complex. The first part highlighted the overarching man date of the specialist culture agencies of the League and the United Nations. Reflecting the increasing focus on culture and cultural heritage in post-war peace settlements during times of rising tensions between States and within States, the Intellectual Cooperation Organisation and UNESCO played a central role in promoting initiatives fostering understanding between peoples. The protection and promotion of cultural rights and cultural heritage has been integral to these efforts and is reflected in succes sive culture conventions drafted under the auspices of the ICO and reworked, adopted, and implemented by UNESCO today. The potentially rich, varying, and often fundamental role of culture and cultural heritage in peace processes after the end of the cold war was detailed in Section 2. The exponen tial rise in human rights and international criminal law jurisprudence and peace agree ments following intra-state conflicts has informed the formalization of international law norms concerning transitional justice. There remains a clear emphasis on civil and political rights in these processes. However, given the interethnic and interreligious nature of recent conflicts, evaluating, understanding, and addressing the role of culture and cultural heritage takes on an added urgency. This is especially so for reparations, such as satisfaction and guarantees of non-recurrence, that focus on future relations between groups, peoples, and States. State practice arising from peace agreements is more diverse and flexible in framing broad-based solutions to prevent future conflicts and ensure long-term peace than is international criminal law and human rights jurisprudence, which is focused primarily on past events and perpetrators and victims. Yet, these two streams can overlap in 196 Non-recurrence Report (n 161) 21–3; Joint Study (n 161) 15–17; Arts and Culture Report (n 161); and Teaching History Report (n 163) 11–22.

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Cultural Heritage, Transitional Justice, and Rule of Law 199 their articulation of the role of culture and cultural heritage in pursuing justice and accountability, fostering the right to truth and role of memorialization and critical engagement with history through the arts, culture, and education, as well as the fashioning of reparations which facilitate restorative and, where necessary, transformative justice. However, implementation, oversight, and enforcement regimes of relevant court deci sions and peace agreements remain limited. There is also a urgent need to better assess and understand which initiatives are effective in achieving the objectives of preventing conflict and atrocities and sustaining peace over the long term. This latter aspect is particularly important given these measures are being promoted more broadly by the United Nations and UNESCO. Recalling their mandates in their constitutive instruments, the United Nations and its culture agency, UNESCO, have championed a ‘culture of peace’ over the last two dec ades by applying these preventative measures beyond post-conflict situations. Section 4 outlined how, as rhetoric fuelling hostility and violence within and across States is escalating, measures concerning cultural diversity, cultural rights, and cultural heritage (arising from court decisions and peace agreements) that had been confined to certain States or regions are being adopted and applied universally by the United Nations. As occurred during the interwar period, the role of the specialist culture and education agency has come to the fore with this shift in focus. Recent public attention on UNESCO’s work has focused on its response to the deliberate destruction and pillaging of monuments and sites. However, given the mandate set out in Organization’s Constitution, and its limited resources, it is important to reassess this emphasis on crisis management rather than crisis prevention.197 We must better understand and assess the role of culture and cultural heritage across the range of transitional justice measures and conflict and atrocity prevention more broadly. For, as the UN Secretary-General has observed, ‘an ounce of prevention is worth significantly more than a pound of cure’.198

197 Lynn Meskell, A Future in Ruins: UNESCO, World Heritage and the Dream of Peace (Oxford University Press 2018). 198 2004 Rule of Law Report (n 40), para 4.

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chapter 9

Theft a n d Il l ega l Excavation Legal Principles for Protection of the Archaeological Heritage Patty Gerstenblith1

1. Introduction The looting of archaeological sites may be defined as ‘the act of digging up artifacts for private collection or sale without the concomitant record of excavation, context and lab work associated with scientific archaeology’.2 Looting poses particular harms to society through losses to our knowledge and understanding of the past and therefore raises issues of the public interest that are not implicated in the trade in cultural objects that were never in a stratified context or part of an integral monument or historic structure. Looted archaeological objects are unknown and undocumented before they appear on the market or in a collection,3 and this lack of documentation makes such objects particularly suitable for use in criminal activities, such as money laundering and financing

1 I want to thank Lois Wetzel, DePaul Law ’19, for her research assistance. 2 Siobhan M. Hart and Elizabeth S. Chilton, ‘Digging and Destruction: Artifact Collecting as Meaningful Social Practice’ (2014) 21(4) International Journal of Heritage Studies 3 accessed 20 November 2017. 3 Other cultural objects may be undocumented before their theft. Ethnographic objects may belong to an Indigenous community, which may not have the opportunity to document them or for which documentation would run counter to religious notions of secrecy. Other cultural objects in a private or public collection may be undocumented for practical reasons, such as lack of financial resources or technology. However, archaeological objects looted from the ground are unique because, as a category, it is inherently not possible to document them before they are looted.

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Theft and Illegal Excavation 201 of terrorism and armed conflict.4 Their undocumented nature also presents particular challenges to the legal system. For this reason, distinctive legal doctrines have developed to counter trafficking in undocumented archaeological objects. These specialized doctrines supplement the standard legal approaches to the recovery of stolen documented art works and cultural objects. These doctrines serve the policy goal of decreasing market demand for undocumented or poorly documented archaeological objects and thereby discouraging the looting of archaeological sites. This chapter will look briefly at the role of the international market in antiquities and its detrimental effects on the preservation of knowledge about the past. The chapter then turns to the domestic laws adopted by States to control the retrieval of archaeological objects and to determine the ownership of objects once removed from the ground. Recognition of State ownership laws, which vest ownership of undiscovered antiquities in the State, is a crucial element in the regulatory regime for controlling disposition of archaeological artefacts. The article then examines the international legal response to controlling the trade in archaeological artefacts. The first of these was promulgation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention),5 followed by the 1995 UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects (UNIDROIT Convention).6 Finally, the United Nations Security Council has adopted a series of sui generis resolutions that focus on the trafficking of archaeological objects from Iraq and Syria.

2. The International Market in Antiquities The development of archaeology as a science began at the end of the eighteenth and the beginning of the nineteenth centuries. These scientific principles are based on the concept of stratigraphic context. Controlled, scientific excavation of archaeological sites permits the archaeologist and other scientists to determine the spatial and chronological relationship of the remains and to reconstruct aspects of past life such as economy, trade, health, diet, religious ritual and function, burial methods, family structure, political organization, technology, and literature. Artistic and utilitarian objects, faunal and 4 In April 2018, Spanish authorities arrested two antiquities dealers on suspicion that they were selling antiquities looted from the site of Cyrenaica in Libya by looters associated with the Islamic State or other terrorist organizations. Frédéric Loore, Trafic d’art et terrorisme: L’enquête de Paris Match rebondit en Espagne Paris Match 29 March 2018. 5 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (opened for signature 14 November 1970, entered into force 24 April 1972) 823 UNTS 231. 6 UNIDROIT Convention on Stolen or Illegally Exported Cultural Property (opened for signature 24 June 1995, entered into force 1 July 1998) 34 ILM 1322.

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202 Patty Gerstenblith floral remains, architectural features, human remains, and their original contextual relationship to each other are all equally essential. This full body of contextualized information is a destructible, non-renewable cultural resource. Once it is destroyed, it cannot be recovered. The looting of archaeological sites destroys this knowledge and forever impairs our ability to understand our past and ourselves. A market for works of art has existed for centuries and was known even in antiquity.7 However, following the Second World War, the rapid development of interdisciplinary methodologies for the study of the past coincided with the growth of the international art market. This expansion of relevant scientific methodologies meant that more information could be recovered from the proper excavation of sites and, conversely, that looting of sites caused an increased loss to our knowledge and understanding of the past. Thus, the controlled excavation of archaeological sites, which is an inherently slow and painstaking process, inevitably conflicts with the desire of public and private collectors to have maximum numbers of objects available on the market with minimal regulation. Since the middle of the twentieth century, the looting of archaeological sites has increased to satisfy expanding market demand and has become a significant impediment to the study of the past. Looting afflicts countries as wealthy as the United States and the United Kingdom and as poor as Mali and Honduras. Ethnographic studies in many countries demonstrate that looters loot during times of armed conflict and political instability, as well as during peacetime, and are motivated primarily by the profit they earn. Looting activities respond to market demand for particular types of artefacts, and looting has moved from an occasional, opportunistic activity to a sophisticated, well-funded, well-organized business in many countries.8 While it is important that looting be interdicted at sites, the 7 Margaret M. Miles, Art as Plunder: The Ancient Origins of Debate About Cultural Property (Cambridge University Press, 2008), 156–7. Miles discusses the beginning of a private art market, as early as 146 bce, based on military plunder and hauls of artistic booty taken from the Roman conquests of Sicily, Greece, and Asia Minor. Conquests in the eastern Mediterranean, such as Sulla’s sack of Athens in 86 bce, brought additional copious amounts of art to Rome and the market. 8 The organized nature of site looting is documented in many disparate countries. See, for example, Simon Mackenzie and Tess Davis, ‘Temple Looting in Cambodia: Anatomy of a Statue Trafficking Network’ (2014) 54 British Journal of Criminology 722 (historic patterns of looting of temple sites in Cambodia); C. H. Roosevelt and C. Luke, ‘Looting Lydia: The Destruction of an Archaeological Landscape in Western Turkey’ in N. Brodie and others (eds), Archaeology, Cultural Heritage, and the Antiquities Trade (University Press of Florida 2006) 173 (looting in Turkey); Morag K. Kersel, ‘License to Sell: The Legal Trade of Antiquities in Israel’ (PhD dissertation, University of Cambridge, 2006) (Israel and Palestine); Peter Watson and Cecilia Todeschini, The Medici Conspiracy: The Illicit Journey of Looted Antiquities—From Italy’s Tomb Raiders to the World’s Greatest Museums (PublicAffairs 2006) (Italy); Roger Atwood, Stealing History: Tomb Robbers, Smugglers, and the Looting of the Ancient World (St Martin’s Press 2004) (Peru). The looting of sites in the Middle East and North Africa is well documented. See, for example, Sarah Parcak and others, ‘Satellite evidence of archaeological site looting in Egypt: 2002–2013’ (2016) 349 Antiquity 188; Jesse Casana, ‘Satellite Imagery-Based Analysis of Archaeological Looting in Syria’ (2015) 78 Near Eastern Archaeology 142; Elizabeth C. Stone, ‘An Update on the Looting of Archaeological Sites in Iraq’ (2015) 78 Near Eastern Archaeology 178; Susan Kane, ‘Archaeology and Cultural Heritage in Post-revolution Libya’ (2015) 78 Near Eastern Archaeology 204; Neil Brodie, ‘Why Is No One Talking about Libya’s Cultural Destruction?’ (2015) 78(3) Near Eastern Archaeology 212;

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Theft and Illegal Excavation 203 law in market countries should impose detrimental consequences on intermediate and end-market sellers and purchasers in order to disrupt the market and thereby reduce the economic incentive to loot.

3. State Control over Archaeological Artefacts Laws regulating cultural heritage have a long history, have taken different forms, and have aimed to curtail different types of conduct.9 Some of the earliest such laws were adopted in Greece10 and Egypt11 as they threw off the yoke of the Ottoman Empire.12 These laws aim to protect sites, limit permitted excavation to those with certain qualifications, and provide for the disposition of artefacts recovered through excavation.

3.1 Control over Archaeological Excavation and Artefacts 3.1.1 Control over Archaeological Exploration and Excavation Most States control terrestrial and underwater exploration and excavation of archaeological remains. Italy’s Code of the Cultural and Landscape Heritage is a typical example.13 The regulation applies to cultural property defined as ‘immovable and movable things . . . which possess artistic, historical, archaeological or ethno-anthropological Morag M. Kersel and Meredith S. Chesson, ‘Looting Matters: Early Bronze Age Cemeteries of Jordan’s Southeast Dead Sea Plain in the Past and Present’ in Sarah Tarlow and Liv Nilsson Stutz (eds), The Oxford Handbook of the Archaeology of Death and Burial (Oxford University Press 2013) 677, 680; Selima Ikram and Monica Hanna, ‘Looting and Land Grabbing: The Current Situation in Egypt’ (2013) 202 Bulletin of the American Research Center in Egypt 34; Elizabeth C. Stone, ‘Patterns of looting in Southern Iraq’ (2008) 82 Antiquity 125. 9 Laws to protect cultural remains date back to a statute of Pope Pius II in 1462 intended to protect the secular and ecclesiastical remains of Rome. Alain Schnapp, The Discovery of the Past (Ian Kinnes and Gillian Varndell trs, Abrams 1997) 339–40. 10 Greece enacted its first laws protecting its archaeological heritage in 1834, but national ownership was embodied in its Law 5351/32 ‘On Antiquities’ of 1932. Neil J. Brodie, ‘Historical and Social Perspectives on the Regulation of the International Trade in Archaeological Objects: The Examples of Greece and India’ (2005) 38 Vanderbilt Journal of Transnational Law 1051, 1057. 11 Egypt has enacted a series of laws protecting its cultural heritage, beginning with an ordinance of 1835, Ordonnance du 15 août 1835 portant mesures de protection des antiquités. 12 An 1884 Ottoman law established imperial ownership of all artifacts excavated in the Ottoman Empire and protected archaeological sites by requiring excavation permits. Morag M. Kersel, ‘The Trade in Palestinian Antiquities’ (2008) 33 Jerusalem Quarterly 21, 24. Kersel points out that this law can be viewed either as a national ownership law, in that all antiquities were owned by the National Museum in Constantinople, or as a legalization of cultural imperialism by appropriating artifacts from the regions of the Empire. 13 D Lgs no 42, 22 January 2004, GU Supp no 45, 24 February 2004.

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204 Patty Gerstenblith interest’.14 The Ministry has the exclusive right to conduct ‘archaeological searches and, in general, activities for finding [cultural property] in any part of the national territory’.15 It also has the authority to grant concessions to public or private subjects to carry out these activities and searches.16 Anyone who accidentally discovers cultural property must ‘report the discovery to the superintendent or mayor or to the public security authorities within twenty-four hours and shall provide for the temporary conservation of the things, leaving them in the condition and place in which they were found’.17 Many countries follow a similar pattern of vesting exclusive control over the conduct of archaeological exploration and excavation in the relevant government ministry.18 Two countries with differing systems are the United States and Great Britain (England, Wales and Northern Ireland). In the United States, due to the constitutional limitation on Congressional authority, the federal government controls archaeological excavation only on federally owned or controlled lands, in consultation with Native American tribes for exploration on tribal lands.19 The state governments control excavation on state-owned lands.20 In most cases, a landowner is free to conduct excavation on his or her own privately owned land. However, this approach has been changing. In at least half the states, excavation of Native American burials on private land is restricted,21 and in a few states all excavation, even on private land, requires a permit issued by the state government.22 14 Ibid, art 10. Italy regulates exploration for archaeological and historical objects found in the seabed extending for 12 marine miles from its national waters under the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (opened for signature 2 November 2002, entered into force 2 January 2009) 2562 UNTS 3, art 94. 15 Italy Code of the Cultural and Landscape Heritage (n 12) art 88 (1). 16 Ibid, art 89 (1). 17 Ibid, art 90 (1). 18 For example Egypt: Law No 117 of the Year 1983 concerning the Issuance of Antiquities’ Protection Law art 5 accessed 21 May 2018; Jordan: Law of Antiquities, Law No 21 for the year 1988, amended by Law No 23 for the year 2004 arts 2(11), 14–20 accessed 21 May 2018; Regulations for Archaeological Projects in Jordan based on the provisions of the Jordanian Antiquities Law Number 21 for the year 1988 and its amendments accessed 28 May 2018. 19 Archaeological Resources Protection Act of 1979, 16 USC §§ 470aa-470hh. Sherry Hutt, ‘The Archaeological Resources Protection Act at 30: Permits for Data Recovery on Federal Lands, a Law and Policy Analysis’ (2010) 13 Great Plains Natural Resources Journal 12. 20 For example, Colorado Revised Statutes § 24-80-401(1) (vesting title to archaeological and other historical resources found on public land in the state government); Maine Revised Statutes Ann, tit 27, § 374 (setting out regulations for obtaining a permit to excavate). 21 P. Gerstenblith, ‘The Public Interest in the Restitution of Cultural Objects’ (2001) 16 Connecticut Journal of International Law 197, 233, and n 156. While not necessarily vesting ownership in the state government, these statutes generally recognize a right of restitution to lineal descendants or culturally affiliated tribes, thus denying ownership of the cultural objects to the real property owner in which the burials are located. 22 The Historic Preservation and Archeology Act, IC § 14-3-3.4–15 (Indiana law requiring a plan for archaeological excavation but not limited to public land); Whitacre v State, 619 NE 2d 605 (Ind 1993) (upholding validity of Indiana law requiring an archaeological plan).

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Theft and Illegal Excavation 205 The United Kingdom has a similar bifurcation of control over public land and rivately owned land. However, under the Treasure Act of 1996 and subsequent amendp ments, which codify the common law doctrine of treasure trove, certain archaeological objects belong to the Crown rather than to the landowner or finder. The Treasure Act of 1996 changed the common law definition of ‘treasure trove’ to include any object which is at least 300 years old; coins at least 300 years old with a gold or silver content of at least 10 per cent by weight (if there are ten or more coins, then the metallic content is not rele vant); and any object found in geographic and temporal proximity to an object in the first two categories.23 Prehistoric base-metal assemblages found after January 2003 also qualify as treasure.24 The cultural heritage laws of India relate to the British model and adopt the concept of treasure trove in which finds must be reported to the government, which has the right to acquire the find. If the government does not acquire it, the find is divided between the finder and the landowner.25

3.1.2 Control of the Market and Export A second aspect of regulation is the status of an internal market in antiquities. Many countries prohibit all trade in antiquities but allow the continued possession of those antiquities acquired before the enactment of the legislation prohibiting trade and sometimes subject to other requirements, such as registering the antiquities with the relevant ministry.26 Another question that arises is whether the permanent export of legally 23 J. Carleton, ‘Protecting the National Heritage: Implications of the British Treasure Act 1996’ (1997) 6 International Journal of Cultural Property 343. 24 See ‘Summary of the Treasure Act’ accessed 18 June 2018. Continuing gaps in the use of ‘treasure trove’ to protect cultural heritage were apparent with the discovery of the Crosby Garrett helmet, a Roman cavalry helmet in remarkably good condition, found by a metal detectorist in 2010. Because it was composed primarily of copper, the helmet did not qualify as treasure, and the landowner and finder were deemed the owner. The helmet was auctioned at Christie’s for US$3.6 million. ‘Crosby Garrett Helmet Found in Britain Sells for £2.3m’ The Telegraph (7 October 2010) accessed 21 May 2018. Discussions have opened in Parliament to redefine ‘treasure’ to include any objects worth more than £10,000, regardless of their metal content. E. Addley, ‘Golden Rule: Plan to Redefine “Treasure” to Help UK Museums Buy Finds’ The Guardian (1 February 2019) accessed 19 February 2019. 25 Brodie, ‘Historical and Social Perspectives’ (n 10) 1059–60. However, this statutory pattern does not vest ownership in the State. A new antiquities bill for India was proposed in 2017. A. Saxena and R. Pandey, ‘Worse than Pakistan? A comparative analysis of Heritage Protection Laws in India and Pakistan’ Swarajya (10 November 2017) accessed 28 November 2017; A. Saxena and J. Sai Deepak, ‘Gods For Sale: Misplaced Priorities and Mercantilism in the Antiquities Bill 2017’ Swarajya (28 Oct 2017) accessed 28 November 2017. 26 Egypt Law No 117 (n 18), arts 7, 8 (prohibiting trade in antiquities but allowing continued possession of antiquities ‘whose ownership or possession was already established [in 1983]’); Jordan (n 18), arts 8(b), 23 (allowing private possession of antiquities but prohibiting all trade without permission of the Ministry); Turkey Regulation on the Trade of Movable Cultural Property and the Audit of Workplaces and Warehouses pertaining to such trade, Official Gazette Issue 18,278 (1 November 1984) (allowing

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206 Patty Gerstenblith owned antiquities is prohibited or permitted with an export licence, which may be granted infrequently (or never).27 Some countries, such as the United Kingdom, require export licences but grant them relatively easily, while the United States has no system for export controls specific to archaeological artefacts. Export of objects from the United Kingdom that are deemed significant to British history under the Waverley criteria can be prohibited for a limited period of time while museums attempt to raise the funds to purchase the object.28 Typically, countries that limit export of archaeological objects grant licences only for temporary export for the purpose of exhibition, study, or conservation in foreign institutions.29

3.2 State Ownership of Antiquities Many States with a rich archaeological heritage have enacted laws that vest ownership of antiquities in the State. Such laws create ownership rights that are recognized even when antiquities are removed from their country of origin and are traded in foreign nations. States have enacted vesting laws for two purposes. The primary reason for such vesting laws is to deny title to the finder and any subsequent purchaser with the purpose of diminishing the economic incentive to loot archaeological sites. The second is to allow the country of origin to realize the current economic value, through tourism, scholarship, and education, that derives from its cultural past. An example of a vesting law is Article 91 of Italy’s Code of the Cultural and Landscape Heritage, which states: ‘The things [defined as cultural property under article 10], found underground or in sea beds by whomsoever and howsoever, shall belong to the State and, depending on whether they be immovable or movable, shall become part of government property or of its inalienable assets.’30 An accidental finder who has permission internal trade in cultural property under limited circumstances) accessed 21 May 2018. Israel is atypical in that it allows a legal trade in antiquities acquired before enactment of its vesting law in 1978. Dealers in antiquities must be licensed and permission is required to export any antiquities. Antiquities Law No 27 arts 15–22 accessed 21 May 2018; Kersel, ‘The trade in Palestinian antiquities’ (n 12) 25–26. 27 Jordan (n 18), art 24. 28 Department for Culture, Media & Sport, ‘Export Controls on Objects of Cultural Interest’ March 2015 accessed 17 June 2018. See also Netherlands Heritage Act 2016 s 4.23 (requiring a licence for export of cultural goods from the European Union unless certain criteria are met) accessed 17 June 2018. 29 For example, Italy Code of the Cultural and Landscape Heritage (n 13), art 65 (prohibiting permanent export), art 66 (allowing export of archaeological artifacts for ‘events, exhibits or expositions of great cultural interest’). 30 Ibid (n 13), art 91(1). Other examples include Egypt (n 18), art 6. Turkey has vested ownership of antiquities in the nation at least from the time of a 1906 decree. Republic of Turkey v OKS Partners, 1994 US Dist LEXIS 17032, *3 (D Mass 1994), Law on the Conservation of Cultural and Natural Property Law

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Theft and Illegal Excavation 207 of the landowner to search the land on which the object is found, and the holder of a concession from the Ministry, are entitled to a reward not to exceed one-quarter of the value of the object.31 Despite the provision that the finder may be entitled to a reward, the important element for analysis of State ownership is that the State is the owner ab initio, without need for a transfer of title to the State or any judicial or administrative process and regardless of the payment of the reward. State ownership of archaeological artefacts raises two questions concerning the status of such objects as they move through the international market to other countries. On the one hand, are such laws distinguishable from export controls, which are often not enforced by other countries in the absence of a specific agreement to do so? On the other hand, are objects subject to State ownership characterized as stolen property, even though they had never been in the physical possession of the foreign State that asserts ownership? These questions have been answered in a series of judicial decisions in two of the largest art market countries, the United States and the United Kingdom.

3.3 Recognition of State Ownership in Foreign Courts 3.3.1 Foreign State Ownership in US Courts The status of archaeological objects that are subject to foreign State ownership was first litigated in 1974 in United States v Hollinshead.32 Hollinshead involved the taking of part of a Maya stele from Guatemala, an act which the Ninth Circuit Court of Appeals held constituted theft. The stele fragments were smuggled out of Guatemala through Belize and brought into the United States, undetected by United States Customs officials. The defendants were convicted of conspiracy to transport stolen property in international commerce in violation of the National Stolen Property Act (NSPA).33 The more analytical and significant decision in United States v McClain34 involved the prosecution and conviction of a group of dealers for conspiring to transport in interstate commerce pre-Columbian artefacts taken in violation of Mexico’s ownership of antiquities.35 The primary argument raised by the McClain defendants was that a US court should not accept the characterization given to property ownership by a foreign nation, nor should it enforce foreign law, including foreign export controls. The McClain Number 2863, 23/07/1983 art 5 accessed 21 May 2018. 31 Italy Code of the Cultural and Landscape Heritage (n 13), art 92(1). Under some circumstances the finder may be entitled to a reward up to one-half the value of the objects found: art 92(2). 32 495 F 2d 1154 (9th Cir 1974). 33 18 USC §§ 2314–2315 (prohibiting the transport or transfer ‘in interstate or foreign commerce [of] any goods . . . for the value of $5,000 or more’ as well as receiving, possessing, storing, selling, or disposing of such goods with knowledge that they were stolen). 34 545 F 2d 988 (5th Cir 1977); 593 F 2d 658 (5th Cir 1979). 35 McClain 545 F 2d 988, 991–2. The Fifth Circuit reversed the defendants’ convictions on substantive counts twice, finally allowing only their conviction on a conspiracy charge to stand because the court held that only Mexico’s statute enacted in 1972 was clearly an ownership law.

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208 Patty Gerstenblith court held that it was not relying on the illegal export of the artefacts to find a violation of US law but, rather, that the artefacts were stolen property. The characterization of the artefacts as stolen is decided under US law, but the law of the country of origin determines the prior issue of who owns the property.36 It is therefore necessary to distinguish between an ownership law, which vests title to the artefacts in the State, and an export control, which limits the export of objects that are otherwise legitimately owned by an individual. Twenty-five years later, a prominent antiquities dealer, Frederick Schultz, was convicted in the most significant United States decision concerning the international market in antiquities for this generation.37 The facts of the Schultz case give insight into illegal elements of the international market. Schultz and his co-conspirator Tokeley-Parry created an ‘old’ collection, to which the objects involved in the conspiracy allegedly belonged, with extensive fake provenance information.38 Schultz was charged with one count of conspiring to violate the NSPA by dealing in antiquities taken in violation of Egypt’s ownership law, Law 117, enacted in 1983. The trial court engaged in an extensive analysis of the nature of the Egyptian law to determine whether it was truly a vesting law or merely an export control. One of the most important criteria was whether Law 117 was enforced internally within Egypt—that is, whether Egyptians who discovered artefacts were required to turn them over to Egyptian authorities and whether those who failed to do so were prosecuted. Egypt’s Law 117 defines an ‘antiquity’ as any movable or immovable property that is a product of any of the various civilizations or any of the arts, sciences, humanities and religions of the successive historical periods extending from prehistoric times down to a point one hundred years before the present, so long as it has either a value or importance archaeologically or historically that symbolizes one of the various civilizations that have been established in the land of Egypt or that has a historical relation to it . . .39

It further states: All antiquities are considered public property—except for charitable and religious endowments ... It is impermissible to own, possess or dispose of antiquities except pursuant to the conditions set forth in this law and its implementing regulations.40

36 United States v Portrait of Wally 105 F Supp 2d 288, 292 (SDNY 2000) (‘federal law determines whether property has been stolen, local law—Mexican law in McClain—controls the analytically prior issues of (a) whether any person or entity has a property interest in the item such that it can be stolen, and (b) whether the receiver of the item has a property interest in it.’). 37 United States v Schultz 178 F Supp 2d 445 (SDNY 2002), aff ’d 333 F 3d 393 (2d Cir 2003). 38 Peter Watson, ‘The investigation of Frederick Schultz’ (2002) 10 Culture Without Context 21. See also Schultz 333 F 3d 393, 396–8. Tokeley-Parry was convicted for his role in the Schultz conspiracy. R v Tokeley-Parry [1999] Crim LR 578 (CA 1999). 39 Law No 117 (n 18), art 1. 40 Ibid art 6.

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Theft and Illegal Excavation 209 Other articles prohibit trading in antiquities and private possession except of those antiquities privately owned before Law 117 was enacted. The trial court and the appellate court concluded that Law 117 created an ownership interest in antiquities in the State. The courts noted that the Egyptian law unequivocally asserts State ownership41 and that it is vigorously enforced within Egypt, not just upon illegal export.42 The courts thus reiterated that property owned by a foreign sovereign under a vesting law and removed without permission is to be treated no differently than any other type of stolen property, even if the State has not previously taken physical possession of the object. The McClain and Schultz decisions set out four elements required for a US court to recognize that an undocumented archaeological object is owned by a foreign State: (1) the vesting law must be clearly an ownership law on its face; (2) the State’s ownership rights must be enforced domestically and not only upon illegal export; (3) the object must have been discovered within the territorial boundaries of the country claiming ownership; and (4) the object must have been located within the country at the time the law was enacted. The purpose of the first requirement is that the vesting must be clear and unambiguous so as to give notice to US citizens who might be adversely affected by these laws, particularly in a criminal prosecution.43 The purpose of the second requirement is to distinguish State ownership from export controls, because export controls are generally not enforced by another State, absent a specific agreement to do so. The purpose of the third requirement is to ensure that the ownership law is not given extraterritorial effect and of the fourth requirement to ensure that the ownership law is not given retroactive effect. Relatively few criminal prosecutions based on State ownership have been brought since the Schultz case. A New York antiquities dealer, Nancy Wiener, was charged in 2016 with possession of and conspiracy with intent to possess, buy, smuggle, launder, and sell antiquities stolen from Afghanistan, Cambodia, China, India, Pakistan, and Thailand, based on their respective vesting laws.44 However, the concept of State ownership has also served as the underpinning to other types of legal actions and voluntary returns. Based on its ownership rights, a foreign State may act as a private litigant and bring a civil replevin suit to recover stolen antiquities.45 State ownership formed the backdrop 41 Schultz 178 F Supp 2d 447. 42 Ibid 448. 43 Schultz 178 F Supp 2d 445 (n 36) 447; McClain 545 F 2d 988 (n 33) 997–1002. As these elements are deduced from two criminal prosecutions, it is not certain whether the same standard of clarity would be required in non-criminal litigation, such as a civil replevin action or a civil forfeiture action (which is nonetheless a quasi-criminal proceeding). 44 New York v Nancy Wiener, Criminal Complaint (21 December 2016); Tom Mashberg, ‘Prominent Antiquities Dealer Accused of Selling Stolen Artifacts’ The New York Times (21 December 2016) accessed 28 November 2017. 45 For example, Turkey recovered the Lydian Hoard, a group of over 360 artifacts acquired by the Metropolitan Museum in the 1960s (Republic of Turkey v Metropolitan Museum of Art 762 F Supp 44 (SDNY 1990)), and the Elmali hoard of 1750 rare ancient coins (Republic of Turkey v OKS Partners (n 30)).

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210 Patty Gerstenblith for numerous negotiated returns of antiquities from US museums. Since 2006, the Metropolitan Museum of Art in New York,46 the Boston Museum of Fine Arts,47 the Princeton Art Museum,48 the J. Paul Getty Trust,49 and the Cleveland Art Museum50 have returned approximately one hundred works of ancient art and antiquities to Italy, as well as additional artefacts to Greece51 and Cambodia.52 In addition, the private collector Shelby White53 and the New York dealer Jerome Eisenberg of Royal Athena Galleries54 have returned artefacts to Italy. 46 Agreement between the Ministry for Cultural Heritage and Activities of the Italian Republic and the Metropolitan Museum of Art (21 February 2006). 47 Information about the agreement and the objects returned are available at accessed 18 June 2018. 48 Cass Cliatt, ‘Princeton University Art Museum and Italy sign agreement over antiquities’ (30 October 2007) accessed 28 November 2017. 49 Italian Ministry of Culture and the J. Paul Getty Museum sign Agreement in Rome (1 August 2007) accessed 28 November 2017. The Getty Museum returned a sculpted head of the god Hades to Sicily in early 2016. A matching fragment of the beard had been found at the site of a sanctuary near the ancient city of Morgantina. The head was acquired by the Getty Museum at about the same time it acquired the cult goddess statue, which was returned to Sicily and is on display in the local museum of Aidone. Alessandra Ziniti, ‘Torna in Sicilia anche la Testa di Ade. Il Paul Getty Museum restituisce il reperto trafugato a Morgantina’ L’Espresso (27 January 2016) accessed 28 November 2017. 50 Steven Litt, ‘Cleveland Museum of Art Strikes Deal with Italy to Return 14 Ancient Artworks’ Cleveland Plain Dealer (19 November 2008) accessed 28 November 2017. 51 Hugh Eakin, ‘Getty Museum Agrees to Return Two Antiquities to Greece’ The New York Times (11 July 2006) B1 (a gold crown and a kore sculpture). 52 Metropolitan Museum of Art to Return Two Khmer Sculptures to Cambodia (3 May 2013) accessed 16 November 2017; Cleveland Museum of Art Returns Khmer Sculpture and Is Entering Into An Agreement for Cultural Cooperation with Cambodia (11 May 2015) accessed 16 November 2017; Statement from the Norton Simon Museum and the Norton Simon Art Foundation Concerning the ‘Temple Wrestler’ (6 May 2014) accessed 16 November 2017; Denver Art Museum Returns Khmer Sculpture Torso of Rama to Cambodia (26 February 2016) accessed 16 November 2017. Christie’s and Sotheby’s each returned a sculpture: Tom Mashberg and Ralph Blumenthal, ‘Disputed Statue to be Returned to Cambodia’ The New York Times (12 December 2013) accessed 28 May 2018; Tom Mashberg and Ralph Blumenthal, ‘Christie’s to Return Cambodian Statue’ The New York Times (6 May 2014) accessed 16 November 2017. All of these sculptures came from the same temple complex of Prasat Chen, part of the archaeological site Koh Ker. 53 Elisabetta Povoledo, ‘Collector Returns Art Italy Says Was Looted’ The New York Times (18 January 2008) B1; Julie Bloom, ‘Collector to Return Antiquities to Greece’ The New York Times (12 July 2008) B8. 54 Ariel David, ‘Looted Art Returns to Italy from NY’ Washington Post (6 November 2007) accessed 10 December 2017.

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Theft and Illegal Excavation 211 In contrast to private civil litigation brought by a foreign government, since 1997 the United States government has become the primary litigant in the recovery of archaeo logical artefacts through the mechanism of civil forfeiture. The case United States v An Antique Platter of Gold represents a significant turning point in the government’s use of civil forfeiture based on the theory that the phiale at issue, as stolen property, was imported ‘contrary to law’ in violation of the NSPA.55 The use of civil forfeiture, based to a considerable extent on violation of the Customs statute—often because the object is characterized as stolen property or because of a misdeclaration of value or country of origin56—alters the burdens of proof and spares the country of origin the expense and difficulties of litigation in a foreign country. These different types of forfeitures tend to work in tandem in that an importer is most likely to make a false declaration, particularly of the country of origin, when the import would violate a restriction under the Convention on Cultural Property Implementation Act, the United States implementing legislation for the 1970 UNESCO Convention, or when the country of origin is known to have a national ownership law. This is illustrated by the 2017 forfeiture of 3450 ancient cuneiform tablets and clay bullae acquired by the Hobby Lobby Corporation for its Museum of the Bible, as well as of an additional 144 cylinder seals and US$3 million.57 In this case, the archaeological artefacts, which originated in Iraq, were falsely declared as to what they were, as originating in Turkey and Israel, and as of significantly lower values in order to evade Customs scrutiny. Citing Iraq’s ownership of archaeological artefacts dating back to 1936, as well as the false dec larations, the US government forfeited these artefacts as imported contrary to law.

3.3.2 Recognition of State Ownership in UK Courts The UK decisions in Government of the Islamic Republic of Iran v The Barakat Galleries Ltd58 involved application of Iran’s State ownership law to determine the disposition of a cache of antiquities imported into England by a dealer, Barakat Galleries. These artefacts consisted of eighteen chlorite jars, bowls, and cups, allegedly looted from burials in the Jiroft region of Iran. Asserting that the antiquities found in London were taken in violation of its national ownership law, Iran sued Barakat in conversion to recover the objects.59 The parties agreed that the law of Iran, the lex situs of the antiquities at the time title was created, decided the question of title. The trial court examined the various laws of Iran that pertain to its archaeological heritage, concluding that none of these statutory 55 991 F Supp 222 (SDNY 1997), aff ’d on other grounds 184 F 3d 131 (2d Cir 1999). The lower court held that the phiale was forfeitable both because of misdeclarations as to value and country of origin and because it was stolen property. The Second Circuit Court of Appeals affirmed only the first basis. 56 ‘Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall be treated as follows: (1) The merchandise shall be seized and forfeited if it–(A) is stolen, smuggled, or clandestinely imported or introduced.’ 19 USC § 1595a(c). 57 United States v Approximately Four Hundred Fifty (450) Cuneiform Tablets et al CV17-3980 (EDNY 2017). The US$3 million was forfeited in place of ‘dissipated’ imported objects that were no longer in the possession of Hobby Lobby. 58 [2007] EWHC 705 (QB), revd [2007] EWCA Civ 1374; [2008] 1 All ER 1177. 59 [2007] EWHC 705 (QB).

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212 Patty Gerstenblith enactments made a clear statement of ownership in the State and commenting that State ownership could not be established ‘by default or as a matter of inference’.60 Because acquisition by means of a State ownership law was a means available only to sovereigns, the trial court held that the law was public in nature and therefore Iran’s claim would not be justiciable in a foreign court. In an extensive decision, the appellate court reversed,61 holding first that a claimant could bring a cause of action in conversion based only on an immediate right to possession, without having to have a proprietary right as well.62 In determining the nature of Iran’s interest in the antiquities, the appellate court utilized a more functional or substantive approach and articulated the standard as not the label which foreign law gives to the legal relationship, but its substance . . . The issue with which we are concerned is whether the rights enjoyed by Iran in relation to the antiquities equate to those that give standing to sue in conversion under English law.63

Thus, rather than looking exclusively to the literal terms of the Iranian law, the court considered the fundamental nature of property ownership, which consists of a bundle of individual rights, such as the right to transfer inter vivos or at death, to possess, to exclude, and to lease. It is whether an individual or entity possesses these rights that determines the nature of the interest in the property.64 The court concluded that Iran’s 1979 Legal Bill confers on the State both ownership and an immediate right to possession of newly discovered antiquities.65 While the 1979 Legal Bill is not clear in stating national ownership, it nonetheless grants to the State all the rights that are incidents of ownership. The court also concluded that it is not possible to identify anyone other than Iran who is the owner of newly discovered antiquities. Because a foreign State does not have jurisdiction to enforce its laws outside its own territory, the courts of a foreign State will not exercise its jurisdiction ‘in aid of an attempt by the foreign state to act in excess of its jurisdiction’.66 While acknowledging that English courts would not enforce the penal laws of another State,67 the court concluded that the vesting of State ownership in the 1979 Legal Bill was not penal because it was not retroactive and it did not deprive an owner of an existing interest in the artefacts. The Iranian law only determined the ownership of previously unowned

60 Ibid, para 59. For more detailed discussion of the trial court decision, see Patty Gerstenblith, ‘Schultz and Barakat: Universal Recognition of National Ownership of Antiquities’ (2009) 14 Art Antiquity and the Law 29. 61 Islamic Republic of Iran v Barakat Galleries Ltd [2007] EWCA Civ 1374, [2008] 1 All ER 1177. 62 Ibid, paras 19–31. 63 Ibid, para 49. 64 Ibid, para 73. See also Daily Transcript (9 October 2007) 17–19. 65 Barakat Galleries Ltd (n 61), paras 84, 86. Because the parties agreed that the Jiroft antiquities at issue in the case left Iran between 2000 and 2004, the 1979 Legal Bill determined State ownership. 66 Ibid, para 97. 67 Ibid, paras 105–6.

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Theft and Illegal Excavation 213 antiquities.68 Recognizing the need to distinguish ownership from export controls, and referring to several earlier cases that touched on national ownership of cultural objects, the court held that ‘when a state owns property in the same way as a private citizen there is no impediment to recovery’.69 Whether Iran needed to have taken actual possession of the artefacts while they were in Iran in order to recover them in England depended on how it acquired ownership. If it acquired title by confiscation or compulsory process, then it could not recover the property unless it first had physical possession. However, Iran did not first have to have possession because Iran’s title was conferred by legislation, which the court called a ‘patrimonial’ claim.70 In reaching this conclusion, the court cited the outcomes both in Schultz and in R v Tokeley-Parry. Both parties accepted that a patrimonial claim is simply a claim for property and could be asserted by both individuals and States.71 The court further held that, even if Iran’s ownership law were a public law, British courts are not barred from enforcing a public law unless it is against public policy to do so.72 In judging public policy, the court stated: In our judgment, there are positive reasons of policy why a claim by a state to recover antiquities which form part of its national heritage and which otherwise complies with the requirements of private international law should not be shut out by the general principle invoked by Barakat. Conversely, in our judgment it is certainly contrary to public policy for such claims to be shut out . . . There is international recognition that states should assist one another to prevent the unlawful removal of cultural objects including antiquities.73

The court then cited international instruments to which the United Kingdom is a party, including the 1970 UNESCO Convention, the European Union’s Council Directive 93/7 on the return of cultural objects unlawfully removed from the territory of a Member State, and the Commonwealth scheme for the protection of the material cultural heri tage. While acknowledging that none of these legal instruments was directly applicable to this case, the court interpreted them as indicating ‘international acceptance of the desirability of protection of the national heritage’ and the need for mutual assistance 68 While acknowledging that some earlier case law indicated that export controls on cultural objects are not enforceable in foreign courts, such as Attorney-General of New Zealand v Ortiz [1982] 3 All ER 432, [1982] QB 349, rev’d [1982] 3 All ER 432, [1984] AC 1, aff ’d [1983] 2 All ER 93, [1984] AC 1, the court declined to speak definitively on this question, citing instead the European Union Return of Cultural Objects Regulation, SI 1994/501, which prohibits export of such cultural objects without an export license and requires other EU Member States to return such objects. The current EU instruments are Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State (OJ L 159, 28.05.2014) and Regulation on the export of cultural goods, Council Regulation (EC) 116/2009 of 18 December 2008 on the export of cultural goods (OJ L 39 of 10.02.2009). 69 Barakat Galleries Ltd (n 61), para 136, citing Kuwait Airways Corp v Iraq Airways Co (no 3) [2002] UKHL 19 at 13, [2002] All ER 209 at 13, [2002] 2 AC 883, where the court stated: ‘governmental acts affecting proprietary rights will be recognised by an English court as valid if they would be recognised as valid by the law of the country where the property was situated when the law takes effect’. 70 Barakat Galleries Ltd (n 61), paras 143–50. 71 Transcript (n 64), 131, 150. 72 Barakat Galleries Ltd (n 61), paras 151–63. 73 Ibid, paras 154–5.

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214 Patty Gerstenblith among nations to protect that heritage. The court further recognized that if actual possession were required before a State could recover looted antiquities, as a practical matter such antiquities could never be recovered since such artefacts, by being looted directly from archaeological sites, are previously unknown and not part of a specific collection.74 The court thus concluded that it is British public policy to recognize the ownership claim of a foreign State to antiquities that are part of its cultural heritage.

3.3.3 Comparison of the US and UK Approaches The legal doctrine established in the Barakat decision harmonized the US and UK judicial approaches. The main differences in the analyses of State ownership seem to rest on the different levels of clarity required of the vesting law and the role of the fundamental nature of property ownership articulated in the two decisions. The Schultz court focused on two aspects of Egypt’s ownership law—what it said on its face and how it was applied domestically within Egypt. The Court of Appeal in Barakat downplayed both of these factors. This difference in the decisions likely stems from the fact that Schultz, like the earlier McClain case, was a criminal prosecution and that potential criminal defendants are entitled to notice in accord with due process rights as to what conduct is prohibited. On the other hand, the Barakat case was a civil action. The Hobby Lobby civil forfeiture complaint seems to support this because, while citing Iraq’s ownership law, the complaint did little to analyse it under the Schultz criteria. Nonetheless, the Court of Appeal in Barakat took a functional approach in analysing the Iranian law, looking to the fundamental nature of property ownership and then determining the owner based on an identification of who held the rights inherent in property ownership. As such, the Barakat decision displayed a more sophisticated understanding of fundamental property law principles. Both the Schultz and Barakat decisions considered the relationship between a foreign State’s prior possession of the artefacts at issue and the question of justiciability. McClain had answered this point: [I]n addition to the rights of ownership as understood by the common law, the N.S.P.A. also protects ownership derived from foreign legislative pronouncements, even though the owned objects have never been reduced to possession by the foreign government. Moreover, the earlier [decision in McClain] had considered the evidence of [prior statutes and the 1970 UNESCO Convention] holding nevertheless that neither statute nor treaty nor our historical policy of encouraging the importation of art more than 100 years old had the effect of narrowing the N.S.P.A. so as to make it inapplicable to artifacts declared to be the property of another country and illegally imported into this country.75

The Court of Appeal in Barakat echoed this point, stating: [Iran] asserts a claim based upon title to antiquities which form part of Iran’s national heritage, title conferred by legislation that is nearly 30 years old. This is a 74 Ibid, para 163.

75 McClain 593 F 2d 658 (n 34) 664.

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Theft and Illegal Excavation 215 patrimonial claim, not a claim to enforce a public law or to assert sovereign rights. We do not consider that this is within the category of case where recognition of title or the right to possess under the foreign law depends on the State having taken possession.76

The State may also be viewed as the owner based on its ‘constructive’ possession of the antiquities buried in the nation’s soil. Sir Sydney Kentridge, on behalf of Iran, analogized this type of ownership to that obtained by the Crown in treasure trove based on constructive possession. Possession sufficient to constitute ownership depends on the nature of the property at issue, a factor that is particularly relevant to ownership of undiscovered artefacts. One way to establish ownership is to exclude others from possessing the property or by establishing control over the property, as happens in salvage rights to sunken vessels.77 ‘[I]n a country like Iran or, for that matter, the United Kingdom, it is simply impossible for the Government to fence off every piece of land where there might be treasure hidden and to say, “We are taking possession of this.” Possession is achieved by statutory provisions.’78 This view recalls the Fifth Circuit’s statement in McClain (quoted in Schultz) that if the pre-Columbian artefacts were not considered owned by Mexico, ‘the Mexican government would be denied protection of the [NSPA] after it had done all it reasonably could do [to vest] itself with ownership to protect its interest in the artifacts . . . The state comes to own property only when it acquires such property in the general manner by which private persons come to own property, or when it declares itself the owner; the declaration is an attribute of sovereignty.’79 By the nature of the property as undiscovered antiquities, it was not practical for the government to have actual possession before their looting and illegal export. In all these cases, by taking ownership through statutory enactment, the relevant State had done everything the State practicably could have done. This perspective normalizes the role of State ownership, putting it on a par with other forms of ownership by both States and individuals. Protecting these rights in the courts of a foreign State should be viewed as recognition of sovereign authority to define ownership rights. Within the framework of both international and national law, the line dividing public and private property and the ability of a State to adjust the exact boundaries between them are recognized by other States, as a result of comity and of respect for the inherent authority of sovereign States.

3.3.4 Model Provisions on State Ownership of Undiscovered Cultural Objects One can see the influence of the Barakat and Schultz decisions in the Model Provisions on State Ownership of Undiscovered Cultural Objects promulgated by UNESCO and

76 Barakat Galleries Ltd (n 61), para 149. 77 Transcript (n 64) 101–3. 78 Transcript (n 64) 103. 79 McClain 545 F 2d 988 (n 34) 1002–3 (emphasis added).

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216 Patty Gerstenblith UNIDROIT in 2014.80 The focus of the Model Provisions is on conformity with the 1970 UNESCO Convention and the 1995 UNIDROIT Convention, discussed below, and on compliance with existing domestic law. The definition of cultural objects affected by State ownership follows the definitions of Article 1 of the UNESCO Convention and Article 2 of the UNIDROIT Convention and explicitly applies to artefacts found under the soil and underwater. The statement of ownership is clear and explicit: ‘Undiscovered cultural objects are owned by the State, provided there is no prior existing ownership.’81 This last element allows for ownership rights in a third party and avoids possible interpretation of the State ownership law as confiscatory in nature. Article 4, echoing article 3(2) of the UNIDROIT Convention, states that ‘[c]ultural objects excavated contrary to the law or licitly excavated but illicitly retained are deemed to be stolen objects’. This provision facilitates recovery of cultural objects and prosecution of those trafficking in such objects in another country. It is not clear what effect the Model Provisions have had on States adopting new State ownership legislation, but it provides a bridge for those States that have not yet ratified the UNIDROIT Convention or whose domestic law requires modification in order for the State to take full advantage of the recognition of State ownership of archaeological artefacts in foreign courts. State ownership is the most effective tool for enforcing the rights of the country of origin when the artefact is located in a destination market country. Given the low rate of ratification of the 1995 UNIDROIT Convention among market States, the usefulness of national ownership is likely to continue. The Model Provisions are a means to encourage countries of origin to conform their domestic laws in a way that makes them effective in the courts of foreign States.

4. International and Regional Legal Instruments Affecting the Status of Archaeological Artefacts 4.1 International Conventions Before UNESCO adopted the text of its 1970 Convention, it had laid the groundwork for the protection of archaeological artefacts through its 1956 Recommendation on 80 Model Provisions on State Ownership of Undiscovered Cultural Objects and Explanatory Report (2011) accessed 11 December 2017. Portugal, Law No 13/85 of 6th July 1985 art 31(3), and Belgium, Code of private international law, Law 16th July 2004 art 92, have adopted the principle of State ownership legislatively, although before promulgation of the model provisions. Tullio Scovazzi and Paolo G. Ferri, ‘Recent Developments in the Fight against the Illicit Export of Archaeological Objects: The Operational Guidelines to the 1970 UNESCO Convention’ (2015) 20 Art Antiquity & Law 195, 218–19. 81 Model Provisions on State Ownership of Undiscovered Cultural Objects and Explanatory Report (n 80) Provision 3.

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Theft and Illegal Excavation 217 International Principles Applicable to Archaeological Excavations,82 its 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property,83 and its 1968 Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works.84 While these recommendations are not binding instruments, they evince standard-setting soft law and presaged several elements of the 1970 UNESCO Convention.85 For example, the 1968 Recommendation set out principles for protecting cultural property from urban expansion and construction projects through criteria for survey, salvage, and preservation work as well as suggestions for economic incentives to comply. While applicable to more than just archaeological sites, these principles are of particular utility in protecting archaeological sites that may not be visible or known before a construction project begins. The 1956 Recommendation addressed principles that States should adopt to ensure appropriate archaeological research and measures to reduce clandestine excavations and illegal export of archaeological finds. The 1970 UNESCO Convention and the 1995 UNIDROIT Convention address the problem of the undocumented nature of archaeological objects and the difficulties in preventing their illegal trade. As of mid-2019, the 1995 UNIDROIT Convention has fortysix States Parties, while the 1970 UNESCO Convention has 140 States Parties. While the latter has considerably wider ratification, it also suffers from the drawback that States may choose their own method of implementation. As a result, the effectiveness of the 1970 UNESCO Convention is more difficult to assess. The 1995 UNIDROIT Convention pertains to private, rather than public, international law and requires uniform implementation among its ratifying States.86 While both conventions have the broader purpose of regulating the international trade in cultural objects, each has a very different approach to resolving the specific problem of trade in recently looted, undocumented archaeological artefacts. The effectiveness of these conventions for this purpose therefore depends on whether objects whose import is prohibited have to be specifically known or documented and what proactive steps a State Party needs to take if it wishes assistance from other States in limiting trade in undocumented antiquities. It should also be noted that those States Parties that are also members of the European Union must enact legislation implementing the European Union provisions regulating the movement of cultural objects: Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State87 and Regulation on the

82 5 December 1956 accessed 24 June 2018. 83 19 November 1964 accessed 24 June 2018. 84 19 November 1968 accessed 24 June 2018. 85 Patrick J. O’Keefe, Protecting Cultural Objects: Before and After 1970 (Institute of Art & Law 2017) 75–6. 86 For example, Italy Code of the Cultural and Landscape Heritage (n 12), art 87 (directly adopting all provisions of the 1995 UNIDROIT Convention). 87 OJ L 159, 28.05.2014.

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218 Patty Gerstenblith export of cultural goods.88 These provisions apply only to the movement of cultural goods among European Union Member States or upon export from the EU. Italy’s Code, enacted in 2004, is an example of comprehensive legislation implementing these European Union provisions, as well as the 1970 UNESCO and the 1995 UNIDROIT Conventions.89 The European Commission is now moving to adopt a Regulation on the Import of Cultural Goods that would limit the import of cultural goods from non-EU Member States.90

4.1.1 The 1995 UNIDROIT Convention The 1995 UNIDROIT Convention provides an effective solution to the problem of trade in undocumented archaeological objects. Article 3(2) states: ‘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’. This is, in effect, a codification of the principle of State ownership, defining any object removed in violation of a State ownership law as stolen property.91 However, similarly to Article 4 of the Model Provisions, it goes a step further. The definition of ‘stolen’ is not limited to removal in violation of State ownership but also applies to removal in violation of any local law regulating excavation or requiring an object be turned over to the State, even if the State does not claim ownership ab initio. Not only does this provision apply to a broader range of illegal conduct, but it also removes the difficulties of interpretation encountered in the US and Barakat decisions concerning whether a law is truly a vesting law. The drawback of the 1995 UNIDROIT Convention is its relatively limited number of ratifications, particularly among market States. But its characterization of illegally excavated artefacts as stolen property is the most effective solution to the problem of trade in undocumented archaeological artefacts.

4.1.2 The 1970 UNESCO Convention The problem of undocumented archaeological objects is more challenging under the 1970 UNESCO Convention, in part because the definition of cultural property in article 1 requires that it be ‘specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science’. Depending on its interpretation, 88 Council Regulation (EC) 116/2009 of 18 December 2008 on the export of cultural goods, OJ L 39 of 10.02.2009. 89 Code of the Cultural and Landscape Heritage (n 13), arts 74–86 (regarding export of cultural property from the territory of the European Union and restitution of cultural property illegally taken out of the territory of an EU Member State) and art 87 (implementing the UNIDROIT Convention). 90 Commission ‘Proposal for a Regulation on the Import of Cultural Goods’ COM (2017) 375 final, accessed 1 November 2017; Robert Peters, ‘The Protection of Cultural Property: Recent Developments in Germany in the Context of New EU Law and the 1970 UNESCO Convention’ (2016) 2 Santander Art and Culture Law Review 85, 98. 91 Lyndel V. Prott, Commentary on the UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects 1995 (Institute of Art and Law 1997) 32–4.

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Theft and Illegal Excavation 219 the designation requirement could prevent application of import restrictions to previously unknown cultural objects. Effectiveness of the 1970 UNESCO Convention depends on how a particular State Party interprets the designation requirement and the method of implementation enacted by the State Party. The States Parties adopted Operational Guidelines in 2015.92 The Guidelines note, in particular, the special challenges posed by the categories of products of archaeological and palaeontological clandestine excavations, elements of dismembered artistic or historical monuments and archaeological sites, and ethnological and Indigenous cultural items, particularly human remains, which are not specifically covered by the Convention.93

4.2 Models of Implementation of the 1970 UNESCO Convention Unlike the 1995 UNIDROIT Convention, the 1970 UNESCO Convention requires no specific form of implementation into domestic law by ratifying States. As a result, there is considerable variation in the method of import restriction, which affects the Convention’s efficacy with respect to undocumented archaeological artefacts. Despite this variation, implementation among market States tends to follow one of three m odels: reciprocal import restrictions, bilateral agreements, and hybrid approaches.

4.2.1 Reciprocal Restrictions Most State Parties to the 1970 UNESCO Convention have implemented import restrictions that simply prohibit the import of any cultural property that has been illegally exported from another State Party. These import restrictions are therefore reciprocal in nature and apply uniformly to all categories of cultural property that are subject to export control. Examples of this method of implementation include Canada,94 Australia,95 and Germany, which adopted new implementing legislation based on this approach in 2016.96 This approach is effective for confronting the trade in undocumented archaeological artefacts so long as there is no requirement that the objects subject to export control be individually listed or inventoried.

92 UNESCO 2015 Operational Guidelines for the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO, 2015) accessed 20 June 2018; Scovazzi and Ferri, ‘Recent Developments’ (n 80); O’Keefe, Protecting Cultural Objects (n 85), 50–3. 93 UNESCO (n 92), 6–7. 94 Cultural Property Export and Import Act, RSC 1985, c C-51 § 37(2). 95 Protection of Movable Cultural Heritage Act, as amended in 2011 s 14 (1). 96 Act on the Protection of Cultural Property (Cultural Property Protection Act) 8.6.2016, BGBl 1, 1914.

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220 Patty Gerstenblith

4.2.2 Bilateral Agreements Both the United States and Switzerland require a supplementary bilateral agreement to prevent the import of illegally exported cultural materials under the 1970 UNESCO Convention. However, the operation of the two systems is quite different. Switzerland implements article 3 of the Convention, so its import restrictions can apply to the broad range of cultural property as defined in article 1 of the Convention.97 The Ministry of Culture decides whether to enter into an agreement, there are no specific statutory requirements for doing so, and the agreements last for an indefinite period of time. As of mid-2018, Switzerland has agreements with eight States.98 The US implementing legislation, the Convention on Cultural Property Implementation Act (CPIA),99 also requires supplementary bilateral agreements in order to impose import restrictions, but these implement only article 9 of the Convention. This means that the bilateral agreements apply only to archaeological and ethnological objects.100 The CPIA defines an archaeological object, in part, as an object of cultural significance that is at least 250 years old and is ‘normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water’. The 250year age requirement further limits the effectiveness of the CPIA with respect to objects of historical archaeology.101 The process for achieving a bilateral agreement is onerous and cumbersome. A State Party initiates the process by submitting a formal request to the United States through diplomatic channels with documentation that the four statutory criteria mandated by the CPIA for entering into a bilateral agreement are satisfied.102 The request is reviewed by the Cultural Property Advisory Committee, whose members are appointed by the President and represent the interests of museums and the public, are experts in the international trade, or are archaeologists or anthropologists. The Committee makes a recommendation to an Assistant Secretary in the State Department, who then determines whether the statutory criteria are satisfied and, if they are, negotiates the agreement. Agreements last for five years and must then be renewed. Even though there are 97 Federal Act on the International Transfer of Cultural Property (Cultural Property Transfer Act) June 20, 2003, art 7. 98 Switzerland’s agreements are with Italy (2008), Greece (2011), Colombia (2011), Egypt (2011), Cyprus (2014), China (2014), Peru (2016), and Mexico (2017). Federal Office of Culture, ‘Bilateral agreements’ accessed 9 May 2018. 99 19 USC §§ 2601–2613. 100 19 USC §§ 2602–2603. Archaeological artifacts that are inventoried in a public secular or religious institution are subject to import restriction under 19 USC § 2607. 101 19 USC § 2601(2). 102 The four statutory criteria (paraphrased) are that the cultural patrimony of the requesting State Party is in jeopardy due to the looting of archaeological sites; the requesting State Party has taken measures consistent with the 1970 UNESCO Convention to protect its archaeological heritage; other States are taking similar measures to restrict the import of those archaeological objects whose import the US would restrict; and the imposition of import restrictions ‘is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes’. 19 USC §2602 (a)(1).

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Theft and Illegal Excavation 221 statutory provisions for emergency actions, which obviate the need to negotiate an agreement, any State wishing to have import restrictions imposed on an emergency basis must first request a bilateral agreement and submit the necessary supporting documentation.103 The impediments to achieving these bilateral agreements are evidenced by the fact that in two recent crisis situations, involving Iraq and Syria, the United States had to enact special legislation to allow it to impose import restrictions without following the procedure for requesting a bilateral agreement. Another indication of these impediments is that although the US has been a State Party since 1983, it currently (as of late 2019) has bilateral agreements with only twenty104 of the 1970 UNESCO Convention States Parties. Finally, the five-year renewal requirement fails to decrease the incentive to loot archaeological sites, as it is always possible that an agreement will not be renewed, thereby opening the US art market to looted artefacts.

4.2.3 Hybrid Approach In the hybrid approach, the State Party, while only ratifying the 1970 UNESCO Convention, adopts directly or indirectly article 3(2) of the 1995 UNIDROIT Convention, thus making its implementation more effective for preventing import of undocumented archaeological artefacts. Soon after ratifying the 1970 UNESCO Convention, the United Kingdom adopted the Dealing in Cultural Objects (Offences) Act of 2003, which prohibits dealing in ‘tainted cultural objects’.105 A tainted cultural object is one that ‘(a) is removed from a building or structure of historical, architectural or archaeological interest where the object has at any time formed part of the building or structure, or (b) it is removed from a monument of such interest’.106 ‘Monument’ is defined to include any work, cave, or excavation and any site.107 Similarly to the UNIDROIT Convention provision, the definition of tainted object refers to objects whose excavation or removal constitutes an offence under local law.108 Thus, the UK legislation, like the UNIDROIT Convention, has broader application to illegally excavated archaeological artefacts than the principle of State ownership. The Netherlands is another example of a hybrid approach.109 The Netherlands follows the reciprocal model in that it prohibits the import of any 103 19 USC § 2603. 104 The US agreements are with Algeria, Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, Ecuador, Egypt, El Salvador, Greece, Guatemala, Honduras, Italy, Jordan, Libya, Mali, Nicaragua, and Peru. As of late 2019, requests for bilateral agreements with Chile, Morocco, Yemen, Tunisia and Turkey are pending. An agreement with Canada was not renewed in 2002. 105 Dealing in Cultural Objects (Offences) Act 2003, Chapter 27. This legislation is not technically an implementation of the 1970 UNESCO Convention, as the United Kingdom took the position that it did not need to enact new legislation when it ratified the Convention. 106 Ibid, art 2(4). 107 Ibid, art 2(5). 108 Ibid, art 2(2). 109 The Explanatory Memorandum that accompanied enactment of the Netherlands’ legislation makes clear that it was influenced by various aspects of the 1995 UNIDROIT Convention, including its emphasis on a private law approach. Explanatory Memorandum to the Implementing Act 1970 UNESCO Convention, Parliamentary Documents II 2007/08, 31 255, No 3, 2–3.

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222 Patty Gerstenblith cultural property which: has been removed from the territory of a State Party and is in breach of the provisions adopted by that State Party, in accordance with the objectives of the 1970 UNESCO Convention in respect of the export of cultural property from that State Party or the transfer of ownership of cultural property.110

However, the legislation goes a step further in also prohibiting the import of cultural property that ‘has been unlawfully appropriated in a State Party’.111 The Explanatory Memorandum that accompanied the legislation clarifies that unlawful appropriation includes ‘unlawful excavation at archaeological sites’ and explicitly references the 1995 UNIDROIT Convention’s equation of unlawful excavation with theft.112 Furthermore, this provision applies even without establishing that an export control has been violated.113 Just as the 1995 UNIDROIT Convention’s provision is the most effective solution to the problem of deterring trade in undocumented archaeological artefacts, so too do these hybrid approaches serve the same purpose in an equally effective manner.

4.2.4 Designation Requirement Depending on how it is interpreted, the specific designation requirement in the article 1 definition of cultural property can pose an obstacle to interdicting trade in undocumented archaeological artefacts. However, most States Parties to the 1970 UNESCO Convention resolve this problem by viewing a State’s listing of the types of objects that are subject to export restriction as the equivalent of specific designation. These States have typically adopted reciprocal restrictions that prohibit the import of any cultural objects that are subject to export restriction by another State Party.114 When confronted with the question of what constitutes designation, a Canadian court held that the categorization of cultural objects for the purpose of export control by a State Party constitutes designation in compliance with the 1970 UNESCO Convention’s requirement. In R. v Yorke,115 the court held that the Bolivian Decree, which restricted the export of the category of textiles, had thereby designated the category of textiles in compliance with the 1970 UNESCO Convention. The court understood the difficulty posed by a specific designation requirement, particularly as applied to archaeological and ethnographic objects that were undocumented before their illegal removal, stating: [T]he appellant’s submission that, to ‘specifically designate’ cultural property something more was required of Bolivia than what was specified in the Decree, is not tenable. It would not be possible for a nation to create an itemized list of every piece 110 Act of 9 December 2015, Relating to the Combining and Amendment of Rules Regarding Cultural Heritage (Heritage Act) s 6.3.1. 111 Ibid, s 6.3.2. 112 Explanatory Memorandum (n 109) 16. 113 Ibid. 114 Examples include the Cultural Property Export and Import Act, RSC 1985, c C-51, s 37(2) (Canada); Act on the Protection of Cultural Property (Cultural Property Protection Act) 8.6.2016, BGBl 1 p 1914 (Germany). See also Peters, ‘The Protection of Cultural Property’ (n 90) 96–7. 115 R. v Yorke (1998) 166 NSR (2d) 130.

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Theft and Illegal Excavation 223 of property to be protected. The categories have been made clear in the Decree . . . . Likewise, the suggestion that the term ‘weavings’ is somehow overly broad and fails to distinguish those ‘weavings’ which are of cultural significance from those which are not, is not persuasive. The term ‘weavings’ is one of common usage and the Decree distinguishes them from property of other types of manufacture . . . .Textiles that are cultural property reveal valuable information regarding ethnic groups and their religious practices.116

This approach has not as yet been judicially evaluated in other destination or transit market nations, but their practice seems to follow the interpretation given by the Canadian court. The US implementing legislation both explicitly removes the specific designation requirement in its statutory definition of cultural property and adopts the category approach in implementing article 9 of the Convention. Each bilateral agreement is accompanied by a designated list of the categories of ethnological and archaeological materials to which import restrictions apply.117 Switzerland implements article 3 through bilateral agreements and also uses a category approach.118 Japan is the only major market State to have ratified the Convention that applies its import restrictions only to objects that have been inventoried. This prevents the Convention from applying to previously unknown and undocumented archaeological artefacts.119

4.3 United Nations Security Council Resolutions Since 2003, the United Nations Security Council has adopted three resolutions that deal with the problem of artefacts looted from archaeological sites. The first of these, UNSC Res 1483,120 was adopted in response to the widespread looting that followed the 2003 United States–led invasion of Iraq. The second, UNSC Res 2199,121 and the third, UNSC Res 2347,122 were adopted in 2015 and 2017, respectively, primarily to respond to the spread of the ‘Islamic State’ in Syria and Iraq and to the evidence that it was using artefacts looted from archaeological sites to fund conflict and terrorism. The first two of these resolutions call on Member States to prohibit trade in any cultural objects that left Iraq or Syria after 1990 or 2011, respectively. 116 Ibid, 150. This may be the only judicial interpretation of the specific designation requirement and how it can be satisfied. 117 19 USC §§ 2601, 2602–3. See also Patty Gerstenblith, ‘Implementation of the 1970 UNESCO Convention by the United States and Other Market Nations’ in Jane Anderson and Haidy Geismar (eds), The Routledge Companion to Cultural Property (Routledge 2017) 70. 118 Federal Act on the International Transfer of Cultural Property (Cultural Property Transfer Act) June 20, 2003, art 7. 119 O’Keefe, Protecting Cultural Objects (n 85) 204–7. 120 UNSC Res 1483 (22 May 2003) UN Doc S/RES/1483. 121 UNSC Res 2199 (12 February 2015) UN Doc S/RES/2199. 122 UNSC Res 2347 (24 March 2017) UN Doc S/RES/2347.

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224 Patty Gerstenblith Paragraph 7 of UNSC Res 1483 states that the Security Council [d]ecides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph.123

UNSC Res 2199 echoes this language in calling for import restrictions on cultural materials illegally removed from Syria. Both resolutions led to the enactment of legislation imposing import restrictions by the European Union, Switzerland, the United Kingdom, and the United States.124 Resolution 2347 is devoted exclusively to cultural heritage and focuses principally on the role of looted and stolen cultural objects in terrorism financing and associated criminal activities, such as money laundering, bribery, and corruption. However, it is limited in substantive provisions and even more limited in requirements established for Member States. The resolution ‘requests’ rather than requires that Member States take appropriate steps to fulfil the provisions of resolutions 1483 and 2199, even though these were both adopted as mandatory provisions.125 Paragraph 17 comes the closest to substantive content, stating that the Security Council ‘[c]alls upon Member States . . . to consider adopting’ the outlined measures (emphasis added). These measures focus primarily on cooperation and information sharing among States and various intergovernmental 123 UNSC Res 1483 (n 120), para 7. 124 For Iraq: Emergency Protection for Iraqi Cultural Antiquities Act of 2004, Pub L No 108–429, §§ 3001–3003 (United States); Iraq (United Nations Sanctions) Order 2003, SI 2003/1519 s 8 accessed 1 November 2017 (United Kingdom); Council Regulation (EC) 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96 [2003] OJ L169/6, art 3 accessed 1 November 2017 (European Union); Ordonnance instituant des mesures économiques envers la République d’Irak RS 946.206, art 1a, modified 28 May 2003 accessed 1 November 2017 (Switzerland). For Syria: Council Regulation (EU) 1332/2013 of 13 December 2013 amending Regulation (EU) 36/2012 concerning restrictive measures in view of the situation in Syria, art (4) adding art 11c, Annex XI (European Union); The Export Control (Syria Sanctions (Amendment)) Order 2014, SI 2014/1896, para 2 (inserting art 12A) accessed 1 November 2017 (United Kingdom (as a criminal provision)); Verordnung über Massnahmen gegenüber Syrien (Ordinance on Sanctions against Syria) revised on 17 December 2014, art 9A, para 1 accessed 1 November 2017 (Switzerland); the Protect and Preserve International Cultural Property Act, HR 1493 accessed 1 November 2017 (United States). 125 UNSC Res 2347 (n 122), para 8.

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Theft and Illegal Excavation 225 organizations126 and better documentation and inventorying of sites and objects.127 In particular, the focus on documentation is likely to be frustrated because antiquities looted from the ground and sold directly onto the international market are not, by definition, documented—a feature that makes them particularly well-suited as a vehicle for money laundering, terrorism finance, and other criminal activity. That the international community found it necessary to enact three Security Council resolutions in fourteen years to confront the problem of large-scale looting of archaeo logical sites indicates inadequacy both in the international treaty regime and in recognition of State ownership. The patchwork quilt of treaty ratifications and varying models of implementation, particularly of the 1970 UNESCO Convention, caused the world community to conclude that the existing treaty regime was inadequate to respond to these crisis situations. These resolutions were imposed on States without their specific consent and without the usual treaty ratification and implementation process. As such, these resolutions indicate the inability of the international treaty regime to respond quickly, universally, and effectively to crisis looting of archaeological sites. These resolutions also represent a failure of recognition of the principle of State ownership. Both Iraq and Syria have State ownership laws128 that significantly predate both the international conventions and the Security Council resolutions. These laws would render these artefacts stolen property both in their countries of origin and in market countries through which they are traded. The failure of these resolutions to reference State ownership is a missed opportunity that would have provided recognition to this concept and that would, in turn, have been applicable to other States whose archaeo logical heritage is the subject of looting and trafficking on the international market. Universal recognition of State ownership, additional ratifications of the 1995 UNIDROIT Convention and adoption of hybrid models of implementation of the 1970 UNESCO Convention that incorporate article 3(2) of the UNIDROIT Convention are the current methods available for inhibiting trade in undocumented archaeological artefacts. These methods are also more effective and reliable than the continuing practice of adopting sui generis Security Council resolutions on a country-by-country basis.

5. Conclusion Laws vesting title to antiquities in the State afford a unique legal solution to a unique problem—that, by definition, looted antiquities are undocumented and unknown before they appear on the international art market or in a collection in a destination 126 Ibid, paras 11, 12, 16. 127 Ibid, para 17. 128 Antiquities Law No 59 of 1936 and the amendments No 120 of 1974 and No 164 of 1975 art 3 (Iraq) accessed 11 December 2017; Law of Antiquities, Decree-Law No 222 dated 26/10/1963 art 4 (Syria) accessed 11 December 2017.

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226 Patty Gerstenblith market country. Rather than having to reduce all such objects to physical possession, an impossible task and one that is contrary to best archaeological and scientific practice, States may vest ownership of undiscovered archaeological artefacts, rendering such artefacts stolen property when removed without permission. Both the United States and the United Kingdom accept this legal solution. The Barakat and Schultz decisions bring the law of these major market States into alignment so that, in tandem, they can be more effective in reducing the financial incentives for the continued looting of archaeological sites. The 1995 UNIDROIT Convention adopts and even expands on the notion of State ownership, effectively codifying the principle of State ownership. It is applicable in States Parties to the Convention and also those States that have adopted a hybrid approach to the 1970 UNESCO Convention, such as the United Kingdom and the Netherlands. The market nations and the broader world community, in recognition of the particular legal and knowledge-based concerns raised by the looting of archaeological sites, have taken steps in their legal systems to respond to these concerns. Yet the law still poses obstacles to effective deterrence and even to accomplishing the basic goals of returning cultural objects to their rightful owners and of discouraging the market through imposing legal consequences on those who traffic in such objects. Three components may be viewed as necessary to counteract the looting of archaeological sites: (1) broad acceptance of the principle of State ownership, through judicial decisions such as Schultz and Barakat, with careful drafting of State ownership laws among the countries of origin; (2) wider ratification of the UNIDROIT Convention and incorporation of article 3(2) of the UNIDROIT Convention through legislation among States that have not ratified the UNIDROIT Convention; and (3) effective implementation of the 1970 UNESCO Convention through the use of reciprocal import restrictions, which also obviate the problem of special designation. The crises of archaeological looting over the past fifteen years in Iraq, Syria, Egypt, Libya, and other countries demonstrate that the world community has not yet devised a fully effective system for deterring such looting. However, these are the most appropriate legal solutions to the challenges posed by the looting of archaeological sites and the trade in undocumented archaeological artefacts, and these steps must be taken so that the world’s archaeological heritage may be preserved to maximize future learning and knowledge about the past.

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chapter 10

Gr aspi ng Th e N et tl e of Illicit Ex port, Import, A n d Tr a nsfer Of Ow n ership of Cu ltu r a l Obj ects Folarin Shyllon

‘The removal of cultural and archaeological items from their place or country of origin is an act against both national identity and collective memory, and the destruction of historical knowledge of all mankind.’1 — INTERPOL

1. Introduction The plunder and destruction of cultural property has been going on since antiquity. Movable cultural property was the spoils of war, while immovable cultural property was destroyed. The general law had it that the property of the vanquished belonged to the conqueror. Any opposition to this rule was unusual. Respect for religious property and places were linked to their sacred nature and not to the artistic value of the temples and the property inside them. The Greek historian Polybius (202–120 bc), while accepting the ‘right to booty’ in warfare, went on to assert that ‘to abandon oneself to the pointless destruction of temples, statues and other sacred objects is the action of a madman’. For the Romans the aim of warfare was conquest, and conquest was accompanied by mas 1 INTERPOL, Creating a National Cultural Heritage Unit: The Value of a National Unit Dedicated to Fighting Crimes against Cultural Heritage and the Illicit Traffic of Cultural Property (INTERPOL 2017).

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228 Folarin Shyllon sacres, destruction, and pillage. Nonetheless, Cicero said that it was not right for people to pillage for themselves but only to enrich or embellish their motherland. The situation in the Middle Ages was not very different. The Germanic armies and the Crusaders laid everything waste as they went. It was during the Renaissance that the wish to protect works of art emerged. In the sixteenth and seventeenth centuries, the first references to the protection of cultural property appeared among the writers on international law. Jacob Przyluski, for example, put forward the idea that every belligerent should show regard for a work of art but not solely because of its religious nature. Beginning with the Peace of Westphalia of 1648, we find more and more clauses providing for the restoration of things to their places of origin—first of archives alone and then of works of art, displaced in the course of fighting.2 This marked the beginning of the repudiation of the rule that the appropriation of a nation’s art treasures is a trophy of war which adds to the glory of the victor and humiliation of the vanquished. During the French revolutionary wars there was a relapse to the old order. The booty of war included objets d’art and scientific objects. Restitution was made in 1815 of some of the items received as booty, when the Duke of Wellington declared that these had been contrary to the practice of war between civilized nations. This is a reaffirmation of the view that cultural property, even when belonging to the State, must be treated as privately owned—that is, as fully protected against seizure, destruction, or defacement. The Treaty of Peace between the Allied and Associated powers and Germany signed at Versailles on 28 June 1919 contains three provisions—articles 245 to 247—concerning the restitution of cultural property. Under article 245, the German government was to ‘restore to the French Government the trophies, archives, historical souvenirs or works of art carried away from France by the German authorities in the course of the war of 1870–1871 and during the last war’.3

2. Second World War Trigger The extraordinary looting by the Nazis during the Second World War led to the global ization of standards for the protection and preservation of cultural property and to the fight against the illegal transfer of ownership of cultural property. Einstazstab Reichsleiter Rosenberg (ERR) was a Nazi Party organization dedicated to appropriating cultural property during the Second World War. Alfred Rosenberg, one of the principal accused Nazis at the Nuremberg Trials, was, among other things, head of the ERR. The ERR was charged with looting German-occupied countries of cultural property, an assignment that it ruthlessly executed. Rosenberg’s indictment and the evidence introduced at his

2 J. Toman, The Protection of Cultural Property in the Event of Armed Conflict (Dartmouth and UNESCO Publishing 1996) 3–5. 3 Ibid, 336–7.

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Grasping the Nettle of Illicit Export, Import, and Transfer 229 trial detailed his (and the ERR’s) offences against cultural property. Rosenberg was found guilty of these (and many other) offences and was executed.4 During the war, a significant development occurred, provoked by the widespread looting of cultural property in German-occupied countries. This was the Declaration of London of 1943. It was noticed that the occupying powers practised a new technique to cloak the dispossession of the rightful owners of works of art with a semblance of legal ity. Accordingly, the Allied Powers, comprising seventeen governments and the French National Committee, published in London (and simultaneously in Washington and Moscow) the Joint Declaration of 5 January 1943. The governments reserved5 all their rights to declare invalid any transfers of, or dealings with, property, rights and interests of any description whatsoever which are, or have been, situated in the territories which have come under the occupation or control, direct or indirect, of the Government with which they are at war, or which belong have belonged, to persons (including juridical persons) resident in such territories. This warning applies whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.

Immediately after the war, measures were taken to implement this Declaration in a number of countries. The novelty or irony here was that countries like France and Holland, which had plundered their colonies of their cultural property, were victims of the same aggression.

3. Laying the Foundation of Illicit Trafficking in Cultural Property The concluding treaties of the Napoleonic wars that compelled France to return stolen art works should have constituted a marker against illicit transfer of cultural property and perhaps have constituted a new rule of customary international law. But they did not, at least as far the continents of Africa and Asia were concerned. A few examples can be given. The Second Anglo-Sikh War resulted in the British annexation of Punjab in 1849 and the subjugation of the Sikhs. The major war trophies—the golden throne of Ranjit Singh and the Koh-i-Noor diamond—were shown at the Great Exhibition in 1851 in London. The throne is nowadays in the Victoria and Albert Museum. The diamond became a major jewel in the British Crown. In 1860, at the end of the Second Opium War, Anglo-French forces pillaged the Old Summer Palace complex of Beijing. The 4 J. H. Merryman, ‘Two Ways of Thinking about Cultural Property’ (1986) 80 AJIL 831, 835–6. 5 L. V. Prott and P. J. O’Keefe, Law and the Cultural Heritage: Vol. III Movement (Butterworths 1999) 805–6.

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230 Folarin Shyllon troops stuffed their pockets full of rubies, sapphires, pearls, and pieces of rock crystal. Gold and silver treasures, secret records, and sacred genealogical tablets of the Empire were taken. Some ten thousand of the items have been identified in collections in France, the United Kingdom, and the United States. In 1868, in retaliation for the imprisonment of a British consul and some European missionaries, British and British-Indian troops confiscated at least 468 items of regalia, religious objects, and ancient manuscripts from the palace of Emperor Tewodros and some nearby churches in Maqdala, Ethiopia. Most are now in the British Museum, the Victoria and Albert Museum, the British Library, and the Royal Collection. British soldiers also kept some for themselves. In 1897, British soldiers pillaged the Palace of the Oba of Benin and took thousands of ancient bronzes, brasses, and ivories. These are now dispersed over Europe and the United States.6

4. Convention for the Protection of Cultural Property in the Event of Armed Conflict 19547 Boylan has observed that the instability and confusion that is inevitable in times of both international war and internal armed conflict adds greatly to the risk of smuggling and other criminal activity against cultural property. Quite apart from any organized looting, or other misappropriation of cultural property by the invading or occupying military force, there is a much greater opportunity for both freelance operations by members of the armed forces, whether regular or irregular, and by both organized and opportunist criminal elements.8 The adoption of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the Protocol9 was a response to the events of the Second World War. In that conflict a huge amount of cultural heritage was utterly destroyed and a great deal was misappropriated or severely damaged.10 The Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict was adopted in 1999.11 Article 21 of the Second Protocol requires an occupying power to adopt such legislative, administrative, or 6 Jos van Beurden, Treasures in Trusted Hands: Negotiating the Future of Colonial Cultural Objects (PhD thesis, University of Amsterdam, 2016) 53–6. 7 See . 8 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, 1993, 99. 9 See . 10 P. J. O’Keefe and L. V. Prott, Cultural Heritage Conventions and other Instruments: A Compendium with Commentaries (Institute of Art and Law 2011) 16. 11 See .

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Grasping the Nettle of Illicit Export, Import, and Transfer 231 isciplinary measures as may be necessary to suppress any illicit export, other removal, d or transfer of ownership of cultural property from occupied territory. The Hague Convention is the first international instrument accepted worldwide focusing exclusively on the protection of cultural heritage. It is also the path-breaking international instrument to combat the illegal import, export, and transfer of ownership of movable cultural objects. It is to be noted that the most important obligations concerning return of misappropriated objects were moved to a Protocol, which not all States Parties to the Convention have ratified. Whereas there are 133 States Parties to the Convention, the First Protocol has 110 Member States, and the Second Protocol has 82 States Parties.12

5. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 197013 Illicit trafficking in cultural property has been going for decades. The exponential increase in the 1960s raised concern, and this coincided with the wave of independence being granted to several African countries and, to a lesser degree, Asian countries. Both the inordinate increase in illicit trafficking and the desire of the newly independent African and Asian countries to recover their cultural heritage purloined in the colonial period led UNESCO to start initiatives for a standard-setting instrument on the matter. The first salvo was the Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property 1964. It has been rightly observed that the 1964 Recommendation was a halfway point between the earliest efforts of States to protect cultural heritage in the countries of origin and the subsequent developments of the 1970 UNESCO Convention, the UNIDROIT Convention 1995, and the 1999 Second Protocol to the Hague Convention. For example, article 11(b) (ii) of the Recommendation on facilitating control of illegal export through the use of export certificates was later taken up by the development of a uniform customs certificate prepared jointly by UNESCO and the World Customs Union in 2005.14 The definition of cultural property in article 1 of the 1970 Convention consists of a general description and a list of the property to be protected. It stipulates that, for the 12 As at 17 May 2018, 9 April 2018, and 5 September 2018 respectively. 13 See . 14 O’Keefe and Prott, Cultural Heritage Conventions (n 10) 227.

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232 Folarin Shyllon purposes of the 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 certain categories. The categories listed include the following movable objects: property relating to history; products of archaeological excavations; antiquities more 100 years old; objects of ethnological interest; rare manuscripts and incunabula, old books, docu ments, and publications; postage, revenue, and similar stamps, singly or in collections; archives; and articles of furniture more than 100 years old and old musical instruments. Without making a distinction between time of peace and time of war, article 3 intro duces a prohibition by declaring that ‘the import, export or transfer of ownership of cul tural property, effected contrary to the provisions adopted under the Convention by the States Parties thereto, shall be illicit’. Thus, the notion of illicitness is defined in relation to national law, and only transfers carried out contrary to the laws adopted by each State Party can be termed illicit at the international level.15 Article 3 works in conjunction with article 6(a) and article 6(b) and requires the introduction of export certificates and the prohibition of exports without such certificates by States Parties.16 Article 6(c) further enjoins Member States to publicize the prohibition of exportation of cultural property without export certificate by appropriate means ‘particularly among persons likely to export or import cultural property’. It is now well established that public aware ness campaigns urging the public to respect and take care of their cultural heritage are indispensable tools in the fight against illicit trafficking in cultural property. Awareness of this fact even as long ago as 1970 is reflected in article 10(b) of the Convention, which imposes on States Parties the duty ‘to endeavour by educational means to create and develop in the public mind a realization of the value of cultural property and the threat to the cultural heritage created by theft, clandestine excavation and illicit export’. Article 7 requires a State Party to prohibit the import of specific stolen cultural property—namely, that from a ‘museum or a religious or secular public monument or similar institution’ which has been listed in the inventory of the specific body. This is a narrow category of material. For example, it does not cover clandestinely excavated archaeological objects. Also, the inventories of these bodies are often inaccurate, inadequate, or non-existent. Article 7 adds an additional means of proceeding for an owner—for example, a museum—whose property has been stolen. However, it must be done through the State of the claimant. Under article 9, a State Party whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological material may call on other States Parties where the cultural patrimony is being found to participate in a concerted international effort to stop it. The efforts can include the control of exports, imports, and international commerce in the specific materials concerned. Section 303 of the United States Convention on Cultural Property Implementation Act, 1983, imple ments Article 9 of the 1970 Convention. A State Party that wishes to take advantage of the section and enter into a bilateral agreement with the United States must not only 15 Toman, Protection of Cultural Property (n 2) 360–1. 16 O’Keefe and Prott, Cultural Heritage Convention (n 10) 65.

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Grasping the Nettle of Illicit Export, Import, and Transfer 233 establish the requirement that the specific cultural patrimony is in jeopardy of pillage but must also have taken measures consistent with the Convention to protect its cultural patrimony. 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. Export and transfer are thus regarded as illicit not only with respect to the occupying power but also with respect to all Parties to the Convention. Article 11 should be a very significant provision; it has, however, been observed that, in practice, it seems to have been largely ignored.17

6. A Lack of Synergy Article 11 of the 1970 Convention supplements articles 1 to 4 of the 1954 Hague Convention. Yet there is no reference to the Hague Convention in the 1970 Convention. As we have seen, article 3 of the 1970 Convention, without drawing any distinction between peacetime and wartime, treats as illicit the import, export, and transfer of own ership of cultural property, carried out contrary to the provisions of the Convention. The article refers only to export and transfer of ownership without a prohibition of imports. Article 11 should be considered in conjunction with the Protocols to the Hague Convention.

7. UNIDROIT Convention18 The UNIDROIT Convention is the outcome of multilateral negotiations among seventy countries representing a great variety of interests. It is a compromise solution between countries with important art markets and countries most threatened by theft, pillaging of excavated artefacts, and illicit export. A compromise can obviously never satisfy everyone completely; it goes too far for one party but not far enough for another. Take, for example, the issue of time limitations. To many critics, the absolute limitations estab lished by the Convention appear overdrawn. In many civil law jurisdictions, a bona fide purchaser does not have to return even a stolen object after five years. UNIDROIT extends this limit to fifty years19—in exceptional cases to seventy-five years.20 Certainly, these time limitations seem long at first glance. But if one considers that a stolen cultural object must be returned over eternity in the common law system, the UNIDROIT time limitations must be regarded in terms of international comparison as a compromise 17 Ibid, 65; Toman, Protection of Cultural Property (n 2) 361. 18 See . 20 Art 3(5).

19 Art 3(3).

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234 Folarin Shyllon between protecting private property and protecting trade. If one considers the age and significance of many cultural objects, these time limitations appear in a quite different light.21 This is the essence of the harmonization of rules solely applicable to cultural objects which is the raison d’être of the UNIDROIT Convention. The 1970 Convention was the first major step taken by the international community to fight the illicit import, export, and transfer of ownership of cultural property. Being the first measure of its type, many compromises were made to ensure its successful pas sage at the General Conference of UNESCO. There were cleavages between ‘source’ countries and ‘market’ countries. Besides, the Convention is a scheme under public international law. Thus, the Convention, in article 7(b)(ii), provides for action by a State Party ‘at the request of the State Party of origin’ and that requests for recovery and return should be made ‘through diplomatic offices’. Claims can be formulated only on a government-to-government basis. Despite the benign nature of the provisions of the 1970 Convention, many major market Western countries—with the notable exceptions of Canada (1978) and the United States (1983)—refused to become States Parties.22 As a result, from the 1970s and after the 1970 Convention came into force on 24 April 1972, theft from museums, private institutions, and collectors as well as from archaeological sites was so rampant that article 3(1) of the 1995 UNIDROIT Convention felt it important to make a clear statement that the ‘possessor of a cultural object which has been stolen shall return it’. In view of the aggressive exportation of illegally excavated cultural prop erty, whether authorized or unauthorized, article 3 (2) further 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’. Article 3(7) of the UNIDROIT Convention states that ‘a public collection’ consists of ‘a group of inventorised 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 for an essentially cultural, educa tional, or scientific purpose in a Contracting State and is recognized in that State as serv ing the public interest. This is a broader provision compared to article 5(b) of the 1970 Convention, which obliges States Parties to establish and keep up ‘a national inventory of protected property’. The phrase ‘otherwise identified cultural objects’ means any other satisfactory means or evidence of identification would be admissible in court pro ceedings to establish ownership other than conventional inventories. The UNIDROIT Convention took another important step by recognizing the importance of private com merce in the trafficking of cultural property and introduced for the buyers the funda mental obligation of ‘due diligence’ in making reasonable efforts to check any accessible means of identifying whether an object was licit.23 Thus, article 4(1) provides that the 21 A. F. G. Rascher, ‘Legal Security in International Trade and Exchange of Cultural Objects’ . 22 Of course, rich Western countries that are both ‘market’ and ‘source’ countries joined. These include Italy (1978), Greece (1981), Portugal (1985), and Spain (1986). Turkey also joined in 1981. 23 INTERPOL, Creating a National Cultural Heritage Unit (n 1) 6.

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Grasping the Nettle of Illicit Export, Import, and Transfer 235 possessor of a stolen cultural object required to return it shall be entitled to fair and reasonable compensation only if he/she exercised due diligence when acquiring it. Internationally, organized marketers in art benefit from laws which vary from one country to another and, above all, from legal loopholes: cultural objects of dubious origin are immediately transferred to other countries where less stringent laws apply. The Convention, in article 8(1), confronts the legal constraints that impede identification of the current location and of the possessor of stolen cultural property by providing that a claimant to a cultural object may choose a court either in the possessor’s country or in the country where the object is currently located. More often than not, it is the location of a cultural property or art work that is known, not its possessor. In the case of cultural property, missing objects are found when offered for sale in an auction catalogue or by a dealer in a country with a major art trade, although the vendor is not known or is not in that jurisdiction. The provision was felt desirable because the claimant may know where the object is (in a museum on loan, in a restorer’s workshop, in a bank vault) but may not know the identity of the possessor. Dealers in the art trade market play a major role in the illicit trade in cultural p roperty. While many are honourable and do not handle stolen or smuggled material, others are prepared to do so. They are willing to hide their activities under a cloak of secrecy by concealing the origins of their stock.24 Many commentators have spoken on the similarity between the art trade and the hard drug trade. Paul Bator had earlier noted that much about the art trade is simply not knowable because it operates in secret.25 Clemency Coggins agrees, adding that the art market requires concealment at every level. ‘It operates more like the clandestine narcotics traffic.’26 McIntosh observes that the international structure of the illicit art trade and the illicit drug trade are ‘remarkably similar’,27 while Gimbere concludes that the trade in cultural property is the most important illegal trade after the drug trade and, moreover, is ‘often carried out by the same people’.28 The high prices paid for cultural objects make illegal trade in these objects extremely attractive. As long ago as 2001, it was reported that INTERPOL, the international police organization, estimated that illicit trade in cultural property was worth US$4.5 billion a year worldwide, well up from US$1 billion annual figure a decade earlier.29 Sandra Laville, the Crime Correspondent of the London Guardian, reported that experts claimed up to £200 million worth of stolen art and antiquities are sold in the United Kingdom each year, and that INTERPOL estimates that art theft is the fourthlargest organized crime after drugs, people trafficking, and arms.30 Indeed, INTERPOL 24 O’Keefe and Prott, Cultural Heritage Conventions (n 10), 65. 25 Paul Bator, ‘An Essay on the International Trade in Art’ (1982) 34 Stanford Law Review 275, 290. 26 C. C. Coggins, ‘A Licit International Traffic in Ancient Art: Let There be Light’ (1995) 4 International Journal of Cultural Property 61, 63. 27 R. J. McIntosh, ‘Just Say Shame: Excising the Rot of Cultural Genocide’ in P. R. Schmidt and R. J. McIntosh, Plundering Africa’s Past (Indiana University Press 1966) 46. 28 S. Gimbere, ‘Illicit Traffic in Cultural Property and National and International Law’ in H. M. Leyten (ed), Illicit Traffic in Cultural Property: Museums against Pillage (Royal Tropical Institute 1995) 53, 59–60. 29 S. Robinson and A. Labi, ‘Endangered Art’, TIME 118 (June 2001) 56, 57. 30 Sandra Laville, ‘Met’s Art Theft Squad Has to Go Cap in Hand’ The Guardian (21 April 2017).

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236 Folarin Shyllon has noticed ‘a trend of using the antiquities market to launder money’.31 Another grave development, and one which has received the attention of the UN Security Council in two resolutions (2199/2015 and 2253/2015), is the acknowledgement that the illicit traffic in cultural property is a source of financing for terrorist groups.32 It is also frequently contended that there is a close connection between traffic in cul tural objects and organized crime. For example, a valuable Renoir painting stolen from Sweden’s National Museum on 22 December 2000 was found in a bag by police during an unrelated ‘drug bust’ when they detained three drug suspects.33 British police have had more than one case where a ‘drug bust’ has left them with a good many cultural objects on their hands—some of which have been traced through databases, and some of which they could not find owners for.34 Whereas the UNESCO Convention is basically founded on a philosophy of govern ment action and therefore requires cultural objects to have been ‘designated’ by the State requesting return, the UNIDROIT Convention, being a scheme under private law, does not require that a cultural object be ‘designated’ by the State for it to be covered by the Convention. Accordingly, cultural objects stolen from private homes, from all kinds of religious buildings, from private collections which are not yet registered with the State, and from traditional communities can all be claimed back, even though the State has neither registered nor designated them. The Director-General of UNESCO at the time hailed the UNIDROIT Convention as ‘a breakthrough international framework to combat private-sector transactions in stolen art and cultural property’ and as ‘a watershed in our common struggle to defend cultural property’.35 But the reaction to the Convention of art trade practitioners in a number of Western countries was ‘extraordinary and to some extent hysterical’.36 Every kind of pressure was brought on governments in the ‘art market States’ not to become party to the Convention. It is important to note that the UNIDROIT Convention facilitates claims for cultural objects which either would not have been made at all or were likely to be defeated in litigation in the holding States.37 Consequently, instead of adhering to the UNIDROIT Convention, countries such as Belgium, Denmark, France, Germany, the Netherlands, Norway, Switzerland, and the United Kingdom became States Parties to the 1970 Convention they had spurned for decades. It was a case of choosing the lesser of two evils and soothing the disappointment of countries that continue to suffer severe losses of their cultural property. As at 2 December 2019, there are only forty-eight States Parties to the Convention. The following Western European countries have joined the Convention: Cyprus (2004), Denmark (2011), 31 INTERPOL, Creating a National Cultural Heritage Unit (n 1) 4. 32 See and . 33 ‘Chronicles’ in (1998) 10 International Journal of Cultural Property 255. 34 Prott, ‘Cultural Jeritage Law: The Perspective of the Source Nations’ (2000) 5 Art Antiquity and Law 333, 338. 35 UNESCO News, Volume 2, No 5, 20 September 1995. 36 O’Keefe and Prott, Cultural Heritage Convention (n 10) 112. 37 Ibid.

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Grasping the Nettle of Illicit Export, Import, and Transfer 237 Finland (1999), Greece (2008), Italy (2000), Norway (2002), Portugal (2003), Spain (2002), and Sweden (2011).38

8. Resolving Legal Conundrums The weaknesses revealed by the operation of the 1970 Convention, a scheme under public law, made it abundantly clear that a complementary special private law was required to plug the loopholes that art dealers and illegal excavators of cultural property were exploiting. UNESCO therefore asked UNIDROIT (International Institute for the Unification of Private Law), a body established in 1926 for the purpose of providing expertise for the unification of private laws of the international community, to prepare a complementary Convention, which was adopted in 1995. The UNIDROIT Convention is a special regulation that determines under which conditions the victim of theft regains cultural object back to its territory. It is the legal basis for anyone who has bought a cultural object in good faith and must return it being compensated instead of being left empty-handed.39 By establishing private law regulations for the return of cultural objects which have been removed from a country, either by theft or by illegal export, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects seeks to bring about a better scheme for the protection of cultural objects on a worldwide scale.

9. UNESCO–UNIDROIT Model Provisions on State Ownership of Cultural Objects In six short and simple paragraphs, the group of experts that prepared the Model Provisions seeks to encourage the protection of archaeological objects and to favour their restitution to the State where illicit excavation took place. The UNESCO–UNIDROIT Model Provisions on State Ownership of Cultural Items was adopted by the Intergovernmental Committee on Return or Restitution at its 17th session in Paris in 2011. Provision 1 provides that the State shall take all necessary and appropriate measures to protect Undiscovered Cultural Objects. The new law should incorporate Provisions 2 to 6. Provision 2 states that ‘[u]ndiscovered cultural objects include objects which, consistently with national law, are of importance for archaeology, prehistory, litera ture, art or science and are located in the soil or underwater’. Provision 3 declares that ‘[u]ndiscovered Cultural Objects are owned by the State, provided there is no prior 38 See . 39 Rascher, ‘Legal Security’ (n 21) .

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238 Folarin Shyllon ownership’. In Provision 4 it is declared that ‘[c]ultural objects excavated contrary to the law or licitly excavated but illicitly retained are deemed to be stolen objects’. ‘The transfer of ownership of a cultural object deemed to be stolen under Provision 4’, Provision 5 adds, ‘is null and void, unless it can be established that the transferor had a valid title to the object at the time of the transfer.’ Finally, Provision 6 declares that ‘[f]or the pur poses of ensuring the return or the restitution to the enacting State of cultural objects excavated contrary to the law or licitly excavated but illicitly retained, such objects shall be deemed stolen objects’.40 As stated in the Recommendations to the 16th and 17th ses sions of the Intergovernmental Committee, the Model Provisions is not a binding legal text or a normative instrument.41 It is a model offered to States which might need it, among other tools to fight illegal traffic in cultural goods.

10. Intergovernmental and Non-governmental Organizations 10.1 Introduction—beyond Laws and Regulations When you add the secrecy of the art market to the expense and uncertainties of litigation, and the reluctance to enforce foreign public laws in another jurisdiction, it is realized that perhaps prevention is better than cure. Intergovernmental and non-governmental organizations therefore stepped up their efforts to combat illicit traf ficking through means other than hard laws and the courts.

10.2 UNO In 2000, the UN adopted the United Nations Convention against Transnational Organized Crime (UNTOC, also known as the Palermo Convention), which came into operation on 29 September 2003. Since the beginning of the twenty-first century, the UN General Assembly through several resolutions has urged Member States to consider trafficking in cultural property as a serious offence and to act accordingly by joining and implementing the 2000 Convention and the earlier ones of 1954, 1970, and 1995. Resolution 66/180 of 2012 in particular, on ‘Strengthening Crime Prevention and Criminal Justice Responses to protect Cultural Property, especially with regard to its Trafficking’, urges Member States to criminalize activities related to trafficking in cultural property by using a broad definition that can be applied to all stolen, looted, 40 UNIDROIT, UNIDROIT Convention on Stolen or Illegally Exported Objects and UNESCOUNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects (UNIDROIT 2013). 41 See and .

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Grasping the Nettle of Illicit Export, Import, and Transfer 239 unlawfully excavated, and illicitly exported or imported cultural property. It also invites Member States to make trafficking in cultural property a serious crime. It requests the United Nations Office on Drugs and Crime (UNODC) to address trafficking in cultural property in its programmes. UN Security Council Resolution 2199/2015, ‘Threats to international peace and security caused by terrorists acts’, and Resolution 2253/2015, ‘Suppressing financing of terrorism’, marked important steps in the history of the protection of cultural heritage, since they acknowledged that the illicit trafficking of cultural objects is a source of financing terrorist groups. In addition, the resolutions require the States Parties to undertake legally binding measures to prevent ‘trade in illegally exported Iraqi and Syrian cultural property with the assistance of UNESCO, INTERPOL and their main partners’.42

10.3 UNODC The United Nations Office on Drugs and Crime (UNODC) uses the UNTOC Convention in its role in fighting and preventing trafficking in cultural property. UNESCO collaborates closely with UNODC in combating crime relating to cultural property. For example, an expert from UNESCO participated in the fifth session of States Parties to the Convention against Transnational Organized Crime, held from 18 to 22 October 2010, and in the 20th session of the UNODC Commission on Crime Prevention and Criminal Justice, held from 11 to 15 April 2011.43 The International Council of Museums (ICOM) also works closely with UNODC in its mission to fight illicit traffic in cultural property. The cooperation with UNODC by UNESCO and ICOM is good strategy.

10.4 UNESCO The lead United Nations agency on culture is the United Nations Educational, Scientific and Cultural Organization (UNESCO). It came into existence in 1946. The General Conference of UNESCO in 1978 established the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation. The action was due to the realization that the 1954 Hague Convention and the 1970 Illicit Traffic Convention were not enough to address the issue of illicit trafficking in cultural property. The Committee held its first session at the UNESCO headquarters in Paris in 1980 and has since met twenty-one times. The body, composed of twenty-two UNESCO Member States, is primarily a negotiating forum

42 INTERPOL, Creating a National Cultural Heritage Unit (n 1) 6. 43 UNESCO, Intergovernmental Committee. Secretariat Report to the 17th Session. Paris, 30 June–1 July 2011, CLT-2011/CONF.208/COM.17/2REV.

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240 Folarin Shyllon aimed at facilitating bilateral negotiations and agreements for the return of cultural property. Since its inception it has been the vehicle for the introduction of many tools to fight illicit trafficking. The cultural heritage law database is an informative tool for States in improving their national laws, and it is also a boon to researchers. The UNESCO International Code of Ethics for Dealers in Cultural Property of 1999, along with similar self-denying ordinances, has influenced the acquisition practices of museums and also provenance inquiries by art dealers and auction houses. The rules of procedure on mediation and conciliation have created a new climate in negotiations among States for the return or restitution of cultural property. The tens of thousands of returns that had taken place in almost four decades attest to this assertion. Countries and individuals have been persuaded to make returns and restitutions through the influence of the Committee or what the Committee’s first Chairperson called ‘moral pressure’. In add ition, under the auspices of the Committee UNESCO has produced a truly helpful and useful handbook titled Legal and Practical Measures against Illicit Trafficking in Cultural Property: UNESCO Handbook.44

10.5 Subsidiary Committee to the Meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property45 The establishment of the Subsidiary Committee was adopted at the Second Meeting of States Parties to the 1970 Convention, which met in Paris in June 2012. It is composed of the representatives of eighteen States Parties to the Convention. It held its first session in 2013 and has met seven times. Its functions are to review the national reports submitted to the General Conference by the States Parties to the Convention; share good practices; prepare and submit to the Meeting of States Parties recommendations and operational guidelines that can help in implementing the Convention; identify difficult situations resulting from the implementation of the Convention, including topics regarding the protection and return of cultural property; establish and maintain coordination with the ‘Return and Restitution Committee’ in connection with capacity-building measures to combat the illicit trafficking of cultural property; and inform the Meeting of States Parties of the activities that have been implemented. Unlike later UNESCO cultural heritage conventions like the World Heritage Convention 1972 and Diversity of Cultural Heritage Convention 2005, the 1970 Convention has no provision for an intergovern mental committee to monitor implementation. Hitherto the monitoring role had been 44 UNESCO Document, CLT/CH/INS-06/22. 45 See .

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Grasping the Nettle of Illicit Export, Import, and Transfer 241 performed by the intergovernmental Committee on Return and Restitution created in 1978, which first met in 1980. With the establishment of the Subsidiary Committee there is now a de jure monitoring committee, while the Return and Restitution Committee remains the de facto body.

10.6 ICOM The International Council of Museums (ICOM), like UNESCO, was established in 1946. It has maintained formal relations with UNESCO since 1946. But, unlike UNESCO, ICOM is a non-governmental organization of museums and museum professionals dedicated to promoting and protecting cultural heritage in all its ramifications. One of its key missions is fighting illicit trafficking in cultural objects. An important tool in this endeavour is the 1986 ICOM Code of Ethics for Museums (revised in 2004) which requires utmost probity from museums and museum professionals in the acquisition and transfer of collections. A principal reason for codes of ethics is that they are intended to counter the problem of secrecy in the art market. ICOM has also devised two refer ence tools, the Red Lists Database and the One Hundred Missing Objects series. To date ICOM has published four volumes in the One Hundred Missing Objects series: Looting in Angkor (1993, second edition 1997); Looting in Africa (1994, second edition 1997); Looting in Latin America (1997); and Looting in Europe (2001). A fifth publication focusing on Arab countries is under way. The publications present a selection of objects that have been illegally removed from public collections or archaeological sites. The series helps raise public awareness as well as identify objects. The Red List has generated many more volumes, seventeen in all to date: Red List of African Archaeological Objects at Risk (2000), Red List of Latin American Cultural Objects at Risk (2003), Emergency Red List of Iraqi Antiquities at Risk (2003), Red List of Afghanistan Antiquities at Risk (2006), Red List of Peruvian Antiquities at Risk (2007), Red List of Cambodian Antiquities at Risk (2009), Red List of Endangered Cultural Objects of Central America and Mexico (2010), Emergency Red List of Haitian Cultural Objects at Risk (2010), Red List of Colombian Cultural Objects at Risk (2010), Red List of Chinese Cultural Objects at Risk (2010), Red List Latin American Cultural Objects at Risk (2010), Emergency Red List of Egyptian Cultural Objects at Risk (2011), Red List of Dominican Cultural Objects at Risk (2011), Emergency Red List of Syrian Cultural Objects at Risk (2013), Red List of Libyan Cultural Objects at Risk (2015), Red List of West African Cultural Objects at Risk (2016), and Red List of Cultural Objects at Risk—Yemen (2018). The Red Lists are designed to help customs officials, police officers, art dealers, and collectors to recognize illicitly trafficked objects. They caution potential buyers against purchasing them if no provenance papers are available and encourage authorities to seize them pending further inquiries when there is a presumption of illicit provenance. Both the Red Lists and One Hundred Missing Objects have helped law enforcement agencies to seize trafficked cultural objects and antiquities. ICOM cooperates with

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242 Folarin Shyllon INTERPOL and World Customs Organization in its mission against illicit trafficking in cultural property, signing in 2000 a cooperation agreement and a cooperation memo randum of understanding respectively with the two enforcement agencies. Also, since 2002 ICOM has cooperated with ALECSO (the Arab League Educational Cultural and Scientific Organization) on the protection and promotion of the museum heritage of the region. In its efforts to enhance the fight against illicit traffic, ICOM recently launched a longterm and innovative instrument, the International Observatory on Illicit Traffic in Cultural Goods. The Observatory ‘is an ambitious international programme dedicated to permanent monitoring and reporting on the rising trend which the smuggling and illicit trading of cultural assets has become’. This is in addition to an international Object Identification (Object ID) project that ICOM now manages, which makes the identifica tion of stolen cultural objects easier. Over the years several regional groupings of ICOM have emerged, giving more energy to the missions of ICOM, including that of fighting illegal traffic in cultural goods. They include the International Council of African Museums (AFRICOM); International Council of Museums Asia-Pacific Alliance (ICOM-ASPAC); International Council of Museums—Latin America and Caribbean Alliance (ICOM-LAC); International Council of Museums—South East Europe Alliance (ICOM-SEE); and International Council of Museums—Europe.

10.7 Interpol The International Criminal Police Organization, or INTERPOL, was established in 1923. It is an intergovernmental organization facilitating international police cooperation. On illicit traffic in cultural objects it works in cooperation with UNESCO, ICOM, and the World Customs Organization to fight trafficking. INTERPOL provides a number of tools that facilitate the global exchange of informa tion on criminal activities involving works of art, the details of the art works, and the criminals involved. It serves as a central repository for this data, providing analysis to identify emerging trends in art thefts, such as the proliferation of counterfeit, faked, or forged works or the use of the Internet for selling works of dubious background. The Stolen Works of Art database, created in 1995, is the most important at the international level to combat the illicit trade of cultural property. It centralizes data gathered by national law enforcement agencies and circulates the information globally. The database contains more than 50,000 items submitted by 133 countries and registers some 40,000 searches every year. The database uses the Object ID feature, the international standard for describing cultural objects in simple, non-technical vocabulary which can be under stood by specialists and non-specialists alike. However, INTERPOL notes that one of the most important aspects of fighting the illicit traffic of cultural heritage is the com mitment of countries to use the database regularly to insert and delete data and to search for cultural items, ‘and there is scope for improvement here. The system would also be

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Grasping the Nettle of Illicit Export, Import, and Transfer 243 more efficient if national governments would create databases linked to INTERPOL’s.’46 Advancing its capabilities further, INTERPOL recently created PSYCHE (Protection System for Cultural Heritage). PSYCHE is a project to modernize INTERPOL’s Stolen Works of Art database to make it more useful to member countries and, at the same time, to increase the volume of information available about stolen items.47 In the con clusion to the INTERPOL handbook, countries are encouraged to create a national database of stolen works of art and connect it to INTERPOL’s stolen works of art data base to further improve their efficiency.48

10.8 National Cultural Heritage Police Units INTERPOL has observed that its effectiveness in the fight against illicit trafficking in cultural property is only as strong as its network, and ‘international cooperation on this crime is hampered by the fact that many countries do not have a specialized unit dedicated to cultural property crimes’.49 This hinders the ability to fight the crimes effectively. Hence, at the meetings of the Intergovernmental Committee on return and restitution, and at the new Subsidiary Committee meetings, INTERPOL officers have canvassed for all States Parties to the conventions to establish specialized units, pointing out the advantages derivable there from. There are, however, several notable exceptions. The Italian Carabinieri Headquarters for the Protection of Cultural Heritage (TPC) was created in 1969. It is the first national cultural heritage police unit. The TPC comprises a central office with three operational sections (Archaeology, Antique, and Modern Art and Counterfeiting) and fifteen territorial units called Nuclei, which have regional or interregional jurisdiction, plus a sub-unit in Sicily. At the international level, the TPC is a liaison point for both INTERPOL and EUROPOL and provides specialized support to peacekeeping operations, such as in Iraq from 2003 to 2006. In 2002, the Argentine Federal Police created a National Centre for the Protection of Cultural Heritage. Together with the National Ministry of Culture and ICOM, the Argentine Federal Police developed a national database of stolen cultural property items. There are currently more than 4500 objects in the database. In the United States, the FBI established a rapiddeployment Art Crime Team in 2004 in the aftermath of the looting of the National Museum of Iraq in Baghdad. Originally starting with eight members, the team has grown to twenty-two special agents, each responsible for addressing art and cultural property crime cases in an assigned geographic region. The Department of Justice also provides online training in prosecuting cultural property cases. Since its creation, the Art Crime Team has recovered more than 14,850 items valued at over US$165 million. In Spain the Historical Heritage Squad is part of the Criminal Police Department, which

46 INTERPOL, Creating a National Cultural Heritage Unit (n 1) 22. 48 Ibid, 29. 49 Ibid, 3.

47 Ibid, 23.

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244 Folarin Shyllon was first established in 1969. France has the Central Office for the Fight against Trafficking in Cultural Property (OCBC).50 In the United Kingdom, the Metropolitan Police in London used to have a team of three in its Art and Antiquities squad. That was until the catastrophic Grenfell Tower fire disaster in London, which led to the three detectives being seconded by Scotland Yard to the fire investigation. To put things in context, the UK had a 21 per cent share of the US$56 billion global art market by value in 2016, second only to the US with 40 per cent, according to research by consultancy Arts Economics.51 Dick Ellis, founder and former head of the art squad, said: ‘To close—if it is to be closed—a small but very specialized unit at Scotland Yard, which is there among other things to assist other countries, is madness.’52 In 2016 the unit arrested a gang allegedly responsible for stealing tens of millions of pounds of art and antiques from stately homes over four years, including £30 million worth of antiquities from Ramsbury Manor in Wiltshire. According to art crime sources, officers from the squad worked with Spanish investigators to help crack one of Europe’s most spectacular art robberies—the theft of nineteen paintings valued at £30 million from the Madrid penthouse of Esther Koplowitz, Marquesa of Casa Penalver and Cardenas.53 It is necessary for States Parties to the various conventions to create within their police forces cultural heritage units so that the lack of them does not constitute a weak link in the fight against illicit traffic in cultural property. No country should emulate the British. The squad had been closed once before, in 1984, for budgetary reasons, but was reopened again in 1989 following pressure from other international forces and the art market.54

10.9 World Customs Organization The smuggling and theft of cultural objects are trans-border operations. Under the terms of its founding Convention, the World Customs Organization (WCO, formerly known as the Customs Cooperation Council) is instructed to secure the highest degree of harmony and uniformity in the customs systems of its Member States. The Customs Cooperation Council adopted a Resolution on action against smuggling works of art and antiquities at its June 1976 session, drawing members’ attention to the growth in the number of cases of smuggling and theft involving cultural property as well as the serious harm that countries suffer as a result of these offences with regard to the preservation of their artistic and cultural heritage. It also invited members to accede to the 1970 UNESCO Convention. As far as legal cooperation among its members is concerned, the most important WCO instrument is the International Convention on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Offences (also known as the Nairobi 50 Ibid, 10, 12, 14–15, 18–19. 51 James Pickford, ‘Warning over Break-up of Scotland Yard Specialist Art Unit’ The Financial Times (16 August 2017) . 52 Ibid. 53 Laville, ‘Met’s Art Theft Squad’ (n 30). 54 Pickford, ‘Warning over Break-up’ (n 51).

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Grasping the Nettle of Illicit Export, Import, and Transfer 245 Convention) of 9 June 1977. More specifically, Annex XI of the Convention deals with the repression of illicit traffic in cultural property. At customs level the Annex supple ments the provisions of the 1970 UNESCO Convention, providing, for example, for action by customs officials of a Contracting Party in the territory of another Contracting Party. Where it is not sufficient for evidence to be given solely in the form of a written statement, the requested Party may, at the request of the Customs administration of a Contracting Party, authorize its officials to appear before a court or tribunal in the territory of the requesting Contracting Party as witnesses or experts in the matter of smuggling of cultural property. There is no doubt that a more proactive and interventionist approach to the import of objects will curtail illicit trade in cultural property. The United States has been spear heading the movement via its customs service. For some time now, and since the enact ment of the Convention on Cultural Property Implementation Act 1983, stopping the illegal import of cultural property has become an important part of the United States Customs Service mission. Anyone interested in importing any type of cultural property into the United States, for whatever purpose, must make sure to comply with all the relevant provisions of the United States law and to have all necessary documentation to prove to Customs that the import is legal. Failure to meet the stringent requirements of the United States law can easily result in the loss, without compensation, of any cultural property improperly imported into the country. Through the aggressive enforcement of the relevant laws, many cultural objects have been returned in recent years to Egypt and Nigeria, several Latin American countries, Greece and Italy, and other countries. Other countries should emulate this policy.

10.10 The European Union Apart from UNESCO and UNIDROIT Conventions, a notable multinational regulatory framework to combat illicit trafficking of cultural property is the European Union (EU) Council Regulation on the Export of Cultural Goods (the ‘Council Regulation’) first issued in 1992 and codified in 2009; and the Council Directive on the return of cultural objects unlawfully removed from the territory of a Member State (the ‘Council Directive’) of 15 March 1993. The Council Regulation establishes a licensing system for the export of cultural goods outside the EU, while the Council Directive outlines provi sions for the restitution of illegally exported cultural goods within the EU. As a common export regulation for trade with third countries, the EU seeks to ensure through the Regulation that no cultural object protected by any Member State will be exported without an export licence issued by the country of lawful location. The Directive, on the other hand, allows Member States to prohibit the removal of cultural objects from their territory and to enforce these prohibitions by bringing action for the return of the illegally removed objects in the law courts of any Member State where the object may be located. The two instruments are complementary. There is also the European Convention on the Protection of the Archaeological Heritage (Revised) 1992. It was first adopted in 1969. It is not as extensive as the UNESCO and UNIDROIT Conventions.

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246 Folarin Shyllon

11. Uniform Standard for Documentation and Identification If inventories and accurate descriptions of cultural objects do not exist, it will be very difficult subsequently to establish where an object came from and to whom it really belongs. Successful lawsuits for the return of cultural objects generally occur where the objects are documented and their ownership is clear. The critical role of adequate registration and documentation in the fight against illicit traffic in cultural property has been emphasized again and again in discussions at every session of UNESCO Intergovernmental Committee to date. At the Committee’s inaugural session held at the UNESCO headquarters in Paris in May 1980, ‘several delegates and observers brought up the question of inventories of cultural property, stressing the fundamental import ance of such instruments’.55 At the 5th Session in Paris in 1987, the Director of the Division of Cultural Heritage drew attention to ‘the fundamental role of inventories’.56 Thereafter, ‘the crucial importance of inventories as a means of putting on record and accurately supervising cultural property was confirmed by several speakers’.57 UNESCO has spearheaded the evolution of a straightforward cultural property documentation system. Already referred to several times in this chapter, it is known as the Object ID project. The Object ID, originally coordinated by the Getty Information Institute, was the outcome of collaboration among UNESCO, the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe, the European Union, ICOM, INTERPOL, and the United States Information Agency (USIA). The General Conference of UNESCO, at its 30th session in November 1999, recommended that all Member States use and promote Object ID—following its endorsement by the Intergovernmental Committee at its 10th session—as the international core documen tation standard for recording minimal data on movable cultural property and for identi fying cultural objects with a view to combatting illicit traffic in cultural property.

12. UNESCO–WCO Model Export Certificate for Cultural Goods The standard export certificate is meant to serve States as well as customs officials worldwide in combating illicit trafficking in cultural property. In developing the Model Export Certificate for Cultural Objects, comments by INTERPOL and UNIDROIT

55 IGC, First Session (1980), UNESCO Doc. 21/C83, 2. 56 IGC, Fifth Session (1987), UNESCO Doc. 24/C94, 1. 57 IGC, Fifth Session (1987), UNESCO Doc. 24/C94, 5.

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Grasping the Nettle of Illicit Export, Import, and Transfer 247 were taken into consideration and a comparison was made with the European Union standard certificate.58

13. International Committee of the Blue Shield The International Committee of the Blue Shield (ICBS) was created in 1996 to protect the world’s cultural heritage threatened by wars and natural disaster. It derives its name from the usage of the blue shield as specified in article 16 of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict as the distinctive emblem of the Convention. It brings together organizations engaged in the global protection of cultural heritage. It consists of representatives from five international organizations: the International Council of Museums (ICOM); International Council on Archives (ICA); International Council on Monuments and Sites (ICOMOS); International Federation of Library Associations and Institutions (IFLA); and the Coordinating Council of Audiovisual Archives Association (CCAAA).

14. Networking The illicit antiquities trade, as an article in International Journal of Cultural Property confirms, is conducted as a transnational criminal network.59 It therefore requires networking among law enforcement agencies across the globe to tackle the trade. This is something UNESCO and ICOM have tried to forge in recent years. At recent sessions of UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property, UNESCO partners (ICOM, INTERPOL, and WCO) have participated and given accounts of their efforts to stem illicit traffic. And as we saw earlier, in 2000 ICOM entered into bilateral cooperation agreements with INTERPOL and WCO. Representatives of the art trade have also become regular participants at the sessions of the Intergovernmental Committee. There must be synergy between the activities of the institutions, both governmental and non-governmental organizations, in the struggle against illicit traffic. This is the only way to tackle what is now widely regarded as crimes against our common cultural heritage.

58 UNESCO, Intergovernmental Committee, Secretariat Report to the 14th Session. Paris 5–6 June 2007, CLT–2007/CONF.211/COM.14/2, 4–5. 59 Peter B. Campbell, ‘The Illicit Antiquities Trade as a Transnational Network: Characterizing and Anticipating Trafficking of Cultural Heritage’ (2013) 20 International Journal of Cultural Property 113–53.

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248 Folarin Shyllon UNESCO has indeed grasped the nettle in the area of cooperation with other governmental and non-governmental agencies involved in the fight against illicit trafficking. It has even co-opted the art trade in its endeavour. The secretariat of the committee in its report to the 16th session of the committee discloses that UNESCO continues to deepen the professional relationships and dialogue it has established since 2008 with, among others, the auction houses of Christie’s and Sotheby’s, particularly from the perspective of improving the applicability of UNESCO’s International Code of Ethics for Dealers in Cultural Property.60 Additionally, UNESCO wishes to encourage a better mutual understanding, first, of the working methods of the art market and, second, of the international community’s concerns regarding the circulation of works of art and issues related to the return of cul tural property. In the report to the 17th session of the intergovernmental committee, the secretariat affirms that UNESCO continues to cooperate fruitfully with INTERPOL, UNDROIT, WCO, and ICOM in action to combat illicit trafficking. UNESCO and these organizations ‘communicate almost daily on matters relating, in particular, to the theft and illicit export of cultural property worldwide and to procedures to be followed to secure its restitution. Such cooperation yields tangible results.’61

15. Cooperative Network for the Protection against Trafficking in Cultural Property Thus, the cooperative network for the protection against trafficking in cultural property consisting of UNESCO, UNODC, INTERPOL, WCO, UNIDROIT, and ICOM has emerged. In this connection, representatives of this network’s members participate at each other’s meetings. At those meetings, representatives of UNODC lead discussions on the Organized Crime Convention and promote the Convention’s use as an effective international instrument in the fight against illegal traffic in cultural property, as well as providing information on UNODC’s activities related to protection against trafficking in cultural property and discussing with representatives of partner organizations modalities for better cooperation and coordination of activities in order to leverage resources and avoid duplication of efforts.62

60 See . 61 UNESCO, Intergovernmental Committee. Secretariat Report to the 17th Session, 4. 62 Citlalin Castaneda De La Mora, ‘The Work of the United Nations Office on Drugs and Crime in the Area of Illicit Trafficking in Cultural Property’ in Stefano Manacorda and Arianna Visconti (eds), Beni Culturali e Sistema (Vita E Pensiero 2013) 3–18, 14.

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Grasping the Nettle of Illicit Export, Import, and Transfer 249

16. Code of Ethics The sacred value of many cultural objects means that they take on a value enhanced by emotion and sense of identity. Many cultural objects are about the spiritual and intellec tual life of a community. Black-letter law cannot therefore fully settle the matter, and, as a complement to the laws, we now have codes of ethics enjoining museums, art dealers, and auctioneers not to acquire, buy, or handle objects of doubtful provenance. Gaps and loopholes remain in national legislation and international instruments, and the codes of ethics are invoked in order to impose a higher moral duty on the actors buying and selling antiquities. Codes of Ethics are intended to counter the problem of secrecy in the art market and close legal loopholes. Several art dealers associations in Europe and the United States, as well as the International Council of Museums (ICOM), have, beginning in the 1980s, promulgated self-denying ordinances enjoining their members to abide by the highest ethical stand ards in all dealings with cultural objects. This culminated in the 30th General Assembly of UNESCO in November 1999 adopting the International Code of Ethics for Dealers in Cultural Property. Its key provision is article 1, which reads: ‘Professional traders in cul tural property will not import, export or transfer the ownership of this property when they have reasonable cause to believe it has been stolen, illegally alienated, clandestinely excavated or illegally exported.’

17. Conclusion Codes of ethics do not replace the law; they complement it. And ethics have a higher moral status than law. Codes of ethics and international treaties are two important elements of the current, major international effort to prevent the damage caused by the illegal trade in cultural objects that continue to blossom. Another key element is increased globalization of cultural heritage law. Harmonization of private laws through the UNIDROIT Convention, harmonization of codes of ethics through the International Code of Ethics for Dealers in Cultural Property, and harmonization of identification of objects through Object ID indeed suggest that the goal of preventing the exploitation of differences in national laws through the requirement of diligence in the acquisition of cultural objects which these harmonization projects promote is attainable. This is, after all, what obtains in other areas of international trade—the acquisition of good title to property through unimpeachable and impeccable transfers. Finally, the creation of national cultural heritage police units by all countries is very important. As INTERPOL maintains in its brochure, a police squad dedicated to fighting crimes against cultural heritage ‘will help preserve the past, enjoy the present and protect the future’.63 63 INTERPOL, Creating a National Cultural Heritage Unit (n 1) 29.

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chapter 11

Wor ld Cu lt u r a l Her itage Francesco Francioni

1. Overview The idea that certain monuments and sites may have an exceptional and universal value and thus deserve special international protection started to emerge in the early 1960s1 and came to be fully recognized and legally codified with the adoption of the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (henceforth WHC). The concept of ‘world cultural heritage’ in this Convention identifies monuments, groups of buildings, and sites of ‘outstanding universal value’.2 The WHC occupies a special position in the ever-expanding body of international cultural heritage law of our time. This is for three fundamental reasons. First, with its 193 States Parties, it is a truly universal treaty in force for the protection of cultural heritage, distancing itself by far from the other multilateral instruments applicable in this field, including the 1954 Hague Convention on war and heritage3, the 1970 Paris Convention on illicit traffic,4 and the 2003 Convention on intangible cultural heritage.5 Second, it represents a major innovation by its unprecedented approach that brings together, under the concept of World Heritage, cultural properties and natural sites of exceptional importance, both subject to the same system of international cooperation for their identification, delineation, and protection. This was an unprecedented break with the established tradition of separation of the cultural and the natural domains in national 1 See C. Cameron and M. Roessler, Many Voices, One Vision: the Early Years of the World Heritage Convention (Routledge 2013) 12 ff. 2 Art 1, which adds that the outstanding universal value is to be assessed ‘from the point of view of history, art or science’ and, for sites, ‘from the historical, aesthetic, ethnological or anthropological point of view’. 3 See Chapter 3 in this Handbook. 4 See Chapter 9 in this Handbook. 5 See Chapter 15 in this Handbook.

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World Cultural Heritage 251 legislation and scholarship as well as in international law. Third, this convention has contributed to the reconceptualization of ‘cultural property’, a term used in the previous UNESCO documents, including the 1954 Hague Convention on the protection of cultural property in time of war and the 1970 Convention on illicit traffic, paving the way for its dynamic evolution into the more comprehensive concept of ‘cultural heritage’, understood as the inherited patrimony of culture, inclusive of the intangible heritage and living culture, and its relation to socio-economic aspects of the relevant human communities, as well as its link to the physical dimension of the natural environment.6 This dynamic evolution of concept and scope was all the more significant in 1972, the time of the adoption of the Convention, because it came to coincide with the dawn of the modern international law on the protection of the environment and the proclamation, the same year, of the Stockholm Declaration on the Human Environment.7 The bold choice of bringing together under the same system of international protection the cultural and natural heritage of exceptional importance reflects the emergence in the collective conscience of the international community of the need to cooperate toward the goal of preventing the destruction or degradation of both forms of heritage as part of the general interest of humanity. In its more than forty years of life since its entry into force in 1975, the WHC has evolved internally as a treaty regime within the UNESCO family, and it has influenced externally the progressive development of international cultural heritage law as well as of other fields of international law. The internal evolution has been characterized by an expansive interpretation of the convention’s text, without ever resorting to its formal revision or amendment. This has been made possible by a constant adaptation of the Operational Guidelines—the implementing regulations elaborated by UNESCO and the Intergovernmental Committee set up under article 8 of the Convention—to the changing technical and political needs of World Heritage conservation and management. This ‘silent’ evolution has led to a remarkable expansion of the scope of operation of the convention. New categories of World Heritage sites were introduced in the early 1990s with the inclusion within the scope of article 1—definition of world cultural heritage—of the important category of ‘cultural landscapes’,8 originally not contemplated by the Convention, and the consider ation of biodiversity in the assessment of the outstanding universal value of natural sites.9 New procedures were devised in the 1990s for the systematic monitoring of the 6 For an assessment of this evolution, see F. Francioni, ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’, in Abdulqawi A. Yusuf (ed), Standard Setting in UNESCO Vol 1 (Martinus Nijhoff 2007) 221–38. 7 Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, 11 ILM 1416 (1972). 8 On cultural landscapes, see K. Whitby-Last, ‘Article 1 Cultural Landscapes’, in F. Francioni and F. Lenzerini (eds), The 1972 World Heritage Convention. A Commentary (Oxford University Press 2008) 51–63, and, more recently, A. Strecker, Landscape Protection in International Law (Oxford University Press 2018). 9 On the definitional elements and the widening scope of ‘Natural Heritage’, see C. Redgwell, ‘Article 2 Definition of Natural Heritage’ in Francioni and Lenzerini, The 1972 World Heritage Convention (n 8) 66 ff.

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252 Francesco Francioni state of conservation of World Heritage properties by way of a creative interpretation of article 29. This article prescribed a generic States Parties’ obligation to provide periodic reports to the General Conference of UNESCO on the action taken at the national level to comply with the Convention. However, for the first twenty-five years of the Convention, this provision was quite ineffectual and was left to the discretion of States Parties. In 1997, after intense negotiations carried out within the World Heritage Committee, the 29th General Conference of UNESCO and the 11th Assembly of States Parties decided to use article 29 as the legal basis for the establishment of a true system of systematic monitoring through regular periodic reports by States Parties on the state of conservation of their listed sites.10 At the institutional level, the most important innovation was the creation in 1992 of the World Heritage Centre, a ‘focal point’ of coordination for all matters concerning world heritage.11 The Centre has helped mobilize professionals and experts in both cultural and natural heritage and has brought in the managerial skills necessary to attract resources for world heritage conservation from the public and private sector. As far as the external impact is concerned, it is worth remembering that the WHC has been interpreted as applicable law or referred to as relevant legal consideration by courts and tribunals operating in areas other than international cultural heritage law. In the field of international criminal law, the concept of world heritage has been used to assess the gravity of assaults on cultural property and to criminalize under international law the relative acts of individual perpetrators.12 In the field of international economic law, especially of investment law and arbitration, the WHC has been deemed to be applicable law in certain investor-State disputes,13 and it has been interpreted so as to treat the protection of world heritage as a legitimate aim capable of conferring upon the territorial States a wide margin of appreciation in interpreting its obligations arising from applicable investment treaties.14

2. Identification and Delineation of World Cultural Heritage The international protection of world cultural heritage begins with the identification of ‘monuments, groups of buildings and sites of outstanding universal value’. Article 3 of the Convention leaves to each State Party the initiative and the responsibility ‘to identify and delineate the different properties situated in its territory’, which may meet the 10 See B. Boer, ‘Article 29 Reports’ in Francioni and Lenzerini, The 1972 World Heritage Convention (n 8) 335–9. 11 On the establishment and early development of the World Heritage Centre, see Cameron and Roessler, Many Voices, One Vision (n 1) 204 ff. 12 This has happened in the case law of both the International Criminal Tribunal for Yugoslavia and the International Criminal Courts. See Section 10 as well as Chapter 5 in this Handbook. 13 See Section 10. 14 Ibid.

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World Cultural Heritage 253 threshold of ‘outstanding universal value’ in accordance with articles 1 (and 2 for natural heritage) of the Convention. This provision excludes that the identification and nomination of a property for possible recognition as ‘world heritage’ may be made ex officio by the organs of the Convention (the Committee) or by a State different from the territorial State. At the same time, the requirement that the property be ‘situated in the territory’ leaves some margin of uncertainty as to whether and how far properties located in marine areas may be eligible for recognition as world heritage under the Convention. In 2011, an Independent Evaluation on the Implementation of the Global Strategy by the UNESCO External Auditor recommended the States Parties to the 1972 World Heritage Convention ‘to reflect upon appropriate means to preserve sites that correspond to conditions of Outstanding Universal Value which are not dependent on the sovereignty of States Parties’. Following this recommendation, UNESCO and IUCN published a first report that identified an initial five locations of potential Outstanding Universal Value in the High Seas, including the Costa Rica Thermal Dome, the Lost City Hydrothermal Field, the White Shark Café, the Sargasso Sea, and the Atlantis Bank.15 In a recent Legal Expert Meeting held in Monte Carlo in December 2018 it was decided to recommend the amendment of the Operational Guidelines of the WHC in order to make possible the inscription in the List of marine sites beyond national jurisdiction.16 For the time being, however, these developments concern only natural heritage and are not, therefore, of direct relevance for the present chapter. The identification of cultural heritage deserving the qualification of world heritage presents several problems. First, what is the meaning and scope of ‘heritage’ under the Convention? Second, what are the criteria for determining the ‘outstanding universal value’ (OUV)? Third, how does the national level interact with the international level in the process of identification and delineation of the heritage? The first question can be answered in light of the dynamic evolution that the concept of ‘cultural property’ has undergone in the UNESCO normative action. The adoption of the concept of ‘heritage’ in this Convention represents a clear break with the terminology of ‘cultural property’ hitherto used in the UNESCO Conventions and Recommendations concerning the protection of cultural objects, movable or immovable.17 Besides being required by the Convention’s unitary approach to culture and nature, the term ‘heritage’ 15 See David Freestone, Dan Laffoley, Fanny Douvere, and Tim Badman, World Heritage in the High Seas: An Idea Whose Time Has Come (World Heritage Report 44, UNESCO Publishing 2016). 16 UNESCO, Report of the Expert Meeting ‘Protecting Sites of Potential Outstanding Universal Value in the High Seas’, Monte Carlo, 11–12 December 2018 (UNESCO 2018) (hereafter ‘Monte Carlo Report’), and UNESCO, Marine World Heritage 2019 Annual Report: A Rare Glimmer of Hope Amid Widespread Climate Uncertainty (UNESCO 2019). 17 See the Convention for the Protection of Cultural Property in the Event of Armed Conflict (opened for signature 14 May 1954 and entered into force on 7 August 1956), 249 UNTS 215 (hereafter ‘1954 Hague Convention’), together with the corresponding Recommendation adopted in 1954; the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (opened for signature 14 November 1970, entered into force 24 April 1972) 823 UNTS 231 (hereafter ‘1970 Convention’); and the Recommendation Concerning the Preservation of Cultural Property Endangered by Private or Public Works, 19 November 1968. All these instruments are reprinted in Yusuf, Standard Setting in UNESCO (n 6), Vol II.

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254 Francesco Francioni underscores the need to preserve inherited assets for future generations. At the same time it opens up the scope of protection to the human dimension of cultural objects and to the intangible aspects of culture, so as to transcend the traditional physical notion of property, while, at the same time, implying a general interest of humanity in its protection.18 The question of what must be understood as ‘outstanding universal value’ is not resolved in the text of the Convention. Article 1 defines cultural heritage as ‘monuments, groups of buildings, and sites’, for all of which the qualifier ‘outstanding universal value’ is used without a legal definition. This key concept of the WHC was already present in the travaux preparatoires of the Convention. The report of the Director General of UNESCO on the preliminary draft of the Convention stated that the system of protection established by the draft Convention would apply ‘only to such examples of the property . . . as merit designation by virtue of their exceptional aesthetic or their great importance as unique evidence of vanished civilizations or as irreplaceable architectural masterpieces typifying a particular period, an historical past or a genius of a people, as monuments, groups of buildings and sites of universal interest’.19 It is easy to detect in this early identification of the elements of the world cultural heritage the idea of heritage as physical monuments and sites of exceptional aesthetic and historical interest, an idea clearly linked to the Western conception of cultural masterpieces and to the notion of cultural patrimony (patrimoine culturel). The limits of such idea became evident already in the first years of operation of the Convention. With the first round of inscription in the late 1970s, the question of the ‘imbalance’ in the World Heritage Lists was raised in the World Heritage Committee. The imbalance was clearly represented by the prevalence of European properties selected on the basis of their ‘iconic’ value and their capacity to transcend cultural specificity. A new approach began to emerge in the 1980s and 1990s within the framework of the so-called ‘global strategy’—that is, a strategy aimed at rendering the World Heritage List a truly inclusive mirror of the infinite variety of human cultures, geographical areas, and artistic styles of the world. This search for a more comprehensive and pluralistic idea of cultural heritage has progressed hand-in-hand with the dynamic evolution of the criteria elaborated for the definition of the outstanding universal value (see Section 3). A first revision of the original six criteria used by the World Heritage Committee for the evaluation of the outstanding universal value of proposed properties occurred in 1994 at the 18th session of the World Heritage Committee. The revised criteria entailed a shift from the prevailing criterion of artistic achievement, as the hallmark of outstanding universal value, to the anthropological dimension of heritage reflecting human values, living cultures, and the interaction between the cultural and natural heritage. The revision opened the way for the rectification of imbalances in the List with respect to types of cultural heritage, 18 A. Yusuf, ‘Article 1: Definition of Cultural Heritage’ in Francioni and Lenzerini, The 1972 World Heritage Convention (n 8) 27 ff. 19 Preliminary Report drawn up in accordance with Article 10.1 of the Rules of Procedure concerning Recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4 of the Constitution, Doc SHC/MD/17, Annex II, 30 June 1971.

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World Cultural Heritage 255 regions, and historical periods not adequately hitherto represented. This new approach has permitted the inclusion in the List of new types of cultural properties, such as the already mentioned cultural landscapes, ingenious waterways and water management systems,20 modern architecture,21 outstanding technological achievements such as mountain railways,22 industrial heritage sites,23 and sites of spiritual value associated with exceptional events or living traditions.24

3. Determination of ‘Outstanding Universal Value’ Under article 11 of the Convention, the evaluation of cultural properties pursuant to the test of ‘outstanding universal value’ is a function of the World Heritage Committee, which makes its decisions with the assistance of its advisory bodies.25 This function is performed on the basis of general criteria for the inclusion of a cultural property in the World Heritage List (WHL). As already pointed out, these criteria are part of the Operational Guidelines periodically revised and updated by the World Heritage Committee. At present, the Operational Guidelines contain six criteria for the evalu ation of world cultural heritage and four for the evaluation of world natural heritage. The last revision of the six criteria applicable to cultural heritage dates to July 2017. Under paragraph 77 of the Operation Guidelines in force at the time of this writing, the World Heritage Committee shall consider property as having outstanding universal

20 See, for example, the Dujiangyan Irrigation System in China, listed in 2000, as well as the Augsburg Water Management Systems inscribed in the List in 2019. For a general overview of this subject, see J. Dout, The Water Industry as World Heritage: Thematic Study (The International Committee for the Conservation of the Industrial Heritage 2018). 21 In 2019, a series of buildings designed by the American architect Frank Lloyd Wright attained the status of World Heritage, including the famous Guggenheim Musem in New York and the iconic Fallingwater House. In 2007 the Sydney Opera House was inscribed in the World Heritage List. 22 Eminent examples are the Indian Darjeeling Himalayan Railway, listed in 1999 and further extended in 2005, the Semmering Railway (Austria), listed in 1998, and the Rhaetian-Bernina Railway, listed in 2008. 23 This category comprises outstanding examples of ‘company towns’ developed by enlightened industrialists in the eighteenth, nineteenth, and twentieth centuries to integrate workers’ needs into industrial production processes and architectural planning. Crespi D’Adda, Italy (inscribed 1995), Lanark, Scotland (2001), and Ivrea, Italy, the city of Adriano Olivetti (2018), fall into this category. 24 Sites memorializing events of outstanding universal significance include the Nazi extermination camp of Auschwitz-Birkenau, Poland (inscribed 1979), Goree Island, Senegal (1978), Robben Island, South Africa (1999), and Independence Hall, United States of America (1979). 25 Art 8 para 3 of the Convention identifies ICOMOS and ICCROM as advisory bodies for cultural heritage and IUCN for natural heritage.

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256 Francesco Francioni value, in accordance with article 1 of the Convention, if such property meets one or more of the following criteria, so as to: (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; (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 beliefs, with artistic or literary works of outstanding universal significance (the Committee considers that this criterion should preferably be used in conjunction with other criteria . . . ). The remaining criteria—(vii), (viii), (ix), and (x)—concern the determination of the outstanding universal value of natural heritage sites nominated for inscription in the List. In addition to satisfying one or more of the above criteria, the property nominated for inscription in the List must pass the preliminary test of authenticity and integrity. The condition of authenticity has given rise to many controversies and to practical problems in its application. The original idea of authenticity embodied in the Charter of Venice26 entailed the respect of the original status, materials, and structure of ancient monuments under restoration and the rejection of artificial and sometimes creative reconstruction of ancient buildings in the supposed or often imagined original status. But this rigorous approach to conservation and restoration was bound to face challenges and clear derogations dictated by practical necessities and political reasons. The extensive reconstruction of the ancient French city of Carcassonne presented a real problem of authenticity but could still be considered compatible with the Charter of Venice because of the rigorous approach followed by the French architect Eugene Violet le Duc in the painstaking reconstruction of medieval buildings on the basis of documentary evidence of their original status. More dubious was the inscription in 1988 of the medieval city of Rhodes in the World Heritage List in spite of the substantial additions brought to the 26 International Charter for the Conservation and Restoration of Monuments and Sites (The Venice Charter), adopted at the Second International Congress of Architects and Technicians of Historic Monuments, Venice, 1964.

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World Cultural Heritage 257 original medieval structure during the period of Italian administration of the island in the 1920 and 1930s. But the most glaring departure from the formal criterion of authenticity and from the principles laid down in the Charter of Venice was the inscription in 1980 of the Old Market Square in the historic centre of Warsaw. The square had been radically razed by Germans during their occupation of the city, and after the war it was painstakingly reconstructed by the Polish people as an important element of their national identity and as a powerful symbol of the rebirth of the nation. Obviously the inscription of the Old Market Square could not be based on the criterion of its authenticity as an outstanding example of medieval urban centre; its inscription in the List was rightly based on the important interchange of human values as per criterion (ii) and on the associative value of the square as a memorial of the brutality and cruelty of the war in accordance with criterion (vi). 27 But the need for relativization and adaptation of the criterion of authenticity has become more apparent in the practice of the Committee with regard to regions of the world where materials used for buildings and monuments are not marble or stone typical of the European tradition but perishable materials that require a constant renovation and replacement. This is clear with regard to the use of wood in the traditional construction of temples in Japan, China, and Nordic countries. It is also true of traditional earth and mud construction in Africa and the Middle East and adobe in the Americas. To enable the inscription in the List of this type of buildings it was necessary to redefine the concept of authenticity in terms of fidelity to the social, economic, and religious function of the building rather than its correspondence to the original physical structure and materials. This reconceptualization of the requirement of authenticity has found its most important expression in the Nara Charter adopted by ICOM-ICOMOS in 1994.28

4. The Process of Inscription in the World Heritage List The central feature of the WHC and its main source of attraction for States Parties is represented by the World Heritage List (WHL), a list of properties forming part of the cultural and natural heritage of outstanding universal value in accordance with articles 1 27 Criterion (ii): ‘The initiation of comprehensive conservation activities on the scale of the entire historic city was a unique European experience and contributed to the verification of conservation doctrines and practices’; Criterion (vi): ‘The Historic Centre of Warsaw is an exceptional example of the comprehensive reconstruction of a city that had been deliberately and totally destroyed. The foundation of the material reconstruction was the inner strength and determination of the nation, which brought about the reconstruction of the heritage on a unique scale in the history of the world.’ 28 The Nara Document on Authenticity was drafted by the forty-five participants at the Nara Conference on Authenticity in Relation to the World Heritage Convention, held at Nara, Japan, 1–6 November 1994, at the invitation of the Agency for Cultural Affairs (Government of Japan) and the Nara Prefecture. The Agency organized the Nara Conference in cooperation with UNESCO, ICCROM, and ICOMOS.

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258 Francesco Francioni and 2 of the Convention and with the Operational Guidelines criteria examined in the previous section. The List is administered by the World Heritage Committee, the intergovernmental body originally consisting of fifteen members, later expanded to twentyone members following the entry into force of the Convention for forty States. Pursuant to article 8(1) of the Convention, the members of the Committee are elected by the General Assembly of States Parties ‘during the ordinary sessions of the General Conference’ of UNESCO. Paragraph 2 of the same article provides that election of the members of the Committee must ensure the ‘equitable representation of the different regions and cultures of the world’. The nature of the Committee as an organ of States and not of individuals is mitigated by the provision in paragraph 3 of article 8 granting advisory status, and the right to have a representative attend the meetings of the Committee, to three scientific organizations (‘advisory bodies’): ICOMOS (the International Council on Monuments and Sites), ICCROM (the Rome Centre for the Study of the Conservation and Restoration of Monuments), and IUCN (the International Union for the Conservation of Nature).29 The relationship between the advisory bodies and the Committee is not always harmonious, especially in matters concerning the determination of the outstanding universal value of sites nominated for inscription in the List. We shall return to this question later in Section 10, devoted to contemporary challenges of the WHC. The path towards the inscription of a cultural property in the World Heritage List consists of three distinct phases. The first concerns the preparation by States Parties of a ‘Tentative List’—that is, an inventory of cultural properties or sites that, in the judgement of the relevant territorial State, have the potential for being considered of ‘outstanding universal value’ for the purposes of their inscription in the WHL. The obligation to submit a tentative list is an important one since the Committee does not inscribe a property in the WHL which has not been previously included in the tentative list by the nominating State. But it is only an obligation of ‘due diligence’. Article 11(1) provides that States Parties shall submit a tentative list only ‘in so far as possible’. As a matter of fact, only 178 States Parties out of 193 have submitted tentative lists to the WH Committee.30 The missing tentative lists concern States that experience technical, financial, administrative, and even political difficulties in preparing inventories of properties suitable for inscription in the WHL. These difficulties can be addressed by international assistance and educational programmes under articles 19–28 of the Convention.31 29 Besides these ‘institutional’ advisory bodies, art 8 (3) provides that States Parties may request that other competent intergovernmental and non-governmental organizations be invited to attend the meetings of the Committee in an advisory capacity. 30 Decision of the World Heritage Committee 38 COM 8 A Tentative Lists Submitted by States Parties as of 15 April 2014 in Conformity with the Operational Guidelines. 31 International assistance and capacity-building programmes are especially important in view of the implementation of the Global Strategy for a Representative, Balanced and Credible World Heritage List, adopted by the Committee in 1994. To this end, the Advisory Bodies and the Secretariat also hold regional training seminars to assist underrepresented States in the technical, legal, and administrative matters involved in the preparation of Tentative Lists and of single nominations. For a commentary on the articles of the Convention concerning international assistance, see A. Lemaitre and F. Lenzerini, ‘International Assistance’ in Francioni and Lenzerini, The 1972 World Heritage Convention (n 8) 305–25.

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World Cultural Heritage 259 The second phase of the procedure for inclusion of a cultural property in the WHL is the State Party’s submission of a specific nomination for inscription in the List. Such submission must come from the State Party in whose territory the nominated property is located. This is made clear by article 11(3) read in conjunction with articles 3, 4, 5, and 6. The submission may come also from a plurality of territorial States. This may happen when two or more contiguous territorial States decide to present a joint nomination of a shared site. An example is the French–Spanish inscription in 1997 of Monte Perdido/ Mont Perdu in the Pyrenees as a mixed cultural and natural site of outstanding universal value. Another type of joint transnational nomination is that of ‘serial transnational nominations’ which concern cultural properties that are not connected by the physical element of contiguity but rather by their belonging to a common cultural theme. This was the case with the Jesuit Missions of the Guaranis (joint nomination by Argentina and Brazil in 1983), the Belgian and French Belfries (joint nomination of 2005), and the Struve Geodetic Arc, an intangible cultural heritage inscribed in 2005 by joint nomination of ten States—Belarus, Estonia, Finland, Latvia, Lithuania, Moldova, Norway, Russia, Sweden, and Ukraine—memorializing the scientific work of the astronomer F. G. W Struve who, through cooperation with ten different countries, helped achieve the first accurate measuring of a long segment of a meridian, a fundamental step in establishing the size and shape of the Earth.32 The requirement that nominations for inscription in the WHL must come from the territorial State leaves open the question of whether extraterritorial sites may come within the scope of application of the World Heritage Convention. This question has arisen with regard to potential World Heritage Sites located in the sea or the seabed. A number of marine World Heritage Sites are already inscribed in the List on the basis of an extension of the coastal State’s territorial jurisdiction in the maritime area. Examples are the Great Barrier Reef (Australia) and the Portuguese port city of Angra de Heroismo. The problem concerns rather the possibility of inscribing in the WHL sites of cultural or natural value located in areas beyond national jurisdiction: the high sea and the international seabed area, Antarctica, and, in the future, also the Moon and other celestial bodies. At the time of this writing, the only possibility being discussed for inscription in the WHL of marine sites beyond national jurisdiction is, as already discussed in Section 2, the amendment of the Operational Guidelines to permit the inscription in the list only of natural sites under article 2 of the Convention.33 Cultural sites, such as archaeological remains and shipwrecks, would not be affected, at least for the time being, by this expansive reach of the Convention. The final stage in the process of inscription is the decision of the World Heritage Committee. Such decision is taken by a two-thirds majority of members present and voting, and, according to paragraphs 153–60 of the Operational Guidelines, may produce four different outcomes: 1) the actual inscription of the nominated cultural property; 2) 32 Joint transnational nominations are favoured by the World Heritage Committee. See Document WHC-08/32.COM/10B and the Report in Document WHC-10/34.COM/9B. 33 See the Monte Carlo Report (n 16).

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260 Francesco Francioni the non-inscription, which entails the consequence that the same property may not be presented again, save exceptional circumstances; 3) referral to the State Party for additional information to be examined at the next session of the Committee; 4) deferral, in case of the need of a more in-depth evaluation or of a substantial revision of the nomin ation by the State Party. Article 11, paragraphs 2 and 5, gives the Committee ample discretion in reaching a decision on the proposed nomination. Such discretion is limited by the independent, scientific role of the advisory bodies, ICOMOS and ICCROM, who are responsible for the assessment of the outstanding universal value of the nominated property pursuant to the detailed six criteria of the Operational Guidelines and to the condition of authenticity. However, the nature of the Committee as an intergovernmental body and the fundamental role that territorial sovereignty plays in the Convention— article 11(3) requires that the inscription of a property in the List may occur only with the consent of the State concerned—unavoidably entail a certain risk of politicization of the process, especially when there is no agreement between the Committee and the advis ory bodies as to whether the nominated property meets the requirement of outstanding universal value and authenticity.34 One of the main problems faced by the World Heritage Committee at the stage of the inscription of new properties in the WHL has been how to cope with the increasing rate of submissions and the corresponding increasing size of the World Heritage List. In the past twenty years several initiatives have been taken to keep under control the everexpanding number of sites inscribed in the List. At the Cairns (Australia) session on 2000, the Committee decided to put a ceiling of thirty new nominations to be examined yearly and to restrict to just one nomination for each State Party, with exceptions for States that had no sites inscribed in the List. In the event that the nominations submitted to the Committee exceeded the set maximum number, priority criteria were established in favour of States with no sites in the List and of sites not sufficiently represented in the List.35 The Cairn criteria became quickly very controversial, and many States considered their operation to be in conflict with the object and purpose of the Convention since States Parties have ‘the duty’ (art 4) to identify and protect sites of potential world heri tage value in their territory. Four years later, at the Suzhou (China) session, the Committee softened the Cairn criteria by increasing to forty-five the maximum number of nominations to be considered each year and permitting the submission of two nom inations per State, instead of one, provided that one of the two would concern a natural heritage. This last condition was dropped at the Christchurch (New Zealand) session of 2007 so that it would be for each State to decide whether to submit cultural or natural sites in accordance with each country’s history, geography, and national priorities. Finally, by decision of the Committee of 12 July 2017, amending the Operational Guidelines with effect as of 2 February 2018, States Parties will be required to submit

34 For a detailed analysis of the practice in this respect, see Tullio Scovazzi, ‘Article 8-11’ in Francioni and Lenzerini, The 1972 World Heritage Convention (n 8) 157–74. 35 For a discussion of the Cairns criteria, see Scovazzi, ‘Article 8-11’ (34) 167 ff.

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World Cultural Heritage 261 only one nomination per year with an overall limit of thirty-five nominations to be considered by the Committee.36

5. World Heritage in Danger Besides the World Heritage List, article 11 of the Convention provides, at its paragraph 4, for the establishment by the Committee of a List of the World Heritage in Danger—that is, a list of properties that have been previously included in the WHL and that are in need of measures of safeguarding due to a variety of factors that put in danger the world heritage value of the property. These factors are listed in article 11 paragraph 4 and include ‘the threat of disappearance caused by accelerated deterioration, large scale public or private projects, or rapid urban or tourist development projects; destruction caused by change 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. 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.’ At the time of this writing there are thirty-six cultural sites (and seventeen natural sites) inscribed in this List. Some examples are the old city of Potosi listed in 2004, the Port City of Coro (Venezuela) listed in 2005, and properties whose world heritage value is threatened by war and violence, as in the case of the Valley of Bamiyan (Afghanistan), inscribed in the WHL in 2003 in the wake of the infamous destruction of the Great Buddhas by the Taliban, the Old City of Shibam (Yemen), listed as endangered site in 2015, and the Medieval Monuments of Kosovo, listed in 2006. One of the most intractable issues that have arisen in the interpretation and application of the Convention is whether the consent of the territorial State is necessary for the inscription of a property in the List of the World Heritage in Danger. Under normal circumstances the application of article 11 paragraph 4 occurs in a context characterized by the presence of actual or potential dangers to the property for the conservation of which ‘major operations are necessary and for which assistance has been requested under this convention’. This language presupposes a perfect cooperation between the State Party in whose territory the endangered property is situated and the Committee who is responsible for the establishment of the List. But what if such cooperation fails, as in the case of a State Party which, for technical or political reasons or for nationalist pride, does not agree to the inscription of a property in the endangered list even in the face of an express recommendation to this effect made by the competent advisory bodies? This issue touches a raw nerve of the Convention—that is, the difficult balance between the principle of sovereignty of each State Party over the World Heritage Sites located in its 36 2017 Operational Guidelines, WHC.17/01, 12 July 2017, para 61.

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262 Francesco Francioni territory, as recognized by article 6(1) of the Convention, and the concept of ‘world heritage’, which presupposes the recognition of a general interest of all States Parties, and of the international community as a whole, in the safeguarding of the outstanding universal value of listed properties under the system of international cooperation established by the Convention. In this situation it is possible that a true ‘dispute’ may arise between the territorial State and other actors and stakeholders under the convention, including members of the Committee, advisory bodies, local and Indigenous communities linked to the contested site, and UNESCO itself. Such a dispute could certainly concern points of fact as well as points of law relating to the ‘interpretation and application of the Convention’, in particular article 11 paragraph 4. But the World Heritage Convention does not contain any mandatory provision or jurisdictional or arbitral clause for the settlement of disputes concerning the interpretation and application of the Convention. This gap has produced uncertainty since the well-known 1998 case of Kakadu National Park. The central issue in that case was whether the consent of the territorial State (Australia) was necessary for the inscription of the park in the endangered list due to danger posed to its world heritage value by the opening of a uranium mine at Jabiluka in a small enclave of the park. The stubborn refusal of the Australian government to consent to the inscription in the List of the World Heritage in Danger, even in the face of a specific recommendation to this effect by a fact-finding mission organized by the Committee and of protests by local Indigenous communities lamenting the desecration of their ancestral land by the mining operations, led to the final decision of the Committee not to inscribe the park in the List of the World Heritage in Danger. In the end, as a consequence of the worldwide reaction to this case, the uranium mine at Kakadu was not activated, and, thanks to the constructive dialogue between UNESCO and the international mining business, World Heritage Sites were declared to be no-go areas for mining activities.37 Nevertheless, Kakadu remains a bad precedent for several reasons.38 First, it clearly exhibits a failure by the Committee to interpret the Convention under the ordinary rules of treaty interpretation established by articles 31 of the Vienna Convention on the Law of Treaties: ‘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 light of its object and purpose.’ The text of article 11 paragraph 4 nowhere requires the consent of the State Party for the inscription of a site in the endangered list and in its final clause makes it clear that ‘[t]he Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger’. Thus, it is for the Committee to establish ‘at any time’ whether there is urgent need. This is a question of fact that the Committee may 37 UNESCO, World Park Congress Declaration, South Africa, 2003, press release, 22 August 2003. 38 Disclosure: the present writer was the chairperson of the fact-finding mission acting on the mandate of the World Heritage Committee. See UNESCO, Report of the Rapporteur on the Twenty-Second Session of the World Heritage Committee, Kyoto, 30 November–5 December 1998, WHC-98/conf.203/18, para VII.28.

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World Cultural Heritage 263 resolve by seeking the expert opinion of the advisory bodies or by organizing a fact-finding mission, as it did in the case of Kakadu. The second reason why Kakadu was a bad precedent is that it contributed to the current drifting of the Committee towards increased politicization of its decision-making and in particular towards giving overriding importance to sovereignty concerns as opposed to concerns for the proper conservation of World Heritage Sites under threat. This is all the more evident from the awkward and contradictory decision of the Committee refusing to inscribe Kakadu in the endangered list, as recommended by the independent experts panel, and at the same time expressing grave concerns for ‘the serious impact to the living cultural values of Kakadu National Park posed by the proposal to mine and mill uranium at Jabiluka’.39

6. Deletion from the World Heritage List The World Heritage Convention does not contain any express provision concerning the possibility that a property may be removed from the World Heritage List. However, as it is logically compelling that the power of the Committee to inscribe a property of outstanding universal value in the WHL implies the power to place the same property in the World Heritage in Danger list when there is ascertained actual or potential danger to its world heritage value, so it would be logical to hold that the body endowed with the authority to include a property in the WHL—the Committee—has also the power to decide its removal from the List. This conclusion is supported by the text of the Convention and by the practice of the World Heritage Committee. As for the text, article 11 paragraph 2 states that ‘the Committee shall establish, keep up to date and publish . . . a list of properties forming part of the cultural heritage and natural heritage, as defined in articles 1 and 2 of the Convention . . . An updated list shall be distributed at least every two years.’40 This language indicates that the inscription of a property in the WHL does not confer upon it a permanent and immutable status but a status that is subject to possible revision, either in the ‘positive’ sense of further additions, as it often happens, or in the ‘negative’ sense of its transfer to the List of the World Heritage in Danger or its ultimate deletion as a consequence of a change of circumstances irreversibly impacting on its world heritage value. This interpretation is consistent with the uniform practice followed by the World Heritage Committee which has always contemplated the possibility of a property being deleted from the WHL since the adoption of the Operational Guidelines in 1977 up to their most recent revision of 2017. Paragraph 192 of the latest 39 UNESCO, Report of the Rapporteur on the Third Extraordinary Session of the World Heritage Committee, Paris, 12 July 1999, WHC-99.conf.205–5. 40 Emphasis added.

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264 Francesco Francioni revision provides that the Committee shall consider the possibility of the deletion of an entry of the WHL in the following cases: a) Where the property has deteriorated to the extent that it has lost those characteristics which determined its inclusion in the World Heritage List; and b) where the intrinsic qualities of a World Heritage Site were already threatened at the time of its nomination by human action and where the necessary corrective measure as outlined by the State Party at the time, have not been taken within the time proposed.41 The exercise by the Committee of its power to delete a property from the WHL is not conditional upon the consent of the territorial State (or States). Although it is true that the consent of the territorial State is necessary for the inscription of a property in the World Heritage List, such consent is not of itself sufficient to determine the inscription in the List. This result depends on the positive evaluation of the outstanding universal value of the property by the advisory bodies and the corresponding decision by the Committee with the attached legal and technical conditions aimed at guaranteeing the good state of conservation of the World Heritage property. It is logical, therefore, that the Committee, which has the ultimate power to inscribe a property in the World Heritage List, has also the power to decide whether or not a property should be removed from the list whenever the conditions that justified its inscription have ceased to exist.42 This conclusion is confirmed by the text of paragraphs 196 and 197 of the Operational Guidelines which, reasonably, require only ‘consultations’ with the State Party but leave to the Committee the final decision, which is notified to the State Party. So far, only two properties have been deleted from the World Heritage List: the Arabian Oryx Sanctuary of Oman, a natural heritage site deleted in 2007; and the Dresden Elbe Valley, a cultural property nominated by Germany and deleted in 2009 after the decision by local authorities to proceed with the construction of a modern bridge crossing the Elbe river instead of building an underground tunnel as recommended by UNESCO. Deletion of a property from the WHL indicates that the property has irremediably and irreversibly lost its world heritage value. So, the decision to delete a property is fundamentally different and independent from the decision to inscribe a property in the List of the World Heritage in Danger. The latter list is meant for properties that, although endangered, maintain the original value for which they were placed in the World Heritage List. Instead, deletion presupposes that the property has lost its outstanding universal value so that it would be useless to place it in the World Heritage in Danger 41 Operational Guidelines, WHC.17/01, 12 July 2017, para 192. 42 The same conclusion has been reached by commentators and by expert opinion. See Gionata Buzzini and Luigi Condorelli, ‘Article 11, List of World Heritage in Danger and Deletion of a Property from the World Heritage List’, in Francioni and Lenzerini, The 1972 World Heritage Convention (n 8) 196 ff, and the legal opinion by Professor E. Franckx to the Permanent Delegation of Belgium to UNESCO, of 30 November 2001, 14–17 (on file with the author).

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World Cultural Heritage 265 List. For this reason we must conclude that the decision to delete a property from the World Heritage List does not require the prior inclusion of the same property in the List of the World Heritage in Danger.

7. Reporting on the State of Conservation of World Heritage Sites The inscription of a property in the World Heritage List is not of itself a guarantee for the protection of its outstanding universal value. For such protection a system of inter national supervision and monitoring is necessary within the framework of international cooperation established by the World Heritage Convention. However, the text of the Convention does not contain any specific provision on monitoring of the state of conservation of World Heritage properties. The only provision that has some relevance to this effect is article 29 whose paragraphs 1 and 2 require that States Parties shall submit to the General Conference of UNESCO, ‘on dates and in a manner to be determine by it’, on legislative and administrative measure and action that they have taken for the implementation of the Convention (art 29 para 1). Paragraph 3 of the same article contemplates a second type of reports—that is, the reports that the World Heritage Committee must submit on its activities at each of the ordinary sessions of the UNESCO General Conference. Given the generic language of article 29, it comes as no surprise that for the first twenty years of life of the Convention the reporting under this provision was rather ‘under utilized’43 and did not amount to an effective monitoring system of the state of conservation of properties inscribed in the WHL. Up to the early 1990s, reporting on cultural heritage was done mainly by UNESCO staff and on an ad hoc basis.44 It was only in 1994 that the Committee took the significant step of amending the Operational Guidelines by adding to the responsibilities of the Committee the function ‘to monitor the state of conservation of properties inscribed in the World Heritage List’.45 This required the establishment of an effective and systematic monitoring process beyond the formalistic and rather perfunctory language of article 29. However, the process involved in this task did not prove to be without difficulties. Some States, led by India,46 opposed the very idea of international monitoring, which resulted in a divided Assembly of States Parties at its tenth session of November 199547 and in an unprecedented conflict 43 This is the expression used in B. Boer, ‘Article 29 Reports’ (n 10) 336. 44 For a detailed reconstruction of the practice on reporting followed by the UNESCO Secretariat and the Advisory Bodies, see Cameron and Roessler, Many Voices, One Vision (n 1) 109–15. 45 WHC/2/rev. February 1994, para 3. 46 For a detailed reconstruction of the political controversy surrounding the estabishment of a monitoring system, see Cameron and Roessler, Many Voices, One Vision (n 1) 123 ff. 47 Summary Record of the General Assembly of States Parties, 2–3 November 1995, WHC-95/conf204/8, para 26.

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266 Francesco Francioni between the proactive position of the Committee on monitoring and the rather negative position of the General Assembly, which saw international monitoring as a threat to their sovereignty. It was only after intense and constructive work carried out during the Berlin (1995) and Merida (1996) sessions of the Committee that, in 1997, the 29th General Conference of UNESCO and the 11th Assembly of the States Parties finally decided to use the bare bones of article 29 as the legal basis for the establishment of a full-fledged system of monitoring and periodic reporting by States Parties on the implementation of the convention. Paragraph 201 of the Operational Guidelines specifies the main purposes of periodic reporting: a) to provide an assessment of the application of the World Heritage Convention by the State Party; b) to provide an assessment as to whether the outstanding universal value of the properties inscribed in the World Heritage List is being maintained over time; c) to provide updated information about the world Heritage properties to record the changing circumstances and state of conservation of the properties; d) 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. On the basis of these Guidelines, the first cycle of periodic reporting started in the year 2000 with the Arab region, to be followed by Africa, Asia-Pacific, Latin America and the Caribbean, and Europe and North America, according to a six-year cycle covering each of the geographic regions. Paragraph 206 of the Guidelines provides for a uniform format of questionnaires concerning States Parties reporting, which must include a) the specification of general national measures adopted by States Parties for the implementation of the Convention, and b) a specific report on the state of conservation of each World Heritage property located in the territory of the reporting State. As already mentioned, the second type of reporting contemplated by article 29 of the Convention concerns reports that the Committee must produce on its activities under the World Heritage Convention. According to the text of article 29 paragraph 3, the addressee of these reports is the General Conference of UNESCO. But the Operational Guidelines (para 24) provide that these reports must be submitted every two years also to the General Assembly of the States Parties.48 Besides the above-described reports by States Parties and by the Committee, special reports are required from the advisory bodies on their onsite missions and on the evalu ation of the outstanding universal value of properties nominated for inscription on the World Heritage List.49 Another important type of report is that concerning reactive monitoring on the state of World Heritage properties under threat. Current Operational Guidelines require States Parties to send a report on the state of conservation of the threatened property to the Committee through the World Heritage Centre by 1 February 48 Operational Guidelines, para 24 (h).

49 Ibid, para 31.

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World Cultural Heritage 267 of each year. Such reports are relevant to trigger international assistance and to prevent the eventual deletion of the property from the List. Other categories of reports are those of independent experts engaged in special on-site missions and those requested also from independent experts by the internal Oversight Service of UNESCO on the effectiveness of the World Heritage Convention as part of the evaluation of UNESCO’s standard-setting work in the culture sector. The latest of such reports on the World Heritage Convention was prepared by the present writer and published on 14 April 2014.50

8. International Assistance International assistance is at the core of the system of international cooperation established by the WHC. It represents the operational dimension of the principle of collective solidarity and commitment to the protection of cultural and natural heritage of outstanding importance for humanity as expressed in the Preamble of the Convention.51 Collective assistance is regulated by articles 19 to 26 of the Convention, which must be read in conjunction with articles 15 and 16 concerning the resources of the World Heritage Fund. According to article 16 paragraph 1 of the Convention States Parties must pay assessed contribution to the World Heritage Fund in accordance with a scale determined by the Assembly of the States Parties. Paragraph 2 of the same article permits States Parties to exempt themselves from the obligation to pay compulsory contribution by a declaration to this effect made at the time of their deposit of the instrument of ratification, acceptance, or accession. Such declaration does not free the declaring State from the obligation of contributing to the Fund. It simply renders its contribution ‘voluntary’ with the consequence that its amount may differ from what it would have been as an assessed contribution. This bizarre ‘double standard’ is the result of a difficult compromise reached during the negotiation of the Convention between States that wanted a system of compulsory contributions and those that opposed such a system, among them the Soviet Union, Thailand, and Czechoslovakia.52 The distinction between mandatory and voluntary contribution is relevant only for the quantum because also the ‘voluntary’ contributions are obligatory. This is confirmed by article 16 paragraph 5, which provides that failure to pay ‘compulsory or voluntary contributions’ for the current year and the calendar year immediately preceding will entail the sanction of not being ‘eligible as a member of the 50 Evaluation of UNESCO’s Standard Setting Work of the Culture Sector, Part III—Convention Concerning the Protection of the World Cultural And Natural Heritage, Final Report. Paris, 2014, IOS/ EVS/PI/132 REV.3. 51 The seventh paragraph of the Preamble states that ‘it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which although not taking the place of action by the State concerned, will serve as an effective complement thereto’. 52 For a detailed reconstruction of the legislative history of articles 15 and 16 of the Convention, see F. Lenzerini, ‘Articles 15–16’ in Francioni and Lenzerini, The 1972 World Heritage Convention (n 8) 269 ff.

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268 Francesco Francioni World Heritage Committee’. The resources of the Fund are essential for the implementation of the mechanism of international cooperation and of international assistance. Decision on the allocation of such resources are made by the World Heritage Committee in order to support the following categories of assistance: 1) preparatory assistance, which includes preparation of tentative lists, nomination of properties for the WHL, design of management plans and of conservation projects; 2) training of personnel operating in World Heritage Sites; 3) technical assistance, consisting in professional and material support activities related to World Heritage Sites; 4) emergency assistance in case of natural calamities or human activities causing adverse impacts on World Heritage properties; 5) promotional and educational programmes.53

9. The Impact of the WHC on International Law The foregoing analysis has shown how the World Heritage Convention has undergone a dynamic evolution of its system of international protection of cultural and natural heritage of outstanding universal significance and how, at the same time, it has profoundly influenced the domestic law and policies of States Parties with regard to the identification and conservation of cultural heritage of importance to humanity. A less visible and more nuanced influence of the World Heritage Convention can be found also at the level of general international law and of other discrete branches of international law. At the level of general international law, the World Heritage Convention has contributed to the consolidation of a general principle prescribing a duty of care and respect for cultural heritage of great importance for humanity and of special value for its representativity of the infinite varieties of human cultures.54 It has also contributed to the progressive development of the general principle of public participation in heritage decision-making at national and international level, a principle that now is codified in Principle 10 of the Rio Declaration55 and in the 1998 Aarhus Convention.56 Most important, the World Heritage Convention, with its holistic approach to culture and nature, has spurred the dynamic evolution of the narrow concept of ‘cultural property’ towards the more complex notion of ‘heritage’, which captures both the cultural and the natural, the tangible and the intangible, the public and private dimension, as well as the intergenerational 53 These categories have been developed in the practice of the World Heritage Committe on the basis of art 22 of the Convention. 54 On the role of ‘general principles’ in the international protection of cultural heritage, see Chapter 23 in this Handbook. 55 For a comment on this principle, see J. Ebbesson, ‘Principle 10: Public Participation’ in J. Vinuales (ed), The Rio Declaration on Environment and Development. A Commentary (Oxford University Press 2015) 287–309. 56 Convention adopted in 1998 within the United Nations Economic Commission for Europe (UNECE). Text available on the official site of UNECE .

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World Cultural Heritage 269 value associated with the creative expressions, practices, and spaces that human communities recognize as part of their cultural traditions and identity. As far as the impact on specific branches of international is concerned, two areas are especially relevant: that of international economic law and that of international humani tarian law. In the first, the World Heritage Convention has played an important role as a driver of foreign investments that can enhance economic development of the areas where cultural heritage is located through the great visibility and appeal of World Heritage Sites. At the same time, the World Heritage Convention has been the source of applicable law and of interpretative criteria in contentious cases involving foreign investors and the host State of the investment. We can recall that in the SSP v Egypt arbitration, concerning a dispute arising from the cancellation by Egypt of a large-scale tourist development by a foreign corporation in the area of the pyramids, a World Heritage Site since 1979, the arbitral tribunal held the World Heritage Convention to be the applicable law, capable of trumping investors’ rights arising from the relevant investment agreements binding upon Egypt.57 In Parkering v Lithuania, concerning a complaint filed by a Norwegian company for the alleged breach of a bilateral investment agreement between Norway and Lithuania, the Tribunal concluded that the preferential treatment given by the municipality of Vilnius (Lithuania) to a Dutch competitor of the Norwegian bidder for the construction of parking facilities in the Old Town of Vilnius was justified by the World Heritage status of the city. The award explicitly states that ‘the Old City of Vilnius did have legitimate grounds to distinguish between the two projects’.58 No less important is the influence that the World Heritage Convention has had on the progressive development of international humanitarian law and of the related branch of international criminal law. In this field, the World Heritage Convention has provided the standard of reference for the determination of the international public interest in the protection of cultural sites attacked during armed conflicts and terrorist operations, with the consequent criminalization of the perpetrators of the attacks. This has happened in the case of the deliberate bombing of the Old City of Dubrovnik during the Yugoslav war, in application of article 3 (d) of the Statute of the International Criminal Tribunal for Yugoslavia.59 More recently, the International Criminal Court has convicted and sentenced Ahmad Al Mahdi, a Malian civil servant responsible for the wanton destruction of World Heritage shrines and monuments in Timbuktu during the 2012 conflict.60 57 While the arbitral tribunal found that the World Heritage value of the site justified Egypt’s decision to cancel the development contract signed with the foreign investor, Egypt was found liable to pay compensation for the damage caused to the investor before the critical date of the inscription of the pyramids in the WHL. SSP v Egypt, ICSID Case No ARB/84/3, 20 May 1992, para 78 of the award. 58 Parkering Compagniet AS v Lithuania, ICSID Case No ARB/05/08, 11 September 2007, para 301. 59 Prosecutor v Pavle Strugar (Trial Chamber II, 31 January 2005) IT-01-42T, especially para 301. 60 Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment of 28 September 2016) ICC-01/12–01/15. An order followed on 17 August 2017 requiring Al Mahdi to provide reparations of 2.7 million euros for damage caused to the heritage of Mali and to the international community as a whole.

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270 Francesco Francioni

10. Conclusion With 193 States Parties and more than a thousand sites inscribed in the List, it is clear that the World Heritage Convention is the most successful of the normative instruments adopted by UNESCO for the protection of cultural heritage. The strength of the system, as I have tried to illustrate in the foregoing analysis, is in its evolutive and adaptive character, which has produced a significant expansion of its scope and of the administrative and overseeing functions of its organs. Examples of this dynamic capacity are the extension of the concept of cultural heritage to landscapes, originally not contemplated in the text of the Convention; the constant re-elaboration of the concept of ‘world cultural heritage’ to take into account the need to maintain a balanced and representative List; and the current trend to extend the reach of the WHC to marine areas beyond national jurisdiction, this trend, at this time, being limited to natural heritage. At the institutional level, the effectiveness of the Convention has been enhanced by the establishment of a professional secretariat represented by the World Heritage Centre; and the development of an original system of monitoring of the state of conservation of World Heritage properties by a creative interpretation of article 29 of the Convention. Behind this unquestionable success, however, the World Heritage Convention presents also some critical aspects, which need to be addressed lest its credibility and efficacy be threatened. One such critical aspect is the increasing number of World Heritage properties inscribed in the List at a time when resources available to UNESCO are diminishing. This makes the international monitoring of the state of conservation of World Heritage properties more difficult, with the consequent need to rely on a ‘responsible’ use of sovereignty by the States Parties as agents of the proper implementation of the Convention.61 Another critical aspect is the increasing politicization of the process leading to the inscription of a property in the World Heritage List and the List of World Heritage in Danger. The risk of excessive politicization has sometimes reached the critical level of an open conflict between the positions of the advisory bodies and the Committee on the eligibility of a proposed site for the World Heritage List. 62 Another potential area of conflict concerns the relationship between the process of nomination and inscription of World Heritage Sites and the respect for norms of international law protecting the rights of local and Indigenous communities determined to maintain full control over the nominated site. The tension in this respect may arise from the inter national recognition of the rights of Indigenous peoples under the 2007 UN Declaration63 and the ‘sovereignty’-oriented approach of the WHC, which gives States Parties the 61 See Evaluation of UNESCO Standard Setting (n 50) 46. 62 This question was debated at the 2012 Kyoto meeting on the 40th anniversary of the Convention. See the final report of the meeting, Looking Forward: Report on the 40th Anniversary of the World Heritage Convention (World Heritage 2013). 63 General Assembly Resolution of 13 September 2007 on the United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295.

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World Cultural Heritage 271 exclusive right to identify and nominate properties for inscription in the World Heritage List. In this respect, as well as in others, the future of the World Heritage Convention depends to a large extent on its capacity to maintain a balance between the general interest of the international community to preserve and protect cultural sites of outstanding universal importance and the particular interests and rights of the local people and communities who have contributed to their creation and maintenance and who legitim ately claim to remain actors in their sustainable development and transmission to future generations.

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chapter 12

L a n dsca pe as Cu ltu r a l H er itage Amy Strecker

1. Introduction This chapter provides an overview of the protection of landscape in international cultural heritage law. Since the inclusion of ‘cultural landscapes’ within the scope of the UNESCO World Heritage Convention in 1992, landscape has gained increasing import ance at the international level. World Heritage ‘cultural landscapes’ were intended to give recognition to the intangible and associative values attached to certain landscapes, to sustainable agricultural practices, and to ‘people and communities’—essentially the human dimension of landscape. However, given the focus of the World Heritage Convention on landscapes of ‘outstanding universal value’, it was not until the adoption of the European Landscape Convention in 2000 that landscape became democratized. The European Landscape Convention conceives of landscape above all as a people’s landscape and, accordingly, provides for the active participation of the public in the formulation of plans and polices. It focuses not only on outstanding places but also on the everyday and degraded landscapes where most people live and work. This ostensibly brings ‘landscape’ back to its early etymological origins—when it corresponded to a close-up, lived-in perspective—and has a number of implications for human rights and democracy. This chapter is structured as follows. First, it traces the origins of the term ‘landscape’ itself. It then moves on to charting the development of the international framework for landscape protection, from its early origins in soft law to becoming part of the scope of the World Heritage Convention to eventually becoming an independent strand of international law in its own right. I intend to demonstrate that there exists an emergent international landscape law that connotes not abstract beauty standards but the rich and diverse relationships that people have with places that matter to them. In this way, landscape represents the wider changes taking place in international cultural heritage

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Landscape as Cultural Heritage 273 law, changes that emphasize heritage not only for its material, tangible qualities but also for the intangible associations, customs, and lived-in experience attached to places and sites for individuals, communities, and society more broadly.1

2. The Etymology of ‘Landscape’ and Its Conceptualization as Heritage The term ‘landscape’ has many nuances of meaning, which can be traced to its varying etymological and epistemological origins. According to Wolfgang Haber, the term ‘landscape’ combines ‘land’ with a word of ancient German origin, the verb ‘scapjan’, which means to work, to be busy, to do something creative—mostly with a plan in mind.2 In this understanding, landscape meant a sheaf, a patch of cultivated ground, something small-scale that corresponded to a ‘peasant’s perception.3 During the evolution of the Germanic languages, ‘scapjan’ became ‘schaffen’ in German. Richard Hartshorne has shown that the German term Landschaft was thought to relate to a restricted piece of land but also a perceived appearance of a piece of land and, in some German contexts, ‘a region’.4 Likewise, according to John B. Jackson, landscape signified a tract of land which could be seen at a glance and which could be defined as a unit or territory, often the territory of a small rural community.5 Kenneth Olwig has conducted extensive research on the early origins of landscape. In his seminal paper ‘Recovering the Substantive Nature of Landscape’,6 he argues that Landschaft in fact contained meanings of great significance for the construction of personal, political, and place identity at the time it entered the English landscape. In particular, Olwig emphasizes the elements of territory and community, community justice, body politic, and custom as inherently embedded in early landscape (or the Norse conception of landskapr),7 thereby going beyond the territorial and scenic conceptualization that later emerged and illustrating that, in essence, it was customary law and human interaction that lay at the root of the term. 1 For an extended, more detailed analysis of landscape protection in international law, see A. Strecker, Landscape Protection in International Law (Oxford University Press 2018). 2 Wolfgang Haber, ‘Concept, Origin and Meaning of “Landscape” ’ in Bernd Von Droste et al. (eds) Cultural Landscapes of Universal Value: Components of a Global Strategy (Gustav Fischer Verlag with UNESCO 1995) 38–42. 3 Barbara Bender, ‘Landscape-Meaning and Action’ in B. Bender (ed), Landscape: Politics and Perspectives (Berg 1993) 2. 4 Richard Hartshorne, ‘The Nature of Geography: A Critical Survey of Current Thought in Light of the Past’ (1939) 29(3) Association of American Geographers 173–412. 5 John Brinckerhoff Jackson, ‘The Vernacular Landscape’ in Edmund Charles Penning-Roswell and David Lowenthal (eds), Landscape Meaning and Values (Allen & Unwin 1986) 65. 6 Kenneth Olwig, ‘Recovering the Substantive Nature of Landscape’ (1996) 86 Annals of the Association of American Geographers 630–53. 7 Ibid, 631.

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274 Amy Strecker This meaning has some parallels with the Latin etymology of ‘landscape’ in Italian and French (paesaggio, paysage), which contains two parts: pagus and ager. Pagus is the peas ant’s village and ager is the field the peasant population of the village is cultivating. However, during the Renaissance and the rise of the State, the concept of landscape as land and local custom became increasingly subverted in favour of a more scenic, terri torial conception. Olwig has shown how the concept of landscape developed from its early connotation, of an area belonging to and shaped by a people, to its Renaissance application, meaning such an area depicted in painting.8 In medieval England, accord ing to Marvin Mikesell, the word denoted a piece of land occupied by a particular group or controlled by a particular lord.9 By the late nineteenth century, however, it was regarded as a portion of territory that the eye could comprehend in a single view. Landscape’s scenic connotations developed in the immediate post-medieval period, when the Dutch Landschap painters were exerting their influence. The term came to be associated increasingly with the painting of natural scenery or a painting of rural sur roundings as an idealized picture of nature. At one point, notes Michael Jones, the words ‘nature’ and ‘landscape’ became almost synonymous.10 The scenic conceptualization of landscape is evident in early national laws aimed at landscape protection, which, in Europe, date as far back as the nineteenth century.11 Landscape was for a long time attached to national laws concerning nature protection in the form of national parks or reserves (remarkable natural landscapes) or to the protec tion of historic monuments emphasizing the aesthetics or beauty of landscape.12 In both cases, emphasis was on the idea of landscape as scene or setting, to which people were somehow external.

3. Early International Protection of Landscape 3.1 UNESCO Instruments International law began specifically to address the question of landscape protection in the 1960s, mainly in the form of soft-law instruments adopted under the auspices of 8 Michael Jones, ‘The Elusive Reality of Landscape. Concepts and Approaches in Landscape Research’ (1991) 45 Norsk Geografisk Tidsskrift 229–44. 9 Marvin Mikesell, ‘Landscape’ in D. L. Sills (ed), International Encyclopaedia of Social Sciences, 8 (Collier & Macmillan 1968) 575–80. 10 Jones, ‘The Elusive Reality of Landscape’ (n 8) 22. 11 The first was the Danish The Forest Reserve Act 1805. Lines of demarcation were drawn up and fixed, and the forests have since been a permanent feature of the cultural landscape. They were to be used for the production of timber and fuel and were no longer to be utilized for grazing. 12 For example, the French Loi du 12 aout 1911 sur La conservation de la beauté des paysages, or the Spanish Ley de Parques Nacionales of 1916. See also Thomas King, ‘Cultural Heritage Preservation and the Legal System with Specific Reference to Landscapes’, in L. R. Lozny (ed), Landscapes under Pressure: Theory and Practice of Cultural Heritage Research and Preservation (Springer-Verlag 2006) 243–54.

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Landscape as Cultural Heritage 275 UNESCO and the Council of Europe. In these early instruments, the cultural and natural dimensions to landscape are largely dealt with separately. For example, the UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites of 196213 focused on the aesthetic value and beauty of land scapes to be safeguarded and protected. Terms such as ‘virgin land’ and ‘dangers which threaten them’ are emblematic of the concern within the Recommendation of the accel eration of modern society and the effects of industrial and commercial development but also of the misconception that landscape is predominantly a ‘natural’ construct, some how external to human interaction. A further UNESCO initiative followed in 1968 with the adoption of the Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works,14 which refers to immovables such as archaeo logical and historic or scientific sites, as well as their ‘setting’. The Recommendation set down general principles for the preventive and correctives measures aimed at protect ing cultural property from public or private works likely to damage or destroy it, includ ing the ‘construction and alteration of highways which are a particular danger to sites or to historically important structures or groups of structures’,15 the ‘construction of dams for irrigation,’16 pipelines,17 farming operations, and afforestation.18 An innova tive feature of the Recommendation was the provision to carry out surveys—essentially impact assessments—in advance of any public or private works.19 In particular, the Recommendation places emphasis on the preservation in situ of cultural property endangered by public or private works ‘in order to preserve historical association and continuity’.20 A third UNESCO recommendation, concerning the Safeguarding and Contemporary Role of Historic Areas of 1976,21 does not mention the word ‘landscape’ itself, although it indirectly relates to landscape protection by referring to a variety of historic areas and open spaces.22 The Preamble notes the human dimension to land scapes by emphasizing the importance of historic areas for the ‘daily environment of human beings everywhere’ which ‘represent the living presence of the past which formed them . . . [and] provide the variety in life’s background needed to match the diver sity of society, and that by doing so they gain in value and acquire an additional human dimension’ (emphasis added). It can be observed that the human dimension referred to above is seen as an appendage to the site in question, rather than intrinsically part of it, and that historic areas are part of life’s background, rather than foreground. Accordingly, in the early instruments, the measures to be adopted by the State relate mostly to preservation, conservation and restoration. The Recommendation concerning the 13 UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites, adopted on 11 December 1962. 14 UNESCO Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, adopted on 19 November 1968. 15 Art 8(d). 16 Art 8(e). 17 Art 8(f). 18 Art 8(h). 19 Art 22. 20 Art 9. 21 Adopted on 26 November 1976. 22 Article 1(a) states: ‘Historic . . . areas shall be taken to mean any groups of buildings, structures and open spaces including archaeological and paleontological sites, constituting human settlements in an urban or rural environment, the cohesion and value of which, from the archaeological, architectural, prehistoric, historic, aesthetic or socio-cultural point of view are recognized.’

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276 Amy Strecker Safeguarding of the Beauty and Character of Landscapes and Sites, for example, extends the scope of its measures to the whole territory,23 its measures being solely of a protective and preservation nature, even though it is inconceivable that the whole territory might be preserved. However, the Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas of 1976 did have some innovative features for its time: it noted the role of local, regional, and national planning, as well as the responsibilities of citizens, and, notably, Article 13 established the obligation to provide ‘machinery for appeal against arbitrary or unjust decisions’. The Recommendation concerning the Protection, at National level, of the Cultural and Natural Heritage (1972), adopted by UNESCO at its seventeenth session to comple ment the World Heritage Convention, recognized that ‘cultural and natural heritage should be considered in its entirety as a homogeneous whole, comprising not only works of great intrinsic value, but also more modest items’.24 The duty to preserve—and a fortiori not to destroy—cultural and natural heritage was recognized because ‘every country is whose territory there are components of the cultural and natural heritage has an obligation to safeguard this part of mankind’s heritage and to ensure that it is handed down to future generations’.25 A notable feature of the Recommendation is its inclusion of provisions on land use,26 something that was not referred to in the text of the World Heritage Convention, perhaps due to the notion that land use is a matter for municipal law. The scope of the Recommendation was understandably wider, given that it applies to all cultural and natural heritage—even the more ‘modest items’. However, the m ention of land use and production in such an early instrument was to foresee some of the devel opments being made later at UNESCO, when discussion on agricultural landscapes began. Interesting to note, however, is that one of the provisions relating to land use in the Recommendation refers only to natural, not cultural, heritage: ‘member states should develop short and long range plans, based on inventories of their natural heritage, to achieve a system of conservation to meet the needs of their countries’.27 The following provision provides for an ‘advisory service to guide non-governmental organisations and owners of land on national conservation policies consistent with the productive use of land’, which inherently recognized the role of famers and associations. Yet the omission of ‘culture’ from the article on planning failed to consider the range of cultural heritage present in a rural context.28

3.2 Council of Europe Instruments Landscape is implicated in a number of treaties adopted under the auspices of the Council of Europe, namely the Berne Convention on the Conservation of European 23 Art 3. 24 Art 5. 25 Preamble. 26 Arts 37 and 38. 27 Art 37. 28 It also reflected the thinking that had been the norm—that rural landscapes were in fact ‘natural’. See next section on the World Heritage Convention.

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Landscape as Cultural Heritage 277 Wildlife and Natural Habitats (1979),29 the European Convention on the Protection of the Architectural Heritage (Granada, 3 October 1985)30 and the European Convention on the Protection of the Archaeological Heritage, also known as the Valletta Convention (Valletta, 16 January 1992).31 In addition, a number of Council of Europe recommendations deal directly (and indirectly) with the issue of landscape protection: Recommendation No. R(95)9 of 11 September 1995 of the Committee of Ministers on the integrated con servation of cultural landscape areas as part of landscape policies; Recommendation 79 (9) of the Committee of Ministers concerning the identification and evaluation for the protection of natural landscapes; Recommendation No. R(89)6 of the Committee of Ministers of 13 April 1989 relating to the protection and enhancement of rural architec tural heritage; and Recommendation No. R (80) 16 on the specialized training of archi tects, town planners, civil engineers, and landscape designers. Landscape is conceived as cultural heritage in both the European Convention on the Protection of the Architectural Heritage and the Convention on the Protection of the Archaeological Heritage. In relation to the former, landscape is connected to the setting of architectural sights and, thus, the aesthetic experience of the site in its context. The definition of the architectural heritage in the Convention includes ‘sites: the combined works of man and nature, being areas which are partially built upon and sufficiently distinctive and homogeneous to be topographically definable and are of conspicuous historical, archaeological, artistic, scientific, social or technical interest’.32 Article 7 provides that ‘in the surroundings of monuments, within groups of buildings and within sites, each Party undertakes to promote measures for the general enhancement of the environment’. Both articles obviously imply landscape considerations and the approach adopted by the Convention is a conservationist one, concerned with the increased homogeneity of building materials and the loss of vernacular character.33 Recommendation No. R(89)6 of the Committee of Ministers of 13 April 1989 relating to the protection and presentation of rural architectural heritage is based on the fact that the evolution of agricultural production and the social changes that result threaten trad itional rural architecture and, as a result, the landscape. The European Convention on the Protection of the Archaeological Heritage of 1992 replaced the earlier London Convention (1969)34 and focuses on archaeological heritage in a much wider sense, as part of the cultural landscape. No direct reference to landscape is made in the Convention, yet the obligations imposed on States Parties regarding the identification and measures for protection involve landscape as an indirect concern. Article 2, for 29 Council of Europe, Convention on the Conservation of the European Wildlife and Habitats (opened for signature 19 September 1979, entered into force 1 June 1982), ETS No. 104. 30 Council of Europe, Convention on the Protection of the European Architectural Heritage (opened for signature 3 October 1985, entered into force 1 December 1987), ETS No. 121. 31 Council of Europe, European Convention on the Protection of the Archaeological Heritage (opened for signature 16 January 1992, entered into force 25 May 1995), ETS No. 143. 32 Art 1(3). 33 See Arts 10 through 13. 34 Council of Europe, European Convention on the Protection of the Archaeological Heritage, ETS No. 66 (n 31).

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278 Amy Strecker example, states that each party shall provide for ‘the maintenance of an inventory of its archaeological heritage and the designation of protected monuments and areas’ and create ‘archaeological reserves, even where there are no visible remains on the ground or under water, for the preservation of material evidence to be studied by later generations’.35 Perhaps the most elaborate initiative adopted under the auspices of the Council of Europe prior to the European Landscape Convention was Recommendation No. R(95)9 of 11 September 1995 on the integrated conservation of cultural landscape areas as part of landscape policies.36 The Recommendation outlines a European strategy for action to conserve and manage cultural sites, delimited topographically, which attest to the presence of physical traces reflecting former uses of land and distinctive activities, skills or tradi tions, or the artistic or literary representations inspired by them, or the significance of places for the historical events that took place there.37 The concept of landscape is broad ened substantially in this instrument, and it can be seen as a precursor to the European Landscape Convention in its structure, scope, and aims.

4. Landscape as World Heritage 4.1 Natural Landscapes and the First Twenty Years When the Convention on the Protection of the World Cultural and Natural Heritage (hereafter the World Heritage Convention) was adopted in 1972, it was considered innovative because it provided for the protection of both natural and cultural sites—a fact discernible from the use of the term ‘heritage’ instead of ‘property’ in its title.38 However, selection criteria were nevertheless separated into natural and cultural sites at the time of drafting. Nature conservationists believed that the less human interference there had been in a given area, the ‘better’ or more authentic it was.39 Although no expli cit mention was made of landscapes in the original text of the Convention, the Operational Guidelines referred to landscapes under the criteria for natural heritage, namely as examples of the ‘interaction between man and his environment’, with ‘terraced agricultural landscapes’ provided as an example.40 Landscape was also referred to under cultural criteria but only in relation to ‘garden and landscape design’. A new paragraph was introduced into the 1980 Operational Guidelines emphasizing the importance of 35 Arts 2(i) and 2(ii). 36 Adopted by the Committee of Ministers, 11 September 1995 at the 543rd meeting of the Ministers’ Deputies. 37 Art 1. 38 Convention concerning the Protection of the World Cultural and Natural Heritage (opened for signature 16 November 1972, entered into force 17 December 1975), 1037 UNTS 151 (hereafter World Heritage Convention). 39 Peter Fowler, Landscapes for the World (Windgather Press 2004) 4. 40 Operational Guidelines for the Implementation of the World Heritage Convention, CC-77/ CONF.001/8 Rev, para 10 ii(c).

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Landscape as Cultural Heritage 279 ‘mixed sites’,41 and the reference to ‘terraced agricultural landscapes’ was removed from the list of natural criteria. But in 1984 it returned when the issue of mixed natural/ cultural sites and rural landscapes was raised by the Rapporteur—reference being made to ‘exceptionally harmonious, beautiful, man-made landscapes as epitomized by the ter raced rice-fields of South East Asia, the terraced fields of the Mediterranean Basin or by certain vineyard areas in Europe’. Despite this reference to mixed sites, however, in the following years most landscapes were inscribed on the World Heritage List under natural criteria only. This often precluded any recognition of communities who for generations had lived there and who had managed the landscape (and for whom the landscape was sacred in some cases). Indeed, in the early years of the Convention’s implementation, there was an assumption that natural heritage was pristine, without the influence of humanity.42 Due to these problems, the World Heritage Committee requested the IUCN, ICOMOS, and the International Federation of Landscape Architects to form a task force with the aim of developing guidelines for the identification and nomination of mixed natural and cultural sites.43 A first meeting was held in 1985 and guidelines were drafted, although when the UK put forward the nomination of the Lake District National Park in 1987 as a potential mixed natural/cultural landscape, the Committee opted not to make a decision until specific criteria could be developed for cultural landscapes.

4.2 Cultural Landscapes In 1992, the first expert meeting on World Heritage cultural landscapes was held in La Petite Pierre, France.44 On the basis of the recommendations of the meeting, the Operational Guidelines were subsequently revised to officially include ‘cultural landscapes’45 within the scope of the Convention and were adopted by the sixteenth 41 As the combination of ‘natural and cultural sites’. Operational Guidelines for the Implementation of the World Heritage Convention (1980) UNESCO Doc WHC/2 Rev, p 4, para 13. 42 See for example UNESCO, 1st Session of the World Heritage Committee: CC-77/CONF.001/9, 19 October 1977. 43 Mechtild Rössler, ‘UNESCO and Cultural Landscape Protection’ in Bernd von Droste et al. (eds), Cultural Landscapes of Universal Value: Components of a Global Strategy (Gustav Fisher Verlag with UNESCO 1995) 42–9; Peter Fowler, World Heritage Papers 6. World Heritage Cultural Landscapes 1992– 2002 (UNESCO World Heritage Centre 2003). 44 On the genesis of the concept within the World Heritage Convention, see Mechtild Rössler, ‘Linking Nature and Culture: World Heritage Cultural Landscapes’ in Cultural Landscapes: The Challenges of Conservation, World Heritage Paper 2002, Shared Legacy, Common Responsibility; Associated Workshops, 11–12 November 2002 (Ferrara), 10; Peter Fowler, ‘World Heritage Landscapes, 1992–2002: A Review and Prospect’, ibid, 17; Mechtild Rössler, ‘World Heritage Cultural Landscapes: A UNESCO Flagship Programme 1992–2006’ (2006) 31(4) Landscape Research 333–53; J. Aitchison, ‘Cultural Landscapes in Europe, a Geographical Perspective’ in von Droste et al. (eds), Cultural Landscapes of Universal Value (n 2) 272; D. Jacques, ‘The Rise of Cultural Landscapes’ (1995) International Journal of Heritage Studies, 1. 45 The term ‘cultural landscape’ was first termed by the cultural geographer Carl Sauer and the Berkeley School of geographers.

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280 Amy Strecker session of the World Heritage Committee.46 Cultural landscapes were defined as ‘cultural properties representing the combined works of nature and of man’ designated in article 1 of the Convention. They are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportun ities presented by their natural environment and of successive social, economic, and cultural forces, both external and internal.47 They should be selected on the basis both of their outstanding universal value and of their representativity in terms of a clearly defined geo-cultural region and also for their capacity to illustrate the essential and distinct cultural elements of such regions48 . . . The term embraces a diversity of manifestations of the interaction between humankind and its natural environment.49

The inclusion of the category of ‘cultural landscapes’ within the scope of the World Heritage Convention reflected the evolving concept of ‘heritage’ and recognized the fact that many sites cannot be separated into criteria of culture or nature. It also recognized the cultural and social importance attached to landscapes, which had until then been designated ‘natural’ heritage.50 As noted by Sophie Boukhari, out of step with over twenty years of progress made in the human sciences, the World Heritage Convention ‘risked losing its credibility by privileging the monuments of a few cultural basins’.51 From an analysis of those in attendance at the expert meeting in La Petite Pierre, it appears that the Australian experience of managing Indigenous Peoples’ landscapes had an influence on the conceptualization of cultural landscapes for the purposes of redefining the Convention’s criteria.52 Three categories of cultural landscapes were incorporated into the Operational Guidelines:53 i. clearly defined landscapes designed and created intentionally by man. This embraces garden and parkland landscapes characteristically constructed for aes thetic, social, and recreational reasons which are often but not always associated with religious or other monumental buildings and ensembles;

46 Decision 16COM XIII. 1–3. 47 Operational Guidelines for the Implementation of the World Heritage Convention (UNESCO 1999) 35 accessed 8 January 2018. 48 Ibid, para 36. 49 Ibid, para 37. 50 In the early years of the WHC there was an assumption that natural heritage was pristine, without the influence of humanity. UNESCO 1st Session of the WHC. CC-77/CONF.001/9. 17 October 1977, 3. UNESCO Expert Review on Evaluation of General Principles and criteria for Nominations of Natural World Heritage Sites. WHC-96/CONF.202/INF.9. 15 April 1996, 4. 51 Sophie Boukhari, ‘Beyond the Monuments: A Living Heritage’, UNESCO Sources, No. 80 (June 1996), 7. 52 Report of the Expert Group on Cultural Landscapes, La Petite Pierre (France) 24–26 October 1992 accessed 8 January 2018. 53 Defined in para 39. Operational Guidelines for the Implementation of the World Heritage Convention (n 47).

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Landscape as Cultural Heritage 281 ii. organically evolved landscapes resulting from an initial social, economic, administrative, and/or religious imperative and have developed their present form by association with and in response to the natural environment. Such land scapes reflect that process of evolution in their form and component features. They fall into two sub-categories: a) relict (or fossil) landscapes in which an evolutionary process came to an end at some time in the past, either abruptly or over a period. Their significant dis tinguishing features are, however, still visible in material form: b) continuing landscapes which retain an active social role in contemporary soci ety closely associated with a traditional way of life. They are continuing to evolve while, at the same time, exhibit significant material evidence of their historic evolution; iii associative cultural landscapes with definable powerful, religious, artistic, or cultural associations with the natural element rather than material cultural evidence, which may be insignificant or even absent. The criteria concerning continuing and associative landscapes gave recognition to continuing tradition, customary practices, and the associative dimension to landscapes. As noted by Mechtild Rössler, ‘the primary difference was the acceptance of communi ties and their relationship with the environment’.54 The inclusion of both continuing landscapes and associative landscapes were influenced by arguments raised by Indigenous Peoples in response to the ‘natural’ heritage nominations of well-known heritage sites in Australia and New Zealand, most notably Uluru and Tongariro National Park. Tongariro National Park had been inscribed under natural criteria from 1990 before it was known that the ‘natural’ environment was not only the homeland of a com munity but also that the natural features were imbued with great importance for their culture. Moreover, it was the presence of the community and their care and maintenance of the natural environment which gave the site its characteristic qualities. Tongariro was re-inscribed as an associative landscape in 1993 to mark the fundamental role the land scape plays in the oral tradition and cultural identity of the Maori people. Likewise, Uluru and its surrounding landscape had initially been inscribed on the World Heritage List as a natural site in 1987, but it was re-inscribed in 1994 as a cultural landscape in rec ognition of the close cultural associations between the Uluru landscape and the Anangu people. Uluru played an important role in shaping the definitions of cultural landscape in 1992 and thereafter. Aside from the recognition of intangible values and the spiritual relationship between local communities and nature, the cultural landscapes category acknowledged that sites are not isolated islands but that they have to be seen in the ecological system and their cultural linkages in time and space beyond single monuments and strict nature reserves. Furthermore, cultural landscapes highlighted the importance of unique land-use sys tems, the continued work of people over centuries, and sometimes millennia, to adapt to 54 Rössler, ‘World Heritage Cultural Landscapes’ (n 44).

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282 Amy Strecker the natural environment, which were recognized as enhancing biological diversity.55 Important world crops developed in spectacular agricultural systems in the High Andes (e.g. potatoes and corn), terraced rice paddies in Asia (rice, fish, vegetables) and oasis systems in the Sahara (dates). The global importance of these systems and the genetic varieties in diverse cultural landscapes was acknowledged. In some cases they represent models for sustainable land use and community stewardship. The third cultural land scape to be inscribed on the World Heritage List represented one such example: the Rice Terraces of the Philippine Cordilleras were inscribed as a cultural landscape (organic ally evolved continuing) in 1995.56 Described as the result of the interaction between the people, their customary activities, and traditional practices of rice production dating back centuries, the decision to inscribe the Cordilleras was based on their illustration of a ‘remarkable degree of harmony between humankind and the natural environment’, their ‘great aesthetic appeal’, and their demonstration of ‘sustainable farming systems in mountainous terrain, based on careful use of natural resources’.57

4.3 Problematizing Landscapes as World Heritage Protecting the integrity of a cultural landscape implies an obligation on the people living there to maintain their customs and traditional farming practices, yet this can be difficult, if not burdensome, in the face of external market forces, socio-economic constraints and environmental problems. The Cordilleras cultural landscape was placed on the List of World Heritage in Danger in 2001 due to landscape management issues stemming from the abandonment of terraces, dispossession of property rights, and resource man agement conflict.58 The underlying challenge for the landscape of the Cordilleras was (and still is) socio-economic in nature.59 After a number of fact-finding missions, benchmarks were set in 2006 by the World Heritage Centre and the Advisory Bodies ICOMOS and IUCN. These benchmarks returned to the core of the landscape’s prob lems and sought to consider local peoples’ perceptions, local development aspirations of the communities, and functional governance mechanisms.60 In order for the landscape of the Cordilleras to maintain its legitimacy, it must fulfil socio-economic benefits and provide a livelihood for the communities who live there. After efforts were made by the State Party to remedy the situation, the Cordilleras were withdrawn from the List of World Heritage in Danger in 2012.61 Yet the case represents one of the challenges in the 55 See Rössler, World Heritage—Linking Cultural and Biological Diversity, Paper for the Seventh US/ ICOMOS Symposium: Learning from World Heritage, Natchitoches, Louisiana, 25–27 March 2004. 56 Decision 19COM VIII.C.1. 57 Ibid. 58 R. Guimbatan, ‘Managing our Changing World Heritage: The Philippines Rice Terraces Experience’. IOP Conference Series: Earth and Environmental Science, Vol. 6 (2009), session 57. 59 Ibid. 60 Expert Meeting of the World Heritage Convention on Benchmarks and Chapter IV of the Operational Guidelines, Paris, 2–3 April 2007. 61 Decision 33 COM 7A.24.

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Landscape as Cultural Heritage 283 designation of living landscapes deemed to be of ‘outstanding universal value’ as heritage sites, where that value implies restrictions on the fundamental rights of its inhabitants—namely those of development and self-determination, to be discussed fur ther in the subsequent paragraph dealing with local landscape governance. According to Rössler, the opening of the World Heritage List to cultural landscapes related to a shift towards ‘people and communities’.62 While this is true to some extent, landscapes are inherently contested, perhaps even more so than other forms of heritage sites or monuments, due to the fact that cultural landscapes are lived-in spaces. This is especially the case for urban areas, as the delisting of the Dresden Elbe Valley in 2009 clearly illustrated. The Dresden Elbe valley was originally inscribed on the World Heritage List in 2004 as an outstanding cultural landscape due to its ‘celebrated Baroque setting’, as well as being ‘an example of land use, representing an exceptional develop ment of a major Central European city’, ‘an artistic whole within the river valley’. 63 In 2005, it was revealed that documents supplied to support nomination of the site did not contain all the correct information regarding the location and dimensions of the Waldschlössen bridge, one of a number of small bridges planned for the valley, after which a dispute emerged between UNESCO and the State Party lasting a number of years and eventually leading to the site’s deletion from the World Heritage List.64 The case raises a number of questions regarding expectations placed on cultural landscapes and the suitability of historic urban areas such as Dresden for designation. It can be con trasted greatly with the context of the other World Heritage Site that was delisted: the oryx sanctuary in Oman, where the State intended to begin operations on 90 per cent of the reserve, threatening the oryx species and its physical habitat.65 Edith Brown Weiss has remarked that ‘highly educated and mobile transnational elites may feel comfortable with decision-making at the international level, but this may evoke a visceral reaction from local communities who may be hostile to international institutions’.66 If local residents are excluded from the decision-making process and dictated to rather than listened to, suspicion and hostility inevitably arise from certain obligations pertaining to inscription and site management. This is why communication and participatory mechanisms are important from the outset. Indeed, in assessing ten years of cultural landscape protection, it was recommended by experts that increased cooperation be established with local and regional bodies and that there be greater com munication with people.67 As stated by a well-known cultural landscapes expert, ‘one of 62 Rössler, World Heritage cultural landscapes’ (n 44). 63 Dresden Elbe Valley Description, available at accessed 8 January 2018. 64 Decision 33 COM 7A.26 Dresden Elbe Valley (Germany) (C 1156). For a more detailed analysis of the Dresden Elbe Valley case, see Strecker, Landscape Protection in International Law (n 1). 65 Decision 31 COM 7B.11. 66 Edith Brown Weiss, ‘The Rise or Fall of International Law?’ (2000) 69 Fordham Law Review 345, 360. 67 World Heritage Centre, Cultural Landscapes: The Challenges of Conservation, World Heritage Papers 7.

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284 Amy Strecker the main lessons learnt from cultural landscapes is that the best way in most cases to secure the future of that which we wish to maintain is to involve the residents’.68 In 2011, UNESCO adopted a Recommendation on the Historic Urban Landscape,69 which explicitly mentions ‘using participatory planning and stakeholder consultations’, the establishment of appropriate partnerships and local management frameworks for conservation and development projects, as well as the ‘coordination of public and private actors’ in its text. Its stated purpose is to act as an additional tool to integrate policies and practices of conservation of the built environment into the wider goals of urban development and it represents a much more dynamic instrument than some of the previous UNESCO soft-law instruments on landscape adopted thirty years ago.

4.4 The Impact of World Heritage on Global Landscape Governance While the designation of cultural landscapes as World Heritage is not uncontroversial, the impact of the World Heritage Convention more broadly on the global governance of landscapes has been significant. First, World Heritage status has managed to protect certain landscapes from harmful development, both through its influence on domestic law and practice70 as well as its impact on investor-State arbitration.71 In other cases, World Heritage status has proved an important factor in deliberations affecting the outcome of international criminal proceedings—for example, in the case of Dubrovnik and Mali.72 Interestingly, communities have occasionally attempted to use the World Heritage Convention as a sort of human rights instrument, to block development authorized by the State in ancestral lands. In the case of Buzzacott v Hill (Federal Court of Australia), for example,73 a motion was made to strike out proceedings on behalf of the Arabunna people instituted against the Commonwealth, the Minister for Foreign Affairs, and Trade and the Minister for Environment because they did not apply to place the traditional landscape of the Arabunna people on the UNESCO World Heritage List. The plaintiffs claimed that such a failure constituted genocide. Their argument was that the resulting mining and related activities would threaten the Arabunna people’s 68 Landscapes for the World (n 40). 69 UNESCO Recommendation on the Historic Urban Landscape, 10 November 2011. 70 See for example Commonwealth v Tasmania [1983] 158 CLR. 1, and more recently, when the Tasmanian Wilderness was again under threat by logging concessions, see BBC News (20 March 2016), ‘Australia drops Tasmanian Wilderness logging campaign’ accessed 8 January 2018; Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, 20 May 1992, 8 ICSID Rev—FILJ (1993) at 328. 71 Ibid; see also Parkerings-Compagniet AS v Republic of Lithuania, Case No. ARB 05/8 and Glamis Gold Ltd v United States of America [2009] 48 ILM. 72 For example, Prosecutor v Ahmad Al Faqi Al Mahdi Case no ICC-01/12–01/15, and Prosecutor v Pavle Strugar (Trial Judgment), IT-01-42-T. 73 Buzzacott v Hill (1999) FCA 639, Judgment of 1 September 2000, reproduced in ILM, 2000, 20.

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Landscape as Cultural Heritage 285 traditional way of life, and they sought an order compelling the government to protect the land and damages by proceeding with a World Heritage application. The strike-out motion was referred to a full court sitting in Adelaide but adjourned by that court to be handled by the Federal Court with another appeal (Nulyarimma v Thompson).74 The Court recognized the crime of genocide as a peremptory norm of international jus cogens but dismissed the claim because Australia had not passed legislation defining it as a criminal offence under domestic law, and, in any case, the notion of cultural genocide was omitted from the definition of genocide in the Convention. Despite the outcome, the very application on the basis of cultural genocide illustrates the inseparable way in which the Aboriginal people in this case view land, law, and culture. Perhaps the most significant impact of World Heritage cultural landscapes can be seen in terms of its influence on other normative developments in the field of inter national cultural heritage law and global environmental protection. For example, the Convention on the Safeguarding of the Intangible Cultural Heritage, adopted in 2003, included the consideration of sacred cultural and natural spaces, places of memory, and customary practices in the Representative List for the Safeguarding of the Intangible Cultural Heritage.75 In 2009, the sacred forests of Mijikenda Kaya were inscribed on the List of Intangible Heritage in Urgent Need of Safeguarding, one year after their inscrip tion on the World Heritage List.76 Apart from representing 75 per cent of Kenya’s bio diversity, the Kaya forests are culturally significant as they contain the traces of historic settlements of the Mijikenda ancestors, which serve as a focus of cultural and ritual activities continuing on the sites today.77 The nomination file refers to how the collective attitudes and beliefs of a rural society have shaped the landscape over time in response to prevailing needs.78 In the realm of global environmental protection, the IUCN has shifted its focus from nature reserves and national parks to a full range of protected areas, including the category of ‘protected landscapes’.79 This category differs significantly from the definition of other protected areas in the sense that it is designed to foster a close relationship between nature and people, with the physical attributes of an area integrated with its associated social, cultural, and traditional values. This category defines the protected landscape as

74 Nulyarimma v Thompson (1999) FCA 1192. 75 Art 2 defines ‘intangible cultural heritage’ as the ‘practices, representations, expressions, know ledge, 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’ (emphasis added). Art 14(c) refers to the promotion of ‘education for the protection of natural spaces and places of memory whose existence is necessary for expressing the intangible cultural heritage’. See also art 13 (d)(ii). 76 Decision of the Inter-governmental Committee: 4. COM 14.06. 77 Nomination file 1231rev accessed 8 January 2018. 78 Ibid. 79 See IUCN, Management Guidelines for Category V, ‘Protected Landscape/Seascape’ accessed 8 January 2018.

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286 Amy Strecker an area of land, with coast or seas as appropriate, where the interaction of people and nature over time has produced an area of distinct character with significant aesthetic, ecological and/or cultural value, and often with high biological diversity. Safeguarding the integrity of this traditional interaction is vital to the protection, maintenance and evolution of such as area.80

Category V areas (protected landscapes) have been embraced by a number of other regimes such as the 2003 African Convention,81 the Man and Biosphere Programme (MAB),82 and the International Tropical Timber Organization Guidelines on the Conservation of Biological Diversity.83 The twofold relationship between culture and nature was also enunciated in the Convention on Biological Diversity (CBD; Rio, 1992), which mentions the role inhabitants can play in the protection of biological diversity in article 8(j): Each contracting party shall, subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.

In particular, the CBD has focused on the link between cultural diversity and biological diversity in the practices and traditions linked with land. A working group on article 8(j) was established in 1998 at the fourth meeting of the Conference of the Parties (COP) to the CBD. In 2000, the COP agreed to enhance the role and involvement of Indigenous and local communities in the achievement of the objectives of the Convention. Of particular significance for landscape are the ‘Akwé: Kon Guidelines for the conduct of cultural, environmental and social impact assessments regarding developments pro posed to take place or which are likely to impact on sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities’.84 The guidelines are intended to provide a collaborative framework to ensure the involvement of Indigenous and local communities in the assessment of cultural, environmental, and social impacts of proposed developments. The Preamble to the Guidelines recognizes 80 The Management Guidelines also include the objective ‘to support lifestyles and economic activities which are in harmony with nature and the preservation of social and cultural fabric of the communities concerned’ and ‘to bring benefits to and contribute to the welfare of the local community’. Ibid, 23, 29. 81 It places strong emphasis on ‘sustainable development’ and the mix of economic, social and cultural considerations. Preamble and art V. 82 The overarching objective of the biosphere reserve is ‘sustainable development’, and its essence is that people are not excluded from the protected area and are an intricate part of the management and conservation of the area and its surroundings. The MAB is one of the few regimes that does not neces sarily view concentrations of humans around a core zone of protection to be inimical to the goals of species and ecosystems protection. 83 IUCN, Management Guidelines for Category V (2002) 30. 84 COP 7 Decision VII/16.

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Landscape as Cultural Heritage 287 the negative impacts of many developments on sacred sites and lands traditionally occupied or used by Indigenous and local communities and the loss of these communities’ traditional knowledge, innovations, and practices as a result.85 Accordingly, govern ments are encouraged to ‘initiate a legal and institutional review of matters related to cultural, environmental and social impact assessment, with a view to exploring options for incorporation of these guidelines into national legislation, policies, and procedures, bearing in mind that nothing in these guidelines should adversely affect biodiversity and the livelihoods of other communities, and that they should be implemented in a manner that is consistent with international law and with other international obligations’.86 The notion that people are central to any landscape policy is perhaps the principle tenet of the European Landscape Convention, the first international instrument solely dedicated to landscape, albeit at regional level.

5. The European Landscape Convention 5.1 Origins of the ELC The European Landscape Convention (ELC) was adopted on 20 October 2000 in Florence.87 Largely the initiative of the Council of Europe’s Congress of Local and Regional Authorities (CLRA), it was borne out of a concern over the increasing deg radation and fragmentation of Europe’s rural landscapes. The roots of the Convention can be traced to a number of occurrences in the early 1990s, including the Mediterranean Landscape Charter, adopted by the regions of Andalusia (Spain), Languedoc-Roussillon (France), and Tuscany (Italy) in 1994,88 and the publication of ‘Europe’s Environment: the Dobris Assessment’, a detailed document on the state of the environment in greater Europe and its prospects for the future.89 The text devotes an entire chapter to landscape and contains a proposal for drafting an international convention on rural landscapes under the auspices of the Council of Europe. In 1994, the IUCN published ‘Parks for Life: Actions for Protected Areas in Europe’, similarly advocating an international convention on rural landscape protection in Europe.90 A central idea behind these documents was that distant policies (in particular, EU agricultural directives) negatively 85 Ibid, 57. 86 Ibid, 58. 87 Council of Europe, European Landscape Convention (opened for signature 20/10/2000, entered into force 1/3/2004), ETS No. 176. 88 Resolution 256 (1994) of the Standing Conference of Local and Regional Authorities of Europe. 89 D. Stanners and P. Bourdeau, Europe’s Environment: The Dobris Assessment (European Environmental Agency 1995). 90 IUCN Commission on National Parks and Protected Areas (CNPPA), Parks for Life, Action for Protected Areas in Europe (IUCN, 1994), full text available at accessed 8 January 2008.

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288 Amy Strecker affect local landscapes, yet local people have little input into the decision-making process.91 On foot of these recommendations, CLRA initiated the drafting process for a European Convention on Landscape and an ad hoc drafting group was established.92 The drafting group included, inter alia, Council of Europe committees on cultural heritage and biodiversity, the UNESCO World Heritage Committee, the IUCN, the Committee of Regions of the European Commission, and the three regional authorities that had signed the Mediterranean Landscape Charter. After several meetings and draft texts spanning a number of years, a final version of the European Landscape Convention was approved and opened for signature in Florence in 2000. As stated in Recommendation 40 on the draft European Landscape Convention of 1998, the demand for such a convention derived from the ‘importance that Europe’s citizens attach to their environment . . . the fact that citizens have come to realize that the quality and diversity of many landscapes are declining . . . and that this is having an adverse effect on their everyday lives’.93 Furthermore, it was felt that ‘landscape should become a mainstream political project, since it plays an important role in the well-being of Europe’s citizens, for whom it is no longer acceptable that their surroundings are transformed by technical and economic changes on which they have no say’.94 The Preamble to the ELC states that the protection, management, and planning of landscape entail ‘rights and responsibilities for everyone’, and it is this aspect of the Convention that has been taken up by efforts at linking landscape to ideas of spatial justice, human rights, and democracy.95

5.2 Paradigm Shift: From Landscape as Heritage to Landscape as Public Space The European Landscape Convention is innovative for a number of reasons, not least because of the definition of landscape provided in article 1(a) of the Convention: Landscape means an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors.

This definition recognizes the duality of landscape: both the physical tangible area of land and its added layer of associations as perceived by people. It mentions both natural and human factors. In a notable departure from the approach of the World Heritage Convention, no categories or criteria are provided. Instead, the Convention applies to all landscapes—hence the use of the term ‘landscape’ in the singular. The ELC focuses not 91 Report on the Preliminary Draft European Landscape Convention. Strasbourg, 5 May 1997, CG (4) 6 Part II. 92 Ibid. 93 Ibid. 94 Ibid. 95 For example, see Shelley Egoz et al. (eds), The Right to Landscape: Contesting Landscape and Human Rights (Ashgate 2011), and A. Strecker, ‘The “Right to Landscape” in International Law’, ibid, 57–71. Defining Landscape Democracy, International Conference, Centre for Landscape Democracy, Norwegian University of Life Sciences, Oslo, 3–6 June 2015.

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Landscape as Cultural Heritage 289 only on outstanding landscapes but also on ‘everyday or degraded landscapes’96—the places where most people live and work. Accordingly, it applies to the entire territory and covers natural, rural, urban, and peri-urban areas. It includes land, inland water, and marine areas. 97 It follows that the measures foreseen by the ELC include not only protection but also the management and planning of landscapes.98 Furthermore, the public are encouraged to participate in the formulation of landscape plans and policies.99 For these reasons, it has been said that the European Landscape Convention ‘democratizes’ landscape.100 The underlying rationale of the ELC is that a purely conservationist approach helps deflect attention from the forces leading to change elsewhere and thus neglects those areas not afforded protection. By stating that the landscape is a basic component of the European natural and cul tural heritage, the European Landscape Convention departs from the apparent culture/ nature dichotomy present in most international legal instruments. As the explanatory report points out, the Landscape Convention ‘is not confined to either [sic] the cultural, man-made or natural components of the landscape’.101 Notably, it makes explicit refer ence to a number of instruments in its Preamble, including the Berne Convention on the Conservation of European Wildlife and Natural Habitats, the European Convention for the Protection of the Architectural Heritage, the European Convention on the Protection of the Archaeological Heritage, the Convention on Biological Diversity, and the World Heritage Convention. The ELC also notes the various fields of public interest in the landscape as being the ‘cultural, ecological, environmental and social’ and obliges each State Party to ‘recognise landscapes in law as an essential component of peoples’ surroundings, as an expression of the diversity of their shared cultural and natural heri tage, and as a foundation of their identity’;102 and to establish and implement landscape policies aimed at landscape protection, management, and planning through the adoption of the specific measures.103 These measures include training and education, awareness-raising, identification and assessment, landscape quality objectives;104 and the integration of landscape in town and regional policies.105

96 Art 2 states, ‘this Convention applies to the entire territory of the Parties and covers natural, rural, urban and peri-urban areas. It includes land, inland water and marine areas. It concerns landscapes that might be considered outstanding as well as every day or degraded landscapes.’ 97 Ibid. 98 Art 3. Interestingly, a list was included in the Draft European Landscape Convention, yet this was omitted in the final text. 99 Art 5(c). This involves interest groups at the national and community level, as well as local and regional authorities. 100 Riccardo Priore, ‘La Convention européenne du Paysage’ (2000) 3 Revue européenne de droit de l’environnement 285. See also Graham Fairclough, ‘New Heritage Frontiers’ in Launching Colloquy of Heritage and Beyond: A Publication on the Contribution of the Council of Europe Framework Convention on the Value of Cultural Heritage for Society, Lisbon, 20 November 2009, 31, available at accessed 8 January 2008. 101 Council of Europe ‘European Landscape Convention: Explanatory Report’, para 26, available at accessed 8 January 2008. 102 Art 5(a). 103 Art 5(b). 104 Art 6. 105 Art 5(d).

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290 Amy Strecker In particular, Article 5(c) of the Convention provides that ‘each party undertakes to establish procedures for the participation of the general public, local and regional authorities, and other parties with an interest in the definition and implementation of landscape policies’. Article 6(d) further adds that ‘[e]ach party undertakes to define landscape quality objectives for the landscapes identified and assessed after public con sultation in accordance with article 5(c)’.106 The Convention specifically refers to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice on Environmental Matters (25 June 1988)107 in its preamble.108

5.3 Problematizing the ELC from a Legal Perspective While the European Landscape Convention has ignited the awareness of the import ance of safeguarding landscape continent-wide (and beyond) and goes a long way to effecting long-term changes through education, awareness-raising, and good landscape planning, it lacks strength as a legal tool in itself. This is due not only to the overly broad definition of landscape provided in the text (which could be interpreted as ‘environ ment’, ‘cultural heritage’, or, indeed, ‘economic development’ by decision-makers) but also to the lack of a system of protection and procedural rights beyond public participa tion in the development of plans and policies. The lack of any criteria or list means that it is legally very difficult to prove a breach of the Convention’s obligations,109 as it is pre sumed that local populations will actively engage in the formulation of policies and that this will work in favour of landscape protection and avoidance of disputes in the long term. Implementing the ELC is more subtle and focused on integrating landscape (and people’s relationship with it) within landscape quality objectives, national spatial strat egies, and planning processes. According to the explanatory report to the Convention, this requires measures ranging from education and awareness-raising to landscape character assessment and classification to a variety of other protection, management, and planning measures, the first of which is to recognize landscape in law as an expres sion of people’s surroundings. This makes assessing the legal implementation, beyond a superficial comparative analysis of landscape laws, a somewhat complex task. First, the ELC and references to it rarely, if ever, play a role in legal proceedings. In the case law of 106 In the context of heritage, Ruth Gavison lists the dimensions of ‘publicness’ as accessibility, own ership, control, accountability, effect, and intimacy, while Benn and Gaus reduce these to three: access, agency, and interest. See J. Carman, Against Cultural Property, Archaeology, Heritage and Ownership (Bloomsbury 2005) 49. 107 Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, Aarhus, 25 June 1998. 2161 UNTS 447. Entry into force 30 October 2001. Text available at accessed 8 January 2018. 108 Such as landscape character assessment, a new form of surveying and assessing landscape features using Geophysical Information Systems technology combined with public perception surveys. 109 A ‘list of Landscapes of European significance’ had been included in the Draft Landscape Convention, but this was excluded from the final text, as it was felt to be contrary to the aims and object ives of the Convention.

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Landscape as Cultural Heritage 291 the European Court of Human Rights, for example, where other Council of Europe treaties dealing with cultural heritage are mentioned by the Court as important obliga tions allowing a State to impinge on other fundamental freedoms in the general interest, or for the rights and freedoms of others,110 not a single case to date has included refer ence to the ELC. Nor has the ELC been referenced by the judiciary in many high-profile landscape disputes in national courts.111 Second, the public participation conceived of in the Convention is restricted to par ticipation in plans and policies—that is, in the landscape assessment, characterization, and valorisation stage. While the ELC refers to the Aarhus Convention (on access to information, public participation, and access to justice) in its Preamble, it makes no ref erence to access to justice or judicial review in its text. It can be seen that the emphasis of the Convention is on the pre-emptive and proactive planning and development of land scape at local and regional level—as a territorial project, which is surely positive for improving overall landscape quality in Europe but does not offer a solution with regard to solving disputes which arise at later stages in the planning process when the abovementioned obligations have not been sufficiently provided for and which may involve State-backed infrastructural or resource extraction projects in landscapes of high heritage value. Indeed, many people only become aware of significant landscape changes late in the planning process. The approach of the European Landscape Convention is arguably one of sustainable development and equitable landscape planning. Yet, as pointed out by Marc Antrop, landscapes change continuously in a more or less chaotic way as a reflection of society’s social and economic needs at a given moment, and thus the concept of sustainable land scapes could be viewed as a utopian goal.112 In addition, if landscape is ‘perceived’, then surely it can constitute a multitude of values and meanings for a multitude of people. Incorporating these disparate views in a meaningful way into landscape policies is a challenging task and one which is only attainable with sufficient resources and infra structure to carry out such a process in an equitable manner, such as in the region of Catalonia, where participation is firmly embedded within regional landscape policy.113 Landscape is a collective good and, as such, is about collective action, yet the collective dimension is left largely unexplored in the ELC and its supporting documentation. In contrast, the Framework Convention on the Value of Cultural Heritage for Society, which was adopted five years after the ELC, defines a ‘heritage community’, as consisting ‘of people who value specific aspects of cultural heritage which they wish, within the 110 For example, the Convention on the Protection of the Architectural Heritage was mentioned in Kozacioglu v Turkey, Grand Chamber Decision 19/02/09. Application No. 2234/03, 53 ff. 111 For example, Salafia v Minister for the Environment, Heritage and Local Government and Others (Tara and M3 Motorway) [2006] IEHC 61; Supreme Administrative Court, Poland, II OSK 821/08 (Via Baltica bypasses) 16 September 2008. 112 Marc Antrop, ‘Sustainable Landscapes: Contradiction, Fiction or Utopia’ (2006) 75 Landscape and Urban Planning 187–97. 113 See Landscape Catalogues of Cataluña, available at accessed 8 January 2018.

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292 Amy Strecker framework of public action, to sustain and transmit to future generations’.114 This is significant because it defines a community on the basis of shared heritage values, not on the basis of being the inhabitants of a place or of hailing from one particular epistemic background. Notwithstanding these limits, the lack of legal force should not undermine the enormously positive role and influence of the ELC on landscape discourse and society more broadly and on the renewed activity taking place across Europe on the part of civil society organizations, communities and groups, and academia. In addition, the ELC has had some success in effecting change in planning laws throughout Europe and has led to the development of landscape strategies and landscape character assessment in several States Parties.115 However, perhaps its greatest impact lies in its power as a catalyst for landscape awareness—itself an objective of the Convention—and for (re)humanizing the concept of landscape itself. As of December 2019, thirty-nine States Parties have ratified the ELC and two have signed the treaty.116 Worthy of mention is that, since its adoption in the year 2000, the ELC has received widespread attention outside Europe, particularly from Southern Mediterranean countries, Australia, and Latin America.117 This has led to the adoption, in 2016, of a protocol amending the European Landscape Convention.118 Article 1 of the Protocol amends the title of the Convention to ‘Council of Europe Landscape Convention’, so as not to restrict the Convention’s scope to ‘European landscape’. Article 2 of the Protocol adds a new paragraph to the text of the ELC, expanding its geographical scope to non-members of the Council of Europe to enable the application of the values and principles formulated in the Convention to non-European States who so desire.119

As stated by the Committee on Social Affairs, Health and Sustainable Development, examples of successful trans-frontier cooperation in the framework of the European Landscape Convention abound across Europe. They mainly concern joint projects for ecotourism, landscape conservation, restoration, and development through protected 114 Art 2(b). 115 See Karsten Jorgensen et al. (eds), Mainstreaming Landscape Through the European Landscape Convention (Routledge 2016) 119–28. 116 Andorra, Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, the Republic of Macedonia, Turkey, Ukraine, and the United Kingdom have ratified. Malta and Iceland have signed. 117 Doc 13, 916, Reference 4167 of 27 November 2015. 2016—March Standing Committee. 118 Protocol Amending the European Landscape Convention, ETS. No 219 accessed 8 January 2018. 119 New paragraph 13.

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Landscape as Cultural Heritage 293 areas or parks, protection against floods, sustainable forest and land management, and tackling the cross-border impact of pollution, as well as pilot activities for improving the integrity of transboundary watersheds and ecosystems.120

6. Concluding Remarks In conclusion, this chapter has charted the evolving protection of landscape in inter national law. It has shown that the term ‘landscape’ has evolved from being conceptually tied to nature and aesthetics to a much broader, dynamic concept emphasizing the human dimension of landscape and the symbiotic relationship between people and place over time. Although State practice is lagging behind the normative developments in the field of international landscape protection, landscape has contributed positively to the corpus of international cultural heritage (and environmental) law and, indeed, has emerged as a nascent field of international law in its own right. First, the category of cultural landscapes within the World Heritage Convention recognizes the importance of people in the management of World Heritage Sites and has proved influential in the developments leading to a more people-centred approach to landscape protection, developed even further in the European Landscape Convention. Taken together, these developments constitute a turning point in the protection and governance, not only of landscape but of heritage more broadly, to the point where a ‘landscape approach’ has become synonymous with involving people in heritage and environmental policies. Communities across the globe are facing increasing changes in their landscapes due to global shifts in agriculture, trade, resource development, and climate change, which in turn require global solutions. Landscape law is an important contributing factor in gen erating awareness of place in this regard, and the rise of landscape is perhaps a symptom of how other concepts (especially property) are deemed to have failed in their social responsibility. Yet landscape cannot operate on a par with the right to property, even if, as Olwig points out, its original meaning connoted notions of justice, custom, and community.121 What it can do, however, is act as an umbrella term, integrating environ mental and cultural values in what I have elsewhere termed ‘public space’, and raise awareness of the non-proprietary interests in land outside of private property and ownership—which are diverse. Landscape represents not abstract beauty standards but the rich and diverse relationships that people have with places that matter to them. Adrian Phillips once stated that ‘landscape is more likely to concern the man in the 120 Committee on Social Affairs, Health and Sustainable Development, Draft Protocol Amending the European Landscape Convention, B. Explanatory memorandum by Mr Schennach, Rapporteur, Report, Doc 13, 989, 18 February 2016, para 6. 121 ‘Recovering the Substantive Nature of Landscape’ 631 (n 6).

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294 Amy Strecker street or the woman in the field, than is biodiversity’,122 which is why landscape has potential as an integrating tool for sustainable development. Landscape is the visual result of our treatment of the earth, and it is this powerful perception that engenders a demand among people for better-quality landscapes. People see and feel the landscape. It is thus a powerful symbol that can be used as a tool to better the natural and cultural environment for communities and individuals everywhere. 122 A. Phillips, ‘Practical Considerations for the Implementation of the European Landscape Convention’ in Landscape Conservation Law: Present Trends and Perspectives in International and Comparative Law (IUCN 2000) 18.

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chapter 13

U n derwater Cu ltu r a l Her itage Patrick J. O’Keefe

1. Introduction Underwater cultural heritage is important because it constitutes what has been called a ‘time capsule’—meaning that everything on a site may well be as it was when it disappeared beneath the surface of the water. It may be the wreck of a ship, the remains of a town, or a prehistoric settlement where the land has subsided. Much will depend on conditions existing on the site over time—have currents disturbed or degraded what was deposited; were objects such that they could have disintegrated? There is general agreement that what remains is important to humanity. It must be protected and preserved for present and future generations. What role does law play in this? Until recently, very little. If an object was of a precious metal or a jewel, there were laws deciding its ownership. Other material was seldom raised, and there was little to ensure its continued existence. All this began to change with improved access.

2. Access Until the 1940s underwater access was limited by the endurance of free divers, i.e. those using only the quantity of air in their lungs, or those using ‘hard suits’ with pumped air. The invention of the aqualung allowed divers to stay down for longer periods with freedom of movement and at greater depths. Then, instead of compressed air, divers, particularly those working on pipelines and construction of installations on the seabed, began to use various gases which allowed them go deeper and stay longer without

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296 Patrick J. O’Keefe immediate danger of the ‘bends’.1 In more recent times submersibles carrying humans and using mechanical arms or remotely controlled from the surface have permitted access to depths in excess of 6,000 metres, enough to reach 98 per cent of all ocean floors. Access has given us objects of great beauty such as Greek sculpture lost in sunken Roman cargo ships taking them to Rome.2 But access has given us much more than objects. The Belitung shipwreck in Indonesia contributed to knowledge of trading routes in South East Asia as well as Chinese manufacture and marketing systems during the Tang Dynasty.3 It was the presence of wrecks in Red Bay, Canada, that led to the discovery of the activities of Basque whalers there in the sixteenth century.4 Until those ships were discovered, a flourishing industry in whale oil had disappeared from universal memory. These changes in access rendered all underwater cultural heritage accessible to anyone with the desire, skill, and financial backing to hunt for it. Issues arose over how the international legal system should respond to matters it had never had to consider before. Two of particular significance came more and more to the fore as episode after episode showed what many regarded as deficiencies in the existing legal regime. What powers did States have to regulate activities in different parts of the sea—that is, jurisdiction— and what were the ownership rights in relation to anything found? In addition, by what standards should those working on these heritage sites be judged?

3. Jurisdiction The sea is divided into various zones, in each of which States have particular powers. The zones are: internal waters, territorial sea, contiguous zone, exclusive economic zone, and high seas. Under the water there are the continental shelf and the deep seabed. Each State with a sea coast has a baseline. Generally, this is the low-water mark, but there are exceptions for special features such as heavily indented shores, where the line may cut across to link two points. Inland from the base line lie internal waters. On the other side of the baseline is the territorial sea. The width of the territorial sea has varied over time, but most States now regard it as 12 nautical miles from the baseline. In the case of archipelagic States, the baseline consists of straight lines connecting the outermost points of the outermost islands subject to a formula calculating the maximum length of the lines. The contiguous zone lies beyond the territorial sea up to 24 nautical miles from the 1 This occurs when dissolved gases come out of solution into bubbles inside the human body on depressurization and, if not treated, leads to death. 2 Seán Hemingway, The Horse and Jockey from Artemision: A Bronze Equestrian Monument of the Hellenistic Period (University of California Press 2004). 3 Regina Krahl, John Guy, J. Keith Wilson, and Julian Raby (eds), Shipwrecked: Tang Treasures and Monsoon Winds (Smithsonian Institution 2010). 4 Robert Grenier, Marc-André Bernier, and Willis Stevens (eds), The Underwater Archaeology of Red Bay: Basque Shipbuilding and Whaling in the 16th Century (Parks Canada 2007).

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Underwater Cultural Heritage 297 baseline. Then there is the exclusive economic zone extending up to 200 nautical miles from the baseline. The high sea is what remains of the ocean. The continental shelf lies beneath the ocean and, for legal purposes, is measured from the edge of the territorial sea. It extends to the outer edge of the continental margin5 or to a distance of 200 nautical miles if the margin is less than 200 miles. Finally, there is ‘The Area’, which is the ‘seabed and ocean floor beyond the limits of national jurisdiction’. It has always been accepted that in internal waters and the territorial sea the coastal State has the right to deal with underwater cultural heritage and the search for it. Many States have enacted legislation: sometimes merely extending legislation applying to archaeological sites on land; other times implementing legislation specifically on certain aspects, most notably shipwrecks. For example, Australia passed the Historic Shipwrecks Act in 1976 and the United Kingdom the Protection of Wrecks Act in 1973. The Cyprian Antiquities Law as amended applies to antiquities ‘found, discovered or excavated in Cyprus or recovered from the sea within the territorial waters of Cyprus’. In Spain, the general regime on national cultural heritage applies to protection of underwater cultural heritage.6 However, beyond the territorial sea matters were very different. Many States took no action regarding activities in these areas. Some, such as Australia, extended their legislation to the continental shelf, but there was no attempt to enforce this. What attempts were made internationally to have a regime applying to underwater cultural heritage, especially shipwrecks, were unsuccessful. For example, when the Convention on the Continental Shelf was being negotiated, the International Law Commission commented in 1956: It is clearly understood that the rights in question do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil.7

Two years later in the United Nations Fourth Committee—the Special Political and Decolonization Committee—it was stated that shipwrecks and their cargoes were not ‘resources’, the subject of the Convention.8 In 1978, the ‘Roper Report’—the Report on the Underwater Cultural Heritage of the Council of Europe’s Committee on Culture and Education—recommended adoption of a 200-mile-wide cultural protection zone.9 Nothing came of this proposal, as the draft Convention failed to be adopted due to a dispute over jurisdiction between Greece and 5 The continental shelf starts to drop away at a certain point forming the continental slope. Where that slope ends and merges into the abyssal plain is the margin. 6 Law No 16 of 23 June 1985. 7 (1956) Yearbook of the International Law Commission, Vol II, 298. 8 Lucius Caflisch, ‘Submarine Antiquities and the International Law of the Sea’ (1982) 13 Netherlands Yearbook of International Law 3, 14. 9 Council of Europe, Parliamentary Assembly, The Underwater Cultural Heritage (Doc 4200-E, Strasbourg 1978).

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298 Patrick J. O’Keefe Turkey. However, the European Convention on the Protection of the Archaeological Heritage (Revised) 1992 referred to the archaeological heritage as ‘all remains and objects and any other traces of mankind from past epochs . . . which are located in any area within the jurisdiction of the parties’. The explanation given of this reads: Among the members of the Council of Europe some States restrict their jurisdiction over shipwrecks, for example, to the territorial sea while others extend it to their continental shelf. The Revised Convention recognizes these differences without indicating a preference one for the other.10

4. UNCLOS The most significant instrument dealing with law of the sea issues ever drafted is the United Nations Convention on the Law of the Sea 1982 (UNCLOS). It took almost ten years to negotiate. However, underwater cultural heritage was not of major significance for most delegates. The self-nominated ‘major maritime powers’—France, Germany, Japan, Netherlands, Norway, Russia, the United Kingdom, and the United States of America—viewed any attempt to give States power beyond the territorial sea as leading to ‘creeping jurisdiction’ or a process whereby coastal States would extend their control of various activities further and further from their shores. This, they feared, would lead to diminution of freedom of the high seas and curtail access by their military vessels to strategic waterways and to resources beneath those seas. Some were also concerned that they would be compelled to exercise control over underwater cultural heritage on the continental shelf thus leading to substantial costs in terms of both money and manpower. Underwater cultural heritage had a low priority in the negotiations. The Swiss international lawyer, Caflisch, refers to a study ‘on the legal regime of submarine antiquities’ by the United Nations Conference on the Law of the Sea as ‘cursory’.11

5. Articles 149 and 303 Nevertheless, two articles were eventually inserted in the 1982 Convention: article 149 and article 303. But these were limited in their ability to give States the right to legislate effectively for protection of underwater cultural heritage. 10 Council of Europe, European Convention on the Protection of the Archaeological Heritage (Revised) Explanatory Report (Doc MPC(91)) 8, 3. 11 Caflisch, ‘Submarine Antiquities’ (n 8) 6.

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Underwater Cultural Heritage 299 Article 149 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.12

This contains a number of obscure concepts. Must the object be of both an archaeological and an historical nature? Is it even possible for an object to be of an ‘archaeological nature’? Archaeology is a process and not a description—objects cannot have an archaeological nature. What is meant by ‘shall be preserved or disposed of ’? Preserved would indicate protection, but does disposal also mean the same? Then there are the various States granted preferential rights. How are these to be allocated between different States? Why was the word ‘country’ used? Does this mean something different to ‘State’? Finally, there is the fact that ‘State’ is a relatively recent construct. If a wreck from the fifth century is found and determined to come from a particular region, should the State now existing in that region be regarded as the State of archaeological origin? Article 303 begins by creating a general duty: States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose.

There is nothing to indicate what has to be done to satisfy this duty. The way it has been left means that anyone can read into it their own interpretation of what action has to be taken. The second paragraph of article 303 deals with State power in the contiguous zone. It is based on a ‘legal fiction’. States may make a presumption that removal of objects of an archaeological and historical nature found in this zone infringes their customs, fiscal, immigration, and sanitary laws in this zone. The provision is limited—‘removal’ only— and clumsy in that there is no relationship between the activities that a State may control and the removal of objects.

6. Ownership The ownership of shipwrecks and their cargo was much contested once divers were capable of reaching the depths at which they lay. When the ship sank, what happened to ownership rights? Were they unchanged, or did new policy considerations come into 12 Consideration of art 149 came at the end of negotiations at which stage it consisted mainly of phrases in square brackets indicating what had not been agreed. At that stage the brackets in effect were removed, leaving the confusing text that is in UNCLOS.

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300 Patrick J. O’Keefe play? For example, should the law encourage recovery of the wreck or cargo, and, if so, what is the effect on ownership? A number of rules evolved over time to resolve these issues, but they gave little or no consideration to whether the ship and/or its cargo had become underwater cultural heritage. A key issue was whether the wreck had been abandoned by its owner. A good example is the wrecks of the Vereenigde Oostindische Compagnie (V.O.C. or the United East India Company), which have been claimed by the Government of the Netherlands as successor in title to the company. Several of these wrecks had been found off the coast of Western Australia during the period 1950 to 1970. The Australian Government claimed that after some 400 years, and without any attempt to find them, the Dutch Government had lost all title to them—had abandoned them. Following intensive negotiations, an agreement was reached between the two States resolving the issue. The Netherlands transferred ‘all its right, title and interest in and to the wrecked vessels of the V.O.C. lying on or off the coast of the state of Western Australia and in and to any article thereof to Australia’.13 The agreement does not state that the Netherlands has title to the wrecks and, thus, does not constitute an acknowledgement of this claim by the Australian Government. Rather, whatever title the Netherlands did in fact have under its law and/or any other system of law was transferred to Australia. In several instances elsewhere in the world, the government of the coastal State acceded to the Netherlands argument. Abandonment thus has two components: the physical fact of abandonment and an intention to do so. The first is relatively easy to prove, the second less so. There are many factors that may restrain recovery: lack of money; lack of knowledge of where the wreck lies; inability to access because of depth and water currents. The consequence of this is that abandonment is often difficult to prove. This can be avoided by resort to a set period—for example, in Spain the State becomes the legal owner of all wrecks after three years if the owner makes no efforts to exercise his or her rights. If the wreck has been abandoned, the general rule is that title goes either to the State or to the finder. The former is often known as the English Rule, and the principle goes back hundreds of years. In the United States the finder is preferred on the basis that this should be a more open procedure—that is, produce a result more open to public scrutiny and, so the courts argue, one more likely to further the objectives of archaeology. But ownership is affected by another legal doctrine—that of salvage. Its objective is to encourage the recovery of shipwrecks and particularly their cargo. It might be thought that this would protect underwater cultural heritage. However, such is not the case. The salvor is entitled to a percentage of the commercial value of what is recovered. This often means that they excavate fast and give priority to objects of value on the market. Material such as ship’s timbers are either thrown to one side or ignored. Courts in the United States have attempted to incorporate in the calculation of salvage a notional archaeological

13 1972 Aust TS No 18.

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Underwater Cultural Heritage 301 value.14 However, this is done at the time the salvage award is calculated and the work on the site is finished, meaning that it is too late to remedy any defects. A court does not have the resources to constantly supervise whether the salvor is adequately protecting the underwater cultural heritage values inherent in the site. Courts in the United States have argued that salvage is an ancient doctrine and, in applying it, they are giving effect to international rules. This is incorrect. Salvage does have roots in certain legal systems from the past but may be overridden by legislation dealing with antiquities. For example, the finders of the Vrouw Maria, which sank in 1771, claimed salvage rights over objects raised. The Finnish court ruled: The regulations of the Antiquities Act eliminate the possibility of applying the salvage and reward regulations of the Maritime Act to wrecks and objects discovered in wrecks, or objects evidently originating from such contexts, that are protected by the Antiquities Act.15

It will be obvious that there are many issues arising from activities affecting underwater cultural heritage. The most effective way to examine these is to study the Convention on the Protection of the Underwater Cultural Heritage 2001. The drafters of the Convention were faced with decisions on both philosophical and practical levels. By studying the decisions they made, the peculiarities of this aspect of the heritage will be brought to the fore.

7. Protection Like many other aspects of cultural heritage, we speak of ‘protecting’ underwater cultural heritage. The Convention came at a time when that heritage was under threat of destruction: from natural forces such as earthquakes and currents; from activities such as fishing and the search for minerals and oil; from deliberate exploitation of heritage for commercial gain. Of these, the Convention sought to establish a regime for protection from the last-mentioned. Little can be done to give protection from natural forces. Fishing and other activities on the seabed involve interests that nations are not yet ready to balance against the loss of heritage. Thus, the Convention is primarily concerned with ‘activities directed at underwater cultural heritage’ which it defines as ‘activities having underwater cultural heritage as their primary object and which may, directly or indirectly, physically disturb or otherwise damage underwater cultural heritage’.16 This is not to say that States party to the 14 For example, see discussion in R.M.S. Titanic Inc. v The Wrecked and Abandoned Vessel Believed to be the RMS Titanic 1996 AMC 2481, 2491. 15 Maija Matikka, ‘Finland’ in Sarah Droomgoole (ed), The Protection of Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 (Martinus Nijhoff 2006) 43, 53. 16 Art 1(6).

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302 Patrick J. O’Keefe Convention cannot take action to prevent damage from such actions as fishing, gravel extraction, or pipeline laying which are not directed at the heritage but have the effect of ‘incidentally’ affecting it. Indeed, States are enjoined to ‘use the best practicable means at their disposal to prevent or mitigate’ damage arising from these activities.17 For example, if shipwrecks are discovered during the course of searching for oil or minerals it is common for the licence or contract authorizing the project to require those responsible for the work to notify the authorities. What happens then is a matter for the State which has given the authorization. When underwater cultural heritage is found, the Convention requires its preservation in situ ‘as the first option, before allowing or engaging in any activities directed at this heritage’.18 It is important to recognize that this is the first option. Preservation in situ is not an overriding objective. It must be considered before anything else is done but there may be good grounds for rejecting it. The nature of the heritage must be con sidered; for example, is it made of wood or metal. What is the site like; is it subject to change such as currents shifting sand? Can the site be monitored—not only for natural alterations but for human interference? Is it likely to attract attention from such people as treasure seekers? It must be recognized that ‘treasure’ encompasses not only gold, silver, and precious gems but also ceramics and other objects now valuable because of age and rarity such as cannons. Preservation in situ does not mean that all access is forbidden. Rather, non-intrusive access to observe the site or document it is encouraged ‘to create public awareness, appreciation and protection of the heritage’.19

8. Why Was the 2001 Convention Needed? With the development of technologies allowing improved access to the seabed, under water cultural heritage came under increasing threat of despoliation and destruction. Explorers went hunting for historic sites and looted them for what valuables they contained. In the course of this, aspects of the site which had archaeological value were often ignored or destroyed. As we have seen, some argued that the law of salvage was capable of being used to prevent this: that the salvage award should take account of the archaeo logical value of what had been ‘saved’. However, this is not a worldwide practice. Many legal systems do not accept that salvage is relevant or, at least, not after a set period of time. Moreover, salvage, which emphasizes the commercial value of what has been saved, does not provide the protection necessary to preserve all aspects of a site. It thus proved necessary for States to provide special protection for underwater cultural heritage. The major development came in 2001 when the Convention on the 17 Art 5.

18 Art 2(5) and Rule 1.

19 Art 2(10).

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Underwater Cultural Heritage 303 Protection of the Underwater Cultural Heritage was adopted by the Member States of UNESCO at the organization’s 31st General Conference. It entered into force 2 January 2009. As of July 2018 there were sixty-one States Parties. Unfortunately, certain States with major interests in the underwater cultural heritage have not become party and, often due to extraneous political considerations, are unlikely to do so in the immediate future. A section of the Convention is called the ‘Annex’ and goes under the title ‘Rules Concerning Activities Directed at Underwater Cultural Heritage’. This was originally conceived as a set of Rules which would be part of the Convention but subject to change by a simple procedure which would allow for developments in technology along with archaeological theory and practice. However, during the negotiations States were not prepared to adopt such a procedure. They saw this as an interference with their powers as sovereign entities. To avoid this problem, the Rules are stated to be ‘an integral part’ of the Convention and thus subject to the same procedures as alterations to any other part of the Convention.20 They must also be given the same status as the rest of the Convention. A role is also played by the Operational Guidelines for the Convention on the Protection of the Underwater Cultural Heritage21 adopted by the Meeting of States Parties at its fourth session, May 2013. This is a subsidiary document, the purpose of which is set out in the guidelines themselves: The present Operational Guidelines can neither be understood as a subsequent agreement nor as rewriting, amending or interpreting the Convention. They merely aim to facilitate its implementation by giving practical guidance. In case of doubt, the text of the Convention prevails as interpreted according to the general rules of interpretation codified in the Vienna Convention of [sic] the Law of Treaties of 1969.22

The Operational Guidelines are of assistance to those looking for a basic introduction to the Convention and its place in protection of the underwater cultural heritage. Unfortunately, they do not try and interpret the more difficult aspects of the Convention such as the meaning of ‘commercial exploitation’ nor how States are to treat objects excavated in a manner not in conformity with the Convention. On the other hand, there are paragraphs dealing with matters not in the Convention at all, such as the relationship to non-governmental organizations. Many articles have been written about the Convention and underwater cultural heri tage. However, there have been few books that treat the Convention in depth. Three are Patrick O’Keefe, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage (Second Edition).23 20 Art 33. 21 CLT/HER/CHP/OG 1/REV AUGUST 2015 accessed 30 August 2019. 22 Para 22. 23 Institute of Art and Law 2014.

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304 Patrick J. O’Keefe Lyndel Prott (ed.), Finishing the Interrupted Voyage.24 Roberta Garabello, La Convenzione UNESCO sulla protezione del patrimonio culturale subacqueo.25 UNESCO itself has also published a guide to interpretation and implementation of the Annex.26

9. UNCLOS and the 2001 Convention The major maritime powers and some other States considered that UNCLOS had resolved the issue of jurisdiction over underwater cultural heritage with articles 149 and 303. Once raised and debated in negotiations for that Convention it could not be con sidered again; this in spite of the fact that conditions had changed. Technological advances, for example, had opened large areas of the ocean floor to access. Others contended that certain issues had not been decided by UNCLOS and should be reopened. For example, it was argued that UNCLOS did not adequately deal with ‘archaeological and historical objects’ found on the continental shelf or in the exclusive economic zone. Italy put forward the proposition: ‘It would be meaningless to simply repeat the provisions of UNCLOS, including their shortcomings, without adding any improvements.’27 The logic behind this was strongly supported. Italy gave vigorous support to the Convention following an episode in the Mediterranean Sea during its negotiation. In the period between 1988 and 1997 an organization based in the United States undertook four expeditions to locate shipwrecks and retrieve artefacts in an area on the Mediterranean continental shelf beyond the limit of the territorial seas of the coastal States. It seems that no previous official information about the expeditions was given to any of the Mediterranean coastal States. As it appears from an article published by the director of the project, Mr Robert Ballard, the expedition utilized a support ship, a nuclear-powered research submarine of the United States Navy, and a remotely o perated vehicle. Mr Ballard reported removing more than 150 artefacts (amphorae, glassware, and anchors) from the seabed. When asked about the concerns that his expedition had raised, Mr Ballard relied on the principle of freedom of the seas.28 In these circumstances it is not surprising that the relationship between UNCLOS and the 2001 Convention gave rise to intense dispute during negotiations for the latter. 24 Institute of Art and Law 2006. 25 Giuffré Editore 2004. 26 Thijs Maarleveld, Ulrike Guérin, and Barbara Egger (eds), Manual for Activities Directed at Underwater Cultural Heritage; Guidelines to the Annex of the UNESCO 2001 Convention (UNESCO 2013). 27 Extracted from document presented during the negotiations by Italy and reproduced in Gaetano Allotta, Tutela del Patrimonio Archeologico Subacqueo (Palerno 2001) 57. 28 Tullio Scovazzi, ‘The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage’ in Guido Camarda and Tullio Scovazzi (eds), The Protection of Underwater Cultural Heritage: Legal Aspects (Giuffré Editore 2002) 113, 117.

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Underwater Cultural Heritage 305 To reflect this, the outcome is given prominence and appears in article 3 of the 2001 Convention. Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international 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.

States parties to UNCLOS have to carry out their obligations under that Convention as they do with all other aspects of international law. However, the possibility of a special convention dealing with underwater cultural heritage was specifically recognized in article 303(4) of UNCLOS. Article 3 flows from that provision by the will of the inter national community. It acknowledges the supremacy of international law in general but also indicates that UNCLOS is part of international law with no superior position that would allow it to be referenced by those who would seek to read down the 2001 Convention.

10. Maritime Zones In line with the normal rules of international law, the Convention acknowledges that States have the exclusive right to ‘regulate and authorize activities directed at under water cultural heritage in their internal waters, archipelagic waters and territorial sea’.29 If the remains of a State vessel or aircraft is found in these areas, the flag State and other States with a verifiable link to the vessel should be notified. States parties may regulate and authorize activities directed at underwater cultural heritage in the contiguous zone. Dealing with these areas was relatively easy: much more difficult were the exclusive economic zone, the continental shelf, and the ‘Area’. The first two were treated together, first by an article dealing with reporting and notification and then by one on protection. The same pattern was followed in two articles on the ‘Area’. This differentiation resulted from traditional treatment of these zones in international law.

10.1 Continental Shelf/Exclusive Economic Zone We have seen that some States were very concerned about ‘creeping jurisdiction’. They were not prepared to allow the coastal State any right to require notification to it of any discoveries of underwater cultural heritage on its continental shelf or in its exclusive economic zone. Such a right was seen as a step in reducing the freedom of other States to 29 Art 7.

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306 Patrick J. O’Keefe act in these zones. The Convention imposes a complicated system dealing first with nationals of the coastal State or ships flying its flag. The national or the master of the ship may be required to report any discovery or activity on its continental shelf or in its exclusive economic zone. This does not raise questionable issues for those alleging extension of State power as it is entirely consistent with existing rules. However, it does not help those States with treasure seekers working on their contin ental shelf or in their exclusive economic zone without any permission or supervision. Article 9(1)(b) is intended to deal with this. It is not easy to interpret as it includes what is called a ‘constructive ambiguity’. It is ‘ambiguous’ because it is capable of two interpretations and ‘constructive’ because it represents a compromise which renders the Convention acceptable to more States. This clause was inserted by the United States seemingly by mistake, but, despite various attempts to alter it, a majority of States refused to allow any change. If there is a find or activity on the continental shelf or in the exclusive economic zone of a State Party, the State Party of the national or the master of the vessel concerned shall require reports to be made both to it and to the coastal State. On the other hand, the coastal State may require the report to be made to it. When States become party they are obliged to specify how reports are to be made. What is meant by ‘national’ could cause difficulties as there are likely to be many different nationalities engaged in activities directed at underwater cultural heritage. During the negotiations for the Convention, this matter was discussed, and there was general agreement that the reference to ‘national’ should be confined to the leader of the expedition or other activity. There is no mention of this in the Convention itself. However, States could interpret the obligation in that way and implement it through their law and administrative practices. Article 10 deals with protection of underwater cultural heritage in the exclusive economic zone and on the continental shelf. Under this article the role of the coastal State is crucial to protection of the heritage. Firstly, the coastal State loses any right to unilaterally authorize activities in these zones. Any authorization must be in conformity with the Convention. On the other hand, the coastal State has various rights under UNCLOS. In particular, it has rights over the continental shelf ‘for the purpose of exploring and exploiting its natural resources’. It is entitled to prohibit or regulate activities in relation to natural resources. These resources and underwater cultural heritage are often closely related physically so that interference with one results in interference with the other. The classic example is a shipwreck around which a coral reef has formed and become a habitat for fish which are a source of food for local people. The coastal State is entitled to regulate activity on the reef even though it has the effect of incidentally affecting access. There is no issue of ‘creeping jurisdiction’ or contravention of UNCLOS. Where the above situation does not apply, either because there is no interference with natural resources or the coastal State does not want to invoke such action, article 10 provides for a procedure of consultation with other States. Reactions are to be dealt with by a ‘co-ordinating State’ which will consult with other States on what steps to take but has the right to take all practicable measures, and/or issue any necessary authorizations in

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Underwater Cultural Heritage 307 conformity with this Convention and, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting.

10.2 The Area The Convention states that it is the sole source of authority for activities directed at underwater cultural heritage in the Area.30 When a national or a vessel flying the flag of a State Party intends to engage in such activities or finds underwater cultural heritage in the Area, a report must be made. The State concerned must then notify the DirectorGeneral of UNESCO and the Secretary-General of the International Seabed Authority. The former then must give the information to all States Parties. Any one of these can declare to the Director-General that they have an interest in being consulted on the effective protection of the underwater cultural heritage at issue. This declaration must be based on a ‘verifiable link’ to that heritage. The nature of this ‘link’ was much debated during the negotiations, but the outcome was not clear. The term appears in several articles of the Convention, but in article 11 the only explanation is that particular regard must be paid to the ‘preferential rights of states of cultural, historical or archaeological origin’. That is one major difficulty with the procedure for dealing with underwater cultural heritage in the Area. The other is the degree of bureaucracy involved. There is a great deal of information being passed from one organization to another. This takes time to assess, and the system has the potential to break down if someone in the process does not act expeditiously. If a State has an interest as defined by article 11(4) it will be invited by the DirectorGeneral of UNESCO to consult with similar States. A coordinating State is to be appointed. This State has wide powers to take preliminary action to protect underwater cultural heritage from immediate danger ‘whether arising from human activity or any other cause including looting’. In all its actions the coordinating State shall act ‘for the benefit of humanity as a whole, on behalf of all States Parties’. Italy has acted to protect wrecks on the Skerki Banks located in international waters between Sicily, Sardinia, and Tunisia. It has notified the Director-General of UNESCO of the discovery of various wrecks which are under threat from ‘uncontrolled fishing and non-regulated passage of tankers and container ships as well as by industrial work’. It now expects the procedures under the Convention to be implemented.31 This is the first time resort has been made to these procedures. There is a further qualification on articles 9 through 12 of the Convention. This concerns sovereign immunity. As far as ships are concerned, this doctrine means that one State will not interfere with the ships of another State. This does not apply to all ships, but, as far as article 13 goes, it is only warships and other government ships that are 30 Art 12. 31 David Blackman, ‘Italian Imitative under the UNESCO Underwater Convention’ (2018) 32 Territori della Cultura 94.

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308 Patrick J. O’Keefe immune. These are not obliged to report discoveries of underwater cultural heritage provided these vessels are operating for non-commercial purposes; are operating in their normal mode; and are not engaged in activities directed at underwater cultural heritage. The vessel may, for example, be searching for noise detectors placed on the seabed by another State and, in the course of the search, come across a wreck. The State may not want to reveal what it has been doing. The above paragraphs show the complex web of law and international politics into which rules regarding underwater cultural heritage have been inserted with varying degrees of success. The problem all along has been that there are entrenched interests which fight a rearguard action against any attempt, whether real, imagined or feared, to alter those interests. ‘Creeping jurisdiction’, for example, has nothing to do with under water cultural heritage in itself but, rather, what some States fear others will do if they see an expansion of jurisdiction in this field. Consequently, protection of underwater cultural heritage in the various zones discussed above has resulted in a Convention which is complex and difficult to effectively administer unless all States Parties have legislation faithfully reflecting the relevant provisions reinforced by an enthusiastic and efficient administration.

11. Nationality and Port State Powers Fortunately, States do not always have to rely on their jurisdictional powers in these various territorial zones. There are other forms of jurisdiction such as nationality jurisdiction and port State jurisdiction which are fully utilized in the Convention to provide protection. Unfortunately, these are not direct forms of control. They can only be brought into play when the person or the object comes within the jurisdiction—that is, within the territorial sea or onto the land mass of the State. This means that they will become more effective the more States that there are party to the Convention. Article 16 states: States Parties shall take all practicable measures to ensure that their nationals and vessels flying their flag do not engage in any activity directed at underwater cultural heritage in a manner not in conformity with this Convention.

The provision does not give States any power that they did not have before the Convention existed. What it does do is require the States to exercise the power—something that many States were reluctant to do. On the other hand, it recognizes that States are constrained—‘shall take all practicable measures’—by practical matters. For example, it may not be practical to apprehend a national if he or she is outside the jurisdiction of the State. The provision brings into play the Rules contained in the Annex. If the activity directed at the underwater cultural heritage has not complied with those Rules, then it has not been in conformity with the Convention.

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Underwater Cultural Heritage 309 States must prevent their territory being used to support activity directed at the underwater cultural heritage when that activity has not been in conformity with the Convention (art 15). States could, for example, prevent their ports being used to provide fuel and other facilities to those undertaking the activity. However, a more significant provision is article 14: States Parties shall 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 the Convention.

This is an extremely broad provision. It comes into play ‘where recovery was contrary to the Convention’. Once again the Rules will be a primary means of establishing whether the recovery was in conformity with the Convention. But it is the consequences of nonconformity that are so significant and much broader than many people realize. First, States have undertaken to prevent entry into their territory of such material. Many States have implemented laws to this effect applying to specified categories of cultural goods such as antiquities. This would be unique in singling out underwater cultural heritage for such treatment. Secondly, States have also undertaken to prevent ‘dealing in, or the possession of ’ underwater cultural heritage covered by article 14. Whether or not someone is ‘dealing’ would appear to be a matter of degree. Is it possible to deal in one object, or must there be a series of transactions? Or is it really a question of the intent of the person who holds the object? ‘Possession’ also has to be carefully assessed. It is not the same as ownership. For example, the owner of an object may consign it to a dealer for assessment. The dealer would possess the object as long as he held it. A State is obliged to impose sanctions ‘for violations of measures it has taken to implement the Convention’. These of course include the above provisions. There are no specific sanctions indicated. For example, no monetary penalty is specified nor any term of imprisonment. Rather, the Convention requires the sanction to be adequate in bringing about compliance with its strictures and depriving the offender of any benefit flowing from the violation. This will necessitate careful assessment by the State to see what actions will bring about these objectives. States parties are obligated to provide for seizure of any underwater cultural heritage recovered in a manner not in conformity with the Convention.

12. Salvage We have already discussed the concept of salvage and how it fails to meet the needs of protecting the underwater cultural heritage. Article 303(3) of UNCLOS stated: ‘Nothing in this article affects the rights of identifiable owners, the law of salvage and other rules of admiralty, and practices with respect to cultural exchanges.’

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310 Patrick J. O’Keefe Some have argued that this is a prohibition against any rule which seeks to affect s alvage. That cannot be read into the sub-article. It merely says that nothing in article 303 affects the law of salvage. It has no effect on other provisions and is thus of very limited significance. When the 2001 Convention was being negotiated, there was a great deal of argument over excluding the law of salvage and of finds in relation to any activity concerning underwater cultural heritage to which the Convention applies. Eventually a formulation was accepted by the Diplomatic Conference which does not specifically exclude salvage. Article 4 allows salvage and the law of finds to apply provided three conditions are fulfilled. The activity leading to application of these laws must: • be authorized by the competent authorities; • be in full conformity with the Convention; and • ensure that any recovery of underwater cultural heritage achieves its maximum protection. The authorization would have to be given by the competent authorities mentioned in articles 7, 8, 10, and 12 of the Convention. But, to be in full conformity with the Convention, the activity will have to comply with all the provisions of the Annex. These include detailed provisions on reporting and dissemination of results, conservation, and preservation. Most significantly, there is a prohibition against commercial exploit ation that echoes and expands on article 2(7), which states: ‘Underwater cultural heritage shall not be commercially exploited.’ But this is what salvage is about. Salvors pursue their objective in taking from a wreck what is of commercial value in the expectation that a court will make an award that will reward them for their efforts. What article 4 does in requiring application of the three preconditions is to strip away the possibility of making a profit from the salvage. Moreover, under the traditional law of salvage the person exercising salvage rights could not cease work for more than a limited period of time. Where article 4 applies, the competent authority would decide when and how the work on the site would be conducted.

13. State Vessels and Aircraft Not all of ships and aircraft are treated in the same way by international law. Some have been used by the State either directly, such as military vessels, or employed by the State on official business. The Convention defines State vessels and aircraft as warships, and other vessels and aircraft that were owned or operated by a State and used, at the time of sinking, only for government non-commercial purposes, that are identified as such and that meet the definition of underwater cultural heritage.32 32 Art 1(8).

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Underwater Cultural Heritage 311 There is no standard definition of a warship in international law. There is one in UNCLOS, but this is really only applicable to navies of recent times.33 That is not to say that vessels hundreds of years old are not considered as warships, just that there comes a point when there would be debate over their status. For example, would the wreck of a Roman galley be taken to be a warship? The second category of State vessels are those used, ‘at the time of sinking, only for government non-commercial purposes’. This is a question of fact to be ascertained from all the circumstances of a particular case. Why create these two categories of wreck? They are closely related to the sovereignty of the State. They are in effect part of the State, and so any action to interfere with them is an interference with the State itself. There are other reasons which may apply to particular vessels. The possibility that human remains may be found is significant. The State will want to ensure that there are properly treated; in the words of the Convention itself, that they are treated with ‘proper respect’.34 There may be papers on board that could be embarrassing to the State if they still survive having been sealed in special containers. How the remains of State vessels and aircraft should be affected by the Convention was a hotly debated issue. In the end it was decided to vary the treatment accorded them depending on where they were found. Thus, if they were found in internal waters, archipelagic waters, or the territorial sea of a State and the vessel is identifiable, that State should inform the flag State and any other with a verifiable link.35 The problem is that often it is difficult to identify the vessel until after excavation is done. Even then the coastal State may authorize further work if it so wishes. That is not the case if the site lies in the exclusive economic zone or on the continental shelf. There the flag State must consent and the coordinating State must be involved.36 Consent of the flag State must also be sought for activities directed at State vessels in the Area. In 2015 the Institut de Droit International issued a Resolution on the ‘Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law’.37 Ronzitti, the Rapporteur, seemed inclined to downplay the effect of the Convention because of what he regarded as the small number of ratifications it had received by 2011: The very fact that the Convention has received only a few ratifications shows that States are not convinced of its correspondence with customary international law.38

This seems to have ignored the complexity of the subject and the time needed for States to implement legislation. As of July 2018 there were sixty-one ratifications, including such States as Argentina, France, Italy, Mexico, South Africa, and Spain.

33 Patrick O’Keefe, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage (2nd ed, Institute of Art and Law 2014) 37. 34 Art 2(9). 35 Art 7(3). 36 Art 10(7). 37 See accessed 30 August 2019. 38 Natalino Ronzitti, ‘The Legal Regime of Wrecks of Warships and Other State-owned Ships in International Law’ accessed 30 August 2019.

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312 Patrick J. O’Keefe Article 2 of the Resolution deals with cultural heritage in a basic way. It refers to in situ preservation as being desirable where ‘appropriate’. This does not meet the standard of the Convention where preservation in situ is an imperative: ‘shall be considered as the first step before allowing or engaging in any activities directed at this heritage’. Many issues are not addressed,39 and others are mentioned but not in any detailed way. For example, of salvage it is said: ‘The salvage of sunken state ships is subject to the applicable rules of international law, the provisions of this Resolution, and appropriate archaeo logical practice.’ Salvage is a very significant problem for the preservation of underwater cultural heritage and needs better treatment than this. It is true that the Resolution is dealing with more than archaeologically important wrecks, but these make up the bulk of such wrecks.

14. Awareness and Information The whole purpose of protecting underwater cultural heritage is to preserve it for the benefit of humanity. The Convention sets out various ways in which this can be done. Raising public awareness is mentioned specifically in article 20. Education is significant whether it be at primary school level, secondary school, university or general programmes offered as part of adult education. Television programmes can reach large audiences. Archaeologists have a central role to play in incorporating in their work an explanation as to what they are doing. The public should also be made aware of the legislation in force and how it aims to protect underwater cultural heritage. This requires more than a simple statement of the law. The law must be explained, and it must be shown how it fits within the international rules and how those rules are a result of nations working together. Divers and others likely to come in contact with underwater cultural heritage will need detailed and specialized explanation of how the legislation works to implement the Convention. Raising public awareness is a duty on the part of States Parties. It is not an activity that the State can ignore or pass on to others. However, it is also not the type of activity that often confronts States. Professionals, such as archaeologists and conservators, may need to provide a lead to States in how it can be done. The Rules provide additional guidance. For example, projects ‘shall provide for public education and popular presentation of their results where appropriate’. As the UNESCO Manual states: ‘All archaeological research is futile if results are not shared.’40 The information obtained from an under water site is not the property of the person working on that site except for the limited purpose of protecting his or her publication rights. 39 Sarah Droomgoole, ‘The Legal Regime of Wrecks of Warships and Other State-Owned Ships in International Law: The 2015 Resolution of the Institut de Droit International’ (2016) 25 Italian Yearbook of International Law 179, 200. 40 UNESCO (n 26) at 306.

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Underwater Cultural Heritage 313 Although article 20 refers to raising public awareness without indicating any particular ‘public’, most States will inevitably concentrate on their own citizenry. That should not be the sole target. Much could be achieved by States in a particular region banding together to develop means of lifting the knowledge of the people in that region. Imaginative programmes could achieve a great deal. Raising awareness and information sharing are closely related. It is true, as article 19 notes, that States have to take care in distributing information which can damage under water cultural heritage. But information is central to increasing the awareness of the public. The Convention does not go into this in any detail but refers rather to exchange of information between States Parties, leaving it to the individual State how it uses the information received. Such exchange can be very broad indeed, including discovery of heritage, location of heritage, heritage excavated or recovered contrary to this Convention or otherwise in violation of international law, pertinent scientific methodology and technology, and legal developments relating to such heritage.41

All States Parties are to cooperate in training for underwater archaeology and conservation and ‘on agreed terms, in the transfer of technology relating to underwater cultural heritage’. This was a live issue during the negotiations, but it was recognized that the issues of trade, intellectual property, and finance were far beyond the scope of the Convention. Available evidence suggests that the transfer of technology has not proven to be significant.

15. The Annex The Rules set out in the Annex represent the first time international legal standards have been established by States to govern the work of archaeologists and others directed at underwater cultural heritage. There are numerous instances of rules establishing standards for specialists in the protection and preservation of cultural heritage devised by private organizations for the benefit of their members. The Rules of the Annex, on the other hand, have been prepared for States to adopt and apply when authorizing and judging the conduct of those who would work on underwater cultural heritage whether within the territory of a State or beyond it. The imperative ‘shall’ appears in all the Rules, indicating that States do not have an option on whether or not to apply them. States should have legislation in place requiring anyone directing activities at underwater cultural heritage to comply with those Rules. The Rules and the Convention as a whole have to be applied by States Parties. Most States already had an organization governing archaeology, protection of sites, and preservation of recovered objects. Sometimes this body or another controlled access to 41 Art 19(2).

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314 Patrick J. O’Keefe underwater cultural heritage, but not always. To fill the gap, the Convention requires States Parties to ‘establish competent authorities or reinforce the existing ones’ to provide for ‘the effective protection, conservation, presentation and management of underwater cultural heritage, as well as research and education’.42 Compliance with the Convention as a whole is not an option for those working with underwater cultural heritage but must underlie whatever they do. Rule 6 requires strict regulation of activities directed at underwater cultural heritage. This can only be achieved by the use of permits setting out the terms on which the archaeologist can work on the site. There are 36 Rules in total. Initially they were drafted by the International Council on Monuments and Sites through its International Committee on the Underwater Cultural Heritage. Following adjustments to fit the Rules into the context of a Convention, they were discussed by a special group during the diplomatic negotiations. This group was composed mainly of archaeologists and administrators of cultural heritage programmes so the needs of these specialists when working with the underwater cultural heritage were given in-depth attention. Thus there are specific provisions on the various stages of dealing with this aspect of heritage: project design; preliminary work; project objective, methodology, and techniques; project duration—timetable; competence and qualifications; conservation and site management; documentation; safety; environment; reporting; curation of project archives; and dissemination. Whether or not the Rules apply to a particular activity, this list does provide an excellent guide for prospective excavators, for example, as to what matters need to be taken into account before the activity begins, while it is under way, and after it finishes.

16. General Principles The Rules begin with eight ‘general principles’ which override all others. They must be read in conjunction with article 2 which sets out the general principles and objectives of the Convention. The Rules often expand on these and make more obvious what is already incorporated in the article. Thus, article 2(5) sets out the general principle that in situ preservation is to be the first option before allowing any activity directed at underwater cultural heritage. Rule 1 endorses this and expands on it by allowing such activities to be authorized ‘for the purpose of making a significant contribution to protection or knowledge or enhancement of underwater cultural heritage’. It is obvious from this that any person who wishes to undertake these activities must prepare a plan of action justifying what they propose to do. That plan must begin with an assessment of in situ preservation. It may be that preservation of the site it is not feasible. However, the possibility must be considered and an assessment made as to its feasibility. This must be submitted to the authorizing body as part of the process of complying with the Rules. 42 Art 22.

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Underwater Cultural Heritage 315 Even if in situ preservation is not thought to be necessary, this does not mean that a site can be freely excavated. While archaeology was originally aimed at the collection of objects, its purpose has now changed to the collection of information. Much information can be obtained by techniques that do not disturb a site. Consequently, Rule 4 requires activities directed at underwater cultural heritage to be non-destructive. Survey methods should be used rather than recovery. But these will not always suffice for the purpose of scientific study or the ultimate protection of the underwater cultural heritage. Excavation or recovery may be deemed necessary, but, if it is, then ‘the methods and techniques used must be as non-destructive as possible and contribute to the preservation of the remains’. One of the most controversial aspects of all activities directed at underwater cultural heritage is the underlying motive of those doing the work. The Rules specifically exclude any commercial motive: The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and management of underwater cultural heritage.43

This is aimed squarely at treasure hunters. It is not formulated as a Rule but more as a statement of principle. However, it does bear on the nature of these goods—they are not to be regarded as ‘commercial goods’. The second sentence of Rule 2 however is an imperative: ‘Underwater cultural heri tage shall not be traded, sold, bought or bartered as commercial goods.’ The words ‘traded, sold, bought or bartered’ attempt to cover all types of transactions that may be applied to cultural objects once they have been raised in an attempt to transfer ownership from one person to another and allow those objects to enter the stream of commerce as commercial goods.44 In the course of activities directed at underwater cultural heritage, human remains are sometimes found. Article 2(9) requires States to ‘ensure proper respect’ is given to these. Proper respect means that the remains are to be treated reverently as befitting a fellow human. Human remains are also the subject of Rule 5 which requires activities directed at underwater cultural heritage to avoid their unnecessary disturbance. This is not the same as article 2(9) although the overall effect can be somewhat similar. Work may possibly proceed on a site containing human remains without disturbing them, but if they must be disturbed then it has to be done with proper respect. Rule 5 has implications which are not to be found in other provisions of the Convention. It stipulates that there be no unnecessary disturbance of ‘venerated sites’. These can take a number of forms: for example, a hospital ship sunk during a conflict will almost certainly be a venerated site for the country whose flag it flew. But there are 43 Rule 2. 44 Patrick O’Keefe, ‘ “Commercial Exploitation”: Its Prohibition in the Unesco Convention on Protection of the Underwater Cultural Heritage 2001 and Other Instruments’ (2013) XVIII Art Antiquity and Law 129.

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316 Patrick J. O’Keefe other sites of religious significance to groups of people. Some of these may have been used by Indigenous peoples at a time when the sea level was much lower but are remembered even though they are no longer accessible.

17. The Archaeologist The archaeologist is central to any work on underwater cultural heritage. This is acknowledged in the Rules. The management authority must ensure that the conditions surrounding the appointment of the archaeologist and his/her team are followed. But there are standards which the archaeologist must satisfy before any permit to work can be granted. First, he or she must be qualified ‘with scientific competence appropriate to the project’.45 This means that not just any archaeologist can get a permit. First, he or she must have appropriate academic qualifications. What these are has not been established. At the very least it must mean that the person has a degree in archaeology with a specialization in underwater archaeology and is qualified to dive. The archaeologist in charge must also be able to show practical experience of managing projects of similar size or larger and have a record of successfully completing projects including prepar ation and publication of reports. Second, the archaeologist must be able to demonstrate understanding of the site. For example, has the archaeologist worked on a similar site or shown extensive knowledge of what may be encountered? The archaeologist must be in control of activities directed at underwater cultural heritage and be able to give directions which will be carried out by all staff. It was quite common for excavations to have a person called an archaeologist present but not able to instruct divers and others in their activities. This is now prohibited, and the power of the archaeologist should be stated specifically in the permit. Rule 22 requires the archaeologist to be regularly present. It might be thought that this allows the archaeologist to visit the site at regular intervals. That was the situation before the Convention was adopted. However, it is no longer. The UNESCO Manual accurately reflects the Convention and current understanding of this issue: The bottom line is that the responsibility for the intervention and its results lies with the project director. The archaeologist thus controls the work being executed. He or she must be on site to ensure that the project is undertaken to the appropriate standard and according to the agreed project design.46

Rule 23 provides for the employment of people who have lesser qualifications but a basic knowledge of archaeological techniques sufficient for them to work on the project. They may have worked on other projects or they may have taken specialist training in what may be required of them. 45 Rule 22.

46 At 172.

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Underwater Cultural Heritage 317

18. Reports Archaeologists have been criticized for not reporting the results of their work on site. As has often been said, excavation is destruction. Once a site is excavated it cannot be put back together again. It is gone forever, and all that remains are the artefacts recovered and the records of what was done there. Some archaeologists have become enamoured of the thrill of excavation and the excitement of new finds. They never complete the history that must underlie their work, and consequently it is largely worthless. The Rules require details of report preparation to be included in the project design, so that right from the beginning all concerned know precisely what is required.47 There is to be a documentation programme which includes a progress report.48 There are to be interim and final reports as set out in the project design. The Rules acknowledge that it will take time to develop a final report that incorporates input from various specialists. Ten years is given as a maximum period to develop the project archives ‘in so far as it may be compatible with conservation of the underwater cultural heritage’.49 For example, the final report of the excavation of Basque whaling ships at Red Bay in Canada was a 4000-page manuscript that took fifteen years to produce after completion of the excavation and commencement of work in the laboratory.50

19. Conclusion Protection and preservation of the underwater cultural heritage is a significant objective of the international legal system. The UNESCO Convention of 2001 is illustrative of this. But the Convention exists within the international political and legal framework. In negotiating it, States were constrained by what they felt this framework required. Many were prepared to be generous in how they interpreted those requirements—others not so. The result is a complex agreement that requires care in its implementation. The action of Italy in relation to the Skerki Banks mentioned in this chapter will be carefully watched to see how it works in practice. Those who support the Convention must hope that it is a success, as it will be many years before political will can be marshalled to bring about any changes to it or produce a new one.

47 Rule 10(n). 48 Rule 26. 49 Rule 33. 50 Robert Grenier and Marc-André Bernier, Challenges Facing Underwater Archaeology: The Red Bay Perspective (Stichting voor de Nederlandse Archeologie 2001) 156 fn 1, 10–11.

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chapter 14

The En v ironm en t a n d Cu ltu r a l H er itage Ben Boer

‘Humans, with their cultural diversity, are an integral component of ecosystems.’1

1. Introduction From the beginning of human life on Earth, as with all other elements of the animal domain, there has always been a direct dependence of people on the natural environment. In ancient times, that dependence was immediate and localized, but with increasing sophistication, the ability to travel and migrate, and vast increases in human populations, that dependence has become regional and subsequently global. However, that dependence has also become less direct, especially in larger urban settlements and with increasing separation of rural food-producing areas from where people live. Equally, the effect of human activity on both a global and local community basis has become devastating, resulting in the existential crises of the combined effects of rapid climate change, air and water pollution, land degradation, and increasingly extreme losses of biological diversity. With these thoughts in mind, this chapter explores the many legal and policy links between cultural heritage and the natural environment. For the purposes of the chapter, the natural heritage is generally equated with those aspects of the natural environment of particular value from the point of view of humanity but also in terms of intrinsic worth of those environmental elements. The natural heritage can also be characterized as a subset of cultural heritage in the sense that identifying a particular element of the natural environment as part of the heritage is the result of a broadening of human 1 Convention on Biological Diversity, ‘Ecosystem Approach’ accessed 19 August 2019.

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The Environment and Cultural Heritage 319 c ultural values through a process of acculturation.2 The division of heritage into natural and cultural components is often artificial in any case.3 The clear and often close links between biological and cultural diversity4 mean that separating them can be out of the question.5 These links are encapsulated in the term ‘biocultural diversity’, which covers biological, cultural, and linguistic diversity. This was expressed from an ethnobiological viewpoint in the Declaration of Belém6 as the ‘inextricable link between cultural and biological diversity’. As Lowenthal puts it: ‘Increasingly, the heritages of culture and nature came to be viewed as interconnected, indeed, indivisible. If they are twins, they are Siamese twins, separated only at the risk of the demise of both.’7 Other heritage analysts urge ‘the need to continue developing approaches and analytical frameworks that transcend the culture-nature dichotomy’.8 The chapter thus demonstrates that, from both a legal as well as a policy perspective, the protection of cultural heritage and the conservation of the natural environment are not easily placed into discrete silos. While some countries have had national legislation for centuries on the protection of many types of cultural heritage,9 the legal concept of the natural heritage has developed more recently. Natural heritage began to be particularly recognized by international and national legal mechanisms from the 1960s with development of the concept of World Heritage,10 which was subsequently embraced in the provisions of the World Heritage Convention.11 Lixinski points out that ‘[T]he World Heritage Convention (WHC) creates a very close relationship by having categories of “natural” and “cultural” heritage, a connection that goes back to the original drafting of the treaty, and helps elucidate a lot of the relationship between nature and culture in international heritage law.’12 2 Ben Boer and Graeme Wiffen, Heritage Law in Australia (Oxford University Press 2006) 2–3. 3 Graeme Aplin, Heritage: Identification, Conservation and Management (Oxford University Press 2002) 1. 4 Luisa Maffi and Ellen Woodley, Biocultural Diversity Conservation (IUCN 2010) 6–7. 5 ‘It is crucial to reiterate the impossibility, in most cases, of separating natural heritage from cultural heritage, and certainly the impossibility of separating the very concept of natural heritage from community beliefs and perceptions about the environment’: Aplin, Heritage (n 3) 83. 6 Declaration of Belém 1988, International Society of Ethnobiology accessed 25 June 2019. 7 David Lowenthal ‘Natural and cultural heritage’ (2005) 11(1) International Journal of Heritage Studies 81, 85. 8 Tim Winter and Patrick Daly, in Patrick Daly and Tim Winter (eds), Routledge Handbook of Heritage in Asia (Routledge 2012) 11. 9 See Patrick J. O’Keefe and Lyndel V. Prott, Law and the Cultural Heritage (Professional Books 1994) Vol 1, 31–81. 10 Michel Batisse and Gérard Bolla, The Invention of ‘World Heritage’ (History Papers, UNESCO 2005). 11 Convention for the Protection of the World Cultural and Natural Heritage (adopted on 16 November 1972, by the General Conference of the United Nations Educational, Scientific and Cultural Organization, meeting in Paris from 17 October to 21 November 1972, at its seventeenth session, entered into force 17 December 1975) 1037 UNTS 151. 12 Lucas Lixinski, International Law for Communities; Exclusion and Re-Imagination (Oxford University Press 2019) 168.

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320 Ben Boer Heritage law now clearly encompasses the two realms of the cultural and the natural. Each of them can be further divided into tangible and intangible heritage,13 but even that division is artificial, as they are so often intertwined that they are indistinguishable. The processes of decision-making that determine whether or not a particular tangible and intangible element is classified as part of the heritage, and whether, in turn, that element is classified as cultural, natural, or a mixture of both, also raises consideration of the political and human rights aspects of heritage,14 as well as the construction of cultural identity.15 As recognised by Lixinski, referring to the UNESCO Universal Declaration on Cultural Diversity: ‘Human rights are also considered as guarantors of cultural diversity.’16 Further, even if the item is not specifically regarded as part of the cultural or natural heritage, it can often be valued and protected by broader mechanisms embodied in human rights law, environmental law, and natural resources and property law, particularly in terms of instrumental uses of the item.17 The chapter examines some of the history of the legal and policy links that bind together the protection of cultural heritage and the conservation of the environment, as well as those that link culture and cultural heritage with the concept of sustainable development. The various declarations arising out of global initiatives are canvassed, and are followed by analysis of the range of international instruments that are particularly focused on heritage matters. Next, the main global treaties concerned with the natural environment, but that also promote or incorporate heritage concepts, are examined. The chapter then delves into the area of Indigenous heritage, where the close integration of heritage issues and environmental matters is often quite easily demonstrable, making it even more obvious that the cultural heritage and the natural environment do not reside in separate camps. The chapter concludes that, in promoting the recognition of the legal relationships between culture and our environment, a more unified approach is required to the implementation of the various cultural and natural heritage instruments and that, from both legal and policy perspectives, cultural and natural heritage concepts must be understood in a more integrated fashion. Achieving a greater integration may also promote a greater awareness of the dependence of all people on the natural environment for their continued existence. Put another way, the cultural heritage, in all of its guises, cannot be enjoyed without the sustenance provided by the natural environment. This point is reinforced by a consideration of some of the messages of sustainable development, most recently expressed in the Sustainable Development Goals of 2015.18 13 Ben Boer and Stefan Gruber, ‘Heritage Discourses’ in Brad Jessup and Kim Rubinstein (eds), Environmental Discourses in Public and International Law (Cambridge University Press 2012) 375, 376. 14 See Ana Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’ in Federico Lenzerini and Ana Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Bloomsbury 2014). 15 See Janet Blake, International Cultural Heritage Law (Oxford University Press 2015) 275–278. 16 Lixinski (n 12) 238. 17 See Jérémie Gilbert, Natural Resources and Human Rights (Oxford University Press 2018), in particular ch 2, ‘The Human Right to Property’. 18 The Sustainable Development Goals are incorporated in the document Transforming Our World: The 2030 Agenda for Sustainable Development, United Nations, A/Res/71 2015.

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2. International Policy Instruments and Soft-Law Declarations 2.1 Stockholm Declaration At the first global conference on the environment in 1972, the drafters of the Stockholm Declaration felt the need to confirm the interdependence of humans and their environ ment, proclaiming in the first sentence that ‘Man is the creature and moulder of his environment, which gives him physical sustenance and the opportunity for intellectual, moral, social and spiritual growth’.19 Principle 1 of the Declaration focuses on the rights of freedom, equality, and adequate conditions of life and the responsibilities for the protection and improvement of the environment for present and future generations. Centrally, in the context of this chapter, Principle 4 records both the ethical and economic aspects of the human–environment continuum: ‘Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat which are now gravely imperilled by a combination of adverse factors. Nature conservation including wildlife must therefore receive importance in planning for economic development.’ The ethical component of this ‘special responsibility’ to care for nature relates on the one hand to the aeons-long debt that humans owe to our sustaining environment, recognizing that we are an integral part of it. On the other hand, we have the duty to restore and maintain the integrity of the environment, in recognition that, with some exceptions, people have historically degraded it and continue to do so.20

2.2 World Charter for Nature The World Charter for Nature,21 a soft-law instrument developed by the IUCN and other bodies and approved by a United Nations resolution in 1982, reflected the 19 Declaration of the UN Conference on the Human Environment, Stockholm, June 1972 (1972) 11 ILM 1416, para 1 (in the preparation of treaties and official documents in the 1970s and earlier, genderneutral drafting was not the norm). 20 As recognized in the 2019 report of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES): ‘Nature and its vital contributions to people, which together embody biodiversity and ecosystem functions and services, are deteriorating worldwide’, Summary for Policymakers of the Global Assessment Report on Biodiversity and Ecosystem Services (IPBES 2019) 2 accessed 25 June 2019. 21 World Charter for Nature 1982A/RES/37/7 (28 October 1982). For history of the development of the Charter, see H.W. Wood, ‘The United Nations World Charter for Nature: The Developing Nations’ Initiative to Establish Protections for the Environment’ (1985) 12 Ecology Law Quarterly 977; see also Wolfgang E. Burhenne and William A. Irwin, The World Charter for Nature: A Background Paper (Schmidt, 1983) accessed 25 June 2019.

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322 Ben Boer e merging view that conservation is consistent with development and is not in conflict with the concept of sustainable development.22 In 1992 it was seen as one of the documents forming the basis of the (then) proposed Earth Charter discussed at the United Nations Conference on Environment and Development (Earth Summit).23 The Charter is pertinent to the discussion of the relationship between environment and cultural heritage, in recognizing that ‘[m]ankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients’ and, further, that ‘[c]ivilization is rooted in nature, which has shaped human culture and influenced all artistic and scientific achievement, and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation’.24 The World Charter for Nature can be seen as a high point of the 1980s in understanding the links between human culture and its supporting environment; it was a matter only hinted at in 2015, with the publication of the Sustainable Development Goals (see Section 2.7).

2.3 World Commission Environment and Development The World Commission on Environment and Development, established by the United Nations in 1983, further recognized the inherent relationship between the natural envir onment and its cultural manifestations. The Commission’s report, Our Common Future,25 identifies these links in a variety of ways. For example, with regard to conservation of wild species, it recognizes that species diversity is necessary for the normal functioning of ecosystems and indeed for the whole biosphere. It also recognizes the contributions made by wild species to crop improvement, medicine, and provision of raw materials for industrial use. However, it also states that, apart from their utility, ‘there are also moral, ethical, cultural, aesthetic, and purely scientific reasons for conserving wild beings’.26 The report also equates the loss of forests and other wild lands with a loss of cultural heritage: that loss ‘removes forever creatures of beauty and parts of our cultural heritage; it diminishes the biosphere’.27 With regard to the world’s oceans, the report sees their ‘critical role’ in the maintenance of the earth’s life-support systems, on the one hand, but also their provision of human services: ‘protein, transportation, energy, employment,

22 Wood, ‘The United Nations World Charter’ (n 21), 987. 23 Peter H. Sand, ‘International Law on the Agenda of the United Nations Conference on Environment and Development: Towards Global Environmental Security?’ (1991) 60(1) Nordic Journal of International Law 5, at 7; the Earth Charter is dealt with at 2.5. 24 World Charter for Nature (n 21), Preamble, para (b). 25 Report of the World Commission on Environment and Development, Transmitted to the General Assembly as an Annex to document A/42/427–Development and International Co-operation: Environment; also known as the Brundtland Report; published in book form as Our Common Future (Oxford University Press 1987). 26 Ibid, 20, para 53. 27 Ibid, 34–5, para 30.

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The Environment and Cultural Heritage 323 recreation, and other economic, social, and cultural activities’28 (now often referred to as ‘ecosystem services’) .

2.4 Rio Declaration Principle 1 of the Rio Declaration,29 in comparison with Principle 1 of the Stockholm Declaration, is not as robust in recognizing the interdependence of people and their environment. It takes on a more anthropocentric character: ‘Humans are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’ The phrase ‘in harmony with nature’ does not have the same resonance as the approach of Principle 1 of the Stockholm Declaration, where humans are regarded at once as ‘creatures and moulders’ of their environment. Principle 22 of the Rio Declaration does, however, recognize the role that Indigenous people and their communities, and other local communities, play in environmental management and development ‘because of their knowledge and traditional practices’. It encourages States to ‘recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development’. This principle presaged the increasing emphasis that has been placed on culture as an instrument in achieving sustainable development. This is evidenced, inter alia, in the Preamble to the 2007 UN Declaration on the Rights of Indigenous Peoples—‘Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment’30— and in the Sustainable Development Goals.31

2.5 The Earth Charter The Earth Charter,32 originally conceived of and proposed as an outcome document of the 1992 Rio Conference, did not come to fruition at that time and was seen as part of the ‘unfinished business’ of the Conference.33 It became the impetus for a separate movement called the Earth Charter Initiative, commenced in 1994, with the Earth Charter being launched, after long negotiations, in 2000.34 It contains several references to culture and heritage. Under the heading of ‘ecological integrity’, it recognizes that viable 28 Ibid, 217, para 4. 29 Rio Declaration on Environment and Development 1992 (1992) 31 ILM 874 (hereafter ‘Rio Declaration’). 30 United Nations Declaration on the Rights of Indigenous Peoples 2007, UNGA A/RES/61/295; see Section 5.2. 31 See Section 2.7. 32 See accessed 19 August 2019. 33 The original Earth Charter became the Rio Declaration (n 29); see Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (4th ed, Cambridge University Press 2018) 41. 34 See accessed 19 August 2019.

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324 Ben Boer nature and biosphere reserves should be established and safeguarded ‘including wild lands and marine areas, to protect Earth’s life support systems, maintain biodiversity, and preserve our natural heritage’.35 The Charter also urges the recognition and preservation of ‘the traditional knowledge and spiritual wisdom in all cultures that contribute to environmental protection and human well-being’.36 Under the rubric of ‘Social and Economic Justice’, the Charter upholds ‘the right of all, without discrimination, to a natural and social environment supportive of human dignity, bodily health, and spiritual well-being, with special attention to the rights of indigenous peoples and minorities’ and, as part of that commitment, promoted the protection and restoration of ‘outstanding places of cultural and spiritual significance’.37 While the Charter has no legal force, it may in time become part of the legal toolkit for global environmental management.38

2.6 Millennium Development Goals As indicated, the relationship between the human environment, development and culture has been discussed at an international level for many years. The World Commission on Culture and Development, reporting in 1995, acknowledged that the ‘instrumental view of culture is of great interest and importance, since the process of economic growth is generally highly valued’.39 However, it went on to say: ‘It is also difficult to accept the view that culture can be fully captured in a purely instrumental role . . . It is therefore important both to acknowledge the far-reaching instrumental function of culture in development, and at the same time to recognize that this cannot be all there is to culture in judgements of development. There is, in addition, the role of culture as a desirable end in itself, as giving meaning to our existence.’40 Notwithstanding this awareness we can note that, while the eight Millennium Development Goals (MDGs), prepared in 2000,41 included a goal on environmental sustainability, none of Goals directly touched upon the issue of cultural heritage in the sense discussed in this chapter. Tellingly, the United Nations 2010 resolution entitled ‘Keeping the Promise’ on progress with the MDGs included this statement: ‘We acknowledge the diversity of the world and recognize that all cultures and civilizations contribute to the enrichment of humankind. We emphasize the importance of culture for development and its contribution to the achievement of the Millennium 35 Earth Charter, ‘Ecological Integrity’, 5.b. 36 Ibid, 8.b. 37 Ibid, 12. 38 See, for example, Klaus Bosselmann and J. Ronald Engel, The Earth Charter: A Framework for Global Governance (KIT Publishers 2010); see also Maksim Lavrik, Alicia Jimenez and Mirian Vilela, The Global Pact for the Environment as a Next Step on the Way Forward for the Earth Charter (Earth Charter International Secretariat 2018) accessed 12 December 2019. 39 Our Creative Diversity, Report of the World Commission on Culture and Development (UNESCO 1995) 23. 40 Ibid. 41 Millennium Development Goals, accessed 19 August 2019.

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The Environment and Cultural Heritage 325 Development Goals.’42 It also considered ‘that the cultural dimension is important for development’ and encouraged ‘international cooperation in the cultural field, aimed at achieving development objectives’.43 Of this resolution, Francesco Banderin et al. lamented the belated recognition by the United Nations of the influence of culture on the MDGs, noting that such recognition was ‘a full ten years into the implementation of the Millennium Development Goals’.44

2.7 Sustainable Development Goals and Cultural Heritage The MDGs were the precursor to the Sustainable Development Goals (SDGs).45 The recognition of the cultural dimension mentioned in the Keeping the Promise46 reso lution in 2005 concerning the MDGs was subsequently reflected in the discussions leading to the formulation of the SDGs in 2015. UNESCO argued that ‘[c]ulture is who we are and what shapes our identity. Culture contributes to poverty reduction and paves the way for a human-centred, inclusive and equitable development. No development can be sustainable without it. Placing culture at the heart of development policies constitutes an essential investment in the world’s future and a pre-condition to successful globalization processes that take into account the principle of cultural diversity.’47 Such a strong statement makes the failure of some high-level protagonists to convince States to include culture as a specific goal of the SDGs all the more disappointing.48 The document that launched the SDGs, Transforming Our World: The 2030 Agenda for Sustainable Development,49 sets out the concerns of the drafters with regard to culture and sustainable development, pledging to ‘foster intercultural understanding, tolerance, mutual respect and an ethic of global citizenship and shared responsibility. We acknow ledge the natural and cultural diversity of the world and recognize that all cultures and civilizations can contribute to, and are crucial enablers of, sustainable development.’50 This view is reflected in Goal 4 of the SDGs, which is to ‘[e]nsure inclusive and equitable quality education and promote lifelong learning opportunities for all’. Target 4.7 of Goal 4 elaborated on this, with the aim being to ensure that all learners acquire the knowledge 42 United Nations, Keeping the Promise: United to Achieve the Millennium Development Goals, A/ RES/65/1, para 16. 43 Ibid, para 66. 44 Francesco Bandarin, Jyoti Hosagrahar, and Frances Sailer Albernaz, ‘Why Development Needs Culture’ (2011) 1(1) Journal of Cultural Heritage Management and Sustainable Development 15. 45 United Nations Development Programme, ‘Background on the goals’ accessed 25 June 2019. 46 United Nations, Keeping the Promise (n 42). 47 UNESCO, Sustainable Development Goals for Culture in the 2030 Agenda, accessed 25 June 2019. 48 See further Ben Boer, ‘Culture, Rights and the Post-2015 Development Agenda’ in Andrea Durbach and Lucas Lixinski (eds), Heritage, Culture and Rights: Challenging Legal Discourses (Hart Publishing 2017) 35; see also UNESCO, Sustainable Development Goals for Culture in the 2030 Agenda (n 47). 49 Transforming our World (n 18). 50 Ibid, para 36.

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326 Ben Boer and skills needed to promote sustainable development, including, among others, through education for sustainable development and sustainable lifestyles, human rights, gender equality, promotion of a culture of peace and non-violence, global citizenship and appreciation of cultural diversity and of culture’s contribution to sustainable development’ (emphasis added). While this broad sentiment is in itself unobjectionable, the focus of the last phrase confirms the largely instrumental nature of the Target. Goal 11, focused on Sustainable Cities and Communities, obfuscates the situation. It aims to ‘[m]ake cities and human settlements inclusive, safe, resilient and sustainable’, with the role of Target 11.4 being to ‘[s]trengthen efforts to protect and safeguard the world’s cultural and natural heritage’. Target 11.4 is inserted between two targets that are not obviously connected to it. This clumsy drafting appears to be the result of having to find some kind of bolthole for heritage matters in the SDGs, given that culture was not given an actual home as a goal in itself.51 A further point in Target 11.4 is the reference to ‘the world’s cultural and natural heritage’ (emphasis added); this creates some confusion as to whether World Heritage was specifically meant or whether the wording was intended to refer literally to the natural and heritage of the world as a whole.52 Nevertheless, the juxtaposition of cultural and natural in the target provides some comfort that the drafters were cognizant of the links between them.

2.8 IUCN Draft Covenant The Draft International Covenant on Environment and Development,53 developed over a period of two decades by the IUCN World Commission on Environmental Law and the International Council on Environmental Law, was intended to be ‘a blueprint for an international framework agreement consolidating and developing existing legal prin ciples related to environment and development’.54 The latest edition was completed in 2015 in the light of the preparation of the SDGs and accordingly is sub-titled ‘Implementing Sustainability’ The commentary to the Covenant’s Preamble clearly articulates several of the basic themes of this chapter, recording that ‘all civilizations spring from and are shaped by the quality of their surrounding natural elements’ and that ‘the histories of different peoples are inseparable from the natural conditions in which they have lived for millennia’. It also recognizes that nature provides inspiration for human culture:55 ‘Art, literature and science cannot be understood, or even imagined, 51 See further Boer, ‘Culture, Rights and the Post-2015 Development Agenda’ (n 48) 53. 52 Ibid. 53 Draft International Covenant on Environment and Development (5th ed, IUCN Switzerland 2015) 28. 54 Ibid, Foreword, xiii. 55 Ancient manifestations include the rock art of Indigenous peoples in various countries, for example the Australian Aboriginal people—see Josephine Flood, Rock Art of the Dreamtime: Images of Ancient Australia (Angus and Robertson 1997. In Europe, rock art was practised in many regions; see Council of

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The Environment and Cultural Heritage 327 without acknowledging the influence of nature and its components. Thus, cultural diversity, like biological diversity, emerges from the various ecosystems.’56 The specific provision on cultural and natural heritage is article 28, which calls on parties to take all appropriate measures ‘(a) to conserve or rehabilitate, in situ, cultural and natural monuments, and areas, including landscapes, of outstanding scientific, cultural, spiritual, or aesthetic significance; (b) to prevent all measures and acts which are likely to harm or threaten such monuments or areas; and (c) to preserve, ex situ, heritage at risk of loss’. While the drafters of the Covenant have not achieved their aim of generating an overarching and binding international instrument, several further documents have been generated, based partly on the efforts of some of the same drafters of the Covenant, namely the IUCN World Declaration on the Environmental Rule of Law and the Draft Global Pact for the Environment, which include reference to culture within broader environmental concerns.

2.9 IUCN World Declaration on the Environmental Rule of Law The IUCN World Declaration on the Environmental Rule of Law was drafted by the IUCN World Commission on Environmental Law in 2016.57 The preamble to the Declaration ‘recognizes that humanity exists within nature and that all life depends on the integrity of the biosphere and the interdependence of ecological systems’. It also records ‘the importance of indigenous knowledge and cultures and their contribution to equitable sustainability’. Significantly in this context, it declares that strengthening the rule of law ‘is critical to protecting environmental, social, and cultural values’, thus once again reiterating these links, consistently with the IUCN Covenant.

2.10 Draft Global Pact for the Environment Another (currently) informal instrument, the Global Pact for the Environment,58 drafted in 2017, also contains the foundations for recognition of links between the cultural heritage and the environment.59 The deliberations on the proposed Pact led to a UN resolution, Europe Portal, Prehistoric Rock Art Trails accessed 11 December 2019. 56 Draft International Covenant (n 53) 30. 57 First IUCN World Environmental Law Conference outcome accessed 25 June 2019. 58 IUCN, Global Pact for the Environment accessed 25 June 2019. 59 United Nations, Towards a Global Pact for the Environment, Res 72/277 (10 May 2018) accessed 25 June 2019.

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328 Ben Boer ‘Towards a Global Pact for the Environment’, which called for a report from the UN Secretary-General on this topic. The resulting report60 explored gaps in the international regulatory regimes on protection of the atmosphere, the conservation of biological diversity, the protection of soils, the regulation of freshwater resources, oceans and seas and of hazardous substances, wastes, and activities. It indicated that a ‘comprehensive and unifying international instrument that gathers all the principles of environ mental law’ could serve to strengthen international environmental law and its implementation. The proposed Pact is regarded as ‘a logical next step in the evolution of global environmental governance’.61 Article 1 is headed the ‘Right to an ecologically sound environment’ and, importantly, includes culture within its purview: ‘Every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment.’ As Boyd has written, this ‘article provides a lens through which the entire Pact may be read, so that the principles in the Pact reflect rights not just of States vis-à-vis one another but also of rights held by human beings against States. In effect, the first article ensures that the Pact is seen as a human rights treaty as well as an environmental convention.’62 Following this logic, while Article 1 does not directly recognize the right to culture or to the cultural heritage as such, it could be so interpreted. However, it is interesting to note that the report of the SecretaryGeneral does not itself discuss the treatment of cultural heritage as constituting a gap in international environmental law, possibly because of the narrower approach as to what is constituted by environmental law in the report.

3. The Heritage Instruments This section examines the various international cultural and natural heritage conventions and other instruments that have direct or indirect links with the natural and broader environment. 60 ‘Gaps in International Environmental Law and Environment-Related Instruments: Towards a Global Pact for the Environment’ accessed 25 June 2019. 61 See, further, Yann Aguila and Jorge E. Viñuales, ‘A Global Pact for the Environment: Conceptual Foundations’ (2019) 28(1) Review of European, Comparative and International Environmental Law 3, at 12; Christina Voigt, ‘How a “Global Pact for the Environment” could add value to International Environmental Law’ (2019) 28(1) Review of European, Comparative and International Environmental Law 13; Duncan French and Louis J. Kotzé, ‘Towards a Global Pact for the Environment: International Environmental Law's Factual, Technical and (Unmentionable) Normative Gaps’ (2019) 28(1) Review of European, Comparative and International Environmental Law 25; John H. Knox, ‘The Global Pact for the Environment: At the Crossroads of Human Rights and the Environment’ (2019) 28(1) Review of European, Comparative and International Environmental Law 40. See, further, Ben Boer ‘Environmental Principles and the Right to a Quality Environment’ in Ludwig Krämer and Emanuela Orlando (eds), Principles of Environmental Law (Edward Elgar 2018) 52–76. 62 David Boyd, in Yann Aguila and Jorge E. Viñuales (eds), A Global Pact for the Environment: Legal Foundations (C-EENRG 2019) 191.

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3.1 Hague Convention The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention),63 drafted as a result of the devastating impacts of armed conflict during World War II, obviously focuses on ‘cultural property’, defining it in article 1 as ‘movable or immovable property of great importance to the cultural heritage of every people’. However, it includes ‘scientific collections’ within the various examples listed, which may of course cover natural history museums and their collections, and in this respect the Convention can be interpreted as linking cultural heritage and environmental concerns.64

3.2 World Heritage Convention The World Heritage Convention65 began its life with a focus solely on cultural heritage, but, with the intervention of the International Union for Conservation of Nature (IUCN) at an early stage of the drafting process, the concept of natural heritage was added, becoming the first international treaty to incorporate the cultural and natural heritage in one instrument.66 As Kari and Rössler have argued: ‘Conceived with the fundamental notion that heritage is both cultural and natural, the World Heritage Convention provides a well-defined and compelling framework to examine the interlinkages between culture and nature.’67 There is nevertheless a degree of ambiguity in the Convention’s preamble and in the definitions, indicating an initially uncomfortable union, the preliminary processes of which were referred to by Bolla as ‘[e]pisodes of a painstaking gestation’.68 The sixth recital in the Convention’s Preamble states: ‘Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole.’ Use of the word ‘or’, as opposed to ‘and’, already betrays some separation of the two concepts. This apparently dualistic approach is evident in the separate definitions of cultural heritage and natural heritage. As Larsen 63 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. 64 However, Lixinski (n 12, at 11) suggests that there were attempts by States to include nature in the definition of heritage. 65 Convention concerning the Protection of the World and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151. 66 ‘The most significant feature of the 1972 World Heritage Convention is that it links together in a single document the concepts of nature conservation and the preservation of cultural properties. The Convention recognizes the way in which people interact with nature, and the fundamental need to preserve the balance between the two.’: World Heritage Centre, The World Heritage Convention accessed 25 June 2019. 67 Susanna Kari and Mechtild Rössler, ‘A World Heritage Perspective on Culture and Nature–Beyond a Shared Platform’ (2017) 34(2) The George Wright Forum 134. 68 Gérard Bolla, in Batisse and Bolla, The Invention of ‘World Heritage’ (n 10), at 67.

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330 Ben Boer and Wijesuriya note, ‘the defining articles of the convention keep natural and cultural heritage as separate domains by situating humanity, history, and construction in the cultural field, contrasting these with natural features’. They continue: ‘[T]here is today a growing understanding that heritage sites are not made up of isolated natural or cultural attributes split into separate realities, but are intertwined, connected, and constituted of relationships. Heritage thinking has matured in its appreciation of the complex interconnections between values both cultural and natural, attributes, and the people living in and around World Heritage sites regardless of whether they manifest Outstanding Universal Value (OUV) only.’69 It is only in the third paragraph of the Convention’s cultural heritage definition that we see an attempt at integration of cultural and natural: ‘sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view’. This forms the basis of the nomination of ‘mixed sites’ under the Convention, as well as the concept of ‘cultural landscape’. Given the attempts at closer integration between the cultural and the natural heritage in recent times, the characterization of the Convention by Dupuy and Viñuales as a ‘hybrid instrument’70 would seem to be the most satisfactory approach.

3.3 World Heritage Operational Guidelines The introduction of the concept of ‘cultural landscape’ in the Convention’s Operational Guidelines in 1992 can be said to represent a recognition that the concept of ‘combined works of man and nature’ did not sufficiently address the issue that World Heritage properties can represent a satisfactory and ongoing combination of both realms. As introduced by Plachter and Rössler: ‘Cultural landscapes reflect the interactions between people and their natural environment of a space and time . . . Cultural landscapes mirror the cultures which created them.’71 However, this modern conception of landscape emerged from age-old roots: ‘[t]he meaning was a clearing in the forest with animals, huts, fields and fences. It was essentially a peasant landscape carved out of the

69 Peter Bille Larsen and Gamini Wijesuriya, ‘Nature–Culture Interlinkages in World Heritage: Bridging the Gap’, (2017) 34(2) The George Wright Forum 142, at 145. 70 Pierre-Marie Dupuy and Jorge E Viñuales, International Environmental Law (2nd ed, Cambridge University Press 2018) 224. 71 Harald Plachter and Mechtild Rössler, ‘Cultural Landscapes: Reconnecting Culture and Nature’ in Bernd von Droste, Harald Plachter, and Mechtild Rössler (eds), Cultural Landscapes of Universal ValueComponents of a Global Strategy (Gustav Fischer Verlag and UNESCO 1995), 15; see also Thomas Schaaf and Mechtild Rössler, ‘Sacred Natural Sites, Cultural Landscapes and UNESCO’s Action’ in Bas Verschuuren et al. (eds), Sacred Sites: Conserving Nature and Culture (Earthscan 2010). The recognition of maritime cultural landscapes is also noted; see Christopher Westerdahl, ‘The Maritime Cultural Landscape’ in Alexis Catsambis, Ben Ford, and Donny L. Hamilton (eds), The Oxford Handbook of Maritime Archaeology (Oxford University Press 2011) 734.

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The Environment and Cultural Heritage 331 original forest or weald, with interconnections to patterns of occupation and associated customs and ways of doing things.’72 Article 6 of the Operational Guidelines nevertheless underlines the ‘cultural’ mindset of the drafters, recognizing that cultural landscapes are cultural properties; they represent the ‘combined works of nature and of man’ and are illustrative of ‘the evolution of human society and settlement over time’. Thus, cultural landscapes are classified and inscribed on the World Heritage List under the cultural criteria only and are evaluated by ICOMOS ‘in consultation with IUCN’ as two of the three expert bodies advising the World Heritage Committee.73 The seemingly unnecessary ambiguity of the convergence of the two realms is also reflected to an extent in the ten criteria set out in the Operational Guidelines for the assessment of ‘outstanding universal value’. Originally, the Operational Guidelines sep arated cultural and natural heritage into two lists of criteria. In 2003,74 these criteria were consolidated in one list. However, the first six criteria are nevertheless focused on the cultural heritage, and the other four on the natural heritage, so this ‘integration’ might be seen as more imagined than real. Another aspect of the awkward integration of natural and cultural heritage under the World Heritage Convention is the practice of nominating ‘mixed’ sites, consisting of properties which fulfil one or more of the cultural and natural criteria spelt out in the Operational Guidelines.75 Assessments for mixed properties are subject to a joint mission by IUCN and ICOMOS, but they are then required to prepare separate evaluation reports under the criteria specified in the Operational Guidelines. However, they are expected to harmonize and coordinate their evaluations ‘to the extent possible’.76 This uneasy mix of processes reflects some of the ambiguities of the provisions of the World Heritage Convention itself. Larsen and Wijasuriya advocate ‘critical approaches’ to challenge World Heritage with regard to the way it ‘is framed and institutionalized, and its social effects’.77 They argue: ‘At stake are not simply “local” cultural or natural heritage values, but the values and cultural practices of the (global) heritage sector potentially displacing other values and practices, neglecting rights, transforming power relationships, and/or leading to commodification. Addressing nature and culture

72 Ken Taylor, ‘Landscape and Meaning’ in Ken Taylor and Jane L. Lennon, Managing Cultural Landscapes (Routledge 2012) 22. 73 Operational Guidelines art 146; for history and application of the concept of cultural landscapes, see Kathryn Whitby-Last, ‘Art. 1: Cultural Landscapes’, in Francesco Francioni with Federico Lenzerini (eds), The World Heritage Convention: A Commentary (Oxford University Press 2008) 50–62. The third expert advisory body is the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM); see Operational Guidelines art 40. 74 Revision of the Operational Guidelines, Decision 6 EXT.COM 5.1, 2003. 75 Operational Guidelines art 46. Properties shall be considered as ‘mixed cultural and natural heri tage’ if they satisfy a part or the whole of the definitions of both cultural and natural heritage laid out in arts 1 and 2 of the Convention. 76 Operational Guidelines art 146 and Annex 6, C.1. 77 Larsen and Wijasuriya, ‘Nature–Culture Interlinkages’ (n 69), at 150.

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332 Ben Boer interlinkages in this respect requires addressing and harnessing the power inherent in these dynamics.’78 Clearly, there is a strong case to be made for a more integrated approach to the nomination, assessment, and management of cultural heritage and natural heritage properties, which would involve a paradigm shift in thinking on the part of World Heritage policy makers and managers, and a further revision of the Operational Guidelines to reflect this shift, as well as institutional reforms at both national and international levels.

3.4 Universal Declaration on Cultural Diversity The Universal Declaration on Cultural Diversity 2001,79 developed as a soft-law instrument through UNESCO, recognizes the diverse forms that culture takes, equating cultural diversity with biological diversity. Article 1 states in part: ‘As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations’ (emphasis added). As noted by Blake, the Declaration was ‘responding to the strong emphasis placed by the executive board [of UNESCO] . . . on the interaction between cultural diversity and both human rights and sustainable development’. She goes on to assert that ‘not only is cultural diversity necessary for humankind (as stated here) but is also, in itself, vital for preserving biological diversity and ensuring environmental sustainability’.80 This assertion is borne out in various ways, particularly in the realm of biocultural diversity, defined by Maffi and Woodley as comprising ‘the diversity of life in all of its manifestations—biological, cultural, and linguistic—which are interrelated (and likely co-evolved) within a c omplex socio-ecological adaptive system’.81 They cite a wide range of legal and policy examples to show the links between biological and cultural diversity.82 These are driven in part by endeavours to comply with the obligations under the Convention on Biological Diversity, especially with respect to article 8(j), which obliges parties to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices’. The IUCN pays a good deal of attention to the links between the maintenance of language and the conservation of biodiversity, especially through its Commission on Environmental, Economic and Social Policy,83 stating: ‘It is no coincidence that areas of 78 Ibid. 79 Universal Declaration on Cultural Diversity (2 November 2001) UNESCO Doc 31C/Res.25, art 1. 80 Blake, International Cultural Heritage Law (n 15) 141. 81 Maffi and Woodley, Biocultural Diversity Conservation (n 4) 6. 82 Ibid, 180–2. 83 IUCN Commission on Environmental, Economic and Social Policy accessed 25 June 2019.

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The Environment and Cultural Heritage 333 linguistic and ethnic diversity are also areas rich in biodiversity. Most of the world’s languages are spoken by indigenous and other tribal peoples in countries that harbour great biodiversity. When a language dies, we also stand to lose the local ecological knowledge and wisdom that reposes in that language.’84 These statements have immediate relevance to Indigenous and local community cultures that depend for the continuation of their existence on traditional knowledge of ecosystems, with that knowledge often expressed in the languages of those communities. With the loss of language comes the loss of the knowledge of how to maintain those ecosystems. This point is underlined by UNESCO: ‘While indigenous peoples make up only 5 per cent of the world's population, they speak the majority of its 7,000 languages and “own, occupy or use resources on some 22 per cent of the global land area, which in turn harbours 80 per cent of the world’s biological diversity” ’.85 As Blake points out, ‘when the languages and traditional cultural practices of local populations are lost, a vast repository of traditional knowledge of biodiversity associated with it is also lost’.86

3.5 Underwater Cultural Heritage Convention Although the Underwater Cultural Heritage Convention87 is obviously focused on cultural heritage, the natural water environment is clearly of the essence of the Convention; the primary definitions in the Convention thus cannot avoid including reference to the natural context. Article 1(a) makes this clear in defining the underwater cultural heri tage as meaning ‘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’. It specifies these as including ‘sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context and vessels, aircraft, other vehicles or any part thereof, their cargo or other contents together with their archaeological and natural context’ (emphasis added). The natural context can include the sea life, reefs and other natural elements; it can also be constituted by the marine vegetation and other life that develops into ‘artificial’ reefs because 84 ‘Bio-cultural diversity’ accessed 25 June 2019. 85 Editorial, celebrating the 2019 International Year of Indigenous Languages (2019) 1(3) UNESCO Courier, drawn from Weathering Uncertainty (UNESCO 2012). See also Elisa Morgera, Elsa Tsioumani, and Matthias Buck, Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit-Sharing to the Convention on Biological Diversity (Brill 2015) 25–7. For a critique of the biocultural diversity approach, see J. P. Brosius and S. L. Hitchner, ‘Cultural Diversity and Conservation’ (2010) 61 International Social Science Journal 141–68. 86 Blake International Cultural Heritage Law (n 15) 142. See also UNESCO, Sharing a World of Difference—The Earth’s Linguistic, Cultural and Biological Diversity (UNESCO 2003). At the national level, we can note the manifestations of these international efforts; see, for example, Aboriginal Languages Act 2017 in New South Wales, Australia and the Indigenous Languages Bill C-91 (Canada) February 2019. 87 Convention on the Protection of the Underwater Cultural Heritage (adopted by the 31st session of the General Conference of UNESCO, Paris, 2 November 2001) 41 ILM 40 (2002).

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334 Ben Boer of the presence of underwater cultural heritage such as shipwrecks, amphorae, and other objects. In addition, the Rules found in the Annex to the Convention, pursuant to article 33, refer to ‘assessment that evaluates the significance and vulnerability of the under water cultural heritage and the surrounding natural environment to damage by the proposed project’, underlining once again the cultural heritage and environment link. Lixinski notes that there were attempts to include underwater landscapes within the Convention and suggests that during the drafting there ‘may have been a missed opportunity to engage with intangible aspects of underwater cultural heritage, as well as with natural aspects’.88

3.6 Convention on Safeguarding the Intangible Cultural Heritage The Convention on Safeguarding the Intangible Cultural Heritage89 (ICH Convention) has provided a vital, modernizing addition to the heritage conservation regime. In contrast to World Heritage concepts, which are primarily related to ‘physical properties’, the intangible heritage perhaps more readily lends itself to an integrated approach to the cultural and natural heritage, as well as the environment in general, despite inclusion of ‘cultural’ in its title. The Convention’s preamble recognizes ‘the deep-seated inter dependence between the intangible cultural heritage and the tangible cultural and natural heritage’ (emphasis added). This interdependence is affirmed in the definition of intangible cultural heritage itself, where it is acknowledged that ICH is ‘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’ (emphasis added). The Convention also sets out how the intangible cultural heritage is manifested in a range of domains, including in oral traditions and expressions, performing arts, social practices, rituals and festive events, knowledge and practices concerning nature and the universe, and traditional craftsmanship. The mention of ‘knowledge and practices concerning nature and the universe’ in article 2(d) underlines the more integrated approach that the Convention takes to the cultural and natural environment. Further, concerning the relationship of the ICH to other international instruments, article 3 notes 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’. This provision resonates with the intellectual property rights provisions regarding the access

88 Lixinski (n 12) 42–3. 89 Convention on the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 3.

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The Environment and Cultural Heritage 335 to transfer of technology concerning genetic resources that is the focus of article 16 of the Convention on Biological Diversity.

3.7 ICH Operational Directives The Operational Directives90 to the ICH Convention are more explicit with regard to the link between intangible cultural heritage and the environment. Paragraph 188 recognizes that ‘environmental sustainability requires sustainably managed natural resources and the conservation and sustainable use of biodiversity’ and emphasizes the benefits that could be gained from ‘improved scientific understanding and knowledge-sharing about climate change, natural hazards, the environmental and natural resource limits’. Even more explicitly, intangible heritage is associated in paragraph 189 with ‘knowledge and practices concerning nature and the universe that are recognized by communities, groups and, in some cases, individuals as part of their intangible cultural heritage and that contribute to environmental sustainability recognizing their capacity to evolve, harnessing their potential role in the protection of biodiversity and in the sustainable management of natural resources’. It exhorts States Parties to, inter alia, ‘recognize communities, groups and individuals as the bearers of knowledge about nature and the universe and as essential actors in sustaining the environment’ and to ‘adopt appropriate legal, technical, administrative and financial measures to . . . promote access to and transmission of traditional knowledge concerning nature and the universe while respecting customary practices governing access to specific aspects of it’ and to ‘conserve and protect those natural spaces whose existence is necessary for expressing the intangible cultural heritage’. These articles serve to illustrate that the ICH Convention and its Operational Directives have manifestly been drafted with an acute awareness of the need to give voice to the individuals and local communities that own and literally ‘live’ that heritage within an environment that sustains and nurtures them both physically and spiritually. Additionally, the Operational Directives recognize the need to ensure the adoption of ‘appropriate legal, technical, administrative and financial measures to encourage envir onmentally friendly practices and to mitigate any possible harmful impacts’ (para 190). This awareness and recognition is reinforced by the placing of many items on the Convention’s Representative List of the Intangible Cultural Heritage of Humanity that record the practices, traditions, skills, and ceremonies relating to a wide range of elements of the natural environment. Examples include the traditions and practices associated with sacred forests of the Mijikenda in Kenya,91 the practices and know-how

90 UNESCO, Operational Directives for the implementation of the Convention for the Safeguarding of the Intangible Heritage, 2018. 7.GA (2018). 91 UNESCO, Traditions and practices associated with the Kayas in the sacred forests of the Mijikenda accessed 19 August 2019.

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336 Ben Boer concerning the Argan tree in Morocco,92 and the traditional system of Corongo’s water judges in Northern Peru.93

3.8 Convention on Diversity of Cultural Expressions The Convention on Diversity of Cultural Expressions94 also includes links between cultural heritage and the natural environment, but the language is not as clear as that of the Intangible Heritage Convention. Article 13, which deals with the integration of culture in sustainable development, comes closest to an identifiable link: ‘Parties shall endeavour to integrate culture in their development policies at all levels for the creation of conditions conducive to sustainable development and, within this framework, foster aspects relating to the protection and promotion of the diversity of cultural expressions.’ The Operational Guidelines under the Convention provide more substance on this aspect. They urge States Parties to list the measures that focus on integrating culture as a strategic element in sustainable development policies and assistance programmes at the national and international levels. The specific measures include those that operate to integrate culture into a country’s national development planning, including poverty eradication, social inclusion, education and training strategies, and so on.95 Some of the periodic reports by States Parties, required under the Convention, record the cultural heritage–environment link quite directly. For example, Nigeria’s periodic report96 explains the key objective measures it has taken to address culture and environ ment under the Convention: ‘Culture encapsulates the people’s living styles, patterns and habits which are central to their survival in the environment. The protection of the natural environment against indiscriminate exploitation of mineral wealth, deforest ation, erosion, bush burning and desertification as well as natural disasters can be achieved through the instruments of culture.’ It states that the results of the measure include (perhaps as a forlorn hope), ‘the preservation of cultural heritage and a natural ecosystem and using the instrumentality of culture in addressing the global warming issues’.97 There is no indication in the report of any practical program to achieve such outcomes.

92 UNESCO, Argan, the Practices and Know-how Concerning the Argan Tree in Morocco accessed 19 August 2019. 93 UNESCO, Traditional System of Corongo’s Water Judges accessed 19 August 2019. 94 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (opened for signature 20 October 2005, entered into force 18 March 2007) 2440 UNTS 311. 95 Operational Guidelines to the Convention on Diversity of Cultural Expressions, para 4a. 96 UNESCO, Nigeria’s Periodic Report 2017 accessed 17 May 2019. 97 Ibid.

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The Environment and Cultural Heritage 337

4. The Environmental Instruments The nurturing of land, plants, and animals in many Indigenous societies reflect longstanding traditional practices and intimate knowledge of their local environments. Traditional environmental knowledge is becoming increasingly recognized as part of the contributions of Indigenous peoples to the conservation of biodiversity heritage and is protected, sometimes robustly and sometimes weakly, by legal mechanisms at international and national levels. Several of the treaties concerning the conservation of biodiversity include either direct or indirect recognition of the traditional ecological knowledge of Indigenous and local communities. This knowledge often forms part of the rich cultural heritage of such communities. As Blake has argued, ‘[t]he relationship between traditional local knowledge and biodiversity is an intimate one and any loss of biodiversity reduces human cultural diversity that has co-evolved with it’.98 Multilateral environmental agreements (MEAs), by their nature, are focused primarily on the protection and conservation of particular aspects of the environment. However, cultural heritage aspects are often either directly or indirectly raised, and those relationships in turn have implications for human rights concerning access to nature. More recently, some are also depicted as having relevance to the furtherance of sustainable development.99 This section briefly reviews selected MEAs in order to examine elements of these relationships. It looks at treaty provisions on traditional hunting and exploitation of wildlife, as well as at the recognition of traditional knowledge in environmental conservation treaties, as examples of the often-close links between the cultural heritage and the environment, and their interdependence. Section 5, below, returns to the topic of Indigenous and local communities in order to examine several instruments that are specifically focused on the concerns and rights of those communities.

4.1 Whaling Convention The International Whaling Convention100 was originally drafted to ensure that whale stocks could be maintained for human exploitation.101 This initial regime intention has, over the years, been transformed into a more protective mechanism, with the imposition 98 Blake, International Cultural Heritage Law (n 15) 142. 99 Ibid; as Blake points out, ‘the relationship between the heritage–environment-human rights nexus and sustainable development is an important one . . . It is now timely to suggest that the international community needs to develop a legal framework that fully encompasses the three core elements of sustainability: the right to development, the right to a healthy global environment, and the right to the cultural heritage of humankind’ (123–4). 100 International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 74. 101 See Malgosia Fitzmaurice, International Convention for the Regulation of Whaling, United Nations Audiovisual Library of International Law (2015) accessed 25 June 2019.

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338 Ben Boer in 1986 of a moratorium102 on commercial whaling. Nevertheless, the International Whaling Commission, which oversees the implementation of the Convention, has for many years allowed Aboriginal subsistence whaling by particular countries, for various species of whale, on the basis that ‘whale products play an important role in the nutritional and cultural life of native peoples’.103

4.2 Fur Seals Convention The North Pacific Fur Seals Convention104 is aimed at regulating the exploitation of fur seals in order to maintain achievement of maximum sustainable productivity of the fur seal resources. However, article VII of the Convention in effect recognizes traditional seal hunting methods as part of a cultural tradition and is thus an example of an exception to the regulatory provisions. It provides that Indigenous people in the region can ‘carry on pelagic sealing in canoes not transported by or used in connection with other vessels, and propelled entirely by oars, paddles, or sails, and manned by not more than five persons each, in the way hitherto practiced and without the use of firearms’ and not employed by others to provide fur seal skins.

4.3 Agreement on Polar Bears Similarly to the Fur Seals Convention, article III of the Agreement on the Conservation of Polar Bears of 1973105 provides an exception for contracting parties to allow the taking of polar bears ‘by local people using traditional methods in the exercise of their trad itional rights and in accordance with the laws of that Party’ (article III(d)); or ‘wherever polar bears have or might have been subject to taking by traditional means by its nationals’ (article III(e)).

4.4 Ramsar Convention Guidelines were developed in 1999 under the 1971 Ramsar Convention106 concerning local communities’ and Indigenous people’s participation in the management of 102 International Whaling Commission, Revised Management Scheme accessed 25 June 2019. 103 International Whaling Commission, Aboriginal Subsistence Whaling accessed 25 June 2019. 104 North Pacific Fur Seal Interim Convention 1957 (adopted 9 February 1957; as amended 7 May 1976) 314 UNTS 105. 105 Agreement on the Conservation of Polar Bears (15 November 1973, entered into force 26 May 1976) 2898 UNTS 243. 106 Convention on Wetlands of International Importance especially as Waterfowl Habitat (adopted 2 February 1971, entered into force 21 December 1975) 996 UNTS 245.

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The Environment and Cultural Heritage 339 etlands.107 These guidelines, inter alia, ‘support the application of traditional knowledge w to wetland management including, where possible, the establishment of centres to conserve indigenous and traditional knowledge systems’.108 They state that local and Indigenous people should be involved in management when, inter alia, ‘access to the natural resources within the wetland is essential for local livelihood, security and cultural heritage’ and when ‘local and indigenous people express a strong interest in being involved in management’(emphasis added).109

4.5 CITES The 1973 Convention on International Trade in Endangered Species110 recognizes in its preamble that ‘wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come’ and is ‘[c]onscious of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view’ (emphasis added). While the Convention itself does not elaborate on issues of cultural heritage or matters of traditional ecological knowledge, statements from its Secretariat manifest an intense awareness of the value of harnessing the traditional knowledge and support of Indigenous and local communities. For example, as part of a progress review of the SDGs, a CITES contribution makes clear that these communities are recognized as having expert knowledge of their local animals and plants: ‘[W]hen directly involved in managing their local natural assets, [they] are the best guardians of a species. CITES engages with them to understand the spiritual, cultural, social, economic and ecological values of traded species and helps ensure that they directly benefit from any associated commerce.’111

4.6 Convention on Migratory Species The Convention on Migratory Species112 contains an exception to the prohibition on parties that are Range States to the taking of migratory species, but only if the taking is 107 Ramsar Convention, Resolution VII.8: Guidelines for establishing and strengthening local communities’ and Indigenous people’s participation in the management of wetlands, 1999 accessed 25 June 2019. 108 Ibid, para 15. 109 Ibid, para 4. 110 Convention on International Trade in Endangered Species of Wild Flora and Fauna (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243. 111 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), ‘A contribution to the global follow-up and review in the 2017 High Level Political Forum (HLPF) on the work of the Convention on International Trade in Endangered Species of Wild Fauna and Flora: Eradicating Poverty and Promoting Prosperity in a Changing World’ accessed 25 June 2019. 112 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333.

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340 Ben Boer for scientific purposes; for enhancing the propagation or survival of the affected species; or to accommodate the needs of traditional subsistence users of such species.113 As a specific example, the Convention has developed a Memorandum of Understanding on the Conservation and Management of Marine Turtles.114 This prohibits the direct harvest of and trade in marine turtles and their eggs, parts, or products. However, it allows ‘exceptions for traditional harvest by communities within each jurisdiction provided that: such harvest does not undermine efforts to protect, conserve and recover marine turtle populations and their habitats’ (emphasis added).115 Significantly, it also promotes use of traditional ecological knowledge in research studies under the conservation and management plan.116

4.7 Convention on Biological Diversity The first recital of the preamble to the Convention on Biological Diversity117 states: ‘Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components’. The values set out in the second phrase of the recital recognizes the wide range of values involved, which are then elaborated on in subsequent recitals. The most immediately practical from the point of view of human survival is recital 20: ‘Aware that conservation and sustainable use of biological diversity is of critical importance for meeting the food, health and other needs of the growing world population’.118 These links are captured in the ecosystem approach developed as the primary implementation framework119 of the Convention. The ecosystem approach is described as ‘a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way . . . It recognizes that humans, with their cultural diversity, are an integral component of ecosystems’120 (emphasis added). 113 Ibid, art III(5)(c); A number of national jurisdictions also provide exceptions in their biodiversity and wildlife laws to allow for traditional hunting methods to be used by Indigenous and local peoples and communities; for example Biodiversity Act: Norms and standards for hunting methods in South Africa (GN No 456 of 2011); Environment Protection and Biodiversity Conservation Act 1999 (Australia). 114 Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia accessed 25 June 2019. 115 Ibid, ‘Conservation and management plan’ para 1.5. 116 Ibid, para 3.1. 117 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 31 ILM 818. 118 For further comment on the links between humans and biodiversity as manifested in the pre amble, see Agustín García Ureta, ‘Nature Conservation’ in Emma Lees and Jorge E. Viñuales (eds), Oxford Handbook of Comparative Environmental Law (Oxford University Press 2019) 465. 119 Joint Nature Conservation Committee (UK), ‘The ecosystem approach’ accessed 25 June 2019. 120 Convention on Biological Diversity, Ecosystem approach accessed 25 June 2019.

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The Environment and Cultural Heritage 341 Article 8 of the Convention is concerned with in situ conservation and states in 8(j) that a contacting party shall, as far as possible and as appropriate, and ‘[s]ubject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’ (emphasis added). Another expression of these links is found within the framework of article 8(j) of the Convention and the 2004 Akwé: Kon Guidelines on Impact Assessment. As Lixinski notes, ‘they are intended to provide a framework that ensures the full involvement of indigenous and local communities in assessing the cultural, environmental and social impact of proposed developments on the interests and concerns of traditional communities’.121 Article 10, focusing on sustainable use of biological diversity and its components, requires that ‘as far as possible and as appropriate’ States shall ‘[p]rotect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements’ (emphasis added). These provisions have been elaborated upon in the 2010 Nagoya Protocol to the Convention,122 which is focused on access and benefit-sharing, particularly relating to access to traditional knowledge held by Indigenous and local communities seen to ‘strengthen the ability of these communities to benefit from the use of their knowledge, innovations and practices’.123 Francioni argues that the principle of access and benefit-sharing under the Nagoya Protocol ‘has an important cultural dimension in so far as it recognizes the role of local traditional communities and indigenous peoples in providing the cultural lead to the identification of commercially valuable biological resources and their right to an equitable sharing of the benefits accruing from their utilization’.124

4.8 Convention on Climate Change The Framework Convention on Climate Change 1992125 contains no direct mention of heritage issues, cultural or natural. However, the Paris Agreement of 2015, adopted under the Convention, records in its preamble ‘the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth, and noting the importance for some of the concept of 121 Lucas Lixinski, ‘Heritage for whom? Individuals and Communities’ Roles in International Cultural Heritage Law’ in Lenzerini and Vrdoljak, International Law for Common Goods (n 14) 193, at 203. 122 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (opened for signature 2 February 2011, entered into force 12 October 2014) CN 782.2010. 123 Convention on Biological Diversity, About the Nagoya Protocol accessed 19 August 2019. 124 Francesco Francioni, ‘International Common Goods–An Epilogue’ in Lenzerini and Vrdoljak, International Law for Common Goods (n 14) 443 at 445–6. 125 Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 31 ILM 849.

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342 Ben Boer ‘climate justice’, when taking action to address climate change. These provisions reflect a growing awareness of the need to address environmental conservation as well as the cultural and practical concerns of Indigenous and local communities in the face of the threats and effects of climate change.

4.9 Convention to Combat Desertification The Convention to Combat Desertification 1994126 is primarily focused on the incidence of drought and desertification in arid, semi-arid, and dry sub-humid areas around the world. However, several of its provisions focus on issues of culture as well as traditional and local knowledge. The preamble notes that ‘desertification is caused by complex interactions among physical, biological, political, social, cultural and economic factors’ (emphasis added), while article 17, on research and development, calls on parties to protect, integrate, enhance, and validate traditional and local knowledge, know-how, and practices . . . subject to their respective national legislation and/or policies’.127 Further, article 18, relating to the use of technology, urges facilitation of access, while paying special attention to the ‘social, cultural, economic and environmental impact of such technology’ (emphasis added).128 As Blake notes, the Convention ‘places a strong emphasis on the social and cultural context of environmental protection and ensuring that participation of local people in decision-making processes is related to the environment’.129

4.10 Treaty on Plant Genetic Resources In the area of agriculture, the 2001 Food and Agriculture Organization (FAO) Treaty on Plant Genetic Resources130 records in article 9(1) that States recognize ‘the enormous contribution that the local and indigenous communities and farmers of all regions of the world . . . make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production’. In the context of this chapter, the focus of article 9(2) on the protection and promotion of farmers’ rights concerning traditional knowledge relevant to plant genetic resources for food and agriculture is particularly important. As Blake notes with respect to this treaty, ‘although a more indirect recognition of cultural practices, the right of participation implies respect

126 Convention to Combat Desertification in those Countries experiencing Serious Drought and/or Desertification, particularly in Africa (adopted 14 October 1994, entered into force 26 December 1996) 33 ILM 1328. 127 Art 17(1)(c). 128 Summarized from art 18(10) and (2). 129 Blake, International Cultural Heritage Law (n 15) 125. 130 International Treaty on Plant Genetic Resources for Food and Agriculture (2001).

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The Environment and Cultural Heritage 343 for local cultural customs and forms of social organization which fall largely under the rubric of cultural heritage’.131

5. Indigenous Heritage and Environment The discussion above is particularly concerned with the links between environment and cultural heritage in specific environmental treaties, picking up the links, where appropriate, between Indigenous and local communities in the use of traditional knowledge with regard to biological diversity. This section explores instruments that particularly relate to Indigenous and local communities and that also recognize these relationships.

5.1 ILO Convention 169 The first global recognition of the need to protect the relationship between Indigenous communities and their environment was the Indigenous and Tribal Peoples Convention,132 also referred to as International Labour Organization Convention 169 or ILO Convention 169. That instrument called attention to ‘the distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind and to international co-operation and understanding’.133 Article 1 recognizes two categories: ‘tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations’, and ‘peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions’. Subsequent articles place responsibility on governments to protect their rights, to guarantee respect for their integrity, and to promote the full realization of their social, economic, and cultural rights concerning their social and cultural identity, their customs and traditions, and their institutions. The provisions of the Convention insist on the full participation of Indigenous peoples in all aspects of decision-making concerning them, with article 4(1) requiring that ‘[s]pecial measures shall be adopted as appropriate for safeguarding the persons, 131 Blake, International Cultural Heritage Law (n 15) 125. 132 Convention concerning Indigenous and Tribal Peoples in Independent Countries (adopted 27 June 1989, entered into force 5 September 1991) 28 ILM 1382. 133 Ibid, recital 6, Preamble.

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344 Ben Boer institutions, property, labour, cultures and environment of the peoples concerned’. Article 7(4) requires governments to ‘take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit’. The Convention has a specific focus on land occupied or used by these peoples, with article 13 requiring governments to ‘respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship’. Article 4 requires the adoption of special measures ‘for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned’. Furthermore, under article 7(3) governments are required to ‘assess the social, spiritual, cultural and environmental impact on them of planned development activities’ by undertaking studies and consulting with the people, and, in article 7(4), to ‘take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit’.

5.2 Declaration on the Rights of Indigenous Peoples ILO Convention 169 is regarded as the forerunner of the United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007.134 The Declaration’s preamble affirms that ‘all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind’; it recognizes ‘the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources’. Article 31 is the Declaration’s most significant provision in the context of this chapter, recognizing that ‘Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions . . . and the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions’. James Anaya, the former UN Special Rapporteur on the Rights of Indigenous Peoples, has commented that article 31 ‘is grounded in a range of widely accepted universal human rights that are now part of international law. These include rights to culture, religion, property . . . and self-determination, all as understood in light of the fundamental norm of non-discrimination and with attention to the specific characteristics of indi genous peoples.’135 134 United Nations Declaration on the Rights of Indigenous Peoples 2007, UNGA A/RES/61/295. 135 Keynote address by James Anaya, Dean, University of Colorado Law School Former Special Rapporteur on the Rights of Indigenous Peoples, 34th Session of the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore 12 June 2017.

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The Environment and Cultural Heritage 345 A 2015 United Nations report on the promotion and protection of the rights of Indigenous peoples with respect to their cultural heritage136 explicitly draws the link between cultural and natural heritage: ‘For indigenous peoples, cultural and natural values are inseparably interwoven and should be managed and protected in a holistic manner. It is imperative that all the instruments that derive from such regimes and relate to the cultural heritage of indigenous peoples are interpreted in the light of the United Nations Declaration on the Rights of Indigenous Peoples, which is the most specific, representative and comprehensive instrument on indigenous cultural heritage’ (emphasis added).137 Gilbert reinforces this assertion in commenting on the UN Expert Mechanism on the Rights of Indigenous Peoples (a subsidiary body under the UN Human Rights Council),138 when he points out that ‘for indigenous peoples, cultural and natural values are inseparably interwoven and should be managed and protected in a holistic manner. The division between “natural” and “cultural” heritage does not integrate such a holistic approach to cultural heritage.’139 Finally, we can note that, with respect to World Heritage and Indigenous Peoples, the World Heritage Committee established the International Indigenous Peoples’ Forum on World Heritage (IIPFWH) at the behest of the Indigenous delegations,140 building on an earlier decision to recognize the Declaration on the Rights of Indigenous Peoples in 2007.141

6. Conclusion This review has canvassed a wide range of international instruments and associated documents concerning cultural heritage and the environment and has shown that, while there are often formal separations between the two realms, there is an increasing convergence between them. This is manifested both in terms of the interpretation of the primary instruments as well as development of various operational guidelines and policies. In the Indigenous world, the links between culture and nature, and indeed their virtual 136 ‘Promotion and protection of the rights of indigenous peoples with respect to their cultural heri tage’, A/HRC/30/53 (2015) 25 June 2019. 137 Presentations by Alexandra Xanthaki, Expert Seminar on Indigenous Peoples’ Rights with Respect to their Cultural Heritage, 2015. 138 Office of the High Commissioner on Human Rights, Expert Mechanism on the Rights of Indigenous Peoples accessed 19 August 2019. 139 Gilbert, Natural Resources and Human Rights (n 17) 130. 140 International Indigenous Peoples’ Forum on World Heritage accessed 19 August 2019; World Heritage Committee Decision 39 COM 11 accessed 14 May 2019; Operational Guidelines 2017, para 40. 141 World Heritage Committee, Decision 39 COM 11; see also Siegfried Wiessner, ‘The Cultural Dimension of the Rights of Indigenous Peoples’ in Lenzerini and Vrdoljak, International Law for Common Goods (n 14) 175.

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346 Ben Boer inseparability, have always been more obvious and understood. However, the increasing integration of the concepts of cultural heritage and natural heritage should be seen as not only as a welcome development from a conceptual viewpoint but also as a vital one from a practical point of view. Unless people around the world, and the governments and organizations that represent them, are able to re-establish an awareness of the fundamental dependence of humanity on its local and global environments, there is little hope that the contemporary polycentric existential crises, represented by the effects of rapid climate change, air and water pollution, land degradation, and vast losses of biodiversity, can be addressed. In the heritage sphere, this means, at the very least, that our understanding of the relationships between cultural heritage, natural heritage, and the rest of the environment must be fundamentally rethought.

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chapter 15

Sa fegua r di ng I n ta ngible Cu lt u r a l Her itage Janet Blake

1. Introduction: Normative and Related Operational Activities of UNESCO (1990–2003) The drafting of a new Convention for the safeguarding of intangible cultural heritage was the result of three decades of growing consideration for this aspect of heritage within UNESCO and was, as noted in an information document provided to Member States,1 a ‘new normative initiative [that] aims to satisfy social and cultural needs not yet adequately met by international law’. For many Member States of UNESCO, especially in the African, Asia-Pacific and Latin American regions, intangible cultural heritage (ICH) constitutes a major part of their cultural heritage, and the contribution that it can make to social and economic development in such societies was an important factor in the desire to strengthen international safeguarding of this heritage.2 This also reflected a frustration on the part of many countries in the African, Latin American, and AsiaPacific regions, in particular, that the World Heritage List established under the 1972 Convention3 failed adequately to represent their cultural heritage, which was often of this intangible and non-monumental character; in an attempt to address this imbalance, 1 Director’s General Preliminary Report on the Situation Calling for Standard-setting and on the Possible Scope of Such Standard-setting. Doc CLT-2002/CONF.203/4, Paris, July 2002. 2 See, for example, the ASEAN Declaration on Cultural Heritage adopted by ASEAN in Bangkok, Thailand, on 25 July 2000. 3 Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151.

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348 Janet Blake the World Heritage Committee launched its Global Strategy.4 UNESCO’s Convention for the Safeguarding of Intangible Cultural Heritage (2003) was developed within two main international law and policy contexts, namely the increasing importance of human-centred and sustainable development and a growing acknowledgement of the importance of cultural rights within the human rights canon.5 This reflected a wider appreciation of the role of culture and, specifically, cultural heritage in development, and that intangible cultural heritage has a special role to play here.6 The understanding that ICH is essential for preserving cultural diversity, itself formally recognized as an important value in UNESCO’s Universal Declaration on Cultural Diversity of 2001,7 was a further stimulus for the development of international law in this area. Historically, UNESCO’s normative standard-setting activities had concentrated on protecting ‘tangible’ cultural heritage,8 and ‘intangible’ cultural heritage long remained outside normative standard-setting activity; indeed, the distinction between ‘tangible’ and ‘intangible’ heritage is an artificial construct of international lawmaking and does not really reflect the reality of cultural heritage itself.9 During the 1970s and 1980s, attempts were made to regulate folklore through copyright, and a proposal was presented to the Director-General of UNESCO in 1973 to regulate the conservation, promotion, and diffusion of folklore under the Universal Copyright Convention. However, in view of the limitations of this approach, the Recommendation on the Safeguarding of Traditional Culture and Folklore adopted in 1989 took a more broadly cultural approach.10 This signalled a new way of thinking about ‘traditional culture and folklore’ 4 Details of this can be found online at accessed 15 May 2018. 5 Preamble, first and second recitals. For further on this, please refer to Janet Blake, ‘Development of UNESCO’s 2003 Convention: Creating a New Heritage Protection Paradigm?’ in Michelle L. Stefano and Peter Davis (eds), The Routledge Companion to Intangible Cultural Heritage (Routledge 2017). 6 World Commission on Culture and Development, Our Creative Diversity (UNESCO Publications, 1997). 7 International Declaration on Cultural Diversity (UNESCO 2001) available online at accessed 15 May 2018. 8 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations (adopted 14 May 1954, entered into force 7 August 1956) 249 UNTS 240 (hereafter ‘1954 Hague Convention’); Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231 (hereafter ‘1970 UNESCO Convention’); Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 (hereafter ‘WHC’); Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1 (hereafter ‘Intangible Cultural Heritage Convention’); and Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 2562 UNTS 3 (hereafter ‘Underwater Heritage Convention’). 9 Dawson Munjeri, ‘Tangible and Intangible Heritage: From Difference to Convergence’ (2004) 221–2 Museum International 12. 10 Recommendation for the Safeguarding of Traditional Knowledge and Folklore (UNESCO 1989) accessed 15 May 2018. Section F titled ‘Protection’ deals with intellectual property issues.

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Safeguarding Intangible Cultural Heritage 349 that ultimately led to the development of the 2003 Convention on ‘intangible cultural heritage’. However, the Recommendation was disappointing in its impact, mainly due to its soft-law nature and lack of incentives for Member States,11 and its evaluation at an international conference co-organized by UNESCO in 199912 demonstrated the need for a new or revised instrument. Reasons for this included that it favoured the interests of scientific experts over those of heritage bearers (who were treated largely as passive informants) and that, due to its non-binding character, it had limited effectiveness.13 Despite these criticisms, the Recommendation was important as the first international instrument to provide a framework for safeguarding what later came to be known as ICH and paved the way for development of the 2003 Convention. The cultural and interdisciplinary approach it took was largely adopted in that treaty (with the exception of IP protection). In tandem with these normative activities, two major operational actions were developed by UNESCO during the 1990s for safeguarding this aspect of heritage. The first was the Living Human Treasures (LHT) programme (1993) to accord international recognition to living exponents of traditional culture who ensure the transmission of their skills, techniques, and knowledge ICH to future generations. The second, titled Masterpieces of the Oral and Intangible Heritage of Humanity (1998), was aimed at raising awareness of the importance of ICH through international proclamations of ICH.14 The LHT programme was notable in its focus on the human element in the practice of ICH and, in particular, in its transmission—later an important approach of the 2003 Convention— while the Masterpieces programme served as an important precursor to the 2003 Convention in terms of how ICH was perceived around the world; it was a relatively unknown quantity even at the time of drafting the treaty, although the first nineteen Masterpieces were selected by an International Jury and proclaimed by the DirectorGeneral in 2001.15 Following the Washington Conference, the UNESCO General Conference invited the Director-General to undertake a preliminary study ‘on the advisability of regulating internationally, through a new standard-setting instrument, the protection of traditional culture and folklore’.16 Once it was determined that a new international Convention

11 Director’s General Preliminary Report on the Situation Calling for Standard-setting (n 1). 12 Peter Seitel (ed), Safeguarding Traditional Cultures: A Global Assessment (Smithsonian Institution 2001). 13 Janet Blake, Developing a New Standard-setting Instrument for Safeguarding Intangible Cultural Heritage—Elements for Consideration (UNESCO 2001). 14 Noriko Aikawa-Fauré, ‘From the Proclamation of Masterpieces to the Convention for the Safeguarding of Intangible Cultural Heritage’ in Laurajane Smith and Natsuko Agakawa (eds), Intangible Heritage– Key Issues in Cultural Heritage Series (Routledge 2009). 15 Indeed, developing a definition of ‘ICH’ proved to be one of the most challenging aspects of the early work towards a new Convention [Turin meeting]. See also UNESCO, Proclamation of Masterpieces of Oral and Intangible Heritage of Humanity—Guidelines for the Presentation of Candidature Files (UNESCO 2001), at paras 21–2. 16 30C/Res.25 at para 2(a) (ii) of 1999.

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350 Janet Blake with binding obligations should be drafted,17 the question was what approach it should take towards safeguarding and what type of obligations it should impose on States Parties. The possible types of instrument included a treaty using sui generis intellectual property approaches to protection, a treaty with a cultural approach alongside some sui generis intellectual property measures, and a treaty taking a cultural approach that was modelled on the 1972 Convention but adapted to the needs of intangible cultural heritage and the communities that create and maintain it.18 Advantages identified with choosing such an approach include its ability to raise awareness of this aspect of heritage, the avoidance of problems with the scope of the treaty as well as the provision of a financial mechanism allied to a system of international cooperation and assistance to support States Parties in their implementation actions. However, this faced opposition from some, mainly developed country, Member States at the intergovernmental negotiations. Particular concern was expressed that an inter national list (or lists) could lead to the creation of a hierarchy of ICH or to the ‘fossilization’ of this heritage.19 The decision to proceed with the work of drafting an international standard-setting instrument for the safeguarding of ICH was taken by UNESCO’s General Conference at its 31st session in 2001.20 A meeting of Ministers of Culture of Member States in September 200221 expressed certain reservations concerning the definition of ICH to be used and the need to avoid duplicating the work of other international organizations and to avoid conflicts with obligations existing under other international treaties. The organization most likely to be implicated was the World Intellectual Property Organization, which established an Intergovernmental Committee on IP rights associated with traditional knowledge, genetic resources, and folklore in August 2000. However, there was general agreement that existing cultural heritage and intellectual property instruments were inadequate to safeguarding intangible cultural heritage and that a new standard-setting instrument of UNESCO would represent a major step in plugging this gap in the protection regime.22 Expert meetings were then held to support the drafting process, including on preparing a working definition of ICH23 and priority domains for the Convention,24 followed by two sessions of a Restricted Drafting Group 17 Blake, Developing a New Standard-setting Instrument (n 13). 18 Ibid, 75–8 and 87–90. 19 Janet Blake, Commentary on the 2003 UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage (Institute of Art and Law 2006). 20 31 C/Resolution 30, October 2001. 21 Intangible Cultural Heritage—a Mirror of Cultural Diversity, Final Declaration of the 3rd Round Table of Ministers of Culture, Istanbul, 16–17 September 2002 reads, at para 7 (viii): ‘an appropriate inter national Convention, which should be developed in close co-operation with relevant international organisations and take into full account the complexity of defining intangible cultural heritage, could be a positive step towards pursuing our goal’. 22 Intangible Cultural Heritage—a Mirror of Cultural Diversity (n 21). 23 International Round Table on ‘Intangible Cultural Heritage: Working Definitions’, Turin, Italy, 14–17 March 2001. 24 International Expert Meeting on ‘Intangible Cultural Heritage: Priority Domains for an International Convention’, Rio de Janeiro, Brazil, 22–4 January 2002, Doc RIO/ITH/2002/WD/1O, 28 February 2002.

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Safeguarding Intangible Cultural Heritage 351 held at UNESCO headquarters on 20–22 March and 13–15 June 2002. Between the two drafting group sessions, a further expert meeting was held 10–12 June 2002 to develop a glossary of terms for a new Convention, clearly signalling its innovative character. The terms defined in the Glossary include such key terms as ‘cultural community’ which have subsequently become central in the operation of the 2003 Convention.25 The final draft of the Convention was adopted by the 33rd session of UNESCO General Conference in November 2003. The Convention is divided into nine parts as follows. Part I (articles 1 to 3) sets out the purposes of the Convention (namely to safeguard ICH; to ensure respect for ICH; to raise awareness of it at local, national and international levels; and to provide for inter national cooperation and assistance), definitions of the key terms such as ‘ICH’ and ‘safeguarding’, and its relationship with other international instruments. Part II (articles 4 to 10) is concerned with the organs of the Convention as described, and Part III (articles 11 to 15) is devoted to measures to be taken at national level to ensure the safeguarding of intangible cultural heritage, especially that which is not inscribed on either international List. Part IV (articles 15 to 18) which deals with safeguarding ICH at the international level establishes two international Lists (the Representative List and the Urgent Safeguarding List) and a Register of Good Safeguarding Practices. Provisions relating to international cooperation and assistance are set out in Part V (articles 19 to 24), and the establishment and operation of the Intangible Heritage Fund are placed in Part VI (articles 25 to 28). Part VII (articles 29 to 30) establishes a reporting system, and Part VIII (article 31) comprises a transitional clause allowing for ‘Masterpieces’ proclaimed under the 1998 programme to be incorporated into the Representative List before the entry into force of the Convention. The final clauses are set out in Part IX (articles 32 to 38). Defining the Convention’s subject matter of ICH proved to be one of the most challenging aspects of drafting; given that this was a very new area for international regulation,26 the definition chosen would be central to the nature and scope of obligations to be placed on States Parties. The definition included in the final text of the treaty is constructed of a general defi nition27 followed by a non-exhaustive illustrative list of the five main domains in 25 Wim van Zanten, ‘Constructing a new terminology for intangible cultural heritage’ (2004) 221–2 Museum International 36. 26 As was recognized even before work had begun on drafting the new treaty; see Blake, Developing a New Standard-Setting Instrument (n 13) 7–12. 27 According to art 2(1), ICH comprises ‘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 intan gible 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 intan gible 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.’

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352 Janet Blake which ICH is found, namely: oral traditions and expressions (including language as a vehicle of ICH); performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the universe; and traditional craftsmanship. The notion of ‘safeguarding’ as applied in the Convention is also defined, its primary purpose being to ‘ensure the viability of ICH’ though such measures as identification, inventorying, research, and transmission activities. The main organs of the Convention are the General Assembly of the States Parties as the sovereign body of the Convention and an Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (henceforth ‘ICH Committee’) whose task is to oversee the implementation of the Convention. This includes administration of the three international lists28 and of an international assistance system. The Committee drafts and updates the Operational Directives for implementing the Convention, which now include detailed guidelines on inscriptions, international assistance, participation of communities (and other non-State actors) in safeguarding, the role of the media, ICH and sustainable development, gender and ICH, and so on.29 Article 15 is a notable provision that requires Parties to seek the widest possible participation of communities, groups, and (where appropriate) individuals ‘that create, maintain, and transmit’ ICH in safeguarding activities and their active involvement in its management. This innovative bottom-up approach continues to pose important challenges to many States that operate a top-down, State-driven approach to cultural heritage management.

2. Subsequent Implementation and Limitations Certain important issues and challenges were thrown up during the early years of the Convention’s operation (since it entered into force in April 2006) and will continue to be confronted. Responses of the Parties to these, both as expressed in the Operational Directives to the Convention (as adopted by the ICH Committee and the General Assembly) and through State practice, have begun to emerge over time. Although it is still relatively early for much experience to have been gathered, it is possible to identify certain aspects of implementation that have required or still require further consideration. It is through the ongoing operation of the Convention and its application on the national level by the States Parties and internationally by the treaty bodies that new challenges 28 Representative List of Intangible Heritage of Humanity (RL), a List of ICH in Need of Urgent Safeguarding (USL) and a Register of Good Safeguarding Practices (RGSP) established under arts 16, 17, and 18. 29 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted by the General Assembly of the States Parties to the Convention at its second ordinary session held in Paris, France, 16–19 June 2008, and subsequently revised in 2010, 2012, 2014, 2016, and 2018.

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Safeguarding Intangible Cultural Heritage 353 and the potential responses to them will become clearer. The experience of the 1972 World Heritage Convention shows that, even after more than forty-five years since its adoption, the World Heritage Committee is still introducing major changes to its Operational Guidelines. One of the most recent changes to those Guidelines, introduced in 2005, was also one of the most radical—namely, suppressing the distinction between cultural and natural listing criteria such that a single set of criteria for all properties has now been introduced. We can look forward to similar evolution over time of the implementation of the Operational Directives to the 2003 Convention, and we have already seen this happening. Once the initial Directives had been put in place in 2008, it was then possible for the Parties to the Convention, acting through the ICH Committee, to address areas in which the experience of implementation began to throw up issues not adequately addressed in the Convention. This provides an essential flexibility, allowing for the details of implementation to be developed over time and to be subject to revision when deemed necessary or when new, unanticipated situations are confronted. A number of the challenges posed by implementing the 2003 Convention are considered in this chapter, including the relationship between tangible and intangible cultural heritage and how to integrate these better in safeguarding approaches; managing the List of ICH in Need of Urgent Safeguarding (USL) and Representative List of Intangible Heritage of Humanity (RL) and how to demonstrate the ‘representative’ character of ICH inscribed in the latter; dealing with trans-frontier elements of ICH; the role to be played by communities (groups and individuals), NGOs, and expert institutions in the design and implementation of safeguarding measures; how safeguarding ICH can contribute to the broader goal of sustainable development (while ensuring also sustainability of the heritage itself); and how the performance of States Parties (and other stakeholders) in implementing the Convention can be better evaluated. The 2003 Convention raises a number of important questions concerning the relationship between tangible and intangible cultural heritage and how best to integrate safeguarding approaches to both these aspects of heritage. The separation of cultural heritage into ‘tangible’ and ‘intangible’ is in large part the result of the history of cultural heritage treaty-making, whereby the UNESCO treaties adopted up to (and including) the 2001 Underwater Heritage Convention had all been explicitly designed to protect and preserve various material aspects of heritage, even if the associated intangible elem ents may also have been implicitly recognized.30 This has effectively created an arbitrary distinction between ‘tangible’ and ‘intangible’ cultural heritage that has little meaning for Indigenous peoples since, for example, it fails to reflect their holistic view of heritage.31 There is, however, a way in which intangible cultural heritage may also exist separately from the monumental and material elements typically protected by international cultural 30 Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010) 363 notes that ‘the beginnings of a normative regime [for intangible cultural heritage] can be found in the very creation of UNESCO but it was, for many years, overtaken by the apparently more pressing need to address the tangible aspects of heritage’. 31 Erica-Irene Daes, The Protection of the Heritage of Indigenous People (United Nations 1997).

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354 Janet Blake heritage law.32 Notably, this independent existence of ICH is based upon the ‘significance’ or ‘value’ of that heritage rather than its ‘non-material’ character.33 Some material objects, buildings, and so on are, therefore, less important than the intangible cultural practices that produced them. For example, the tools used in building (and rebuilding) wooden Japanese temples gain their intangible heritage value through the exercise of traditional building techniques learnt over a lengthy apprenticeship training period and passed down from masters to apprentices over generations. Hence, it is not necessarily paradoxical that we may have a material heritage inscribed on the World Heritage List and associated intangible values inscribed (or potentially inscribed) on the RL. For example, For example, Iranian qanats (traditional aquifer systems) have been inscribed on the World Heritage List while the associated traditional water management practices may well be the subject of a nomination to the RL in the future. At the same time, this can result in a potentially uncomfortable overlap between the two UNESCO treaty regimes that will need to be further explored in the future. The USL established under Article 16 is intended to include ICH elements that face urgent threats (including but not limited to those mentioned in the Convention’s Preamble) and that are judged by the relevant State Party and concerned community to require urgent safeguarding measures to keep them viable. By inscribing an element on the USL, international cooperation and assistance for stakeholders to undertake appropriate safeguarding measures can also be mobilized. With the inscription of six new elements in 2017, the USL contained fifty-two inscribed elements, including wooden movable-type printing (China); the Sanke´ mon collective fishing rite (Mali); a popular ritual for maintaining the social and cosmic order (Brazil); a black pottery manufacturing process (Portugal); traditional lenj boat-building and sailing skills (Iran); the Mongol Tuuli epic (Mongolia); and the Suiti cultural space (Latvia). States Parties are slowly becoming readier to have elements inscribed on the USL, helped by the priority now given to them over RL nominations and the possibility for States Parties to submit a USL nomination along with a request for international assist ance for its safeguarding. However, there remains some sense of stigma based on a continued association with the List of World Heritage in Danger, despite the fact that the USL is predicated on a rather different approach: it is aimed at responding to a generally accepted vulnerability of ICH, while the List of World Heritage in Danger carries with it a stronger sense of a failure by the State Party to protect the heritage concerned. A greater challenge for the ICH Committee and the UNESCO Secretariat is posed by the RL, established under article 17, on two main grounds: (i) a general misunderstanding by many States Parties as to its intended purpose and nature; and (ii) the sheer number of elements it now contains (and the administrative challenges this poses to both the Committee and the Secretariat). Unlike elements inscribed on the World Heritage List, 32 Laurajane Smith, The Uses of Heritage (Routledge 2006) 61. 33 Harriet Deacon and Olwen Beazley, ‘Safeguarding Intangible Heritage Values under the World Heritage Convention: Auschwitz, Hiroshima and Robben Island’ in Janet Blake (ed), Safeguarding Intangible Cultural Heritage—Challenges and Approaches (Institute of Art and Law 2007) 93–108.

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Safeguarding Intangible Cultural Heritage 355 for which ‘outstanding universal value’ is a threshold criterion for inscription, RL-inscribed ICH elements may be fairly mundane per se but carry significance for the cultural community (group or individual) whose heritage they constitute, such as the ceremonial Ceremonial keşkek tradition element inscribed by Turkey in 2011.34 Through this, the representative character of the RL is expressed, whereby each element is typical of a kind of ICH and so, in total, the RL represents the diversity of ICH worldwide. Although the RL is becoming more diverse in the types of elements inscribed (e.g. beer culture from Belgium, a customary normative system from Colombia, and an ethnic Korean farmers’ dance from China), many Parties still nominate elements associated with ‘high culture’ for their ‘unique’ quality, which do not respond well to the fundamental philosophy of the RL. The second, more practical, challenge is the sheer number of inscribed elements on the RL: in 2008, ninety items were incorporated into the RL which had been proclaimed as Masterpieces (under the terms of article 31), and, by 2019, 463 elements had been inscribed. In order to control the size of the RL and, in particular, the number of nomin ations that need to be administered by the Secretariat each year (and examined by the Evaluation Board established for this purpose), States Parties are now limited to two nominations per year for any of the three lists—RL, USL or the Register of Good Safeguarding Practices (RGSP)—plus requests for international assistance. However, there is a sense of unfairness felt by more recent States Parties that have not been able to enjoy the unlimited inscriptions that older Parties did. Moreover, despite giving priority to nominations for the USL and RGSP, the bulk of nominations are still for the RL, which is perceived by States Parties as being more prestigious. The RGSP has proved the most disappointing aspect of listing under the 2003 Convention thus far and, by 2019, only had twenty-two practices inscribed on it. This is despite the feeling among some negotiat ing Member States that an RL/USL model would fail to achieve what they wished from an international listing system: The main purpose of the RGSP is to give recognition to best safeguarding practices in order to disseminate these and encourage other Parties to apply similar approaches. It is hoped that this will improve in the future once Parties have satisfied their initial enthusiasm for RL inscriptions and more practice has developed on the ground that deserves such recognition. Another challenge experienced in implementing the 2003 Convention has been how to deal with trans-frontier elements of ICH, which are common since State boundaries often do not respect cultural ones. Unfortunately, there has been competitive listing to the RL whereby Parties have inscribed in their name an element that are shared with other countries (as with the inscription by Azerbaijan of magham music, which is found also in Iran, for example). It is not accidental that this has occurred primarily in regions such as West and East Asia where there are also geopolitical tensions being played out in the RL listing mechanism. African, Latin American, and Baltic States, for example, have cooperated more easily thus far over shared ICH elements, as demonstrated by the Baltic 34 More information on the element is available at accessed 15 May 2015.

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356 Janet Blake Song and Dance element (Baltic States), the Balafon of the Senufo communities element (Mali and Burkina Faso) and the Oral heritage and traditions of the Zápara people of the Amazon element (Peru and Ecuador). The provision for joint requests for nominations by two or more States Parties is now strongly encouraged by the ICH Committee (which has referred several single-Party nominations to become multinational ones, such as the Kamancheh element inscribed in 2017 in the name of Iran and Azerbaijan,35 which was originally nominated by Iran alone). An online resource has been set up through which States Parties can announce their intention to nominate an element to give an oppor tunity to other States Parties to cooperate in elaborating multinational nominations.36 This approach is in keeping with the view that the interests of cultural communities and their heritage should have priority over purely ‘statist’ concerns. Moreover, multi national inscriptions often lead to further sub-regional cooperation for safeguarding other shared ICH. Elements found in such cooperative frameworks include: exchange of information and experience on ICH safeguarding; sharing documentation on a shared element; collaboration over developing inventorying methodologies; joint seminars and workshops; and co-hosting festivals. An interesting initiative is the creation of a network of professionals, communities, and centres of expertise for the Mvett, a common ICH of the Fang community, shared by four States of the Central African sub-region (Gabon, Cameroon, Congo, and Equatorial Guinea). The involvement of communities (groups and individuals) in the design and implementation of safeguarding measures as called for under articles 11(b) and 15 ‘has proven to be one of the most challenging aspects in its implementation’37 and presents a further challenge for implementation at both the national and international levels. Such community participation was seen as a significant principle throughout the development of the Convention and the early intergovernmental meetings.38 Safeguarding ICH is intrinsically controversial since it can be achieved only through recognition of the central role that communities (groups and individuals) play in its creation and safeguarding.39 If we add to this that the requirement placed on States Parties to operate in as participatory a manner as possible is more exhortatory than obligatory,40 and that they can choose the manner in which they do this, the type of participatory approaches to be taken is not consistent or clear. As a consequence, the mechanisms for ensuring real and effective community participation in the operation of the Convention remain weak, despite the importance

35 More information on the Art of crafting and playing with Kamantcheh/Kamancha, a bowed string musical instrument element is available at accessed 15 May 2018. 36 Doc ITH/12/7.COM/14 and Operational Directives (n 29), at paras 13–16. 37 Barbara Torggler and and Ekaterina Sediakina-Rivière (Janet Blake as Consultant), Evaluation of UNESCO’s Standard-setting Work of the Culture Sector, Part I—2003 Convention for the Safeguarding of the Intangible Cultural Heritage (UNESCO 2014), note at paras 9–10. 38 Aikawa-Fauré, ‘From the Proclamation of Masterpieces’ (n 14) 14. 39 Blake, Commentary on the 2003 UNESCO Convention (n 19) 35. 40 Ibid, 76.

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Safeguarding Intangible Cultural Heritage 357 apparently given to this approach when drafting the treaty.41 Although the Committee may invite ‘public and private bodies, as well as private individuals’ to attend its meetings in order ‘to consult them on specific matters’ under the terms of article 8(4), further detailed in ODs 84 and 96(d), they have not yet chosen to do so. Despite calls for greater participation of communities (groups and individuals) in the operation of the Convention, they still enjoy no formal role in the work of the Convention’s organs,42 and this lack of clarity has been a matter of some criticism. As Munjeri has noted, ‘one finds it incomprehensible that four years after the adoption of the [Convention], there is still debate on an acceptable definition of “community”, and on whether or not, and to what extent, the community’s consent should be sought when considering what constitutes intangible cultural heritage’.43 There have been attempts to clarify this in the Operational Directives, with new paragraphs on awareness-raising added in 2010 that detail how the participation of communities and groups (and, where applicable, individuals) as well as experts, centres of expertise, and research institutes in various safeguarding activities should be realized.44 States Parties are encouraged to take appropriate measures for building capacity in communities and groups to enable them to become effectively involved in implementing the Convention45 and to strengthen community participation through establishing networks of the aforementioned stakeholders, developing joint approaches, and sharing ICH-related documentation relating to ICH located in another State. Parties are also encouraged to create a consultative body or similar coordinating mechanism to make participation in safeguarding activities easier.46 Effectively, these 2010 Directives dilute the privileges of States Parties, especially as to what should be identified as ICH for national safeguarding and international recognition.47 How safeguarding ICH can contribute to the broader goal of sustainable development, in line with the Preamble (second recital), while ensuring the sustainability of the heritage itself and of related communities, is a further aspect of implementation requiring more development. However, there is insufficient guidance in the Convention as to what actions should be taken to incorporate ICH safeguarding into sustainable development policies and related issues.48 Safeguarding ICH is now understood by States Parties to have implications for policymaking for sustainable development (among other policy objectives), as is demonstrated in their periodic reports to the ICH Committee. Areas in which this can apply cut across a number of policymaking sectors and include food security, health, disaster prevention and management, rural and urban development, job creation, conflict prevention and post-conflict resolution, and providing sustainable 41 Lucas Lixinski, ‘Selecting Heritage: The Interplay of Art, Politics and Identity’ (2011) 22(1) European Journal of International Law 81. 42 Lynn Meskell, ‘UNESCO and the fate of the World Heritage Indigenous Peoples’ Council of Experts (WHIPCOE),’ (2013) 20(2) International Journal of Cultural Property 155. 43 Dawson Munjeri, ‘Following the Length and Breadth of the Roots: Some Dimensions of Intangible Heritage’ in Smith and Agakawa, Intangible Heritage (n 14) 143–4. 44 OD paras 79–89. 45 OD paras 80–2. 46 OD paras 86–8. 47 Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press 2013) 54. 48 Torggler and Sediakina-Rivière, Evaluation of UNESCO’s Standard-setting Work of the Culture Sector (n 37).

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358 Janet Blake livelihoods. In 2016, Chapter VI was added to the Operational Directives49 to clarify this question by detailing those aspects of ICH that have intimate links with sustainability. Treating ICH as ‘a strategic resource to enable sustainable development’50 this chapter takes a rather comprehensive approach towards ICH and sustainability, covering the following four main sections and related subsections: (1) Inclusive social development, covering food security, healthcare, quality education, gender equality, and access to clean and safe water and sustainable water use;51 (2) Inclusive economic development, encompassing income generation and sustainable livelihoods, productive employment and decent work, and the impact of tourism on the safeguarding of intangible cultural heritage and vice versa;52 (3) Environmental sustainability, which covers knowledge and practices concerning nature and the universe, environmental impacts in the safeguarding of intangible cultural heritage and community-based resilience to natural disasters and climate change;53 and (4) Intangible cultural heritage and peace, which addresses social cohesion and equity, preventing and resolving disputes, restoring peace and security, and achieving lasting peace.54 It is notable that this also gives rise to a range of ethical considerations, such as equality, social justice and intergenerational equity, which are also addressed in Chapter 6. This requires, for example, that related plans and programmes ‘respect ethical considerations and do not negatively affect the viability of the intangible cultural heritage concerned or de-contextualize or denaturalize that heritage’.55 A question more recently considered by the ICH Committee concerns how the performance of States Parties (and other stakeholders) in implementing the Convention can be better evaluated. In an evaluation of the standard-setting work of UNESCO’s Culture Sector,56 it was noted that monitoring implementation (a function of the Committee according to article 7) was problematic due to the lack of any overall results framework agreed by its States Parties. Some weaknesses identified in the current periodic reporting mechanism include the following.57 The version of the reporting form ICH-10 used until 2018 tended to elicit anecdotal, frequently overly detailed, and poorly organized information that obscured the main approaches taken, emerging trends, and the impacts or outcomes of the activities described and focused the attention of responding Parties away from the impacts of these measures. Further important information that did not emerge clearly from the reports is how ‘functional and complementary cooperation 49 Chapter VI on ‘Safeguarding intangible cultural heritage and sustainable development at the national level’, paras 170–97. 50 OD at para 173(b). 51 OD at paras 177–82. 52 OD at paras 183–7. 53 OD at paras 188–91. 54 OD at paras 192–7. 55 OD at para 171(c). 56 Torggler and Sediakina-Rivière, Evaluation of UNESCO’s Standard-setting Work of the Culture Sector (n 37), para 286 notes that ‘capturing and reporting on results (outputs and outcomes) is only possible if it is clear what results are to be achieved. This is not the case right now . . . Drawing conclusions about the progress made with regard to the implementation of the Convention is difficult in the absence of objectives, indicators and benchmarks.’ 57 Report by the Secretariat on Open ended intergovernmental working group on developing an overall results framework for the Convention (Chengdu, People’s Republic of China 11 to 13 June 2017) presented to the IGH Committee at its meeting in December 2017. Doc ITH/17/12.COM.WG.5.

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Safeguarding Intangible Cultural Heritage 359 has been developed with and among communities, groups and, where applicable, individuals who create, maintain and transmit intangible cultural heritage, as well as experts, centres of expertise and research institutes’.58 In an attempt to remedy these shortcomings, the Committee took the decision in 2013 to develop ‘an overall results framework for the Convention including clear objectives, time-frames, indicators and benchmarks’59 and decided in 2014 to convene an intergovernmental working group for that work, which was subsequently hosted by China in 2017.60 However, there is a potential for tension between the aims of a results framework, designed to provide data on which future actions can be planned, and the primary aim of the reporting mechanism according to the Convention—namely, measuring compliance.

3. Relationship to Other International Agreements Beyond cultural heritage law itself, three primary areas of international law can be identified as being directly implicated in the development and/or implementation of the 2003 Convention—namely, intellectual property law, human rights law, and law for the protection of the environment.

3.1 Intellectual Property Regime and the 2003 Convention UNESCO’s formal relationship with WIPO dates back to the adoption of the Universal Copyright Convention (UNESCO/WIPO, 1952)61 and, with the extension of copyright protection to folklore in 1976 under article 6, of the Tunis Model Law.62 In 1978, they formally agreed on a dual-track approach towards protection of folklore whereby UNESCO addressed the question though a cultural approach (addressing such issues as the definition, identification, preservation, conservation, and promotion of folklore) and WIPO explored intellectual property-based forms of protection. This cooperation led to the adoption of a set of Model Provisions in 198263 for the application of intellectual property (IP) rules to the protection of ‘expressions of folklore’. The joint UNESCO/

58 Torggler and Sediakina-Rivière, Evaluation of UNESCO’s Standard-setting Work of the Culture Sector (n 37). 59 Decision 8.COM 5.c.1. 60 Decisions 9.COM 13.e and 10.Com 9. 61 6 UST 2731, 25 UNTS 1341 (as revised 1971). 62 Tunis Model Law on Copyright for Developing Countries (UNESCO 1976) accessed 16 May 2018. 63 Model provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (UNESCO/WIPO 1982) accessed 16 May 2018.

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360 Janet Blake WIPO work resulted in a draft treaty on the protection of expressions of folklore64 two years later, which was never formally adopted by either organization. Providing binding IP rules for this area of heritage is a complex issue that raises a series of fundamental questions, such as: which State’s authority will be competent to authorize utilization of folklore expressions; what should happen where one State has acceded to the treaty and another has not; and how regional cooperation can be organized in relation to shared expressions of folklore. The draft treaty was rejected by industrialized States that objected to providing protection to community-based cultural expressions and, following this failure, formal UNESCO/WIPO cooperation was suspended and each organization continued its own activities based on the aforementioned division of labour. UNESCO’s work resulted in the adoption of the Recommendation on Traditional Knowledge and Folklore in 1989.65 Although UNESCO–WIPO cooperation saw a brief revival in 199766 and a series of joint Regional Consultations on the Protection of Expressions of Folklore were conducted, WIPO began in 1998 to undertake its own work in this area through its new Global Intellectual Property Issues Division, seeking to identify appropriate sui generis IP rules for protecting traditional knowledge and folklore. Its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore67 was later established in 2000 aiming to develop a standard-setting instrument containing such sui generis measures but, although two sets of draft Principles for protecting traditional knowledge and traditional cultural expressions were adopted by WIPO in 2014, this work has stalled and has not yet led to the adoption of any standardsetting instrument.68 A further relevant international treaty is the TRIPS Agreement of the 1994 Uruguay Round of the GATT Agreement of the World Trade Organization (WTO) aimed at harmonizing IP rights as they apply to trade.69 Although not directly concerned with ICH, certain aspects of TRIPS may be favourable to the protection of traditional knowledge, such as measures to protect public health and nutrition and to promote the public interest in sectors of vital importance to socio-economic development; these might be used to protect traditional medical knowledge as well as a range of other traditional forms of knowledge and innovation.70 It has become increasingly clear in the operation of the 2003 Convention that IP protection is an issue of great importance to many Parties, some of which concentrate much 64 Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (UNESCO/WIPO, 1984). Text not publicly available. 65 Recommendation for the Safeguarding of Traditional Knowledge and Folklore (UNESCO, 1989) accessed 16 May 2018. 66 UNESCO-WIPO World Forum on the Protection of Folklore, Phuket, Thailand, 8–10 April 1997. 67 WIPO, Matters Concerning Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Doc WO/GA/26/6, 2000. 68 Janet Blake, International Cultural Heritage Law (Oxford University Press, 2015) Chapter 7. 69 Agreement on Trade-related Aspects of Intellectual Property Rights, Annex 1C to the GATT Agreement of the World Trade Organization (1994). 70 Art 8(a) and (b).

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Safeguarding Intangible Cultural Heritage 361 of their safeguarding activities on IP-based approaches to protect traditional knowledge (TK). For example, a label has been registered in Madagascar’s Intellectual Property Office and is used by the Zafimaniry Association on all woodcraft products by artisans from the Zafimaniry Indigenous population to protect their economic and moral interests.71 However, the overall approach taken is inconsistent, and it is not yet fully understood by the States Parties whether or how the Convention addresses the IP rights of heritage bearers. For example, some Parties wrongly assume that inscription of an element on the RL or the USL automatically provides it with protection under inter national IP rules. Greater attention needs to be paid by the ICH Committee to this issue, and the internal evaluation of the 2003 Convention conducted in 201372 recommended that UNESCO experts work more closely with WIPO in the process of developing the new IP standard-setting instrument to try to ensure that the regimes of the 2003 Convention and any future WIPO treaty are compatible.

3.2 Human Rights Law and the 2003 Convention Of course, any cultural heritage treaty is developed within a broader framework of human rights law, since the right to access and enjoy cultural heritage (which includes an obligation on States to ensure its protection, among other things) is part of the right to participate in cultural life.73 Human rights and cultural heritage share certain characteristics,74 and a report on the right of access to and enjoyment of cultural heri tage adopted by the Human Rights Council in March 2011 officially recognized for the first time that cultural heritage is a proper subject for human rights.75 Human rights law and cultural heritage protection have a number of shared objectives, which include protecting the identities of individuals and communities (and hence human dignity), as well as a shared aspiration for a better future; as noted by Graham and Howard, the contents, interpretations, and representations of heritage ‘are selected according to the demands of the present and, in turn, bequeathed to an imagined future’.76 The Council of Europe Faro Convention77 expresses this linkage well, defining cultural heritage at 71 Information taken from Madagascar’s Periodic Report submitted in the 2013 reporting cycle. 72 Torggler and Sediakina-Rivière, Evaluation of UNESCO’s Standard-setting Work of the Culture Sector (n 37). 73 International Covenant on Economic, Social and Cultural Rights (UN, 1966) GA Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52; 999 UNTS 171 and 1057 UNTS 407; 6 ILM 368 (1967) at art 15. 74 Janet Blake, ‘Why Protect the Past? A Human Rights Approach to Cultural Heritage Protection’ (2011) 4(2) Heritage and Society 199. 75 Human Rights Council, Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed, Human Rights Council Seventeenth session Agenda item 3, 21 March 2011, UN Doc A/ HR/C/17/38 para 4. 76 Brian Graham and Peter Howard, ‘Introduction: Heritage and Identity’ in Brian Graham and Peter Howard (eds), The Ashgate Research Companion to Heritage and Identity (Ashgate Publishing 2008) 2. 77 This notion is well expressed in the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (Faro, 27/10/2005) CETS No. 199.

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362 Janet Blake article 2(a) as ‘a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions’. The shift of focus in international cultural heritage lawmaking from the ‘cultural heritage of humanity’ position taken in the 1972 World Heritage Convention towards one that accords greater value to the heritage of ‘communities, groups and . . . individuals’78 can be seen to reflect this more human rights–oriented approach in heritage treaty-making. A participatory approach is, indeed, a key means through which heritage practice can be democratized, essential for a human rights–based approach to heritage management and safeguarding. However, State sovereignty over national policymaking remains strongly protected in cultural heritage treaties,79 and this limits how far they can truly reflect a human rights–based approach. This sets up a tension in the 2003 Convention over its participatory approach towards identifying, inventorying, and safeguarding ICH.80 Of cultural heritage treaties thus far adopted, the 2003 Convention takes, perhaps, the most overtly human rights–based approach. In the definition of ICH (article 2(1)), it places a limitation on the ICH that can be recognized as such for safeguarding, so that ‘consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments’. This is a significant limitation since some traditional cultural practices, such as female infanticide, ritual rape, forced marriage, and certain forms of bodily mutilation, contravene international human rights standards. Until recently there has been little proper debate about gender equality and ICH, and, indeed, there has been an understandable reticence on this question. However, it has recently been accepted that it is desirable for the ICH Committee to define more clearly where the limits lie in order to exclude ICH that clearly violates universal human rights standards,81 and, for example, there is a section on gender equality in Chapter VI of the Operational Directives adopted in 2016.82 This is an ongoing challenge that will require much more discussion and will include encouraging cultural communities to remove discriminatory elements from their practices if they wish them to be recognized as ICH for the purposes of the Convention. This is already happening by means of natural responses to social change, as with the entrance of women into previously all-male performances, such as the Naqqāli: Iranian dramatic story-telling element in Iran and the Tsiattista poetic duelling element in Cyprus.83 Such an approach acknowledges that traditional cultural practices have an inherent flexibility and capacity to evolve to meet current social needs and realities. 78 See arts 2(1), 11(b), and 15 of the 2003 Convention. 79 Paul Kuruk, ‘Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention for the Safeguarding of Intangible Cultural Heritage’ (2004) 1 Macquarie Journal of International and Comparative Law 111. 80 Ana Filipa Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’ in Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law and Common Goods—Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014) 152. 81 Torggler and Sediakina-Rivière, Evaluation of UNESCO’s Standard-setting Work (n 37). 82 OD para 181. 83 Inscribed on the RL in 2011 by Decisions 6.COM 8.9 and 6.COM 13.12, respectively.

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Safeguarding Intangible Cultural Heritage 363 Another area in which human rights and the 2003 Convention regime coincide is with regard to the heritage of Indigenous peoples, which represents a major part of the world’s cultural diversity.84 Daes defined Indigenous cultural heritage in such a way that makes clear the broad scope of the concept, embracing all those things which international law regards as the creative production of human thought and craftsmanship, such as songs, stories, scientific knowledge and artworks. It also includes inheritances from the past and from nature, such as human remains, the natural features of the landscape, and naturally occurring species of plants and animals with which a people has long been connected.85

This signals the broad range of international instruments that are of relevance to its protection,86 including those with a direct relevance to the protection of Indigenous cultural heritage.87 However, the challenges associated with negotiating those two instruments, the 2007 UNDRIP having taken approximately fourteen years to draft and negotiate, suggest that it would have proved problematic to address Indigenous heritage as a discrete category of ICH within the 2003 Convention’s definition. For this reason, it is referred to only in the Preamble (in the sixth recital); otherwise, ‘ICH’ is simply understood as encompassing Indigenous heritage. However, this approach has been viewed by some commentators as a further example of the international community failing Indigenous peoples.88

3.3 Environmental Law and the 2003 Convention There is an important relationship between the 2003 Convention and protection of natural heritage as provided for under the 1972 World Heritage Convention, which, following significant revisions in 1992 and 1998 to its Operational Guidelines, has allowed for more consideration of intangible dimensions when inscribing World Heritage properties, including natural and mixed sites and cultural landscapes. With the introduction of cultural landscapes into the Guidelines in 1992, a category known as ‘associative cultural landscapes’ was introduced, defined as landscapes ‘whose inclusion is justifiable by virtue of the powerful religious, artistic or cultural associations of the natural element’

84 Darrel A. Posey, ‘Can Cultural Rights Protect Traditional Cultural Knowledge and Diversity?’ in Halina Niec (ed), Cultural Rights and Wrongs (UNESCO/Institute of Art and Law 1998) 44. 85 Daes, The Protection of the Heritage of Indigenous People (n 31). 86 Including the UN Convention on Biological Diversity (1992) 1760 UNTS 79; 31 ILM 818 (1992), especially at art 8(j). 87 Convention No.169 concerning Indigenous and Tribal Peoples in Independent Countries (27 June 1989) at arts 2, 5, 8, 22, 23, 28, and 31 and the Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) (UN, 2007) GA Res 61/295, UN Doc A/RES/47/1 (2007). 88 Kuruk, ‘Cultural Heritage, Traditional Knowledge and Indigenous Rights’ (n 79).

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364 Janet Blake (emphasis added).89 This relationship was reinforced by the introduction of the category of mixed properties in 1998. Notably, it is commonly in the intangible aspects of mixed properties that we find what links the cultural and natural aspects of these sites. A good case in point is the Bandiagara property (Mali), inscribed on the World Heritage List on the basis of one cultural and one natural criterion (criteria v and vii).90 In terms of natural heritage, it comprises an outstanding landscape of cliffs and sandy plateaux, while also including significant tangible cultural elements (houses, granaries, altars, sanctuaries, and communal meeting-places) and being a cultural space for the enactment and performance of ICH elements (mask rituals, feasts, and ceremonies involving ancestor worship). Beyond the field of cultural heritage law, article 8(j) of the 1992 Convention on Biological Diversity91 places an obligation on States Parties to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles’ where these are relevant to conserving biological diversity. There is no doubt that the traditional ecological knowledge and practices implied here fall within the definition of ICH in the 2003, while the related issues of access and equitable benefit-sharing of genetic resources are also relevant. In similar fashion, the Food and Agriculture Organization treaty on plant genetic resources (2001)92 recognizes the role played by local (and Indigenous) farmers and their traditional knowledge in preserving and developing plant varieties, as well as their rights to access traditional varieties and to exercise their associated knowledge and practices. A further environmental treaty of interest here is the 1994 Convention to Combat Desertification,93 which places a strong emphasis on the social and cultural context of environmental protection and calls for the protection of the economic, social, and cultural rights of local populations as part of ensuring environmental sustainability. Environmental protection law also overlaps with the 2003 Convention in terms of the exceptions granted (mostly to Indigenous peoples) with respect to prohibitions on hunting and taking protected species under conservation treaties. For example, the North Pacific Fur Seal Interim Convention (1957) allows coastal-dwelling Indigenous peoples named as Indians, Ainos, Aleuts, and Eskimos to capture and/or kill fur seals during their pelagic migration in the open seas if using traditional hunting methods, in canoes ‘propelled entirely 89 Katy Whitby-Last, ‘Article 1: Cultural Landscapes’ in Francesco Francioni (ed) (assisted by Federico Lenzerini), The 1972 World Heritage Convention—A Commentary (Oxford University Press 2006) 51. 90 The Bandiagara (Cliff of the Dogons) property was inscribed by Mali on the World Heritage List in 1989 [Doc CONF 004 XV.A (1989)]. Details available at . 91 This reads: ‘Subject to its national legislation, respect, preserve and maintain knowledge, innov ations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustained use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge.’ 92 International Agreement on Plant Genetic Resources for Food and Agriculture (2001) accessed 15 May 2018. 93 UN Convention to Combat Desertification (1994) accessed 15 May 2018.

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Safeguarding Intangible Cultural Heritage 365 by oars, paddles or sails’ and manned by no more than five persons ‘without the use of firearms’.94 The 1973 Agreement on Conservation of Polar Bears again provides for certain exceptions to the prohibition on hunting and catching polar bears, including their capture by local people ‘using traditional methods in the exercise of their traditional rights’.95

4. Relationship to Other Regional Agreements Regional approaches towards cultural heritage protection, if applied alongside human rights approaches, have, according to Vrdoljak, ‘the potential to have a transformative impact on our understanding of cultural heritage and its legal protection at the multilateral level’, which moves away from ‘previous emphases on States and national cultures to human rights and cultural diversity’.96 These instruments accord importance to intercultural and intergenerational dialogue and respect for human rights97 as well as reflecting a paradigm shift in cultural heritage safeguarding towards giving a much more significant role to cultural and/or heritage communities.98

4.1 African Region An important treaty is the African Charter on Human and Peoples’ Rights (1981) (the ‘Banjul Charter’)99 which notes in its Preamble ‘the virtues of their historical tradition and the values of African civilization’ and that one of the duties held by African citizens is to ‘strengthen positive African cultural values in his [sic] relations with other members of the society’.100 Although it is not clear exactly how this is to be achieved or even what ‘African values’ are, this implies the existence of an identifiable African heritage that all Africans have a responsibility to protect and promote. The Charter also sets out 94 Agreement on Measures to Regulate Sealing and Protect Stocks in the Northeast Part of the Atlantic Ocean (1957) 309 UNTS 269 at art VII. 95 Oslo, 15 November 1973, in force May 1976 [13 ILM 13 (1973)] at art III(1). 96 Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’, (n 80) 171. 97 Council of Europe Framework Convention on the Value of Cultural Heritage for Society (Faro, 27/10/2005) CETS No. 199 (‘Faro Convention’) at art 2(3); ASEAN Declaration on Cultural Heritage adopted by ASEAN in Bangkok, Thailand, on 25 July 2000 at para 4(5); Charter for African Cultural Renaissance adopted by the African Union at Khartoum on 24 January 2006 (not yet in force) at para 3(4). 98 This is made clear in the 2005 Faro Convention of the Council of Europe in arts 1 and 4 and the ASEAN Declaration (2000) at arts 3, 8, and 14, for example. 99 Adopted 27 June 1981 [OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986]. 100 Art 29 in Chapter II on ‘Duties’.

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366 Janet Blake Africans’ ‘right to their economic, social and cultural development’, which can be related to the approach taken in the 2003 Convention towards ICH as a driver of sustainable development.101 The Charter for African Cultural Renaissance (2014)102 also has implications for both ICH policymaking and regulation in that region, defining ‘culture’ in terms that coincide closely with the definition of ICH in the 2003 Convention as ‘the set of distinctive linguistic, spiritual, material, intellectual and emotional features of the society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs’.103 Again, protecting and developing tangible and intangible cultural heritage are seen as a basic principle of setting cultural policy within the framework of cultural development.104 Explicit recognition is also given to a significant number of non-institutional actors who are instrumental in cultural development, including designers, private developers, associations, local governments, the private sector, etc.105

4.2 Europe (Council of Europe) The Council of Europe has traditionally ignored the distinction between tangible and intangible forms of heritage106 and placed great importance on civil society involvement in heritage conservation.107 The European Landscape Convention (2000)108 also has some relevance to ICH safeguarding since its scope encompasses not only the expected natural and rural landscapes but also urban and semi-urban areas and, importantly, the interrelationships between cultural and natural components of the landscapes. The most relevant European treaty with regard to the 2003 Convention is the Council of Europe’s ‘Faro’ Convention (2005),109 an innovative text that sets out contemporary policy approaches towards safeguarding cultural heritage in the European context. In assigning rights and responsibilities towards cultural heritage firmly predicated on human rights and recognizing its potential contribution towards sustainability, this treaty has a clear parallel with the twin human rights–sustainability context presented in the Preamble to the 2003 Convention.110 Its emphasis on values rather than on the material aspects of heritage, and its characterization of cultural heritage as a common good for which democratic participation is required,111 both focus on intangible aspects of heritage and also take these ideas implicit in the 2003 Convention a step further. Similarly, its conception of cultural diversity, whereby the way in which cultural heritage 101 Art 22(1). 102 Adopted by the African Union at Khartoum on 24 January 2006; not yet in force (as of 30 October 2014). 103 Preamble, first recital. 104 Art 10(2). 105 Art 11(2). 106 Lixinski, Intangible Cultural Heritage in International Law (n 47) 76. 107 Recommendation 1990 on the right of everyone to take part in cultural life (Council of Europe, Parliamentary Assembly, 2012). 108 Adopted at Florence, 20 October 2000 [CETS no. 176]. 109 Adopted at Faro, 27 October 2005 [CETS No. 199]. 110 Preamble, first and second recitals. 111 Preamble, para 5 and art 1(c).

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Safeguarding Intangible Cultural Heritage 367 can be used sustainably to create economic and social conditions favourable to the survival of diverse communities is emphasized,112 makes the diversity–sustainability linkage implicit in the 2003 Convention much clearer. In the area of participation it also goes beyond the rather general approach of the 2003 Convention by introducing the concept of ‘heritage communities’113 which, unlike the ‘communities, groups and . . . individuals’ in the 2003 Convention, are not built upon fixed, shared characteristics (such as language, religion, or ethnicity) but whose membership can shift and change and whose primary characteristic is their identification with the heritage in question. Finally, in this heritage safeguarding paradigm, Parties are the initiators of national policies and actions114 but with strong requirements to encourage public and democratic access to cultural heritage.115

4.3 The Americas In a similar manner to the Banjul Charter, the American Convention on Human Rights (1969)116 sets out both duties and rights, stating that ‘[e]very person has responsibilities to his [sic] family, his community, and mankind’. Documents of the Organization of American States (OAS) generally place a high value on cultural diversity, including strengthening Indigenous cultural heritage, intercultural dialogue, and social cohesion.117 How this relates to heritage (and human rights) is made explicit in the Declaration of Mar de Plata (2006), which notes the need to provide support since ‘culture in its many dimensions contributes to, among other things, the preservation and protection of national heritage, the enhancement of the dignity and identity of our people’ (emphasis added).118 The main OAS treaty dealing with cultural heritage protection, the ‘San Salvador’ Convention (1976), is not greatly relevant to ICH since it focuses mainly on monuments, archaeological sites, and movables.119 It does, however, refer to cultural property ‘belonging to American cultures existing prior to contact with European culture’ as well as the ‘remains of human beings, fauna, and flora related to such cultures’; this latter exhibits an extensive notion of Indigenous cultural heritage that brings to 112 Council of Europe Explanatory Report to the Framework Convention on the Value of Cultural Heritage for Society (2005). 113 Art 2(b). 114 Art 11. 115 Art 12. 116 Adopted at San Jose in November 1969 and entered into force on 18 July 1978. [OAS Treaty Series No. 36, 1144 U.N.T.S. 123; OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992)]. 117 The OAS Declaration of Port of Spain (2009) acknowledges ‘the positive contribution of culture in building social cohesion and in creating stronger, more inclusive communities, and we will continue to promote inter-cultural dialogue and respect for cultural diversity in order to encourage mutual understanding’. 118 OAS Declaration of Mar del Plata, 2005. 119 Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador), approved on 16 June 1976, through Resolution AG/ RES. 210 (VI-O/76) adopted at the Sixth Regular Session of the General Assembly, Santiago, Chile, at art 2.

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368 Janet Blake mind the ICH of the 2003 Convention, even if it betrays a tendency to mythologize ‘a common, pre-Columbian indigenous American identity’.120 A Draft Declaration on the Rights of Indigenous Peoples (the most recent version adopted in 2011)121 contains several provisions of interest for ICH: in the Preamble (third recital), the importance of Indigenous peoples’ respect for the environment and ecology is acknowledged as well as the value of their cultures, knowledge, and practices to sustainable development and to living in harmony with nature. Several elements now inscribed on the RL and USL reflect this range of heritage elements, such as the Traditional Mexican cuisine—ancestral, ongoing community culture, the Michoacán paradigm element.122 Also, its main article dealing with the protection of cultural heritage (including, inter alia, traditional know ledge, ancestral designs and procedures, cultural, artistic, spiritual, technological and scientific, expressions, genetic resources including human genetic resources, and tan gible and intangible cultural heritage) combines this with IP rights protection,123 thus linking heritage protection explicitly with IP rights, an approach which remains controversial for safeguarding ICH. Some of the language used is reminiscent of that used in the 2003 Convention—for example, the right to ‘use, develop, revitalize, and transmit to future generations’ their heritage.124 Moreover, the affirmation of the right to their own health systems and practices, including the protection of natural resources,125 reminds us of the linkage made between ICH and sustainability.

4.4 South East Asia Since South East Asia is one of the regions in which ICH is a primary form of officially recognized heritage, the instruments adopted by ASEAN are of interest. The ASEAN Charter (2007)126 promotes the twin policy contexts of the 2003 Convention,127 namely sustainability and cultural diversity, as follows: it links the promotion of sustainable development with environmental protection and preservation of cultural heritage128 and includes among its purposes the promotion of ‘an ASEAN identity through the fostering of greater awareness of the diverse culture and heritage of the region’.129 The main relevant instrument of ASEAN is the Declaration on cultural heritage (2000),130 a 120 Lixinski, Intangible Cultural Heritage in International Law (n 47), 69. 121 Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, Thirteenth Meeting of Negotiations in the Quest for Points of Consensus (Washington DC, 18–20 January 2011) RECORD OF THE CURRENT STATUS OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES [OAS Doc. OEA/Ser.K/XVI GT/DADIN/doc.334/08 rev. 6, 20 January 2011]. 122 Inscribed on the RL in 2010 by Decision 5.COM 6.30. 123 Draft art XXVIII. 124 Art XIII. 125 Art XVII. 126 Charter of the Association of Southeast Asian Nations, adopted by ASEAN in Singapore on 20 November 2007. 127 Preamble, third recital. 128 Art 1(9). 129 Art 14. 130 ASEAN Declaration on Cultural Heritage adopted by ASEAN in Bangkok, Thailand, on 25 July 2000.

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Safeguarding Intangible Cultural Heritage 369 non-binding policy document, which defines its subject matter broadly with such elements as significant cultural values and concepts, oral aspects of heritage (folklore, traditional arts and crafts, languages, etc.), and popular cultural heritage and creativity in mass cultures (industrial or commercial cultures).131 The Declaration asserts that living cultural traditions ‘of creative and technical excellence’ (important aspects of ICH) are rapidly deteriorating in the face of the tropical climate, inappropriate development, illicit trafficking, and homogenizing forces of globalization. These generally mirror the threats to ICH set out in the Preamble to the 2003 Convention,132 although industrial globalization and mass media are of a rather different nature. It also presents the need to sustain ‘worthy traditions and folkways’ (reminiscent of the emphasis on intergenerational transmission of the 2003 Convention) and to protect heritage bearers through ‘promoting creative diversity and alternative world views and values’,133 the latter suggesting a very region-specific response. The human rights context of this instrument is again made clear, noting that ‘all cultural heritage, identities and expressions, cultural rights and freedoms derive from the dignity and worth inherent in the human person . . . and that the creative communities of human persons in ASEAN are the main agents and consequently should be the main beneficiary of, and participate actively in the realization of these heritage, expressions and rights’.134 However, the focus given to social relations (‘creative human interaction’) and a communal aspect to human dignity is rather different from the individualistic view supported by international human rights instruments. An interesting provision is that those cultures with a global reach should not deprive local, national, and regional cultures of their own ‘development dynamics’ and reduce them to ‘relics of the past’.135

5. Conclusion As this chapter has sought to draw out, international regulation of the safeguarding of ICH through the adoption of the 2003 Convention responded to both a perceived gap in the existing law and to the demands of non-European countries that felt the World Heritage system did not fairly represent their heritage. In addition, this Convention must be understood in a wider policy context in which sustainable development, cultural (human) rights, and cultural diversity had all gained great traction during the 1990s. As do some regional instruments, the 2003 Convention makes clear the role of cultural heritage in preserving cultural diversity, ensuring truly sustainable development models, protecting human rights and the cultural identities of individuals, social 131 Art 1(a),(d), and (f). 132 Preamble, fourth recital. 133 Art 3. 134 The Preamble states that ‘all cultural heritage, identities and expressions, cultural rights and freedoms derive from the dignity and worth inherent in the human person in creative interaction with other human persons’. 135 Art 8.

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370 Janet Blake groups and communities, and protecting the right of communities to be themselves socially and economically sustainable through their heritage. As a relatively young treaty, the 2003 Convention is still a work in progress; there remain challenges to its implementation that have been thrown up during its thirteen years in operation. and no doubt new ones will be found. One of the most important of these relates to the central role accorded to ‘communities, groups and . . . individuals’ in all stages of safeguarding ICH, including in its identification as formally supported heritage, which fundamentally changes the top-down, State-driven model that has thus far predominated in many States Parties. This is also an issue with which the ICH Committee has to grapple—namely, how non-State actors can be better integrated into the international operations of the Convention. Perhaps one of the most interesting aspects of this evolving experience of implementation is the potential that this treaty has also to inform (and be informed by) other, related, areas of international law, in particular environmental law, human rights law, and the intellectual property regime.

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chapter 16

L a nguage as Cu lt u r a l Her itage Bruno De Witte

1. Introduction: The Linguistic Heritage as Part of the Cultural Heritage The use of a particular language not only serves as a means of functional communication but also expresses the speaker’s cultural identity, as well as the cultural heritage devel oped by all previous users of that language. From that perspective, one can say that measures that allow for the public use of a particular language, or that impose the use of that language in certain contexts, also contribute to the preservation of the cultural heri tage of a country (and of the world). The intangible cultural heritage of human communities thus comprises an oral heri tage expressed through language. The importance of orality was clearly expressed by the UNESCO programme that preceded the adoption of the Intangible Heritage Convention, namely the Programme for the Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity.1 The Convention itself, in its article 2, includes within its scope the oral traditions and forms of expressions that use language as their tool. Thereby, the Convention protects language as a ‘vehicle of the intangible cultural heritage’;2 in other words, language is protected because, and to the extent that, it gives expression to an element of a community’s intangible cultural heritage other than the language itself. An example of this approach is the protection of the whistled language of 1 See Federico Lenzerini, ‘Intangible Cultural Heritage: The Living Culture of Peoples’ (2011) 22 European Journal of International Law 101, at 106–7. 2 Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 3, art 2(2)(a).

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372 Bruno de Witte La Gomera on the Canary islands (el Silbo Gomero), which is being safeguarded not because it is a separate language but because it is a unique form of communicating the Spanish language and is the only fully developed whistled language in the world.3 The limited place given to language by the Intangible Heritage Convention may seem curious. Indeed, the intangible cultural heritage is defined, in the first paragraph of the same article 2, as ‘the practices, representations, expressions, knowledge, [and] skills . . . that communities, groups and, in some cases, individuals recognize as part of their cul tural heritage’; it seems difficult to argue, then, that the languages of those communities are not covered by that broad definition. Furthermore, if the intangible heritage pro vides those communities ‘with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity’, then it is hard to deny that the language spoken by the community helps to provide that sense of identity and continuity. Also, if a central aim of the Convention, according to its article 1(a), is to safeguard the viability or ensure the revitalization of the intangible cultural heritage, then language would seem an appropriate object of protection, since many of the world’s languages are endan gered.4 In a UNESCO study, the normative reasons why languages should be considered part of the world’s cultural heritage are described as follows: ‘The extinction of each language results in the irrecoverable loss of unique cultural, historical and ecological knowledge. Each language is a unique expression of the human experience of the world . . . Every time a language dies, we have less evidence for understanding patterns in the structure and function of human language, human prehistory, and the maintenance of the world’s diverse ecosystems. Above all, speakers of these languages may experience the loss of their language as a loss of their original ethnic and cultural identity.’5 So, the restrictive definition of the intangible heritage, in the Convention’s text, is not an oversight. It does not deny that language is an element of cultural heritage, as it would be difficult to do so. Rather, it is the expression of what Ana Vrdoljak has described as the ‘long-standing resistance of States to any external interference in national cultural policies and the codification of protection for intangible heritage, especially languages, at the international level’.6 More specifically, laying down legal obligations for States regarding their linguistic heritage might spill over into those States’ policies on the official use of languages, which is traditionally a sensitive matter linked to State-building and national identity. In fact, legal rules about the safeguarding of the linguistic heritage are part of the broader domain of language law, which also, and mainly, comprises, legal rules prescribing the use of particular language by public authorities, in public education 3 Tullio Scovazzi, ‘The Definition of Intangible Cultural Heritage’ in Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments (Martinus Nijhoff 2012) 179, at 183. 4 See the collection of essays in Kenneth L. Rehg and Lyle Campbell (eds), The Oxford Handbook of Endangered Languages (Oxford University Press 2018). 5 UNESCO, Language Vitality and Endangerment accessed 29 April 2019. 6 Ana Filipa Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’ in Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart 2014) 139 (emphasis added).

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Language as Cultural Heritage 373 and media, and often even in the private domain. The distinction, and overlap, between the legal rules on language-as-heritage and those on language-as-communication is central to this chapter. We will examine that distinction and overlap as it arises at the level of national law (Section 2) before presenting the limited role played by inter national law in protecting language-as-heritage (Section 3).

2. The National Level: Linguistic Heritage Law as Part of Language Law Language law is an inevitable component of every national legal order. It can be defined as the collection of legal norms regulating the use, the learning, or the protection of particular languages. The key component of language law is the set of rules regulating the use of languages in the activity of public authorities and in public education. This often takes the form of the determination that one or more of them are the official language(s) of a country or a region. In plurilingual countries, linguistic diversity may be constitutionally recognized, or not, and judicially enforceable language rights may be given to the speakers of minority languages, or not. Beyond the regulation of the use of languages, language law has a second, and rather less prominent, component, namely the set of legal norms protecting a country’s or region’s linguistic heritage. These norms may either be focused on the country’s dominant national language or, on the contrary, seek to preserve the diversity of the country’s linguistic heritage. This second component of language law (which can be termed ‘linguistic heritage law’) is the main object of attention in this contribution, although the two components cannot be viewed in isolation from each other. Indeed, it is quite clear that one of the best ways to safeguard the linguistic heritage of a community is to adopt legal rules guaranteeing the right, for members of that community, to use their language in the public domain and the right for the children of that community to be taught through that language. The primary reason why several threatened or almost moribund languages have been successfully revived in recent decades (as for example Hawaiian, Māori, and Welsh, to name a few) is because legislation was adopted that grants legal rights to use those languages and imposes corresponding duties on public authorities to use them and ensure their trans mission through education and the media. Conversely, the lack of official recognition of many other smaller languages is the main reason for their threatened extinction. Focusing, then, on linguistic heritage law, a first thing to note is that, in many countries, it is treated as a separate legal and policy domain from cultural heritage law. Indeed, national legislation on the intangible cultural heritage often closely reflects the abovedescribed approach of the UNESCO Convention on Intangible Cultural Heritage, whereby linguistic expressions are protected only when they are the instrument of a traditional cultural practice. For example, France has established a very elaborate and comprehensive ‘Inventory of the Intangible Heritage in France’ (Inventaire du

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374 Bruno de Witte patrimoine immatériel en France), which includes such items as songs in Breton or Corsican, and tales in Occitan, but those minority languages themselves are not pro tected under that law.7 Similarly, the recently adopted Spanish law on intangible cultural heritage adopts a definition that closely follows that of the UNESCO Convention and thus includes language only to the extent that it is a vehicle for other forms of the intan gible heritage.8 However, those same countries do in fact recognize that languages, as such, are part of their country’s cultural heritage; they do so in other legal instruments than their cultural heritage laws. Thus, in France, article 75-1 of the Constitution tersely states that ‘regional languages belong to the heritage of France’.9 In Spain, one of the opening provisions of the Constitution affirms that ‘the wealth of the different language modalities of Spain is a cultural heritage which shall be the object of special respect and protection’.10 That constitutional norm led in Spain (unlike in France) to very elaborate and detailed language policies adopted by the country’s Autonomous Communities.11 In Catalonia, the Basque Country, Navarra, Galicia, Valencia, and the Balearic Isles, regional legislation has sought to restore the use of the respective regional language as a normal means of public and private communication to compensate for the active sup pression of these languages under Franco’s dictatorship; hence the commonly used description of these laws as ‘linguistic normalization laws’ (Leyes de normalización lingüística).12 These laws and policies mostly focus on the language regime of public authorities, education, and the media, but they also have a distinct linguistic heritage component. For instance, the Catalan region developed multiple activities in the field of what sociolinguistic scholars call ‘corpus planning’—that is, policies which are directed at reforming the structure of language, through the development of standardized scripts, dictionaries, grammars, lexical adaptations, the promotion of linguistic research, and so on. Already in the early twentieth century, a private institution, the Institut d’Estudis Catalans (IEC), developed a unitary grammar for the language and a general dictionary, seeking to develop a set of stable and unified norms for the whole Catalan-speaking community. After the fall of the Franco regime, the IEC was re-established, this time with solid financial support from the autonomous regional government; it developed, 7 See accessed 28 April 2019. 8 Ley 10/2015, de 26 de mayo, para la salvaguardia del Patrimonio Cultural Inmaterial, art 2. 9 In the original French version: ‘Les langues régionales appartiennent au patrimoine de la France.’ This provision was only recently added to the Constitution. For the political context and legal signifi cance of this provision, see Laurent Malo, ‘Les langues régionales dans la Constitution française: à nou velles donnes, nouvelle réponse?’ (2011) 85 Revue française de droit constitutionnel 69. 10 Art 3 of the Spanish Constitution. In the original Spanish version: ‘La riqueza de las distintas modalidades lingὕisticas de España es un patrimonio cultural que será objeto de especial respeto y protección.’ 11 On the development of Spanish language law, see, among many other contributions, José Manuel Pérez Fernández (ed), Estudios sobre el estatuto jurídico de las lenguas en España (Atelier 2006). 12 For a policy perspective in terms of language revitalization, examining the language policies in those different policy sectors, see Miquel Strubell and Emili Boix-Fuster (eds), Democratic Policies for Language Revitalisation: The Case of Catalan (Palgrave Macmillan 2011), in particular the chapter by Miquel Angel Pradilla Cardona, ‘La Catalanofonia: A Community in Search of Linguistic Normality’, at 17.

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Language as Cultural Heritage 375 among other things, a new Catalan grammar and new editions of the Diccionari de la llengua catalana, and it started a project for a linguistic Atlas of the Catalan-Speaking Lands.13 The example of Catalonia indicates the kind of subject matters that linguistic heritage law deals with. Linguistic heritage law is typically composed of a set of general norma tive statements (such as the French and Spanish constitutional norms mentioned above), a series of public bodies undertaking corpus planning tasks, and public funding mechanisms for specific linguistic activities such as book translations, dedicated lan guage teaching, and film and theatre productions. In practice, public financial support for cultural activities in minority languages is the most widespread and probably most effective instrument of linguistic heritage law. Such financial support is especially important to safeguard those languages that do not have an official status. In Italy, for example, a large number of regions have adopted legislation specifying the ways in which they intend to protect their local linguistic heritage.14 These instruments do not regulate the use of languages in public administration, education, and the media (which, as argued above, would be the most effective way of safeguarding the linguistic heritage). They aim, rather, at safeguarding the linguistic heritage by offering financial support to a wide variety of cultural activities in the local languages.

3. The Limited Role of International Law Instruments Turning now to international law, we can make a similar distinction between two ways in which linguistic heritage is protected, namely by norms addressing language as part of cultural heritage and by norms that regulate the use of languages in the public domain and, thereby, indirectly safeguard the linguistic heritage. As mentioned in Section 1, the Intangible Cultural Heritage Convention protects language in an ancillary way, namely only to the extent that language is the vehicle for other manifestations of the intangible cultural heritage. Language per se is not a domain of the intangible heritage in the sense of the Convention. In practice, this has led to the inclusion of items on the Representative List of the Intangible Cultural Heritage of Humanity for which language forms a central element, such as songs, chanting, and storytelling. In some cases, the linguistic component of the heritage is more direct, as with ‘Chinese calligraphy’ and ‘Living culture of three writing systems of the Georgian alphabet’, as well as the example, mentioned in Section 1, of the whistled language of La Gomera. In addition to the listing of the heritage items, the Convention also created an 13 On the corpus planning of Catalan, see Pradilla Cardona, ‘La Catalanofonia’ (n 12) 30–9. 14 For a list of those regional laws, see Francesco Emanuele Grisostolo, ‘La salvaguardia del patrimo nio culturale immateriale: recenti tendenze in area europea’ (2018) 20 Diritto Pubblico Comparato e Europeo 723, at 748, note 92.

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376 Bruno de Witte Intangible Cultural Heritage Fund, based on voluntary contributions by States Parties and other public or private bodies, which aims mostly at fostering general capacity building in developing countries but also supports some specific projects. One of those specific projects with a distinct linguistic flavour is the project titled Action Plan for the Safeguarding of the Garifuna Language, Music and Dance, proposed by four Central American countries. The periodic reports submitted by the parties to this Convention show that linguistic minorities are not on the radar of European countries’ policies on intangible heritage. Italy, for example, is (as was mentioned in Section 2) a country that adopted legislation for the protection of its regional linguistic heritage, but those legisla tive measures do not appear in Italy’s reports under the Intangible Cultural Heritage Convention.15 In contrast with this attitude, several countries from Latin America and Africa effectively treat language as a domain of intangible heritage and report on pro jects aimed at safeguarding their Indigenous languages.16 The UNESCO Convention on Cultural Diversity of 200517 offers a similar picture of implicit protection for the linguistic heritage. Although the word ‘language’ is almost entirely absent from the text of the Convention, the Convention aims at the protection and promotion of cultural activities, goods, and services that very often have a particu lar linguistic form. The International Fund for Cultural Diversity, set up under article 18 of the Convention, occasionally supports language-related projects, such as the National Translation Centre in Tunisia, which undertakes the translation of Tunisian works into other languages and translation from foreign languages into Arabic. Neither of the two UNESCO Conventions mentioned formulate strict legal obliga tions for the States Parties. Their provisions can hardly serve as a basis for enforceable rights for the members of a linguistic group. Other international legal instruments that aim at the protection of minority languages, and the rights of the speakers of these lan guages are formulated in somewhat stronger terms. At the global level, article 27 of the International Covenant on Civil and Political Rights is relevant. The wording of this pro vision18 seems to imply that States merely have a negative duty not to interfere with the private choice of persons to speak a minority language. However, the Human Rights Committee insisted, in one of its general comments, that article 27 is also a source of positive duties: ‘Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion’ and, therefore, ‘positive measures by States may . . . be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture

15 Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Ninth ses sion 24–8 November 2014, Periodic report No 00925/Italy. 16 Janet Blake, International Cultural Heritage Law (Oxford University Press 2015) 189–90. 17 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 UNTS 311. 18 ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’

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Language as Cultural Heritage 377 and language . . . in community with the other members of the group’.19 Despite this ambitious interpretation, article 27 plays only a very limited role in the individual appli cations submitted to the Committee,20 and it has not served, so far, as an effective source for the protection of language heritage. Arguably the strongest international instrument for the protection of the linguistic heritage is the Council of Europe’s European Charter of Regional or Minority Languages, which is ratified, at the latest count, by twenty-five European countries.21 Its preamble contains references both to the protection of languages as heritage and to the protection of linguistic rights.22 The substantive provisions of the Charter reflect to some extent the hybrid nature of its underlying aims. Whereas many of the provisions seek to promote the guarantee of language rights in education, public administration, and the media (the traditional areas of minority language rights legislation), some other provisions are more directly concerned with the protection of the language as cultural heritage. The latter concern is particularly visible in article 12, titled ‘Cultural activities and facilities’, containing some rather specific duties for the States Parties. The provision requires them ‘to encourage and/or facilitate the creation of a body or bodies responsible for collect ing, keeping a copy of and presenting or publishing works produced in the regional or minority languages’, and ‘to create and/or promote and finance translation and termino logical research services, particularly with a view to maintaining and developing appro priate administrative, commercial, economic, social, technical or legal terminology in each regional or minority language’. Here, the concern is clearly not with granting indi vidual rights to use or learn the minority language but, rather, with the adoption of schemes of governance that will help the sustainable development of those languages. The Charter’s main characteristic is its à la carte approach. Not only are States Parties free to indicate which regional and minority languages they choose to protect under the terms of the Charter, but they also have considerable discretion in picking and choosing from among the many, rather detailed, substantive provisions of the Charter. The Charter is, therefore, a very flexible instrument, requiring the contracting States to undertake only those obligations that they are positively willing to undertake, with the expectation that a process of emulation among States will get under way. The States are also entitled to distinguish between minority languages, giving more far-reaching pro tection to some than to others, as long as those distinctions are justified by reasons of the size or geographical concentration of the groups. However, once States have agreed to undertake commitments for the promotion of a given language in a given field (be it 19 Human Rights Committee, General Comment No 23 (1994) CCPR/C/21/Rev.1/Add.5, para 6.2. 20 In the recent periodical surveys of its own case law, the Human Rights Committee did not mention any cases relating to art 27. See documents CCPR/C/119/3, CCPR/C/116/3, and CCPR/C/113/4. 21 European Charter for Regional or Minority Languages, 1992, European Treaty Series No 148. 22 See, respectively, the following two sentences in the Preamble: ‘Considering that the protection of the historical regional or minority languages of Europe, some of which are in danger of eventual extinc tion, contributes to the maintenance and development of Europe’s cultural wealth and traditions’; and ‘Considering that the right to use a regional or minority language in private and public life is an inalien able right . . . ’.

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378 Bruno de Witte education, the media, public administration, or heritage measures), they must submit periodic reports on the way they have implemented those commitments and the Charter’s Committee of Experts closely checks their compliance with those commitments.23 That monitoring body does not have the power to adopt binding decisions on non-compliance. However, the dynamic approach adopted by the Committee in fulfilling its monitoring tasks is quite remarkable. It establishes a dialogue with the governments concerned, it visits the country and meets with representatives of minority groups, and its reports do not hesitate to make statements as to whether the States have adequately complied with their obligations and express detailed views on how to improve the situation. These statements then lead to recommendations adopted by the Committee of Ministers of the Council of Europe and, in fact, the ministers have so far largely followed the views of the experts.24 In this way, pressure is put on the States to adopt best practices as formulated by the expert bodies.25

23 See, for example, the report of the Committee of Experts on Spain, of 20 March 2015, ECRML (2016) 7, which amounts to 110 pages of detailed analysis and recommendations addressed to the Spanish government. Spanish scholars have paid particular attention to the impact of the Charter on the coun try’s linguistic policies. See Iñaki Agirreazkuenaga Zigorraga, ‘La carta Europea de lenguas regionales o minoritarias del Consejo de Europa como derecho interno’ in José Manuel Pérez Fernández (coord), Estudios sobre el estatuto jurídico de las lenguas en España (Atelier 2006) 105; and Patxi Baztarrika Galparsoro, ‘A Look at the European Charter for Regional or Minority Languages from the Point of View of the Basque Language and the Basque Country’ (2018) 69 Revista de Llengua i Dret/Journal of Language and Law 52. 24 These various reports and recommendations are published on the website of the Council of Europe. 25 For an account of the monitoring practice under the Charter, see Alba Nogueira López, Eduardo Ruiz Vieytez and Iñigo Urrutia Libarona (eds), Shaping Language Rights: Commentary on the European Charter for Regional or Minority Languages in Light of the Committee of Experts’ Evaluation (Council of Europe Publishing 2012), and in particular in relation to art 12 (the language-as-heritage provision), Elizabeth Craig, ‘Article 12. Cultural activities and facilities’, at 425.

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chapter 17

Cu ltu r a l H er itage a n d H um a n R ights Yvonne Donders

1. Introduction Cultural heritage has been included in public international law because of its value as part of the history of humanity; hence the need for its legal protection not only at national but also at international level. In international law, in particular humanitarian law, the concept of ‘cultural property’ was used for a long time as the source of protection.1 The concept of cultural property referred to objects that had value mainly as commodities that could be bought and sold. Ownership and the rights of the possessor were central and directly related to control over the objects and over access to them. The value of these objects as part of the cultural heritage of a community or individual, although sometimes mentioned, was not central in this approach. In more recent years, the concept of ‘cultural heritage’ has become more en vogue. Cultural heritage is considered to be of such value that safeguarding is necessary because of a public interest, irrespective of ownership.2 Whereas the concept of ‘cultural property’ is fairly static and mainly refers to tangible objects, the concept of ‘cultural heritage’ is a more dynamic and flexible notion that includes physical or material (tangible) elements,

1 For instance, in the 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 (hereafter ‘Hague Convention’). 2 Francesco Francioni, ‘Culture, Heritage and Human Rights: An Introduction’ in Franscesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Brill 2008) 7; Pok Yin S. Chow, ‘Culture as Collective Memories: An Emerging Concept in International Law and Discourse on Cultural Rights’ (2014) 14(4) Human Rights Law Review 611, 636–8.

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380 Yvonne Donders as well as immaterial (intangible) elements. Cultural heritage is developed, created, interpreted, and re-interpreted in a dynamic world of interaction.3 An important feature of the concept of cultural heritage is its link with peoples, communities, and cultural identities. Cultural heritage not only has an objective dimension but is also particularly important for its subjective dimension, in terms of how it is perceived by individuals and communities as being associated with their cultural identity and their sense of belonging to a community. It is precisely the intrinsic link between cultural heritage and cultural identity of individuals, groups, and humankind that justifies the national and international protection and preservation of cultural heritage.4 Member States of UNESCO have adopted several legal instruments concerning the protection of cultural heritage. The protection of cultural heritage is also included in instruments on conflict and war, including international humanitarian law and inter national criminal law. These fields of international law, however, do not necessarily take a human rights approach to cultural heritage. Cultural heritage is protected as important value for humanity, but in these instruments cultural heritage is not particularly protected as a right or as part of (or a precondition for) human rights advancement. In recent years, however, the link between cultural heritage and human rights has been strengthened. In international law, a shift appears to be visible from the protection of cultural heritage as such, based on its historical value for humanity, its uniqueness and non-renewable character, to the protection of cultural heritage as a crucial value for peoples and individuals in relation to the (re)construction of their cultural identity.5 This connection between cultural heritage and human rights is recognized by States in the Human Rights Council6 and also confirmed by the UN Special Rapporteur on Cultural Rights, who emphasized that ‘considering access to and enjoyment of cultural heritage as a human right is a necessary and complementary approach to the preservation/ safeguard of cultural heritage’.7 The interlinkages between cultural heritage and human rights form a complex web of different issues. In short, human rights serve the creation, preservation, protection, promotion, and enjoyment of cultural heritage. At the same time, preservation and enjoyment of, and access to, cultural heritage are human rights in and of themselves. Finally, 3 UN Human Rights Council, Report of the Independent Expert in the Field of Cultural Rights, Fardia Shaheed (21 March 2011) UN Doc A/HRC/17/38, 3, paras 4–7; UN Human Rights Council, Report of the Special Rapporteur in the field of cultural rights (3 February 2016) UN Doc A/HRC/31/59, para 8; Francioni, ‘Culture, Heritage and Human Rights’ (n 2), 7–8, 14–15; Neil A. Silberman, ‘Heritage Interpretation and Human Rights: Documenting Diversity, Expressing Identity, or Establishing Universal Principles?’ (2012) 18(3) International Journal on Heritage Studies 245, 246–7; Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press 2013) 145–7. 4 Janet Blake, ‘On Defining the Cultural Heritage’ (2000) 49(1) International and Comparative Law Quarterly 61, 82. 5 Francioni, ‘Culture, Heritage and Human Rights’ (n 2) 6–7. 6 UN Human Rights Council, Cultural Rights and the Protection of Cultural Heritage (27 September 2016) UN Doc A/HRC/33/L.21; Cultural Rights and the Protection of Cultural Heritage (19 March 2018) UN Doc A/HRC/37/L.30. 7 UN Human Rights Council, Report of the Independent Expert (n 3) para 2; UN Human Rights Council, Report of the Special Rapporteur (n 3) paras 47–51.

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Cultural Heritage and Human Rights 381 human rights can also protect against cultural heritage that is considered to be in tension or conflict with human rights. Although no explicit rights to cultural heritage are included in international human rights treaties, several human rights provisions in these treaties imply rights for individuals and communities related to their cultural heritage, which in turn imply negative and positive obligations for States. The increased interconnection between the different fields of public international law related to the protection of cultural heritage can be well-illustrated by the famous case of Al Mahdi before the International Criminal Court (ICC). In September 2016, a Trial Chamber of the ICC sentenced Ahmad Al Faqi Al Mahdi to nine years’ imprisonment for the war crime of intentionally destroying cultural heritage in attacks he directed aimed at religious and historic buildings in Timbuktu, Mali.8 The Trial Chamber recognized the value of the cultural heritage beyond the mere status of property or value for humanity, linking the heritage to the cultural identity and dignity of the community concerned. It stated that ‘the targeted buildings were not only religious buildings but had also a symbolic and emotional value for the inhabitants of Timbuktu’.9 They were an integral part of the religious life of its inhabitants and constitute a common heritage for the community. Furthermore, most sites were recognized as UNESCO World Heritage Sites. The ICC therefore concluded that ‘the entire international community, in the belief that heritage is part of cultural life, is suffering as a result of the destruction of the protected sites’.10 The aim of this chapter is to broadly unravel the interlinkages between cultural heritage and human rights, focusing on international treaties on cultural heritage and international treaties on human rights. The overlapping fields of international humanitarian law and international criminal law, as well as the regional legal frameworks, are left to other chapters in this Handbook. While the legal differences between heritage treaties and human rights treaties in terms of their scope of application, reciprocity, implementation, monitoring, and denunciation were explored elsewhere,11 here the focus is on the substantive content of these treaties in terms of how the promotion and protection of cultural heritage and human rights are mutually related. This relationship has intensified over the years through the simultaneous or synchronized development and elaboration of the concepts of culture, cultural heritage, and cultural rights in international law. Below, an overview is first given of the UNESCO instruments on cultural heritage and cultural diversity and their human rights angles, showing how cultural heritage has been increasingly linked to human rights. Then human rights treaties are explored as regards their link with cultural heritage, showing how several human rights provisions imply rights related to cultural heritage and corresponding negative and positive 8 The Prosecutor v Ahmad Al Faqi Al Mahdi (Judgement and Sentence) ICC-01/12–01/15 (27 September 2016). 9 Ibid, para 38. 10 Ibid, para 39. 11 Yvonne Donders, ‘Protection and Promotion of Cultural Heritage and Human Rights through International Treaties: Two Worlds of Difference?’ in Charlotte Waelde et al. (eds), Research Handbook on Contemporary Intangible Cultural Heritage: Law and Heritage (Edward Elgar Publishing 2018) 54–77.

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382 Yvonne Donders obligations for States. The last part brings these two together by exploring a human rights approach to cultural heritage, including the concepts of access, contribution, participation, and enjoyment, as well as the limitation of human rights in cases of harmful or contentious cultural heritage.

2. UNESCO Cultural Heritage Instruments and Human Rights UNESCO is well-known for its work in the field of the protection of cultural heritage. From its establishment, the organization has promoted international collaboration in the field of cultural heritage, mainly from the idea that States should protect cultural heritage because of its significance for humanity and as a means of international cooper ation, thereby fostering mutual understanding and preventing international conflicts. In the UNESCO heritage instruments, increasing emphasis is placed on the importance of cultural heritage for the construction and expression of cultural identity and on the link between cultural heritage and cultural diversity. In other words, a shift has taken place from safeguarding cultural heritage for the public at large to protection of cultural heritage of and for communities concerned. Accordingly, elements of a human rights approach, including the value of human dignity and the principles of participation, contribution, and access, can be increasingly found in these instruments, reflecting a growing consensus among States on these matters. Regional heritage instruments show a similar development.12

12 Regional heritage instruments show a similar development: the more recent the instrument, the more comprehensive the definition of cultural heritage included and the stronger the link with rights of individuals and communities. For instance, the OAS Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations (adopted 16 June 1976) AG/RES 210 (VI-O/76) (‘Convention of San Salvador’) uses the term ‘cultural property’ and concerns only the tangible elements of cultural heritage. Access to cultural heritage and participation by individuals or communities in the process are not explicitly included. The African Union Cultural Charter for Africa (adopted 5 July 1976, entered into force 19 September 1990) AU Doc 0014 puts emphasis on the protection and promotion of ‘African cultural heritage’, particularly in relation to the postcolonial assertion of African identity. It is not made clear what is meant by ‘African cultural heritage’, but it seems to refer to cultural heritage on the African continent, not further specified to different States, peoples, or communities. The ASEAN Declaration on Cultural Heritage (adopted 25 July 2000) defines cultural heritage in a broad manner, including tangible and intangible elements, and it establishes the clear link between cultural heritage, identity, and human rights in the preamble. The Council of Europe Framework Convention on the Value of Cultural Heritage for Society (‘Convention of Faro’), adopted in 2005, also embraces a broad definition of cultural heritage and is most outspoken about human rights related to cultural heritage (for instance, articles 1 and 12), although the formulation of the provisions is State-oriented and does not give concrete rights to individuals and/or communities.

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Cultural Heritage and Human Rights 383 The UNESCO treaties are classical international treaties in the sense that they mainly have a horizontal character as agreements between States creating mutual rights and obligations. Their provisions compel States Parties to promote cultural diversity and to safeguard cultural heritage and take measures to identify and delineate cultural heritage. The Conventions do not have a vertical character providing for substantive rights of individuals and/or communities to cultural heritage. This interstate focus is also reflected in the monitoring system of these conventions, which is fully in the hands of States. The implementation of UNESCO instruments is monitored via a reporting procedure laid down in article VIII of its Constitution. The organization also has a communication procedure adopted by Decision 3.3 of the Executive Board in 1978, but this procedure is confidential, and it is therefore unknown whether complaints have been filed concerning cultural heritage.13 The reporting procedure implies that Member States must periodically submit a report on the action taken in the field of the recommendations and conventions adopted by UNESCO. These reports are considered by the Committee on Conventions and Recommendations (CCR), which is a subsidiary body of UNESCO’s Executive Board composed of representatives of thirty Member States. The CCR considers the reports without a dialogue with the Member States. It drafts a report on its findings to the Executive Board, which sends it with its comments to the General Conference. States have not always consistently respected their reporting obligations. Reports have come in at irregular intervals, and they are of different quality. The heritage treaties have their own monitoring system. They are monitored by intergovernmental committees composed of representatives of the States Parties. The UNESCO Conventions’ bodies are the conferences of parties, which established intergovernmental committees.14 The World Heritage Committee and the Committee for the Safeguarding of the Intangible Cultural Heritage both review States Parties’ reports every six years and advise the States Parties on the implementation of their respective treaties and other matters arising from their reports.15 There is no systematic input by NGOs or other stakeholders in this procedure, although they can participate in the debates. Furthermore, the States Parties to the heritage treaties have developed the habit of adopting so-called Operational Guidelines, in which they elaborate guidelines on the practical implementation and application of the provisions of the respective Convention. 13 See on this procedure Yvonne Donders, ‘UNESCO’s Communications Procedure on Human Rights’ in Nigel Rodley and Tara Van Ho (eds), Research Handbook on Human Rights Institutions and Enforcement (Research Handbooks on Human Rights Series, Edward Elgar Publishing forthcoming 2020), available at . 14 Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 (hereafter, ‘World Heritage Convention’) Part III arts 8–10; Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1 (hereafter ‘Intangible Cultural Heritage Convention’) Part II, arts 4–8. 15 World Heritage Convention art 29; Intangible Cultural Heritage Convention art 29.

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384 Yvonne Donders

2.1 Cultural Heritage Conventions Member States of UNESCO have adopted three Cultural Heritage Conventions: the Convention concerning the Protection of the World Cultural and Natural Heritage (1972); the Convention on the Protection of the Underwater Cultural Heritage (2001); and the Convention on the Safeguarding of the Intangible Cultural Heritage (2003). These Conventions provide for definitions of the different categories of cultural heritage and are meant to safeguard cultural heritage at national and international level. The widespread State support, in particular for the World Cultural and Natural Heritage Convention and the Intangible Heritage Convention, confirms the general agreement among States from all different parts of the world on the importance of cultural heritage protection and promotion. As indicated in the previous section, the UNESCO Heritage Conventions show a shift from the protection of cultural heritage for the public at large and emphasis on the sovereignty and rights of States (Convention on World Cultural and Natural Heritage and Convention on Underwater Cultural Heritage) to the protection of cultural heritage of and for specific cultural communities, involving them in the process of identification and protection (Convention on Intangible Cultural Heritage). The Conventions on World Cultural and Natural Heritage and on Underwater Cultural Heritage were drafted to protect the physical, material elements of cultural heritage. These tangible elements of cultural heritage are often connected to territory. According to article 1 of the Convention on Cultural and Natural Heritage, cultural heritage includes 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 Convention distinguishes natural heritage from cultural heritage, defining them separately in article 2. However, in many instances, natural heritage has important cultural connotations and, vice versa, cultural heritage can be embedded in a natural environment. The Convention on Underwater Cultural Heritage also emphasizes in its preamble that underwater cultural heritage is 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’. For a number of years, it has been realized that an important part of cultural heritage consists of non-physical or immaterial aspects, so-called intangible cultural heritage.

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Cultural Heritage and Human Rights 385 The definition of intangible cultural heritage is, according to article 2(1) of the Convention on Intangible Cultural Heritage, 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 definition, remarkably, focuses on the will of communities and individuals and not solely on the sovereign rights and control of States, recognizing that it is communities and individuals who create and maintain cultural heritage. At the same time, it should be noted that it is still primarily States that hold the power to select and legally recognize cultural heritage. In the Convention on Intangible Cultural Heritage, a direct link is established between intangible cultural heritage and cultural identity. In article 2(1) it is stated that 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.

Languages, in particular regional or minority languages, are often included as part of intangible cultural heritage. The Convention on Intangible Cultural Heritage recognizes the vital role of languages in the expression and transmission of living heritage. Article 2(a) confirms that language is a vehicle of intangible cultural heritage, essential to the identity of individuals and groups. Most intangible cultural heritage domains—including, for instance, rituals, performing arts, and handicrafts—depend on language for their day-to-day practice and intergenerational transmission. In the domain of oral and traditions and expressions, language is not merely a vehicle—it is the very essence. Accordingly, promotion and protection of cultural heritage also implies measures in the field of languages. The division between tangible and intangible heritage should not be taken too strictly. Tangible heritage also contains intangible dimensions. ‘Cultural heritage requires memory.’16 Material and physical heritage needs to be placed in a historical and cultural context in order to understand its value. The inclusion of intangible elements into the definition of the concept of cultural heritage has enhanced the human dimension of cultural heritage and has thereby strengthened the human rights approach to cultural heritage. The intangible elements of cultural heritage have a more direct link with the construction of the cultural identity of a community or nation. Whereas the original approach to the physical or material aspects of cultural heritage mainly concerned the protection of the objects themselves and the sovereignty of States, adding the intangible 16 Helaine Silverman and D. Fairchild Ruggles, ‘Cultural Heritage and Human Rights’ in Helaine Silverman and D. Fairchild Ruggles (eds), Cultural Heritage and Human Rights (Springer 2007) 12.

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386 Yvonne Donders elements reinforced the perspective of the link with cultural communities, including their relationship with cultural heritage as part of their cultural identity. As cultural identity is considered to be part of human dignity, its link with human rights, in particular cultural rights, is more firmly established. Cultural heritage is no longer merely considered as being of outstanding value to humanity but also as being of crucial importance to individuals and communities as part of their identity. Another important aspect of cultural heritage in the UNESCO Conventions, linking it to human rights, is education. All instruments include that States Parties have the obligation to include cultural heritage in educational programmes and to raise awareness on the existence and value of cultural heritage. The Convention on World Cultural and Natural Heritage, in article 27, provides that States Parties should develop educational programmes to strengthen people’s appreciation and respect for cultural heritage, and they should also inform the public of dangers threatening cultural heritage. The Convention on Intangible Cultural Heritage is more specific and also includes special measures to be taken in relation to cultural communities. Article 14 holds that States should implement educational, training, awareness-raising, and information programmes with(in) communities aimed at ensuring recognition of, respect for, and enhancement of the intangible cultural heritage in society. Yet another element reaffirming and strengthening the link between cultural heritage and human rights is the increased participation of the peoples and communities concerned in the recognition, preservation, and promotion of cultural heritage. The Intangible Cultural Heritage Convention determines that States should identify and define the elements of intangible cultural heritage ‘with the participation of communities, groups and relevant non-governmental organizations’ (art 11). Moreover, article 15 of this Convention provides that: Within the framework of its safeguarding activities of the intangible cultural heri tage, each State Party shall 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.

2.2 Other UNESCO Instruments The link between cultural heritage and cultural identity was already recognized in the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, adopted in 1989. This recommendation includes a definition of folklore that is closely connected to intangible cultural heritage and marks its link with cultural identity: Folklore (or traditional and popular culture) is the totality of tradition-based cre ations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by

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Cultural Heritage and Human Rights 387 other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.

Worth mentioning also is the UNESCO Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It (1976). This recommendation includes, in article 2(a), a broad approach of access to culture as concrete opportunities available to everyone, in particular through the creation of appropriate socio-economic conditions, for freely obtaining information, training, knowledge and understanding, and for enjoying cultural values and cultural property.

Another instrument that reaffirms the link between cultural heritage and human rights is the UNESCO Declaration on the Intentional Destruction of Cultural Heritage, adopted in 2003. This Declaration clearly marks the link between cultural heritage and human rights by stating in the preamble that cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights.

The Declaration proclaims the important obligation of States not to intentionally damage or destroy, or allow for damage or destruction of, cultural heritage. The intentional destruction of cultural heritage is also linked to the debate on cultural genocide, which is dealt with elsewhere in this Handbook.17 The Member States of UNESCO also adopted several instruments on cultural diversity that include references to cultural heritage.18 The UNESCO Universal Declaration 17 See, also, Yvonne Donders, ‘Old Cultures Never Die? Cultural Genocide in International Law’ in Ineke Boerefijn et al. (eds), Human Rights: Pre-Conflict, In Conflict, and Post-Conflict (Intersentia 2012) 278–304; Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (Oxford University Press 2016); Ana F. Vrdoljak, International Law, Museums, and the Return of Cultural Objects (Cambridge University Press 2006) 162–79. 18 Member States of UNESCO have adopted other international instruments on cultural issues, including cultural products or the rights of cultural creators and artists. These instruments reaffirm the importance of (aspects of) culture but do not contain explicit references to cultural heritage. These instruments include: the Agreement on the Importance of Educational, Scientific and Cultural Materials (adopted 22 November 1950, entered into force 21 May 1952) 131 UNTS 25 (‘Florence Agreement’); the 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 215 (‘The Hague Convention’); Protocol to the Hague Convention of 1954 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; the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231; UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (adopted 24 June 1995, entered into force 7 January 1998) 2421 UNTS 457; UNESCO, Recommendation on Participation by the People at Large in Cultural Life and their

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388 Yvonne Donders Cultural Diversity (2001), for instance, reaffirms the value of cultural heritage in article 7 as a record of human experience and aspirations, which should be preserved and enhanced in order to foster creativity and diversity and to promote intercultural dialogue. The same Declaration reaffirms the importance of cultural rights as ‘an enabling environment for cultural diversity’ (art 5). It includes that: The flourishing of creative diversity requires the full implementation of cultural rights . . . All persons have therefore the right to express themselves and to create and disseminate their work in the language of their choice, and particularly in their mother tongue; all persons are entitled to quality education and training that fully respect their cultural identity; and all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms.

The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) reiterates that cultural diversity is the common heritage of humanity, but it does not refer explicitly to the protection of cultural heritage. The above clearly shows a large consensus among States on the importance of the protection and promotion of cultural heritage, including an amplified focus on its link with human rights through the cultural identity and dignity of peoples, communities, and individuals. The heritage conventions increasingly use the language of or make references to ‘rights’, and they increasingly take a human rights approach by linking cultural heritage to identity and human dignity and by including education, participation, and inclusion as important elements of heritage protection. In the monitoring of these treaties, States also embrace the link of these treaties with human rights.19 The conventions, however, do not create human rights to heritage or make explicit references to or further elaborate existing human rights, such as the rights to freedom of expression and religion or the right to education. As noted, the UNESCO Conventions on cultural heritage mainly provide for interstate obligations and do not directly confer rights upon individuals or communities, although they are the beneficiaries. In the human rights instruments discussed in the following section, individuals and communities not merely beneficiaries; they are the subjects of rights. Moreover, international human rights are monitored not by States but by independent committees which also provide important interpretation of these norms.

Contribution to It (26 November 1976) UNESCO Doc 19 C/Resolution, Annex I; UNESCO, Recommendation on the Status of the Artist (adopted 27 October 1980) UNESCO Doc 21C/Resolutions; UNESCO, Declaration of the Principles of International Cultural Co-operation (4 November 1966) UNESCO Doc 14 C/8.I; UNESCO, Declaration on Race and Racial Prejudice (27 November 1978) UNESCO Doc 20 C/18. 19 Yvonne Donders, ‘Cultural Rights and the UNESCO Convention: More than Meets the Eye?’ in Christiaan De Beukelaer, Miikka Pyykkönen, and J. P. Singh (eds), Globalization, Culture and Development: The UNESCO Convention on Cultural Diversity (Palgrave Macmillan 2015) 117–31.

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Cultural Heritage and Human Rights 389

3. Human Rights Instruments and Cultural Heritage As stated, there are no explicit references to cultural heritage in international human rights treaties, and there exists no express international provision containing a right to cultural heritage.20 At the same time, several human rights provisions in international human rights law have an important link with cultural identity and consequently with cultural heritage. Monitoring bodies of the various conventions have elaborated on this link as well and have extended the content of various existing human rights provisions as to include rights to cultural heritage. Human rights treaties are all monitored by treaty monitoring bodies composed of independent experts. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) are supervised by the Human Rights Committee (HRC) and the Committee on Economic, Social and Cultural Rights (ESCR Committee) respectively.21 The HRC and the ESCR Committee have various procedures at their disposal to carry out their monitoring function. The HRC and the ESCR Committee conduct a State reporting procedure. The committees regularly assess reports submitted by States on how they implement and comply with the treaties, including a meeting with representatives of the States Parties. The committees then adopt Concluding Observations on each State Party in which they indicate the positive aspects as well as recommendations for improvement of their implementation and compliance. The committees also have complaints procedures at their disposal. Firstly, there is a mechanism for States Parties to submit a complaint to the HRC or the ESCR Committee about an alleged violation of the respective treaty by another State Party.22 This interstate procedure is an optional procedure to which States have to consent explicitly.23 It 20 There is one explicit reference to ‘heritage’ in art 22(1) of the African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (‘African Charter’): ‘All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.’ This provision does not refer to the cultural heritage of peoples, communities, or individuals but to the common heritage of mankind. 21 The HRC was established in Part IV of the ICCPR arts 28 to 45, which set out the composition and functions and procedures of the HRC. The ICESCR did not contain provisions on a monitoring body, but the ESCR Committee was established by a Resolution of the Economic and Social Council (ECOSOC) 1985/17 of 28 May 1985 to carry out its monitoring functions. 22 ICCPR art 41; ICESCR Optional Protocol art 10. 23 Similarly, States can bring cases against other States before the ICJ if both have accepted the jurisdiction of the ICJ. These cases may also concern alleged violations of human rights treaties. See, for instance the case of LaGrand (Germany v United States of America), judgment of 27 June 2001; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), judgment of 14 February 2002; Avena and Other Mexican Nationals (Mexico v United States of America), judgment of 21 March 2004; Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), judgment of 24 May

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390 Yvonne Donders should, however, be noted that no interstate complaint has ever been brought to the HRC or the ESCR Committee. Secondly, both bodies have a procedure for the submission of individual complaints. These procedures are also optional. One important elem ent of this procedure is that all local remedies have to be exhausted before a complaint can be submitted to the international body. The outcome of the procedure before the HRC and the ESCR Committee is a non-binding view. The individual communication procedure before the ESCR Committee is relatively new and, so far, no complaints concerning cultural heritage have been filed. The HRC has had several cases concerning culture in relation to minorities. The treaty bodies put down their elaboration of provisions in their respective treaties as developed by the reporting procedure and communication procedure in General Comments or General Recommendations. These form non-binding but authoritative interpretations of the treaty norms. The most prominent human rights provisions in relation to cultural heritage are the right to take part in cultural life and the rights of (members of) minorities and Indigenous peoples to enjoy their own culture, practise their own religion, and speak their own language. Other human rights important for cultural heritage are the right to self-determination, the rights to freedom of expression and religion, the right to respect for private life, and the right to education.

3.1 The Right to Take Part in Cultural Life The right to take part in cultural life is incorporated in article 27 of the Universal Declaration of Human Rights (UDHR) as well as in article 15(1)(a) of the ICESCR. This right can also be found in other international treaties, such as the Convention on the Elimination of All Forms of Racial Discrimination (1965, ICERD, art 5), the Convention on the Elimination of All Forms of Discrimination Against Women (1979, CEDAW, art 13), the Convention on the Rights of the Child (1989, CRC, art 31) and the Convention on the Rights of Migrant Workers and Their Families (1990, ICRMW, art 43). The scope and normative content of this right are determined by the definition of its two main concepts of ‘participation’ and ‘cultural life’. Interestingly, both have been elaborated in an increasingly broad manner, comparable to the development of the notion of cultural heritage. Article 27 UDHR contains the right of everyone ‘freely to participate in the cultural life of the community’. The drafting process shows that States at that time had a narrow concept of culture in mind, reflecting mainly arts, literature, and education. The 2007; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), judgment of 26 February 2007; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), judgment of 20 July 2012. Pending cases: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia); Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation).

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Cultural Heritage and Human Rights 391 background of article 27(1) was the fact that culture used to be something of a small elite, in which large parts of the population did not take part. Article 27(1) was considered to be an encouragement to the State to have the masses participate in culture and to make culture available to them. At that time, culture did not refer to a specific lifestyle or to the tradition of a community, nor to aspects such as language or religion. Most likely the term ‘community’ referred to the national community or the nation state and, maybe, to the world community. In any case, it did not refer to the situation of minorities, Indigenous peoples, or other local or regional communities, and there was no sign of multiculturalism or pluralism.24 The scope and normative content of article 27 have, however, developed over the years, and the intentions of the drafting States may no longer be the most relevant tool of interpretation. Human rights instruments are living instruments, and subsequent practice, such as the adoption of the ICESCR including article 15(1)a, is a crucial element in the elaboration and interpretation of this right.25 Article 15(1)a ICESCR is formulated differently from article 27 UDHR, namely as the right of everyone to take part in cultural life. The references to freedom and to the community were left out. The concept of ‘cultural life’ has evolved in accordance with the development of the concept of culture. During the drafting process of the ICESCR, the concept of culture was considered in its classic and elitist form as including arts, literature, theatre, and museums. Similar to article 27 UDHR, the State played the central role of making this ‘high culture’ available to the masses. Over the years, the concept of culture, and thus of cultural life, expanded. The ESCR Committee began to broaden the concept of culture. In the first guidelines for the State reporting procedure, it referred to culture in a plural form, including popular forms of culture and all manifestations and expressions—for example, folk music, handicrafts, popular press, television, and radio. The general public was to be more directly involved in cultural affairs. In its General Comment 21 on this provision, adopted in 2009,26 the Committee considers culture in its broadest form as a way of life of a society and, consequently, as a dynamic process apart from its material side and products.27

24 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania Press 1999) 269; Yvonne Donders, ‘Study on the Legal Framework of the Right to Take Part in Cultural Life’ in Yvonne Donders and Vladimir Volodin (eds), Human Rights in Education, Science and Culture: Legal Developments and Challenges (UNESCO 2007) 242–5. 25 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 31. 26 Committee on Economic, Social and Cultural Rights, General Comment No 21, Right to Take Part in Cultural Life (art 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) (21 December 2009) UN Doc E/C.12/GC/21. 27 Donders, ‘Study on the Legal Framework’ (n 24) 246–55; Roger O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ (2004) 53(1) International and Comparative Law Quarterly 189; Rodolfo Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in Asbjorn Eide, Caterina Krause, and Allan Rosas (eds), Economic, Social and Cultural Rights (2nd edn, Martinus Nijhoff 2001); Silberman, ‘Heritage Interpretation and Human Rights’ (n 3) 248–9; Chow, ‘Culture as Collective Memories’ (n 2) 613, 617–24.

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392 Yvonne Donders The ESCR Committee recognizes that culture is a living process that is historical, dynamic, and evolving, relating to the past, present, and future.28 It considers culture further as a broad and dynamic notion, encompassing inter alia, ways of life, language, oral and written literature, music and song, nonverbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environ ments, food, clothing and shelter and the arts, customs and traditions through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view representing their encounter with the external forces affecting their lives. Culture shapes and mirrors the values of well-being and the economic, social and political life of individuals, groups of individuals and communities.29

Although no explicit mention is made of cultural heritage, it appears from this description that cultural heritage, including its material and non-material aspects, is an essential part of cultural life. The Committee indicates four essential conditions for the right to take part in cultural life to be realized, which are also relevant to cultural heritage. It maintains that cultural goods and services should be: sufficiently available or accessible (physically, financially, in terms of information, and without discrimination); acceptable (including consultations to be held with individuals and communities concerned); adaptable (flexible); and appropriate or adequate.30 Here, also, no direct reference is made to cultural heritage, but it is clear that cultural goods and services relate directly to cultural heritage. According to the Committee, the notion of participation, or taking part, has several dimensions or components, including participation in, access to, and contribution to cultural life. From a more passive perspective, to take part means to have access to cultural life and to enjoy its benefits, without any form of discrimination. It also means to have access to information concerning cultural life. Taking part in cultural life implies that cultural life be protected and preserved, including its cultural and artistic heritage. From a more active perspective, taking part in cultural life implies the right and freedom to choose and to change a cultural affiliation and to freely contribute to cultural life and its development by means of creative or other activities. Taking an active part in cultural life also implies the right to take part in the decision-making process concerning cultural life. All these aspects of participation, access, enjoyment, and contribution are 28 Committee on Economic, Social and Cultural Rights, General Comment No 21 (n 26), para 11. 29 Ibid, para 13. 30 Ibid, para 16. This so-called A-scheme is well-known in relation to economic, social, and cultural rights. It was most extensively elaborated by the late Professor Katarina Tomasevski, Special Rapporteur on the Right to Education, in her preliminary report; see Commission on Human Rights, Preliminary report of the Special Rapporteur on the Right to Education, Katarina Tomasevski, submitted in accordance with Human Rights Commission resolution 1998/33 (13 January 1999) UN Doc E/CN.4/1999/49. The Committee on Economic, Social and Cultural Rights has used it in all subsequent General Comments on economic, social, and cultural rights.

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Cultural Heritage and Human Rights 393 closely related.31 In short, the elaboration of the right to take part in cultural life by the ESCR Committee implies various rights related to access to, enjoyment of, and participation in cultural heritage. The link with cultural heritage is also confirmed in the obligations that States have under this provision. The Committee maintained, for instance, that the obligation to respect the right to take part in cultural life implies the adoption of specific measures ‘aimed at achieving respect for the right of everyone, individually or in association with others or within a community or group . . . to have access to their own cultural and linguistic heritage and to that of others’.32 The Committee places special emphasis on cultural heritage of minorities and Indigenous peoples. States parties should respect free access by minorities to their own culture and heritage and should be able to freely exercise their cultural identity and practices. States parties must also respect the rights of Indigenous peoples to their culture and heritage, in particular by maintaining and strengthening the spiritual relationship with their ancestral lands, which are indispensable to their cultural life.33 More broadly the Committee maintains that States Parties are required to: (a) Respect and protect cultural heritage in all its forms, in times of war and peace, and natural disasters; Cultural heritage must be preserved, developed, enriched and transmitted to future generations as a record of human experience and aspirations, in order to encourage creativity in all its diversity and to inspire a genuine dialogue between cultures. Such obligations include the care, preservation and restoration of historical sites, monuments, works of art and literary works, among others. (b) Respect and protect cultural heritage of all groups and communities, in particular the most disadvantaged and marginalized individuals and groups, in economic development and environmental policies and programmes.34

In the first paragraph, the Committee refers to ‘human experience’, but it seems to place emphasis on the protection of the material or tangible aspects of cultural heritage, such as sites, monuments, and art works. The second paragraph refers more generally to cultural heritage of groups and communities, with special attention required for vulnerable groups. However, in the section on implementation of the right to take part in cultural life at national level, the Committee is clear in stating that States Parties should go beyond the material aspects of culture (such as museums, libraries, theatres, cinemas, monuments and heritage sites) and adopt policies, programmes and proactive measures that also promote effective access by all to intangible cultural goods (such as language, knowledge and traditions).35

31 Ibid, para 15; Donders, ‘Study on the Legal Framework’ (n 24); Chow, ‘Culture as Collective Memories’ (n 2) 620. 32 Committee on Economic, Social and Cultural Rights, General Comment No 21 (n 26) para 49(d). 33 Ibid. 34 Ibid, para 50. 35 Ibid, para 70.

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394 Yvonne Donders Although the use of the term ‘goods’ in relation to the intangible is somewhat confusing, the broad approach towards cultural heritage is clear. Article 15(2) ICESCR contains the positive obligation of States to take measures for the conservation, development, and diffusion of culture. States should not only promote popular participation in culture in general but should also actively support the accessibility of cultural activities and heritage to the widest possible audience. The obligation to conserve, develop, and diffuse culture entails State protection, preservation, and promotion of cultural heritage. This implies, in particular, the protection of monuments, sites, cultural property, and museums. It also implies protection of traditional culture and folklore, or crafts, including active support for the study, promotion, and diffusion of these activities, including, for example, the circulation of educational and cultural materials. States parties are required to take appropriate legislative, administrative, judicial, budgetary, promotional, and other measures aimed at the full realization of rights related to cultural heritage and at improving the conditions under which cultural heri tage rights can be enjoyed. An important starting point is the ratification of relevant international treaties, including human rights treaties and the UNESCO and regional instruments on cultural heritage, and their transformation or inclusion in national laws and regulations. States should further develop and adopt policies to implement these laws and establish, maintain, and support institutional infrastructures for cultural heritage. The ESCR Committee identified several specific obligations to fulfil under the right to take part in cultural life that are relevant to the promotion and protection of cultural heritage. For example, States are obliged to adopt policies that enable people of different cultural communities to choose freely their way of life and to engage freely and without discrimination in their own cultural practices and the practices of others.36 States are also obliged to develop programmes and policies to preserve and restore cultural heri tage and to guarantee access for all, without discrimination, to museums, libraries, cin emas, and theatres and to cultural activities, services, and events.37 States should not merely adopt policies that protect and promote cultural diversity and that facilitate access to a broad and diversified range of cultural expressions; they should also set up an institutional framework and cultural infrastructure and support cultural institutions necessary for the implementation of such policies.38 This also means granting financial or other assistance to cultural actors, including artists, and public and private cultural organizations, engaged in creative activities.39 Since rights to cultural heritage also imply active participation in the decision-making process on cultural heritage, States should ensure that individuals and communities can take part in general political processes. States should, for example, ensure representation of different communities in relevant decision-making bodies, consult them, or have them participate actively in matters of their concern. States also have international obligations, mainly to foster assistance and cooperation to protect and promote cultural heritage. This could imply facilitating and promoting cultural exchanges but also 36 Ibid, para 52(d).

37 Ibid, para 54.

38 Ibid, para 52(a).

39 Ibid, para 52(d).

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Cultural Heritage and Human Rights 395 intellectual or financial support to States that have difficulties in protecting cultural heritage. Furthermore, in drafting new international agreements, for example on trade, States should take the right to access to cultural heritage into account and ensure this right is respected. The Committee identified several core obligations to ensure the satisfaction of minimum essential levels of the right to take part in cultural life. In relation to cultural heritage, core obligations include the obligation to take legislative and any other necessary steps to guarantee non-discrimination and gender equality in the enjoyment of rights to access and participation in cultural heritage and to eliminate any barriers or obstacles that inhibit or restrict access to cultural heritage. Another important core obligation is to allow and encourage the participation of individuals and communities in the design and implementation of laws and policies that affect them. According to the Committee, States Parties should obtain free, prior, and informed consent of individuals and communities when the preservation of cultural resources related to their way of life and cultural expressions is at risk.40

3.2 The Right to Enjoy Culture for Minorities and Indigenous Peoples Cultural rights, including rights related to cultural heritage, have special relevance for cultural communities including ethnic, religious, and linguistic minorities and Indigenous peoples. Article 27 ICCPR contains the right of members of minorities to enjoy their own culture, practise their religion, and speak their own language. It follows from the practice of the HRC that Indigenous peoples can also invoke this right.41 In several cases, and in its General Comment on article 27, the HRC has endorsed a broad and dynamic interpretation of the concept of ‘culture’ as a way of life, including, for example, economic activities such as fishing and hunting.42 Since these economic activities often concern land, the issue of land rights has gained importance under art icle 27 ICCPR, even though it is not explicitly referred to in this provision. Culture is further considered a dynamic notion. The fact that, for example, modern equipment or techniques are used for handicraft, music performances, or traditional economic

40 Ibid, para 55(e). 41 Human Rights Committee, General Comment No 23: The Rights of Minorities (art 27) (8 April 1994) CCPR/C/21/Rev.1/Add.5, paras 3.2, 7. 42 Ibid, para 7; Human Rights Committee: Kitok v Sweden (27 July 1988) Comm No 170/1984 and 197/1985; Ilmari Länsman et al v Finland (8 November 1994) Comm No 511/1992; Jouni E Länsman et al v Finland (30 October 1996) Comm No 671/1995; Apirana Mahuika et al v New Zealand (27 October 2000) Comm No. 547/1993; Kalevi Paadar, Eero Paadar and his family, Veijo Paadar, and Kari Alatorvinen and his family v Finland (5 June 2014) Comm No 2102/2011; Yvonne Donders, ‘The Cultural Dimension of Economic Activities in International Human Rights Jurisprudence’ in Valentina Vadi and Bruno de Witte (eds), Culture and International Economic Law (Routledge 2015) 33–49.

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396 Yvonne Donders activities such as reindeer hunting or fishing does not make them less an issue of culture, to be protected under this provision.43 In its General Comment, the HRC clearly links the right to enjoy culture to the survival and dynamic development of the cultural, religious, and social identity of minorities, without explicitly mentioning cultural heritage.44 The link with identity, however, confirms that cultural heritage forms part of culture and that culture cannot be enjoyed without the protection, promotion, and enjoyment of cultural heritage. In its jurisprudence, the HRC established a set of criteria to determine whether specific State interference with article 27 constitutes a violation of this provision. In general, State measures which interfere with the enjoyment of culture must have a reasonable and objective justification and be compatible with the other provisions in the ICCPR. Furthermore, the State has the obligation to consult the community involved and to limit the impact of the measures taken.45 Article 27 ICCPR formed the inspiration for the adoption in 1992 of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. This Declaration, which is not legally binding, does not include a specific reference to cultural heritage. Apart from repeating the wording of article 27 ICCPR, (elements of) the protection of cultural heritage can be found in several provisions but more as an obligation upon States and not a substantive right of individuals or minorities. Article (4)2, for instance, includes that States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions, and customs. The only explicit references to cultural heritage in a human rights instrument can be found in the UN Declaration on the Rights of Indigenous Peoples, adopted in 2007. This Declaration includes in article 31 that: 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and 43 See, for example, the following cases of the Human Rights Committee: Ilmari Länsman et al v Finland (8 November 1994) Comm No 511/1992; Jouni E Länsman et al v Finland (30 October 1996) Comm No 671/1995; Apirana Mahuika et al v New Zealand (27 October 2000) Comm No. 547/1993; Kalevi Paadar, Eero Paadar and his family, Veijo Paadar, and Kari Alatorvinen and his family v Finland (5 June 2014) Comm No 2102/2011. 44 Human Rights Committee, General Comment No. 23 (n 41), para 9. 45 Human Rights Committee: Ivan Kitok v Sweden (27 July 1988) Comm No 197/1985; Bernard Ominayak, Chief of the Lubicon Lake Band v Canada (26 March 1990) Comm No 167/1984; Ilmari Länsman (n 7); Jouni E Länsman (n 7); Mahuika et al v New Zealand (27 October 2000) Comm. No. 547/1993; Angela Poma Poma v Peru (24 April 2009) Comm No 1457/2006; Kalevi Paadar, Eero Paadar and his family, Veijo Paadar, and Kari Alatorvinen and his family v Finland (5 June 2014) Comm No 2102/2011.

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Cultural Heritage and Human Rights 397 develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

This provision contains several rights to cultural heritage for Indigenous peoples, as well as protection of their intellectual property. It also reaffirms the importance of actively involving Indigenous peoples in all phases of the process of cultural heritage. The Declaration is not legally binding but has been a source of inspiration for Indigenous peoples to plead for their rights.46

3.3 Other Human Rights Relevant to Cultural Heritage Many other human rights norms in international law have an important cultural dimension, and the advancement of these norms is also linked to cultural heritage, in particular the intangible elements of cultural heritage. For example, the right to freedom of expression (art 19 ICCPR, art 13 ICRMW) is essential for the development and maintenance of tangible and intangible cultural heritage, because much of cultural heritage is based on forms of expression, physical (for example, painting, writing) or oral (for example, singing, performing). The HRC maintains that freedom of expression includes cultural and artistic expression, teaching, and religious discourse.47 As stated in Section 2.1, language is recognized as an important vehicle for intangible cultural heritage. This is also recognized in relation to freedom of expression. The HRC stated that freedom of expression protects all forms of expression and the means of their dissemination, including spoken, written, and sign language, as well as non-verbal expression such as images and objects of art. Means of expression include books, newspapers, pamphlets, posters, banners, dress, and legal submissions.48 Similarly, the right to information (art 19 ICCPR) plays an important role in relation to access to cultural heritage. People need to be informed of the existence and background of cultural heritage and of the possibilities to access it or participate in it. Much cultural heritage has an important religious connotation. Consequently, the right to freedom of thought and religion (art 18 ICCPR, art 12 ICRMW) has relevance 46 The African Court on Human and Peoples’ Rights and the Inter-American Court of Human Rights have in several cases referred to the UN Declaration on the Rights of Indigenous Peoples. See, for instance, African Commission on Human and Peoples’ Rights v Kenya (ACHPR 26 May 2017) paras 127–31; Kalina and Lokono Peoples v Surinam (IACtHR 25 November 2015) para 122. 47 Human Rights Committee, General Comment No 34, art 19: Freedoms of opinion and expression (12 September 2011) CCPR/C/GC/34, para 11. The HRC bases this on its jurisprudence; see Ross v Canada (18 October 2000) Comm No 736/97; Shin v Republic of Korea (16 March 2004) Comm No 926/2000. 48 Human Rights Committee, General Comment No 34 (n 47), para 12, referring to the following jurisprudence; Kivenmaa v Finland (31 March 1994) Comm No 412/1990; Shin (n 48); Fernando v Sri Lanka (31 March 2005) Comm No 1189/2003; Shchetoko et al v Belarus (11 July 2006) Comm No 1009/2001; Zundel v Canada (20 March 2007) Comm No 1341/2005.

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398 Yvonne Donders for the promotion and protection of cultural heritage. Similarly, the right to respect for private life has shown to be of relevance in relation to the protection of traditional lifestyles.49 The right to education is another example. The rights to cultural heritage can be better enjoyed if people are educated and informed. At the same time, education contributes to the promotion and protection of (access to) cultural heritage. Education has been identified as an important part of the right to take part in cultural life. The ESCR Committee has maintained that the right to take part in cultural life includes the right to know and understand one’s own culture as well as the culture of others through education and information. It also implies the right to receive quality education and training with due regard for cultural identity and to learn about forms of expression. Rights can be enjoyed individually or jointly with others or as a community.50 States have positive obligations to ensure cultural education, including education and awareness-raising on the need to respect cultural heritage and cultural diversity.51 The right to education is also explicitly included in articles 13 and 14 ICESCR, article 10 CEDAW, and article 30 ICRMW. Article 13 ICESCR explicitly indicates that this right should promote understanding and tolerance among all nations and all racial, ethnic, and religious groups. Also important in relation to cultural heritage is the right of peoples to self-determination (art 1 ICCPR and ICESCR). This right includes that peoples have the right to freely pursue their cultural development and to freely dispose of their natural wealth and resources, which has a clear link with cultural heritage. The right of self-determination is one of the most controversial norms among the human rights instruments. It broadly contains an external and an internal dimension.52 The external dimension of self-determination means a people’s capacity to free itself from colonial or

49 The European Court of Human Rights has dealt with cases concerning cultural heritage under the right to property (art 1 Prot. 1): Catholic Archdiocese of Alba Iulia v Romania App No 33003/03 (ECtHR 25 September 2012); Beyeler v Italy App no 33202/96 (ECtHR 5 January 2000); Debelianovi v Bulgaria App No 61951/00 (ECtHR 29 March 2007); Kozacioglu v Turkije App No 2334/03 (ECtHR 19 February 2009) and under the right to respect for private life (art 8 ECHR): Sargsyan v Azerbeidzjan App No 40167/06 (ECtHR16 June 2015); Ahunbay v Turkey App No 6080/0629 (ECtHR 29 January 2019). For an analysis of several other cases related to religion and private life, see Yvonne Donders, ‘Do Cultural Diversity and Human Rights make a Good Match?’ (2010) 61(199) International Social Science Journal 15, 27–9; Lixinski, Intangible Cultural Heritage (n 3) 162–70. 50 Committee on Economic, Social and Cultural Rights, General Comment No 21 (n 26), para 15(b). 51 Ibid, paras 53, 54(c). 52 On the division between the external and internal dimension of self-determination, see, inter alia, S. J. Anaya, Indigenous Peoples in International Law (Oxford University Press 2004); P. Aikio and M. Scheinin (eds), Operationalising the Right of Indigenous Peoples to Self-Determination, (Institute for Human Rights, Åbo Akademi University 2000); K. Henrard, Devising An Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-determination (Martinus Nijhoff 2000); H. Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (revised ed, University of Pennsylvania Press, 1996); Christian Walter, Antje von Ungern-Sternberg, and Kavus Abushov (eds), Self-Determination and Secession in International Law (Oxford University Press 2014); Explanatory note concerning the draft declaration on the rights of indi genous peoples, by Erica-Irene Daes, 19 July 1993, UN Doc E/CN.4/Sub.2/1993/26.Add. 1, para. 17 and 19.

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Cultural Heritage and Human Rights 399 racist rule.53 The internal dimension of self-determination implies the presence of a government representing the whole people of a State without distinction and a commitment by that government to respect human rights and freedoms, with a special focus on the rights of peoples and communities. This internal dimension is reflected in the reference in articles 1 ICCPR and ICESCR to the right to freely pursue economic, social, and cultural development. Consequently, the right to internal self-determination includes the right to preserve cultural, ethnic, historical, and territorial identity, in which cultural heritage plays an important role. The HRC has excluded article 1 on the right of self-determination from its individual complaints procedure, since this right is conferred upon peoples, not individuals.54 The HRC has, however, several times indicated the link between self-determination and the right to enjoy culture in article 27.55 The right of Indigenous peoples to self-determination is also included in article 3 of the UN Declaration on the Rights of Indigenous Peoples in similar language as article 1. Article 4 of the Declaration adds the right of Indigenous peoples to autonomy or self-government in matters concerning their internal and local affairs.

3.4 Individual and Collective Rights and Cultural Heritage It may be questioned whether rights related to cultural heritage are individual rights, collective rights, and/or group rights.56 Bearing in mind the background and features of cultural heritage as constructive for the cultural identity of communities and nations, a collective right seems most appropriate. However, there is continuing debate about the possible conflict between individual rights and collective or group rights.

53 This can imply secession and the establishment of a new sovereign and independent State, the free association or integration with another independent State, or any other political status freely determined by the people involved. Despite the references to ‘all peoples’ in the Covenants, in practice, the right of external self-determination has been limited to colonial situations or peoples under racist rule. No State has accepted an unconditional right of self-determination for all peoples, and the right of self-determination does not imply a general right to secession, because the principles of national unity and territorial integrity generally prevail over claims of self-determination. See, also, Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States, 24 October 1970, UN Doc A/RES/2625 (XXV), Annex, under the heading ‘The principle of equal rights and self-determination of peoples’. 54 Human Rights Committee, Lubicon Lake Band v Canada, Comm No 167/1984, paras 13.3, 32.1, and 32.2. The HRC does, however, consider claims by individuals submitted collectively, although not under art 1. 55 Human Rights Committee, Apirana Mahuika et al. v New Zealand, Comm No 547/1993, para 9.2. 56 Collective rights are rights for individuals as members of a collective entity, whereas group rights are rights for a group or community as such. Corsin Bisaz, The Concept of Group Right in International Law: Groups as Contested Right-Holders, Subjects and Legal Persons (Martinus Nijhoff 2012); Yvonne Donders, ‘Foundations of Collective Cultural Rights in International Human Rights Law’ in Andrzej Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Brill/Nijhoff 2016).

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400 Yvonne Donders The existing international human rights law framework provides mainly for individual rights. Exceptions are the right of peoples to self-determination (arts 1 ICCPR and ICESCR and arts 3 and 4 UNDRIP) and the right of Indigenous peoples to maintain, control, protect and develop their cultural heritage, traditional knowledge, and trad itional cultural expressions (art 31 UNDRIP). The individual rights in human rights treaties are, however, recognized as having a strong collective dimension. Sometimes the collective dimension is explicit, such as in article 27 ICCPR, according to which the right can be enjoyed ‘in community with others’. Sometimes it is more implicit—for instance, in relation to the right to take part in cultural life. Article 15(1)(a) speaks of the right of ‘everyone’ to take part in cultural life, reflecting that the subject of this right is the individual. However, participation in cultural life has a strong collective connotation. Taking part in cultural life implies the existence of a cultural life linked to a cultural community. In other words, the right to take part in cultural life can only be enjoyed in the context of a cultural collectivity. The ESCR Committee also strongly promotes the collective dimension of the right to take part in cultural life.57

4. A Human Rights Approach to Cultural Heritage Although instruments and norms related to the promotion and protection of cultural heritage and those related to human rights were developed separately, their scope and content overlap, providing for several common issues. Some of these issues affirm the positive and mutually strengthening relationship between cultural heritage and human rights; others reflect certain challenges to this relationship.

4.1 Access, Contribution, Participation, Enjoyment In Section 3, the interdependent concepts of access, contribution, participation, and enjoyment were identified as important to cultural heritage. Access can be defined as the ability to enter, visit, and/or view a place or space, in person or otherwise. However, the concept of ‘access’ in a human rights framework has a broader connotation, linked to inclusion, participation, and development. In fact, access can be considered a precondition to meaningful participation and inclusion. From a human rights perspective, access means the actual ability to enter, visit, and/or view, which implies the facilitation and creation of conditions for access and inclusion, based on non-discrimination and equal opportunities, including special measures for disadvantaged groups.

57 Committee on Economic, Social and Cultural Rights, General Comment No 21 (n 26), para 9.

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Cultural Heritage and Human Rights 401 Access, contribution, participation, and enjoyment also have an important economic dimension, meaning that it should be affordable to all. For instance, excessive (entry) prices for cultural heritage that many people cannot afford may practically prevent them from participating and having access to cultural heritage. Although an entrance fee may be necessary, attention should be paid that price is not an insurmountable obstacle to access and participation. Access to and participation in cultural heritage does not mean an unlimited right for all to visit any site or to have access to every oeuvre whenever one wants. The protection and preservation of these sites and oeuvres needs to be taken into account. A difference in access or participation can, for instance, be made according to the proximity of the individual or community to the cultural heritage involved. For example, a specific Indigenous site may be fully accessible to the Indigenous people involved but not to the general public. Differentiation is possible in access and in participation in the decisionmaking processes according to the particular interest of the group involved, such as originators or source communities who are the custodians of the heritage and keep it alive; individuals and communities who consider the heritage as part of their identity but are not actively involved in its maintenance; scientists and artists; and the general public.58 Nowadays, apart from physical access, other forms of non-physical access should also be considered. Access via Internet and the use of new technologies can make collections of libraries, museums, and cultural sites more widely available and accessible. UNESCO has recognized the importance of heritage in digital form in the Charter on the Preservation of Digital Heritage (2003). In this Charter, particular attention is paid to access to digital heritage, while recognizing the need to find a balance between unlimited access to digital heritage and the right to privacy and intellectual property rights. Article 2 reaffirms that the purpose of preserving digital heritage is to ensure that it remains widely accessible, which implies that there should be no unreasonable restrictions to access to digital heritage materials, in particular those in the public domain. At the same time, sensitive and personal information should be protected from unjustified interference, which means that a fair balance has to be struck between the legitimate rights of creators and other rights holders and the interests of the public to access digital heritage materials. Access, contribution, and participation also imply rights related to participation in the decision-making processes and monitoring procedures, including rights to information and education on the structure and functioning of the legal and policy regime. The determination of what is or what is not cultural heritage is not a matter of fact. It involves a procedure, formal or informal, of identification, selection, and recognition.59 Recognition—whether formal or not—is therefore an important feature of cultural heritage. Cultural heritage can be recognized at the national and/or international level. 58 UN Human Rights Council, Report of the Independent Expert (n 3) 16–17, para 62. 59 William Logan, ‘Closing Pandora’s Box: Human Rights Conundrums in Cultural Heritage Protection’ in Helaine Silverman and D. Fairchild Ruggles (eds), Cultural Heritage and Human Rights (Springer 2007) 34.

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402 Yvonne Donders Important factors in this process is who decides which objects, issues, and expressions are worthwhile preserving and who do or should participate in this process.60 How identification, selection, and recognition take place at national level varies between countries, but it is clear that State authorities are the ones making the final decisions. Recognition of cultural heritage can thus potentially also be a tool for oppression. For instance, cultural heritage may be recognized selectively to force certain cultural communities to integrate or assimilate into mainstream society. Limited access to and/ or exclusion of access may be used as political or social pressure tools. The past can be constructed and reconstructed in a certain way, or emphasis can be placed on particular parts of the past, according to political processes and the will to shape public opinion or to unite or to separate peoples and communities.61 Moreover, controversy and competing claims and interests may be in place. Different communities and/or the State may claim ownership of, interest in, and rights to certain cultural heritage. Economic development or tourism—which also may have large economic value—may be important interests that are not shared by all involved equally. Knowledge, images, and designs can be used without proper authorization or shared benefits.62 A human rights approach to cultural heritage requires close involvement of the cultural communities concerned in the process at all stages of identification, selection, and recognition of cultural heritage. This implies more than mere information or consultation; it entails meaningful participation and, preferably, no decision-making without prior and informed consent of the communities concerned. The right to free, prior, and informed consent is increasingly developed in international law, in particular in relation to land rights for minorities and Indigenous peoples.63 In relation to cultural heritage, it is also a standard rule as part of the inscription procedure under the UNESCO Conventions.64 At the same time it should be kept in mind that power differences also exist within and between communities and that some individuals or groups may not have the same ability to participate as others. Effective participation also requires, therefore, attention to—and, potentially, special measures for—certain vulnerable groups, such as women, children, older persons, persons with disabilities, minorities, migrants, Indigenous peoples, and persons living in poverty.65

60 UN Human Rights Council, Report of the Independent Expert (n 3) 5, para 9. 61 Ibid, 5, para 11; Silverman and Ruggles, ‘Cultural Heritage and Human Rights’ (n 16) 3. 62 UN Human Rights Council, Report of the Independent Expert (n 3) 6, para 12. 63 The obligation to consult the community involved, as it follows from International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 27 ICCPR, was confirmed in the jurisprudence of the Human Rights Committee; see Angela Poma Poma (n 37) 6, para 7. It is also included in the United Nations Declaration on the Rights of Indigenous Peoples (2 October 2007) A/RES/61/295, arts 28, 31. 64 UNESCO, Operational Guidelines to the UNESCO World Cultural and Natural Heritage Convention (January 2008) WHC 08/01, para 64; UNESCO, Operational Directives of the UNESCO Convention on the Safeguarding of Intangible Cultural Heritage, para 79. 65 These groups are also mentioned in Committee on Economic, Social and Cultural Rights, General Comment No 21 (n 26).

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Cultural Heritage and Human Rights 403

4.2 Limitations of Rights and Harmful Cultural Practices Cultural heritage can be a positive force for the strengthening of cultural identity of communities and individuals, but it can also have negative connotations. Cultural heri tage can also reflect ‘the darker side of humanity’.66 Here, human rights again play an important role, this time as a shield against cultural or traditional practices related to cultural heritage that are harmful for individuals or communities. The Universal Declaration on Cultural Diversity and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions clearly state that cultural rights or cultural diversity may not be invoked to infringe upon human rights nor to limit their scope.67 The Convention on Intangible Cultural Heritage includes ‘social practices and rituals’ in its definition of intangible cultural heritage. These practices might be discriminatory or harmful to certain groups—for instance, women. The Convention therefore also includes in article 2(1) that 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 UN Declaration on the Rights of Indigenous Peoples reaffirms in article 34 that Indigenous peoples have the right to promote, develop, and maintain their distinctive customs, spirituality, traditions, procedures, practices, and juridical systems or customs ‘in accordance with international human rights standards’. Article 4 of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities also includes that people should be able to develop and express their culture, traditions, and customs, except where specific practices are in violation of national law and contrary to international standards. Cultural practices are very diverse, which makes it impossible to make general statements about their acceptability in relation to human rights. The scope of their possible conflict with human rights depends on the particular context of the case. In general, cultural practices that are clearly in conflict with human dignity and international human rights norms cannot be justified with a plea for cultural (heritage) rights. While cultural communities have a certain amount of freedom to arrange their internal structure and institutions, they should always guarantee and respect the rights and freedoms of their members, including the right to take part in the decision-making processes that determine and develop the community’s cultural life, as well as the right and freedom to

66 UN Human Rights Council, Report of the Independent Expert (n 3) 5, para 8. 67 UNESCO Declaration on Cultural Diversity’ (2 November 2001) art 4; Convention on the Promotion and Protection of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 UNTS 311, art 2(1).

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404 Yvonne Donders leave the community. They should also respect the rights of their members to participate in society at large—for example, through education, elections, and labour.68 It is clear that changes in cultural practices are most successful if they arise within the cultural community itself and are not imposed from outside. This, however, does not relieve States from the obligation to find ways to promote such changes. The UN Convention on the Elimination of All Forms of Discrimination against Women (1979) imposes upon States a concrete obligation to ‘modify the social and cultural patterns of conduct of men and women’ in order to eliminate ‘prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (art 5(a)). The ESCR Committee also identified that States should take measures to remedy structural forms of discrimination and to take measures to eliminate any form of prejudice against individuals and communities based on their cultural identity.69 Furthermore, the Committee stated that a core part of the right to take part in cultural life is that everyone can engage in their own cultural practices while respecting human rights. It mentions in particular the rights to freedom of thought, belief, and religion, freedom of opinion and expression, the right to use the language of one’s choice, freedom of association and assembly, and the right to education.70 While preferably all rights should be harmonized, it is also possible that rights related to cultural heritage can come into conflict with other rights. For example, the individual right to access to cultural heritage of an individual artist or performer can come in conflict with the collective right to access. Cultural communities may also have competing rights related to cultural heritage. There is also the possibility that rights related to cultural heritage clash with, for instance, property rights or the right to development. And one can also think of the rights of scientists to freely study cultural heritage that can be at odds with the right to access to cultural heritage.71 The situation where different human rights, or the rights of different persons or communities, can be potentially in conflict is not peculiar to cultural rights; many human rights are inherently capable of clashing in certain situations. These situations cannot be solved in practice by rejecting either one of these rights. Nor can one, a priori, privilege one right over the other. It calls for independent evaluation—for example, by independent supervisory bodies, such as courts and treaty bodies—to determine which right prevails over another in a particular situation. At the same time, the enjoyment of human rights, including rights related to cultural heritage, can be limited by States—for instance, to protect the rights of others or more general public interests. These limitations are only justified if they are determined by law, serve a legitimate aim, and are necessary, proportionate, and as unrestrictive as possible. Article 29(2) UDHR outlines this in general terms, and most human rights treaties 68 Donders, ‘Foundations of Collective Rights’ (n 56) 110–11. 69 Committee on Economic, Social and Cultural Rights, General Comment No 21 (n 26), para 52. 70 Ibid, para 55(c). 71 Francioni, ‘Culture, Heritage and Human Rights’ (n 2) 4–5; Lixinski, Intangible Cultural Heritage (n 3) 170–2.

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Cultural Heritage and Human Rights 405 contain limitation clauses, either attached to a particular provision or as single provision covering the whole treaty. An example of the latter is article 4 ICESCR, which states that States Parties may subject the rights in the Covenant to limitations that are determined by law ‘only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. The Committee on ESC Rights has stated that in case of limitations of the right to take part in cultural life, attention should also be paid to standards on limitations of closely related human rights, such as the rights to freedom of expression, religion, and assembly and the right to privacy.72 These rights, included in—for instance—the ICCPR, can also be limited if such limitation measures fulfil the criteria of being provided by law, pursuing a legitimate aim, and being necessary in a democratic society.73 In other words, rights of participation in, access to, or enjoyment of cultural heritage may be limited by States—for example, to prevent the unlimited exercise of these rights seriously endangering the rights of others or of society as a whole. The State is required to balance the different interests in societies, and monitoring bodies assess whether that balancing is properly done.

5. Concluding Remarks This chapter shows that cultural heritage is increasingly seen in international law not merely as an important product or value in itself but also in relation to the construction and preservation of cultural identities and, thereby, of the dignity of peoples, communities, and individuals. This development has enhanced the human rights dimension of cultural heritage, in particular for minorities and Indigenous peoples. Several human rights, including the right to take part in cultural life, the right to enjoy culture, and the right to freedom of expression and assembly, confirm that protection and promotion of cultural heritage is part of human rights and can be considered a precondition for the enjoyment of several human rights norms. Linking cultural heritage with human rights reaffirms the importance of inclusion, participation, and development and aims at expanding people’s choices and capabilities. States are obliged to respect, protect, promote, and fulfil human rights to cultural heritage, whereby the focus should be on the most disadvantaged and excluded in society, as their human rights are most widely denied or left unfulfilled. Human rights to cultural heritage imply that individuals and communities take active part in the whole process of identification, selection, recognition, interpretation, preservation, and development of cultural heritage, as well as in the process of developing and implementing cultural heritage policies, including conflict

72 Committee on Economic, Social and Cultural Rights, General Comment No 21 (n 26), para 19. 73 See, for instance, arts 18(3), 19(3), 21 ICCPR.

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406 Yvonne Donders resolution in case of competing interests. Prior and informed consent is required before alterations to access to cultural heritage take place. Human rights also provide a frame for cultural heritage to shield it from possible negative effects. As shown, rights to cultural heritage cannot always be enjoyed without limitation. They cannot be invoked or interpreted in such a way as to justify the denial or violation of human rights and fundamental freedoms of others. Limitations to human rights, with respect for the principles of equality and non-discrimination, could s afeguard rights to cultural heritage from being misused for the protection of cultural practices that infringe upon human rights. Only sites, objects, expressions, and knowledge that are deemed worth preserving for future generations and that are in line with human dignity and international human rights law should be considered part of cultural heritage rights. Strengthening and maintaining the link between cultural heritage and human rights reflects and reaffirms cultural heritage as a value for human dignity and a shift from a sovereignty and State-centric approach to a people’s and peoples’ approach, focusing on a policy of respect and inclusion.

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chapter 18

I n digenous Peopl es a n d Cu ltu r a l Her itage Dalee Sambo Dorough and Siegfried Wiessner

1. Introduction Culture and cultural heritage, including all its creative, spiritual, and material aspects, constitute the foundation upon which Indigenous peoples thrive. Culture provides meaning and identity to collective and individual life. For Indigenous peoples to develop as distinct peoples, conditions for ongoing growth and enrichment of culture must be assured. Nearly all elements that contribute to Indigenous culture are dictated by natural forces and processes that are unique to the environment within which that culture is based. The institutions, languages, spirituality, and other means of communication and life are manifestations of the profound relationship with and dependence upon the environment. There is an inseparable link. Therefore, integrity of the environment and its living resources is central to Indigenous culture. For a long time, Indigenous peoples addressed the matter of ‘cultural integrity’1 in the context of the transformative impact of certain Western religious institutions and their

1 Draft Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere, reprinted in UN Document E/CN.4/Sub.2/476/Add.5, Annex 4 (1981), principle 10, National and Cultural Integrity.

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408 Dalee Sambo Dorough and Siegfried Wiessner ‘civilizing mission’.2 Over time, articulations began to carefully emphasize the varied and rich cultural heritage of Indigenous peoples, reflecting the collective soul of their humanity in the hope that it would reign forever, at least within their own nations and communities. This objective is at the core of international Indigenous-specific human rights norms. It is safe to say that the human rights standard-setting exercise that resulted in the UN Declaration on the Rights of Indigenous Peoples3 (hereinafter UN Declaration) was a recognition by the world community that the existing human rights regime was not fully responsive to the diverse cultural contexts of Indigenous peoples and their distinct status and rights. The world community, through the United Nations and its Member States, recognized that human rights standards that take into account this unique cultural context, as well as additional measures, were needed to promote universal respect for and observance of the human rights of Indigenous peoples, especially their collective human rights. In fact, one might argue that the entire process to establish international human rights standards concerning Indigenous peoples in the form of the UN Declaration was to ultimately safeguard their distinct cultures and cultural heritage. Though achieved a decade ago, damaging impacts continue to threaten the cultures and cultural heritage of Indigenous peoples. There are severe repercussions when the cultures and cultural heritage of Indigenous peoples are not safeguarded—the overall matter essentially pivots on the survival and flourishing of the cultures of Indigenous peoples as distinct peoples. Today, the stakes are even higher. It is not only a matter of safeguarding threatened peoples and their cultural heritage. Rather, the current threats are multiplying and compounded by enormous pharmaceutical and other industrial pressures that may require a different kind of arsenal to ward off this dynamic. From the adverse impacts of climate change to extractive industries to the tenets of the free market economy, there is no rest for Indigenous peoples. And the lack of coordination and coherence of the UN system has allowed Member States to operate at cross-purposes to safeguard their interests rather than the human rights of Indigenous peoples. In this way, culture and the cultural heritage of Indigenous peoples have become a cross-cutting issue—the heart and soul of Indigenous human rights. Hence, there is a need to operationalize a normative framework that genuinely recognizes and respects the distinct status, role, and human rights of Indigenous peoples.

2 S. James Anaya, Indigenous Peoples in International Law (2d edn, Oxford University Press 2004) 31. 3 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, 13 September 2007. For expert commentary on this Declaration and on Indigenous peoples’ rights in general, see ILA Committee on the Rights of Indigenous Peoples, Interim Report to the 74th ILA Conference in The Hague, 15–20 August 2010 (hereafter ‘2010 ILA Interim Report’) and Final Report to the 75th ILA Conference in Sofia, 27–31 August 2012 (hereafter ‘2012 ILA Final Report’), both available at accessed 30 December 2017.

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Indigenous Peoples and Cultural Heritage 409

2. The United Nations Declaration on the Rights of Indigenous Peoples 2.1 The Road towards the Declaration It is important to acknowledge some key turning points at which moments of hope emerged within the halls of the United Nations. On the occasion of a UNESCO Meeting of Experts, both Indigenous and other experts affirmed that [a]n essential part of the cultural heritage of these peoples is their philosophy of life and their experience, knowledge and achievements accumulated throughout history in the cultural, social, political, legal, scientific and technological sphere. They therefore have a right to access to and use, dissemination and transmission of this entire heritage.4

In the same year, 1982, the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities appointed a Working Group on Indigenous Populations with a twofold mandate: (1) to review national developments pertaining to the situation of Indigenous communities; and (2) to develop international standards concerning the rights of Indigenous peoples.5 From its inception, Indigenous peoples were strongly involved in the work of this group.6 Later in 1984, following the affi rmation of the right to self-determination, Indigenous peoples articulated an argument that Indigenous peoples’ cultures are ‘part of the cultural heritage of mankind’,7 essentially signalling their rightful place in the family of nations and that ‘the traditions and customs of Indigenous peoples must be respected by the states, and recognized as a fundamental source of law’.8 Each culture has a dignity and value that must be respected and protected. Moreover, every people has the right and the duty to develop its culture. Indigenous peoples further affirmed their ‘original rights’ to their tangible cultural heritage.9 These same elements were combined and articulated the following year in Geneva, but they were also buttressed by a strong, explicit expression of their right to self-determination and the fact that ‘Indigenous nations and peoples are subjects of international law’.10 4 Declaration of San José, adopted by the UNESCO Meeting of Experts on Ethno-Development and Ethnocide in Latin America, San José, 11 December 1982. UNESCO Document FS 82/2R.32 (1982). 5 ECOSOC Res. 1982/34 of 7 May 1982. 6 See Dalee Sambo Dorough on the history of the UN Declaration in 2010 ILA Interim Report, at 3–5. 7 Declaration of Principles of Indigenous Rights, adopted by the Fourth General Assembly of the World Council of Indigenous Peoples, September 1984 (hereafter Declaration of Principles 1984), reprinted in UN Document E/CN.4/1985/22, Annex 2 (1985). 8 Declaration of Principles 1984, Principle 4. 9 Ibid, Principle 12. 10 Adopted by Indigenous representatives in preparation for the fourth session of the UN Working Group on Indigenous Populations, 1985; later reaffirmed and amended by Indigenous peoples’ representatives in 1987, in preparation for the fifth session of the WGIP. Reprinted in UN Document E/CN.4/ Sub.2/1987/22, Annex 5 (1987).

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410 Dalee Sambo Dorough and Siegfried Wiessner Under the key leadership of Greek diplomat Erica-Irene Daes, the UN Working Group succeeded, in 1993, in submitting a Draft Declaration on the Rights of Indigenous Peoples to the UN Sub-Commission.11 The Sub-Commission adopted this text in 1994 and sent it to the Commission on Human Rights for further consideration.12 In 1995, the Commission appointed a working group of its own, in order to develop a consensus text.13 The trajectory of international norms began to move away from destruction of culture to ownership and control of ‘material’ culture and repatriation as well as the important linkage to lands and sacred sites—tangible elements of Indigenous culture. In addition, the intangible culture of Indigenous peoples gained its expression in what was then article 14 addressing histories, language, oral traditions, place names, philosophy, and the corresponding right and responsibility to transmit the same to future generations.14 Interestingly, the various articles were originally dispersed throughout the initial draft: restitution and return of cultural property was addressed in one article; the right to intellectual property was addressed in the context of economic and social rights; and intellectual and cultural property sourced in the lands and territories of Indigenous peoples were addressed in the then-Part VI of the draft.15 Such formulations were indicative of the interrelated, interdependent, and indivisible rights of Indigenous peoples to their culture and cultural heritage and how it saturates every dimension of Indigenous life and lifeways. This is particularly significant within the preamble of the UN Declaration as well as the intersections between Indigenous knowledge, intellectual property, and the profound spiritual relationship that Indigenous peoples have to their lands, territories, and resources, as affirmed in article 25 of the UN Declaration.16 Furthermore, as the debate over the substance of these rights continued, they became informed by the two-year revision process of ILO Convention No. 107, which resulted in ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO C169) in 1989, including, inter alia, the right to be understood in legal proceedings17 and the intergenerational importance of language.18 As the Commission on Human Rights was transformed into the Human Rights Council, the very second act of the Council was to approve the draft declaration by adopting resolution 1/2 of 29 June 2006. In doing so, the Council adopted without 11 Commission on Human Rights, Report of the Working Group on Indigenous Populations to the S ub-Commission on Prevention of Discrimination and Protection of Minorities on the work of its eleventh session, UN Doc. E/CN.4/Sub.2/1993/29, August 1993. 12 Sub-Commission Resolution 1994/45. 13 Commission on Human Rights Resolution 1995/32. 14 Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995, UN Doc E/CN 4/1998/106 (10 December 1997) at 45. 15 Ibid. 16 UN Declaration, art 25: Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard. 17 Art 12, ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, adopted June 27, 1989, reprinted in 28 ILM 1382 (1989). 18 Art 28(3), ILO Convention No. 169.

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Indigenous Peoples and Cultural Heritage 411 change a joint draft resolution submitted by Peru based on a compromise text proposed by the Chairman of the Working Group, Mr Luis-Enrique Chávez of Peru. The final version of the Declaration was adopted on 13 September 2007 by a landslide affirmative vote of 144 States in the General Assembly. The Governments of all four countries originally opposing the Declaration have now endorsed it; so did abstaining Colombia and Samoa. We have thus arrived at a global consensus on the UN Declaration.19

3. Rights to Cultural Heritage in the UN Declaration The UN Declaration of 13 September 2007 is the most comprehensive international human rights instrument explicitly affirming the rights of Indigenous peoples and is now recognized as achieving a universal consensus on the minimum standards for their ‘survival, dignity and well-being’. In this regard, three preambular paragraphs address their inherent rights to ‘cultures, spiritual traditions and philosophies, especially their rights to their lands, territories and resources’; the linkage between maintaining their cultures is tied to their lands, territories, and resources and how respect for Indigenous knowledge and cultures contributes to ‘sustainable and equitable development and proper management of the environment’. The essence of this instrument is its recognition of ‘indispensable’ collective rights,20 which include self-determination, the preservation and flourishing of cultures, and the protection of Indigenous peoples’ rights to their lands, territories, and resources. Article 3 of the UN Declaration affirms Indigenous peoples’ claim to self-determination broadly as the right to ‘freely determine their political status and freely pursue their economic, social and cultural development’, while article 4 guarantees their ‘right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions’. Indigenous sovereignty is primarily founded upon the aspiration to preserve their inherited ways of life, change those traditions as they see necessary, and ensure that their cultures flourish. This fundamental policy of the UN Declaration is reflected in article 5, which states that ‘Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State’ (emphasis added). The effective protection of Indigenous culture is key to the understanding of the UN Declaration. This goal undergirds, in particular, the prohibition of ‘forced assimilation or destruction of their culture’ in article 8(1), intended to protect Indigenous peoples in 19 Siegfried Wiessner, ‘Re-Enchanting the World: Indigenous Peoples’ Rights as Essential Parts of a Holistic Human Rights Regime’ (2010) 15 UCLA Journal of International & Foreign Affairs 239, 253. 20 Ibid, 254.

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412 Dalee Sambo Dorough and Siegfried Wiessner a manner which is wider in scope than the separate prohibition of genocide against them under general international law, as enunciated in article 7(2). It prohibits their forced removal and relocation (article 10) and upholds their right to practise and revitalize their cultural traditions and customs, including the right to maintain, protect, and develop past, present, and future manifestations of such cultures (article 11); their right to maintain, control, protect, and develop their cultural heritage, traditional knowledge, and cultural expressions (article 31); and the right to manifest, practise, develop, and teach their spiritual and religious traditions, customs, and ceremonies as well as the restitution and repatriation of ceremonial objects and human remains (article 12). Article 13 guarantees Indigenous peoples the right to ‘revitalize, use, develop and transmit to future generations their histories, languages, oral traditions [and] philosophies’ and obligates States to ‘take effective measures to ensure that this right is protected’. Indigenous peoples’ languages are central to their cultures—an ever more important issue given the accelerating threat of their disappearance. The right to establish and control educational systems and media in their own language and culture also addresses this concern (articles 14, 16). The operative paragraphs thus provide comprehensive yet diverse elements of the role of culture and cultural heritage in the lives of Indigenous individuals and collectivities. Though interrelated with all other provisions, article 31 of the UN Declaration is the main provision addressing Indigenous cultural heritage, dealing with multiple qualities of tangible and intangible cultural heritage, including the affirmation of Indigenous peoples’ rights to genetic resources, traditional knowledge, traditional cultural expressions, and intellectual property: 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional know ledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Equally crucial to the effective protection of Indigenous peoples’ cultures is safeguarding of their lands, territories, and resources. Being ‘Indigenous’ means to live within one’s roots.21 The collective consciousness of Indigenous peoples, often expressed in creation stories or similar sacred tales of their origin, places them since time immemorial at the location of their physical existence. More importantly, their beliefs make remaining 21 Etymologically, the Latin word ‘indigena’ is composed of two words, ‘indi,’ meaning ‘within’ and ‘gen’ or ‘genere’ meaning ‘root’. Longman Dictionary of Contemporary English 724 (3rd edn, Longman 1995).

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Indigenous Peoples and Cultural Heritage 413 upon these lands and within a distinct territory a compelling dictate of faith. Thus, article 25 emphasizes their ‘distinctive spiritual relationship’ with their lands, and article 26 affirms their ‘right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’ (section 1); and their ‘right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired’ (section 2). It also mandates that ‘States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned’ (section 3; see also article 32). Related key guarantees include Indigenous peoples’ rights to participate in decisionmaking in matters which would affect their rights (article 18) and States’ obligations to ‘consult and cooperate in good faith with the indigenous peoples concerned’ to obtain their ‘free, prior and informed consent’ to legislative and administrative decisions that ‘may affect them’ (articles 19, 32(2)). There are also rights to the improvement of their social and economic conditions (articles 17, 21, 22, and 24); rights to development (article 23) and international cooperation (articles 36, 39, 41 and 42); treaty rights (article 37); and certain rights to redress and reparations (e.g., articles 8(2), 28). Substantive limits to Indigenous peoples’ autonomy, where stated, are formulated in terms of universal standards of human rights (articles 34, 46(2)). According to article 46(3), the provisions of the UN Declaration shall be interpreted in accordance with ‘principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith’. These principles are intended to serve as an interpretative framework of the UN Declaration and not as a substantive limit to its rights. The 2016 Organization of American States’ American Declaration on the Rights of Indigenous Peoples22 follows a very similar direction. Its linkage to the UN Declaration is expressed in Article XLI: The rights recognized in this Declaration and the United Nations Declaration on the Rights of Indigenous Peoples constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the Americas.

The preamble of the American Declaration places emphasis on the ‘urgent need to respect and promote the inherent rights of indigenous peoples, including their cultures, spiritual traditions, histories and philosophies’, and the instrument underscores ‘that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment’. The operative paragraphs underscore the collective nature of their rights as well as ‘collective action’ in relation to the exercise of all rights, including those specific to culture, cultural identity and rejection of assimilation, education, the Indigenous family, 22 OAS, American Declaration on the Rights of Indigenous Peoples, 15 June 2016, OAS Doc. AG/RES. 2888 (XLVI-O/16).

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414 Dalee Sambo Dorough and Siegfried Wiessner and the protection of cultural heritage and intellectual property, including the right to free, prior, and informed consent. Crucial to the Americas, Article XXVI addresses those Indigenous peoples in voluntary isolation or initial contact and their ‘right to remain in that condition and to live freely and in accordance with their cultures’ and, further, that states shall adopt adequate policies and measures with the knowledge and participation of indigenous peoples and organizations to recognize, respect, and protect the lands, territories, environment, and cultures of these peoples as well as their life, and individual and collective integrity.

4. The Cultural Heritage of Indigenous Peoples: A Holistic Concept In sum, the cultural heritage of Indigenous peoples has to be broadly defined in order to meaningfully safeguard their essential and distinct element of identity. In 2000, the United Nations Sub-Commission on the Promotion and Protection of Human Rights approved the revised United Nations Draft Principles and Guidelines on the Protection of the Heritage of Indigenous People,23 suggesting a comprehensive sui generis regime of protection of Indigenous heritage.24 The concept of ‘heritage’, as the object of protection, was chosen because the alternatives ‘cultural property’ and ‘intellectual property’ were considered inappropriate in the context of Indigenous peoples. First, ‘property’, with its inevitable connotation of individual exclusive right, could not adequately reflect Indigenous peoples’ view of connectedness with their land and attendant community and individual responsibilities. Second, the distinction between ‘cultural’ and ‘intellectual’ property was seen, from the Indigenous perspective, as ‘not very useful’ as it reflected an ‘artificial’ separation of heart and mind. The term ‘heritage’, in contrast, is ‘everything that belongs to the distinct identity of a people’ and ‘includes all expressions of the relationship between the people, their land, and the other living beings and spirits which share the land’.25 23 UN Economic and Social Council (ECOSOC), Commission on Human Rights, Human Rights of Indigenous Peoples: Report of the Seminar on the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People, UN Doc E/CN.4/Sub.2/2000/26, 19 June 2000. A 2000 UN seminar reviewed and revised the original draft principles and guidelines contained in an elaborate research report and study by Erica-Irene A. Daes, Protection of the Heritage of Indigenous People (UN Sales No E 97. XIV.3 1997). 24 Siegfried Wiessner and Marie Battiste, ‘The 2000 Revision of the United Nations Draft Principles and Guidelines on the Protection of the Heritage of Indigenous People’ (2000) 13 St Thomas Law Review 383, 384. 25 Siegfried Wiessner, ‘Culture and the Rights of Indigenous Peoples’ in Ana Vrdoljak (ed), The Cultural Dimension of Human Rights (Oxford University Press 2013) 117, at 136, with references to the Daes study of 1997.

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Indigenous Peoples and Cultural Heritage 415 Importantly, the concept of Indigenous peoples’ heritage was delimited very broadly. In accordance with the earlier draft, it includes all artefacts, cultural expressions such as works of art, music, dance, and ceremonies; traditional knowledge, including scientific, agricultural, medicinal, and other use of flora and fauna; human remains; burial grounds; and sacred sites.26 This comprehensive approach reflects the Indigenous holistic worldview of interconnectedness of all beings and things, material and immaterial. It also provides the backdrop for a coherent policy with respect to the diverse items or elements of Indigenous heritage. As to traditional knowledge, other international organizations and treaty regimes have addressed the phenomenon of dispossession and the need for protection. Since they, however, come at the issue from different angles and with potentially different objectives, such as the protection of biodiversity and the sharing of biodiversity-related knowledge, or the limited purposes of intellectual property regimes, they ‘run, in indigenous eyes, the danger of losing the forest for the trees’.27 The holistic approach of the draft principles and guidelines therefore is, to them, of special appeal. In 2005, an expanded working paper by Yozo Yokota and the Saami Council on the Draft Principles and Guidelines28 retained the broad definition of the heritage of Indigenous peoples. In 2015, the UN Expert Mechanism on the Rights of Indigenous Peoples submitted Advice No. 8 on the cultural heritage of Indigenous peoples.29 The Expert Mechanism agreed with the holistic definition of the cultural heritage of Indigenous peoples as comprising ‘all objects, sites, plants and animal species, customs and practices, expressions, beliefs and knowledge, the nature or use of which has been transmitted from generation to generation, and which are regarded as pertaining to a particular people or its territory’.30 States should adopt the draft Principles and Guidelines for the protection of the heritage of Indigenous peoples as an instrument to protect the cultural heritage of Indigenous peoples.31 Indigenous peoples ‘should be consulted and enabled to actively participate in the whole process of identification, evaluation, classification, interpretation, preservation, safeguarding, monitoring, stewardship and development of their cultural and natural heritage’.32 States have the obligation to seek the free, prior and informed consent of indigenous peoples before adopting measures affecting their cultural or natural heritage. No inscription on lists of the United Nations Educational, Scientific and Cultural Organization (UNESCO) relating to the cultural or natural heritage of indigenous peoples or national lists or registers should be requested or granted without the free, prior and informed consent of the indigenous peoples concerned.33 26 Draft Guideline 13, Report, at 13. 27 Wiessner and Battiste, ‘The 2000 Revision’ (n 24) 388. 28 Expanded Working paper submitted by Yozo Yokota and the Saami Council on the substantive proposals on the draft principles and guidelines for the protection of the heritage of Indigenous peoples, UN Doc E/CN.4/Sub.2/AC.4/2005/3 (21 June 2005). 29 Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage, Study by the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/30/53, 19 August 2015, Annex: Expert Mechanism Advice No. 8 (2015). 30 Ibid, para 2. 31 Ibid, para 11. 32 Ibid, para 10. 33 Ibid, para 12.

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416 Dalee Sambo Dorough and Siegfried Wiessner Also, the inextricable link between culture and land is reaffirmed: States need to legally recognize and protect the right of indigenous peoples to their lands, territories and resources through appropriate measures and policies, including declaring cultural heritage sites, sacred sites and other areas of spiritual significance to indigenous peoples as ‘no-go zones’ for extractive industries, tourism development and other development projects which have not received the free, prior and informed consent of the indigenous peoples concerned.34

5. Indigenous Peoples’ Rights to Their Cultural Heritage in Other International Instruments and Jurisprudence Other international instruments, in particular, general human rights treaty law, may also be used to safeguard and foster the cultural identity and integrity of Indigenous peoples. The International Covenant on Civil and Political Rights (ICCPR)35 provides a key entitlement for Indigenous persons as members of cultural minority groups in article 27, where it affords members of minority groups ‘the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language’. The ICCPR’s monitoring body, the Human Rights Committee (HRC), interprets this norm safeguarding cultural integrity broadly; for Indigenous peoples, it includes essential rights to their traditional lands and resources and the use thereof.36 It has been argued that the establishment and development of Indigenous cultural institutions and systems (that is, Indigenous cultural autonomy) are properly located within the concept of collective cultural rights addressed by provisions such as article 27, and not within the sphere of self-determination addressed by article 1 of the ICCPR, for example—a concept referred to as essentially belonging to the political, or power, domain.37 The better solution, probably, merges both: it leads to an understanding of Indigenous sovereignty38 like that offered by Native American leader and scholar Vine 34 Ibid, para 13. 35 International Covenant on Civil and Political Rights (ICCPR), GA Res 2200A (XXI), UN Doc A/6316, opened for signature 16 December 1966, entered into force 23 March 1976. 36 UN Human Rights Committee (HRC), General Comment No 23: The Rights of Minorities (Art 27), UN Doc CCPR/C/21/Rev.1/Add.5, 8 April 1994, para 7. 37 Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (Cambridge University Press, 2007), 215. 38 For details, see Siegfried Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’ (2008) 41 Vanderbilt Journal of Transnational Law 1141.

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Indigenous Peoples and Cultural Heritage 417 Deloria Jr, as ‘consist[ing] more of a continued cultural integrity than of political p owers, and to the degree that a nation loses its sense of cultural identity, to that degree it suffers a loss of sovereignty’.39 Besides the economic dimension of culture, article 27 has also been applied to the right to use a minority language as an essential part of a group’s culture. It might be impaired by governmental measures in violation of Article 27, as in the case of Rakhim Mavlonov and Shansiy Sa’di v Uzbekistan, where re-registration of a minority newspaper published in the Tajik language was denied.40 Claims of this kind may become relevant in the Indigenous cultural rights context as well.41 Similar to article 27 ICCPR, according to article 15(1)(a) of the International Covenant on Economic and Social Rights (ICESCR),42 ‘the States Parties to the present Covenant recognize the right of everyone to take part in cultural life’.43 The UN Committee for Economic, Social and Cultural Rights (CESCR) has stated that minorities and Indigenous peoples are guaranteed the freedom to practise and promote awareness of their culture,44 defined in both individual and collective dimensions and as reflecting ‘the community’s way of life and thought’.45 More recently, the CESCR affirmed that the ‘strong communal dimension of indigenous peoples’ cultural life is indispensable to their existence, well-being and full development, and includes the right to the lands, ter ritories and resources which they have traditionally owned, occupied or otherwise used or acquired’.46 The Committee on the Elimination of All Forms of Racial Discrimination has promulgated a general recommendation that expounds upon States’ duty of non-discrimination against Indigenous peoples regarding the protection of their culture, their economic and social development, their effective participation, and their rights over lands, territories, and resources.47 State reports are reviewed under these standards 39 Vine Deloria Jr, ‘Self-Determination and the Concept of Sovereignty’ in J. R. Wunder (ed), Native American Sovereignty (Routledge 1996) 118, 123. 40 Rakhim Mavlonov and Shansiy Sa’di v Uzbekistan, No. 1334/2004, UN Doc. CCPR/C/95/D/1334/2004. 41 For a recent discussion, see Allison Dussias, ‘Indigenous Languages under Siege: The Native American Experience’ (2008) 3 Intercultural Human Rights Law Review 5; Douglas A. Kibbee, ‘Minority Language Rights: Historical and Comparative Perspectives’ (2008) 3 Intercultural Human Rights Law Review 79. 42 993 UNTS 3. 43 This right to participate in cultural life has been incorporated in a number of other human rights instruments, as listed by Ana Vrdoljak, ‘Human Rights and Illicit Trade in Cultural Objects’ in Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law (Martinus Nijhoff 2012) 107, at 133. 44 General Discussion on the Right to Take Part in Cultural Life as recognized in Art 15 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/1993/23, Ch VII, para 205, as cited by Ana Vrdoljak Vrdoljak, ‘Self-Determination and Cultural Rights’ in Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Martinus Nijhoff 2008) 41, 58. 45 UN Doc E/1993/23, Ch VII, paras 204, 209, 210, and 213. 46 General Comment No 21: The right of everyone to take part in cultural life (Art 15, para 1 (a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/21, 21 December 2009, para 36. 47 UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation No 23: Indigenous Peoples, UN Doc A/52/18, Annex V, 18 August 1997. It now includes the UN Declaration

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418 Dalee Sambo Dorough and Siegfried Wiessner and individual situations are monitored under the Committee’s early warning/urgent action procedure relating to Indigenous communities and peoples.48 The Convention on the Rights of the Child49 includes express protections of the rights of Indigenous children to their own cultures, religions, and languages. Article 30 reflects virtually verbatim the right granted under article 27 ICCPR, whereas article 29(d) mandates the directing of a child’s education, inter alia, to the development of ‘his or her own cultural identity, language and values’.50 Reviews of State reports under the Convention against Torture, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families have paid special attention to Indigenous persons.51 The important contribution of Indigenous peoples to the cultural diversity of this planet has been recognized in various United Nations Educational, Scientific and Cultural Organization (UNESCO) instruments, spearheaded by the 2001 Declaration on Cultural Diversity.52 UNESCO is an organization that should be particularly dedicated to the protection of the cultural property of Indigenous peoples. Tangible immovable items of Indigenous cultural property may be inscribed in the World Heritage List under the 1972 UNESCO World Heritage Convention,53 albeit in the United States—and, according to the UN Expert Mechanism on the Rights of Indigenous Peoples and the African Commission on Human and Peoples’ Rights, globally—not without the free, prior, and informed consent of the Indigenous peoples.54 Similar involvement of Indigenous peoples in the designation and management of intangible cultural resources is mandated in the 2003 UNESCO Convention for the

in its set of normative standards. Patrick Thornberry, ‘Integrating the UN Declaration on the Rights of Indigenous Peoples into CERD Practice’, in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) 61. 48 Cf CERD, Decision 1 (68): Early Warning and Urgent Action Procedure, UN Doc CERD/C/USA/ DEC/1, 11 April 2006. 49 Convention on the Rights of the Child (CRC), GA Res 44/25, Annex, 44, UN GAOR Supp (No 49) 167, UN Doc A/44/49, 20 November 1989. 50 CRC Art 30 (reflecting Art 27 ICCPR), and Art 29(c) (mandating the directing of a child’s education towards, inter alia, the ‘development of respect for the child’s parents, his or her own cultural identity, language and values’). 51 Siegfried Wiessner, Introductory Note to the UN Declaration on the Rights of Indigenous Peoples, GA Res 61/295, Annex, UN Doc A/RES/61/295, 13 September 2007, available at accessed 30 December 2017. 52 UNESCO Universal Declaration on Cultural Diversity, UNESCO Doc 31C/Res 25, Annex I, 2 November 2001. 53 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, 1972. 54 For details, see Federico Lenzerini, ‘Cultural Rights and Cultural Heritage’ in 2012 ILA Final Report (n 3) 23. See also Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage, Study by the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/30/53, para 38.

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Indigenous Peoples and Cultural Heritage 419 Safeguarding of the Intangible Cultural Heritage (CSICH).55 Still, it is only States that can ultimately determine what will be added to the List of Representative Intangible Heritage of Mankind.56 ‘Intangible cultural heritage’ is defined by article 2 CSICH as: 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 gener ation, is constantly recreated by communities and groups in response to their envir onment, 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.

This definition denotes a key philosophical difference between the approach taken by the World Heritage Convention and the Intangible Heritage Convention: while tangible heritage is seen to deserve international protection in light of its ‘outstanding universal value’—that is, it is objectively determined—intangible cultural heritage adds to the defi nition the self-recognition of its manifestations as part of the cultural heritage by the communities concerned, or, as Federico Lenzerini put it, the ‘subjective perspective of its creators and bearers, who recognize the heritage concerned as an essential part of their idiosyncratic cultural inheritance, even though it may appear absolutely worthless to external observers’.57 This convention provides potentially broad protection for Indigenous cultural heritage but has attracted criticism for its weak implementation scheme, leading to a call for effective intangible cultural heritage safeguarding by inter national human rights bodies.58 Of interest for Indigenous peoples is also the 2005 Convention for the Protection of the Diversity of Cultural Expression.59 Its guiding principles include the ‘protection and 55 2012 ILA Final Report (n 3), 24–5. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, UNESCO Doc MISC/2003/CLT/CH/14, 17 October 2003. See also Federico Lenzerini, ‘Intangible Cultural Heritage: The Living Culture of Peoples’ (2011) 22 European Journal of International Law 101. 56 ‘The Convention . . . leaves to the states, and not the communities, the faculty of determining which manifestations of heritage should be inventoried and protected, both at the national and, most import antly, at the international level, through the List of Representative Intangible Heritage of Mankind. . . . As states are the only ones which can nominate manifestations of heritage for the list, it is very easy to see that states will prefer those manifestations of heritage that are not politically controversial.’ Lucas Lixinski, ‘Selecting Heritage: The Interplay of Art, Politics and Identity’ (2011) 22 European Journal of International Law 81, 82. An Indigenous people’s heritage can, however, not be listed without its free, prior, and informed consent: Lenzerini, ‘Cultural Rights and Cultural Heritage’ 2012 ILA Final Report (n 3) 25. 57 Lenzerini, ‘Intangible Cultural Heritage’ (n 55) 108. 58 Ibid, 115. 59 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, UNESCO Doc CLT-2005/CONVENTION DIVERSITE-CULT REV, 20 October 2005. For a critical assessment, see Beat Graber, ‘The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO?’ (2006) 9 Journal of International Economic Law 553.

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420 Dalee Sambo Dorough and Siegfried Wiessner promotion of the diversity of cultural expression’ and the ‘recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples’.60 Its objectives include: ‘to encourage dialogue among cultures with a view to ensuring wider and balanced cultural exchanges in the world in favour of intercultural respect and a culture of peace’; and ‘to foster interculturality in order to develop cultural interaction in the spirit of building bridges among peoples’.61 ‘Interculturality’ is defined as ‘the existence and equitable interaction of diverse cultures and the possibility of generating shared cultural expressions through dialogue and mutual respect’.62 In addition, Indigenous peoples are specifically protected if their cultural heritage is stolen or illegally exported. According to article 5(3)(d) of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,63 a court or other competent authority of a State Party must order the return of an illegally exported cultural object if the requesting State establishes that the removal of the object from its territory significantly impairs ‘the traditional or ritual use of the object by a tribal or Indigenous community’. Also, where the object was created by Indigenous communities for their traditional use, it shall be returned to that community.64 Like the UN Declaration, the 1989 ILO Indigenous and Tribal Peoples Convention (ILO C169) refers to culture and cultural heritage in both its preambular paragraphs and operative articles. Many of the provisions affirmed within ILO C169 are synonymous to those of the UN Declaration. However, in some areas the linkage to labour, employment, and ‘new conditions of life and work’ are emphasized. Significantly, the understanding of the term ‘territories’ within the ILO C169 was carried forward by Indigenous peoples into the specific context of the UN Declaration. ILO C169 articulates ‘the special importance for the cultures and spiritual values’ in a comprehensive fashion and elaborates upon the definition of the term ‘lands’: 1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship. 2. The use of the term lands in Articles 15 and 16 shall include the concept of terri tories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.65

60 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, art 2. 61 Ibid, arts 1(c) and (d). 62 Ibid, art 4(8). 63 34 ILM 1322. 64 34 ILM 1322, art 7(2). See also Vrdoljak (n 44) 122. For details, see Lenzerini, ‘Cultural Rights and Cultural Heritage’ (n 3) 21. 65 Art 13, ILO C169.

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Indigenous Peoples and Cultural Heritage 421

6. Indigenous Peoples’ Rights to Their Cultural Heritage in Customary International Law 6.1 State Practice and Opinio Juris Global comparative research on State practice and opinio juris over a period of five years in the late 1990s reached certain conclusions about the content of newly formed customary international law regarding the rights and status of Indigenous peoples. The worldwide Indigenous renascence had led to significant changes in constitutions, statutes, regulations, case law, and other authoritative and controlling statements and practices of States that emerged around substantial Indigenous populations. These changes included the recognition of Indigenous peoples’ rights to preserve their distinct identity and dignity and to govern their own affairs—be they ‘tribal sovereigns’ in the United States, the resguardos in Colombia, or Inuit in Labrador. This move towards recognition of Indigenous self-determination was accompanied by an affirmation of native communities’ title to the territories they traditionally used or occupied. In many countries, domestic law now mandates a practice that would have been unthinkable only a few years ago: the demarcation and registration of First Nations’ title to the lands of their ancestors. Indigenous people achieved this dramatic victory through several means: a peace treaty in Guatemala, constitutional and statutory changes in countries such as Brazil, and modifications of the common law in Australia and other States. Indigenous culture, language, and tradition are increasingly inculcated and celebrated. Treaties of the distant past are being honoured, and modern treaties and agreements are fast becoming the preferred mode of interaction between Indigenous communities and the descendants of the former conquering elites. A close analysis of State practice and opinio juris of the specially affected States at the end of the last century could only conclude that customary international law was not only emerging but had arisen and included Indigenous peoples’ rights to cultural integrity, autonomy, and their traditional lands.66 Other scholars reviewed this evidence and largely concurred in the result.67 66 Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal 57, 127, concluding, as to the content of customary international law: ‘First, indigenous peoples are entitled to maintain and develop their distinct cultural identity, their spirituality, their language, and their traditional ways of life. Second, they hold the right to political, economic and social self-determination, including a wide range of autonomy and the maintenance and strengthening of their own system of justice. Third, indigenous peoples have a right to demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used. Fourth, governments are to honor and faithfully observe their treaty commitments to indigenous nations.’ 67 S. J. Anaya, Indigenous Peoples in International Law (2nd edn, Oxford University Press 2004) 49–72; S. James Anaya and Robert A. Williams, Jr, ‘The Protection of Indigenous Peoples’ Rights over Lands and

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422 Dalee Sambo Dorough and Siegfried Wiessner The Inter-American Commission on Human Rights made the key step from the global research effort to a practical application of those conclusions to the international legal status of Indigenous peoples. Referring to this study and the opinions of other international legal scholars to argue for a new principle of customary international law,68 the Inter-American Commission submitted the case of an Indigenous group in the rainforest of Nicaragua to the Inter-American Court of Human Rights. The tribunal, in its celebrated Awas Tingni judgment of 31 August 2001,69 affirmed the existence of an Indigenous people’s collective right to its land. Other decisions in the same vein followed.70 The decisions of the Inter-American Court of Human Rights broke new ground as they radically reinterpreted Article 21 of the American Convention, the right to property—a provision, like all the other guarantees of the document, originally focused on rights of individuals. Such a radical reinterpretation of the treaty can only be based on a significant shift in the normative expectations of the States. It is most conceivable that the evidence for such a shift is found in the same material that has been adduced to prove customary international law: pertinent State practice and opinio juris. Upon such analysis, on 18 October 2007, Chief Justice A. O. Conteh of the Belize Supreme Court concluded: ‘Treaty obligations aside, it is my considered view that both customary international law and general international law would require that Belize respect the rights of its indigenous people to their lands and resources’.71

Natural Resources under the Inter-American Human Rights System’ (2001) 14 Harvard Human Rights Journal 33; Chidi Oguamanam, ‘Indigenous Peoples and International Law: The Making of a Regime’ (2004) 30 Queen’s Law Journal 348. For a concurring analysis of Indigenous land rights under customary international law and UNDRIP, see Sarah M. Stevenson, ‘Indigenous Land Rights and the Declaration on the Rights of Indigenous Peoples: Implications for Maori Land Claims in New Zealand’ (2008) 32 Fordham International Law Journal 298. A recent monograph on the protection of groups in inter national law also concluded that ‘there is sufficient proof of State practice and opinio juris among States to suggest the existence of a right to autonomy for indigenous peoples in international law’: Nicola Wenzel, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Springer 2008) 508. See also Marc Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) 20 European Journal of International Law 111, 116. But see also Alexandra Xanthaki, ‘Indigenous Rights in International Law Over the Last 10 Years and Future Developments’ (2009) 10 Melbourne Journal of International Law 27. 68 ‘Final Written Arguments of the Inter-American Commission on Human Rights before the InterAmerican Court of Human Rights in the Case of Mayagna (Sumo) Indigenous Community of Awas Tingni Against the Republic of Nicaragua’ (2002) 19 Arizona Journal of International & Comparative Law 327, 349. 69 Awas Tingni Community v Nicaragua, IACtHR (2001) Series C, No 79, 31 August 2001, paras 148–9. 70 See e.g. Moiwana Village v Suriname, IACtHR (2005) Series C, No 124, 15 June 2005; Yakye Axa Indigenous Community v Paraguay, IACtHR (2005) Series C, No 125, 17 June 2005; Sawhoyamaxa Indigenous Community v Paraguay, IACtHR (2006) Series C, No 146, 29 March 2006; Saramaka People v Suriname, IACtHR (2007) Series C, No 172, 28 November 2007; Kaliña and Lokono Peoples v Suriname, IACtHR (2015) Series C, No. 309, 25 November 2015, with instructive comment by Lucas Lixinski, ‘The Case of the Kaliña and Lokono Peoples v. Suriname’ (2017) 111 American Journal of International Law 147. 71 Aurelio Cal v Attorney General of Belize, Supreme Court of Belize, Judgment, 18 October 2007, para 127, available at accessed 29 June 2013.

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Indigenous Peoples and Cultural Heritage 423 The related claim of Indigenous peoples to self-determination, now recognized as a customary international law right, is essentially founded upon the aspiration to preserve their inherited ways of life, change those traditions as they see necessary, and make their cultures flourish. That goal drives the claim for independent decision-making as to the structures and functions of decision-making within the Indigenous community.

6.2 The International Law Association and ILA Resolution No 5/2012 As the rights and status of Indigenous peoples was a novel field to investigate, and in order to clarify authoritatively, through updated and in-depth research, the content of international law in this field, the International Law Association (ILA) at its 72nd Biennial Meeting in Toronto established a Committee on the Rights of Indigenous Peoples. The Committee on the Rights of Indigenous Peoples was given the task of writing an authoritative commentary on Indigenous peoples’ rights, including, as stated later, the meaning of the 2007 UN Declaration. In its final composition, the Committee featured no fewer than thirty expert members from all inhabited continents.72 The ILA Committee on the Rights of Indigenous Peoples’ 2010 Interim Report updated the search for State practice and opinio juris and independently reached, with ever more examples of domestic and international practice, many of the results arrived at earlier, including the finding of customary international law encompassing the right to the recognition and preservation of cultural identity; the right to traditional lands and natural resources; and the right to reparation and redress for the wrongs suffered.73 That research was completed and brought up to date in the Final Report of the ILA as submitted to the 75th ILA Biennial Meeting in Sofia.74 72 For a list of all members, see www.ila-hq.org/index.php/committees, accessed 15 January 2018. The original Chair of the Committee was S. James Anaya, a noted authority in the field. In 2008, Professor Anaya was appointed UN Special Rapporteur on the Rights of Indigenous Peoples. In this position, he could no longer lead the Committee, and he resigned. At the 73rd ILA Biennial Meeting in Rio de Janeiro the same year, Professor Wiessner was appointed Chair of this Committee, upon nomination by Professor Anaya. The Committee then established ten subcommittees dealing with distinct themes such as the legal nature of the Declaration and its rights, the definition vel non of Indigenous peoples, the right to self-determination and autonomy, the rights to cultural identity, education, and the media, the rights to traditional lands, including free, prior, and informed consent, treaty rights, and the right to development. 73 For detailed research, see the chapter by the Committee’s Rapporteur, University of Siena Professor Federico Lenzerini, ‘The Rights of Indigenous Peoples under Customary International Law’ 2010 ILA Interim Report (n 3) 43–52, and 2012 ILA Final Report (n 3) 28–9. 74 The Rapporteur integrated work done at an intersessional workshop at the European University Institute in Florence, Italy, and combined subcommittee reports in a 52-page interim report for the ILA’s 74th Biennial Meeting in The Hague. After another intersessional meeting conducted at the University of Anchorage in Alaska in August 2011, at the invitation of Inuit Committee member Dalee Sambo Dorough, the final report of the committee and a resolution for the ILA’s 75th Biennial Meeting in Sofia was prepared. The final report supplemented the interim report of 2010.

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424 Dalee Sambo Dorough and Siegfried Wiessner The package of both interim and final report plus the resolution were adopted at the Open Session of the Committee on 28 August 2012, with all ILA members present in the room voting in favour of it, save one abstention. Resolution No 5/2012 was formally adopted at the final session of the Sofia Conference two days later. This resolution is historic. Not only does it recognize collective human rights,75 but it also specifies a number of rights, essentially culture-based, that have become part and parcel of customary international law. These include: (1) The right to self-determination to the extent it is recognized under international law.76 Indigenous peoples have the same right as all other peoples in this respect, no less.77 (2) The right to autonomy, the right to internal and local self-government as laid down in Article 4 of the UN Declaration,78 includes, inter alia, the right of an Indigenous people to continue its structures of leadership and traditions, commonly designated as their customary law.79 In its generality and global reach, this specific right of Indigenous peoples under international law is unprecedented.80 This autonomy can take many forms; as with every provision in the UN Declaration and the general law of indigenous peoples it has to be interpreted 75 ILA Resolution No 5/2012, Conclusion No 1: ‘Indigenous peoples are holders of collective human rights aimed at ensuring the preservation and transmission to future generations of their cultural identity and distinctiveness’. For the essentiality of collective rights to safeguarding indigenous culture, see Siegfried Wiessner, ‘Human Rights and Cultural Identity: The Case of Indigenous Peoples’ (2018) 12 Diritti Umani e Diritto Internazionale 333. 76 ILA Resolution No 5/2012, Conclusion No 4: ‘States must comply with the obligation—consistently with customary and applicable conventional international law—to recognize, respect, protect, fulfil and promote the right of indigenous peoples to self-determination, conceived as the right to decide their political status and to determine what their future will be, in compliance with relevant rules of inter national law and the principles of equality and non-discrimination.’ 77 Jon M. Van Dyke, ‘Self-Determination’ 2010 ILA Interim Report (n 3) 10 (‘In this and other selfdetermination-related respects, indigenous peoples must be exactly considered as all other peoples’). 78 ILA Resolution No 5/2012, Conclusion No 5: ‘States must also comply—according to customary and applicable conventional international law—with the obligation to recognize and promote the right of indigenous peoples to autonomy or self-government, which translates into a number of prerogatives necessary in order to secure the preservation and transmission to future generations of their cultural identity and distinctiveness. These prerogatives include, inter alia, the right to participate in national decision-making with respect to decisions that may affect them, the right to be consulted with respect to any project that may affect them and the related right that projects significantly impacting their rights and ways of life are not carried out without their prior, free and informed consent, as well as the right to regulate autonomously their internal affairs according to their own customary laws and to establish, maintain and develop their own legal and political institutions.’ 79 It helps here to understand law, in line with policy-oriented jurisprudence, as a process of authoritative and controlling decision within any community, be it territorial or personal. W. Michael Reisman, Siegfried Wiessner, and Andrew R. Willard, ‘The New Haven School: A Brief Introduction’ (2007) 32 Yale Journal of International Law 587, 591–2. 80 There have been a number of minority rights arrangements under specific treaty regimes, especially after World War I, but no such general legal right of a group under international law has been recognized before. Domestic law, on the other hand, knows of many such arrangements, which created, inter alia, the basis for the customary international law conclusion.

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Indigenous Peoples and Cultural Heritage 425 from its telos—that is, the safeguarding and flourishing of Indigenous peoples’ cultures and traditions.81 As against the rights of individual members, limits to this self-rule of the group are the customary international law of individual human rights as well as rights under treaties the State on whose territory the Indigenous peoples reside has accepted.82 (3) Indigenous peoples’ rights to their cultural identity have to be recognized, respected, protected, and fulfilled by the State.83 The customary international law obligation here does not translate into a general positive right.84 Rather, it is to be seen as a right not to be denied the right to speak and teach their own language, the ever more threatened anchor of their culture. They also have the right to establish schools and media of their own.85 (4) The key culture-based right of Indigenous peoples under customary inter national law translates into a State obligation to ‘recognize, respect, safeguard, promote and fulfil the rights of indigenous peoples to their traditional lands, territories and resources’,86 which includes, in the first place, the demarcation, titling, and equivalent forms of legal recognition of these resources. This right recognizes the conceptually indispensable link of the peoples to the areas with which they have a special, often spiritual, connection. It also recognizes the special role Indigenous peoples have played in the preservation of these lands, making them their trusted guardians. Their use typically was oriented not to exploitation of the resource to the point of exhaustion but to the preservation of those lands for future generations, making them a model for modern environ mental law’s quest for sustainability. Maybe this right is the most consequential one, as it may collide with the interests of other actors in the use of these very lands, sometimes with the national interest.87 81 Siegfried Wiessner, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’ (2011) 22 European Journal of International Law 121, 129. 82 2012 ILA Final Report, 3. 83 ILA Resolution No 5/2012, Conclusion No 6: ‘States are bound to recognize, respect, protect and fulfil indigenous peoples’ cultural identity (in all its elements, including cultural heritage) and to cooperate with them in good faith—through all possible means—in order to ensure its preservation and transmission to future generations.’ 84 2012 ILA Final Report, 15: ‘At the moment . . . the legal evolution occurred in this respect has probably not yet reached the point of leading to the existence of a rule of customary international law dictating a positive State obligation to take all possible measures in order to allow indigenous peoples to preserve their languages and transmit them to future generations. At the same time, it is reasonably indubitable that such an obligation actually exists in negative terms, in the sense that States are bound not to create any obstacles to the efforts and activities carried out by indigenous peoples in order to preserve their own languages as an element of their cultural identity’ (emphasis in original). 85 ILA Resolution No 5/2012, Conclusion No 8: ‘States must recognize the right of indigenous peoples to establish their own educational institutions and media, as well as to provide education to indigenous children in their traditional languages and according to their own traditions. States have the obligation not to interfere with the exercise of these rights.’ For details, see 2012 ILA Final Report, 15. 86 ILA Resolution No 5/2012, Conclusion No 7. 87 For a good analysis, see Valentina Vadi, ‘When Cultures Collide: Foreign Direct Investment, Natural Resources, and Indigenous Heritage in International Investment Law’ (2011) 42 Columbia Human Rights Law Review 797.

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426 Dalee Sambo Dorough and Siegfried Wiessner (5) The right to free, prior, and informed consent to governmental measures affecting Indigenous peoples requires the right of the affected communities to be consulted. Such consultation must include the active participation of Indigenous peoples in the planning of such projects. If a project significantly endangers the very essence of an Indigenous people’s culture, then consent is required, under customary international law.88 (6) Reparations and redress for wrongs are also addressed, with due regard for their proper format, adequacy, and effectiveness.89 UN Special Rapporteur James Anaya, in his enthusiastic endorsement of the ILA report and resolution, wrote that the resolution is ‘highly authoritative’ and may, as intended, assist him and other decision-makers in their work of interpreting, applying, and implementing Indigenous peoples’ rights.90 Earlier, in 2011, the ICSID Arbitral Tribunal in the Grand River Case had referred to the work of the Committee and its interim report in finding that there ‘may well be . . . a principle of customary inter national law requiring governmental authorities to consult indigenous peoples on governmental policies or actions significantly affecting them’.91 Generally, resolutions of the International Law Association, just as those of the International Law Commission, have been recognized as evidence of international law. The Third Restatement of Foreign Relations Law of the United States affirms this characterization,92 as does the leading textbook of international law in Germany. As 88 ‘When the essence of their cultural integrity is at significant risk, obtaining the free, prior and informed consent of the indigenous peoples concerned becomes mandatory.’ 2012 ILA Final Report, 10. 89 ILA Resolution No 5/2012, Conclusion No 10: ‘States must comply with their obligations—under customary and applicable conventional international law—to recognize and fulfil the rights of indigen ous peoples to reparation and redress for wrongs they have suffered, including rights relating to lands taken or damaged without their free, prior and informed consent. Effective mechanisms for redress— established in conjunction with the peoples concerned—must be available and accessible in favour of indigenous peoples. Reparation must be adequate and effective, and, according to the perspective of the indigenous communities concerned, actually capable of repairing the wrongs they have suffered.’ For different ways to effectuate reparations, see Federico Lenzerini (ed), Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford University Press 2009). 90 S. James Anaya, Statement of Endorsement of Committee Final Report and Resolution, at ILA Final Report 2012, 31–2: ‘The committee’s work before you reflects the highest standards of our profession . . . . Given the thorough research undertaken by the committee, the conclusions as formulated in its final report and resolution are highly authoritative. I am confident that, as intended, this expert commentary will reduce confusion and contention over the content and normative status of the provisions of the UN Declaration and of indigenous peoples’ rights in general. It will help me in my work as Special Rapporteur as I endeavor to guide states toward ever closer compliance with the new regime of indigenous peoples’ human rights. The commentary will be available to practitioners and advocates, governments, courts and tribunals, academics and indigenous organizations, to draw on and refer to in dealing with the important issues that concern indigenous peoples. Accordingly, it will be a hallmark of the work of the International Law Association in the new environment of the values-based international law of the 21st century.’ 91 Grand River Enterprises Six Nations, Ltd, et al v United States of America, 12 January 2011, para 210, available at accessed 25 October 2012. 92 American Law Institute, Third Restatement of the Foreign Relations Law of the United States (1987), § 103 Reporters’ Notes No 1.

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Indigenous Peoples and Cultural Heritage 427 Graf Vitzthum stated there, global resolutions of a body as qualified and diverse as the International Law Association are stating a rare consensus among, at times, radically different cultures and value traditions and, thus, should be especially appreciated and valued.93 This is particularly true when, as in this case, they pass not only uncontested but with emphatic support.94 The International Law Commission (ILC) has also most recently accorded such an authoritative status to its own proceedings and those of the ILA in the context of customary international law identification.95 On such firm ground, Resolution No 5/2012 transcends the writings of individual scholars. It reflects general international law on the rights and status of Indigenous peoples. Its substance has come to help complete the circle of protection for the most vulnerable peoples on the face of the Earth. In assisting threatened cultures in their struggle for survival and flourishing, law may approximate its noblest end: to make peace through justice, ever aiming for a public order in which dignity for all is assured.

7. Good Practices Good practices begin with Indigenous peoples themselves, consistent with their right to self-determination, to proactively identify and determine their own priorities for the exercise of their right to culture and other cultural rights, either on their own or in collaboration with others. Some vivid and essential examples can be found in the management and co-management of the resources that they depend upon. Related to actions concerning climate change, impacts such as displacement and relocation of communities provide some examples of good practices. Specifically, in Alaska, through a Port Access Route Study and the high probability of increased vessel traffic, the United States Coast Guard engaged in dialogue with Indigenous coastal communities as both rights-holders and knowledge-holders to identify safe transit lanes for vessels transiting the Bering, Chukchi, and Beaufort Seas. Such collaboration is a win for both parties. Another Arctic-specific example is the fact that Indigenous peoples’ non-governmental organizations hold the status of Permanent Participants to engage directly in the work of 93 W. Graf Vitzthum, ‘Begriff, Geschichte und Quellen des Völkerrechts’ in W. Graf Vitzthum (ed), Völkerrecht (3rd edn, De Gruyter 2004) 72, para 147. 94 Siegfried Wiessner, ‘The State and Indigenous Peoples: The Historic Significance of ILA Resolution No. 5/2012’ in Marten Breuer et al. (eds), Der Staat im Recht. Festschrift für Eckart Klein zum 70. Geburtstag (Duncker & Humblot, 2013) 1357. 95 For the determination of ‘teachings of the most highly qualified publicists of the various nations’ under Article 38(1)(d) of the ICJ Statute, the ILC does not refer to individual scholars but to the collective authority of a diverse and highly qualified community of scholars in the Institut de Droit International and the International Law Association. International Law Commission, Identification of customary international law: Ways and means for making the evidence of customary international law more readily available, Memorandum by the Secretariat, 12 January 2018, UN Doc. A/CN.4/710, paras 72 and 73. See also para 5 of the commentary to draft conclusion 14, Official Records of the General Assembly, Seventyfirst Session, Supplement No. 10 (A/71/10), para 63.

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428 Dalee Sambo Dorough and Siegfried Wiessner the eight-nation soft-law regional organization of the Arctic Council. The central focus of the Arctic Council is environmental protection, and it discusses myriad issues ranging from flora and fauna to Arctic shipping to sustainable development. Their counterpart in the economic sphere, the Arctic Economic Council, also includes Indigenous Permanent Participants. In this way, the voice of Indigenous peoples and their right to determine their own priorities for development have cultural, intellectual, political, and economic influence on matters that will likely impact them throughout the Arctic. Central to the cultural integrity and survival of Arctic Indigenous peoples, in Aboriginal subsistence whaling, as practised by the Inuit in the Russian Far East, Alaska, Canada, and Greenland, long-standing, sophisticated, and collaborative approaches developed between Inuit communities, national governments, and the legal framework of the International Whaling Commission of 1946.96 The systems work in a fashion that recognizes distinct cultural rights and respects the capacity of Indigenous knowledge, governance, and survival. Likewise, for other marine mammal management regimes such as the Eskimo Walrus Commission. Building upon this foundation, Inuit are pursuing establishment of a cross-border regime informed by local, regional, national, and international law and an accompanying mapping initiative as a result of the recommendations of the Pikialasorsuaq Commission. Furthermore, they are completing their own study with the significant use of Indigenous knowledge to advance genuine food security and self-government on their own terms. Considering the recent natural disasters of Hurricanes Katrina, Harvey, and Irma, as well as the destructive spread of wildfires in both Canada and the United States, there is a strong likelihood that such ‘natural disasters’ will increase and continue to have adverse impacts upon the rights and interests of Indigenous peoples. In this regard, another ‘good practice’ is reflected within the Sendai Framework for Disaster Risk Reduction. Specifically, paragraphs 35 and 36, which acknowledge that [w]hile States have the overall responsibility for reducing disaster risk, it is a shared responsibility between Governments and relevant stakeholders. Paragraph 36 (v) Indigenous peoples, through their experience and traditional knowledge, provide an important contribution to the development and implementation of plans and mechanisms, including for early warning.

In this regard, Indigenous peoples have the most knowledge and the most to lose. Therefore, Indigenous governments should not be excluded—for example, First Nations in British Columbia and their own, internal actions of self-determination to safeguard their members in relation to natural disasters and the intersection of their right to free, 96 International Convention for the Regulation of Whaling, 2 December 1946, 62 Stat. 1716; 161 UNTS 72, To protect whale stocks from overfishing, and to coordinate and conduct research on whale populations. The Convention established the International Whaling Commission to carry out its purposes. The Convention operates primarily through schedules that limit the taking of various whale species.

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Indigenous Peoples and Cultural Heritage 429 prior, and informed consent. As both rights-holders and ‘stakeholders’, many determined that it was in their best interest to remain in their communities to protect their family members, homes, and collective assets. All governments must collaborate under such circumstances, including Indigenous governments. Indigenous peoples’ representatives can offer timely, relevant, on-the-ground information about conditions. In this case, it is advisable that Indigenous governments are front and centre in this effort. Indigenous peoples and their knowledge about conditions and impacts upon their homelands have much to offer, including implementation of plans and early warning, and should not be underestimated. Finally, the significant legal developments at the regional level since 2007, both within the OAS and the African system, are examples of good practice. These regional standards have provided ‘detail and clarity’97 and, in addition, have ‘cross-pollinated one another in a productive judicial dialogue’,98 overall providing greater meaning and specificity to international Indigenous human rights standards. The respective Commissions’ use of their corresponding Courts to reinforce their findings is a significant procedural and substantive development in and of itself.99 In addition, Inter-American Commission on Human Rights thematic studies, such as that on Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the InterAmerican Human Rights Systems,100 is a useful, good practice in and of itself. Such a study helps to inform those experts responsible for grappling with these crucial issues. More could be done by the Indigenous mandates to amplify their respective thematic studies to inform policy, the judiciary, legislatures, third parties, and others.

8. Conclusion Though many articles and books have been written about the exploitation of Indigenous peoples’ culture and cultural heritage, from intellectual property to tourism to impacts of foreign investment, we know that more must be done, on an urgent basis, to safeguard

97 Ben Saul, Indigenous Peoples and Human Rights: International and Regional Jurisprudence (Hart 2016). 98 For example, the African Commission use of the Inter American Court’s decision and reasoning in the Saramaka People v Suriname (2005) case to inform the Endorois Welfare Council v Kenya (2010) case concerning an Indigenous community forcibly evicted from traditional lands by Kenya’s creation of a game reserve. 99 Specifically, in the OAS system Garifuna Community of Triunfo de la Cruz and Its Members v Honduras, Case 12.548, IACtHR FILED 21 February 2013; Garifuna Community of Punta Piedra and Its Members v Honduras, IACtHR Application, Case No. 12.761, filed 11 October 2013. 100 Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights Systems, December 2009, OEA/Ser.L/V/II. Doc. 56/09 30 December 2009. Original (in Spanish) at accessed on 29 December 2017.

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430 Dalee Sambo Dorough and Siegfried Wiessner the cultures and cultural heritage of Indigenous peoples. In the meantime, four conclusions may emerge from this brief overview. 1. Indigenous peoples’ rights are essentially culturally grounded and culturally bounded. They are intended to sustain and intensify the colours of the tapestry of global cultural diversity. 2. Indigenous culture and heritage encompass a wide variety of tangible and intangible elements. In order to effectively safeguard them, a comprehensive, holistic definition of Indigenous cultural heritage is needed. 3. The right to self-determination empowers Indigenous peoples to define their identity through their own interpretation, continuation, or modification of their ways of life. 4. Access to and use of their traditional lands, territories, and resources is essential to the survival and flourishing of the cultural heritage of Indigenous peoples. Other manifestations of their culture are to be safeguarded as well, cherishing their traditions and values in the quest for an inclusive world order of human dignity.

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chapter 19

Cu ltu r a l H er itage a n d Wom en Joseph Powderly and Rafael Braga da Silva

1. Introduction While this chapter explores the contours of women’s cultural rights and their embeddedness within fundamental human rights principles, its primary objective is to examine the manner in which women’s cultural rights have been enshrined and incorporated with the framework of international cultural heritage law. Over the course of the past half-century, the women’s rights movement has secured important reforms aimed at realizing the promise of genuine equality and the universality of fundamental human rights norms. Giving substantive voice to the cultural rights of women has been an important feature of the discourse and has led to significant advances in recognizing the intersectionality of the forms of oppression experienced by women, the centrality of women’s agency in exercising their cultural rights, and the dangers of essentialized conceptions of the lived experiences of women. Having explored how the protection of women’s cultural rights has evolved in the context of international human rights law (Section 2), the chapter then turns its attention to assessing the extent to which the cultural rights of women, and the adoption of a gendered perspective, has been taken up in the context of international cultural heritage law (Section 3). Through an examination of the extent to which gender issues are reflected in the drafting and implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, the 1972 World Heritage Convention, and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, as well as the practices and policy initiatives of UNESCO, it is suggested that the advances made in the realization of women’s cultural rights have not yet been fully translated in the context of international cultural

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432 Joseph Powderly and Rafael Braga da Silva heritage law and practice. Indeed, up until relatively recently, international cultural heritage law and practice gave perilously little consideration to gender issues. Modest proposals for what can be done to remedy this are offered in the conclusion to the chapter (Section 4).

2. Women’s Cultural Rights: La Lutte Continue 2.1 Disentangling Culture, Cultural Rights, and Cultural Heritage In scholarship looking at the interconnectedness of cultural heritage, cultural rights, and the broader human rights framework, it is commonly observed that, until relatively recently, cultural rights remained largely unexplored and substantively underdeveloped, particularly when compared with the attention afforded to civil and political rights or economic and social rights.1 In seeking to rationalize this decades-long conceptual and normative neglect, numerous theories and arguments have been advanced relating to individual and sovereign self-determinism, the heated cultural relativist discourse, Cold War politics, and the hermeneutic and epistemological uncertainties that go handin-hand with ‘culture’ as a legal, social, and anthropological category.2 As Asbjørn Eide 1 F. Francioni, ‘Culture, Heritage and Human Rights: An Introduction’ in F. Francioni and M. Scheinin (eds), Cultural Human Rights (Brill 2008) 1; J. Symonides, ‘Cultural Rights: A Neglected Category of Human Rights’ (1998) 158 International Social Science Journal 559, 559. 2 See UNESCO, Cultural Rights as Human Rights (UNESCO 1970) 15–23; B. Leander, Preliminary List of Cultural Rights (Culture and Development Coordination Office 1996); P. Y. S. Chow, Cultural Rights in International Law and Discourse: Contemporary Challenges and Interdisciplinary Perspectives (Brill Nijhoff 2018) 4: ‘[A]nswers to questions as to what culture is, and the theoretical basis for protecting culture, remain obscure. For instance, why are some cultural practices considered protected expressions, and others subject to prohibition? Why are some organised ways of living considered to constitute “distinctive” ways of life worthy of human rights protection while others are not? Why are culture and identity often addressed together when individuals from the same community may have different understandings of what the essence of their tradition is, and therefore of what is worthy of protection’; E. Stamatopoulou, Why Cultural Rights Now? (Carnegie Council for Ethics in International Affairs 2004) available at accessed 23 July 2019: ‘Globalization and polarization, the North–South tension, the culturalization of political life and rhetoric, migration and racism, cultural relativism and identity politics, peace and security, the huge economic interests invested in current international intellectual property regimes and the “dialogue among civilizations”, the World Conference against Racism, Racial Discrimination, Xenophobia and related intolerance and the post-September 11 era and the impact of terrorism on human rights, constitute the political chessboard on which cultural rights are played or neglected today.’ See also E. Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights (Martinus Nijhoff 2007).

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Cultural Heritage and Women 433 remarks, ‘“[c]ultural rights” derive from the word “culture”, an overworked concept with little semantic precision’.3 In recent times, the obliqueness of cultural rights has subsided somewhat, helped in part by related efforts within the international legal sphere to advance the safeguarding and protection of cultural heritage. As a category of rights, cultural rights continue to expand in human rights law and practice, such that, as Pok Yin Chow suggests, ‘analysing the scope and content of each and every right which could be said to form part of the category of cultural rights may do more to obscure than to clarify’.4 Great multi- and interdisciplinary effort has been expended in courageous (if perhaps misguided) attempts to succinctly capture the stable elements of an accepted notion of ‘culture’ and the individual and collective components of the rights that attend to it. Trite as it may seem, ‘culture’ and cultural rights are inherently fuzzy, contested notions that carry multiple meanings and embrace both objective and subjective dimensions.5 In attempts to add a modicum of clarity to the character and tentative scope of cultural rights, legal scholars have offered various classifications of both culture and ‘cultural rights’. For example, Roger O’Keefe, in wrestling with the understanding to be given to the concept under article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), suggests a deconstructed, three-pronged conception of culture: ‘culture’ in the highbrow, elitist sense (art, literature, classical music, theatre, etc.); a pluralist or popular notion of ‘culture’ incorporating diverse everyday means of expression and creativity (popular music, television and radio, sports, etc.); and, finally, ‘culture’ as understood through an anthropological lens—that is, as ‘a way of life’.6 This simple categorization, while useful in understanding the boundaries of article 15, is commendable but far from satisfying in a sociological and anthropological sense. However, it may ultimately be entirely misguided to attempt to define ‘culture’ for the purposes of the elucidation of cultural rights.7 Any definition of culture in the legal context must retain a deliberate fluidity in order to capture its amorphous, multifaceted,

3 A Eide, ‘Cultural Rights as Individual Human Rights’ in A. Eide et al. (eds), Economic, Social and Cultural Rights: A Textbook (2nd edn, Martinus Nijhoff 2001) 289. 4 Chow, Cultural Rights in International Law and Discourse (n 2) 13. See, also, I. Szabo, Cultural Rights (Sijthoff 1974) 108; Y. Dinstein, ‘Cultural Rights’ (1979) Israel Yearbook of Human Rights 58, 74. 5 Chow, Cultural Rights in International Law and Discourse (n 2) 3. See also R. O’Keefe, ‘The “Right to Take Part in Cultural Life” Under Article 15 of the ICESCR’ (1998) 47 International and Comparative Law Quarterly 904, 905: ‘any neat classification of a notion as nuanced as culture can never hope to do it justice’. 6 O’Keefe, ‘The “Right to Take Part in Cultural Life” ’ (n 5) 905. An alternative three-pronged definition is offered by anthropologist Rodolfo Stavenhagen, who identifies the categories of ‘culture as capital’ (accounting for the entire corpus of material culture), ‘culture as creativity’ (relating to artistic and scientific creativity), and ‘culture . . . as the sum total of all material and spiritual activities and products of a given social group that distinguishes it from other social groups’. R. Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in H. Niec (ed), Cultural Rights and Wrongs (UNESCO Publishing and Institute of Art and Law 1998) 1–20. 7 Chow, Cultural Rights in International Law and Discourse (n 2) 29.

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434 Joseph Powderly and Rafael Braga da Silva and transformative character.8 Culture is not, after all, an immobile expression of human individual and communal lives and, therefore, changes accordingly in flows of creation, preservation, transmission, and contestation of (in)tangible cultural heritage. The deliberate avoidance of a categorical, contained definition of culture was explicitly endorsed in the first report of the Special Rapporteur in the Field of Cultural Rights, stating that the adoption of such a definition was ‘not necessary, and may be inappropriate’9 in defining the scope of her mandate. Instead, guidance was to be sought from the variety of hard and soft law sources that have offered working definitions. In particular, the Special Rapporteur relied on the definitions included in the preamble to the Universal Declaration on Cultural Diversity,10 General Comment No 21 on the right to take part in cultural life adopted by the Committee on Economic, Social and Cultural Rights (CESCR) in 2009,11 and article 2(a) of the Fribourg Declaration on Cultural Rights.12 As the Special Rapporteur pointed out, these definitions illustrate ‘that culture can be understood as a product, as a process and as a way of life’ and that it goes beyond reductive understandings of ‘ethnicity, language and religion’.13 This position finds support in General Comment No 21, which views culture as ‘a broad, inclusive concept encompassing all manifestations of human existence. Article 15(1)(a)’s invocation of the

8 UN Committee on Economic, Social and Cultural Rights, General Comment No 21: Right of Everyone to Take Part in Cultural Life (art 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights), 21 December 2009, UN Doc E/C.12/GC/21 (hereafter ‘UN CESCR, General Coment No 21’), para 10: ‘Various definitions of “culture” have been postulated in the past and others may arise in the future. All of them, however, refer to the multifaceted content implicit in the concept of culture.’ 9 UN Human Rights Council, Report of the Independent Expert in the Field of Cultural Rights, Ms Farida Shaheed, Submitted Pursuant to Resolution 10/23 of the Human Rights Council, 22 March 2010, UN Doc A/HRC/14/36 (hereafter, ‘Independent Expert Report 2010’), para 5. 10 Observatory of Diversity and Cultural Rights, Organisation Internationale de la Francophonie and UNESCO, Fribourg Declaration on Cultural Rights, 7 May 2007 (hereafer ‘Fribourg Declaration on Cultural Rights’), Preamble: ‘Reaffirming that culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs.’ 11 UN CESCR, General Comment No 21 (n 8) para 13: ‘The Committee considers that culture for the purpose of implementing article 15(1)(a), encompasses, inter alia, ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter, and the arts, customs and traditions through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view representing their encounter with the external forces affecting their lives. Culture shapes and mirrors the values of well-being and economic, social and political life of individuals, groups of individuals and communities.’ 12 Fribourg Declaration on Cultural Rights (n 10), art 2: ‘The term “culture” covers those values, beliefs, convictions, languages, knowledge and the arts, traditions, institutions and ways of life through which a person or a group expresses their humanity and the meanings that they give to their existence and to their development.’ 13 UN Human Rights Council, ‘Report of the Independent Expert in the Field of Cultural Rights, Ms Farida Shaheed, Submitted Pursuant to Resolution 10/23 of the Human Rights Council’ (21 December 2009) UN Doc A/HRC/14/36 (hereafter ‘Independent Expert Report 2009’) para 5.

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Cultural Heritage and Women 435 expression ‘cultural life’ is an explicit reference to culture as a living process, historical, dynamic and evolving, with a past, a present and a future.’14 The rights attaching to manifestations of culture belie comprehensive, simple categorization by virtue of their interconnectedness with, and bolstering of, a host of related rights and freedoms.15 Central in this respect is the relationship between cultural rights and notions of humanity, human dignity, and individual and collective identity.16 For the purpose of this chapter, and indeed this Handbook generally, it is important to understand the relationship between cultural rights and cultural heritage. If cultural rights are conceived as the individual and collective rights of peoples to continuously develop and express their humanity, cultural heritage pertains to those expressions, whether tangible or intangible, and in the process of their protection, preservation, transmission, and communication of such individual and collective expression. In the words of the Special Rapporteur, ‘[c]ultural heritage is to be understood as resources enabling the cultural identification and development processes of individuals and communities which they, implicitly or explicitly, wish to transmit to future generations’.17 The dynamic character of cultural heritage is reflected in the manner in which the definition of cultural heritage has evolved in an international legal context over the course of the past fifty years or so. As this Handbook attests, the development of international cultural heritage law has been consciously driven by recognition of the need to account for the diverse nature of heritage as it relates to all individuals and communities, especially marginalized and indigenous communities. As such, international instruments (alongside supporting regional counterparts) emphasize the indivisibility of rights and obligations pertaining to the constantly evolving and interconnected manifestations of tangible, intangible, and natural cultural heritage. The increased sophistication of international law’s under standing of cultural heritage is illustrative of the recognition of the intimate link between 14 UN CESCR, General Comment No 21 (n 8), para 12. 15 Independent Expert Report 2010 (n 9), para 11: ‘It must be stressed that cultural rights are so closely interconnected with other human rights that it is sometimes difficult to draw a clear line between cultural and other rights.’ That said, the Independent Expert goes on to identify a non-exhaustive list of explicit and interrelated cultural rights, including: art 27 of the Universal Declaration of Human Rights and art 15(1)(a), (b), and (c) of the International Covenant on Economic, Social and Cultural Rights on the rights to take part and participate in cultural life; the right to enjoy the benefits of scientific progress; and the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he or she is the author; arts 13 and 14 of the ICESCR and arts 28 and 29 of the Convention on the Rights of the Child, relating to the right to education. Note was also taken of art 27 of the ICCPR; the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; the United Nations Declaration on the Rights of Indigenous Peoples; ILO Convention No 169, Concerning Indigenous and Tribal Peoples in Independent Countries; art 26 of the Declaration on the Rights of Indigenous Peoples; the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families. 16 Independent Expert Report 2009 (n 13), paras 3 and 9. 17 UN Human Rights Council, ‘Report of the Independent Expert in the Field of Cultural Rights, Ms Farida Shaheed, Submitted Pursuant to Resolution 10/23 of the Human Rights Council’ (21 March 2011) UN Doc A/HRC/17/38 (hereafter ‘Independent Expert Report 2011’) para 6.

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436 Joseph Powderly and Rafael Braga da Silva cultural heritage and cultural identity.18 Individual and collective rights as they relate to cultural heritage defy simple classification. In this respect, the right to take part in cultural life, the link between individual and collective identity, is set forth by article 27(1) of the Universal Declaration of Human Rights19 and further developed in article 15(1)(a) of the ICESCR, which provides for the right of everyone to take part in cultural life. The CESCR’s General Comment No 21 identifies three elements of the right—participation in, access to, and contribution to cultural life—as well as five conditions necessary for the realization of the right: availability, accessibility, acceptability, adaptability, and appropriateness.20 In this regard, the Special Rapporteur has stated that ‘[t]he right to participate in cultural life implies that individuals and communities have access to and enjoy cultural heritages that are meaningful to them, and that their freedom to continuously (re)create cultural heritage and transmit it to future generations should be protected’.21 Article 27 of the ICCPR specifically protects the rights of minorities to enjoy their own culture, to profess and practise their own religion, and to use their own language. Related and supplementary provisions are found in numerous instruments, many of which emphasize principles of non-discrimination and equal treatment.22 The International Bill of Rights, therefore, provides a minimum set of cultural rights that apply both individually and collectively to all peoples. However, this chapter is not concerned with basic, generally applicable rights and obligations pertaining to culture. They merely provide context and set the scene for the unpacking of the contours of women’s cultural rights and the exploration of their embeddedness within fundamental human rights principles and the manner in which they are reflected in international cultural heritage law.

2.2 Securing Women’s Cultural Rights: Universality, Cultural Diversity, and Non-discrimination While the individual and collective components of cultural rights continue to evolve in practice and scholarship, a number of foundational principles critical to the realization 18 Ibid, paras 20 and 21. See, also, the UNESCO Declaration on the Intentional Destruction of Cultural Heritage (adopted by the 32nd Session of the General Conference, Paris, 17 July 2003) Doc 32 C/25: ‘cultural heritage is an important component of the cultural identity of communities, groups and indi viduals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’. 19 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (hereafter ‘UDHR’), art 27(1). 20 UN CESCR, General Comment No 21 (n 8), para 15. 21 Independent Expert Report 2011 (n 17), para 50. 22 See, for example, the International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 21 December 1965, entered into force 4 January 1969) UNTS 660, art 5(e)(vi): ‘The right to equal participation in cultural activities’. See UN CESCR, General Comment No 21 (n 8), para 3 for further examples.

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Cultural Heritage and Women 437 of women’s cultural rights have crystallized—namely, the universality of cultural rights and their interaction with notions relating to respect for cultural diversity, and their observation pursuant to the principles of equality and non-discrimination.23 The 2009 UNESCO World Report states: Recognition of cultural diversity grounds the universality of human rights in the realities of our societies by drawing attention to their appropriation by all individuals who can identify these rights with a sense of ownership, regardless of language, tradition and location. In the same vein, the fact that these rights and freedoms are meant to be exercised in a wide variety of cultural environments by no means implies that universal norms can be relativized in terms of their application.24

This statement reiterates the more general language of the 1993 Vienna Declaration and Programme of Action which provides that, ‘all human rights are universal, indivisible, and interdependent and interrelated . . . While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems to promote and protect all human rights’.25 General Comment No 21 institutes that States’ ‘obligations to respect and protect freedoms, cultural heritage and diversity are interconnected’. States are required to: ‘[r]espect and protect cultural heritage in all its forms, in times of war and peace, and natural disasters . . . [r]espect and protect cultural heritage of all groups and communities, in particular the most marginalized individuals and groups . . . [and] [r]espect and protect the cultural protections of indigenous peoples, including their traditional knowledge, natural medicines, folklore, rituals, and other forms of expression’.26 The universality of cultural rights has been the focus of sustained attention before the UN treaty bodies and in the work of the Special Rapporteur in the Field of Cultural Rights. For example, in a recent report the Special Rapporteur noted that ‘[c]ultural rights are a vital component of universality, and universality is 23 See Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted on 20 October 2005, entered into force on 18 March 2007) UNES Doc CLT.2005/Convention Diversite-Cult Rev.2, Preamble: ‘Affirming that cultural diversity is a defining characteristic of humanity . . . Conscious that cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all . . . Celebrating the importance of cultural diversity for the full realization of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognized instruments . . . Emphasizing the importance of culture for social cohesion in general, and in particular its potential for the enhancement of the status and role of women in society’ (original emphasis). Art 2(1): ‘Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.’ 24 UNESCO, UNESCO World Report: Investing in Cultural Diversity and Intercultural Dialogue (UNESCO 2009) 225. 25 UN General Assembly, Vienna Declaration and Programme of Action (12 July 1993) UN Doc A/ CONF.157/23, para 5. 26 UN CESCR, General Comment No 21 (n 8), para 50.

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438 Joseph Powderly and Rafael Braga da Silva essential to defend the foundations of cultural rights: the flourishing of cultural diversity, cultural mixing and openness, and the right of everyone to take part in a dynamic cultural life without discrimination’.27 In highlighting the relationship between universality and cultural diversity, particular care has been taken to emphasize that the safeguarding and promotion of cultural diversity are in no way synonymous with cultural relativist justifications of human rights violations. Instead, there is also the recognition that not all cultural practices are in keeping with human rights standards.28 The balance between the protection of cultural rights and compliance with human rights standards, which revolves around the issue of universality versus relativity of the latter, has a fixed fulcrum that informs their interpretation. The principles of non-discrimination and equal treatment are central to any discussion of the cultural rights of women. Article 13(c) of the Convention on the Elimination of Discrimination Against Women (CEDAW) expressly recognizes the equal right of women to participate in all aspects of cultural life.29 General Comment No 21 makes clear that article 15(1)(a) is being interpreted in light of articles 2(2)30 and 331 of the Covenant:32 ‘no one shall be discriminated against because he or she chooses to belong, or not to belong, to a given cultural community or group, or to practise or not to practise a particular cultural activity. Likewise, no one shall be excluded from access to cultural practices, goods and services.’33 The General Comment suggests that recognition of the inherent value of cultural diversity is an important contributing factor along the road to equal treatment and non-discrimination. In this regard, the Special Rapporteur has remarked that ‘respect for cultural rights and cultural diversity, without discrimination and in accordance with international standards and as interpreted by human rights bodies, is a core aspect of implementing universality’.34 27 UN General Assembly, Universality, Cultural Diversity and Cultural Rights (22 July 2018) UN Doc A/73/227, para 3. 28 Independent Expert Report 2011 (n 17), para 74. 29 Convention on the Elimination of Discrimination Against Women (opened for signature 18 December 1979, entered into force 3 September 1981) UNTS 1249 (hereafter ‘CEDAW’) art 13(c): ‘States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular . . . The right to participate in recreational activities, sports and all aspects of cultural life.’ 30 International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, entered into force 3 January 1976) UNTS 993 (hereafter ‘ICESCR’) art 2(2): ‘the rights enunciated in the . . . Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political opinion, national or social origin, property, birth or other status’ (emphasis added). 31 ICESCR, art 3: States Parties ‘undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights’. 32 UN CESCR, General Comment No 21 (n 8), para 21: ‘Article 2, paragraph 2, and article 3 of the Covenant prohibit any discrimination in the exercise of the right of everyone to take part in cultural life on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Interpretative guidance is also found in arts 1(3) and 55 of the Charter, and art 2(1) of the UDHR. 33 Ibid, para 22. 34 UN General Assembly, ‘Universality, Cultural Diversity and Cultural Rights’ (n 27), para 11.

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Cultural Heritage and Women 439 General Comment No 20 addressing the principle of non-discrimination in the c ontext of economic, social, and cultural rights (i.e., article 2(2) of the Covenant) is emphatic in declaring that non-discrimination—understood as ‘any distinction, exclusion, restriction or preference or other differential treatment . . . which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of Covenant rights’—is an ‘immediate and cross-cutting obligation’.35 With regards to discrimination on the grounds of ‘sex’, General Comment No 20 makes clear that for the CESCR this ground of discrimination is not limited in a simplistic, binary, biological sense but rather should be understood as incorporating understandings of the ‘social construction of gender stereotypes, prejudices, and expected roles, which have created obstacles to the equal fulfilment of economic, social and cultural rights’.36 General Comment No 16 on the equal right of men and women to economic, social, and cultural rights elaborates that [g]ender affects the equal right of men and women to the enjoyment of their rights. Gender refers to cultural expectations and assumptions about the behaviour, attitudes, personality traits, and physical and intellectual capacities of men and women, based solely on their identity as men or women. Gender-based assumptions and expectations generally place women at a disadvantage with respect to substantive enjoyment of rights, such as freedom to act and to be recognized as autonomous, fully capable adults, to participate fully in economic, social and political development, and to make decisions concerning their circumstances and conditions. Gender-based assumptions about economic, social and cultural roles preclude the sharing of responsibility between men and women in all spheres that is necessary to equality.37

The effect of article 3 on the right to cultural life under article 15(1)(a) is to require States to overcome ‘institutional barriers and other obstacles, such as those based on cultural and religious traditions, which prevent women from fully participating in cultural life’ on an equal basis to men.38 35 UN CESCR, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights (art 2, para 2, of the International Covenant on Economic, Social and Cultural Rights) (2 July 2009) UN Doc E/C.12/GC/20 (hereafter ‘UN CESCR, General Comment No 20’) para 7. See, also, UN CESCR, General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights (art 3 of the International Covenant on Economic, Social and Cultural Rights) 4 (11 August 2005) UN Doc E/C.12/2005 (hereafter ‘UN CESCR, General Comment No 16’) paras 3, 11, 16, and 22. 36 UN CESCR, General Comment No 20 (n 35), para 20. 37 UN CESCR, General Comment No 16 (n 35), para 14. 38 Ibid, para 31; See also UN CESCR, General Comment No 21 (n 8), para 25. Also reflected in the Beijing Declaration and Platform for Action (15 September 1995) A/CONF.177/20 (1995) and A/ CONF.177/20/Add.1, paras 12 and 32: ‘[We affirm our commitment to:] The empowerment and advancement of women, including the right to freedom of thought, conscience, religion and belief, thus contributing to the moral, ethical, spiritual and intellectual needs of women and men, individually or in community with others and thereby guaranteeing them the possibility of realizing their full potential in society and shaping their lives in accordance with their own aspirations . . . [We are determined to:]

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440 Joseph Powderly and Rafael Braga da Silva With the establishment of the mandate of the Special Rapporteur in the Field of Cultural Rights in 2009, there has been concerted engagement with the intersecting issues impacting on the full realization of the cultural rights of women. In establishing the post, the Human Rights Council (HRC) was explicit in mandating the adoption of a gender perspective.39 Both holders of the position to date—Farida Shaheed and Karima Bennouna—have placed gender issues at the heart of their activities and outputs. In her first report to the HRC, in which she outlined the parameters of her mandate, Shaheed set out three dimensions of the gender perspective she sought to pursue: the right of women and girls to participate in cultural life regardless of their gender identity; ‘the need to implement cultural rights in a way that is fully respectful of the right of women and girls not to be discriminated against and that upholds all their human rights’; and ‘the contribution of women and girls to the cultural development of communities they belong to’.40 This prioritization of the cultural rights of women is testament to the significant advances secured by the women’s rights movement over the course of the past halfcentury which has emphasized that defending the ‘universality of the rights of women is . . . crucial to any defense of the universality of human rights’.41 Articles 5(a) and 13(c) of CEDAW have been fundamental in efforts aimed at advancing the cultural rights of women. Article 5(a) requires States ‘[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyping roles for men and women’.42 The failure to counter gender stereotypes ‘den[ies] women the autonomy to live their lives according to their own choices and convictions about their personal and unique contribution to sustaining and developing humanity’.43 Article 5 installs equality as a transformative principle capable of countering gender ideology but also ‘the systemic and structural inequality of women’.44 However, as noted by the Special Rapporteur, [d]espite the near universal ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, a “deep schism” between the legal provi sions of equality and women’s lives has persisted across time and cultures, including in the international sphere; women simply do not enjoy the universal human rights Intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion, or disability, or because they are indigenous people.’ 39 Independent Expert Report 2009 (n 13), para 9(e). 40 Independent Expert Report 2010 (n 9), paras 62–4. 41 UN General Assembly, ‘Universality, Cultural Diversity and Cultural Rights’ (n 27), para 22, quoting C. Bunch, ‘Legacy of Vienna: Feminism and Human Rights’, International Expert Conference on Vienna+20, Vienna, 27–28 June 2013. 42 CEDAW (n 29), art 5(a). See, also, CEDAW, General Recommendation No 3: Education and Public Information Campaigns’ (1987) UN Doc A/42/38. 43 M. A. Freeman, C. Chinkin, and B. Rudolf, The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (Oxford University Press 2012) 145. 44 Ibid, 144.

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Cultural Heritage and Women 441 to which they are entitled globally or locally, in the West or the East, the North or the South. The Special Rapporteur is of the view that this is at least partly because women do not enjoy cultural rights.45

As has been outlined, article 15(1)(a) of the ICESCR provides for the equal right of women and men to participate in, have access to, and contribute to cultural life, including the right to access and enjoy tangible and intangible cultural heritage. What these elements of the right to cultural life imply for the cultural rights of women is worth emphasizing. Firstly, women’s right to participate in cultural life relates to freedom of individual identity, and importantly ‘the right not to participate in specific traditions, customs and practices, particularly those that infringe on human rights and dignity’.46 It implies the right of women to create new cultural spaces that have a role in the development of individual and collective identity, to challenge hegemonic, patriarchal seats of power, authority, and discrimination, and subvert gender stereotypes, all free of threats of punishment or violence. Secondly, access relates to the equal right of women and men ‘to know, understand and benefit from the cultural heritage and cultural life of their own communities as well as that of other communities’. It also implies ‘the ability, inter alia, to know, understand, enter, visit, make use of, maintain, exchange and develop cultural heritage’.47 Thirdly, women’s right to contribute to cultural life relates to ‘the ability to use imagination and intellect in both experiencing and producing works and events of one’s own choice: spiritual and material, intellectual and emotional, including in all forms of artistic creativity’.48 Finally, all tangible and natural cultural heritage is inextricably linked to an element of intangible heritage—that is, in the interpretation of what any manifestation may signify. Consequently, from the perspective of cultural rights, perhaps the most crucial aspect relating to cultural heritage for women and girls is not just the right to participate in the preservation or safeguarding of cultural heritage but the right to identify what constitutes cultural heritage and what this signifies. This is a necessary prelude to determining whether particular cultural manifestations should be preserved for transmission to future generations.

2.3 Advancing Women’s Cultural Rights: ‘Negative Practices’, Essentialism, and the Importance of Agency Of the few country visits that have been completed by the Special Rapporteur in the Field of Cultural Rights since 2010 (eleven at the time of writing), several of the resulting reports have included observations on the cultural rights of women. These observations have tended to focus on issues relating to gender stereotyping, women’s access to and participation in religious practice and instruction, restrictions on women’s right to 45 UN General Assembly, ‘Cultural Rights’ (10 August 2012) UN Doc A/67/287 para 64. 46 Ibid, para 25. 47 Ibid, para 30. 48 Ibid, para 33.

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442 Joseph Powderly and Rafael Braga da Silva c ultural expression, and the imposition of cultural practices in violation of fundamental human rights—the latter is often referred to, by way of shorthand, as ‘negative cultural practices’. It is worth briefly exploring these observations in order to get a sense of the manner in which the Special Rapporteur has sought to advance the cultural rights of women through the country visit process. In her report following her mission to Morocco in 2011, the Special Rapporteur welcomed the development of programmes aimed at appointing women as spiritual guides and preachers as ‘a first step towards ensuring equal opportunities for women to guide and explain religious subjects to others’.49 Such initiatives were also viewed as creating a sociocultural space within which women could ‘share their experience and strengthen their participation in the cultural life of local communities’.50 The Special Rapporteur recommended that steps should be taken to instruct female spiritual guides in women’s rights, thus equipping them with effective tools aimed at raising awareness of women’s rights issues within their communities.51 Attention was also given to the participation and portrayal of women in national media and, in particular, the prevalence of mainstream gender stereotyping: ‘[m]edia seldom use gender-sensitive language, frequently portray women’s roles as linked with the home and raising children, downplay their accomplishments in the public sphere and project a passive and negative image of women. This discourages any effective participation in social, political and cultural life.’52 In the context of Vietnam, the Special Rapporteur also sought to highlight the impact of gender stereotyping on women’s cultural rights: ‘[t]he Special Rapporteur notes . . . the specific role attributed to women as “good mothers” who are expected to build “happy families” which are patriotic, progressive, and live in harmony. In many countries, women are too often tasked with reproducing the dominant culture of their communities. Women must be encouraged to be not only guardians but creators of cultural values and new family traditions.’53 Similarly, in the context of Cyprus, the Special Rapporteur highlighted the clearly discriminatory and subjugatory nature of article 2(7) of the Constitution which states that ‘married women shall belong to the “community” to which their husbands belong and that children under the age of 21 who are not married 49 UN Human Rights Council, Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed—Mission to Morocco (5–16 September 2011) (2 May 2012) UN Doc A/HRC/20/26Add.2 (hereafter ‘Independent Expert Morocco Report’) para 65. In a similar vein, in her report on Botswana, the Special Rapporteur welcomed the involvement of women in leadership roles with customary structures but cautioned that it was ‘clearly not sufficient to ensure the cultural rights of women on an equal basis with men’. Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights on Her Visit to Botswana (12 January 2016) UN Doc A/HRC/31/59/Add.1 para 25. 50 Independent Expert Morocco Report (n 49), para 65. See also, UN Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights on Her Visit to Malaysia (10 January 2019) UN Doc A/HRC/40/53/Add.1 (hereafter ‘Independent Expert Malaysia Report’) para 50, noting the failure of the Malaysian government in this regard. 51 Independent Expert Morocco Report (n 49), para 65. 52 Ibid, para 66. 53 UN Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, on Her Visit to Viet Nam from 18 to 29 November 2013 (29 January 2015) UN Doc A/ HRC/28/57/Add.1, para 70.

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Cultural Heritage and Women 443 shall belong to the “community” to which their fathers belong’.54 Women have full autonomy to choose their own identity, to choose their own community or communities, and to participate in the group in any way they choose: ‘the choices of women should not depend on the decisions of their husbands on such matters’.55 In her Mission Report on the Russian Federation, the Special Rapporteur noted the erosion of gender rights since the break-up of the Soviet Union, precipitated by a revival in discourses pertaining to religious identity and traditional values.56 With specific regard to Chechnya, Ingushetia, and the North Caucasus, the report brings attention to the imposition of cultural practices that violate women’s rights: ‘honour killings have taken place; women have been forced to wear a headscarf, or experience extreme pressure to do so; and may be humiliated and physically attacked if not deemed to be dressed appropriately’.57 The Special Rapporteur reiterated women’s rights to a cultural life, including their right to ‘decide which cultural traditions, values or practices are to be kept, reoriented, modified or discarded’.58 In the context of her Mission Report on Malaysia, the Special Rapporteur expressed her concern that growing Islamization and Arabization of society was resulting in ‘cultural engineering’ and as a consequence the denial of women’s cultural rights. This was particularly illustrated in the widespread imposition of a ‘modest’ dress code for women ‘which is not traditional to Malaysia, and reduced Muslim women’s cultural choices’.59 The report is clear in rejecting the deployment of religious or cultural arguments (particularly those predicated on interpretations of sharia) in an attempt to justify the imposition of patriarchal structures that promote and pursue practices that violate women’s fundamental human rights.60 Invoking the work of the Committee on the Elimination of Discrimination against Women, the report is outspoken in its condemnation of policies instituting mandatory female genital mutilation (highlighting, in particular, the fatwa issued by the Malaysian National Council of Islamic Religious Affairs in 2009).61 The report also draws attention to restrictions on women’s right to artistic expression, such as that observed in Kelantan province where women are prevented from performing freely before mixed audiences.62

54 UN Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights on Her Mission to Cyprus (3 March 2017) UN Doc A/HRC/34/56/Add.1 para 32 (hereafter ‘Independent Expert Cyprus Report’). See, also, Independent Expert Morocco Report (n 50), para 48. 55 Independent Expert Cyprus Report (n 54), para 95. 56 UN Human Rights Council, ‘Report of the Special Rapporteur in the Field of Cultural Rights on her Mission to the Russian Federation (16–26 April 2012) (11 March 2013) UN Doc A/HRC/23/34/Add. 1 (hereafter ‘Independent Expert Russia Report’) para 105. 57 Ibid, para 106. Similar stories were expressed in the context of the Special Rapporteur’s report on Serbia and Kosovo: UN Human Rights Council, ‘Report of the Special Rapporteur in the Field of Cultural Rights on Her Mission to Serbia and Kosovo’ (19 January 2018) UN Doc A/HRC/35/55/Add.1 para 58. 58 Independent Expert Russia Report (n 56), para 107. 59 Independent Expert Malaysia Report (n 50), para 76. 60 Ibid, para 46. 61 Ibid, para 47. 62 Ibid, para 65.

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444 Joseph Powderly and Rafael Braga da Silva Justifying the denial of women’s rights on the grounds of religious or cultural tradition is amongst the most dominant tropes of the cultural relativist discourse. A frequent focal point of contestation in this regard has been the impact of religious or cultural practices on women’s right to bodily integrity and sexual and reproductive autonomy. Indeed, the issue, embodied most visibly in the heated, ongoing controversy surrounding female genital mutilation, has been an ever-present feature of the discourse going back to 1956 and the establishment of the mandate of the Special Rapporteur on Traditional Practices Affecting the Health of Women and Children. While female genital mutilation is a clear illustration of the tension between women’s rights and practices relating to group identity, international human rights law has consistently and repeatedly rejected any arguments seeking to legitimize it. The issue, however, is far from limited to female genital mutilation. In Fact Sheet No 23, the Office of the High Commissioner for Human Rights refers to a range of related practices such as ‘forced feeding of women; early marriage, the various taboos or practices which prevent women from controlling their own fertility; nutritional taboos and traditional birth practices; son preference and its implications for the status of the girl child; female infanticide; early pregnancy; and dowry price’.63 Practices of this kind are labelled with stark candour as being pillars of patriarchal structures of power and domination ‘performed for the male benefit’.64 It comments further that ‘female sexual control by men, and the economic and political subordination of women, perpetuate the inferior status of women and inhibit structural and attitudinal changes necessary to eliminate gender inequality’.65 The Special Rapporteur on Traditional Practices Affecting the Health of Women and Children has expressed a similar sentiment, stating that ‘it is clear that whatever the practice may be, and wherever it exists, the origins lie in the historical unequal and social relationships between men and women, resulting in a perceived inferior status of the woman’.66 This echoes the observations of the Special Rapporteur on Violence Against Women, Its Causes and Consequences who has consistently drawn attention to the intersectionality of religious and cultural practices and violence against women67 and article 4 of the Declaration on the Elimination of Violence Against Women, which calls on States to ‘condemn violence against women and [to not] invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination’.68 CEDAW’s General Recommendation No 19 is forthright in pointing 63 UN OHCHR, Fact Sheet No 23: Harmful Traditional Practices Affecting the Health of Women and Children (August 1995) 1–2. 64 Ibid. 65 Ibid, 2. 66 UN HRC, Report by Special Rapporteur on Traditional Practices Affecting the Health of Women and Children, Halima E. Warzazi (23 October 1995) UN Doc E/CN.4/Sub.2/1995/6. 67 UN HRC, ‘Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Yakin Ertürk—Intersections Between Culture and Violence Against Women (17 January 2007) UN Doc A/HRC/4/34 (hereafter ‘Intersections Between Culture and Violence Report’). 68 UN GA Res 48/104 Declaration on the Elimination of Violence Against Women (20 December 1993) UN Doc A/RES/48/104, art 4. See, also, Chow, Cultural Rights in International Law and Discourse (n 2) 187: ‘[C]ulture also lies at the heart of contemporary issues surrounding women’s rights, gender discrimination and gender violence’; Convention on the Rights of the Child (opened for signature 20 November 1989, entered into force 2 September 1990) UNTS 1577, art 24(3).

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Cultural Heritage and Women 445 out the regrettably common interaction between traditional practices and violence against women: Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them of the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to their low level of political participation and to their lower level of education, skills and work opportunities.69

Similarly, ICCPR General Comment No 28 on the equal rights of men and women states: Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes. The subordinate role of women in some countries is illustrated by the high incidence of prenatal sex selection and abortion of female foetuses. States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights. States parties should furnish appropriate information on those aspects of tradition, history, cultural practices and religious attitudes which jeopardize, or may jeopardize, compliance with article 3, and indicate what measures they have taken or intend to take to overcome such factors.70

Despite widespread condemnation and the consistency of international human rights law and practice, the discourse on the intersectionality of religious and cultural traditions and women’s rights continues to raise complex questions relating to the tensions between individual and group identity, ambivalence, essentialism, and neo-imperialism’s ‘arrogant gaze’.71 Radhika Coomaraswamy has drawn attention to the historical link 69 CEDAW (n 29), General Recommendation No 19: Violence Against Women (1992) UN Doc A/47/38, para 11. See, also, UN Committee on the Rights of Children, General Comment No 11: Indigenous Children and their Rights under the Convention’ (12 February 2009) UN Doc CRC/C.GC/11, para 22: ‘[C]ultural practices provided by article 30 of the Convention must be exercised in accordance with other provisions of the Convention and under no circumstances may be justified if deemed prejudicial to the child’s dignity, health and development. Should harmful practices be present, inter alia early marriages and female genital mutilation, the State party should work together with indigenous communities to ensure their eradication.’ 70 OHCHR, General Comment No 28: Article 3 (The Equality of Rights Between Men and Women) (29 March 2000) UN Doc CCP/C/21/Rev.1/Add/10 para 5. 71 Chow, Cultural Rights in International Law and Discourse (n 2) 186–93. See, also, R. Coomaraswamy, ‘Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women’ (2002) 34 George Washington International Law Review 483, 492.

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446 Joseph Powderly and Rafael Braga da Silva between women’s empowerment and the sociological ‘legacy’ of colonialism.72 In doing so, she highlights the dichotomy within which women must negotiate between often competing desires for individual identity and their membership in groups commonly governed by men. She argues: ‘Though their sense of self and dignity comes from how the wider society treats women, they often have to face discrimination within local groups. They may have to submit to discriminatory practices and laws, as well [as] engage in rituals, customs, and habits that reinscribe the subordinate status of women within the hierarchy of their religious, ethnic, or tribal identity’.73 Women in such a situation are effectively forced to choose between enduring the discriminatory tenets of the group or resisting and risking ostracization, stigmatization, and violence. This choice is rarely self-evident given the embeddedness of individual dignity with the identity of the group, to the extent that in some circumstances women may feel that an attack on the group is ‘an assault on their own dignity’.74 In effect it often forces a binary determination, forcing women to choose between prioritizing their individual rights over the cultural rights of the group; as Chow has put it, ‘it is like asking a minority woman to give up one aspect of her “self ” ’.75 Such a situation is illustrative of the paradox that must be confronted in exploring the relationship between ‘cultural choices’ and ‘negative cultural practices’. This paradox is played out in General Comment 21. On the one hand, it provides that restrictions on cultural rights ‘may be necessary in certain circumstances, in particular in the case of negative practices, including those attributed to customs and traditions, that infringe on other human rights’.76 However, on the other hand, it goes on to state that ‘[t]he decision by a person whether or not to exercise the right to take part in cultural life individually or in association with others, is a cultural choice and, as such, should be recognised, respected and protected on the basis of equality. This is especially important for all indigenous peoples, who have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms’.77 In emphasizing individual and collective cultural choices, the CESCR is making clear that it is not for States ‘to impose their judgment on what they think is best for communities and individuals’.78 However, cultural choices can only be such if they are autonomous, voluntary, and free of any semblance of coercion. Chow points out that this conception of cultural choice leads to questions relating to the way in which international human rights law 72 See S. Wynter, ‘Genital Mutilation or Symbolic Birth? Female Circumsicion, Origins and the Acculturalism of Feminist/Western Thought’ (1997) 47 Case Western Reserve Law Review 501. 73 Coomaraswamy, ‘Identity Within’ (n 71) 484. 74 Ibid, 488. See, also, V. Das, ‘Cultural Rights and the Definition of Community’ in O. Mendelsohn and U. Baxi (eds), The Rights of Subordinated Peoples (Oxford University Press 1994); H. Niec, ‘Casting the Foundation for the Implementation of Cultural Rights’ in UNESCO, Cultural Rights and Wrongs: A Collection of Essays in Commemoration of the 50th Anniversary of the Universal Declaration of Human Rights (UNESCO Publishing 1998). 75 Chow, Cultural Rights in International Law and Discourse (n 2) 222. 76 UN CESCR, General Comment No 21 (n 8) para 19. 77 Ibid, para 7. 78 Chow, Cultural Rights in International Law and Discourse (n 2) 198.

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Cultural Heritage and Women 447 can ‘reconcile the existence of cultural practices which are deemed oppressive with instances where the individual genuinely consents to engage in these practices’. He points out that often cultural choice is a fiction when recognition is given to the emotional, economic, and social consequences of rejecting certain cultural practices.79 Framing ‘negative practices’ within the sphere of ‘culture’ similarly ignores the influence of economic and political factors on the structural foundations of discrimination and subordination through which such practices are pursued.80 Ultimately, in many circumstances the choice is existential, not cultural. Conceiving of culture as determinative of women’s lived experiences undermines their individual and collective agency and reduces women to the status of permanent victims who lack the agency to bring about social reform.81 It also has the effect of polarizing ‘culture’ and women’s rights.82 Negative practices—such as, for example, forced marriage and polygamy—are rarely if ever pursued for purely cultural reasons but because they also serve economic, social, and political ends.83 Indeed, all societies have more than a single culture: the dominant culture of those with the power to impose the rules and deploy sanctions for contravening these; and the subaltern cultures of the marginalized—be they women, minorities, or even youth.84 Secondly, belonging to a community does not confer equality of opportunity or decision-making, including decisions of what are to be considered the essential aspects of cultural heritage that define a community of shared cultural values. It is therefore incumbent on the State to ensure that all voices within the community are heard equally and have equal opportunities to participate in cultural life and, as a consequence, determine and produce cultural heritage.85 This all points to the danger of essentializing culture and simplistically identifying it as the dominant obstacle to be overcome in women’s emancipation. This is particularly observable in discussions relating to human rights violations endured by women in the Global South, which often show a tendency ‘to essentialize traditional cultures as inherently harmful to women’.86 There is little doubt that attempts are made with alarming 79 Ibid, 199. 80 Ibid, 212. 81 Ibid, 216. See, also, S. Speed, ‘Gendered Intersections: Collective and Individual Rights in Indigenous Women’s Experience’ in M. Goodale (ed), Human Rights: An Anthropological Reader (Wiley-Blackwell 2009). 82 Chow, Cultural Rights in International Law and Discourse (n 2) 221. 83 Ibid, 212–13. 84 See, in this regard, L. Lixinski, ‘A Third Way of Thinking about Cultural Property’ (2019) 44 Brooklyn Journal of International Law 563, 576. 85 Although practitioners push for community-oriented practices of cultural heritage, a necessary and welcomed effort to correct the focus of (in)tangible cultural heritage practice to marginalized groups and persons, it is important to highlight the ‘colonial baggage tied to the term community, from when communities were created as managerial units for colonial practices’, as explained by Lucas Lixinski in ‘A Third Way of Thinking’ (n 85) 579. 86 ‘Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Yakin Ertürk—Intersections Between Culture and Violence Against Women’ (17 January 2007) (n 67), para 20. See also Coomaraswamy, ‘Identity Within’ (n 71), who explores the historical link between the struggle for women’s empowerment and western imperialism.

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448 Joseph Powderly and Rafael Braga da Silva frequency to legitimate violations of the rights of women by invoking culture, religion, and tradition.87 However, as Shaheed has argued, ‘[b]y attributing self-propelling agency to “culture” independent of the actions of human beings, it diverts attention from specific actors, institutions, rules and regulations, keeping women subordinated within patriarchal systems and structures’.88 It negates the agency of women and ‘the trajectories of their resistance to violence and oppression’.89 While essentialist conceptions of culture are simplistic, it is paramount that the lived experiences of women are not subject to the same misguided essentialist logic. Female identity is not a monolithic, static, and homogeneous construct; nor, indeed, are the forms of oppression that the women’s rights movement continues to confront.90 The forms of oppression experienced by women globally are inherently intersectional91 with simultaneous categories of identity—race, ethnicity, religion, physical ableness, age, class, and so on—determining and differentiating the forms of oppression encountered.92 The oppression of women cannot be conceived of as operating on a single plane; conscious regard must be had for its multidimensional nature.93 Women’s agency to resist cultural practices (including resisting the banning of certain cultural practices) in whatever way they choose and in a manner consistent with their individual identity should be

87 For an important insight into this phenomenon, see Intersections Between Culture and Violence Report’ (n 67): ‘In order to successfully uphold universally agreed values, in particular the principle that no custom, tradition or religious consideration can be invoked to justify violence against women, the report identifies the myths around cultural discourses and outlines general guidelines for an effective strategy to counter and transform culture-based discourses, which constitute one of the major obstacles to the implementation of women’s rights.’ 88 UN General Assembly ‘Cultural Rights’ (n 45), para 3. 89 Intersections Between Culture and Violence Report (n 67), para 20. 90 Coomaraswamy, ‘Identity Within’ (n 71) 483: ‘Identity is not an essential, immutable, permanent status, it has many constituent elements. Future experiences often transform the nature and direction of personal identity. Identity is often composite, made up of multiple selves, often contesting, contradicting, and transforming the other.’ 91 For the seminal work of Kimberle Crenshaw, see K. Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ 1989 University of Chicago Legal Forum 139. See also CEDAW, General Recommendation No. 28: Core Obligations of States Parties Under art 2 of the Convention on the Elimination of Discrimination Against Women (16 December 2010) UN Doc CEDAW/C/GC/28 para 18: ‘Intersectionality is a basic concept for understanding the scope of the general obligations of States parties contained in article 2. The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, caste and sexual orientation and gender identity. Discrimination on the basis of sex or gender may affect women belonging to such groups to a different degree or in different ways to men. States parties must legally recognize such intersecting forms of discrimination and their compounded negative impact on women concerned and prohibit them. They also need to adopt and pursue policies and programmes designed to occurrences.’ 92 OCHCR, General Comment No 28 (n 70), para 30: ‘Discrimination against women is often intertwined with discrimination on other grounds such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status.’ 93 Coomaraswamy, ‘Identity Within’ (n 71).

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Cultural Heritage and Women 449 respected.94 However, this reality is not adequately reflected in General Comment No 21, nor more broadly within international human rights law. Women’s agency and their participation in the creation, reproduction, and preservation of cultural heritage, however, are not solely curbed by coercive acts. The likely punitive actions for transgressing the established rules play a central role in creating, reproducing, and maintaining the figuration of particular social orders and the dominant culture inherited from the past. Fear serves as an internalized self-control mechanism. Selfimposed silences and rules are ‘adhered to because they are perceived as a moral duty [but also] because they may be sanctioned by, for instance, some people becoming angry if such duties are not performed’.95 The nuance from essentialization of culture and the ‘self-imposed’ silence is especially important when analysing the issue of women’s cultural rights in the Global North. On one hand, the human rights machinery is mainly focused on issues occurring in the Global South, disproportionately reporting, naming, and shaming violations of cultural rights in those countries.96 This distorts the notion of cultural rights in the region, imposing Northern standards and biases, leading to the essentialization of gender identities and curbing the full enjoyment of cultural rights by women and girls.97 On the other hand, ‘self-imposed’ silence in countries of the Global North is also the origin of many violations of cultural rights, negating the agency of women. For example, the lack of visibility of female historical characters, or the diminished cultural production by women, only reaffirms the patriarchal oppression of European countries.98 In this respect, although the institutional machinery mostly focuses on the Global South when discussing the issue of violations of the rights of women to cultural heritage, this focus creates a shade where Global North countries can continue to violate women’s cultural rights. There is no questioning the link between certain religious and cultural practices and violence against women. However, this is not the only plane where violations of women’s cultural rights are seen. The lack of women’s agency in the creation, reproduction, and preservation of cultural heritage and the (rather silent) unacceptance of women as equal participants in the creation of cultural expressions and their role as decision-makers in

94 Chow, Cultural Rights in International Law and Discourse (n 2) 236. Indeed, this argumentation recognizes the dangers of instituting blanket bans of certain cultural practices, such as the wearing of headscarves. 95 T. M. Bolstad, ‘Kar-Contracts in Norway: Agreements Made by Men Concerning Women’s Work, Ownership and Live’ (1995) 46 Working Papers in Women’s Law 26, 27. 96 For instance, the Special Rapporteur in the Field of Cultural Rights made fifteen country visits, but only one was made to a ‘Global North’ country: Austria. The list of countries is available at accessed 20 August 2019. 97 C. Brumann, ‘Slag Heaps and Time Lags: Undermining Southern Solidarity in the UNESCO World Heritage Committee’ (2019) 84 Ethnos 719, 731. 98 Council of Europe, European Cultural Heritage Strategy for the 21st century (Strategy 21), Gender Equality Factsheet, available at accessed 20 August 2019.

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450 Joseph Powderly and Rafael Braga da Silva the process of (in)tangible cultural heritage also violate the full enjoyment of cultural rights by women and girls. This recognition is important to understand the daily practices of those involved in identifying and safeguarding tangible, intangible, and natural cultural heritage. Although considering that ‘nearly all heritage sites are gendered’,99 as stated by the Deputy Director of the Heritage Division of UNESCO, the role of women’s agency in the institutional protection of cultural heritage, as well as countering the existing gender bias in their identification and safeguarding, remains an incipient discourse. These aspects, and the discussions that follow them, play an important role in understanding how UNESCO, the drafters, and the treaty bodies of the main cultural heritage treaties have addressed women’s cultural rights.

3. The Recognition of Women within the Framework of International Cultural Heritage Law While it is important to locate women’s cultural rights in the broad spectrum of cultural rights, reaffirming the importance of non-discrimination and agency, we must turn to examine the extent to which this is reflected in the framework of international cultural heritage law. The analysis focuses on three main treaties (the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1972 World Heritage Convention; and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage), their respective treaty bodies and, more generally, the manner in which UNESCO has endeavoured to incorporate a gendered perspective in the context of cultural heritage protection and safeguarding. The objective is not only to analyse whether women’s cultural rights were taken into consideration in the drafting of these treaties but also to examine how UNESCO and the treaty monitoring bodies take up and address gender issues in their practices. Before moving to the discussion proposed in this section, a disclaimer: while UNESCO and the treaty bodies talk about gender to some extent, the expression is understood as a simplistic, binary concept that fails to take into consideration the diversity and sociological complexity of gender as reflected in science and literature today.100 Gender equality is understood, in this context, as the bipolarity between men and women. Other expressions that are part of the gender spectrum—inter alia, transgender, gender fluid, or non-binary—are not contemplated by the UNESCO definition of 99 M. Rössler, ‘Gendered World Heritage? A review of the implementation of the UNESCO World Heritage Convention (1972)’ in UNESCO, Gender Equality, Heritage and Creativity (UNESCO 2014) 78. 100 See, for example, A. Fausto-Sterling, ‘The Five Sexes: Why Male and Female are not Enough’ (1993) The Sciences 20.

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Cultural Heritage and Women 451 g ender equality. Therefore, as to the descriptive purpose of this section, gender will be treated in the same way UNESCO does, despite the conceptual restrictions of this definition.

3.1 Legal Silence through the Years: The Drafting of Cultural Heritage Treaties Although the Deputy Director of the Heritage Division of UNESCO now recognizes that ‘nearly all heritage sites are gendered’,101 international lawmaking in terms of protecting cultural heritage has generally been blind to issues of gender equality and the role of women in accessing, participating, and contributing to cultural life. Since the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two protocols, which were built on the foundations of the 1899 and 1907 Hague Regulations,102 a gender-neutral tone has been adopted when discussing and codifying the protection of cultural heritage. It is noticeable that, while considering the addressees of the Convention, the High Contracting Parties chose words such as ‘mankind’ to point out that cultural heritage belongs to all of humankind;103 indeed, the arcane nature of this language was recognized by the former Director-General of UNESCO, Irina Bokova.104 While it can be said that the intended scope of the 1954 Convention offered little space within which gender dimensions could be recognized, there is no evidence that such issues were even momentarily contemplated by the drafters.105 International lawmakers came back to the issue of cultural heritage in the 1972 UNESCO World Heritage Convention106 and the 1972 UNESCO Recommendation concerning the Protection at National Level of the Cultural and Natural Heritage.107 Protecting both natural and cultural sites of outstanding universal value, no consideration 101 Rössler, ‘Gendered World Heritage?’ (n 99) 78. 102 Convention [No. II] with Respect to the Laws and Customs of War on Land, with annex of regulations, July 29, 1899, 32 Stat 1803, 1 Bevans 24 and 18 Convention [No IV] Respecting the Laws and Customs of War on Land, with annex of regulations, 18 October 1907, 36 Stat 2277, 1 Bevans 63. 103 Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, Records of the Conference convened by the United Nations Educational, Scientific and Cultural Organization and held at The Hague from 21 April to 14 May 1954, published by the Government of The Netherlands (Staatsdrukkerij en Uitgeverijbedrijf 1961) 99–134, 307. 104 Irina Bokova, ‘Introduction’, in UNESCO, The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two (1954 and 1999) Protocols Basic Texts (2010) UNESDoc CLT-2010/WS/5 CLD-4625.9. 105 Records of the Conference convened by the United Nations Educational, Scientific and Cultural Organization and held at The Hague from 21 April to 14 May 1954. 106 Convention for the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force on 17 December 1975) (World Heritage Convention) 151 UNTS 1037. 107 UNESCO, 1972 Recommendation concerning the Protection at National Level, of the Cultural and Natural Heritage, adopted on the Report of the Commission for General Programme Matters at the Thirty-Second Plenary meeting on 16 November 1972, UNESDoc 17 C/Resolutions + CORR.

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452 Joseph Powderly and Rafael Braga da Silva was given by the drafters of these two instruments to the role of women in heritage creation, interpretation, or preservation. While the 1972 World Heritage Convention repeats the formula of using ‘mankind’ to denote the universality of the protection of cultural heritage, overlooking the role of gender aspects in this regard, it places cultural and natural heritage as central components in human development.108 The ending of international cultural heritage law’s gender silence began with the 1998 Action Plan on Cultural Policies for Development, adopted by the UNESCO Intergovernmental Conference on Cultural Policies for Development. Deemed a soft-law instrument, States Parties discussed, among other things, the issue of gender equality in culture,109 especially in light of globalization.110 Based on the discussions, the Conference affirmed that ‘cultural policies must respect gender equality, fully recognising women’s parity of rights and freedom of expression and ensuring their access to decision-making positions’.111 Amongst the objectives of the Conference was to recognize ‘women’s achievement[s] in culture and development and [to] ensure their participation in the formulation and implementation of cultural policies at all levels’.112 Notwithstanding this modest advance, in 2001, UNESCO issued the Universal Declaration on Cultural Diversity without any mention of women’s cultural rights or a gender-approach to cultural heritage. With the benefit of hindsight, the lack of provisions regarding these issues seems out of place, considering that UNESCO convened at least two expert meetings before the Declaration was issued specifically to discuss the role of women in the transmission of intangible cultural heritage113 and regional approaches to women and intangible heritage.114 This is even more regrettable considering that women have been one of the priority groups within UNESCO programmes since at least 1995.115 Building on the Universal Declaration, the drafting of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage saw delegates divided into two diametrically opposed camps:116 on one side, those States in favour of placing particular emphasis on specifically and expressly recognizing issues relating to women and

108 R. L. Meyers, ‘Travaux Preparatories for the UNESCO World Heritage Convention’ (1976) 2 Earth Law Convention 45, 46. 109 UNESCO, Intergovernmental Conference on Cultural Policies for Development: Final Report (31 August 1998) UNESDOC CLT.98/CONF.210/5, CLT.98/CONF.210/CLD.19 25, 50, 60–1, 79, 89. 110 UNESCO Intergovernmental Conference on Cultural Policies for Development, Action Plan on Cultural Policies for Development (2 April 1998) 3. 111 Ibid, Objective 2, item 8. 112 Ibid. 113 UNESCO, Final Report on the International Symposium on the Role of Women in the Transmission of Intangible Cultural Heritage, Tehran, September 1999 accessed 19 July 2019. 114 UNESCO, Synthesis Report—Activities in the Domain of Women and Intangible Heritage: International editorial meeting and future activities in the domain, Tehran, June 2001 accessed 19 July 2019. 115 UNESCO, Beijing Declaration and Platform for Action (n 38). 116 See UNESCO, Final Report on Expert Meeting ‘Gender and Intangible Heritage’, December 2003 accessed 19 July 2019.

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Cultural Heritage and Women 453 intangible cultural heritage;117 on the other, those who opposed such an express emphasis, fearing discrimination against women. Ultimately, no mention of women’s rights or roles in the creation, interpretation, and protection of intangible cultural heritage was made in the Convention. The drafters, however, included an avenue for the protection of women’s rights within article 2(1) of the Convention, stating that the interpretation of the convention should follow existing international human rights instruments. These instruments include CEDAW, thereby strengthening the protection of women’s cultural rights in the interpretation of the 2003 Convention, especially when it comes to the conflict between traditional cultural practices and violence and discrimination against women.118 Despite not mentioning women’s rights in the 2003 Convention, UNESCO convened an expert meeting on gender and intangible heritage shortly after its adoption.119 Discussing the links between gender issues and cultural heritage,120 the experts recommended to UNESCO several actions to be taken in order to address gender questions arising from the application of the 2003 Convention. Recommendation 2 is particularly significant in this regard as it recognizes that ‘the safeguarding of intangible cultural heritage includes understanding and respecting gender practices and representations, as well as acknowledging the significance of contact zones in these processes’.121

3.2 Gender in Practice: The Implementation of Cultural Heritage Treaties The conventions and declarations can perhaps be viewed as products of their own time. They are generally entirely silent on the need for gendered approaches to cultural heritage and on questions related to women’s cultural rights. Nevertheless, the practice of the respective treaty bodies has attempted to a greater or lesser extent to address these obvious deficiencies. In the context of the 1954 Hague Convention, the lack of consideration of gender issues in any way is obviously problematic. The meetings of the High Contracting Parties, which monitor and review the implementation of the Convention, have remained silent with respect to women’s cultural rights in their twelve meetings so far.122 The periodical reports of States Parties and the Director-General on the implementation of the 1954 117 See, in this regard, the delegations from the Netherlands, Egypt, and South Africa supported amendments in UNESCO, Compilation of Amendments from Member States Submitted during the Second Session of the Intergovernmental Meeting of Experts on the Preliminary-Draft Convention for the Safeguarding of Intangible Cultural Heritage (2 April 2003) UNESDoc CLT-2003/CONF.206/2 118 CEDAW (n 29), art 5. 119 UNESCO, Final Report on Expert Meeting ‘Gender and Intangible Heritage’ (n 116). 120 Ibid, 13. 121 Ibid. 122 Documents of the meetings can be found at accessed 20 July 2019.

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454 Joseph Powderly and Rafael Braga da Silva Convention also fail to mention the relationship between gender, cultural heritage, and armed conflict.123 One positive development can be seen with respect to UNESCO’s consideration of the destruction of cultural heritage in the context of the Syrian conflict, where it recognized the role of cultural heritage in empowering women and vulnerable groups.124 More attention, however, needs to be given to exposing the intersectionality of the deleterious effects of armed conflict on women’s cultural rights.125 In the early days, the practice of treaty bodies created by the World Heritage Convention was dependent on the understanding to be given to the notion of cultural heritage of ‘outstanding universal value’.126 This concept, however, developed by the Operational Guidelines, adopted an evident gender bias in the context of its recognition of the ‘Great Men of History’.127 Taking into consideration 114 nomination dossiers up until 2013, the marginalization of references to women is clear and shows a ‘strong bias towards androcentric representations of the past’.128 This is illustrated, for example, in the Japanese government’s bid to register the Sacred Sites and Pilgrimage Routes in the Kii Mountain Range.129 Some NGOs and citizens protested that such registration would reinforce gender discrimination because such routes are expressly prohibited to women;130 however, this was given no consideration by UNESCO in reaching its decision. A rare example of UNESCO taking into consideration women’s cultural expressions is seen in the inscription of Flemish Béguinages as World Heritage Sites, which recognized the outstanding universal value in ‘the cultural tradition of independent religious women in north-Western Europe in [the] middle ages’.131 External evaluations, especially one made in 2005, pointed out that gender imbalance on technical committees and councils interferes directly with the nomination of World Heritage Sites.132 After 123 Documents of the periodical reports can be found at accessed 20 July 2019. 124 UNESCO, Five years of conflict: the state of cultural heritage in the Ancient City of Aleppo: A Comprehensive multi-temporal satellite imagery-based damage analysis for the Ancient City of Aleppo (UNESCO 2018) 135. 125 For the question of gender and armed conflict, see C. Chinkin, ‘Gender and Armed Conflict’ in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014). 126 UNESCO, ‘In Focus: World Heritage and Gender’ (2016) World Heritage, available at accessed 20 July 2019. 127 UNESCO, Comparative Studies of Nominations and Criteria for World Cultural Heritage (UNESCO 1979). 128 S. Labadi, UNESCO, Cultural Heritage, and Outstanding Universal Value: Value-based analyses of the World Heritage and Intangible Cultural Heritage Conventions (Altamira 2013) 78. 129 For the discussion, see Rössler, ‘Gendered World Heritage?’ (n 99) 78. 130 Y. Wijers-Hasegawa, ‘UNESCO Heritage Bid Challenged Over Gender Bias’ The Japan Times (1 May 2004) accessed 23 July 2019. 131 UNESCO, Report—Convention concerning the Protection of the World Cultural and Natural Heritage—World Heritage Committee—Twenty-second session (30 November–5 December 1998) UNESDoc WHC-98/CONF.203/18, 27 accessed 22 July 2019. 132 See, for example, C. Cameron, Evaluation of IUCN’s Work in World Heritage Nominations (IUCN, 2005) accessed 20 July 2019.

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Cultural Heritage and Women 455 the 2005 evaluation, the implementation of the World Heritage Convention began to pay more attention to gender perspectives under the meaning of ‘outstanding universal value’. However, the only mention of gender in the Operational Guidelines is related to the use of gender-neutral language in the preparation of statements of Outstanding Universal Value.133 In terms of the 2003 Convention, the General Assembly also adopted Operational Directives for its implementation.134 Such directives inform the inscription of cultural elements in the Safeguarding list as well as recognize forms of community participation. Adopted in 2008, a modest reference to gender discrimination was made in the 2010 version of the Directives, encouraging parties to take particular care to not contribute to justifying any form of gender-based discrimination.135 Although stakeholders of the 2003 Convention acknowledge the question of gender equality, they also recognize that an in-depth debate about gender equality and intangible cultural heritage has not yet happened.136 This gender blindness has resulted in gaps in the nomination and reporting mechanisms regarding the links between gender equality and intangible cultural heritage.137 Following the 2016 evaluation report, amendments to the Directives included a whole chapter on gender equality. States are now required to pay special attention to the role of gender when considering the nomination of intangible cultural heritage138 and to foster gender equality in the contribution to intangible cultural heritage, as well as in the planning, management, and implementation of safeguarding measures.139 The measures are being implemented, although admittedly at a slow pace. For example, in contrast to earlier practice, the 2016 Examination of the Reports of States Parties on the Implementation of the 2003 Convention includes several examples of the central roles played by women in intangible cultural heritage.140 Furthermore, the equivalent report in 2018 focused on the issue that almost half of States’ periodic reports address 133 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (26 October 2016) UNESDoc WHC.16/01. 134 Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1, art 7. 135 UNESCO, Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted by the General Assembly of the State Parties to the 2003 Convention on 2008, amended in 2010, Directive 102. 136 UNESCO, Report on the evaluation by the Internal Oversight Service of UNESCO’s standardsetting work of the Culture Sector and the related audit of the working methods of Cultural Conventions (2013) ITH13/8.COM/5.c, iv. 137 Ibid, 17. 138 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted by the General Assembly of the State Parties to the 2003 Convention on 2008, amended in 2016, Directives 157 and 162. 139 Ibid, Directive 181. 140 UNESCO, Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Examination of the reports of States Parties on the implementation of the Convention and on the current status of elements inscribed on the Representative List of the Intangible Cultural Heritage of Humanity (2016) UNESDoc ITH/16/11.COM/9.a, para 25.

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456 Joseph Powderly and Rafael Braga da Silva gender roles in safeguarding intangible cultural heritage,141 such as inventorying, capacity-building, and transmission initiatives. The analysis of States’ reports and the evaluation of them by the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage shows that, since the 2013 evaluation report, the treaty bodies of the 2003 Convention are progressively giving greater focus to gender roles and women’s cultural rights in intangible cultural heritage.

3.3 Remedying Gender-Blindness in Cultural Heritage: How UNESCO Is Leading the Line As discussed, the role of women in cultural heritage continues to be overlooked in treaty texts and their monitoring bodies. Nevertheless, the progressive effort to adopt gender approaches to cultural heritage is among the main goals of the UN and UNESCO specifically. The rhetoric of the UN and its specialized agencies has identified women as a common priority since at least 1975, when the Decade for Women programme was launched,142 and gender equality has been included in Sustainable Development Goal 5.143 Concerning UNESCO, the connection of its mandate to the issue of women’s rights can be traced back to the 28th session of the General Conference in 1995.144 Currently, UNESCO has a Division for Gender Equality, which ensures the overall coordination of UNESCO policies, strategies, and actions in support of gender equality and women’s empowerment.145 In terms of cultural heritage, there is a strong focus on ‘reshaping cultural policies’, 146 in light of a multifaceted gender gap in all cultural fields.147 In reaction to these developments, UNESCO established a Global Priority Gender Equality framework.148 In a 2014–2021 Medium-Term Strategy,149 translated into an Action Plan150 and operationalized in programmes and budgets,151 UNESCO plans to 141 UNESCO, Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Examination of the reports of States Parties on the implementation of the Convention and on the current status of elements inscribed on the Representative List of the Intangible Cultural Heritage of Humanity (2018) UNESDoc ITH/18/13.COM/7.a, Rev para 25. 142 UNGA Res 31/136 (16 December 1976) UN Doc A/RES/31/136. 143 UNGA Res 70/1 (21 October 2015) UN Doc A/RES/70/1. 144 UNESCO, Records of the General Conference, 28th session, Paris, 25 October to 16 November 1995, v. 1: Resolutions (1995) accessed 22 July 2019. 145 For more information, see accessed 22 July 2019. 146 UNESCO, Re-shaping cultural policies: advancing creativity for development (2018) accessed 22 July 2019. 147 Ibid, 15 and 189. 148 For a summary on the Global Priority, see accessed 22 July 2019. 149 UNESCO, Medium-Term Strategy, 2014–2021 (2014) UNESDoc 37 C/4, 16 and 25. 150 UNESCO, UNESCO Priority Gender Equality Action Plan: 2014–2021 (2014) UNESDoc 37 C/4C/5 Compl. 1. 151 UNESCO, Programme and Budget 2014–2017 (2014) UNESDoc 37 C/5.

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Cultural Heritage and Women 457 prioritize gender equality through its policies, programmes, and initiatives. The agency focuses on gender-specific programming, empowering men and women, as well as mainstreaming gender equality considerations in its policies, programmes, and initia tives. UNESCO expects that these actions will result in (i) increased recognition of women’s contribution to cultural life; (ii) encouragement of women and girls’ participation in creativity; and (iii) cultural policies that respect gender equality and participatory rights.152 While the practice of cultural heritage protection has in the past lacked consistent consideration of gender equality, UNESCO is taking action to promote and encourage gender perspectives on cultural heritage. Several examples that set forth the gender aspects of cultural heritage have been published by UNESCO in the past years and have helped create greater awareness of the role of women in the context of both cultural sites153 and forms of cultural expression.154 It is important to highlight in this regard the 2014 Gender Equality, Heritage, and Creativity report, in which several recommendations were made with a view to addressing the shortcomings described in this chapter.155 Although the struggle to consider women’s cultural rights gained a new partner in the form of UNESCO’s approach to policymaking, this is only the beginning if meaningful progress is to be made in overcoming the relative gender blindness of international cultural heritage law.

4. Conclusion Women’s cultural rights, like any category of rights, are part of an interconnected manifestation of individual and collective identity. International cultural heritage law recognizes cultural identification and development processes, thereby enabling their transmission to future generations. This body of law has been dynamically developed, but, as this chapter has illustrated, the incorporation of gender perspectives has only just begun to gain a foothold. The efforts of CEDAW and the UN more generally have been central to the evolution of a gendered interpretation and application of cultural rights which in the past have too often been predicated on the rights of ‘man’ or ‘mankind’. In this respect, the mandate of the Special Rapporteur in the Field of Cultural Rights has highlighted a series of intersecting issues relevant to the advancement of women’s cultural rights and cultural heritage in particular, namely gender stereotyping; women’s access to, participation in, and creation and interpretation of cultural practices; and imposition of cultural practices in violation of fundamental rights. 152 UNESCO Priority Gender Equality Action Plan: 2014–2021 (n 154) Expected Results 1–4. 153 See, for example, UNESCO, ‘In Focus: World Heritage and Gender’ (n 126). 154 See, for example, UNESCO, Intangible Cultural Heritage and Gender accessed 22 July 2019. 155 UNESCO, Gender Equality, Heritage and Creativity (n 99) 135.

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458 Joseph Powderly and Rafael Braga da Silva International cultural heritage law continues to suffer from a definite gender blindness, evidenced either in failing to engage with gendered aspects of cultural heritage or in dealing with it in binary terms. UNESCO has taken important steps in recognizing the role of women in creating, transmitting, and safeguarding cultural sites, as well as promoting the cultural expressions of women. It is important to acknowledge the few instances in which the central role of women has been identified, such as in the recognition of the Flemish Béguinages. However, it is regrettable that women’s rights are not given a more prominent voice in the current framework of international cultural heritage law. Although UNESCO has been pushing for greater change, much work remains to be done. Moving forward, efforts aimed at ensuring gender equality in cultural heritage protection must encompass three elements. First is the essential need for gender literacy. The binary treatment of gender and the gender blindness displayed by UNESCO and the treaty bodies in the past, particularly when inscribing cultural heritage, must come to an end. Much greater appreciation needs to be had for the inherent complexity of gender and the attendant implications such an appreciation has on the recognition and safeguarding of cultural heritage. Second, women’s agency must be respected in the creation, promotion, interpretation, and safeguarding of cultural heritage as well as challenging what a particular cultural heritage signifies, not only individually and collectively but also in terms of their direct involvement in the activities of UNESCO and the treaty bodies. Respecting agency, and ensuring its effectiveness, is essential to increasing recognition of the gendered nature of cultural heritage, as well as to efforts aimed at avoiding the essentialization of cultural practices. Thirdly, there must be greater appreciation of the fact that the forms of oppression experienced by women are relational and intersectional. Failing to understand how the denial of women’s cultural rights and the destruction of cultural heritage intersect with the violation of other fundamental rights results in a myopic and simplistic analysis. For example, little attention has been given to the reciprocal relationship between the destruction of cultural heritage (tangible or intangible) and the crime against humanity of gender-based persecution. Only an intersectional view of the phenomenon can lead to a comprehensive recognition and safeguarding of women’s cultural rights and cultural heritage.

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chapter 20

Cu ltu r a l H er itage a n d I n tel l ect ua l Propert y Mira Burri

1. Introduction The protection of both cultural heritage and intellectual property is intrinsically related to creativity—to sustaining and fostering it over the years, to making sure that it flourishes for the benefit of not only the right-holders but the society as a whole. It may thus appear intuitive to link cultural heritage and intellectual property and to seek the application of common rules and institutions. This chapter will show, however, that cultural heritage is not easily subsumed under existing intellectual property rights, and, while both national and international legal frameworks have evolved to address the protection of different types of cultural expressions, there is no perfect match: indeed, we often encounter profound underlying tensions between the protection of cultural heritage and contemporary models of intellectual property rights protection. These tensions are reflected in the complex and fragmented governance environment, characterized by multiple interacting institutions and defined by the diverging interests of major actors.1 The chapter starts with a brief introduction to some of the key concepts and the key legal institutions relevant for the protection of intellectual property and its interface with cultural heritage and intangible cultural heritage in particular. It then proceeds with exploring how far discrete intellectual property rights, such as patent, copyright, or trademarks, can protect expressions of cultural heritage. The chapter maps the

1 See e.g. Laurence R. Helfer, ‘Intellectual Property and Human Rights: Mapping an Evolving and Contested Relationship’ in Rochelle Dreyfuss and Justine Pila (eds), The Oxford Handbook of Intellectual Property Law (Oxford University Press 2017) 117–43.

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460 Mira Burri ismatches and the gaps and asks whether these can be addressed in some viable m way—be it through adjusting the existing rules or through the creation of new tailored models of protection. This analysis will not be descriptive only; it will also include a deeper contemplation of whether such developments are desirable, who benefits from them and who does not, and whether, overall, we need to further pursue the linkage between cultural heritage and the intellectual property regime.

2. Intangible Cultural Heritage in the Intellectual Property Discourse The recognition of ‘intangible cultural heritage’ and the need for its preservation have been some of the key, although relatively recent, developments in international heritage law.2 The purpose of this chapter is not to map these developments3 but, rather, to reveal the relationship between international cultural heritage and concepts and institutions of intellectual property law. It suffices to say from the outset that this relationship has been contentious and still remains so. This is, on the one hand, due to the different approaches chosen to ensure the protection of cultural heritage: one that can be framed as a human rights approach that is also institutionally linked to the United Nations (UN) and the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one that is based on intellectual property type of protection and primarily linked to the World Intellectual Property Organization (WIPO).4 This ‘division of labour’ is not stringent, and there have been attempts to bridge the discussions. The relationship between cultural heritage and intellectual property has been problematic, also because—as the chapter later shows—there are certain mismatches between the legal rules for cultural and intellectual property protection and the underlying rationales for both these sets of rules. Finally, it needs to be mentioned that the contentious nature of the relationship between cultural heritage and intellectual property rights protection has only been exacerbated over time because the contexts in which this relationship has developed have become more complex. They have been redefined by the sweeping changes of economic and cultural globalization and by entirely new and far-reaching technological advances. To make matters even more complicated, these transformations cannot be neatly checked into the boxes of ‘positive’ or ‘negative’ for the protection of intangible cultural heritage or for the interests of indigenous and local communities. Some of them can be seen as a threat to the existence and practice of traditional culture, while new 2 See e.g. Janet Blake, Preliminary Study into the Advisability of Developing a New Standard-setting Instrument for the Safeguarding of Intangible Cultural Heritage (‘Traditional Culture and Folklore’) (UNESCO 2001) 2–5; Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press 2013) 1–25. 3 See Chapter 16 of this Handbook. 4 See e.g. Blake, Preliminary Study (n 2).

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Cultural Heritage and Intellectual Property 461 technologies may have at the same time also offered unprecedented opportunities for both cultural preservation and cultural dissemination. These different implications are clearly discernible in all discussions on whether and how intangible cultural heritage can be protected with the toolbox of intellectual property law.

2.1 Definitions A good starting point for introducing the debates on the applicability of intellectual property rights for intangible cultural property is clarifying the object of protection. The definition of intangible heritage has been one of the most contentious issues during the negotiations of the UNESCO Convention on Intangible Cultural Heritage.5 The 2003 Convention ultimately subscribed to a broad definition and intangible cultural heritage is said to encompass ‘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’.6 It can be 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; and (e) traditional craftsmanship.7 In the negotiations and in previous drafts of the 2003 Convention, it was common that traditional culture and folklore were also mentioned as elements of intangible cultural heritage, following up on the 1982 Declaration on the Protection of Folklore,8 but these terms were often found to be prone to misinterpretation and laden with negative connotations that do not truthfully reflect the living nature of culture. The Special Rapporteur in the field of cultural rights has noted in this regard that, although no uniform definition for cultural heritage exists, several international instruments and a number of references relating to traditional knowledge and traditional cultural expressions provide useful guidance for defining what is usually understood as cultural heritage.9 She added further that cultural heritage should be understood as resources enabling the cultural identification and development processes of individuals and communities

5 See e.g. Francesco Francioni, ‘The Specificity of Intangible Heritage as an Object of International Protection’, paper presented at the UNESCO International Round Table Intangible Cultural Heritage— Working Definitions, Turin, 14–17 March 2001; UNESCO, Final Report, International Round Table on ‘Intangible Cultural Heritage—Working Definitions’, Turin, 14–17 March 2001. 6 UNESCO, Convention for Safeguarding of the Intangible Cultural Heritage, 17 October 2003, in force 20 April 2006, 2368 UNTS 1 (hereafter Convention on Intangible Heritage or 2003 Convention), art 2(1). 7 Ibid, art 2(2). 8 UNESCO, Recommendation on the Safeguarding of Traditional Culture and Folklore, Paris, 16 November 1989. 9 United Nations General Assembly, Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed, A/HRC/17/38, 21 March 2011, at para 4.

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462 Mira Burri which they, implicitly or explicitly, wish to transmit to future generations.10 In the context of Indigenous peoples’ rights, this link has only been reinforced. Article 31 of the Declaration on the Rights of Indigenous Peoples has gone decisively a step further and states: Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.11

The message of the Declaration on the Rights of Indigenous Peoples is strong, despite its non-binding legal character.12 For the purposes of this chapter’s analytical focus, it is critical to stress that the Declaration makes a clear link to intellectual property protection, as well as uses the terminology that WIPO has adopted in its work on drafting new instruments for the protection of the traditional cultural expressions (TCE) and trad itional knowledge (TK).13 These are the two terms that we clarify in turn in Section 2.2 before trying to subsume them under existing forms of intellectual property protection.

2.2 TCE and TK Although a number of definitions of TCE exist in national and regional laws and in international instruments,14 there is presently no internationally settled common defi n ition. During the work of the WIPO Intergovernmental Committee on Intellectual 10 Ibid, para 5. Similarly, the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (CETS No.199, Faro, 27 October 2005) defines cultural heritage in art 2 as ‘a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions. It includes all aspects of the environment resulting from the interaction between people and places through time.’ 11 United Nations, Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/47/1 (2007) (emphasis added). 12 See Peter-Tobias Stoll, ‘Intellectual Property and Technologies in Article 31’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford University Press 2018); also Susy Frankel, ‘Using Intellectual Property Rules to Support Self-determination Goals of Indigenous Peoples’ in Christophe Geiger (ed), Research Handbook on Human Rights and Intellectual Property (Edward Elgar 2015) 627–58. 13 Frankel, ‘Using Intellectual Property Rules’ (n 12) 628. 14 See e.g. WIPO, Traditional Knowledge: Operational Terms and Definitions, WIPO/GRTKF/IC/3/9, 20 May 2002; WIPO, The Protection of Traditional Cultural Expressions/Expressions of Folklore: Updated Draft Outline of Policy Options and Legal Mechanisms, WIPO/GRTKF/IC/9/INF/4, 27 March 2006, as referred to by WIPO, The Protection of Traditional Cultural Expressions: Draft Gap Analysis, WIPO/ GRTKF/IC/13/4(b) Rev., 11 October 2008, at 3 (hereafter TCE Gap Analysis).

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Cultural Heritage and Intellectual Property 463 Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), various options have been discussed.15 Pursuant to the provisional definition agreed upon in the latest Draft Articles,16 [t]raditional cultural expression means any form of [artistic and literary], [other creative, and spiritual,] [creative and literary or artistic] expression, tangible or intangible, or a combination thereof, such as actions,17 materials,18 music and sound,19 verbal20 and written [and their adaptations], regardless of the form in which it is embodied, expressed or illustrated [which may subsist in written/codified, oral or other forms], that are [created]/[generated], expressed and maintained, in a collective context, by indigenous [peoples] and local communities; that are the unique product of and/or directly linked with and the cultural [and]/[or] social identity and cultural heritage of indigenous [peoples] and local communities; and that are transmitted from generation to generation, whether consecutively or not.21

It is also clarified that traditional cultural expressions may be ‘dynamic and evolving’.22 This definition (and the many bracketed clarifications) already give a sense of the staggeringly wide range of expressions that qualify as TCE, comprising both ‘pre-existing materials dating from the distant past that were once developed by “authors unknown” through to the most recent and contemporary expressions of traditional cultures, with an infinite number of incremental and evolutionary adaptations, imitations, revitalizations, revivals, and recreations in between’.23 The essential qualification that sets these expressions apart from any other cultural expression is the ‘defining characteristic of “traditional” ’,24 whereby all creations ‘identify a living tradition and a community that still bears and practices it’.25 Despite the above guidelines on identifying TCE, it should be noted that the term ‘TCE’ may often be an ill-suited, somewhat artificially constructed shortcut to depicting an extremely complex reality whose limits are indefinable and whose elements may be in themselves complex notions, such as the concept of ‘dreaming’ of Australia’s 15 WIPO, Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, WIPO/GRTKF/IC/20/INF/13, 7 December 2011. 16 WIPO, The Protection of Traditional Cultural Expressions: Draft Articles, WIPO/GRTKF/IC/34/8, 7 June 2017 (hereafter the Draft TCE Articles). 17 Such as dance, works of mas, plays, ceremonies, rituals, rituals in sacred places and peregrinations, games and traditional sports/sports and traditional games, puppet performances, and other perform ances, whether fixed or unfixed. 18 Such as material expressions of art, handicrafts, ceremonial masks or dress, handmade carpets, architecture, and tangible spiritual forms, and sacred places. 19 Such as songs, rhythms, and instrumental music, the songs which are the expression of rituals. 20 Such as stories, epics, legends, popular stories, poetry, riddles and other narratives; words, signs, names and symbols. 21 Art 2 of the WIPO Draft TCE Articles (footnotes and brackets in the original). The Draft Articles include also an alternative and shorter definition: ‘Traditional cultural expressions comprise the various dynamic forms which are created, expressed, or manifested in traditional cultures and are integral to the collective cultural and social identities of the indigenous local communities and other beneficiaries.’ 22 Ibid. 23 WIPO, TCE Gap Analysis, Annex 1, at 3. 24 Ibid, at 4. 25 Ibid.

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464 Mira Burri Indigenous people.26 TCE are also not a static but a highly dynamic, living system, which is constantly in the process of renegotiation, innovation, and creation.27 Furthermore, and accounting for the Indigenous perspective, it ought to be acknowledged that Indigenous communities may commonly ‘regard all products of the human mind and heart as interrelated, and as flowing from the same source: the relationships between the people and their land, their kinship with the other living creatures that share the land, and with the spirit world’.28 The Indigenous peoples’ demands for protecting and promoting TCE are accordingly heterogeneous.29 In the narrow context that this chapter addresses, Indigenous communities have striven for intellectual property protection. They wish, however, to distinguish this ‘IP protection’ from ‘the “safeguarding”, “preservation”, and “promotion” of cultural heritage, which refer generally to the identification, documentation, transmission, and revitalization of tangible and intangible cultural heritage in order to ensure its maintenance or viability’.30 Indigenous peoples do also acknowledge that many of their aspirations relating to TCE may be addressed by non-IP measures targeted at preservation and promotion of cultural heritage, as well as by other tools, such as those developed under communities’ customary laws.31 It appears ultimately that when we talk about ‘TCE protection’ in the IP sense, and although repeatedly stressing the dynamic character of TCE, the ‘current disputes center on items of TK as they now exist’.32 The concrete goals pursued through the IP protection may, however, differ. On the one hand, some communities wish to claim and exercise IP in their TCE to enable them to exploit them commercially as a contribution to economic development. On the other hand, some communities wish to exercise IP rights in order to prevent the use and commercialization of their TCE by others, including culturally offensive or demeaning use and use that inaccurately represents their cultures. Finally, many communities are concerned with preventing others from gaining or maintaining IP over their TCE. This would entail defensive mechanisms to block third parties’ IP rights if these are considered prejudicial to the community’s interests or IP rights obtained without the consent of the community—the so-called ‘defensive protection’.33

26 See Howard Morphy, Aboriginal Art (Phaidon 1998) 67–100. 27 Michael F. Brown, ‘Can Culture Be Copyrighted?’ (1998) 39 Current Anthropology 193, 196. 28 Erica-Irene Daes, Discrimination against Indigenous Peoples: Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, E/CN.4/Sub.2/1993/28 (United Nations Economic and Social Council, Commission on Human Rights 1993) para 21. 29 Indigenous communities strive also for the achievement of a number of other objectives, such as self-determination or restitution of property. See e.g. Rosemary J. Coombe, ‘The Properties of Culture and the Possession of Identity: Postcolonial Struggle and the Legal Imagination’ in Bruce Ziff and Pratima V. Rai (eds), Borrowed Power: Essays on Cultural Appropriation (Rutgers University Press 1997) 74–96. See also UN Declaration on the Rights of Indigenous Peoples (n 11). 30 WIPO, TCE Gap Analysis, Annex 1, at 7. 31 Ibid. 32 Stephen R. Munzer and Kal Raustiala, ‘The Uneasy Case for Intellectual Property Rights in Traditional Knowledge’ (2009) 27 Cardozo Arts and Entertainment Law Journal 37, 48. 33 WIPO, TCE Gap Analysis, Annex 1, at 8.

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Cultural Heritage and Intellectual Property 465 The same complexity in defining concepts and in linking them to modes of protection is valid for TK. Similarly to TCE, there is presently no accepted definition of TK at the international level. TK as a broad description of the subject matter includes the intellectual and intangible cultural heritage, practices, and knowledge systems of traditional communities, including Indigenous and local communities. In other words, traditional knowledge in a general sense embraces the content of knowledge itself, as well as traditional cultural expressions, including distinctive signs and symbols associated with traditional knowledge. In the international discourse, TK in the narrow sense refers to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations. TK can, then, be found in a wide variety of contexts, including agricultural, scientific, technical, ecological, biodiversity-related, and medicinal knowledge, including related medicines and remedies.34 The latest WIPO Draft Articles on TK specify that, to be eligible for protection, traditional knowledge must be distinctively associated with the cultural heritage of Indigenous peoples and local communities and be created, generated, developed, maintained, and shared collectively, as well as transmitted from generation to generation, for such a term as has been determined by each Member State but not less than for fifty years or a period of five generations.35 There is no uniform (nor uncontested) way of providing this protection—it may vary according to the specificities of TK, depending on whether it is secret, sacred, or narrowly or widely diffused.36 Importantly, one of the discussed policy objectives of the treaty dedicated to TK would be ‘to [ensure] [support] the [appropriate use] [protection] of traditional knowledge within the intellectual property system, in accordance with national law, recognizing the rights of [traditional knowledge holders] [beneficiaries]’.37 Leaving the ‘quicksands of definitions’,38 in the following section we set out and explore the opportunities for TK/TCE protection under the existing IP regime. After a 34 WIPO, Glossary of Key Terms (n 15) Annex, at 42, referring also to WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge, Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998–1999), at 25. 35 WIPO, The Protection of Traditional Knowledge: Draft Articles Facilitators’ Review 2, 2 December 2016. The text lists also an alternative definition, whereby different types of TK are also defined. These include secret traditional knowledge, sacred traditional knowledge, narrowly diffused traditional know ledge, and widely diffused traditional knowledge. The UN Committee on Economic, Social and Cultural Rights applies a broader notion of protection. In its General Comment No 17 (at para 32), it clarified with specific regard to indigenous peoples that ‘States parties should adopt measures to ensure the effective protection of the interests of indigenous peoples relating to their productions, which are often expressions of their cultural heritage and traditional knowledge [. . .]. Such protection might include the adoption of measures to recognize, register and protect the individual or collective authorship of indigenous peoples under national intellectual property rights regimes and should prevent the unauthorized use of scientific, literary and artistic productions of indigenous peoples by third parties.’ 36 For definitions, WIPO, The Protection of Traditional Knowledge (n 35) 7. 37 WIPO, The Protection of Traditional Knowledge (n 35), at art 1 (emphasis added). 38 Peter Drahos and Susy Frankel, ‘Indigenous Peoples’ Innovation and Intellectual Property: The Issues’ in Peter Drahos and Susy Frankel (eds), Indigenous Peoples’ Innovation: Intellectual Property Pathways to Development (Australian National University Press 2012) 9.

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466 Mira Burri brief introduction to the current IP framework, we move on to a more concrete attempt to match different types of IP rights with demands for TK/TCE protection by looking at patent, trademark, and copyright in more detail.39

3. Interfacing Cultural Heritage and Intellectual Property Protection 3.1 Intellectual Property Law ‘Intellectual property’ is a general term that refers to a variety of legal mechanisms that protect intangible property rights.40 Unlike real property, which can be protected by certain physical means, intellectual property is mainly protected by sets of enforceable rights. Much of the justification of the legal institution of intellectual property stems from the nature of public goods.41 It is argued that creative artefacts resemble public goods and that public goods possess the specific features of being non-rivalrous and non-exclusive—in contrast to private goods, they can be consumed by more than one person simultaneously and cannot be sequestered. For rational consumers, there is then a tendency to free-ride on public goods.42 As a consequence, there may be no incentives to create these public goods, and they may be undersupplied in a society. The intellectual property right, in particular in the domain of patent and copyright, is there to remedy this situation by giving its holder a temporary and limited monopoly over her creations,

39 For a fully fledged analysis, see e.g. Silke von Lewinski (ed), Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (2nd edn, Kluwer Law International 2008); Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar 2015). 40 Under IP as a general category, one understands the rights granted to creators and inventors to control the use made of their productions. They are traditionally divided into two main branches: (i) ‘copyright and related (or neighbouring) rights’ for literary and artistic works and (ii) ‘industrial property’, which encompasses trademarks, patents, industrial designs, geographical indications, layoutdesigns of integrated circuits. For an introduction to intellectual property law, see e.g. William Cornish, David Llewelyn, and Tanya Aplin, Intellectual Property: Patents, Copyrights, Trademarks and Allied Rights (Sweet and Maxwell 2013); Frederick M. Abbott, Thomas Cottier, and Francis Gurry, International Intellectual Property in an Integrated World Economy (3rd edn, Wolters Kluwer 2015); Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases, and Materials (Oxford University Press 2016). 41 The utilitarian theory is not the only one in intellectual property rights doctrine. There are many others that relate, for instance, to author’s rights, the author’s labour, or the broader idea of social welfare. See e.g. Peter Drahos, A Philosophy of Intellectual Property (Ashgate 1996); Rosemary Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (Duke University Press 1998); James Boyle, The Public Domain: Enclosing the Commons of the Mind (Yale University Press 2008); Robert P. Merges, Justifying Intellectual Property (Harvard University Press 2011). 42 Mark Lemley, ‘Property, Intellectual Property, and Free Riding’, Texas Law Review 83 (2005), 1031–75.

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Cultural Heritage and Intellectual Property 467 so that she can reap the benefits of this exclusive right and be so incentivized to create new works.43 In essence, and as the US Constitution rather beautifully frames it, the intellectual property protection model was put in place ‘[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’.44 Over the years, intellectual property law has developed a broad palette of increasingly sophisticated tools.45 They can be used ‘to protect both traditional and new forms of symbolic value produced in particular places as they circulate in global commodity markets’.46 Still, intellectual property protection shows substantial deficiencies. Such limitations are embedded in the nature and the mechanisms of intellectual property rights and relate to the centrality of authorship, originality, and mercantilism intrinsic to the ‘Western’ legal model. A large number of non-Western, collaborative, or folkloric modes of production are consequently left outside the scope of its protection, as we show in the following sections. Beyond the specific context of traditional culture, the intellectual property law domain is defined by complex relationships between the private and the public, between creativity, innovation, and the incentives given by intellectual property rights to promote them. Intellectual property law must, at least in theory, strike a balance between the private interests of authors and the public interest in enjoying broad access to their productions.47 Attaining this balance has not been easy, and the system has had overall a bias towards rights-holders’ interests, often undervaluing the importance of the public domain and to the detriment of the intellectual and cultural commons from which future creative works will be constructed.48 43 For a great introduction to the law and economics of intellectual property, see Dan L. Burk, ‘Law and Economics of Intellectual Property: In Search of First Principles’ (2012) 8 The Annual Review of Law and Social Science 397–414, at 400. 44 US Constitution, at art I, Section 8, para 8. 45 See e.g. Laurence R. Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking’ (2001) 29 The Yale Journal of International Law 1. 46 Rosemary J. Coombe, Steven Schnoor, and Mohsen Ahmed, ‘Bearing Cultural Distinction: Informational Capitalism and New Expectations for Intellectual Property’ (2007) 40 UC Davis Law Review 891, 916. 47 See e.g. Committee on Economic, Social and Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He Is the Author (Article 15(1)(c)), UN Doc. E/C.12/2005, 21 November 2005, para 35. On General Comment No 17, see Laurence R. Helfer, ‘Towards a Human Rights Framework for Intellectual Property’ (2007) 40 UC Davis Law Review 971; Peter K. Yu, ‘Reconceptualizing Intellectual Property Interests in a Human Rights Framework’ (2007) 40 UC Davis Law Review 1039; Hans Morten Haugen, ‘General Comment No 17 on “Authors’ Rights” ’ (2007) 10 The Journal of World Intellectual Property 53. 48 See e.g. Bellagio Declaration, adopted at the Rockefeller Conference: Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era, 11 March 1993, Bellagio, Italy, reproduced in James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Harvard University Press 1996) 196–200. See also Niva Elkin-Koren and Neil W. Netanel (eds), The Commodification of (Kluwer Law International 2002) 107–32; David Lange, ‘Reimagining the Public Domain’ (2003) 66 Law and Contemporary Problems 463.

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468 Mira Burri The entertainment industries and other actors that monetize on strong intellectual property have continuously asserted that intellectual property rights are the guarantee of innovation and creativity and, thereby, the single most important prerequisite for a vibrant culture. While intellectual property protection certainly fulfils essential economic functions in cultural production and distribution,49 a direct causality between intellectual property (or stronger intellectual property) protection and creativity is equivocal, if not flawed.50 In terms of the establishment of agreed legal principles and institutions, the inter national intellectual property system is one of the oldest—dating back to the 1883 Paris Convention on the Protection of Industrial Property51 and the 1886 Berne Convention on Artistic and Literary Works.52 Over the years, the intellectual property legal regime has expanded and developed a network of sophisticated institutions at all levels of governance—national, regional, and international, with comprehensive substantive and procedural norms.53 The global IP regime is not, however, institutionally contained, nor is it neatly organized—either in terms of treaties or in terms of actors. It involves multiple organizations—some of which have overlapping and even conflicting spheres of competence—such as the World Trade Organization (WTO), the WIPO, the World Health Organization (WHO), the Food and Agricultural Organization of the United Nations (FAO), the United Nations Conference on Trade and Development (UNCTAD), and UNESCO, to name but a few. It is beyond the scope of this chapter to engage in an analysis of the international intellectual property regime, the web of relevant treaties and institutions, and their architecture and impact. For the purposes of our discussion, we wish to stress that contemporary intellectual property governance is defined by complex dynamics, by ‘currents and cross-currents’ that go in different directions.54 One trend that is clearly discernible in this dynamic is the ‘ratcheting-up’ of international IP law-making, whereby there is heightening of standards of protection and strengthening of enforcement mechanisms.55 The first and decisive step in this process was the integration 49 See e.g. Wendy J. Gordon, ‘Intellectual Property’ in Peter Can and Mark Tushnet (eds), Oxford Handbook of Legal Studies (Oxford University Press 2003) 617–46; William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Belknap Press 2003) 11–123. 50 See e.g. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin 2004); Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York University Press 2003); Julie E. Cohen, ‘Creativity and Culture in Copyright Theory’ (2007) 40 UC Davis Law Review 1151. 51 Paris Convention on the Protection of Industrial Property, 20 March 1883, last revised at Stockholm 14 July 1967 and as amended 28 September 1979, 828 UNTS 305. 52 Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, revised at Paris, 24 July 1971 and as amended 28 September 1979, 828 UNTS 221. 53 Thomas Cottier and Marina Foltea, ‘Global Governance in Intellectual Property Protection: Does the Decision-making Forum Matter?’ (2012) 3 The WIPO Journal 139. 54 Peter K. Yu, ‘Currents and Crosscurrents in the International Intellectual Property Regime’ (2004) 38 Loyola of Los Angeles Law Review 323. 55 See e.g. Susan K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge University Press, 2003); Neil W. Netanel, ‘Why Has Copyright Expanded? Analysis and Critique’ in Fiona Macmillan (ed), New Directions in Copyright Law: Vol. 6 (Edward Elgar 2007) 3–34;

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Cultural Heritage and Intellectual Property 469 of intellectual property norms into the trade law system through the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).56 TRIPS created a set of global minimal standards for key forms of intellectual property and linked IP law to the WTO’s dispute settlement system, which provides a uniquely effective way of resolving conflicts at the international level, as well as for enforcing their outcomes.57 Also importantly for the present and future battlefields in international IP law and policy, TRIPS created new types of issue linkages. As Chon observes, [t]he pre-TRIPs classic intellectual property mandate has taken on the character of an invasive species in the post-TRIPs world, to maximize not just innovation but also to drive economic growth and consolidate wealth on the part of intellectualproperty-exporting nations. This has opened a proverbial Pandora’s box of issues related to intellectual property as a consequence of its being ‘trade-related’ [. . .] Once linked to trade, subsequent linkages of intellectual property to other legal regimes such as environmental law with its attendant jurisprudence of sustainable development, human rights, public health, and so on, have followed.58

In the past three decades, we have seen in this context the emergence of multiple fields of contestation and, despite the strong ‘race-to-top’ strategies of industrialized countries in a post-TRIPS world, non-dominant actors, supported by civil society and often facilitated in their concerted efforts by digital technologies, have not only reacted to and opposed the current state of affairs but have also successfully formulated meaningful pathways for change.59 The Development Agenda, adopted by the WIPO General Assembly in 2007,60 is particularly relevant in this context, since it rejected a purely IP-centric view and stressed the benefits of a rich and accessible public domain, access to knowledge, and the UN Susan K. Sell, ‘The Global IP Upward Ratchet, Anti-counterfeiting and Piracy Enforcement Efforts: The State of Play’ (2010) 15 PIJIP Research Paper 1. 56 Agreement on Trade-Related Aspects of Intellectual Property Rights, 1869 UNTS 299; 33 ILM 1197 (1994), entered into force 1 January 1995. 57 See e.g. Ruth L. Okediji, ‘The TRIPS Dispute Settlement and the Sources of (International) Copyright Law’ (2002) 49 Journal of the Copyright Society of the USA 585; Antonina Bakardjieva Engelbrekt, ‘The WTO Dispute Settlement System and the Evolution of International Intellectual Property Law: An Institutional Perspective’ in Annette Kur and Marianne Levin (eds), Intellectual Property Rights in a Fair World Trade System: Proposals for Reform of TRIPS (Edward Elgar 2011) 106–66. 58 Margaret Chon, ‘A Rough Guide to Global Intellectual Property Pluralism’ in Rochelle Dreyfuss, Harry First, and Diane L. Zimmerman (eds), Working within the Boundaries of Intellectual Property (Oxford University Press 2010) 445–69. 59 See e.g. Laurence R. Helfer, ‘Mediating Interactions in an Expanding International Intellectual Property Regime’ (2004) 36 Case Western Reserve Journal of International Law 123; Amy Kapczynski, ‘The Access to Knowledge Mobilization and the New Politics of Intellectual Property’ (2008) 117 The Yale Law Journal 804; Jerome H. Reichman and Keith Maskus (eds), International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime (Cambridge University Press 2005); Neil W. Netanel (ed), The WIPO Development Agenda: Global Intellectual Property and Developing Countries (Oxford University Press 2009). 60 WIPO Doc. A/43/16, Annex A.

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470 Mira Burri development goals, as well as the need to balance the costs and benefits of intellectual property protection.61 WIPO’s search for new forms that accommodate (i) the preservation and safeguarding of intangible cultural heritage; (ii) the promotion of cultural diversity; and (iii) the promotion of creativity and innovation, including traditionbased forms, can be seen within this mandate.62 So far these efforts have not been successful, and we have not seen the emergence of a regime that is tailored to the specific issues, concerns, and interests in the field of cultural heritage. In the following, we look at the existing rules for discrete types of intellectual property and ask whether they can adequately address the need to protect, both offensively and defensively, expressions of cultural heritage in the forms of TK and TCE. Each form of intellectual property has a specific subject matter of protection. The requirements for the grant of protection, the conditions and the duration of protection, as well as the nature of the rights granted, do differ across the types of intellectual protection. While TRIPS provides for minimum standards of protection with regard to patent, trademark, copyright, designs, layout-design of integrated circuits, trade secrets, and geographical indications, it leaves room for flexibility for going beyond these standards or, in some cases, for rules that reflect national preferences and sensitivities. In this sense, and because presently no international instrument prescribes common standards for TK/TCE protection, there is, at least to some extent, flexibility to implement protective rules at the national level. It is also evident that there can be substantial differences across jurisdictions. In the following, when discussing patents, trademarks, and copyright and their interface with TK and TCE, we refer to the rules stemming from TRIPS and the most common models adopted in key jurisdictions.63 We refer also to some cases that have specifically targeted TK/TCE protection.

3.2 TK and Patents Patents protect inventions. An invention is a product or a process that provides an innovative way of doing something or offers a new technical solution to a problem. In order to incentivize continuous innovation, as noted earlier, the patent gives its holder certain exclusive rights. She may prevent others from making, using, offering for sale, selling or importing for those purposes the invention during the patent term. But there is a trade-off: this term is limited and does not exceed twenty years in most jurisdictions. Also, when applying for a patent, it is critical that detailed information about the 61 Neil W. Netanel, ‘The WIPO Development Agenda and Its Development Policy Context’ in Netanel, The WIPO Development Agenda (n 59) 2. 62 WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3, 2 May 2003, Annex, para 8. 63 See e.g. Dan L. Burk, ‘Patents and Related Rights: A Global Kaleidoscope’ in Rochelle Dreyfuss and Justine Pila (eds), The Oxford Handbook of Intellectual Property Law (Oxford University Press 2017) 461–86.

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Cultural Heritage and Intellectual Property 471 invention is disclosed, which would enable others to make the invention without undue experimentation. While the criteria for patentability may vary from country to country, there are a few common conditions required for the grant of a patent: (1) novelty is the first element and means that the invention must be new, not known in the body of existing knowledge in the relevant technical field; (2) inventive step, also referred to as non-obviousness, is the second requirement, which demands that the invention is not be evident or obvious to a person skilled in the art; and (3) the third requirement is that of industrial applicability, or utility, which means that the invention must be capable of being produced or used in any kind of ‘industry’ in the broad sense, or it must be useful and provide some practical benefit. TK may have difficulties in satisfying these criteria. The patent grant may be denied in particular because often TK is neither novel nor non-obvious. Novelty is assessed against the prior art, and prior art encompasses anything that was known or disclosed before the date of the patent application’s filing. TK may be considered prior art if it has already been published, publicly used, or orally disclosed. Indeed, in many situations TK is part of prior art that has been documented, so it will not qualify as an invention. Only in few cases have there been patents granted to Indigenous people or local communities—these patents were, however, granted for inventions developed using TK but not for the TK itself.64 The existing examples that have led to a patent are often linked to a collaboration between TK holders and research institutions that further develop the traditional know-how and innovate around or on top of it. For instance, the Chuulangun Aboriginal Corporation, which united descendants of a focal Kuuku I’yu Northern Kaanju ancestor, and the University of South Australia conducted research based on bush medicine plants and, through testing specific pharmacological activities, could identify compounds that can be used in the treatment of inflammation.65 A patent was granted and is now jointly owned by the University and the Chuulangun Aboriginal Corporation. This is an excellent example of an equitable partnership between Indigenous communities and Western researchers in the investigation of traditional medicinal plant knowledge, as the partners can decide on how the compounds they identified will be commercialized and share the economic benefits.66 Such a project also reflects well the aims defined in the IGC discussions at WIPO, which wished to provide for the beneficiaries ‘the exclusive and collective right to maintain, control, use, develop, authorize or prevent access to and use/utilization of their traditional knowledge; and receive a fair and equitable share of benefits arising from its use’, as well as their ‘moral 64 WIPO, Protect and Promote Your Culture, A Practical Guide to Intellectual Property for Indigenous Peoples and Local Communities (WIPO 2017) 37. 65 Australia Patent 2,010,317,657, issued 19 May 2011, available at . 66 See .

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472 Mira Burri right of attribution and the right to the use of their traditional knowledge in a manner that respects the integrity of such traditional knowledge’.67 Yet, and this is an important issue that we will discuss in the context of copyright in more detail, such a patent protection is clearly limited in time—the twenty-year patent term, even if extended, is bound to come to an end. Neither can a patent be held by a clan group with all ancestors as a whole.68 In a more general sense, the Kuuku I’yu Northern Kaanju example illustrates how the value of TK as an input into innovation has increased—an increase that has also been driven by some exogenous factors, such as those related to globalized media and digitally enabled access to information, which have made both TK and their violations and the sophisticated modes of ‘Western’ IP protection visible. A second important factor is the development of various scientific techniques to identify genes and sequence genomes, which have permitted novel ways of using TK-related natural resources.69 Because TK as prior art is an obstacle for the grant of a patent, it can be a very effective tool of defensive protection. One well-known example relates to the US patent proced ure on the use of turmeric to augment the healing process of chronic and acute wounds. The patent was initially granted, as the claimed invention was considered novel at the time of application on the basis of the information then available to the examining authority. The patent was subsequently challenged and found invalid, as further documentation was made available, including ancient Sanskrit texts, which demonstrated that the claimed invention was indeed already traditional knowledge.70 The information about TK is, however, not always readily available, and, as patent examination procedures may differ substantially across jurisdictions, there is no guarantee that the TK will be duly taken into account as prior art. Presently, there is no specific international requirement that patent applicants should disclose the source or origin of TK used in the claimed invention, nor to disclose information on prior informed consent and equitable benefit-sharing.71 In 2001, and as a reaction to the turmeric case, 67 WIPO, The Protection of Traditional Knowledge (n 35) art 5. 68 Susy Frankel, ‘Traditional Knowledge, Indigenous Peoples, and Local Communities’ in Dreyfuss and Pila, The Oxford Handbook of Intellectual Property Law (n 63) 758–790, at 778–779, referring also to David J. Claudie, Susan J. Semple, Nicholas M. Smith, and Bradley J. Simpson, ‘Ancient but New: Developing Locally Driven Enterprises Based on Traditional Medicines in Kuuku I’yu Northern Kaanju Homelands, Cape York, Queensland, Australia’ in Drahos and Frankel, Indigenous Peoples’ Innovation (n 38) 29–56. 69 Munzer and Raustiala, ‘The Uneasy Case’ (n 32), at 51–2; also Madhavi Sunder, ‘The Invention of Traditional Knowledge’ (2007) 70 Law and Contemporary Problems 97, 98. 70 US Patent 5,401,504, issued 28 March 1995, available at . 71 A number of countries have established specific mechanisms relating to TK (as well as for genetic resources, which we do not discuss here), in the form of additional disclosure requirements in their patent laws. These require the patent applicant to disclose the source or origin of TK used in the claimed invention, and in some cases also to provide evidence of prior informed consent and conclusion of arrangements for equitable sharing of benefits. Such a requirement has not been established under inter national law, although a proposal has been made and supported by a number of countries to revise the TRIPS to introduce such a requirement, and several proposals for such a requirement have also been made in WIPO.

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Cultural Heritage and Intellectual Property 473 India was one of the first countries that sought to address this problem of unpublished TK through its Traditional Knowledge Digital Library (TKDL).72 The TKDL contains around thirty million pages of Indian ancient and traditional knowledge translated into English, Japanese, French, German and Spanish. It enables search73 with the help of information technology tools and an innovative classification system – the so-called Traditional Knowledge Resource Classification (TKRC).74 On a global level, the principal tool for locating technical information for patent purposes, the International Patent Classification, has also been expanded to take better account of TK subject matter, in particular concerning medicinal products based on plant extracts.75 The Patent Cooperation Treaty (PCT), the treaty for cooperation in the field of patent applications, which is administered by WIPO, also provides for an international search and examination that takes into account TK-related information resources, which increases the likelihood that relevant TK will be located at an early stage in the life of a patent application.76 The opportunities for effective defensive protection through databases have been clearly recognized in the work of the WIPO IGC. The latest Draft Articles sought in this sense to create an obligation for the signatories to facilitate the development of national databases for the defensive protection of TK, and/or for transparency, certainty, conservation purposes, and/or transboundary cooperation. Requirements for common standards, agencies’ cooperation, and requirements for proper safeguarding and use of the data sensitive to local and Indigenous communities were also noted.77 New technological developments, in particular digitization, may arguably allow not only for a wider dissemination and facilitated access to information78 but also for more adequate ways of collecting and representing traditional knowledge. Some techno logical tools, including digital rights management systems (DRM), may be, for instance, applied so as to reflect better the very different and sometimes conflicting demands of Indigenous peoples—for openness and secrecy or for different levels of access according to privileges or skills of different community members.79 By overcoming the fears 72 The TKDL website is at . 73 Access to TKDL is presently available to nine International Patent Offices (European Patent Office, United States Patent and Trademark Office, Japan Patent Office, United Kingdom Patent Office, Canadian Intellectual Property Office, German Patent Office, Intellectual Property Australia, Indian Patent Office, and Chile Patent Office) under TKDL Access (Non-disclosure) Agreement. As per the terms and conditions of the Access agreement, examiners of patent offices can utilize TKDL for search and examination purposes only and cannot reveal the contents of TKDL to any third party unless it is necessary for the purpose of citation. 74 So far more than 200 patent applications of the pharmaceutical companies of United States, Great Britain, Spain, Italy, China etc. have either been set aside, withdrawn, or amended, based on the prior art evidences present in the TKDL database. See . 75 WIPO, Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO 2015) 36. 76 Ibid. 77 WIPO, The Protection of Traditional Knowledge (n 35) art 5 bis. 78 See e.g. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press 2006). 79 See e.g. Jane Hunter, Bevan Koopman, and Jane Sledge, ‘Software Tools for Indigenous Knowledge Management’, paper presented at GGF-11, Semantic Grid Applications Workshop, Honolulu, 10 June 2004;

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474 Mira Burri Indigenous peoples have of maltreatment of sacred values and symbols, which are core to their identity, and by adequately addressing the fears of embracing digital media, it has been argued that such projects may also facilitate the process of registering and compiling data on traditional knowledge that is subsequently easily searchable and manageable for purely anthropological purposes, for communities’ own representation and active participation, or for defensive IP protection. It is essential to distinguish such participatory archives from the conventional ones, where ‘Indigenous voices have had little impact in shaping the information architectures that underlie how cultural heritage is organized and disseminated online’.80 Kansa refers to these ‘old’ archives as ‘“top down” models of cultural heritage dissemination’81 and notes that ‘[t]he imposition of a culturally alien database schema dissociates indigenous culture from its context, making it lose much, if not all, of its meaning. Such attempts at cultural heritage documentation may have little relevance to a local community; worse, it may be seen as an act of appropriation, even if motivated by a desire to help.’82 The WIPO has created a helpful database83 of existing codes, protocols, and policies related to the safeguarding of, access to, and control over cultural heritage—many of them have made proper use of the affordances of digital media.

3.3 TCE/TK and Trademarks Depending on the specificities in national law, the scope of protection of a trademark may differ. But this scope tends to be broad, and, typically, a trademark may consist of words, letters, numbers, drawings, symbols, the shape and packaging of goods, or a combination of two or more of these. Unlike patent and copyright, which are legal rights that seek to foster creativity, the purpose of trademark as a distinctive sign is different. On the one hand, since the sign is associated with certain products and services, it can lower consumer search costs, as consumers make quicker and better choices as to the products and services they wish to buy because of their quality or the goodwill of the company that produces them. Through trademarks, companies can build exclusive reputation and so create loyalty among consumers—they are also incentivized to invest in product quality. On the other hand, marks can guard against competitors making unauthorized use of a duplicate or similar mark for passing off goods to unwitting consumers.84 Overall, trademarks have certainly become a major vehicle for marketing also see Kimberly Christen, ‘Tracking Properness: Repackaging Culture in a Remote Australian Town’ (2006) 21 Cultural Anthropology 416. 80 Eric Kansa, ‘Indigenous Heritage and the Digital Commons’ in Christoph Antons (ed), Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region (Kluwer Law International 2009) 219–44, at 223–4. For a critique of static databases, see also Michael F. Brown, Who Owns Native Culture? (Harvard University Press 2003) 206–10. 81 Kansa, ‘Indigenous Heritage’ (n 80) 223–5. 82 Ibid, 22. 83 The database is available at . 84 Burk, ‘Law and Economics of Intellectual Property’ (n 43) 409; also Landes and Posner, The Economic Structure of Intellectual Property Law (n 49) 166–208.

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Cultural Heritage and Intellectual Property 475 and branding in the contemporary global economy and companies continually invest in their brands, so as to achieve certain competitive advantage. The owner of a mark has the exclusive right to use it in the relevant territory for the specified goods or services and can prevent others from using it, or from using a confusingly similar mark in relation to identical or similar goods or services. Certain conditions apply in order to gain trademark protection: (1) the trademark must be distinctive or capable of distinguishing the goods and/or services of one provider from those of others; (2) it should not be contrary to morality or public order; and cannot be generic, descriptive, or deceptive; (3) it should not be identical or confusingly similar to other marks that have already been registered for identical or similar goods and/or services; (4) in most countries, registration is an essential element of the trademark protection; this does not apply for well-known marks, which are protected irrespective of registration. There is one distinct feature of trademarks which may be critical for TCE/TK, and that is that although there is a requirement for the payment of renewal fees, trademark protection can last indefinitely. Another flexibility that may be useful for local and Indigenous communities is that there is no requirement for trademarks to be owned and used by just one person or organization; collective ownership is possible. The interfaces between TCE/TK and trademark protection can be multiple. The first one is with regard to defensive protection, and this is particularly important as the misappropriation and commodification of Indigenous words, signs and forms have proliferated in the last two decades—with well-known examples, such as the Lego Bionicles or the Sony Playstation cases, making use of Māori imagery.85 The registration of a trademark provides a procedure for its examination—this can be used as a well-timed check, before the products and services enter the commercial streams, to ensure that certain symbols or other forms of creating a distinct trademark do not go against morality and public order, including Indigenous communities’ considerations. Several jurisdictions have made use of this opportunity. New Zealand’s trademark law, for instance, refuses to register any trademark which may ‘offend a significant section of the community, including Māori’.86 The Commissioner of Trade Marks has appointed an advisory committee to advise whether the proposed use or 85 See e.g. Rosemarie J. Coombe and Andrew Herman, ‘Rhetorical Values: Property, Speech, and the Commons on the World Wide Web’ (2004) 77 Anthropological Quarterly 559; Susy Frankel, ‘Third-Party Trade Marks as a Violation of Indigenous Cultural Property’ (2005) 8(1) The Journal of World Intellectual Property 83. 86 New Zealand Trade Marks Act 2002, section 17(1)(c). For a comprehensive analysis, see Frankel, ‘Third-Party Trade Marks’ (n 85); see also New Zealand Intellectual Property Office, Protecting Intellectual Property with a Māori Cultural Element: User Guide (Ministry of Business, Innovation and Employment, 2016), available at .

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476 Mira Burri registration of a trademark is, or appears to be, derivative of a Māori sign, including text or imagery, or is, or is likely to be, offensive to Māori.87 In the United States, a trademark may be refused if it consists of matter that may disparage, or falsely suggest a connection with, persons, living or dead, beliefs, or national symbols or bring them into contempt or disrepute,88 which may include TCE as well. Trademark registration procedures may also prevent false or misleading claims as to the authenticity or origin of TCE.89 The risk of deception must, however, be real, and fanciful trademarks will be accepted even though they might be deceptive.90 Databases can again be useful, and the US Patent and Trademark Office (USPTO) has created an insignia database for Native American tribes, which is applied by the examiner on a case-by-case basis to reject any trademark registration that falsely suggests a connection with a person or group.91 Indigenous and local communities may also proactively use trademark as a tool of distinction and branding. With a smart marketing strategy, this can potentially increase consumer recognition of TCE, as well as the commercial benefits for TCE holders.92 Certification and collective marks can be a particularly suitable path to do so.93 A certification mark is capable of distinguishing goods or services, which are certified by the proprietor of the mark in respect of material, mode of manufacture of goods, or per formance of services, quality, accuracy or other characteristics, from goods and services which are not so certified. It should be noted that in some jurisdictions, such as the 87 There have been cases where an offensiveness objection could be overcome. In one case the applicant was advised to seek consent from the relevant authority; in another case, the trademark was considered offensive because it contained a ‘tapu’ word to be used on goods that could serve food (‘noa’). In this case, the applicant amended their trademark specification to goods of a decorative nature and not for use with food. See New Zealand Intellectual Property Office (n 86), at 21. 88 Lanham Act 1946, 15 USC 1052(a). 89 See e.g. Martin A. Girsberger, ‘Legal Protection of Traditional Cultural Expressions: A Policy Perspective’ in Christoph Beat Graber and Mira Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Edgar 2008) 123–59; Susy Frankel, ‘Trademarks, Traditional Knowledge and Cultural Intellectual Property Rights’ in Graeme B. Dinwoodie and Mark D. Janis (eds), Trademark Law and Theory: A Handbook of Contemporary Research (Edward Elgar 2007) 433–63. 90 Daphne Zografos Johnsson, ‘The Branding of Traditional Cultural Expressions: To Whose Benefit?’ in Drahos and Frankel, Indigenous Peoples’ Innovation (n 38) 147–63, at 148. 91 See Justin Hughes, ‘Traditional Knowledge, Cultural Expressions, and a Siren’s Call of Property’ (2013) 49 San Diego Law Review 1251, 1270, referring to Establishment of a Database Containing the Official Insignia of Federally and State Recognized Native American Tribes, 60 Fed. Reg. 44,603 (20 August 2001). 92 Zografos Johnsson, ‘The Branding of Traditional Cultural Expressions’ (n 90) 155. 93 In Kenya, for example, sisal baskets are manufactured in a traditional way. The community of basket weavers have formed the Taita Baskets Association which is the owner of the collective mark ‘Taita Basket’. The mark is being used to protect and promote their baskets and to furthermore establish rules quality standards on the use of the mark. In Peru, traditional farmers, who grow a particular type of potato (famous for its quality and taste) have started using a collective trademark (‘Sumaq Sunqo’) to help promote their potatoes and distinguish them from other sorts not produced in their region. WIPO, Protect and Promote Your Culture, A Practical Guide to Intellectual Property for Indigenous Peoples and Local Communities (WIPO 2017) 8, 20, 42–3.

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Cultural Heritage and Intellectual Property 477 European Union, which has only recently introduced the certification mark,94 it cannot be used for the purpose of distinguishing goods or services certified in respect of the geographical origin—a protection that is provided by a discrete IP form, that of geographical indications (GIs).95 When applying for a certification mark, it is necessary to provide information as to the characteristics of the goods or services to be certified; the conditions governing the use of the certification mark; and the testing and supervision measures to be applied by the certification mark owner. Unlike collective marks, certification marks are not confined to any membership. They can be used by anybody who complies with the standards defined by the owner of the certification mark. In contrast, a collective mark is a mark which distinguishes the goods or services of members of a particular association, which is the proprietor of the mark, from those of other undertakings. There is no requirement for certification of the goods or services, but the proprietor association may choose to adhere to certain standards. The duration and scope of protection applicable to collective marks are similar to those of ordinary trademarks. The cost of registering and renewing a collective mark will usually be shared among the members of the association and is therefore overall lower in comparison to ordinary trademarks.96 It can be summed up that: [t]he registration of a certification or collective mark can help indigenous communities distinguish their TCEs, promote their art and artists nationally and inter nationally, and maintain the integrity of their culture. In addition, a certification or collective mark can be a valuable tool to help improve their economic position and ensure they get fair and equitable returns. Finally, these tools can be used by indi genous communities to raise public awareness and maximise consumer certainty as to the authenticity of the goods marketed under the mark.97 94 There are variations across jurisdictions with regard to certification and collective marks. As Zografos Johnsson clarifies (a) some laws permit registration of certification marks only, in which case use of the marks is open to all who meet the standards; (b) others permit registration of collective marks only, in which case collective marks may also perform a certification; and (c) there is a third group of countries, which permits registration of both certification and collective marks. See Zografos Johnsson, ‘The Branding of Traditional Cultural Expressions’ (n 90) 161. 95 We do not address GIs in this chapter. For excellent analyses, see Antony Taubman, ‘Saving the Village: Conserving Jurisprudential Diversity in the International Protection of Traditional Knowledge’ in Jerome H. Reichman and Keith Maskus (eds), International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime (Cambridge University Press 2005) 521–60; Susy Frankel. ‘The Mismatch of Geographical Indications and Innovative Traditional Knowledge’ (2011) 29 Prometheus 253; Daniel Gervais, ‘Traditional Innovation and the Ongoing Debate on the Protection of Geographical Indications’ in Drahos and Frankel, Indigenous Peoples’ Innovation (n 38) 121–46; Tomer Broude, ‘Taking “Trade and Culture” Seriously: Geographical Indications and Cultural Protection in WTO Law’ (2014) 26 University of Pennsylvania Journal of International Law 624; Irene Calboli, ‘Of Markets, Culture, and Terroir: The Unique Economic and Culture-related Benefits of Geographical Indications of Origin’ in Daniel Gervais (ed), International Intellectual Property: A Handbook of Contemporary Research (Edward Elgar 2015) 433–64. 96 Zografos Johnsson, ‘The Branding of Traditional Cultural Expressions’ (n 90) 160. 97 Ibid, 161–2.

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478 Mira Burri Yet, and this is critical, the trademark is not a hard type of IP right that allows its holder to exclude others, as patent does. They can only limit who can use a certain name, sign, or symbol that is the subject of the trademark protection. Finally, despite all good intentions behind the introduction of a collective or a certification mark, certifications schemes do not always work—either because they encounter difficulties in the Indigenous communities or because there is no awareness and interest shared by consumers.98

3.4 TCE and Copyright Copyright can be said to be the most relevant protection mechanism as far as TCE are concerned. Copyright has a broad scope and can protect a wide range of literary, artistic, and scientific creations, such as novels, poems, plays, films, musical compositions, choreographs, paintings, drawings, photographs, and sculpture. Copyright protects the expression of ideas but not the ideas themselves; facts too are usually not copyrightable. To qualify for protection, there is a threshold of originality that must be passed. In most countries, however, the work of authorship need not be novel or ingenious or have aesthetic merit in order to satisfy the originality requirement. For example, the US Supreme Court defined originality as requiring only that the work be independently created by the author and that it possess ‘at least some minimal degree of creativity’.99 Copyright protection is available for works made by more than one author, provided that the authors are identifiable, or in cases where a legal entity is the copyright owner of works. In some countries, such as the United States, fixation in a tangible form may be required. To be protected under copyright, no other formalities, such as registration, are typically required—there is in this sense a sort of automatism in the granting of copyright protection—upon the creation of the work or its fixation. Copyright is understood as a package of rights—it encompasses economic and moral rights. The latter seek to protect the integrity and reputation of the creator of the copyrighted work but are not enshrined to the same extent in all jurisdictions. Economic rights would last for at least fifty years following the death of the author or the last surviving author in cases of joint authorship. The precise duration of protection will depend on national law; afterwards, the work will fall into the public domain and creators and licensees can no longer control the distribution and use of the work. Moral rights, on the other hand, might last indefinitely, again depending on national law. 98 Graber and Lai have examined different certification schemes, in particular the Australian one, and identified the reasons for their lack of success. They found that reasons for the failure of the Australian system were: (1) the top-down nature of the system and the poor consultation with the relevant stakeholders prior to its inception; (2) difficulties in defining and controlling the standard of ‘authenticity’; (3) non-independence of the certifier, which was the same body that set the standards and owned the trademarks; and (4) poor funding of the system, which meant an inability to market the initiative. See Christoph B. Graber and Jessica Lai, ‘Indigenous Cultural Heritage and Fair Trade: Voluntary Certification Standards in the Light of WIPO and WTO Law and Policy-making’ in Drahos and Frankel, Indigenous Peoples’ Innovation (n 38) 95–119. 99 Feist Publications v Rural Telephone Service Co., 499 U.S. 340 (1991).

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Cultural Heritage and Intellectual Property 479 Most copyright owners have exclusive rights over the reproduction, public performance, public display, distribution, and making of derivative works. In all cases, the plaintiff will have to prove that the defendant copied from the copyrighted material in a way that is qualitatively or quantitatively substantial: ‘[t]hat is, copyright is only valid against those who “free-ride”, and not against fully independent creators’.100 So, unlike under patent, ‘reverse engineering’ under copyright is permitted. Copyright owners can generally license their works—retaining ownership but granting permission for other people to use the rights in specific ways. Rights may be transferred or licensed in exchange for a one-off fee or periodic royalties. Copyrights may also be bought, subdivided, and inherited, so overall the rights-holder can often be an individual other than the original creator. As noted earlier, copyright is meant to foster creativity by a trade-off between the creator’s limited monopoly over her works and the access by others to the copyrighted works. For this purpose, copyright is not an absolute right; there are various exceptions and limitations designed to balance the needs to protect creativity and disseminate information. Jurisdictions differ here in their approaches in implementing the three-step test of TRIPS,101 which broadly defines the test for permitting exceptions and limitations, but they all provide different opportunities to access and use copyrighted works without the permission of the rights-holder and without remuneration—for instance, for the purposes of citation, parody, news reporting, or research and education. One could argue that TCE and copyright are a good match because they are both about creative works. Yet, there are some notable mismatches:102 (a) Originality: With originality, there are at least two clusters of contentious issues that become evident in the attempts to interface TCE and copyright. First, although the threshold of originality is fairly low in most national jurisdictions, it is still an essential element. Many traditional literary and artistic productions are not ‘original’ in this sense, as they are often passed down—substantially unchanged—from generation to generation. Indeed, because Indigenous art has a function as a historical and sacred text, innovation may be restricted, and there may be a close supervision as to who can reproduce it.103 It should also be added that copyright cannot protect the Indigenous ‘style’ but only elements of that style to the extent that it incorporates original expression. At the same time, it is often the reputation associated with a TCE, as embodied or 100 Gordon, ‘Intellectual Property’ (n 49) 630. 101 Art 13 TRIPS. On the three-step test and its interpretation, see e.g. Jo Oliver, ‘Copyright in the WTO: The Panel Decision on the Three-Step Test’ (2002) 25 Columbia Journal of Law and the Arts 119; Martin Senftleben, ‘Towards a Horizontal Standard for Limiting Intellectual Property Rights? WTO Panel Reports Shed Light on the Three-Step Test in Copyright Law and Related Tests in Patent and Trademark Law’ (2006) 37 International Review of Intellectual Property and Competition Law 407; Carlos M. Correa, Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement (Oxford University Press 2007) 146–53; Christophe Geiger, Daniel Gervais, and Martin Senftleben, ‘The Three-Step Test Revisited: How to Use the Test’s Flexibility in National Copyright Law’ (2014) 29 American University International Law Review 581. 102 All of these have been discussed in the work of WIPO IGC. See WIPO, TCE Gap Analysis, Annex 1. 103 Christine Haight Farley, ‘Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?’ (1997) 30 Connecticut Law Review 1, 21.

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480 Mira Burri represented by its distinctive ‘style’, that is the object of misappropriation. In an even broader sense, copyright law is poorly equipped to adequately protect TCE as an integral part of the history and life of the Indigenous and local communities. As Frankel explains with the example of the Indigenous art of marking the skin ta moko, while copyright may protect some expression of ta moko, as each is unique and personal, it cannot protect the knowledge, traditions, and rules that accompany various ta moko, and when the Ford Motor Company put ta moko on cars and Sony used it in a video game, ‘they detach ta moko from the rules and traditions that maintain and develop it’.104 The second cluster of issues relates to the defensive protection of TCE. Works derived from materials in the public domain can be copyright-protected, because a new interpretation, arrangement, adaptation, or collection of public domain materials, or even their ‘re-packaging’ in the form of digital enhancement, can result in a new distinct expression which is sufficiently original. In this sense, individuals not part of the Indigenous community can create original works based on TCE. The question here is whether and in what form there should be regulation of derivative works created by authors not connected with the traditions and cultural materials they adapted or were inspired by. While there have been some patent cases of misappropriation, where the Indigenous and local communities have defended their interests,105 other cases of creative derivative works may not be as clear-cut. (b) Ownership: protection of copyright requires the identification of a known individual creator or creators in order to determine the holders of rights and to identify precisely who might benefit from such rights. As WIPO has pointed out: ‘It is difficult, if not impossible, however, to identify the creators of TCEs, and hence the rights-holders and beneficiaries in TCEs, because TCEs are communally created and held and/or because the creators are simply unknown and/or unlocatable. The very concept of “ownership” in the IP sense may also be alien to many indigenous peoples’.106 WIPO has additionally clarified that [e]ven where an individual has developed a tradition-based creation within his or her customary context, the creation is not ‘owned’ by the individual but falls within a shared sense of communal responsibility, identity and custodianship. This is what marks such a creation as ‘traditional’. TCEs might well have had an author at some stage, but that author is now unknown or simply unlocatable.107

Courts have been prepared to recognize communal interests in a copyright work. In the Australian case of Bulun Bulun v R & T Textiles,108 the court held that where an individual Indigenous artist is given permission by an Indigenous community for the creation of an artistic work in accordance with the requirements of customary law and custom, the artist may owe fiduciary obligations to act to preserve the integrity of communal 104 Frankel, ‘Using Intellectual Property Rules’ (n 12) 630. 105 Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240. This case in Australia was the first in which a court declared that Aboriginal artists must be compensated for the unauthorized use of their art. 106 WIPO, TCE Gap Analysis, Annex 1, at 10. 107 Ibid, at 4. 108 Bulun Bulun v R & T Textiles (Pty) Ltd (1998) 41 IPR 51338.

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Cultural Heritage and Intellectual Property 481 c ulture. Such fiduciary obligations may arise out of the relationship between the artist and the community as one of mutual trust and confidence. Customary law is part of the factual matrix which characterizes the relationship. Arising out of the fiduciary relationship, the community’s primary right was to bring an action against the artist to enforce his fiduciary obligations in the event of a breach of his obligations. (c) Fixation: the fixation requirement existing in many national copyright laws prevents intangible and oral expressions of culture, such as tales, dances or songs, from being protected unless and until they are fixed in some form or medium. Even certain ‘fixed’ expressions, such as face painting, body painting, and sand carvings, may not meet the requirement. Moreover, rights in recordings and documentation of TCE vest in the person responsible for these acts of fixation, such as ethnomusicologists, folklorists, and other researchers, and not in the TCE bearers. (d) Term of protection: the limited term of protection in copyright, related rights, and industrial designs is claimed to be inappropriate for TCE. It fails to meet the need to protect TCE in perpetuity or at least as long as the community exists. The limited term of protection also requires certainty as to the date of a work’s creation or first publication, which is often unknown in the case of TCE. (e) Exceptions and limitations: apart from the limited term of protection, it has been argued that other exceptions and limitations commonly found in copyright laws are not suitable for TCE. For example, typical exceptions, which allow a sculpture or work of artistic craftsmanship permanently displayed in a public place to be reproduced in photographs or drawings without permission, may seriously disturb Indigenous sens ibilities and undermine customary rights. Similarly, national copyright laws often allow public archives, libraries, and the like to make reproductions of works and keep them available for the public. Some of these exceptions and limitations have been criticized by Indigenous and traditional communities, and others have stressed the need for any exceptions and limitations to take into account the public interest.

4. Conclusion The relationship between cultural heritage and intellectual property evolves in a profoundly complex setting—with many institutions and actors involved, often with very different or even divergent interests, and within a fragmented legal regime. This chapter revealed only a small part of this complexity and the tensions on both sides, as well as the difficulties when interfacing cultural heritage and intellectual property. We showed that, although intellectual property law has developed sophisticated rules with regard to a variety of intellectual property forms, it is based on certain author-centred and mercantilist premises that do not work well with the protection of traditional knowledge and traditional cultural expressions. The sources, dynamics, and embeddedness of cultural heritage cannot be adequately matched by a set of economic rights. Expressions of cultural heritage ‘fail’ the legal tests in IP law precisely because of some of their intrinsic characteristics—because they have been passed from generation to generation,

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482 Mira Burri belong to the community, or cannot be separated from land or religion. We showed, nonetheless, that in the fields of patent, trademark, and copyright protection there are tools that may provide some, albeit imperfect, protection of TK and TCE. The work under the auspices of WIPO has sought in the past decade to address some of the gaps and provide for new international instruments for an improved IP protection of TCE and TK.109 While generally this has been greeted as a positive development, some authors have cautioned against it. Munzer and Raustiala, for instance, have examined existing theories of property in search of a basis for TK protection and argue that, ‘provisions aimed at the “defensive” protection of TK—that is, at halting the (mis)use of TK by nonindigenous actors in patents or copyrighted materials—merit the most support’.110 They find, however, that offensive protection, in which TK holders would have the right to control TK, should not be adopted.111 Some of the concerns Munzer and Raustiala share are that ‘[r]obust TK protection is in great tension with many core principles of the existing IP system; it is not merely something that can be tacked on as a new right [. . .] [and] TK protection aimed solely at indigenous groups requires a compelling theory of discrimination between indigenous and non-indigenous claims’.112 Pager has argued recently that, even if there is some merit in the protection of traditional culture, WIPO’s approach is too broad and may have unintended consequences, in particular because it mixes TCE and TK, and the underlying issues of culture and technical innovation.113 He suggests that ‘TK negotiators should abandon their ambition to use TK rights as the vehicle to redress global inequality and focus instead on drafting a more modest set of treaties that focus narrowly on pragmatic goals: ensuring benefit-sharing for source communities, safeguarding cultural integrity, and preventing unfair competition’.114 It should be noted in a more pragmatic sense that many countries have already adjusted their domestic IP regimes to reflect the concerns of Indigenous and local communities and give them an opportunity to prevent harm and to control their cultural heritage.115 Such an adaptation, which is less ‘top-down’, is more likely to provide for viable mechanisms for interfacing the systems of intellectual property and cultural heri tage, which can protect knowledge and creativity that is not divorced from the customs and societal norms of Indigenous and local communities.116 Finally, it appears that there is an urgent need for a dialogue that involves all stakeholders and transcends the often rigid divides between ‘cultural’ and ‘IP’ debates. 109 For an excellent analysis of the latest draft articles, see Sean A. Pager, ‘Traditional Knowledge Rights and Wrongs’ (2016) 20 Virginia Journal of Law and Technology 82. 110 Munzer and Raustiala, ‘The Uneasy Case’ (n 32) 40. 111 Ibid. 112 Ibid, 66. In the same line, see Hughes (n 91). 113 Pager, ‘Traditional Knowledge Rights and Wrongs’ (n 109). 114 Ibid, 200. 115 See e.g. Frankel, ‘Using Intellectual Property Rules’ (n 12) 785; Susy Frankel, ‘TK and Innovation as a Global Concern’ in Gervais, International Intellectual Property (n 95) 217–45; New Zealand Intellectual Property Office, Protecting Intellectual Property (n 86). 116 Frankel, ‘Using Intellectual Property Rules’ (n 12) 630–1; also Peter Drahos, ‘A Networked Responsive Regulatory Approach to Protecting Traditional Knowledge’ in Daniel J. Gervais (ed), Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPSplus Era (Oxford University Press 2007) 385–416.

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chapter 21

Cu ltu r a l H er itage i n I n ter nationa l I n v estm en t L aw Valentina Vadi*

1. Introduction Cultural heritage is a multifaceted concept that includes both tangible (e.g. monu ments, sites, cultural landscapes) and intangible cultural resources (e.g. music, cultural practices, food preparation). While culture represents inherited values, ideas, and tradi tions that characterize social groups and their behaviour, heritage indicates something to be valued and handed down from one generation to another. Cultural heritage can epitomize society’s most cherished values that define a nation’s identity. The protection of cultural heritage constitutes a public interest of the State, but it can also encapsulate a public interest of the international community as a whole.1 There is no single definition of cultural heritage at the international law level; rather, different legal instruments provide ad hoc definitions often focusing on distinct categories of cultural heritage—namely,

* An earlier version of this chapter was presented at the policy symposium Understanding Europe’s New Diversity: How Can Frontier Research Help Europeans Live Better Together? organized by Science|Business in collaboration with the European Research Council (ERC) held on 18 June 2018 in Brussels and at the Sant’Anna School of Advanced Studies, University of Pisa, Italy, on 26 November 2018. The author wishes to thank the participants to the conference as well as Professor Francesco Francioni, Professor Ana Vrdoljak, and Wade Guyitt for their comments on earlier drafts. The usual disclaimer applies. The research leading to these results has received funding from the European Research Council under the European Union’s ERC Starting Grant Agreement n. 639,564. The chapter reflects the author’s views only and not necessarily those of the Union. 1 Francesco Francioni, ‘Public and Private in the International Protection of Global Cultural Goods’ (2012) 23 European Journal of International Law 719 (conceptualizing the protection of cultural heritage as a global public good).

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484 Valentina Vadi intangible cultural heritage and underwater cultural heritage—rather than approaching it holistically.2 The protection and sustainable use of cultural heritage may foster resilience and economic development, enabling individuals and communities to respond to major social and economic changes.3 In parallel, the expansion of foreign direct investment facilitates interaction between different societies and cultural freedom.4 In fact, economic freedoms promote the free flow of ideas, cultural diversity, and equality of opportunities as well as social and economic welfare.5 Both cultural heritage protection and the promotion of economic activities are important public interests that can con tribute to economic growth and the common good. As a result, there can be positive synergies between the promotion of foreign direct investment (FDI) and the protection of cultural heritage. However, this is not always the case. Although economic globalization and inter national economic governance have spurred a more intense dialogue and interaction among nations—potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage—these phenomena can also jeopardize cultural heritage. Foreign direct investment in the extractive industries has the ultimate capacity to change cultural landscapes. In parallel, foreign investment in the cultural industries can induce cultural homogenization. A highly effective international legal framework demands that States promote foreign direct investment. Under most international investment agreements (IIAs), States have agreed to grant arbitrators wide jurisdiction over what are essentially regulatory dis putes. Modern IIAs do not require the intervention of the home State in the furtherance of a dispute. In practice, this means that foreign investors have access to arbitration against the host State if there is an IIA between the home State and the host State. Given that there are more than 3000 IIAs worldwide, investment treaty arbitrations have become increasingly frequent. Foreign investors have increasingly claimed that cultural policies violate international investment law before arbitral tribunals. Arbitral tribunals are given the power to review the exercise of public authority and to settle disputes determining the appropriate boundary between two conflicting values: the legitimate sphere for State regulation for protecting cultural heritage on the one hand, and the protection of private interests from State interference on the other. The variance between the legal protection of cultural heritage and the regulation of economic globalization is by no means new. However, most scholars and practitioners have examined this linkage from an international trade law perspective.6 A seminal 2 Francesco Francioni, ‘Culture, Heritage and Human Rights: An Introduction’ in F. Francioni and M. Scheinin (eds), Cultural Human Rights (Brill 2008) 1–16. 3 Amartya Sen, ‘How Does Culture Matter?’ in V. Rao and M. Walton (eds), Culture and Public Action (Stanford University Press 2004) 37–58. 4 Amartya Sen, Development as Freedom (Oxford University Press 1999). 5 B. Choudhuri, ‘International Investment Law as a Global Public Good’ (2013) 17 Lewis & Clark Law Review 481 (conceptualizing the promotion of foreign direct investments as a public good worthy of being protected). 6 For a comprehensive study, see T. Voon, Cultural Products and the World Trade Organization (Cambridge University Press 2007).

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Cultural Heritage in International Investment Law 485 study investigated the parallel clash between the regulation of foreign direct investment and the protection of cultural resources and illuminated the tension between investors’ rights and the regulatory autonomy of the host State in the cultural field.7 This chapter contributes to the existing literature by discussing the key features of the interplay between the protection of cultural heritage and the promotion of foreign direct investment in international investment law and arbitration and examining several arbi trations that have emerged in the past few years. This recent jurisprudence highlights that arbitral tribunals are increasingly providing consideration to cultural concerns. Yet, the interplay between the protection of cultural heritage and the promotion of foreign direct investment in international investment law and arbitration continues to pose two main problems: 1) an ontological problem concerning the essence of international investment law and international law more generally; and 2) an epistemological problem concerning the mandate of arbitral tribunals. With regard to the ontological problem, two main questions arise: Is international investment law a self-contained regime, or is it part of general international law? Is general international law a fragmented system, or are there tools to enhance its unity? With regard to the epistemological problem, arbitral tribunals often have limited juris diction; depending on the applicable law, they often have a limited mandate to assess State compliance with international investment law. Unless States give arbitral tribunals the specific mandate to ascertain the adequate protection of cultural heritage under international law, such tribunals do not have this mandate. Therefore, the key question is whether they can consider non-investment concerns in the adjudication of invest ment disputes and, if so, to what extent. This chapter addresses these questions and proceeds as follows. First, it highlights the main features of international investment law and arbitration. Second, it discusses several recent arbitrations. Third, it examines whether investment treaty tribunals are considering cultural interests when adjudicating investment disputes. Fourth, it proposes three main legal tools to better address the interplay between economic and cultural interests in international investment law and arbitration. Finally, some conclusions are drawn.

2. International Investment Governance Once deemed to be an ‘exotic and highly specialised’ domain,8 international investment law is now becoming mainstream.9 Due to economic globalization and the rise of 7 See Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge University Press 2014). 8 ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group (Martti Koskenniemi) UN Doc. A/CN.4/L.682 (13 April 2006) para 8. 9 Stephan W. Schill, ‘W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law’ (2011) 22 European Journal of International Law 875.

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486 Valentina Vadi foreign direct investment, the regulation of the field has become a key area of international law and a well-developed field of study. As there is no single comprehen sive global investment treaty, investors’ rights are defined by an array of IIAs, customary international law, and general principles of law. At the substantive level, international investment law provides extensive protection to investors’ rights in order to encourage foreign direct investment and to foster e conomic development. Under IIAs, States Parties agree to provide a certain degree of protection to investors who are nationals of contracting States or their investments. Such protection generally includes compensation in case of expropriation, fair and equitable treatment, non-discrimination, and full protection and security, among others. At the procedural level, international investment law is characterized by sophisti cated dispute settlement mechanisms. While State-to-State arbitration has been rare,10 investor–State arbitration has become the most successful mechanism for settling investment-related disputes.11 Nowadays, most IIAs allow investors to directly access international arbitral tribunals. Arbitral tribunals are typically composed of three members: one arbitrator selected by the claimant, another selected by the respondent, and a third appointed by a method that attempts to ensure neutrality. All arbitrators are required to be independent and impartial. Under this mechanism, investors are not required to exhaust local remedies and no longer depend on diplomatic protection to defend their interests against the host State. The internationalization of investment disputes has been conceived as an important valve for guaranteeing a neutral forum and depoliticizing investment disputes.12 Investor–State arbitration shields investment disputes from power politics and insulates them from the diplomatic relations between States.13 The depoliticization of investment disputes benefits foreign investors, the host State, and the home State.14 First, foreign investors no longer have to rely on the vagaries of diplomatic protection;15 rather, they can bring direct claims and make strategic choices in the conduct of the arbitral pro ceedings. In this regard, investor–State arbitration can facilitate access to justice for for eign investors16 and provide a neutral forum for the settlement of investment disputes.17 Such access is perceived to be necessary to render meaningful the more substantive 10 On State-to-State investment treaty arbitration, see A. Roberts, ‘State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority’ (2014) 55 Harvard International Law Journal 1. 11 S. Franck, ‘Development and Outcomes of Investor–State Arbitration’ (2009) 9 Harvard International Law Journal 435. 12 I.F.I. Shihata, ‘Toward a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA’ (1986) 1 ICSID Review—FILJ 1, 5. 13 S. Puig, ‘No Right without a Remedy: Foundations of Investor–State Arbitration’ (2013–2014) 35 University of Pennsylvania JIL 829, 848–53. 14 A. Roberts, ‘Triangular Treaties: The Extent and Limits of Investment Treaty Rights’ (2015) 56 Harvard International Law Journal 353, 390. 15 Puig, ‘No Right without a Remedy’ (n 13) 844. 16 Francesco Francioni, ‘Access to Justice, Denial of Justice and International Investment Law’ (2009) 20 European Journal of International Law 729. 17 Puig, ‘No Right without a Remedy’ (n 13) 846.

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Cultural Heritage in International Investment Law 487 investment treaty provisions. Second, the depoliticization of investment disputes protects the host State18 by reducing the home country’s interference in its domestic affairs. It prevents or ‘limit[s] unwelcome diplomatic, economic, and perhaps military pressure from strong States whose nationals believe they have been injured’.19 Third, the depoliticization of investment disputes also protects the home State in that it no longer has to become involved in investor–State disputes.20 Arbitral tribunals have reviewed host State conduct in key sectors, including cultural heritage. Consequently, many of the recent arbitral awards have determined the boundary between two conflicting values: the legitimate need for State regulation in the cultural sector on the one hand; and the protection of private interests from State interference on the other.

3. The Diaspora of Cultural Heritage-Related Disputes before International Investment Treaty Tribunals Cultural governance is a battlefield, a place where the interests of multiple players clash. Given that ‘it is the duty of governments to ensure the protection and the preservation of the cultural heritage . . . as much as to promote social and economic development’,21 as well as to protect human rights, it may be difficult to identify the most appropriate man agement of cultural heritage and to strike a balance between conservation goals and economic interests, while fulfilling human rights.22 Given the structural imbalance between the vague and non-binding dispute settle ment mechanisms provided by the international instruments adopted by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) and the highly effective and sophisticated dispute settlement mechanisms available under international investment law, a number of investment disputes related to cultural heritage have been brought before investment treaty arbitral tribunals.23 18 Roberts, ‘Triangular Treaties’ (n 14) 389–90. 19 J. Pauwelyn, ‘At the Edge of Chaos? Foreign Investment Law as a Complex Adaptive System’ (2014) 29 ICSID Review 372, 404. 20 Roberts, ‘Triangular Treaties’ (n 14) 390. 21 Convention concerning the Protection of the World Cultural and Natural Heritage (WHC), 16 November 1972, in force 17 December 1975, 1037 UNTS 151, 11 ILM 1358, art 4. 22 See e.g. Tad Heuer, ‘Living History: How Homeowners in a New Local Historic District Negotiate Their Legal Obligations’ (2007) 116 Yale Law Journal 768, 819 (referring to the need of balancing ‘the preservation of the past, the needs of the present, and the inheritance of the future’). 23 Obviously, this does not mean that these are the only available fora for this kind of dispute. Other tribunals are available such as national courts, human rights courts, regional economic courts,

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488 Valentina Vadi This section examines and critically assesses several recent arbitrations. Given the impact that arbitral awards can have on cultural governance and the growing number of investment arbitrations, scrutiny and critical assessment of this jurisprudence is par ticularly timely and important. Such scrutiny illuminates the way that international investment law responds to cultural concerns in its operation, thus contributing to the ongoing investigation of the role of international investment law within its broader matrix of international law. Although this jurisprudence is not homogeneous, it can be scrutinized according to the taxonomy of the claims brought by foreign investors, including, inter alia, fair and equitable treatment and expropriation.

3.1 Fair and Equitable Treatment In an atypical case, Indigenous peoples acting as foreign investors have complained about measures adopted by the host State, alleging that the State failed to consider their cultural practices. For instance, in Grand River v United States,24 a Canadian tobacco company owned and operated by Indigenous peoples contended that the Master Settlement Agreement—an agreement between tobacco companies and major tobacco producers in the United States—was being applied to their business without their input. Allegedly, such measures violated the fair and equitable treatment standard by violating customary law requiring the consultation, if not consent, of Indigenous peoples on regulatory matters potentially affecting them.25 As the individual claimants were mem bers of the Six Nations of the Iroquois Confederacy, they argued that the tobacco busi ness was their traditional activity, and thus the case involved their intangible cultural heritage. The Arbitral Tribunal, however, did not find any violation of fair and equitable treatment,26 albeit recognizing, in passing, that States should consult Indigenous peoples on matters potentially affecting them.27 In assessing the reasoning of the Tribunal, one finds two significant holdings and one important gap in legal reasoning. First, according to the Tribunal, the fair and equitable treatment standard ‘does not incorporate other legal protections that may be provided to investors or classes of investors under other sources of law’.28 ‘To hold otherwise’, argued the Tribunal, ‘would make Article 1105 [of the North America Free Trade and traditional State-to-State courts and tribunals such as the International Court of Justice or even inter-State arbitration. Some of these dispute settlement mechanisms may be more suitable than investor–State arbitration to address cultural concerns. However, given its scope, this study focuses on the jurisprudence of arbitral tribunals. 24 Grand River Enterprises Six Nations, Ltd et al. v United States of America (hereafter Grand River v United States), UNCITRAL, Award, 12 January 2011. 25 Ibid, para 182(3). 26 Grand River v United States, Award, para 187 (holding that ‘whatever unfair treatment was rendered [to the claimant] or his business enterprise, it did not rise to the level of an infraction of the fair and equitable treatment standard of 1105, which is limited to the customary international law standard of treatment of aliens’). 27 Ibid, para 210. 28 Ibid, para 219.

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Cultural Heritage in International Investment Law 489 Agreement (NAFTA)] a vehicle for generally litigating claims based on alleged infractions of domestic and international law and thereby unduly circumvent the limited reach of Article 1105 as determined by the [NAFTA] Free Trade Commission in its binding directive’.29 In reaching this outcome, the Tribunal followed the NAFTA Free Trade Commission statement that ‘determination that there has been a breach . . . of a separate international agreement does not establish that there has been a breach of Article 1105’.30 Second, the Tribunal held that NAFTA article 1105 required a uniform standard of treatment for all foreign investments, rather than allowing specialized procedural rights based on certain categories of investors (e.g. Indigenous persons).31 Third, the arbitrators did not touch upon the role of article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT),32 which requires adjudicators to take into account ‘any relevant rules of international law applicable in the relations between the parties’.33 Although article 31(3)(c) cannot trigger the importation of external norms into a given treaty system or allow claimants to claim the breach of such external obliga tions, it enables such external rules to shape an arbitral tribunal’s interpretation of a given investment treaty provision. In Crystallex v Venezuela,34 a Canadian company that had invested in one of the lar gest gold deposits in the world, the Las Cristinas deposit in Venezuela, claimed that the conduct of the host State in relation to the mine amounted to, inter alia, a violation of fair and equitable treatment.35 State authorities denied an environmental permit that prevented the exploitation of the mine because of concerns about the project’s environ mental impact. Venezuela pointed out that ‘Las Cristinas lie[s] in the Imataca Reserve, . . . a fragile rainforest with an extremely varied biodiversity and a significant indigenous population’.36 For Venezuela, ‘the Ministry of Environment was obliged to review the project carefully, only approving it once Crystallex had adequately demonstrated that it would not cause unacceptable environmental or social impacts’.37 Venezuela contended that because ‘the environmental and socio-cultural impact of the project proposed by Crystallex could not be mitigated’, ‘its authorization would have been a violation of the Venezuelan government’s obligation to “ensure protection of the environment and the population from situations that constitute imminent damages”’.38 Yet, the claimant pointed out that ‘the justifications adduced by the Ministry of Environment’ for denying the permit, that is, ‘concerns for the environmental and 29 Ibid. 30 NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions, 31 July 2011. 31 Ibid, para 213 (arguing that ‘[t]he notion of specialized procedural rights protecting some investors, but not others, cannot readily be reconciled with the idea of a minimum customary standard of treat ment due to all investments’). 32 Vienna Convention on the Law of Treaties (hereafter VCLT), opened for signature 23 May 1969, in force 27 January 1980, 1155 UNTS 331. 33 VCLT art 31(3)(c). 34 Crystallex International Corporation v Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award, 4 April 2016. 35 Ibid, para 187. 36 Ibid, para 214. 37 Ibid, para 378. 38 Ibid.

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490 Valentina Vadi indigenous people of the Imataca Forest Reserve[,] had never been raised during the four-year approval process and were not supported by a single study . . . to demonstrate that the project would adversely impact the Imataca region’.39 Crystallex also claimed that it had consulted Indigenous communities.40 The Tribunal found that Venezuela breached the fair and equitable treatment stand ard when it denied the environmental permit. In fact, it argued, a letter from the State authorities had created legitimate expectations that the project would proceed.41 Moreover, the permit denial letter did not sufficiently elucidate reasons for rejection; rather, it ‘extend[ed] to a mere two and a half pages’ and vaguely referred to climate change and ‘serious environmental deterioration in the rivers, soils, flora, fauna and bio diversity in general in the plot’.42 While the Tribunal did not contest the State’s ‘right (and the responsibility) to raise concerns relating to global warming, [and] environ mental issues’, it held that the State put forward such concerns in the permit denial letter in a way that ‘present[ed] significant elements of arbitrariness’.43

3.2 Expropriation Several investment treaty arbitrations have dealt with the question of whether regulation allegedly aimed at protecting cultural heritage may be deemed to be an indirect expro priation. For instance, in Glamis Gold v United States of America,44 a Canadian investor claimed, inter alia, that measures requiring the backfilling of a previously extracted open-pit gold mine to preserve the skyline of ancient Indigenous cultural landscape amounted, inter alia, to an indirect expropriation of its investment.45 However, the Arbitral Tribunal found the claimant’s expropriation argument to be without merit. In order to distinguish a non-compensable regulation and a compensable expropriation, the Tribunal established a two-tiered test, by which it ascertained: 1) the extent to which the measures interfered with reasonable expectations of a stable regulatory framework, and 2) the purpose and the character of the governmental actions taken. First, the Tribunal found that the claimant’s investment remained profitable46 and that the back filling requirements did not cause a sufficient economic impact on the investment to constitute an expropriation.47 Second, the Tribunal deemed that the measures rationally related to their stated purpose.48 The Tribunal acknowledged that ‘some cultural artifacts will indeed be disturbed, if not buried, in the process of excavating and backfilling’49 but concluded that, without such legislative measures, significant pits and waste piles in the near vicinity would harm the landscape.50 39 Ibid, para 277. 40 Ibid, para 289. 41 Ibid, para 588. 42 Ibid, para 590. 43 Ibid, para 591. 44 Glamis Gold, Ltd v United States of America (hereafter Glamis Gold v United States), Award, 8 June 2009, available at . 45 Ibid, para 359. 46 Ibid, para 366. 47 Ibid, para 536. 48 Ibid, para 803. 49 Ibid, para 805. 50 Ibid.

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Cultural Heritage in International Investment Law 491 In South American Silver Limited (SAS) v Bolivia, the Bermudan subsidiary of a Canadian company alleged that the host State, inter alia, expropriated the company’s ten mining concessions near the village of Malku Khota in the Bolivian province of Potosí.51 The company requested restitution in kind and damages or, alternatively, full compensation.52 For the company, the government itself, and not the local Aymara communities, ‘was the one pressing for the nationalization of the Malku Khota Project’ for economic reasons, namely the benefits associated with SAS’s discovery of a large deposit of silver, indium, and gallium.53 For the claimant, the expropriation did not have a public purpose, as ‘it b[ore] no logical or proportional relationship with the stated objective of pacifying the area’.54 For Bolivia, the reversion of the concessions to State ownership was justified by a public interest: the need to restore public order in the area and to protect the rights of Indigenous peoples.55 Because of its demographic composition, Bolivia defined itself as a ‘plurinational’ State that acknowledges ‘the precolonial existence of indigenous nations and peoples . . . [and] guarantees their free determination with the frame of the unity of the State, . . . [and] their culture . . . in accordance with [the] Constitution and the law’.56 The Plurinational Constitutional Tribunal of Bolivia has further clarified that the State ‘not only acknowledges the indigenous peoples as different cultures . . . but also as nations’—that is, ‘as historical communities with a determined home territory that shar[e] differentiated language and culture [and have the] political capability to define their destiny . . . within the . . . State’.57 Bolivia noted that ‘several Indigenous Communities [live] in the area of the Project’ and that they have inhabited these lands since time immemorial . . . and ‘shar[ed] territory, culture, history, languages and organizations or legal, political, social and economic institutions of their own’.58 According to the Bolivian Constitution, such communities have, inter alia, ‘the right to land’, including ‘the exclusive use and exploitation of the renewable natural resources’ and the right to the ‘prior and informed consultation and the participation in the benefits for the exploitation of the non-renewable natural resources that are located in their territory’.59 Moreover, they have ‘the power to apply their own norms, . . . and [to define] . . . their development in accordance with their cultural criteria and principles of harmonic coexistence with Mother Nature’.60 Bolivia noted that Indigenous peoples consider Malku Khota as ‘a sacred place’,61 despite the fact that it has been exploited since Spanish colonization,62 and ‘consider themselves ancestral owners of the minerals of the Andean mountains’.63 Therefore, the State contended, opposition to the project came from Indigenous communities that saw 51 South American Silver Limited v the Plurinational State of Bolivia (hereafter SAS v Bolivia), PCA Case No. 2013–15, Claimant’s Statement of Claim and Memorial, 24 September 2014, para 9. 52 Ibid, para 10. 53 Ibid, para 96. 54 Ibid, para 144. 55 SAS v Bolivia, PCA Case No. 2013–15, Objections to Jurisdiction, Admissibility and CounterMemorial on the Merits, 31 March 2015 (unofficial English translation), paras 6–7. 56 Ibid, para 35. 57 Ibid, para 36. 58 Ibid, para 41. 59 Ibid, para 47. 60 Ibid. 61 Ibid, para 90. 62 Ibid, para 71. 63 Ibid, para 72.

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492 Valentina Vadi in the project a violation to their ancestral beliefs and an impending risk to the environment on which their survival depended.64 Bolivia accused the company of fomenting division among the Indigenous communities and thus interfering with their right to self-government and their cultural traditions. From its perspective, the government ‘did not have any other option but to declare the Reversion to re-establish the public order’.65 With regard to the applicable law, the investor argued that international investment law required arbitral tribunals to ‘apply the treaty itself, as lex specialis, supplemented by international law if necessary’.66 Instead, Bolivia expressly required the Tribunal ‘to interpret the Treaty in light of the sources of international and internal law that guaran tee the protection of the rights of the Indigenous peoples’.67 In this regard, it referred to customary norms of treaty interpretation as restated in the Vienna Convention on the Law of Treaties, requiring adjudicators to take into account the context of a treaty, which included, according to article 31(3)(c) of the same Convention, ‘any relevant rules of international law applicable in the relations between the parties’.68 Moreover, Bolivia argued that ‘under international public law, the obligations con cerning the fundamental rights of the Indigenous Communities prevail over the obliga tions concerning foreign investment protection’.69 In support of this argument, Bolivia relied on Indigenous Peoples of Sawhoyamaxa v Paraguay, in which the Inter-American Court of Human Rights held that ‘applying bilateral commercial agreements does not justify breaching State obligations arising out of the American Convention’.70 Bolivia derived the ‘superior position or special status’ of human rights in the international legal system from two pillars. First, article 103 of the Charter of the United Nations provides ‘the supremacy’ of the obligations established in the Charter over any other obligation acquired by its members. Under article 56 of the Charter, its members pledge to take action for the achievement of several purposes, including the respect of human rights.71 Second, Bolivia argued, norms concerning fundamental human rights are erga omnes obligations.72 According to Simma and Kill, ‘norms relating to economic, social, and cultural rights could also constitute rules applicable in the relations among States, even if there [was] no independent treaty obligation running between the States in question . . . [T]he fact that the Vienna Convention’s preamble proclaims the States Parties’ universal respect for, and observance of, human rights and fundamental freedoms for all may tip the scale towards a broader conception of applicability.’73 Bolivia also recalled various international law instruments protecting Indigenous

64 Ibid, para 80. 65 Ibid, para 84. 66 SAS v Bolivia, Claimant’s Statement of Claim and Memorial, para 116. 67 SAS v Bolivia, Objections to Jurisdiction, Admissibility and Counter-Memorial on the Merits, para 192. 68 Ibid, para 193. 69 Ibid, para 202. 70 Ibid, para 203. 71 Ibid, para 205. 72 Ibid, para 206. 73 Ibid, quoting Bruno Simma and Theodor Kill, ‘Harmonizing Investment Protection and International Human Rights: First Steps Towards a Methodology’ in Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich (eds), International Investment Law for the 21st Century: Essays in Honor of Christoph Schreuer (Oxford University Press 2009) 702.

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Cultural Heritage in International Investment Law 493 rights, including the American Convention on Human Rights,74 the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),75 the International Labour Organization (ILO) Convention 169,76 and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.77 It also referred to the United Nations Guiding Principles on Business and Human Rights78 and the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises79 ‘as evidence of the international public order’.80 In its Reply to the respondent’s Counter-Memorial,81 the claimant denied any allegation of unlawful conduct and restated that the Tribunal should rely upon the UK–Bolivia BIT as the main source of applicable law.82 The claimant did ‘not dispute the basic notion that treaties should generally be construed in harmony with international law’83 and conceded that ‘a systemic interpretation of the Treaty [was] called for under international law’.84 Yet, the company contended that ‘Bolivia ha[d] not satisfactorily established why the Tribunal should give primacy to the rights of indigenous communities over the clear terms of the Treaty’.85 In fact, quoting Bruno Simma, the company con tended that article 31(3)(c) of the VCLT ‘can only be employed as a means of harmonization qua interpretation, and not for the purpose of modification, of an existing treaty’.86 The company also pointed out that ‘[t]he phrase “relevant rules of international law” in article 31(3)(c) of the Vienna Convention refers to the sources of law set forth in article 38 of the Statute of the [International Court of Justice], i.e. international conventions, customary international law, [and] general principles of law recognized by civilized nations’.87 Therefore, it contested that the UNDRIP, the UN Guiding Principles on 74 American States Organization, American Convention on Human Rights, 7 to 22 of November of 1969, 1144 UNTS 123, 9 ILM 99 (1969). 75 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) A/RES/61/295, 13 September 2007. The Declaration was approved by 143 nations but was opposed by the United States, Canada, New Zealand, and Australia. However, these four nations subsequently endorsed the Declaration. 76 International Labour Organization, Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, adopted 27 June 1989, in force 5 September 1991, 28 ILM 1382. 77 American States Organization, Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, 9 June 1994, 33 ILM 1534 (1994). 78 United Nations Guiding Principles on Business and Human Rights Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (2011), developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. 79 John G. Ruggie and Tamaryn Nelson, Human Rights and the OECD Guidelines for Multinational Enterprises: Normative Innovations and Implementation Challenges (Harvard Kennedy School Working Paper No. 15–045 2015). 80 SAS v Bolivia, Objections to Jurisdiction, Admissibility and Counter-Memorial on the Merits, para 220. 81 SAS v Bolivia, Claimant’s Reply to Respondent’s Counter-Memorial on the Merits and Response to Respondent’s Objection and Admissibility, 30 November 2015. 82 Ibid, para 238. 83 Ibid, para 245. 84 Ibid, para 238. 85 Ibid. 86 Ibid, para 245, quoting Bruno Simma, ‘Foreign Investment Arbitration: A Place for Human Rights?’ (2011) 60 International Comparative Legal Quarterly 573, 584. 87 Ibid, para 246.

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494 Valentina Vadi Business and Human Rights, and the OECD Guidelines for Multinational Enterprises could be considered ‘rules of international law’ that might be taken into account in the interpretation of treaties.88 The company qualified these instruments as ‘non-binding’ instruments that ‘lack[ed] the State practice and opinio juris elements that would transform them into embodiments of customary international law’.89 With regard to the American Convention on Human Rights, the ILO Convention 169, and the InterAmerican Convention on the Prevention, Punishment, and Eradication of Violence against Women, the claimant noted that its home country, the United Kingdom, is not party to these treaties.90 Moreover, the company argued that ‘Bolivia ha[d] not estab lished, let alone suggested, that [all the mentioned instruments] . . . constitute either customary international law or general principles of law’.91 The claimant thus argued that ‘Bolivia [sought] to use indigenous peoples’ rights as a shield to justify their unlaw ful conduct’.92 The Arbitral Tribunal found that the applicable BIT was ‘the principal instrument by which it [should] resolve the dispute between the Parties’.93 After noting that both par ties agreed that ‘Article 31 of the Vienna Convention sets forth the rules of interpretation for the Treaty’,94 it held that, as a tool for treaty interpretation, systemic interpretation as restated by Article 31(3)(c) of the Vienna Convention should be applied ‘with caution’.95 Relying on Judge Bruno Simma’s scholarship, the Tribunal recalled his warning that ‘systemic interpretation allows for harmonization through interpretation but it cannot be used to modify a treaty’.96 It then concluded that its jurisdiction could not ‘be extended to cover other treaties via Article 31(3)(c) of the Vienna Convention if the States have not consented to such jurisdiction’. In other words, the Tribunal held that it could not ‘alter the applicable law through rules of treaty interpretation’.97 With regard to the applicability of Bolivian law, the Tribunal held that the domestic law was applic able to determine whether an investment was legal; however, it added that it did not ‘find support for a general rule that the provisions of Bolivian law should always prevail over those of the Treaty’.98 Although the Tribunal acknowledged that the claimant’s commu nity relations program had ‘serious shortcomings’ in its relationship with Indigenous communities99 that contributed to social unrest, it held that the host State’s annulment of mining concessions amounted to an unlawful expropriation because it failed to com pensate the company. The Tribunal found that Bolivia did not breach any other treaty standard of protection and only awarded the investor its sunk costs. In Bear Creek v Peru,100 the claimant, a Canadian company, contended that Peru had failed to afford its investment, the Santa Ana silver mining project, the protection set out 88 Ibid, para 247. 89 Ibid. 90 Ibid, para 249. 91 Ibid, para 251. 92 Ibid, para 253. 93 South American Silver Limited v. The Plurinational State of Bolivia, PCA Case No. 2013–15, Award, 22 November 2018, para 208. 94 Ibid, para 210. 95 Ibid, para 212. 96 Ibid, para 214. 97 Ibid, paras 215–6. 98 Ibid, para 218. 99 Ibid, para 480. 100 Bear Creek Mining Corporation v Republic of Perú (hereafter Bear Creek Mining v Peru), ICSID Case No. ARB/14/21, Award, 30 November 2017.

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Cultural Heritage in International Investment Law 495 in the Canada–Peru Free Trade Agreement (FTA). In particular, it claimed, inter alia, that Peru unlawfully expropriated its investment.101 The Santa Ana project lied in a bor der region. Under Peruvian law, foreign nationals could obtain mining rights in border regions only if they made a case to the Peruvian Government for a ‘public necessity’.102 After the company made such a case, and a decree declared that the Santa Ana project was ‘a public necessity’, the claimant obtained the authorization to acquire mining concessions.103 However, protests against the project took place. Protesters demanded the cancella tion of all mining projects and the protection of Khapia Hill, a sacred place for the Aymaras.104 The government subsequently declared Khapia Hill to be part of the nation’s cultural heritage.105 However, this did not stop the civil unrest. After the protest became violent,106 Peru revoked the project’s status as a public necessity—the legal condition for the claimant’s ownership of mineral concessions.107 The amici curiae brief submitted by a non-governmental organization, and accepted by the Arbitral Tribunal, highlights that the Santa Ana project laid in a poor, rural, and border area whose peasant communities belonged to the Aymara group.108 The amici contended that the company ‘did not do what was necessary to understand . . . the Aymara culture . . . [T]he company acted as if it were sufficient to promise benefits to some of the . . . communities in the areas surrounding the project . . . without needing to work closely with [all of the relevant] communities.’109 Therefore, some communities opposed the project and the company ‘did not obtain the social license to operate’.110 According to the brief, ‘the Aymara have a deep respect for mother earth (Pachamama)’111 and ‘have deep cultural and social ties with their . . . land and natural resources’.112 On the one hand, their principal economic activities depend on the land, being agriculture, fishing, and livestock farming.113 On the other hand, for the Aymara, ‘[t]he territory is not only a geographical space but represents a spiritual bond’.114 Therefore, the Aymara people were concerned with the risks that mining activities posed for the ‘guardian mountains’, as such mountains represented ‘extremely important spiritual sanctuaries for all the population in the area’.115 Reportedly, ‘[t]he communities were very worried about the possible contamination of their lands and water, which is scarce in the region, and the impact on their sacred sites (such as the Apu Khapia and Lake Titicaca)’.116 Therefore, the Aymara had ‘concerns regarding change to the natural landscape, the integrity of their territories, and the negative effects on their sanctuaries and culture’.117

101 Ibid, para 113. 102 Ibid, para 124. 103 Ibid, para 149. 104 Ibid, para 183. 105 Ibid, para 186. 106 Ibid, paras 189–90. 107 Ibid, para 202. 108 Ibid, para 219. 109 Ibid, para 218. 110 Ibid. 111 Ibid, para 226. 112 Bear Creek Mining v Peru, Amicus Curiae Brief Submitted by the Association of Human Rights and the Environment—Puno and Mr Carlos Lopez PhD, 9 June 2016, 7. 113 Bear Creek Mining v Peru, Award, para 219. 114 Bear Creek Mining v Peru, Amicus Curiae Brief, 7. 115 Ibid. 116 Ibid, 15. 117 Bear Creek Mining v Peru, Award, para 226.

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496 Valentina Vadi The claimant contended that it engaged in ‘meaningful and extensive community relations programs’118 and that it obtained the communities’ support for the Santa Ana project.119 The company also claimed that it had ‘exceeded the requirements of domestic and international law’120 and had obtained the ‘social license’ to operate.121 For the claimant, Peru’s action amounted to an indirect expropriation because it permanently deprived the company of ‘its ability to own and operate its lawfully acquired mining concessions’.122 For the company, this deprivation was a disproportionate response to ‘the stated goal of quelling political pressure and social protests’.123 The Tribunal acknowledged the ‘strong political pressure’ put on Peru due to ‘social unrest’.124 It also questioned ‘whether Claimant took the appropriate and necessary steps to engage all of the relevant and likely to be affected local communities, and whether its approach contributed significantly to the nature and extent of the oppos ition that followed’.125 It noted that ‘support for the Project came from communities that were receiving some form of benefits (i.e. jobs, direct payments for land use, etc.) and that those communities that . . . objected were either not receiving benefits, were uninformed, or both’.126 Yet, it concluded that while ‘further actions by Claimant would have been feasible’, the company ‘complied with all legal requirements with regard to its outreach to the local communities’.127 Therefore, the Tribunal found that the revocation of the public necessity of the mine amounted to an indirect expropriation without payment of prompt, adequate, and effective compensation and in breach of due process.128 The Tribunal noted that ‘those members of the indigenous population that opposed the Santa Ana Project have achieved their wishes: the Project [was] well and truly at an end. However, this [did] not relieve Respondent from paying reasonable and appropriate damages for its breach of the FTA.’129 Nonetheless, the members of the Arbitral Tribunal disagreed on how to assess dam ages. The Tribunal noted that the ILO Convention 169 imposes direct obligations only on States. Contrary to Respondent’s arguments, private companies cannot ‘fail to comply’ with ILO Convention 169 because it imposes no direct obligations on them. The Convention adopts principles on how community consultations should be undertaken, but does not impose an obligation of result. It does not grant communities veto power over a project.130

In his Partial Dissenting Opinion, appended to the final award,131 Arbitrator Philippe Sands disagreed ‘with the Majority’s assessment of the amount of damages that [were] 118 Ibid, para 232. 119 Ibid, para 235. 120 Ibid, para 242. 121 Ibid, para 246. 122 Ibid, para 347. 123 Ibid. 124 Ibid, para 401. 125 Ibid, para 406. 126 Ibid, para 407. 127 Ibid, para 412. 128 Ibid, paras 416, 447–8. 129 Ibid, para 657. 130 Ibid, para 664. 131 Bear Creek Mining v Peru, ICSID Case No. ARB/14/21, Partial Dissenting Opinion, Professor Philippe Sands, QC, 12 September 2017.

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Cultural Heritage in International Investment Law 497 due . . . and in particular the failure to reduce that amount by reason of the fault of the Claimant in contributing to the unrest’.132 For the Arbitrator, ‘the Project collapsed because of the investor’s inability to obtain a “social license”, the necessary understanding between the Project’s proponents and those living in the communities most likely to be affected by it’.133 The Arbitrator pointed out that ‘the viability and success of a project such as this, located in the community of the Aymara peoples . . . necessarily depend[ed] on local support’.134 For the Arbitrator, ‘[t]he fact that Claimant did not—on the evidence before the Tribunal—take real or sufficient steps to address those concerns and grievances, and to engage the trust of all potentially affected communities, appear[ed] to have contributed, at least in part, to some of the population’s general discontent with the Santa Ana Project’.135 The Arbitrator held that ‘the investor’s outreach programme was inadequate: it failed to involve all the potentially affected communities, offering jobs only to some and engaging in consultations which were uneven and insufficient across the totality of communities’.136 He concluded that ‘[t]he Canada–Peru FTA [was] not . . . an insurance policy against the failure of an inadequately prepared investor to obtain such a license’.137 Therefore, Sands argued, the amount of damages should be reduced.138 Because the preamble of the ILO Convention 169 recognizes ‘the aspirations of [indigenous] peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions within the framework of the States in which they live’, and highlights ‘the distinctive contribu tions of indigenous and tribal peoples to the cultural diversity . . . of humankind and to international cooperation and understanding’, for the Arbitrator, such language encouraged investors ‘to take into account as fully as possible the aspirations of indigenous and tribal peoples’.139 Although article 15 of the ILO Convention 169 imposes the duty to consult Indigenous peoples on governments, rather than investors, ‘for Sands, this does not . . . mean that it is without significance or legal effects for them’.140 Rather, the Arbitrator pointed out that human rights ‘are complemented by an obligation on all parts, public and private parties, not to engage in activity aimed at destroying such rights’.141 The Arbitrator added that ‘[a]s an international investor, the Claimant has legitimate interests and rights under international law; local communities of indigenous and tribal peoples also have rights under international law, and these are not lesser rights’.142 The Arbitrator also noted that for the Aymara peoples, as pre-Inca commu nities that have been in Peru for centuries,143 ‘this land is not only a geographical space’; rather, the guardian mountains ‘represent extremely important spiritual sanc tuaries for all the population in the area’.144

132 Ibid, para 4. 136 Ibid, para 33. 140 Ibid, para 10. 143 Ibid, para 25.

133 Ibid, para 6. 134 Ibid. 135 Ibid, para 19. 137 Ibid, para 37. 138 Ibid, para 4. 139 Ibid, para 7. 141 Ibid. 142 Ibid, para 36. 144 Ibid, para 16 (internal reference omitted).

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498 Valentina Vadi Other cases are pending. In the pending case Dominion Minerals Corp. v The Republic of Panama,145 the claimant, a US company, contended that Panama used allegedly spurious environmental pretexts to adopt a moratorium on mining and deny the renewal of a mining exploration permit to the local subsidiary of the company. For the claimant, this amounted to an indirect expropriation of the company’s investment in Cerro Chorca, a mining property in western Panama.146 After the moratorium halted the investor’s project, a regulatory change permitted mining. For the investor, the joint denial of the permit and a subsequent law allowing foreign investments in the mineral sectors demonstrated that the mineral moratorium aimed at expropriating the investment of the claimant.147 Because of the regulatory change, however, the government faced social unrest. In fact, the Ngöbe-Buglé indigenous people violently protested and blocked roads in opposition to such law, because they feared that it would permit large-scale mining projects on indigenous lands.148 In fact, for the Ngöbe, ‘[t]hese mountains are sacred . . . Ngöbe ancestors entombed evil spirits in these mountains so that they could not disturb the villages on the slopes below. To make sure the spirits remained imprisoned, the hills have been off-limits to farming, hunting, and logging for generations, in effect creating an ecological preserve that protects the natural resources on which the Ngöbe depend.’149

Therefore, for the Ngöbe, destroying Cerro Chorca would unleash the spirits imprisoned in it and upset the natural balance of the fragile mountain ecosystem. Because of the protests, the government finally placed ‘a moratorium on all mining activity within the . . . regions inhabited by the Ngöbe-Buglé indigenous peoples.’150 As the case is still in an early phase, it is not yet possible to foresee the outcome. Analogously, in a pending arbitration, Cosigo Resources, and others v Colombia,151 the claimants contended that the creation of a national park amounted to a wrongful expro priation of their gold mining concession.152 Reportedly, ‘the prospect of extractive activ ity in the area sparked conflict among local indigenous groups’.153 The claimants stated that although State authorities had approved the project,154 the creation of the Yaigojié Apaporis National Park led to the suspension of all mining activities in the area of the mining concession. In its response, Colombia referred to its constitutional and international law obligations to protect biodiversity and Indigenous peoples’ rights 145 Dominion Minerals Corp. v The Republic of Panama, Request for Arbitration, 29 March 2016. 146 Ibid, para 2. 147 Ibid, 148 Ibid, para 42. 149 Marian Ahn Thorpe, ‘The Other Side of the Mountain’ (June 2010) Cultural Survival, available at . 150 Dominion Minerals Corp. v The Republic of Panama, Request for Arbitration, 29 March 2016, para 44. 151 Cosigo Resources, Ltd, Cosigo Resources Sucursal Colombia, Tobie Mining and Energy, Inc. v Republic of Colombia, UNCITRAL, Notice of Demand and Demand for Arbitration and Statement of Claim, 19 February 2016. 152 Ibid, para 1. 153 Ibid, para 11. 154 Ibid, para 12.

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Cultural Heritage in International Investment Law 499 (referring to both the 1992 Convention on Biological Diversity155 and the 1989 ILO Convention 169).156 In fact, the Amazonian forest is one of the richest areas of the world in biological and cultural diversity.157 Therefore, the establishment of a natural park was intended to protect the natural and cultural values associated with it. The respondent then raised a number of jurisdictional and substantive objections. As the case is still in an early phase at time of writing, it is not possible to foresee whether the case will be settled or how the arbitral tribunal will decide it.

4. Critical Assessment What is the relevance of these and similar arbitrations to international investment law, international cultural law, and international law more generally? These cases have a sig nificance that extends beyond international investment law itself because of their poten tial impact on cultural governance, human rights law, and international law as a whole. From an international investment law perspective, arbitrations related to cultural heritage demonstrate that international investment law is not a self-contained regime; rather, it is part of international law. International investment law is both influenced by, and can itself influence, international law. As one Tribunal explained, IIAs ‘ha[ve] to be construed in harmony with other rules of international law of which it forms part, including those relating to human rights’.158 Nonetheless, these cases illustrate how arbitral tribunals have dealt with (or chosen not to deal with) cultural concerns. Arbitral tribunals have demonstrated some qualified deference to State regulatory measures aimed at protecting cultural heritage when the host State has raised such cultural concerns.159 However, arbitral tribunals have adopted a more cautious stance when cul tural arguments were presented by amici curiae or by the claimants.160 Arbitral tribunals are not legally obligated to consider amicus curiae briefs; rather, they have the ability to do so should they deem it appropriate. From an international cultural law perspective, disputes related to cultural heritage can affect the implementation of international cultural law. Not only can arbitral tribu nals contribute to good governance in international economic relations, but they may also contribute to good cultural governance by expressing the need to govern cultural 155 United Nations Convention on Biological Diversity, 5 June 1992, in force 29 December 1993, 31 ILM 818. 156 Cosigo Resources and Others v Colombia, Respuesta de la República de Colombia a la Solecitud de Arbitraje de las Demandantes, 16 March 2016, paras 8–9. 157 Ibid, para 11. 158 Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partuergoa v The Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016, para 1200. 159 Glamis Gold v United States, Award. 160 Ibid.

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500 Valentina Vadi phenomena according to due process and the rule of law.161 As Pulkowski points out, ‘cultural policies are no longer part of a sovereign domaine reservé’. Rather, States ‘must justify their domestic cultural policies . . . at the international level’.162 They can prevent institutions from falling to populism or adopting xenophobic, demagogic, or opportun istic behaviour. If private property is expropriated—whether directly or indirectly— compensation must be paid.163 While States have the right to protect cultural heritage, they must treat foreign companies fairly and equitably. At the same time, the interplay between the promotion of FDI and the protection of cultural heritage highlights the power imbalance between the two fields of international law and makes the case for rethinking and strengthening the current regime protecting cultural heritage and human rights. Even if there is no inherent tension between these two subfields of international law in theory, tensions often arise in practice. While the international investment regime is characterized by binding, effective, and timely dis pute settlement mechanisms, international cultural law is characterized by a complex legal framework. There is no dedicated specialized international court empowered to adjudicate violations of international cultural law. Not only do most UNESCO instru ments lack dispute settlement or compliance mechanisms, but rarely do they include a clause listing possible dispute resolution tools. There is no specific UNESCO Convention protecting Indigenous cultural heritage, and only recently has UNESCO started investigating Indigenous cultural heritage as a type of cultural heritage that deserves particular consideration and safeguarding. Certainly, a State’s obligations to foreign investors under investment law cannot jus tify violations of other obligations it has under international cultural law or human rights law. For instance, in the Sawhoyamaxa case,164 the Inter-American Court of Human Rights clarified that the State’s investment law obligations did not exempt it from protecting and respecting the property rights of the Sawhoyamaxa.165 Rather, the Court noted that compliance with investment treaties should always be compatible with the human rights obligations of the State.166 Vice versa, compliance with international cultural law does not justify State breaches of international investment law obligations. From a general international law perspective, the intersection of international invest ment law and international cultural heritage law constitutes a paradigmatic example of 161 Valentina Vadi, ‘Global Cultural Governance by Arbitral Tribunals: The Making of a Lex Administrativa Culturalis’ (2015) 33 Boston University International Law Journal 101. 162 D. Pulkowski, The Law and Politics of International Regime Conflict (Oxford University Press 2014) 11. 163 Unglaube, Marion and Reinhard Hans Unglaube v Republic of Costa Rica, ICSID ARB No. 09/20, Award, 16 May 2012 (with regard to indirect expropriation); Compañia del Desarrollo de Santa Elena S.A. v Republic of Costa Rica, Award, 17 February 2000, ICSID Case No ARB/96/1, 39 ILM (2000) 1317 (with regard to direct expropriation). 164 Inter-American Court of Human Right, Case of the Sawhoyamaxa Indigenous Community v Paraguay, Judgment of 29 March 2006, Merits, Reparations and Costs. 165 Ibid, para 140. 166 Ibid.

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Cultural Heritage in International Investment Law 501 the possible interaction between different treaty regimes.167 The increased proliferation of treaties and specialization of different branches of international law make some over lap unavoidable. General treaty rules on hierarchy—namely lex posterior derogat priori168 and lex specialis derogat generali169—may not be entirely adequate to govern the interplay between treaty regimes, because the given bodies of law do not exactly overlap; rather, they have different scopes, aims, and objectives.170 Can investment treaty tribunals take into account or apply other bodies of law in addition to international investment law? Customary norms of treaty interpretation as restated in the VCLT require, inter alia, adjudicators to take into account the context of a treaty, which includes any relevant rules of international law applicable in the relations between the parties. Nonetheless, given their institutional mandate, which is to settle investment disputes, there is a risk that investment treaty tribunals water down or over look noteworthy cultural aspects of a given case. Arbitrators may not have specific expertise in international cultural law, as their appointment requires expertise in inter national investment law. Furthermore, due to the emergence of a jurisprudence constante in international investment law, there is a risk that tribunals do conform to these de facto precedents without necessarily considering analogous heritage-related cases adjudicated before other international courts and tribunals. This is not to say that con sistency in decision-making is undesirable; clearly, it can enhance the coherence and predictability of the system contributing to its legitimacy. However, the selection of the relevant precedents matters, as it can impact the decision.

5. Policy Options After having critically assessed the interplay between international investment law and international cultural law, and highlighted the power imbalance between the two sys tems, this section now examines three principal avenues that can facilitate a better bal ance between the public and private interests in international investment law: 1) a ‘treaty-driven approach’; 2) a ‘judicially driven approach’;171 and 3) counterclaims.

167 See Pulkowski, The Law and Politics of International Regime Conflict (n 162). 168 VCLT, art 30. 169 See Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, adopted by the International Law Commission at its Fifty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/61/10, para 251), 2. 170 Donald McRae, ‘International Economic Law and Public International Law: The Past and the Future’ (2014) 17 Journal of International Economic Law 627, 635. 171 Mihail Krepchev, ‘The Problem of Accommodating Indigenous Land Rights in International Investment Law’ (2015) 6 Journal of International Dispute Settlement 42, 45.

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502 Valentina Vadi

5.1 A Treaty-Driven Approach to Promote the Consideration of Cultural Concerns in International Investment Law A text-driven approach suggests reform to bring international investment law better in line with cultural concerns.172 It promotes the consideration of cultural heritage in international investment law, relying on the periodical (re)negotiation of IIAs. Treaty drafters can expressly accommodate the protection of cultural heritage in the text of future IIAs or renegotiate existing ones.173 For instance, reference to the protection of cultural heritage could be inserted in the preambles, exceptions, carve-outs, and annexes of IIAs.174 In this regard, IIAs might empower States to adopt special measures to protect cultural heritage. Yet, State practice remains uneven. Most existing IIAs do not contain any explicit reference to cultural heritage. Moreover, IIAs generally include ‘survival clauses that guarantee protection under the treaty . . . for a substantial period after the treaty has elapsed’.175 Therefore, ‘it is unrealistic to expect that treaty drafting can solve the conflict between [international investment law] and other community interests on its own’.176 While countries gradually rebalance their IIAs, it is crucial to consider other mechan isms to promote the consideration of cultural heritage in international investment law and arbitration.177

5.2 A Judicially Driven Approach to Promote the Consideration of Cultural Heritage in International Investment Arbitration A judicially driven approach suggests that international investment law already pos sesses the tools needed to address the interplay between investors’ rights and community interests.178 Such an approach promotes the consideration of cultural heritage in inter national investment arbitration by arbitral tribunals. Its implicit assumption is that ‘[w]hile [international investment law] is a highly specialized system, it is not a selfcontained one, but forms part of the general system of international law’.179 Arbitral tribunals have limited jurisdiction and cannot adjudicate on the infringement of international cultural law. Yet, according to customary rules of treaty interpretation restated in the VCLT, when interpreting a treaty, arbitrators can take other international obligations of the parties into account.180 Therefore, arbitral tribunals can and should interpret international investment law in conformity with the system to which it 172 Stephan W. Schill and Vladislav Djanic, International Investment Law and Community Interests (SIEL Working Paper No. 2016/01, 2016), 4. 173 Vadi, Cultural Heritage (n 7) 277–86. 174 Schill and Djanic, International Investment Law (n 172) 15. 175 Ibid, 16. 176 Ibid. 177 Ibid. 178 Ibid, 4. 179 Ibid, 16. 180 VCLT, art 31(3)(c).

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Cultural Heritage in International Investment Law 503 belongs.181 As mentioned, international investment law is not a self-contained regime but constitutes an important field of international law. As such, it should not frustrate the aims and objectives of the latter, which include the protection of cultural heritage, cultural rights, and the rights of Indigenous peoples. Rather, arbitral tribunals should interpret international investment law taking into account ‘any relevant rules of inter national law applicable in the relations between the parties’.182 Moreover, some norms protecting cultural entitlements may have acquired jus cogens status.183 Examples of binding cultural entitlements abound. For instance, the first articles of both the International Covenant on Civil and Political Rights (ICCPR)184 and the ICESCR185 recognize the right of self-determination—that is, the peoples’ right to ‘freely determine their political status and freely pursue their economic, social, and cultural development’.186 The same provision also clarifies that international economic cooper ation is ‘based upon the principle of mutual benefit and international law’ and that ‘in no case may a people be deprived of its own means of subsistence’.187 Significantly, the principle of self-determination is commonly regarded as a jus cogens rule. A number of UNESCO instruments have been widely ratified. There are additional instances of non-binding cultural entitlements. For instance, Indigenous culture plays a central role in the UNDRIP. Although the UNDRIP per se is not binding, it can coalesce in customary international law and therefore become binding. Some of its contents already express customary international law or repeat pro visions appearing in binding treaty law. In conclusion, international investment law does not provide much consideration to cultural heritage, particularly in the texts of international investment agreements. International arbitral tribunals have limited or no specific mandate to protect cultural heritage. Nonetheless, international law can influence the interpretation and application of international investment law, especially when applied to cultural entitlements that are binding or have a peremptory character. Interpretation in conformity with general international law is required by the principle of systemic integration as restated in article 31(3)(c) of the VCLT.188 Yet, despite the possibilities offered by treaty drafting and systemic interpretation, the consideration of cultural heritage in international investment law and arbitration remains far from widespread. On the contrary, arbitral tribunals often seem reticent to 181 Schill and Djanic, International Investment Law (n 173) 16. 182 VCLT, art 31(3)(c). 183 VCLT, art 53. On jus cogens and international investment law, see Valentina Vadi, ‘Jus Cogens in International Investment Law and Arbitration’ (2015) 46 Netherlands Yearbook of International Law 357. 184 International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, in force 23 March 1976 (1967) 6 ILM 368 et seq. 185 International Covenant on Economic, Social, and Cultural Rights (ICESCR), adopted 16 December 1966, in force 3 January 1976 (1967) 6 ILM 360 et seq. 186 ICCPR, art 1.1 and ICESCR, art 1.1 (emphasis added). 187 ICCPR, art 1.2 and ICESCR, art 1.2. 188 See e.g. Perenco v Ecuador, ICSID Case No. ARB/08/6, Interim Decision on the Environmental Counterclaims, 11 August 2015, para 322.

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504 Valentina Vadi refer to, let alone consider, cultural entitlements. Therefore, all actors involved—treaty negotiators, arbitrators, academics, and local communities—should strive to foster such consideration.

5.3 Counterclaims A third way to insert cultural concerns in the operation of investor–State arbitration is by raising counterclaims for eventual violations of domestic law protecting cultural entitlements. States have increasingly tried to assert counterclaims against investors, even though ‘their efforts have tended not to be successful’.189 While most treaties do not have broad enough dispute resolution clauses to encompass counterclaims, ‘drafting treaties to permit closely related counterclaims would help to rebalance investment law’.190 Some investor–State dispute settlement provisions confer on tribunals the power to hear ‘any dispute between an investor of one contracting party and the other contract ing party in connection with an investment’.191 Other investment treaties provide that the law applicable in investor–State arbitration is the domestic law. If domestic law is the applicable law, ‘international law plays a supplemental and corrective function in rela tion to domestic law’.192 Not only does international law ‘fill the gaps in the host state’s laws’, but in case of conflict with the latter it prevails.193 In any case, even if the applicable law was not domestic law, investors remain under an obligation to abide by domestic laws of the State in which they operate, because of the general principle of territorial sovereignty. These and similar textual hooks seem to enable counterclaims. The ICSID Convention also expressly contemplates the possibility of counterclaims ‘provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the centre’.194 Analogously, the 2010 UNCITRAL Arbitration Rules also enable arbitral tribunals to hear counterclaims, provided they have jurisdiction over them.195

189 A. K. Bjorklund, ‘The Role of Counterclaims in Rebalancing Investment Law’ (2013) 17 Lewis & Clark Law Review 461, 464. 190 Ibid, 461. 191 India–Netherlands Agreement for the Promotion and Protection of Investments, art 9.1, 6 November 1995 (emphasis added). 192 Yaraslau Kryvoi, Counterclaims in Investor–State Arbitration (LSE Law, Society and Economy Working Paper 8/2011, 2011), 17. 193 Ibid. 194 ICSID Convention, art 46 (stating that ‘[e]xcept as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counter-claims arising directly out of the subject matter of the dispute, provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the centre’). 195 UNCITRAL Arbitration Rules, art 21(3).

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Cultural Heritage in International Investment Law 505 In practice, arbitral tribunals have adopted diverging approaches regarding the possibility of counterclaims.196 Most tribunals have declined jurisdiction to hear coun terclaims, focusing on whether counterclaims were within the scope of the consent of the parties.197 While most tribunals remain hesitant to hear counterclaims, recent arbitral tribunals have been more willing to hear such claims.198 If consent to jurisdiction was explicitly granted,199 or it was deemed to exist implicitly, at least in those cases whether the applicable law is the domestic law,200 investment tribunals could allow States to raise breaches of cultural policies in their counterclaims against investors, and investor–State arbitration could prompt investors to comply with domestic (and international) law protecting cultural heritage.201 If investors knew they could be held liable for harm to cultural heritage in the event of a dispute, they would be more likely to develop investment projects that safeguard or at least respect the cultural heritage of local communities.

6. Conclusions The review by an international tribunal of State cultural policies can improve good cul tural governance. While each State retains the right to regulate within its own territory, international investment law poses vertical constraints on such a right. Adherence to this international regime adds a circuit of external accountability, forcing States to consider the interests of the investors affected by their policies. The growing importance of such tribunals means that most governments will need to consider the impact of regulations (including cultural policies) on foreign investors and their investments before enacting such measures in order to avoid potential claims and subsequent liability.202 Whether this may cause a regulatory chill remains a matter of debate.203 196 Bjorklund, ‘The Role of Counterclaims’ (n 189) 473. 197 J. Kalicki, ‘Counterclaims by States in Investment Arbitration’ (14 June 2013) Investment Treaty News, 5. 198 Burlington v Ecuador, ICSID Case No. ARB/08/5, Decision on Counterclaims, 7 February 2017, para 275 (holding Burlington liable for violating Ecuador’s domestic law implementing international standards); Urbaser v Argentina, ICSID Case No. ARB/07/26, Award, 8 December 2016, para 1192 (hold ing that a bilateral investment treaty ‘[is] not a set of rules defined in isolation without consideration given to rules of international law’.) 199 Burlington v Ecuador, Decision on Counterclaims, at para 60 (affirming jurisdiction on counter claims, as the claimant did not object to the Tribunal’s jurisdiction). 200 Al-Warraq v Indonesia, UNCITRAL, Final Award, 15 December 2004, para 155 (allowing Indonesia to bring a counterclaim to seek compensation of the investor’s failure to comply with domestic banking law). 201 For a similar argument, see A. Sundararajan, Environmental Counterclaims: Enforcing International Environmental Law through Investor–State Arbitration (Lloyd N. Cutler Center for the Rule of Law, Salzburg Global Seminar Paper 2017–2018). 202 E. Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 American Journal of International Law 295. 203 K. Tienhaara, ‘Regulatory Chill and the Threat of Arbitration: A View from Political Science’ in C. Brown and K. Miles (eds), Evolution in Investment Treaty Law and Arbitration (Cambridge University Press 2011).

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506 Valentina Vadi At the same time, international investment law is not a self-contained regime; rather, it is part of public international law and needs to develop in conformity with it. On the one hand, States should consider inserting specific clauses for protecting their cultural heritage in international investment agreements. Some States, such as Canada, have already adopted a consistent approach to the matter, generally inserting a cultural clause in their international treaties. On the other hand, arbitral tribunals should consider cultural concerns in light of customary rules of treaty interpretation as restated by the Vienna Convention and should settle investment disputes ‘in conformity with principles of justice and international law’.204 Finally, while the possibility to raise counterclaims remains debated, arbitral tribu nals should not dismiss such possibility, provided they have jurisdiction on the same. Counterclaims can constitute a mechanism through which they could not only defend but also enforce law protecting cultural heritage against private parties, potentially resolving some of the tension between the protection of cultural heritage and international investment law. 204 VCLT, preamble.

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chapter 22

Nationa l Tr e asu r e s at the I n tersection bet w een Cu ltu r a l Her itage a n d I n ter nationa l Tr a de L aw Tania Voon*1

Culture and trade have a long-standing, complex relationship, covering a range of areas from digital products to intangible cultural heritage and the diversity of cultural expressions. One of the most basic interactions of culture and trade, namely through the illicit trade in cultural property, is typically assumed from a legal perspective to be addressed through the explicit exception in international trade law for measures imposed to protect national treasures. However, the definition of cultural property in the relevant treaty of the United Nations Educational, Scientific and Cultural Organization (UNESCO) is not necessarily identical to the meaning of national treasures in the law of the World Trade Organization (WTO). Moreover, the WTO Appellate Body has shown reluctance to apply non-WTO law in determining WTO disputes, meaning that a conflict between relevant UNESCO and WTO provisions or the corresponding domestic regulations might not necessarily be resolved as expected. This conclusion provides one example of the possible limitations of the current Appellate Body approach to broader international law and also suggests, with respect to cultural property, that closer alliance in treaty drafting may be required to ensure greater coherence between these regimes. * I am indebted to Katrina Malone for her extensive research assistance for this chapter. I have recently acted as expert advisor to UNESCO, undertaking separate research in connection with the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions. This chapter was largely finalized in December 2017. The views expressed here are my own and are not necessarily shared by any employer or other entity. Any errors are mine.

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508 Tania Voon

1. Introduction The mainstream economic thinking that underlies international trade liberalization posits that national and global welfare is enhanced when countries specialize in the areas in which they have comparative advantage. That theory is reflected in the pre amble to the Marrakesh Agreement Establishing the World Trade Organization,1 which recognizes that ‘the substantial reduction of tariffs and other barriers to trade and . . . the elimination of discriminatory treatment in international trade relations’2 provide an important means of contributing to broader objectives including raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development . . .3

Thus, trade liberalization is neither a purpose on its own nor an absolute principle. It is a means of achieving fundamental economic and welfare goals and is subject to a range of exceptions that take account of legitimate non-economic policy objectives such as the protection of public health or the environment, as well as cultural heritage and cultural diversity. Significant research has been undertaken from an international economic law perspective on the relationship between international trade law (in particular the law of the World Trade Organization (WTO)) and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions4 (2005 UNESCO Convention).5 Some research has also begun to emerge on the relationship between 1 Marrakesh Agreement Establishing the World Trade Organization (opened for signature 15 April 1994, entered into force 1 January 1995) (hereafter ‘Marrakesh Agreement’). 2 Ibid, preamble. 3 Ibid. 4 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, CLT-2005/ CONVENTION DIVERSITE-CULT REV (adopted 20 October 2005, entered into force 18 March 2007) (hereafter ‘2005 UNESCO Convention’). 5 See e.g. Tania Voon, ‘UNESCO and the WTO: A Clash of Cultures?’ (2006) 55(3) International and Comparative Law Quarterly 635; Michael Hahn, ‘A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law’ (2006) 9(3) Journal of International Economic Law 515; Mira Burri-Nenova, ‘Trade and Culture in International Law: Paths to (Re)conciliation’ (2010) 44(1) Journal of World Trade 49; Gilbert Gagné, ‘Une Convention internationale sur la diversité culturelle et le dilemma culture-commerce’ in Gilbert Gagné (ed), La diversité culturelle: Vers une convention intenrationale effective? (Fides 2005) 37. See also Lilian Richieri Hanania (ed), Cultural Diversity in International Law: The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Routledge 2014) chs 1–4; Mary Footer and Christoph Graber, ‘Trade Liberalization and Cultural Policy’ (2000) 3 Journal of International Economic Law 115; Ivan Bernier, ‘Cultural Diversity and International Trade Regulations’ in UNESCO (ed), World Culture Report: Cultural Diversity, Conflict and Pluralism (UNESCO 2000) 70; Christophe Graber, Handel und Kultur im Audiovisionsrecht der WTO: Völkerrechtliche, ökonomische und kulturpolitische Grundlagen einer globalen Medienordnung (Stämpfli Verlag 2003).

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Cultural Heritage and International Trade Law 509 world trade law and the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage6 (2003 UNESCO Convention).7 Surprisingly, less work exists on a core intersection between international trade law and cultural heritage: the illicit trade in cultural property, not specifically in times of war,8 but in general. Yet the illicit trade in cultural property is the subject of one of UNESCO’s most widely ratified treaties: the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention).9 Such trade represents billions of dollars,10 and researchers are beginning to collect more data about its nature and significance.11 In this chapter, I consider the interaction between the 1970 UNESCO Convention and international trade law. In particular, I examine the extent to which international trade law accommodates the kinds of export and import control measures that States commonly adopt in order to prevent illicit trade in cultural property in accordance with the 1970 UNESCO Convention. I do so through an analysis of the exception for ‘national treasures’ found in both WTO law and other international economic agreements. I begin in Section 2 by outlining the scope and nature of the 1970 UNESCO Convention, as a basis for setting out in Section 3 examples of some of the national regulations and bilateral arrangements that arise from that convention. I examine, in particular, restrictions on the importation and exportation of cultural property, because these kinds of restrictions may create tensions with international trade law. The core of the chapter is in Section 4, which explains how WTO law addresses such restrictions within its primary obligations as well as the exception for national treasures. 6 Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) (hereafter ‘2003 UNESCO Convention’). 7 See e.g. Tomer Broude, ‘A Diet Too Far? Intangible Cultural Heritage, Cultural Diversity, and Culinary Practices’ in Irene Calboli and Srividhya Ragavan (eds), Diversity in Intellectual Property: Identities, Interests, and Intersections (Cambridge University Press 2015) 472; Tomer Broude, ‘From Chianti to Kimchi: Geographical Indications, Intangible Cultural Heritage, and Their Unsettled Relationship with Cultural Diversity’ in Irene Calboli and Ng-Loy Wee Loon (eds), Geographical Indications at the Crossroads of Trade, Development, and Culture: Focus on Asia-Pacific (Cambridge University Press 2017) 461; Tomer Broude, ‘Mapping the Potential Interactions between UNESCO’s Intangible Cultural Heritage Regime and World Trade Law’ (2018) 25(4) International Journal of Cultural Property 419. 8 See Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956); Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 1956); Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004); Marina Lostal, International Cultural Heritage Law in Armed Conflict: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan (Cambridge University Press 2017). 9 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (concluded 14 November 1970, entered into force 24 April 1972). 10 US Congressional Research Service, Preventing Cultural Genocide: Countering the Plunder and Sale of Priceless Cultural Antiquities by ISIS (Memorandum to Members of the Financial Committee, US House of Representatives, 19 April 2016) 2–3. 11 See Trafficking Culture: Researching the Global Traffic in Looted Cultural Objects .

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510 Tania Voon I show how UNESCO’s reliance on that exception as legitimizing import and export controls pursuant to the 1970 UNESCO Convention is subject to uncertainties, even though a WTO dispute has not yet arisen regarding such matters and might not be expected to arise given the likely relevant factual scenarios. Those uncertainties, and the approach of the WTO Appellate Body to general exceptions to its trade obligations, may influence other areas of law, such as preferential trade agreements (‘PTAs’) and international investment agreements (‘IIAs’) that adopt the same kinds of exceptions, as addressed in Sections 5 and 6 respectively. Those sections also demonstrate that disputes concerning cultural heritage can and do arise in the context of economic agreements and that greater attention may need to be paid to ensuring coherence across these different regimes, for example by revisiting the Appellate Body approach to non-WTO law and considering more explicit references to relevant UNESCO instruments and their terminology.

2. The 1970 UNESCO Convention on Illicit Trafficking of Cultural Property and Its Implementation 2.1 Core Definitions and Obligations The 1970 UNESCO Convention protects tangible cultural property alongside a number of other international conventions.12 It defines ‘cultural property’ as ‘property which, on religious or secular grounds, is specifically designated by each State as being of import ance for archaeology, prehistory, history, literature, art or science and which belongs to’ specified categories including: (c) products of archaeological excavations . . . or of archaeological discoveries; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals . . . (g) property of artistic interest, such as (i) pictures, paintings and drawings produced entirely by hand . . . (ii) original works of statuary art and sculpture in any material . . . (k) articles of furniture more than one hundred years old and old musical instruments.13 12 See e.g. Convention on Stolen or Illegally Exported Cultural Objects (concluded 24 June 1995, entered into force 1 July 1998); Convention on the Protection of Underwater Cultural Heritage (concluded 2 November 2001, entered into force 2 January 2009). 13 Ibid, art 1.

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Cultural Heritage and International Trade Law 511 States parties to the 1970 UNESCO Convention (currently numbering 134)14 must take action to protect cultural property in three main fields: preventative measures (including laws to prevent ‘the illicit import, export and transfer of ownership of important cultural property’15 and a certification scheme for authorized exportation);16 restitution (including return of cultural property without imposition of customs duties);17 and international cooperation (including taking ‘provisional measures . . . to prevent irremediable injury to the cultural heritage’ of a requesting State ‘whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials’).18 Article 3 provides that ‘[t]he 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’. States Parties recognize that such illicit trade ‘is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property’19 and therefore ‘undertake to oppose such practices with the means at their disposal’.20 They must ‘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’.21

2.2 National Controls on Exportation and Importation of Cultural Property To comply with the letter and the spirit of the 1970 UNESCO Convention, a State party may therefore be expected to impose controls on both the exportation of its own cultural property and the importation of cultural property designated as such by another State party. Nafziger and Paterson have conducted an extensive survey of domestic laws on trade in cultural property,22 which provides valuable background for analysing in more detail the relationship between international trade law and illicit trade in cultural property. UNESCO also maintains a database of relevant domestic laws.23

14 See Illicit Trafficking of Cultural Property: States Parties . 15 Ibid, art 5(a). 16 Ibid, art 6(a). 17 Ibid, art 7(b)(ii). 18 Ibid, art 9. 19 Ibid, art 2.1. 20 Ibid, art 2.2. 21 Ibid, art 7(b)(i). 22 James A. R. Nafziger and Robert Kirkwood Paterson, Handbook on the Law of Cultural Heritage and International Trade (Edward Elgar 2014) (see especially ch 2: James A. R. Nafziger and Robert Kirkwood Paterson, ‘International Trade in Cultural Material’). See also Janet Blake, International Cultural Heritage Law (Oxford University Press, 2015), 29–33; Francesco Francioni, ‘Plurality and Interaction of Legal Orders in the Enforcement of Cultural Heritage Law’, in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press, 2013), 9. 23 National Cultural Heritage Laws .

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512 Tania Voon For example, in Australia,24 the Protection of Movable Cultural Heritage Act 1986 (Cth) establishes a list of objects constituting ‘movable cultural heritage of Australia’, which are subject to export control.25 Covered categories include ‘objects relating to members of the Aboriginal race of Australia and descendants of the indigenous inhabitants of the Torres Strait Islands’.26 The relevant Minister may refuse permission to export an object falling within the list where its loss ‘to Australia would significantly diminish the cultural heritage of Australia’.27 An applicant may request administrative review of such a refusal.28 The same legislation provides that ‘an object forming part of the movable cultural heritage of a foreign country’29 that is exported from that country notwithstanding a prohibition on such export and then imported into Australia ‘is liable to forfeiture’.30 Similarly, in the Netherlands,31 the Combining and Amendment of Rules Regarding Cultural Heritage (Heritage Act) 2015 prohibits individuals from removing a cultural object (being ‘a movable item forming part of cultural heritage’)32 from the Netherlands without the consent of the relevant Minister.33 Section 1.1 defines cultural heritage as: tangible and intangible resources inherited from the past, created in the course of time by people or arising from the interaction between man and the environment that people, irrespective of the ownership thereof, identify as a reflection and expression of continuously evolving values, beliefs, knowledge and traditions, and that offer a frame of reference to them and to future generations . . .

This legislation imposes a requirement for a licence to export outside the EU for particularly important objects.34 Conversely, the Act prohibits importation of cultural property that has been ‘unlawfully appropriated in a State Party’ to the 1970 UNESCO Convention or ‘removed from the territory of a State Party and is in breach of the provisions adopted by that State Party, in accordance with the objectives of the 1970 UNESCO Convention’.35

24 Australia became a State Party to the 1970 UNESCO Convention three months after its deposit of instrument of acceptance on 30 October 1989: . 25 Protection of Movable Cultural Heritage Act 1986 (Cth) s 8. 26 Ibid, s 7. 27 Ibid, s 10(6)(b). 28 See e.g. Storm Seymour Jacklin v Minister for the Arts and the Centenary of Federation [2001] AAT 416. 29 Protection of Movable Cultural Heritage Act 1986 (Cth) s 3. 30 Ibid, s 14. 31 The Netherlands became a State Party to the 1970 UNESCO Convention three months after its deposit of instrument of acceptance on 17 July 2009: . 32 Section 1.1. 33 Sections 4.5, 4.22. 34 Section 4.23. 35 Section 6.3.

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Cultural Heritage and International Trade Law 513

2.3 Bilateral Arrangements on Exportation and Importation of Cultural Property Some States have buttressed national controls on importation of cultural property pursuant to the 1970 UNESCO Convention by entering into bilateral agreements or understandings. Such agreements form part of States Parties’ efforts to implement the 1970 UNESCO Convention and may also assist in promoting domestic reforms to strengthen the protection of cultural property and cultural heritage. As Yunxia explains, that is the case for a Memorandum of Understanding (‘MoU’) signed by China and the United States36 (one of the largest markets for cultural property) in 2009, following eleven years of negotiations.37 However, the scope of application of the MoU is narrow in terms of the time period covered (e.g. only prospective, following the MoU, and only for objects more than 250 years old) and the designation of relevant objects (e.g. only certain cat egories such as ceramics, textiles, and paintings).38 According to the United States Department of State, the MoU with China is one of sixteen bilateral agreements in force for the United States to restrict trade in cultural property with other States Parties to the 1970 UNESCO Convention.39 These simple agreements are typically premised on the 1970 UNESCO Convention and the Convention on Cultural Property Implementation Act (US) and are non-reciprocal, generally providing for the United States to restrict importation of cultural property of the other State (as designated by the United States) in the absence of a licence from that State certifying that its exportation was consistent with that State’s laws.40 The United States is to offer for return to the contracting State party relevant objects forfeited to the United States government.41 The other State party agrees to raise awareness of cultural heritage and 36 See US Customs and Border Protection, Department of Homeland Security; Department of the Treasury, ‘Extension of Import Restrictions Imposed on Certain Archaeological Material from China’ (13 January 2014) 79(8) Federal Register 2088. 37 Wang Yunxia, ‘Enforcing Import Restrictions of China’s Cultural Objects: The Sino–US Memorandum of Understanding’, in Francioni and Gordley, Enforcing International Cultural Heritage Law (n 22) 240, 240, 243, 245–53. 38 Ibid, 245, 255. 39 United States Department of State, Bureau of Educational and Cultural Affairs, Bilateral Agreements . The other agreements are with Belize, Bolivia, Bulgaria, Cambodia, Colombia, Cyprus, Egypt, El Salvador, Greece, Guatemala, Honduras, Italy, Mali, Nicaragua, and Peru. See also the examples of bilateral agreements in Catharine Titi, ‘International Dispute Settlement in Cultural Heritage Law and in the Protection of Foreign Investment: Is Cross-Fertilization Possible?’ (2017) 8 Journal of International Dispute Settlement 535, 541. 40 See e.g. Memorandum of Understanding between the Government of the United States of America and the Government of the Arab Republic of Egypt concerning the Imposition of Import Restrictions on Categories of Archaeological Material of the Arab Republic of Egypt (signed and entered into force 30 November 2016) art I:1. 41 Ibid, art I:3.

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514 Tania Voon illicit trade in cultural property and to improve mechanisms for protection of cultural property, with technical assistance from the United States.42

3. Quantitative Restrictions and National Treasures in the World Trade Organization 3.1 The Prohibition on Quantitative Restrictions in the WTO Article XI of the General Agreement on Tariffs and Trade 199443 (GATT 1994), entitled ‘General Elimination of Quantitative Restrictions’, precludes WTO members (currently numbering 164,44 of which 116 are also States Parties to the 1970 UNESCO Convention) from imposing prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures . . . on the importation of any product of the territory of any other Member or on the exportation or sale for export of any product destined for the territory of any other Member.45

This prohibition in article XI:1 would thus extend to both import controls and export controls imposed by States Parties to the 1970 UNESCO Convention in pursuance of the objectives of that convention, whether in the form of licences or permits to import or export, or bans on importation or exportation of cultural property. Some measures are excluded from the prohibition in article XI:1, pursuant to article XI:2, but these would not apply to restrictions regarding cultural property. For example, article XI:2(a) provides that article XI:1 does not apply to ‘[e]xport prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting Member’.46 The Appellate Body has made clear that this provision refers to ‘critical shortages of foodstuffs or otherwise absolutely indispensable or necessary products’47 and only to temporary measures.48

42 Ibid, art II. 43 GATT Doc LT/UR/A-1/A/1/GATT/2, signed 30 October 1947, as incorporated in the Marrakesh Agreement, annex 1A (‘General Agreement on Tariffs and Trade 1994’) (‘GATT 1994’). 44 Members and Observers . 45 GATT 1994, art XI:1 (emphasis added). 46 GATT 1994, art XI:2. 47 Appellate Body Report, China—Raw Materials [326]. 48 Ibid, [323].

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3.2 The Most-Favoured Nation Obligation in the WTO A WTO member challenging another’s restriction on the importation of cultural property pursuant to the 1970 UNESCO Convention could argue that the restriction is applied in a discriminatory manner because products of WTO members that are not States Parties to the 1970 UNESCO Convention are not restricted in the same manner. This discrimination is arguably contrary to the most-favoured nation (‘MFN’) obligation in article I:1 of the GATT 1994, which requires WTO members to grant ‘any advantage, favour, privilege or immunity’ offered to ‘any product originating in or destined for any other country’ with respect to matters including import and export rules ‘immediately and unconditionally to the like product originating in or destined for the territor ies of all other Members’.49 The respondent WTO member could contend that the omission of controls on the importation of cultural property is not an ‘advantage’ granted to non-States Parties of the 1970 UNESCO Convention; rather, such controls are in fact an advantage granted to such States Parties in order to assist them in protecting their cultural property and cultural heritage. However, the Appellate Body is unlikely to accept this argument, given that it has suggested that legitimate regulatory distinctions are irrelevant to the analysis of less favourable treatment under the non-discrimination provisions50 of the GATT 199451 (unlike the corresponding provision in article 2.1 of the Agreement on Technical Barriers to Trade52 (‘TBT Agreement’)).53 Similarly, the Appellate Body has held that regulatory purpose per se does not affect likeness,54 meaning that the respondent member could not contend that cultural property of a WTO member that is a State party to the 1970 UNESCO Convention is unlike cultural property of a WTO member that is not a State party to that convention.

3.3 The National Treasures Exception in the WTO 3.3.1 Article XX(f) of the GATT 1994 Nevertheless, article XX of the GATT 1994 contains ‘general exceptions’. Where a WTO Panel finds a WTO member’s measure prima facie inconsistent with a GATT 1994 provision such as article I:1 or XI:1, the Member will nevertheless not be in breach of WTO

49 GATT 1994, art I:1. 50 Appellate Body Reports, EC—Seal Products [5.93], [5.105]; Appellate Body Reports, US—COOL (Article 21.5–Canada and Mexico), [5.358]. 51 GATT 1994, arts I, III. 52 Marrakesh Agreement, annex 1A (‘Agreement on Technical Barriers to Trade’) (‘TBT Agreement’). 53 See e.g. Appellate Body Report, US—Clove Cigarettes, [182]. 54 See e.g. Appellate Body Report, EC—Bananas III, [216], [241].

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516 Tania Voon law if it demonstrates that the challenged measure satisfies the conditions of one of these exceptions. The ‘national treasures’ exception that UNESCO referred to is as follows: Article XX: General Exceptions Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: . . .

(f) imposed for the protection of national treasures of artistic, historic or archaeological value;

3.3.2 Comparing the Meaning of ‘National Treasures’ and ‘Cultural Property’ The reference in GATT 1994 article XX(f) to national treasures ‘of artistic, historic or archaeological value’ is similar in some respects to the definition of cultural property in the 1970 UNESCO Convention, which, as noted in Section 2.1, refers to property ‘specif ically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science’55 and that falls within particular categories. The two definitions are not identical, however. First, the terms ‘national treasures’ and ‘cultural property’ may themselves have different meanings. Second, the definition of cultural property in the 1970 UNESCO Convention requires specific designation by the relevant State as having particular importance, whereas the definition of national treasures in the GATT 1994 may suggest an objective rather than subjective standard in terms of the value of the relevant subject matter. Third, the 1970 UNESCO Convention limits cultural property to specific categories while also broadening the type of importance beyond art, history, and archaeology to prehistory, literature, and science. As a matter of ordinary meaning, although prehistory might be seen as subsumed in history, and literature in art, science is not as easily characterized as falling within art, history, or archaeology. Although the national treasures definition is contained in the GATT 1994, it was originally drafted as part of the GATT 1947,56 which may explain why it does not track more closely the definition in the 1970 UNESCO Convention (nor explicitly refer to that convention). At the same time, the drafters of the GATT 1947 may have had a broader conception of national treasures in mind than cultural property as later defined in the 1970 UNESCO Convention. In particular, national treasures might include items of intangible cultural heritage or cultural expressions, as reflected in the 2003 and 2005 UNESCO Conventions respectively. Conversely, national treasures might be narrower in some respects than cultural property as defined in the 1970 UNESCO Convention, for example in relation to objects of scientific value or items that a State regards as having 55 1970 UNESCO Convention, art 1. 56 GATT Doc LT/UR/A-1/A/1/GATT/2, signed 30 October 1947 (‘GATT 1947’).

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Cultural Heritage and International Trade Law 517 particular value that might not be the case from an objective standpoint. In sum, we cannot assume that cultural property under the 1970 UNESCO Convention is coterminous with national treasures under the GATT 1994. Thus, we cannot assume that a measure taken by a WTO member pursuant to the 1970 UNESCO Convention will be justified under article XX(f) of the GATT 1994.

3.3.3 Stringency of the ‘Chapeau’ Requirements of the Exception The WTO Appellate Body’s interpretation and application of the general exceptions in article XX of the GATT 1994 are notoriously stringent. In only three disputes has a respondent WTO member succeeded in justifying its challenged measure under article XX.57 This stringency arises primarily from two factors: first, the detailed necessity test applicable under several paragraphs of article XX by virtue of their inclusion of the word ‘necessary’ (e.g. measures ‘necessary to protect human, animal or plant life or health’ under article XX(b)); second, the non-allowance of discrimination in the application of a challenged measure by virtue of the opening clause (known as the chapeau) of article XX. The first of these factors does not apply to article XX(f) because it does not include the word ‘necessary’. Measures need simply be ‘imposed for the protection of ’ national treasures in order to fall within article XX(f), even if they are not necessary for that purpose. The second factor does apply to article XX(f) and could create difficulties for a WTO member invoking that exception to justify an import or export restriction on cultural property. If the import restriction on cultural property is found inconsistent with article I:1 or XI:1 of the GATT 1994, the same kind of discrimination may be contrary to the chapeau of article XX. The respondent WTO member could argue that the 1970 UNESCO Convention (and any consequential bilateral agreement such as those of the United States discussed above) underlies any such discrimination, which is therefore not ‘arbitrary or unjustifiable’58 within the meaning of the chapeau of article XX. However, the mere fact that a non-WTO treaty encourages or even requires discriminatory treatment (here, between cultural property of States Parties to the 1970 UNESCO Convention and that of other WTO members, or between cultural property of countries that have entered a bilateral agreement and that of other WTO members) is not sufficient to render such treatment non-arbitrary and justifiable under the article XX chapeau. In Brazil—Retreaded Tyres, the Appellate Body found as such with respect to Brazil’s non-application of an import ban on retreaded tyres from Mercosur countries in order to comply with a ruling of a Mercosur tribunal.59 In that case, the Appellate Body emphasized that the rationale (of complying with the Mercosur tribunal’s ruling)

57 Appellate Body Report, EC—Asbestos, [175]; Appellate Body Report, US—Shrimp (Article 21.5— Malaysia), [152]; Appellate Body Report, US—Tuna II (Mexico) (Article 21.5–US)/US—Tuna II (Mexico) (Article 21.5–Mexico II), [6.290]. 58 GATT 1994, art XX. 59 Appellate Body Report, Brazil—Retreaded Tyres [233].

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518 Tania Voon bore ‘no relationship to the objective’ of the import ban, which was to protect human life or health under article XX(b).60 A WTO member restricting the importation of cultural property from other States Parties to the 1970 UNESCO Convention could argue that the distinction with non-States Parties correlates with the objective of protecting national treasures. For example, restricting import controls to States Parties could encourage other States to become party to the 1970 UNESCO Convention and hence strengthen the global protection of cultural property and cultural heritage. In addition, protecting only cultural property designated as such by States Parties to the 1970 UNESCO Convention ensures that ‘national treasures’ of a particular State are aligned with that State’s own policies and priorities. However, as noted in Section 3.2.2, the definition of ‘cultural property’ under the 1970 UNESCO Convention does not coincide precisely with the definition of ‘national treasures’ under the GATT 1994. Nor do individual WTO members’ domestic laws and regulations controlling importation of cultural property (or bilateral agreements to that effect) necessarily correspond to either of those exact definitions. A WTO member that is also a State party to the 1970 UNESCO Convention and has constructed its domestic laws pursuant to that treaty may have difficulty in demonstrating that it nevertheless provides equal protection to national treasures of other WTO members that are not States Parties to the 1970 UNESCO Convention (or that have not entered a bilateral arrangement to restrict trade in cultural property), as may be required by article XX(f) of the GATT 1994. A failure to protect such other national treasures may be inconsistent with the objective of article XX(f) and therefore unjustifiable under the chapeau.

3.4 Potential for a WTO Dispute Ordinarily, an export restriction on cultural property might not be expected to create difficulties because the WTO member imposing such a restriction would be seeking to protect its own national treasures, which should not raise concerns for other WTO members. However, if two WTO members disagree on the origin or significance of the property,61 this disagreement could evolve into a WTO dispute involving article XX(f). For example, a rare circumstance might arise in which a citizen or business of a WTO member that is a non-party to the 1970 UNESCO Convention could seek the assistance of their home State in challenging another WTO member’s export restriction because they wanted to export property with disputed cultural significance for commercial reasons.62 Similarly, although no WTO member would usually wish to challenge an import restriction imposed to protect the cultural heritage of any country, a disagreement as to the origin or significance of the purported import could give rise to a WTO dispute. 60 Ibid, [232]. See also [228]. 61 See John Henry Merryman, ‘Cultural Property, International Trade and Human Rights’ (2001) 19 Cardozo Arts & Entertainment Law Journal 51, 55. 62 See ibid, 57.

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Cultural Heritage and International Trade Law 519 The national treasures exception in the GATT 1994 has not been the subject of WTO case law, presumably because of the factual scenarios just considered: normally a WTO member would have very little incentive to challenge a restriction on importation or exportation of cultural property that is designed to protect cultural heritage. However, several other WTO disputes may shed light on how a restriction on imports or exports of cultural property by a WTO member that is also a State party to the 1970 UNESCO Convention might be addressed under the GATT 1994. An import restriction would be more complicated to defend, because the WTO member imposing the restriction would likely invoke the national treasures exception on the basis that it is protecting the national treasures of another WTO member and State party to the 1970 UNESCO Convention, rather than its own national treasures. The WTO Appellate Body has not ruled definitively on whether a territorial nexus is required under specific paragraphs of article XX of the GATT 1994 or under article XX in general. Typically, the Appellate Body has found it unnecessary to engage in such a ruling because even if required such a nexus is present. For example, in US—Shrimp, the United States imposed an import ban on shrimp (contrary to article XI of the GATT 1994), which it attempted to justify under article XX(g) as necessary to protect certain species of sea turtle; the Appellate Body said these turtles swam through United States waters, providing a sufficient territorial link to the United States.63 Similarly, the terri torial nexus to an import restriction on cultural property might be found in the wouldbe importation into the territory of the member imposing the restriction. However, this approach does not necessarily answer the question of whether the ‘national treasure’ under article XX(f) may be the national treasure of another WTO member rather than the member imposing the restriction.64 The answer to that question may depend on the extent to which a WTO Panel or the Appellate Body is willing to take account of the 1970 UNESCO Convention or other international instruments outside WTO law in interpreting article XX(f) of the GATT 1994. In previous disputes, the Appellate Body has been willing to consider non-WTO multilateral instruments as evidence of the ‘ordinary meaning’65 of particular WTO terms pursuant to article 31(1) of the Vienna Convention on the Law of Treaties66 (‘VCLT’), or more simply as a ‘factual reference’.67 For example, in US— Shrimp, the Appellate Body relied on multilateral environmental instruments in concluding that ‘natural resources’ under article XX(g) of the GATT 1994 include living 63 Appellate Body Report, US—Shrimp [133]. 64 See Tania Voon, Cultural Products and the World Trade Organization (Cambridge University Press 2007) 146–9. See also Marie Cornu, ‘France’ in Francioni and Gordley, Enforcing International Cultural Heritage Law (n 22) 126, 129. 65 Vienna Convention on the Law of Treaties (opened for signature 22 May 1969, entered into force 27 January 1980) art 31(1) (hereafter ‘VCLT’). 66 Ibid. 67 Appellate Body Report, US—Shrimp (Article 21.5–Malaysia), [130]. See also Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press 2003) 269.

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520 Tania Voon resources and that the turtles in question were endangered,68 even though not all the disputing parties (let alone all WTO members) were party to those instruments.69 The Appellate Body has been much more reluctant to refer to non-WTO international law as part of the ‘relevant rules of international law between the parties’70 under article 31(3) (c) of the VCLT, emphasizing the need for consistent interpretations of WTO rules71 (which suggests that ‘parties’ in article 31(3)(c) may mean all WTO members rather than the disputing parties)72 and adopting a narrow interpretation of the word ‘relevant’ in that provision.73 If the WTO Appellate Body referred to the definition of ‘cultural property’ in article 1 of the 1970 UNESCO Convention (pursuant to VCLT article 31(1)) in interpreting ‘national treasures’ in article XX(f) of the GATT 1994, it might be more likely to accept that national treasures of any WTO member (or at least a member that is also a State party to the 1970 UNESCO Convention) are relevant to the cultural heritage of humanity and therefore of legitimate concern to other WTO members under article XX(f), rather than insisting that article XX(f) can be used to justify only measures that protect a member’s own national treasures. A WTO member that was also a State party to the 1970 UNESCO Convention would also find it easier to support its position that article XX(f) justifies measures that protect cultural property designated as such under the 1970 UNESCO Convention, even if the boundaries of cultural property do not align precisely with those of national treasures under article XX(f).

3.5 UNESCO’s Assumption Regarding the Nexus between the 1970 UNESCO Convention and the WTO The 1970 UNESCO Convention is unlikely to constitute an independent defence to a GATT 1994 violation, because of the Appellate Body’s narrow approach to VCLT article 31(3)(c) as mentioned in Section 3.4, as well as its general refusal to give effect to nonWTO treaties (including purported inter se modifications of WTO rules between particular WTO members) to the extent of any inconsistency with WTO rules.74 Nevertheless, UNESCO’s position is that the ‘use of import restrictions to combat the illicit traffic of cultural property’75 pursuant to the 1970 UNESCO Convention is con68 Appellate Body Report, US—Shrimp [130]–[132]. 69 Ibid, notes 110–11, 113. 70 VCLT, art 31(3)(c). 71 See e.g. Appellate Body Report, Peru—Agricultural Products [5.106]. 72 See e.g. Panel Report, EC—Approval and Marketing of Biotech Products [7.68], [7.70]. See also Appellate Body Report, US—Anti-Dumping and Countervailing Duties (China) [308]. See Appellate Body Report, Peru—Agricultural Products [5.105]. 73 See e.g. Appellate Body Report, Peru—Agricultural Products [5.101]; Appellate Body Report, US— Anti-Dumping and Countervailing Duties (China) [308]. 74 See e.g. Appellate Body Report, Peru—Agricultural Products [5.112], [5.116]; Appellate Body Report, Brazil—Retreaded Tyres [228], [232], [233]; Appellate Body Report, Mexico—Taxes on Soft Drinks [54]–[56]. 75 UNESCO, Operational Guidelines for the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO 2015) 48.

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Cultural Heritage and International Trade Law 521 sistent with the GATT 1994 because of the exception for measures for the protection of national treasures in GATT article XX(f): Generally, non-tariff trade barriers or restrictions are prohibited within the GATT regime. . . . The 1970 Convention and the subsequent national legislation implementing the obligations of the Convention generally fall within the subsection (f) exception of Article XX.76

Whether UNESCO’s apparent assumption that article XX(f) of the GATT 1994 covers all restrictions on importation and exportation of cultural property pursuant to the 1970 UNESCO Convention is valid is subject to several uncertainties. Although the Appellate Body may well have regard to the 1970 UNESCO Convention and other relevant international instruments in interpreting ‘national treasures’ under article XX(f), it is unlikely to apply such instruments in a WTO dispute or otherwise regard them as providing an independent defence to a WTO violation of the MFN obligation in article I:1 of the GATT 1994 or the prohibition on quantitative restrictions in article XI:1 of the GATT 1994. The Appellate Body might also regard the national treasures exception as applying only to measures imposed to protect national treasures of the respondent WTO member (for example, through export controls) and not measures imposed to protect national treasures of other countries (for example, through import controls). Moreover, as the protection of national treasures under article XX(f) of the GATT 1994 does not align precisely with the protection of cultural property under the 1970 UNESCO Convention, the Appellate Body might not accept that treating products differently on the basis of their originating State’s status under that convention (or a corresponding bilateral agreement) is justified (in terms of the chapeau) by the objective recognized as legitimate under article XX(f). The stronger protection for import and export restrictions pursuant to the 1970 UNESCO Convention may therefore be the usual absence of a disagreement between WTO members regarding the legitimacy or legality of such restrictions (as reflected in the absence of WTO disputes concerning the national treasures exception to date). That protection is enhanced by the fact that WTO members most frequently engaged in WTO disputes77 are also States Parties to the 1970 UNESCO Convention, including Argentina, Australia, Brazil, Canada, China, India, Japan, the Republic of Korea, Member States of the European Union, and the United States. This conclusion nevertheless demonstrates both the uncertainty surrounding the national treasures exception in WTO law and, arguably, the problematic nature of the Appellate Body’s approach to non-WTO agreements in interpreting and applying WTO law.

76 Ibid, 48. 77 See e.g. WorldTradeLaw.net, WTO Complaints Filed By Selected WTO Members and WTO Complaints Filed Against Specific WTO Members as Respondents (by subscription).

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522 Tania Voon

4. National Treasures Exceptions in Other internationaI Agreements 4.1 European Union Articles 34 and 35 of the Treaty on the Functioning of the European Union78 correspond to the prohibition in article XI:1 of the GATT 1994 on quantitative restrictions on imports and exports respectively, as between EU Member States and extending to measures with equivalent effect. Article 36 of the same treaty provides an exception similar to that in article XX(f) of the GATT 1994 and including its chapeau: The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.79

Pursuant to this exception,80 an EU Directive provides for EU Member States to return national treasures as designated by other EU Member States.81 Another European regulation restricts the exportation of cultural property outside the EU.82 The European Commission also aims to strengthen cooperation between EU and non-EU countries to protect cultural heritage.83 Although little guidance exists on the meaning of the national treasures exception under EU law, some European cases show how a dispute concerning cultural property might arise and be addressed in the context of international trade, such as in the WTO. In a 1968 dispute, the Court of Justice of the European Communities assessed an Italian law including a progressive export tax on ‘articles of artistic or historic interest’.84 The European Commission regarded the tax as having equivalent effect to a customs duty on 78 Treaty on the Functioning of the European Union (opened for signature 7 February 1992, entered into force 1 November 1993) arts 34, 35. 79 Ibid, art 36 (emphasis added). 80 See generally Irini A. Stamatoudi, Cultural Property Law and Restitution: A Commentary to International Conventions and European Law (Evangelos Kyriakidis 2011) ch 3. 81 Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast). 82 Council Regulation (EEC) No 3911/92 of 9 December 1992 on the export of cultural goods (as amended). 83 European Commission, Towards an EU Strategy for International Cultural Relations (2016) 12. 84 Case C-7/68 Commission v Italy [1968] ECJ Rep 424, 425.

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Cultural Heritage and International Trade Law 523 exportation, contrary to European law.85 Italy responded that the tax was rather covered by the prohibition on quantitative restrictions and therefore its exception for national treasures.86 The Court disagreed, finding that the tax hindered ‘export trade’ by means of a ‘pecuniary burden . . . on the exported articles’87 and therefore that the national treasures exception did not apply.88 The Court also explained that the reason this exception does not apply to customs duties and charges with equivalent effect is ‘that such measures have the sole effect of rendering more onerous the exportation of the products in question, without ensuring the attainment of the object referred to in that article, which is to protect the artistic, historic or archaeological heritage’.89 In a more recent dispute, decided in 2009, the Court found in connection with an Austrian law that prohibiting ‘importers of German-language books from fixing a price lower than the retail price fixed or recommended by the publisher in the State of publication’ had an effect equivalent to a quantitative restriction on imports.90 The Court stated that the objective of protecting ‘books as cultural objects’ did not justify restricting imports under the national treasures exception: ‘[t]he protection of cultural diversity in general cannot be considered to come within’ that exception.91 The Court also found that ‘the protection of books as cultural objects’ was not ‘an overriding requirement in the public interest capable of justifying measures restricting the free movement of goods’, because it could have been ‘achieved by measures less restrictive for the importer, for example by allowing the latter or the foreign publisher to fix a retail price for the Australian market which takes the conditions of that market into account’.92

4.2 Other Preferential Trade Agreements Exceptions to Mercosur’s trade liberalization obligations93 apply to ‘measures regarding’ matters such as the ‘[p]rotection of national resources of artistic, historical and archeological value’,94 corresponding broadly to article XX(f) of the GATT 1994, but without language corresponding to the article XX chapeau. Article XX(f) is more closely replicated as an exception to the trade liberalization obligations of the South African Development Community (‘SADC’) Protocol on Trade,95 including the article XX chapeau requirements. 85 Ibid, 427. 86 Ibid. 87 Ibid, 429. 88 Ibid, 430. 89 Ibid. 90 Case C-531/07 Fachverband der Buchund Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ECJ Rep I-3717 [29]. 91 Ibid, [32]. See also Delia Ferri, ‘Cultural Diversity “Under Review”: The Fachverband der Buchund Medienwirtschaft Case’ (2009) XI European Journal of Law Reform 499, 507–9. 92 Case C-531/07 Fachverband der Buchund Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ECJ Rep I-3717 [34]–[36]. 93 Acuerdo de Complementación Económica Nº 18 entre la República de Argentina, la República Federativa de Brasil, la República del Paraguay y la República Oriental del Uruguay (signed and entered into force 29 November 1991) art 3(b). 94 Tratado de Montevideo 1980 (signed 12 August 1980, entered into force 18 March 1981) art 50(f). 95 Protocol on Trade in the Southern African Development Community (SADC) Region (signed 1 August 1996, entered into force 25 January 2001) art 9(f).

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524 Tania Voon The Mercosur and SADC exceptions have not been subject to dispute settlement within the relevant institutional frameworks. Similar exceptions modelled on article XX(f) of the GATT 1994 also appear in several other preferential trade agreements96 but with little guidance as to their interpretation and application. WTO case law on article XX may be directly or indirectly relevant to the interpretation and application of exceptions modelled on article XX(f) of the GATT 1994 (or even the GATT 1947). Such case law might be informative as regards the ‘ordinary meaning’97 of relevant treaty terms, within the meaning of article 31(1) of the VCLT. WTO case law on article XX might also provide relevant evidence or a subsidiary means of determining international law, in the sense of judicial decisions as recognized in the informal list of sources of international law in article 38(1)(d) of the Statute of the International Court of Justice, which could therefore influence the ‘relevant rules of international law’98 for the purposes of treaty interpretation pursuant to article 31(3)(c) of the VCLT. The strict WTO approach to discrimination under the article XX chapeau could therefore promote a narrow reading of similar PTA provisions including the chapeau language. To the extent that EU case law might be relevant in a similar manner, it also appears to tend towards a narrow approach to the national treasures exception.

4.3 International Investment Agreements Several international investment agreements (e.g. in the form of bilateral investment treaties (BITs) or PTAs including an investment chapter) incorporate general exceptions similar to those found in article XX of the GATT 1994.99 Sometimes these apply to all investment protections and sometimes only to certain investment obligations in the relevant treaty. Their use may also be complicated by additional textual clarifications to the investment obligations. A separate chapter in this volume addresses cultural heritage in the context of international investment law. Here, I nevertheless consider, specifi cally,

96 See Talia Einhorn, ‘Israel’ in Francioni and Gordley, Enforcing International Cultural Heritage Law (n 22) 221, 222; Armand de Mestral and Lukas Vanhonnaeker, ‘Exception Clauses in Mega-Regionals (International Investment Protection and Trade Agreements)’ in Thilo Rensmann (ed), Mega-Regional Trade Agreements (Springer 2017) 75, 85; James Thuo Gathii, African Regional Trade Agreements as Legal Regimes (Cambridge University Press 2011) 218. 97 VCLT, art 31(1). 98 VCLT, art 31(3)(c). 99 See generally Andrew D. Mitchell, James Munro and Tania Voon, ‘Importing WTO General Exceptions into International Investment Agreements: Proportionality, Myths and Risks’ Yearbook on International Investment Law & Policy 2017 (Oxford University Press 2019) 305–355. See also e.g. Céline Lévesque, ‘The Inclusion of GATT Article XX Exceptions in IIAs: A Potentially Risky Policy’ in Robert Echandi and Pierre Sauvé (eds), Prospects in International Investment Law and Policy (Cambridge University Press 2014) 363; Andrew Newcombe, ‘General Exceptions in International Investment Agreements’ in Marie-Claire Cordonnier Segger, Markus W. Gehring, and Andrew Newcombe (eds), Sustainable Development in World Investment Law (Wolters Kluwer 2011) 354.

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Cultural Heritage and International Trade Law 525 national treasures exceptions in IIAs, because of their relationship to international trade law (arising in particular from their origins in GATT/WTO law). Several IIAs import the national treasures exception from article XX(f) of the GATT 1994 to the investment context.100 Several investment treaty disputes also concern cultural heritage or cultural diversity issues, although none has directly addressed the national treasures exception. For example, in Glamis Gold v United States, the tribunal took account of the cultural significance of a Canadian company’s mining project in finding that the United States had not breached the ‘fair and equitable treatment’ obligation101 in article 1105 of the North American Free Trade Agreement (‘NAFTA’)102 in its treatment of that project. Similarly, in Parkerings v Lithuania, the tribunal took account of a proposed parking garage’s ‘proximity with [a] culturally sensitive area’ (a cathedral) in distinguishing it from a different parking plan103 in connection with the MFN obligation in the BIT between Lithuania and Norway.104 Neither of these IIAs includes a national treasures exception. In the context of article 31(3)(c) of the VCLT with respect to investment treaty arbitration, Vadi has suggested that adjudicators ‘should take cultural concerns into account’, even more so to the extent that ‘some elements of cultural heritage protection already belong to customary international law, or are general principles of law’, or where the applicable law is that of a host State that has ratified relevant UNESCO conventions.105 This suggestion is strengthened when it comes to interpreting a specific reference to ‘national treasures’ in an IIA, given its cultural connection. WTO case law on general exceptions in article XX of the GATT 1994 might also be relevant in interpreting an IIA exception for national treasures, perhaps most persuasively as a ‘supplementary means’106 of interpretation pursuant to article 32 of the VCLT. The impact of relying on the 1970 UNESCO Convention or other international cultural instruments in interpreting investment obligations or the national treasures exception is not necessarily foreseeable. In Southern Pacific Properties v Egypt, the tribunal held, 100 See e.g. Free Trade Agreement between the Republic of Korea and Australia (‘KAFTA’) (signed 8 April 2014, entered into force 12 December 2014) art 22.1.3; Agreement between the Slovak Republic and the Islamic Republic of Iran for the Promotion and Reciprocal Protection of Investments (signed 19 January 2016, entered into force 30 August 2017) art 11; Agreement between Japan and Iran on Reciprocal Promotion and Protection of Investment (signed 5 February 2016, entered into force 26 April 2017) art 13; ASEAN Comprehensive Investment Agreement (signed 26 February 2009, entered into force 24 February 2012) art 17.1(e). 101 Glamis Gold, Ltd. v United States (Award) (Ad hoc arbitration, UNCITRAL Rules, 14 May 2009) [781], [788]. 102 North American Free Trade Agreement (signed 17 December 1992, entered into force 1 January 1994) (‘NAFTA’) art 1105. 103 Parkerings-Compagniet AS v Lithuania (ICSID Case No ARB/05/8, 14 August 2007) Award on Jurisdiction and Merits [392]. 104 Agreement between Lithuania and Norway on the Promotion and Mutual Protection of Investments (signed 16 June 1992, entered into force 20 December 1992) art IV. 105 Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge University Press 2014) 268 (footnote omitted). 106 VCLT, art 32.

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526 Tania Voon with reference to the 1975 UNESCO Convention for the Protection of the World Cultural and Natural Heritage107 in connection with the Al Giza Pyramids region, that:108 as a matter of international law, the Respondent was entitled to cancel a tourist development project situated on its own territory for the purpose of protecting antiquities [but that] [t]he obligation to pay fair compensation in the event of expropriation applies equally where antiquities are involved.109

The drafters of an IIA might assume that including an explicit exception for national treasures would enhance recognition of cultural heritage and of the legitimacy of imposing cultural policy measures. However, such an exception might also have the unintended consequence of reducing the inbuilt policy space in substantive investment obligations such as expropriation and fair and equitable treatment. For example, the tribunal in Bear Creek Mining v Peru indicated that the inclusion of general exceptions in the PTA between Canada and Peru110 alongside detailed provisions on expropriation meant that ‘no other exceptions from general international law or otherwise can be considered applicable in this case’,111 including ‘any police power exception’112 to the expropriation obligation. If an investment treaty tribunal referred to WTO jurisprudence in connection with the article XX exceptions in the GATT 1994, this might also tend to narrow the scope of the national treasures exception.

5. Conclusion The national treasures exception in article XX(f) of the GATT 1994 is crucial to implementation of the 1970 UNESCO Convention, yet surrounded by uncertainties. Does the exception extend to a WTO member’s protection of the national treasures of another WTO member or only its own national treasures? Is the protection of national treasures of States Parties to the 1970 UNESCO Convention discriminatory as regards national treasures of other WTO members that are not States Parties, in the context of the chapeau to article XX of the GATT 1994 or the MFN obligation in article I:1 of the GATT 1994? To what extent does the 1970 UNESCO Convention inform the meaning of national treasures in article XX(f) of the GATT 1994? Does the answer depend on whether relevant aspects of the 1970 UNESCO Convention form part of customary international 107 Convention for the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975). 108 Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt (ICSID Case No ARB/84/3, 20 May 1992), Award on the Merits [155]. 109 Ibid [158]–[159]. 110 Canada–Peru Free Trade Agreement (signed 29 May 2008, entered into force 1 August 2009) art 2201. 111 Bear Creek Mining Corporation v Peru (ICSID Case No ARB/14/21, 30 November 2017), Award [473]. 112 Ibid, [474].

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Cultural Heritage and International Trade Law 527 law? Similar questions may arise in addressing other forms of cultural heritage and other aspects of cultural policy and cultural expressions in the context of international trade law. These uncertainties affect not only the GATT 1994 but also PTAs and IIAs that incorp orate article XX(f) of the GATT 1994 in some form. The WTO Appellate Body’s general aversion to applying non-WTO law may influence the interpretation of those PTA and IIA provisions that correspond to article XX(f). The illicit trade in cultural property highlights problems with that approach, as well as potential difficulties with incorporating WTO provisions in other international economic agreements, with potentially unintended effects. A closer alignment of terminology with respect to cultural property under the 1970 UNESCO Convention and national treasures under the GATT 1994, or a more precise indication of the intended scope of the national treasures exception, might assist in clarifying the relationship between these two treaties, as a key locus of interaction between culture and international trade. Although amendments to WTO law are notoriously difficult to achieve, they have finally been realized in some areas in recent years.113 Revision of PTAs and BITs is also a feasible option.114 At the same time, informal institutional collaboration between the WTO and UNESCO and the use of soft law instruments may provide additional means of enhancing coherence between international trade law and culture in relation to matters including cultural property, cultural heritage, and cultural diversity. Such coordination and flexibility may prove vital should a dispute one day arise in the WTO involving the direct invocation of the national treasures exception in article XX(f) of the GATT 1994. The number and range of cultural heritage disputes that have arisen over time, including in contexts such as the European Union and IIAs, suggest that WTO members cannot safely assume that such a dispute will never eventuate. Nor does the WTO jurisprudence to date suggest that the national treasures exception as it exists today would necessarily protect any restriction on the importation or exportation of cultural property pursuant to the 1970 UNESCO Convention.

113 See e.g. WTO, Amendment of the TRIPS Agreement: Decision of 6 December 2005, WTO Doc WT/L/641 (8 December 2005) Attachment: Protocol Amending the TRIPS Agreement (entered into force 23 January 2017). 114 See e.g. Agreement to Amend the Singapore–Australia Free Trade Agreement (signed 13 October 2016, entered into force 1 December 2017); Exchange of letters between Andrew Robb, Minister for Trade and Investment (Australia) and Vu Huy Hoang, Minister of Trade and Industry (Viet Nam) (6 November 2015) (regarding termination of the Australia–Vietnam BIT upon entry into force of the Trans-Pacific Partnership Agreement as signed on 4 February 2016).

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Pa rt I I I

GE N E R A L I N T E R NAT IONA L L AW

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chapter 23

Custom a n d Gen er a l Pr i ncipl e s of I n ter nationa l Cu ltu r a l Her itage L aw Francesco Francioni

1. Introduction International law applicable to the protection of cultural property and cultural heritage has undergone a spectacular development in the past fifty years. UNESCO standard-setting initiatives, in particular, have covered many domains of heritage protection, including war and heritage, illicit traffic and archaeological excavations, the relationship between cultural and natural heritage, and underwater and intangible cultural heritage. At the same time, the international concern for the protection and preservation of cultural property as precious heritage of humanity has pervaded other areas of international law, especially human rights, international criminal law, and foreign investment and trade law. Yet, when we examine the outcomes of this vast legislative action we realize that the normative results consist mainly of treaties and to a lesser extent of soft law—that is, of instruments whose legal effects are based on the consent of the participating States (and exceptionally of competent international organizations). Hence, the question we are going to address in this chapter is whether contemporary international law prescribes obligations in the field of cultural heritage protection which are binding upon States and other relevant international actors independently of or even against their consent. This question is relevant for a number of reasons. First, in spite of the widespread acceptance of treaty obligations in the various fields of cultural heritage protection, many States

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532 Francesco Francioni remain outside of the treaty regimes. Second, even for the States bound by treaties in force, their obligations have no retroactive effect, therefore leaving situations or disputes arising before the entry into force of relevant treaties outside their scope of application. Third, recognition of the character of custom or general principles to certain norms of international law may guarantee a superior ranking in the domestic law hierarchy of sources of the law.1 The very wide, and sometimes universal, acceptance of treaty obligations in the field of cultural heritage protection is normally considered a factor facilitating the construction of corresponding norms of customary international law or general principles. At the same time, it may be seen as proof of the will to create special law in the absence of customary norms or general principles applicable in the area. In this context, Richard Baxter, in his famous Hague Academy course on treaties and custom, made the following observation: The proof of a consistent pattern of conduct by non parties becomes more difficult as the number of parties to the instrument increases. The number of participants in the process of creating customary law may become so small that the evidence of of their practice may be minimal or altogether lacking.2

This is exactly the situation we are facing today with regard to international cultural heritage law. The 1972 World Heritage Convention now numbers 193 States Parties, practically the totality of the world community;3 the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict has 128 parties,4 the 1970 Paris Convention on illicit traffic5 has reached the number of 134 parties, and the latecomer Intangible Cultural Heritage Convention of 20036 is now in force for 175 States. The only multilateral treaties that still suffer from a low number of ratifications are the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage,7 with only fifty-four ratifications and accessions, and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,8 with forty-one contracting parties. 1 This is the case in many constitutional systems. See, for example, art 10 para 1 of the Italian Constitution of 1947, which recites: ‘Italy’s legal system conforms with the generally recognized norms of international law’, or art 25 of the German Basic Law of 1949, which provides that ‘[t]he general rules of public international law shall be an integral part of the federal law. They shall take precedence over the law and shall directly create rights and duties for the inhabitants of the federal territory.’ 2 R. R. Baxter, ‘Treaties and Custom’ (1970) 129 Recueil des cours de l’Académie de droit international 64. 3 Convention Concerning the Protection of the World Cultural and Natural heritage, adopted 16 November 1972 and entered into force 17 December 1975, 1037 UNTS 151. 4 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, adopted 15 May 1954 and entered into force 7 August 1956, 249 UNTS 215. 5 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership, adopted 14 November 1970 and entered into force 24 April 1972, 823 UNTS 231. 6 Convention on the Safeguarding of the Intangible Cultural Heritage, adopted 17 October 2003 and entered into force 20 April 2006, 2368 UNTS 1. 7 Convention on the Protection of Underwater Cultural Heritage, adopted 2 November 2001 and entered into force 2 January 2009, 2562 UNTS 3. 8 Convention on Stolen and Illegally Exported Cultural Objects, adopted in Rome 24 June 1995 and entered into force 1 July 1998, 2421 UNTS 457.

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Custom and general principles 533 This clearly shows that the field of cultural heritage is already occupied by treaty norms binding on a large majority of the States composing the international community. In this situation, should we base our search for customs and general principles applicable in this field only on the practice of non-parties to these treaties? My answer to this question is no. From a methodological point of view it would make little sense to confine the present analysis to the sole minority group of States not bound by existing treaties. Such approach would be self-defeating, not only because it would deprive us of the benefit of considering the pattern of behaviour of the great majority of the States but, more importantly, because it would prevent the consideration of the unavoidable interaction between treaty parties and non-parties with regard to the possible formation of a general opinio juris over the formation of customary law or general principles by way of abstraction from treaty norms. A second methodological observation concerns the choice of treating together in this chapter customary law and general principles as sources of obligations in the field of cultural heritage. Surely, custom and general principles occupy different places in the system of the sources of international law. This is graphically exemplified by article 38 para 1 of the International Court of Justice (ICJ) Statute. However, it is my opinion that, in the fast-developing field of cultural heritage law, the connection between these two sources of international law is more intimate and mutually supportive than in other areas of international law. This will appear in light of the specific forms of interaction that will be examined in the course of the following analysis. We shall begin with customary law and then focus in more detail on general principles, given the increasing relevance and the variety of forms and functions that they assume in the field of cultural heritage protection.

2. Customary Law For the purpose of the following analysis it is not necessary to reopen the old question of whether customary rules are created by way of integration of the two traditional elem ents of widespread and continuous State practice and of the corresponding sense of obligation—opinio juris—of such practice, or whether just one of such elements is sufficient to create such type of law. The methodological premise accepted by this writer is that both elements are necessary for the formation of a customary rule in international law. This is the position accepted in the ongoing works of the International Law Commission on this subject9 and, for better or worse, in the jurisprudence of the International Court 9 International Law Commission, Draft Conclusions on Identification of Customary International Law, Ybk International Law Commission, 2018, Vol. II, Part 2, Conclusion 2. For a general overview, see Sean D. Murphy, ‘The Identification of Customary International Law and Other Topics: The SixtySeventh Session of the International Law Commission’ (2015) 109 American Journal of International Law 822, and ‘Anniversary Commemoration and Work of the International Law Commission’s Seventieth Session’ (2019) 113 American Journal of International Law 90, at 94. Sir Michael Wood, Third Report on the Identification of Customary International Law, UN Doc A/CN.4/682.

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534 Francesco Francioni of Justice.10 Once this position is taken, the threshold for the determination of the existence of a binding rule of customary law is rather high, and this becomes clear in the field of cultural heritage protection where international practice and manifestations of opinio juris are rare. The ICJ has had very few occasions to address questions of cultural heritage from the point of view of customary international law. In the case of the Temple of Preha Vihear, decided in 1962 and later revived before the ICJ, the Court ruled that Thailand had an obligation to respect Cambodia’s sovereignty over the area of the temple, to return to Cambodia parts of the cultural site that had been removed during the period of Thailand’s occupation, and to ensure cooperation at bilateral and multilateral levels in view of safeguarding the World Heritage value of the temple.11 But the case sheds no light on possible customary law obligations of the parties with regard to the cultural property at stake. The case brought before the ICJ by Liechtenstein against Germany concerned the restitution claimed by Liechtenstein of works of art expropriated by a third country after World War II. But this case never went beyond the phase of preliminary objections, after the Court declared its lack of jurisdiction.12 In the Genocide case (2007)13 the ICJ— confronted with the question of whether the documented destruction by the respondent State of religious, historical, and cultural monuments and sites could be considered part of the criminal enterprise of genocide—concluded as follows: In light of the foregoing, the Court considers that there is conclusive evidence of the deliberate destruction of the historical, cultural and religious heritage of the protected group during the period in question. The Court takes note of the submission of the Applicant that the destruction of such heritage was ‘an essential part of the policy of ethnic purification’ and was ‘an attempt to wipe out the traces of [the] very existence’ of the Bosnian Muslims. However, in the Court’s view, the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group. Although such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group and contrary to other legal norms, it does not fall within the categories of acts of genocide set out in Article II of the Convention.14 10 See, in particular North Sea Continental Shelf Cases (Germany v Denmark and the Netherlands) [1969] ICJ Reports, 1969, 3 ff, and lately in Jurisdictional Immunities of the State (Germany v Italy, Greece intervening), judgment of 3 February 2012, ICJ Reports 2012, 99. 11 Temple of Preah Vihear (Cambodia v Thailand), merits [1962], ICJ Reports 1962, 6. In its subsequent judgment of 11 November 2013, the Court observed that the Temple of Preah Vihear is a site of religious and cultural significance for the peoples of the region, now listed by UNESCO as a World Heritage Site. In this respect, the Court recalled that under art 6 of the World Heritage Convention, to which both States are parties, Cambodia and Thailand must cooperate between themselves and with the inter national community for the protection of the site as a World Heritage property so as not to ‘take any deliberate measures which might damage directly or indirectly’ such heritage. 12 Certain Property (Liechtenstein v Germany), preliminary objections [2005] ICJ Reports 2005 6 ff. 13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Reports 2007. 14 Ibid, para 344.

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Custom and general principles 535 In this statement, the Court recognizes that the deliberate destruction of cultural heri tage may be contrary to ‘legal norms’ other than those criminalizing genocide, but no indication is given as to the possible customary nature and source of these norms. The Court took the same position in the subsequent genocide case (Croatia v Serbia) of 2015 where, again, the destruction of cultural heritage was deemed to be outside of the scope of application of the Genocide Convention. At the same time, this judgment contains the following general observation: The Court recalls, however, that it may take account of attacks on cultural and religious property in order to establish an intent to destroy the group physically.15

Finally, it is worth recalling the recognition by the ICJ of a special form of cultural heri tage of local Indigenous communities in the context of the dispute between Costa Rica and Nicaragua over navigational and related rights on the San Juan River.16 In its 2009 judgment, the ICJ linked the recognition of a cultural tradition of a local community settled along the river to the right of that community to maintain a form of subsistence economy consisting in the practice of fishing and exploitation of the river’s natural resources. But also in this case the Court does not elaborate on the possible customary law basis of these rights. The jurisprudence of the ICJ shows a clear tendency to take into account the value of cultural heritage for the purpose of interpreting other norms or principles applicable to the case. However, such jurisprudence does not offer conclusive precedents for the express recognition of customary norms applicable to the field of cultural heritage protection. Therefore, it is necessary to examine other manifestations of international practice that may be relevant to the finding of customary norms or principles applicable to this field.

3. The Customary Law Prohibition of the Intentional Destruction of Cultural Heritage in the Context of Conflict One of the most important examples of the explicit recognition of a customary norm applicable in the field of cultural heritage is the ruling of the Eritrea–Ethiopia 15 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) [2015] ICJ Reports 2015 3 ff, para 390. 16 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), judgment of 14 July 2009, ICJ Reports 2009, ICJ Reports 2009, paras 134–44. For the recognition of cultural practices and local traditions in the adjudication of a territorial dispute, see the ICJ judgment of 16 April 2013 in Frontier Dispute (Burkina Faso v Niger), ICJ Reports 2013, 44, in particular the separate opinion of Judge Cancado Trindade and the declaration of Judge Bennouna.

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536 Francesco Francioni Commission on the ‘Stela of Matara’. The ‘stela, located in the territory of Eritrea’, was an ancient obelisk of great historical and cultural importance for both Eritrea and Ethiopia. The obelisk was felled by explosives during a period of military occupation of the area by Ethiopian forces. On the basis of the evidence provided by Eritrea, including proof of the presence of a military contingent of Ethiopian forces in the vicinity of monument at the time when the stela was felled, the Commission reached the following conclusion: The Commission holds that the felling of the stela was a violation of customary international humanitarian law. While the 1954 Hague Convention on the Protection of Cultural Property was not applicable, as neither Eritrea nor Ethiopia was a party to it, deliberate destruction of historic monuments was prohibited by Article 56 of the Hague Regulations, which prohibition is part of customary law. Moreover, as civilian property in occupied territory, the stela’s destruction was prohibited by art icle 53 of the Geneva Convention IV and by article 52 of Protocol 1.17

From this statement it is evident how the Commission has based its finding of a customary law prohibition on a process of abstraction from well-settled treaty rules of inter national humanitarian law. No attempt is made here to establish the dual element of consistent practice and opinio juris. The Commission is satisfied with the finding that the destruction of the stela is a ‘violation of customary international humanitarian law’ and that, in turn, the Hague regulations containing the same prohibition are also part of customary law. This approach to the determination of customary rules shows how misleading the already-mentioned Baxter ‘paradox’ on the relationship between treaties and custom may be in the field of cultural heritage law. The field is already so saturated with treaties of general application that it becomes impossible to determine the existence of pertinent rules of customary law without using such treaties as relevant indicators. This notwithstanding, the Commission could have based its finding that destruction of cultural heritage in the absence of any plausible military necessity constitutes a breach of customary international law on other available elements of international practice and opinio juris. It could have referred to the outraged unanimous reaction and condemnation by the international community as a whole of the deliberate destruction by the Taliban of Afghanistan of the Great Buddhas of Bamiyan in 2001.18 This reaction left little doubt about the strong conviction that such destruction was not only morally and politically condemnable but also legally impermissible and sanctionable. Proof of this was the organization at the international level, under the auspices of UNESCO, of concerted action that led to the adoption by the General Conference of UNESCO of the 2003 Declaration on the Intentional Destruction of Cultural Heritage. Article II of the Declaration defines intentional destruction as 17 Partial award—Central Front, Eritrea’s claim, 28 April 2004, para 113. 18 Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamyian and International Law’ (2003) 14 European Journal of International Law 619, and, by the same authors, ‘The Obligation to Protect and Avoid Destruction of Cultural Heritage: From Bamyian to Iraq’ in Barbara Hoffman (ed), Art and Cultural Heritage. Law Policy and Practice (Cambridge University Press 2006) 28 ff.

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Custom and general principles 537 an act intended to destroy in whole or in part cultural heritage thus compromising its integrity, in a manner that constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience.19

Article VI on State responsibility further provides: A State that intentionally destroys or intentionally fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heri tage of great importance for humanity . . . bears the responsibility for such destruction to the extent provided by international law.20

The Declaration was adopted by acclamation, without any reservation on the part of any participating State. The General Conference comprised at the relevant time virtually all the countries of the world, including the United States and the United Kingdom who had previously withdrawn from the Organization. It is difficult to dismiss the value of this Declaration as evidence of an opinio juris about the existence of an obligation to abstain from the intentional destruction of cultural heritage and to prevent and punish destruction of cultural heritage of great importance to humanity. But besides this Declaration, an important confirmation of the customary norm prohibiting the intentional destruction of cultural heritage in the context of armed conflicts is provided by other conclusive elements of the UN practice and judicial decisions. The document of the UN Secretary-General of 6 August 1999, concerning the obligation of UN forces to respect the rules of international humanitarian law, contains an express prohibition of UN forces attacking historical monuments, museums, libraries, archaeological sites, and works of art.21 The International Criminal Tribunal for Former Yugoslavia, in its judgment of 2 October 1995 in the seminal Tadić case, made the following pronouncements on the respect of cultural heritage in the event of armed conflict: The emergence of international rules governing civil strife has occurred at two different levels: at the level of customary law and at that of treaty law . . . [T]he interplay between these two sets of rules is such that some treaty rules have gradually become part of customary international law. This . . . also applies to Article 19 of the Hague Convention for the Protection of Cultural Property in the event of armed conflict.22

Finally, the practice of the Security Council of the past fifteen years unambiguously condemns and sanctions the willful destruction of cultural heritage in the exercise of its function of maintaining peace and security. This practice started with Resolution 1485 of 19 Declaration Concerning the Intentional Destruction of Cultural Heritage, Paris, 17 October, 2003, reprinted in UNESCO, Standard-Setting at UNESCO: Conventions, Recommendations, Declarations and Charters Adopted by UNESCO (1948–2006) vol. II (Martinus Nijhoff 2007) 729. 20 Ibid, 732. 21 Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, ST/SGB/1999/13, para 6.6. 22 The Prosecutor v Duško Tadić, Case No. IT-94-1-T, decision of 2 October 1995, para 98.

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538 Francesco Francioni 22 May 2003 concerning the destruction and dispersion of Iraqi cultural heritage following the United States–led invasion of the country;23 it continued with another series of resolutions, including Resolution 2170 of 15 August 2014,24 and culminated with the recent Resolution 2347 of 24 March 2017 in which the Security Council deplores and condemns the unlawful destruction of cultural heritage, inter alia destruction of religious sites and artefacts, as well as the looting and smuggling of cultural property from archaeological sites, museums, libraries, archives and other sites, in the context of armed conflicts.25

The General Assembly (GA), on its part, has adopted Resolution 69/281, 28 May 2015, Saving Cultural Heritage of Iraq, which unambiguously condemns the intentional destruction of cultural heritage by the so called ‘Islamic State’26, and the Human Rights Council included a specific paragraph condemning ‘. . . the rampant destruction of monuments, shrines, churches, mosques . . .’ in its Resolution of 1 September 2014 addressing the atrocities committed by the terrorists of the ‘Islamic State’.27 The elements of practice examined above include treaties of universal application, judicial precedents, solemn declarations of international organizations of universal membership, verbal practice of the UN Security Council acting under Chapter VII of the UN Charter. All these elements concur in providing a reasonable basis for the recognition of a customary law obligation to abstain from, and prevent, the intentional destruction of cultural heritage in the context of armed conflicts. This rule has two corollaries: on the one hand, the responsibility of the State for breach of the above primary obligation; on the other hand, the international criminal responsibility of the individual for the actual accomplishment of attacks against cultural heritage. The recent judgment of the International Criminal Court in the Al Mahdi case bears witness to the consolidation of this rule in general international law.28

4. Illicit Transfers from Territories under Military Occupation The prohibition of appropriation and transfer of cultural object from occupied territor ies has been the subject of treaty regulation for over a century. One can recall articles 46 and 47 of the Regulations attached to the 1907 Hague Convention on Land Warfare, the 23 S/Res/1483 (2003) para 7. 24 S/Res/2170 (2014) paras 15–17. 25 S/Res/2347 (2017) para 1. 26 GA Resolution 69/281, 28 May 2015. 27 Resolution S-22/1, 1 September 2014. 28 The Prosecutor v Al Faqi Al Mahdi Case No. ICC-01/12-01/15, judgment of 28 September 2016. To this judgment an order followed on 17 August 2017 to the effect of charging Al Mahdi with the obligation to provide reparation for 2.7 million euros for damage caused to the cultural heritage of Mali.

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Custom and general principles 539 practice of peace treaties after World War I, up to the First Protocol to the 1954 Hague Convention. To these treaties one needs to add the important London Declaration issued by the Allied Powers in 1943 with the intent of notifying their determination to nullify and reverse, under a general presumption of duress, all acts of transfer of property, including cultural property, that occurred in the territories occupied by Nazi Germany and its allies.29

4.1 Is This Practice Evidence of a Customary Rule? In the past a sceptical view has been expressed by a number of legal scholars.30 But this view, in our opinion, has become untenable in light of the great acceleration that international practice has undergone in the past twenty years. First, a more robust inter national reaction to the scourge of illicit excavations and looting of cultural objects in occupied territories has developed hand-in-hand with the increasing sense of indignation and condemnation of such acts as a perverse component of ethnic conflicts and ethnic cleansing. This is shown from the well-documented atrocities of the Yugoslav war to the abominable criminal enterprise of the ‘Islamic State’ in the occupied territories of Iraq and Syria. Second, the number of States that have ratified or acceded to the First Protocol additional to the 1954 Hague Convention has increased significantly since 2000 to include many important source and market countries of cultural heritage, such as China, the United Kingdom, Canada, and Japan. Third, the judicial practice of domestic courts now tends to enforce the international prohibition of appropriation of cultural objects in occupied territories and the obligation to return such objects, even in the absence of specific treaty obligations to that effect. An eminent example of this practice is provided by the decision of the United States Courts of the Seventh Circuit in Church of Cyprus and the Republic of Cyprus v Goldberg.31 This well-known case concerned the determination of title over ancient mosaics stolen from an ancient religious monument in Northern Cyprus occupied since 1974 by Turkish forces. The mosaics had been exported to the United States via a free area in Switzerland (Geneva). The Court ordered the return of the mosaics to the country of origin in the absence of any specific treaty obligation to do so. At the extra-judicial level, a similar outcome was reached in the case of the Houston Byzantine Chapel. The rare medieval frescoes of this chapel had been looted in the town of Lysl, in the Turkish-occupied area of Northern Cyprus, and later purchased and imported in the United States by the Houston Menil Foundation. By voluntary agreement of March 2012 between the Menil Foundation and the Church of Cyprus, the frescoes were returned to the Church of Cyprus. 29 The text of the declaration can be found at . 30 See, for instance, A. F. Panzera, La tutela internazionale dei beni culturali in tempo di guerra (Torino 1992) 16, 46; G. Carducci, ‘L’obligaton de restitution des biens culturels et des ojets d’art en cas de conflit armé’ (2000) 2 Revue Générale de Droit International Public 290. 31 917 F. 2d 278 (7th Cir. 1990).

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540 Francesco Francioni The practice examined in this section and in the previous one provides evidence of the existence of two customary law obligations: to avoid and prevent intentional destruction of cultural heritage, and to avoid and suppress looting and illicit transfer of cultural property from territories under military occupation. These two obligations apply in the event of armed conflict and in situations of military occupation. As far as peacetime international law is concerned, the situation is more uncertain. The 2003 UNESCO Declaration on intentional destruction covers also the destruction of cultural heritage in connection with peacetime activities.32 But this soft law instrument falls short of mandatory language and is not formally binding. It may not, therefore, provide in itself a sufficient basis for finding a customary norm prohibiting in general terms the destruction of cultural heritage in peacetime. This may be regrettable, since much of the destruction of cultural heritage occurs in peacetime. But the fact that there is no evidence of a specific rule of customary law prohibiting the destruction or looting of cultural heritage in peacetime does not mean that no other obligations arise in this field independently or against the consent of the State. Such obligations may arise, directly or indirectly, from the category of general principle of international law. It is to the examination of this source of general obligations that we can now turn in the remaining part of this chapter.

5. General Principles The role of general principles as a source of international obligations is one of the most contentious subjects in the theory of international law. Legal positivism has always looked with great suspicion at this source of international obligations, notwithstanding the clear provision of article 38 of the ICJ Statute and of the Permanent Court of International Justice (PCIJ) Statute. Champions of legal positivism, like Dionisio Anzilotti, have denied their role as general sources of international law and relegated them to a purely subsidiary function of filling gaps in the system by a sort of ‘creative’ lawmaking by the international judge—yet, a creative lawmaking strictly limited to the specific case to be adjudicated.33 In contrast, legal realists have placed the category of general principles at the top of the hierarchy of international norms, in a position of superiority with respect to treaties and custom because of their fundamental character as direct expression of the legal conscience and will of the international community.34 A more moderate orientation admits the existence of general principles as sources of 32 Section IV of the Declaration applies to peacetime activities and establishes a duty of care and protection in accordance with UNESCO standards as laid down in UNESCO Recommendations and treaties, including the 1972 World Heritage Convention. 33 D. Anzilotti, Corso di diritto internazionale (Athenaeum 1928) 107 ff; G. Morelli, Nozioni di diritto internazionale (CEDAM 1958) 45 ff. 34 The most complete elaboration of this theory can be found in R. Quadri, Diritto internazionale pubblico (Liguori 1968) 122–30.

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Custom and general principles 541 international law, but only insofar as they are derived from general concepts of justice and reasonableness recognized in the vast majority of the domestic legal systems.35 This orientation is consistent with the textual language of article 38, 1., c) of the ICJ Statute. Other tendencies embrace the view that the international legal order contains general principles that have autonomously originated at the level of international relations. These theories are supported by a certain revival of natural law and by the growing rele vance of ‘values’, such as respect for human rights and for the global environment, in the configuration of some sort of ‘international constitutionalism’.36 For the purpose of the present analysis, it is this last theoretical orientation that may capture the most relevant and innovative development in the field of international cultural heritage law. At the same time, the contemporary evolution of international cultural heritage law continues to rest also on general principles of domestic law, both private and public, which are transplanted onto international law by way of judicial practice, treaty law, decisions of international organizations, and soft law. In the following analysis we shall examine the various categories of general principles according to their different substantive content, origin, and function performed in international law.

5.1 General Principles as Expression of a General Consensus of the International Community This category of principles reflects fundamental values and interests of the international community. Examples include the following: The prohibition of the use of force, which is enshrined in article 2 (4) of the UN Charted and recognized by the ICJ as a general norm of international law.37 This principle is relevant to the protection of cultural heritage inasmuch as the use of force may entail, as has happened in many recent conflicts, the deliberate attacks on historical and cultural sites. The Security Council has started to consider attacks on cultural heritage as threats to international peace and security under article 39 of the Charter. This is evident in the already cited Resolutions 2347 of 2017 and even more so in Resolution 2100 of 2013 authorizing the deployment of the MINUSMA (UN Multi-dimensional Integrated Stabilization Mission in Mali), which includes the deployment of specialized personnel competent for the protection and conservation of cultural heritage.38 35 H. Lauterpacht, Private Law Sources and Analogies in International Law (Longmans, Green & Co, 1927); B. Conforti, Diritto internazionale (Editoriale Scientifica 2014) 46 ff. 36 See e.g. A. Buchanan, Justice, Legitimacy and Self-determination: Moral Foundations of International Law (Oxford University Press, Scholarship Online 2007); L. Fuller, The Morality of Law (Yale University Press 1969); J. Klabbers, A. Peters, and G. Ulfstein, The Constitutionalization of International Law (Oxford University Press 2011). 37 Case Concerning Military and Para-military activities in and Against Nicaragua (Nicaragua v The United States), judgment, merits, ICJ Reports, 1986, p. 14 ff. 38 S/Res/2100 (2013). The MINUSMA mandate has been extended by Security Concili Resolution 28 June 2018, SC/13400 (2018). For an in-depth analysis of the potentiality and risks involved in this

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542 Francesco Francioni Self-determination. This principle has been recognized as a general norm of international law by the International Court of Justice in its advisory opinions on South-West Africa,39 Western Sahara,40 The Wall in Occupied Palestinian Territories,41 and, most recently, on the Chagos Archipelago.42 This principle is relevant to the protection of cultural heritage to the extent that participation of people in their cultural life and access to the cultural heritage of their community is a constitutive element of their sociocultural and political right to self-government. The Principle of individual Criminal Responsibility. This is an established principle of international law prescribing that grave breaches of international humanitarian law and human rights entail the criminal responsibility of the transgressor under international law. This principle is now applicable to the field of international cultural heritage law so as to cover acts of intentional destruction or pillage of cultural property that constitute crimes of war and crimes against humanity, as shown by the already cited Al-Mahdi case.43

5.1.1 The Principle of Cultural Heritage of Humanity This principle derives from the conceptualization of cultural property as part of the collective interest of humanity to the protection of the infinite variety of its cultural expressions and their transmission to future generations. Its early articulation can be traced to the Preamble of the 1954 Hague Convention, whose second paragraph reads as follows: Being convinced that damage to cultural property belonging to any peoples whatsoever means damage to the cultural heritage of mankind, since each people makes its contribution to the culture of the world.

This innovative idea of cultural property as part of the ‘cultural heritage of mankind’ did not develop in a vacuum. It is rooted in the more general principle expressed in the 1945 Constitution of UNESCO, whose preamble declares [t]hat a peace based exclusively upon the political and economic arrangements of governments would not be a peace which would secure the unanimous, lasting and sincere support of the peoples of the world, and that peace must therefore be founded, if it is not to fail, on the intellectual and moral solidarity of mankind.44 extension of the peacekeeping mission, see L. Pineschi, ‘Tutela internazionale del patrimonio culturale e missioni di pace delle Nazioni Unite: un binomio possibile? Il caso MINUSMA’, Rivista di diritto internazionale, 2018, 5–57. 39 Advisory Opinion of 21 June 1971, ICJ Reports, 1971, 31. 40 Advisory Opinion of 12 October 1975, ICJ Reports,1975, p. 12 ff. esp. para 88. 41 Advisory Opinion of 9 July 2004, ICJ Reports, 2004, p. 126 ff. 42 Advisory Opinion of 25 February 2019, revised 4 March 2019, available at . 43 The Prosecutor v Al Faqi Al Mahdi (n 28). 44 Constitution of the United Nations Education, Scientific and Cultural Organization, adopted in London on 16 November 1945.

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Custom and general principles 543 Respect for cultural heritage, for the diversity of its expression by different peoples of the world, is thus inextricably linked to the value of ‘intellectual and moral solidarity of mankind’ as the ultimate defence of peace. The wording of the preamble of the UNESCO Constitution acquires almost the character of a prophetic message for our time. It reminds us that the present fragmentation of the international community by culture wars, ethnic conflicts, religious fundamentalism, and xenophobia cannot be resolved by purely ‘political and economic arrangements’ but requires a more profound cultural awareness of the ‘intellectual and moral solidarity of mankind’. Building on these roots, the principle of cultural heritage as part of ‘heritage of mankind’ has further developed and specified in relation to discrete categories of cultural property. This is the case of the 1972 World Heritage Convention, whose preamble considers that ‘deterioration or disappearance of any item of the cultural and natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world’45 and that cultural heritage needs to be preserved ‘as part of the world heritage of mankind as a whole’.46 It is also the case of the 2001 Convention on the Protection of Underwater Cultural Heritage, which declares such heritage ‘an integral part of the cultural heritage of humanity’, as well as of the 2003 Intangible Heritage Convention and of the 2005 Cultural Diversity Convention. Both refer to culture as the common heritage of humanity to be preserved for the benefit of all.47

5.1.2 World Cultural Heritage This is a principle closely connected to the one just examined. Like that one, it entails the recognition of a general interest of the international community to the protection and preservation of cultural heritage. But in this case the principle acquires more normative intensity because of the high qualitative standard of the cultural property involved, which must be of ‘outstanding universal value’, and because of a wider scope ratione materiae due to its applicability also to natural heritage of exceptional importance. This principle owes its origin to the 1972 World Heritage Convention, which establishes a system of international cooperation for the identification, listing, and protection of properties recognized to be of outstanding universal value. Other contributions in this Handbook are devoted to the analysis of the specific regime of this Convention.48 What is important to note here is the universal acceptance of this principle49 as the basis for a collective system of international cooperation in view of the protection of cultural (and 45 Convention Concerning the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of UNESCO at its 17th session, Paris, 16 November 1972. Second alinea of the Preamble. 46 Ibid, sixth alinea of the Preamble. 47 Convention on the Safeguarding of Intangible Cultural Heritage, adopted by the UNESCO General conference at its 32nd session, Paris 17 October 2003, fifth alinea of the Preamble; Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted by the General Conference of UNESCO at its 33rd session, Paris, 20 October 2005, second alinea of the Preamble. 48 See Chapter 11 in this Handbook. 49 As of 31 January 2019, the World Heritage Convention was in force for 193 parties.

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544 Francesco Francioni natural) heritage of outstanding universal importance. It is not of secondary importance that this system, and the underlying World Heritage principle, are administered and implemented by a standing supervisory institution (the ‘World Heritage Committee’) responsible also for the reactive and systematic monitoring of the State of conservation of listed properties.

5.2 General Principles Derived from Domestic Law National regulation of cultural heritage follows a great variety of normative models, ranging from protectionist to liberal, free trade-oriented, or retentionist. This could present an obstacle to the finding of generally recognized principles of cultural heritage law capable of being transplanted in international law. Further, the great diversity of domestic legal regulation of cultural property has been facilitative to the practice of illicitly excavated antiquities, stolen works of art, and illegally exported cultural objects. But it is precisely in order to prevent the exploitation of the cracks in the system left by the diversity of national legislation that certain principles of national law have gradually been adopted as uniform principles of international law. Here are some examples.

5.2.1 The Sovereign Right of Every State to Declare Cultural Property Located in Its Territory as Part of the National Patrimony This principle is common to the near totality of the so-called source countries—that is, countries that because of their rich history and the importance of their cultural treasures find themselves in the position of net exporters of cultural objects. ‘Market countries’, such as Switzerland, the United Kingdom, the United States, Japan, and others, favour free trade and the recognition of private property titles as opposed to national patrimonial laws and retentionist policies. Besides this policy cleavage, national legal systems remain divided on some fundamental aspects of private law relevant to cultural property: common-law systems do not permit the acquisition of title over a stolen object (nemo dat quod non habet), whereas the majority of civil law systems give priority to the stability of legal transactions and permit the acquisition of title over stolen goods on certain conditions (good faith of purchaser, possession, and valid transfer of title).50 But in spite of these fundamental divergences in domestic regulation, the principle of due respect for the sovereign right of every State to declare cultural heritage located in its territory, as part of its national patrimony, has gradually been recognized as a principle of international law. An early manifestation of this process is represented by the seminal case of United States v McClain, decided in 1974 by a Federal Court of the Fifth Circuit in a dispute over contested pre-Colombian artefacts imported in the United States from Mexico in violation of Mexican law. The Court in this case held Mexican law protecting 50 For a comparative analysis of these differences, see Michele Graziadei and Lionel Smith (eds), Comparative Property Law: Global Perspectives (Edward Elgar 2017), and especially the chapter by Francesco Francioni, ‘Cultural Property in International Law’, 374–93.

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Custom and general principles 545 the national archaeological heritage as public patrimony of the State to be enforceable in the United States together with the Mexican ownership claim based on the common law of property.51 This judgment is remarkable for its forward-looking stance, in contrast to the widespread practice of illicit traffic in antiquities; it comes from the most important market country in cultural property; and, most importantly, it has influenced the jurisprudence of other important market countries. An example of such influence can be found in the United Kingdom case of Iran v Barakat 52 concerning, again, title over precious antiquities illegally trafficked from Iran. The United Kingdom Court of Appeal in this case, reversing an established case law which had previously refused recognition of foreign patrimonial laws for their character of public or penal law,53 upheld Iran’s title based solely on Iran’s sovereign right to establish public ownership over its national cultural treasures independently of prior possession of the disputed objects. This principle was applied in Barakat in the absence of any formal treaty obligation but simply out of a general sense of obligation of every State to cooperate in the fight against illicit traffic of cultural property. It is interesting to note how the court, to corroborate this principle, went out of its way to refer also to the 1995 UNIDROIT Convention in spite of the fact that the United Kingdom was not, and is not, a party to that instrument.54 The relevant article quoted by the court was article 3 para 2, which reads: 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.

5.2.2 The Principle of Due Diligence This is another principle that has developed in the field of international cultural heritage law by way of osmosis from domestic law. This principle introduces an objective standard of conduct to be followed in cultural property transactions. For a long time, the subjective principle of good faith had unduly legitimized acquisition of cultural objects of dubious provenance by dealers, collectors, and museums, thus contributing to the practice of illicit trafficking in cultural objects. Today, the general sense that such practice is indefensible on ethical, political, and legal grounds has led to the widespread acceptance of due diligence as a positive obligation to inquire about the lawful provenance of cultural objects in international trade and to refuse their transfer when there is reasonable cause to believe that such objects have been stolen, illegally exported, or illegally exca51 United States v McClain, 593 F2nd 658 (5th Cir. 1979). 52 Government of the Islamic Republic of Iran and The Barakat Galleries Ltd [2007] EWCA Civ. 1374, judgment of the Supreme Court of Judicature, Court of Appeal (civil division) of 21 December 2007. 53 See Ortiz v Attorney-General of New Zealand [1984] ACI (CA and HL). In this case, New Zealand tried to recover a Māori mask illegally exported from New Zealand and legally purchased in the United Kingdom by an art dealer. New Zealand’s claim was rejected because of the traditonal principle that courts do not give execution in the forum to foreign public or penal laws. 54 United States v McClain (n 37), para 161 of the judgment.

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546 Francesco Francioni vated. This principle has been vertically established by treaties, in particular the UNIDROIT Convention article 4, and the UNESCO International Code of Ethics,55 as well as horizontally by voluntary codes of ethics adopted by museums and other cultural institutions and associations.56

5.3 Aspirational Principles of Progressive Realization Like other areas of international law—especially environmental law—cultural heritage law has been characterized by the emergence of very general principles that can be defined as ‘aspirational’ in that they set goals and standards to be progressively achieved without prescribing a mandatory course of action. One such principle is to be traced to the Rio Declaration of 1992, which proclaimed the principle of sustainable development. It would be wrong to consider this principle as an exclusive component of international environmental law. In the more than twenty-five years that have passed since the Rio Declaration, the concept of sustainability has infiltrated the area of international cultural heritage in a number of ways. First, it has led to the overcoming of the traditional separation between culture and nature through the holistic approach adopted with the 1972 World Heritage Convention. Second, it has contributed to the emergence at the level of international law of the concept of ‘cultural landscapes’ as a form of cultural heri tage resulting from the imprint left on nature by the work of humans in their ingenious transformation of the physical environment, their exploitation of its resources, or their sublimation of nature in spiritual or religious associations with it. But today the concept of sustainability has an even greater role in the field of cultural heritage. In a world where the predominant model of economic development is still dictated by the normative structures of the international post–World War II liberal economic order and by the ‘top-down’ approach of the international financial institutions—the World Bank, the International Monetary Fund, and equivalent regional institutions—this concept can help introduce a ‘bottom-up’ approach that puts people, local communities, groups, and individuals ‘at the centre of concern for sustainable development’. This means that this principle can support participatory rights of communities and groups in decisions concerning national or local projects of economic development that have an impact on the material or intangible cultural heritage of the affected community. It can contribute to an enhanced role of the local and traditional communities in reducing the negative impacts of mass tourism in attractive cultural and natural sites and historic cities. It can also help safeguard the patrimony of intangible cultural heritage, of traditional knowledge, crafts, and cultural practices that historically 55 International Code of Ethics for Dealers in Cultural Property, UNESCO Document CLT/CH/INS06/25 Rev. In addition, UNESCO and UNIDROIT have adopted the Model legislative Provisions on State Ownership of Undiscovered Cultural Objects, Paris, 1 July 2011, CLT-2011/CONF. 208/COM.17/5 (updated 24 june 2014). 56 For a specific examination of the role of codes of ethics, see Chapter 33 in this Handbook.

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Custom and general principles 547 has formed the basis of the sociocultural fabric of society and the most vital elements of its economic subsistence and development. This fabric is increasingly weakened under the impact of globalization and the a-critical primacy of technological progress, which, with its promise of human emancipation and larger freedom, brings also loss of trad itional forms of employment, increasing inequalities, and social exclusion.

5.4 Principles of Procedural Character This category of principles, rather than laying down substantive obligations of conduct or result, prescribes that certain procedures must be followed in order to have due regard for the interest of other States or of the international community as a whole when undertaking structural or economic projects affecting cultural heritage. These proced ural principles have developed especially in the context of international law on the protection of the environment. They include the environmental impact assessment (EIA) principle, prior informed consent of the people and communities affected by industrial and natural resource exploitation projects, as well as prior information, public participation, and access to justice in environmental matters. These principles are now part of a web of multilateral treaties, which include the 1998 Aarhus Convention,57 the 1992 Convention on Biological Diversity with its additional Protocols,58 and the 1998 Rotterdam Convention on Prior Informed Consent,59 just to mention the most representative examples. Are the principles expressed in this treaty practice applicable also in the field of international cultural heritage law? Certainly, some of these principles, like EIA, remain specific to international environmental law. But there is a common rational and legal foundation that makes these procedural principles applicable also to the inter national protection of cultural heritage. This common foundation is the more general principle of international law that requires international cooperation in order to prevent and avoid damage to the cultural and natural heritage of great importance to humanity. This principle emerges by way of abstraction not only from the environmental treaties mentioned above but also from the many manifestations of the practice in the field of cultural heritage that we have examined in previous sections of this chapter. It informs especially the whole international regulation that binds States and other relevant actors in the fight against destruction and dispersion of cultural heritage, as witnessed by article 2 of the 1970 UNESCO Convention,60 Principle VIII of the 2003 Declaration 57 Convention on Access to Information, Public Participation in Decision-Making and Acccess to Justice in Environmental Matters, UN Doc. ECE/CEP/43 (21 April 1998). 58 Convention on Biological Diversity, reprinted in 33 ILM (1992) 818. 59 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International trade, Rotterdam, 11 September 1998, 38 ILM (1999) 1. 60 Art 2 states ‘the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the country of origin of such property and that international cooperation constitutes one of the most efficient means of protecting each country’s cultural property against the dangers resulting therefrom’ (emphasis added).

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548 Francesco Francioni Concerning the Intentional Destruction of Cultural Heritage,61 and the consistent series of Security Council resolutions mandating international cooperation in the fight against deliberate destruction and looting of cultural heritage in the context of conflicts and terrorism. At the same time, the principle of international cooperation is at the basis of the abundant practice of bilateral agreements concluded under article 9 of the 1970 UNESCO Convention in order to actively involve market countries in a concerted effort to curb the international traffic in cultural property.62 These agreements are entirely voluntary. They represent a responsible reaction to the long-tolerated but now discredited practice of trafficking in cultural property. The principle of international cooperation underlying them is very general and abstract, but it takes many concrete forms in different contexts, from the institutional cooperation within the World Heritage Convention to the protection of underwater cultural heritage to the expanding system of international safeguarding of intangible cultural heritage. Its most real and effective application has been in judicial practice, where, in the absence of any treaty obligation binding the forum State, courts have found themselves compelled to follow an advanced principle of international cooperation to the effect of giving due consideration to foreign mandatory rules on the protection of cultural heritage, including public and penal laws. The already-mentioned case of Iran v Barakat63 is an eminent example of this spontaneous practice of international cooperation.

5.5 Peremptory Principles of Jus Cogens? There is no judicial precedent, so far, recognizing the jus cogens character of principles applicable to the international protection of cultural heritage. The closest courts have come to such recognition are the quite exceptional cases of genocide brought before the International Criminal Tribunal for Former Yugoslavia and before the International Court of Justice. It is generally accepted that genocide constitutes a breach of inter national law of such gravity as to rise to a violation of jus cogens. However, the question has arisen as to whether the intentional, systematic destruction of cultural heritage of a targeted group may amount to ‘cultural genocide’, in the sense of a deliberate extinction of the living culture of that group. Although this cultural dimension of genocide was 61 Declaration Concerning the Intentional Destruction of Cultural Heritage (n 19). In proclaiming the duty of States to ‘cooperate with each other and with UNESCO to protect cultural heritage from intentional destruction’, this Declaration further specifies that cooperation should consist in exchange of information, consultation in case of impending threats of cultural destruction, assistance, and judicial and administrative assistance including the establishment of criminal jurisdiction over individuals responsible of cultural heritage destruction (para 2 of Principle VIII). 62 The United States has been a pioneer in the conclusion of such agreements, See memoranda of understanding concluded with Italy, Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, Egypt, El Salvador, Greece, Guatemala, Honduras, Libya, Mali, Nicaragua, and Peru (the agreement with Canada has expired). US Department of State, Bureau of Educational and Cultural Affairs, 2019. 63 See n 52.

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Custom and general principles 549 meant to be an essential component of the crime in the original conception elaborated by Lemkin,64 it is well known that the concept of ‘cultural genocide’ has remained contested in international law scholarship and practice.65 This notwithstanding, recent judicial practice has recognized the deliberate destruction of the cultural heritage of a group as a relevant indicator of the specific intent to destroy the targeted group. This recognition has occurred both in the context of the international criminal responsibility of the individual66 and in the context of the international responsibility for crimes of States.67 Therefore, one should not exclude that the increasing interconnection between assaults upon the cultural heritage of other people and the crimes of persecution, ethnic cleansing, and other serious violations of international humanitarian law may with time ripen into a jus cogens principle prohibiting the destruction of cultural heritage of great importance to humanity as a component of mass atrocities. The vehicle for this process may well be another very general principle that can be located in the borderland between international morality and peremptory norms of international law. I am referring to the responsibility to protect principle, which entails the international community’s commitment to prevent, react to, and remedy mass atrocities occurring in a State or in a territory where there has been a total collapse of the governing institutions. The egregious crimes committed in recent conflicts in Africa and the Middle East have included also horrendous acts of cultural terrorism culminating in the devastation of the historical, religious, and cultural heritage of Mali and in the systematic destruction of archaeological monuments of outstanding universal value in Syria and Iraq. The reaction of the international community to these acts of sheer barbarity, sometimes accomplished together with the murder of custodians of the cultural sites,68 has been unanimous and very strong, as shown by the series of Security Council resolutions already examined in Section 2 of this paper. But what is most relevant for the purpose of a progressive development of a principle of jus cogens in this field is the growing recognition in international practice of the close connection between the deliberate destruction of cultural heritage and the threat to peace and security. Not only is the intentional destruction of cultural heritage a triggering factor of armed conflict, ethnic cleansing, and even genocide, but it may also be an insurmountable obstacle to 64 R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation—Analysis of Government Proposals for Redress (Carnegie Endownment for International Peace 1944). 65 For an in-depth analysis of the interrelation between assaults on culture and genocide, see E. Novic, The Concept of Cultural Genocide. An International Law Perspective (Oxford University Press 2016). 66 ICTY, Prosecutor v Radislav Krstić, Case IT-98-33-T, Trial Chamber, judgment of 3 August 2001, para 574. 67 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaHerzegovina v Serbia), judgment of 25 February 2007, ICJ Reports 2007 para 344; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), judgment of 3 February 2015, ICJ Reports 2015, para 390. 68 On 19 August 2015, the jihadists of the so-called Islamic State accompanied the destruction of the ancient monuments of Palmyra with the mass execution of innocent civilians and the murder of the internationally renowned 82-year-old archaeologist Khaled as Asaad, who had been in charge of the conservation of the World Heritage Site for many years.

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550 Francesco Francioni post-conflict peacebuilding and reconciliation. This has been recognized by the High Level Meeting organized at the initiative of the Italian mission at the UN on 21 September 2017, during the 72nd session of the General Assembly, on the theme ‘Our Responsibility to Protect Cultural Heritage from Terrorism and Mass Atrocities’. This meeting and its outcome document follow the UNESCO Recommendation on the ‘Responsibility to Protect Cultural Heritage’ adopted by the expert meeting of 26–27 November 2015. These documents, although not formally binding, are the expression of a general opinio juris that the protection of cultural heritage from deliberate attacks is inseparable from the prevention and punishment of war crimes, crimes against humanity and genocide, all breaches of peremptory norms of international law.

6. Conclusions The foregoing analysis has attempted to illustrate the way in which the vast practice of treaty making and soft law developed in the field of cultural heritage protection has been accompanied by the emergence of some rules of customary law and general principles creating obligations for all members of the international community, independently of their consent. As far as customary law is concerned, our analysis has permitted the identification of only two clear norms of general application. These are the norm prohibiting the intentional destruction of cultural heritage of great importance in the context of armed conflicts and the related norm prohibiting the looting and transfer of cultural property in occupied territories by the occupying powers. A much wider range of general principles has been found to be applicable in this field, both as original principles of international law and as principles derived from national legal systems. The importance of this evolving corpus of norms and principles can be appreciated in relation to a number of functions that they may perform in ensuring the protection of cultural heritage as a general interest of humanity. Obviously, customary rules may provide a source of law in the adjudication of disputes between States that are not bound by existing treaties or concerning situations that fall outside the scope of application of the treaties ratione temporis due to the non-retroactive effect of such treaties. General principles can also be important indicators of the values attached by the international community to the preservation and protection of cultural heritage as a common concern of humanity. Some of these principles, as we have seen, may create true obligations for the States; others are purely aspirational; but all of them can provide important criteria for the interpretation of existing treaties and domestic law in the field of cultural heritage. More importantly, custom and general principles can help overcome the fragmentation of international treaty law and give coherence to the evolving body of international cultural heritage law at a time when cultural conflicts, intolerance, and forms of religious fundamentalism seem to pose the main threat to the value of universality of international law.

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chapter 24

Cu ltu r a l H er itage a n d State I m m u n it y Riccardo Pavoni

1. Introduction The intersection of State immunity and international cultural heritage law raises intriguing legal and policy questions. Indeed, as applied to cultural heritage property, State immunity may yield contradictory outcomes.1 On the one hand, it may bar access to justice by the rightful owners of cultural property suing foreign States for restitution and cognate relief, thereby potentially interfering with the global fight against the illicit trafficking of such property. On the other hand, it may advance the international community’s interest in transnational cultural cooperation and mobility of collections, whenever it shields art objects from reparation claims by victims of State breaches of contractual obligations or violations of human rights which are unrelated to property ownership and restitution issues. The first situation primarily concerns the doctrine of State immunity from jurisdiction stricto sensu (or from suit or adjudication), which orthodoxically dictates the dismissal of proceedings against foreign States for their jure imperii activities, namely activities which are a manifestation of sovereign authority, whereas it allows proceedings relating to jure gestionis or jure privatorum activities of foreign States—that is, commercial or private-law transactions. The question is whether State conduct associated with cultural

1 This is what I referred to as the ‘ambivalent relationship’ between State immunity and the protection of cultural property; see R. Pavoni, ‘Sovereign Immunity and the Enforcement of International Cultural Property Law’ in F. Francioni and J. Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 79. An identical expression is used by A. Chechi, ‘State Immunity, Property Rights, and Cultural Objects on Loan’ (2015) 22 International Journal of Cultural Property 279, 280, 288.

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552 Riccardo Pavoni heritage property may invariably be viewed as sovereign in nature, thus covered by State immunity. Also the doctrine of State immunity from execution, according to which State property used or intended for governmental purposes cannot be seized or otherwise attached in pre- or post-judgment proceedings against foreign States, may frustrate legitimate claims for the restitution of artworks. This may occur when a motion for the preventive seizure or forcible recovery of a cultural object filed either by its alleged owner (at the pre-judgment stage) or by its rightful owner (at the post-judgment stage) is rejected by reason of sovereign property immunity from execution. The question here is whether the relevant cultural object must actually and unconditionally be regarded as fulfilling jure imperii functions and therefore be exempt from any measures of constraint. In times of increasing mobility of art collections across national borders for exhibition and other purposes, the presence of the disputed property in the territory of the forum State at the time attachment is sought—that is, the key precondition for the taking of execution measures by domestic authorities—is not an unlikely scenario. However, the international community’s interest in unimpeded transnational cultural exchanges is jeopardized if art loans may generally represent an occasion to ambush cultural property as a means of recovering whatever debt a lending State may owe to an individual or a foreign State. This sheds light on the other side of the ‘cultural heritage and State immunity’ coin. State immunity from execution may further the global interest in the mobility of art collections and against their dispersal and commoditization by foreclosing seizure or attachment of such property. Therefore, a crucial issue addressed in this chapter concerns the existence and scope of a customary rule of international law affording execution immunity to cultural heritage property, particularly to artworks on loan abroad. The relationship between cultural heritage and State immunity is steadily emerging as a discrete and vibrant area of international law. Since my 2013 contribution covering this topic,2 a variety of legal developments have occurred. Lawmaking processes have been undertaken under the auspices of institutions as the Council of Europe (CoE) and the International Law Association (ILA), as well as by a number of States. Moreover, several high-profile judicial disputes challenging State immunity for cultural property are still pending and others have arisen, especially in the United States and in the context of the persistent struggle for the recovery of Nazi-looted art. This chapter reviews such developments and seeks to identify trends and prospects. Section 2 examines State immunity from jurisdiction and the applicability of its exceptions to cases involving cultural property. Section 3 covers immunity from execution for State cultural property by focusing on the pertinent legal instruments and extensive practice in this area. A few concluding remarks follow (Section 4).3

2 Pavoni, ‘Sovereign Immunity’ (n 1). 3 Issues concerning the legal status and purported immunities of sunken warships and other State vessels fulfilling the notion of underwater cultural heritage are examined in Chapter 13 in this Handbook.

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Cultural Heritage and State Immunity 553

2. Cultural Heritage Property and Immunity from Jurisdiction 2.1 Commercial Transaction Exception The classic commercial transaction exception to State immunity is generally applicable in the context of art-related disputes. Whenever such disputes arise from contracts or transactions of a ‘commercial, industrial, trading, or professional nature’,4 State immunity cannot be invoked. For instance, State-run auctions for sale or State contracts for the sale, purchase, bailment, insurance, and loan of cultural property are normally subject to that exception. The not-for-profit and eminently cultural, educational, or scientific purposes pursued by States when engaging in transactions involving art objects are not a bar to the assertion of jurisdiction by the courts of the forum State. Whether a given transaction is ‘commercial’ must indeed be ascertained on the basis of its nature, which is usually taken to mean that foreign States are not immune for activities that can be performed also by private actors. The purpose of such activities is at best a subsidiary criterion.5 This point can be illustrated by reference to the famous dicta of a US District Court in the Malewicz case about the nature of art loans,6 which paved the way for its assumption of jurisdiction over a claim for the return of eighty-four Abstract art paintings left behind by their author/owner, and eventually by their custodian, upon fleeing Stalinistand Nazi-era persecution.7 When, in 2003, some of the paintings were sent on loan to the Guggenheim Museum in New York and the Menil Collection in Houston by Amsterdam’s Stedelijk Museum, Malewicz’s heirs instituted proceedings against the City of Amsterdam—a political subdivision of the Netherlands—and challenged its 1956 allegedly fraudulent and bad-faith acquisition of the artworks. According to the District Court, the dispute was squarely denoted by commercial activities not attracting State immunity or the application of the act of State doctrine. The court held that ‘[t]here is nothing “sovereign” about the act of lending art pieces, even though the pieces themselves might belong to a sovereign’.8 Similarly, it found that Amsterdam’s acquisition of the artworks was not an act of State entitled to deference, since ‘any private person or 4 Art 2(c) of the United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI), General Assembly Res 59/38, annex, 2 December 2004, not in force. See also Art 10 UNCSI. 5 The subsidiary character of the ‘purpose test’ is endorsed by Art 2(2) UNCSI. Yet, the preponderant position in State practice seems to be firmly anchored to exclusive reliance on the ‘nature test’. 6 Malewicz v City of Amsterdam, 362 F. Supp. 2d 298 (DDC 2005) (Malewicz I), 517 F. Supp. 2d 322 (DDC 2007) (Malewicz II). 7 The Court asserted jurisdiction on the basis of the expropriation exception to State immunity under section 1605(a)(3) of the US Foreign Sovereign Immunities Act (FSIA), which, as discussed later on, requires a commercial nexus between the foreign State or its agencies and the US territory. The Court’s remarks are applicable, mutatis mutandis, to the commercial transaction exception. 8 Malewicz I (n 6) 314.

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554 Riccardo Pavoni entity could have purchased the paintings for display in a public or private museum . . . In other words, there was nothing sovereign about the City’s acquisition of the Malewicz paintings, other than that it was performed by a sovereign entity’.9 Although the reasoning of the court may be textually and logically correct, the Malewicz decisions have been targeted by severe criticism for their purported insensitivity to the special status of art objects and to the special importance of transnational art loans as a key means of safeguarding universal access to cultural treasures, mutual knowledge and understanding among peoples, and cultural diplomacy.10 To be sure, the Malewicz court only denied immunity from jurisdiction with respect to the substantive claim for restitution brought by plaintiffs, whereas it endorsed immunity from seizure for the artworks at stake,11 as previously granted by a US executive determination under the 1965 Immunity from Seizure Act (IFSA).12 Yet, in the view of the critics, the prospect of losing immunity from suit is more than enough to chill and disrupt transnational exchanges involving State cultural property. That is why immunity from jurisdiction for artworks on loan is often regarded as an indispensable protection. Thus, in addition to a 2016 amendment of the US Foreign Sovereign Immunities Act (FSIA) discussed later on,13 the Malewicz decisions have induced the drafters of a 2014 ILA Draft Convention14 covering this area to endorse, in principle, both execution immunity and immunity from suit for cultural objects on loan. Draft article 4 provides that the temporary presence of cultural objects in a receiving/ borrowing State for cultural, educational, or scientific purposes ‘shall not form the basis for any legal process’15 in that State. It also envisages that a judicial decision delivered notwithstanding the foregoing prohibition ‘shall not be recognized or given effect in any State Party’.16 However, the lack of consensus over a general grant of immunity from suit for cultural objects on loan is immediately apparent in the Draft Convention, as the two 9 Malewicz II (n 6), 339 (emphasis in original). 10 See e.g. C.A. Caprio, ‘Artwork, Cultural Heritage Property, and the Foreign Sovereign Immunities Act’ (2006) 13 International Journal of Cultural Property 285, 287, 293–4. 11 Malewicz I (n 6) 312 (‘Because the Malewicz Heirs are not seeking judicial seizure of the artworks, the City’s and the United States’ reliance on [the IFSA] is misplaced. Immunity from seizure is not immunity from suit for a declaration of rights or for damages arising from an alleged conversion’) (emphasis in original). The question of the seizure of the paintings was purely hypothetical, as they had been sent back to the Netherlands before process was served on the City of Amsterdam (‘Had this lawsuit begun and concluded before the Malewicz Collection left this country, no order of this Court would have, or could have, affected the custody or control that the [US] museums (and carriers) exercised over the artworks’, Malewicz I (n 6) 311). The case was vacated when the parties reached an out-of-court settle ment, according to which five of the contested paintings were returned to Malewicz’s heirs. See L. M. Kaye, ‘Art Loans and Immunity from Seizure in the United States and the United Kingdom’ (2010) 17 International Journal of Cultural Property 335, 343. 12 22 USC 2459(a). 13 See Section 2.3. 14 Draft Convention on Immunity from Suit and Seizure for Cultural Objects Temporarily Abroad for Cultural, Educational or Scientific Purposes, with Explanatory Notes, adopted by the 76th ILA Conference, Washington DC, 7–11 April 2014; see Explanatory Notes, para 12 of the draft Preamble. See also Report of the Committee on Cultural Heritage Law, Draft Report on the Project on Immunities from Seizure and Suit Involving Cultural Material, 75th ILA Conference, Sofia (2012), 4–5. 15 Draft art 4(1). 16 Draft art 4(2).

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Cultural Heritage and State Immunity 555 abovementioned provisions are subject to an opting-out clause by which States Parties may declare that they will not be bound by either of them.17 Moreover, draft article 4, as other key norms of the Draft Convention, is not meant to apply when the receiving State ‘is bound by conflicting obligations under international or regional law’,18 such as those flowing from treaties or European Union (EU) legislation against the illicit trafficking of cultural property. Nevertheless, if we look beyond the sensitive case of art loans, the applicability of the commercial transaction exception to State immunity in the context of art-related litigation cannot seriously be contested. Most prominently, in a string of high-profile art-restitution suits US courts have demonstrated their resolve to establish jurisdiction under that exception as formulated in the FSIA. The de Csepel case,19 which involves the confiscation of the so-called Herzog Collection by Nazi Hungary during World War II, is emblematic in that respect. The Collection—originally made up of some 2000 artworks assembled by Baron Herzog, a Jewish Hungarian national—was one of Europe’s largest and finest private art collections. Baron Herzog’s heirs sued Hungary and various Hungarian agencies in the US for the restitution20 of a portion of the Collection, over forty artworks presently housed by the Budapest University of Technology and Economics and several Hungarian museums, such as the Hungarian National Gallery. The peculiar aspect of the case is that plaintiffs’ primary claim concerns the alleged breach of a series of express or implied bailment agreements covering the disputed artworks and concluded with defendants in the aftermath of WWII. Plaintiffs assert that such breach occurred when defendants failed to return the artworks upon demand. First, similarly to the Malewicz case, the alleged repudiation of bailment contracts led the courts to reject any defence based on the act of State doctrine: ‘The actions challenged by plaintiffs . . . are not “sovereign acts”, but rather commercial acts that could be committed by any private university or museum. Such “purely commercial” acts do not require deference under the act of state doctrine.’21 Secondly, and most importantly, the Court of Appeals regarded the Herzog heirs’ claims as ‘fall[ing] comfortably within the FSIA’s commercial activity exception’22 and upheld jurisdiction on this basis. That the object of the relevant activities were artworks made no difference, according to the court, because—Malewicz docet—no sovereign act was implicated in a loan (or by extension a bailment) of cultural objects.23 Eventually, with the benefit of full disclosure of the pertinent factual evidence, the District Court excluded the applicability of the commercial activity exception, because the repudiation of the bailments at stake did not cause any ‘direct effect’24 in the US,25 a 17 Draft art 4(3). 18 Draft art 5. 19 De Csepel v Republic of Hungary, 808 F. Supp. 2d 113 (DDC 2011) (de Csepel I), 714 F.3d 591 (DC Cir 2013) (de Csepel II), 169 F. Supp. 3d 143 (DDC 2016) (de Csepel III), 859 F.3d 1094 (DC Cir 2017) (de Csepel IV), cert denied 139 S.Ct. 784 (2019). 20 Or, failing that, for damages in the amount of over US$100 million. 21 De Csepel I (n 19) 143, affirmed de Csepel II (n 19) 604 (emphasis in original). 22 De Csepel II (n 19) 598. 23 De Csepel II (n 19) 599. 24 Section 1605(a)(2) FSIA. 25 De Csepel III (n 19) 158–63.

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556 Riccardo Pavoni requirement specific to the FSIA which must be satisfied in order to trigger that exception. This is a finding of fact which does not affect the gist of the US jurisprudence in question, namely that there are no principled reasons foreclosing reliance on the commercial transaction exception in disputes involving cultural property.26 Other decisions relating to alleged wrongful appropriations of cultural objects by Germany27 and Russia28 are testimony thereof. At any rate, it pays to emphasize that, when art-related commercial transactions are at issue, a State cannot avoid restitution and cognate proceedings before a foreign court by merely asserting that its ‘sovereign’ retention of the disputed property arises from the observance of national cultural heritage laws (such as laws prohibiting the transfer abroad of the relevant artwork). If it were not so, reliance on heritage laws would always operate as a tie-breaking defence unduly barring, in limine litis, any legitimate claim for the recovery of cultural property. This key issue has been addressed inconsistently by domestic courts. In its 1985 decision in Italian State v X,29 the Swiss Federal Tribunal afforded immunity to Italy vis-à-vis a claim brought by an individual for the restitution of a set of historic stone tablets that she/he had acquired in Switzerland after their unlawful exportation from Italian territory. The cultural objects in question had been handed over to the Italian authorities to serve as evidence in criminal proceedings, in accordance with a request under the 1959 European Convention on Mutual Assistance in Criminal Matters. Italy argued that its failure to return the objects was a jure imperii act stemming from the need to respect the principle of Italian law pursuant to which the Italian State is vested with exclusive title to excavated archaeological pieces. Reversing the Court of Appeal, the Federal Tribunal granted immunity because Italy was invoking a property right arising from ‘its public law legislation protecting objects of historical and archaeological value’;30 what was at stake, the Tribunal continued, were not jure privatorum activities but rather a claim ‘formulated by the Italian State in the exercise of its sovereign powers (jure imperii)’.31 In order to justify its decision, the Tribunal could have placed emphasis on the evidentiary value of the contested property for Italian judicial proceedings—that is, quintessentially jure imperii activities. Instead, as pointed out earlier, its exclusive reliance on Italy’s determination that the property was part of its cultural heritage cannot be accepted.32 26 Crucially, this finding did not either bring the dispute to an end. In de Csepel III (n 19), the District Court assumed jurisdiction on the basis of the expropriation exception in the FSIA, a decision largely endorsed in 2017 by the Court of Appeals in de Csepel IV (n 19). 27 Schoeps v Bayern, 27 F. Supp. 3d 540 (SDNY 2014), 611 F. App’x 32 (2nd Cir 2015) (bad faith acquisition of Picasso’s Madame Soler in 1964 by the Free State of Bavaria); Westfield v Germany, 633 F.3d 409 (6th Cir 2011) (forced auction for sale of Walter Westfeld’s art collection in 1939). 28 Magness v Russian Federation, 54 F. Supp. 2d 700 (SD Tex. 1999) (various commercial activities, such as leasing, sales, and loans, undertaken vis-à-vis a historical piano factory in St Petersburg and associated antiquities which were expropriated in 1994 by post-Communist Russia). 29 Italian State v X and Court of Appeal of the Canton of the City of Basle, 82 ILR 24 (English translation), (1986) 42 Annuaire suisse de droit international 60 (French translation) (Swiss Federal Tribunal, 6 February 1985). 30 Ibid, 26, para 4a. 31 Ibid. 32 See also the telling observations of the UK Court of Appeal in Government of the Islamic Republic of Iran v The Barakat Galleries [2007] EWCA Civ 1374, paras 114, 126, and 149: ‘[Iran] asserts a claim

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Cultural Heritage and State Immunity 557 A diametrically opposite reasoning has recently been endorsed by the Italian Supreme Court of Cassation in a dispute brought against Peru by an antique art dealer seeking a declaration of title over, and ensuing recovery of, twenty-one pre-Columbian textile artefacts that a public prosecutor had seized from the same dealer and delivered to the Peruvian and Chilean consulates in Milan.33 The seizure of the artefacts had been carried out in the context of criminal proceedings wherein the art dealer had been charged with having knowingly received stolen objects (ricettazione). Following the full dismissal of such criminal charges, the order for the seizure of the artefacts from the dealer and their delivery to the consulates had been quashed. Yet the latter had refused their restitution. When the art dealer filed a civil claim for the determination of title over the antique textiles, Peru invoked immunity. It argued that its conduct had to be regarded as a manifestation of sovereign authority—namely, that it was of a jure imperii nature. In other words, Peru took the view that the retention of the disputed artefacts, in defiance of the judicial decision revoking the order by which they had been handed over to the consulate, reflected the necessity to comply with Peru’s laws on the protection of cultural heritage against theft and illegal exportation. The Court of Cassation rejected Peru’s arguments and found that the case did not involve any sovereign conduct. According to the court, the dispute was about patrimonial claims and, as such, did not impinge on the sovereign functions of the defendant State.34 It further stated that a decision to grant immunity would have been warranted only if Peru had sought the return of the disputed objects via diplomatic channels as foreseen by the 1970 UNESCO Convention,35 instead of illicitly keeping them pursuant to a judicial order that had been annulled.36 Leaving aside the latter unsubstantiated assertion,37 it would have been more correct for the court to uphold jurisdiction on the basis of the specific exception to State immunity relating to property ownership, possession and use. However, its findings remain a forceful reminder that foreign States cannot avoid the application of the most classic based upon title to antiquities which form part of Iran’s national heritage . . . This is a patrimonial claim, not a claim to enforce a public law or to assert sovereign rights’. 33 General Consulate of Peru in Milan v Tabibnia, ILDC 2458 (IT 2015) (Tabibnia), commented on by P. Rossi in (2015) 25 Italian Yearbook of International Law 511 (Italian Court of Cassation, 5 October 2015, No 19784). 34 Tabibnia (n 33). 35 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Paris, 14 November 1970, in force 24 April 1972. 36 Tabibnia (n 33). 37 For one thing, it is unclear why, rather than the 1970 Convention, the Court did not reference the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Rome, 24 June 1995, in force 1 July 1998, to which both Peru and Italy are parties. Whereas under the UNESCO Convention diplomatic channels are to be used when lodging requests for the return of (certain) stolen cultural property (Art 7(b)(ii)), the UNIDROIT Convention in principle considers diplomatic and judicial proceedings as two equally available alternatives when restitution claims are brought by States (arts 8 and 16). This is not to say that the outcome of the Tabibnia case should have been any different had the Court quoted the UNIDROIT Convention. It is just unconvincing that either a diplomatic action under the UNESCO Convention or judicial proceedings under the UNIDROIT Convention would automatically make Peru’s inordinate conduct immune from jurisdiction.

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558 Riccardo Pavoni exception to State immunity, that relating to jure gestionis activities, by simply retreating behind the alleged necessity to abide by national heritage laws.

2.2 Property-Related Exceptions Certain provisions of the UN Convention on Jurisdictional Immunities of States and Their Property (UNCSI)38 may give the impression that suits involving disputes over State property, including cultural property, are strongly presumed to be barred by State immunity. According to article 6(2), a proceeding before a domestic court is deemed to have been brought against a foreign State, thereby triggering the obligation on the court to grant immunity proprio motu (save applicable exceptions),39 not only when the foreign State is named as a party to the proceeding40 but also when the latter ‘in effect seeks to affect the property, rights, interests or activities of that State’41 (so-called ‘indirect impleading’). In turn, article 8(2)(b) rules out that implied consent to the jurisdiction of foreign courts may be found to exist when a State ‘intervenes in a proceeding or takes any other step for the sole purpose of . . . asserting a right or interest in property at issue in the proceeding’.42 There is a clear link between these provisions,43 as article 8(2)(b) aims at allowing a State to plead, without in principle losing immunity, that it has title over disputed property when it is indirectly impleaded pursuant to article 6(2)(b). As applied to art-related cases, the foregoing exclusion of implied consent to jurisdiction may end up protecting any conduct by which a State, in the context of foreign judicial proceedings, asserts ownership or cognate rights over cultural objects out of purported respect for its cultural heritage laws. In the Tabibnia case,44 the Italian Court of Cassation tacitly deviated from the UNCSI45 when it held that a further reason why Peru could not be afforded immunity was that that State had impliedly accepted Italian jurisdiction by persistently giving effect to a subsequently invalidated judicial order pursuant to which it had gained possession of the disputed pre-Columbian artefacts. Peru’s retention of the artefacts was evidently a step taken for asserting a right in the cultural property at issue in that case. At any rate, the customary status of the not-yet-in-force UNCSI provisions in question is particularly doubtful.46 Most important, however, they do not preclude the application 38 See n 4. 39 Art 6(1) UNCSI. 40 Art 6(2)(a) UNCSI. 41 Art 6(2)(b) UNCSI, emphasis added. 42 Emphasis added. 43 S. Borelli and S. Olleson, ‘Article 8’ in R. O’Keefe and C. J. Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford University Press 2013) 124, 135–6. 44 Tabibnia (n 33). 45 Despite Italy’s accession to the UNCSI. Italy deposited its instrument of accession on 6 May 2013. Accordingly, Art 18(b) of the Vienna Convention on the Law of Treaties (VCLT) might well provide an argument for requiring observance of the UNCSI even though the latter is not (yet) in force. 46 The customary nature of the norm on indirect impleading under Art 6(2)(b) UNCSI has been excluded by the UK Court of Appeal in Belhaj v Straw [2014] EWCA Civ 1394, para 47. The same should hold true for the related provision in Art 8(2)(b), especially given its broad formulation.

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Cultural Heritage and State Immunity 559 of certain property-related exceptions to State immunity established by the UNCSI itself and largely reflected in State practice. These are the exceptions relating to (i) ownership, possession, and use of property; (ii) damage to or loss of tangible property occurring in the territory of the forum State (the so-called ‘territorial tort exception’); and (iii) intellectual and industrial property. Although these exceptions have not resulted in specific manifestations of State practice in the area of cultural property, they may well cover a considerable variety of heritage-related disputes. As formulated in the UNCSI, the exception relating to ownership, possession, and use of property lifts immunity in proceedings concerning any right or interest of a foreign State in immovable property situated in the forum State (article 13(a)); any right or interest of a foreign State in movable or immovable property arising by way of succession, gift, or bona vacantia (article 13(b)); or any right or interest of a foreign State in the administration of property (article 13(c)). Whereas the first situation is confined to immovable property located in the forum State, the other situations apply to both immovable and movable property with no territorial limitations. Under article 13(b), however, only claims involving State property rights and interests flowing from succession, gift, or bona vacantia are admissible. Thus restricted, the types of art-restitution suits that may still be instituted on the basis of this exception are not negligible. As to property acquired by succession or gift, a paradigmatic example is offered by the celebrated Altmann case,47 where Austria maintained that the disputed Klimt artworks had either been bequeathed by the will of the original co-owner (Adele Bloch-Bauer, the subject of the most famous paintings at issue) or subsequently donated by heirs to the Austrian Gallery. On the other hand, the exception covering State rights and interests in bona vacantia, namely property without legal owner, may well be invoked in litigation involving unclaimed cultural objects which had been confiscated or stolen—provided, of course, that the original owner of the artworks has died and no heirs exist or can be identified. These circumstances have frequently arisen, especially in the practice concerning heirless property—including cultural objects—looted by the Nazis during the Holocaust and WWII. In that context, Jewish or comparable organizations may well advance claims for the recognition of their collective right to recovery and possession of such bona vacantia, at least when there is a clear link between their cultural and religious heritage and the objects in question. Short of successions or bona vacantia, it is unclear whether the exception at stake allows suits for the restitution of movable cultural property that is alleged to be wrongfully held by a foreign State, for instance because that State is accused of misappropriation, confiscation, or nationalization of the relevant artworks. As the latter conduct, however wrongful, is normally of a jure imperii nature, there may be no room for the application 47 Altmann v Republic of Austria, 317 F.3d 954 (9th Cir 2002), 541 US 677, 43 ILM 1425 (Supreme Court 2004). In the US the exception at issue is narrower than in the UNCSI, as the disputed property must always be present in US territory at the time of the suit; see section 1605(a)(4) FSIA. This limitation may explain the failure of the Altmann plaintiff to rely on the rights-in-property exception to State immunity, because the Klimt paintings were housed by the Austrian Gallery in Vienna. Jurisdiction of the US courts over the case was instead affirmed pursuant to the expropriation exception in the US FSIA.

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560 Riccardo Pavoni of the commercial transaction exception, nor—as a rule48—of any other exception to State immunity. However, article 13(c) UNCSI additionally denies immunity in respect of a foreign State’s rights or interests in the administration of property. The typical example involves State rights in trust property—namely, property over which courts usually exercise some sort of supervisory jurisdiction.49 By analogy, permanent or temporary loans of private art collections to State museums seem to be caught by this provision. But the word ‘administration’ is nowhere qualified in the UNCSI. It ought to be understood pursuant to its ordinary meaning, thereby making the exception applicable to a broad range of art-related disputes. ‘Administration’ can indeed be loosely referred to any situations in which a State holds, owns, possesses, controls, or manages cultural heritage property. After all, and leaving aside issues of ownership, a State may in the first place be regarded as the chief administrator and guardian of the cultural heritage in its territory on behalf of its people and humanity as a whole. At the very least, reliance on the exception to immunity concerning property ‘administered’ by States seems justified in circumstances similar to those prevailing in the foregoing Tabibnia case,50 where Peru acquired possession of the disputed artefacts by virtue of a judicial order made in the context of ongoing court proceedings. The other property-related exceptions to State immunity mentioned earlier are also worth a few observations. The tort exception—for example, under article 12 UNCSI—is especially noted for its denial of immunity in respect of pecuniary compensation proceedings arising from death or injury to the person which occur in the forum State’s territory. But it also discretely applies to compensation claims resulting from ‘damage to or loss of tangible property’, always provided that such torts are committed on the forum’s territory. For instance, damage to immovable or movable (cultural) property covers arson, acts of vandalism, and any other type of action causing physical harm to such property. In turn, loss of (cultural) property is an extremely broad expression likely to encompass any conduct, including State-ordered or State-condoned thefts and looting, by which an individual is deprived of possession and control over her/his assets (denoted by religious, artistic, or historical value). Indeed, a key point here is that practice shows increasing acceptance of the applicability of the tort exception irrespective of the nature of the State conduct at issue.51 Thus, it is irrelevant whether damage to or loss of cultural property resulted from jure imperii conduct—say, an arson of an educational institution’s library containing antique books by foreign State agents acting in furtherance of a State plan to destroy certain cultural expressions. Yet, according to the International Court of Justice (ICJ), a major exclusion 48 See however the ensuing discussion of the tort and expropriation exceptions to State immunity in this section and Section 2.3. 49 See J. P. Terhechte, ‘Article 13’ in O’Keefe and Tams, Commentary (n 43) 225, 232. 50 Tabibnia (n 33). 51 Two landmark domestic court decisions for this proposition are Letelier v Chile, 488 F. Supp. 665 (DDC 1980) and Schreiber v Germany and Canada, 2002 SCC 62, paras 32–7 (Supreme Court of Canada 2002). The ICJ, instead, expressed scepticism on the point in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99, paras 64–5 (3 February 2012).

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Cultural Heritage and State Immunity 561 from the scope of this exception concerns territorial torts committed by the armed forces of a foreign State in the context of an armed conflict.52 This exclusion has profound consequences in the area of cultural property, because it forecloses reliance on the tort exception for cultural crimes—such as the looting of artworks—by foreign troops and/or associated State agents in times of war, even if such crimes are perpetrated on the territory of the forum State. As shown later on, the ICJ’s position stands in marked contrast to the determination by which US courts have asserted jurisdiction, albeit under the distinctively American expropriation exception to State immunity, on a host of disputes targeting acts of plunder, confiscation, and nationalization of cultural property committed by foreign State agents in the course of WWII or the Russian October Revolution. What is more, this US jurisprudence relates to misappropriations of artworks which did not occur in the US—that is, to extraterritorial cultural crimes. Whereas the tort exception covers damage to or loss of tangible property, claims involving intangible property—also known as intellectual or industrial property—are governed by a separate exception to State immunity. For instance, article 14 UNCSI removes immunity in proceedings over the determination of any right of a foreign State in a patent or in any other form of intellectual or industrial property protected in the forum State,53 as well as in proceedings concerning an alleged infringement by a foreign State, in the territory of the forum State, of intellectual property rights belonging to others.54 In our context, this exception raises the intriguing question of its implications for the safeguarding of intangible cultural heritage as envisaged by the 2003 UNESCO Convention.55 Indeed, forms of intellectual property protection may be attached to certain items of the intangible heritage, such as copyrights or trademarks covering festive events or the various manifestations of the performing arts. Here the exception at hand allows, for example, damages actions arising from the unlicensed use, in the forum State, of copyrighted traditional music constituting intangible cultural heritage by a foreign State agency. This scenario is not unlikely. A distinctive feature of the notion of intangible heritage is its marked non-State dimension. Such notion covers 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’.56 The State is merely the political and geographical entity entrusted with the safeguarding of the intangible heritage which is ‘present in its territory’.57 It is only natural that, in all relevant circumstances, the non-State actors concerned avail themselves of the exception to State immunity at hand and sue foreign States which violate intellectual property rights pertaining to their intangible heritage.

52 Jurisdictional Immunities (n 51), para 78. 53 Art 14(a). 54 Art 14(b). 55 Convention for the Safeguarding of the Intangible Cultural Heritage (ICH Convention), Paris, 17 October 2003, in force 20 April 2006. 56 Art 2(1) ICH Convention; emphasis added. See also Art 1(b) ICH Convention. 57 Arts 11, 12(1) and 23(1) ICH Convention.

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562 Riccardo Pavoni The specific manifestation of intangible cultural heritage raising the most significant intellectual property-related issues is that concerning the traditional knowledge, skills, and practices of indigenous and local communities,58 which can be used for extremely valuable commercial applications in such sectors as medicine, biotechnology, and agriculture. National law may well establish some form of intellectual property protection in favour of the holders of such knowledge and practices. The resulting rights may benefit from the exception to State immunity under consideration, which certainly applies to novel types of intellectual property, such as indeed ‘indigenous intellectual property’.59 The emblematic example is that of a State enterprise or agency—such as a national institute of health—which is granted a patent on pharmaceuticals or vaccines derived from the unauthorized use of indigenous knowledge and associated biological resources. If those products are marketed in the State where the traditional-knowledge holders are located, and that State protects the relevant knowledge and practices, the holders’ representatives may rely on the intellectual property rights exception to State immunity and accordingly institute infringement proceedings against the foreign State enterprise or agency (so-called ‘active protection’ of traditional knowledge). Moreover, the same exception invariably allows the holders’ representatives to bring suit for the revocation or annulment of the patent at stake, by arguing—most typically—that the requirements of novelty and/or inventiveness for patentability are not satisfied (‘passive or defensive protection’ of traditional knowledge). To sum up, the denial of State immunity in the area of intellectual property seems entirely consistent with the spirit, rationale, and broad objectives of the pertinent international legal framework which, in addition to the 2003 UNESCO Convention, includes the Biodiversity Convention60 and its Nagoya Protocol on Access and Benefit-sharing.61

2.3 Expropriation Exception under the US FSIA Given the considerable number of widely accepted exceptions to State immunity which may be invoked in art-restitution cases, it is somewhat bewildering that the most significant practice in this area has instead developed out of an exception which is unique to the US legal system. This is the ‘expropriation exception’ set out in section 1605(a)(3) of the US FSIA, which reads: A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such 58 Cf Art 2(2)(d) ICH Convention. 59 J. P. Terhechte, ‘Article 14’ in O’Keefe and Tams, Commentary (n 43) 233, 237. 60 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 December 1993, Art 8(j). 61 Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, Nagoya, 29 October 2010, in force 12 October 2014, Arts 5(2) and (5), 6(2), 7, 12, and 16.

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Cultural Heritage and State Immunity 563 property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.

In reality, the chief reason why this provision has catalysed the attention of plaintiffs bringing art-recovery claims against foreign States is quite simple. It basically obliterates all of the requirements constraining resort to the exceptions to State immunity examined so far. First and foremost, it provides jurisdiction over takings of property in violation of international law, namely State acts which are quintessentially of a jure imperii nature and may well be carried out in times of armed conflict.62 And unlike the loss-of-property clause in the tort exception, such expropriations may occur extraterritorially—that is, in States other than the forum State. Similarly, the presence of the disputed property in US territory is not required when it is owned or operated by a State agency or instrumentality, such as a State museum. US courts have done the rest by interpreting the exception at issue in an extremely broad fashion. The die was cast with the 2004 landmark decision of the US Supreme Court in Altmann,63 where the plaintiff had relied on the expropriation exception to defeat Austria’s claim to immunity in respect of proceedings seeking the restitution of a number of Klimt paintings taken by the Nazis during WWII. The Supreme Court ruled that the FSIA applied retrospectively to State conduct predating its enactment in 1976, including conduct predating the US espousal of the restrictive doctrine of State immun ity with the 1952 Tate Letter. The floodgates of litigation involving notorious historical instances of State persecutory confiscation, plunder, or misappropriation of cultural objects, especially Holocaust art litigation, were definitively opened wide. Since Altmann, victims of art spoliation (or their legal successors) by foreign States have increasingly brought suit before the US courts. Most prominently, these cases include Malewicz;64 Chabad65 (seizure and looting of thousands of Jewish sacred books, manuscripts, and texts by Russia during the October Revolution and in the aftermath of WWII); Cassirer66 (Nazi confiscation of a Pissarro painting presently housed by the State-run Thyssen-Bornemisza Collection Foundation in Spain); de Csepel;67 and—lately—Philipp68 (Nazi-orchestrated forced sale of a portion of the 62 A recent unanimous opinion of the US Supreme Court evidences a reluctance to acknowledge this point, as well as, in general, that the expropriation exception in the FSIA constitutes a worldwide unique case inconsistent with the international-law doctrine of State immunity; see Bolivarian Republic of Venezuela v Helmerich & Payne International Drilling Co., 137 S.Ct. 1312, 1320–1 (2017). 63 Altmann (n 47). 64 Malewicz (n 6). 65 Agudas Chasidei Chabad v Russian Federation, 466 F. Supp. 2d 6 (DDC 2006), 528 F.3d 934 (DC Cir 2008), 729 F. Supp. 2d 141 (DDC 2010), 798 F. Supp. 2d 260 (DDC 2011). 66 Cassirer v Kingdom of Spain, 461 F. Supp. 2d 1157 (CD Cal. 2006), 616 F.3d 1019, 49 ILM 1492 (9th Cir 2010). 67 De Csepel (n 19). 68 Philipp v Germany, 248 F. Supp. 3d 59 (DDC 2017), 894 F.3d 406 (DC Cir 2018).

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564 Riccardo Pavoni s o-called ‘Welfenschatz’ or ‘Guelph Treasure’—that is, dozens of outstanding medieval reliquary and devotional objects currently located at the State-administered Museum of Decorative Arts in Berlin). Many key aspects of this jurisprudence may be noted only briefly, since they have already been commented upon extensively,69 whereas others deserve special attention as they have emerged from the most recent practice. The well-known aspects involve the reluctance of US courts to dismiss the cases in question pursuant to a requirement of prior exhaustion of domestic remedies in the State pleading immunity; the breathtaking finding that the expropriation exception applies even if the defendant State holding the disputed art is not responsible for the original taking;70 and the generosity of such courts in accepting that the commercial activity nexuses prescribed by the exception have been satisfied, for instance through the publication and sale of museums’ guidebooks in the US (e.g. Altmann, Philipp), the management of a museum’s website accessible by US citizens to buy admission tickets and view collections (Cassirer), contracts with US companies for duplication and ensuing sales of exhibited cultural materials (Chabad), and loans of art with museums in the US (Malewicz, de Csepel, Philipp). As to the most recent practice, two developments must be singled out. The first is a 2016 amendment to the FSIA71 born out of fear that the last-mentioned jurisprudence, by including art loans within the types of activity likely to satisfy the commercial nexus in the expropriation exception, might curb the willingness of foreign States to engage in transnational cultural exchanges with US institutions. The novel section 1605(h) of the FSIA establishes that any activity in the US of a foreign State (or any carrier) that is associated with the temporary exhibition or display of an artwork which has been loaned to a US cultural or educational institution by such State ‘shall not be considered to be commercial activity’72 for purposes of the expropriation exception, provided the artwork had previously been granted immunity from seizure by a US President’s determination under the IFSA.73 It is decidedly doubtful that, with this piece of legislation, the US legislature has accomplished its intended aims. Rather, the amendment epitomizes the persistent strains and controversies in this area. Its scope is, indeed, particularly narrow. It clearly applies to just one of two situations that trigger the expropriation exception, namely when the disputed property is present in the US, and it stipulates that in such case an art loan cannot amount to the requisite commercial activity carried on in the US by a foreign State ‘in connection’ with that property. It leaves undisturbed the jurisprudence 69 See e.g. Pavoni, ‘Sovereign Immunity’ (n 1) 88–92; N. van Woudenberg, State Immunity and Cultural Objects on Loan (Martinus Nijhoff 2012) 122–39; B. L. Hay, Nazi-Looted Art and the Law: The American Cases (Springer 2017) 43–66, 137–56, 239–50; L. F. Redman, ‘The Foreign Sovereign Immunities Act: Using a “Shield” Statute as a “Sword” for Obtaining Federal Jurisdiction in Art and Antiquities Cases’ (2008) 31 Fordham International Law Journal 781. 70 Cassirer (n 66) 1497–8, cert denied 131 S.Ct. 3057 (2011). 71 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Pub. L. 114–319, 130 Stat. 1618, enacted on 16 December 2016. 72 Section 1605(h)(1). 73 Ibid.

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Cultural Heritage and State Immunity 565 relating to the other, much looser, situation envisaged by the exception—that is, when the property is not in the US and is merely owned or operated by a foreign State agency or instrumentality engaged in a commercial activity in the US that may be wholly unconnected to that property. Most important, suits relating to Nazi-looted art74 or, generally, to takings carried out by a foreign State after 190075 ‘as part of a systematic campaign of coercive confiscation or misappropriation of [art]works from members of a targeted and vulnerable group’76 are not barred by the 2016 amendment. Thus, with respect to Nazi- or Bolshevik-era expropriations, art loans may still provide a key opportunity for ambushing tainted cultural objects. Such objects may only be exempt from seizure and other measures of execution if they have been immunized under the IFSA prior to their entry into US territory. The second development concerns a novel characterization of the violation of international law which is necessary to trigger the expropriation exception, as first endorsed within the ongoing US litigation concerning the Hungarian Holocaust.77 US courts ruled that the systematic deprivation of personal property belonging to Jews by the Nazis and their allies constituted genocide. In Abelesz, the Seventh Circuit Court of Appeals found that the expropriations alleged by plaintiffs had to be viewed ‘as an integral part of the genocidal plan to depopulate Hungary of its Jews’;78 indeed, the Court went on, ‘[t]he expropriations thus effectuated genocide in two ways. They funded the transport and murder of Hungarian Jews, and they impoverished those who survived, depriving them of the financial means to reconstitute their lives and former communities.’79 This finding has been articulated especially in Simon,80 another prominent case involving large-scale confiscations of Jewish property during the Hungarian Holocaust. In its 2016 Simon decision, the Columbia Circuit Court of Appeals made clear that the acts at issue fulfilled the mens rea requirement of the definition of genocide. It held: ‘[T]he alleged takings did more than effectuate genocide or serve as a means of carrying out genocide . . . Rather, we see the expropriations as themselves genocide.’81 As a matter of fact, the Court explained, ‘[t]he systematic “wholesale plunder of Jewish property” . . . aimed to deprive Hungarian Jews of the resources needed to survive as a people . . . Expropriations undertaken for the purpose of bringing about a protected group’s physical destruction qualify as genocide.’82 The Court explicitly hooked83 its conception of the Holocaust spoliations of Jewish property to the genocidal act of ‘deliberately inflicting on the [protected] group conditions of life calculated to bring about its physical destruction in whole or in part’ under article II(c) of the Genocide Convention.84 74 Section 1605(h)(2)(A). Section 1605(h)(3)(C) clarifies that the ‘covered period’ for Nazi-era claims refers to spoliations which occurred from 30 January 1933 to 8 May 1945. 75 Section 1605(h)(2)(B)(iii). 76 Section 1605(h)(2)(B)(ii). 77 Abelesz v Magyar Nemzeti Bank, 692 F.3d 661, 674–7 (7th Cir 2012). 78 Ibid, 675. 79 Ibid. 80 Simon v Hungary, 812 F.3d 127 (DC Cir 2016). 81 Ibid, 142. 82 Ibid, 143. 83 Ibid, 143–4. 84 Convention on the Prevention and Punishment of the Crime of Genocide, General Assembly Res 260 A(III), 9 December 1948, in force 12 January 1951.

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566 Riccardo Pavoni The chief consequence stemming from this jurisprudence is an expansion of the reach of the expropriation exception to State immunity: recasting systematic property deprivation as genocide—which is of course tenable only for human tragedies compar able to the Holocaust—circumvents the ‘nationality requirement’ of an expropriation in violation of international law, namely that a taking by a State may normally breach international law only when it targets nationals of other States. In other words, given various doubts over whether Hungarian or German Jews could be regarded as stripped of citizenship rights at the relevant times, US courts have seen fit to espouse the theory of genocidal takings so as to be able to flatly dismiss defendant States’ arguments focused on the nationality of the victims.85 Naturally, genocide is the prototype international crime that may be committed by a State against its own nationals. The US courts’ endorsement of the notion of genocidal expropriations is—at least to a certain extent—borne out by the drafting history of the Genocide Convention, which tells that the conduct caught by article II(c) was meant to encompass various manifest ations of the Holocaust,86 such as the ghettoization and mass deportation of Jews with associated confiscations of any and all personal assets and livelihoods. The deprivations at stake must, however, meet a high level of severity, as they must target ‘resources indispensable for survival, such as food or medical services’.87 The circumstances of Abelesz and Simon appear to satisfy this standard, as they concern the systematic seizure of personal property of Jews sent to death camps (including clothing, homes, bank accounts, suitcases, and jewels), at a time when the Nazi campaign of extermination was at its apex. But what about the Nazi expropriations of Jewish-owned artworks as such? Were they invariably part and parcel of the plan to physically destroy the Jewish people? Must they always be understood as having stripped Jews of life-saving assets? Perhaps not. For one thing, and to the best of my knowledge, expropriation of cultural property has never been given as an example of genocide’s actus reus of infliction of conditions of life aimed at the physical destruction of a protected group. Such an example is also never suggested in scholarship on cultural genocide discussing the actus reus in question.88 Crucially, an affirmative, unqualified answer to the foregoing questions would not take account of the myriad different circumstances under which the individual Nazi spoliations occurred and, moreover, would require extensive interpretations, if not resort to analogies, in an area—criminal law—where they are normally forbidden. Yet, the most recent Holocaust art jurisprudence of the US courts has precisely backed up this sort of extensive interpretations. In de Csepel, a suit for the restitution of a portion of the Herzog Collection brought against Hungary and various Hungarian institutions, the courts have lately denied State immunity on the basis of the expropriation exception, 85 Abelesz (n 77) 674–6; Simon (n 80) 144–6; Philipp (n 68) 72 (DDC 2017). 86 See e.g. F. Jessberger, ‘The Definition and the Elements of the Crime of Genocide’ in P. Gaeta (ed), The UN Genocide Convention: A Commentary (Oxford University Press 2009) 87, 100. 87 International Criminal Court, Elements of Crimes, ICC-ASP/1/3, 9 September 2002, Art 6(c), para 4, n 4 (emphasis added). 88 See e.g. E. Novic, The Concept of Cultural Genocide: An International Law Perspective (Oxford University Press 2016) 66–8.

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Cultural Heritage and State Immunity 567 even though plaintiffs’ primary claim was of a commercial nature as it involved the alleged breach of bailment agreements. In particular, the Court of Appeals stated that the case was indistinguishable from Simon89 and found the expropriation exception applicable to any plaintiffs’ bailment claims which bore ‘some connection’90 with Hungary’s genocidal takings during the Holocaust. But the most controversial ongoing proceedings are, no doubt, those seeking restitution of the invaluable religious objects forming part of the Welfenschatz. This artistic treasure was originally located in Brunswick Cathedral in Germany, and its disputed portion is presently housed by a State-administered museum in Berlin. The alleged forced sale of these objects to the State of Prussia by their Jewish owners occurred in 1935 for the price of RM 4.25 million (35 per cent of their market value). In those early years of Nazi rule, the Reich’s authorities had made clear that the acquisition of the objects was necessary in view of their historical, artistic, national, and political importance for the nation.91 In 2012, the German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution92 rejected a claim for restitution lodged by the plaintiffs in the US case, finding that the sale at issue was not made under duress. Given these circumstances, Germany vigorously argued before the US courts that it was impossible to regard its acquisition of the Welfenschatz as a genocidal expropriation under the Simon jurisprudence. In its view, the subject of the alleged taking was a precious art collection whose purchase by the plaintiffs’ ancestors was meant as ‘a business investment’,93 and the transaction could not be seen as arbitrary looting of Jewish property but—at best—as a coerced sale below the market value. The courts were wholly unpersuaded by these arguments and lifted Germany’s immunity on the basis of the expropriation exception.94 In their view, the expropriation of cultural objects that the victims planned to sell for a profit was still caught by genocide’s actus reus of the deliberate infliction of conditions of life aimed to physically destroy a protected group.95 In this connection, the District Court noted plaintiffs’ 89 De Csepel IV (n 19) 1102. 90 Ibid. Accordingly, the Court of Appeals asserted jurisdiction over the claims concerning the twenty-five disputed artworks that were expropriated and never returned by Hungary, whereas it left to the District Court to determine whether the claims involving some fifteen pieces that had been returned after WWII and later repossessed by Hungary were ‘sufficiently intertwined with the Holocaust-era taking’; de Csepel IV (n 19) 1104. 91 Philipp (n 68), 66 (DDC 2017), 413 (DC Cir 2018). 92 This body was created by Germany in 2003 as a measure to implement the 1998 Washington Conference Principles on Nazi-Confiscated Art. These principles were endorsed on 3 December 1998 by forty-four States and thirteen non-governmental organizations participating in the Washington Conference on Holocaust Era Assets. For follow-up, see Terezín Declaration on Holocaust Era Assets and Related Issues, adopted on 30 June 2009 by forty-six States. 93 Philipp (n 68) 71 (DDC 2017). 94 Due to a controversial reading of the expropriation exception, the Court of Appeals has lately dismissed the case against Germany as such, while upholding jurisdiction vis-à-vis the claim against the instrumentality of Germany which runs the Berlin museum hosting the Welfenschatz, i.e. the Stiftung Preussischer Kulturbesitz; Philipp (n 68), 414 (DC Cir 2018). 95 Philipp (n 68) 71 (DDC 2017), 412 (DC Cir 2018).

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568 Riccardo Pavoni allegations that the sale of the Welfenschatz was orchestrated to divest their ancestors of the ‘ability to earn a living’,96 thus dispossessing them of ‘resources needed to survive as a people in furtherance of the genocide of the German Jews during the Holocaust’.97 Further, according to the Court, the fact that the case at issue was not about the outright plunder of Jewish assets did not make a difference, because it nonetheless involved an alleged ‘sham transaction’98 carried out in order to deprive the targeted Jews ‘of their property as part of the genocide that occurred during the Holocaust’.99 Finally, the Court’s holding that the taking of the Welfenschatz bore ‘a sufficient connection to genocide’100 paved the way for dismissing the defendant State’s argument that this was not an expropriation in breach of international law as it had targeted German nationals.101 Lately, these findings have been upheld by the Court of Appeals, which also emphatically dismissed Germany’s argument that the present case was different because it concerned seizures of artworks and not medicines, food, and similar life-saving items. The Court especially relied on the US Congress’s determination to consider ‘Nazi artlooting part of the Holocaust’,102 as shown by several statutes, such as the 2016 Holocaust Expropriated Art Recovery Act, which extended statutes of limitation for Nazi artlooting claims. While awaiting further developments in this jurisprudence to see whether and how its theory of genocidal expropriation of artworks will survive, two observations seem in order. First, it is unclear why the US courts have chosen to retain a controversial notion of genocide, instead of adhering to the well-established position that the plunder of property, including cultural property, when carried out on discriminatory grounds and as part of a systematic attack on a civilian population, may trigger the crime against humanity of persecution. This is all the more puzzling as that position is rooted in the historical legacy of the 1946 judgment of the International Military Tribunal at Nuremberg, which made clear that the Nazi looting (and destruction) of cultural property, inter alia, amounted to persecution.103 Of course, the ultimate objective of overcoming the nationality hurdle in expropriation cases might have well been accomplished by relying on persecution, which—as all crimes against humanity—may target a State’s own nationals. The second, more general, observation is that, although these US Holocaust looted-art decisions never mention the notion of cultural genocide,104 they visibly engender a paradox in this area of cultural heritage law. International jurisprudence firmly supports an exclusively physical or biological conception of genocidal 96 Ibid (DDC 2017). 97 Ibid. 98 Ibid, 72. 99 Ibid. 100 Ibid, 70. 101 Ibid, 72. 102 Ibid, 411–2 (DC Cir 2018). 103 Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 30 September and 1 October 1946 (1947) 41 American Journal of International Law 172, 249. For exhaustive references to the modern jurisprudence of the International Criminal Tribunal for the former Yugoslavia acting upon the holding of the Nuremberg Tribunal, see R. O’Keefe, ‘Protection of Cultural Property’ in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014), 492, 516–9; Novic, The Concept of Cultural Genocide (n 88) 142–68. 104 Rightly so, as it is at least complicated to argue that, in looting artworks which were owned by Jews but could not—in nearly all cases—be regarded as representative of their culture, the Nazis were engaging in the cultural destruction of a protected group as such.

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Cultural Heritage and State Immunity 569 destruction, thereby denying that the deliberate destruction of cultural property as such—however devastating for the protection of humanity’s cultural heritage—may ever constitute the actus reus of the crime of crimes.105 In contrast, the US jurisprudence clearly implies that the actus reus of genocide may be fulfilled by the systematic and discriminatory confiscation or plunder of privately owned cultural objects.

3. The State of International Law on Execution Immunity for Cultural Heritage Property 3.1 Execution Immunity for Cultural Heritage Property under the UNCSI The basic rule106 in the area of State immunity from measures of constraint is that, save consent to the taking of such measures, only property that is used or intended for commercial purposes by a State may be seized, garnished, or attached, either in prejudgment107 or in post-judgment proceedings before the judicial or similarly competent bodies of other States. As a result, in view of its eminently public, educational, and scientific purposes, cultural heritage property might logically be regarded as enjoying blanket immunity from non-consensual coercive measures. Yet existing practice contradicts that logical deduction and rather shows that States have opted for ad hoc rules on execution immunity for cultural heritage property. At the domestic level, States are increasingly enacting specific antiseizure legislation covering cultural objects on loan, at times even when they have already ratified and implemented the UNCSI.108 These laws, which are in place in at least fifteen countries,109 may display 105 See most recently, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) [2015] ICJ Rep 24, paras 386–90 (3 February 2015). However, this jurisprudence significantly accepts that the destruction of cultural heritage may provide evidence of the mens rea of genocide, i.e. of an intent to physically destroy a protected group. 106 Jurisdictional Immunities (n 51), para 118. 107 Art 18 UNCSI only allows pre-judgment measures of constraint in the case of explicit or implicit (i.e. the earmarking of specific property) consent by a State. The customary status of this provision is, however, at least questionable. Recently, such status has been denied by the Supreme Court of the Netherlands in Morning Star International Corporation v Gabon, ECLI:NL:HR:2016:2236, para 3.4.7 (30 September 2016). 108 This is, for instance, the case with Japan, which has implemented almost verbatim the UNCSI (and ratified it on 11 May 2010) with the Act on the Civil Jurisdiction with respect to a Foreign State (Act No 24 of 24 April 2009). Yet subsequent ad hoc norms on antiseizure immunity for artworks on loan have nonetheless been passed with the Act on Facilitation of Exhibition of Overseas Works of Art in Japan, Law No 15 of 1 April 2011, translated in (2015) 58 Japanese Yearbook of International Law 492. 109 The US, Canada, France, Germany, Austria, Belgium, Switzerland, Israel, the UK, Liechtenstein, Finland, the Czech Republic, Poland, Japan, and the territory of Taiwan have antiseizure laws specifically

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570 Riccardo Pavoni crucial variations from one another, such as in terms of coverage (for instance, they may be applicable only to State-owned property or to both State- and privately owned property) or extent of protection (for instance, absolute versus qualified immunity). Similarly, at the international level, States supported the inclusion of cultural property110 among the items singled out in article 21(1) of the UNCSI as State property that must be considered in use or intended for government non-commercial purposes, thus exempt by definition from non-consensual measures of constraint. According to the UNCSI, this absolute presumption of immunity is enjoyed by ‘property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale’ (article 21(1)(d)), as well as by ‘property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale’ (article 21(1)(e)). The International Law Commission (ILC) and its Special Rapporteurs were pioneers when, in the mid-1980s, they inserted these rules in the draft articles which ultimately led to the adoption of the UNCSI in 2004. At the time, no international or domestic legal instruments contained comparable provisions.111 Rather, partial follow-up was provided by the Institut de Droit International which, in its 1991 Basel Resolution on State immunity, listed ‘property identified as part of the cultural heritage of the State, or of its archives, and not placed or intended to be placed on sale’112 in the categories of property enjoying, in particular, immunity from measures of constraint. The two foregoing clauses of article 21 of the UNCSI originated from different concerns. The provision granting execution immunity to cultural heritage property (and State archives) stemmed from the legacy of the decolonization process, as it was perceived essential for protecting the sovereign rights of developing countries over their cultural patrimony, thus as a logical complement of the principle of permanent sovereignty over natural resources.113 Obviously, however, the provision may benefit developing and industrialized countries alike. Instead, the norm affording immunity to cultural objects included in an exhibition was meant to foster transnational art loans by removing a major obstacle to their implementation, namely the possibility that such covering cultural objects on loan. Moreover, legislation in the Netherlands, Ireland, and Australia, though not framed in terms of immunity from seizure for cultural objects, may yield equivalent effects. For a detailed account of these laws, see van Woudenberg, State Immunity and Cultural Objects on Loan (n 69). 110 Alongside diplomatic and consular property, military property, and central bank property. 111 As to cultural objects on loan for exhibition purposes, the only source of inspiration for the ILC might have been the 1965 US IFSA and a few antiseizure statutes adopted by Canadian provinces, such as the 1976 Manitoba Foreign Cultural Objects Immunity from Seizure Act. 112 Resolution on Contemporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement, Basel, 2 September 1991, Art 4(2)(d). 113 See A. Jakubowski, ‘Cultural Property under the Threat of Seizure—(Re)defining the Limits of State Immunity in the Face of International Crimes’ (2013) 18 Art Antiquity and Law 7, 23–4. For further insights into the drafting process concerning Art 21(1)(d) and (e) UNCSI, see A. Gattini, ‘The International Customary Law Nature of Immunity from Measures of Constraint for State Cultural Property on Loan’ in I. Buffard, J. Crawford, A. Pellet, and S. Wittich (eds), International Law between Universalism and Fragmentation: Festshrift in Honour of Gerhard Hafner (Martinus Nijhoff 2008) 421, 430–2.

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Cultural Heritage and State Immunity 571 objects might be targeted by measures of forced execution in the borrowing State, thereby endangering their restitution to the foreign lending State. The common elements of the UNCSI clauses in question concern the location of the relevant property, the requirement that the property must not be on sale, and the type of property covered. As to the first element, both clauses undoubtedly refer to the cultural property of a State which is present in the territory of another State. This point arises from the text of the UNCSI itself,114 in addition to being a coherent consequence of the fact that a State’s extraterritorial enforcement jurisdiction is at best exceptional and anomalous. Secondly, both clauses shield State cultural property from execution measures as long as it is ‘not placed or intended to be placed on sale’. This requirement is rather obvious as cultural property on sale—for example, at an art fair or a commercial gallery—cannot by definition fulfil the notion of State property used or intended for non-commercial purposes. It is another thing, though, to observe that State cultural property may at times get embroiled in other commercial and property-related transactions (contracts for bailment, trust, insurance, and so on) triggering the pertinent exceptions to State immunity from jurisdiction. Yet, according to the UNCSI, remedies against State breaches of these commercial transactions not involving sales cannot include the seiz ure or attachment of the relevant cultural property. No other substantive requirements are envisaged by the UNCSI for cultural heritage property to enjoy execution immunity. In particular, and apparently, such immunity is meant to remain in place even if the property is alleged to have been stolen or looted or otherwise misappropriated by a State. As we shall see,115 this must be regarded as a major flaw in the UNCSI’s scheme. The final common element is at once more controversial and more significant. Despite textual ambiguities,116 it is argued here that the clauses cover the same type of property, that is property belonging to the cultural heritage of the foreign State which, other than State-owned property, may well include privately owned property. This is not a ‘wholly unwarranted’117 extension of State immunity to private property. It is a logical interpretation of the notion of State property in the area of cultural heritage, which is borne out both by treaties concerning cultural property118 and by the UNCSI itself.119 It 114 See Art 19(c) read together with the chapeau to Art 21(1). 115 Section 3.2. 116 These ambiguities are compounded by misleading statements in the ILC Commentary on the 1991 Draft Articles on Jurisdictional Immunities of States and Their Property (1991-II/2) Yearbook of the International Law Commission 13, draft art 19, paras 6–7 (referring, in turn, to property ‘which is owned by the State’ and property ‘belonging to the State’). 117 Gattini, ‘The International Customary Law Nature of Immunity’ (n 113) 433. See also C. Brown and R. O’Keefe, ‘Article 21’ in O’Keefe and Tams, Commentary (n 43) 334, 344–5. 118 For instance, in listing categories of property which may be considered as forming part of the cultural heritage of each State, the 1970 UNESCO Convention does not make any distinction between State-owned and private property (art 4). See also Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, in force 7 August 1956, art 1 (‘For the purposes of the present Convention, the term “cultural property” shall cover, irrespective of origin or ownership . . . ’, emphasis added). 119 The travaux préparatoires are crucial to understanding the ambiguous expression ‘property of a State’ as used throughout the UNCSI, and especially in its Part IV on immunity from measures of constraint. They clarify that the expression must be taken to refer to property either owned or possessed or

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572 Riccardo Pavoni is also a reasonable compromise: as applied to art loans, the present interpretation still implies that loaned objects which have not been identified by the foreign State as part of its cultural heritage do not enjoy execution immunity. Yet recent practice shows that the point remains contentious. In 2013, a non-binding legal instrument understood as a restatement of the UNCSI’s norms in question was elaborated and opened for signature under the aegis of the CoE. The instrument is titled Declaration on Jurisdictional Immunities of State Owned Cultural Property.120 Obviously, it must be taken to only cover property the ownership title to which is vested in States. By contrast, the 2014 ILA Draft Convention121 is very close to my position.122 It is clearly meant to apply to both State- and privately owned cultural objects.123 However, the Draft Convention makes clear that cultural objects correspond124 to the definition of cultural property in article 1 of the 1970 UNESCO Convention, a crucial requirement of which is that the relevant property must be ‘specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science’. Cultural property under that provision, whether State- or privately owned, is unmistakably cultural heritage property identified as such by States. The UNCSI clauses at issue are partly overlapping, but not identical in scope. They basically differ in two respects. First, unlike the provision relating to ‘objects’ on loan, the clause on cultural heritage property covers both movable and immovable property. However, since immovable property of a State (including property which may fulfil the notion of cultural property, such as historical buildings) located on the territory of another State usually forms part of the diplomatic or consular premises of the former State, Brown and O’Keefe point out that ‘only rarely’125 will the UNCSI’s norm at hand distinctly apply. Indeed, the relevant immovables will already be protected by the customary rules on the inviolability of diplomatic premises126 or, failing that,127 as another category of property specifically identified as immune from execution by the UNCSI itself.128 controlled by a State. See C. Brown and R. O’Keefe, ‘Article 18’ in O’Keefe and Tams, Commentary (n 43) 293, 294–6, 299–300. Thus understood, the expression may well cover situations where the relevant cultural property is in the hands of private parties, but, given its cultural heritage status, its use is subject to control by the State concerned. 120 Text available at . 121 See n 14. 122 Perhaps this was an unintended result, as the authors of the Draft Convention (convolutedly) appeared to believe that, by covering privately owned artworks, the Draft extended the scope of the UNCSI. See Draft Report on the Project on Immunities from Seizure and Suit Involving Cultural Material (n 14) 3–4, 7. 123 See Explanatory Notes (n 14) para 5 of draft art 2. 124 Draft art 2. 125 Brown and O’Keefe, ‘Article 21’ (n 117), 344. 126 The UNCSI is without prejudice to the immunities enjoyed by a State under international law ‘in relation to the exercise of the functions of . . . its diplomatic missions, consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences’ (art 3(1)(a)). For pertinent examples in the case law of the European Court of Human Rights (ECtHR), see Manoilescu and Dobrescu v Romania and Russia, Appl No 60861/00 (3 March 2005); Treska v Albania and Italy, Appl No 26937/04 (29 June 2006). 127 This is especially the case of consular premises, which do not generally enjoy absolute inviolability and execution immunity under customary or treaty law. Surprisingly, the ECtHR has taken the opposite view; see Kirovi v Bulgaria and Turkey, Appl No 58694/00 (2 October 2006). 128 Art 21(1)(a).

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Cultural Heritage and State Immunity 573 Yet the legal charge (ipoteca giudiziale, a type of pre-judgment measure of constraint) registered on Villa Vigoni by the Italian authorities, which was at stake in the Jurisdictional Immunities case before the ICJ, shows that State-owned non-diplomatic immovable property may well come under attack in the context of private suits against foreign States. Villa Vigoni is real estate located near Lake Como (Italy) and owned by Germany since 1986. It is used as an Italian–German centre for European excellence in the fields of research, science, culture, and education. It comprises a magnificent villa, dating from the first half of the nineteenth century, which is embedded in a breathtaking landscape overlooking the lake. There is reason to agree with Jakubowski129 when he notes that a significant cultural heritage dimension was involved in this affair.130 For its part, the ICJ simply regarded Villa Vigoni as a cultural centre entitled to execution immunity under customary law, because it was ‘used for governmental purposes that [we]re entirely non-commercial’.131 The second divergence between the two UNCSI’s norms at issue is that, whereas the provision on art loans protects cultural objects as long as they are part of an exhibition, the clause on cultural heritage property does not contain such a limitation. It therefore applies also to cultural objects which have been loaned abroad for other non-commercial purposes, such as long-term restoration or study in the context of academic exchanges. This is a reasonable extension of execution immunity for cultural property,132 which is intended to address situations likely to be recurrent in practice.133

3.2 Status of UNCSI’s Antiseizure Norms in Light of Subsequent Practice The norms in the UNCSI shielding cultural heritage property from seizure and other measures of forced execution cannot bind qua treaty law, as they are not in force.134 Can 129 Jakubowski, ‘Cultural Property under the Threat of Seizure’ (n 113) 9. 130 The tricky question would be: whose cultural heritage? Jakubowski (‘Cultural Property under the Threat of Seizure’ (n 113) 9) astutely states that ‘Villa Vigoni is undoubtedly a property forming part of the cultural heritage of both nations’. 131 Jurisdictional Immunities (n 51), para 119. Lately the Italian Supreme Court of Cassation (impli citly) endorsed the ICJ’s position, thus granting immunity to Villa Vigoni and accordingly revoking the legal charge registered on it by the representatives of victims of a WWII massacre committed in Greece by Nazi Germany; see Stereá Ellada Region v Presidency of the Council of Ministers and Germany (2018) 101 Rivista di diritto internazionale 1022 (8 June 2018, No 14885). 132 A similarly broad scope of application is retained by the 2014 ILA Draft Convention. The latter is generally meant to apply to ‘cultural objects which are temporarily present in a receiving State for cultural, educational or scientific purposes’ (draft art 1). 133 As the Rubin case before the US courts shows (on this litigation, see text accompanying notes 157–61). The most significant collections of Persian antiquities at stake in that case were indeed in the US as a result of long-term academic loans to the University of Chicago for purposes of research and cataloging. Even if it were applicable ratione temporis, the US IFSA would not cover those loans as they were not made for exhibition purposes. 134 As of 12 December 2019, twenty-two States have consented to be bound by the UNCSI out of thirty requisite ratifications (or equivalent instruments).

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574 Riccardo Pavoni they nevertheless bind qua customary international law, namely as a codification of pre-existing or emerging customary rules? In a string of consistent decisions,135 the European Court of Human Rights (ECtHR) has asserted that the UNCSI, indeed, codifies the customary law of State immunity. This view lends itself to substantial criticism,136 on account—for instance—of the inadequate methodology followed by the ECtHR for the identification of customary law. Yet it is telling that the only case where the same court refrained from taking position on the customary vel non nature of the UNCSI involved precisely its norms on immunity from measures of constraint.137 This prudence seems particularly appropriate for the UNCSI’s art-related antiseizure provisions in article 21.138 When they were adopted in 2004, there only existed a very limited body of State practice more or less consistent with their precepts. Yet one should not disregard the possibility that, as from their adoption, the UNCSI’s antiseizure norms may have evolved into customary law as a result of ‘extensive and virtually uniform’139 State practice and corresponding opinio juris in line with their substance. There indeed exist a few significant manifestations of State practice post-dating the conclusion of the UNCSI and endorsing the provisions at issue. One such manifest ation is associated with the NOGA/Pushkin Museum Paintings affair in Switzerland.140 This involved the attempted attachment in 2005 of fifty-four paintings of French masters, which were on loan for an exhibition at the Gianadda Foundation in Martigny from the Pushkin National Museum of Fine Arts in Moscow, in satisfaction of an arbitral decision which had awarded a Swiss company millions of US dollars in damages arising from the repudiation of commercial contracts by Russia. The competent Swiss body (Office des poursuites de Martigny) actually ordered the seizure of the paintings upon motion from the creditor company. However, this decision was soon set aside as a result of the intervention of the Swiss executive. At first, the Ministry of Foreign Affairs pressed 135 Starting from Cudak v Lithuania, Appl No 15869/02, paras 66–7 (23 March 2010). 136 R. Pavoni, ‘The Myth of the Customary Nature of the United Nations Convention on State Immunity: Does the End Justify the Means?’ in A. van Aaken and I. Motoc (eds), The European Convention on Human Rights and General International Law (Oxford University Press 2018), 264. The correct approach, which consists in refusing an a priori wholesale recognition of the customary status of a purported codification convention as the UNCSI, has lately been followed by the UK Supreme Court in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, paras 29, 31–2, 72 (18 October 2017). 137 Wallishauser v Austria (No 2), Appl No 14497/06, para 72 (20 June 2013) (‘even if it were established that the content of Articles 18 to 21 of the 2004 Convention were applicable as rules of customary international law . . .’). Similarly, the ICJ has abstained from pronouncing on the customary nature of art 19 UNCSI taken as a whole. It has merely made clear that the essence of that provision, i.e. that immunity may be lifted only for State property used or intended for commercial purposes, reflects customary law; see Jurisdictional Immunities (n 51), paras 117–8. 138 See Brown and O’Keefe, ‘Article 21’ (n 117), 347. 139 North Sea Continental Shelf [1969] ICJ Rep 3, para 74 (20 February 1969). 140 For an account of the vicissitudes experienced by the paintings at issue in Switzerland, see Office des poursuites et faillites du district de Martigny v Compagnie Noga d’importation et d’exportation SA, No 5A.334/2007/frs (Swiss Federal Tribunal, 29 January 2008).

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Cultural Heritage and State Immunity 575 the pertinent authorities to unseize the paintings in accordance with the UNCSI, as the latter confirmed that they constituted property intended for sovereign purposes that cannot be targeted by measures of constraint.141 Since the authorities were unpersuaded by this advice, the Swiss executive (Conseil fédéral) stepped in and, relying on the need to protect the national interest,142 ordered the immediate release of the Pushkin paintings and their consequent return to Russia. The reason given for this decision was simply that, pursuant to public international law, State cultural property could not be seized.143 It is worth noting that, at the time, Switzerland had not even signed the UNCSI.144 A few years later, a similar case arose in Austria where Diag Human, a Liechtenstein company awarded some US$325 million in damages for the disruption of a blood plasma joint venture deal by the Czech Republic, sought to enforce an arbitral ruling against three State-owned artworks (two paintings by Filla and Beneš, and a sculpture by Gutfreund) on loan from museums in Prague and Brno for an exhibition at the Austrian Gallery Belvedere in Vienna.145 In May 2011, the Vienna District Court ordered the seiz ure of the artworks, but soon thereafter it stayed this decision by relying on the outcome in the NOGA affair and acceding to the arguments of the defendant State and the Austrian Ministry of Foreign Affairs. The court held that State cultural property on loan, such as the disputed paintings and sculpture, enjoyed immunity from measures of constraint under a customary rule of international law codified by the UNCSI.146 It is worth noting that, unlike the NOGA affair, at the time of the Diag Human case Austria had ratified the UNCSI. Therefore, the foregoing holding could preferably have been grounded in the obligation not to defeat the object and purpose of the UNCSI pending its entry into force under article 18(b) of the VCLT, rather than in an alleged unqualified customary rule of uncertain contours. Most important, though, the Diag Human affair has induced the Czech Republic— backed by Austria and the Netherlands—to sponsor the elaboration, under the aegis of the CoE, of the already-mentioned Declaration on Jurisdictional Immunities of State Owned Cultural Property. The Declaration was finalized in September 2013, and the first signatories were indeed the Czech Republic and Austria. It is conceived as a document recording the opinio juris of signatory States about the correspondence between the UNCSI’s norms on execution immunity for State cultural property on loan for public display and customary law. The signatories reaffirm their commitment to ‘customary 141 Ibid, para A.b. 142 See Art 184(3) of the Swiss Constitution. 143 Decision of 16 November 2005, available at . 144 Switzerland signed the UNCSI on 19 September 2006, whereas its ratification is dated 16 April 2010. 145 For a fuller account, see van Woudenberg, State Immunity and Cultural Objects on Loan (n 69) 302–5. 146 Diag Human v Czech Republic, Case No 72 E 1855/11 z-20 (District Court of Vienna, 21 June 2011). The three artworks were returned to the Czech Republic on 22 November 2011, some six months after the closure of the exhibition at Belvedere. The case was finally dismissed by the Austrian Supreme Court in 2013 when it found that the arbitral award was not yet enforceable as it had been challenged by the defendant party before a higher arbitral body; Diag Human v Czech Republic, Case No 3Ob39/13a (Supreme Court of Justice of the Republic of Austria, 16 April 2013).

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576 Riccardo Pavoni international law as codified in the Convention’, pursuant to which cultural property ‘cannot be subject to any measure of constraint’ in foreign borrowing States. Accordingly, they declare that such measures can only be taken if the State concerned has expressly or impliedly waived execution immunity ‘for a clearly specified property’. Yet the Declaration has so far met a lukewarm reaction by the CoE membership, having being signed only by slightly over one-third of the CoE Member States.147 A final element of State practice supporting—albeit indirectly—the UNCSI’s artrelated antiseizure clauses comes from Canada’s 2012 terrorism amendments to the State Immunity Act (SIA).148 Following such amendments, and insofar as material, Canada’s SIA makes the property of foreign States listed as supporters of terrorism,149 including jure imperii property such as—normally—central bank assets, generally subject to execution. The only exceptions are diplomatic property,150 military property,151 and ‘property that has cultural or historical value’.152 The influence exerted by the UNCSI’s provisions at issue on this cultural property carve-out in the Canadian State immunity legislation is evident. Remarkably, however, this carve-out must not be intended as a broad ‘cultural counter-exception’ from the terrorism exception to execution immunity. Lately, in the Tracy case,153 Canadian courts did not hesitate to allow enforcement proceedings against two Iranian cultural centres in Ottawa and Toronto that had not been recognized as diplomatic assets by the executive.154 Obviously, these courts wholly disregarded the ICJ’s opposite ruling in Jurisdictional Immunities with respect to Villa Vigoni.155 At any rate, there also exists significant practice which qualifies or—worse—ignores the UNCSI’s art-related antiseizure norms. A glaring example of the latter type of practice is the well-known Rubin case before the US courts, which involved the attempted attachment of a number of priceless collections of Persian antiquities by creditors of judgments rendered against Iran under the US terrorism exception to State immunity.156 147 As of 12 December 2019, there are twenty signatories to the Declaration, i.e. eighteen CoE Member States, plus Belarus and the Holy See. The Holy See’s significant signature (on 22 May 2017) is the latest in the process for the time being. 148 Justice for Victims of Terrorism Act (Part I of the Safe Streets and Communities Act), Bill C-10, 13 March 2012. 149 Presently, Iran and Syria. 150 Section 16 SIA. 151 Section 12(3) read together with the chapeau to section 12(1) SIA. 152 Section 12(1)(d) SIA. 153 Tracy v Iran, 2016 ONSC 3759 (Ontario Superior Court of Justice, 9 June 2016), 2017 ONCA 549 (Court of Appeal for Ontario, 30 June 2017). An application for leave to appeal from the latter decision was filed with the Supreme Court of Canada by the defendants. On 15 March 2018, the Supreme Court dismissed the application. 154 Ibid, para 129 (Superior Court of Justice), para 101 (Court of Appeal). Most recently, the two properties have been sold for some CAN$28 million and the proceeds have been distributed to several victims (or their heirs) of acts of terrorism sponsored by Iran. Iranian authorities have depicted such developments as a ‘clear breach of the international law’; see ‘Iran Takes Aim at Canada over Property Seizures in Toronto and Ottawa’ (17 September 2019), at . 155 See text accompanying notes 129–31. 156 Section 1605A of the FSIA.

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Cultural Heritage and State Immunity 577 As from the early 2000s, parallel litigation was pursued in Massachusetts, where Persian artefacts were housed by the Museum of Fine Arts in Boston and several of Harvard University’s museums, and Illinois, where the University of Chicago’s Oriental Institute and Chicago’s Field Museum of Natural History held various Persian collections. This is perhaps the case reviewed in this chapter where the general interest of humanity in the preservation of cultural heritage was most called into question, as some of the collections under threat of attachment were of irreplaceable value for the study of ancient civilizations. And yet, none of the numerous decisions delivered by the US courts on the case contains holdings or at least obiter dicta which rely on the special nature of the ‘property’ at stake, let alone the UNCSI’s antiseizure norms or customary international law, as a reason foreclosing execution proceedings.157 Attachment has been avoided by resorting to arguments entirely based on the interpretation of the FSIA and other US legislation, for instance that the alleged commercial use of the antiquities by the US museums and other institutions with no participation of Iran was irrelevant. The same goes for the US Supreme Court, where lately the Illinois litigation ended up in order to decide whether an ambiguous terrorism-related exception to execution immunity in the FSIA158 allowed attachment of any and all of the property of a foreign State sponsor of terrorism and judgment debtor, including the Persian antiquities in question. The Supreme Court answered in the negative159 but made no mention of the peculiar status of the property at stake and the related international legal framework.160 At issue was the most valuable among the disputed collections, the Persepolis Collection, made up of approximately 30,000 clay tablets and fragments containing some of the oldest writings in the world.161 In order to appraise the current state of the law, it is, however, more significant to focus on the practice which qualifies the UNCSI’s art-related antiseizure rules. It is apparent that the cases which tend to unconditionally endorse the customary status of those rules, such as NOGA and Diag Human, usually involve the attempted enforcement against artworks of damages arising from breaches of commercial contracts or invest157 For the Illinois litigation, see e.g. Rubin v Islamic Republic of Iran, 830 F.3d 470 (7th Cir 2016); for the Massachusetts litigation, see e.g. Rubin v Islamic Republic of Iran, 709 F.3d 49 (1st Cir 2013). 158 Section 1610(g). 159 Rubin v Islamic Republic of Iran, 138 S.Ct. 816 (2018). 160 One could even speculate that the chief concern underlying this decision had nothing to do with a genuine desire to spare priceless antiquities from execution proceedings, as the Supreme Court may have been much more uneasy with the pending ICJ case of Certain Iranian Assets (Iran v United States of America), Application of 14 July 2016. Ironically, it was the same Supreme Court which had ultimately spurred Iran’s decision to bring this case before the ICJ; see Bank Markazi v Peterson, 136 S.Ct. 1310 (20 April 2016). It must be noted, however, that the ICJ has lately upheld the preliminary objection to its jurisdiction raised by the US with respect to Iran’s claims involving jurisdictional immunities, while dismissing the other objections; see Certain Iranian Assets, Judgment of 13 February 2019, para 80. 161 Instead, the Chogha Mish Collection, comprising clay seal impressions from an ancient settle ment, had already been returned to Iran’s National Museum in Tehran by the University of Chicago upon advice from the US Department of State. Such advice was grounded in unspecified obligations on the US to restitute the artefacts to Iran; see Rubin (n 157) 475–6 (7th Cir 2016).

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578 Riccardo Pavoni ment obligations. In such situations, it is reasonable to bar execution against cultural objects which have nothing to do with the underlying claim. But what about measures of constraint against allegedly stolen, looted, or illegally exported cultural property which are sought by the purported rightful owners?162 The UNCSI’s antiseizure norms do not make room for any review by domestic authorities of the legality vel non of the ownership title or proprietary interest held on loaned cultural objects by the foreign State. Such norms apparently stipulate unconditional and automatic immunity for artworks on loan and other cultural heritage property. Yet, in this context that type of immunity may run against a variety of national and international legal obligations. It thus becomes clear why the overwhelming majority of domestic antiseizure laws deviate from the UNCSI’s scheme. They do so in at least two crucial respects. First, they usually provide for ad hoc grants of immunity by administrative authorities upon application from the borrowing institution. Immunity is only afforded if certain requirements are met. Failure to apply may well result in absence of immunity, as for instance Italy knows too well, following the recent seizure of a sixteenth-century Romanino painting by the US authorities,163 when in 2011 that artwork went on loan to a museum in Florida without immunity having been previously requested and granted under the IFSA. Secondly, and most important, a growing trend in domestic laws is to set out exceptions to immunity from seizure for stolen, illegally exported, or otherwise tainted cultural property. Generally, these exceptions are rooted in the States’ duty to abide by domestic criminal law,164 international law (including the pertinent obligations under the 1970 UNESCO Convention and the 1995 UNIDROIT Convention), and/or EU

162 A famous case of first impression exemplifying this situation was provided by the Prince of Liechtenstein litigation over Pieter van Laer’s Der Grosse Kalkofen, a painting owned by the Prince’s father until it was confiscated by the former Czechoslovakia in 1946. The Brno Historical Monuments Office’s loan of the artwork for an exhibition in Germany resulted in restitution proceedings brought by the Prince and the painting’s pre-trial seizure for about seven years (from 1991 to 1998). The suit was dismissed and the painting returned to the Czech authorities for reasons wholly unrelated to its purportedly immune status (namely, for lack of German courts’ jurisdiction over confiscations of German external assets carried out by WWII Allied countries for war reparations purposes). See also Prince Hans-Adam II of Liechtenstein v Germany, Appl No 42527/98 (ECtHR, 12 July 2001); Certain Property (Liechtenstein v Germany) [2005] ICJ Rep 6 (10 February 2005). 163 The painting in question (‘Christ Carrying the Cross’) had been bought by the Italian Government from a private party in 1998 and housed at the State-run Pinacoteca di Brera in Milan since then. The US seizure was instigated by the heirs of Federico Gentili di Giuseppe, a Jewish Italian living in Paris, from whom the painting had been confiscated by the Nazi-controlled French authorities in 1941. See Chechi, ‘State Immunity’ (n 1) 279–80; ‘Italy in Unfamiliar Role in Seizure of “Christ Carrying the Cross”’ Los Angeles Times (24 April 2012). 164 Crucially, the UNCSI does not apply to criminal proceedings; see General Assembly Res 59/38, operative para 2. On the far-reaching implications for artworks on loan of the unavailability of antiseiz ure immunity in criminal proceedings, see Gattini, ‘The International Customary Law Nature of Immunity’ (n 113) 434–7.

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Cultural Heritage and State Immunity 579 law.165 Recently,166 this approach has been retained by the antiseizure rules adopted by Finland167 and Poland.168 Significantly, the Polish norms withhold immunity from seiz ure whenever the entry of the art at issue into Polish territory would be unlawful under either domestic, EU, or international law, as well as when the art had been illegally exported from Poland (which is also intended to apply to Nazi-looted art claims).169 Savings clauses for international, supranational, and EU law obligations are also contemplated by the legislation in Belgium170 and the UK.171 The scheme of the 2014 ILA Draft Convention is largely similar. On the one hand, it foresees a due diligence obligation on the receiving and lending States to enquire into the provenance of the cultural property covered by prospective loans,172 thus making clear that immunity should never be afforded to objects of tainted or doubtful provenance, and that disputes over such objects should preferably be avoided by preventing their transfer abroad. On the other hand, the Draft Convention contains an open-ended exception, according to which immunity does not shield artworks from seizure (or suit) when the receiving State ‘is bound by conflicting obligations under international or regional law’.173 In short, domestic art-related antiseizure legislation, far from representing extensive and virtually uniform practice in accordance with the UNCSI’s norms, tends rather to disqualify the latter’s customary status. Moreover, such legislation only exists in a slim minority of—mostly European—States. Even in Europe, it has not been enacted by certain key players in this area, such as Italy, and precisely for reasons related to the lawmakers’ hesitation over an initiative which might be regarded as an obstacle to the fight against the illicit trafficking of cultural property.174 By contrast, it is submitted that the wealth of existing practice testifies to an emerging customary rule of qualified or restrictive immunity from seizure for cultural heritage property—that is, such immunity does not apply to cases involving looted, stolen, mis165 See especially, Regulation (EU) 2019/880 of 17 April 2019 on the introduction and the import of cultural goods, OJ L 151 (7 June 2019); Directive 2014/60/EU of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast), OJ L 159 (28 May 2014). 166 Similar considerations may be made about the antiseizure rules in Israel; see Loan of Cultural Objects (Restriction of Jurisdiction) Law, Law No 5767–2007, 21 February 2007, in force 1 May 2007. Under the Israeli rules, no immunity may be granted whenever objections involving Nazi-looted art claims are advanced, or when the competent authorities are not satisfied that prospective ownership claims may be brought before effective judicial or quasi-judicial bodies in the foreign lending State. 167 Act Prohibiting the Seizure of Certain Exhibition Items on Loan in Finland, No 697/2011, in force 1 June 2011. 168 Amendment to the 1996 Museum Act, section 4a, adopted on 5 August 2015. 169 See P. Gwoździewicz-Matan and A. Jakubowski, ‘Enhancing the Mobility of Collections and Access to Cultural Heritage: Immunity of Cultural Objects from Seizure in Poland’ (2019) 25(3) International Journal of Cultural Policy 350. 170 Art 1412 ter, para 1 of the Judicial Code, as amended in 2004. 171 Tribunals, Courts and Enforcement Act, Part 6 (Protection of Cultural Objects on Loan), section 135(1), 19 July 2007. 172 Draft art 7. 173 Draft art 5. 174 See van Woudenberg, State Immunity and Cultural Objects on Loan (n 69), 329–31.

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580 Riccardo Pavoni appropriated, or illegally exported property, a fortiori when the deprivation at issue occurred in the context of discriminatory or arbitrary expropriations which may amount to crimes under international law.

4. Conclusion Although practice about cultural heritage and State immunity is clearly in flux, a few points of agreement and consolidation appear to be steadily emerging. First, no overarching considerations obstruct reliance on the commonly available exceptions to State immunity from jurisdiction—such as the commercial transaction and property-related exceptions—in suits concerning cultural heritage property. Such suits should not be regarded as a danger for international cultural cooperation, not even in the context of transnational art loans, as they do not imply per se a loss of State property immunity from execution. On the contrary, they represent the logical consequence of the frequent involvement of cultural heritage property in a variety of market transactions and situations governed by private law. At the same time, international cultural heritage law, with its vigorous fight against the illicit trafficking of cultural property, strongly favours proceedings brought against foreign States for the restitution of stolen, wrongfully expropriated, or illegally exported works of art. Secondly, the emergence of a customary international rule of qualified immunity from measures of constraint for cultural heritage property is borne out by a host of elements from practice. Accordingly, cultural property is immune from seizure and comparable measures, except where it is alleged to have been stolen, otherwise misappropriated, or illegally removed from the territory of a State. In this area, the global interest in extensive transnational cultural exchanges as a means of fostering cultural diversity and people’s access to art treasures certainly pushes towards shielding artworks from seizure. But here too, the pursuit of that global interest must be balanced against the countervailing imperative of the restitution of stolen or illegally exported cultural property. The major limitation of the UNCSI’s antiseizure rules, and the reason why they cannot—as such—be regarded as a reflection of customary international law, is precisely that they envisage automatic and blanket immunity for cultural heritage property.

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chapter 25

Cu ltu r a l H er itage a n d State Succe ssion Andrzej Jakubowski

1. Introduction State succession belongs to the fundamental old topics of public international law. At the same time, it also constitutes one of its ‘most complex, challenging and politicized fields’,1 as observed in the context of widely debated instances of secession of Kosovo, South Sudan, and more recent cases of Crimea, Scotland, Catalonia, and Iraqi Kurdistan, among others.2 Hence, views that law on State succession lacks a consistent legal regime, or that State succession is rather a matter of political considerations and circumstances than any legal principles, are not uncommon in the international law scholarship.3 In practical terms, the law on State succession constitutes a response—a way of introducing order, justice, and stability—to a rupture in international law relations of territory created by often violent and traumatic events, involving complex political considerations.4 Unsurprisingly, it also regards consequences of the change of sovereignty over a territory for the inhabitants (individuals and communities) and their cultural

1 Arman Sarvarian, ‘Codifying the Law of State Succession: A Futile Endeavour?’ (2016) 27(3) European Journal of International Law 789, 789–91. 2 See e.g. Marc Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) 20(1) European Journal of International Law 111. 3 Compare e.g. Sarvarian, ‘Codifying the Law’ (n 1) 801; Patrick Dumberry, State Succession to International Responsability (Martinus Nijhoff 2007) 3–4; Vladimir Duro Degan, ‘Création et disparition de l’Etat (à la lumière du démembrement de trois fédérations multiethniques en Europe)’ (1999) 279 Recueil des Cours de l’Académie de Droit International 195, 247 ff. 4 Martti Koskenniemi, ‘Report of the Director of Studies of the English-Speaking Section of the Centre’ in Pierre Michel Eisemann and Martti Koskenniemi (eds), La succession d’Etats: la codification à l’épreuve des faits/State Succession: Codification Tested against the Facts (The Hague Academy of International Law 2000) 65, 66.

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582 Andrzej Jakubowski heritage, including rights and obligations attached to it.5 The linkage between heritage, people, and territory may render the actual determination of these consequences difficult and turbulent. In fact, cultural appropriation and control over cultural heritage have often served as tools to assert rights to a given territory and to build collective (national) and State identities.6 However, at the same time, the creation and transformation of States have very often been followed by various attempts to reconstruct the integrity of cultural heritage through physical ‘repatriation’ of cultural treasures dispersed or lost in the past.7 Furthermore, the change of sovereignty over a given territory may often give rise to the issue of responsibility for cultural wrongs and injustices that occurred in the past. State succession in respect of cultural heritage has usually been associated with the allocation and division of movable cultural treasures (cultural property and historic archives) following territorial transfers. Hence much of the doctrinal effort has focused on the principles and criteria governing the passing of State cultural property and attempted to respond to the topical question of to whom cultural property belongs. In international practice, ‘nationality and the territorial link’ of cultural property have been credited as the two main criteria determining its connection with a given State.8 For instance, this approach is clearly expressed in the Resolution of the Institut de Droit international (IDI) ‘State Succession in Matters of Property and Debts’ (2001 IDI Resolution),9 adopted at the end of the Yugoslav conflict. Under article 16(5), this doctrinal document provides that the ‘[p]roperty that is of major importance to the cultural heritage of a successor State from whose territory it originates shall pass to that State’. Although such a conceptualization corresponds with the majority of problems encountered in State practice, it does not fully address the complexity of legal issues relating to cultural heritage in State succession. Indeed, cultural heritage does not constitute the sole matter of State sovereignty, as its enjoyment and preservation may affect not only States (and their populations) engaged in succession processes but also other interests and rights recognized under international law. In other words, State succession in cultural heritage regards a set of multifaceted cultural considerations including cultural heritage law, human rights, and international responsibility, thus touching upon the expanding area of global cultural heritage governance.

5 For the analytical discussion of the issue in the broad historical perspective, see Andrzej Jakubowski, State Succession in Cultural Property (Oxford University Press 2015). 6 Janet Blake, ‘On Defining the Cultural Heritage’ (2000) 49(1) International & Comparative Law Quarterly 61, 84. 7 Andrzej Jakubowski, ‘Territoriality and State Succession in Cultural Heritage’ (2014) 21(4) International Journal of Cultural Property 375. 8 Anastasia Strati, ‘Implication of Common Heritage Concepts on the Quest for Cultural Objects and the Dialogue between North and South: When the Quest for Cultural Objects Divides North from South’ (1995) 89 Proceedings of the Annual Meeting (American Society of International Law) 439, 443 (emphasis in original). 9 Adopted 26 August 2001. Available at accessed 15 December 2019.

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Cultural Heritage and State Succession 583 This chapter considers the relationship between the evolving international law regime for the protection of cultural heritage and the theory and practice of State succession. First, it deals with the title of State succession—that is, it explains the prerequisites of the passing of sovereignty over the territory from one State to another. In particular, it explains the categories (types) of State succession which may entail different solutions in respect of cultural heritage. Second, it offers a brief overview of the codified sources of the law on State succession. In the following sections, this chapter addresses the consequences of State succession relating to distinct pre-existing legal situations: State archives and property; international cultural heritage obligations (arising from treaties and customary international law); and international responsibility for cultural heritage wrongs committed prior to the date of succession. Finally, it concludes with implications of the global cultural heritage governance on State succession.

2. Territorial Change and Cultural Heritage State succession involves both the transfer of sovereignty over a given territory and succession in rights and obligations—pre-existing legal situations related to the territory. The territorial transfer constitutes ‘title’—the cause for succession in other matters such as treaty obligations or State property and State archives, including those constituting cultural heritage.10 Territorial succession concerns factual and political aspects of the passing of sovereignty over a given territory. Here, the core question is whether and when such a passing can be seen as lawful under international law. Both the 1978 Vienna Convention on Succession of States in Respect of Treaties (VCSST)11 and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts (VCSSP)12 explicitly provide that their application is limited ‘only to the effects of a succession of States occurring in conformity with international law and, in particular, the principles of international law embodied in the Charter of the United Nations’.13 The use of force as a title and means to acquire another’s State territory is thus excluded—no forceful annexation or military occupation of a territory would result in State succession. Yet the use of force may lead to the de facto replacement of one State by another, and the legal effects of such a replacement may be highly disputable, particularly the legality of sovereign acts (comprising removal and 10 See Jan H. W. Verzijl, State Succession (International Law in Historical Perspective Vol 7, Sijthoff, 1974) 3, 36, 105–8. 11 Adopted 23 August 1978, in force 6 November 1996, 1946 UNTS 3. 12 Adopted 8 April 1983, not in force, UN Doc A/CONF.117/14 (1983). 13 Art 6 of the VCSST and art 3 of the VCSSP; Charter of the United Nations (signed 26 June 1945, in force 24 October 1945), 1 UNTS XVI, amended in 1963 (557 UNTS 143), in 1965 (638 UNTS 308), and in 1971 (892 UNTS 119), art 2(4).

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584 Andrzej Jakubowski appropriation of cultural property) undertaken by a non-sovereign. Today, this question regards a number of often long-lasting de facto territorial regimes, unrecognized by the international community,14 such as Crimea. Indeed, the status of cultural property from Crimea’s public museums—archaeological objects mostly excavated in this region—has been subject to a much-debated international controversy. Prior to the internationally unrecognized annexation of this part of Ukraine’s territory by Russia in March 2014,15 a number of exhibits from four Crimean institutions were loaned to the Allard Pierson Museum of Amsterdam for the exhibition ‘The Crimea—Gold and Secrets of the Black Sea’.16 After the annexation of Crimea, the issues arose of to whom and to where the loaned objects should be returned. After much political tension, in November 2014 the Russian-controlled Crimean mu seums initiated legal proceedings before the Amsterdam District Court. The Republic of Ukraine joined the proceedings since the export licences that had been issued before the exhibition expired, and thus there were no legal grounds for the further stay of the objects in question abroad. In December 2016, the Amsterdam District Court delivered a first substantive verdict in this case. It invoked a series of international law and European law provisions17 concerning legal consequences of the end of a period of lawful temporary importation of foreign cultural objects and ordered the return of the Crimean objects to the Republic of Ukraine.18 After their return, it was a matter for the Ukrainian court to establish the entity legally entitled to these cultural objects under Ukrainian law. The Crimean museums, supported by Russia’s authorities,19 continued the legal battle and launched an appeal in January 2017. However, in its interim judgment,

14 Jonte van Essen, ‘De Facto Regimes in International Law’ (2012) 28(74) Merkourios Utrecht Journal of International and European Law 31, 37–9. 15 On the current international status of Crimea, see Władysław Czapliński et al. (eds), The Case of Crimea’s Annexation under International Law (Scholar Publishing and the Centre for Polish-Russian Dialogue and Understanding 2017). 16 See accessed 18 December 2019. 17 The court recalled arts 2, 3, 6, and 7 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, in force 24 April 1972) 823 UNTS 231 (hereinafter 1970 UNESCO Convention), Art 5(2) of the 1995 UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects (signed 24 June 1995, in force 1 July 1998) 2421 UNTS 457, and Art 2(2)(b) of Directive 2014/60/EU of the European Parliament and of the Council on the return of cultural objects unlawfully removed from the territory of a Member State (recast) OJ L 159, 28.5.2014, 1–10. 18 Rechtbank Amsterdam, [Amsterdam District Court], C/13/577586/HA ZA 14–1179 [ECLI:NL:RBAMS:2016:8264] (14 December 2016); see Nout van Woudenberg, ‘Enhancing the Mobility of Collections in the European Union’ in Andrzej Jakubowski, Kristin Hausler, and Francesca Fiorentini (eds), Cultural Heritage in the European Union: A Critical Inquiry into Law and Policy (Brill 2019) 214, 231–3; Evelien Campfens, ‘Whose Cultural Heritage? Crimean Treasures at the Crossroads of Politics, Law and Ethics’ (2017) 22(3) Art, Antiquity and Law 193. 19 See Alec Luhn, ‘Russia Threatens to Cut Museum Ties With the Netherlands Over Crimea Gold’ The Telegraph (16 November 2017).

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Cultural Heritage and State Succession 585 rendered in July 2019,20 the Amsterdam Court of Appeal again did not decide on the title to the art treasures in question. Instead, it asked both the Crimean museums and the Ukrainian authorities to submit further information on their competing rights to these cultural objects. Apparently, it seems that prior to the final resolution of Crimea’s international status the objects might not return to the region they historically belong to. Another aspect of territorial succession regards its ‘extent’—that is, its partial and universal territorial succession. In other words, it refers to the identity and continuity of States involved in succession processes: those which continue the pre-succession inter national personality and newly emerged (created) States—new subjects of international law.21 In principle, partial succession consists in the change of sovereignty over a part of the territory of the predecessor and does not involve a rupture in the continuity and identity of the predecessor State. Instead the universal territorial succession, a total dismemberment (dissolution) of a predecessor State, may lead to the emergence of completely new States, different from the predecessor. However, not every case of dissolution would entail the creation of new States, since some States emerged in result of dissolution may be considered identical with the predecessor State and continue its legal personality. For instance, following the dismemberment of vast territorial empires—Austria–Hungary (1918), the Ottoman Empire (1923), and the Soviet Union (1991)—their ‘cores’ (Austria, Hungary, Turkey, and the Russian Federation, respectively) were recognized as continuing the legal personality of the predecessors. The question of continuity and identity of States in territorial changes is crucial in assessing the status of international obligations and rights relating to the territory, comprising those stemming from internationally wrongful acts against cultural heritage, such as destruction and plunder, that occurred prior to State succession. Finally, one of the most difficult questions regards the classification (typology) of different scenarios of territorial succession. The two Vienna Conventions reduced them to five basic categories (types). The first type—cession—is understood as a transfer of territory between States by an international treaty or by adjudication based on the decision of an international court or arbitration board. The second category refers to separation of part(s) of a State, usually involving cases when succession takes place as a result of separatist movements aimed at secession (emancipation) of a given territory. Secession usually implies the use of force, which may take the form of rebellion against the central State government, and the right to secede constitutes one of the most contested areas of the law on State succession.22 The third type consists in dissolution of a State involving 20 See accessed 17 December 2019. 21 See International Law Association (ILA), Committee on Aspects of the Law of State Succession, ‘Final Report’, in Report of the Seventy-Third Conference Held in Rio de Janeiro, Brazil (17–21 August 2008) (International Law Association 2018) 250, 347–58; James Crawford, The Creation of States in International Law (Oxford University Press 2006) 667–95. 22 See e.g. Andreas Zimmermann, ‘Secession and the Law of State Succession’ in Marcelo G. Kohen (ed), Secession: International Law Perspectives (Oxford University Press 2006) 209.

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586 Andrzej Jakubowski the extinction of the predecessor State, whose territories form two or more successor States (such as the split of Czechoslovakia in 1992). The fourth type of State succession, identified by the ILC, refers to uniting (unification) of two or more States in one State, comprising the cases of incorporation of a territory. The last category, ‘newly independent State’, concerns the emancipation (independence) of former colonial (dependent) territories. However, it seems that international practice has not fully corresponded with this typology. In particular, the Committee on Aspects of State Succession of the International Law Association (ILA Committee), operating from 1994 to 2008, analysed the influence of both Vienna Conventions on actual State practice23 and noted that the privileged status of newly independent States (former dependent colonies) in both Vienna Conventions had not been recognized by a number of States.24 Next, the instances of uniting of States and incorporation needed to be distinguished.25 Furthermore, it underlined that there were ‘difficulties of adopting clear-cut criteria for the distinction between secession and dissolution of States, in cases in which there is no agreement amongst the directly concerned States’.26 Unsurprisingly, the most complex legal and practical questions regarding the fate of cultural heritage in territorial transfers refer to the last two types of succession.

3. Cultural Heritage and the Codification of the Law on State Succession Alongside the two major areas of international law discussed in this part of the Handbook, State responsibility and State immunity,27 State succession is also essentially rooted in international custom, evolving since the nineteenth century. The original theory of State succession was modelled on the concept of inheritance under municipal law in relation to succession of natural and legal persons. Accordingly, in light of this general conceptualization, State succession was defined as a succession to State territory in such a way that one State takes the place of another and undertakes a permanent exercise of its sovereign territorial rights or powers.28 This traditional approach, essentially focused on transfer of sovereignty,29 was followed until the age of decolonization. It also seems that before decolonization the international law scholarship shared a certain 23 See ILA (n 21), 250. 24 Ibid, 331–332. 25 Ibid, 260–64, 360. 26 Ibid, 360. 27 See Chapter 24 and Chapter 26 in this Handbook. 28 See Arthur B. Keith, The Theory of State Succession with Special Reference to English and Colonial Law (Waterlow and Sons 1907) 1–7; Amos S. Hershey, ‘The Succession of States’ (1911) 5(2) American Journal of International Law 285, 285; Max Hüber, Die Staatensuccession. Völkerrechtliche und staatsrechtliche Praxis im XIX. Jahrhundert (Duncker & Humblot 1898) 8. 29 See the notion of State succession provided by Patrick D. O’Connell, State Succession in Municipal Law and International Law, Vol. 1 (Cambridge University Press 1967) 3.

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Cultural Heritage and State Succession 587 c onsensus as to the general rules and principles of the law on State succession. However, the rupture of colonial system and the cold war profoundly affected this area of international law, particularly the codification of the law on State succession undertaken by the UN International Law Commission (ILC). In fact, the core question referred to how the creation of the large number of completely new States would affect the global legal and economic order, particularly the protection of rights acquired during colonialism.30 Irrespective of these controversies, both codifying Vienna Conventions succeeded in offering a uniform and widely accepted31 definition of State succession, ‘the replacement of one state by another in the responsibility for the international relations of territory’,32 that emphasized a legal nexus between the territory and pre-existing legal obligations related to it,33 thus underlining that international obligations would not cease to exist just because of the fact of succession. Instead, many specific treaty provisions, especially those of the VCSSP, were considered as legal tools destined to achieve certain political goals once colonialism was over,34 thus belonging ‘more to the progressive development of law than to the codification of international law’.35 In fact, none of these treaties entered into force at the time of decolonization, and the doctrine of State succession was ‘pronounced dead (or at least comatose) in the 1980s’.36 Nevertheless, both conventions played an important role in the subsequent wave of State succession occurred after 1990. In fact, the VCSST entered into force in 1996, while the VCSSP greatly affected the actual solutions between successor States in Central and Eastern Europe, particularly in the case of the Agreement on Succession Issues of the Former Socialist Federal Republic of Yugoslavia (SFRY).37 Moreover, the ICL retook the codification mandate and in 1999 adopted Articles on Nationality of Natural Persons in Relation to the Succession of States.38 In addition, the volume of professional and scholarly work has been done by the learned societies (ILA and IDI). In particular, the IDI has dealt with the topics of State succession to property and debt (the 2001 Resolution)39 and ‘Succession of States in Matters of International Responsibility’ (2015 IDI Resolution),40 offering structured guidelines and recommendations. 30 See Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties (Oxford University Press 2007) 93 ff. 31 See e.g. Malcolm N. Shaw, ‘State Succession Revisited’ (1994) 5 Finnish Yearbook of International Law 34, 41. 32 Art 2(b) of the VCSST and art 2(b) of the VCSSP. 33 See Report of the International Law Commission on the work of its twenty-sixth session (6 May–26 July 1974) UN Doc A/9610/Rev.1 para 49. 34 See United Nations Conference on Succession of States in respect of State Property, Archives and Debts (1 March–8 April 1983) UN Doc A/CONF.117/C.1/SR.44. 35 Ibid, para 1. 36 Koskenniemi, ‘Report of the Director of Studies’ (n 4) 66. 37 Signed 29 June 2001, in force 2 June 2004, 2262 UNTS 251. 38 ILC, Articles on Nationality of Natural Persons in Relation to the Succession of States (With Commentaries) (3 April 1999) UN Doc A/54/10, Supplement No 10. 39 2001 IDI Resolution (n 9). 40 Adopted 28 August 2015; available at accessed 17 December 2019.

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588 Andrzej Jakubowski However, it needs to be noted that cultural heritage aspects of State succession have remained on the margin of international efforts to consolidate the legal regime of State succession—with the sole exception of the 2001 IDI Resolution. Apparently, this attitude towards cultural heritage issues can be traced back to the codifying ILC’s experience in 1968 to 1981. Mohammed Bedjaoui, Special Rapporteur for Succession of States in Respect of Rights and Duties Resulting from Sources Other Than Treaties, referred to this issue in several occasions in light of the parallel debate on the rights of formerly colonized peoples to the cultural material dispersed prior to decolonization. The works covered the topic of cultural property as well as that of State archives and their role for cultural heritage of successor States. In particular, he emphasized the expectations of formerly colonized peoples of recovering their cultural treasures removed during colonial domination, often under duress and to the detriment of those people and their heri tage.41 Yet the Special Rapporteur argued that, for the purposes of drafting international legal instruments, the definition of cultural property as such presented ‘almost insurmountable problems’, since many objects could not be definitely linked with any country or nation.42 Nonetheless, he explained that, in relation to the codified provisions on succession to State property, these would also relate to ‘problems connected with the cultural heritage—pictures, sculptures, statues, works of art, zoological, botanical, archaeological or mineralogical specimens, etc. . . . provided that, and in so far as, these works of art constitute State property’.43 Accordingly, the fate of such objects would be regulated by the regime of State succession under the VCSSP, if ‘at the date of the succession of States, [they] were, according to the internal law of the predecessor State, owned by that State’ (article 8). This view was confirmed by the ILC, which commented that the passing of the works of art be ‘covered either by the provisions relating to State property or [be] dealt with as the question of their return or restitution, rather than as a problem of State succession’.44 Hence the ILC also alluded to the UNGA’s initiatives in the field of return and restitution of cultural property45 and parallel actions undertaken by UNESCO. At the forum of the latter organization the issue was addressed of consensual ways of reconstructing cultural heritage dispersed under foreign domination, particularly through the activity of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (ICPRCP), established in 1978.46 Its role was primarily to facilitate ‘bilateral negotiations’ and to promote ‘multilateral and bilateral cooperation with a view to the restitution and return of cultural property to its countries of origin’47 arising from 41 UN Doc A/CN.4/322, para 52. 42 Ibid, para 49. 43 Ibid, para 40. 44 UN Doc A/CONF.117/4, 51. 45 UNGA Res 3187 (XXVIII) ‘Restitution of Works of Art to Countries Victims of Expropriation’ (18 December 1973) UN Doc A/Res/3187(XXVIII); also see UNGA Res 3391 (XXX) (19 November 1975) UN Doc A/Res/3391(XXX). 46 UNESCO Doc. 20C/Resolution 4//7.6/5. 47 Ibid, Annex, Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, Article 4; see Alper Tașdelen, The Return of Cultural Artefacts: Hard and Soft Law Approaches (Springer 2016) 139 ff.

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Cultural Heritage and State Succession 589 the situations occurred prior to the entrance into force of the 1970 UNESCO Convention.48 Hence, according to the ILC’s approach, the regime of State succession would only apply to the situations in which cultural property fell into the category of State property, while other controversies were to be settled through the new cooperative frameworks, such as the ICPRCP, in which ‘the right to collective memory’ would be respected.49 The ILC took a similar approach in relation to succession of archives that might constitute cultural heritage of a successor State. The Special Rapporteur carried out in-depth research on the subject, considering the difference between so-called administrative and judicial records from historical archives, comprising public libraries and museums, which form part of national identity and national cultural heritage.50 In 1979, he presented a very detailed reconstruction of international practice with regard to the transfer of State archives and libraries.51 He referred to the actions by UNESCO and the UNGA linking the question of allocation of archives with the problem of the protection and restitution of cultural heritage.52 In particular, UNESCO stressed the great importance of archives ‘for the general, cultural, political and economic history of the countries which were under foreign occupation, administration and domination’ and called for restoration of such fonds.53 In 1978, UNESCO’s Director-General, Amadou-Mahtar M’Bow, in his report to the 20th General Conference, noted that archives were ‘universally recognized as an essential part of the heritage of every national community’.54 In addition, they constituted ‘a basic part of the cultural property of States’,55 as enshrined in the definitions of cultural property under the 1954 Hague Convention56 and the 1970 UNESCO Convention. Accordingly, the distribution of historical archives which were of great cultural value should be determined in the same way as other cultural objects. Yet the ILC found that it would be not possible to define clear-cut criteria differentiating ‘regular’ administrative State archives from those constituting cultural heritage, also because in some civilizations ‘documents had been also expressed through the medium of objects of art’.57 Therefore, the VCSSP’s codified regime left the determination of the nature of given archival fonds to the internal law of each State yet subject to the general rule that ,in cases of secession, dissolution, and emergence of a newly independent State, agreements concluded between the predecessor and the successor State(s) in regard to State archives ‘shall not infringe the right of the peoples of those States to development,

48 Adopted 14 November 1970, in force 24 April 1972 823 UNTS 231. 49 UN Doc A/CN.4/322 (n 41), para 46. 50 See UN Doc A/CN.4/226, 151 ff. 51 UN Doc A/CN.4/322/Corr.1. 52 Ibid, paras 41–54. 53 UNESCO Doc.18C/Resolutions, 4.212. 54 Report of the Director-General on the Study Regarding Problems Involved in the Transfer of Documents from Archives in the Territory of Certain Countries to the Country of Their Origin, UNESCO Doc. 20 C/102 (1978), para 7. 55 Ibid. 56 Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, in force 7 August 1956) 249 UNTS 240. 57 UN Doc A/CN.4/345 and Add. 1–3, para 227.

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590 Andrzej Jakubowski to information about their history, and to their cultural heritage’.58 Hence, it is clear that the ILC’s codifying works guised cultural property as a sui generis category, the status of which should be decided separately, considering the evolving international law instruments in the field of cultural heritage.59

4. The Practice of State Succession The difficulties addressed by the ILC as the rules of State succession in respect of cultural property have also characterized the actual international practice. For these reasons, as already mentioned, interstate arrangements on the allocation of cultural property in State succession have usually applied the combination of the principles of territoriality and nationality (major importance for the cultural heritage to a successor State). Importantly, the principle of territorial provenance (origin) of cultural assets developed in international practice of European States (particularly in the processes of unification of Germany and Italy) in the nineteenth century and stemmed from two major sources:60 the European peace treaty practice concerning the restitution of movable property removed in armed conflict; and that on allocation and division of public archives pertaining to ceded lands in territorial transfers.61 In fact, the latter principle was extrapolated to State property forming part of the intellectual patrimony of a State. However, such a linkage was defined differently in relation to ‘ordinary’ State archives and with respect to other property with a cultural or scientific significance. Accordingly, the allocation of ‘regular’ State archives was founded on territorial pertinence, while the principle of territorial provenance was applied to the property of cultural heritage significance.62 A true consolidation of the practice and legal doctrine on State succession in cultural property occurred in the peace settlements concluding World War I. These recognized the distinction between the regime of armed conflict and that of State succession, while dealing with the return and allocation of cultural property.63 While both regimes were founded on the principle of territorial provenance, the former was seen as a corollary of the prohibition of hostile acts against civilians and their property (comprising property

58 See arts 28(7), 30(3), and 31(4) of the VCSSP. 59 Jakubowski, State Succession (n 5) 172–4. 60 See Jakubowski, ‘Territoriality and State Succession’ (n 7) 30 ff. 61 See ILC, ‘Non-Exhaustive Table of Treaties Containing Provisions Relating to the Transfer of Archives in Cases of Succession of States’ (1979) 2(1) Yearbook of the International Law Commission 82. 62 See art XVIII of the 1866 Vienna Treaty of Peace between Italy and Austria-Hungary, 1 Martens RMPT (2e série) 383. 63 In particular, see art 196 and Annexes I–IV [to Part VIII, Section II] of the Treaty of Saint-Germain (Treaty of Peace between the Allied and Associated Powers and Austria together with Protocol and Declarations) (signed 10 September 1919, in force 8 November 1921) 226 Parry’s CTS 8; and art 11 of the 1921 Treaty of Riga (Peace Treaty between Poland, Russia, and the Ukraine) (signed on 18 March 1921, in force upon signature) 6 LNTS 51.

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Cultural Heritage and State Succession 591 dedicated to religion, education, art, and science),64 whereas the latter was designed to provide just solutions enabling economic and cultural integrity of the territory subject to State succession.65 In this context, the principle of nationality or major importance to the heritage of a successor State was applied, by adopting a variety of principles such as ‘the nationality or birthplace of the artist, the bond between the work and the nation’s history, the artistic tradition inspiring it, or even its allocation to a certain place or for a given use’.66 The post–World War I State practice also manifested the application of two other ‘corrective’ principles.67 The first referred to equitable apportionment in cases of certain groups of cultural objects that could not be attributed exclusively to one of the successor States in accordance with the principles of territoriality or nationality. Yet the implementation of equitable solutions was usually subject to the second principle, the protection of the integrity of universally ranked collections. The most developed example of such international succession arrangement was offered by the Agreement between Austria and Hungary Concerning Certain Objects from Museum and Library Collections,68 which provided for: (1) repatriation based on territoriality and historic links; (2) reciprocity; (3) protection of the integrity of common heritage; and (4) equal access to the collections forming the common heritage of both nations and interstate cultural collaboration. The general consensus on principles of State succession to cultural property survived the events of World War II. Indeed, the Allied restitution programme, proclaimed by the 1943 London Declaration,69 fully reaffirmed the paramount nature of the principle of territoriality in relation to both the restoration of cultural property removed by the use of force or under duress in the event of war and the allocation of such materials in State succession. Indeed, some of the post–World War II peace treaties (e.g. the 1947 Treaty of Peace with Italy)70 provided for the unconditional restoration of such properties origin ating from the ceded territories. However, the changes of territorial boundaries in Europe, followed by the displacements of entire national and/or ethnic groups, also led 64 See arts 27 and 56 of the Regulation to the Convention (IV) Respecting the Laws and Customs of War on Land, and Annex (signed 18 October 1907, in force 26 January 1910) 208 Parry’s CTS 77. 65 Jakubowski, ‘Territoriality and State Succession’ (n 7) 55ff; Ana F. Vrdoljak, ‘Enforcement of Restitution of Cultural Heritage through Peace Agreements’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 22, 24–7, 29–31, 32–7; compare Wojciech W. Kowalski, ‘Repatriation of Cultural Property Following a Cession of Territory or Dissolution of Multinational States’ (2001) 6(2) Art, Antiquity and Law 139, 144 ff. 66 Charles De Visscher, International Protection of Works of Art and Historic Monuments (The Department of State Publications 1949) 836–7. 67 See Yves Huguenin-Bergenat, Kulturgüter bei Staatensukzession: Die internationalen Verträge Österreichs nach dem Zerfall der österreichisch-ungarischen Monarchie im Spiegel des aktuellen Völkerrechts (De Gruyter 2010) 246 ff. 68 Signed 27 November 1932; 162 LNTS 395. 69 The Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control (adopted 5 January 1943), available at accessed 18 December 2019. 70 Signed 10 February 1947, in force 15 September 1947; 49 UNTS 3, art 1 of Annex XIV.

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592 Andrzej Jakubowski to the tacit recognition of the priority of collective cultural rights of a group over the general principle of territoriality. In fact, cultural property often followed the destiny of displaced communities, although such a principle for allocation was not explicitly formulated by interstate arrangements.71 Next, the dissolution of the colonial system evidenced the resistance of former colonial powers to sharing the cultural resources acquired during colonialism with newly independent postcolonial States—in only a few cases did postcolonial State succession to cultural property follow European patterns based on the principle of territorial origin.72 In practice, many returns of cultural material removed prior to the date of State succession, both in postcolonial and non-colonial contexts, were made ex gratia, based on moral or strictly political grounds rather than any legal considerations.73 Finally, the changing dynamics of international legal relations after World War II saw the twilight of traditional arrangements on State succession, implemented through peace agreements.74 As to the more recent State practice, the traditional approach based on territorial origin of such material and equitable apportionment was consequently adopted only in the case of the dissolution of Czechoslovakia. Pursuant to a special agreement, the two successor States—the Czech Republic and Slovakia—exchanged certain medieval paintings.75 While Slovakia received the artworks originating from its territory, it had to give to the Czech Republic an equivalent of ten paintings from the same epoch. However, the majority of the post-1990 arrangements regarding cultural property have essentially been rooted in international cultural heritage law rather than on previous practice of State succession. In particular, they refer to three main larger areas developed and promoted by UNESCO, constituting the foundation of the current global cultural heritage governance: (1) the obligation to return cultural property illicitly removed from militarily occupied territories, as provided under the First Protocol to the 1954 Hague Convention;76 (2) the procedural principle to cooperate to protect each State’s cultural heritage, in the spirit of the 1970 UNESCO Convention and article 1(3) of the UN Charter;77 and (3) the joint responsibility for the protection of cultural heritage of great importance to all humankind, as enshrined by the World Heritage Convention.78 71 See Andrzej Jakubowski, Francesca Fiorentini, and Ewa Manikowska, ‘Memory, Cultural Heritage and Community Rights: Church Bells in Eastern Europe and the Balkans’ (2016) 5(2) International Human Rights Law Review 274, 293–7. 72 See Jakubowski, ‘Territoriality and State Succession’ (n 7) 121–9. 73 Jakubowski, State Succession (n 7) 106 ff. 74 Vrdoljak, ‘Enforcement of Restitution’ (n 65) 38–9. 75 Agreement between the Government of the Republic of Slovakia and the Government of Czech Republic on the Exchange of Certain Objects of Cultural Heritage (signed 26 September 1994) Official Journal of Czech Republic 343/1994, 1547. 76 Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (adopted 14 May 1954, in force 7 August 1956) 249 UNTS 358. 77 See Alessandro Chechi, ‘Multi-Level Cooperation to Safeguard the Human Dimension of Cultural Heritage and to Secure the Return of Wrongfully Removed Cultural Objects’ in Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law (Brill 2012) 362–7. 78 Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, in force 17 December 1975) 1037 UNTS 151.

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Cultural Heritage and State Succession 593 Unsurprisingly, the dismemberment of the USSR was particularly instructive as it involved both the dissolution of a State and decolonization.79 As early as 1992 the return of cultural material removed prior to the date of State succession was envisaged by the Agreement on the Return of Cultural and Historic Treasures to Their Country of Origin, signed in Minsk by eleven successor States of the USSR and members of the newly established Commonwealth of Independent States (the 1992 CIS Agreement).80 The preamble of this instrument underlined that ‘the return of works of art, monuments, exhibits, archival manuscripts, documents and other cultural and artistic objects to their nations and their respective origin, shall contribute to the rival of national cultures, protection and future development of common cultural objects and shall promote better co-operation between the independent states’. It also invoked the 1970 UNESCO Convention and the UNGA activity in relation to return of cultural property to its country of origin. However, this agreement was not implemented due to the resistance of Russia, which opted for bilateral arrangements on a case-by-case basis with other States emerging from the USSR,81 thus following the position and practice of other former colonial powers in relation to removals of cultural property.82 The position of Russia also evolved in light of the post–cold war debate on the restitution of cultural property displaced in connection to World War II. Accordingly, the solution distinguished the restitution of cultural property removed during World War II from other cultural heritage arrangements relating to State succession. In the first instance, under Russia’s Federal Law on Cultural Valuables Displaced to the USSR as a Result of World War II and Located on the Territory of the Russian Federation,83 the former USSR republics were entitled to recover their displaced cultural properties provided that they covered all the expenses of such repatriation (article 18). As to the other arrangements relating to the dissolution of the USSR, these would be approached on a case-by-case basis within the framework of international cooperation and friendly relations, as generally provided by the Agreement on the Co-Operation in the Field of Culture, signed in Tashkent on 15 May 1992 by the prime ministers of eleven States of the CIS,84 and in the 79 See e.g. Jan C. Jansen and Jürgen Osterhammel, Decolonization: A Short History (Princeton University Press 2017) 18 ff. 80 Agreement on the Return of Cultural and Historic Treasures to Their Country of Origin (signed 14 February 1992) Rossiskaia Gazieta, 24 February 1992, 1–2, English translation after W. Kowalski, ‘Restitution of Works of Art Pursuant to Private and Public International Law’ (2001) 288 Recueil des Cours de l’Académie de Droit International 9, 88–90. 81 See Jakubowski, ‘Territoriality and State Succession’ (n 7) 207 ff. 82 See Mark Boguslavskij, ‘Contemporary Legal Problems of Return of Cultural Property to Its Country of Origin in Russia and the Conference of Independent States’ (1994) 3(2) International Journal of Cultural Property 243, 253–4; Natalia Dronova, ‘The Division of State Property in the Case of State Succession in the Former Soviet Union’ in Eisemann and Koskenniemi (eds), La succession d’Etats (n 4) 781, 818. 83 Federal Law N 64-FZ (15 April 1998), available at accessed 18 December 2019; for the list of post-1991 Russian legal instruments relating to cultural valuables of foreign provenance seized and transported to the USSR at the end of World War II, see Patricia Kennedy Grimsted (ed), ‘Russian Legal Instruments Relating to Cultural Valuables Displaced as a Result of the Second World War, 1990–2009’ (2010) 17(2) International Journal of Cultural Property 427. 84 Available at accessed 17 December 2019.

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594 Andrzej Jakubowski spirit of the UNESCO and UNGA initiatives on the return of cultural property to their countries of origin.85 In relation to this, it is also necessary to recall the CIS Agreement on Succession with Respect to State Archives of the Former USSR, signed on 6 July 1992.86 In principle, it did not separately address the issue of State archives of particular cultural heritage significance and confirmed customary rules on the apportionment and access to State archives of the predecessor State. Yet it provided that the object of negations regarded not only the archives of the USSR but also those of the former Russian Empire. Accordingly, it covered some historical archives created between 1721 and 1991. Similar to the CIS arrangements, the 2001 SFRY Agreement, signed by the four former Yugoslav republics (Croatia, Slovenia, Bosnia and Herzegovina, and Macedonia) and the Federal Republic of Yugoslavia (the republics of Serbia and Montenegro), clearly separated the questions concerning the armed conflict in the territory of the former SFRY from the succession issues. The said agreement, drafted and negotiated under the UN auspices,87 not only adopted the regime founded in the VCSSP but also offered an explicit exception for cultural property. Under Annex A, it provided that ‘tangible movable state property of great importance to the cultural heritage of one of the successor state and which originated from the territory of that state, such as works of art, manuscripts, books and other objects of artistic, historical or archaeological interest to that state; and scientific collections and important collections of books or archives’ (article 3(2)) shall pass to the state concerned provided that it would identify them ‘as soon as possible, but no later than 2 years after the entry into force of this Agreement’ (article 3(2)). An exemption from the general rules on the tangible movable property of the SFRY was also introduced in respect of Yugoslav property abroad. Yet the movables forming part of SFRY diplomatic and consular properties, which were ‘of great importance to the cultural heritage of one of the successor states’, should pass to that State (article 4 (5)). Clearly, the 2001 SFRY Agreement applied two fundamental principles of allocation and distribution of cultural property in State succession: the principle of territoriality and the principle of major significance to the cultural heritage of a successor State. No time limitations as to the date of the removal of the objects were specified, nor were any guidelines as to the identification of objects and the methods for their allocation provided. In addition, the 2001 SFRY Agreement did not apply the principle of the preservation of the integrity of collections. The territorial origin and cultural and historical interests of the successor States were paramount. However, the 2001 SFRY Agreement did not provide any guideline as to the identification of objects and the proceedings of their 85 See ‘Final Document of the International Scientific Conference on Restitution of Cultural Values: The Problems of Return and Joint Usage (Legal, Scholarly and Moral Aspects), Minsk, 19–20 June 1997’, in Adam Mal’dzis, The Restitution of Cultural Treasures: Problems of Repatriation and Common Usage (Legal, Scholarly and Ethical Aspects). Materials of the International Scientific Conference Held in Minsk, 19–20 June 1997 (Nacyjanal’ny Navukova-Asvetny Cėntr Imja Francyska Skaryny, 1997), 260–2. 86 An official English translation is available in Patricia Kennedy Grimsted, Trophies of War and Empire: The Archival Heritage of Ukraine, World War II, and the International Politics of Restitution (Harvard University Press 2001) 552–4, appendix V. 87 See Carsten Stahn, ‘The Agreement on Succession Issues of the Former Socialist Federal Republic of Yugoslavia’ (2002) 96(2) American Journal of International Law 379.

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Cultural Heritage and State Succession 595 a llocation. One may expect that these would be established by the interstate commissions. It also seems that the rights to cultural property removed outside SFRY territory passed to the State from which it had been taken.88 While the solutions offered by the 2001 SFRY Agreement corresponded with the doctrinal approaches regarding State succession in cultural property as expressed in the 2001 IDI Resolution, their execution has been more disappointing.89 In fact, much of the depending issues entered into bilateral negotiations, usually following the principles of international cultural cooperation, rather than technicalities of the 2001 SFRY Agreement. Indeed, the recent international practice has given priority to different multilateral and bilateral agreements on cultural cooperation which have virtually replaced tech nical arrangements on property apportionment in State succession. Accordingly, States tend to settle all the claims which may arise from past transfers and removals of cultural property within the framework of interstate accords on cultural cooperation and reciprocal protection of cultural heritage, rather than in succession agreements sensu stricto. The objective of such arrangements lies in the accommodation of different economic, cultural, or scientific interests of the States concerned (for example, licit cross-border circulation of works of art and other cultural products, access to archaeological sites situated in the territory of one State by the scientists of the other, protection of joint cultural heritage sites, etc.). For instance, these have been the cases of agreements concluded in the process of de-sovietization in Europe, particularly by Poland with the unified Germany90 and Ukraine, a USSR successor State,91 and cultural relations of Italy with Slovenia and Croatia, the SFRY successor States, relating to the post–World War II State succession in the region of Istria.92 Actual negotiations on the fate of the disputed cultural treasures are perceived as secondary issues. It is also a commonly accepted standard that such cultural cooperation agreements invoke the 1970 UNESCO Convention, which is arguably treated as a basis both for the resolution of current disputes relating to the illicit traffic in cultural material and to address former removals, including those arising from State succession. Similarly founded arrangements have also been undertaken in the postcolonial context: the cultural projects between the Netherlands and Indonesia (former Dutch East Indies)93 and those of Italy and Libya.94

88 Jakubowski, ‘Territoriality and State Succession’ (n 7) 226–8. 89 Ibid, 227–32. 90 Treaty between Federal Republic of Germany and Poland on Good Neighbourly Relations and Friendly Cooperation (signed 17 June 1991, into force 16 January 1992) 1708 UNTS 463. 91 Treaty between Ukraine and the Republic of Poland on Good Neighbourliness, Friendly Relations and Cooperation (18 May 1992, into force 30 December 1992) Journal of Laws of the Republic of Poland (1993) 125, item 573. 92 See Francesca Fiorentini and Andrzej Jakubowski, ‘Istria’s Artistic and Spiritual Heritage in Abeyance: International Cooperation and Cultural Community Rights’ (2016) 26 Italian Yearbook of International Law 211, 235–41. 93 Cynthia Scott, ‘Sharing the Divisions of the Colonial Past: an Assessment of the Netherlands– Indonesia Shared Cultural Project, 2003–2006’ (2012) 18(1) International Journal of Heritage Studies 1, 1. 94 Treaty on Friendship, Partnership and Cooperation between Italy and Libya (signed 30 August 2008, in force 2 March 2009) Official Journal of the Italian Republic No 89 (18 February 2009).

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596 Andrzej Jakubowski The latter case is particularly interesting as it involved the return of cultural material by this former colonial power to its dependent territory which was subject to judicial review. Accordingly, the Italian Council of State, in its decision on the relation between the national legislation on the protection of cultural heritage and restitution of cultural property (an ancient sculpture, the Venus of Cyrene) to Libya, from which it had been removed during the Italian colonial conquest, held that the obligation to return was a ‘corollary’ of two general principles of international law: the prohibition of the use of force and the principle of self-determination of peoples. From the latter principle, the Italian Council of State explained, derived the protection of cultural and territorial identity, which involved the obligation to return all cultural items removed by acts of war and the use of force.95 This decision is, perhaps, one of the most interesting judicial elaborations of international law grounds for the return of cultural property removed during colonialism.96 In light of the latter case one needs to recall the recent policy developments. In November 2018, the French administration published a report titled The Restitution of African Cultural Heritage. Toward A New Relational Ethics, commissioned by President Emmanuel Macron and drafted by two academics: Bénédicte Savoy (France) and Felwine Sarr (Senegal).97 The report regards the status of African cultural property removed from their countries of origin during the times of the French Colonial Empire and until today preserved in French museums.98 Significantly, the report uses the term ‘restitution’, thus underlining the unlawful nature of colonial removal of cultural property. It provides a long-term restitution process, implemented by special, newly established joint commissions. It would enable formerly colonized peoples in Africa to make their claims to French museums. Yet in the first stage, to be completed by the end of 2019, it recommends the ‘formal restitution’—namely, transfer of legal title—of largely symbolic cultural goods, the return of which has long been demanded by some African countries and communities, including priceless statues, palace doors, and thrones, which were plundered by the French authorities in 1892 from the royal palaces of Abomey in present-day Benin,99 a World Heritage Site since 1985.100 Other objects which, according to the report, should be returned in the first phase come from Senegal, Nigeria, Ethiopia, Mali, and Cameroon.101 Whether the actions recommended by this report will be put into practice remains to be seen. However, even if these recommendations are implemented only in part, this would greatly affect the status of cultural property removed under colonial rule. The international cultural heritage relations arising from change of borders and State succession have also often recalled or even been implemented within the framework of 95 Associazione Nazionale Italia Nostra Onlus v Ministero per i Beni le Attività Culturali et al., Consiglio di Stato, No 3154, 23 June 2008. 96 Compare Alessandro Chechi, ‘The Return of Cultural Objects Removed in Times of Colonial Domination and International Law: The Case of the Venus of Cyrene’ (2008) 18 Italian Yearbook of International Law 159. 97 Available at accessed 17 December 2019. 98 See Chapter 34 in this Handbook. 99 Sarr and Savoy (n 97) 63–4. 100 UNESCO Doc SC-85/CONF.008/4 (1985). 101 Sarr and Savoy (n 97) 64–6.

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Cultural Heritage and State Succession 597 the World Heritage Convention. Indeed, the international regime of this convention has been seen as perfectly designed to reconcile and bridge different interests of States to immovable cultural heritage. The initiatives have ranged from joint nominations of transboundary sites to the World Heritage List (WHL), support and assistance to unilateral nominations of sites, and international assistance in nominating procedures.102 The most recent WHL inscriptions of this kind comprise: wooden Tserkvas of the Carpathian region in Poland and Ukraine (2013); Stećci Medieval Tombstones Graveyards, a serial transboundary property in Bosnia and Herzegovina, Croatia, Serbia, and Montenegro (2016); and Venetian Works of Defence between the sixteenth and seventeenth centuries: Stato da Terra—Western Stato da Mar in Italy, Croatia, and Montenegro (2017). Interestingly, Albania and the Former Yugoslav Republic of Macedonia (since January 2019 the Republic of North Macedonia) have also launched a joint project towards the extension of the Natural and Cultural Heritage of the Ohrid Region, a World Heritage Site located in the Macedonian territory, to the Albanian side of the lake.103 It needs to be noted, however, that inscription on the WHL has sometimes been seen as a means of asserting political and territorial claims rather than joint efforts to protect cultural heritage—for instance, as regards Palestinian nominations in the West Bank, eagerly contested by Israel.104

5. State Succession and International Cultural Heritage Obligations The development of international cultural heritage law also calls for the reconsideration of the status of international obligations in this regard. Most such obligations arise from multilateral treaties and, to a certain extent, stem from bilateral agreements. In respect of State succession in treaties, two general theories have been constructed: ‘automatic succession’ and ‘clean slate’ (tabula rasa). The first provides that a successor State is bound by international obligations undertaken by a predecessor State in respect of a territory to which succession of States relates. The second adopts a non-succession rule, which enables the successor State to decide which international engagements it will continue.105 Yet the application of one of these doctrines is conditioned by the category 102 See Andrzej Jakubowski, ‘World Heritage, Conflicting Identities and Political Reconciliation’ in Lucas Lixinski and Andrea Durbach (eds), Heritage, Culture and Rights: Challenging Discourses (Hart-Bloombsury 2017) 251, 258–62. 103 See 6th Transboundary Platform Meeting for the safeguarding of the Lake Ohrid region (14–15 September 2017), available at accessed 4 December 2019. 104 See e.g. Isabel Kershner, ‘Unesco Declares Hebron’s Core as Palestinian World Heritage Site’, The New York Times (7 July 2017). 105 See Matthew Craven, ‘The Problem of State Succession and the Identity of States under International Law’ (1998) 9(1) European Journal of International Law 142, 46–51.

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598 Andrzej Jakubowski of territorial succession. Most importantly, the State practice in respect of the secession and dissolution (comprising the colonial context) has not been consistent, as solutions based on both ‘clean slate’ and succession doctrines have been adopted,106 and it seems that successor States usually tend to maintain their sovereign capacity to ‘pick and choose’ the treaties adhered to by a predecessor State.107 However, automatic succession with regard to State boundaries and other territorial regimes established by a treaty has been followed.108 The issue of automatic succession has also been addressed in relation to human rights and humanitarian law treaties. At the time of the post–cold war wave of State succession there was strong support for the concept claiming that such obligations continue to apply within the territory of a predecessor State, irrespective of change in sovereignty.109 This was driven by the reasoning that State succession does not affect the rights of individuals and cannot deprive them from the human rights protection. Yet the existence of the specific rule on automatic succession of such treaties does not seem to be confirmed by consistent international practice and opinio juris.110 Since cultural heritage treaties do not refer to State boundaries or other territorial regimes, it may seem that in cases of secession and dissolution the successor State is free to decide whether it will accede to cultural heritage treaties concluded by the predecessor. Yet such an approach does not produce correct and just outcomes with regard to the obligation to protect cultural heritage of outstanding universal value, such as properties inscribed on the WHL prior to the date of State succession. In this regard, one may argue that the obligations under the World Heritage Convention should be subject to automatic succession, as they are vested to the international community as a whole. It may also be argued that international obligations to protect cultural heritage on the territory subject to State succession are parallel to those providing for the protection of the human rights of the inhabitants of that territory. This would particularly refer to humanitarian obligations under the 1954 Hague Convention and its Protocols. The major argument supporting such a thesis would consist in the intersection of the value of cultural heritage for every people and for the international community as a whole. In fact, this reasoning may arguably be associated with the position expressed by the International Court of Justice (ICJ) regarding the existence of certain obligations erga omnes in respect of values protected by the international community as a whole. In the Barcelona Traction case, the Court held that the ‘principles and rules concerning the

106 Although the VCSST provides for ‘clean slate’ rule exclusively in respect of newly independent States (art 16). 107 Eg see ILA Committee, ‘Final Report’ (n 21) 361. 108 Ibid. 109 In particular, see Menno T. Kamminga, ‘State Succession of Human Rights Treaties’ (1996) 7(4) European Journal of International Law 469; also see Isabelle Poupart, ‘Succession aux traités et droits de l’homme: vers la reconnaissance d’une protection ininterrompue des individus’ in Eisemann and Koskenniemi (eds), La succession d’Etats (n 4) 465. 110 See Akbar Rasulov, ‘Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?’ (2003) 14(1) European Journal of International Law 141, 169–70; ILA Committee, ‘Final Report’ (n 21) 361–2.

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Cultural Heritage and State Succession 599 basic rights of the human person’ are applicable to all States.111 Moreover, the ICJ, in its earlier Advisory Opinion on reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, had recognized the special status of the so-called ‘universal treaties’ or ‘lawmaking treaties’, which do not enshrine a balance of the reciprocal interests of the States Parties but ‘a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention’.112 Undoubtedly, the general interest of all humanity in the protection of cultural heritage matches perfectly within the notion of such universally recognized values. In this regard, the issue of the continuity of international cultural heritage obligations arising from sources other than a treaty is to be recalled. Indeed, from the moment of their emergence, successor States are bound not only by the obligations to which they expressly contracted or to which they succeeded but also by customary international law or general principles.113 Hence, the fact of State succession does not cease the obligations binding under general international law. Nevertheless, the existence of such obligations in respect of cultural heritage is disputable.114 Furthermore, it must be stressed that the continuity of international obligations arising from peremptory norms of international law does not regard the issue of State succession as such. These obligations are not contracted by a predecessor State in its sovereign capacity, and they are not the subject of succession. Finally, special attention should be given to the UN programmes for the peace processes in Bosnia-Herzegovina and Kosovo,115 as they were driven by the objective of the protection of human rights of the inhabitants of these multi-ethnic, religiously diverse territories. In this regard, the protection of cultural heritage, comprising the reconstruction of destroyed monuments and sites, constituted the core element of the programme for the post-conflict reconciliation, crucial for stability of new State boundaries. Accordingly, the obligation to protect cultural heritage constituted a part of the broader enforcement of human rights standards perceived as requirements for the conditional recognition of these new States. Although these accepted a complex set of cultural heritage obligations, this was not exactly a case concerning the automatic succession in pre-existing international engagements contracted by the predecessor States, the SFRY and Serbia respectively. Hence, it remains doubtful whether this practice can contribute to the formation of international customary rules on succession in cultural heritage obligations in the events of dissolution and secession.

111 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgment of 5 February 1970, ICJ Reports 1970, 3, paras 33–4. 112 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports 1951, 15, at 23; see Florentino Ruiz Ruiz, ‘The Succession of States in Universal Treaties on the Protection of Human Rights and Humanitarian Law’ (2003) 7(2) International Journal of Human Rights 42, 69. 113 Koskenniemi, ‘Report of the Director of Studies’ (n 4), 108. 114 Compare Francesco Francioni, ‘Au-delà des traités: l’émergence d’un noveau droit coutimier pour la protection du patrimoine culturel’ (2007) 11(1) Revue générale de droit international public 19. 115 Jakubowski, State Succession (n 5) 270–7.

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6. State Succession to International Responsibility for Cultural Heritage Wrongs As already mentioned in this chapter, the creation and transformation of States may often give rise to responsibility for internationally wrongful acts committed against cultural heritage of the territory to which succession of States relates. This issue also relates to both the succession in international responsibility for the acts committed by the predecessor State and succession in secondary rights of the predecessor arising from a wrongful act of another State. Yet international delicts have traditionally been considered as being of a ‘personal’ nature and, thus, could only be attributed to the State responsible for committing them and not to its successor.116 Hence, under the negative succession rule, the passing of international responsibility from the predecessor to the successor State has long been excluded117—that is, the obligations arising from the commission of such an act were claimed as being non-transmissible and non-enforceable. This issue was approached at the time of the ILA’s mandate on the codification of the law on State succession, in 1963.118 However, no consensus was found, and the topic of State succession with respect to responsibility for torts was eventually excluded.119 However, both State practice and doctrine have greatly evolved, and nowadays the traditional negative approach to State succession and international responsibility for internationally wrongful acts no longer corresponds to the current State of international law. However, the developments of the post–cold war international practice,120 particularly the ICJ’s judgment in the Case Concerning the Gabčikovo-Nagymaros Project,121 and the new doctrinal approaches postulated in international legal scholarship have led to widespread criticism of the negative succession rule.122 These new trends clearly favour a more equitable approach to State succession and international responsibility, based on analysing the factual and legal contexts of a given case in light of the principles of international justice as well as the stability and security of international legal relations.123 Undoubtedly, the most comprehensive theoretical in this regard has been offered by the 2015 IDI Resolution, founded on the argument that ‘situations involving succession of States should not constitute a reason not to implement the consequences stemming 116 James Crawford, State Responsibility: The General Part (Cambridge University Press 2013) 441. 117 Ibid, 437 ff. 118 UN Doc A/CN.4/160. 119 Ibid, 298. 120 See Pavel Šturma, ‘State Succession in Respect of International Responsibility’(2016) 48(3) George Washington International Law Review 654, 659–70. 121 Hungary v Slovakia, Judgement of 25 September 1997, ICJ Reports 1997, 3. 122 For an extensive analysis of the topic see Dumberry, State Succession (n 3). 123 See inter alia Crawford, State Responsibility (n 116) 435–55; Vaclav Mikulka, ‘State Succession and Responsibility’ in James Crawford, Alain Pellet, and Simon Olleson (eds), The Law of International Responsibility (Oxford University Press 2010), 291.

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Cultural Heritage and State Succession 601 from international wrongful acts’.124 Its basic premise consists of a distinction between instances of continuity and succession of States. Accordingly, ‘in cases in which the predecessor State continues to exist, it is this State that continues the enjoyment of rights and the assumption of obligations arising from the internationally wrongful acts in which it was involved before the date of State succession’.125 For instance, there has been no doubt that the Federal Republic of Germany,126 and to certain extant the Russian Federation,127 shall continue their obligations and rights arising from acts against cultural heritage committed during World War II. Thus, a non-succession rule has been proposed in relation to all cases of State succession in which the predecessor continues to exist—namely, territorial cession, secession, and the creation of a newly independent State.128 However, certain exemptions from this general rule are put forth, which include: an ‘intrinsically direct link of the consequences of the wrongful act with the territory or the population concerned’;129 a ‘wrongful act committed by an entity of the predecessor State that later becomes the successor State’;130 or ‘acceptance by the successor State of fulfilling the obligations’.131 These corrective principles are particularly important ‘in cases of violations of human or minority rights’—that is, when the wrongful act ‘has a specific population as a direct victim’.132 Hence, the continuity of obligations and rights arising from such a serious breach of international law will be maintained irrespective of any non-succession or discontinuity claims of the States concerned. The equitable nature of the 2015 IDI Resolution also characterizes the solutions proposed with regard to succession in rights stemming from internationally wrongful acts committed against the predecessor State or the population concerned. Importantly, article 16(4) of the 2015 IDI Resolution provides that ‘the rights arising from an inter nationally wrongful act committed before the date of the succession of States by the predecessor State or any other State against a people entitled to self-determination shall pass after that date to the newly independent State created by that people’. Arguably, it may provide a newly independent State which has emerged in violent circumstances with a strong legal argument against its predecessor and/or another State to which a wrongful act can be attributed and give it the right to claim reparation for the violation of cultural heritage obligations, in particular those established by humanitarian rules for the protection of cultural property. On the other hand, the newly independent State shall be held responsible for the conduct, prior to the date of State succession, of a national liberation movement which succeeded in establishing such a newly independent State. Thus, the responsibility for internationally wrongful acts against cultural heritage 124 2015 IDI Resolution, preamble, third recital. 125 Ibid, para 56. 126 Crawford, State Responsibility (n 116), 449–51; Jakubowski, State Succession (n 5) 193–6. 127 See Lisa Yarwood, State Accountability under International Law: Holding States Accountable for a Breach of Jus Cogens Norms (Routledge 2011) 115 ff. 128 2015 IDI Resolution, arts 11, 12, and 16. 129 Marcelo G. Kohen, Rapporteur, State Succession in Matters of State Responsibility: Final Report (2015) paras 57–62, available at accessed 17 December 2019. 130 Ibid, paras 63–5. 131 Ibid, paras 66–9. 132 Ibid, para 62.

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602 Andrzej Jakubowski committed by such a national liberation movement shall, in principle, pass to the successor State.133 It is a matter of time whether these solutions are applied in State practice. In regard to State succession and the international responsibility for violations of cultural heritage obligations, State practice has not been very consistent. Actual arrangements adopted by successor States in respect of responsibility for the breach of cultural heritage obligations occurring in the past have usually been based on non-succession ex gratia solutions negotiated between the States concerned as a matter of cultural cooperation rather than by the application of concrete rules or principles of the law on State succession.134 Perhaps the most significant instructive case concerns the dissolution of the SFRY. In particular, Serbia assumed responsibility for violations of the rules governing war conduct, under the 1954 Hague Convention, in relation to cultural heritage crimes committed by the Federal Republic of Yugoslavia (FRY) during the war with Croatia.135 The first negotiations between Croatian and Yugoslav foreign ministries were initiated in the late 1990s. In 1998, both States agreed that a future bilateral agreement on cultural cooperation needed to be based on the registration and return to Croatia of cultural property.136 In November 2001, Croatia and the FRY reached a consensus, and, on 7 December 2001, the protocol on the return of the cultural treasures was signed in Belgrade.137 A Joint Serbian–Croatian Commission for the Return of Cultural Property was established, and certain cultural objects were returned to Croatia in 2001.138 Next, on 23 March 2012, Serbia and Croatia concluded a protocol on the restitution of Croatian cultural assets from Serbia to Croatia. According to its provisions, more than 1000 works of art taken during the 1990s would be returned from Serbia to Croatia,139 and some restitution has indeed taken place.140

133 Art 16.3 of the 2015 IIL Resolution; see also art 10(2) of the Articles on Responsibility of States for Internationally Wrongful Acts (November 2001) UN Doc A/56/83 (2001). 134 Jakubowski, State Succession (n 5) 193–8. 135 Branka Šulc, ‘The Protection of Croatia’s Cultural Heritage During the War 1991–95’, in Robert Layton, Peter G. Stone, and Julian Thomas (eds), Destruction and Conservation of Cultural Property (Routledge 2001) 157, 162. 136 Ibid, 164. 137 Protocol on the Transport of Objects of Art, Cultural Assets and Other Exhibits from the Museum of Vojvodina and the Novi Sad City Museum (in Yugoslavia) to the Vukovar City Museum, signed on 7 December 2001 in Belgrade (2001) 4 Yearbook of International Humanitarian Law 482. 138 Irini A. Stamatoudi, Cultural Property Law and Restitution: A Commentary to International Conventions and European Union Law (Edward Elgar 2011) 248, fn 105; Alix Kroeger, ‘Croatia’s precious artwork returned’ BBC News (12 December 2001) accessed 17 December 2019. 139 Protocol on Restitution of Cultural Assets from Serbia to Croatia Signed 23 March 2012 accessed 18 December 2019. 140 See accessed 18 December 2019.

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7. State Succession and Global Cultural Heritage Governance The current state of international law on State succession in respect of cultural heritage seems to confirm the general principles of territorial provenance and major cultural importance applied to the division and apportionment of cultural property since the nineteenth century. However, their interpretation has now been performed in light of the evolving international regime for the protection of cultural heritage, particularly in relation to the objectives of interstate cultural cooperation and the protection of cultural human rights. Hence, these principles have gained a new dimension: the duty of each State to protect the cultural heritage situated in its territory. This does not exclusively refer to one’s own national heritage but also extends to the cultural heritage of others, as today the protection of cultural heritage is not only an internal domestic issue but also part of the common concern of all humanity and subject to human rights protection. Moreover, it also appears that the recent international practice and doctrine of inter national law favours certain ‘pragmatic’ approaches to State succession, postulating flexible solutions based on fairness and equity,141 driven by the objective of maintaining the geopolitical equilibrium of the international legal order. In this regard, the equitable nature of the 2001 and 2015 IDI Resolutions seems to be in line with the character of cultural heritage obligations: on the one hand, these often involve extremely complex historical and politically sensitive aspects while, on the other hand, they may be seen as parallel to those obligations stemming from the rules on the protection of human rights. Concerning these developments, the legal questions linked to cultural heritage and obligations and rights attached to it appear to belong to the expanding area of global cultural heritage governance. This involves a multiplicity of legal regimes and diversity of different legal authorities involved in the governance of cultural heritage issues.142 Here, the pivotal role is played by UNESCO as a standard- and trendsetter in global cultural heritage governance, through its international instruments, programmes, and cooperative tools.143 In this regard, good global cultural heritage governance might be defined as coordination between the diversity of legal instruments and rules (regime coordination) and domestic and international actors engaged in the protection of cultural heritage, in full respect of human rights.144 In particular, the protection of cultural 141 See inter alia Władysław Czapliński, ‘Equity and Equitable Principles in the Law of State Succession’ in Mojmir Mrak (eds), Succession of States (Martinus Nijhoff 1999) 61. 142 See Valentina Vadi, ‘Global Cultural Governance by Investment Arbitral Tribunals: The Making of a Lex Administrativa Culturalis’ (2015) 33 Boston University International Law Journal 457, 463–72. 143 Irina Bokova, Global Governance for the 21st Century: The UNESCO Angle (2011) UNESCO Doc ERI.2011/WS/4, 11–12. 144 Compare Valentina Vadi, ‘Cultural Wealth of Nations in International Law’ (2012) 21(1) Tulane Journal of International and Comparative Law 87, 118–23.

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604 Andrzej Jakubowski heritage is today concerned as a matter of the maintenance of international peace and security as pronounced by the UN Security Council (UNSC) in its Resolution 2347 of 24 March 2017.145 This resolution is the first initiative by the key global authority designed to integrate and consolidate various elements of international law and policy relating to cultural heritage. Alongside the enhanced collaboration among States, international organizations, and agencies such as the World Customs Organization, UNESCO, Interpol, and the UN Office on Drugs and Crime, Resolution 2347 promotes the participation of civic society, including practitioners and experts, in elaborating ‘standards of provenance documentation, differentiated due diligence and all measures to prevent the trade of stolen or illegally traded cultural property’ (paragraph 17(g)). Hence, the protection of cultural heritage is presented as a global imperative, calling for political, legal, and technical cooperation among transnational actors, aimed at negotiating solutions intended to be implemented on an international scale. In such context, the evolving international practice regarding cultural heritage aspects of State succession seems to increasingly mirror these global governance considerations in implementing the principles of cultural cooperation and reciprocal protection of cultural heritage. 145 Maintenance of International Peace and Security (24 March 2017) UN Doc S/RES/2347; see Irina Bokova, United Nations Security Council Resolution 2347 (24 March 2017) UNESCO Doc. CL/4210.

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chapter 26

Cu ltu r a l H er itage a n d State R esponsibilit y Patrizia Vigni

1. Introduction While individual criminal responsibility is regulated in detail in some cultural heritage treaties—such as the 1999 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) and the 2017 Nicosia Convention on Offences Relating to Cultural Property (Nicosia Convention), adopted within the framework of the Council of Europe and not yet in force1—in general, international treaties concerning cultural heritage do not provide for specific norms on State responsibility. This lacuna can also be found in international treaties of humanitarian law, which include norms on the protection of cultural property. Therefore, neither humanitarian nor cultural heritage treaties can be considered as examples of the so-called ‘self-contained’ regimes in which norms relating to responsibility and dispute settlement accompany substantive obligations applicable to a specific subject matter of international law in a complete and autonomous manner.2 1 Council of Europe, Convention on Offences relating to Cultural Property, Nicosia 3 May 2017, CETS n 221. 2 For this lacuna of international cultural heritage law, see Lucas Lixinski and Vassilis Tsevelekos, ‘The Strained, Elusive and Wide-Ranging Relationship between International Cultural Heritage Law and the Law of State Responsibility: From Collective Enforcement to Concurrent Responsibility’ in Alessandro Chechi and Marc-André Renold (eds), Cultural Heritage Law and Ethics: Mapping Recent Developments, Studies in Art Law (Springer 2017) 7, at 10. For a similar lacuna affecting international humanitarian treaties, see Marco Sassoli, ‘State Responsibility for Violations of International Humanitarian Law’ (2002) 84(846) International Review of the Red Cross 401, 404. Proper ‘self-contained’ regimes affecting the protection of cultural heritage exist in the field of human rights, such as, for example, the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR),

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606 Patrizia Vigni This lacuna of cultural heritage treaties raises the question whether general international norms on State responsibility are applicable to the violations of the substantive provisions contained in these treaties. International norms on State responsibility are, in fact, classified as ‘secondary rules’ with respect to the ‘primary rules establishing substantive obligations’.3 The Draft Articles on State Responsibility (hereafter the Draft Articles), adopted in 2001 by the International Law Commission (hereafter ILC), provide for basic provisions that may be useful to ascertain the legal consequences of the breach of the substantive obligations sanctioned in cultural heritage treaties. Although the Draft Articles have never become the content of a legally binding multilateral instrument, they are widely recognized as a document reflecting general principles of international law on the responsibility of States for wrongful acts. Under article 1 of the Draft Articles, any internationally wrongful act entails State responsibility. Thus, even if cultural heritage treaties do not provide for a distinctive responsibility regime, the Draft Articles are applicable to the wrongful acts arising from the breach of the obligations established by these treaties. Moreover, to the extent that some norms relating to cultural heritage have been recognized as part of customary international law,4 their breach comes within the scope of application of general principles on State responsibility, including those contained in the Draft Articles. This chapter is not aimed at analysing the issue of the legal nature of international norms on cultural heritage, whether customary or treaty-originated, since this matter is investigated in depth in other chapters of this handbook.5 However, this issue has a considerable impact on the forms and extent of the responsibility of a State for the breach of obligations relating to cultural heritage. For example, States that are not parties to the 1972 World Heritage Convention (hereafter WHC) cannot be considered responsible for the breach of the substantive obligations of the Convention of exclusively treaty at the global level, and the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ rights (ACHPR), at the regional level. The institutionalized structure characterizing these treaty systems makes it possible to ascertain the responsibility of the contracting States for the violation of the individual substantive rights granted in the conventions. Among these rights, the right to take part in cultural life and the right to cultural development demonstrate the importance of culture for the broad understanding of human life. The organs established by human rights treaty regimes have developed significant case law according to which the obligation of States to safeguard cultural heritage, including cultural property, is also owed to individuals in order to grant their human rights to cultural life and cultural development. For a comprehensive overview on this matter, see Chapter 17 in this Handbook as well as Ana Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’ in Federico Lenzerini and Ana Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014) 139, at 140. 3 The distinction between primary and secondary rules was formulated by the Special Rapporteur Ago for the first time during the 32nd Session of the International Law Commission. See ILC Yearbook (1980) vol. 2 part 2 para 23. For the relevance of this distinction, see Giorgio Gaja, ‘Primary and Secondary Rules in the International Law on State Responsibility’ (2014) 97(4) Rivista di Diritto Internazionale 981, 982. 4 For a thorough analysis of this matter, see Chapter 23 in this Handbook. 5 See Chapters 4–21.

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Cultural Heritage and State Responsibility 607 nature, such as the duty of States Parties to keep and submit an inventory of their cultural heritage, which is sanctioned in article 11. The aim of the present chapter is to ascertain to what extent international norms on State responsibility, such as the ones included in the Draft Articles, may be applied in the cases of the violation of the international obligations concerning cultural heritage in order to determine, first, to which State or States a wrongful behaviour may be attributed; second, which breaches of law, especially with regards to their ordinary or serious character, consist in wrongful acts from which State responsibility arises; third, in what circumstances such responsibility may be precluded; and, fourth, what consequences arise from the recognition of State responsibility including, in particular, the deter mination of the persons entitled to invoke such responsibility according to the different character of the obligations that have been violated. As to the diverse types of reparation and countermeasures that may be adopted to respond to State responsibility, this chapter will only ascertain whether or not general rules of international law, in particular, the Draft Articles, are suitable for application in cases of the breach of the obligations arising in the field of cultural heritage.6 Finally, the principle of ‘responsibility to protect’ (hereafter R2P) is worth mentioning. This principle recognizes the responsibility, or better to say the accountability, of sovereign States for the protection of their populations by means of positive actions. The R2P was originally formulated with respect to the protection of fundamental human rights in order to legitimize the humanitarian interventions of the international community in the case a sovereign State is unable to secure these rights to its population.7 Recently, proposals have been put forward to extend the R2P principle to the protection of cultural heritage,8 in particular against serious violations, such as intentional destruction and illicit removal in the context of armed conflict, on the assumption that such protection is a fundamental interest both of individuals and the international community as a whole.9 Despite its terminology, the R2P principle seems to define the scope of the primary rules establishing the general duties of sovereign States to prevent and prosecute illicit conducts rather than to sanction a new form of State responsibility that, as mentioned above, pertains to secondary rules. Nevertheless, the examination of this principle may be beneficial for the purpose of clarifying some aspects inherent to the issue of State responsibility, such as the attribution of illicit conducts, definition of the scope of breaches, and title to invocation. 6 For a detailed exam of this issue, see Chapter 8 in this Handbook. 7 For an overview, see Philip Cunliffe, ‘The doctrine of the “responsibility to protect” as a practice of political exceptionalism’ (2017) 23(2) European Journal of International Relations 466. 8 See the 2015 recommendations adopted by the UNESCO Expert Meeting on Responsibility to Protect inviting Member States to consider the protection of cultural heritage as an inherent part of the protection of fundamental human rights at accessed 28 April 2018. 9 For this dual accountability of States deriving from the R2P principle, see Jadranka Petrovic, ‘What Next for Endangered Cultural Treasures; The Timbuktu Crisis and the Responsibility to Protect’ (2013) 11(2) New Zealand Journal of Public & International Law 381, 404.

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2. Responsibility in Cultural Heritage Conventions Article 15 of the Second Protocol to the 1954 Hague Convention entails an example of norm concerning individual criminal responsibility arising from prohibited conducts such as attacks, destruction, pillage, or use of cultural property in support of military action. According to paragraph 2 of article 15, States Parties must adopt domestic legislative measures to ascertain and punish individual responsibility. Although no norm of the Hague Convention and its Protocols regulates State responsibility, article 38 of the Second Protocol affirms that the condemnation of individual illicit conduct, under article 15, does not exclude State responsibility for the same types of conduct under international law. Thus, State responsibility may be ascertained in accordance with the general provisions of international law in cases in which a State has violated the substantive obligations of the 1954 Hague Convention and its Protocols. In fact, the very subject matter of the Hague Convention—that is, the protection of cultural heritage during armed conflicts—mainly concerns activities traditionally performed by States, such as the planning and exercise of military action. This reasoning is also confirmed by the fact that the breach of the obligations established by the Hague Convention and its Protocols can be only justified in cases of military necessity, which typically pertains to the field of the responsibility of States rather than of individuals.10 As an example, in the Tadić case, the International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY) attached great importance to the relationship between the official government and the individuals that perpetrated crimes, such as the beating of prisoners. In fact, these crimes could be classified as war crimes only if the perpetrators were considered to act under the control of the government as de facto organs.11 The ICTY also confirmed this reasoning in the Strugar case, in which the wanton attacks against cultural properties in the city of Dubrovnik were at issue, and recognized that the superior–subordinate relationship does not necessarily have to arise from the superior’s formal or de jure status.12 Similarly to article 15 of the Second Protocol to the Hague Convention, article 12 of the 2017 Nicosia Convention requires States Parties to establish their jurisdiction over individual criminal responsibility arising from the offences which have been perpet rated either in their territory or by their nationals. In addition, article 13 of the Nicosia Convention also recognizes the liability of legal persons in the interest of which individ uals performed criminal offences. The latter norm may result particularly effective to prosecute those private museums or companies that illicitly import cultural properties. 10 For an analysis of the circumstances precluding wrongfulness and, in particular, military necessity, see Section 4.3. 11 See Prosecutor v Tadić, Case IT-94-1-A, Appeals Chamber, Judgment 15 July 1999, para 98. 12 See Prosecutor v Strugar, Case IT-01-42-T, Trial Chamber, Judgment 31 January 2005, paras 362–6.

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Cultural Heritage and State Responsibility 609 In particular, under the 2017 Convention, States Parties must provide their domestic legal orders with effective instruments for the prevention and repression of crimes affecting cultural heritage. In addition, they are subject to the duty of cooperation to support other parties in the exercise of criminal jurisdiction.13 The obligations that are similar to those laid down in this convention, including the duty of cooperation between States, have been also recognized in the decisions of some domestic courts. As an example, in the Government of Iran v the Barakat Galleries Ltd case, the British Court of Appeal affirmed that the need of States to support each other was acknowledged at the international level to prevent illicit export of cultural objects, as is demonstrated by the existence of this obligation within several international treaties, such as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention). In the light of the duty of cooperation, the British court allowed the return of some cultural objects to Iran even if the title claimed by Iran was based exclusively on Iranian national ownership law.14 The same reasoning was adopted in the United States v Schultz case, where the US Court of Appeals stated that, in order to ensure the effective protection of cultural objects, the US had to recognize the validity of the means of export control that had been established by other States over these objects.15 Thus, although cultural heritage treaties, such as the Nicosia Convention, deal only with individual responsibility, this convention also establishes several obligations, of both a substantive and a procedural nature, with which States must comply and from the breach of which State responsibility may arise.16 Similarly, the omission of the States Parties to the 1954 Hague Convention of the adoption of the measures and conduct required in article 15 of its Second Protocol seems to entail the breach of a treaty obligation from which State responsibility may arise.17

13 See art 21 of the Nicosia Convention. 14 Government of Iran v the Barakat Galleries Ltd, 2009 QB 22 as mentioned by Robert Kirkwood Paterson and Marc-André Renold, ‘Foreign Culture: Export Controls on Material of Foreign Origin’ in James Nafzinger and Robert Kirkwood Paterson (eds), Handbook on the Law of Cultural Heritage and International Trade (Edward Elgar 2014) 571, 584. See also accessed 18 May 2018. 15 United States v Schultz, 333 F.3d 393 (2d Cir. 2003), as reported by Kirkwood Paterson and Renold, ‘Foreign Culture’ (n 14). See also Kelly Yasaitis, ‘National Ownership Laws as Cultural Property Protection Policy: The Emerging Trend in United States v Schultz’ (2005) 12(1) International Journal of Cultural Property 95. 16 For the view that the 2017 Nicosia Convention consists in an instrument promoting solidarity and cooperation between domestic criminal systems compelling States Parties to act in a coordinate manner in order to prevent and punish illicit traffic of cultural properties, see Karolina Wierczynska and Andrzej Jakubowski, ‘Individual Responsibility for Deliberate Destruction of Cultural Heritage: Contextualizing the ICC Judgment in the Al-Mahdi Case’ (2017) 16(4) Chinese Journal of International Law 1, 695. 17 For the view that art 28 of the 1954 Hague Convention provides for a secondary rule compelling States to prosecute the perpetrators of offences against cultural heritage, see Roger O’Keefe, ‘Protection of Cultural Property under International Criminal Law’ (2010) 11(2) Melbourne Journal of International Law 339, at 361. See also Marina Lostal, ‘Syria’s World Cultural Heritage and Individual Criminal Responsibility’ (2015) 3 International Review of Law 1, 11.

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610 Patrizia Vigni Although the presence of norms relating to individual responsibility in cultural heritage conventions must be deemed a step forward in the effective enforcement of these conventions, the lack of corresponding provisions concerning State responsibility appears to be slightly paradoxical if one considers that the majority of the substantive obligations of these conventions recognize the primary accountability of States for the management and preservation of cultural heritage.18 The only provision asserting State responsibility may be identified in article VI of the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (2003 UNESCO Declaration), adopted after the demolition of the Buddhas of Bamiyan by the military and paramilitary forces of the Taliban government of Afghanistan.19 Although this declaration is a typical instrument of soft law and, thus, non-binding per se, it seems to envisage some obligations of customary international law. In particular, article VI of the 2003 UNESCO Declaration provides for State responsibility in cases of both intentional destruction of cultural heritage and failure to prevent such destruction.20 Legal doctrine is divided with regard to the extent of the scope and character of the obligations recognized in article VI of the 2003 UNESCO Declaration. Some legal author believes that customary international law only recognizes both the prohibition of attacking and the duty to prevent attacks against cultural heritage during wartime, while the same obligations would not exist during time of peace.21 In contrast, according to a more persuasive legal tenet, these obligations must be assumed to exist under customary international law both in war and peacetime. In fact, it would be illogical to require States to comply with stricter obligations during armed conflicts than during time of peace.22 Patently, the content of the obligation of preventing the destruction of cultural heritage during peacetime cannot be as precise under customary law as in treaty norms. For example, article 7 of the Hague Convention, which compels contracting States to adopt regulatory measures and prepare special personnel during times of peace in order to prevent damage of cultural property during wartime, only envisages a treaty obligation. However, the general obligation of States to prevent the 18 See for example art 4 of the 1972 UNESCO World Heritage Convention (WHC), art 18 of the 2001 UNESCO Underwater Heritage Convention (UHC), and art 11 of the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage. 19 For a thorough examination of the facts and legal consequences of the Buddhas’s demolition, see Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14(4) European Journal of International Law 619. 20 According to art VI, a State ‘bears the responsibility, to the extent provided for by international law’ when it ‘intentionally destroys or intentionally fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage’. 21 For this view, see Roger O’Keefe, ‘Protection of Cultural Property’ in Dieter Fleck (ed), The Handbook of International Humanitarian Law (Oxford University Press 2008) 462. According to this author, the duty to protect and prevent the destruction of cultural heritage during time of peace would entail only a treaty obligation as sanctioned, for example, in arts 2 and 13 of the Hague Convention and art 5 of its Second Protocol. 22 For this argument see Federico Lenzerini, ‘The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage’ (2003) 13 Italian Yearbook of International Law 131, 139.

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Cultural Heritage and State Responsibility 611 destruction of cultural heritage during peacetime seems to be recognized under customary international law.23 With regard to the 2003 UNESCO Declaration, there are two main reasons why UNESCO Member States agreed to recognize international State responsibility in its article VI. On the one hand, the emotional impact of the brutal destruction of the Buddhas helped spread the conviction that these breaches should be sanctioned at the international level. In particular, UNESCO members wanted to make it clear that States cannot escape responsibility unless they demonstrate they have made efforts to prevent such conduct. Among these efforts, a State must comply with the duty to seek international assistance in the event it is not able to prevent criminal groups from destroying cultural heritage in its territory.24 This issue strictly relates to the matter of the attribution of illicit conduct with respect to States for the purpose of recognizing their international responsibility and is consistent with the R2P principle that has been developing within the international community. Secondly, by means of the 2003 Declaration, UNESCO Member States desired to dissuade criminal perpetrators from repeating this type of conduct, making it clear that these violations may be considered serious breaches of international law and, thus, entail the same legal consequences of international crimes, including, for example, prosecution before criminal tribunals against individuals and countermeasures vis-à-vis States involved. In short, cultural heritage treaty regimes so far only seem to admit the application of international norms on State responsibility with respect to serious offences affecting cultural properties, such as intentional destruction performed by military or paramilitary troops. Nevertheless, once the applicability of international norms on State responsibility is allowed as a consequence of the breach of an international obligation, such applicability cannot be excluded on the basis of the level of seriousness of the breach. Thus, the existence of treaty norms, such as the abovementioned article 38 of the Second Protocol to the 1954 Hague Convention, seems to promote the applicability of international norms on State responsibility with respect to the violation of any obligations concerning cultural heritage.

23 Such a general obligation is also acknowledged by some less ‘cultural heritage-friendly’ scholars, according to whom, in some circumstances, the demolition of cultural heritage may be justified by vital needs. For this view, see Kanchana Wangkeo, ‘Monumental Challenges: The Lawfulness of Destroying Cultural Heritage During Peacetime’ (2003) 28(1) Yale Journal of International Law 183, 273. 24 In fact, art VIII of the 2003 UNESCO Declaration invites States to cooperate to provide, among other things, ‘judicial and administrative assistance, as requested by interested States, in the repression of intentional destruction of cultural heritage’ that has been performed by individuals whose criminal responsibility is sanctioned in art VII of the Declaration.

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3. State Responsibility for Offences against Cultural Heritage in International Humanitarian and International Criminal Law Provisions relevant to the responsibility of the State for breach of obligations relating to the protection of cultural heritage can be found in conventions concerning international humanitarian and international criminal law. As an example, articles 53 and 16 of Protocols I and II to the 1949 Geneva Conventions respectively prohibit acts of hostility directed against cultural objects and places of worship and the use of these objects in support of military efforts. These articles were included in the Protocols with the purpose of preserving cultural heritage during wartime in the interest of civil populations. Section II of Part V of Protocol I provides for a set of rules sanctioning responsibility deriving from breaches of the Geneva Conventions and Protocol I. In particular, article 91 affirms that any party to an armed conflict has the duty to pay compensation in cases of breach of one of the obligations provided for in the Protocol, including those established in article 53 relating to attacks against cultural heritage. Moreover, article 91 also considers States responsible for the illicit conduct of their armed forces. Regrettably, the applicability of this article is quite restricted due to fact that Protocol I only regulates situations occurring during international armed conflicts. Therefore, it is inapplicable with respect to offences perpetrated during both peacetime and non-international armed conflicts, which are regulated by Protocol II. Protocol II does not include a norm dealing with State responsibility corresponding to article 91 of Protocol I. This lacuna demonstrates that the drafters of the 1977 Protocols considered this subject matter as an issue only affecting international relations between States and, thus, not to be treated in the context of merely internal conflicts.25 According to this view, when States do not comply with the obligation of protecting cultural heri tage during non-international conflicts, individuals would be the only persons entitled to invoke the breach of this obligation within the domestic legal orders of transgressing States. However, one must recall that article 16 of Protocol II explicitly recognizes the priority of the 1954 Hague Convention as lex specialis with regard to the issue of the protection of cultural heritage during armed conflicts. This clause of subordination of Protocol II (which also appears in article 53 of Protocol I) allows the application of the norms of the 1954 Convention in the cases in which Protocol II to the Geneva

25 For a similar discrepancy between States’ obligations under art 1(1) of Protocol I and II, see Theodor Meron, ‘The Geneva Conventions as Customary Law’ (1987) 81(2) American Journal of International Law 348, 353 fn 16.

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Cultural Heritage and State Responsibility 613 Conventions does not ensure an adequate regulation of some matters.26 In the present writer’s view, this clause of subordination of the Geneva Protocols should be interpreted so as to imply the priority of the entire regime arising from the Hague Convention, including the 1999 Protocol and, in particular, its article 38 acknowledging State responsibility in the case of the breach of the obligations of the Convention. In fact, although the Hague Second Protocol was adopted twenty-two years later with respect to the 1977 Geneva Protocols and, thus, could not be taken into account by the drafters of the clause of subordination, the evolving and contextual interpretation of the norms of both the Geneva and Hague regimes leads to the conclusion that the very purpose of the clause of subordination is to guarantee the greatest protection of cultural property during armed conflicts—that is, according to articles 53 and 16 of the Geneva Protocols I and II, the protection provided for in the Hague regime as a whole.27 This conclusion is also consistent with the rules of treaty interpretation laid down in article 31 of the 1969 Vienna Convention on the Law of Treaties.28 Moreover, the lack of State responsibility provisions within Protocol II does not affect serious breaches of humanitarian law occurring during armed conflicts of non-international character. In fact, such breaches are prohibited under article 3 of all the Geneva Conventions and, thus, punished through the enforcing instruments of the Conventions themselves.29 Article 3, which is common to all the Geneva Conventions, mainly prohibits cruel physical injuries to the civil population. However, on the basis of an extensive and up-to-date interpretation of the expression ‘outrages upon personal dignity’, mentioned in article 3(1)(c) of the Geneva Conventions, serious attacks against cultural heritage contemplated under article 16 of Protocol II should be considered as unjustifiable conduct under humanitarian law. In line with this reasoning, in the Strugar case the ICTY upheld that the prohibition of the destruction and wilful damage to religious institutions and historic monuments was a customary rule of international humanitarian law that was applicable in both international and internal armed conflicts.30 Finally, the ongoing development of customary international norms and general principles, such as those relating to erga omnes obligations and universal jurisdiction,31 26 One must recall that arts 19 and 22 of the 1954 Hague Convention and its Second Protocol, respect ively, affirm that the regime of the Hague Convention applies to armed conflicts both of international and non-international character. 27 According to art 2 of the Second Protocol to the Hague Convention the ‘Protocol supplements the Convention in relations between the Parties’. 28 For a similar conclusion, see O’Keefe, ‘Protection of Cultural Property’ (n 21) 446. 29 For this view, see Dieter Fleck, ‘Individual and State Responsibility for Violations of the Ius in Bello: An Imperfect Balance’ in Wolff Heintschel von Heinegg and Volker Epping (eds), International Humanitarian Law Facing New Challenges (Springer 2007) 171, 201. 30 See Prosecutor v Strugar (n 12), para 230. 31 The ICJ has upheld that the prohibition of the destruction and damage of cultural heritage is an erga omnes obligation that not only binds the State under the jurisdiction of which the injured cultural property is located but also affects other States acting in the proximity of this property. See Request for Interpretation of the Judgment of 15 June 1962 in the case concerning the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand)

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614 Patrizia Vigni seems to facilitate the recognition of State responsibility arising from the violation of humanitarian law, including articles 53 and 16 of Protocols I and II to the Geneva Conventions. In support of the view that States must prevent and abstain from offences affecting cultural heritage during armed conflicts, whether of international or internal character,32 the UN Security Council has adopted several resolutions mainly concerning the illicit removal and trafficking of cultural objects.33 In these resolutions, the Security Council focuses on the duty of Member States to adopt domestic legislative and operational measures with the aim of punishing the perpetrators of illicit traffic of cultural heritage.34 This statement of the Security Council seems, on the one hand, to echo the provisions of cultural heritage treaties, such as the 1954 Hague and 2017 Nicosia Conventions concerning individual criminal responsibility and, on the other hand, to suggest the extension of the R2P principle with respect to the protection of cultural heritage.35 The condemnation of offences against cultural heritage is also expressed in some instruments of international criminal law. In particular, paragraphs (b)(ix) and (e)(iv) of article 8(2) of the ICC Statute respectively list ‘intentionally directing attacks against buildings dedicated to religion, education, art . . . [and] historic monuments . . . provided they are not military objectives’ among war crimes occurring during armed conflicts of international or internal character. The ICC applied article 8(2)(e)(iv) for the first time in its judgment concerning the destruction of historic buildings in Timbuktu (Mali), perpetrated by the terrorist group of Hesbah, sentencing Al Faqi Al Mahdi, one of the heads of this group.36 The ICC acknowledged the responsibility of Al Mahdi both ‘for International Court of Justice Reports, 2013, para 106. For a thorough analysis of this development of international law, see Chapter 23 in this Handbook. 32 For the view that the most recent UN Security Council resolutions have paved the way for the condemnation of some offences, such as the destruction of cultural heritage, regardless of the fact that such offences have been performed during international or national conflicts or in peacetime as acts of terrorism, see Gregory Fox, Kristen Boon and Isaac Jenkins, ‘The Contributions of United Nations Security Council Resolutions to the Law of Non-International Armed Conflict: New Evidence of Customary International Law’ (2018) 67(3) American University Law Review 649, 692. 33 See, for example, UN Security Council Resolution 1483 (2003) concerning the military intervention in Iraq and establishing the obligation to return cultural heritage that had been illicitly removed, and, most recently, Res 2085 (2012) on the situation and entrenchment of terrorist groups and criminal networks in the north of Mali, Res 2100 (2013) on establishment of the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), Res 2170/2014 on threats to international peace and security caused by terrorist acts by al-Qaeda in Syria, and Res 2347 (2017) on destruction and trafficking of cultural heritage by terrorist groups and in situations of armed conflict that was adopted in the wake of the 38 C/48 UNESCO Resolution dealing with the protection of culture in the event of armed conflict. 34 See UN Security Council Resolution 2199 (n 33). 35 For this view, see Wierczynska-Jakubowski (n 16) 25. International practice also seems to support the extension of the R2P principle to the field of the protection of cultural heritage law. See, for example, 2015 UN General Assembly Resolution A/RES/69/281 ‘Saving the cultural heritage of Iraq’ and the 1999 UN Secretary General Bulletin ST/SGB/1999/13 Observance by United Nations forces of international humanitarian law, which, at para 6.6, prohibits UN forces from attacking, misusing, and pillaging cultural property. 36 ICC, TC VIII, The Prosecutor v Al Faqi Al Mahdi, Judgment, ICC-01/12–01/15–171, 27 September 2016 and ICC, TC VIII, The Prosecutor v Al Faqi Al Mahdi. The ICC also issued an order to establish

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Cultural Heritage and State Responsibility 615 the execution phase of the attack’ and ‘as co-perpetrator’.37 Thus, in the view of the ICC, international criminal responsibility may arise either from the direct activity of a person or from his/her support of the actual perpetrators of a crime. The Al Mahdi case patently envisages an example of individual criminal responsibility.38 In this regard, in its case law, the ICTY has repeatedly recognized that the responsibility of individuals for serious attacks against cultural heritage entails both international crimes against humanity and war crimes.39 However, the types of conduct for which individuals have been sentenced by inter national criminal tribunals do not only entail activities pertaining to natural persons. In fact, the same crimes may be also performed by States.40 Moreover, individuals charged with international crimes are, with the exception of terrorists, in some way related to the State apparatus or to an organized group that may be likened to a public institution.41 For this reason, both international criminal courts and legal tenets currently emphasize the relevance of shared responsibility between States and private actors.42 Although international criminal law is mainly aimed at regulating individual responsibility, State responsibility cannot be excluded when the illicit conduct of a natural person is somehow intertwined with the conduct of a State. For this reason, article 25(4) of the ICC Statute affirms that ‘(n)o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law’. First of all, the conduct of a natural person may be attributed to a State according to diverse legal grounds that will be analysed later in this chapter. In these circumstances, if the individual conduct constitutes an international crime, the State will be considered the perpetrator of this crime.43 For example, the African Commission on Human Rights reparation for the hardship affecting people and properties; see Reparations Order, ICC-01/12–01/15–236, 17 August 2017. For a thorough comment of these ICC decisions, see Wierczynska-Jakubowski (n 16). 37 Prosecutor v Al Mahdi (n 36), Judgment, paras 53 and 59. 38 For a most recent overview of the copious ICTY case law sentencing individuals for the perpetration of crimes against cultural heritage, see, among others, Wierczynska-Jacubowski (n 16) 11–12 and Lostal (n 17) 7. 39 For example, in the Strugar case, the Tribunal upheld that the deliberate and conscious attacks against cultural sites entail war crimes that cannot be considered as less serious breaches of international law than crimes against humanity. See Prosecutor v Strugar (n 12), para 459. 40 For a detailed overview of the issue of crimes affecting cultural heritage, see Federico Lenzerini, ‘Intentional Destruction of Cultural Heritage, Crimes Against Humanity and Genocide: Towards an Evolutionary Interpretation of International Criminal Law’ (2017) 74(3/4) Europa Ethnica 66. 41 For this view, see Pierre Marie Dupuy, ‘International Criminal Responsibility of the Individual and International Responsibility of the State’, in Antonio Cassese, Paola Gaeta, and John Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. II (Oxford University Press 2002) 1085, 1087. 42 For a thorough analysis of the issue of shared responsibility between States and non-State actors, see Jean D’Aspremont, André Nollkaemper, Ilias Plakokefalos, and Cedric Ryngaert, ‘Sharing Responsibility Between Non-State Actors and States in International Law: Introduction’ (2015) 62(1) Netherlands International Law Review 49. 43 See Section 4.1. For the attribution of international criminal conduct to States, see also the Report of the Sixty-ninth session of the International Law Commission commenting the Third Report on Crimes against Humanity of Special Rapporteur Murphy, A/72/10, 48.

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616 Patrizia Vigni declared that the destruction by Ethiopian soldiers of the Stela of Matara, an ancient obelisk located in Eritrea,44 must be considered as a breach, by Ethiopia, of the African Charter on Human and Peoples’ Rights.45 Second, State responsibility may arise from the breach of the obligation to either prevent or punish an international crime, when such a crime occurred under the jurisdiction of a State. In this case, the illicit conduct of the State does not entail an international crime per se, as the ICJ affirmed in the 2007 Genocide case.46 However, the attribution of international criminal conduct to a State is still possible if there is enough evidence that the State was aware of the intention of private persons to perform the crime and did not make any effort to prevent it. In this case, the standard of due diligence of a State is crucial to determining whether or not it can be considered responsible either for an international crime or for the breach of an ordinary international obligation.47 In addition to the provisions of the ICC Statute concerning war crimes, both a 2012 statement of the President of the Security Council48 and Security Council Resolutions 2085 (2012) and 2347 (2017) point out that deliberate attacks against cultural heritage perpetrated during armed conflicts, whether of international or internal character, may be considered as war crimes and, thus, entailing both State and individual responsibility in accordance with international criminal law.49 But, in spite of this interconnection between State and individual responsibility, we must recognize that, while proper international regimes of punishment of individual criminal responsibility have been established and successfully applied in the last two decades, corresponding legal procedures do not yet exist with regard to the ‘multilateral response to State responsibility’ for international crimes.50 44 The dispute between Eritrea and Ethiopia was resolved by means of international arbitration. See Eritrea–Ethiopia Claims Commission—Partial Award: Central Front—Eritrea’s Claims 2, 4, 6, 7, 8 & 22, Decision of 28 April 2004, RIAA XXVI, 115. 45 For an overview of the declaration of the African Commission on Human Rights, see Federico Lenzerini, The Culturalization of Human Rights Law (Oxford University Press 2014) 193. 46 Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (‘Genocide Case’), Judgment of 26 February 2007, ICJ Reports, 2007, paras 325–50. 47 For a view highlighting the difficulty of ascertaining the State’s intent and due diligence standard in cases of international crimes performed by individuals, see André Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility in International Law’ (2003) 52(3) International & Comparative Law Quarterly 615, 634. For an overall analysis of this matter, see also Riccardo Pisillo Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’ (1992) 35 German Yearbook of International Law 9. 48 See the statement by the President of the UN Security Council made on 10 December 2012, S/ PRST/2012/26, UN Security Council Resolution 2085 (2012) concerning the internal armed conflict occurring in Mali, and Resolution 2347 (n 33). 49 For the innovative character of SC Res 2347 (2017)—which, for the first time, includes the protection of cultural heritage among the tasks of a UN mission—see Laura Pineschi, ‘Tutela internazionale del patrimonio culturale e missione di pace delle Nazioni Unite’ (2018) 101(1) Rivista di diritto internazionale 5, 8. 50 For this view, see Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility’ (n 47) 627.

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Cultural Heritage and State Responsibility 617 This lacuna in international humanitarian and international criminal law makes the application of general norms on States responsibility the only suitable instrument for ascertaining whether or not an international crime has been perpetrated by a State during either war or peacetime.51

4. General Norms on State Responsibility and Breaches of International Obligations Concerning Cultural Heritage 4.1 Attribution of Wrongful Acts to States According to article 2 of the Draft Articles, internationally wrongful acts, from which State responsibility arises, occur when two essential elements are present: first, these acts are attributable to a State, the so-called subjective element; and, second, they entail a breach of international law, the objective element. As observed in Section 3 with regard to international humanitarian law and inter national criminal law, the attribution of a conduct to a State may be controversial because State activities are always the result of the action of individuals that may be linked to a State by different connecting factors. The Draft Articles acknowledge several legal grounds allowing the attribution of a wrongful act to a State. First of all, the responsibility of a State arises from the conduct of its organs, as provided by article 4 of the Draft Articles. Thus, when a domestic organ, whether legislative or administrative, central or local, does not adopt preventative measures required under international law for the protection and conservation of cultural heritage, this may generate the responsibility of the State to which this organ belongs.52 As to this issue, certain cultural heritage treaties show some peculiarity. For example, articles 34 of the WHC and 35 of the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage provide for the so-called ‘federal clause’, on the basis of which the responsibility of a federal State is excluded when its constituent States have the exclusive competence of managing cultural heritage under domestic law and the federal State has made its Member States aware of the duty to adopt implementing measures of international obligations. These norms must be deemed to be lex specialis with respect to general 51 For the need to apply general norms on State responsibility to cases of responsibility for breaches of humanitarian law in order to fill the lacunae of humanitarian law treaties, see Sassoli, ‘State Responsibility’ (n 2) 404. 52 For example, the ICJ recognized the obligation of Thailand to restore, to Cambodia, the objects that had been removed from the Temple by the Thai authorities during their occupation of that area in the Temple of Preah Vihear: Cambodia v Thailand (n 31), ICJ Reports, 1962, 35.

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618 Patrizia Vigni international law, under which the wrongful behaviour of constituent States always entails the responsibility of federal States.53 The priority of the provisions of special character concerning the attribution of responsibility is also recognized in article 55 of the Draft Articles. Apart from this exceptional case, the conduct of State organs is considered as an act of the State. According to general international law, a wrongful behaviour of an organ may be attributable to a State even in the cases in which this behaviour also entails the responsibility of the individual organ. In fact, several international courts and tribunals have affirmed that State responsibility cannot be excluded by the recognition of individual criminal responsibility due to the strict link existing between the State and its organs. As an example, in the judgment relating to the preliminary objections of the Genocide case, the ICJ acknowledged that individual and State responsibility may co-exist when inter national crimes are at issue.54 Similarly, in the Furundzija case, the ICTY upheld that State responsibility arises when State organs perpetrate or omit to punish international crimes performed by individuals.55 The same reasoning is also espoused in article 58 of the Draft Articles. Nevertheless, some doubts still arise in literature with regard to cases in which lower State organs have perpetrated international crimes the occurrence of which is determined by the existence of a specific psychological element, such as dolus specialis with respect to genocide, or with reference to the clear intent to destroy in crimes against cultural heritage. Some legal authors believe that a transfer of intention from an individual organ to his/her State cannot be automatic in particular when organs do not occupy the highest positions in the State apparatus. Thus, while the attribution of ordinary breaches of international law of organs is immediate vis-à-vis the State to which these organs belong, when the conduct of organs entails aggravates responsibility, a stricter standard of proof would be required in order to confirm the interconnection between the State apparatus and the conduct of its organs.56 However, in the view of the ILC, article 4 of the Draft Articles must be applied regardless of any distinction between ordinary or aggravated responsibility arising from the different conduct of State organs.57 This strict 53 For the view that the independence of constituent States with respect to the federal State is not a reason that justifies the non-attribution of a conduct to the federal State, see the Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC Fifty-third Session Report (A/56/10) 42. 54 Case concerning application of the Convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ Reports, 1996, para 32. 55 In this case the ICTY acknowledged that ‘State responsibility may ensue as a result of State officials engaging in torture or failing to prevent torture or to punish torturers’. See The Prosecutor v. Anto Furundzija, Trial Chamber, Judgment 10 December 1998, IT-95–17/1-T, 1998, para 142. For an overview of this matter, see Dupuy, ‘International Criminal Responsibility’ (n 41) 1096. 56 For the view that the responsibility for wrongful acts of heads of States and other high officers may be easily attributed to States while crimes of lower organs can be unknown by a State and, thus, their attribution to this State may require higher standards of proof, see Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility’ (n 47) 632. 57 See Commentary to art 4 of the Draft Articles (n 53) 41.

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Cultural Heritage and State Responsibility 619 position of the ILC has been part of the many concerns of States that have so far delayed the conversion of the Draft Articles into a binding convention.58 Nevertheless, some recent case law seems to recognize the rule laid down in article 4 of the Draft Articles. In the arbitral award concerning the destruction of the Stela of Matara, the Eritrea–Ethiopia Claims Commission acknowledged the responsibility of Ethiopia even though it was not certain whether the destruction was authorized by the government or was the result of the autonomous decision of some soldiers.59 The direct attribution of responsibility to a State also affects the conduct of private persons or entities exercising governmental authority on behalf of this State, as article 5 of the Draft Articles asserts. This is particularly relevant as to the issue of the conservation of cultural heritage in those cases in which States have formally transferred the competence of managing their cultural properties into the hands of private agencies. As an example, one can mention the cases in which private persons have been designated by a State to ensure the conservation of buildings of outstanding universal value while, under article 4 of the WHC, this obligation of conservation entails a primary duty of a State.60 The concern for the privatization and private management of cultural property has been raised in Recommendation 1730 (2005) of the Parliamentary Assembly of the Council of Europe. In particular, paragraph 6 of this resolution upholds that privatization and private management should not ‘absolve the state from its responsibility to ensure’ the protection of cultural heritage.61 Moreover, the violation of the international obligation to protect cultural heritage may occur during armed conflicts at the hands of private persons and entities, such as military contractors. In these circumstances, the ground of attribution of the illicit conduct of the contractors with respect to the contracting State may vary according to the strength of the connection between the State and contractors. The attribution of the conduct of private military contractors to the State is based on article 5 of the Draft Articles, which relies on the criterion of the contractors being empowered to exercise governmental authority by the law of the State. Conversely, in the cases in which private military contractors enjoy wide autonomy and do not participate in the exercise of governmental functions, State responsibility is founded on the same ground as responsibility deriving from illicit conduct of common private actors. These diverse bases of attribution of illicit conduct may generate some lacunae in the determination of State responsibility even in cases of serious offences perpetrated by private contractors against

58 For an overview of the problems following the adoption of the Draft Articles, see James Crawford and Simon Olleson, ‘The Continuing Debate on a UN Convention on State Responsibility’ (2005) 54(4) International & Comparative Law Quarterly 959, and Gaja, ‘Primary and Secondary Rules’ (n 3) 981–92. 59 Stela of Matara case; see Eritrea–Ethiopia Claims Commission—Partial Award (n 44) 149. 60 For the increasing privatization of the management of cultural heritage, see Kurt Siehr, ‘Immovable Cultural Heritage at Risk: Past—Present—Future’ (2014) 21(3) International Journal of Cultural Property 267, 274. 61 Recommendation 1730 (2005) on ‘The private management of cultural property’, Council of Europe Parliamentary Assembly Standing Committee, 25 November 2005.

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620 Patrizia Vigni cultural heritage.62 For this reason, some codes of good practices, such as the so-called Montreux Document, have been adopted in recent years in order to guide States in the selection and training of private military companies that are going to operate on behalf of the States themselves.63 In general terms, the conduct of private persons may be only attributed to a State when these persons act under the instructions or control of the State itself. This is the rule stated in article 8 of the Draft Articles. In these circumstances, the behaviour at issue is a private conduct that is only indirectly recognized to be the conduct of the State in light of the effective control exercised by the State vis-à-vis private actors. Thus, the existence of this relationship must be demonstrated in order to allow the attribution of the wrongful behaviour to a State. Nevertheless, article 8 of the Draft Articles does not establish a specific standard of control that may vary according to the diverse violations of international law. In the Nicaragua v US case, the ICJ endorsed the so-called ‘effective control’ standard on the basis of which State responsibility occurs when the State has control over ‘the operations in the course of which the alleged violations were committed’.64 This strict standard is aimed at avoiding the responsibility of States for the conduct of private persons that cannot be reasonably foreseen and, thus, prevented. This standard of control differs from the approach adopted with regard to individual 62 For the diverse legal grounds of attribution of the conduct of private military contractors vis-à-vis the contracting State, see Carsten Hoppe, ‘Passing the Buck: State Responsibility for Private Military Companies’ (2008) 19(5) European Journal of International Law 989, 991–2. For a thorough analysis of the issue of the involvement of private military contractors in armed conflicts, see Ana Vrdoljak, ‘Women and Private Military and Security Companies’ in Francesco Francioni and Natalino Ronzitti (eds), War by Contract: Human Rights, International Humanitarian Law and the Regulation of Private Military and Security Companies (Oxford University Press 2011) 280–98. For the view that private contractors generally are not considered to be part of a State’s organization as is demonstrated by the fact that they cannot invoke functional immunity as State organs, see Francesco Salerno, ‘Genesi e usi della nozione di organo nella dottrina internazionalista italiana’ (2009) 92(4) Rivista di diritto internazionale 954. In contrast, another legal author recognizes that a particularly strict relationship between a State and private contractors may allow the latter to be considered as State organs and, thus, to attribute private illicit conduct with respect to States according to art 4 of the Draft Articles: see Mamadou Hebie, ‘L’attribution aux États des actes des sociétés militaires privées et de leurs employés en vertu de l’article 4 du Projet d’articles sur la responsabilité internationale des États’, in Rudiger Wolfrum (ed), Select Proceedings of the Third Biennial Conference of the European Society of International Law (Hart Publishing 2008) 598. 63 See the Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict, Montreux, 17 September 2008. The Document was adopted by seventeen States, including the UK and the US, and was recorded by the UN General Assembly under Agenda item 76 concerning the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, A/63/467–S/2008/636. For a detailed analysis of this document, see Ana Vrdoljak, ‘Cultural Heritage, Human Rights and the Privatisation of War’ in Andrea Durbach and Lucas Lixinski (eds), Heritage, Culture and Rights: Challenging Legal Discourses (Hart Publishing 2017) 84. For a comprehensive analysis of the role of international law in the regulation of private military contractors, see Francioni and Ronzitti, War by Contract (n 62). 64 This concept was formulated by the ICJ for the first time in the Nicaragua v USA case in order to exclude the responsibility of the US for the activities that were performed by paramilitary groups without any specific mandate of the US government. See Military and Paramilitary Activities Case (Nicaragua v USA), ICJ Reports, 1986, paras 101–2.

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Cultural Heritage and State Responsibility 621 criminal responsibility, where the concept of ‘overall control’ was formulated by the ICTY in the Tadić case.65 The ‘overall control’ theory is based on the assumption that when a State has complete control over an organization or group of private persons, its responsibility cannot be excluded for all the activities performed by these persons even if some of these activities have not been expressly required by the State. However, the ICJ rejected this theory in the 2007 Genocide case, reaffirming the abovementioned ‘effect ive control’ standard.66 Other factors must be taken into account in order to determine whether or not a private conduct may be attributed to a State. As affirmed in Section 3 with respect to international criminal law, the ascertainment of the standard of due diligence of States is essential to determine whether a State has violated the obligation of preventing serious breaches of international law, in particular when these breaches occur during armed conflicts, such as the already-mentioned case of violations perpetrated by private military contractors or by foreign paramilitary troops or insurrectional movements supported and led by that State.67 Moreover, the intent of a State may be also crucial to establishing whether or not private conduct may be attributed to that State. This is particularly so in cases in which the intent of the private actors is relevant to defining the type of breach that has been perpet rated. For example, when private military companies or insurrectional movements destroy cultural properties while acting under the control of a State, such destruction may entail an ordinary breach of international law if it results from the unforeseen consequence of the military action of private groups. Conversely, the destruction of cultural heritage is considered a war crime under humanitarian, criminal, and general inter national law when it is the result of a deliberate action of devastation. Thus, while in the cases of ordinary violations perpetrated by private actors the standard of ‘effective control’ asks for the ascertainment of the existence of a strict link between the State and activities performed by the private actors, a more careful analysis both of the intent and due diligence of States is required when the attribution of more serious breaches, such as international crimes, is at issue.68 This analysis also appears necessary to determine whether the conditions exist to affirm the shared responsibility between States and non-State actors.69 A peculiar case of attribution of a wrongful conduct to a State occurs when this conduct has been carried out by an insurrectional movement and is attributed to the new State originating from the insurrection. Actually, under article 13 of the Draft Articles, 65 See Prosecutor v Tadić (n 11). 66 Genocide Case (n 46), paras 238–41. 67 The scope of due diligence may vary according to the different international obligations referring to it. For this view, see Elena Fasoli, ‘State Responsibility and the Reparation of Non-Economic Losses related to Climate Change under the Paris Agreement’ (2018) 101(1) Rivista di diritto internazionale 94. 68 For a view highlighting the relevance of due diligence for the attribution of the conduct of private actors to States, see D’Aspremont et al., ‘Sharing Responsibility’ (n 42) 54. 69 For the possibility of excluding the shared responsibility between States and private actors as a result of the application of the standards of due diligence with respect to States, see Kimberley Trapp, ‘Shared Responsibility and Non-State Terrorist Actors’ (2015) 62(1) Netherlands International Law Review 141, 144.

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622 Patrizia Vigni international responsibility should only arise from the breach of norms that are in force for the State that is charged with such breach. Since the newborn State did not exist at the time of the occurrence of the breach, it should not be considered responsible. However, article 10 of the Draft Articles recognizes the responsibility of the new State by reason of the continuity existing between the insurrectional movement and the government of this State. This norm may be useful to identify the State to which an illicit conduct may be attributed in the cases in which insurrectional movements had breached the obligations concerning cultural heritage while these movements were fighting for their independence and, ultimately, in their successful achievement of Statehood. This type of attribution of the conduct of private actors has been also acknowledged by the ICJ, in the Croatia v Serbia case with regard to the violations of customary law perpet rated by the insurrectional group that, subsequently, became the official government of Serbia. Nevertheless, article 10 was not scrutinized by the ICJ in depth in this case because the court had already denied its jurisdiction over the conduct of insurrectional groups, to which this ground of attribution should have been applied. In particular, the ICJ did not verify whether or not the rule established in article 10 of the Draft Articles reflects a norm of customary nature.70 The criterion of attribution of responsibility established in article 10 of the Draft Articles is scarcely applied in international practice mainly because of political reasons—namely, the purpose of facilitating the consolidation and development of newly born States. Thus, the alternative is preferred of prosecuting and punishing individuals through criminal law mechanisms, whether of national or international character.71 Finally, the attribution of a wrongful behaviour to a State may occur as a consequence of the interference of this State with respect to the conduct of another State. Articles 16, 17, and 18 of the Draft Articles establish that, in the cases of assistance, control, or coercion over the commission of a wrongful act of another State, such act is also attributable to the controlling or coercing State. However, the terms ‘control’ and ‘coercion’ are not synonyms. Assistance and control implies the concrete possibility of the assisted or controlled State resisting or contravening the directives of the assisting or controlling State and, thus, of escaping responsibility. Conversely, in the case of coercion the performance of the wrongful conduct is unavoidable for the wrongdoer State. The major difference between these situations is identified in the diverse modalities of attribution of illicit conduct. Under articles 16 and 17, the wrongful behaviour may be 70 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), ICJ Reports, 2015, para 105. 71 With regard to State practice, only some French courts implicitly seem to have acknowledged the responsibility of the newborn States for the wrongful acts of insurrectional movements. See, for example, Conseil d’Etat, 2/6 SSR, Hespel case no. 11092, 5 December 1980, and Conseil d’Etat, Grillo case no. 178498, 28 July 1999, as quoted by Patrick Dumberry, ‘New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement’ (2006) 17(3) European Journal of International Law 615. For a view recognizing the scarce application of art 10 of Draft Articles in international practice, see also Sassoli, ‘State Responsibility’ (n 2) 410.

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Cultural Heritage and State Responsibility 623 attributed to the assisting or controlling State only if it is bound by the international obligation that has been violated by the actions of the assisted or controlled State. Thus, if the obligation that has been violated belongs to a treaty to which the assisting or controlling State is not a party, the latter State cannot be considered responsible for the breach of such obligation as a result of the application of the pacta tertiis principle. In these circumstances, the breach of treaty provisions may only be attributed to the assisted or controlled State. Conversely, under article 18, the coercing State is considered responsible for the breach of international norms regardless of the fact that it is not bound by these norms. This consequence is due to the fact that coercion usually precludes the attribution of responsibility to the coerced State. In the ILC’s view, the recognition of the unconditional responsibility of the coercing State is an act of fairness with respect to the victims of the wrongful behaviour of a coerced State, the responsibility of which is precluded under international law. While the case in which a State assists or exercises control over another State perpet rating a breach of international law is quite common, the coercion of States may appear rare in the contemporary international community, as the ILC has affirmed in its commentary of article 18.72 Nevertheless, domestic instability of many States facing long internal conflicts or economic crises may lead to a weakening of the capacity of these States to oppose external pressure of third States. Thus, the recognition of the responsibility of weak or failed States may not only be considered unfair with respect to these States but also appears to be ineffective for the purpose of ensuring the compliance with international obligations, the breach of which is ascribed to weak States.73 In these circumstances, the advocates of the R2P doctrine envisage the right of third States to intervene in order to preserve fundamental rights.74 Articles 17 and 18 of the Draft Articles may be helpful for the attribution of wrongful behaviours affecting cultural heritage—for example, when a State encourages or, even worse, obliges another country to export parts of its cultural heritage illicitly. As affirmed in this section, in the case of mere assistance or control over the perpetration of illicit trade, the assisting or controlling State may still circumvent the attribution of responsibility for this wrongful act if it is not a party to the international treaty establishing the obligation that has been infringed, such as, for example, the 1970 UNESCO Convention or the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (hereafter 1995 UNIDROIT Convention). Thus, it appears to be very important to identify the situations in which weak States do not have any concrete means to oppose the instructions of a third State of removing or destroying cultural properties. In these cases, the application of article 18 of the Draft Articles, to the extent that international treaty obligations may become binding vis-à-vis 72 ILC Report (n 53) 69–70. 73 For the relevance of the incapacity of failed and weak States of opposing to the external pressure of third State and non-State actors for the purpose of the attribution of illicit conducts, see Trapp, ‘Shared Responsibility’ (n 69) 154–5. 74 For this view, see Chapter 23 in this Handbook.

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624 Patrizia Vigni third States, would be extremely beneficial for the achievement of the final objective of safeguarding cultural heritage. Finally, some scholars, and the ICJ,75 have recently suggested that article 16 of the Draft Articles may be also beneficial to recognize State responsibility on the ground of the complicity occurring between State and private actors—namely, when private persons act autonomously, but concertedly with a State, and the State–private relationship cannot be classified according to the ‘effective control’ standard. Although international law has traditionally recognized scarce autonomy of non-State actors, the role of private persons has undeniably increased in recent times in terms of participation in inter national policy, as the proliferation of private military companies and the increasing involvement of unofficial armed groups have demonstrated, with regard to illicit conduct affecting cultural heritage, as well. In conclusion, the foregoing analysis of the issue of the attribution of illicit conduct with respect to States shows that the enforcement of the substantive obligations relating to the protection of cultural heritage can be most effectively achieved when the concretely responsible actors are identified.

4.2 Substantive Aspects of the Breaches Affecting the Obligations Relating to Cultural Heritage The second constitutive element of international State responsibility is the wrongful conduct of the State resulting in the breach of an international obligation. Under article 12 of the Draft Articles, the definition of international obligation includes any type of duties established by international norms, whether of customary or treaty character. In the light of this definition, a wrongful act affecting cultural heritage occurs in the case of the breach of international obligations aimed at preserving cultural properties both in peace and wartime and entailing either ordinary or serious violations of international law, such as war crimes or crimes against humanity. Although this chapter is not aimed at examining the content of the primary norms relating to cultural heritage, some substantive aspects of these norms must be nevertheless taken into account in order to understand whether or not State responsibility occurs.76 First of all, the different scope of the definition of ‘cultural heritage’ may entail diverse obligations, for the violation of which State responsibility may arise. For example, while article III of the 2003 UNESCO Declaration concerning the Intentional Destruction of 75 See Genocide Case (n 46), paras 418–36. For an analysis of the issue of complicity as it results in the Genocide Case, see Eduardo Savarese, ‘Complicité de l’etat dans la perpétration d’actes de génocide: le notions contiguës et la nature de la norme en marge de la décision application de la convention sur la prévention et la répression du crime de génocide (Bosnie-Herzégovine c. Serbie et Monténégro)’ (2007) 53 Annuaire Français de Droit International 280. 76 For the need for the contextual analysis of primary and secondary rules in order to ascertain whether or not State responsibility occurs, see Gaja, ‘Primary and Secondary Rules’ (n 3) 984.

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Cultural Heritage and State Responsibility 625 Cultural Heritage compels States to adopt measures aimed at preventing the destruction of any object or sites pertaining to cultural heritage, article VI of the Declaration only recognizes State responsibility in the case of the intentional destruction ‘of cultural heri tage of great importance for humanity’. Thus, the violation of the latter obligation patently envisages a more serious breach of international law.77 Moreover, the time in which the conduct of a State affecting cultural heritage occurs, whether wartime or time of peace, may be determinative in ascertaining the wrongfulness of this conduct. For example, international humanitarian law provides for very precise obligations that are aimed at preventing the damage of cultural heritage during armed conflict, such as the compliance with the conduct required in article 4 of the Hague Convention. Conversely, substantive norms regulating the protection of cultural heritage in time of peace, like article 4 of the WHC, establish a duty of protection of very general content that may be more easily circumvented. Moreover, the presence of damage may be necessary to classify a conduct as a breach of international law in some circumstances, such as in the case of the violation of the duty to preserve cultural heritage. In fact, the breach of this obligation does not occur as long as no harm affects cultural properties or rights and interests on them, even in cases in which a State does not make any effort to safeguard them. Conversely, damage does not seem to be required for the violation of the prohibition of performing ‘acts of hostility directed against the historic monuments’ as provided for in articles 53 and 16 of Protocols I and II to the Geneva Conventions. Thus, the deliberate bombing of an area where historic properties are located would per se entail a breach of the obligation established in these articles even if this conduct did not bring about detrimental effects.78 As to less serious infringements concerning cultural heritage, State responsibility may arise as a consequence of the mere omission of complying with the obligations of procedural character, such as the duty of States to consult, adopt preventative measures, or submit periodical reports to international bodies. As an example, the non-compliance with the obligation of reporting to the World Heritage Committee, as required by article 29 of the WHC, entails a breach of international law in itself, irrespective of the occurrence of concrete damage with respect to the other parties to this convention. In addition, the examination of the State’s intention and due diligence, which cor respond to the so-called psychological element, may be relevant to ascertaining whether or not a breach of an international obligation has occurred. We have already analysed 77 Similarly, the delimitation of the scope of the definition of cultural heritage appears to be crucial to recognize State responsibility according to the Hague Convention and its Protocols. While art 1 of the Convention establishes the obligation of providing general protection for ‘property of great importance to the cultural heritage of every people’, art 10 of the Second Protocol to the Hague Convention requires States Parties to ensure the enhanced protection of ‘cultural heritage of the greatest importance for humanity’. 78 For this view, see Michael Bothe, Karl Partsch, and Waldemar Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Convention of 1949 (Martinus Nijhoff 2013).

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626 Patrizia Vigni the crucial role that these factors play for the attribution of illicit conduct to the State. Although, in the ILC’s view,79 the psychological element mainly pertains to the ‘primary’ rules,80 some conduct resulting in the intentional destruction of cultural heritage can amount to a wrongful act only when the intent of the wrongdoer is proven. Under international criminal and humanitarian law, these breaches entail international crimes against humanity or war crimes for which clear intent may be required. Conversely, the demolition of cultural properties, which is not the result of an action or omission by the State, may give rise to the responsibility of that State simply on the basis of breach of due diligence. For this reason, in the Strugar case, the ICTY considered that the intention of the wrongdoers in targeting the town was an essential element in order to classify the shelling of the Old Town of Dubrovnik as a war crime.81 A further substantive character of wrongful acts that may be taken into account to ascertain the occurrence of a breach of international law and, thus, State responsibility concerns the distinction between completed and continuing breaches of law, as provided for in article 14 of the Draft Articles. While completed wrongful acts entail breaches of law taking place at a specific moment, continuous breaches consist of behaviours that must necessarily last for a certain period of time.82 These categories of wrongful acts may also affect cultural heritage. As an example, the destruction of an artistic property entails a completed breach because the wrongful behaviour begins and ends at the same time. On the other hand, the omission of the duty to adopt measures for the preservation of cultural heritage consists in a continuing breach that lasts as long as the negligent behaviour of a State persists. The main difference between completed and continuing wrongful acts consists of the time and modalities of their cessation. In particular, continuing wrongful acts only come to an end when the responsible State has carried out all the activities that are necessary to achieve the goal established by the international obligation that was violated. Thus, while the seriousness of completed wrongful acts emerges from the acts themselves, the persistence of continuing breaches may increase the negative effects and, consequently, the seriousness of these breaches. This is particularly so with regard to the violation of the obligation of adopting preventative measures for the conservation of cultural heritage. In fact, the length of the duration of this violation may bring about irreparable losses for cultural heritage. Thus, examination of the substantive aspects of wrongful conduct affecting cultural heritage is not only essential to ascertain in which circumstances such conduct entails State responsibility but also helps to determine the level of gravity of alleged violations and, thus, to draw a demarcation between ordinary and serious breaches of inter national law. As to the Draft Articles concerning State responsibility, Chapter III of Part II only recognizes the need to distinguish between ordinary and serious breaches of international law with regard to the issue of the legal consequences arising from the occurrence of these breaches. In particular, according to article 41 of the Draft Articles, 79 See ILC Report (n 53), 34. 80 See Gaja, ‘Primary and Secondary Rules’ (n 3) 983. 81 See Prosecutor v Strugar (n 12) para 214. 82 See ILC Report (n 53) 59–60.

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Cultural Heritage and State Responsibility 627 the serious breach by a State of a peremptory norm may also generate duties for other States, such as the obligation of cooperating to bring to an end such breach and the prohibition of recognizing as lawful the situations originated from the breach itself. Article 40 of the Draft Articles also provides for a definition of serious breaches of law. The scope of this definition is very narrow because it qualifies both the characteristics of the violations, which must be gross and systematic, and the types of norms of international law the breach of which may give rise to the consequences established in article 41 (peremptory norms). The reference to the terms of ‘gross and systematic violations’ and ‘peremptory norms’ at first sight seems to identify a narrower group of violations among the already limited category of peremptory norms. This might lead one to believe that some grave violations perpetrated against cultural heritage would remain outside the scope of the Draft Articles. Nevertheless, although the existence of peremptory norms relating to cultural heritage is not yet generally recognized,83 some violations affecting cultural property have already been categorized as serious breaches of international law both in international treaties and in case law. As an example, in the abovementioned Strugar, Stela of Matara, and Al Mahdi cases, the ICTY, the Eritrea–Ethiopia Claims Commission, and the ICC respectively upheld that the intentional destruction of cultural property had to be considered as a serious violation of international law due to the fact that the attacks had been perpetrated against specially protected sites, the conservation of which should have been granted in the interest of peoples.84 In fact, according to their constitutive instruments, these tribunals and court only have jurisdiction with regard to serious breaches of international criminal and humanitarian law. Thus, articles 40 and 41 of the Draft Articles may help to confirm the view that a distinction between ordinary and serious breaches of law is necessary, in particular in the field of cultural heritage where the interests at issue pertain not only to States but also to individuals, communities, and the international society as a whole. In short, the content of international obligations and the modalities in which the breaches of such obligations occur may affect the application of the ‘secondary rules’—that is, the norms on State responsibility. It is, therefore, essential to ascertain the concrete features of a wrongful act in order to facilitate the prevention and punishment of the violations of the international obligations concerning cultural heritage, such as, in particular, the most serious breaches that may entail the disappearance of unique cultural pieces or sites, especially those of exceptional universal value.

83 For this matter, see Chapter 23 in this Handbook. 84 See Prosecutor v Strugar (n 12), para 232, the Stela of Matara case (Eritrea–Ethiopia Claims Commission—Partial Award (n 44), para 113, and Prosecutor v Al Mahdi (n 36), paras 14–18. For an overview of ICTY case law sanctioning serious breaches against cultural heritage, see WierczynskaJakubowski (n 16) 12.

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4.3 Circumstances Precluding State Responsibility for Offences against Cultural Heritage Once the breach of an international obligation occurs and is attributed to a State, a wrongful act exists and legal consequences can take place unless the wrongdoer State demonstrates that its conduct is justified by one of the circumstances precluding wrongfulness provided for under international law. These circumstances apply to any breach of international law and, thus, should be also valid for the violation of the obligations concerning cultural heritage. Nevertheless, both cultural heritage, as a whole, and its distinct components are deemed to be goods of special interest under international law. Cultural properties are not treated as ordinary belongings in international and domestic law. Moreover, the existence of several multilateral conventions safeguarding cultural heritage in the interest of individuals, peoples, and the international community as a whole demonstrates that the breaches of international obligations relating to cultural heritage must be treated more severely than other violations of international law. This severe approach also affects the application of the circumstances precluding wrongfulness. Actually, art icle 26 of the Draft Articles already establishes a general limitation with respect to these circumstances—that is, the exclusion of their application in cases of breach of peremptory norms. As already indicated, the category of peremptory norms is fairly narrow, and obligations relating to the respect and protection of cultural heritage have not thus far reached this category. Nevertheless, one cannot exclude that the development of international law may soon lead to the recognition of the status of peremptory norms with respect to some obligations relating to cultural heritage, such as, for example, the prohibition of the intentional destruction of cultural objects of universal value.85 Under article 20 of the Draft Articles, the consent of a State may justify the illicit conduct of the wrongdoer only if this conduct entails an ordinary breach of international law and the State granting the consent is the only entitled person to authorize the derogation from the international obligation at issue.86 These types of bilateral obligations are quite rare in cultural heritage law due to the abovementioned special nature of the interests involved. Thus, the violation of the international obligations relating to cultural heritage which a State may owe to other States, individuals, and/or the international community as a whole, as affirmed, for example, in articles 2(3) of the 2001 UNESCO Underwater Cultural Heritage Convention (hereafter UHC), cannot be validly authorized by the mere consent of a State even if such violation does not entail a breach of a

85 For a detailed exam of the development of peremptory norms relating to cultural heritage, see Chapter 23 in this Handbook. 86 For the view that consent is valid only if it is granted by all the right-holders, see ILC Report (n 53) 73 and Ademola Abass, ‘Consent Precluding State Responsibility: A Critical Analysis’ (2004) 53(1) International & Comparative Law Quarterly 211, 215–16.

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Cultural Heritage and State Responsibility 629 peremptory norm.87 As an example, the infringement of the ban of commercial exploitation of cultural objects at sea that is provided for in Rule 2 of the Rules annexed to the UHC cannot be validly authorized by a State on the allegation that these objects are, for example, located in a marine area under its jurisdiction. The non-commercialization of underwater cultural heritage is an obligation that States Parties to the UHC must ensure for the sake of conservation of the integrity of such heritage and for the benefit of humanity.88 Other circumstances precluding wrongfulness, such as force majeure, self-defence, distress, and necessity, also operate in a very stringent manner. Under article 23 of the Draft Articles, force majeure excludes the responsibility arising from the involuntary wrongful behaviour of a State as a result of the occurrence of an external irresistible force or unforeseen event, such as devastating natural phenomena or absolute conditions of coercion. The pleas of self-defence, distress, and necessity, provided for in articles 21, 24, and 25 of the Draft Articles, only allow the preclusion of wrongfulness of intentional behaviours that were performed as the only way to safeguard human lives or other essential interests.89 In addition, some international treaties of humanitarian law, such as the Geneva Conventions, exclude the applicability of these legal grounds of preclusion with respect to the breaches of the obligations provided therein, the so-called obligations of total restraint. In fact, humanitarian law is, in itself, aimed at preserving essential interests, the safeguarding of which does not allow any exception. Among these obligations, the duty to protect cultural objects and sites, established in articles 53 and 16 of Protocols I and II to the Geneva Conventions, is worth mentioning. Special attention must be paid to the waiver of military necessity with regard to the protection of cultural heritage during armed conflicts.90 According to the majority of 87 In this regard, some legal authors have developed the concept of ‘legal injury’, according to which the breach of the obligations affecting the general interest also brings about the non-material and non-economically quantifiable damage that States other than the concretely injured State may suffer as a consequence of the mere occurrence of the violation. For this view, see Brigitte Stern, ‘Et si on utilisait la notion de préjudice juridique? Retour sur une notion délaissée à l'occasion de la fin des travaux de la C.D.L sur la responsabilité des États’(2001) 47 Annuaire Français de Droit International 3 and Fasoli (n 67) 111. 88 See Rules concerning activities directed at underwater cultural heritage, Annex to the UHC. For a view highlighting the general interest in the protection of underwater cultural heritage according to the UHC, see Francesco Francioni, ‘Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity’ (2004) 25(4) Michigan Journal of International Law 1209. 89 For the view that an action of self-defence must comply with the requirements of proportionality and necessity as well as the obligations of total restraint in order to be considered to be lawful, see ILC Report (n 53) 75. For a detailed examination of this matter, see Derek Bowett, Self-Defence in International Law (Praeger 1958). 90 For a thorough analysis of this issue, see Gabriella Venturini, ‘Necessity in the Law of Armed Conflicts and International Criminal Law’ (2010) 41 Netherlands Yearbook of International Law and Berenika Drazewska, Military necessity in international cultural heritage law: lessons learned from inter national humanitarian law, international criminal law and international environmental law (PhD thesis, Department of Law, European University Institute, Florence, 2016).

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630 Patrizia Vigni legal doctrine, military necessity is a constitutive element of a conduct that makes such conduct lawful in itself.91 As a consequence, belligerent States may invoke the waiver of military necessity only if it is expressly recalled in the norms of international humanitarian law.92 Conversely, circumstances precluding wrongfulness apply to the breach of any international rule, irrespective of its content. Nevertheless, for the purpose of the present chapter, military necessity will be analysed in conjunction with circumstances precluding wrongfulness by reason of the fact that the application of both these types of justifications may result in the failure of protecting cultural heritage, which, as repeatedly affirmed, entails an interest of general nature. Among international norms affecting the protection of cultural property during armed conflicts, articles 4(2) of the Hague Convention,93 2(d) and 3(b) of the ICTY Statute,94 and 8(2)(a)(iv) of the ICC Statute allow States to invoke this waiver. The only concrete attempt at defining military necessity with respect to cultural heritage can be identified in article 6 of the Second Protocol to the Hague Convention, which establishes that ‘imperative’ military necessity may excuse an attack on a cultural object if this object has been transformed into a military objective and the attack is the only feasible alternative to obtain military advantage.95 Conversely, articles 52 and 53 of Geneva Protocol I formulate the concept of ‘military objective’ on the basis of which attacks against civilian and cultural objects, respectively, may be justified.96 The ICTY has interpreted the notion of ‘military necessity’, mentioned in articles 2(d) and 3(b) of its Statute, consistent with articles 52 and 53 of Protocol I to Geneva Conventions so as to argue that the waiver of military necessity and the justification of

91 Some other scholars believe that military necessity is a general exception, such as other circumstances precluding wrongfulness, that may be invoked regardless of the fact that a norm expressly mentions it. See Hilaire McCoubrey, International Humanitarian Law: Modern Development in The Limitation of Warfare (Ashgate, 1998). For an overview of legal doctrine relating to military necessity, see Craig Forrest, ‘The Doctrine of Military Necessity and the Protection of Cultural Property during Armed Conflicts’ (2006) 37(2) California Western International Law Journal 177. 92 See, among others, Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2004). 93 Art 11 of the Hague Convention also mentions ‘unavoidable military necessity’ as a justification of the waiver of the obligations affecting cultural properties under special protection. 94 Art 2(d) of the ICTY Statute allows military necessity to be invoked in order to justify wanton extensive destruction of property. According to art 3(b) the wanton destruction of cities can be only excused by military necessity. 95 For the relevance of the introduction of a concrete criterion, such as the concept of ‘military objective’, for the delimitation of the scope of the definition of ‘military necessity’ in art 6 of the 1999 Protocol, see Alice Lopes Fabris, ‘Military Necessity under the 1954 Hague Convention’ (2015) 2 Santander Art and Culture Law Review 275, 283. For a detailed overview of this issue, see also Roger O’Keefe, ‘Protection of Cultural Property’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) 492. 96 Most precisely, according to arts 52 and 53 of Geneva Protocol I, cultural properties turn into military objectives if these properties are concretely used for military purposes and their destruction brings about a definitive contribution to military action.

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Cultural Heritage and State Responsibility 631 attacking a cultural property, which has been turned into a military objective, overlap.97 In particular, by means of a very restrictive construction of both the concepts of ‘military necessity’ and ‘military objective’, the ICTY concluded that, even if the attacks against civil and religious buildings were allowed by military necessity, these attacks should have been proportional to the strength of the civilian resistance.98 According to some legal tenets, the test of proportionality of the military attacks should primarily take into account the value of the cultural property affected so as to exclude the legitim acy of the waiver of military necessity in the case of damage or, even worse, destruction of cultural objects of inestimable value.99 Thus, even the waiver of military necessity, like the circumstances precluding wrongfulness, seems to be applicable in a very limited manner when the protection of cultural heritage is at issue. Although the conservation of cultural heritage is an interest of fundamental character, one must admit that, in some circumstances, other interests must prevail, such as the need to safeguard human lives. Moreover, a distinction must be drawn between the diverse international obligations relating to cultural heritage, the violation of which ought to be justified on the basis of circumstances precluding wrongfulness. As an example, the temporary refusal of a State to return some cultural objects belonging to another country may be considered a justifiable countermeasure in response to an illicit refusal by the latter to give back artistic properties to the former State. Conversely, no preclusion of wrongfulness may be allowed for a countermeasure entailing the attack against cultural properties as objects of reprisal in case of armed conflicts, as reprisals against cultural property are forbidden both in articles 4(4) of the Hague Convention and 53(c) of Protocol I to the Geneva Conventions. In this regard, articles 22 and 50 of the Draft Articles establish that countermeasures cannot bring about both irreversible effects and breaches of fundamental obligations. Thus, the operation of the circumstances of exclusion of wrongfulness is primarily determined by the nature of the interests that are at the basis of the obligations that have been violated. Finally, one cannot exclude that the need to preserve cultural heritage may be invoked as a justification of an otherwise illicit conduct. As an example, some restrictions of property rights of foreign nationals on cultural objects, which prima facie may clash with the international standards of justice on the treatment of aliens, may be justified by the need to prevent illicit export of cultural properties of great importance for the national heritage of the State, as British judges upheld in the abovementioned Iran v the 97 According to some legal authors the ‘military exception’ provided for in Protocol I to the Geneva Conventions is less permissive than the waiver of military necessity, as defined in art 6 of the Second Protocol to the Hague Convention. In fact, cultural objects may be categorized as military objectives only when their actual use is no longer aimed at carrying out cultural activities but at accomplishing military purposes. For this view, see O’Keefe (n 95) 505. 98 Prosecutor v Brdjanin, ICTY, Trial Chamber, Judgment 1 September 2004, IT-99-36-T, para 639. For the restrictive interpretation of the definition of ‘military necessity’ see also Prosecutor v Kordić, ICTY, Trial Chamber, Judgment 26 February 2001, IT-95–14/2-T, 2001, para 362 and Prosecutor v Strugar (n 12), para 280. 99 See O’Keefe, ‘Protection of Cultural Property’ (n 95) 501.

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632 Patrizia Vigni Barakat Galleries Ltd case.100 Similarly, the occupation of the territory of another State could be excused by the necessity of protecting a cultural or religious site that is located in that territory. All these examples mainly affect the plea of necessity. However, the essential interest of safeguarding cultural heritage cannot allow unjustifiable breaches of international law. Thus, even in the case in which an illicit conduct is aimed at preserving cultural heritage, a State must demonstrate that this conduct is proportionate and necessary in relation to the aim pursued.101 This argument has been espoused by some domestic courts in order to deny the jurisdictional immunity of foreign States. In the Altmann case, in which the plaintiff sought the restitution of some Klimt paintings that had belonged to her ancestors and had been taken by Austria following the Nazi occupation, the US Court of Appeals denied the jurisdictional immunity of Austria on the assumption that the paintings at issue had been appropriated by the then-Austrian government in violation of international law. Therefore, this appropriation could not be considered as a valid sovereign act with respect to which US legislation concerning State immunity had to be applied.102 Similarly to other international norms, such as those concerning State immunity, international rules on State responsibility, including those dealing with circumstances precluding wrongfulness, must be therefore applied according to the diverse substantive obligations the violation of which is alleged.103

4.4 Consequences Arising from State Responsibility Affecting Cultural Heritage The ascertainment of State responsibility needs to bring about legal and practical consequences in order to be effective. These consequences may entail the possibility of other States invoking the responsibility of the wrongdoer State so as to achieve some form of reparation or adopt countermeasures as a result of the breach of law. This issue is also dealt with in Parts II and III of the Draft Articles, the application of which may be 100 See The Government of Iran v the Barakat Galleries Ltd (n 14). 101 For the view that the legitimacy and scope of the invocation of the need to protect superior interests as a reason of preclusion of wrongfulness are still vague under international law, see Giorgio Gaja, ‘La possibilité d'invoquer l'état de nécessité pour protéger les intérêts de la communauté internationale’ in Droit du pouvoir, pouvoir du droit: Mélanges offerts à Jean Salmon (Bruylant 2007) 417. 102 Altmann v Republic of Austria, 317 F.3d 954 (9th Cir. 2002), paras 43–7. Actually, the US State Immunity Act was enacted in 1976 and, thus, should not have been applicable to the act of appropriation occurring during World War II. Conversely, in the view of US judges, the unlawful character of the conduct of Austria allowed the retroactive application of US legislation. For an extensive analysis of domestic case law concerning State immunity in cases of restitution of cultural heritage, see Riccardo Pavoni, ‘Sovereign Immunity and the Enforcement of International Cultural Property Law’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 79. For an overview of the issue of State immunity in relation to cultural heritage, see Chapter 24 in this Handbook. 103 For this view, see Gaja, ‘Primary and Secondary Rules’ (n 3).

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Cultural Heritage and State Responsibility 633 beneficial to identify which legal and practical consequences are allowed under international law with respect to the breaches affecting cultural heritage. Consequences may differ with respect to the diverse character and content of the obligations that a State owes to another State, several States, or the international community as a whole, as affirmed in article 33 of the Draft Articles. In particular, article 42 of the Draft Articles recognizes the right of the injured State or States104 to invoke the responsibility of the wrongdoer State. The status of injured State can be easily identified in the case of the breach of bilateral obligations, such as, for example, the duty to return a cultural object to the State to which such object belonged. However, responsibility affecting bilateral relationships also occurs when the violation concerns a norm of a multilateral treaty the compliance with which may also involve the interest of the international community. In fact, the right to invoke responsibility does not have to be assimilated to the interest in the achievement of the aim for which an obligation was established. For example, although the preservation of underwater cultural heritage must be ensured ‘for the benefit of humanity’ according to article 2(3) of the UHC, the right to invoke the responsibility for the illicit removal of cultural objects from the territorial sea of a State belongs to the coastal State,105 which, in this context, has the role of the ‘injured State’. A concrete example of the distinction between the right to invoke responsibility and the interest in the compliance with international obligations is provided by the case concerning the Spanish galleon San José, sunk off of the coast of current Colombia in the eighteenth century.106 Following the discovery of the wreck of the San José, Colombia has declared that it intends to rescue the vessel and its cargo with the assistance of a US private company that will retain some part of the recovered goods as compensation. On the one hand, a typical bilateral dispute has occurred between Spain and Colombia, with both claiming the ownership of the vessel. Thus, if the title of Spain, as flag State of the San José, were to be recognized, Spain, as the ‘injured State’, would have the right to invoke the responsibility of Colombia for any illicit act affecting the vessel. On the other hand, the commercial rescue of the San José wreck, which the Colombian government seeks to carry out, has raised the interest and concern of the UNESCO, in particular, with regard to the consistency of the activity of recovery with the general principles and aims of the UHC, which stipulate that underwater cultural heritage must be safeguarded in the interest of humanity by means of techniques of in situ protection.107 This initiative by UNESCO is also suggestive of the 104 Art 46 of the Draft Articles establishes that if there are several injured States, each one can invoke responsibility individually. 105 See art 7 of the UHC. 106 For an overview, see Antonio José Rengifo, ‘Ruling over the San José galleon is unclear’ in UN Periódico digital, Universidad Nacional de Colombia, at accessed 24 May 2018. 107 For the political reaction of the UNESCO to the potential activity of rescue announced by Colombia, see Llazar Semini, ‘UNESCO against Colombia’s commercial recovery of a shipwreck’, Washington Post (27 April 2018), at accessed 24 May 2018.

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634 Patrizia Vigni general interest to the preservation of underwater cultural heritage for the benefit of humankind, since Colombia is not a party to the 2001 UCH Convention. In addition, it seems to confirm the recognition of the status of the customary character of the obligation of protecting cultural heritage. In addition, the invocation by a single State of the responsibility of another State may also involve collective obligations—that is, the obligations that a State owes towards a group of States or the international community as a whole. In these circumstances, the single State may only invoke responsibility in two specific cases: it has been specially affected by the breach of a collective obligation or the obligation is of such a character that its breach ‘radically changes the position of all the other States to which the obligation is owed’, as established by article 42(b)(ii) of the Draft Articles.108 An example of the first hypothesis is provided by the case in which a State violates the domestic measures adopted by another State to regulate the protection of cultural diversity in accordance with article 6(2)(a) of the Cultural Diversity Convention (hereafter CDC). In this case, while any State Party is bound by the obligation of protecting diverse cultural expressions established in the CDC vis-à-vis all other parties, the injured State that is specially affected by the conduct of the wrongdoer State is the one that had enacted the domestic measure implementing the international obligation to safeguard cultural diversity. The second hypothesis concerns the so-called interdependent obligations—namely, the obligations that must be implemented by all States Parties in a consistent and simultaneous manner and that usually establish international legal regimes. In the case of the breach of one of these obligations, all States Parties to the regime other than the wrongdoer State must be considered as injured States. An example of these types of obligations relating to cultural heritage is provided by the regime established by the WHC. The inscription of cultural properties of outstanding universal value in the World Heritage List, as provided for in article 11 of the WHC, would be scarcely effective if a State Party might treat the cultural properties that are located in its territory as ordinary belongings or, even worse, as commercial goods. It is therefore consistent with article 42(b)(ii) of the Draft Articles that any party to the WHC is entitled to invoke the responsibility of another party for the breach of the obligations of protection and conservation established in articles 4, 5, and 6 of the Convention. Nevertheless, the invocation of State responsibility according to this legal ground has so far remained on paper, mainly due to the failure of international law to provide collective judicial or administrative instruments for the condemnation of these types of violations. An example of this type of breach is provided by the case concerning the demolition of the Ajyad Fortress, an Ottoman castle built in the eighteenth century. In 2002, Saudi Arabia tore down this fortress, which was located within its territory, in order to enhance the commercial growth of the area. Despite strong condemnation of the act by Turkey, as historic successor to the Ottoman Empire, and regardless of the fact that Saudi Arabia has been a party

108 For the definition of these types of obligations, see ILC Report (n 53) 118–19.

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Cultural Heritage and State Responsibility 635 to the WHC since 1978, neither unilateral nor collective action was taken against this inconsiderate conduct in order to enforce international rules on State responsibility.109 In short, article 42 of the Draft Articles appears to be strongly based on the bilateral approach that traditionally applies in international law and identifies two essential actors, namely the wrongdoer and the injured State. The only attempt at recognizing collective rights corresponding to collective interests, such as those safeguarded in cultural heritage conventions, may be acknowledged in paragraph (b)(ii) of this article. Most significantly, article 48 of the Draft Articles recognizes the right of a State other than the injured State to invoke responsibility in cases of the breach of the obligations that are aimed at safeguarding a collective interest and are owed by the wrongdoer towards a group of States or the international community as a whole. As an example of these types of obligations, the ILC Commentary mentions erga omnes obligations as defined by the ICJ in the Barcelona Traction case.110 The peculiarity of article 48 lies in the fact that this norm does not adopt the traditional bilateral approach for the attribution of the right to invoke responsibility. Nevertheless, the scope of the rights that this article recognizes with respect to States other than the injured State is quite limited: in fact, these States may only request the cessation of the breach, guarantees of non-repetition, and reparation in the sole interest of the injured State. The extension of the right to invoke responsibility vis-à-vis States other than the injured State is also provided in common article 1 of the Geneva Conventions, which allows any State Party to claim the breach of one of the obligations established by the Conventions.111 As already pointed out, Section II of Part V of Protocol I to the Geneva Conventions implements the obligation of repressing the breaches of the conventions and Protocol I. Thus, the violation of the obligations provided for in article 53 of Protocol I with regard to the protection of cultural heritage during international armed conflicts may be invoked erga omnes. Conversely, since this responsibility regime does not apply to Protocol II, the breaches of the obligations established in article 16 of this protocol, concerning offences against cultural property during non-international armed conflicts, can be only invoked according to common article 1 of the Geneva Conventions if such breaches entail violations that, under common article 3 of the 1949 Conventions, are inescapable.112 In the Strugar case, the ICTY included the shelling of the Old Town of Dubrovnik among these types of violations. Although the bombing was perpetrated 109 See James Palmer, ‘Destroying Ottoman castle to build hotel is “cultural massacre”’ The Independent (9 January 2002) accessed 24 May 2018. For an analysis of this case, see Lixinski and Tsevelekos (n 1) 17. 110 See ILC Report (n 53) 127 and Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), ICJ Reports, 1970, para 34. 111 For the assimilation of art 1 of the Geneva Conventions with art 48 of the Draft Articles, see Sassoli, ‘State Responsibility’ (n 2) 424 and 433. For a detail analysis of the scope of common art 1 of the Geneva Conventions, see Laurence Boisson de Chazournes and Luigi Condorelli, ‘Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests (2000) 82(837) International Review of the Red Cross 67. 112 See Section 3.

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636 Patrizia Vigni during an internal conflict, the ICTY upheld that ‘cultural property is, by definition, of great importance to the cultural heritage of every people’. Thus, in the view of this tribunal, ‘the victim of the offence at issue (was) to be understood broadly as a “people”, rather than any particular individual’.113 We have also mentioned several cultural heritage treaties in which the protection of cultural properties is considered as a benefit for humanity as a whole, such as, for example, the WHC and the UHC. In addition, international practice is increasingly recognizing the interest of the international community as a whole in the protection of cultural heritage, as it was reaffirmed in the UNESCO amicus curiae observations submitted to the ICC in the Al Mahdi case.114 The growing acknowledgment of the universal value of cultural heritage and the need for its conservation may help to make the traditional bilateral approach adopted by international law more flexible. As an example, article 45 of the Draft Articles providing for the waiver or acquiescence of the right to invoke State responsibility of the injured State or the States enjoying such right under article 48 may be interpreted in different manners according to the peculiarities of the situations in which this article applies. In particular, the recognition of the special character of the obligations concerning cultural heritage may raise the question whether or not the waiver or acquiescence is admissible when the breach of these obligations is at issue. Again, the applicability of these types of norms varies according to the diverse content of the obligations relating to cultural heri tage. Similarly to the operation of consent as a circumstance precluding wrongfulness, a valid waiver is only envisaged when the State renouncing its claim is the only entitled person. If the breach also affects the interests of other States or the international community, a single State cannot waive the invocation of such breach. In addition, the State directly entitled to claim responsibility might waive its right because of its weakness and subjection with respect to the wrongdoer State, even in the case of serious breaches affecting its cultural property. In these circumstances, States other than the injured State do not only appear to have the right to invoke the responsibility of the wrongdoer State for the violation of obligations owed to the international community, as a whole, but, in line with the spirit of the R2P theory, they should also undertake the obligation of backing the rights of the directly injured State and the entirety of humanity. Thus, even though international norms on State responsibility, particularly the Draft Articles, provide an articulate legal system for the ascertainment of responsible States, wrongful acts, and States entitled to invoke responsibility, these norms do not completely seem to fit the need to supply the international community the proper instruments to stand against the breaches of the obligations that are aimed at protecting cultural heritage as a global interest. This lacuna also affects the norms dealing with the implementation of the invocation of State responsibility, namely the rules relating to reparation115 and countermeasures. 113 Prosecutor v Strugar (n 12), para 232. 114 UNESCO, Amicus Curiae Observations submitted pursuant to Rule 103 of Rules of Procedure and Evidence, The Prosecutor v Ahmad Al Faqi Al Mahdi, ICC-01/12–01/15–194, para 2. 115 For a thorough analysis of this issue, see Chapter 8 in this Handbook.

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Cultural Heritage and State Responsibility 637 Several legal authors observe that international norms on State responsibility primarily have a reparatory nature, which is based in the above-mentioned bilateral approach. Conversely, the most serious breaches of the obligations affecting cultural heritage would require punitive consequences, in particular, when these breaches are the result of an intentional action.116 Nevertheless, with the exception of the Genocide Convention, which, recognizing the ICJ’s jurisdiction as primary dispute settlement means,117 allows sentencing of States Parties for the breach of its substantive norms, such as in the aforementioned Genocide case; and apart from the treaties that States may adopt to resolve some specific disputes, such as the agreement concluded between Eritrea and Ethiopia establishing the Claims Commission that dealt with the abovementioned Stela of Matara case,118 no international legal instruments have been so far provided to ‘prosecute’ States in the same manner in which individuals are prosecuted before international criminal tribunals. This punitive task has been left to the UN Charter and, particularly, to Chapter VII, the application of which is notoriously not very effective.119 The only consequence of State responsibility that apparently has a punitive character under general international law is satisfaction, since it requires the wrongdoer State to recognize its responsibility and to apologize. However, satisfaction cannot be con sidered as a sufficient remedy for the breaches of the obligations affecting cultural heri tage. First, according to article 37 of the Draft Articles, satisfaction only entails some expression of regret that, as the ICJ acknowledged in the LaGrand case, cannot be regarded as a suitable remedy in cases of violations of fundamental interests.120 Second, satisfaction embodies a consequence of residual character with respect to restitution and compensation. For this reason, in the above-mentioned Stela of Matara case, despite the request of Eritrea for official apologies as a consequence of the recognition of the responsibility of Ethiopia for the destruction of the obelisk, the Eritrea–Ethiopia Claims Commission did not consider apologies a sufficient remedy for this type of violation and, thus, ordered monetary compensation.121 Thus, severe and inescapable consequences of punitive character should be ensured in cases of the breach of the obligations affecting cultural heritage in order to reaffirm the prominence of these obligations.

116 For this view, see, among others, Dupuy, ‘International Criminal Responsibility’ (n 41) 1097 and Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility’ (n 47) 622. 117 See art IX of the Genocide Convention. 118 See art 5 of the Ethiopia–Eritrea Agreement. This agreement was concluded in the framework and under the auspices of both the Organisation of African Unity and the UN in order to cease the armed conflict between Ethiopia and Eritrea. See Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Algiers, 12 December 2000 accessed 21 June 2018. 119 See Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility’ (n 47) 626. 120 See LaGrand (Germany v. United States of America), ICJ Reports, 2001, para 123. 121 See Stela of Matara case (n 44), para 114.

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638 Patrizia Vigni The same rigorous approach should be adopted to establish other forms of reparation in cases of offences against cultural heritage. For example, under article 35(b) of the Draft Articles, restitution is not due if it involves ‘a burden out of proportion to the benefit deriving from restitution instead of compensation’. When cultural properties are at issue, the assessment of this proportion should accord significant priority to restitution with respect to compensation due to the special nature of the objects involved and the inherent link of these objects with the historical, spiritual, or religious heritage of a State and its population. In fact, articles 7 of the 1970 UNESCO Convention and 3 of the 1995 UNIDROIT Convention establish that return is the only form of reparation in case of illicit transfer of cultural objects. This preference for the return of illicitly removed cultural property as a form of reparation has also been embraced in international practice. A first example was provided by the case of the Temple of Preah Vihear, in which the ICJ upheld that the recognition of Cambodia’s sovereignty over the territory in which the temple was located implicitly entailed the right to the restitution of cultural objects belonging to the temple that Thailand might have removed during its military occupation of the area.122 Most recently, UN Security Council Resolution 1483 (2003), concerning the aftermath of the 2001 military intervention in Iraq, urged UN Member States to return any cultural objects that had been illicitly removed from Iraq.123 As with the severe approach adopted with regard to the restitution of cultural property, compensation should be also determined according to the relevance of the interests at issue. This approach has been applied by the ICC in its order establishing reparations in the Al Madhi case, where the interest of the international community was taken into account to determine both material and moral damage.124 We can only hope that this approach will be also applied to the cases in which States perpetrate serious breaches against cultural heritage. An analogous approach recognizing the need for a special consideration of cultural heritage may be identified in international practice with regard to the topic of the immunity of State property from execution. Articles 21(1)(d) and (e) of the UN Convention on Jurisdictional Immunities of States and Their Property establishes that property forming part of a State’s cultural heritage must be considered as non-commercial property and, thus, cannot be subject to measures of constraint, such as execution. According to this rule, which entails a norm of customary character, in the Jurisdictional Immunities case the ICJ held that objects devoted to culture are governmental property and, thus, immune from execution.125 The application of this rule is indisputable as long as it is aimed at preserving the integrity of the cultural heritage of a State. Nevertheless, execution seems to be still possible when it points to the return of cultural property, which has been illicitly expropriated by the State claiming immunity, to the legitimate owner. As a US District court affirmed in the Chabad case,126 the recognition of the 122 Cambodia v Thailand (n 52) 36. 123 UN Security Council Resolution 1483(2003), para 7. 124 See Prosecutor v Al Madhi (n 36), Reparations Order, paras 53 and 129. 125 Jurisdictional Immunities of the State (Germany v Italy), ICJ Reports, 2012, paras 118–20. 126 Agudas Chasidei Chabad of US v Russian Federation, 798 F. Supp. 2d 260 (DC 2011). For a thorough analysis of the case and its follow-up, see Pavoni (n 102) 21–2.

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Cultural Heritage and State Responsibility 639 immunity of the State concerned, or better to say, of the State’s property, would have entailed the violation of the rights of the legitimate owner that was also the genuine guardian of the cultural property at issue. As affirmed, this reasoning was also upheld by the US Court of Appeals with regard to the denial of the jurisdictional immunity of Austria in the Altmann case due to the fact that the act of expropriation with respect to which immunity was invoked had been carried out in breach of international law.127 Thus, both international norms on State immunity and State responsibility seem to recognize that cultural heritage has a special value, and, as such, must be safeguarded from the serious breaches that may be perpetrated by States. As already indicated,128 according to article 41 of the Draft Articles, serious breaches of international law may entail different consequences with respect to ordinary violations. Nevertheless, the category of serious breaches that is identified in this article is limited to the violations of peremptory norms. So far, even the intentional destruction of cultural heritage does not seem to have been included in this category. Although art icle 41 is apparently inapplicable, as such, with respect to the violations perpetrated against cultural property, a distinction exists between serious and ordinary breaches affecting such property that necessarily entails different consequences corresponding to the diverse gravity of illicit behaviours. Finally, among the practical consequences that international law recognizes as a legitimate response to State wrongful acts, special attention must be paid to countermeasures. Under articles 49 and 54 of the Draft Articles, these measures may be adopted both by the injured State and States entitled to invoke responsibility according to article 48 of the Draft Articles with the aim of inducing the wrongdoer State to stop its conduct. Thus, countermeasures cannot entail punitive actions.129 In the light of this, they should not be adopted as a consequence of the destruction of cultural heritage, because the illicit conduct no longer needs to be ended. Moreover, the right to take countermeasures is recognized on the basis of the same grounds according to which States may invoke responsibility. Thus, States other than the injured State may only adopt countermeasures in cases of breach of collective and erga omnes obligations that, as already observed, include rules safeguarding the interests of the international community as a whole.130 In short, the possibility of taking countermeasures is limited by the same State-centric approach characterizing general international norms on State responsibility. This approach in particular limits the possibility of States other than the injured State standing for the protection of cultural heritage before judicial organs and dispute settlement means of bilateral character.131

127 See Altmann v Republic of Austria (n 102). 128 See Section 4.2. 129 For the possibility of adopting countermeasures to compel States to comply with the obligations relating to the protection and conservation of cultural heritage, see Francioni and Lenzerini, ‘The Destruction of the Buddhas of Bamiyan’ (n 19) 629. 130 See Sassoli, ‘State Responsibility’ (n 2) 433. 131 For a thorough analysis concerning dispute settlement means, see Alessandro Chechi, The Settlement of International Cultural Heritage Disputes (Oxford Scholarship Online 2014).

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640 Patrizia Vigni Thus, new means seem to be needed to respond to State responsibility arising from the breach of the obligations affecting cultural heritage when the interest of the inter national community as a whole is at issue.

5. Conclusions The Draft Articles on State responsibility do not completely resolve the lacunae that have so far characterized cultural heritage treaties and international criminal and humanitarian conventions with regard to violations by States of the obligations relating to cultural heritage. However, these articles at least provide some general principles that can help to determine the scope of the illicit conduct affecting cultural heritage, how this conduct may be attributed to States, which States and persons are entitled to invoke State responsibility, and, finally, what legal and practical consequences may arise from this invocation. First of all, the analysis of the issue of attribution has highlighted that, with the exception of some violations of procedural obligations of treaty nature, illicit conduct against cultural heritage may be only attributed to a State on the basis of the examination of the concrete elements inherent to that conduct, such as, on the one hand, the form of control that a State exercises over the individuals acting in its name both as official and de facto organs and, on the other hand, the different types of contribution that diverse States make with respect to the perpetration of the same illicit conduct. While the control of a State over private actors may change according to the varying strength of the relationship occurring between the State and these actors, the responsibility of States for the same conduct must be assessed with regards to the concrete capability of each State of determining its own actions. Therefore, while State sovereignty appears to be the governing principle for the identification of the State that is accountable for the management and protection of cultural heritage, the evaluation of the concrete circumstances and characteristics of a conduct may reveal other responsible States. Due to the complexity of the relations, both between States and between States and private actors, the recognition of some forms of shared responsibilities seems to be the best solution to counter the perpetration of breaches against cultural heritage, in particular when these breaches entail international crimes. Second, the determination of the scope of illicit conduct affecting cultural heritage has emphasized the need to make a distinction between ordinary and serious breaches of law. In this regard, some substantive elements, such as damage, psychological elem ents, and the peculiarities of the objects that are under protection, may help to draw this distinction. Although no peremptory norms so far seem to have emerged with regard to cultural heritage, some violations have been already categorized by international tribunals and domestic courts132 as serious breaches of international law, in accordance with 132 See Section 4.2. of this chapter and Prosecutor v Strugar (n 12), Stela of Matara case (n 44), and Prosecutor v Al Mahdi (n 36).

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Cultural Heritage and State Responsibility 641 the special status that has been ascribed to cultural heritage as an international public good, the protection of which must be carried out in the interest of the international community as a whole. In light of this special status of cultural heritage, the regulation of both issues concerning the invocation of State responsibility and the consequences arising from such invocation should set aside the traditional bilateral and State-centric approach that has been adopted by the ILC in the Draft Articles. As the R2P doctrine emphasizes, a State is not only accountable to other States but also vis-à-vis its population and the international community as a whole when fundamental interests are at issue, such as the conservation of cultural heritage. Thus, new multilateral systems could be developed to permit the effective enforcement of State responsibility in cases of offences against cultural heritage. Some doctrinal proposals have suggested that traditional regimes aimed at ascertaining the inter national responsibility of States for the violations affecting fundamental interests, such as the conservation of cultural heritage, should be complemented with standard-setting systems.133 Actually, international treaties safeguarding cultural heritage, such as the conventions adopted within the UNESCO framework, already establish predetermined standards regulating the conduct of States. Nevertheless, these treaties rarely set up analogous enforcing mechanisms so as to prevent harms with respect to essential interests. Certainly, in light of the serious breaches that have affected cultural heritage in the last decades, effective instruments both of control and repression are required in order to compel States to grant the protection of cultural heritage in the interest of the inter national community as a whole.

133 For this view, see D’Aspremont et al., ‘Sharing Responsibility’ (n 42) 60.

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chapter 27

R em edies Elisa Novic*

1. Introduction The general discourse surrounding international cultural heritage law very much revolves around both its State-centred approach and lack of enforcement. Eppur si muove, if we may borrow the expression attributed to Galileo Galilei: not as much around itself—although it may sometimes give the feeling of stagnation—but it does move forward. The main notable evolution remains its ‘recalibration’ around its human dimension. This may be observed at various levels, starting with the conceptual shift from ‘cultural property’ to ‘cultural heritage’, with property conceived as very much State property. Beyond terminology, a further paradigmatic shift has consisted in the opening of the legal protection of cultural heritage beyond its initial core protection of tangible cultural heritage1 to encompass the protection of intangible features of cultural heritage and cultural diversity.2 If such normative evolutions may challenge the first assumption of a State-centred discipline, the question of its enforcement remains an open one. International cultural heritage law indeed tends to catalyse most international law weaknesses in this regard. The core UNESCO conventions on international cultural heritage law provide few indications as to the remedies, making enforcement contingent upon States’ willingness to provide domestic remedies, and thus contributing to an even greater dilution of cultural * Parts of this contribution build on and from Chapter 7 in Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (Oxford University Press 2016). 1 See the Convention on the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 249 UNTS 215 (1954 Hague Convention); Convention concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 (World Heritage Convention). 2 See the Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 1268 UNTS 1 (Intangible Cultural Heritage Convention); Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007).

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Remedies 643 heritage protection. Furthermore, the development of international cultural heritage law has been tainted by the general soft law tendency, as illustrated by the 2003 UNESCO Declaration on the Intentional Destruction of Cultural Heritage, which sets out crucial principles without providing the tools for their enforcement. This seemingly alarming observation is lessened by a number of recent developments, starting with international cultural heritage law’s diffusion throughout the two other branches of international law, especially international human rights law and inter national criminal law, which have increasingly focused on the protection of cultural rights3—and, more broadly, the cultural dimension of human rights—and crimes against culture respectively.4 Against this background, international cultural heritage law–related disputes may be brought in front of a variety of legal fora, whether at the international or national level, and on the basis of primary norms which can be found in multiple sources and branches of international law, which often function according to their own specific principles and logic. Enforcement and, ultimately, reparation remain an ad hoc practice, which may alternatively be triggered by a political agreement (such as a peace agreement), a judicial order, or an administrative procedure. To this procedural entanglement another layer of complexities needs to be added: substantiating remedies. Notwithstanding the availability of justice mechanisms, the question of repairing attacks against culture poses a set of philosophical and practical questions—namely, the definition of victimhood and adequate measures of reparation. Here, international law provides a relatively harmonized account of reparation, based on a restorative approach, following which ‘reparation, must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation, which would, in all probability, have existed if that act had not been committed’.5 As such, reparation should be adequate and proportionate to the harm suffered6 and may therefore consist of one or more of the five following measures: compensation, restitution, satisfaction, rehabilitation, and guarantees of non-repetition.7 The idea of restorative justice may obviously often remain at the level of wishful thinking, an observation which applies to reparation of human rights violations but also of violations of international cultural heritage law. It indeed seems unrealistic to think that destruction of cultural and religious monuments 3 See the Universal Declaration of Human Rights, art 27; International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art 15; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 27. 4 See, for example, the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force on 1 July 2002) 2187 UNTS 3 (ICC Rome Statute) art 8(a)(ix); 8(e)(iv). 5 Factory of Chorzów case (Germany v Poland) (Merits) 13 September 1928, PCIJ Rep. Series A No. 17, 47; ILC (53rd Session), ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ (2001) Yearbook of the International Law Commission, vol. II, Part Two (ILC 2001 Draft Articles on State Responsibility) art 31(1). 6 United National General Assembly Resolution A/60/147 ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ (21 March 2006) principle 15. 7 Ibid, principles 19–23; International Law Commission (ILC) 2001 Draft Articles on State Responsibility, arts 30(2) and 34.

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644 Elisa Novic may ever be repaired; so too for other forms of cultural destruction, such as those resulting from processes of historical oppression against Indigenous groups and cultural minorities. Destruction is clearly only one type of violation of international cultural heritage law, although the most extreme and striking, and does not exhaust the topic of remedies, understood in both their procedural (access to) and substantive (types of) implications. In light of what precedes, this contribution begins with the categories of recurrent harms against culture that have received international attention, whether from a legal or political perspective—namely, looted or stolen art; historical processes of group cultural destruction; and intentional attacks against cultural heritage. A mapping of current trends in remedying violations of international cultural heritage law will be provided for each of these themes, with a particular focus on the questions of standing and definition of victimhood, on the one hand, and the definition of adequate measures of reparation on the other, which is itself interconnected with the definition of harm. In doing so, this contribution will more broadly assess the extent to which these developments reflect the recalibration process observed at the level of primary norms.

2. Remedies for Stolen Cultural Property For historical reasons, cultural heritage–related claims have very much focused on the question of stolen pieces of art, whether looted during armed conflicts or stolen in the course, for instance, of archaeological excavations. Notwithstanding the legal qualification, the very nature of these claims induces the production of remedies, since the question of restitution, return, or repatriation of stolen cultural property, whether through political agreement or court settlement, often constitutes the heart of the primary norms. 8 While a rather traditional topic of international cultural heritage law, again referring to the concept of property and involving very much the question of State ownership, the voicing of cultural claims by Indigenous communities and other cultural groups has, to some extent, had the effect of renewing the topic of reparation for stolen cultural property, by emphasizing the issue of community collective ownership of tangible items, on the one hand, and misappropriation of intangible cultural heritage on the other.

2.1 Restitution, Repatriation, and Return of Tangible Cultural Items The link between reparation and cultural heritage has not always been about restitution of stolen or looted heritage as a form of reparation; rather the contrary. Appropriation of 8 Janet Blake, International Cultural Heritage Law (Oxford University Press 2015) 50.

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Remedies 645 cultural heritage has long been a form of self-reparation in the aftermath of armed conflicts, the winning parties pillaging the cultural heritage of their losing enemy as a form of retribution.9 This practice has since been outlawed by international law in a number of instruments, including the First Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.10 Restitution of cultural property is also the subject of a rather complete international legal framework, the development of which was marked by two milestones: the adoption of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. The former foresees the obligation for States Parties ‘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’.11 Requests and returns are to be organized through ‘diplomatic offices’,12 which the latter comes to complete from an international private law perspective. Thus, contracting States may request before the courts of another contracting State the return of illegally exported cultural objects,13 while any claimant may seek the restitution of stolen cultural objects14 before the courts of the contracting party on whose territory the object is located. The question of reparation for looted or stolen cultural property may at first sight seem quite straightforward in substantive terms, as the answer to the question of adequate measure of reparation turns out to be in the title: restitution. This is also the first and foremost measure of reparation according to international law principles.15 From this perspective, primary and secondary norms may be deemed to be confused in this specific field of law. This first observation still does not exhaust the topic of remedying such acts. Several questions remain open, especially in relation to claims related to cultural property stolen prior to the entry into force of these instruments, as well as the relevance to articulate restitution with other measures of reparation. The question of retroactivity is particularly relevant in the context of cultural heritage misappropriated in the context of colonization. If a number of international instruments has been adopted to call on the return of such property notwithstanding the time of their misappropriation,16 the majority of them remain non-binding. However, as 9 Dinah L. Shelton, Remedies in International Human Rights Law (3rd edn, Oxford University Press 2015) 299. 10 Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, The Hague, 14 May 1954 [249 UNTS 358] art I(3). 11 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO, 1970) [823 UNTS 231] art 7(b)(ii). 12 Ibid. 13 UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects (Rome, 1995) [34 ILM 1322] Chapter 3, art 5. 14 Ibid, Chapter 2, art 3. 15 Draft Articles on State Responsibility (n 5), art 34. 16 Shelton, Remedies (n 9), 300. See especially Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UNGA Res 61/295 (UNDRIP) art 12.

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646 Elisa Novic noted by Francesco Francioni, ‘the rigidity of the non-retroactivity principle can be tempered by principles of transitional justice and more precisely by the principle of “non-legitimation” of past wrongs, such as that which may be found in article 10(3) of the UNIDROIT Convention’.17 The latter provision indeed adds that the non-retroactivity principle set out in paragraphs 1 and 2 does not preclude claims and legal actions outside the UNIDROIT Convention context. As such, claims for the return of property stolen in the context of historical processes of injustice, such as colonization and occupation, will mostly depend on specific legal frameworks at the domestic level. This issue is particularly acute in relation to Indigenous peoples.18 The UNIDROIT Convention dedicates a specific provision to them, with the view of extending the statute of limitation, though the claimed property should still have been stolen after the entry into force of the Convention according to article 10(3). A number of States have thus adopted domestic ‘procedures designed to facilitate restitution and indigenous peoples’ participation in all curatorial decisions that relate to their heritage’19 Such specific frameworks may also allow for avoiding issues of either locus standi or displaying evidence of ownership. Other specific regimes include those mechanisms set up to proceed with return of Nazi-confiscated art, as fostered in the Washington Conference Principles on NaziConfiscated Art, a set of non-binding principles adopted by forty-four States in 1998. These principles encourage States to make all efforts possible to identify as-yet unreturned Nazi-confiscated art,20 identify the pre-war owners21 and proceed with return and foresee implementation mechanisms, if need be through alternative dispute reso lution mechanisms.22 Some of these mechanisms,23 such as the UK Spoliation Advisory Panel, have been set up to consider claims of return of property ‘in the possession of a UK national collection or . . . another UK museum or gallery established for the public benefit’.24 The Panel may also advise, in a non-binding way, measures in addition to the return of property, including the ‘payment of compensation, an ex gratia payment to the

17 Francesco Francioni, ‘Plurality and Interaction of Legal Orders in the Enforcement of Cultural Heritage Law’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 15. 18 UNIDROIT Convention (n 13), art 3(8). 19 Alessandro Chechi, ‘Plurality and Coordination of Dispute Settlement Methods’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (Oxford University Press 2013) 186, referring, for example, to the Canadian First Nations Sacred Ceremonial Objects Repatriation Act (RSA, Ch. F-14, 2000); United States Native American Graves Protection and Repatriation Act (25 U.S.C. § 3001 et seq. (1990)). 20 US Department of State, Bureau of European and Eurasian Affairs, Washington Conference Principles on Nazi-Confiscated Art (adopted 3 December 1998), Principle 1. 21 Ibid, Principles 7–8. 22 Ibid, Principles 10–11. 23 Chechi (n 19), 191–2. 24 Spoliation Advisory Panel, ‘Constitution and Terms of Reference’, available at accessed 7 January 2018, para 3.

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Remedies 647 claimant, . . . the display alongside the object of an account of its history and provenance during and since the Nazi era, with special reference to the claimant’s interest therein’.25 This leads to a second issue, that of the sufficiency of restitution as a measure of reparation for stolen cultural property. The preamble of the UNIDROIT Convention highlights the irreparable damage frequently caused by stolen cultural property, both to the objects themselves and to the cultural heritage of national, tribal, Indigenous or other communities, as well as to the heritage of all peoples, and in particular by the pillage of archaeological sites and the resulting loss of irreplaceable archaeological, historical, and scientific information.26 However, claimants will often be predominantly concerned with the return of the objects and not necessarily seek extra remedies, even where available.27 Dinah Shelton also notes that litigation over restitution of Nazi-looted art has generally ‘been decided under the private law of theft and not as a crime against humanity or a human rights claim’.28 History is indeed full of examples in which such acts were perpet rated in the context of wider processes of ethnic cleansing, genocide, and historical injustice more generally, in order to undermine if not erase the targeted groups’ traces on a given territory. In this case, mere restitution seems hardly to answer the harm caused by the act, something which a human rights approach could usefully complete with the concomitant order of further reparations, such as symbolic actions of memorialization and guarantees of non-repetition in addition to the restitution of the items.

2.2 Remedies for Misappropriated Intangible Cultural Items The topic of stolen or looted cultural property does not only concern tangible items. Wrongful appropriation of Indigenous and traditional communities’ intangible cultural features, such as art, patterns, and medicinal remedies, has also given rise to a number of disputes. These have mostly been addressed as intellectual property and copyright issues.29 Such disputes again fall predominantly under domestic jurisdictions, even though some

25 Ibid, paras 13(b)–(d). 26 UNIDROIT Convention (n 13), Preamble, para 3. 27 Lyndel V. Prott, Strengths and weaknesses of the 1970 Convention: An evaluation 40 years after its adoption, background paper for participants in the meeting ‘The fight against the illicit trafficking of cultural objects—The 1970 convention: past and future’, Paris, UNESCO, 15–16 March 2001, available at accessed 19 January 2018. 28 Shelton (n 9), 301. 29 Board of Studies NSW, Protecting Australian Indigenous Art: Ownership, Copyright and Marketing Issues for NSW Schools (Board of Studies NSW 2006) available at accessed 19 January 2018, 11–13.

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648 Elisa Novic initiatives have been undertaken at the level of the World International Property Organization to develop related guidelines.30 A solid body of case law has thus emerged in some countries, especially in Australia, where Aboriginal communities gradually started to claim their historical rights over their land and their culture. Throughout this movement, Aboriginal art—whether ancient or recent—has emerged as a catalyst of cultural re-appropriation and a symbol of liberation from historical oppression. Australian Aboriginal communities have objected to both the reproduction of their traditional artistic patterns by artists outside the community and, when commercialized, the absence of profit-sharing with the community, as collective authors of the misappropriated feature.31 A few emblematic cases highlight the specific harm of such misappropriation. For instance, in the Bulun Bulun case an Aboriginal artist complained that unconsented reproduction of his art onto fabric and its import by an Australian company made him feel he had ‘been the victim of the theft of an important birthright’,32 since the reproduced painting was directly inspired by his ‘dreaming’. This case closely followed the emblematic ‘carpet cases’, in which a Vietnamese company had reproduced art pieces from the catalogue of the National Australian Gallery on carpets, including three Aboriginal artists’ painting of their community’s sacred symbols.33 Beyond the mere question of consent, these cases highlighted the specific background to Aboriginal artistic production, as individual production of sacred imagery that has come to mingle with the group culture, and will even require the community’s consent, itself based on a strong trust relationship between the artist and the community. Commercialization may therefore be interpreted by the community as desacralization,34 which raises the question of both communal harm and ownership—a concept a priori foreign to copy right law. The judgments in these cases recognized the existence of the artists’ copyright ownership, in the absence of formal registration, but failed to recognize communal ownership.35 The reparation still took into account the communal aspect, first being collectively ordered to the several artists involved in the cases, so that they could then share it with their respective communities.36 More noteworthy, the judge ordered 30 World Intellectual Property Organization (WIPO), Protect and Promote Your Culture: A Practical Guide to Intellectual Property for Indigenous Peoples and Local Communities (WIPO 2017), available at accessed 19 January 2018. 31 Board of Studies NSW (n 29) 14. 32 Bulun Bulun v R & T Textiles [1998] 41 IPR 513. See analysis of the case in Terri Janke, Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions (WIPO 2003) 50, 52. 33 George Milpurrurru, Banduk Marika, Tim Payunka and the Public Trustee of the Northern Territory v Indofurn Pty Ltd, Brian Alexander Bethune, Raymond King and Robert James Rylands [1994] 54 FCR 240, commented on in Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press 2013) 187–8, and Janke (n 32) 8–27. 34 George Milpurrurru et al. v Indofurn in Janke (n 32) 12. 35 Janke (n 32) 57–60: A ‘traditional custodian’ of the community thus joined the case in order to obtain remedies, but his action was dismissed on several grounds, including the incompatibility of communal ownership with the artist’s copyrights in this case. 36 George Milpurrurru et al. v Indofurn in Janke (n 32) 19.

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Remedies 649 ‘damages for culturally-based harm’,37 based, in the carpet cases, on the harm to the relationship between the artist and her community, as the former was deemed ‘responsible under Indigenous law for the transgression that had occurred’.38 These cases and others have raised questions and criticism as to the adequacy of the legal protection of Indigenous cultures and related remedies. It is, indeed, difficult to assess the extent to which such cases of misappropriated traditional intangible heritage provide actual and proper reparation from a restorative perspective. Property over any such intangible cultural features remains difficult to prove.39 These cases further depend on domestic laws and jurisdictions, which vary from one country to another and may not be suitable to transnational misappropriation, as illustrated by the dispute between the Indigenous community of Santa Maria Tlahuitoltepec, Oaxaca, and French designer Isabel Marant. The latter had commercialized clothing with patterns obviously borrowed from the former. The case prompted public outcry, due to the exact reproduction of the pattern, the high selling cost of the blouse in Europe, and the alleged submission of copyrights by Marant. At the same time, the designer was being sued by another French company for alleged counterfeit in relation to the same blouse and pattern. The defendant found herself in a position of arguing that her creation was ‘inspired’ by traditional clothing in Mexico, leading the court of first instance to conclude that none of the parties were entitled to copyright.40 In a public statement, she also denied claiming copyright over the blouse pattern and confirmed having withdrawn the blouse from sale. If the Santa Maria Tlahuitoltepec community’s rights over their traditional pattern was indirectly confirmed by the French court, no reparation has reportedly been granted, as the community was not a party in the case. The case, however, resulted in another outcome, as the Oaxaca legislature eventually adopted a declaration promoting the Indigenous traditional patterns to the rank of national intangible cultural heritage and requesting its registration on the UNESCO list of the intangible cultural heritage of humanity, therefore safeguarding them for the future.41 Above all, the very application of the ‘property’ concept may become problematic, as this Western concept tends to imply individual and fixed ownership over items that are inherently collective and evolve over time.42 As such, settlements in cases of misappropriation may not necessarily deal with the very essence of the case—the misappropriation—but rather its consequences. This is, for instance, illustrated by an 37 George Milpurrurru et al. v Indofurn (n 33), 31; Bulun Bulun v R & T Textiles (n 32) 53, although this part of the case was closed in an out-of-court settlement. 38 George Milpurrurru et al. v Indofurn in Janke (n 32) 19. 39 Lixinski, Intangible Cultural Heritage (n 33), 182. 40 Antik Batik Sasu v IM Production, N° 15/03456 (3 December 2015) Tribunal de grande instance de Paris, 3e chambre 4e section. 41 UNESCO, ‘Para la protección de sus trajes regionales, Oaxaca toma como base la Convención de la UNESCO para la Salvaguarda del Patrimonio Cultural Inmaterial’ (11 March 2016), available at accessed 19 January 2018. 42 Lixinski, Intangible Cultural Heritage (n 33) 176–7 and 182–3; Blake, International Cultural Heritage Law (n 8) 231–4.

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650 Elisa Novic out-of-court settlement reached in a dispute between the Navajo community and the brand Urban Outfitters in the United States of America, as the latter had for years commercialized a line of products under a collection named ‘Navajo’. Not only were the patterns of the community misappropriated without its consent, but they were also applied on goods such as underwear, which offended the Navajo community. The settlement is confidential, but reports indicate that it included a systematic consultation of the community authorities over the commercialization of products under the ‘Navajo’ name and design, as well as benefit-sharing between the company and the community.43 Such limitations refer back to a more general criticism towards an intellectual property approach to the protection of intangible cultural heritage, which was one of the factors prompting the development of a branch of its own, which culminated with the adoption of the 2003 Convention for Safeguarding Intangible Cultural Heritage.44 Yet, when it comes to reparation for damage to intangible cultural heritage, be it through misappropriation or deliberate annihilation, other mechanisms than those set up by the 2003 regime have more efficiently led to reparation, especially in the human rights field.

3. Remedies for Historical Processes of Group Cultural Destruction Restitution of stolen or misappropriated property may in some contexts be part of a wider process targeting group cultures, especially Indigenous, tribal, and, more generally, traditional communities. Such processes are not necessarily bound to an armed conflict and may extend for decades, if not centuries. They are intrinsically related to processes of historical injustices,45 especially in contexts of settler-colonialism.46 They may take various forms, either exclusive processes, such as ethnic cleansing and genocide, or inclusive processes, such as ‘forced assimilation’,47 which the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) aims to outlaw.48 The international law response to such processes is only recent. These processes often started long before the development of contemporary international law, which then 43 Nicky Woolf, ‘Urban Outfitters settles with Navajo Nation after illegally using tribe's name’ The Guardian (19 November 2016), available at accessed 19 January 2018. 44 Blake (n 8), 230. 45 Francesco Francioni, ‘Is international law ready to ensure redress for historical injustices?’ in Federico Lenzerini (ed), Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford University Press 2008) 27–8. 46 Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’ (2006) 8 Journal of Genocide Research 387, 387–409. 47 Pierre Clastres, ‘Ethnocide’ (1988) 28 Art & Text 51 (first published as ‘De l’Ethnocide’ (1974) 14 L’Homme 101; translated by Julian Pefanis and Bernadette Maher) 53. 48 UNDRIP (n 16), art 8.

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Remedies 651 developed in the wake of World War II, under the sponsorship of those same States responsible for such conduct.49 Progress has been slow, and international human rights law has become the most fertile ground for the protection of group cultures, through the progressive affirmation of various cultural rights and, to a lesser extent, collective rights. The UNDRIP constitutes an important milestone in this regard. The late development of relevant primary norms, often under a soft law and programmatic approach, explains their limited enforcement and a fortiori the scarcity of remedies. As Francesco Francioni puts it, ‘enforcement of cultural rights is the vanishing point of cultural rights’.50 The Inter-American Court of Human Rights (IACtHR) still stands out for having developed an innovative approach in case law out of an extensive interpretation of the American Convention on Human Rights, which does not contain any provision expli citly related to cultural rights. The Latin American context indeed provided favourable ground for such innovations. Its history of violent colonialism, furthered by authoritarian regimes in the 1980s, has included the continued marginalization of many Indigenous communities whose traditional way of life did not fit in with the liberal policies of unbridled development. One first important area of jurisprudential development has been in relation to Indigenous communities’ right of property over their land, starting with the famous Awas Tingni judgment. It was in this context that the court developed the concept of collective property on the basis of the right to property stated in the American Convention on Human Rights,51 an approach that has also been endorsed by the African Commission on Human and Peoples’ Rights.52 This jurisprudential construction has been based on, inter alia, the importance of the land for the Indigenous communities’ survival.53 In such cases, reparation has firstly focused on restitution, through the

49 Johannes Morsink, ‘Cultural Genocide, the Universal Declaration and Minority Rights’ (1999) 21 Human Rights Quarterly 1009. 50 Francesco Francioni, ‘The International Legal Framework for Enforcement of Cultural Rights’ in Andrzej Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Brill Nijhoff 2016) 287. 51 Mayagma (Sumo) Awas Tingni Community, Judgment on Merits, Reparations, and Costs, InterAmerican Court of Human Rights Series C No. 79 (31 August 2001), interpreting art 21 of the American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) OAS, Treaty Series, No. 36, 1144 UNTS 123, reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System OEA/Ser L V/II.82 Doc. 6 Rev. 1 at 25 (1992) (ACHR). 52 The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, Comm. No. 155/96, ACom.HPR (2001) para 67; Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya Comm. No. 276/03, ACom.HPR (2009) para 297. 53 Mayagma (Sumo) Awas Tingni Community (n 51), para 143. See also Moiwana Community v Suriname, Merits, Reparations, and Costs, Inter-American Court of Human Rights Series C No. 124 (15 June 2005) para 133; Saramaka People v Suriname, Preliminary Objections, Merits, Reparations, and Costs, InterAmerican Court of Human Rights Series C No. 172 (28 November 2007) para 82; Caso de las comunidades afrodescendientes desplazadas de la cuenca del río cacarica (Operación Génesis) v Colombia, Preliminary Objections, Merits, Reparations, and Costs, Inter-American Court of Human Rights Series C No. 270 (20 November 2013) paras 355–8.

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652 Elisa Novic establishment of collective titles over the disputed land54 and, where not possible, on the attribution of alternative pieces of land with the community’s consent.55 Respect for the communities’ cultural identities always emerges as an essential feature of the reparation process, justifying the collective titles by the necessity to maintain these groups’ cultural identities.56 A second area has been the harm caused by violent attacks against and massacres of some tribal and Indigenous communities and the specific consequences that the Indigenous dimension induces when it comes to qualifying the harm and defining relevant measures of reparation. The Inter-American Court started to set the tone in the early Aloeboetoe case, when it took into account the practice of polygamy among members of a community in order to define indirect victims of members killed during an attack conducted by Surinamese security forces.57 In the Plan de Sánchez case, regarding an unpunished massacre of 268 inhabitants of a Mayan community in Guatemala, the court emphasized, in addition to a range of individual and collective human rights violations experienced by the community, the ‘cultural vacuum’ in which survivors found themselves following the massacre.58 By this token, the court integrated an intergenerational dimension to the harm caused by such grave crimes, which was ultimately taken into account when determining the amount of adequate compensation in the reparation phase.59 Such considerations were also present in the Moiwana case, concerning the massacre of part of a Surinamese tribal community and the subsequent displacement of the survivors outside their traditional territory. The court here particularly emphasized the survivors’ distress at the impossibility of carrying out traditional mourning rites and the consequences of displacement from the ancestral land, in light of the community’s deep interdependency with it.60 In both these cases, Guatemala and Suriname were declared responsible for the human rights violations on the basis of an aggravated form of responsibility,61 which influenced the amount of compensation. Beyond compensation, the court provided in each case an articulated set of reparation measures to address as exhaustively as possible the harm suffered by each community. In the Moiwana case, Suriname was ordered among other things to organize the return of the community to its ancestral land and accessorily grant a collective property title to the community. Such an order would stand both as a measure of restitution and as a guarantee of non-repetition, 54 Mayagma (Sumo) Awas Tingni Community (n 51), para 164. 55 Yakye Axa Indigenous Community v Paraguay, Merits, Reparations, and Costs, Inter-American Court of Human Rights Series C No. 125 (17 June 2005) para 217. 56 Mayagma (Sumo) Awas Tingni Community (n 51), para 15; Yakye Axa Indigenous Community (n 55), para 203. 57 Aloeboetoe v Suriname, Reparations and Costs, Inter-American Court of Human Rights, Series C No. 15 (10 September 1993) para 58. 58 Plan de Sánchez Massacre v Guatemala, Merits, Inter-American Court of Human Rights Series C No. 105 (29 April 2004) para 87(a)–(b). 59 Plan de Sánchez Massacre v Guatemala, Reparations, Inter-American Court of Human Rights, Series C No. 116 (19 November 2004) para 81. 60 Moiwana Community (n 53), paras 86(6)–86(8), 86(42), 100–3. 61 Plan de Sánchez (Merits) (n 58), para 51; Moiwana Community (n 53), para 192.

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Remedies 653 since the State also had to ensure the returnees’ safety.62 In the Plan de Sánchez case, an important part of the measures aimed at the revitalization of the Mayan culture within the community—for instance, through development programmes which would include Guatemala’s obligation to ‘study and disseminate the Maya Achi culture’.63 The third area concerns remedies in the context of processes of forced removal of Indigenous children from their families and communities in Canada and Australia, under the racist justification that the latter were not able to take care of their children. Children were then placed in either boarding schools or families belonging to the dom inant social group and would then receive training for low-qualified jobs, a feature which came to question the very qualification of ‘forced assimilation’.64 They were often victims of various forms of physical, mental, and sexual abuse. These processes thus created a generation of traumatized adults, characterized by rates of criminality, addiction, and suicide far higher than the average in these countries. The harm affected not only the children but also their communities, as the removals caused deep cultural disruptions, close to causing their complete vanishing in the absence of any means of cultural and linguistic intergenerational transmission. Such an outcome actually turns out to be the primary motivation for these campaigns of forced removals, as encapsulated in the infamous motto ‘Kill the Indian, save the man’.65 It is noteworthy that ‘forcibly transferring children of the group to another group’ has become an act of genocide under the 1948 Genocide Convention,66 although victims have faced important obstacles to obtain justice on this very ground in the Australian and Canadian contexts.67 Still, confronted with the multiplication of legal claims, both countries chose to handle them through processes of truth and reconciliation.68 With slightly different mandates, both Truth and Reconciliation Commissions (TRC) eventually formulated a number of 62 Moiwana Community (n 53), paras 209–12. 63 Plan de Sánchez (Reparations) (n 59), para 110; Guatemala complied through the establishment of an Academy of Mayan Languages, in Plan de Sánchez Massacre v Guatemala, Order of Monitoring Compliance with Judgment (28 November 2007), paras 37, 41; Plan de Sánchez Massacre v Guatemala, Order of Monitoring Compliance with Judgment (21 February 2011), paras 26–30. 64 Vinodh Jaichand, ‘Residential Schools’ in Dinah L. Shelton (ed), Encyclopedia of Genocide and Crimes Against Humanity, vol. 2 (Macmillan Reference/Thomson Gale 2004) 900; Tove Skutnabb-Kangas and Robert Dunbar, ‘Indigenous Children’s Education as Linguistic Genocide and a Crime Against Humanity? A Global View’ (2010) 1 Gáldu Čála: Journal of Indigenous Peoples Rights 46. 65 Statement made by Lieutenant Richard Henry Pratt, founder of the first residential school in Pennsylvania. See Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’ (2006) 8 Journal of Genocide Research 387, 397. 66 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) art 2(e). 67 See inter alia Kruger v Commonwealth (1997) 190 CLR 1 (31 July 1997) High Court of Australia; Nulyarimma v Thompson (1999); Buzzacott v Hill (1999), FCA 1192 (1 September 1999) Federal Court of Australia; Indian Residential Schools, Re [2000] A.J. No. 638 (Alta. Q.B.) (31 May 2000) Alberta Court of Queen’s Bench, para 73; Raubach et al v The Attorney General of Canada et al. [2005] 1 WWR 334 (6 July 2004) Manitoba Court of Queen’s Bench, para 12. 68 Australian Human Rights Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Commonwealth of Australia 1997).

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654 Elisa Novic recommendations to redress such historical injustices, including reparations. While the Australian report received little echo in terms of implementation,69 the Canadian TRC’s recent recommendations seem to receive greater attention.70 The Canadian TRC was itself actually seen as a measure of reparation, as part of the 2006 Residential School Settlement Agreement,71 which also established a compensation scheme72 and two additional funds dedicated to healing and commemoration.73 The Canadian TRC’s final report goes much further than the order of reparation and is more broadly entitled ‘a call for change’. While the interim report had highlighted the victims’ needs in terms of reparation, such as improving parental skills and respect for their languages and traditions,74 the final report adopted a broader perspective to demand change within and among all spheres of the Canadian society in order to redress the historical treatment inflicted upon Aboriginal people by the rest of the Canadian population.75 If the report makes scant reference to the word ‘reparation’, even distan cing itself from traditional restorative measures such as ‘apologies’, it is noteworthy that the TRC framed its call for change within the legal framework of the UNDRIP, which includes numerous references to reparation and cultural revitalization.76 The TRC also emphasized the need to facilitate access to justice for the victims.77 This led to the recent conclusion of an agreement-in-principle in the context of a ‘class action brought against Canada for its failure to protect Aboriginal identity when children were placed in nonIndigenous adoptive or foster homes’.78 This agreement-in-principle foresees Canada’s investment in a ‘Foundation to enable change and reconciliation’, which includes among its missions the ‘revitalization’ of Canadian culture, as well as the establishment of an individual compensation fund.79 In light of the scope of social change recommended by the Canadian TRC, it will certainly take several generations until the harm may be deemed to have been ‘redressed’. 69 The government of Australia issued a public apology in 2007 and established an annual commem orative day: see Prime Minister Kevin Rudd, MP, Apology to Australia’s Indigenous Peoples (13 February 2008), available at accessed 22 January 2018; Australian government’s webpage on ‘Calendar of cultural and religious events’, available at accessed 22 January 2018. 70 Truth and Reconciliation Commission of Canada (TRC), Honouring the Truth, Reconciling for the Future—Summary of the Final Report of the Truth and Reconciliation of Canada (TRC 2015). 71 Indian Residential Schools Settlement Agreement (8 May 2006) (IRS Canada) Schedule N, art 1. 72 Ibid, art 5.02 (‘Common Experience Payment’). 73 Ibid, Schedule D, arts 3.02, 6.03, 8. 74 Truth and Reconciliation Commission of Canada (TRC), Interim Report (TRC 2012) 6–7. 75 TRC Canada, Honouring the Truth (n 70), 238. 76 UNDRIP (n 16), arts 11 and 13(2). 77 TRC Canada, Honouring the Truth (n 70), 263. 78 Indigenous and Northern Affairs Canada, Sixties Scoop Agreement in Principle—Backgrounder (7 November 2017), available at accessed 19 January 2018; emphasis added. 79 Ibid. In the press release, the government also expresses its willingness to reach similar conclusions in ongoing litigation.

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Remedies 655 The topic of reparation for cultural destruction occurring out of processes of historical injustice has thus far constituted a particularly fertile ground to address collective harm to cultural identity and existence. The holistic nature of the harm called for a holistic response, which was made possible in the context of a human rights approach to repar ation. Such an approach definitely stands as a good practice, although few remedies, including judicial ones, remain available and adequate. The human rights approach might well be emulated beyond the sphere of indigenous collective claims. The UN Special Expert on Cultural Rights has thus called on the International Criminal Court (ICC) to use such a human rights approach in its reparation order in the Al Mahdi case, related to destruction of cultural heritage in Timbuktu (see Section 4.2).80

4. Remedies for Intentional Destruction of Cultural Heritage Attacks against cultural heritage have mostly occurred in the event of armed conflicts, of which they have even become a repeated feature, especially when fuelled by campaigns of ethnic or religious hatred. There are many illustrations of such a trend, such as the gratuitous destruction of the Buddhas of Bamiyan by the Taliban regime in Afghanistan in March 2001, the destruction of the shrines and mausoleums of Timbuktu by fundamentalist armed groups during the 2012–13 armed conflict in Mali, and, more recently, the systematic destruction of cultural heritage by ISIS in both Syria and Iraq. All these cases have involved the destruction of pieces of cultural heritage registered on the World Heritage List in conjunction with attacks against local traditions and heritage, thus filling the twofold aim of harming national and local communities’ identities and humanity as a whole. If the international community’s reaction to such a scourge has intensified over the years,81 such heinous demonstrations of violence have rendered the issue of enforcement a crucial one, in relation to both fighting impunity of the perpetrators of such crimes and redressing the harm caused by such irreparable actions. Though immediate reactions tended to take a soft-law approach, the parallel development of international criminal law contributed to filling the enforcement gap. The most recent milestone has been actual reparation being ordered by the ICC in the Al Mahdi case, tried as part of the Mali situation.

80 Karina Bennoune, UN Special Rapporteur in the Field of Cultural Rights, Brief in Prosecutor v Ahmad Al Faqi Al Mahdi (Reparations phase) ICC-01/12–01/15 (27 April 2017) 37–8. 81 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (adopted 17 October 2003); UNSC Res 2347 (24 March 2017).

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656 Elisa Novic

4.1 The Post-conflict Ad Hoc Approach to Cultural Destruction In much the same way as pillaging of cultural property, destruction of emblematic pieces of cultural heritage has always been a recurring pattern of armed conflicts. It would often prompt strong reactions of outrage from the international community, sometimes criticized for caring more about monuments than human casualties. Still, very few legal consequences have followed these strong statements. The management of cultural heri tage in post-conflict contexts often remains both a technical and political matter. The technical dimension refers to decisions as to whether to reconstruct the destroyed or harmed item, which techniques to employ, and with what funds. This task is often assumed by the international community, whether through international organizations such as UNESCO or through individual State donors. The political dimension comes with the function of dealing with those attacked items, the intentional dimension of the destruction making the post-conflict management as symbolic as the destruction. Such items are likely to be subject to political manipulation. For instance, in Bosnia and Herzegovina many cultural and religious items were destroyed for their actual or constructed ethnic-religious purpose, sometimes in complete contradiction to their history. This phenomenon of ‘ethnicization’ has also been observed in the post-conflict context, as a means of strengthening a victim’s position and thus perpetuating the ethnic divisions.82 At the other end of the spectrum, these items can contribute to post-conflict reconciliation in a more positive manner, as a means of establishing a common memory of the conflict and embodying a narrative of ‘never again’. Still, consensus is not necessarily easy to find as to whether or not to reconstruct the items. In Bamiyan, for instance, the original building material is no longer available, and Afghan society remains divided as to whether re-erecting the Buddhas is the most suitable response to their destruction.83 The integration of cultural heritage within the post-conflict efforts of reconstruction and development thus seems undisputed as such. However, it often lacks the restorative or transformative aspect of reparation and rather constitutes an ad hoc and politically driven intervention. This was especially the case in the aftermath of the Bosnian conflict, where, despite a plethora of relevant judicial and non-judicial mechanisms. For instance, the ICTY’s statute did not provide for measures of reparation. The Dayton Peace Agreement, which put an end to the conflict, was actually quite innovative in terms of establishing specific mechanisms to deal with the Bosnian religious and cultural heritage. A Commission for the Protection of National Monuments was established, as well as a Human Rights Chamber in charge of reviewing individuals and communities’ claims of human rights violations occurring in the post-Dayton 82 Carl Grodach, ‘Reconstituting Identity and History in Post-War Mostar, Bosnia-Herzegovina’ (2002) 6 City 61, 74–5. 83 Frédéric Bobin, ‘Disputes damage hopes of rebuilding Afghanistan’s Bamiyan Buddhas’ The Guardian (10 January 2015) available at accessed 19 January 2018.

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Remedies 657 context, after 14 December 1995.84 This court was entitled to review allegations on the basis of international human rights law, with a special emphasis on the European Convention on Human Rights. A number of cases were brought by religious communities alleging violations of their rights to property and religious freedom by the local authorities. The cases dealt with the administrative obstacles faced in the restitution of their land and reconstruction of their places of worship, one even involving the construction of an Orthodox church in lieu of a mosque destroyed during the conflict in Zvornik.85 The link with the intentional destruction of the armed conflict was blatant, but the Court did not have the mandate to order the authorities to repair the harm caused by the destruction.86 Reparation has, therefore, been limited to pecuniary compensation and orders made to the authorities to remove all barriers to land restitution and reconstruction of mosques.87 These judgments, however, received limited or delayed enforcement. The ordinary judicial system did not achieve more. One case was brought all the way to the Constitutional Court to request compensation on the basis of the destruction of the mosques of Banja Luka. The court eventually rejected the claim, on the basis that the statute of limitation for these crimes had expired, thus overlooking the special circumstances surrounding their destruction, which could have qualified at least as war crimes, challenging the statute of limitation.88 Outside the Bosnian context, very few instances of reparation can be identified. The Claims Commission established to settle the consequences of the armed conflict between Ethiopia and Eritrea still stands out, as Eritrea brought a claim of reparation in relation to the destruction of the Stela of Matara by Ethiopia. The arbitral commission eventually granted financial compensation while refusing to engage with the nonpecuniary dimension of the destruction, especially Eritrea’s request for the Commission to order Ethiopia to officially apologize for the damage.89

84 The General Framework Agreement for Peace in Bosnia and Herzegovina, Dayton (14 December 1995) (Dayton Peace Agreement) Annexes 6 and 8. 85 The Islamic Community in Bosnia and Herzegovina against the Republika Srpska (Decision on Admissibility and Merits) No. CH/96/29 (11 June 1999) Human Rights Chamber (Islamic Community, Banja Luka Case); The Islamic Community in Bosnia and Herzegovina against the Republika Srpska (Decision on Admissibility and Merits) No. CH/98/1062 (9 November 2000) Human Rights Chamber (Islamic Community, Zvornik Case); The Islamic Community in Bosnia and Herzegovina against the Republika Srpska (Decision on Admissibility and Merits) No. CH/99/2656 (6 December 2000) Human Rights Chamber (Islamic Community, Bijeljina Case); The Islamic Community in Bosnia and Herzegovina (Mrkonjic Grad) against the Republika Srpska (Decision on Admissibility and Merits) No. CH/01/7701 (22 December 2003) Human Rights Chamber (Islamic Community, Mrkonjic Grad); Catholic Archdiocese of Vrhbosna against the Federation of Bosnia and Herzegovina (Decision on Admissibility and Merits) No. CH/02/9628 (6 June 2003) Human Rights Chamber (Catholic Archdiocese of Vrhbosna). 86 See e.g. Islamic Community, Zvornik Case (Admissibility and Merits) (n 85), para 123; Islamic Community, Bijeljina Case (n 85), para 127. 87 See, for example, Islamic Community, Banja Luka Case (n 85), paras 212–13. 88 Islamic Community in Bosnia and Herzegovina (Judgment on Admissibility and Merits) AP-743/12 (21 July 2015) Constitutional Court of Bosnia and Herzegovina. The judgment is only available in Bosnian. 89 Central Front Eritrea’s Claims 2, 4, 6, 7, 8, & 22, between the State of Eritrea and the Federal Democratic Republic of Ethiopia (Partial Award) e Hague (28 April 2004) Eritrea Ethiopia Claims Commission, para 114.

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658 Elisa Novic

4.2 The Al Mahdi Reparation Order of the ICC: Paradigmatic Shift or Yet Another Ad Hoc Practice? In contrast to the rather ad hoc approach to reparation, the establishment of the ICC, a permanent international court with a mandate to order reparation, allowed for renewed consideration of the issue free from State intervention and political constraints. In 2015, the Office of the Prosecutor launched an arrest warrant against Ahmad Al Faqi Al Mahdi, based on the sole charge of the war crime of attacking protected objects under article 8(2)(e)(iv) of the Rome Statute, for the destruction of the Sidi Yahia Mosque and nine mausoleums in the city of Timbuktu. The human dimension of the targeted sites resonated throughout the judgment to highlight the gravity of the crimes, especially ‘the fact that the targeted buildings were not only religious buildings but also had a symbolic and emotional value for the inhabitants of Timbuktu’,90 and noting the ‘discriminatory religious motives’ behind the crime.91 The case was eventually quite straightforward, as the defendant filled a declaration of guilt and apologized for the crimes.92 Al Mahdi was sentenced to 9 years’ imprisonment, opening the doors to victims’ reparation in according with article 75 of the Rome Statute. This was the third case to reach the phase of reparation. In the Lubanga case, the ICC had already provided guiding principles for reparation, especially in terms of articulating individual and collective reparation, as well as determining reparation in the context of the perpetrator’s partial or full indigence.93 The Al Mahdi case was, however, at first sight different, since the crimes had primarily targeted cultural heritage rather than human beings, which could possibly involve revising the methodology of reparation. The Trial Chamber, however, immediately adopted a human rights–based approach to reparation by firmly anchoring its methodology in ‘the UN Basic Principles of Justice for Victims of Crime and Abuse of Power and the UN Basic Principles on Reparations for Victims’, thus making an important contribution to the recalibration of international cultural heritage law around its human dimension.94 The Al Mahdi reparation order further came to detail a number of specific issues—namely, the definition of victims of such cultural offences, the individual and/or collective harm caused, as well as adequate repa ration, in the absence of any relevant precedents whether within or outside a criminal framework. 90 Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and sentence) ICC-01/12–01/15 (27 September 2016) Trial Chamber VIII, Para. 79. 91 Ibid, para 81. 92 Ibid, paras 98–105: all these elements played as mitigating factors in the sentencing judgment; ‘this admission [of guilt] may also further peace and reconciliation in Northern Mali by alleviating the victims’ moral suffering through acknowledgement of the significance of the destruction’ (para 100). 93 Prosecutor v Thomas Lubanga Dyilo (Amended Order for Reparations (Annex A)) ICC-01/04–01/06, Appeals Chamber (3 March 2015) paras 101–5, 152. 94 Prosecutor v Ahmad Al Faqi Al Mahdi (Reparations order) ICC-01/12–01/15 (17 August 2017) Trial Chamber VIII, para 24. The Lubanga Reparation Order also refers to the UN Basic principles (n 6) at numerous occasions but rather in footnotes.

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Remedies 659 In the reparation order, with regard to the definition of victims, the Trial Chamber followed the judgment in recognizing three main categories of victims—namely, the ‘faithful and inhabitants of Timbuktu’ as direct victims as well as ‘people throughout Mali and the international community95—although adding that each of these categories had undergone different forms of harm.96 As such, the chamber considered that ‘addressing the harm suffered by the community of Timbuktu will also effectively address the broader harm suffered by Malians and the international community as a whole’97 and therefore decided to reduce the geographical scope insofar as Malians were concerned. The Trial Chamber then moved on to deconstructing the various types of harm caused by Al Mahdi’s crimes, starting from the very destruction of the Protected Buildings. UNESCO and other stakeholders had already proceeded to undertake the reconstruction of those buildings and were not claiming reparation. However, the Trial Chamber considered that this had no impact on Al Mahdi’s personal liability and ordered a set of collective measures of reparation, such as guarantees of non-repetition linked to the rehabilitation of the Protected Sites98 and the diffusion of Al Mahdi’s apolo gies on its website, with translations made available in the local languages spoken in Timbuktu.99 UNESCO and the Malian State were each granted a one-euro symbolic reparation.100 However, the judges did not respond to Al Mahdi’s offer to reimburse the cost of the door of the Sidi Yahia Mosque,101 an element which might still be reintegrated at a later stage, when Al Mahdi’s solvency to implement the order will be determined. Although Al Mahdi escaped the payment of the rehabilitation works already executed, the Court still proceeded to assess the economic loss caused by the destruction of the monument. The judges decided to grant individual reparation ‘only to those whose livelihoods exclusively depended upon the Protected Buildings’—that is, those maintaining the sites and ‘certain business owners . . . whose only purpose is to sell sand perceived as holy from the sites of the Protected Buildings’.102 The overall community of Timbuktu would, however, receive collective measures such as ‘community-based educational and awareness-raising programmes to promote Timbuktu’s important and unique cultural heritage, return/resettlement programmes, a “microcredit system” that would assist the population to generate income, or other cash assistance programmes to restore some of Timbuktu’s lost economic activity’.103 ‘Disruption of culture’ received particular attention in assessing the moral harm, as ‘the Protected Buildings were widely perceived in Timbuktu as being the protectors of the community from outside harm. The attack on the Protected Buildings not only destroyed cherished monuments, but also shattered the community’s collective faith that they were protected.’104 Those who had their ancestors buried in the mausoleums 95 Ibid, para 51; Prosecutor v Al Mahdi (Judgment) (n 90), para 80. 96 Prosecutor v Al Mahdi (Reparations) (n 94), para 53. 97 Ibid, para 54. 98 Ibid, para 67. 99 Ibid, para 71. 100 Ibid, paras 106–7. 101 Prosecutor v Al Mahdi (Judgment) (n 90), para 104. 102 Prosecutor v Al Mahdi (Reparations) (n 94), para 81, footnotes omitted. 104 Ibid, paras 85–6.

103 Ibid, para 83.

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660 Elisa Novic were deemed entitled to individual compensation for the moral harm suffered therein,105 whereas collective measures of memorialization were ordered as a way to redress the harm to the overall city of Timbuktu.106 The Trial Chamber, however, did not address the discriminatory dimension of the crimes underlying the destruction of the Protected Buildings, which they nevertheless constituted as ‘relevant to [the] assessment of the gravity of the crime’.107 The Trial Chamber still emphasized at several occasions ‘the general principles of non-discrimination which must fundamentally underlie the reparations ordered’,108 and most ordered measures of collective reparation may indeed include actions that will help understanding and address the processes of radicalization and discrimination which underlay the attacks. Once the victims and harm were defined, the delicate question of quantifying the damage in order to define Al Mahdi’s liability arose. The Trial Chamber eventually considered that reparation for the destruction of the sites should amount to the cost of UNESCO reparation, namely 97,000 euros. Al Mahdi’s precise liability for economic loss was more difficult to assess, as his participation in the destruction of the mosque and mausoleums of the city could not explain the whole economic slowdown of the Timbuktu region.109 His share was ultimately estimated at 2.18 million euros, against some experts’ suggestion that it should amount to 44.6 million euros. In light of the ‘inherently irreplaceable nature of historical buildings’,110 the chamber followed an expert’s submission and based its calculation of moral harm on the Eritrea–Ethiopia Claims Commission’s award for the destruction of the Stela of Matara, to reach the amount of 483,000 euros. Al Mahdi’s liability thus reached a total of 2.7 million euros. The question remains open as to the implementation of such an order of reparation, in light of Al Mahdi’s indigency. In such instances, the Rome Statute foresees the possibility for the Trust Fund for Victims (TFV) to cover part or all of the order.111 In anticipation, the Trial Chamber already advised that individual reparation shall be prioritized112 and that an ‘administrative screening’ to list all victims entitled to reparation shall be conducted.113 The TFV has submitted a first draft implementation plan in May 2018,114 which the Trial Chamber overall approved in spite of severe remarks related to

105 Ibid, paras 89–90. 106 Ibid, para 90. 107 Prosecutor v Al Mahdi (Judgment) (n 90), para 81. This discriminatory intent still constituted one of the factors, which led the Trust Fund for Victims (TFV) to multiply by four the amount of individual reparation. See Prosecutor v. Ahmad Al Faqi Al Mahdi (Public redacted version of ‘Updated Implementation Plan’) ICC-01/12–01/15-291-Conf-Exp (22 November 2018) Trust Fund for Victims (TFV) para 51. 108 Prosecutor v Al Mahdi (Reparations) (n 94), paras 105, 148. 109 Ibid, paras 119–20. 110 Ibid, para 129. 111 ICC Rome Statute (n 4), art 79. 112 Prosecutor v Al Mahdi (Reparations) (n 94), para 140. 113 Ibid, paras 141–4. 114 Prosecutor v Ahmad Al Faqi Al Mahdi (Public redacted version of ‘Corrected version of Draft Implementation Plan for Reparations, With public redacted Annex I, 20 April 2018, ICC-01/12-01/15265-Conf ’) ICC-01/12-01/15–265 Corr-Red (18 May 2018) Trust Fund for Victims (TFV).

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Remedies 661 the delays and vagueness of the plan, especially in relation to collective reparations.115 The decision reflects the tension between reparation of cultural harm and overall assistance to local communities—that is, between the reparation and assistance mandates of the TFV. The issue was not as much related to the series of measures identified by the TFV—aimed at strengthening the associative fabric and addressing the moral harm through a screening of Al Mahdi’s apology, community dialogue, commemorations, and activities around the protection and maintenance of the damaged buildings116—but rather to the methodology, as they failed to reflect the victims’ needs and, therefore, participation in the process. A revised plan was submitted in November 2018, in which the TFV intended to correct the latter bias, as illustrated by the discussion on memorialization measures, for which the consultation with the victims gave rise to two potential options; a memorial or a Remembrance Day. The TFV concluded to the importance of rather empowering the local population for them to agree on the best way to memorialize.117 The reparation order thus proceeded to a quite sensitive exercise of balancing between individual and collective reparation. This exercise was all the more delicate as the Al Mahdi case was for a while the only case opened within the Malian situation, thus leaving the Malian victims of physical crimes—and they are numerous—frustrated by the absence of justice. The opening of a second case within the Mali situation may potentially help mitigating those feelings as the accused, Al Hassan, was arrested and brought to the ICC on charges of both war crimes, including his alleged participation in the destruction of Timbuktu’s cultural and religious heritage, and crimes against humanity, especially persecution on religious and gender grounds, rape and sexual slavery, and other inhumane acts, including forced marriage.118 In a shorter-term perspective, the TFV may be able to compensate this factual imbalance through its assistance mandate only to a limited extent, as other reparation orders are pending at the ICC level.119 This perhaps shows the main limit of the criminal approach to reparation, in spite of efforts to acknowledge the human dimension of the harm. Unlike the Inter-American cases, the assessment of liability is based on the perpetrator’s involvement rather than the objective victims’ experience. The collective measures of reparation ordered still leave some margin for a holistic approach to the community harm and possibly to an acknowledgement of the differentiated harm undergone by certain categories of the

115 Prosecutor v Ahmad Al Faqi Al Mahdi (Public redacted version of ‘Decision on Trust Fund for Victims’ Draft Implementation Plan for Reparations) ICC-01/12–01/15-273-Red (12 July 2018) Trial Chamber VIII; paras 10–14. 116 The proposals of collective reparation are summarized in ibid, paras 88–90. 117 Prosecutor v Al Mahdi (Updated Implementation Plan) (n 107), para 162. 118 Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Arrest Warrant) ICC-01/12– 01/18–2 (27 March 2018) Pre-Trial Chamber I, paras 12–14. The confirmation of charges is, however, not expected before 8 July 2019. See accessed 23 June 2019. 119 A few months after the Al Mahdi Reparations order, the ICC ordered individual and collective reparations amounting of US$10 million in Prosecutor v Thomas Lubanga Dyilo (Décision fixant le montant des réparations auxquelles Thomas Lubanga Dyilo est tenu) ICC-01/04–01/063379-Red, Trial Chamber II (15 December 2017).

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662 Elisa Novic population, such as women and the youth, as well as its intergenerational harm, which may be tackled by measures of rehabilitation focused on religious and civic education.

5. Concluding Remarks In spite of being limited, remedies for violations of international cultural heritage law have not been left outside the ‘recalibration’120 process undertaken by this branch. The influence of Indigenous peoples’ claims is not foreign to these developments, although the ICC Al Mahdi case has evidenced the value of cultural heritage outside an indigenous context. The consolidation of a reparation framework at the international level, as well as the development of cultural rights and cultural crimes, have been more favourable to the emergence of a complete regime going from prevention and protection to reparation. International human rights law and international criminal law inherently carry a human dimension as they contribute to raising individuals—and sometimes communities—to the level of subjects of international law. Acknowledgment and reparation of cultural harm increasingly emerge as crucial elements of effective justice, allowing for a more precise definition of the harm and consequently a refined definition of reparation around all facets of the former, especially its collective and intergenerational dimension. In this sense, the development of reparation for cultural harm, and more broadly of a cultural dimension to reparations, has the potential to produce its impact at a deep level, and even question the restorative rationale underlying reparation in general international law, to bring a transformative dimension. This is especially true in contexts of historical injustice, where it is necessary to envisage a whole new social order for oppressed communities to find their place in broader society and receive fair treatment. Bringing the focus on culture thus implies addressing the question of cultural diversity and co-existence, as group cultural oppression—whether through marginalization or destruction of its tangible features—necessarily involves an oppressor—whether a society as a whole or a small group of violent actors. The most recent cases thus all involve measures ultimately targeting individuals beyond the targeted victim group. Such potential still needs to be fully exploited, which harkens back to the limits of procedural remedies. Reparation eventually very much depends on the remedies, which themselves depend on procedural and substantive jurisdictional bases, which are too often missing in international cultural heritage law.

120 Ana F. Vrdoljak, ‘Cultural Heritage in Human Rights and Humanitarian Law’ in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press 2011) 281.

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Pa rt I V

PRO C E DU R A L AND I NST I T U T IONA L A SPE C T S

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chapter 28

I n ter nationa l Dispu te R esolu tion M ech a n isms Marc-André Renold*

1. Introduction As the only specialized agency of the United Nations with a mandate for the protection of culture, the United Nations Educational, Scientific and Cultural Organization (UNESCO) has approved various international treaties and several soft-law instruments. As a result, today, cultural heritage law constitutes a distinct field of international law that encompasses the safeguarding of monuments, sites, artworks, landscapes, intangible heritage, and the rights associated to them. However, the development of this composite legal regime has not been accompan ied by the creation of a specialized forum for solving disputes. Indeed, none of the existing treaties sets up a special tribunal or adequate system of control to ensure the consistent application of their norms. This is surprising, given that disputes in this field do arise.1 Many controversies concern the restitution of movable cultural objects lost during war, occupation, or colonization or as a result of theft or illicit trade in peacetime. Given that artworks are often found outside their country of origin, these cases are of a crossborder nature as they involve more than one legal system and/or entities established or residing in different jurisdictions. Furthermore, international disputes have also arisen regarding immovable cultural heritage and its protection, not only in warlike * Professor at the University of Geneva. With my warmest thanks to Alessandro Chechi, Senior Lecturer at the University of Geneva, for his thorough research and much appreciated input for the final ization of the present chapter. 1 For an overview of the issue of dispute settlement in the cultural heritage field, see Alessandro Chechi, The Settlement of International Cultural Heritage Disputes (Oxford University Press 2014).

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666 Marc-André Renold situations and intentional attacks but also in non-violent processes, such as the realization of development projects. Various cases also concern the issue of management and access to built heritage. The obvious consequence of this state of affairs is that international cultural heritage disputes can be settled through non-judicial procedures—such as negotiation, mediation, conciliation, or arbitration—which are commonly referred to as ‘Alternative Dispute Resolution’ (ADR) means;2 or, if these fail or are not available, through litigation before domestic courts or international tribunals.3 This chapter seeks to examine these dispute resolution mechanisms and to assess their efficacy (or inefficacy) for the resolution of international disputes involving cultural heritage items. For the purposes of the present chapter, an international dispute is defined as any disagreement or non-forcible clash concerning a matter of fact, law, or policy whereby a claim or assertion of one party is met with refusal, counterclaim, or denial by another and which involves either a State or the application of international law rules. Due to space limits, this contribution will concentrate on disputes over tangible heri tage (that is, movable or immovable objects of importance for archaeology, prehistory, history, architecture, art, or science), thereby leaving aside the problems connected to the adjudication of disputes involving expressions of intangible heritage and the (cultural) rights associated to it.4

2. Litigation before Domestic Courts The initiation of legal proceedings before domestic courts is the main avenue for the settlement of the majority of transnational art cases.5 States normally sue before foreign domestic courts by relying either on patrimony laws or export statutes. On the other hand, non-State entities such as collectors and museums resort to domestic courts mostly seeking restitution as a remedy for the violation of the right to property. Criminal cases are not uncommon. However, the judicial practice demonstrates that it is not easy to

2 See Chapter 30 in this Handbook. 3 The only exception to this situation is represented by the domestic laws providing for non-forensic procedures designed to facilitate restitution of Indigenous peoples’ cultural heritage and of Holocaustrelated art. As regards Indigenous peoples’ heritage, see James A. R. Nafziger, ‘Cultural Heritage Law: The International Regime’ in James A.R. Nafziger and Tullio Scovazzi (eds), The Cultural Heritage of Mankind (Martinus Nijhoff 2008) 145, at 213–14; with respect to Holocaust-related art, see Evelien Campfens (ed), Fair and Just Solutions? Alternatives to Litigation in Nazi Looted Art Disputes: Status Quo and New Developments (Eleven Publishing 2014). 4 On this see, for example, Federico Lenzerini, The Culturalization of Human Rights (Oxford University Press 2014). 5 Marc-André Renold, ‘Le droit de l’art et des biens culturels en Suisse: questions choisies’ (2010) 129 Revue de droit suisse 137, 198.

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International Dispute Resolution Mechanisms 667 prove that a defendant was involved in theft or illicit trafficking, or that he or she acquired a stolen object knowingly, because of the lack of transparency of the art market.6 A certain number of reasons can guide a claimant to select court litigation. First, by going before courts, claimants will eventually receive a final decision. This decision can subsequently be enforced through the ordinary judicial machinery, if need be. Second, the parties—and their counsel—can rely on well-established rules of procedure and on the independence of judges. Third, recourse to litigation may exert pressure on the defendant, who may then become more willing to abandon an overly legalistic approach and to agree on a negotiated solution. This is proven by the fact that many lawsuits concerning cultural heritage have not been pursued further before domestic courts, as the parties have reached an out-of-court settlement. The following examples demonstrate that domestic courts have been able to provide solutions to cultural heritage disputes. In the Goldberg case,7 the Court of Appeals of Indiana ruled that the possession of four unique Byzantine mosaics had to be awarded to the plaintiffs, the Autocephalous Greek-Orthodox Church of Cyprus and the Republic of Cyprus, as against the defendant, art dealer Peg Goldberg. The verdict was mostly based on the fact that the mosaics, which had been stolen from the Cypriot Church of the Panagia Kanakaria in Lythrankomi following the 1974 Turkish invasion of the island, had not been acquired by Goldberg in good faith, as at the moment of the acquisition she omitted to carry out due diligence checks and, hence, did not obtain a superior and enforceable claim vis-à-vis the plaintiffs. In the Barakat case,8 Iran sued the London-based Barakat Galleries to recover a collection of antiquities, affirming that they were taken in violation of its national ownership laws. The Court of Appeal focused on the justiciability of Iran’s claim and distinguished between recognition of a nation’s ownership rights in its property and enforcement of a foreign nation’s laws in British courts. The court found that, in this case, Iran asserted a claim based upon title conferred by legislation. Therefore, the court ruled that British courts should recognize Iran’s national ownership law as private property law and the defendant should be charged with the obligation to return the items to Iran.9 Notably, the Court of Appeal reached this conclusion by relying also on a public policy argument: ‘[T]here are positive reasons of policy why a claim by a State to recover antiquities which form part of its national heritage . . . should not be shut out. . . . There is international recognition that States should assist one another to prevent the unlawful removal of cultural objects including antiquities.’10 According to the court, 6 Alessandro Chechi, ‘Plurality and Coordination of Dispute Settlement Methods in the Field of Cultural Heritage’ in Francesco Francioni and James Gordley (eds), Enforcing Cultural Heritage Law (Oxford University Press 2013) 177–205, 187. 7 Autocephalous Greek Orthodox Church of Cyprus v Goldberg, 717 F Supp 1374 (SD Ind 1989), affirmed 917 F.2d 278 (7th Cir 1990). 8 Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2007] EWHC 705 QB, reviewed [2007] EWCA Civ 1374 (hereafter ‘Iran v Barakat Galleries’). 9 Ibid, para 163. 10 Ibid, paras 154–5.

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668 Marc-André Renold States were required to engage in mutual assistance by virtue of a series of instruments which had the purpose of preventing unlawful dealing in property11—despite the fact that these were not directly applicable to this case—as these illustrate the international acceptance of the desirability of protection of the national heritage. A refusal to recognize the title of a foreign State conferred by its law to archaeological objects unless they had come into the possession of such State would, in most cases, render it impossible for this country to recognize any claim by such a State to recover antiquities unlawfully exported to this country. If actual possession were required before a State could recover archaeological objects illicitly excavated by clandestine looters, as a practical matter they could never be recovered as they are unknown to State authorities prior to exportation.12 Hence, the court affirmed that it is British public policy to recognize the ownership claim of foreign nations to antiquities that belong to their patrimony.13 The third case concerns one of the Swiss sites inscribed under the Wold Heritage Convention (WHC),14 the ‘Lavaux Vineyard Terraces’.15 The case arose when a landowner brought an action against his neighbour for the construction of a parking space and against the local municipality for having issued the building permit. The complainant relied on the fact that the Terraces are inscribed on the WHC List. In 2012, the Swiss Federal Tribunal dismissed the case pointing out that, although an action can be based on a breach of an international treaty, the provisions relied on should be self-executing. According to the tribunal, the WHC does not contain such provisions as it merely requires contracting States to identify and protect the cultural and natural properties situated within their jurisdiction. On the other hand, however, the tribunal found that existing domestic legislation and procedures can ensure the preservation of the ‘outstanding universal value’ of the site despite the disputed construction. Although domestic courts can deal with cultural heritage–related disputes, litigation usually remains a matter of last resort in the cultural heritage field. Individuals, institutions, and/or States generally go before courts when extrajudicial methods have failed or are not available as litigation presents certain flaws that can dissuade from bringing an action. 11 The Court referred, inter alia, to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property (adopted 14 November 1970, entered in force 24 April 1972) 823 UNTS 231 (hereafter ‘1970 UNESCO Convention’) and the UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects (adopted 24 June 1995, entered into force 1 July 1998) (1995) 34 ILM 1322 (hereafter ‘1995 UNIDROIT Convention’). 12 Iran v Barakat Galleries (n 8), paras 155–63. 13 The appeal judgment on the preliminary question of the efficacy of Iranian law was followed by the House of Lords’ refusal to grant appeal in mid-2008. The success of the first appeal and the defendant’s failure to obtain permission for a second appeal led to a final settlement in late 2011. Norman Palmer, ‘Waging and Engaging: Reflections on the Mediation of Art and Antiquity Claims’ in Marc-André Renold, Alessandro Chechi, and Anne Laure Bandle (eds), Resolving Disputes in Cultural Property (Schulthess 2012) 81–105, 85, 91. 14 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. 15 A v B, Case No 1C 22/2012, Judgment of 30 August 2012.

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International Dispute Resolution Mechanisms 669 Access to the court system is the first problem. Although several constitutions guarantee the right to bring a claim for the protection of individual rights and legitimate interests, legal action is not always available. For instance, courts may dismiss restitution claims on grounds of lack of jurisdiction on the basis of, inter alia, sovereign immunity. In addition, lawsuits may be barred by the expiry of limitation periods.16 The enforcement of judgments can also be a major drawback. After the issuance of the final decision, the winning party may have to proceed to have the judgment recognized and enforced in a foreign jurisdiction. In addition, resorting to litigation entails considerable economic and human expenses. Litigants may not only suffer the loss of time, but also the burden of paying the legal costs of lengthy proceedings as a consequence of the intricate issues of fact and law involved in transnational cases.17 Finally, litigation may cause antagonism between the parties and victims. Indeed, courts of law are not equipped to achieve win–win solutions and resorting to litigation implies that the parties will have to live with a ‘black and white’ decision based on the applicable legal principles: either the court will recognize the initial owner’s title or it will give effect to the actual possessor’s claim. Unfortunately, rigid adherence to one-sided legalistic stances often hardens into inflexible positions, thus worsening relations.18 In spite of the above, domestic courts are resorted to by litigants, even if, as said, these may be unable to serve justice due to the limits posed by their jurisdiction and the applicable law. This is demonstrated by the case concerning the painting Portrait of Wally by Egon Schiele. The painting was loaned in 1997 by the Leopold Museum of Vienna to the Museum of Modern Art (MOMA) of New York. The descendants of Lea Bondi Jaray, from whom Portrait of Wally was illegally taken in 1939, demanded restitution. The MOMA refused, citing its contractual obligation with the Leopold Foundation, and a decade of litigation ensued. The case was eventually settled through negotiations in 2010.19 Arguably, many years and economic resources will be spent for the resolution of the case of the Crimean treasure, which is pending before Dutch courts between Ukraine, four Crimean Museums, and the Allard Pierson Museum of Amsterdam. This dispute concerns a collection of archaeological golden objects that were sent on loan by four Crimean museums to the Dutch Museum for an exhibition in February 2014. 16 All legal systems subject the starting of proceedings to certain time limits which may start from the time of the theft, from the discovery of the location of the object or of the identity of the holder. See Ruth Redmond-Cooper, ‘Limitation of Actions in Art and Antiquity Claims’ (2000) 5 Art Antiquity and Law 185. 17 Norman Palmer, ‘Statutory, Forensic and Ethical Initiatives in the Recovery of Stolen Art and Antiquities’ in Norman Palmer (ed), The Recovery of Stolen Art (Kluwer 1998) 1–31, 18–19. 18 Marc-André Renold and Alessandro Chechi, ‘Just and Fair Solutions: An Analysis of International Practice and Trends’ in Evelien Campfens (ed), Fair and Just Solutions? Alternatives to Litigation in Nazi Looted Art Disputes: Status Quo and New Developments (Eleven Publishing 2014) 187–200, 190. 19 For more details on the case, see Raphael Contel, Giulia Soldan, and Alessandro Chechi, ‘Portrait of Wally: United States and Estate of Lea Bondi and Leopold Museum’ ArThemis, Art-Law Centre, University of Geneva .

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670 Marc-André Renold After Russia’s annexation of Crimea in March 2014, the treasures were reclaimed by the Ukraine central government and the four Crimean museums. The exhibition closed in late August 2014, but the collection was not sent back to the Crimean museums. In fact, the Allard Pierson Museum decided to keep the collection items until the ownership dispute is resolved. In November 2014, the Crimean museums filed a lawsuit in the Netherlands seeking the return of the collection. In 2016, the Court of Amsterdam decided that the treasure must be returned to Ukraine and not to the museums in Crimea. The last episode of this fray occurred in July 2019, when the Amsterdam Court of Appeal rendered an interim judgment whereby it requested further information from the parties regarding the ownership claimed by the Ukrainian State and the right of operational management claimed by the Crimean museums.20

3. Litigation before International Tribunals Over the last few decades, new international judicial or quasi-judicial bodies have been created besides the International Court of Justice, including the International Tribunal for the Law of the Sea, the International Criminal Court, the European Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the African Court of Human and Peoples’ Rights, the Andean Court of Justice, and the ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda. This phenomenon is motivated by the fact that the increased density, quantity, and complexity of international norms require a corresponding increase in the density of institutions sustaining those norms and efficient means of dispute settlement.21 However, judicialization has developed inconsistently. There are areas that, while showing increasing levels of legalization, have not been judicialized. Cultural heritage is one of these. The development of cultural heritage law as a distinct branch of international law has not been accompanied by the creation of a dedicated dispute settlement system.22 Nevertheless, many disputes concerning cultural heritage have been submitted to the ICJ and to other international fora devoted to other fields. The following section offers a non-exhaustive overview of the jurisprudence of some of these judicial bodies in matters of cultural heritage.23 20 See at . 21 Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford University Press 2003) 2–4. 22 Alessandro Chechi, ‘Evaluating the Establishment of an International Cultural Heritage Court’ (2013) 18 Art Antiquity and Law 31, 31–2. 23 Alessandro Chechi, ‘Some Reflections on International Adjudication of Cultural Heritage-Related Cases’ (2013) 10(5) Transnational Dispute Management. Online publication available at .

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3.1 International Adjudication of Cultural Heritage Cases The European Court of Human Rights (ECtHR) has never recognized a right to the protection of cultural heritage as such. Nevertheless, it has accepted that the protection of that heritage is a legitimate aim that the State may pursue when interfering with individual rights, especially with the right to property enshrined in article 1 of Protocol No. 1 of the European Convention on Human Rights (ECHR). The case Beyeler v Italy24 concerned the compatibility of the right of pre-emption set forth in Italian law with the right to property. Although the ECtHR recognized that the State can legitimately seek to protect national cultural and artistic heritage, it found a violation of the right to property. The Court held that, in this case, the requirement of fair balance between the general interest for the protection of the national patrimony and the protection of the individual’s property right was violated because Italy waited over four years to exercise the right of pre-emption.25 In Kozacıoğlu v Turkey,26 the issue at stake was whether the amount of compensation awarded to the applicant for the expropriation of a building was a disproportionate interference with the right to property. The ECtHR held that Turkey had violated article 1 because ‘neither the rarity of the expropriated building nor its architectural or his toric al features were taken into consideration in calculating the amount of compensation’.27 The decision in the case of Prince Hans-Adam II of Liechtenstein v Germany28 concerned the ownership of the painting Der große Kalkofen by the seventeenth-century Dutch master Pieter van Laer. This was confiscated by Czechoslovakia from Prince Franz Joseph II of Liechtenstein—along with other property and without compensation— after World War II. The Prince challenged the seizure before Czechoslovakian courts, but to no avail. In 1991, the painting was loaned to a German museum. Prince HansAdam II of Liechtenstein, as heir to the former owner, filed suit in Germany seeking restitution. However, no less than four judicial bodies rejected the Prince’s claim as inadmissible. Nonetheless the Prince lodged an application with the ECtHR against Germany for the alleged breach of, inter alia, the right to property on account of the recognition of the Czechoslovak confiscation measures by German courts. The ECtHR held that the applicant’s rights under the ECHR had not been violated by the decisions of German courts because, under the exceptional circumstances in which post-war Germany found itself, the exclusion of jurisdiction was not unreasonable.29 24 Application No 33202/1996, 5 January 2000. 25 Marc-André Renold, ‘A Landmark Decision in Art Law by the European Court of Human Rights: Beyeler v Italy’ (2000) vol 5 Art Antiquity and Law 73. 26 Application No 2334/03, 19 February 2009. 27 Ibid, para 67. The court examined claims of violation of property rights in relation to expropriation proceedings also in The Former King of Greece and others v Greece (Application No 25701/94, 23 November 2003) and The Holy Monasteries v Greece (Application No 13092/87, 13984/88, 9 December 1994). 28 Application No 42527/98, 21 July 2001. 29 Andrea Gattini, ‘A Trojan Horse for Sudeten Claims? On Some Implications of the Prince of Liechtenstein v Germany’ (2002) 13 European Journal of International Law 513.

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672 Marc-André Renold Apart from the right to property, other ECHR rights have been invoked in cases concerning cultural objects. These rights include the freedom of religion30 and the freedom of assembly.31 The application filed in 2010 by the Church of Cyprus against Turkey is illustrative of this trend.32 The applicant complained of a violation of article 1 Protocol 1 ECHR for the alleged lack of access and enjoyment of religious property belonging to the Church in the Turkish held area and also lodged a complaint under articles 9 and 11 ECHR because Turkish Cypriot authorities had continually prevented the Orthodox Church and its parishioners from holding religious services in Christian Orthodox places of worship located in northern Cyprus. However, the application was rejected for non-exhaustion of domestic remedies pursuant to article 35 ECHR. The European Court of Justice is the judicial arm of the European Union (EU) and has the task of ensuring the proper interpretation and application of EU law. The competence of this court need not be described in great detail here. It suffices to mention that the court has the power to challenge EU Member States’ measures adopted for the ‘protection of national treasures possessing artistic, historic or archaeological value’33 whenever these come to infringe the rules concerning the free movement of goods. Thus far, there have been no decisions either on the meaning of ‘national treasures’.34 Nevertheless, it is worth mentioning the decision in the case Commission v Italian Republic.35 In this case, the European Court of Justice found that the restrictive Italian norms on the export of cultural objects were unlawful and could not be justified on the grounds that they aimed at protecting national treasures. According to the court, the Italian law did not intend to protect national treasures but to make the exportation of antiquities more expensive and, hence, more convenient for the State. The International Court of Justice (ICJ) has dealt with only a handful of cultural heritage-related cases to date. The first judgment that is worth mentioning is Temple of Preah Vihear.36 This temple is an outstanding masterpiece of Khmer architecture situated in a border zone disputed by Cambodia and Thailand. This dispute concerned the issue of territorial sovereignty with regard to the area where the temple is located. Therefore, the issues of protection and restitution of cultural assets were incidental to that of the delimitation of national boundaries. Eventually, the ICJ found that the temple belonged to Cambodia and ordered the return to it of the ‘sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might . . . have been

30 Art 9 ECHR. 31 Art 11 ECHR. 32 Chrysostomos v Turkey, Application No 66611/2009, Decision of 4 January 2011. 33 Art 36 of the Consolidated Treaty on the Functioning of the European Union (13 December 2007) 2008/C 115/01 (‘Treaty of Rome’). 34 Likewise, neither World Trade Organization (WTO) Panels nor the Appellate Body have had the chance to delineate the scope and meaning of art XX(f) of the General Agreement on Trade and Tariffs 1994 (‘GATT’), which provides WTO members with the possibility to adopt measures ‘imposed for the protection of national treasures of artistic, historic and archaeological value’. 35 Case 7/68 [1968] ECR 423. 36 Temple of Preah Vihear (Cambodia v Thailand) (Judgment of 15 June 1962) International Court of Justice Rep 6.

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International Dispute Resolution Mechanisms 673 removed from the Temple or the Temple area by the Thai authorities’.37 In 2011, Cambodia filed a request for interpretation of the 1962 judgment, together with a request for the indication of provisional measures, due to inability of the two States to come to an agreement on the borderline. In its Order of July 2011, the court instituted a ‘provisional demilitarized zone’ around the Temple, requiring the States to ‘withdraw immediately their armed forces’ therefrom and to ‘refrain from any military presence within that zone and from any armed activity directed at that zone’.38 Subsequently, in 2013, the court handed down its judgment, wherein it confirmed that the whole territory of the promontory of Preah Vihear was under Cambodian sovereignty.39 Yet, the court did not limit itself to responding to the request for interpretation but went on to link two general principles of international law—the prohibition of the threat or use of force and the obligation to settle international disputes by peaceful means—to the obligations contained in the WHC (as the Temple had been inscribed on the WHC List in 2008), in order to affirm that Cambodia and Thailand had the obligation to cooperate between themselves and with the international community in the protection of the Temple, a site of religious and cultural significance not only for the peoples of the region but also for humankind as a whole.40 The case Certain Property (Liechtenstein v Germany)41 concerned the same issue discussed by the ECtHR, namely the ownership of the van Laer painting confiscated by Czechoslovakia from the family of the Prince of Liechtenstein after World War II. The Prince’s lawyers submitted an application before the ICJ against Germany on the basis that the claim concerned not only the individual rights of Prince Hans Adam II but also the sovereign rights of Liechtenstein. Liechtenstein requested the ICJ to find that Germany had incurred international legal responsibility because of the decisions rendered by its national courts with respect to Liechtenstein’s property. The ICJ rejected the application for lack of jurisdiction ratione temporis because the 1957 European Convention for the Peaceful Settlement of Disputes, upon which Liechtenstein based the court’s jurisdiction, entered into force between the two States only in 1980, long after the cause of action occurred.42 The legal protection of cultural heritage was also at stake in the Genocide case.43 In this case, the applicant State argued that the systematic destruction of buildings, libraries, 37 Ibid, para 36. 38 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Provisional Measures, Order of 18 July 2011), paras 61–6, 69. 39 Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Judgment of 11 November 2013). 40 Ibid, para 106. On this judgment, see Alessandro Chechi, ‘The 2013 Judgment of the ICJ in the Temple of Preah Vihear Case and the Protection of World Cultural Heritage Sites in Wartime’ (2016) 6 Asian Journal of International Law 353–78. 41 Certain Property (Liechtenstein v Germany) (Preliminary Objections, 10 February 2005) International Court of Justice Rep 6, para 6. 42 See Gattini, ‘A Trojan Horse’ (n 29). 43 Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment of 26 February 2007).

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674 Marc-André Renold and other cultural properties was evidence of the respondent State’s plan to accomplish a deliberate act of obliteration of all traces of life and culture of the Muslim population in the targeted territory, so as to amount to genocide. Although it recognized that such acts amounted to international crimes, the ICJ concluded that the targeting of such representative assets could not be considered a genocidal act within the meaning of the Genocide Convention.44 In so doing, the ICJ endorsed existing international criminal law jurisprudence, which embraces a physical/biological understanding of genocide at the expense of a sociocultural understanding of the same.45 Finally, a key development comes from the judgment in Jurisdictional Immunities of the State.46 As is well known, in this case Germany contended, inter alia, that Italy’s taking measures of constraint against Villa Vigoni amounted to violations of Germany’s immunity. Villa Vigoni, a German State property located near Lake Como, is a museum and the seat of a cultural centre intended to promote cultural exchanges between Germany and Italy. The ICJ ruled in favour of the applicant State, thereby confirming that immunity from execution applies to cultural property insofar as such property is specifically in use or intended for use for governmental purposes. This means that immunity not only covers artistic objects per se but also any property, such as museums and institutions, through which States pursue cultural and educational activities. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by the UN Security Council to investigate and prosecute individuals responsible for war crimes that took place during the Yugoslav War of the 1990s. Among the violations of the laws and customs of war, the ICTY Statute includes the ‘seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and the sciences, historic monuments and works of art and science’.47 Although the ICTY has not handed down any decisions on the restitution of artworks of art, it has ordered various convictions for the destruction of or wilful damage done to churches, mosques, and other sites endowed with religious and cultural relevance. In particular, it is worth mentioning that the WHC status of Dubrovnik’s Old Town was a determining factor in the convictions of commanders Miodrag Jokić and Pavle Strugar following their 1991 shelling of the city.48 In addition, the ICTY acknowledged the connection

44 Ibid, paras 194, 335–44. 45 See Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (Oxford University Press 2016) 239. 46 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (Judgment of 2 February 2012). 47 Art 3(d) of the Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May 1993 by Resolution 827). 48 See e.g. Prosecutor v Pavle Strugar (Judgment) IT-01–42-PT (31 January 2005); Prosecutor v Miodrag Jokić, (Judgment) IT-01-42/1-S (18 March 2004). For an overview see Federico Lenzerini, ‘The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage’ in Francesco Francioni and James Gordley (eds), Enforcing Cultural Heritage Law (Oxford University Press 2013) 40–64, 44.

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International Dispute Resolution Mechanisms 675 between the intent to destroy a group of people and the destruction of cultural works and religious sites that form part of that group’s history, culture, and identity.49 On the other hand, only one case has been decided thus far by the International Criminal Court (ICC) in relation to cultural heritage. In 2016, the ICC unanimously found Ahmad al Faqi al Mahdi, a militant of Ansar Dine (a terrorist movement linked to al-Qaeda), guilty, as a co-perpetrator, of the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, in breach of article 8(2)(e)(iv) of the ICC Statute.50 The Chamber sentenced Al Mahdi to nine years’ imprisonment. Not only this is the first case decided by the ICC concerning the destruction of cultural property; it is also the first time that an international criminal tribunal dealt exclusively with the crime of deliberate attacks directed against cultural heritage. Interestingly, in 2017 Trial Chamber VIII issued a reparations order concluding that Al Mahdi is liable for 2.7 million euros for individual and collective reparations for the community of Timbuktu for intentionally directing attacks against religious and historic buildings in that city. Noting Al Mahdi’s indigence, the Chamber encouraged the Trust Funds for Victims to complement the reparations award.51 A new judgment could be handed down by the ICC in relation to cultural heritage at the end of the criminal proceedings against Abdoul Aziz Al Hassan, a former militant of Ansar Dine accused, inter alia, of having intentionally directed attacks against buildings dedicated to religion and historic monuments and of other war crimes and crimes against humanity.52 The present overview would not be complete without considering the decisions of the arbitral tribunals created under the International Convention for Settlement of Investment Disputes (ICSID). ICSID’s case law demonstrates that disputes arise when investment projects are to be implemented within or close to protected sites, notably WHC sites, and that international cultural heritage law can influence the outcome of decisions, even if it is not part of the applicable law.53 Two cases are worth mentioning. The Southern Pacific Properties (Middle East) Limited v The Arab Republic of Egypt case54 concerned a contract signed by Egypt and Southern Pacific Properties (a Hong Kong corporation) involving the development of a tourist village at the Pyramids of Giza. As the area was added to the WHC List in 1978, the Egyptian government ter minated the contract. The corporation instituted an arbitral proceeding against Egypt claiming damages for breach of the agreement and compensation. The tribunal 49 See, for example, Prosecutor v Dario Kordić and Mario Čerkez (Judgment) IT-95–14/2-T (26 February 2001); Prosecutor v Enver Hadžihasanović and Amir Kubura (Judgment) IT-01–47 (15 March 2006). 50 Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment) ICC-01/12–01/15 (27 September 2016). 51 Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment) ICC-01/12–01/15–236 (17 August 2017). 52 Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12–01/18. 53 Francesco Francioni, ‘Public and Private in the International Protection of Global Cultural Goods’ (2012) 23 European Journal of International Law 719, 727–9. 54 Case No ARB/84/3 (Award on the Merits of 20 May 1992).

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676 Marc-André Renold awarded damages to the foreign investor. However, the right to compensation was limited to projected profits concerning the period prior to the inscription of the site in the WHC List. This means that the ICSID tribunal not only recognized the WHC as relevant applicable law but also that it accepted the primacy of its obligations over investment rules.55 This approach was reproduced in the award in the case Parkerings-Compagniet AS v Republic of Lithuania.56 This case arose from a public tender launched by the municipality of Vilnius (Lithuania) for the building of a parking system in order to control traffic and protect the integrity of the city’s historic Old Town, which had been included in the WHC List since 1994. The city of Vilnius entered into a contract with a Norwegian investor, Parkerings-Compagniet. However, due to technical difficulties, legislative changes, and public opposition, the municipality terminated the contract. Subsequently, the city concluded another contract with a Dutch company. Consequently, ParkeringsCompagniet filed a claim before an ICSID tribunal. The tribunal dismissed the claim of the Norwegian company that Lithuania had violated the most-favoured nation clause on the ground that the project of the Norwegian company was likely to impact on the city’s historic Old Town, whereas the Dutch company’s plan was smaller, entailing no impact on the preservation of the cathedral square. The tribunal also established that the protective concerns expressed by the municipality constituted an objective justification, thereby excluding discriminatory treatment of Parkerings-Compagniet vis-à-vis the Dutch competitor. All in all, in these cases ICSID tribunals have attempted to strike a balance between, on the one hand, investors’ interests in exploiting their investment and property rights and, on the other hand, States’ interests in implementing national pol icies and abiding by international obligations aimed at protecting cultural heritage. Finally, it is worth considering the World Bank Inspection Panel. Established in 1993, this quasi-judicial organ57 was created to improve the World Bank’s compliance with its procedures and policies. In particular, the World Bank recognizes that culture is a significant element in the process of economic and social development, on the one hand, and that development projects may impinge upon the preservation of cultural heritage sites, on the other.58 Furthermore, the World Bank acknowledges that economic development should encourage the preservation and study of cultural heritage. One reason is that the destruction of a country’s patrimony is irreversible. Another reason is that the preservation and study of heritage items can be very useful in the successful design of

55 For comment, see Patrick O’Keefe, ‘Foreign Investment and the World Heritage Convention’ (1994) 3 International Journal of Cultural Property 259. 56 Case No. ARB/05/08 (Award of 11 September 2007). 57 The Inspection Panel consists of three members who are appointed for five-year non-renewable terms. Panel members are appointed by the Board, are officials of the World Bank, and operate independently from World Bank management. 58 Charles E. Di Leva, ‘The World Bank’s Policy on Physical Cultural Resources’ in Barbara Hoffman (ed), Art and Cultural Heritage: Law, Policy and Practice (Cambridge University Press 2006) 245.

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International Dispute Resolution Mechanisms 677 present and future development projects.59 These concerns are reflected in the Memorandum of Understanding signed with UNESCO in 2011 and in the World Bank’s Operational Policies, which contain the overarching commitment to the principle that the World Bank should do no harm with regard to cultural heritage in carrying out its projects. In particular, Operational Policy 4.11 on ‘Physical Cultural Resources’ requires that an impact assessment of the potential risks to physical (movable or immovable) cultural assets must be carried out at an early stage through a consultative process that must be open to all project-affected groups, concerned government authorities, and NGOs.60 The panel has the power to consider requests for inspection from two or more persons or their local representative. In response to requests from affected people, the panel has the power to carry out independent investigations of World Bank–financed projects to determine whether the World Bank is in compliance with its policies and procedures. As such, the panel sets an important precedent in international law in that it provides a unique opportunity for individuals and communities to challenge the activities of an international institution. Two examples are worth mentioning. The first case concerns the Chad–Cameroon oil and pipeline project.61 In 2001, several individual applicants brought a request for inspection alleging that the World Bank had violated a number of operational policies by funding a project—the construction of a pipeline between Chad and Cameroon—that threatened local communities, their cultural property, and the environment. The applicants alleged, inter alia, the violation of Operational Directive 4.20 (‘Indigenous People’) and Operational Policy Note 11.03 (‘Management of Cultural Property in Bank Financed Projects’), which required consideration of the impact of the proposed project on cultural heritage items. The panel found that the first Operational Directive was not applicable and that the project complied with the second. In the case of the Ilisu Dam in Turkey, the impact assessment revealed that the construction of a dam would entail severe consequences for the population, the natural environment, and cultural heritage. As a result, the World Bank rejected the funding request.62 This proves not only that the World Bank can assist borrowing countries in the preservation of their cultural patrimony, and can avoid or mitigate the adverse impacts on cultural heritage of the projects that it finances, but also that it refuses to finance projects that may damage non-replicable cultural assets. 59 Robert Goodland and Maryla Webb, The Management of Cultural Property in World Bank Assisted Projects: Archaeological, Historical, Religious and Natural Unique Sites (World Bank Technical Paper No WTP 62, World Bank 1987). 60 World Bank, Culture and the Corporate Priorities of the World Bank, Report on Progress from April 1999 to December 2002 (World Bank, 2003), available at accessed 22 August 2019. 61 Investigation Report of the Inspection Panel, Chad-Cameroon Pipeline Project (Loan No 4558-CD). 62 Initiative to Keep Hasankeyf Alive (HYG), Report on the Current Status of the Ilisu Hydroelectric Power Plant Project and Hasankeyf (HYG 2017), available at accessed 22 August 2019; and Wangkeo Kanchana, ‘Monumental Challenges: The Lawfulness of Destroying Cultural Heritage During Peacetime’ (2003) 28 Yale Journal of International Law 183, 229–30.

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3.2 Virtues and Vices of International Adjudication The decision to institute proceedings before an international judicial body—regardless of the subject matter of the dispute—is subject to various considerations. Obviously, these include the virtues and vices of judicial proceedings.63 The prime advantages are the legal expertise of international judges and their independence from the influence of the parties or other undue external pressures.64 Moreover, it is worth mentioning that, when the States in dispute are not able to reach a settlement through diplomatic means, it is not only desirable but also essential that the dispute be referred to a judicial body. Without such an option, the treaty or treaties at the centre of the dispute could turn out to be dead letter, and the rights and obligations set out therein would be of no significance to the States Parties or to their population.65 Another important merit is that international courts are endowed with well-established rules and procedures. This means that judges can make decisions more easily and consistently. A further advantage is that, at the end of the litigation, there is a definitive and binding decision based on international law. However, international courts have a number of important pitfalls. For instance, as stated by Lauterpacht, the ‘first rule of international litigation is to avoid it if it all pos sible. International litigation should be turned to as a last resort.’66 The main argument for this is that international litigation, like domestic litigation, can lead to uncertain outcomes. Lauterpacht maintained that ‘the fact that in a multi-member tribunal [a dispute] will be investigated by more than one mind . . . may lead to a result that is quite unexpected’, even if the relevant rule of law appears clear.67 Moreover, he pointed out that international litigation is often costly and lengthy and may have repercussions on the relations between the parties.68 Other pitfalls of international adjudication stem from one of the inherent features of international law—namely, that it is the law designed by States for States—and one of the fundamental principles of the peaceful settlement of disputes by adjudication—namely, the principle of consent. According to this principle, no State can be compelled without its consent to submit its disputes to an international court or be subject to procedures resulting in a binding decision of a thirdparty adjudicator. Not only can States refuse to consent to a court’s jurisdiction, in whole 63 Chechi, ‘Some Reflections’ (n 23). 64 This is not to say that judges are completely impartial, especially when they decide cases in which their state of nationality is a party. Although they are expected to strive to be independent and not biased, their work is, like that of all human beings, influenced by their education and by ideological, political, and religious factors. See Mohamed Shahabuddeen, Precedent in the World Court (Cambridge University Press 1996) 4. 65 Thomas A. Mensah, ‘Using Judicial Bodies for the Implementation and Enforcement of International Environmental Law’ in Isabelle Buffard et al. (eds), International Law Between Universalism and Fragmentation (Martinus Nijhoff 2008) 797, 810. 66 Elihu Lauterpacht, ‘Principles of Procedure in International Litigation’ (2009) vol 345 Recueil des Cours de l’Académie de Droit International de La Haye 345, 485. 67 Ibid. 68 Ibid, 487.

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International Dispute Resolution Mechanisms 679 or in part, but they can also decide not to comply with judicial decisions.69 It follows that the distinction between litigation and ADR is not valid in case of disputes between States given that the preliminary consent of the State(s) involved is required even for the starting of judicial proceedings before an international tribunal.

4. Resolution of Cultural Heritage Cases through ADR The shortcomings affecting litigation before domestic courts and international tribunals strengthen the appeal of ADR methods. In addition, ADR procedures combine important virtues. Indeed, ADR processes provide the necessary flexibility for handling all cultural heritage-related disputes as they: (i) are not bound to statutes of limitation; (ii) are not concerned with strict legal interpretation; and (iii) can focus on ethical and political concerns, fairness, and common sense. In sum, ADR can facilitate consensual, quicker, and cheaper win–win solutions. This is so also because these techniques are available at any time, either together with or as a part of other processes. For instance, negotiations often run parallel to lawsuits.70 At this juncture, the different ADR must be defined.71 Negotiation is a voluntary, non-binding, direct mechanism that allows the parties to resolve a dispute without the intermediation of a neutral third party and allows disputants to create win–win solutions, where creative and mutually satisfactory outcomes are envisaged and existing legal obstacles are set aside. When the antagonism impedes direct negotiations, litigants may resort to mediation. This entails the intervention of a neutral third party in a dispute with the purpose of merely assisting the litigants to reach a mutually satisfactory agreement by promoting bargains and concessions. Conciliation involves an independent commission or an individual that acts as a third party. The task of the conciliator is to investigate the dispute and propose a solution to the parties. This implies a more in-depth study of the dispute as compared to mediation.72 Finally, the parties to a dispute can settle their controversy by arbitration if they rely on an arbitration clause contained in a general undertaking (such as a treaty or a contract) or by stipulating a submission agreement (compromis). The primary benefit of arbitration resides in the parties’ power to shape the process to fit their needs. Disputants can agree, inter alia, on the selection of one or more arbitrators, the applicable law, and the rules of evidence to be applied. If the 69 Jacob Katz Cogan, ‘Competition and Control in International Adjudication’ (2008) 48 Virginia Journal of International Law 411, 424–6. 70 Renold, ‘Le droit de l’art et des biens culturels’ (n 5) 199; Chechi, The Settlement of International Cultural Heritage Disputes (n 1) 181–2. 71 See Chapter 30 in this Handbook. 72 The bodies established in some States for Holocaust-related cases provide a scheme of resolution that resembles conciliation. See Renold and Chechi, ‘Just and Fair Solutions’ (n 18) 192.

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680 Marc-André Renold parties have failed to subject the agreement to a law of their choice, the law of the place of arbitration applies on a subsidiary basis. Litigants are permitted to include clauses which allow arbitrators to decide according to ‘equity’, ‘good conscience’, and principles other than those embodied in the rules of the selected system of law. Unlike the other methods, which have a non-binding character, arbitration is binding: once parties voluntarily refer a dispute to arbitration, they are bound by the final award. Having said this, it should come as no surprise that a majority of cultural heritage–related disputes which have arisen in the past four decades have been settled out of court.73 This trend is in line with the rules and principles adopted in the past decades by States and international organizations. For instance, pursuant to Art 8(2) of the 1995 UNIDROIT Convention, litigants are permitted to submit their dispute to arbitration, while the ‘Principles’ adopted on the occasion of the Washington Conference on Holocaust-Era Assets74 encourage States to achieve ‘just and fair solutions’ (Principles 8 and 9) and to develop ‘alternative dispute resolution mechanisms for resolving ownership issues’ (Principle 11). It is for these reasons that a number of international and non-governmental organizations—UNESCO, the World Intellectual Property Organization, and the International Council of Museums—have established specific rules and procedures aimed at coping with the issue of the resolution of cultural heritage–related disputes. These newly developed procedures differ from pre-existing ADR options in being specifically tailored to deal with cultural heritage disputes.75

4.1 The Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation Created in 1978,76 the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (hereafter ICPRCP) is a permanent intergovernmental body that was entrusted with the mandate to assist UNESCO Member States in dealing with cases falling outside the scope of application of the 1970 UNESCO Convention, such as the 73 See Lisa Borodkin, ‘The Economics of Antiquities Looting and a Proposed Legal Alternative’ (1995) 95 Columbia Law Review 377, 403; Clemency Coggins, ‘A Licit International Traffic in Ancient Art: Let There Be Light!’ (1995) 4 International Journal of Cultural Property 61, 75. 74 The conference took place in December 1998 on the initiative of the United States. 75 See Renold, ‘Le droit de l’art et des biens culturels’ (n 5) 199–200; Alessandro Chechi, ‘New Rules and Procedures for the Prevention and the Settlement of Cultural Heritage Disputes: A Critical Appraisal of Problems and Prospects’ in Federico Lenzerini and Ana F. Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014) 249–68. 76 Established with Resolution 20 C4/7.6/5, 24 October–28 November 1978.

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International Dispute Resolution Mechanisms 681 disputes concerning historical cases of cultural objects lost as a result of colonial or foreign occupation. Therefore, the committee’s focus did not encompass the issue of illicit traffic per se. The ICPRCP has no jurisdictional power to rule in disputes between States. Rather, it simply acts in an advisory capacity, thereby offering a framework for discussion and negotiation. Over the years, the ICPRCP has been called on to solve few cases. Admittedly, one of the main reasons for this dismaying caseload is the unequal bargaining power of former colonial powers and requesting States. Another reason may be that State-run museums oppose repatriation. Further, it must also be acknowledged that the procedure for the lodgement of claims with the ICPRCP is complex and is not accessible to many States because it requires the input of information which is not readily available. In view of these difficulties, and in order to enhance the process of restitution of cultural objects, particularly in the context of dispute resolution linked to cultural heritage, UNESCO’s General Conference adopted at its 33rd session in 2005 a resolution that explicitly articulates the mediatory and conciliatory functions of the ICPRCP. As a result, article 4(1) of the new ICPRCP Statutes now reads as follows: The Committee shall be responsible for: . . . seeking ways and means of facilitating bilateral negotiations for the restitution or return of cultural property to its countries of origin when they are undertaken according to the conditions defined in Article 9. In this connection, the Committee may also submit proposals with a view to mediation or conciliation to the Member States concerned . . . provided that any additional, necessary funding shall come from extrabudgetary resources. For the exercise of the mediation and conciliation functions, the Committee may establish appropriate rules of procedure. The outcome of the mediation and conciliation process is not binding on the Member States concerned, so that if it does not lead to the settlement of a problem, it shall remain before the Committee.

Apart from clarifying that the regular UNESCO budget will not cover the costs of medi ation and conciliation, article 4(1) empowers the ICPRCP to make a proposal for medi ation or conciliation to States that have submitted a dispute before it and specifies that the outcome of such processes is not binding. The ICPRCP then approved a set of Rules of Procedure for Mediation and Conciliation. Only UNESCO Member States and associate members may defer to the elaborated procedures for mediation and conciliation, but States may represent the interests of public or private institutions located in their territories, as well as those of their nationals. This confirms the State-centric approach of UNESCO’s mediation and conciliation pro cedures: States remain the protagonists of the process, and, as such, they are empowered to shape the mediation and conciliation proceedings to fit their needs. The invocation of the principles that traditionally govern interstate relations evidences that these mechan isms are not detached from the body of international law.

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4.2 The ICOM–WIPO Art and Cultural Heritage Mediation Program In May 2011, the International Council of Museums (ICOM)77 and the World Intellectual Property Organization (WIPO)78 launched a special mediation process, the ICOM–WIPO Art and Cultural Heritage Mediation Program (hereafter ICOM–WIPO Mediation). This resource is the result of ICOM and WIPO’s long-standing relationship and of recent initiatives calling for the adoption of new and innovative methods to facilitate the settlement of cultural heritage disputes.79 The disputants that decide to resort to the ICOM–WIPO Mediation are provided with a clear and efficient procedural framework set out in the ICOM–WIPO Mediation Rules (hereafter Mediation Rules).80 As clarified by article 2, ‘[t]he scope of the medi ation procedure is intended to cover disputes relating to ICOM’s areas of activities, including but not limited to return and restitution, loan and deposit, acquisition, and intellectual property’. In effect, it may also cover issues relating to digitalization, donation, droit de suite, and misappropriation or misuse of traditional cultural expressions. The same article states that the scope of the mediation procedure may involve ‘public or private parties including but not limited to States, museums, indigenous communities, and individuals’. In effect, the Mediation Rules are available also to ICOM non-members. The Mediation Rules provide for the establishment of a list of mediators with expert ise and experience in art and related areas (art 7) that can be appointed by the parties (art 8). Furthermore, the Mediation Rules refer to the ICOM Code of Ethics for Museums as a tool providing guidance for the mediator and the parties (art 14). The Mediation Rules further include: (i) safeguards for mediator impartiality and independence; (ii) timelines; (iii) guarantees of confidentiality; (iv) a reduced schedule of fees on a not-forprofit basis; and (v) specific model mediation clauses and submission agreements. Unsurprisingly, the Mediation Rules confirm that mediation binds the disputants only if they agree to accept it. Article 17 further states that the mediator can either promote the settlement of the issues in dispute that they believe to be appropriate or, when they believe that any issues ‘are not susceptible to resolution through mediation’, may 77 Established in 1946, ICOM is a non-governmental and non-profit organization representing the international community of museums and museum professionals. See . 78 WIPO is a specialized agency of the United Nations dedicated to the development of a balanced and effective international intellectual property system as a means of stimulating innovation and creativity for the economic, social, and cultural development of all countries. See . 79 See, for example, ICOM Legal Affairs & Properties Standing Committee, Report on the International Process for the Resolution of Disputes over the Ownership of Objects in Museum Collections (2005); and ICOM’s General Assembly Resolution No 4, Preventing Illicit Traffic and Promoting the Physical Return, Repatriation, and Restitution of Cultural Property (2007). 80 See .

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International Dispute Resolution Mechanisms 683 propose procedures for resolving those issues which are most likely ‘to lead to the most efficient, least costly and most productive settlement’. These other procedures and means include expert determination or expedited arbitration.

5. Beyond International Dispute Resolution Mechanisms: Reaching Fair and Just Solutions through ADR There are grounds to affirm that, compared to adjudication before international courts and tribunals, ADR methods provide the parties with greater flexibility and facilitate consensual, mutually satisfactory settlements. This is so also because these procedures allow the parties to take into account ethical and moral principles in addition to—or in place of—purely legal principles. In addition, ADR methods allow parties to find ori ginal, fair, and just solutions which are not limited to restitution or the rejection of the demand.81 These also include compensation and satisfaction. Notably, restitution, compensation, and satisfaction are the forms of reparations envisaged by the Articles on Responsibility of States for Internationally Wrongful Acts completed by the International Law Commission (ILC) in 2001.82 As is well known, the ILC articles establish that, in case of a breach of an international legal obligation, the responsible State must make full reparation—that is, by removing or redressing the consequences of the breach.83 Restitution, compensation, and satisfaction are the means through which the responsible State can achieve reparation. With respect to restitution, the Commentary to article 35 provides that material restitution include the return of wrongly cultural objects—as exemplified by the cases discussed in the preceding pages. Restitution of cultural objects is certainly the consequence of the international responsibility of the State that wrongfully removed such objects and can be seen as a case of restitutio in integrum, as it makes it possible to restore the status quo ante.84 As hinted, available State practice demonstrates that ADR allows reaching other solutions besides outright restitution. In cases where the claimant wants its ownership title recognized without necessarily having possession of the artworks, museums can 81 Marie Cornu and Marc-André Renold, ‘New Developments in the Restitution of Cultural Property: Alternative Means of Dispute Resolution’ (2010) 17 International Journal of Cultural Property 1. 82 International Law Commission, UN Doc A/56/83, 3 August 2001. 83 Art 31. See Dinah Shelton, Remedies in International Human Rights Law (Oxford University Press 2005) 7. 84 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001) Vol II Yearbook of the International Law Commission 97, para 5. See also Frédéric Coulée, ‘Quelques remarques sur la restitution interetatique des biens culturels sous l’angle du droit international public’ (2000) Revue Générale de Droit International Public 359, 369.

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684 Marc-André Renold consider obtaining a long-term or temporary loan. The latter solution was achieved between Nigeria and France in the Nok and Sokoto sculptures case.85 In 1998, the French government bought three Nok and Sokoto sculptures from a private dealer. Soon after, having obtained the consent of Nigeria on the acquisition, two of these sculptures were exhibited at the Louvre Museum. This agreement gave rise to strong criticism, since the sculptures had most likely been illegally exported from Nigeria and were included on ICOM’s Red List of African Archaeological Cultural Objects at Risk. Following negotiation between the two countries, Nigeria’s ownership was recognized and, in return, the sculptures remained in France on long-term loan. Another solution that ADR can offer is co-ownership. In disputes where parties cannot agree on sole ownership of an artwork, notably where there have been several possessors for long periods of time, parties could consider sharing ownership.86 One example is the Searle/Gutmann litigation relating to the Degas painting Landscape with Smokestacks. The painting originally belonged to Jewish art collector Friedrich Gutmann, but its trail was lost after Gutmann sent it in 1939 to a Parisian dealer for safekeeping. In 1995, the painting was displayed at the Art Institute of Chicago and two of Gutmann’s heirs traced it to the collection of Daniel Searle. The Gutmann heirs instituted legal proceedings against Searle for the restitution of the painting. The case was settled out of court on the eve of trial through a form of co-ownership agreement, where the Gutmann heirs and Searle agreed to equally divide the ownership of the painting, each having freedom to do what he wanted with his share. Searle then transferred his share to the Art Institute of Chicago, where he was a trustee. In turn, the Art Institute bought the heirs’ interest at fair market value. The Art Institute therefore ended up as the sole owner of the painting. The second remedy is compensation. The importance of this solution can be illustrated by the Nazi-looted art cases, whereby the victims of Nazi persecution or their heirs have preferred to receive money rather than obtaining the restitution of the disputed objects. Compensation can be achieved through the sale of the requested object to a third party. This solution entails that the parties agree to sell on the market the actual claimed work of art in order to divide the proceeds of the sale. This case can be illustrated by referring to another Nazi-looted art case resolved through conciliation, namely the decision of the Dutch Restitution Commission regarding the painting Road to Calvary by Brunswijker Monogrammist. In 1935, Nazi authorities took the painting from Jakob and Rosa Oppenheimer. The painting resurfaced in 2006 when a Dutch citizen brought it to be auctioned at Sotheby’s. Having finally discovered the location of the painting, the Oppenheimers did not ask for the painting’s restitution. Instead, they demanded a proportion of the prospected sale proceeds, the amount of which was, however, disputed. Therefore, the parties submitted a joint request to the Dutch Minister for Education, 85 Ece Velioglu, Anne Laure Bandle, Alessandro Chechi, and Marc-André Renold, ‘Case Three Nok and Sokoto Sculptures: Nigeria and France’ ArThemis, Art-Law Centre, University of Geneva . 86 On this innovative solution, see Marc-André Renold, ‘Cultural Co-Ownership: Preventing and Solving Cultural Property Claims’ (2015) 22 International Journal of Cultural Property 163, 167.

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International Dispute Resolution Mechanisms 685 Culture, and Science to have the dispute settled by the Restitutions Committee. In May 2010, the Committee issued its binding advice according to which the heirs would be entitled to 40 per cent of the sale proceeds.87 The dispute over Egon Schiele’s Portrait of Wally mentioned in Section 2 is also relevant to the present discussion.88 This case was settled through negotiations in July 2010, and the agreement included, inter alia, a provision on compensation. In effect, the Leopold Museum agreed to pay the claimants US$19 million; in exchange, the claimants dropped the legal action. The settlement of the Portrait of Wally case allows us to turn to satisfaction, a solution which is often overlooked. This entail the recognition of a dispossessed owner’s original ownership title and the misappropriation suffered during the war. In effect, the settle ment agreement for Portrait of Wally included a clause whereby the Leopold Museum undertook to display signage next to the painting containing information on its true provenance. Likewise, in the Searle/Gutmann case discussed earlier in this section, as the original owners’ heirs were not interested in obtaining ownership, the parties agreed that the Art Institute would place a label commemorating the misappropriation next to the painting Landscape with Smokestacks as a form of recognition for the injustices committed by the Nazis. Nevertheless, it must be conceded that ADR methods are characterized by some shortcomings. The first is the voluntary nature of ADR. Indeed, outside the realm of contractual disputes, litigants may be reluctant to resort to negotiation, mediation, conciliation, or arbitration in the absence of significant incentives. For instance, it can often be the case that a party has no interest in going into arbitration as long as they cannot be brought in via litigation. They would rather ignore the claim or rely on their rights under the general law of possession and ownership.89 This problem is illustrated by the wellknown Altmann case,90 where the Republic of Austria rejected the initial proposal of Maria Altmann to submit the dispute to arbitration.91 The same holds true as regards negotiation and mediation, as shown in the case of the painting Dedham from Landham by John Constable. In this case, the Musée des Beaux-Arts of the city La Chaux-deFonds in Switzerland received the painting through a donation in 1986. In 2006, city authorities were contacted by the representative of the heirs of John and Anna Jaffé, who claimed the restitution of the painting on the grounds that it had been the object of a forced sale by the Nazis in Nice in 1942. However, the city refused to enter into negoti ation. In effect, after a careful examination of the case, the city authorities refused restitution. Although they recognized that the painting had been unlawfully taken by the 87 Dutch Restitution Committee, Binding Advice Concerning the Dispute over the Painting Road to Calvary 3 May 2010, Case No RC 3.95, available at accessed 22 August 2019. 88 See n 19 and related text. 89 Isabelle Fellrath Gazzini, Cultural Property Disputes (Transnational Publishers 2004) 124–5. 90 Caroline Renold, Alessandro Chechi, Anne Laure Bandle, and Marc-André Renold, ‘Case 6 Klimt Paintings: Maria Altmann and Austria’ ArThemis, Art-Law Centre, University of Geneva . 91 Chechi, The Settlement of International Cultural Heritage Disputes (n 1) 138.

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686 Marc-André Renold Nazis, they decided that the restitution claim was to be rejected. The city maintained that the success of a claim for restitution by the applicants relied primarily on evidence of lack of good faith. Yet, in the absence of such a demonstration, the city held that it had become the owner of the painting at the latest in 1991—that is, five years after the 1986 donation—pursuant to article 728(1) of the Swiss Civil Code on acquisitive prescription (usucapio). Interestingly, the city completely changed its attitude once the Jaffé heirs decided to initiate a suit in early 2017. Seeing the negative impact on public opinion of opening the debate on the delicate issues of the good faith of the purchasers in 1946, and of the city when receiving the donation in 1986, it was decided that restitution was much more appropriate, which eventually took place in March 2018.92 This case also points to another shortcoming—namely, that negotiation and mediation do not guarantee that a final accord is achieved and subsequently enforced given the lack of a mechanism by which parties can be compelled to honor the settlement. Finally, it should be noted that ADR methods are not always less costly and less time-consuming than litigation. This benefit is not always attainable by resorting to arbitration. For example, the entire arbitration process, including the recognition and enforcement of the award, is not always expeditious and may end up being more expensive than judicial litigation when taking into account the arbitrators’ remuneration. In part, this explains the marked contrast between the rarity of arbitrated settlements and the abundance of negotiated agreements.

92 See Anne Laure Bandle, Vanessa Vuille, and Marc-André Renold, ‘Affaire Vallée de la Stour: Héritiers Jaffé et La Chaux-de-Fonds’ ArThemis, Centre du droit de l’art, Université de Genève .

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chapter 29

The Role of Dom e stic Cou rts Kurt Siehr

1. Introduction This chapter is structured in sections discussing the arguments an attorney must deal with in a case of the return of art objects where his or her client is found to be a person not having a right of possession:

2. Immunity 3. Jurisdiction of Domestic Courts 4. Governing Law 5. Application of Substantive Law 6. Correction by the Lex Fori 7. Recognition of Foreign Judgments 8. Conclusion

Each of these sections is subdivided into subsections which discuss important problems of the respective section in detail. The concluding section summarizes the solutions discussed in this chapter.

2. Immunity 2.1 Immunity of Defendant In several cases a foreign country as defendant has raised the defence of immunity. Two cases may be mentioned. In Maria Altmann v Republic of Austria the Republic of

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688 Kurt Siehr Austria, initially being sued in a court in California, raised this defence, and the Supreme Court of the United States had to decide the issue. Applying the Foreign Sovereign Immunities Act (FSIA) qualified the property issue as ‘commercial activity’ (actum iure gestionis) and denied immunity of the defendant.1 The same was decided in the case De Csepel v Republic of Hungary. In addition, it was held that the taking of the property of the plaintiff by the Republic of Hungary had an effect in the United States, as required by § 1605 (a)(2) FSIA,2 meaning the act of State doctrine was inapplicable and thus allowing the lawsuit in the United States against Hungary.3 In the case Westfield v Federal Republic of Germany (FRG), the plaintiffs wanted to be compensated by the FRG for expropriation during the Nazi period.4 Immunity was granted because there was no commercial activity and, therefore, no activity with ‘direct effect in the United States’.

2.2 Immunity of Art Object Public international law also holds immune those foreign art objects which, because of foreign policy grounds or good cultural relations between States, are lent to local exhibitions and then are subject of an application for seizure by third persons claiming to be the owner of these art objects or the creditor of the lending foreign State.5 The first time such immunity of objects was used as defence was the French case of the Tribunal civil de la Seine of 12 July 1954, concerning thirty-seven Picasso paintings from the former Russian collector Sergei Shchukin (1854–1936) and on loan from Russia to France.6 The heirs of Shchukin, living in France, tried to recover the paintings and sued the institution which received the loan. They failed because the Tribunal felt incompetent to seize the paintings owned by Russia and lent to France. The paintings were held immune from national jurisdiction. The most recent case of object-immunity is the Swiss case of Russian loans of French paintings to the Fondation Pierre Gianadda in Martigny, Switzerland, to be exhibited in an exhibition in the Art Museum Martigny in 2005.7 When the exhibition was about to 1 Altmann v Republic of Austria, 541 US 699 (2004); as to the argument of immunity, see Chapter 24 in this Handbook and Bruce L. Hay, Nazi-Looted Art and the Law (Springer 2018) 43–68, 46–62. 2 28 USC § 1605(a) ‘A foreign state shall not be immune . . . in any case (2) in which the action is based upon a commercial activity carried on in the United States . . . or outside the territory of the United States . . . and that act causes a direct effect in the United States.’ 3 De Csepel v Republic of Hungary, 714 F.3d 591 (DC Cir 2013); as to the argument of immunity, see Hay, Nazi-Looted Art and the Law (n 1) 241–6. 4 Westfield v Federal Republic of Germany, 633 F3d 409 (6th Cir 2011); as to the argument of immunity, see Hay, Nazi-Looted Art and the Law (n 1) 72–91. 5 Nout van Woudenberg, State Immunity and Cultural Objects on Loan (Martinus Nijhoff 2012) 49 ff. 6 Journal du droit international (Clunet) 82 (1955) 118 (De Keller c. Maison de la Pensée française), with note by J. B. Sialelli. 7 See, for example, Woudenberg, State Immunity and Cultural Objects on Loan (n 5) 310–14; Jérôme Candrian, ‘Les tableaux du Musée Pouchkine de Moscou—poursuites, immunité et arbitrage sous le signe de l’Etat de droit’ (2007) 71 Blätter für Schuldbetreibung und Konkurs 85; Kerstin Odendahl,

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The Role of Domestic Courts 689 finish, the credit firm Noga, which held an arbitration award against Russia, seized the paintings and asked for their sale in order to pay the debts of Russia. The Federal Government of Switzerland (Bundesrat) finally solved the problem by issuing a decision, on 16 November 2005, that stated that the Russian paintings were immune from seizure and, hence, were allowed to leave the territory of Switzerland.8

2.3 Return Guarantees Today many countries have introduced ‘return guarantees’; the country receiving the foreign loan may apply for such a guarantee and, if granted, the objects on loan cannot be the subject of any proceedings raised by anybody against the objects or their owner.9 Such a ‘return guarantee’ has nothing to do with immunity under public international law. It can also be given if the lending institution is ready to give the loan as a commercial activity (for example, if the institution takes part in the success of the exhibition abroad or asks for compensation). The American federal statute on immunity from seizure, and the same rule of the State of New York, had not been applied to Holocaust art on loan in New York.10 Courts did not want to be the haven of stolen property. Other problems have still to be decided by courts. The first problem is the constitutional conflict with the basic right of access to court; the other is a possible conflict with international obligations (for example, under the 1970 UNESCO Convention or under European directives) to return the objects on loan to another country of origin.11

3. Jurisdiction of Domestic Courts With respect to jurisdiction, two different kinds must be distinguished: international jurisdiction and subject matter jurisdiction. ‘Immunität entliehener ausländischer staatlicher Kulturgüter: Eine Analyse der Affäre um die Beschlagnahmung der Gemälde aus dem Puschkin-Museum im November 2005’ (2006) 15 Aktuelle Juristische Praxis 1175. 8 For the decision of 16 November 2005, see Hansjörg Peter, ‘Les tableaux du Musée Pouchkine de Moscou’ (2006) 70 Blätter für Schuldbetreibung und Konkurs 61, 64 ff; Nout van Woudenberg, ‘State Immunity and Cultural Objects on Loan: Are Cultural Objects Belonging to Foreign States While on Loan Immune From Seizure on the Basis of Customary International Law?’ (2012) 3 Bulletin Kunst & Recht 38. 9 Michael Anton, Rechtshandbuch Kulturgüterschutz und Kunstrestitutionsrecht: Band 3: Internationales Kulturgüterprivat- und Zivilverfahrensrecht (De Gruyter 2010) 173 ff. 10 Matter of Grand Jury Subpoena, 677 N.Y.2d 872 (Sup. Ct. N.Y.City 1998) (Portrait of Wally); see also Woudenberg (n 5) 184 ff. 11 As to these problems, see Michael Anton (n 9), 248 ff.; Matthias Weller, ‘Die rechtsverbindliche Rückgabezusage’, in Festschrift für Achim Krämer (De Gruyter 2009) 721–35 (728–34).

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690 Kurt Siehr

3.1 International Jurisdiction Normally, national courts have jurisdiction over claims for recovery, restitution, or damages with respect to forged, stolen, converted, expropriated, looted, or illegally excavated or exported cultural objects, unless the parties to the dispute agreed to submit their case to arbitration.12 There are several heads of jurisdiction of local courts. In many cases jurisdiction is not a disputed issue, but some cases should be mentioned as examples.

3.1.1 Habitual Residence of the Defendant Most cases in Europe are started in the courts of the defendant’s habitual residence. This head of jurisdiction is the general one in all cases of private law and in the field of art law. This was done in the Austrian Unterberger case before the Supreme Court of Austria, in which the owner of a painting attributed to Franz Richard Unterberger (1837–1902) sued the art expert Sybille Moser-Ernst of the University of Innsbruck at her habitual residence in Innsbruck, Austria, for damages because of her incorrect assessment of the painting by Unterberger as a forgery.13 The same is true in many other regions of the world, including in the famous American case Hahn v Duveen.14 The couple Hahn owned a painting they thought to be the original of La Belle Ferronière by Leonardo da Vinci (1452–1519). The couple wanted to sell the painting to the Kansas City Art Museum, which would thereby have acquired the first Leonardo artwork in the United States at that time. There was much discussion about La Belle Ferronière because the Louvre in Paris also exhibited a painting by Leonardo with a portrait of the same lady, also called La Belle Ferronière. Lord Duveen (1869–1939), one of the most successful art dealers in New York and London before World War II, was also asked about the painting. During a telephone call from a New York journalist to London, where Lord Duveen stayed in a hotel, Lord Duveen said: ‘The Hahn picture is a copy, hundreds of which have been made. The real La Belle Ferronnière is in the Louvre.’15 Because of this statement the Kansas City Art Museum declined to buy the painting, and the Hahns sued Lord Duveen. The couple sued for incorrect and false statement because Lord Duveen never saw the painting owned by them. The suit was brought in New York where the defendant had his principal place of business.16 12 This was done in the dispute of Maria Altmann with respect to the portrait The Golden Adele by Gustav Klimt: Altmann v Republic of Austria, 142 F.Supp 2d 1187 (CD Calif 2001); 317 F.3d 954 (9th Cir 2002); rehearing denied 327 F.3d 1246 (9th Cir 2003) (hereafter ‘Altmann v Republic of Austria’) . 13 Oberster Gerichtshof 20 October 2005, Juristische Blätter 2006, 178. 14 Hahn v Duveen, 234 NY Supp 185 (Supr Ct 1929). 15 Harry Hahn, The Rape of La Belle (Glenn 1946) 3. 16 The case was never definitely decided because the experts did not find a conclusive answer. In 1929, Lord Duveen paid voluntarily US$60,000 (today circa US$60 million) to the Hahns and, finally, the ‘Leonardo’ was sold at auction for US$1.3 million by Sotheby’s of New York in December 2010 as ‘Follower of Leonardo Da Vinci, probably before 1750’.

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The Role of Domestic Courts 691 In the case Estate of Nelson v Rice the defendants, Carl and Anne Rice, were sued by the representatives of the Estate of Nelson at their habitual residence.17 The defendants had bought at sale at auction in Tucson, Arizona, two paintings for US$60 which they later sold through Christie’s of New York for US$1 million as the work of Martin Johnson Heade (1819–1904), an early American painter. The plaintiffs asked for rescission of the contract because of mutual mistake. The lawsuit failed because ‘[t]he Estate had had ample opportunity to discover what it was selling and failed to do so; instead, it ignored the possibility that the paintings were valuable and attempted to take action only after learning of their worth as a result of the efforts of the Rices. Under these circumstances, the Estate was a victim of its own folly.’18 In all these cases it was not the art object itself that was at issue but rather damages for misattribution or for unjust enrichment because of discovery of ‘sleepers’.19 This may be different in cases in which the object itself is asked to be returned.

3.1.2 Location of the Art Object It seems most art law cases for recovery or restitution of stolen of expropriated art objects are commenced at the place where the art object is located. This is done under different legal aspects. 3.1.2.1 Location: Suit for Return by the Owner A claim for return (tort claim of replevin) is very often started in the place where the art object asked to be returned is located. This was done in the Elicofon case in New York,20 in which stolen paintings by Albrecht Dürer (1471–1528) were discovered and where a replevin claim was decided in favor of the owner against Edward Elicofon, domiciled in New York. The same was true in the famous English Winkworth case,21 in which the former owner of netsuke artworks stolen in England, then sold to a good-faith purchaser in Italy and, finally, put at auction in London, was unsuccessful because the right of a good-faith purchaser acquired in Italy was recognized in England as vested right. For such claims the recast Brussels Regulation No I (on jurisdiction in commercial matters) of 2012 provides expressly for jurisdiction at the place of location of an art object (art 7 no 4).22

17 12 P.3d 238 (CA Arizona 2000). 18 Ibid. 19 Philip Mould, Sleepers: In Search of Lost Old Masters (Fourth Estate 1995) 11 ff; Anne Laure Bandle, The Sale of Misattributed Artworks and Antiques at Auction (Elgar 2016) 7 ff. 20 Kunstsammlungen zu Weimar v Elicofon, 678 F.2d 1150 (2d Cir 1982) (hereafter ‘Elicofon case’). See also Kurt Siehr, ‘50 Jahre nach Entdeckung der Dürer-Portraits in New York. Zum Rechtsstreit Kunstsammlungen zu Weimar v Elicofon’ in Matthias Weller, Nicolai B. Kemle, and Thomas Dreier (eds), Kunst und Recht: Rückblick, Gegenwart und Zukunft (Nomos, Dike, facultas 2017) 103–27. 21 Winkworth v Christie, Manson and Woods [1980] 2 WLR 937 (Ch D). 22 Generally to this head of jurisdiction, see Sophie Charlotte Thürk, Belegenheitsgerichtsstände (Mohr 2018).

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692 Kurt Siehr 3.1.2.2 Location: Declaration that Plaintiff in Possession is the Owner In recent years, plaintiffs in possession have asked for a determination that they are the owner of an art object. There was no question of jurisdiction to be solved except for jurisdiction of federal courts. Such law suits were brought in the cases Toledo Museum of Art v Ullin, concerning the painting Street Scene in Tahiti by Paul Gaugin (1848–1903), formerly owned by Martha Nathan who sold it in Switzerland to art dealers;23 in the case of Bakalar v Vavra, concerning the drawing Seated Woman with Bent Left Leg by Egon Schiele (1890–1918) of the Grünbaum Collection;24 and in the case Sotheby’s v Shene, with respect to the restituted Augsburger Geschlechterbuch (circa 1545).25 3.1.2.3 Location: Suit for Return by Country of Origin of Art Objects Illegally Exported Since the well-known Ortiz case before the House of Lords in 1983,26 only States Parties of international conventions or Member States of a regional community are obliged to return objects illegally exported from a State Party or Member State and, hence, must enforce foreign public law (export prohibitions) in local courts. The Chancery Division of the English High Court in the case Kingdom of Spain v Christie’s27 was still bound by the Ortiz case, decided three years earlier, and therefore could only give a declaratory judgment and decide that the painting ‘La Marquesa de Santa Cruz’ by Francisco de Goya (1746–1828) was illegally exported from Spain with forged export documents. Some years later, in 1996, the situation became completely different. Spain and Great Britain, as Member States of the European Union, were bound by the European Directive 93/7/1993 of 15 March 1993,28 and Spain could have relied on the British legislation implementing the Directive29 to ask for return of the painting. In the case of frescoes of the old church of Casesnoves (French département PyrénéesOrientales, region Occitanie), the medieval frescoes were detached and sold to the Fondation Abegg in Geneva, Switzerland. The Fondation was sued in Perpignan, France, because the plaintiffs contended that the frescoes, although detached, were still 23 Toledo Museum of Art v Claude George Ullin, 477 F.Supp 2d 802 (ND Ohio 2006). 24 Bakalar v Vavra, 550 F.Supp 2d 548 (SDNY 2008); 619 F.3d 136 (2d Cir 2010); 819 F.Supp 2d 293 (SDNY 2011). 25 Sotheby’s Inc. v Shene, 04 Civ 10067 (TPG) (SDNY of 23 March 2009). See also Sean Rainbird and Helmut Gier, ‘Spoils of War Return Home’ in Hans Martin Kaulbach and Helmut Zäh (eds), Das Augsburger Geschlechterbuch—Wappenpracht und Figurenkunst. Ein Kriegsverlust kehrt zurück (Quaternio 2012) 7; Hans Martin Kaulbach, ‘Der Stuttgarter Band (S)’ in Kaulbach and Zäh, Das Augsburger Geschlechterbuch (n 25) 191–227. 26 Attorney General of New Zealand v Ortiz [1983] 2 WLR 809. 27 Kingdom of Spain v Christie’s [1986] 1 WLR 1120 (Ch D). See Julian Agnew and Matthew Farrer, ‘Goya’s “The Marquesa De Santa Cruz”’ (1992) 1 International Journal of Cultural Property 137; Kurt Siehr, ‘Kampf um Goya’s “La Marquesa de Santa Cruz”: 30 Jahre ‘“Kingdom of Spain v Christie, Manson & Woods, Ltd”’ (2016) 1 Bulletin Kunst & Recht 5. 28 Official Journal of the EC (1993) L 74/74. 29 The Return of Cultural Objects Regulations 1994, Statutory Instruments 1994 No 501.

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The Role of Domestic Courts 693 immovable property and subject to demands for their return to their locus rei sitae. The French Cour de cassation finally decided that the frescoes, once detached, became movable property, and therefore Swiss courts had jurisdiction according to the French–Swiss Treaty of 1869.30 3.1.2.4 Location: Country of Origin Prohibiting the Export of Art Objects Countries with a strict regime of prohibitions of export of national art objects must decide on the export prohibition in their own country of origin. This was done by the French Cour de cassation in the Walther case of 199631 on the export licence of a painting by Vincent van Gogh (1853–1890). Also, Italian courts had jurisdiction in the Pagenstecher-Lutterotti affair32 concerning a collection of French impressionist painters of a private couple. The collection was declared as Italian beni culturali and prohibited from being moved to the UK. Unfortunately Mme Pagenstecher-Lutterotti decided to stay in Italy, and the tension between European freedom of movement (art 21 TFEU) and the freedom of movement of goods (art 28 et seq. TFEU) is therefore not yet determined by the European Court of Justice. 3.1.2.5 Location: Suit of Custom Authorities of the Importing Country Customs authorities may also ask for enforcement of their regulations in the courts at the place of location of the imported art object. This was decided in the Brancusi case in New York in 192833 and later in the Tintoretto case of 1982.34 These cases concerned the correct attribution of custom duties to art objects (as art or simple metal) or the application of forfeiture laws against the owner of the object being guilty of wrongful declarations at the time of entering the United States with a painting by Jacopo Tintoretto (1518–1594).35 This kind of jurisdiction is also applied elsewhere.36

30 Cass 15 April 1988, Juris—Classeur Périodique 1988, Jur 21,066 with note by Jean-François Barbieri = Revue critique de droit international privé 78 (1989) 100 with note by Georges A. L. Droz. 31 Cass 20 February 1996, Juris-Classeur Périodique 1996, Jur 22,672, with note by Jean-François Poli. 32 Consiglio di Stato, 23 September 1991, Foro italiano 1992, III, 1–6 = Rivista di diritto internazionale privato e processuale 29 (1993) 431. 33 Brancusi v United States, 54 Treasury Division under Customs and Other Laws 428 (Cust Ct 1928). 34 United States v One Tintoretto Painting, 691 F.2d 603 (2d Cir 1982). 35 The painting The Holy Family with Saint Catherine and Honored Donor was until 1945 part of the Dresden Art Gallery and is, since 1982, of unknown location. 36 Daiber v Hauptzollamt Reutlingen (Case 200/84) Judgment of 10 October 1985, ECR 1985, 3363, 3377 (concerning custom duties for old-timers); Gmurzynska-Bscher v Oberfinanzdirektion Köln (Case 231/89), Judgment of 8 November 1990, Neue Juristische Wochenschrift 1991, 1470 (concerning customs duties for a painting of Laszlo Moholy-Nagy of metal). Marc Chagall (1887–1985) designed the stained glass windows of the Church of St Stephen in Mainz, Germany. When the glass was transported from France to Germany, before the European single market went into effect, there was some dispute at the border whether ‘glass’ had to be imported or ‘art’.

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3.1.3 Doing Business of the Defendant The Altmann case, involving a painting by Gustav Klimt (1862–1918), The Golden Adele, started in California, a state in which the Republic of Austria did business and therefore became subject to American jurisdiction in that state.37 Maria Altmann had her habitual residence in California, while the painting by Klimt was located in Vienna, Austria. The Republic of Austria as defendant claimed immunity as a foreign State, an argument which was finally declined by the US Supreme Court.38 The case was ultimately decided by an arbitration after the parties made an arbitration agreement vesting an ad hoc arbitration tribunal in Vienna with the case.39 In the case Schoeps v Freistaat Bayern40 the Federal Circuit Court for the Second Circuit (on 22 May 2015) denied any business activity of the defendant in New York and therefore denied jurisdiction.

3.1.4 Presence of the Defendant In the English case Maharanee of Baroda v Wildenstein41 the plaintiff, domiciled in Paris, had bought the painting La Poésie as an original by Francois Boucher (1703–1770) from the Wildenstein Gallery in Paris for FFR 450,000 (= £32,920 at that time) in 1965/6. Later, the painting was sent to Sotheby’s of London for sale at auction. Sotheby’s refused to sell it at auction because the painting was discovered to be a nineteenth-century copy worth only £750. In 1969/70 the Maharanee wanted to sue the owner of the French gallery in the UK (in order to escape the French practice of expert witnesses appointed by the court) for the purchase price she paid against return of the copy she received. Therefore the plaintiff relied on neither the location of the painting in Paris nor the habitual residence of the defendant in Paris. She made use of the old English head of transient jurisdiction of presence of the defendant in England and service of process to him in England. Mr Wildenstein was served with process at a horse race in Ascot in 1969 and so became subject to English jurisdiction. This was held not to be unfair to him because he was qualified as ‘a man of international reputation’, with branches of his gallery in the UK, Ireland, and the United States. Today, this transient jurisdiction does not work against defendants with habitual residence in a Member State of the European Union because article 6(1) of the recast Brussels Regulation I of 2012 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters prohibits this ‘tag’ jurisdiction. Wildenstein could only be sued in Paris—but a person with habitual residence in New York could be caught in the UK by this kind of exorbitant jurisdiction.

3.1.5 Locus Delicti Commissi There are hardly any cases in which the place of injury (locus delicti commissi) was applied for fixing jurisdiction. Of course, the plaintiff, the victim of theft, robbery, and 37 Altmann v Republic of Austria (n 12). 38 Republic of Austria v Altmann, 541 US 677 (2004). 39 Altmann v Republic of Austria (n 12) (award Altmann). See also Karl Claus, ‘Das Klimturteil—eine Entgegnung’ (2006) Österreichisches Anwaltsblatt 333. 40 611 Fed. Appx 32 (2d Cir 2015). 41 [1972] 2 QB 283 (CA).

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The Role of Domestic Courts 695 expropriation, could sue the tortfeasor in the country where the tort was committed. But such a procedure would not get back the art object. Only damages can be demanded, and in this the art-loving plaintiff is normally not interested, and the accused is convicted because he committed a crime at home at his locus delicti commissi.42

3.2 Subject Matter Jurisdiction 3.2.1 Special Jurisdiction of Administrative Courts In certain jurisdictions a split subject matter jurisdiction may be found. In Germany, for example, the claim for return of illegally exported art objects is qualified as a claim of public law to be exercised by States only and, therefore, must be pursued and decided by German administrative courts.43 These courts have subject matter jurisdiction only with respect to these claims of public law and have no jurisdiction on private owners for recovery of stolen, converted, illegally excavated, or expropriated art objects. These claims of private law have to be brought and decided by courts of private law matters.44 The consequence is that a negative judgment in administrative courts with respect to illegally exported or removed art objects does not touch claims of private law and does not exclude these claims by res iudicata. Private claims have to be brought separately by private owners in courts for private law matters and can only be decided by these courts of private law.45 This division of competence has often been misunderstood and wrong conclusions have been drawn from negative judgments of German administrative courts on return of illegally removed or exported art objects and their effect on private law claims for recovery of stolen, converted, illegally excavated, or expropriated art.46

42 United States v Hollinshead, 495 F.2d 1154 (9th Cir 1974); United States v McClain, 593 F.2d 658 (5th Cir 1979); United States v Schultz, 178 F.Supp 2d 445 (SDNY 2002), affirmed 333 F.3d 393 (2d Cir 2003), petition for writ of certiorari denied 540 US 1106 (2003). 43 § 49 (1) sent 1 of the German Gesetz of 31 July 2016 zum Schutz von Kulturgut (Kulturgutschutzgesetz— KGSG), German Bundesgesetzblatt 2016, part I, 1914. See also Lucas Elmenhorst and Volker Wiese (eds), Kulturgutschutzgesetz. Kommentar (Beck 2018) 321 ff.; Kerstin von der Decken, Frank Fechner, and Matthias Weller (eds), Kulturgutschutzgesetz (Nomos forthcoming). 44 § 49 (1) sent 2 KGSG. 45 Kurt Siehr, ‘Rechtsschutz im internationalen Kulturgutverkehr. Dreispurigkeit des Rechtsschutzes vor deutschen Gerichten’ in Rolf A. Schütze (ed), Fairness, Justice, Equity, Festschrift für Reinhold Geimer (Beck 2017) 661–9. See also Oberverwaltungsgericht Nordrhein-Westfalen 8 July 2013, Kunst und Recht 15 (2013) 157, 163, where the court expressly pointed out that private law claims had to be pursued and decided by civil law courts. 46 Michael Müller-Karpe, ‘Antikenhandel./. Kulturgüterschutz. Zur Missachtung des bestehenden Handelsverbots für archäologisches Kulturgut ungeklärter Provenienz an einem Beispiel’ (2010) 12 Kunst und Recht 91; Suzan Topal-Gökceli, ‘Verfahren um Herausgabe fünf antiker, mutmaßlich aus der Türkei stammender Bronzegefäße. Zum Urteil des Verwaltungsgerichts Frankfurt am Main vom 2. Juni 2010’ (2011) 2 Bulletin Kunst & Recht 64.

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3.2.2 Special Jurisdiction of Criminal Courts A treasure of ancient coins was illegally excavated by a Greek citizen and landowner. The Greek citizen did not give the coins to the Republic of Greece, as the exclusive owner of all antiquities excavated in Greece, but instead took them to Germany, where the Greek citizen lived. The Republic of Greece, instead of bringing a law suit as the owner of the coins against the excavator, applied in Germany for international legal assistance in criminal matters47 because, in Greece as well as in Germany, the excavator committed a crime by keeping the hoard of ancient coins for himself. German criminal courts granted assistance in the German–Greek coins case, and the coins were returned to Greece very quickly.48 The same procedure was taken by the Supreme Court of Switzerland.49 The beauty of this procedure is this. The requesting State has only to show to the requested State that the art object is the proceeds of a crime committed in the requesting State and that the behaviour of the person who committed a crime in the requesting State is also a crime in the requested State. If this is shown, the person must show that he or she is the owner of the object. The requesting State does not have to give evidence of title or illegal export.

4. Governing Law Several questions of the applicable law may become important in art law cases. They range from the law applicable to contracts to the law applicable to succession.50

4.1 Lex Contractus The law governing contracts was applied in several cases of sale of forgeries. One of the first was the Ruisdael case of the German Imperial Court (Reichsgericht).51 In 1928, the plaintiff bought the painting Eichen am Wasser (Oak trees at Water) by Jacob J. Ruisdael (1628/9–1682) from the defendant. Later, he found that the painting was painted by Jacob Salomonsohn Ruysdael (1629–1681), the cousin and imitator of Jacob J. Ruisdael, 47 The request was based on the European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters, European Treaty Series No 30 (Treaty of the Council of Europe, not of the European Union). 48 Oberlandesgericht Schleswig 10 February 1989, Neue Juristische Wochenschrift 1989, 3105. 49 Bundesgericht 1 April 1997, Entscheidungen des Schweizerischen Bundesgerichts 123, part II, 134. 50 Recently, Alessandro Chechi, ‘When Private International Law Meets Cultural Heritage Law’ (2017/2018) XIX Yearbook of Private International Law 269. 51 Reichsgericht 11 March 1932, Entscheidungen des Reichsgerichts in Zivilsachen 135, 339. For this case, see Christoph Kampe, ‘Eichen am Wasser—Der Ruisdael-Fall RGZ 135, 339’ (2005) Juristische Schulung 773.

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The Role of Domestic Courts 697 and worth much less than he paid for it. He wanted to invalidate the contract of sale because of mistake and misrepresentation and to demand back his money against return of the painting he bought. The decision confirmed the interpretation of the court and held any invalidation of the contract was inadmissible once the six-month limit for the claim of warranty of quality had expired. The plaintiff therefore lost the case because six months had already been passed since the conclusion of the contract. A very similar case was decided differently in the Swiss Van Gogh case before the Federal court.52 In 1948, a lady of Zürich bought a portrait as a painting by Vincent van Gogh (1853–1890). Four years later, a van Gogh expert saw the painting and assessed it as a fake. In 1953 the lady brought a lawsuit against the seller, pleaded mistake and misrepresentation, and asked for the dissolution of the contract. The Swiss Federal Court held that time limits for warranty claims do not exclude the remedy for mistake and misrepresentation. Therefore, the contract of the painting was dissolved, and the plaintiff got back her money against return of the fake. In the Austrian Unterberger case,53 the owner of the painting believed to be an original by of Franz Richard Unterberger (1837–1902) relied on the contract concluded between the Zürich auction house Koller and the expert Sybille Moser-Ernst. This contract was apparently governed by Austrian law because the expert, habitually resident in Austria, provided the characteristic performance (see art 4(1)(b) Rome I Regulation). He held this contract as a contract with protective effects to him as the owner of the painting Koller had refused to accept for sale at auction. This qualification was held to be possible, and the case was returned to lower courts for evaluation of closer evidence. The Tapestry case of Augsburg, Germany, is also based on a contract governed by German law.54 In 2009 the plaintiff consigned a tapestry to a local auction house for sale at auction. The same year the tapestry was sold for 19,000 euros. The buyer of the tapestry turned to Christie’s of London and consigned it for sale at auction. In 2010 the tapestry was sold for £6 million. This result was reported in the news and the former owner got notice of it. She turned to the Augsburg auction house and asked for compensation. The lawsuit failed in two instances. The local auction house did not violate its professional duties. Only an international auction house like Christie’s with a comprehensive library and qualified art historians could make a proper evaluation of the object and sell it to international connoisseurs. In the case of Estate of Nelson v Rice55 the administrators of the Nelson estate asked for rescission of the contract of sale with the Rices, which was governed by the law of Arizona. Their claim was dismissed.

52 Bundesgericht 16 October 1956, Entscheidungen des Schweizerischen Bundesgerichts 82, part II, 411. 53 Oberster Gerichtshof 20 October 2005, Juristische Blätter 2006, 178. 54 Landgericht Augsburg 17 January 2012, Zeitschrift für Urheber- und Medienrecht 2014, 67; Oberlandesgericht München 20 March 2014, Neue Juristische Wochenschrift 2015, 81. See Benjamin Raue, ‘Vom Bettvorleger zum teuersten Teppich der Welt’ (2016) 17 Kunst und Recht 173. 55 12 P.3d 238 (CA Arizona 2000).

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4.2 Lex Rei Sitae In restitution cases, and in cases of theft and good-faith purchase, local courts applied the law of the place where the object was located at the time of transfer of title. In the UK case Winkworth v Christie’s, Manson and Woods, the English Chancery Division applied the Italian lex rei sitae to the transfer of title in Rome to the good-faith purchaser Dal Pozzo who acquired netsuke stolen in England.56 In Italy also stolen goods may be acquired by good faith (art 1153 Italian Civil Code). Dal Pozzo, acting in good faith, acquired title to the netsuke and therefore kept title as vested right and could sell them through Christie’s of London. In the American case Autocephalous Church of Cyprus v Goldberg & Feldman Fine Arts Inc., the American Federal District Court heard the expert Albert Taylor von Mehren of Harvard University Law School and listened to his expertise on Swiss law regarding whether Goldberg, still in Geneva Airport, according to Swiss law acquired title in the mosaics stolen in Northern Cyprus.57 Von Mehren rebutted this argument because Swiss private international law is not intended to apply Swiss law to objects on the way to foreign countries (res in transitu) and applies to these objects in transitu the law of destination, in this case the law of Indiana, to which state Goldberg of Indianapolis took the mosaics.58 Also, in the very recent case Cassirer v Thyssen-Bornemisza Collection Foundation, the Federal Circuit Court applied the Restatement (Second) of Conflict of Laws §§ 6, 9, and 246 and the situs rule provided for transfer of objects by good-faith purchase, adverse possession, or prescription.59 The painting Rue Saint-Honoré, après-midi, effet de pluie by Camille Pissarro (1830–1903), was once owned by Lilly Cassirer, who had to surrender the painting in order to be able to escape from Germany. The painting was finally sold by the Swiss collector Baron Hans Heinrich Thyssen-Bornemisza to the Spanish State in Spain. The Federal District Court applied article 1955 of the Spanish Código civil on good-faith acquisitive prescription of goods not owned by the seller but did not pay attention to the exception of article 1956 on those buyers who qualify as accomplices or accessories (encubridores). Therefore, the 56 Winkworth v Christie, Manson and Woods (n 21). See also Michael Anton, Rechtshandbuch Kulturgüterschutz und Kunstrestitutionsrecht, Band 3. Internationales KulturgüterprivatZivilverfahrensrecht (De Gruyter 2010) 715 ff. 57 717 F.Supp 1374 (SD Ind 1989), affirmed 917 F.2d 278 (9th Cir 1990). See also Quentin Byrne-Sutton, ‘The Goldberg Case—A Confirmation of the Difficulty in Acquiring Good Title to Valuable Stolen Cultural Objects’ (1992) 1 International Journal of Cultural Property 151; Dan Hofstadter, Goldberg’s Angel, An Adventure in the Antiquities Trade (Farrer, Straus, Giroux 1994); Symeon Symeonides, ‘On the Side of the Angels—Choice of Law and Stolen Cultural Property’ in Basedow, Meier, Schnyder, Einhorn, and Girsberger (eds), Private Law in the International Arena. Liber Amicorum Kurt Siehr (Asser 2000) 747–61. 58 Autocephalous Greek-Orthodox Church of Cyprus v Goldberg & Feldman Fine Arts, Inc, 717 F.Supp 1374, 1394 ff. (SD Ind 1989). 59 Cassirer v Thyssen-Bornemisza Collection Foundation, 862 F.3d 951 (9th Cir 2017). For the facts of the case and the decision of the Federal District Court, see Hay, Nazi-Looted Art and the Law (n 1) 137 ff; Katharine Dye, ‘Cassirer v Thyssen-Bornemisza Collection Foundation: Nazi Art Crimes are still Relevant in the Twenty-First Century’ (2018) 26 Tulane Journal of International & Comparative Law 445.

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The Role of Domestic Courts 699 summary judgment of the Federal District Court was reversed and remanded for proceedings consistent with the decision of the Federal Circuit Court. Also in civil law countries the law at the place of the object is applied and prevails. The lex situs was confirmed by Austrian,60 Dutch,61 French,62 German,63 Italian,64 and Swiss courts.65 These tribunals qualified claims for restitution as matters of property law and looked for rules governing property claims and questions of good-faith purchase and acquisitive prescription. The lex situs in all of these jurisdictions governs these matters of property law.66

4.3 Lex Loci Delicti Commissi In common law countries the claim in replevin is a tort claim. The defendant refuses to return an object the return of which the plaintiff has requested. This is a tort and obliges the defendant to return the object if the plaintiff can show that the object belongs to him. Famous cases of such a qualification include Kunstsammlungen zu Weimar v Elicofon67 on recovery of portraits of Albrecht Dürer looted during World War II in the vicinity of Weimar; Von Saher v Norton Simon Museum of Art,68 on the return of Adam and Eve by Lucas Cranach the Elder (1472–1553), taken from the Goudstikker collection; and the case In re Estate of Flamenbaum,69 on the return of a Babylonian golden tablet looted in Germany and the subject of a request for return by the Vorderasiatische Museum in

60 Oberster Gerichtshof 29 May 1990, Österreichisches Recht der Wirtschaft 1991, 108. 61 Hoge Raad 8 May 1998, Nederlandse Jurisprudentie 1999 No 44. 62 Tribunal civil de la Seine 17 April 1885 (Duc de Frias c. Pichon), Journal du droit international 13 (1886) 593. 63 Oberlandesgericht Celle 17 September 2010, Gewerblicher Rechtsschutz und UrheberrechtRechtsprechungs-Report 2011, 24. 64 Corte di Cassazione 24 November 1995, n 12,166 (Governo di Francia c. De Contessini), Foro italiano 1996, I, 1, 907. See also Francesco Nanetti and Francesca Squillante, ‘In tema di restituzione di beni culturali illecitamente trasferiti’ (1997) 80 Rivista di diritto internazionale 396; Marc Weber, Unveräußerliches Kulturgut im nationalen und internationalen Rechtsverkehr (De Gruyter 2002) 367–72. 65 Bundesgericht 13 December 1968, Entscheidungen des Schweizerischen Bundesgerichts 94, part II, 297. 66 § 31 (1) Austrian PIL Act; art 10: 127 (1) Dutch Burgerlijk Wetboek; art 43(1) German Introductory Statute to the BGB; art 51(1) Italian PIL Act; art 100(1) Swiss PIL Act. The same, for example, in art 3097 (1) Civil Code of Quebec; art 60 PIL Act of Panama; art 13 Japanese PIL Act; and art 21(1) Turkish PIL Act. 67 Elicofon case (n 20). 68 Marei von Saher v Norton Simon Museum of Art, No 16–56308 of 30 July 2018 (9th Cir 2018); certiorari denied by the Supreme Court of the United States on 20 May 2019. The facts of this case are discussed by Natalie Foote in ‘Von Saher v Norton Simon Museum of Art at Pasadena, 754 F.3d 712 (9th Cir 2014)’ (2014) 25 DePaul Journal of Art, Technology & Intellectual Property Law 239. 69 Matter of Flamenbaum, 978 NYS 2d 708, 2013 NY Slip Op 07510 (Court of Appeals, 14 November 2013) (hereafter ‘Matter of Flamenbaum’). See also Thomas R. Kline, ‘U.S. Court Refuses to Recognize a “Spoils of War” Doctrine to Allow Title to be Transferred in World War II Trophy Art Theft’ (2014) 16 Kunst und Recht 19.

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700 Kurt Siehr Berlin. In all these cases the law at the place where the tort was committed was identical with the law at the habitual residence of the defendant and with the lex situs. In civil law countries the refusal to return an object to the plaintiff is not a tort claim. Therefore courts relied on the lex situs and applied the law governing the transfer of title at the time of transfer.70

4.4 Lex Successionis In many art law cases the question must be answered of who is the heir of the original owner of an art object. This question is correctly answered according to the law governing succession of the deceased—that is, by the law of his or her last domicile or habitual residence or by the law of the deceased’s nationality.71

4.5 Lex Loci Protectionis In copyright cases the law governing copyright must be determined. This happened in the case of resale rights (droit de suite) with respect to art objects of Joseph Beuys (1921–1986) sold at auction in London. The owner of the resale right and the consignor of the object were domiciled in Germany, where a resale right was known even before the EU Resale Directive had been implemented by the UK. The German Federal Supreme Court for Civil and Criminal Matters (Bundesgerichtshof) declined to apply German law and applied the law of that country for which protection was claimed for intellectual property—that is, British law, which, at this time, did not yet recognize any resale right of an art object sold by art dealers.72

4.6 Lex Fori The lex fori is applied if the case is one of public policy and local law must be applied because any other law would violate the local ordre public. This was done with respect to Egan Schiele’s Portrait of Wally in the New York case United States v Portrait of Wally73 and also in the Matter of Flamenbaum case.74

70 See the cases in nn 60–5. 71 Reif v Nagy, Supreme Court of the State of New York, New York County: Commercial Division, index 161,799/2015, Judgment of 4 April 2018, Kunst und Recht 20 (2018) 66. 72 Bundesgerichtshof 16 June 1994, Entscheidungen des Bundesgerichtshofs in Zivilsachen 126, 252. 73 Matter of Grand Jury Subpoena, 677 NY 2d 872 (Sup Ct NY City 1998); United States v Portrait of Wally, 105 F.Supp 2d 288 (SDNY, 2000). 74 Matter of Flamenbaum (n 69).

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4.7 Public Law Very often public law of foreign countries or supranational law demands respect in local courts, and these tribunals must decide this tricky question of application of foreign or supranational public law.

4.7.1 Public International Law: Spoils of War by Taking Booty, Prize, and Looting 4.7.1.1 War on Land Taking booty and looting is prohibited by public international law. This is provided by the Hague Regulations of 1899 and 1907 concerning the Laws and Customs of War on Land75 and even applies to non-contracting States as customary public international law.76 This was different in the past. The Austrian Civil Code of 1811 referred in § 402 to public international law with respect to the right to take booty, and at the time of Napoleon (1769–1821) taking booty seems to have been common practice. In 1864 the Court of Appeal of Prussia had to decide whether General Gebhard Leberecht von Blücher (1742–1819), one of the victorious generals of the battle of Waterloo in 1815, was allowed to take booty in the form of certain paintings taken from the enemy. The court gave an affirmative answer.77 The opposite was decided incidentally by the Court of Appeal of Rome in 1946 concerning S. Cecilia by Raphael (1483–1520), now part of the collection of the Pinacoteca di Bologna.78 The transportation of the painting to Paris by order of Napoleon in 1796 was illegal and did not change title. During World Wars I and II, looting and taking booty was not recognized as changing title to movable property. Therefore, artworks looted by US soldiers in World War II and discovered in the United States were returned to their German owners.79 The Soviet Union did not, however, recognize the changed international attitude towards booty and kept booty, transferred it to the Soviet Union, declared it as ‘restitution in kind’, and exhibited it in Russian museums as ‘national treasure’.80 75 International Convention with Respect to Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900) 187 CTS 429, and Hague Convention [Regulations] of 18 October 1907 Concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 205 CTS 277, arts 28 and 47. 76 Case of United States et al. v Hermann Goering et al. of 1946, 6 Federal Rules Decisions 69, 130 ff. (1947) (Nazi crimes). 77 Preußisches Ober-Tribunal 24 June 1864, 53 Entscheidungen des Königlichen Ober-Tribunals, 49. 78 Corte d’appello di Roma 9 July 1946, Giurisprudenza italiana 1948, I, 2, 170 (Bentivoglio c. Ministero della pubblica istruzione), confirmed by Corte di cassazione 31 December 1948, n 1951, Foro italiano 1949, I, 4. 79 See, for example, Elicofon case (n 20). The Quedinburg Treasure was bought back from Meador’s estate by Germany; see Thomas R. Kline, ‘The Quedlinburg Treasures: The Legal Context for Recovery’ (2017) 18(1) IFAR Journal 23; Siegfried Kogelfranz and Willi A. Korte, Quedlinburg—Texas und zurück. Schwarzhandel mit geraubter Kunst (Droemer Knauer 1994). 80 As to the ‘Treasure of Priamos’, see Konstantin Akinsha and Grigorii Kozlov, Stolen Treasure: The Hunt for the World’s Lost Masterpieces (Weidenfeld & Nicolson 1995) 7 ff; on Russian legislation and the

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702 Kurt Siehr 4.7.1.2 War on Water Completely different was the legal situation in war on water—at least for the (then British) Court of Admiralty in Halifax (now Canada) in 1813. Dr Cooke of this court had, in the dispute The Marquis de Somerueles, to answer the question whether, in the English–American War of 1812–1815, it was permissible to take cultural objects as a prize.81 Dr Cooke said: ‘The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare [property of the enemy is liable to confiscation], and as entitled to favour and protection. They are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species.’82 The result was that, in war on water, cultural objects could not be taken as a prize.

4.8 National Law: Expropriation of All People or Discriminated Citizens 4.8.1 Expropriation of Colonial Territories During the colonial period of many nations, many cultural objects were taken by European colonial forces or by merchants of Europe. On 28 November 2017, French President Emmanuel Macron gave a speech in Ouagadougou (Burkina Faso) and promised that African art objects in Europe would soon return to Africa.83 It is questionable whether there is any enforceable claim of African States for return of their treasures, such as the Benin bronzes taken by the British in a punitive expedition in 1897.84 It remains to be seen what will be the effect of voluntary return of African art objects. problem of ‘compensatory retention of art treasures’ (restitution in kind), see Mark M. Boguslavskij, ‘Das Privatrecht und die Rückgabe von Kulturgütern—Die russische Gesetzgebung’ in Ministerium für Kultur, Moskau/Gesellschaft zur Förderung des internationalen Informationsaustausches, Berlin (eds), Das schwierige Schicksal von Kulturgütern (BWV 2002) 110–24; Karl M. Meessen, ‘Deutsche und russische Kulturgüter—Vom Streit über völkerrechtliche Rückführungsansprüche zu einem Vorschlag gemeinsamer Nutzung’ in Ekaterina Ju. Genieva, Claus Michaletz, and Olaf Werner (eds), Gesten des guten Willens und Gesetzgebung (Berlin Verlag 2001) 141–9; Ronald Pienkny, Das Kulturgütergesetz der Russischen Föderation und seine völkerrechtliche Vereinbarkeit (dissertation.de 2003) 61 ff. 81 The Marquis de Somerueles, Nova Scotia Stewart’s Vice Admiralty Reports 482 (1813); reprinted in Barnett Hollander, The International Law of Art (Bowes & Bowes 1959) 250, and in (1996) 5 International Journal of Cultural Property 319, with comments by John H. Merryman. 82 The Marquis de Somerueles (n 81), 5 International Journal of Cultural Property 319 (1996). 83 Felwine Sarr and Bénédicte Savoy, Restituer le patrimoine africain (Rey 2018) 11 (review by Erik Jayme in (2019) Kunst und Recht 8–10). The Deutsches Zentrum für Kulturgutverluste in Magdeburg, Germany, established in January 2019 a department of ‘Cultural Objects of Colonial Context’; see Freya Paschen, ‘Neuer Förderbereich “Koloniale Kontexte” gestartet’ (2019) 1 Provenienz & Forschung 64. 84 Jeanette Greenfield, The Return of Cultural Treasures (3rd ed, Cambridge University Press 2007), 122–9. On the problem of decolonization and national treasures in general, see Ana Filipa Vrdoljak, International Law, Museums and the Return of Cultural Objects (Cambridge University Press 2006) 197 ff.

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4.8.2 Expropriation of Everybody Because of Change of Economy In 1917 the Soviet Union was established as successor to Imperial Russia. As a consequence of the change to communism, all private treasures were confiscated85 and exhibited in public museums or sold in the campaign ‘Rembrandt for tractors’.86 In many countries Russia also sold formerly private art treasures to Western buyers or sold them at auction in Western Europe. Valuable treasures of the National Gallery of Art in Washington, DC, formerly part of the Hermitage in Petrograd/Leningrad, USSR, were donations by the American banker Andrew Mellon (1855–1937).87 The British Library bought the Codex Sinaiticus from the Soviet Union in 1933.88 When such formerly private treasures were sold to private parties, the former owners, having fled to Western States, sued the Western auction houses or the private buyers for return of their property, claiming that they had been illegally expropriated. Suits were filed in England,89 France,90 Germany,91 and the United States92 against private persons, and all of them failed. Western courts either applied the act of State doctrine or recognized the expropriation of Russian property located in Russia as not violating international law.

4.8.3 Act of State Doctrine The well-known act of State doctrine has also been applied in art law cases decided by American courts. The most recent case is Marei von Saher v Norton Simon Museum of Art.93 Citing § 443 of the Restatement of the Law 3d on Foreign Relations,94 the court qualified Dutch statutes on return of Nazi looted art as acts of State of a foreign country and held the express relinquishment to ask for return as relinquishment of property 85 Hans Heinrich, Die russischen Enteignungsdekrete und ihre Rechtswirkungen im Ausland, Dissertation, Hamburg University, 1933. 86 Waltraud Bayer (ed), Verkaufte Kultur. Die sowjetischen Kunst- und Antiquitätenexporte 1919–1938 (Lang 2001). 87 David Cannadine, Mellon: An American Life (Knopf 2006) 414 ff; Joanna Pitman, The Dragon’s Trail: The Biography of Raphael’s Masterpiece (Simon & Schuster 2006) 270 ff. 88 Christfried Böttrich, Der Jahrhundertfund. Entdeckung und Geschichte des Codex Sinaiticus (Evangelische Verlagsanstalt 2011) 155 ff. 89 Princess Paley Olga v Weisz [1929] 1 K.B. 718 (C.A.). 90 Tribunal de la Seine 12 July 1954, 82 Journal du droit international (Clunet) 118 (1955). 91 Landgericht Berlin 1 November 1928, 56 Journal du droit international (Clunet)184 (1929) with law review article by Maximilian Philonenko, ‘L’expropriation des biens des particuliers par les Soviets devant la Justice allemande’ (1929) 56 Journal du droit international (Clunet) 13; Amtsgericht BerlinSchöneberg 5 November 1928, Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts im Jahre 1928 No 16; Landgericht II Berlin 11 December 1928, Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts im Jahre 1929 No 9, as well as in (1929) 3 Zeitschrift für Ostrecht 1366, with annotations by Ernst Isay (1370–1) and Ernst Frankenstein (1371–3). 92 Stroganoff-Scherbatoff v Weldon, 420 F.Supp 18 (SDNY 1976). 93 Marei von Saher v Norton Simon Museum of Art (n 68). 94 Restatement of the Law Third, Restatement of the Law: The Foreign Relations Law of the United States, vol I (American Law Institute 1987) § 443. See also Fausto de Quadros and John Henry Dingfelder Stone, ‘Act of State Doctrine’ in Max Planck Encyclopedia of Public International Law vol 1 (Oxford University Press 2012) 62–5.

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704 Kurt Siehr rights and declined the claim against the Norton Simon Museum of Art. This is in line with the early case of Stroganoff-Scherbatoff v Weldon, in which Russian expropriation decrees of nationalization were held as not reviewable under the act of State doctrine.95 Where, however, an occupation is not recognized by any other country, property does not pass to the occupying country as a non-existing entity.96

4.8.4 Expropriation of Persecuted Jewish Citizens During the Nazi period in Europe the situation was completely different from the time of Soviet nationalizations. Jews were persecuted and murdered and their property expropriated. Already in the London Declaration of 1943 all forced transactions with Jews were held illegal and void, but this Declaration had no immediate impact.97 After the ceasefire the Allies prohibited any art transactions,98 and very soon the restitution and compensation for property expropriated from Jews began.99 After the Washington Conference Principles were accepted in 1998 by many States, Germany restarted again provenance research and restituted artworks acquired in ‘verfolgungsbedingten Veräusserungen’ (‘persecution-related sales’) to the heirs of the former owners.100

4.8.5 Sale or Destruction of ‘Degenerate Art’ Adolf Hitler (1889–1945), himself an unsuccessful artist, hated modern art and called it ‘degenerate’ (entarted). He ordered that degenerate art should not be exhibited in public museums and demanded the sale or destruction of this kind of ‘art’.101 This policy had nothing to do with persecution of Jews. Private persons still could collect modern art and enjoy it privately. Public museums were forced to sell ‘degenerate art’, and these sales 95 Stroganoff-Scherbatoff v Weldon (n 92). 96 Oberlandsgericht München 18 March 2013 (2013) 15 Kunst und Recht 77 (mosaics from Lythrankomi, Cyprus, after occupation of Northern Cyprus by Turkey in 1974); Banco Nacional de Cuba v Sabbatino, 376 US 398, 428 (1964): ‘we decide only that the Judicial Branch will not examine the validity of a taking of property . . . by a foreign sovereign government, extant and recognized by this country at the time of suit’ (Justice Harlan). But such property (such as icons from Cyprus) can be acquired by private parties in good-faith purchase or by prescription: Hof ’s-Gravenhage 7 March 2002, Nederlands internationaal privaatrecht 2002 No 248, 413 (Autocefale Grieks-Orthodoxe Kerk te Cyprus tegen W. O. A. Lans). 97 Wilfried Fiedler, ‘Die Alliierte (Londoner) Erklärung vom 5.1.1943–Inhalt, Auslegung und Rechtsnatur in der Diskussion der Nachkriegsjahre’ in Basedow, Meier, Schnyder, Einhorn, and Girsberger (eds), Private Law in the International Arena: Liber Amicorum Kurt Siehr (Asser 2000) 197–218; Vrdoljak, International Law, Museums and the Return of Cultural Objects (n 84) 140–1. 98 See Hans Dölle and Konrad Zweigert, Gesetz Nr. 52 über Sperre und Beaufsichtigung von Vermögen. Kommentar (Poeschel 1947) 146, 185 ff. 99 See the six volumes of the collection edited by the Bundesminister der Finanzen in Zusammenarbeit mit Walter Schwarz, Die Wiedergutmachung nationalsozialistischen Unrechts durch die Bundesrepublik Deutschland (Beck 1974–87). 100 See, for example, Bundesgerichtshof 16 March 2012, Neue Juristische Wochenschrift 2012, 1796 (posters of Hans Sachs). See also Robert Kirchmaier, ‘Der BGH und die Plakatsammlung Sachs’ (2012) 14 Kunst und Recht 212. 101 Gesetz vom 31 Mai 1938 über Einziehung von Erzeugnissen entarteter Kunst, Reichsgesetzblatt 1938, part I, 612.

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The Role of Domestic Courts 705 were valid, as were the sale contracts at the auction ‘Gemälde und Plastiken moderner Meister aus deutschen Museen’ with the Art Gallery Theodor Fischer in Lucerne, Switzerland, on 30 June 1939.102 There is no remedy of German museums to ask for return of their former treasures sold at their request in Lucerne.

4.8.6 Forfeiture of Smuggled Objects Artworks may be forfeited by the State into which the artworks are imported if the State of import requires correct customs declarations as to the imported artwork or as to the personal data of the importing person. Such forfeiture happened in the American case United States v One Tintoretto Painting103 and also in the case of Egon Schiele’s Portrait of Wally, which started as Matter of Grand Jury Subpoena.104

4.9 National Law: Export Prohibitions 4.9.1 General Law All courts and authors of all jurisdictions agree that national courts do not apply and enforce foreign public law.105 They agree with the British House of Lords and its decision in Attorney-General of New Zealand v Ortiz in which the State of New Zealand tried in vain to enforce export prohibitions with respect to Māori carvings in the United Kingdom.106 Because the Ortiz case had decided that foreign export prohibitions cannot be recognized in the UK, the Chancery Division of the English High Court could only hand down a declaratory judgment in the case Kingdom of Spain v Christie’s, Mason & Woods, stating that Goya’s painting La Marquesa de Santa Cruz has been illegally exported from Spain with forged Spanish export documents.107

4.9.2 Export Prohibitions of Member States or States Parties The legal situation changed completely on 1 January 1993 with the commencement of the ‘internal market’ of the European Economic Community (EEC) without customs borders between EEC Member States of the EEC. The Council of the EEC passed Directive 93/7/1993 of 15 March 1993 on the return of cultural objects unlawfully removed from the

102 Stephanie Barron, ‘The Galerie Fischer Auction’ in Stephanie Barron (ed), ‘Degenerate Art’: The Fate of the Avant-Garde in Nazi Germany (Los Angeles County Museum of Art/Abrams 1991) 135–70; Erik Jayme, ‘Entartete Kunst’ und Internationales Privatrecht (Winter 1994). 103 691 F.2d 603 (2d Cir 1982), quashing forfeiture because the owner of the painting did not know about the incorrect information given by the importing person. 104 677 NY.2d 872 (Sup Ct NY City 1998). 105 Citing the Ortiz case (n 26) in Swiss Bundesgericht of 8 April 2005, Entscheidungen des Schweizerischen Bundesgerichts 131, part III, 418, 424. 106 [1984] 1 AC 1, 35; [1983] 2 WLR 809; [1983] 2 AllER 93; [1983] 2 Lloyd’s Rep 265 (HL). 107 [1986] 1 WLR 1120; [1986] 3 AllER 28 (Ch D).

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706 Kurt Siehr territory of a Member State.108 Implemented by every Member State, these Member States were obliged to return cultural objects to their place of origin in one of the Member States if the object was illegally removed (violating prohibitions of removal without government permission of the Member States of origin) from the territory of the Member State of origin. The same is true according to the UNESCO Convention of 17 November 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.109 If cultural object has been illegally exported from a State Party of the 1970 UNESCO Convention and imported to another State Party, that State Party is obliged to return the object if this object is covered by the Convention and, sometimes, an additional agreement has been concluded between the States Parties.110

4.9.3 Export Prohibitions of Third States In 1983, the House of Lords declined to apply prohibitions by New Zealand on directly exporting Māori carvings because these prohibitions were public law in nature. These prohibitions can be applied by New Zealand courts but cannot be applied directly by British courts. Therefore, the Attorney-General of New Zealand lost his claim to recover illegally exported Māori carvings from Ortiz.111 Three years later, the Kingdom of Spain tried to recover the painting La Marquesa de Santa Cruz by Francisco de Goya because it had been illegally exported from Spain with forged export documents. Because of the binding precedent of the Ortiz case, the plaintiff avoided a lawsuit for recovery but asked the Chancery Division of the English High Court to give a declaratory judgment and declare that the painting has been exported illegally with forced export documents. This was done,112 and Spain could buy the valuable painting for less money than before because it was no longer saleable for a high price with the Getty Foundation or other public collection or museum. What has been decided in the UK is also true in civil law countries and the United States. Foreign public law can be applied within the territory of the foreign State but is not binding outside the territory of that State. It cannot be applied directly abroad unless international conventions, European law, or international customary law requires the

108 Official Journal of the European Communities No L 74/74 of 27 March 1993. The Directive of 1993 has been recast by the Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast), Official Journal of the European Union No. L 159/1 of 28 May 2014. 109 823 UNTS 231. See Vrdoljak, International Law, Museums and the Return of Cultural Objects (n 84) 206 ff. 110 Such additional agreements are necessary according to the law of the United States (compare 19 USCA §§ 2601, 2602) and to the law of Switzerland (art 7 of the Federal Act on International Transfer of Cultural Property, Systematische Sammlung des Bundesrechts (SR) No 444.1). 111 Attorney-General of New Zealand v Ortiz (n 26). 112 Kingdom of Spain v Christie, Manson & Woods, Ltd (n 27). See Agnew and Farrer, ‘Goya’s “The Marquesa De Santa Cruz”’ (n 27).

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The Role of Domestic Courts 707 application. Therefore, Swiss courts declined to apply Turkish export prohibitions and even referred to the British Ortiz case as an example of this principle.113 Export prohibitions of third States, not being bound by any instrument of international law, may, however, be applied indirectly by invalidating contracts concerning illegally exported art objects. The German Bundesgerichtshof applied Nigerian export prohibitions indirectly by invalidating an insurance contract insuring illegally exported art objects against the risk of loss during voyage from Africa to Hamburg, Germany.114 Such an insurance contract is void because there is no insurable interest: ‘The export of items of cultural interest contrary to a prohibition in the country of origin does not deserve to be protected under civil law, in the interests of maintaining propriety in international trade in objets d’art . . . Such an insurance contract does not involve an insurable interest.’115 The export prohibitions cannot, however, be applied directly in suits for recovery of illegally exported art objects.116 Whether foreign export bans can be applied as foreign mandatory rules will be discussed in Section 5.3.

5. Application of Substantive Law 5.1 Foreign Substantive Law In many civil law countries foreign law has not to be pleaded by the interested party. The court applies even foreign law ex officio as soon as the facts of the issue have been presented to the judge.117 The principle applies ‘iura novit curia’ (the court knows the laws). ‘Laws’ within this principle are also rules of private international law and of foreign law. If the judge does not know the contents of the applicable foreign law, he may ask experts on foreign law for their opinion. This is different in many common law countries, where foreign law has to be pleaded and proven by the interested party. 113 Appellationsgericht Basel-Stadt 18 August 1995, Basler Juristische Mitteilungen 1997, 17, 21–6 = Schweizer Zeitschrift für Internationales und Europäisches Recht 7 (1997) 472 with comments by Ivo Schwander; affirmed by Bundesgericht 22 May 1996, Praxis des Internationalen Privat- und Verfahrensrechts 1999, 472. See also Sibel Özel. ‘The Basel Decisions: Recognition of the Blanket Legislation Vesting State Ownership over the Cultural Property Found within the Country of Origin’ (2000) 9 International Journal of Cultural Property 315; Kurt Siehr and Çagla Üstün, ‘Antike Grabstelen aus der Türkei bleiben in der Schwarz’ (1999) Praxis des Internationalen Privat- und Verfahrensrechts 489. 114 Bundesgerichtshof 22 June 1972, 59 Entscheidungen des Bundesgerichtshofes in Zivilsachen 82 (Nigeria case). 115 Ibid. English translation in 73 International Law Reports 229. 116 Kurt Siehr, ‘Nationaler und Internationaler Kulturgüterschutz. Eingriffsnormen und der internationale Kunsthandel’ in Pfister and Will (eds), Festschrift für Werner Lorenz zum 70 Geburtstag (MohrSiebeck 1991) 525–42 (525 ff). 117 Kurt Siehr, ‘Application of Foreign Law in European Private International Law’ in Piers, Storme, and Verhellen (eds), Liber amicorum Johan Erauw (Intersentia 2014) 159–74.

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708 Kurt Siehr

5.2 Substantive Law Local courts applied substantive law applicable according to conflict rules and distinguished in many respects following the law applicable or the lex fori.

5.2.1 Holocaust Art During the Holocaust, many Jews were forced to sell their art under pressure and at very low prices, mostly to German authorities for emigration taxes or fees for other obscure purposes. These art objects taken from Jewish citizens of Germany and of conquered countries are called Holocaust art. Many jurisdictions and their civil codes do not distinguish between normal art objects and Holocaust art. They apply their rules for transfer of property without regard to whether the art object was a simple object of legal art trade or whether it had been looted by the Nazis before or during World War II. Many museums and collectors returned voluntarily looted treasures to their former owners, but the official attitude according to written law remained the same as if the Nazi regime did not rule for more than ten years. This official attitude changed in the late 1980s and 1990s. Andrew Decker’s article in ARTnews in 1984 enhanced public awareness of the issue of ‘Holocaust Art’.118 So did Austria’s Mauerbach sale of October 1996,119 the Washington Conference Principles of 1998,120 legislation in the United States,121 and practice in many European countries that added to their legislation ‘national restitution committees’ in order to implement the Washington Principles.122 118 Andrew Decker, ‘A Legacy of Shame’ (1984) 83 ARTnews 55; Oliver Rathkolb, ‘From the “Legacy of Shame” to New Debates over Nazi Looted Art’ in Günter Bischof, Anton Pelinka, and Ferdinand Karlhofer (eds), The Vranitzky Era in Austria (Transaction 1999) 216–28. 119 See Ignaz Seidl-Hohenveldern, ‘The Auction of the “Mauerbach Treasure”’ (1997) 6 International Journal of Cultural Property 247. 120 Washington Conference Principles on Nazi-Confiscated Art of 3 December 1998 (1999) 8 International Journal of Cultural Property 342, with comment by Andrea F. G. Raschèr at 338 ff. 121 Holocaust Victims Redress Act von 1998 (Pub L No 105–158); Holocaust Assets Commission Act von 1998 (Pub L No 105–186); Nazi War Crimes Disclosure Act von 1998 (Pub L No. 105–246); and Holocaust Expropriated Art Recovery Act (HEAR) of 2016, Pub L No 114–308, 130 Stat 1524 ff. 122 France: Commission pour l’indemnisation des victimes de spoliations du fait des legislations antisémites en vigueur pendant l’Occupation, established in 1999 by Décret no 99–778 of 10 September 1999; Germany: Erklärung der Bundesregierung, der Länder und der kommunalen Spitzenverbände of 9 December 1999 zur Auffindung und zur Rückgabe NS-verfolgungsbedingt entzogenen Kulturgutes insbesondere aus jüdischem Besitz with Handreichung of February 2001, revised in November 2007 to the Erklärung of 9 December 1999; Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter, insbesondere aus jüdischem Besitz (called Limbach Kommission) since 2003; these materials may be found under http://de.wikipedia.org/wiki/LimbachKommission, accessed 28 July 2019; Netherlands: Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, established by Decree of 16 November 2001 and their published yearly reports, to be found under accessed 28 July 2019; Switzerland: Jonathan Petropoulos, ‘Business as Usual: Switzerland, the Commerce in Artworks during and after World War II, and National Identity’ in Bischof and Karlhofer, The Vranitzky Era in Austria (n 118) 229–43; Kurt Siehr, ‘Rechtsfragen zum Handel mit geraubten Kulturgütern in den

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The Role of Domestic Courts 709 Some American cases on Holocaust art became famous precedents, such as Schiele’s Portrait of Wally case, the Altmann case concerning Klimt’s Golden Adele, and the Norton Simon Museum case involving Cranach’s Adam and Eve.123 Many lawsuits against foreign States or public museums abroad were successful, but other claims against American private museums and collectors failed because of laches or other reasons. The heirs of former owners were also successful in European countries and art objects were returned to them. Many objects were given back voluntarily without any court dispute,124 but some heirs had to fight for return in court.125

5.2.2 Spoils of War Looting and taking booty in times of war are prohibited under conventional and customary international law.126 In many civil law countries the normal rules of private law also apply to spoils of war. They also can be acquired bona fide by transfer or by prescription.127 The Soviet Union (now the Russian Federation) kept World War II booty as ‘restitution in kind’,128 but the courts in the United States were more diligent and prevented the United States becoming a haven for looted objects. In line with this policy, the Dürer portraits of the couple Fugger were returned to the Kunstsammlungen zu

Jahren 1933–1950’ in Unabhängige Expertenkommission Schweiz–Zweiter Weltkrieg (ed), Die Schweiz, der Nationalsozialismus und das Recht, Vol. II: Privatrecht (Chronos 2001) 125–203; United Kingdom: Advisory Panel for Return of Cultural Objects taken during Nazi era, established according to the Holocaust (Return of Cultural Objects) Act 2009, chap 16. 123 All these and other Holocaust art cases are collected and commented on by Bruce L. Hay, NaziLooted Art and the Law: The American Cases (Springer 2017), and by Gunnar Schnabel and Monika Tatzkow, Nazi Looted Art: Handbuch Kunstrestitution weltweit (proprietas 2007) (covering, inter alia, Germany, Switzerland, Austria, the USA, France, Italy, the Netherlands, Great Britain, and Russia). Many cases are still pending in US courts, including the case of Cassirer v Thysen-Bornemisza Foundation (concerning a painting by Camille Pissarro), the case of Philipp v Stiftung Preussischer Kulturbesitz of 10 July 2018, Kunst und Recht 20 (2018) 98 with comments by Tom Kline and Eden Burgess at 72–3 (concerning the ‘Welfenschatz’ of Berlin) and Reid v Nagy, Supreme Court of the State of New York, New York County: Commercial Division, index 161,799/2015, Judgment of 4 April 2018, Kunst und Recht 20 (2018) 66 (concerning two drawings by Egon Schiele). 124 For example, the restitution of Ernst Ludwig Kirchner’s Berliner Strassenszene, held by the BrückeMuseum of Berlin, to the family Hess. See Schnabel and Tatzkow, Nazi Looted Art (n 123), (proprietas 2007), 257–61; Matthias Weller, ‘The Return of Ernst Ludwig Kirchner’s Berliner Strassenszene’ (2007) 12 Art Antiquity and Law 65. The painting is now exhibited in the Neue Galerie in New York. 125 Cour d’appel Paris 2 June 1999, no 1998/19209, no jurisdata 1999–100,039 (five paintings of Gentili di Giuseppe sold at auction in 1941) and Véronique Parisot, ‘The Gentili di Giuseppe Case in France’ (2001) 10 International Journal of Cultural Property 264; Bundesgerichtshof 16 March 2012, Neue Juristische Wochenschrift 2012, 1796 (posters of Hans Sachs). 126 See The Hague Regulations of 1899 and 1907 (n 75), arts 28 and 47. As customary international law, see Case of United States et al. v Hermann Goering et al. of 1946 (1947) 6 Federal Rules Decisions 69, 130 ff (Nazi crimes). 127 Hoge Raad 8 May 1998, Nederlandse Jurisprudentie 1999 no 44, 169 (concerning a painting by Jan van der Heyden which was stolen or looted from the Art Museum of Dresden). 128 See Akinsha and Kozlov, Stolen Treasure (n 80) 231 ff; Vrdoljak, International Law, Museums and the Return of Cultural Objects (n 84) 143–5.

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710 Kurt Siehr Weimar,129 the Augsburger Geschlechterbuch to the City of Stuttgart,130 and the golden tablet of Babylon to the Vorderasiatische Museum of Berlin.131 If art objects, looted by Russian soldiers, surfaced in the West (especially after 1990) and were about to be sold at auction, looted German museums relied on their property rights and asked for return. They were successful in the case City of Gotha v Sotheby’s/ Cobert Finance S.A. decided by the English High Court of Justice in 1998, which ordered the return of the painting The Holy Family with Saints and Angels by Joachim Wtewael (1566–1638) to the Schlossmuseum zu Gotha.132

5.2.3 Smuggled Art Art objects which are smuggled under violation of foreign export prohibitions (but neither stolen nor converted) are returned only if international or supranational instruments provide for such a return (see Section 3.7.3).

5.2.4 Foreign Patrimony Laws Many countries provide that all finds of treasures in their territory are State property and can only be transferred to another owner by State permission.133 Other countries qualify specific movables as un-merchantable and out of commerce (res extra commercium). This is often done with respect to sacred movables (res sacrae). The problem with such an attribution of being not merchantable is whether such attribution is also valid abroad where all movables of any kind are merchantable. This question was answered negatively by French courts in the nineteenth century. An unmerchantable chalice of the Cathedral of Burgos, Spain, was sold in France to a buyer, and the Spanish cathedral asked for its return. The claim failed because in France all movables which do not qualify as French domaine public can be sold in the French market.134 The same principle was applied in Italy against France with respect to French tapestries which, under French law, are unmerchantable as domaine public.135 France had to buy the tapestries in Italy and transfer them to the French city of Riom as the place of origin. This rule has been fixed in some private international law statutes as follows: ‘The substance and exercise of personal property rights are governed by the law of the place where the personal property is located.’136 129 Elicofon case (n 20). 130 Sotheby’s Inc. v Shene (n 25). 131 Matter of Flamenbaum (n 69). 132 City of Gotha v Sotheby’s/Cobert Finance S.A., of 9 September 1998, reported in Michael H. Carl, Herbert Güttler, and Kurt Siehr, Kunstdiebstahl vor Gericht. City of Gotha v Sotheby’s/Cobert Finance S.A. (De Gruyter 2001) 79 ff, and in Norman Palmer, Museums and the Holocaust: Law, Principles and Practice (Institute of Art and Law 2000) 222 ff. For more on the case see Carl, Güttler, and Siehr Kunstdiebstahl vor Gericht (n 132) 7–75; Michael H. Carl, ‘Beutekunst vor den Zivilgerichten—Auswirkungen des Londoner Urteils über das Bild von Joachim Wtewael aus Gotha’ in Genieva, Michaletz, and Werner, Gesten des guten Willens und Gesetzgebung (n 80) 249–56. 133 See, for example, Swiss Civil Code art 724 (new version of 2003). 134 Tribunal civil de la Seine 17 April 1885, Journal du droit international (Clunet) 13 (1886) 593 (Duc de Frias c. baron Pichon). 135 Cass it. 24 November 1995, n 12,166, Foro italiano 1996, I, 1, 907 (Governo di Francia c. De Contessini). 136 The quoted text is codified as art 100 (2) Swiss PIL Act of 1987. Similar rules may be found in § 31 (2) Austrian PIL Act of 1978 and in art 43 (2) Introductory Act to the German BGB (EGBGB).

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The Role of Domestic Courts 711

5.2.5 Stolen Art Roman law did not allow the transfer of property by a seller not being the owner of the object. The principle applied was nemo plus iuris transferre potest quam ipse habet. This idea spread and still applies in common law countries, whereas many civil law countries allow the transfer of ownership by the non-owner to a bona fide purchaser.137 Today in many countries the requirement of ‘good faith’ is very high, and the buyer must inform him- or herself if there are any doubts about the provenance of the object. Therefore, at least in German-speaking countries, the last decisions of good faith purchase or prescription are rather old.138 Today it is very hard to acquire stolen art objects bona fide because the buyer can ask several websites whether the offered object has been inserted as being stolen. If common law countries do not protect a good-faith purchaser, the claim for return may expire because of statutes of limitation or because of laches as an equitable defence. Special rules, however, may apply to Holocaust art objects (see Section 5.2.1). In many civil law counties (for example, Austria, France, Germany, Italy, and Switzerland), finds of unlawful excavations are qualified as being stolen. In this regard article 3(2) of the 1995 UNIDROIT Convention is rather declaratory and not an innovation.139

5.2.6 Converted Art Art objects entrusted by the bailor to a bailee can be acquired bona fide by a good-faith purchaser if the sale by the unauthorized bailee took place under normal circumstances—that is, at normal or reasonable prices, in open surroundings, fairly and not clandestinely in obscure places, and at normal times, not at night or at abnormal hours. Sometimes it is not so easy to distinguish ‘stolen’ art objects from ‘converted’ ones. This

137 See Javier E. Rodríguez Diez, Potestas alienandi: Transfer of ownership by a non-owner from Roman law to the DCFR (Wolf 2016). 138 Last decisions of last resort in which good-faith purchase or prescription (Ersitzung) of art objects has been recognized: Austria: Oberster Gerichtshof 3 March 1966, Juristische Blätter 1967, 367; see also Stefan Arnold, ‘Eigentumsschutz und Verkehrsschutz bei Kunstgegenständen im österreichischen Kollisions- und Privatrecht’ (2015) 1 Austrian Law Journal 3; Germany: Bundesgerichtshof 5 October 1989, Neue Juristische Wochenschrift 1990, 899 (sale of ancient seal of Hamburg at auction and acquisition under § 935 (2) BGB); Switzerland: Bundesgericht 18 March 1943, Entscheidungen des Schweizerischen Bundesgerichts 69, part II, 110; see also Marc Weber, ‘Gutgläubiger Erwerb von Kunstwerken im Schweizer Recht’ (2012) 14 Kunst und Recht 98, 99. 139 Art 3(2) UNIDROIT Convention reads: ‘For the purpose of this Convention 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.’ Text of the UNIDROIT Convention of 24 June 1995 on Stolen or Illegally Exported Cultural Objects (1996) NS 1 Uniform Law Review 110; (1996) 5 International Journal of Cultural Property 155. The Convention has been ratified by seventeen European countries: Bosnia and Herzegovina, Croatia, Cyprus, Denmark, Finland, Greece, Hungary, Italy, Lithuania, Norway, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the Former Yugoslav Republic of Macedonia. Missing, however, are market States like Austria, France, Germany, the Netherlands, Switzerland, the UK, and the USA.

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712 Kurt Siehr had to be decided in the Kunstsammlungen zu Weimar v Elicofon case, and the portraits by Albrecht Dürer were correctly qualified as stolen objects.140

5.2.7 Misattributed Art It happens even today that art works are sold with the attribution to an artist that is later disputed by the buyer (thinking they bought a less valuable art work)141 or by the seller (thinking they sold a more valuable art work).142 In the first situation the buyer wants repayment of the purchase price because he or she tells the court he or she paid too much for an artwork less valuable than the work bought with the attribution of an artist more famous. In many of these cases the plaintiff failed because he or she came to court too late.143 The other situation is concerned with ‘sleepers’, which are of greater valuable than the price for which they were sold to the buyer. In these cases the seller wants to rescind the contract and get back the object, or the high price the buyer got for resale of the object to a third party. In most of these cases, the seller’s claim has failed because it could be shown that the misattribution was the risk of the seller.144

6. Correction by the Lex Fori If foreign law has to be applied, the result of this application may be changed or modified by public policy of the forum State or, if local law is applicable, foreign mandatory rules may be considered and given effect in the forum State.

6.1 Public Order of the Forum State There are two different systems of legal reasoning for the solution of conflict of law cases. The first system is used in Europe. European courts apply conflict of law rules and, if foreign law is applicable, they apply foreign substantive law; if they come to a solution very different from local law of the forum State, they ask whether this solution has to be 140 Elicofon case (n 20). 141 Examples: Germany: Reichsgericht 11 March 1932, Entscheidungen des Reichsgerichts in Zivilsachen 135, 339 (Ruisdael); Switzerland: Bundesgericht 16 October 1956, Entscheidungen des Schweizerischen Bundesgerichts 82, part II, 411 (van Gogh copy); UK: Leaf v International Galleries, [1950] 2 KB 86 (CA) (Constable); Maharanee of Baroda v Wildenstein, [1972] 2 QB 283 (CA) (Boucher copy). 142 Examples: France: Cass 22 February 1978, Recueil Dalloz 1978, 601, and in Henri Capitant, François Terré, and Yves Lequette (eds), Les grands arrêts de la jurisprudence civile, vol 2 (12th ed, Dalloz 2008), nos 147–8 (Poussin); Germany: OLG München 20 March 2014, Neue Juristische Wochenschrift 2015, 81 (tapestry); UK: Thwaytes v Sotheby’s, [2016] WLR 2143 (Ch D) (Caravaggio); USA: Estate of Nelson v Rice, 12 P.3d 238 (CA Arizona 2000) (Heade). 143 Reichsgericht, Entscheidungen des Reichsgerichts in Zivilsachen (n 141); Leaf v International Galleries (n 141). 144 OLG München (n 142); Thwaytes v Sotheby’s (n 142); Estate of Nelson v Rice (n 142).

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The Role of Domestic Courts 713 changed or modified by application of the public policy clause of the forum State. Public policy is applied if the solution of the case under foreign substantive law violates public policy of the forum State, this violation manifestly of fundamentally deviates from the law applicable in the forum State, and the case to be decided has close connection (proximité) with the forum State. This exception has hardly been ever applied in cultural property cases. This is different under the American system of governmental interests. This sort of legal reasoning fixes the lex fori at the outset as the law applicable, thereby—more or less—fixing the local substantive law as the law most interested in the case to be decided and leaving no room for any discussion of exception.145

6.2 Overriding Mandatory Rules Overriding or mandatory rules (as per art 9 (2) Rome I—Regulation; art 16 Rome II— Regulation) of the forum State may be applied to cases governed by foreign law as exception. Such rules have been never applied to cultural property cases.

6.3 Public Order of Third States However, foreign mandatory rules of third States have been pleaded to be applicable in Switzerland under article 19 of the Swiss Private International Law Act of 1987.146 This article provides an exception clause in favour of foreign mandatory rules to cases governed by the lex fori.147 Two seventeenth-century golden coins of India had been accepted in 1988 by the defendant bank of Geneva as security (pledge) for a loan to be given to two companies owned by a person of nobility of India. The Indian Union 145 Reif v Nagy (n 71) 66. See also Kurt Siehr, ‘Die Kunstsammlung Fritz Grünbaum (1880–1941) und der US-amerikanische Holocaust Expropriated Art Recovery Act von 2016’ (2018) 2 and (2019) 1 Bulletin Kunst & Recht 22. 146 Bundesgericht 8 April 2005, Entscheidungen des Schweizerischen Bundesgerichts 131 III 418. Comments by Regula Berger-Röthisberger, ‘Die Gutgläubigkeit der Bank bei der Entgegennahme eines Kulturgutes als Sicherheit’: recht 2007, 204–15; Marc-André Renold, ‘An Important Swiss Decision Relating to the International Transfer of Cultural Goods: The Swiss Supreme Court’s Decision on the Giant Antique Mogul Gold Coins’ (2006) 13 International Journal of Cultural Property 361. Art 19 Swiss PIL Act has also been pleaded unsuccessfully in the Turkish Stela-case Appellationsgericht Basel 18 August 1985, Basler Juristische Mitteilungen 1997, 17, 21, 22. 147 Art 19 Swiss PIL Act reads in English: ‘(1) When interests that are legitimate and clearly preponderant according to the Swiss conception of law so require, a mandatory provision of another law than the one referred to in this Act may be taken into consideration, provided that the situation dealt with has close connection with such other law. (2) In deciding whether such a provision is to be taken into consideration, one shall consider its aim and the consequences of its application, in order to reach a decision that is appropriate having regard to the Swiss conception of law.’ Translation taken from Andreas Bucher and Pierre-Yves Tschanz (eds), Private International Law and Arbitration. Switzerland, Basic Documents (Helbing Lichtenhahn 1996) 4.

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714 Kurt Siehr brought a lawsuit in Geneva and asked for recovery of the coins as owner and as State of origin, which protects Indian objects of cultural heritage from being used and exported for commercial purposes. After having found that the plaintiff did not succeed in proving better title and that the defendant had a valid security under Swiss law, the court turned to article 19 Swiss Private International Law Act of 1987 and to the newly enacted Swiss Federal Statute on International Cultural Property Transfer (CPTA) of 2003.148 Switzerland ratified the 1970 UNESCO Convention and requires from the requesting foreign States Parties that they conclude with Switzerland an agreement on the scope of cultural property to be protected by the Convention (art 7 Swiss CPTA). India had not made such an agreement with Switzerland, and Switzerland does not apply the CPTA retroactively. Because of this requirement of agreements, foreign export prohibitions with respect to art objects not mentioned in such agreements cannot be applied by Swiss courts.

7. Recognition of Foreign Judgments There are hardly any foreign judgments which had to be enforced in local fora. Most of the cases were decided in the country where the art object or its owner were located and therefore could be enforced in the country of decision. There are, however, a few exceptions.

7.1 Claims for Recovery of Holocaust Art Located Abroad Three examples for such cases may be mentioned: Altmann v Federal Republic of Austria,149 Cassiser v Thyssen-Bornemisza Collection Foundation,150 and Philipp v Germany and Stiftung Preussischer Kulturbesitz.151 Although the art objects claimed back in the United States were or still are located in Europe (Golden Adele by Egon Klimt at the time of award in Austria; Rue Saint-Honoré by Camille Pissarro in Madrid; and the ‘Guelph Treasure’ in Berlin), the victims of the Holocaust and forced sales try to bring their recovery claim in the United States because they perceive their claims have a better chance in American courts than in European tribunals. As these cases have not 148 English translation of the Swiss Kulturgütertransfergesetz; see accessed 28 July 2019. 149 Altmann v Republic of Austria (n 12). See also F. Randol Schoenberg, ‘Whose Art Is It Anyway?’ in Michael J. Bazyler and Roger P. Alford (eds), Holocaust Restitution: Perspectives on the Litigation and Its Legacy (New York University Press 2006) 288–93. 150 Cassirer v Thyssen-Bornemisza Collection Foundation (n 59). The federal district court still has to decide the remanded case. 151 Philipp v Germany and Stiftung Preussischer Kulturbesitz, No 17–7064 (DC Cir 10 July 2018), (2018) 1/2 IFAR Journal 14 (remanded back to lower court).

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The Role of Domestic Courts 715 yet been decided in the United States, the recognition by the defendants must be postponed. In the Altmann case the parties appointed an ad hoc arbitration tribunal in Austria which finally decided the case in favor of Maria Altmann.152 The award was recognized by the Republic of Austria and the Golden Adele given back to the owner, who finally sold the painting, which is now exhibited in New York’s Neue Galerie.

7.2 Submission of Defendant Living Abroad to Foreign Jurisdiction In 1964 a life-sized bronze statue of a victorious athlete was discovered by Italian fishermen in the Adriatic Sea off the port of Fano, a city on the northern Italian coast. The statue was bought by the Getty Museum in 1977 and since then has been known as the ‘Victorious Youth’ or the ‘Atleta di Fano’. When the Getty Trust signed an agreement with the Italian Ministry in 2007 the Getty Trust did not return the ‘Victorious Youth’ but agreed with the Italian Ministry that the question of return should be set aside pending the legal process before the Tribunal of Pesaro.153 As soon as a final decision has been handed down in Italy, I am sure the Getty Trust will accept it and return the ‘Victorious Youth’ to Italy.

8. Conclusion Thus far the role of local courts has been very important for art law disputes. Arbitration or alternative dispute resolution solutions seem to be increasing but, at the present time, are of minor importance. Most of the cases initiated in local courts are transborder disputes also touching problems of private international law. For the most part, claims with respect to misattributed art objects are local ones without any problem of conflicting laws. Immunity was raised as a defence in many cases arising against foreign countries. In early cases immunity of objects was accepted. Later, the defence was denied because the claim was qualified as ‘commercial activity’, as being an actum gestionis and not covered by immunity of public international law. Sometimes, however, immunity was given in

152 Altmann v Republic of Austria (n 12). 153 Tribunale penale di Pesaro 12 June 2009, Rivista di diritto internazionale privato e processuale 47 (2011) 149 with article by Tullio Scovazzi, ‘Dal Melqart di Sciacca all’Atleta di Lisippo’, 5–18; Tribunale penale di Pesaro 10 February 2010, Rivista di diritto internazionale privato e processuale 47 (2011) 175, and article by Derek Fincham, ‘Transnational Forfeiture of the Getty Bronze’ (2014) 32 Cardozo Arts & Entertainment Law Journal 471. The Getty Trust appealed the last decision of the Tribunale penale di Pesaro of June 2018: (2018) 1/2 IFAR Journal 13.

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716 Kurt Siehr order to return the objects to the foreign lender and to prevent a breakdown in the practice of lending art treasures from and to foreign countries and their museums.154 The problem of international jurisdiction was not disputed in most cases. The lawsuit for return of the object was started at the place where the object was located and the defendant was domiciled. The problem of recognition and execution did not create any difficulty in these cases. There are, however, two exceptions with respect to transient jurisdiction and to personal jurisdiction at the place of doing business. (a) Transient jurisdiction was recognized only once, in the very special case of Maharanee of Baroda v Wildenstein decided in 1972.155 The case was special insofar as the plaintiff did not seek return of an art object. She wanted the return of the money she paid for the delivery of a fake. The case was not finally decided by court decision. The defendant apparently preferred to settle the dispute with the Maharanee. Under the EU Brussels Convention of 1998 and the Brussels Regulation of 2001, such a suit based on service of process in the forum State is no longer permitted for defendants having their habitual residence in the European Union. The United Kingdom joined the European Union and took part in the instruments mentioned above in 1973. (b) Personal jurisdiction at the place of doing business was applied in the American case Maria Altmann v Republic of Austria. Before the parties to this suit agreed to have it decided by an arbitration tribunal in Vienna,156 the Republic of Austria was sued in California at a place of business of the defendant.157 Subject matter jurisdiction is normally given to courts for civil law disputes. Sometimes, however, administrative courts have to decide return claims of States based not on title to the object but on public law protecting national treasures. Criminal courts have to decide the return claims based on conventions of international assistance in criminal matters. Private law governing the claims for return of the object had to be decided by private international law of the forum State. In contract cases (such as the sale of fakes), the law governing the contract of the parties applies. In tort cases (replevin) the law at the place of the object was applied; with respect to property issues, the lex rei sitae prevailed. In these cases a right, acquired under a foreign lex rei sitae, is recognized in the forum State as a vested right. The principle of the English case Winkworth v Christie’s158 is recognized by continental courts (for example, in the Turkish stela case in the Swiss cantonal court of Basel and the Federal Court159) as well as by courts of common law countries (for example, the American case Autocephalous Church of Cyprus v Goldberg160). Foreign public law (for example, prohibiting looting, acts of State, providing the application of foreign export prohibitions) must be applied in local courts if international instruments or national law provide for the application of foreign public law. In the UK 154 See n 8. 155 Maharanee of Baroda v Wildenstein (n 41). 156 Altmann v Republic of Austria (n 12). 157 See n 37. 158 Winkworth v Christie, Manson and Woods (n 21). 159 Appellationsgericht Basel-Stadt 18 August 1995, Basler Juristische Mitteilungen 1997 (n 113). 160 Autocephalous Greek-Orthodox Church of Cyprus v Goldberg & Feldman Fine Arts, Inc (n 57).

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The Role of Domestic Courts 717 case Attorney-General of New Zealand v Ortiz161 English courts did not apply export prohibitions imposed by New Zealand because English courts do not honour such prohibitions unless international law urges the application. Today within the European Union and between States Parties to the 1970 UNESCO Convention, export bans of Member States or States Parties must be enforced in local courts because national laws implementing EU Directives162 and the 1970 UNESCO Convention163 provide for such enforcement. Foreign substantive law is applied and corrected in cases in which the applicable law manifestly violates public policy, but this has not been done very often. Foreign acts of State have been recognized as well as foreign patrimony laws and expropriations. Recognition of foreign judgments was hardly necessary because in most cases judgment was given in the country where the art objects to be returned as located. 161 Attorney-General of New Zealand v Ortiz (n 26).

162 See n 108.

163 See n 109.

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chapter 30

A lter nati v e Dispu te Set tl em en t M ech a n isms Alessandro Chechi

1. Introduction The initiation of legal proceedings before domestic courts is one of the options available to litigants for the resolution of all types of disputes, including cultural heritage-related disputes. When contracts are not performed, or wrongs are committed, or in any other case where rights or interests are interfered with or infringed, the aggrieved party—be it a natural or legal person—can go to court. There are obvious reasons for resorting to litigation. First, litigation proceeds in a seemly and efficient manner based on well-established rules of procedure and concludes with a ruling that can be enforced through the ordinary State machinery. Second, the judiciary provides neutrality and impartiality. Third, court decisions (even outside the common law system) tend to establish legal precedents that can be useful to clarify enforceable rights and duties1 and to deter further wrongs. A last strength worth mentioning is that recourse to litigation may exert pressure on the defendant, who often becomes inclined to provide a constructive response. However, litigation presents various drawbacks that can dissuade parties from bringing an action. The first problem relates to access. Although several national constitutions guarantee the right to bring an action for the protection of individual rights and legitimate interests, legal action is not always available. Courts may dismiss restitution claims on grounds of, for instance, lack of jurisdiction, the expiry of limitation periods,

1 Daniel Shapiro, ‘Litigation and Art-Related Disputes’ in Quentin Byrne-Sutton and Fabienne Geisinger-Mariéthoz (eds), Resolution Methods for Art-Related Disputes (Schulthess 1999) 17–34, 18–19.

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Alternative Dispute Settlement Mechanisms 719 or State immunity. Second, when it is initiated in a foreign jurisdiction, litigation entails a certain degree of uncertainty. For instance, litigants in ownership cases may have doubts as to the law that the court will apply and as to the recognition and enforcement of foreign public law. Third, litigation, as an adversarial system, entails zero-sum solutions that often cause antagonism between winners and losers, particularly in cases involving a theft victim and an innocent purchaser. Fourth, resort to litigation entails considerable economic and human expenses. Litigants may suffer not only the loss of time but also the burden of paying prohibitive legal costs. Fifth, court proceedings do not provide the secrecy and the confidentiality that litigants normally seek to protect their reputation.2 Last, conventional court remedies such as damages are often not adequate in cases involving non-conventional stakeholders—such as Indigenous peoples—claiming the return of sensitive objects—such as objects having religious or ceremonial importance. These drawbacks show that litigation cannot be entirely effective. However, the main reason cultural heritage-related disputes do not always lend themselves to classical adversarial dispute settlement is that the laws that courts are enjoined to apply have been enacted for business transactions involving ordinary goods. Unlike merchandise, cultural heritage items are durable, unique, valuable (and likely to become more valuable over time) carriers of multiple non-economic values. Cultural heritage–related disputes should thus be preferably settled through means that can take account of the specificity of art objects and of the unique features of the international art (licit and illicit) trade, that can balance the parties’ interests against the concerns of justice and fairness, and that can reconcile the various moral, historical, cultural, financial, and legal issues normally involved in cultural heritage–related disputes. It is for these reasons that lawyers and judges often encourage disputants to settle outof-court.3 Recent international practice shows that ‘Alternative Dispute Resolution’ (ADR) methods may either prevent the initiation of lawsuits or result in the abandonment of pending judicial proceedings. In this regard, it is interesting to recall that in the Altmann litigation the State Department of the United States (US) filed an amicus curiae brief before the US Supreme Court in which it was suggested that the case had to be solved through ‘diplomatic negotiations . . . and not in US courts’.4 Such a statement echoed the assertion made by Lord Denning in the Ortiz case that the retrieval of works of art situated outside the national territory ‘must be achieved by diplomatic means’.5 It follows that litigation can be regarded as a dispute resolution mechanism of last resort. No one goes to court to settle a dispute if alternative options are available. 2 Norman Palmer, ‘Statutory, Forensic and Ethical Initiatives in the Recovery of Stolen Art and Antiquities’ in Norman Palmer (ed), The Recovery of Stolen Art (Institute of Art and Law 1998) 1–31, 18–19. 3 Norman Palmer, ‘Waging and Engaging—Reflections on the Mediation of Art and Antiquity Claims’ in Marc-André Renold, Alessandro Chechi, and Anne Laure Bandle (eds), Resolving Disputes in Cultural Property (Schulthess 2012) 81–105, 82–95, 100–2. 4 Maria Altmann v. Republic of Austria, Amicus Curie Brief Supporting Petitioners, 15. 5 Attorney General of New Zealand v Ortiz [1982] 3 All ER 432, 460.

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720 Alessandro Chechi This chapter looks at existing ADR options—such as negotiation, mediation, c onciliation, and arbitration—with a view to assessing their efficacy in relation to cultural heritage disputes.6 However, it is not possible to examine all types of d isputes within the limited space of this chapter. Therefore, the analysis that follows will be limited to the disputes over the recovery of artifacts stolen, illicitly exported, clandestinely excavated, or otherwise wrongfully removed.

2. ADR Means 2.1 Negotiation Negotiation can be defined as the unassisted process that allows the parties to share information, engage in discussions, or exchange writings in order to arrive at a com promise settlement agreement. As such, it is common among long-time partners eager to preserve and maintain their relationship and to create win–win solutions whereby creative and mutually satisfactory outcomes are envisaged7 and legal obstacles are set aside.8 Negotiation is an option available at any time, either together with or as a part of other processes. Various examples demonstrate that negotiation has been used with regard to restitution requests concerning cultural objects. With respect to Holocaust-related art, countless claims have been negotiated since the restitution campaign began in the mid-1990s. Such compromises often follow litigation (or the threat of it).9 This was the case in the Goodman & Gutmann–Searle agreement reached in 1998, the first Nazi–looted art case to be settled in the US. The parties—the Gutmann heirs and the collector Daniel Searle—agreed to divide ownership of the Degas painting Landscape with Smokestacks equally—Searle gave his half-interest to the Art Institute of Chicago, which in turn bought the interest of the Gutmann heirs on the art market—and to attach a label to the painting commemorating the misappropriation.10 The case involving Egon Schiele’s Portrait of Wally is also worth mentioning because the dispute was settled through

6 On this theme, see also Alessandro Chechi, The Settlement of International Cultural Heritage Disputes (Oxford University Press 2014). 7 Isabelle Fellrath Gazzini, Cultural Property Disputes: The Role of Arbitration in Resolving NonContractual Disputes (Transnational Publishers 2004) 62. 8 Marie Cornu and Marc-André Renold, ‘Le renouveau des restitutions de biens culturels: les modes alternatifs de règlement des litiges’ (2009) Journal du droit international 493–532, 517. 9 Michael J. Bazyler and Kearston G. Everitt, ‘Holocaust Restitution Litigation in the United States: An Update’ (2004) ACLU International Civil Liberties Report 1–16. 10 Norman Palmer, ‘Memory and Morality: Museum Policy and Holocaust Cultural Assets’ (2001) vol 6 Art Antiquity and Law 259, 265–6, 278–9.

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Alternative Dispute Settlement Mechanisms 721 negotiation after twelve years of litigation.11 In July 2010 the parties—the Estate of Lea Bondi, the US Government, and the Leopold Museum of Vienna—announced the out-of-court settlement of the case. The major terms of the agreement were as follows: the Leopold Museum paid the Estate US$19 million; the Estate relinquished its claim to the painting; and the US Government dismissed the civil forfeiture action.12 Negotiation has proved useful also with respect to the restitution of illicitly exported archaeological objects. This is testified by the numerous bilateral agreements concluded between source and market States and between source States and foreign museums. As far as the former group is concerned, it is worth mentioning the growing number of agreements concluded by Switzerland13 and the US,14 two States which can still be regarded as hubs for illegal trafficking in art objects. Regarding negotiation between States and collecting institutions, one can consider the agreements concluded by US museums with Italy. Through these deals15 various museums, including the New York Metropolitan Museum of Art (2006),16 the Boston Museum of Fine Arts (2007),17 the J. Paul Getty Museum (2007),18 and the Princeton University Art Museum (2007),19 returned numerous antiquities to Italy. Not only can these negotiated agreements be regarded as efficient out-of-court settlements that have permitted the return of several precious antiquities and avoided litigation and the legal expenses and negative publicity associated to it; they have also permitted the establishment of cultural cooperation 11 United States v Portrait of Wally, 105 F.Supp. 2d 288 (SDNY 2000), 2000 US Dist. LEXIS 18713 (SDNY 28 Dec. 2000), 2002 US Dist. LEXIS 6445 (SDNY 2002), 663 F. Supp. 2d 232 (SDNY 2009), No. 99-CV-09940 (SDNY filed 29 July 2010). 12 The Art Law Group of Herrick, Feinstein LLP, ‘The United States of America, the Estate of Lea Bondi Jaray and the Leopold Museum Settle the Long-Standing Case Involving “Portrait of Wally” by Egon Schiele’, Press release (20 July 2010), available at accessed 19 June 2019. 13 As of writing, Switzerland has concluded eight bilateral agreements; see at accessed 19 June 2019. 14 The bilateral agreements concluded by the US are available at accessed 19 June 2019. 15 According to Scovazzi, these agreements should be considered as contracts rather than inter national treaties; Tullio Scovazzi, ‘Diviser c’est détruire: Ethical Principles and Legal Rules in the Field of Return of Cultural Properties’ (2010) vol 94 Rivista di diritto internazionale 341, 380. 16 Raphael Contel, Giulia Soldan, and Alessandro Chechi, ‘Case Euphronios Krater and Other Archaeological Objects–Italy and Metropolitan Museum of Art’, Platform ArThemis (), Art-Law Centre, University of Geneva. 17 Giulia Soldan, Raphael Contel, Alessandro Chechi, “Case 13 Archaeological Objects – Italy and Boston Museum of Fine Arts’, Platform ArThemis (), Art-Law Centre, University of Geneva. 18 Getty Museum, ‘Italian Ministry of Culture and the J. Paul Getty Museum Sign Agreement in Rome’, Press release (1 August 2007), available at accessed 19 June 2019. 19 Alessandro Chechi, Anne Laure Bandle, and Marc-André Renold, ‘Case 15 Archaeological Objects– Italy and Princeton University Art Museum’, Platform ArThemis (), Art-Law Centre, University of Geneva.

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722 Alessandro Chechi programmes between the signatories, involving loans and collaboration in the areas of scholarship, conservation, and archaeological investigation. Other source countries have obtained similar results. The deal concluded by Peru and Yale University in 2011 led to the return of a collection of pre-Columbian artefacts and the creation of a joint research centre.20 Likewise, the agreement signed in 2012 by Turkey and the University of Pennsylvania Museum of Archaeology and Anthropology allowed the return of an ancient collection of jewels through a long-term, indefinite loan and a programme of cooperation relating to future exhibitions in the US and excavations in Turkey.21

2.2 Mediation Mediation is the intervention of a neutral third party in a dispute for the purpose of assisting the litigants to reach a mutually satisfactory agreement in a flexible, exped itious, confidential, and less costly manner, including by taking into consideration extra-legal factors. Therefore, the mediator—which is selected by the parties—only controls the procedure, ensures that it is structured in a fair way, and does not impose any decisions on the parties; there will only be a binding settlement if the parties reach agreement. It is when the antagonism between the parties impedes direct negotiations that a mediator is essential to assist in de-escalating contention, promoting dialogue and reciprocal concessions. As rightly suggested by Palmer, ‘[m]ediation seeks to resolve disputes, not according to the legal analysis and redress of past conduct, but according to the identification of common ground, the development of future relationships and the attainment of future goals’.22 The following examples demonstrate that mediation represents a useful model to settle restitution claims. The first example relates to the controversy between the Swiss cantons of Zurich and St Gallen over around one hundred artefacts removed from the latter during the War of Villmergen of 1712. Given the failure of all attempts to bring about an amicable solution, in 2002 the canton of St Gallen invoked the mediation of the Confederation relying on article 44(3) of the Constitution, which states: ‘[L]es différends entre les cantons ou entre les cantons et la Confédération sont, autant que possible, réglés par la négociation ou la mediation’ [‘Disputes between the cantons or between the cantons and the Confederation are, as far as possible, settled by negotiation or mediation’]. An agreement was reached in April 2006. It established, inter alia, that: the canton of 20 Alessandro Chechi, Liora Aufseesser, and Marc-André Renold, ‘Case Machu Picchu Collection– Peru and Yale University’, Platform ArThemis (), Art-Law Centre, University of Geneva. 21 Ece Velioglu, Anne Laure Bandle, and Marc-André Renold, ‘Case Troy Gold–Turkey and the University of Pennsylvania Museum of Archaeology and Anthropology’, Platform ArThemis (), Art-Law Centre, University of Geneva. 22 Norman Palmer, Museums and the Holocaust: Laws, Principles, and Practice (Institute of Art and Law 2007) 107.

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Alternative Dispute Settlement Mechanisms 723 Zurich is the legitimate owner of the items; the canton of St Gallen recognizes Zurich’s title; thirty-five valuable manuscripts are loaned to St Gallen for a renewable thirty-eight-year period; and St Gallen receives a replica of a globe of heaven and earth at the expense of the canton of Zurich.23 Switzerland furnishes another example. This relates to a document signed by the Protestant reformer John Calvin dating from 1553, which had been stolen from the archives of the city of Geneva. The document was put up for sale in New York at an auction by Sotheby’s in December 2016. Alerted by an expert, the city of Geneva requested Sotheby’s not to proceed with the sale and to consider returning the document to Geneva. The object was returned to Geneva in October 2017 by virtue of an accord that was reached following the mediation of two governmental bodies, the Swiss Federal Office for Culture and the US Department of Justice.24 Finally, it is interesting to mention the settlement of the dispute between the Natural History Museum of London and the Tasmanian Aboriginal Centre over the return of human remains that were removed from Tasmanian burial sites around 1850 and transported to the United Kingdom thereafter. The Aboriginal Centre submitted various requests beginning in the 1980s, but the Museum always rejected these claims. Consequently, the Centre initiated a lawsuit in London against the Museum. The Centre sought to obtain the return of the remains and to prevent scientific examinations on the remains, as these would violate Aboriginal customary rights. In view of the mounting legal costs, the Museum agreed to proceed by means of mediation. The dispute was settled in 2007 after a three-day mediation session during which the Centre and the Museum jointly determined the extent of permissible scientific investigations on the human remains before their return to Tasmania.25

2.3 Conciliation Conciliation involves an independent commission or an individual that acts as a third party. The task of the conciliator, which enjoys the confidence of the disputants, is to investigate the dispute and propose a solution to the parties. This implies a more indepth study of the dispute than in mediation, combined with the independence of the third party as it is found in judicial adjudication, but aiming for an amicable settlement that culminates in a final recommendation, which can be accepted or rejected by the parties. In the field of cultural heritage, conciliation is often employed to resolve Holocaust-related claims. A number of non-forensic domestic bodies have been set 23 Beat Schönenberger, The Restitution of Cultural Assets (Stämpfli 2009) 10–11. 24 See Margaux Sitavanc, Alessandro Chechi, and Marc-André Renold, ‘Affaire Mandat signé par Jean Calvin–République et canton de Genève et Sotheby’s’, Platform ArThemis (), Art-Law Centre, University of Geneva. 25 Lyndel V. Prott (ed), Witnesses to History: A Compendium of Documents and Writings on the Return of Cultural Objects (UNESCO Publishing 2009) 401.

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724 Alessandro Chechi up following the adoption of the Washington Principles on Holocaust-Era Assets in 1998.26 These institutions provide a scheme of resolution that to some extent resembles conciliation. Among these domestic bodies is the Spoliation Advisory Panel (SAP) in the United Kingdom.27 This was formed in 2000 to consider claims from people or their descendants who lost possession of cultural objects during the period 1933 to 1945 which are now held in national collections. The SAP has been entrusted with advisory powers and with the duty of evaluating the moral and legal aspects of disputes, such as the circumstances and the degree of scrupulousness shown by cultural institutions in the acquisition. As the SAP is not bound by the legal rules of evidence, it can consider facts that a court of law might not be able to access. It follows that the SAP offers a level of flexibility that cannot be achieved through litigation. For instance, the SAP’s Constitution and Terms of Reference suggest forms of relief alternative to restitution, such as compensation or ex gratia payment.28

2.4 Arbitration Arbitration is one of the principal non-forensic methods of settling international disputes.29 The parties to a dispute can settle their controversy by arbitration if they rely on an arbitration clause contained in a general undertaking (such as a treaty or a contract) or by stipulating a submission agreement (compromis). The latter should not be con sidered only as an instrument to give consent to participation in arbitration. On the contrary, the compromis amounts to a contract to abide by the adjudicator’s award. Disputants’ consent thus indicates their willingness to respect and cooperate for the enforcement of the final settlement of an arbitral tribunal.

26 These non-binding principles call upon States to assist the return of stolen artworks to their ori ginal owners. Principles 8 and 9 affirm that ‘steps should be taken expeditiously to achieve a just and fair solution’, whereas Principle 11 establishes that ‘Nations are encouraged to develop . . . alternative dispute resolution mechanisms for resolving ownership issues’. The Washington Principles were adopted at a conference organized by the United States in December 1998 and are available at www.lootedart.com/ MG7QA043892, accessed 19 June 2019. 27 The others being the Kommission für Provenienzforschung (Austria), the Commission d’indemnisation des victims de spoliations (France), the Restitution Committee (the Netherlands), and the Beratende Kommission (Germany). 28 The SAP has construed ‘compensation’ as the redress granted to a claimant with an enduring legal right to the object and ‘ex gratia payment’ as the redress applicable where there is no such legal right. Norman Palmer, ‘The Spoliation Advisory Panel and Holocaust-Related Cultural Objects’ in Mathias Weller et al. (eds), Raub—Beute—Diebstahl (Nomos 2013) 119. 29 On the role of arbitration for the settlement of disputes involving cultural objects, see Manlio Frigo, ‘Methods and Techniques of Dispute Settlement in the International Practice of the Restitution and Return of Cultural Property’ (2017) vol 53 Rivista di diritto internazionale privato e processuale 569, and Christa Roodt, Private International Law, Art and Cultural Heritage (Edward Elgar 2015) 191–223.

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Alternative Dispute Settlement Mechanisms 725 Notwithstanding the form that it can take,30 arbitration combines the features of judicial settlement and of non-forensic procedures. On the one hand, arbitration has the formality of court decisions and its awards are final and binding. Indeed, arbitration is decisional by nature as it does not seek to compromise disputes. On the other hand, unlike court proceedings, which are tied to pre-established procedural and substantive rules, arbitration may prove to be particularly flexible for resolving legal and non-legal issues and removing obstacles to good relations. In effect, the primary benefit of arbitration resides in the parties’ power to shape the process to fit their needs. Disputants can agree, inter alia, on the number, expertise, and selection of the arbitrators, the applicable substantive law, the rules of evidence to be applied, and the ‘delocalization’ of the dispute.31 If the parties have failed to subject the agreement to a law of their choice, the lex fori (the law of the place of arbitration) applies on a subsidiary basis.32 Litigants are permitted to include clauses which allow arbitrators to decide according to ‘equity’ and ‘good conscience’, as well as principles other than those embodied in the rules of the selected system of law. Arbitration clauses can be found in art-related agreements. For instance, the agreements concluded by Italy with foreign museums since 2006 include arbitration clauses.33 These clauses provide for arbitration under the auspices of the Paris International Chamber of Commerce to settle any disputes concerning the interpretation and application of each agreement. Ostensibly, this is due to the fact that arbitrators can decide questions of sovereignty and national and international law, as well as moral and ethical arguments. Although it would seem an efficient way to settle art-related disputes, arbitration has been used only to resolve the above-mentioned Altmann case.34 This controversy involved six paintings by Gustav Klimt, which had been confiscated by the Nazis in 1938 30 Moreover, it is possible to distinguish interstate arbitration from private (or commercial or mixed) arbitration. The former is set up by States to decide a case or a series of cases between them. At the inter national level, recourse to non-judicial means on the part of States is the rule rather than the exception. State officials tend to avoid binding third-party settlements (domestic or international tribunals) and to turn to arbitration or direct negotiation, as these mechanisms allow more control over the case. Private arbitration is an extension of the former procedure to disputes with an international element in which, besides States, individuals or corporations are involved as parties. 31 Norman Palmer, Art Loans (Kluwer Law International and International Bar Association 1997). 32 Shengchangand Lijun, ‘The Role of National Courts and Lex Fori in International Commercial Arbitration’ in Loukas A. Mistelis and Julian D. M. Lew (eds), Pervasive Problems in International Arbitration (Kluwer 2006) 155–83. 33 In addition to those mentioned already in this chapter (nn 16, 17, 18, and 19), Italy concluded agreements with the Cleveland Museum of Arts (2008), the Dallas Museum of Arts (2012), and the Ny Carlsberg Glyptotek Copenhagen (2016). 34 The dispute over the collection of Lord Beaverbrook was also resolved through arbitration, but it did not involve the unlawful taking of cultural objects. For a comment of this case, see Alexander Herman, ‘Loan or Gift Revisited: Determining the Donor’s Intent’ (December 2011) 16 Art Antiquity and Law 317. Likewise, the 2004 decision of the Eritrea–Ethiopia Claims Commission (an arbitral tribunal established with the Peace Agreement of Algiers of 2000) is not relevant to the present analysis as it con cerned the destruction—and not the restitution—of the Stela of Matara during the Ethiopian occupation of Eritrea from 1998 to 2000.

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726 Alessandro Chechi from Ferdinand Bloch-Bauer, the uncle of the claimant. Maria Altmann brought suit in the US against the holders, the Republic of Austria and the Austrian National Gallery. However, the case was not resolved with a judicial decision. The disputants reached an agreement to end litigation and submit the dispute to ad hoc arbitration in Austria.35 Pursuant to the agreement, the panel of three Austrian arbitrators applied Austrian substantive and procedural law. With an award in January 2006, the arbitral panel ruled that Austria was obliged to return the Klimt masterpieces to Maria Altmann.36

2.5 The Institutionalization of ADR The foregoing examination provides substantial evidence that non-adversarial and nonjudicial procedures entail various benefits, including expeditiousness, flexibility, and informality, and should thus be regarded as the most effective pathways for cooperative parties to use for the resolution of cultural heritage-related disputes. In this respect, it must be emphasized that in fact the vast majority of disputes concerning art objects arising in the past few decades have been settled through such means.37 It should thus come as no surprise that a number of institutions—namely the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the World Intellectual Property Organization (WIPO), and the International Council of Museums (ICOM)—have established specific rules and procedures in order to foster the use of ADR.38 However, it should be emphasized that these mechanisms differ from available ADR options in being specifically tailored to disputes involving cultural heritage items.

2.5.1 The UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation The task of UNESCO is to ‘contribute to peace and security by promoting collaboration among the nations through education, science and culture’.39 UNESCO pursues its 35 Maria Altmann v. Republic of Austria, 142 F.Supp.2d 1187 (C.D.Cal. 1999), affirmed 317 F.3d 954 (9th Cir. 2002), as amended, 327 F.3d 1246 (9th Cir. 2003), 541 U.S. 677 (2004). 36 See Caroline Renold, Alessandro Chechi, Anne Laure Bandle, and Marc-André Renold, ‘Case 6 Klimt Paintings–Maria Altmann and Austria’, Platform ArThemis (), Art-Law Centre, University of Geneva. 37 See Gazzini, Cultural Property Disputes (n 7) 59, and Michael J. Bazyler, ‘Nuremberg in America: Litigating the Holocaust in United States Courts’ (2000) 34(1) University of Richmond Law Review 165. See also the case notes available in the database ArThemis. 38 On these developments, see also Alessandro Chechi, ‘New Rules and Procedures for the Prevention and the Settlement of Cultural Heritage Disputes: A Critical Appraisal of Problems and Prospects’ in Federico Lenzerini and Ana F. Vrdoljak (eds), International Law for Common Goods—Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014) 249–68. This article will not cover the ‘Court of Arbitration for Art’ established in 2018 in The Hague by the ‘Netherlands Arbitration Institute’ and the ‘Authentication in Art Foundation’. For a comment on this, see Noor Kadhim, ‘Arbitration in the Art World and the Court of Arbitration for Art: Towards a More Effective Resolution of Arts Disputes?’ (2019) 24 Art Antiquity and Law 223. 39 Art I, UNESCO Constitution (1945).

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Alternative Dispute Settlement Mechanisms 727 objectives through various activities, including the adoption of legal instruments—such as recommendations, declarations, and conventions. It has not itself come to play a decisive role as a forum for the resolution of disputes. In effect, UNESCO has confined itself to promoting the settlement of disputes through interstate cooperation. This is demonstrated by the intergovernmental nature of the restitution procedure under article 7(b)(ii) of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (hereafter 1970 Convention)40 and by the nature and functions of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (hereafter ICPRCP). Established in 1978,41 the ICPRCP is a permanent intergovernmental body that was entrusted with the mandate to assist UNESCO Member States in dealing with cases falling outside the scope of application of the 1970 Convention, such as the disputes concerning historical cases of cultural objects lost as a result of colonial occupation. In effect, the ICPRCP’s initial objective was to facilitate the reconstruction of the cultural heritage of former colonies through the repatriation of materials from the museums of former colonial powers.42 However, the ICPRCP has no jurisdictional power to rule in disputes between States. Rather, it may simply act in an advisory capacity, offering a framework for discussion and negotiation. Therefore, States are compelled neither to bring a case before it nor to abide by its recommendations. Article 3(2) of the ICPRCP’s Statutes provides that a return request can be made for any cultural property which has a fundamental significance from the point of view of the spiritual values and cultural heritage of the people of a Member State or Associate Member of UNESCO and which has been lost as a result of colonial or foreign occupation or as a result of illicit appropriation.

A State can bring a case before the ICPRCP only if bilateral negotiations with the State in which the requested object is located have failed or have been suspended. Cases where article 7 of the 1970 Convention applies cannot be brought to the Committee.43 Over the years, the ICPRCP has been called on to solve only eight cases.44 In view of this dismal caseload, in October 2003 the UNESCO General Conference adopted a resolution which invited the Director-General to present ‘a strategy to facilitate the restitution of stolen or illicitly exported cultural property by . . . strengthening the mandate of the Intergovernmental Committee . . . in terms of proposals of mediation and concili ation for Member States’.45 Following the observations adopted by the ICPRCP at its 40 ‘Requests for recovery and return shall be made through diplomatic offices.’ 41 Established with Resolution 20 C4/7.6/5, 24 October–28 November 1978. 42 See art 4 of the ICPRCP Statutes. 43 ICPRCP, Guidelines for the use of the ‘Standard Form Concerning Requests for Return or Restitution’, 30 April 1986, CC-86/WS/3, 17. 44 See Lyndel V. Prott, ‘The History and Development of Processes for the Recovery of Cultural Heritage’, in Prott, Witnesses to History (n 25) 16. 45 32 C/Resolution 38, para 9(a), 66.

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728 Alessandro Chechi 13th session46 and the decision of the Executive Board,47 the General Conference amended the ICPRCP Statutes in 2005 with 33 C/Resolution 44. Article 4(1) of the ICPRCP Statutes now reads as follows: The Committee shall be responsible for . . . seeking ways and means of facilitating bilateral negotiations for the restitution or return of cultural property to its countries of origin when they are undertaken according to the conditions defined in Article 9. In this connection, the Committee may also submit proposals with a view to mediation or conciliation to the Member States concerned . . . provided that any additional, necessary funding shall come from extrabudgetary resources. For the exercise of the mediation and conciliation functions, the Committee may establish appropriate rules of procedure. The outcome of the mediation and conciliation process is not binding on the Member States concerned, so that if it does not lead to the settlement of a problem, it shall remain before the Committee.

Apart from clarifying that the regular UNESCO budget will not cover the costs of mediation and conciliation, article 4(1) empowers the Committee to make proposals for mediation or conciliation to States that have submitted a dispute before it. Admittedly, UNESCO’s objective was to enhance the role of the ICPRCP as a specialized interlocutor for the resolution of restitution claims. The ICPRCP adopted its rules of procedure in September 2010.48 These rules confirm that mediation and conciliation under the aegis of the ICPRCP are voluntary49 and that the outcome ‘shall be binding on the Parties only when they reach a binding agreement on it’ (article 10(4)). Article 10(1) describes the ways in which mediation or conciliation procedures can be concluded and establishes that if these have failed the dispute can ‘remain before the Committee’ (article 10(3)). Furthermore, the rules of procedure regulate the process for appointing mediators and conciliators (article 2(6)),50 the relationship between mediation or conciliation procedures and other dispute settlement proceedings (article 6(4)(5)), and the issues of time (articles 8(9) and 10(1)(c)), cost (article 11), and confidentiality (article 8). Article 4(1) establishes that only UNESCO Member States and associate members of UNESCO may defer to the procedures for mediation and conciliation. These States can represent either their own interests or the interests of public or private institutions located in their territory or the interests of their nationals (article 4(2)). Crucially, article 4(3) 46 Recommendation 3, Report on the 2004–2005 Activities and the Thirteenth Session of the ICPRCP, Doc. 33 C/REP/15, 23 August 2005. 47 171 EX/Decision 17. 48 Doc. CLT-2010/CONF.203/COM.16/6, Recommendation No 4; Doc. CLT-2010/CONF.203/ COM.16/7. 49 Art 3(1) affirms that ‘[m]ediation and conciliation procedures require the consent in writing of the Parties before that may be initiated’. 50 The rules establish that States can choose their mediators or conciliators from a list of experts that is maintained by the ICPRCP Secretariat. Hence, the ICPRCP will not act as a mediator or conciliator, nor will it choose mediators or conciliators.

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Alternative Dispute Settlement Mechanisms 729 states that a ‘request to initiate a mediation or conciliation procedure may be submitted . . . with regard to a public or private institution’ that ‘is in possession of the cultural property concerned’. In this case, however, mediation or conciliation can start only if the State in which the requested institution is located is immediately informed of the request and does not object. The consent of the State of nationality of the requested ‘public or private institution’ is necessary because participation and assistance in mediation or conciliation proceedings is costly for the State and because such proceedings might have repercussions on existing bilateral relations.51 Instead, the mediatory and conciliatory functions of the ICPRCP do not apply to cases where the holder of a disputed object is not a ‘public or private institution’ but a mere natural person such as an individual collector.

2.5.2 WIPO and ICOM WIPO is a specialized agency of the United Nations dedicated to the development of a balanced and effective international intellectual property system as a means of stimulating innovation and creativity for the economic, social, and cultural development of all countries.52 WIPO is also responsible for a number of activities related to the protection of Indigenous peoples’ cultural heritage. The necessity of protecting Indigenous peoples’ heritage through intellectual property is proved by various examples of misappropri ation and exploitation: Indigenous art copied onto carpets, T-shirts, and greeting cards; traditional music fused with dance rhythms to produce albums; Indigenous words and names trademarked and used commercially; and traditional medicinal knowledge patented by pharmaceutical companies without either recognition nor fair remuneration for Indigenous peoples. WIPO began to work in this area at the beginning of the 1980s, in cooperation with UNESCO.53 Furthermore, in 2000 the WIPO General Assembly established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (hereafter IGC). At present, the IGC is working on the development of an international legal instrument for the protection of traditional knowledge, traditional cultural expressions, and genetic resources.54 ICOM is a non-governmental and non-profit organization established in 1946 that represents the international community of museums and museum professionals. It deals with museum concerns ranging from security to illegal trafficking. Over the years

51 See Kathryn Zedde, ‘UNESCO’s Intergovernmental Committee on Return and Restitution of Cultural Property and the Mediation and Conciliation of International Disputes’ in Marc-André Renold, Alessandro Chechi, and Anne Laure Bandle (eds), Resolving Disputes in Cultural Property (Schulthess 2012) 107–29, 114. 52 See the Convention Establishing the World Intellectual Property Organization of 14 July 1967. See also accessed 19 June 2019. 53 See Peter-Tobias Stoll, ‘Indigenous Peoples, Indigenous Knowledge and Indigenous Resources in International Law’ in Silke von Lewinski (ed), Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (Kluwer Law International 2008) 7–57, 30. 54 See at accessed 19 June 2019.

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730 Alessandro Chechi ICOM has developed various tools to fight against the illicit trade in cultural objects.55 One of these tools is the Code of Ethics for Museums.56 This Code sets minimum standards to museums for their professional practice in terms of acquisition and transfer of collections that reflect the principles generally accepted by the international museum community. Both WIPO and ICOM have dealt with the issue of dispute settlement in relation to cultural heritage. On the one hand, in 1994 WIPO established the Arbitration and Mediation Center (hereafter WIPO A&M Center). This Center offers dispute resolution mechanisms— namely arbitration, mediation, expedited arbitration, and expert determination—to resolve international intellectual property-related disputes.57 The Center was established in recognition of the fact that the conditions for the effective use of intellectual property include the availability of time and cost-efficient alternatives to litigation.58 Moreover, a number of studies issued by the IGC have acknowledged that disputes concerning Indigenous peoples’ heritage should be preferably settled through the WIPO A&M Center.59 This Center is open to any stakeholder and acts both as a resource centre and a case administrator. As a resource centre, it administers a database of specialized mediators, arbitrators, and experts; organizes training and workshops; and provides the rules for arbitration, expedited arbitration, mediation, and expert determination. As an administering authority, it selects mediators, arbitrators, or experts; arranges meetings; and provides electronic case communication tools, procedural guidance, and help for the parties in submitting disputes to WIPO through its multilingual case management system.60 In addition, the WIPO A&M Center has set up a tailored ADR Service for Art and Cultural Heritage (hereafter WIPO ADR Service) in order to enhance dispute reso

55 See at accessed 19 June 2019. 56 See at accessed 19 June 2019. 57 For an overview, see Francis Gurry, ‘The Dispute Resolution Services of the World Intellectual Property Organization’ (1999) 2 Journal of International Economic Law 385. 58 See at accessed 19 June 2019. 59 See WIPO Secretariat, Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources: The International Dimension, Doc. WIPO/GRTKF/IC/6/6, 30 November 2003, 24 (); Molly Torsen and Jean Anderson, Intellectual Property and the Safeguarding of Traditional Cultures—Legal Issues and Practical Options for Museums, Libraries and Archives (WIPO Publication No 1023(E) 2010) available at accessed 19 June 2019; and Rina Pantalony, WIPO Guide on Managing Intellectual Property for Museums (WIPO 2007) available at accessed 19 June 2019. 60 Sarah Theurich, ‘Alternative Dispute Resolution in Art and Cultural Heritage–Explored in the Context of the World Intellectual Property Organization’s Work’ in Kristin Odendahl and Peter Johannes Weber (eds), Kulturgüterschutz, Kunstrecht, Kulturrecht: Festschrift für Kurt Siehrzum 75 (Nomos 2010) 569, 587.

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Alternative Dispute Settlement Mechanisms 731 lution efficiency in this area.61 The WIPO ADR Service is based on the application of the standard rules for arbitration, expedited arbitration, mediation, and expert determination, and on the provision of additional services. Essentially, these services revolve around the setting up of a specialized list of experts that combine qualifications in art and cultural heritage matters with relevant expertise in the area of dispute resolution. However, the parties to a dispute are free to select professionals from outside the list. Moreover, upon request, the WIPO A&M Center can provide guidance in the establishment of adapted ADR frameworks.62 On the other hand, ICOM has encouraged the amicable resolution of restitution claims since at least 1983. In that year, the General Conference of ICOM recommended that disputes regarding the ownership of artifacts in museum collections should be settled where possible through voluntary procedures such as mediation or informal negotiation rather than through lengthy and expensive litigation.63 The determination to develop dispute resolution facilities alternative to litigation for cultural heritage cases was reinvigorated in 2010, when ICOM was called upon to exercise its ‘good offices’ in the Makondé Mask case between Tanzania and the Barbier-Mueller Museum in Geneva.64 More importantly, in May 2011 ICOM joined forces with the WIPO ADR Service to launch the Art and Cultural Heritage Mediation Program (hereafter ICOM–WIPO Mediation)65 for the management of the disputes that typically involve museums, including return and restitution, loan, deposit, donation, authenticity, intellectual property rights, custodianship, ownership of collections, and misappropriation or misuse of traditional cultural expressions. As is to be expected, the ICOM–WIPO Mediation is a voluntary process in which the parties have the primary responsibility for resolving their dispute, and where the mediator acts as a neutral facilitator, meeting directly and

61 Sarah Theurich, ‘Designing Tailored Alternative Dispute Resolution in Intellectual Property: The Experience of WIPO’ in Jacques De Werra (ed), Résolution des litiges de propriété intellectuelle (Schulthess 2010) 175. 62 Ibid, 186. See also www.wipo.int/amc/en/center/specific-sectors/art, accessed 19 June 2019. 63 See Statement by the President of ICOM, Alissandra Cummins, ‘Promoting the use of Mediation in Resolution of Disputes over the Ownership of Objects in Museum Collections’ (ICOM, 2006), available at accessed 19 June 2019. 64 See Anne Laure Bandle, Raphael Contel, and Marc-André Renold, ‘Affaire Masque Makondé– Tanzanie et Musée Barbier-Mueller’, Platforme ArThemis (), Art-Law Centre, University of Geneva. 65 ICOM, ‘ICOM and WIPO to Join Forces in Cultural Heritage and Museum Fields’, Press release (3 May 2011), available at accessed 19 June 2019. See also ICOM Legal Affairs & Properties Standing Committee, Report on the International Process for the Resolution of Disputes over the Ownership of Objects in Museum Collections (ICOM 2005); ICOM’s General Assembly Resolution No 4, Preventing Illicit Traffic and Promoting the Physical Return, Repatriation, and Restitution of Cultural Property (ICOM 2007); and Samia Slimani and Sarah Theurich, ‘The New ICOM-WIPO Art and Cultural Heritage Mediation Program’ in Marc-André Renold, Alessandro Chechi, and Anne Laure Bandle (eds), Resolving Disputes in Cultural Property (Schulthess 2012) 51–64.

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732 Alessandro Chechi simultaneously with both parties so as to assist them in identifying the issues and the interests at stake and in reaching an agreement. ICOM and the WIPO A&M Center provide procedural advice and support to disputants that decide to resort to the ICOM–WIPO Mediation. The parties are provided with a clear and efficient procedural framework set out in the ICOM–WIPO Mediation Rules (hereafter Mediation Rules).66 Importantly, the ICOM–WIPO Mediation is open to ICOM members and non-members and can involve ‘public or private parties including but not limited to States, museums, indigenous communities, and individuals’ (article 2). In addition, parties can take advantage of WIPO’s Electronic Case Facility system which allows documents to be submitted electronically to facilitate long-distance communication. This system guarantees the confidentiality of transmitted data and information. There are two ways to submit a dispute to ICOM–WIPO Mediation. With the first option the parties insert a mediation clause into the agreement(s) and contract(s) between them before a dispute arises. ICOM and WIPO make available for this purpose a ‘Recommended ICOM–WIPO Mediation Contract Clause for Future Disputes’. Under the second option, the parties submit their dispute to mediation after it has arisen. In this case the parties can sign the ‘Recommended ICOM–WIPO Mediation Submission Agreement for Existing Dispute’. Once the parties have consented to mediation, they must contact the WIPO A&M Center to trigger the mediation process by submitting a ‘Request for Mediation’.67 The Mediation Rules provide for the establishment of a list of mediators with expert ise and experience in art and related areas (article 7) that can be appointed by the parties (article 8). The parties have seven days from the commencement of mediation to agree on the person of the mediator. Furthermore, the Rules refer to the ICOM Code of Ethics for Museums as a tool providing guidance for the mediator and the parties (article 14). The Mediation Rules further include safeguards for mediator impartiality and independence (article 9) and guarantees of confidentiality (articles 17–21). Article 17 further states that the mediator can either promote the settlement of the issues in dispute that he/she believes to be appropriate or—when he/she believes that any issues ‘are not susceptible to resolution through mediation’—propose procedures for resolving those issues which are most likely ‘to lead to the most efficient, least costly and most productive settlement’. These other procedures and means include expert determination or expedited arbitration. The Mediation Rules offer two further options for dispute settlement. First, in the cases where the parties have not concluded a mediation agreement, ICOM and the WIPO A&M Center are available to carry out their good offices upon request. Such good offices aim to facilitate the submission of disputes to ICOM–WIPO Mediation. Second, disputants have the option to combine the mediation procedure with other 66 See accessed 19 June 2019. 67 See accessed 19 June 2019.

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Alternative Dispute Settlement Mechanisms 733 dispute resolution mechanisms, such as WIPO arbitration, expedited arbitration, or expert determination.68

3. Conclusion: Can ADR Enhance Dispute Resolution Efficiency in the Area of Cultural Heritage? The procedures introduced by UNESCO, WIPO, and ICOM in the past few years provide a further confirmation that ADR can be regarded as the most suitable means to resolve disputes over the restitution of stolen or illicitly exported cultural property. Indeed, even a cursory examination of the practice reveals that the vast majority of restitution claims arising in the past few decades have been settled through such means.69 Admittedly, this is due to the fact that ADR procedures combine important virtues. As hinted in the foregoing, the first advantage of ADR resides in the parties’ power to tailor the settlement process. This is an important difference from formal litigation: while the latter necessarily focuses on the legal rights and liabilities of the parties and the legal remedies for breach of such rights, in ADR the focus is on the interests, objectives, and needs of the parties—albeit the legal rights of the parties are far from irrelevant— and the circumstances of the dispute. This means that the parties can set aside all existing obstacles posed by ordinary laws, most notably the expiry of limitation periods and the non-retroactivity of the law. Moreover, this means that sensitive non-legal issues that may arise, such as moral or ethical considerations, can be accommodated within the process. Accordingly, the adoption of non-adversarial, forward-looking approaches permits the resolution of cases concerning objects removed in the distant past by giving priority to the factual circumstances of the taking, to the ensuing damage, and to the function that the reclaimed assets have for individuals’ and groups’ memory and identity. In addition, given that they allow to address such delicate issues, ADR enables the parties to find solutions that help to preserve long-term relationships and maintain the parties’ own reputations in the international art market. Second, given that private settlement is likely to be speedier, ADR allows the parties to lower the costs of litigation. Third, these mechanisms provide for flexibility and creativity. As a result, the case can be resolved through original solutions that could not be achieved through litigation. Indeed, ADR mechanisms broaden the number of remedies available to the parties and, hence, may lead to mutually agreeable and conciliatory solutions and take account of historical, emotional, spiritual, and other extra-legal factors. For instance, ADR may help the parties involved in a case concerning illicitly exported archaeological objects to conceive alternative solutions to outright return, such as exchanges, loans, production 68 See at accessed 19 June 2019. 69 See, for example, Gazzini, Cultural Property Disputes (n 7), and Bazyler, ‘Nuremberg in America’ (n 37).

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734 Alessandro Chechi of copies, or shared management and control. Fourth, since disputes are resolved out of the public eye, extra-curial resolution ensures confidentiality and privacy. Secrecy is pivotal not only to art trade professionals such as dealers and auctioneers—who want to avoid reputational harm and protect their confidential relationships—but also to Indigenous peoples in cases involving secret sacred materials and rituals. In this connection, it must be emphasized that anyone involved in an out-of-court process is required to maintain the strictest confidentiality. This means that even if no settlement is reached and the dispute is taken to a court of law, the parties will not be able to base their case on anything that emerged during the previous procedure. Lastly, ADR entails neutrality and fairness, as disputants can appoint independent specialists with expertise in the specific subject matter at issue, as well as knowledge of the cultural and linguistic background of the parties. Despite these virtues, it is rather unlikely that all cultural heritage–related disputes could be resolved through ADR.70 This is due to the fact that non-adversarial proced ures entail non-negligible shortcomings. First, it is routinely assumed that ADR methods are less costly and time-consuming than litigation. This is certainly true for negotiation and mediation. In contrast, arbitration may include some of the drawbacks of court litigation, including excessive formalism, delays, and cost. In effect, as illustrated, the arbitrator must conduct the proceedings in a manner akin to that of a judge in order to adopt the final award. In part, this explains the rarity of arbitrated settlements.71 Second, arbitration entails a risk of partiality. Notwithstanding the obvious fact that each party may select arbitrator(s) who are inclined to support the interests of the party appointing them, it can be expected that arbitrators may favour whichever party is most likely to need their services in the future, irrespective of the interests at stake.72 In add ition, Pierre Lalive warned that ADR could be exploited by criminals, unethical art professionals, or reckless collectors to avoid judicial proceedings and the ensuing sanctions.73 The third and most crucial problem is that ADR methods are consensual in nature. This means that, outside the realm of contractual disputes, litigants may be reluctant to resort to negotiation, mediation, conciliation, or arbitration in the absence of significant incentives. One reason is that a party to a case would hardly agree to resort to ADR if doing so would carry a serious risk of losing. Another reason is that parties that are in the midst of a dispute may find it difficult to opt for a resolution method that forces them to agree on a number of procedural issues. This problem also entails that a party may withdraw from the process at any time—temporarily or definitively—if a 70 This is the case of criminal court proceedings for which there is no possible substitute. 71 Another reason is that the drafting of comprehensive arbitration agreements entails substantial legal costs that the parties often are not willing to pay. Typically, these agreements include, inter alia, clauses on the scope of arbitration; the arbitral institution; the rules to govern arbitration; the location of arbitration; the substantive law; the number and expertise of arbitrators; the method to choose the arbitrators; interim relief; the form of the award; the remedies; and the fees. 72 Shapiro, ‘Litigation and Art-Related Disputes’ (n 1), 32–3. 73 Pierre Lalive, ‘Themes and Perspectives: Litigation–A Declining Solution to Holocaust-Related Claims?’, paper presented at the conference Dispute Resolution and Holocaust-Related Art Claims: New Principles and Techniques, London, 18 October 2006.

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Alternative Dispute Settlement Mechanisms 735 settlement looks impossible to achieve or in order to initiate a lawsuit.74 This problem is illustrated by the Altmann case (see Section 2.4), where the Republic of Austria rejected the initial proposal to submit the dispute to arbitration made by Maria Altmann, thereby forcing her to start litigation. This case demonstrates that, when the ownership, transfer, and circulation of State cultural assets are governed by public law rules, it is difficult to imagine the State involved in a dispute agreeing to settle a claim out-of-court rather than to bring legal action before a domestic court. Another example is provided by the schizophrenic attitude of the United Kingdom in general and of the British Museum in particular. On the one hand, they have persistently rejected the claims submitted over the past decades by Greece as regards the return of the Parthenon Marbles, including the invitation to mediate the case before the ICPRCP.75 On the other hand, as part of the Benin Dialogue Group, the British Museum has agreed to return the so-called ‘Benin Bronzes’ to Nigeria.76 The consensual nature of ADR certainly constitutes a significant structural handicap. Nevertheless, it can be submitted that non-adversarial methods of dispute resolution have the potential to offer constructive possibilities of resolving art restitution cases. For one thing, ADR methods invariably provide such benefits as efficiency, cost-effectiveness, expeditiousness, flexibility, and informality. They can thus be seen as the response to the excessive technicality and formalism of court litigation. More importantly, it can be argued that ADR constitutes the most suitable option for the resolution of the type of disputes under examination because of the special nature of cultural heritage. As is well known, cultural heritage is a term used today to embrace any manifestation of artistic and creative processes, be they tangible or intangible—such as archaeological materials, objects of fine art, sacred or ceremonial objects, literary, musical, and audiovisual works, traditional songs, practices, representations, knowledge, and skills. Cultural heritage items are regarded as an inheritance from previous generations, a legacy for those to come, and an irreplaceable repository of knowledge that enriches and inspires thinkers, artists, and the general public. As such, cultural heritage represents a human rights value. It is for these reasons that domestic public laws and international law confer a privileged status on cultural heritage. On the one hand, these characteristics signal that the protection of tangible cultural heritage goes beyond the conservation of art objects; what is to be protected is the store of meanings embodied in such objects that are precious to individuals, groups, and nations, as well as the relationships between such objects and human beings. These are some of the issues at stake in the dispute

74 The consensual nature of ADR has also an impact on the enforcement of the final settlement. See Gazzini, Cultural Property Disputes (n 7), 124–5. 75 BBC, ‘Elgin Marbles: UK Declines Mediation over Parthenon Sculptures’ BBC News (8 April 2015) available at accessed 13 June 2019. 76 David Sanderson, ‘British Museum Sends Benin Bronzes Back to Nigeria’ The Times (22 November 2018), available at accessed 13 June 2019.

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736 Alessandro Chechi between Ukraine, four Crimea Museums, and the Allard Pierson Museum.77 On the other hand, the privileged status of cultural heritage sheds light on the persistence of recovery claims. Indeed, the attachment of individual and communities to cultural objects—especially when these have been lost as a result of acts of violence—tend to survive the passage of time. It is in this respect that ADR procedures can be regarded as the most successful and effective ways to achieve amicable solutions to restitution cases, given that many of these claims fall beyond the reach of judges. This is the case of the claims concerning cultural objects lost in the distant past as a result of colonial or foreign military occupation. Likewise, judges face intractable problems when dealing with Holocaust-related art cases due to the lack of evidence, witnesses, and documents and the fading of memories. On the same footing, it can be argued that ADR will remain essential for the resolution of the disputes that will likely emerge in the future with respect to the antiquities currently being removed from countries engulfed by armed conflicts, such as Libya, Syria, and Iraq. Although various pieces have been already seized in Europe and the US, many more will resurface in the future after the dust has settled.

77 This dispute concerns a collection of archaeological golden objects that were sent on loan by four Crimean museums to the Allard Pierson Museum in Amsterdam for an exhibition in February 2014. After Russia’s annexation of Crimea in March 2014, the treasures were reclaimed by the Ukraine central government and the four Crimean museums. The exhibition closed in late August 2014, but the collection was not sent back to the Crimean museums. The Allard Pierson Museum decided to keep the collection items until the ownership dispute is resolved either amicably or in court. In November 2014, the Crimean museums filed a lawsuit in the Netherlands seeking the return of the collection. In 2016, the Court of Amsterdam decided that the treasure must be returned to Ukraine and not to the museums in Crimea (Case N. C/13/577586/HA ZA 14–1179 of 14 December 2016). The first instance decision was confirmed by the Appeal Court on 16 July 2019 but, as of writing, the case is still pending.

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chapter 31

I n ter nationa l Cu lt u r a l H er itage L aw The Institutional Aspects Tullio Scovazzi

1. UNESCO as the World Cultural Institution within the UN System One of the purposes of the United Nations is to achieve international cooperation in solving international problems of a cultural character (art 1, para 3, of the UN Charter). The UN is entrusted, inter alia, with the promotion of international cultural and educational cooperation (art 55), with a view to the creation of conditions of stability and well-being necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.1 Intercultural dialogue and safeguarding of cultural diversity can only contribute to the construction of lasting peace between and within States. On a global basis, the protection of the cultural heritage falls within the mandate of the United Nations Educational Scientific and Cultural Organization (UNESCO),2 an international organization established by a treaty called the Constitution of UNESCO

1 See also art 13, para 1 b; art 55; art 57, para 1; art 73 a. The words ‘cultural’ or ‘culture’ appear five times in the UN Charter. 2 This contribution will focus on UNESCO, which is the international organization active at the world level in the field of culture. Several other organizations carry out activities in this field, such as the International Institute for the Unification of Private Law (UNIDROIT) and the Council of Europe.

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738 Tullio Scovazzi concluded in London on 16 November 1945.3 UNESCO, which has its headquarters in Paris, France,4 is a UN specialized agency, linked to the UN by a relationship agreement concluded in 1946.5 This agreement provides for effective cooperation between the two organizations in the pursuit of their common purposes and, at the same time, recognizes UNESCO autonomy within the fields of its competence. UNESCO has the purpose of contributing to peace and security by promoting collaboration among the nations through education, science, and culture in order to further universal respect for justice, the rule of law, human rights, and fundamental freedoms (art I, para 1, Const.). The existence of close links between culture and peace, and conversely between ignorance and war, is clearly set forth in the preamble of the Const., whereby States Parties declare: That since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed; That ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war . . . That a peace based exclusively upon the political and economic arrangements of governments would not be a peace which could secure the unanimous, lasting and sincere support of the peoples of the world, and that the peace must therefore be founded, if it is not to fail, upon the intellectual and moral solidarity of mankind.

In 2013, when approving the medium-term strategy for the period 2014–21, the UNESCO General Conference endorsed the following mission statement: As a specialized agency of the United Nations, UNESCO—pursuant to its Constitution—contributes to the building of peace, the eradication of poverty, and sustainable development and intellectual dialogue through education, the sciences, culture, communication and information.6

3 Hereinafter: Const. See unesco, Basic Texts (UNESDOC 2016) 5. The Const. entered into force on 4 November 1946 and was amended several times by the General Conference. Under art XIII, para 1, ‘proposals for amendments to this Constitution shall become effective upon receiving the approval of the General Conference by a two-thirds majority; provided, however, that those amendments which involve fundamental alterations in the aims of the Organization or new obligations for the Member States shall require subsequent acceptance on the part of two thirds of the Member States before they come into force’. 4 Relations with Member States are ensured by a number of UNESCO regional, cluster, and national offices (so-called field offices) located around the world. 5 According to art I of the Agreement, the UN recognizes UNESCO as a specialized agency respon sible for taking such action as may be appropriate under its basic instrument for the accomplishment of the purposes set forth therein. 6 UNESCO, Medium-Term Strategy 2014–2012, Doc 37 C/4 of 2014, 13.

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Institutional Aspects 739 The Const. is subject to signature and acceptance (art XV, paras 1 and 2, Const.). Membership of the UN carries with it the right to membership of UNESCO (art II, para 1, Const.).7 This implies that only States can be UNESCO members. States not members of the UN may be admitted to UNESCO membership, upon recommendation of the Executive Board, by a two-thirds majority vote of the General Conference (art. II, para 2, Const.). Territories which are not responsible for the conduct of their international relations may be admitted as associate members by the General Conference, by a two-thirds majority of members present and voting, upon application made on behalf of such territories by the member having responsibility for their international relations (art II, para 3, Const.). Any member or associate member may withdraw from UNESCO by notice that takes effect on 31 December of the year following that during which the notice was given (art II, para 6, Const.).8 As at July 2019, UNESCO has 193 Member States and eleven associate members.9 Some vicissitudes, which from time to time have affected UNESCO and show the political implications of its action, do not detract from the importance of this organization and its mandate. For instance, South Africa withdrew as from 31 December 1956, claiming that some of UNESCO’s publications constituted an interference in the country’s racial problems, but rejoined UNESCO on 11 December 1994. The United States, which withdrew as of 31 December 1984, citing disagreement over management and other issues, rejoined UNESCO on 30 September 2003.10 The UNESCO decision to admit Palestine as a Member State (31 October 2011)11 determined a major financial crisis within the organization, as the United States decided to withhold its contributions. In 2017, the United States notified its decision to withdraw again from UNESCO, taking effect on 31 December 2018.12 Soon after, Israel also announced its withdrawal from UNESCO.

7 UNESCO members suspended from the exercise of the rights and privileges of UN membership shall, upon request of the UN, be suspended from UNESCO rights and privileges. UNESCO members expelled from UN shall automatically cease to be UNESCO members (art II, paras 4 and 5, Const.). 8 The withdrawal does not affect the financial obligations owed to the organization on the date the withdrawal takes effect (art II, para 6, Const.). A State that has withdrawn from UNESCO resumes membership by depositing a new instrument of acceptance (art XV, para 2, Const.). 9 All Member States have established a National Commission for UNESCO—that is, a national cooperating institution having the purpose of associating their governmental and non-governmental bodies with the work of UNESCO. 10 The same action was taken by the United Kingdom, as from 31 December 1985. It rejoined UNESCO on 30 June 1997. 11 UNESCO was the first United Nations agency to take this decision. 12 As explained by the United States, ‘this decision was not taken lightly, and reflects U.S. concerns with mounting arrears at UNESCO, the need for fundamental reform in the organization, and continuing anti-Israel bias at UNESCO’. The United States indicated ‘its desire to remain engaged with UNESCO as a non-member observer State in order to contribute U.S. views, perspectives and expertise on some of the important issues undertaken by the organization, including the protection of world heritage, advocating for press freedoms, and promoting scientific collaboration and education’ (United States Department of State, Press Statement, 12 October 2017).

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740 Tullio Scovazzi

2. The Recent Strengthening of the Cooperation between the UN and UNESCO In recent years, cooperation between the UN and UNESCO has been strengthened to face the threats posed by the practice of targeting or looting cultural properties in situ ations of crisis or conflict or with the aims of exacerbating tensions and financing illegal activities.13 This can only shed further light on the link between culture and inter national peace and security. Already by Resolution 1483 (2003) relating to reconstruction in Iraq, the UN Security Council stressed ‘the need for respect for the archaeological, historical, cultural, and religious heritage of Iraq, and for the continued protection of archaeological, historical, cultural, and religious sites, museums, libraries, and monuments’. Accordingly, UN Member States were bound to return all illegally removed cultural properties, and UNESCO, the International Criminal Police Organization (Interpol) and other inter national organizations were called upon to assist in such action: The Security Council . . . decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of Resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph. (para 7)

Resolution 1483 was adopted within the framework of Chapter VII (Action with respect to threats to the peace, breaches of the peace, and acts of aggression) of the UN Charter. By Resolution 2199 (2015), also adopted under Chapter VII, the Security Council condemned the destruction of cultural heritage in Iraq and Syria, particularly by the Islamic State in Iraq and the Levant (ISIL) and the Al-Nusrah Front (ANF), whether such destruction was incidental or deliberate, including targeted destruction of religious

13 As stated in the UNESCO Medium-Term Strategy 2014–2021 (n 7) 24, ‘recent years have also been marked by an increasing trend to target culture in conflict. Conflicts arising within and between States involve cultural matters and target cultural differences in order to divide societies. The culture programme will engage to develop strategies and tools which will aim to (i) strengthen the protection of cultural heritage and expression in crisis and conflict situations and (ii) prevent the instrumentalization of culture to exacerbate differences and tensions’.

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Institutional Aspects 741 sites and objects. It also noted with concern that the looting and trafficking of other cultural properties was a means to finance terrorist activities: The Security Council . . . notes with concern that ISIL, ANF and other individuals, groups, undertakings and entities associated with Al-Qaida, are generating income from engaging directly or indirectly in the looting and smuggling of cultural heri tage items from archaeological sites, museums, libraries, archives, and other sites in Iraq and Syria, which is being used to support their recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks’. (para 16; emphasis in original)

The Security Council confirmed as regards Iraq—and extended to Syria—its ban on the trade of removed cultural properties and renewed its call upon relevant international organizations: The Security Council . . . reaffirms its decision in paragraph 7 of resolution 1483 (2003) and decides that all Member States shall take appropriate steps to prevent the trade in Iraqi and Syrian cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from Iraq since 6 August 1990 and from Syria since 15 March 2011, including by prohibiting cross-border trade in such items, thereby allowing for their eventual safe return to the Iraqi and Syrian people and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph. (para 17; emphasis in original)

By Resolution 2295 (2016), the Security Council authorized a more robust mandate for the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), including assistance to ‘the Malian authorities, as necessary and feasible, in protecting from attack the cultural and historical sites in Mali, in collaboration with UNESCO’ (para 20, c). This was the first time that a peacekeeping mission had been entrusted with functions relating to the protection of the cultural heritage. In the same direction as the Security Council resolutions are the considerations developed by the UNESCO General Conference in a policy document prepared in 2015, which explains how attacks on cultural heritage today contribute to creating hatred and fragmentation and, consequently, instability and conflict: The scale and systematic nature of attacks on culture, that we are witnessing today, highlight the strong connection between the cultural, humanitarian and security dimensions of conflicts. The protection of cultural heritage and diversity during conflict appears today as central not only to mitigate vulnerability; but also to break a cycle of violence whereby attacks on culture contribute to further promoting hatred, sectarianism and fragmentation within society, fuelling continuous instability and conflict. Ultimately, attacks against cultural heritage and diversity are attacks against people, their rights and their security. This has been recognized by the

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742 Tullio Scovazzi international community through numerous statements and declarations and, most significantly, in the United Nations Security Council Resolution 2199, adopted in February 2015, two United Nations Security Council Press Statements and various United Nations General Assembly resolutions.14

The need to integrate the protection of cultural heritage in peace-building processes becomes more evident: There is today growing recognition that the protection of cultural diversity and the promotion of cultural pluralism, through the safeguarding of the tangible and intangible heritage of communities and the protection of human rights and fundamental freedoms, is more than a cultural emergency. It is a security and humanitarian imperative in conflict and transition situations, and an essential element in ensuring sustainable peace and development. Participation and access to culture and its living expressions, including intangible heritage can help strengthen people’s resilience and sustain their efforts to live through and overcome crisis. A new approach is urgently required at both international and national levels to operationalize the link between protection of cultural heritage and diversity on the one hand; and, on the other hand, humanitarian action, peace-building processes and security policies. In defining this new approach, another significant development must be considered, namely the emergence of a number of new actors, at all levels, governmental and non-governmental, international and regional.15

These kinds of contexts require strategies of close cooperation between the UN and UNESCO: UNESCO was created in the aftermath of the Second World War to ‘build the defenses of peace in the minds of men and women’ and assure ‘the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science’. The present strategy responds to growing requests for assistance by Member States affected by conflict. It is based on and guided by UNESCO’s overall mandate in the field of culture, as well as relevant conventions and recommenda tions to safeguard cultural heritage and diversity, and to promote cultural pluralism. This strategy also considers UNESCO’s efforts to protect culture during conflict as an integral element of the overall United Nations response to such situations. Consequently, all initiatives proposed will be carried out in consultation with relevant United Nations partners at global and country levels, or as a comprehensive part of United Nations processes in response to conflict.16

On 17 November 2015, by Resolution 38/C 48 on reinforcement of UNESCO’s action for the protection of culture and the promotion of cultural pluralism in the event of armed conflict, the UNESCO General Conference adopted the strategy set forth in the 14 UNESCO, Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict, UN Doc 38 C/49 of 2 November 2015, para 8. 15 Ibid, para 10. 16 Ibid, paras 12 and 13.

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Institutional Aspects 743 above-mentioned document, with the understanding that its implementation must be carried out in full coordination and collaboration with concerned Member States and within the framework of United Nations bodies and their mandate. The General Conference also invited the Director-General to explore, in collaboration with Member States, practical ways for effectively implementing such a mechanism for the rapid intervention and mobilization of national experts, coordinated by UNESCO and in collaboration with the United Nations and other concerned international organizations where appropriate. (para 4)17

The acknowledgement that the protection of cultural heritage is required not only to preserve the traces of human civilization but also to ensure international security and restore peace culminated in UN Security Council Resolution 2347 (2017), which addressed the subject in a general perspective. Welcoming the central role played by UNESCO in protecting cultural heritage and promoting culture as an instrument to bring people closer together and foster dialogue, the Security Council emphasized that the unlawful destruction of cultural heritage, and the looting and smuggling of cultural property in the event of armed conflicts, notably by terrorist groups, and the attempt to deny historical roots and cultural diversity in this context can fuel and exacerbate conflict and hamper post-conflict national reconciliation, thereby undermining the security, stability, governance, social, economic and cultural development of affected States. (preamble)

The Security Council affirmed that the mandate of United Nations peacekeeping operations, when specifically mandated by the Security Council and in accordance with their rules of engagement, may encompass, as appropriate, assisting relevant authorities, upon their request, in the protection of cultural heritage from destruction, illicit excavation, looting and 17 UNESCO, Records of the General Conference, 38th Session, I, UN Doc 38/C Resolutions, 41. For instance, on 16 February 2016 a memorandum of understanding was signed by Italy and UNESCO on the Italian Task Force for initiatives in favour of countries facing emergencies that may affect the protection and safeguarding of culture and the promotion of cultural pluralism. Under the memorandum, ‘in accordance with paragraph 4 of 38C/Resolution 48 and with UNESCO’s mandate foreseen therein, in response to a request by a Member State facing crisis or natural disaster, the Government shall consider such request and accordingly the Italian Task Force may be able to operate preventively as well as in the context and in the aftermath of a crisis, with the following functions: assessing damage and risk to cultural and natural heritage; devising operational plans for urgent safeguarding measures for the affected cultural and natural heritage; providing technical supervision and training in order to assist national authorities and other local actors in implementing emergency preparedness and response measures for the protection and safeguarding of cultural and natural heritage; assisting in transferring movable cultural heritage property at risk to safe havens; fighting against the looting and the illicit trafficking of cultural properties through the mobilization of the relevant department of the Italian Carabinieri (Comando Carabinieri per la Tutela del Patrimonio Culturale)’.

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744 Tullio Scovazzi smuggling in the context of armed conflicts, in collaboration with UNESCO, and that such operations should operate carefully when in the vicinity of cultural and historical sites. (para 9)

The Security Council called upon UNESCO, the United Nations Office on Drugs and Crimes (UNODC), Interpol, the World Customs Organization (WCO), and other relevant international organizations, as appropriate and within their existing mandates, to assist Member States in their efforts to prevent and counter destruction and looting of, and trafficking in, cultural property in all forms.

3. The Structure of UNESCO The main organs of UNESCO are the General Conference, the Executive Board, and the Secretariat (arts III–VI Const.).18 The General Conference is composed of all the Member States and meets in ordinary session every two years. It determines the policies and the main lines of work of the organization and takes decisions on the programmes submitted to it by the Executive Board. Each Member State has one vote, and decisions are taken by a simple majority of members present and voting, except in cases in which a two-thirds majority is required by the Const. or the General Assembly rules of procedure. In the case of decisions for the adoption of so-called ‘standard-setting instruments’ (conventions or recommendations),19 a majority vote suffices for recommendations, but a two-thirds majority is required for conventions. Member States are bound to submit recommenda tions or conventions to their competent authorities within a period of one year from the close of the session of the General Conference at which they were adopted.20 Under article IX, para 2, Const., the General Conference approves and gives final effect to the budget and to the apportionment of financial responsibility among the Member States. The scale of assessments for UNESCO Member States is based on that of the UN, subject to the adjustments necessitated by the difference in membership between the two organizations. In 2018 it ranged from 0.001 per cent to 22 per cent (United States). According to article IX, para 3, Const., ‘the Director-General may accept voluntary contributions, gifts, bequests and subventions directly from governments, public and private institutions, associations and private persons, subject to the conditions specified in the Financial Regulations’. 18 In 2015, the General Conference decided to establish an open-ended working group on governance, procedures, and working methods of the governing bodies of UNESCO. In 2017, the General Conference endorsed the recommendations of the Working Group (see UNESCO doc 39C/20 of 20 September 2017). 19 See Abdulqawi Yusuf (ed), Standard-setting in UNESCO (UNESCO Publishing/Martinus Nijhoff 2007). 20 According to art VIII Const., Member States are bound to submit to UNESCO reports on the action taken upon the recommendations and conventions.

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Institutional Aspects 745 The Executive Board consists of fifty-eight Member States, which are elected by the General Conference having regard to the diversity of cultures and a balanced geographical distribution.21 They serve from the close of the session of the General Conference which elected them until the close of the second ordinary session of the General Conference following their election and are eligible for re-election. The Executive Board performs a number of functions that ensure the overall management of UNESCO, such as: to prepare the agenda for the General Conference; to examine the UNESCO programme of work and corresponding budget estimates submitted to it by the Director-General and to submit them to the General Conference with such recommendations as it considers desirable; to take all necessary measures to ensure the effective and rational execution of the programme by the Director-General; and to exercise the powers delegated to it by the General Conference. The Executive Board meets in regular session at least four times during a biennium. The Secretariat consists of a Director-General and such staff as may be required. The Director-General, who is the chief administrative officer of the organization, is nomin ated by the Executive Board and appointed by the General Conference for a period of four years. He or she may be reappointed for a further term of four years but is not be eligible for reappointment for a subsequent term. The Director-General formulates proposals for appropriate action by the Conference and the Board, prepares for submission to the Board a draft programme of work with corresponding budget estimates, and prepares and communicates to Member States and to the Executive Board periodical reports on the activities of the organization. The Director-General appoints the staff of the Secretariat in accordance with the staff regulations approved by the General Conference. Subject to the paramount consideration of securing the highest standards of integrity, efficiency, and technical competence, appointment to the staff is on as wide a geographical basis as possible. In the discharge of their duties, the Director-General and the staff are bound not to seek or receive instructions from any government or from any authority external to UNESCO and to refrain from any action which might prejudice their positions as international officials. Each Member State undertakes to respect the international character of the responsibilities of the Director-General and the staff and not to seek to influence them in the discharge of their duties.22 UNESCO enjoys in the territory of each of its members such privileges and immun ities as are necessary for the fulfilment of its purposes. Representatives of UNESCO members and UNESCO officials similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organ ization (art XII, Const. referring to art 105, UN Charter). 21 In order to correct an imbalance in the geographical distribution of seats on the board, all members of UNESCO are grouped into six regional electoral groups: Group I (Western European and North American States); Group II (Eastern European States); Group III (Latin-American and Caribbean States); Group IV (Asian and Pacific States); Group V (a) (African States); Group V (b) (Arab States). 22 The structure of the UNESCO Secretariat includes different sectors, services, and field offices. The programme sectors are Education (ED), Natural Sciences (SC), One Planet, One Ocean (IOC), Social and Human Sciences (SHS), Culture (CLT), and Fostering Freedom of Expression and Building Knowledge Societies (CI).

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746 Tullio Scovazzi

4. The UNESCO Heritage Conventions To realize its purposes, UNESCO is called on, inter alia, to maintain, increase, and diffuse knowledge ‘by assuring the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions’ (art I, para 2, c, Const.). At the World Conference on Cultural Policies, convened by UNESCO in Mexico City in 1982, States agreed to give the concept of cultural heritage a broad meaning: The cultural heritage of a people includes the works of its artists, architects, musicians, writers and scientists and also the work of anonymous artists, expressions of the people’s spirituality, and the body of values which give meaning to life. It includes both tangible and intangible works through which the creativity of that people finds expression: languages, rites, beliefs, historic places and monuments, literature, works of art, archives and libraries. (para 23 of the Mexico City Declaration on Cultural Policies)23

Besides its intrinsic value, the cultural heritage has also an economic dimension, as it offers important opportunities for generating sustainable development, including through creative industries and cultural tourism. The present UNESCO normative framework includes several declarations and recommendations and six so-called ‘heritage conventions’, devoted to different kinds of cultural heritage.24 They provide a global platform for international cooperation and dialogue for ensuring the protection of the cultural heritage. This objective is today linked to some of the most pressing challenges facing humankind, such as climate change, natural disasters, migration, urbanization, social marginalization, and economic inequalities. In this regard, as stated in the UNESCO medium-term strategy for 2014–21, the Organization’s action will strengthen national capacities to better conserve, safeguard, manage and promote heritage at the professional and institutional levels and within communities. It will also promote the educational potential of heritage, in 23 ‘At Mondiacult delegates found agreement in understanding culture not in the restricted sense of belles-lettres, the fine arts, literature and philosophy, but as the totality of the distinctive and specific features of the ways of thinking and organizing the lives of every individual and every community’: UNESCO, From Ideas to Actions–70 Years of UNESCO (Editora Brasileira de Arte e Cultura 2015) 111. 24 The concept is even broader if the International Convention against Doping in Sport (Paris, 2005) is considered. Sport is seen in this convention ‘as a means to promote education, health, development and peace’ (preamble). As stated in the UNESCO medium-term strategy 2014–2021, ‘sport for all is one of the most powerful vehicles to deliver messages about human rights, social development, peace values, and the rapprochement among peoples. Sport is also a tool for development and community-building. It fosters public health and cohesion, and is a means of increasing social capital, especially among young people’. UNESCO, Medium-Term Strategy 2014–2012 (n 7).

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Institutional Aspects 747 particular by strengthening traditional knowledge and integrating heritage into formal and non-formal education. Moreover, it will include providing assistance in the context of the heritage Conventions.25

The UNESCO General Conference, by the already mentioned Resolution 38/C 48 of 2015, invited Member States to support the elaboration of the action plan for the implementation of the strategy for the protection of culture and the promotion of cultural pluralism in the event of armed conflict, including by defining mechanisms for the rapid mobilization, in cooperation with governments of Member States, of national experts, who can cooperate with UNESCO in the implementation of the 1954, 1970, 1972, 2003, and 2005 Conventions,26 the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, and other relevant international legal instruments as agreed upon, as well as by contributing to the recently established UNESCO Heritage Emergency Fund. The high participation of States in most of the UNESCO heritage conventions, as well as international practice in general, confirm that many of the provisions included in them have today become part of customary international law.27 A review of the bodies established within the framework of the UNESCO heritage conventions or cooperating with the latter follows. The review will show that they perform manifold, but different, functions, ranging from substantive28 to advisory responsibilities.29

4.1 Cultural Properties during Armed Conflicts The Convention for the Protection of Cultural Property in the Event of Armed Conflict (the Hague, 1954) was substantially strengthened by its Second Protocol (the Hague, 1999)30 which, inter alia, established a committee to act within the framework of the Convention. It meets once a year in ordinary session and is composed of twelve States Parties elected by the Meeting of the Parties for a four-year term, ensuring in its membership an equitable representation of the different regions and cultures of the world. 25 Ibid, 24. 26 It may be asked why the Convention concluded in 2001, relating to the protection of the under water cultural heritage, was not mentioned. 27 As remarked by Francesco Francioni, ‘The Evolving Framework for the Protection of Cultural Heritage in International Law’ in Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity (Martinus Nijhoff Publishers 2012) 25, the current framework of the inter national protection of cultural heritage ‘is constituted largely of treaty law and to a smaller extent of soft law instruments mostly adopted within UNESCO. However, based on careful examination of inter national practice, it can be argued that some general principles have formed, or are in process of being formed, as part of general international law with regard to the obligation to respect and protect cultural heritage of significant importance’. 28 See, for example, Section 4.3. 29 See, for example, Section 4.4. 30 The Protocol is today in force for eighty-two States.

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748 Tullio Scovazzi Parties are bound to choose as their representatives in the Committee persons qualified in the fields of cultural heritage, defence, or international law. The Committee is entrusted with a number of functions, namely to: develop guidelines for the implementation of the Protocol;31 grant, suspend, or cancel enhanced protection for cultural property and establish, maintain, and promote the List of Cultural Property under Enhanced Protection;32 monitor and supervise the implementation of the Protocol and promote the identification of cultural property under enhanced protection; consider, and comment on, reports of the parties, seek clarifications as required, and prepare its own report on the implementation of the Protocol for the Meeting of the Parties; receive and consider requests for international assistance; determine the use of the fund established by the Protocol;33 and perform any other function which may be assigned to it by the Meeting of the Parties. The Committee is assisted in its work by the UNESCO Secretariat and may invite to its meetings, in an advisory capacity, ‘eminent professional organizations’, such as the International Committee of the Blue Shield (ICBS), the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), and the International Committee of the Red Cross (ICRC).

4.2 Illicit Exports of Cultural Properties By a resolution adopted in 1978, the UNESCO General Conference established the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP).34 It is composed of twenty-two UNESCO Member States, elected by the General Conference, taking into account the need to ensure equitable geographical distribution and appropriate rotation, as well as the representative character of those States in respect of the contribution they are able to make to the restitution or return of cultural property to its countries of origin. The term of office of members of the ICPRCP extends from the end of the ordinary session of the General Conference during which they are elected until the end of the second subsequent ordinary session. The ICPRCP meets at least once every two years. Its secretariat is provided by UNESCO.

31 See UNESCO, Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Doc CLT-09/CONF/219/3 REV. 4 of 22 March 2012. 32 The list currently includes twelve properties. 33 The fund has the purposes of providing financial or other assistance in support of preparatory or other measures to be taken in peacetime and 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 hostilities. 34 See UNESCO, Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, UNESCO Doc CLT/ CH/INS-2005/21 of October 2005.

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Institutional Aspects 749 The ICPRCP performs a number of functions, namely: seeking ways and means of facilitating bilateral negotiations for the restitution or return to its countries of origin of cultural property that is offered or requested by a UNESCO Member State and that has a fundamental significance from the point of view of the spiritual values and cultural heri tage of the people of a Member State and has been lost as a result of colonial or foreign occupation or illicit appropriation;35 promoting multilateral and bilateral cooperation with a view to the restitution and return of cultural property to its countries of origin; encouraging the necessary research and studies for the establishment of coherent programmes for the constitution of representative collections in countries whose cultural heritage has been dispersed; fostering a public information campaign on the real nature, scale, and scope of the problem of the restitution or return of cultural property to its countries of origin; guiding the planning and implementation of UNESCO’s programme of activities with regard to the restitution or return of cultural property to its countries of origin; encouraging the establishment or reinforcement of museums or other institutions for the conservation of cultural property and the training of the necessary scientific and technical personnel; promoting exchanges of cultural property; and reporting on its activities to the General Conference of UNESCO at each of its ordinary sessions. In 2010, the ICPRCP approved the rules of procedure for mediation and conciliation for promoting the return of cultural property to its country of origin or its restitution in case of illicit appropriation.36 In 2012, the Meeting of the Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 1970)37 decided to establish a Subsidiary Committee, to be convened every year. In accordance with the rules of procedure of the Meeting of the Parties, the Subsidiary Committee is composed of eighteen States Parties to the Convention, three per regional group, elected for a term of four years, according to the principles of equitable geograph ical representation and rotation. The functions of the Subsidiary Committee are to: promote the purposes of the Convention; review national reports presented to the General Conference by the States Parties to the Convention; exchange best practices and prepare and submit to the Meeting of the States Parties recommendations and guidelines that may contribute to the implementation of the Convention;38 identify problem areas arising from the implementation of the Convention, including issues relating to the protection and return of cultural property; initiate and maintain coordination with the 35 In this connection, the ICPRCP may submit proposals with a view to mediation or conciliation to the Member States concerned. The outcome of the mediation and conciliation process is not binding on them. 36 UNESCO, Rules of Procedure for Mediation and Conciliation in Accordance With Article 4, Paragraph 1, of the Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation, UNESCO Doc CLT-2010/CONF.203/COM.16/7 of October 2010. 37 The Convention is today in force for 140 States. 38 See UNESCO, Operational Guidelines for the Implementation of the 1970 Convention, adopted in 2015 by consensus by the Meeting of States Parties, UNESCO Doc C70/15/3.MSP/11 of March 2015.

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750 Tullio Scovazzi ICPRCP in relation to capacity-building measures combating illicit traffic in cultural property; and report to the Meeting of States Parties on the activities it has carried out. The Subsidiary Committee is assisted by the UNESCO Secretariat.

4.3 The World Cultural and Natural Heritage The Convention concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972)39 established the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value, also called the World Heritage Committee (WHC). It is composed of twenty-one States Parties to the Convention,40 elected by the General Assembly of States Parties meeting during the ordinary session of the UNESCO General Conference, to ensure an equitable representation of the different regions and cultures of the world. The term of office of WHC members extends from the end of the ordinary session of the General Conference during which they have been elected until the end of the third subsequent ordinary session.41 The WHC meets at least once a year. According to the WHC Rules of procedure, decisions on matters covered by the provisions of the Convention are taken by a majority of two-thirds of its members present and voting. All other decisions are taken by a majority of the members present and voting.42 The WHC’s decisions must be based on objective and scientific considerations and depend on carefully prepared documentation, thorough and consistent procedures, evaluation by qualified experts and, if necessary, the use of expert referees. The main functions of the WHC are specified in the relevant provisions of the Convention and are listed as follows in the Operational Guidelines for the Implementation of the Convention:43 - to identify, on the basis of tentative lists and nominations submitted by States Parties, cultural and natural properties of outstanding universal value which are to be protected under the Convention and to inscribe those properties on the World Heritage List; - to examine the state of conservation of properties inscribed on the World Heritage List through processes of reactive monitoring and periodic reporting; 39 The Convention is today in force for 193 States. See Francesco Francioni (ed), The World Heritage Convention—A Commentary (Oxford University Press 2008). 40 The representatives of the WHC Member States must be persons qualified in the cultural or natural field. 41 To ensure better rotation, WCH members often voluntarily reduce their term of office from six to four years and do not seek consecutive terms of office. 42 Decisions as to whether a particular matter is covered by the provisions of the Convention are taken by a majority of the members present and voting. Members abstaining from voting are regarded as not voting. 43 For the last version of the Operational Guidelines, see UNESCO Doc WHC.17/01 of 12 July 2017.

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Institutional Aspects 751 - to decide which properties inscribed on the World Heritage List are to be inscribed on, or removed from, the List of World Heritage in Danger;44 - to decide whether a property should be deleted from the World Heritage List; - to define the procedure by which requests for international assistance are to be considered and carry out studies and consultations as necessary before coming to a decision; - to determine how the resources of the World Heritage Fund can be used most advantageously to assist States Parties in the protection of their properties of outstanding universal value; - to seek ways to increase the World Heritage Fund; - to submit a report on its activities every two years to the General Assembly of States Parties and to the UNESCO General Conference; - to review and evaluate periodically the implementation of the Convention; - to revise and adopt the Operational Guidelines. Moreover, in order to facilitate the implementation of the Convention, the WHC develops strategic objectives that are periodically revised to ensure that new threats placed on world heritage are addressed effectively.45 As can be inferred from the importance of the functions entrusted to it, the WHC plays a crucial role within the system of international cooperation and assistance designed to support States Parties in their efforts to identify and conserve the heritage that needs to be preserved as part of the world heritage of mankind as a whole. In particular, the WHC is called to take decisions relating to the inscription on, and removal of properties from, the two lists46 and to review how the Convention is implemented by States Parties. Due to the high number of nominations and its heavy workload, the WHC has decided, as of 2 February 2018, to examine one complete nomination to the World Heritage List per State Party, to set at thirty-five the annual limit on the number of nominations it will review,47 and to establish an order of priorities where this limit is exceeded.48 44 So far, 1121 properties are inscribed on the World Heritage List, of which fifty-three are on the List of World Heritage in Danger. Of these, 869 properties are cultural, 213 natural, and thirty-nine mixed; thirty-nine properties are transboundary. Two properties have been delisted. 45 The current strategic objectives are to strengthen the credibility of the World Heritage List; ensure the effective conservation of World Heritage properties; promote the development of effective capacitybuilding in States Parties; increase public awareness, involvement, and support for world heritage through communication; and enhance the role of communities in the implementation of the Convention. 46 Besides deciding to inscribe or not to inscribe a property on the World Heritage List, the WHC may also decide to refer the nomination back to a State Party for additional information or defer it for more in-depth assessment or study or substantial revision by a State Party. 47 Including nominations deferred and referred by previous sessions of the WHC, extensions (except minor modifications of limits of the property), transboundary, and serial nominations. 48 Namely: nominations submitted by States Parties with no properties inscribed on the list; nomin ations submitted by States Parties having up to three properties inscribed; resubmitted referred nomin ations; nominations that have been previously excluded due to the annual limit of thirty-five nominations; nominations for natural heritage; nominations for mixed heritage, nominations of transboundary or

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752 Tullio Scovazzi Every six years, States Parties are bound to submit periodic reports for examination by the WHC. Such reports refer to the legislative and administrative provisions which the State Party has adopted and other actions which it has taken for the application of the Convention, together with details of the experience acquired in this field, as well as to the state of conservation of specific World Heritage properties located on the territory of the State Party concerned. The function of secretariat for the WHC is performed by the World Heritage Centre, which in 1992 has been established with UNESCO specifically for this purpose. The secretariat’s main tasks are the following: - the organization of the meetings of the General Assembly of States Parties and the WHC; - the implementation of decisions of the WHC and resolutions 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 coordination of studies and activities as part of the global strategy for a representative, balanced, and credible World Heritage List; - the organization of periodic reporting; - the coordination and conduct of reactive monitoring, including reactive monitoring missions, as well coordination of and participation in advisory missions, as appropriate; - the coordination of international assistance; - the mobilization of extra-budgetary resources for the conservation and management of World Heritage properties; - assistance to States Parties in the implementation of the WHC’s programmes and projects; - the promotion of World Heritage and the Convention through the dissemination of information to States Parties, the advisory bodies, and the general public. ‘Reactive monitoring’ is described as the reporting by the Secretariat, other sectors of UNESCO and the advisory bodies to the WHC on the state of conservation of specific World Heritage properties that are under threat.49 To this end, the States Parties are transnational properties; nominations from States Parties in Africa, the Pacific, and the Caribbean; nom in ations submitted by States Parties having ratified the Convention during the last twenty years; nominations submitted by States Parties that have not submitted nominations for five years or more; nominations of States Parties, former members of the WHC, who accepted on a voluntary basis not having a nomination reviewed during their mandate. 49 When the Secretariat receives information that a property inscribed has seriously deteriorated, or that the necessary corrective measures have not been taken within the time proposed, from a source other than the State Party concerned, it verifies, as far as possible, the source and the contents of the information in consultation with the State Party concerned and request its comments.

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Institutional Aspects 753 bound to submit specific reports and impact studies each time exceptional circumstances occur or work is undertaken which may have an impact on the outstanding universal value of the property or its state of conservation. The information received, together with the comments of the State Party and the advisory bodies, is brought to the attention of the WHC in the form of a state of conservation report for each property. On this basis, the WHC may take one or more of different steps, namely: decide that the property has not seriously deteriorated and that no further action should be taken; consider that the property has seriously deteriorated, but not to the extent that its restoration is impossible, and decide that the property be maintained on the World Heritage List, provided that the State Party takes the necessary measures to restore the property within a reasonable period of time; decide to inscribe the property on the List of World Heritage in Danger; decide to delete the property from the World Heritage List, when there is evidence that the property has deteriorated to the point where it has irretrievably lost those characteristics which determined its inscription;50 or decide, when the information available is not sufficient, that the Secretariat be authorized to take the necessary action to ascertain, in consultation with the State Party concerned, the present condition of the property, the dangers to the property, and the feasibility of adequately restoring the property.51 ‘Advisory missions’ are understood as missions providing expert advice to a State Party on specific matters, such as identification of sites, nomination of sites for inscription on the World Heritage List, state of conservation of properties, assessment of possible impact of a major development project on the outstanding universal value of a property, advice on the preparation or revision of a management plan or on the progress achieved in the implementation of specific mitigation measures. The terms of reference of advisory missions are proposed by a State Party and consolidated in consultation with the WHC and the relevant advisory bodies or other organization. The WHC and World Heritage Centre utilize to the fullest extent possible the services of the so-called advisory bodies, namely the International Centre for the Study of the Preservation and Restoration of Cultural Property (the Rome Centre, also called ICCROM),52 the International Council of Monuments and Sites (ICOMOS),53 and the International Union for Conservation of Nature and Natural Resources (IUCN; today,

50 Before any such action is taken, the Secretariat informs the State Party concerned, and any comments which the State Party may make will be brought to the attention of the WHC. 51 Such action may include the sending of a reactive monitoring mission or the consultation of specialists or through an advisory mission. 52 ICCROM, established in 1956, is an intergovernmental organization aiming at carrying out research, documentation, technical assistance, training, and public awareness programmes to strengthen conservation of immovable and moveable cultural heritage. 53 ICOMOS, established in 1965, is an international non-governmental organization. Its members are individuals and institutions formed into national committees, which may be organized in any UNESCO Member State. The role of ICOMOS is to promote the application of theory, methodology, and scientific techniques to the conservation of the architectural and archaeological heritage.

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754 Tullio Scovazzi the World Conservation Union).54 They are entrusted with a broad range of functions, in particular to: - advise on the implementation of the Convention in the field of their expertise; - assist the Secretariat, in the preparation of the WHC’s documentation, the agenda of its meetings and the implementation of the WHC’s decisions; - assist with the development and implementation of the global strategy for a representative, balanced, and credible World Heritage List, the global training strategy, periodic reporting, and the strengthening of the effective use of the World Heritage Fund; - monitor the state of conservation of the World Heritage properties, including through reactive monitoring missions at the request of the WHC and advisory missions at the invitation of the States Parties, and review requests for international assistance; - in the case of ICOMOS and IUCN, evaluate properties nominated for inscription on the World Heritage List, in consultation and dialogue with nominating States Parties, and present evaluation reports to the Committee; - attend meetings of the WHC and the Bureau in an advisory capacity.

4.4 Underwater Cultural Heritage In 2009, the Meeting of States Parties to the Convention on the Protection of the Underwater Cultural Heritage (Paris, 2001)55 adopted the Statutes of a Scientific and Technical Advisory Body (STAB),56 which was established on the basis of article 23, para 4, of the Convention.57 The Advisory Body is composed of fourteen members who are bound to ‘work impartially and in compliance with the principles of the Convention’. They are requested to ‘have a scientific, professional and ethical background at the national and/or inter national level, in particular, in the field of underwater archaeology, international law, 54 IUCN is an international organization established in 1948. Its members may have a governmental (States and government agencies; political and/or economic integration organizations) or non-governmental (national and international non-governmental organizations; affiliates) character. The objectives of the IUCN are to influence, encourage, and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable (IUCN, Statues of 5 October 1948, revised on 22 October 1996, and last amended on 10 September 2016 (IUCN 2016) art 2). 55 The Convention is today in force for sixty-two States. 56 UNESCO, Resolutions of the first session of the Meeting of States Parties to the Convention on the Protection of the Underwater Cultural Heritage, Paris, 2009, UNESCO Doc CLT/CIH/MCO/2009/ ME/98, amended on 29 April 2015, Resolution 5/MSP 1 of 27 March 2009. 57 ‘The Meeting of States Parties may establish a Scientific and Technical Advisory Body composed of experts nominated by the States Parties with due regard to the principle of equitable geographical distribution and the desirability of a gender balance.’

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Institutional Aspects 755 materials science (metallurgy, archaeo-biology, geology), and conservation of underwater cultural heritage sites and/or archaeological underwater artefacts’ (art 2 of the Statutes). The functions of the Advisory Body are defined quite broadly in article 1 of the Statutes: a) The Advisory Body (i) shall appropriately assist the Meeting of States Parties to the Convention in questions of a scientific or technical nature regarding the implementation of the ‘Rules concerning activities directed at underwater cultural heritage’, as referred to in Article 33 of the Convention (hereinafter ‘the Rules’); (ii) may be consulted for the elaboration, in consultation with the Bureau of the Meeting of States Parties, of draft Operational Guidelines directly related to the Rules; (iii) shall give guidance in questions directly related to Rules in the framework of the practical application of the State cooperation mechanism contained in the Convention (Articles 8 to13). b) The Advisory Body shall propose to the Meeting of States Parties standards of and means to promote best practice in underwater cultural heritage sites protection and materials conservation by: (i) making technical and scientific recommendations in relation to the Rules to the Meeting of States Parties for discussion and adoption; (ii) identifying and monitoring practical common and emerging issues in underwater cultural heritage sites protection and materials conservation; (iii) identifying means of improving/developing best practices with regard to material and site conservation; (iv) proposing the organization of workshops and seminars on specific technical issues. c) Upon decision by the Meeting of States Parties, or by delegation by its Bureau, the Advisory Body may provide scientific and technical advice to States Parties on the implementation of the Rules through: (i) missions to the requesting States Parties; (ii) presentations during the Meeting of States Parties to the Convention; d) The Advisory Body shall report on its activities at each Meeting of States Parties. e) The Advisory Body shall consult and collaborate with non-governmental organ izations (NGOs) having activities related to the scope of the Convention, namely ICUCH, as well as other competent NGOs accredited by the Meeting of States Parties. Recommendations of the Advisory Body are adopted by consensus or, if no consensus emerges, by majority vote of the members present at a meeting (art 6 of the Statutes). Among the various functions of the Advisory Body, particularly interesting is the provision of advice to parties through mission to their territory. Once the Meeting of States Parties or its Bureau has taken a decision on a request for advice, the Convention

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756 Tullio Scovazzi Secretariat informs the Chairperson of the Advisory Body about the decision, the details of the request, and the financing available. Under article 5 of the Statutes, ‘usually the State Party requesting the assistance shall cover its cost’. The adverb ‘usually’ leaves room for financial support for the assistance, especially if it is requested by developing States Parties. The head of mission is in charge of reporting in a timely manner and in writing on the results of the mission to the Chairperson of the Advisory Body and the Convention Secretariat. Finally, upon adoption by the Advisory Body members, the report is submitted to the requesting State Party and published on the website of the Advisory Body, unless the State Party concerned has expressly requested confidentiality.58

4.5. Intangible Cultural Heritage The Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 2003)59 provides for the establishment of the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, composed of twenty-four States Parties60 elected by the General Assembly of States Parties for a term of four years. The election of members of the Committee obeys the principles of equitable geographic representation and rotation. The functions of the Committee are to: - promote the objectives of the Convention and encourage and monitor the implementation thereof; - provide guidance on best practices and make recommendations on measures for the safeguarding of the intangible cultural heritage; - prepare and submit to the General Assembly for approval a draft plan for the use of the resources of the Fund for the Safeguarding of the Intangible Cultural Heritage; 58 So far, the Advisory Body has carried out three missions, to Haiti (2014), Madagascar (2015), and Panama (2015). 59 The Convention is today in force for 178 States. Under art 2, para 1, of the Convention, 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.’ See Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press 2013). 60 States members of the Committee are bound to choose as their representatives persons who are qualified in the various fields of the intangible cultural heritage.

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Institutional Aspects 757 - seek means of increasing the resources of the Fund and take the necessary m easures to this end; - prepare and submit to the General Assembly for approval operational directives for the implementation of the Convention; - examine the reports submitted by States Parties on the legislative, regulatory, and other measures taken for the implementation of the Convention and summarize them for the General Assembly; - examine requests submitted by States Parties for inscription on the Representative List of the Intangible Cultural Heritage of Humanity or the List of Intangible Cultural Heritage in Need of Urgent Safeguarding, as well as proposals for the selection of programmes, projects, and activities for safeguarding the intangible cultural heritage which best reflect the principles and objectives of the Convention, and decide thereon, in accordance with objective selection criteria to be established by the Committee and approved by the General Assembly; - examine requests submitted by States Parties for the granting of international assistance and decide thereon. According to the Operational Directives for the Implementation of the Convention, adopted by the General Assembly in 2008 and subsequently updated, on an experimental basis, the evaluation of nominations for inscription on either list, of proposed programmes, projects, and activities that best reflect the principles and objectives of the Convention and of requests for international assistance greater than US$100,000, is undertaken by a consultative body of the Committee, known as the Evaluation Body, which makes recommendations to the Committee for its decision. The Evaluation Body is composed of twelve members appointed by the Committee. Among them, six are experts qualified in the various field of intangible cultural heritage who represent States Parties non-members of the Committee, and the other six are accredited NGOs,61 taking into consideration equitable geographical representation and various domains of intangible cultural heritage. The duration of office of a member of the Evaluation Body cannot exceed four years. The Committee determines two years beforehand, in accordance with the available resources and its capacity, the number of files that can be treated in the course of the two following cycles. The Committee is assisted by the UNESCO Secretariat, which prepares the documentation of the Committee and the General Assembly, as well as the draft agenda of their meetings, and ensures the implementation of their decisions. 61 Accreditation of non-governmental organizations is granted by the General Assembly on proposal by the Committee according to a number of criteria. In particular the organizations shall have proven competence, expertise, and experience in safeguarding intangible cultural heritage belonging to one or more specific domains; have objectives that are in conformity with the spirit of the Convention and, preferably, statutes or by-laws that conform with those objectives; cooperate in a spirit of mutual respect with communities, groups, and, where appropriate, individuals that create, practise, and transmit intangible cultural heritage; possess operational capacities; have existed and have carried out appropriate activities for at least four years when being considered for accreditation.

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758 Tullio Scovazzi Given the social and living character of intangible cultural heritage, States Parties to the Convention are encouraged to create a consultative body or a coordination mechanism to facilitate the participation of communities, groups, and, where appropriate, individuals, as well as experts, centres of expertise, and research institutes, in particular in the identification and definition of the different elements of intangible cultural heritage present in their territories, the drawing up of inventories, the elaboration and implementation of programmes, projects and activities, the preparation of nomination files for inscription on the lists, and the removal of an element of intangible cultural heritage from one list or its transfer to the other.

4.6 Cultural Diversity The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris, 2005)62 provides for the establishment within UNESCO of the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions. It is composed of representatives of twenty-four States Parties, elected for a term of four years by the Conference of Parties, based on the principles of equitable geographical representation and rotation. The Committee, which meets annually, functions under the authority and guidance of, and is accountable to, the Conference of Parties. The main functions of the Committee are: - to promote the objectives of the Convention and to encourage and monitor its implementation; - to prepare and submit for approval by the Conference of Parties, upon its request, the Operational Guidelines for the implementation and application of the provisions of the Convention;63 - to transmit to the Conference of Parties reports from parties to the Convention, together with its comments and a summary of their contents; - to make appropriate recommendations in situations brought to its attention by parties in accordance with relevant provisions of the Convention, in particular in case of special situations where cultural expressions on the territory of a party are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding;64 62 The Convention is today in force for 145 States. 63 The Operational Guidelines were approved in 2009 by the Conference of parties. Additions were subsequently made. 64 Where such a special situation has been determined by a party, the Committee may also recommend to foster the dissemination of information on best practices of parties in similar situations, to inform the parties of the situation and invite them to take action in order to provide assistance or to suggest to the party concerned that it seek assistance, if needed, from the International Fund for Cultural Diversity.

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Institutional Aspects 759 - to establish procedures and other mechanisms for consultation aimed at promoting the objectives and principles of the Convention in other international forums; - to decide on the use of the resources of the International Fund for Cultural Diversity established by the Convention; - to perform any other tasks as may be requested by the Conference of Parties. The Conference of Parties and the Committee are assisted by the UNESCO Secretariat.

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chapter 32

The Pa rticipation of Non-State Actors I n The Implem en tation of Cu ltu r a l H er itage L aw Kristin Hausler*

1. Introduction In its Resolution 2347 (2017), the Security Council ‘noted with grave concern the involvement of non-State actors, notably terrorist groups, in the destruction of cultural heritage and the trafficking in cultural property’.1 In recent years, the growing number of direct attacks against cultural sites has put the spotlight on the negative impact that a category of non-State actors, namely armed non-State actors (ANSAs), can have with regard to cultural heritage. However, ANSAs are not always the perpetrators of attacks against cultural heritage; to the contrary, some armed groups may seek rather to protect cultural heritage situated on the territory under their control.2 In addition, notwithstanding * The author is grateful for the research assistance of John Townsend, Camila Adach, and Sofia Roveta. 1 Report of the Secretary-General on the Implementation of Security Council Resolution 2347 (2017), S/2017/969, para 1. See also Kristin Hausler, ‘Cultural heritage and the Security Council: Why Resolution 2347 matters’ (2018) 48 Questions of International Law Zoom-in 5–19, and Andrzej Jakubowski ‘Resolution 2347: Mainstreaming the protection of cultural heritage at the global level’ (2018) 48 Questions of International Law Zoom-in 21–44. 2 Kristin Hausler, ‘Culture Under Attack—The Destruction of Cultural Heritage by Non-State Armed Groups’ (2015) 2(1) Santander Art and Culture Law Review 133; see also, in general, Marina Lostal, Kristin Hausler, and Pascal Bongard, ‘Armed Non-State Actors and Cultural Heritage in Armed Conflict’ (2017) 24(4) International Journal of Cultural Property 407; and Marina Lostal, Kristin Hausler, and Pascal Bongard, Culture Under Fire: Armed Non-State Actors and Cultural Heritage in Wartime (Geneva Call,

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 761 the current international attention to the protection of cultural heritage in armed conflict and the potential role of ANSAs in relation thereto,3 other non-State actors are becoming more and more involved in the protection of cultural heritage, both in peace and wartime; these can include ‘non-governmental organisations (NGOs) enjoying official recognition within the United Nations family, private enterprises (including companies, foundations, and other associations that are not formally classified as NGOs), and individuals’.4 Although non-State actors play a significant role in the implementation and monitoring of international law,5 including cultural heritage law, their law-making capacity remains limited, with States retaining the keys to the sources of international law, whether treaties, custom, or general principles. Nevertheless, many non-State actors have influenced the international legislative process by participating as observers in the proceedings of UN bodies, which allows them to submit written statements and make oral interventions, as well as participate in debates.6 Beyond playing a supporting role in the creation, implementation, and monitoring of international law, non-State actors may be its direct subjects when it regulates their actions, such as when international humanitarian norms apply to ANSAs in situations of non-international armed conflicts. According to the law on State responsibility, States may be held responsible for the actions of non-State actors if those actions can be attributed to them;7 under inter national human rights law, States may be held responsible for the actions of non-State actors if they fail to act with due diligence in protecting those under their jurisdiction from the effect of those actions.8 However, while individuals may be individually pros ecuted for their actions, there is an accountability gap at the international level in terms of holding non-State actors directly responsible for their actions. Nevertheless, efforts are being undertaken to close this gap, and there is a growing consensus that non-State actors should have the obligation to (at least) respect the human rights applicable on the territory on which they operate.9 With regard to ANSAs, it has been suggested that the determination of the extent of their responsibility for human rights obligations beyond 2018) accessed 22 February 2019. 3 UNSC Res 2347 (2017). 4 James A. R. Nafziger, ‘The World Heritage Convention and Non-State Actors’ in Lyndel V. Prott, Ruth Redmond-Cooler, and Stephen Ulrice (eds), Realising Cultural Heritage Law: Festschrift for Patrick O’Keefe (Institute of Art and Law 2003) 73 (fn 5). On the topic of non-State actors and cultural heritage in general, see Alesssandro Chechi, ‘Non-State Actors and Cultural Heritage: Friends or Foes?’ (2015) 19 AFDUAM (Anuario de la Facultad de Derecho de la Universidad de Madrid) 458. 5 See, for example, UN General Assembly Resolution 60/251 (15 March 2006) 2, which acknowledges that ‘non-governmental organizations play an important role at the national, regional and international levels, in the promotion and protection of human rights’. 6 UN Economic and Social Council, Resolution 1996/31, Consultative Relationship between the United Nations and Non-Governmental Organizations (25 July 1996). 7 Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd session (2001). 8 Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press, 2006). 9 See, for example, General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities, E/C.12/GC/24, 10 August 2017, para 5, which States that ‘business entities are expected to respect Covenant rights’.

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762 Kristin Hausler the obligation to respect human rights should be context-dependent and determined through a review of their control, capacity, and governance.10 With regard to corpor ations, while they do not have binding obligations under international human rights law, it has been argued that they could be held liable by courts because of the authoritative force of ‘soft law’ instruments.11 There are similar developments in regard to inter national organizations, even if international mechanisms for ensuring compliance have yet to be established.12 Bearing that general international legal framework in mind, this chapter considers the manner in which the participation of non-State actors has been integrated in treaties concerned with cultural heritage, as well as in their implementation policies, providing some examples of what such participation has amounted to in practice. According to the Constitution of UNESCO, which is the international organization under which the majority of cultural heritage treaties have been adopted, it may make suitable arrangements for consultation and co-operation with non-governmental international organizations concerned with matters within its competence, and may invite them to undertake specific tasks. Such co-operation may also include appropriate participation by representatives of such organizations on advisory committees set up by the General Conference.13

UNESCO has adopted resolutions in order to strengthen its relationship with NGOs,14 supporting the establishment of a collective cooperation mechanism to monitor and assess partnerships,15 and encouraging qualitative dialogue between its Member States and non-governmental partners.16 10 See Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (armed non-State actors: the protection of the right to life), A/HRC/38/44, 5 June 2018. 11 See Vilca & 21 Ors v Xstrata Ltd & Anor [2016] EWHC 389 (QB) at para 25, where the judge stated that more than ‘lip-service’ is demanded to the ‘Voluntary Principles on Security and Human Rights’ which the company in question had adopted; for a commentary on the topic, see Lise Smit, Arianne Griffith, and Robert McCorquodale, When National Law Conflicts with International Human Rights Standards: Recommendations for Business (British Institute for International and Comparative Law 2018). 12 See J. Wouters, E. Brems, S. Smis, and P. Schmitt (eds), Accountability for Human Rights Violations by International Organisations (Intersentia 2010). 13 Article XI(4) UNESCO Constitution. 14 UNESCO has official partnerships with about 370 NGOs and twenty foundations or similar institutions: https://en.unesco.org/partnerships/non-governmental-organizations-and-foundations, accessed 22 February 2019. See also the Directives concerning UNESCO’s relations with NGOs and those concerning its relations with foundations and similar institutions, in UNESCO Basic Texts (2012), as adopted by the General Conference at its 36th session, 155 and 169. 15 UNESCO, Resolution 15 adopted by the General Conference at its 39th session, 18th plenary meeting, 13 November 2017, 52. Note that a NGO–UNESCO Liaison Committee was established in 2012 to facilitate cooperation between NGOs and UNESCO. 16 Ibid, 56; see also UNESCO Executive Board, Relations with Non-Governmental Partners, 204th Session (3 April 2018) 204 EX/23 Rev, which was submitted by the Director-General with a view to considering new opportunities for qualitative dialogue between Member States and NGOs, pursuant to 202

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 763 Over the past decades, non-State actors have become increasingly active participants in cultural heritage protection and cultural heritage governance more generally. This development has paralleled the evolution of the understanding of ‘cultural heritage’ from a cultural good that can be owned by a State to ‘a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions’, which includes ‘the environment resulting from the interaction between people and places through time’.17 This definition was adopted in 2005 by the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (Faro Convention), which also enshrines the term ‘heritage community’ in reference to ‘people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations’.18 This conceptualization of ‘cultural heritage’ is based on the recognition that the enjoyment of, and access to, cultural heritage is part of the right to participate in cultural life as enshrined in international human rights law.19 In accordance with international human rights law, States must respect, protect, and fulfil the realization of this right with regard to all individuals under their jurisdictions. As mentioned, this obligation also includes ensuring that non-State actors do not impede on the realization of this right. The idea that cultural heritage is a shared resource and a common good was further affirmed by the European Commission, which established that looking after heritage also entails ‘a common responsibility’,20 thus going beyond the idea of it being a good that carries only a right of enjoyment and access, and that it is a responsibility which, arguably, should also be borne by non-State actors. However, in order to fulfil this responsibility, they should be provided with a level of governance over cultural heritage matters under the relevant cultural heritage treaties or, at least, within their implementation mechanisms. Thus this chapter considers the treaty provisions which allow non-State actors to exercise their right to access and enjoy cultural heritage and also those which provide them with a seat at the cultural heritage governance table or some level of control over cultural heritage matters. The chapter is divided into some of the key cultural heritage topics that have been addressed by treaty law, including the protection of cultural property in armed conflict, the fight against the illicit trade in cultural goods, the protection of world cultural heritage, and the safeguarding of intangible cultural heritage. These themes were selected to represent not only different forms of cultural heritage but also EX/Decision 37, and UNESCO Executive Board, Report of the Committee on Non-Governmental Partners (12 April 2018) 204 EX/34. 17 Council of Europe Framework Convention on the Value of Cultural Heritage for Society 2005 (Faro Convention) art 2(a). 18 Ibid, art 2(b). 19 Art 15 ICESCR; see also the work of the Special Rapporteur in the field of cultural rights. 20 Section 1.1. Communication from The Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Towards an integrated approach to cultural heritage for Europe’, Brussels, 22.7.2014, COM(2014) 477 final.

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764 Kristin Hausler treaties adopted in various decades, in order to consider the participation of non-State actors in the governance of cultural heritage in parallel with the development of the concept of cultural heritage itself. Indeed, the notion of cultural heritage has evolved from being mainly considered under international law as a property of the State or a private property to becoming a ‘common good’ which brings rights and responsibilities to non-State actors, including communities, groups, and individuals, associated therewith. It also follows the increasing participation of non-State actors in international fora more generally.21

2. Non-State Actors and the Protection of Cultural Property in Armed Conflict 2.1 Armed Non-State Actors and the Protection of Cultural Property in Armed Conflict While this chapter is mostly concerned with the procedures allowing non-State actors to participate in the governance of cultural heritage, as provided under treaty law, the substantial obligations provided to non-State actors under treaty law must also be acknowledged. Such obligations exist, under customary and treaty rules protecting cultural property in armed conflict, with regard to ANSAs that are party to non-international armed conflicts.22 Given the intrinsic value for the society with which they are associated, cultural objects have long been the targets of attacks in wartime, with cultural goods often becoming the spoils of the victors. As a result, States started to adopt norms to protect cultural objects in armed conflict at the end of the nineteenth century.23 Developed at the time to apply exclusively to international armed conflicts—that is, wars between two States, including situations of occupation—these rules have since been described as reflecting custom and being applicable to all parties to an armed conflict, including those of a non-international 21 See, for example, Lucas Lixinski, ‘Heritage for Whom? Individuals’ and Communities’ Roles in International Cultural Heritage Law’ in Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014) 193–213. 22 Note that ANSAs exist under international law by virtue of their participation in armed conflicts; therefore, they do not have any obligation of safeguarding cultural property in peacetime, as enshrined by art 5 Second Protocol to the Hague Convention (1999). 23 See, for example, art 27 Hague Regulations (1899 and 1907), which seeks to protect ‘buildings dedi cated to religion, art, science, or charitable purposes, historic monuments’. The Hague Regulations were annexed to the Hague Conventions on the Laws and Customs of War on Land, a series of treaties adopted at two diplomatic conferences in 1899 and 1907.

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 765 character.24 Following the continued violations of the rules protecting cultural sites during the two world wars, The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) was adopted in 1954. Its key provisions are applicable to all parties to a non-international armed conflict, and thus also to ANSAs, which must ‘respect’ cultural property, meaning that both the military use of cultural property and acts of hostility against such property are prohibited.25 The Second Protocol to the Hague Convention, adopted in 1999, applies in its entirety ‘in the event of an armed conflict not of an international character, occurring within the territory of one of the Parties’.26 Furthermore, the 1977 Additional Protocol II to the Geneva Conventions of 1949, which includes a provision prohibiting acts of hostility ‘against historic monuments, works of art or places of worship’ and their military use, applies in non-international armed conflicts ‘which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.27 In addition to the obligations derived directly from international treaty law, a number of ANSAs have formally bound themselves to respect cultural objects in non-international armed conflicts or at least to respect the general rules of international humanitarian law; those groups include the Sudan People’s Liberation Movement and Army (SPLM/A), the National Transitional Council/Free Libyan Army (NTC/FLA), the National Democratic Front of the Philippines (NDFP), the Colombian Ejército de Liberación Nacional (ELN), the National Movement for the Liberation of Azawad (MNLA), and the Kurdistan Workers’ Party/People’s Defence Forces (PKK/HPG), among others.28 These examples, as well as research conducted in the area,29 demonstrate that ANSAs do not all adopt the destruction of cultural heritage as a method of 24 See, for example, Prosecutor v Kordić and Čerkez, Case No. IT-95–14/2-T, ICTY Trial Chamber Judgment (26 February 2001), para 362, where it clearly referred to ‘the custom codified in Article 27 of the Hague Regulations’; see also the ICRC CIL Rules 38–41. 25 Art 19 (1) Hague Convention. See Roger O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge University Press 2006) 98, where he states that, according to the drafters, treaty obligations were imposed on non-State armed groups because each party to an armed conflict is bound by contractual arrangements undertaken by the community of which it is a part. 26 Art 22 of the Second Protocol to the Hague Convention; see ibid, 245–6, where O’Keefe explains that the provisions contained in the Hague Convention and its Second Protocol which refer to noninternational armed conflicts must be read with Common Article 3 of the 1949 Geneva Conventions, which means that they may also apply to armed conflicts involving only non-State armed groups (and no State). 27 Art 1 (1) Additional Protocol II. Additional Protocol II did not mirror the language of Common Article 3 of the Geneva Conventions, which clearly states that ‘each Party to the conflict shall be bound to apply as a minimum’ its provisions. The application of Additional Protocol II is also limited to those groups who exercise control over a portion of the territory of a State Party and which have a certain level of organization. 28 Hausler, ‘Culture Under Attack’ (n 2). 29 Lostal, Hausler, Bongard, ‘Armed Non-State Actors and Cultural Heritage’ (n 2), and Lostal, Hausler, and Bongard, Culture Under Fire (n 2).

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766 Kristin Hausler warfare. Many groups do recognize that cultural heritage needs protection in armed conflict and want to play a role therein, even if the current legal framework applicable in armed conflicts does not provide them with any ‘safeguarding’ obligations as those are understood as applicable in peacetime, i.e. when ANSAs do not exist under humanitarian law.30 The precautions against the effects of hostilities, as envisaged by Article 8 of the Second Protocol which applies to ANSAs, are rather limited, as they only suggest to ‘remove movable cultural property from the vicinity of military objectives or provide for adequate in situ protection’ and ‘avoid locating military objectives near cultural property’. However, cultural heritage located in territories controlled by ANSAs could benefit from additional measures, including those listed in Article 5 of the Second Protocol.31 In addition to seeking to avoid the destruction of cultural heritage in the course of hostilities, the Hague system of protection also contains rules regarding the looting of cultural objects. In that regard, ANSAs must prohibit the looting of cultural objects within their ranks (and possibly within the territory under their control). The Second Protocol has clarified that criminal responsibility is incurred not only for the destruction or damage to cultural property but also for theft or pillage, among other actions.32 Under the Hague Convention, UNESCO may offer its services to the ANSAs party to an armed conflict.33 However, unlike States,34 ANSAs do not benefit from a clause allowing them to contact UNESCO to request its services under the Convention, although they may be in need of technical assistance in order to adequately protect cultural objects under their control, for example.35 In addition, while the Hague Convention encourages the parties to a conflict to agree to bring into force some (or all) of its other provisions, such agreement is yet to be concluded.36 With regard to the assistance which may be provided by the Committee for the Protection of Cultural Property in the Event of Armed Conflict, article 32(2) of the Second Protocol States that ‘a party to the conflict, which is not a Party to this Protocol but which accepts and applies provisions in accordance with Article 3, paragraph 2, may request appropriate international assistance from the Committee’; however, this provision is not applicable to ANSAs as article 3(2) specifically refers to the ‘State party to the conflict’. Furthermore, as the Hague rules apply strictly to tangible forms of cultural heritage, they do not contain any provision applicable to the protection of intangible forms of cultural heritage, such as oral traditions and expressions (including languages); performing 30 See also Chechi, ‘Non-State Actors and Cultural Heritage’ (n 4). 31 These include ‘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’. 32 Art 15(1)(e) Second Protocol. 33 Art 19(3) Hague Convention. 34 Art 23(1) Hague Convention, which provides that States Parties can call upon UNESCO ‘for tech nical assistance in organizing the protection of their cultural property’. 35 See Lostal, Hausler, and Bongard, ‘Armed Non-State Actors and Cultural Heritage’ (n 2), 419; see also Lostal, Hausler, and Bongard, Culture Under Fire (n 2), 35, where it is explained that the MNLA sent a letter (in vain) to UNESCO in 2013 requesting support to return manuscripts which it had intercepted. 36 Art 19(2) Hague Convention.

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 767 arts, social practices, rituals, and festive events; knowledge and practices concerning nature and the universe; or traditional craftsmanship.37 The adoption of additional rules applicable specifically to ANSAs for the protection of cultural heritage, including intangible cultural heritage, could potentially increase the chances of safeguarding cultural heritage from the foreseeable effects of armed conflicts. At the very least, training and awareness-raising of the existing rules for the protection of cultural property in armed conflict would likely increase their respect by ANSAs.38

2.2 NGOs and Civil Society and the Protection of Cultural Property in Armed Conflict In addition to ANSAs, other non-State actors may have a role to play in the protection of cultural heritage in armed conflict, in particular when they hold a specialized know ledge, such as heritage preservation. For example, museums or research bodies, such as university archaeological departments, may be involved in the safeguarding of cultural heritage from the foreseeable effects of hostilities to be taken in time of peace, such as the preparation of inventories or the planning of emergency measures for protection against fire or structural collapse,39 directly or by providing training to local heritage professionals, even though such safeguarding measures consist of obligations which must be fulfilled by the State parties to the Hague Convention.40 For example, the International Council of Museums (ICOM) Disaster Risk Management Committee and the International Committee of the Blue Shield (ICBS) promote good practices to secure cultural property during the course of hostilities, as well as supporting capacity-building among museum professionals to develop emergency planning procedures.41 As another example, the universities of Oxford, Leicester, and Durham have, through EAMENA (an initiative supported by the Arcadia Fund and the British Council Cultural Protection Fund), provided training to heritage professionals in Jordan, Palestine, Iraq, Lebanon, Libya, Tunisia, and Egypt.42 Some smaller non-governmental organizations, such as

37 Art 2(2) Convention for the Safeguarding of the Intangible Cultural Heritage (2003). 38 Geneva Call, an NGO dedicated to promoting the respect of international humanitarian law by ANSAs, has trained the Free Syrian Army in 2015 and 2017; see Lostal, Hausler, and Bongard, ‘Armed Non-State Actors and Cultural Heritage’ (n 2) 418. 39 Art 3 Hague Convention and Art 5 Second Protocol. 40 Note that States may fulfil this obligations through State-administered institutions—for example, the Smithsonian Institution, which has co-produced the Guide to Mosul Heritage and also conducted fieldwork to document and stabilize the recently liberated ancient city of Nimrud; see Report of the Secretary-General on the Implementation of Security Council Resolution 2347 (2017), S/2017/969, 17 November 2017, para 75. 41 Ibid. 42 See the Endangered Archaeology in the Middle East & North Africa (EAMENA) Project accessed 22 February 2019; for the ‘Protecting the Past’ workshops see accessed 22 February 2019.

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768 Kristin Hausler Heritage for Peace which is active in Syria,43 may also support the protection of heritage in conflict zones, such as by preparing ‘no-strike lists’.44 States may in turn play a key role in coordinating the efforts of all the non-State actors active on their territory (in addition to ensuring that they do not commit human rights abuses). In its Resolution 2347 (2017), the United Nations Security Council also recommended increased cooperation, including by ‘engaging museums, relevant business associations and antiquities market participants on standards of provenance documentation, differentiated due diligence’, and other relevant measures to prevent the illicit trade in cultural goods.45 The Committee for the Protection of Cultural Property, which develops guidelines and monitors the implementation of the Second Protocol, shall cooperate with ‘non-governmental organizations having objectives similar to those of the [Hague] Convention’.46 To assist in the implementation of its functions, the Committee may invite to its meetings, in an advisory capacity, eminent professional organizations such as those which have formal relations with UNESCO, including the ICBS and its constituent bodies. Representatives of the International Centre for the Study of the Preservation and Restoration of Cultural Property (Rome Centre) (ICCROM) and of the International Committee of the Red Cross (ICRC) may also be invited to attend in an advisory capacity. At its 2017 meeting, the Committee identified NGOs as one category of actors for the implementation of its advocacy strategy, which seek to promote the ratification of the Hague Convention and its two Protocols.47 The meetings of the High Contracting Parties to the Hague Convention, as well as those of the Parties to the Second Protocol and those of the Second Protocol Committee, have consistently been attended by non-State observers,48 including the ICRC, the International Council of Archives (ICA), ICOM, the ICBS, or the International

43 See Heritage for Peace accessed 22 February 2019. 44 This was done by Heritage for Peace together with the UK Blue Shield; see accessed 22 February 2019. 45 UNSC 2347 (2017), Preamble and 17(g). It further calls upon States to create education programmes and raise public awareness about the protection of cultural heritage and illicit trafficking. 46 Art 27(3) Second Protocol; see also the Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (as amended in 2017, published 5 January 2018), paras 13, 24, 28, 115, 153–4, 163–4, 171. 47 Second Protocol to The Hague Convention Of 1954 for the Protection Of Cultural Property In The Event Of Armed Conflict, Seventh Meeting of the Parties, Report on the implementation of the strategy for encouraging ratifications of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two (1954 and 1999) Protocols, C54/17/SP.7/INF.6, 4 October 2017, 5. 48 An NGO may attend any of these meetings at the invitation of the Director-General and must obtain the permission of the Chairperson to address the meeting; see UNESCO (Meeting of the High Contracting Parties to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954)), ‘Rules of Procedure’ (2007) CLT-05/CONF/208/2 [2.2]; UNESCO (Meeting of the High Contracting Parties to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954)), ‘Rules of Procedure’ (2007) CLT-05/CONF/208/2 [8.3] and [7.3].

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 769 Federation of Library Associations and Institutions (IFLA).49 Point 5 of UNESCO’s Standard Plan of Action to Protect Cultural Property in the Event of Armed Conflict calls on the Committee for the Protection of Cultural Property in the Event of Armed Conflict to establish contacts with those organizations, as they may be of use in ‘gathering and disseminating information, awareness raising, and providing expert advice on restoring cultural property’.50 Members of those organizations have thus become members of groups of experts and have participated in missions to assess the conditions of cultural heritage in conflict areas.51 Non-State actors have also contributed to the work of the parties in promoting and implementing the Hague system of protection,52 such as by cooperating with the Secretariat on campaigns for ratification, the development of a military manual, or the hosting of workshops and seminars.53 Finally, they have also been informed of missing cultural objects in specific cases; for example, when UNESCO provided technical assistance to Kuwait under Article 23 of the Convention, following the entry of Iraqi military forces on its territory in August 1990, it forwarded documentation of missing cultural items to ICOM, the Metropolitan Museum of Art, the International Foundation for Art Research (IFAR), and Sotheby’s, among others, to track down stolen cultural goods.54 49 UNESCO (Ninth Meeting of the High Contracting Parties to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict), ‘UNESCO’s Standard Plan of Action to Protect Cultural Property in the Event of Armed Conflict’ (28 November 2011), 11/CONF/209/INF.1, 3. Other observers have included the World Association for the Protection of Tangible and Intangible Cultural Heritage in Time of Armed Conflict (WATCH) and Traditions for Tomorrow. 50 Ibid. 51 See, for example, UNESCO, First Meeting of the High Contracting Parties to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (3 September 1962) UNESCO/ CUA/120, 7–8, which names two members of ICOM being part of the Group of Experts; see UNESCO, Tenth Meeting of the High Contracting Parties to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, ‘Item 4 of the Provisional Agenda: Report of the Secretariat on Its Activities’ (5 December 2013), CLT-13/10.HCP/CONF.201/INF.2, 6, which enumerates the organizations which participated in a mission to Mali during the conflict. 52 See, for example, UNESCO, Fifth Meeting of the High Contracting Parties to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954) (26 November 2001), CLT-01/CONF/204/4, 3 [7], which lists, inter alia, a study day on ‘Protection of Cultural property and the Evolution of the Cultural Property Protection Law’ organized by the International Society for Military Law and the Law of War; see also UNESCO, Seventh Meeting of the High Contracting Parties to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954) (2 May 2008), CLT-07/CONF/213/3, 4 [8(iv)], where El Salvador referred to the positive experience of a project sponsored by UNESCO and the ICRC in regard to the implementation of safeguarding measures. 53 See, for example, UNESCO, Twelfth Meeting of the Committee for the Protection of Cultural Property in the Event of Armed Conflict, ‘Item 4 of the Provisional Agenda: Report of the Secretariat on Its Activities’ (15 October 2017), C54/17/12.COM/4. 54 UNESCO, Eighth Meeting of the Committee for the Protection of Cultural Property in the Event of Armed Conflict’, Item 10 of the Provisional Agenda: The Protection of Cultural Property in Occupied Territory’ (7 November 2013), CLT-13/8.COM/CONF.203/7.

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770 Kristin Hausler The Fund for the Protection of Cultural Property may receive contributions not only from the States Parties and international organizations but also from non-governmental organizations, private bodies, or individuals.55 In accordance with the Guidelines for the Implementation of the Second Protocol, ‘the Secretariat may consult eminent . . . non-governmental organizations with the relevant professional expertise for evaluation of the request [for assistance]’.56 The local population, including heritage professionals, also have an active role to play in the protection of cultural heritage. While this did not take place in a situation of armed conflict but, rather, in a situation of unrest, one may nevertheless remember the striking human chain formed by local citizens around the Egyptian Antiquities Museum on Tahrir Square to protected it from looters.57 In their submissions pertaining to the implementation of Resolution 2347, a number of States mentioned the creation of awareness programmes, such as through curricula on the protection of cultural heritage,58 the establishment of educational centres within museums,59 or the provision of training ‘to art market professionals, museum experts, the media and traditional mediators’.60 This is also a requirement under the Hague system of protection, as the parties ‘shall endeavour by appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect for cultural property by their entire population’.61 However, protecting heritage in situ may also lead to the loss of human lives, as demonstrated by the death of Khaled al-Asaad, the retired chief of antiquities for Palmyra, at the hands of ISIS.62 While the Hague system of protection does not include any specific measure with regard to civilians seeking to protect cultural heritage during hostilities, international humanitarian rules which are applicable to situations of armed conflicts do entail the removal of civilian persons from the vicinity of military objectives, in addition to their protection under the principle of distinction.63

55 Art 29(4)(iii) and (iv) Second Protocol. 56 Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (as amended in 2017, published 5 January 2018), para 171. 57 See, for example, Chris McGreal, ‘Tutankhamun statues among priceless items stolen from Cairo museum’ The Guardian (13 February 2011) accessed 22 February 2019. 58 Report of the Secretary-General on the Implementation of Security Council Resolution 2347 (2017), S/2017/969, 17 November 2017, para 89. These include Estonia, Japan, Romania, Spain, Turkey, and Ukraine. 59 Ibid, para 91. These include Estonia and Turkey. Note also that, in Afghanistan, the Bamiyan Cultural Centre is being established for public cultural education. 60 Ibid, para 92. These include Colombia, Ecuador, Estonia, France, Italy, Mali, Romania, Spain, and Turkey. 61 Art 30(1) Second Protocol. 62 See, for example, Ben Hubbard, ‘Syrian Expert Who Shielded Palmyra Antiquities Meets a Grisly Death at ISIS’ Hands’ The New York Times (19 August 2015) accessed 8 December 2017. 63 Art 58(a) of Additional Protocol I.

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3. Non-State Actors and the Protection of Cultural Heritage from Trafficking The Hague system of protection prohibits looting and theft of cultural property in armed conflict but does not address the issue of trafficking in cultural goods comprehensively. Therefore, a decade after the adoption of the Hague Convention, international attention turned towards the combat against illicit trade when UNESCO, in 1964, appointed experts to develop a treaty on the matter,64 eventually leading to the adoption of the Convention on Stolen and Illegally Trafficked Cultural Goods in 1970 (1970 UNESCO Convention). Its preamble considers that ‘cultural institutions, museums, libraries and archives should ensure that their collections are built up in accordance with universally recognized moral principles’, thus recognizing the potential role of those non-State actors in the fight against trafficking.65 The 1970 UNESCO Convention Operational Guidelines mention as partners ‘non-governmental organizations that have an interest, involvement, and relevant competence and expertise in the protection of cultural objects and are recognized by UNESCO as having appropriate specialized skills and proven track records’, adding that ‘they are particularly invited to participate in expert studies and regional meetings and workshops organized by UNESCO’.66 Yet the only NGO named as a key cooperating partner by the Operational Guidelines is ICOM,67 while other potential partners, which may include ‘local, regional or international organizations’, only specifically include the International Council on Monuments and Sites (ICOMOS).68 The Convention itself only mentions non-State actors as addressees of State measures.69 In accordance with its article 7, States Parties must ‘take the necessary measures, consistent 64 See UNESCO Resolution 3.334, Records of the Fifteenth Session of the General Conference, Paris, 1968. 65 See also Annex 5 of its Operational Guideline, 44, which States that ‘partners for the fight against illicit traffic in cultural property may be intergovernmental or nongovernmental organizations that have an interest, involvement, and relevant competence and expertise in the protection of cultural objects and are recognized by UNESCO as having appropriate specialized skills and proven track records. They are particularly invited to participate in expert studies and regional meetings and workshops organized by UNESCO.’ 66 Operational Guidelines, 1970 Convention, para 129 (and Annex 5) and para 124, according to which the Secretariat may ‘call on the cooperation of any competent, and recognized by UNESCO and State Parties, non-governmental organization’. 67 Ibid, para 129 and Annex 5, Operational Guidelines, 1970 Convention. 68 Ibid. Note that the UNESCO website also lists a number of research institutes involved in the fight against trafficking in cultural goods, such as the Art-Law Centre at the University of Geneva. 69 However, the travaux préparatoires of the 1970 Convention referred to the cultural heritage of ‘ peoples’ rather than ‘States’; see Ana Filipa Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’ in Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods, Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014) 147.

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772 Kristin Hausler 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’. It is also the role of States, and not of museums or similar institutions, to inform the relevant State (‘of origin’) of such a purchase offer and to return it. States must also ‘prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party’.70 Under this Convention, the movement of cultural goods is thus entirely under the control of the State, and there is no real incentive for non-State actors to modify their behaviour in the art market. International non-governmental organizations, or other representatives, must be invited by the Director-General of UNESCO in order to participate in the meetings of the States Parties as observers (without the right to vote).71 The Committee may also invite any person or entity, including international non-governmental organizations, with recognized competence in the area, ‘in order to consult them on specific matters’.72 For example, in order to inform the Committee on implementation and art market development at the regional level, various museum directors and academics have been invited to brief the Committee.73 Non-State observers have included ICCROM and ICOM, the latter having conducted specialized training, museum security, information dissemination, and public awareness-raising campaigns.74 Points raised also included the need for increased engagement with art and antiquities dealers.75 The Subsidiary Committee of the Meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, composed of representatives of eighteen States Parties, has developed cooperation with non-State actors, such as ICOM and the ILLICID Project on the trade in Iraqi and Syrian archaeological objects (which is coordinated by the Prussian Cultural Heritage Foundation), as well as awareness-raising campaigns, such as videos targeting tourists or on combating trafficking in the North Africa region produced for local communities.76 70 Art 7 b(i). 71 Rules of Procedure of the Meeting of States Parties to the 1970 UNESCO Convention, paras 2.2–2.3. Note that the consent of the Chairperson must be obtained whenever an observer wishes to address the Meeting of States Parties, para 7.3. 72 Ibid, para 14.9. 73 For example, at the Second Meeting, the Deputy Director of the Barbados Museum & Historical Society, the Director of the Museum of the Central Reserve Bank of Peru, the Director of the Center for Art, Museum and Cultural Heritage Law at DePaul University, the Professor of the National University School of Law (Republic of Korea), the Director of Research at the Centre for Studies on International Legal Cooperation (CECOJI), and the Honorary Professor and Vice-Chairman of Olabisi Onabanjo University (Nigeria) have all addressed the Committee; see Second meeting of the States Parties to the 1970 UNESCO Convention, C70/12/2.MSP/Report Paris, July 2012, 141–62. 74 See, for example, First Meeting of State Parties to the 1970 Convention, CLT-2003/CONF/207/5, Paris, 5 November 2003, paras 2, 13. 75 Ibid, para 8. 76 Subsidiary Committee of the Meeting of States Parties to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

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3.1 Amending the ‘Due Diligence’ Requirement within the Private Sector Given the shortcomings of the 1970 UNESCO Convention, a similar treaty was adopted twenty-five years later to fill its gaps. The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995 UNIDROIT Convention) provides for compensation for the purchaser of a stolen cultural object, which must be returned, only if he or she can prove having acted with ‘due diligence’ at the time of acquisition,77 a reversal of the burden of proof which was later adopted in the European Directive 2014/60/EU on the Return of Cultural Objects unlawfully removed from the Territory of a Member State, along with the non-exhaustive list of requirements that indicate the exercise of due diligence as elaborated in the 1995 UNIDROIT Convention.78 Contrary to the 1970 Convention, which only provides for restitution for objects in the hands of another contracting State, the 1995 UNIDROIT Convention covers objects possessed by non-State actors as well (‘the possessor’). The weakness of the 1995 UNIDROIT Convention is its lower number of ratifications, compared with the 1970 UNESCO Convention, with one argument against ratification lying in conflicts with national law, such as personal property law.79 However, even in some States which have not ratified the 1995 UNIDROIT Convention, its notion of ‘due diligence’ has been incorporated into national law.80 In addition to influencing domestic laws, changes at the international level have also led to a change in the standards considered by the courts, thus lowering the chances for blocking returns through the courts when a private collector cannot prove having acted with sufficient due diligence when acquiring the object in question. In 2017, it was reported that American collectors abandoned a lawsuit which sought to stop the Manhattan district attorney’s office from returning to Lebanon a 2300-year-old sculpture of a bull’s head, which had been on loan to the Metropolitan Museum of Art (the Met) and in relation to which there was clear evidence of its having been looted; the action taken by the district attorney’s office followed concerns raised by a curator at the Met, (UNESCO, Paris, 1970), Third session, Item 4 of the provisional agenda, C70/15/3.SC/4 Paris, July 2015, 15, 16. 77 Art 4(1). For more, see Marina Schneider, ‘The UNIDROIT 1995 Convention: An Indispensable Complement to the 1970 UNESCO Convention and an Inspiration for the 2014/60/EU Directive’ (2016) 2 Santander Art and Culture Law Review 149. Note that ‘the criteria set by article 4(4) of that Convention have become benchmarks for due diligence evaluations in national legislation and case law, independent of a State’s ratification of the Convention’; UNSCR Res 2347, para 33. 78 Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the Return of Cultural Objects unlawfully removed from the Territory of a Member State, and amending Regulation (EU) No 1024/2012 (Recast), OJ L 159, 28.5.2014. 79 The 1970 Convention currently counts 140 States Parties, while the 1995 UNIDROIT Convention counts 48 States Parties. On the rationale against ratification, see for example the argument of the United Kingdom, Special Committee to review the practical operation of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1st meeting, UNIDROIT 2012 DC8/CS/1/Doc. 3, June 2012, 14. 80 Schneider, ‘The 1995 UNIDROIT Convention’ (n 77) 157, citing Swiss and Dutch national laws.

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774 Kristin Hausler thus also highlighting the role of heritage professionals in the fight against the illicit trade in cultural goods.81 Changing the behaviour and awareness of the private sector regarding looted art, including with the adoption of ethical guidelines,82 has also led to returns upon request. In 2016, it was reported that two paintings by old master Jan Porcellis were returned by their owners (who ignored that they had originally been sold under duress in Nazi Germany) to the beneficiaries of a German Jewish art dealer, with the help of the Max Stern Foundation.83 When they were identified by an art historian working on returning Nazi-looted art, they had been placed at an auction house in Heidelberg, a private body which also facilitated the return. Thus this restitution case was led by NSAs, without the involvement of State bodies.84 At the first meeting of the Special Committee to review the practical operation of the 1995 UNIDROIT Convention, the importance of cooperating with NGOs was emphasized;85 a number of experts also addressed the implementation of the Convention.86 While UNIDROIT is an intergovernmental organization, it has launched, in 2017, an academic project (UCAP), which seeks to facilitate the study of the Convention within academic circles, in particular through universities holding courses on cultural heritage law.87 It also aims at providing ‘art market players’ with information about the Convention,88 as their role has been identified as crucial in combatting trafficking.89 At the regional level, the 2017 Council of Europe Convention on Offences relating to Cultural Property (also known as the Nikosia Convention) allows for ‘representatives of civil society, and in particular non-governmental organisations’ to participate as 81 Colin Moynihan, ‘Looted Antiquity, Once at Met Museum, to Return to Lebanon’ The New York Times (11 October 2017) accessed 22 February 2019. 82 See Chapter 33 in this Handbook. 83 Art Daily, ‘Two paintings taken by Nazis returned to beneficiaries in Canada’ accessed 22 February 2019. For more examples, see the UNESCO webpage on Illicit Trafficking of Cultural Property accessed 22 February 2019. 84 Note that NGOs may also seek to oppose restitution; for examples, see Chechi, ‘Non-State Actors and Cultural Heritage’ (n 4). 85 Special Committee to review the practical operation of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1st meeting, UNIDROIT 2012 DC8/CS/1/Doc. 3, June 2012, 9. 86 These included academics or the Director of ICOM; see the Special Committee to review the practical operation of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, First Meeting, UNIDROIT 2012 DC8/CS/1/Doc. 2 rev., June 2012. Note that according to article 20 of the 1995 UNIDROIT Convention, the President of UNIDROIT convenes the special committee at the request of five Contracting States. 87 See the UNIDROIT webpage accessed 22 February 2019. Note that UNIDROIT has also hosted scholars working on the international protection of cultural heritage; see Special Committee to review the practical operation of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1st meeting, UNIDROIT 2012 DC8/CS/1/Doc. 3, June 2012, 17. 88 Ibid. 89 Schneider, ‘The 1995 UNIDROIT Convention’ (n 77) 162.

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 775 bservers in the Committee of the Parties,90 which will be monitoring the implementao tion of the Convention. They may, for example, participate in facilitating ‘the collection, analysis and exchange of information, experience and good practice between States to improve their capacity to prevent and combat trafficking in cultural property’.91 The importance of States directly engaging with non-State actors in the fight against trafficking has been highlighted by the UN Security Council on several occasions. As mentioned above, in its Resolution 2347,92 which also addressed the looting and smuggling of cultural property in the event of armed conflicts, notably by terrorist groups, it called on Member States to consider adopting measures to engage ‘museums, relevant business associations and antiquities market participants on standards of provenance documentation, differentiated due diligence and all measures to prevent the trade of stolen or illegally traded cultural property’ and more generally to raise ‘public awareness about illicit trafficking of cultural property and its prevention’.93 To some extent, such measures have already been implemented at the domestic level.94 For example, Estonia’s national legislation on due diligence now requires museums to ascertain the origins of a cultural object, in order to ensure it has not entered the country unlawfully.95 Public awareness–raising has been done through the dissemination of online material,96 the mounting of exhibitions,97 the creation of a children’s game, and the translation of a children’s book which was then distributed in schools within camps hosting Syrian internationally displaced persons (IDPs) and refugees.98 Intergovernmental organizations also developed awareness-raising programmes for both local communities and art market professionals. With regard to the latter, UNESCO and the European Union launched a capacity-building project in 2017, which is aimed at engaging the European art market in the fight against illicit trafficking, foreshadowing a comprehensive training programme on due diligence issues.99 90 Art 23(5), Council of Europe Convention on Offences relating to Cultural Property, adopted on 3 May 2017 (Council of Europe Treaty Series no. 221); not yet entered into force. 91 Ibid, art 24(2). 92 UNSCR Res 2347 (24 March 2017), UN Doc S/Res/2347(2017). 93 UNSCR Res 2347 (24 March 2017), paras 17(g) and (i). 94 Report of the Secretary-General on the Implementation of Security Council Resolution 2347 (2017), S/2017/969, 17 November 2017. Note that it received a submission from ICOM, the non-governmental international organization of museums and museum professionals. 95 Ibid, para 36. 96 Ibid, para 96, with reports from Bulgaria, Estonia, Sweden, and Ukraine. 97 Ibid, para 97, according to which ‘Italy, France and Sweden have mounted exhibitions on illicit trafficking and the destruction of heritage, and Mexico organized events celebrating the return and restitution of looted or stolen objects. Turkey reported organizing symposiums and conferences on related topics.’ 98 Ibid, para 98, which states that the game was developed with support from Norway to raise awareness of Iraqi cultural heritage of Iraq and the need to protect it from trafficking and that the University of Tsukuba, in Japan, translated the well-known children’s book A History of Syria in One Hundred Sites into Arabic, and distributed it in schools within camps for refugees and internally displaced persons in and around the Syrian Arab Republic. 99 Ibid, para 37. Note that ICOM also reported on its general role in educating museum professionals and art collectors on standards of provenance documentation, differentiated due diligence, and measures to prevent the trade of stolen or illegally traded cultural property to the UN Security Council, including the publication of its Red Lists of cultural objects at risk which is widely disseminated; see para 38.

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776 Kristin Hausler Furthermore, the EU’s Fifth Money Laundering Directive of 2018 (Directive 2018/843) goes beyond knowledge-raising as it expands its legal obligations to art market oper ators, requiring them to abide by certain due diligence standards with regard to their clients in order to help prevent money laundering and terrorism financing.100 With regard to general public awareness, UNESCO supports the creation of informative videos, such as to inform local Iraqi and Syrian communities about the destruction and trafficking of heritage in those countries, develops travel guides and billboards to be posted at international airports on trafficking, and organizes conferences for local community groups.101 The UNODC also launched a public awareness campaign on combating trafficking in cultural property in 2016.102 Interpol and ICOM, a non-State actor, both issue documentation on missing objects, the latter with the publication of its Red Lists.103 It is thus clear that non-State actors are key players in combating the illicit trade in cultural goods, through encouraging ratifications of relevant treaties, raising awareness, and providing training. Although their role was not clearly acknowledged in the first international covenant on the matter, it has been subsequently established in treaty law, as well as through implementation guidelines.

4. Non-State Actors and World Cultural Heritage Governance Two years after the adoption of the first treaty addressing the illicit trade in cultural goods, UNESCO adopted the World Heritage Convention (WHC), under which a site of ‘outstanding universal value’ may be listed for protection. Among the potential threats to world heritage, large-scale private projects or rapid urban or tourist development projects are specifically listed, as well as the outbreak of armed conflicts, which may involve ANSAs. Those threats may result in the Intergovernmental Committee for the 100 Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU OJ 156, 19.6.2018, 43–74. 101 Ibid, para 99, with, for example, the conference on ‘Cultural Heritage and Identity: An Arab Youth Perspective’, held in Tunisia in 2017, to youth-led and gender-sensitive social and private entrepreneurship on the matter. 102 Ibid, para 100; see also the webpage of the United Nations Office on Drugs and Crime on trafficking in cultural property, unodc.org/culturalproperty, accessed 22 February 2019. 103 Ibid, para 101; Interpol issued a special poster in 2015 for Iraq displaying ninety-four objects stolen from the Mosul Museum and another poster in January 2017 featuring twenty-two funerary limestone relief busts stolen from Palmyra, Syrian Arab Republic; see accessed 22 February 2019 and accessed 22 February 2019.

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 777 Protection of the Cultural and Natural Heritage of Outstanding Universal Value (World Heritage Committee) placing a property on its list of ‘World Heritage in Danger’. The Cathedral of Cologne was put on the list of World Heritage in Danger in 2004 because of a private development project (later rescaled) to erect skyscrapers nearby; likewise, the historical city of Vienna was put on this list in 2017 because of the Vienna Ice-Skating Club project of the Intercontinental Hotel, which did not comply with a previous Committee decision regarding the height of new construction.104 While the Convention affirms that the duty ‘of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural . . . heritage’ belongs to States,105 its article 5 provides that States shall seek, when feasible and appropriate, to adopt a policy that gives the cultural heritage ‘a function in the life of the community’ and to develop training and encourage scientific research ‘in the protection, conservation and presentation of the cultural heritage’.106 States parties are thus encouraged to seek the participation of non-State actors as partners in the nomination, management, and monitoring of properties being part of world heritage.107 According to the Operational Guidelines for the Implementation of the World Heritage Convention, those non-State actors may include local communities, Indigenous p eoples, NGOs, and private organizations and owners who have an interest in the conservation and management of a particular World Heritage property.108 The process to inscribe a property on the World Heritage List starts with the creation by a State Party of a tentative list of properties of potentially outstanding universal value which it intends to formally nominate during the following years. Since 1992, ‘cultural landscapes’, which strongly link geographical areas with local communities, can also be nominated. At the preparatory stage already, States Parties are encouraged to involve non-State stakeholders such as site managers, local communities, and NGOs.109 According to the Operational Guidelines: Participation in the nomination process of local communities, indigenous peoples, governmental, non-governmental and private organizations and other stakeholders is essential to enable them to have a shared responsibility with the State Party in the maintenance of the property. States Parties are encouraged to prepare nominations with the widest possible participation of stakeholders and to demonstrate, as appropriate, that the free, prior and informed consent of indigenous peoples has been

104 The Cologne Cathedral was removed from the list of World Heritage in Danger in 2006; see accessed 22 February 2019. For the documentation regarding the listing of the Historic Centre of Vienna, see accessed 22 February 2019. For more examples, see Chechi, ‘Non-State Actors and Cultural Heritage’ (n 4). 105 Art 4 WHC. 106 Art 5(a)(e) WHC. 107 This partnership approach has been part of the Operational Guidelines since 2005. 108 Operational Guidelines for the Implementation of the World Heritage Convention (2017), paras 39–40. 109 Ibid, para 64.

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778 Kristin Hausler obtained, through, inter alia making the nominations publicly available in appropriate languages and public consultations and hearings.110

The participation of communities became a strategic objective in 2007, and, in 2011, the involvement of ‘indigenous peoples and local communities in decision making, monitoring and evaluation of the state of conservation of the properties . . . and link[ing] the direct community benefits to protection outcomes’ was highlighted by the World Heritage Committee, which also encouraged States Parties to ‘respect the rights of indigenous peoples when nominating, managing and reporting on world heritage sites in indigenous peoples’ territories’.111 The recognition of the need to further increase the participation of Indigenous communities followed a number of disputes regarding heri tage properties situated on Indigenous traditional lands.112 For example, a controversy arose over the mixed World Heritage Site at Kakadu National Park, Australia, with regard to the construction of a uranium mine on the traditional land of the Mirrar people.113 With the report of a mission of the World Heritage Committee to the site having stressed the importance of consulting with the local Indigenous communities,114 the Committee itself received submissions from Indigenous elders about the development of the mine.115 With States Parties having regularly expressed concern over the lack of consultation with Indigenous communities and NGOs,116 the Operational Guidelines 110 Ibid, para 123. 111 World Heritage Committee, Decision: 35 COM 12E, ‘Global state of conservation challenges of World Heritage properties’, para 15 (e) (f). 112 See Chapter 18 in this Handbook. 113 UNESCO (Bureau of the World Heritage Committee), Information Document: Report on the Mission to Kakadu National Park, Australia, 26 November to 1 October 1998 (26 November 1998) WHC98/CONF.202/INF.3/Rev. 11. 114 UNESCO (Bureau of the World Heritage Committee), Information Document: Report on the Mission to Kakadu National Park, Australia, 26 November to 1 October 1998 (26 November 1998) WHC98/CONF.202/INF.3/Rev. 5–6. 115 UNESCO (World Heritage Committee), Twenty-Fourth Session: Report (16 February 2001) WHC2000/CONF.204/21. It also received submissions from scientific experts. An agreement was made with the Mirrar people that no mining would take place without their consent; see UNESCO (World Heritage Committee), Decisions Adopted at the 28th Session of the World Heritage Committee (Suzhou, 2004) (29 October 2004) WHC-04/28.COM/26 92. 116 UNESCO (Bureau of the World Heritage Committee), Twenty-fifth Extraordinary Session: Item 3 of the Provisional Agenda: State of Conservation of Properties Inscribed on the World Heritage List (25 October 2001) WHC-01/CONF.207/3 29–32; UNESCO (World Heritage Committee); Twenty-Fifth Session: Report (8 February 2002) WHC-01/CONF.208/24 30–1; UNESCO (Bureau of the World Heritage Committee), State of Conservation of Kakadu National Park, Australia: Independent Scientific Panel (ISP) of the International Council for Science (ICSU) Report No. 3, September 2000 (12 October 2000) WHC2000/CONF.203/INF.5; UNESCO (Bureau of the World Heritage Committee), Item 4.2 of the Provisional Agenda: State of Conservation of Properties Inscribed on the World Heritage List—Australia’s Commitments: Protecting Kakadu National Park (Progress Report to the World Heritage Centre, 15 April 2000) (11 May 2000) WHC-2000/CONF.202/INF.6; UNESCO (World Heritage Committee), Twenty-Seventh Session: Item 7B of the Provisional Agenda: State of Conservation of Properties Inscribed on the World Heritage List (12 June 2003) WHC-03/27.COM/7B 21–2; UNESCO (World Heritage Committee), Decisions Adopted by the 26th Session of the World Heritage Committee (1 August 2002) WHC-02/CONF.202/ 25 34–5; UNESCO (World Heritage Committee), Twenty-Sixth Session: Summary Record (11 March 2003)

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 779 were eventually amended in 2012 to address this sort of dispute and increase the participation of Indigenous communities in the management of World Heritage properties.117 With regard to the management of a cultural heritage property, which must be effective to protect and preserve it before and after its addition to the World Heritage List, the Operational Guidelines point to a mechanism involving all stakeholders, such as through a participatory planning and consultation process, as well as coordination of the various activities among different partners and stakeholders.118 Those mechanisms involving NSAs must already be part of the nomination document. Article 27 set further objectives such as raising the general public’s awareness, understanding, and appreciation of the need to preserve cultural and natural heritage; enhan cing the function of world heritage in the life of the community; and increasing the participation of local and national populations in the protection and presentation of heritage. In the 2002 Budapest Declaration on World Heritage, the strategic objectives of the World Heritage Committee were reiterated as including increasing public awareness and support for world heritage, as well as enhancing the role of communities in the implementation of the Convention, in accordance with the above-mentioned Article 27 of the Convention. With regard to public awareness, States have also been encouraged to develop educational activities related to world heritage with the participation of schools, universities, and museums, among others.119 The Secretariat of the World Heritage Committee can provide assistance to States in developing public awareness activities and advise them on educational projects.120 Representatives of NGOs, including ICOMOS, which is one of the three advisory bodies of the World Heritage Convention,121 may attend the meetings of the World Heritage Committee in an advisory capacity.122 ICOMOS also assists the UNESCO Director-General with the preparation of the Committee’s meetings and the implementation of its decisions. Furthermore, the World Heritage Committee itself may invite ‘private organizations or individuals to participate in its meetings for consultation on particular problems’.123 The World Heritage Committee shall also ‘co-operate with international and national . . . non-governmental organizations having objectives similar

WHC-02/CONF.202/INF.15 69–71; UNESCO (World Heritage Committee), Decisions Adopted by the 27th Session of the World Heritage Committee in 2003 (10 December 2003) WHC-03/27.COM/24 45–6. 117 See paras 40 and 123. Note also that, in 2015, the World Heritage Committee endorsed the Sustainable Development Policy, which affirms Indigenous rights. 118 Operational Guidelines for the Implementation of the World Heritage Convention (2017), para 111. 119 Ibid, para 220. 120 Ibid, para 218. 121 The other two being the intergovernmental organization the International Centre for the Study of the Preservation and the Restoration of Cultural Property (ICCROM) and the International Union for Conservation of Nature and Natural Resources (IUCN). 122 Art 8(3) World Heritage Convention. 123 Art 10(2) World Heritage Convention; according to art 10(3), it may also create consultative bodies for the performance of its functions.

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780 Kristin Hausler to those of this Convention’.124 In particular, it may call on organizations such as ICOMOS and ‘public and private bodies and individuals’ for ‘the implementation of its programmes and projects’,125 such as the reactive monitoring missions.126 The fund created for the protection of world cultural and natural heritage may receive contributions from private bodies or individuals.127 The gradual recognition of the need to increase the participation of non-State actors in the nomination, management, and monitoring of World Heritage properties has led the World Heritage Committee to further ‘encourage’ States Parties to seek their involvement, without ever it becoming an obligation under treaty law. It is, nevertheless, critical to include all stakeholders at all stages in order to ensure the effective management of a listed property and to avoid it being de-listed.128 For example, the valley around Dresden, which gained its World Heritage status in 2004, was removed from the List in 2009, following the construction of a bridge which cut across its cultural landscape. The construction of the bridge was supported by the local community, which strongly voted in its favour. Involving the local population more closely with the management of the property may have potentially led to successfully identifying an alternative to the bridge.129 As exemplified by the case of Dresden, World Heritage Sites may be at the centre of a conflict of interest which may lead to a conflict, for which there is no specific resolution mechanism in place. Disputes over such sites have generally been heard by courts or arbitration panels. For example, an ICSID tribunal dismissed a claim from a Norwegian company against Lithuania, concerning the construction of a parking lot under an historic centre included on the World Heritage List since 1994.130 Another way to seek to resolve such disputes is through cooperation. For example, with regard to the dispute over the St James Centre redevelopment in Edinburgh, the city council has developed management plans with Edinburgh World Heritage (a charity dedicated to representing the Old and New Town’s UNESCO-listed World Heritage status) and Historic Environment Scotland in order to avoid overdevelopment and to preserve the city’s heritage.131 124 Art 13(7) World Heritage Convention. 125 Ibid. 126 ‘Reactive monitoring’ consists of reporting to the Committee on the state of conservation of specific World Heritage properties under threat. 127 Art 15(3)(b)(iii) WHC; according to art 17, the States Parties shall also encourage the establishment of ‘private foundations or associations whose purpose is to invite donations for the protection of the cultural and natural heritage’. 128 For a criticism of the listing process in that regard, see Chechi, ‘Non-State Actors and Cultural Heritage’ (n 4). 129 See also the ongoing discussions regarding developments in Edinburgh and Liverpool. 130 For more on the case, see Valentina Vadi, ‘Culture Clash? World Heritage and Investors’ Rights in International Investment Law and Arbitration’ (2013) 28(1) ICSID Review 123, 124. 131 For the most recent document, see Old and New Towns of Edinburgh World Heritage Site— Management Plan 2017–2022 accessed 22 February 2019; see also Policy Env 1 in the Local Development Plan (November 2016) which determines planning applications.

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 781

5. Non-State Actors and the Safeguarding of Intangible Cultural Heritage In addition to the concept of cultural landscape, intangible cultural heritage is another form of heritage which is defined through its link with communities. According to the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (Intangible Heritage Convention), ‘intangible cultural heritage’ refers to ‘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’.132 The latter are also referred to as the ‘bearers’ of intangible cultural heritage which may ‘benefit’ from the Convention.133 The Intangible Heritage Convention was the first cultural heritage treaty to give nonState actors (communities, groups, and, in some cases, individuals) such a prominent role therein.134 While this is a response to the ‘very specific character’ of intangible heritage that ‘exists only in its enactment by practitioners’,135 it is also a reflection of the evolution of the concept of cultural heritage, from a focus on physical objects which may be owned in a Western sense (either by States or privately) to all manifestations of culture which are associated with collectivities in a way that transcends generations.136 Given the central role of certain non-State actors in the Convention, this treaty contains a stronger obligation for States Parties to involve them in the safeguarding of that heritage, as they shall ‘identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant non-governmental organizations’.137 The Convention even contains a provision specifically dedicated to the participation of ‘communities, groups and individuals’, according to which States Parties ‘shall endeavour to ensure the widest possible 132 Art 2(1) Intangible Heritage Convention. 133 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (2008, as amended in 2016), para 81. 134 Janet Blake, ‘UNESCO’s 2003 Convention on Intangible Cultural Heritage: The implications of community involvement in “safeguarding” ’ in Laurajane Smith and Natsuko Akagawa (eds), Intangible Heritage (Routledge 2008) 45. 135 Ibid, 45–6. 136 See, for example, the definition of cultural heritage in the Faro Convention (n 7). Note that this evolution has been influenced by the Indigenous concept of communal ownership (see Chapter 4 in this Handbook), which has also been enshrined in the instruments adopted by the African Union—see, for example, Folarin Shyllon, ‘Collective Cultural Rights as Human Rights Simpliciter: The African And African Charter Example’ in Andrzej Jakubowski (ed), Cultural Rights as Collective Rights (Brill Nijhoff 2016) 210–14. 137 Art 11(b) Intangible Heritage Convention. On the meaning of ‘safeguarding’ as including fostering the ‘continued capability of the cultural communities themselves to practise and transmit their ICH’, see Blake, ‘UNESCO’s 2003 Convention on Intangible Cultural Heritage’ (n 134) 51.

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782 Kristin Hausler participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management’.138 While involving non-State actors in the identification of intangible heritage is a clear obligation for States Parties, the obligation to engage non-State actors in the management of intangible heritage amounts to an obligation of means rather than one of results, with the added challenge that the extent and form of participation is not clearly construed. Nevertheless, it is the first time a cultural heritage treaty provision has been dedi cated to the participation of non-State actors in the management of cultural heritage. The inclusion of obligations to engage non-State actors in the identification and management of heritage was not an obstacle for the Intangible Heritage Convention to reach near universal acceptance, with 178 States having become party thereto. According to the Intangible Heritage Convention, States Parties shall also endeavour to ‘adopt a general policy aimed at promoting the function of the intangible cultural heritage in society’, foster ‘the creation or strengthening of institutions for training in the management of the intangible cultural heritage and the transmission of such heritage through forums and spaces intended for the performance or expression thereof ’, and ensure ‘access to the intangible cultural heritage while respecting customary practices governing access to specific aspects of such heritage’, among other safeguarding measures.139 Chapter III of the Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage provides further details not only with regard to the participation of communities, groups, and individuals but also to ‘experts, centres of expertise and research institutes’ and NGOs in the implementation of the Convention.140 States parties are encouraged to establish a directory including non-State actors active in the domains governed by the Convention, as well as networks of non-State actors at the regional and sub-regional levels.141 The Operational Directives also encourage the creation of a consultative body or a coordination mechanism to facilitate the participation of non-State actors.142 A consultative body, composed of twelve members,143 was first established in 2010 by the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (for the 2011 cycle),144 in order

138 Art 15 Intangible Heritage Convention. 139 Art 13(a) and (d)(i)(ii) Intangible Heritage Convention. 140 Chapters III.1. and III.2 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (2008, as amended in 2016). 141 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (2008, as amended in 2016), paras 83 and 86. 142 Ibid, para 80. 143 According to para 27 of the 2014 Operational Directive, they must include ‘six experts qualified in the various fields of the intangible cultural heritage representatives of States Parties non-Members of the Committee and six accredited non-governmental organizations, taking into consideration equitable geographical representation and various domains of intangible cultural heritage’. 144 Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Fifth session, 15–19 November 2010, ‘Item 9 of the Provisional Agenda’, ITH-10–5.COM-CONF.202-9-EN.

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 783 to evaluate the nominations to the Urgent Safeguarding List145 as well as the proposals to the Register of Best Safeguarding Practices146 and requests for international assistance greater than US$25,000. It was reconvened every year until 2014, when it was replaced by an Evaluation Body with similar functions.147 When selecting the accredited NGOs and independent experts to form the consultative body, the Committee considered both geographical representation and the various domains of intangible heritage.148 In order for an NGO to be accredited, it shall ‘cooperate in a spirit of mutual respect with communities, groups, and, where appropriate, individuals that create, practise and transmit intangible cultural heritage’.149 Thus, cooperation among various types of non-State actors with an interest in intangible cultural heritage is also a requirement under the Convention. With regard to raising the public awareness of intangible cultural heritage, which is an obligation for States Parties under article 14 of the Convention, the Operational Directives developed key principles in relation to the relevant non-State actors: obtaining the free, prior, and informed consent from communities, groups, and, where appropriate, individuals concerned to raise awareness about their heritage, as well as their widest possible participation in the relevant awareness-raising actions; respecting customary practices governing access to specific aspects of such heritage, in particular secret and sacred aspects; and ensuring that the communities, groups, and, where appropriate, individuals concerned benefit from those awareness-raising measures.150 They further encourage States Parties to take special care in order not to harm the communities, groups, or individuals concerned, such as by contributing to discrimination, misrepresenting the communities, groups, or individuals concerned as not participating in contemporary life, or supporting unsustainable tourism.151 The Operational Guidelines also provide for the development of teaching material that respects local specificities and languages.152 Finally, they also acknowledge the role of community centres and associations created and managed by communities themselves and of research institutes and cultural institutions in informing the general public about intangible cultural heritage, with the latter entities being encouraged to involve the ‘bearers’ in their work.153 145 See art 17 Intangible Heritage Convention. 146 See ibid, art 18. 147 Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Ninth session, 24–28 November 2014, ‘Item 9 of the Provisional Agenda’, ITH-10–5.COM-CONF.202-9-EN. One noteworthy change in the body’s functions has been the threshold of requests for International Assistance to be considered, which was raised to US$100,000 for the 2017 cycle. 148 Decision 8.COM 9.a of the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage; see also the report of the Consultative Body on its work in 2014 to the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Ninth session, 24–28 November 2014, ITH-14–9.COM-9-EN. 149 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (2008, as amended in 2016), para 91(d). Note that it is the NGO which must request its accreditation to act in an advisory to the Committee, para 97. 150 Ibid, para 101(d). 151 Ibid, para 102. 152 Ibid, para 107(a) and (b). 153 Ibid, paras 108–9, in particular 109(e).

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784 Kristin Hausler With regard to participating in the meetings of the General Assembly of the States Parties, which meets every two years, the rules of procedure are similar to comparable rules as organizations that have entered into mutual representation agreements with UNESCO have a right to participate in the work of the General Assembly. Other non-governmental organizations may again participate, without voting rights, when invited by the Director-General and address the Assembly with the consent of the Chairperson.154 Again, NGOs with recognized competence can attend the meetings of the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage in an advisory capacity.155 In addition, the Committee can invite any private body or person to consult on a particular matter, if they have recognized competence with regard to that matter.156 Finally, the Committee may authorize private bodies or persons to attend any session of the Committee, when they request to do so.157 The Intangible Heritage Convention establishes a fund, in the same manner as the 1954 Hague Convention and the 1970 UNESCO Convention, with contributions from private bodies or individuals also envisaged.158 The participatory approach to the governance of intangible cultural heritage as enshrined by the 2003 Convention presents a number of challenges. The identification of the ‘bearers’ of a particular heritage may be problematic and give rise to conflict, as even within one community views as to the safeguarding of intangible heritage may diverge. Defining the key concept of ‘community’ under the Convention has been the object of debate, with the meaning adopted in 2002 by a group of experts already underlining that ‘individuals can belong to more than one community’.159 Furthermore, identifying the appropriate representative of a community for the purpose of safeguarding intangible heritage can also be problematic.160 Perhaps more critically, the determin ation of what is worthy of safeguarding rests ultimately with States Parties and not the non-State actors which may be the ‘bearers’ of the heritage in question.161 Therefore, while the Intangible Cultural Heritage Convention marked a significant step forward in 154 Rules 2.2. and 7.3, UNESCO (General Assembly of States Parties to the Convention for the Safeguarding of the Intangible Cultural Heritage), Rules of Procedure of the General Assembly of States Parties to the Convention for the Safeguarding of the Intangible Cultural Heritage. 155 Rule 6, UNESCO (Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage), Rules of Procedure of the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage accessed 22 February 2019. The accreditation of NGOs is governed by article 9 of the Intangible Heritage Convention. 156 Art 8(4) Intangible Heritage Convention and Rule 7 UNESCO (Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage), Rules of Procedure of the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage. 157 Ibid, Rule 8(3). The Director-General must in turn invite such person or body, in accordance with the authorization granted by the Committee; see Rule 8(4). 158 Art 25(3)(c)(iii) Intangible Heritage Convention. 159 See Blake, ‘UNESCO’s 2003 Convention on Intangible Cultural Heritage’ (n 133) 61–2, where she underlines that communities are not monolithic or static entities. 160 Ibid, 62. 161 See Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press 2013) 52, citing the Tibetan Opera case as an example of this issue, given that the assertion of China over Tibetan culture may also undermine any Tibetan claim to sovereignty.

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NON-STATE ACTORS AND CULTURAL HERITAGE LAW 785 the participation of non-State actors in cultural heritage governance, it nevertheless did not achieve an equally shared concept of heritage governance between State and nonState actors, largely as a result of the nature of treaty law, a State-driven norm-making process,162 as well as the lack of recourse for non-State actors to contest State decisions in the matter. In addition to the 2003 Convention, UNESCO has also adopted the 2005 Convention on Diversity of Cultural Expressions (Cultural Diversity Convention), which is also concerned with intangible cultural heritage. The Cultural Diversity Convention does not refer to communities but rather to ‘social groups, including persons belonging to minorities and indigenous peoples’.163 Its article 11 provides specifically for the participation of civil society, while article 15 provides for collaborative arrangements between States Parties and non-State actors (i.e. the private sector and non-profit organizations) with regard to enhancing the capacities of developing countries. In terms of its governance, the bodies and their rules of procedures are similar to those of the Intangible Heritage Convention.164 While this treaty focuses again on a segment of culture which depends on the capacities of non-State actors within a particular State, it also builds on the increased non-State participation in cultural heritage governance as asserted in the Intangible Heritage Convention.

6. Concluding Remarks Given the nature of international law, treaty adoption and implementation has been (and continues to be) a process driven by States, with non-State actors being often kept within its margins. However, it is clear that a shift in authority has gradually taken place within cultural heritage law, with non-State actors eventually gaining a seat at the cultural heritage governance table. This is true for the majority of non-State actors, with the exclusion of ANSAs, which can be explained by their existence usually being rooted in their opposition to the State in which they operate. As this chapter demonstrates, the inclusion of non-State actors in cultural heritage treaties and cultural heritage governance has paralleled the development of the legal conceptualization of cultural heritage itself. Earlier understandings of elements of cultural heritage have focused on tangible forms of heritage, with the concept of ‘cultural property’ being adopted in the 1954 Hague Convention. The Hague Convention also referred to objects that represent the ‘cultural heritage of mankind’ and thus not recognizing the vernacular importance of a property but, rather, its significance for all. 162 On the centrality of the State as the primary bearer of international obligations, see Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’ (n 69) 142. 163 Art 7(1) Cultural Diversity Convention. 164 The Cultural Diversity Convention has an Intergovernmental Committee and a Conference of Parties as governing bodies; for the latter’s rules of procedure were adopted by the Conference of Parties at its first session (2007) and amended at its second session (2009).

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786 Kristin Hausler Despite the Hague Convention not considering non-State actors in its approach to ‘cultural property’, it nevertheless provided non-State actors, namely ANSAs, with a number of obligations, without offering them any recourse to assistance in fulfilling them. The World Heritage Convention further focused on those immovable ‘cultural properties’ which bear an ‘outstanding universal value’, only recognizing a site’s association with a community with the later inclusion of cultural landscapes within its scope. The 1970 UNESCO Convention, and to a lesser extent the 1995 UNIDROIT Convention, also focused for their part on combating the illicit trade in cultural objects by placing emphasis on the State. Developments in Indigenous rights law, with the recognition of the principle of free, prior, and informed consent, as well as a shift in international human rights law to consider collective rights, have contributed to the integration of non-State actors, in particular communities and groups, in cultural heritage governance. Disputes over Indigenous sites have led to amendments in the Operational Guidelines to the World Heritage Convention in that sense. Eventually, it is in the treaties themselves that communities and groups have found recognition, with the 2003 Intangible Cultural Heritage Convention first dedicating a provision to the participation of non-State actors in the management of cultural heritage. Of course, a plurality of actors in cultural heritage governance raises a number of questions as to effective and inclusive participation and cooperation, and it is clear that States and non-State actors do not share equal rights and responsibilities in this area. Nevertheless, a move away from a strictly top-down approach to cultural heritage governance is already well under way.

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Chapter 33

Codes of Ethics Manlio Frigo

1. Origin and Role of Ethical Rules and Codes of Conduct in the Field of Cultural Heritage Law The role of ethical rules in the field of art law and international protection of cultural heritage has constantly increased in the last few decades, along with the adoption of a number of international multilateral conventions exclusively or partially devoted to provide regulation in this area. In a broad sense, a code of ethics may be defined as a set of—usually written— fundamental principles, rules, and guidelines based on the values and ethical standards to which the professionals of the relevant sector and/or organization are held. It is noteworthy that, by helping the addressees to carry out their actions in compliance with its core values and ethical standards, the specific function of a code of ethical rules is to provide guidance to those associated with the interested category. This is true both where the ethical rule overlaps with existing law and where no specific rule is in force, playing a complementary normative role. If we look at this phenomenon from the standpoint of its origin, codes of ethics, unlike the rules of law, are the expression of a horizontal relationship between those who conceive the rules and the addressees. In fact, the above rules are spontaneously or quasi-spontaneously created and are horizontally elaborated and oriented, like the selfregulation instruments of people associated or affiliated with the interested category. In this sense, the similarity with the spontaneous development and the horizontal creation process typical of the lex mercatoria in the context of international trade is clear.1 In fact, in both cases the rules proceed from the same subjects to which they are addressed and 1 See Berthold Goldman, Frontières du droit et lex mercatoria (Archives de philosophie du droit 1964) 177.

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788 Manlio Frigo in both cases they are supposed to abide by them, given the degree of compliance required within the relevant professional category. Of course, codes of ethics are mainly aimed at providing ethical rather than legal standards. Not only is their binding effect often absent or debatable, but, unlike the law, the universe of the addressees is considerably reduced; in this sense, whereas law is a general source of binding obligations, ethical codes may be considered as a particular source of non-binding invitations. The above description should not sound misleading, as in the domain of art and cultural heritage law ethical standards may be even more detailed and stricter than legal standards. Far from being contradictory, the above character may help us to understand why the two standards can be mutually combined, providing, as stated above, a set of rules that may complete one another and play, accordingly, a complementary function. The practice of adopting codes and guidelines of ethical rules and principles in the field of art and cultural heritage is quite recent, basically going back to the first half of the twentieth century. The abovementioned ‘horizontal approach’ can be seen from the beginning, starting with the first examples of ethical codes, such as the 1931 Athens Charter for the Restoration of Historic Monuments—adopted at the first International Congress of Architects and Technicians of Historic Museums—or the 1964 Venice Charter for the Conservation and Restoration of Monuments and Sites, adopted by the European Council for Town Planners.2 Ever since these first examples, the task of providing a set of ethically inspired good practices elaborated by (associations of) professionals and addressed to professionals has been clear and would have largely inspired relevant activity in future experiences of the same kind. As to the identification of the sources of production, one can note that the codes of ethics do not share a fully common origin; they may have completely different gener ators, such as international organizations, specialized institutes, museum associations, professional associations, national and international trade associations and/or institutions, and public or private entities. In order to have a concrete idea of the above-mentioned diversification of the sources of production, among the main examples of organizations and associations having significantly contributed to the elaboration and adoption of codes of ethics, one should at least mention the following: ICOM (International Council for Museums), which first adopted in 1986 (and revised in 2004) the Code of Ethics for Museums;3 UNESCO, which adopted the International Code of Ethics for Dealers in

2 The Athens Charter for the Restoration of Historic Monuments was adopted at the First International Congress of Architects and Technicians of Historic Museums, and the International Charter for the Conservation and Restoration of Monuments and Sites was adopted in 1964 by the Second International Congress of Architects and Technicians of Historic Monuments in Venice; see accessed October 2017. The new Athens Charter was adopted by the European Council for Town Planners in 2003; see accessed 23 July 2019. 3 See accessed 23 July 2019.

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Codes of Ethics 789 Cultural Property (2000);4 CINOA (International Confederation of Art and Antique Dealers), which adopted a Code of Ethics (2005);5 AAM (American Alliance of Museums), which elaborated three relevant codes, the Code of Ethics for Museums (1991, amended in 2000), Guidelines on Exhibiting Borrowed Objects (2000) and Guidelines concerning the Unlawful Appropriation of Objects During the Nazi Era (1999, amended in 2001);6 the AAMD (Association of Art Museum Directors), which adopted Guidelines on Loans of Antiquities and Ancient Art (2006), issued the Art Museum and the Restitution of Works Stolen by the Nazis (2007), as well as the (revised) Report of the AAMD Task Force on the Acquisition of Archaeological Material and Ancient Art (2008), the (revised) Code of Ethics for Art Museum Directors (2011), and the Guidelines on the Acquisition of Archaeological Material and Ancient Art (2013);7 EAA (European Association of Archaeologists) which adopted the EEA Code of Practice (1997);8 ICA (International Council on Archives), which adopted the Code of Ethics for Archivists (1996);9 and the Comité Professionnel des Galeries d’Art, which adopted the Code of Ethics for Art Galleries (2016).10 As regards the addressees of the above codes of ethics, they are generally bound to correspond to those belonging to the categories taken into account by any single interested institution—that is, the most important and qualified players in the art market, such as museums, relevant institutions, commercial dealers etc. Even before examining the issue of the legal nature of the codes of ethics and of their effectiveness, it is to be stressed that their role is frequently twofold. On the one hand, ethical codes can inspire market regulation mainly by establishing or by confirming a catalogue of good practices in the field of art and cultural heritage. As we will see in the following paragraphs, this is the case, for example, of the CINOA Code of Ethics (namely articles 1, 3, 4, 5, and 6) and the ICOM Code of Ethics (article 2 on the acquisition of collections, article 3 on return and restitution of cultural objects from an occupied country, article 7 on acknowledgement of international legislation, and article 8 on the professional conduct). In the above cases, the codes of ethics may have a direct and/or an indirect effect of the functioning of the commercial transactions in the art and cultural heritage sector. 4 See accessed 14 December 2017. 5 The Code was first approved by the General Assembly in Florence in 1987, amended in Stockholm on 26 June 1998 and in New York on 11 May 2005: see accessed 23 July 2019. 6 Formerly the American Association of Museums; see accessed 23 July 2019. 7 See accessed 23 July 2019. 8 See accessed 23 July 2019. 9 See the text of the Code of Ethics for Archivists, adopted in Beijing, at accessed 23 July 2019. 10 See the text of the Code at accessed 23 July 2019.

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790 Manlio Frigo On the other hand, they also represent a source of inspiration for the development of law rules, at both national and international level. A good example of the first could be the provisions of the ICOM Code of Ethics, which have been transposed into the domestic law of some European countries.11 Examples at the international level include article 4.4 of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, and article 10 of EU Directive 2014/60 on the Return of Cultural Objects unlawfully removed from the Territory of a Member State, both concerning the exercise of due care and attention when acquiring the object.

2. The Main Contents of the Codes of Ethics and the Related Issues Based on an empirical analysis of the main codes aimed at providing ethical rules and standard customary rules within the art and cultural heritage sector, we can conclude that a great part of the examined sources concern museums’ policies and relevant activities. Despite the heterogeneous character of the above codes of ethics and the disparity of their origin, we can compare the main relevant sources to verify whether the ethical rules provide a complete, or at least homogeneous, regulation. As we will see, among the most frequent aspects taken into consideration by the codes are the acquisition and transfer of items and collections, the origin of items and collections, professional conduct and the governance related issues, de-accessioning policies and procedures, and sanctions in the event of non-compliance with the relevant rules. Each aspect will be separately examined in the following paragraphs.

2.1 Acquisition and Transfer of Items and Collections The policy of acquisition and transfer represents one of the most controversial aspects of art-related international practice; this is particularly, even if not exclusively, the case when we consider museum and art collections but also may be a great concern for other important stakeholders, such as art dealers and auction houses. In this, as in other regards, the ICOM Code of Ethics provides some fundamental contributions. In fact, the basic concept inspiring the ICOM Code of Ethics is that museums maintaining collections hold and preserve them for the benefit of the whole society and for its development. The museums’ collections are a significant public inheritance; as a consequence, in each institution the governing body should adopt and publish a written collections policy addressing the acquisition, care, and use of collections. Furthermore, the policy 11 See ICOM International Observatory on Illicit Traffic in Cultural Goods accessed 23 July 2019, where the example is given of Belgium, Denmark, Estonia, Greece, Italy, Latvia, and Lithuania.

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Codes of Ethics 791 should clarify the position of any objects that will not be catalogued, conserved, or exhibited.12 The approach of the ICOM Code of Ethics with regard to acquisition policies may more clearly be interpreted by referring to the relevant valid title and provenance and due diligence provisions. In this respect, article 2.2 (Valid title) states: ‘No object or specimen should be acquired by purchase, gift, loan, bequest, or exchange unless the acquiring museum is satisfied that a valid title is held. Evidence of lawful ownership in a country is not necessarily valid title.’ Indeed this last sentence is a significant aspect of the ICOM approach, whereby mere ‘lawful ownership’ in a country (presumably the country where the object is or was located at the time of the purchase) does not by itself meet the conditions for evidence of valid title. And, in fact, the following article 2.3 (Provenance and Due Diligence) significantly adds that ‘[e]very effort must be made before acquisition to ensure that any object or specimen offered for purchase, gift, loan, bequest, or exchange has not been illegally obtained in or exported from, its country of origin or any intermediate country in which it might have been owned legally (including the museum’s own country). Due diligence in this regard should establish the full history of the item from discovery or production.’ From a different standpoint, article 2 of the CINOA’s Ethical Code of conduct states that the professional antique dealer and trader in works of art agrees ‘[to] respect the laws and regulations applicable in his [sic] country on the protection of threatened or endangered species. He [sic] therefore agrees not to trade in objects that infringe the Convention on International Trade in Endangered Species.’ More generally, article 3 provides some guidelines by requiring the professional ‘to take all measures necessary to detect stolen objects, and refer, among other resources, to the registers and the databases that are published for this effect and to use them judiciously’. Finally, article 4 complete the set of provisions concerning the purchase policy, providing that ‘[t]he professional should under no circumstances participate in transactions which to the best of their knowledge can be linked to money-laundering operations’. The sector of art galleries is apparently less worried about the possible drawbacks connected to the relations with the sellers of artworks. In fact, the issue of a purchase from private individuals is only dealt with in article 3.1 of the Code of Ethics for Art Galleries, which requests members of the professional committee of art galleries to be ‘vigilant regarding the origin of the works that they acquire or accept on consignment. To do so, they must obtain all of the customary guarantees.’ The 2011 Code of Ethics for Art Museum Directors13 requires directors to ‘ensure that best efforts are made to determine the ownership history of a work of art considered for acquisition’. The (revised) Report of the AAMD Task Force on the Acquisition of Archaeological Materials and Ancient Art, issued on 3 June 2008 by the AAMD, goes a bit further. In fact, it explicitly recognizes the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property as providing the threshold date for the application of more rigorous 12 See art 2.1 of the ICOM Code of Ethics.

13 See n 7.

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792 Manlio Frigo standards to the museums’ acquisitions, helping create a uniform set of expectations for museums as well as sellers and donors. The report provides a significant indication to the main categories of professionals involved, stressing that ‘the 1970 UNESCO Convention helps create a unified set of expectations for museums, sellers and donors’. The report as a whole aims at providing a specific framework for members to evaluate the circumstances under which a work that does not have a complete ownership history dating back to 1970 may be considered for acquisition. The specific concern to protect the integrity of art collections is evident in UNESCO’s International Code of Ethics for Dealers in Cultural Property; in fact, its article 6 states that ‘[t]raders in cultural property will not dismember or sell separately parts of one complete item of cultural property’.14 Finally, it is noteworthy that, according to the AAM Code of Ethics for Museums, museums must act not only legally but also ethically. ‘This Code of Ethics for Museums, therefore, outlines ethical standards that frequently exceed legal minimums.’ This statement confirms the attitude that ethical rules go beyond what is strictly prescribed by the relevant applicable law provisions. With this in mind, when we read in the same Code that ‘[a]cquisition, disposal, and loan activities are conducted in a manner that respects the protection and preservation of natural and cultural resources and discourages illicit trade in such materials’, and that ‘competing claims of ownership that may be asserted in connection with objects in its custody should be handled openly, seriously, responsively and with respect for the dignity of all parties involved’, we understand more clearly that the aim of the above standards is to strengthen, and to corroborate, the scope of application of the applicable law provisions, to the extent possible.

2.2 Origin of Items and Collections The idea of preserving the links with countries, territories, and human communities of origin is ordinarily shared by many of the different professional codes of ethics as a common goal to be ensured in order to maintain the integrity of the relevant of cultural heritage. With specific regard to tangible goods, the consideration of this issue naturally implies the need to take a position concerning the classic problem of return and restitution of cultural property. By way of introduction to this subject, it is to be noted that the distinction between the case of goods stolen from the legitimate owner—which would entail a restitution—and the case of illicit exportation (or transfer) from the country of origin—which would imply a return—is commonly accepted by a number of sources of international law.15 This being said, with reference to the rules of conduct, it has to be observed that article 6.1 of the ICOM Code of Ethics, significantly, states: ‘Museums 14 See accessed 23 July 2019. 15 This distinction is typically present in the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects; article 3 (which includes the notion of theft and therefore of an object eligible for restitution: ‘a cultural object which has been unlawfully excavated or lawfully excavated but unlawfully retained’), deals with restitution and article 5 deals with return.

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Codes of Ethics 793 should promote the sharing of knowledge, documentation and collections with museums and cultural organizations in the countries and the committees of origin. The possibility of developing partnerships with museums in countries or areas that have lost a significant part of their heritage should be explored.’ In this regard, it is interesting to observe that the Code correctly makes a reference to the above-mentioned notions of return and restitution as employed by the 1995 UNIDROIT Convention. In fact, article 6.2 of the Code (Return of Cultural Property) states: ‘Museums should be prepared to initiate dialogues for the return of cultural property to a country or people of origin. This should be undertaken in an impartial manner, based on scientific, professional and humanitarian principles, as well as applicable local, national and inter national legislation, in preference to action at a governmental or political level.’ On the other hand, article 6.3 (Restitution of Cultural Property) states that ‘[w]hen a country or people of origin seeks the restitution of an object or specimen that can be determined to have been exported or otherwise transferred in violation of the principles of inter national and national conventions, and shown to be part of that country’s or people’s cultural or natural heritage, the museum concerned should, if legally free to do so, take prompt and responsible steps to cooperate in its return’. The ICOM Code of Ethics completes the set of provisions dedicated to the origin of cultural goods and related issues by addressing a different, but not secondary, issue. Article 6.4 of the Code (Cultural objects from an occupied country) refers itself to the international provisions of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict by maintaining that ‘[m]useums should abstain from purchasing or acquiring cultural objects from an occupied territory and respect fully all laws and conventions that regulate the import, export and transfer of ownership of cultural or natural materials’. Looking at the problem from the standpoint of museums, the AAM Guidelines concerning the Unlawful Appropriation of Objects During the Nazi Era are quite clear, stressing in article 4 that [i]t is the position of the AAM that museums should address claims of ownership asserted in connection with objects in their custody openly, seriously, responsively and with respect for the dignity of all parties involved. Each claim should be con sidered on its own merits. Museums should review promptly and thoroughly a claim that an object in its collection was unlawfully appropriated during the Nazi era without subsequent restitution. In addition to conducting their own research, museums should request evidence of ownership from the claimant in order to assist in determining the provenance of the object. If a museum determines that an object of its collection was unlawfully appropriated during the Nazi era without subsequent restitution, the museum should seek to resolve the matter with the claimant in an equitable, appropriate, and mutually agreeable manner.

The problem of the origin of art objects and collections, and of the good practices and standards required of the stakeholders in the art market in this respect, could not be effectively dealt with without taking into consideration the position of the professional

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794 Manlio Frigo art dealers. In this respect, the CINOA Code of Ethics states that the affiliated members of CINOA who happen to possess an object about which there are serious suspicions that it was illegally imported, and of which the country of origin demands that it is returned within a reasonable amount of time, must do everything possible according to the current laws to cooperate in returning the object to its country of origin. In the case of a purchase in good faith by the antique dealer, an amicable refund may be agreed to. It is to be added that the category of art dealer adopted by the CINOA—that is, the addressees of the above provision—is quite extensively defined by the CINOA Charter, not being limited to art merchants.16 Conversely, and vaguely, the Code of Ethics for Art Galleries17 requests gallery owners to ‘obtain all of the guarantees required regarding the authenticity of the works he [sic] sells. For second market works, he [sic] must also attempt to determine their origin.’ With a similar vague and flexible approach, in more limited and specific sector, the Code of Ethics for Archivists18 states at article 2 that ‘[a]rchivists should appraise, select and maintain archival material in its historical, legal and administrative context, thus retaining the principle of provenance, preserving and making evident the original relationship of documents’.

2.3 Professional Conduct The subject of the professional conduct is taken into consideration by the various codes of ethics under different standpoints, in accordance with the specific position and function of the addressees. Interestingly, the 2011 AAMD Code of Ethics for Art Museum Directors requires museum directors to respect a number of ethical rules of different nature. Not only should the director ‘act with integrity and in accordance with the highest ethical principles’ and in his/her professional integrity ‘set a standard for the staff ’, but also he or she ‘must not use his or her influence or position for personal gain’, ‘must not function as a commercial dealer in works of art nor be party for the recommendation for purchase by museums or collectors of works of art in which the director has any undisclosed financial interest’, and ‘if the director collects art, extraordinary discretion is required to assure that no conflict of interest arises between the director’s personal collecting activity and the concerns of the museum’. Finally, ‘if there is a perception of a conflict, the museum’s governing board must be granted the first option to acquire the work or works in question for the museum’. 16 Pursuant to the CINOA Charter, ‘A fine art dealer, member of a national association affiliated to CINOA, is not only a merchant but also a consultant, who is required to respect the rules of her/his association. S/He serves a cultural mission by distributing objects of art which s/he identifies through experience. The relations with her/his clientele are based on confidence and mutual trust. S/He is obliged to give her/his clients correct information concerning the date, the artist and the state of preservation of the objects s/he sells.’ 17 See n 10. 18 See n 9.

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Codes of Ethics 795 Unlike this first example, the ICOM Code of Ethics is concerned about the possible issues of ethical conflict, taking a slightly different approach. In particular, article 1.16 states: ‘The governing body should never require museum personnel to act in a way that could be considered to conflict with the provisions of this Code of Ethics, or any national law or specialist code of ethics.’ More specifically, article 7.1 (National and Local Legislation) maintains: ‘Museums should conform to all national and local laws and respect the legislation of other states as they affect their operation.’ Even more significantly, article 7.2 (International Legislation) states: Museum policy should acknowledge the following international legislation which is taken as a standard in interpreting the ICOM Code of Ethics:

UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention, First Protocol 1954 and Second Protocol, 1999); UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970); Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973); UN Convention on Biological Diversity (1992); UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects (1995); UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001); UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003). The ICOM Code of Ethics, at article 8 (Professional Conduct), pursues the same approach, providing that museums should operate in a professional manner and that members of the museum profession should observe accepted standards and laws and uphold the dignity and honour of their profession. They should safeguard the public against illegal or unethical professional conduct. Every opportunity should be used to inform and educate the public about the aims, purposes, and aspirations of the profession to develop a better public understanding of the contribution of museums to society. Professional conduct is explicitly taken into account by article 8, which provides an almost complete regulation by way of the following set of rules: 8.1 (Familiarity with Relevant Legislation) Every member of the museum profession should be conversant with relevant international, national and local legislation and the conditions of their employment. They should avoid situations that could be construed as improper conduct. 8.2 (Professional Responsibility) Members of the museum profession have an obligation to follow the policies and procedures of their employing institution. However, they may properly object to practices that are perceived to be damaging to a museum or the profession and matters of professional ethics.

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796 Manlio Frigo 8.3 (Professional Conduct) Loyalty to colleagues and to the employing museum is an important professional responsibility and must be based on allegiance to fundamental ethical principles applicable to the profession as a whole. They should comply with the terms of the ICOM Code of Ethics and be aware of any other codes or policies relevant to the museum work. 8.4 (Academic and Scientific Responsibilities) Members of the museum profession should promote the investigation, preservation and use of information inherent in the collections. They should, therefore, refrain from any activity or circumstance that might result in the loss of such academic and scientific data. 8.5 (The Illicit Marker) Members of the museum profession should not support the illicit traffic or market in natural and cultural property, directly or indirectly.

The above set of rules is quite comprehensive in depicting the professional conduct expected of members of the museum profession. Nevertheless, there is a contradiction between the non-binding character of the Code as a whole and its possibly exceeding the ordinary precision expected in a soft-law provision. This is particularly the case of article 8.1, which appears to envisage an excessively strict duty for the members of the museum profession, if compared with the other relevant provisions in the Code. In fact, article 8.1 provides for a presumption of knowledge not only of international, national, and local legislation concerning the protection and the legal regime of cultural property but also of the ‘conditions of their employment’, an expression which appears to evoke the knowledge of the concrete application (that is, of the relevant case law). One should also consider that the codes of ethics sometimes maintain a distinction between rules of conduct addressed to society and other rules more strictly concerning professional conduct, with reference to those that must be complied with when relating to other professionals. This is the case of the European Association of Archaeologists (EAA) Code of Practices, which includes in the former category the reference to the rule provided by the 1970 UNESCO Convention regarding any form of activity relating to the trade of objects of archaeological interest or antiquities, while in the latter it includes research requirements and employment standards recognized by their professional peers.19 With specific regard to this second issue, the concern is to offer the assurance of 19 See accessed 23 July 2019; the 1997 European Association of Archaeologists Code of Practices (revised 19 September 2009), at arts 1.1 to 1.8, deals with ‘Archaeologists and Society’, and at art 2.1 to 2.10 with ‘Archaeologists and Profession’. Interestingly, art 1.6 provides that ‘[a]rchaeologists will not engage in, or allow their names to be associated with, any form of activity related to the illicit trade in antiquities and works of art, covered by the 1970 Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property’; art 1.7 states: ‘Archaeologists will not engage in, or allow their names to be associated with. any activity that impacts the archaeological heritage which is carried out for commercial profit which derives directly from or exploit the archaeological heritage itself ’. Finally, pursuant to art 1.8: ‘It is the responsibility of archaeologists to draw the attention of the competent authorities to threats to the archaeological heri tage, including the plundering of sites and monuments and illicit trade in antiquities, and to use all the means at their disposal to ensure that action is taken in such cases by the competent authorities.’ On the other hand, art 2.1 states: ‘Archaeologists will carry out their work to the highest standards recognized by their professional peers.’

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Codes of Ethics 797 the respect of the international provisions concerning the prohibition of any form of discrimination, with regard to the conditions of employment, as may be clearly seen in article 2.9 and 2.10 of the Code.20 Based on the above we may reach a first conclusion—which will be elaborated in the following pages—that the ambition (if not the attitude) of the codes of conduct is to offer standard models of conduct and to act as a reminder of certain international, and even domestic, laws in cases where they may not be applicable as a rule of law. If we look at the professional conduct issue from the viewpoint of the art dealers, art icle 6 of the CINOA’s Code of Ethics imposes the duty for each one of the members to check the authenticity of the objects they possess, while articles 3, 4, and 5 provide other specific rules concerning the affiliated members’ conduct concerning compliance with the laws protecting endangered species, such as the duty not to trade in objects manufactured from materials that are protected under the relevant international conventions and not to take part to transactions that can result in money-laundering operations.21

2.4 De-accessioning Policies and Procedures In general terms, de-accession refers to a voluntary sale of items aimed at obtaining funds for the benefit of the museum or similar institution which owns the relevant items.22 From a legal point of view, the problem of de-accessioning may either involve the rules of equity related to charitable institutions—the main arrangement with regard to museums and similar institutions in most common law countries—or the norms governing public properties, in most civil law countries, where museums are frequently subject to public law rules concerning the ownership of works of art and goods of cultural interest. The most frequent reasons leading to de-accession are connected to the need to renew collections in cases where the works of art no longer fit with the mission of the institution; to address conservation or storage constraints; or to comply with legal or ethical obligations. This last-mentioned reason is of interest in our analysis, which aims at verifying the role played by the codes of ethics under this respect. 20 See art 2.9 of the above Code of Practices, which states: ‘In recruiting staff for projects, archaeologists shall not practice any form of discrimination based on sex, religion, age, race, disability or sexual orientation’, while pursuant to art 2.10, ‘The management of all projects must respect national standards relating to conditions of employment and safety.’ 21 Very seldom do codes of ethics provide for types of responsibility regarding living and non-living species with which members work, which are purely ethical and must be accounted for on a solely metajuridical level. See, for instance, the American Anthropological Association Code of Ethics of June 1998 at accessed 23 July 2019, which at art III.A (Responsibility to people and animals with whom anthropological researchers work and whose lives and cultures they study) states: ‘Anthropological researchers have primary ethical obligations to the people, species and materials they study and to the people with whom they work.’ 22 See Robert K. Paterson, ‘The Art of the Sale: Museums and Deaccessioning’ in Valentina Vadi and Hildegard E. G. S. Schneider (eds), Art, Cultural Heritage and the Market: Ethical and Legal Issues (Springer 2014) 284.

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798 Manlio Frigo Before illustrating the contents of the main codes of ethics in this regard, a preliminary distinction must be made. In fact, in a number of cases museums have been asked to return artworks or items of cultural interest to the dispossessed owner or to the country of origin. In such cases, compliance with the ethical rules established by a code of conduct and concerning de-accessioning, even if binding on all the professionals of the concerned category—as would be the case with the ICOM Code of Ethics for Museums belonging to ICOM—would not always per se satisfy the conditions imposed by the law. To refer but one example, this was typically the case of the Māori tattooed heads held by the French Museum of Rouen since 1875 and returned to the Te Papa Tongarewa Museum of Wellington, New Zealand in 2011 only after the adoption of a special bill by the Senate and the French National Assembly in 2010. In fact, even though the Rouen Museum had proved to be very proactive in backing the request for return of the preserved heads, the main obstacle was the legal status of those human remains as an inalienable part of the French public domain. In such a situation—and in many similar cases—the return was only possible after the adoption of a special de-accessioning law.23 In all other cases, de-accessioning rules contained in the relevant codes of ethics are applicable as long as the museum has legal powers permitting disposal or the original acquisition was not subject to mandatory restrictions as to the disposal of the items. Some of the most complete provisions feature in the ICOM Code of Ethics for Museums, which provides that the removal of an object or specimen from a museum collection must only be undertaken with a full understanding of the significance of the item, including any loss of public trust that might result from such action.24 Furthermore, each museum should have a policy that defines authorized methods for permanently removing an object from the collections through donation, transfer, exchange, sale, repatriation, or destruction and that allows the transfer of unrestricted title to a receiving agency.25 By stressing that the museum collections are held in public trust, the Code also states that money or compensation received from the de-accessioning of objects should exclusively be used for the benefit of the collection and usually for acquisition for that same collection.26 Along the same lines, the AAM Code of Ethics for Museums specifically provides that disposal of collections through sale, trade, or research activities is solely for the advancement of the museum’s mission. Proceeds from the sale of non-living collections are to be used consistently with the established standards of the museum’s

23 See Manlio Frigo, ‘Circulation des biens culturels, détermination de la loi applicable et méthodes de règlement des litiges’ (2015) 375 Recueil des Cours de l’Académie de Droit International 391 ff. See also for similar cases of return James Nafziger et al. (eds), Cultural Law: International, Comparative and Indigenous (Cambridge University Press 2010) 726. The same goes, in the UK experience, for the Human Tissue Act 2004, which enabled some returns to the Tasmanian Aboriginal community in 2006 of ancestral remains from the British Museum; see Bernice L. Murphy, ‘Charting the Ethics Landscape for Museums in a Changing World’ in Bernice L. Murphy (ed), Museums, Ethics and Cultural Heritage (Routledge 2016) 33. 24 See ICOM Code of Ethics for Museums, art 2.13. 25 See ibid, art 2.15. 26 See ibid, art 2.16.

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Codes of Ethics 799 discipline, but in no event shall they be used for anything other than acquisition or direct care of collections.27 The AAMD Policy on De-accessioning is particularly detailed as to the criteria for de-accessioning and disposal (s II) and quite severe as to the sanctions in the event an AAMD member or museum violates one or more of the provisions of the policy (s VIII).28

2.5 Sanctions When taking into consideration the legal nature of the codes of ethics, it is not surprising that most commentators (correctly) draw the attention to their non-binding character.29 As a matter of fact, the non-compliance of art law and museum professionals with the relevant ethical rules certainly represents a concrete issue. The violation of a code of ethics represents a violation of the standard rules to which the professionals and/or the members of the relevant organization or association are subject. Nevertheless, adequate sanctions for such a violation are very rarely provided for by the examined codes of ethics or are vague. This has led some commentators to claim that the primary function of the codes of conduct is largely, if not exclusively, pedagogic.30 27 See AAM Code of Ethics for Museums, 1991 (amended 2000) accessed 23 July 2019. 28 See AAMD Policy on De-accessioning, 9 June 2010 (amended 2015) accessed 23 July 2019. The primary reasons and criteria for de-accessioning are contemplated in s II, and include: A. The work is poor of quality and lacks value for exhibition or study purposes. B. The work is a duplicate that has no value as part of a series. C. The museum’s possession of the work may not be consistent with applicable law, e.g. the work may have been stolen or illegally imported in violation of applicable laws of the jurisdiction in which the museum is located or the work may be subject to other legal claims. D. The authenticity or attribution of the work is determined to be false or fraudulent and the object lacks sufficient aesthetic merit or art historical importance to warrant retention. In disposing of or retaining a presumed forgery, the museum shall consider all related ethical issues including the consequences of returning the work to the market. E. The physical condition of the work is so poor that restoration is not practicable or would compromise the work’s integrity or the artist’s intent. Works damaged beyond reasonable repair that are not of use for study or teaching purposes may be destroyed. F. The work is no longer consistent with the mission or collecting goals of the museum. The Board of Trustees or governing body of the museum must exercise great care in revising a museum’s mission or reformulating collecting goals. G. The work is being sold as part of the museum’s effort to refine and improve its collections, in keeping with the collecting goals reviewed and approved by the museum’s Board of Trustees or governing body. H. The museum is unable to care adequately for the work because of the work’s particular requirements for storage or display or its continuing need for special treatment. 29 On the functions and on the new directions of codes of ethics for museums and other stakeholders in the art world, see Gary Edson (ed), Museum Ethics (Routledge 1997); Janet Marstine (ed), Routledge Companion to Museum Ethics: Redefining Ethics for the Twenty-First Century Museum (Routledge 2011); Alexandra Bounia, ‘Codes of Ethics and Museum Research’ (2014) 12(1) Journal of Conservation and Museum Studies 1. 30 See Patrick J. O’Keefe, ‘Codes of Ethics: Forms and Functions in Cultural Heritage’ (1998) 7 International Journal of Cultural Property 32.

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800 Manlio Frigo In order to evaluate the effectiveness of the codes of ethics in this sector, one should, however, note that a concrete measure that could be taken in case of violation would be the suspension of the association or the loss of an affiliated member’s status. Similar sanctions are seldom provided for, and even the relevant procedures are far from being indicated. Among the less-vague codes on this issue one can count the UNESCO Code of Ethics for Dealers in Cultural Property, whose article 8 states: ‘Violations of this Code of Ethics will be rigorously investigated by [a body to be nominated by participating dealers].’ A person aggrieved by the failure of a trader to adhere to the principles of this Code of Ethics may lay a complaint before that body, which shall investigate that complaint. Results of the complaint and the principles applied will be made public.31 An exception to the above-mentioned general approach is represented by the case of museums. In fact, the ICOM Code of Ethics expressly refers to article 4 of the ICOM’s statute concerning termination of membership. Pursuant to article 4 (iii) of the Statute, ‘ICOM membership may be voluntarily withdrawn or revoked by a decision of the Executive Board for one of the following reasons . . . (iii) Infringement of ICOM Code of Ethics for Museums’.32 On the other hand, the Art Dealers Association of America (ADAA) Code of Ethics, after stressing the importance of protecting the reputation of the association and asking members to respond receptively and cooperatively to good faith concerns raised by other members with respect to works of art that are being offered for sale, even without establishing a precise procedure, provides the possibility of adopting serious sanctions. In fact, pursuant to section B of article VIII: Claims that a member has acted in violation of these guidelines should be made in writing to the Executive Director, who will cause each such claim to be investigated and will proceed in accordance with such rules as have been adopted by the Board of Directors. Violation of any provision of this Code may be grounds for censure, suspension or expulsion from the ADAA, or such other penalty as the ADAA, acting through its Board of Directors, may deem to be appropriate.33

Even more severely, the AAMD Policy on De-accessioning provides some sanctions for the case of violation of one or more of the provisions of the AAMD policy. In such a case, pursuant to article VIII, the member may be subject to censure, suspension, and/or expulsion; and the museum may be subject to censure and/or sanctions in accordance with the relevant provisions of the code of ethics of the AAMD, which have been amended consistent with the following: Infractions by any art museum may expose that institution to censure and/or sanctions, as determined by the Board of Trustees of the AAMD (the 31 See accessed 23 July 2019. 32 See art VIII—Enforcement accessed 23 July 2019. 33 See accessed 23 July 2019.

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Codes of Ethics 801 ‘Board’), that may, in the case of sanctions, include, without limitation, suspension of loans and shared exhibitions between the sanctioned museum and museums of which the AAMD members are directors.

Interestingly, the document is quite detailed as to the relevant procedure should such a violation occur. Article VIII specifies: Prior to censuring or recommending suspension or expulsion of a member or censuring or issuing any sanction against an art museum, the Board shall provide to the director or museum in question the opportunity to be heard and to explain the reason for the actions considered for censure, suspension, expulsion, or sanction; such presentation to be by the affected director unless otherwise determined by the Board or, in the case of a museum, the director or any member of the board of trust ees or governing board of the museum, as determined by the museum with the concurrence of the Board. If the Board determines to censure or recommend suspension or expulsion of a member or to censure or sanction a museum, the Board shall, contemporaneously with the issuance of a censure or sanctions or the recommendation of suspension or expulsion, determine and advise the affected director or museum of the process that may be followed, as the case may require, to allow the censure to be rescinded or modified, the suspension to be lifted, the expulsion to not bar a subsequent application for admission or the sanction to be lifted.34

It is to be added that, from this standpoint, the ethical rules addressed to art dealers are—at least apparently—less strict than those directed to museums. A clear example may be found in article 8 of the UNESCO International Code of Ethics for Dealers in Cultural Property (see earlier in this chapter), which states ‘only’ that violations will be rigorously investigated and that the results will be made public.35 It is certainly true that the above provision is less striking, not only because no automatic expulsion or suspension is provided for but also because no specific sanction is mentioned. Nevertheless, as a general remark, one should not underestimate the effects of the ‘publicity sanction’ as a strong deterrent in such a small world as the art and cultural property international milieu.

3. The Interaction between Codes of Ethics and International and Domestic Law Rules If we try to classify the codes of ethics and their provisions, we may conclude that they lack the force of the binding rules of law and should be included instead in the category 34 See AAMD Policy on De-accessioning, art VIII. 35 See accessed 23 July 2019.

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802 Manlio Frigo of soft-law provisions. This is very likely a correct qualification, even though we should add that there are cases where the ethical codes are binding at least for those who belong to the association or the category concerned, as well as cases where they are not binding at all. In any case, we may conclude that, even though they could hardly be included among the sources of law, they are not without legal importance.36 In the last decades, particularly at the international level, a proliferation of multilateral international conventions has produced an unprecedented body of law concerning the protection and the circulation of goods of cultural importance, not only for the individual State but also for the international community as a whole. An articulated system of legal rules concerning the protection of cultural property has been created over the years covering different sectors of main concern and includes the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects; the Paris 2001 Convention on the Protection of the Underwater Cultural Heritage; the 2003 UNESCO Convention to Safeguard Intangible Cultural Heritage; and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. The above conventions combine with applicable national statutes on the subject matter, as well as with some EU secondary law provisions, such as Regulation 116/2009 of the Export of Cultural Goods, and Directive 2014/60 on the Return of Cultural Objects unlawfully removed from the Territory of a Member State. In addition to this proliferation of law rules, there is a parallel production of standards, ethical codes, and rules of conduct that have a significant influence on both the interpretation and application of the above rules and on market regulation. In this respect, by way of a general clarification, the codes of ethics are commonly (and obviously) aimed at providing ethical, not legal, standards. Moreover, they concern professionals in general, which is why—as stated above—they appear to lack the binding effect of law and are necessarily addressed to a limited domain. In other words, whereas law is a general source of binding duties, ethical codes are a particular source of non-binding invitations. As to their contents, it is to be added that, particularly in this domain, ethical standards may be much more detailed and even stricter than legal standards. Thus, the two standards provide a set of rules that complement one another and aim at creating complete—if not homogeneous—regulation. A clear interaction between ethical codes and international law rules may be seen when we consider that ethical codes have the capability of imposing obligations and, as long as they are continuously used as a benchmark in the domain of operations of 36 See Evelien Campfens, ‘Alternative Dispute Resolution in Restitution Claims and the Binding Expert Opinion Procedure of the Dutch Restitutions Committee’ in Vadi and Schneider, Art, Cultural Heritage and the Market (n 22) 70.

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Codes of Ethics 803 the relevant professional categories, they can be regarded as uses comparable to those belonging to international trade. An example of the above potential effect is given, on the issue of restitution and return, by the ICOM Code of Ethics, whose article 7.2 explicitly refers to the obligation to respect the relevant provisions contained in both the 1970 UNESCO Convention and the 1995 UNIDROIT Convention—the two most important international conventions concerning the fight against the illicit trafficking of cultural objects. As we will discuss in Section 4, this is a significant contribution to the creation of a set of shared principles in this domain, with specific regard to the progressive general acceptance of the ‘1970 watershed’ as a reference date commonly considered as to the admission of restitution or return claims concerning stolen or illegally exported objects.37 On the other hand, the subject matter of the ethical rules concerns various issues, such as the acquisition and/or transfer of goods, the origin of collections, the professional conduct of the members of the association, and so on. Examination of the contents of the relevant rules reveals that they are frequently drawn from the norms of the most important conventions to have introduced rules of conduct concerning the circulation of cultural property and, indeed, are sometimes identical. As we will see in the next section, this is typically the case of the norms provided by articles 3 and 5 of the 1995 UNIDROIT Convention and of the ethical rules provided for by article 6 of the ICOM Code of Ethics concerning the origin, return, and restitution of collections. In both cases, a code of self-regulation addressed to the field’s professionals and containing clear norms can supplement or even take the place of binding rules contained in international conventions that certain States do not want to, or cannot, ratify or punctually enforce.

4. Codes of Ethics as Art Market Regulation Instruments The principles and norms contained in the codes of ethics aim, as we have seen, at defining the self-regulation standards of the addressees’ professional conduct. This implies, almost by definition, that these ethical rules are incomplete, as they address from time to time and in each case only those who carry out activities and act as professionals of the 37 See Manlio Frigo, ‘Ethical Rules and Codes of Honor Related to Museum Activities: A Complementary Support to the Private International Law Approach Concerning the Circulation of Cultural Property’ (2009) 16 International Journal of Cultural Property 49; in accordance with this view, see Campfens, ‘Alternative Dispute Resolution’ (n 36) 71, fn 43, who quotes German and a Swiss court decisions where the 1970 watershed was applied as ‘emerging public policy’: Allgemeine Versicherungsgesellschaft v EK (‘The Nigerian Bronze Case’) BGHZ 59, 82 (1972) 86–7, and L. v Indictment Chamber of the Canton of Geneva (First Public Law Division, 1 April 1997).

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804 Manlio Frigo field represented—in this instance, by private and public institutions that run museums and/or traders like antique dealers, art merchants, and so forth. But what appears as a weakness in the ethical rules may be turned into a point of strength, at least in the presence of certain factors or conditions. In fact, it is not uncommonly the case that international conventions create rules incapable of influencing market function when they encounter serious obstacles to their effectiveness due to States’ attitudes. The 1995 UNIDROIT Convention offers a good example of this inconvenience. This Convention actually encounters some difficulties caused by some important States refusing to join the Convention and the lack of enthusiasm among other import ant States within the art market who have signed but not ratified the Convention. This appears to be the result of the mistrust caused by certain rules of the Convention, namely those concerning the elimination of the general rule granting ownership to bona fide possessors (possession vaut titre) as to the transfer of ownership of cultural property; the inversion of the burden of proof regarding the good faith possessions of (cultural) goods; and the obligation to return to the legitimate owner, notwithstanding the purchaser’s good faith.38 In particular, article 4.1 of the 1995 UNIDROIT Convention states that the possessor of a stolen cultural object being under the obligation to return the object to the legitim ate owner shall be entitled to payment of a fair and reasonable compensation, under the condition that he/she proves not to have been aware of the illicit provenance of the object and can prove to have exercised due diligence when acquiring the object. The importance of the concept of ‘due diligence’ is even more evident in article 4.4 of the Convention, which specifies that, 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.39

It is to be added that the same concepts—and even the same wording—are found in article 10 of EU Directive 2014/60 on the Return of Cultural Objects unlawfully removed from the Territory of a Member State, which was clearly modelled on the 1995 UNIDROIT Convention. It is clear that due diligence, which is a core concept in both the Convention and the Directive, is different from the concept of good faith but is functional to the goal of replacing the general rule granting ownership to bona fide possessors with a special rule aimed at simplifying the task of return or restitution of cultural property of illicit 38 See arts 3–5 of the 1995 UNIDROIT Convention. 39 See arts 4.1 and 4.4 of the 1995 UNIDROIT Convention.

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Codes of Ethics 805 rovenance. It is also clear that the test about the exercise of due diligence of the p purchaser will be carried out more easily by the seised court if due diligence is characterized in more precise terms. In this respect, the fact that some among the most important codes of e thics adopted by the main organizations and associations involved in the art market provide specific provisions on due diligence is of great help in supporting, integrating, and completing the above-mentioned law provisions. In a broader sense, it is to be added that art and cultural property transactions are more and more influenced—at both domestic and international level—by standard rules expressed by the codes of ethics issued by all the main stakeholders in this field. Museums, museum directors, art dealers, professional associations, and professionals of different kind potentially involved in the cultural arena are today requested to comply with rules of conduct playing, even beyond their complementary function to rules of law, the role of art market regulation instruments.

5. Concluding Remarks Even if not providing complete regulation of all aspects and issues related to the governance of the art market, the existing codes of ethics not only are sufficiently representative of the main institutions, associations, and sectoral professional categories involved but also deal with the most important related issues. This is notably the case with matters concerning the policies of acquisition and de-accessioning, the provenance of artworks and objects of cultural interest, the standards of professional conduct, and cases of restitution or return of cultural objects stolen or illicitly exported. Ethical rules, as expressed in the main codes examined as relevant to art and cultural property issues, are not and could not be conceived as having an impact and effect similar to law rules. They are called on, nevertheless, to play a complementary, not secondary, role. Although not decisive in disputes related to recovery claims, or to loans of artworks or items of archaeological, historical, or archival interest, the proof of the compliance or of the violation of the ethical rules in favour or at the expense of the professionals involved in such transactions may effectively play an important role. Two main kinds of effects may be produced by codes of ethics as instruments of art market regulation. These rules can produce a ‘direct effect’, particularly where the code or statute of the association or institute concerned provides sanctions in case of noncompliance leading to the loss of membership in the relevant category. As we have seen, however, this kind of sanction is not commonly provided for by the main codes of ethics in this domain.40 Furthermore, the ‘direct effect’ should be also limited to cases where

40 See para 2.5.

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806 Manlio Frigo the codes of ethics must be respected by the affiliated members and punctually applied by the governing bodies, which is frequently not the case. To this first effect a second and ‘indirect’ effect should be added, which takes place whenever said rules and standards of conduct are referred to or each time the compliance to the same rules is considered as a factual element in order to evaluate the conduct of the subjects concerned. Furthermore, it should be added that, despite their general lack of binding force, it is not infrequently the case that ethical codes include more detailed and even stricter rules of conduct, particularly concerning the required degree of diligence, than those provided by the law.41 In such cases the hortatory effect of similar provisions would suggest that appropriate conduct by the professional is, at the least, expected. The rules of conduct—at least insofar as they are expressed by the codes of ethics merely inviting addressees to comply with standards of conduct—are not only are nonbinding but also not always observed by the addressees. This is not surprising, the same being true for a number of hard law provisions of international and domestic law. Unless one can determine that such a conduct becomes the general rule, this is a physiological phenomenon which cannot be interpreted as a sign of the non-existence of the provision of law itself. Furthermore, it should be stressed that ethical rules, even though they sometimes establish higher standards of professional conduct than the law, are meant to complement national and international legislative measures in the relevant sector, not to substitute or supersede existing law provisions. Accordingly, the role they are called to play is rather to fill gaps and to deal with aspects not directly and unequivocally regulated by the applicable law provisions. In this respect, once again an example can be taken from the 1995 UNIDROIT Convention, or from Directive 2014/60, with regard to return of illegally exported cultural objects. Pursuant to article 6.2 of the Convention, and to article 10 of the Directive, in order to determine 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’. In accordance with article 4.4 of the Convention and of article 10 of the Directive, [i]n determining whether the possessor exercised due care and attention, consider ation shall be given to all the circumstances of the acquisition, in particular the documentation on the object’s provenance, the authorisations for removal required under the law of the requesting Member State, the character of the parties, the price paid, whether the possessor consulted any accessible register of stolen cultural 41 As is the case with the AAMD Guidelines on Loans of Antiquities and Ancient Art, which impose on its associates, as to the acquisition of objects, a level of transparency often higher than that provided by a number of national laws.

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Codes of Ethics 807 objects and any relevant information which he could reasonably have obtained, or took any other step which a reasonable person would have taken in the circumstances.

It is certainly true that ‘ethical considerations are too often ranked second to practical concerns, or even completely disregarded’.42 Nevertheless, in concrete terms the above means that a national jurisdiction requested to apply the Convention or the Directive should ‘fill the gap’ by considering the professionals’ conduct in light of the relevant tests provided for by the professional codes of ethics.

42 Gary Edson, ‘Unchanging Ethics in a Changing World’ in Bernice L. Murphy (ed), Museums, Ethics and Cultural Heritage (Routledge 2016) 131.

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Pa rt V

R E GIONA L A PPROAC H E S

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Chapter 34

A fr ica Folarin Shyllon

1. Introduction In the flush of independence, the focus of attention in sub-Saharan Africa was not the prevalent illicit trafficking in cultural objects and how to tackle it. The focus of attention was on objects expropriated in colonial times. This explains why the twelve States that sponsored the first United Nations General Assembly resolution on the subject of cultural property—‘Restitution of works of art to countries victims of expropriation’ (Resolution 3187 of 1973) were all African. The resolution in its preamble deplored ‘the wholesale removal, virtually without payment, of objets d’art from one country to another, frequently as a result of colonial or foreign occupation’. It went on to maintain in the first substantive paragraph that ‘the prompt restitution to a country of its works of art, monuments, museum pieces and manuscripts and documents by another country, without charge’ will constitute ‘just reparation for damage done’. In 1978, there followed ‘A Plea for the Return of an Irreplaceable Cultural Heritage to those who Created It’,1 issued by the then Director-General of UNESCO, Amadou Mahtar M’Bow, himself an African. He lamented that ‘the vicissitudes of history’ had robbed many peoples of the ‘priceless portion’ and ‘irreplaceable masterpieces’ of their inheritance. In the meantime, while the anti-colonial initiatives of African States went ahead in the United Nations General Assembly, the large-scale theft and pillaging of cultural property in the continent continued apace. This is evidence that, while much was lost during the colonial period, much remained to be protected with vigilance. Henrique Abranches, in his 1983 report on the situation in Africa to the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation, drew attention to this misdirection of focus. His conclusion was that the problem of protecting the cultural heritage against illicit trafficking was ‘in most countries badly tackled’. He called on governments and African intellectuals alike 1 UNESCO Doc SHC-76?Conf.615,5,3.

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812 Folarin Shyllon to come together and install a system that could effectively monitor the protection of the cultural heritage.2 This chapter is in three parts: examination of the legislative and administrative measures for the protection of tangible movable cultural heritage; grappling with the protection of intangible cultural heritage; and the neglect of immovable cultural heritage—monuments and sites. The occupation and colonial experiences of sub-Saharan African States has impacted more negatively on their cultural heritage than any other regions or sub-regions with similar experiences. This historical context has to be borne in mind when discussing heritage law and management in Africa south of the Sahara. In the area of legislation, for example, the legal systems reflect what was inherited from the colonial powers. They can be classified into two major groups. The Roman law group comprises those States originating in the former French Colonial Empire and the former Spanish and Portuguese territories. The other group comprises those States that belonged to the common law group of the former British Empire. Roman or common law tradition, the States had to decide whether to reject this legacy because it is deficient and therefore amend it, or build the protection of cultural heritage on the basis of a new cultural identity. Often, the formulation and elaboration of cultural heritage laws are often designed on European concepts of the protection of cultural property. Besides, the cultural field has often been monopolized by public authorities of African countries to reinforce their perceived national identity or political needs and, more rarely, to pursue an objective of educating their people on awareness-building through community campaigns and sensitization.3 Africa’s problematic human rights record since colonial times is manifested in the treatment given to people who live in and around World Heritage Sites (WHS). In preparing for listing of a WHS, scant attention is sometimes given to the impact on local culture that could be endangered. The particular local impact varies from site to site, but the most significant challenges are relocation, barred access to traditional land, and increased competition for resources, all human rights issues. Besides, relocation is too reminiscent of the callous and brutal dispossession of Indigenous people from their ancestral lands in southern and eastern Africa by colonial and apartheid governments.4

2 UNESCO Doc CLT-83333/COF.216/3. 3 Folarin Shyllon, Vincent Negri, and Marina Schneider, ‘The Role of National and International Instruments in the Protection of African Cultural Goods’, Preliminary Study proposed for the Second Pan African Cultural Congress, Inventory, Protection and Promotion of African Cultural Goods, Addis Ababa, 5–7 October 2009 . 4 Folarin Shyllon, ‘The Poverty of World Heritage Management in Sub-Saharan Africa: The Legacy of Colonialism and Disregard of Human Rights’ in Andrea Durbach and Lucas Lixinski (eds) Heritage, Culture and Rights: Challenging Legal Discourses (Hart Publishing 188).

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Africa 813

2. Movable Cultural Objects National legal controls of movement of antiquities and historical artefacts are quite old, going back to the fifteenth century and beginning with papal legislation. In Africa, most States inherited forms of protective legislation drafted by colonial governments. The Portuguese colonial governments left none. Angola, Cape Verde, Guinea-Bissau, Mozambique, and Sao Tome and Principe all reached independence without any such legislative cover. The Spanish apparently left no such legislative legacy behind them either. A good deal of cultural heritage legislation in French-speaking Africa is based on a 1956 French law which applied to French overseas territories. Though there was no general statute applicable throughout the British colonies in Africa, most of these States reached independence with cultural heritage protection laws in operation.5 National legislations in Africa for the protection and preservation of cultural goods are of two types: the general and the particular. Post-independence constitution-making in Africa saw some countries, like Burkina Faso, Mauritania, and Madagascar, enshrining the protection of the cultural heritage in the fundamental law (grundnorm) of the land. Other countries that have done so include Benin, Cape Verde, Congo (Brazzaville), Equatorial Guinea, Egypt, Ethiopia, Ghana, Guinea, Guinea-Bissau, Sao Tome and Principe, Seychelles, and Uganda. Article 6 of Equatorial Guinea’s Constitution of 1991 enjoins that the State ‘shall assure conservation of nature, the cultural inheritance, and artistic historical wealth of the nation’. The Constitution of Guinea of 1990 simply states in article 19 that the people of Guinea ‘shall have the right to the preservation of their heritage’. Paragraph 25 of the Preamble to the Ugandan Constitution of 1992 provides that ‘the State and citizens shall endeavour to preserve and protect and generally promote the culture of preservation of public property and Ugandan heritage’. In the case of Madagascar, article 26 of the Constitution stipulates that the State ‘shall assure the promotion and protection of the . . . cultural heritage’. The Burkina Faso constitution of 1991 takes the protection of cultural heritage further in Africa by conferring a positive right of action in the form of actio popularis on every Burkinabe who detects anyone or any agency harming the country’s cultural heritage. Article 30 provides in full: ‘Every citizen shall have the right to initiate an action or to join a collective action under the form of a petition against these acts: harming the public heritage; harming the interest of social communities; harming the environment or the cultural or artistic heritage.’6

5 Lyndel V. Prott and Patrick J. O’Keefe, Law and Cultural Heritage: Volume I—Discovery and Excavation (Professional Books Limited 1984) 34–9, 66–7; Lyndel V. Prott and Patrick J. O’Keefe, Law and Cultural Heritage: Volume 3—Movement (Butterworths 1989) 77; H. F. Cleere (ed), Archaeological Heritage Management in the Modern World (Unwin Hymans 1989) 1. 6 Folarin Shyllon, ‘Constitutional Provisions for the Preservation of Cultural Heritage in Africa’ (1999) 4 Art Antiquity and Law 65.

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814 Folarin Shyllon

3. Brief Country Survey of National Legislations Since independence, most of the countries of sub-Saharan Africa have revised and updated their legislation.7 But several national legislations have not kept up with the multifaceted aspects of designs and practices to exploit and illicitly traffic their cultural property. There are, however, some notable exceptions. In 1983, Egypt promulgated the pivotal Antiquities Protection Law No. 117, as amended by Law No. 3 of 2010 Promulgating the Antiquities Protection Law.8 According to article 1, the term ‘antiquity’ refers to any movable or immovable object that is a product of the various civilizations that span the entire Egyptian history, reflecting the arts, sciences, humanities, and religions of the successive historical periods and of more than one hundred years of age. Article 6 declares that all antiquities are strictly regulated and considered to be the property of the State. Article 7 prohibits trade in antiquities, while article 8 proscribes possession of antiquities. With regard to Ethiopia, the Proclamation to Provide for Research and Conservation of Cultural Heritage was decreed 27 June 2000 under the authority of article 55 (1) of the Constitution of the Federal Democratic Republic of Ethiopia 1995.9 The Authority to Research and Conservation of Cultural Heritage is established by article 1. Article 3, the definition section, defines, inter alia, cultural heritage, movable cultural heritage, immovable cultural heritage, tangible cultural heritage, and intangible cultural heritage. Article 4 states that one of the objectives of the Proclamation is to protect the cultural heritage against man-made and natural disasters. Article 14(1) provides that cultural heritage may be owned by the State or by any person. Article 14(2), however, declares that undiscovered cultural heritage is owned by the State. Legislation/Decree 82-029 of 6 November 1982 on the Protection, Safeguarding and Conservation of the National Heritage of Madagascar prohibits, under article 25, the export of antiquities. Article 39 stipulates that archaeological excavations cannot be undertaken without the authorization of the Minister concerned, and article 42 provides that the State has the right to ownership of all property discovered during excavations and as a result of research. Under the impetus of Alpha Oumar Konare, Mali has a proactive legislative and management policy for the protection of Mali’s cultural heritage. Konare was head of the national historic and ethnographic heritage division from 1976 to 1978 and Minister of Culture from 1978 to 1980. Later, he became the President of ICOM and, later still, the President of Mali. Under his leadership, a legal framework was set up allowing for an effective campaign against looting and trafficking. Starting in 1985 and 1986 a series of 7 Folarin Shyllon, ‘Legislative and Administrative Implementation of 1970 UNESCO Convention by African States: The Failure to Grasp the Nettle’ (2014) 21 International Journal of Cultural Property 23. 8 See . 9 See .

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Africa 815 laws were passed and, two years later in 1987, Mali ratified the 1970 Convention. On 26 July 1985, Law No. 85-40 Concerning the Protection and Promotion of the National Cultural Heritage was passed. On 13 August 1985, Decree No. 203/PG instituting a National Commission for the Safeguarding of the National Cultural Heritage was promulgated. This was followed on 4 November 1985 by the enactment of Decree No. 275 Regulating Archaeological Excavations. Under article 11 of this decree, all objects of a movable or fixed nature discovered in the course of excavations performed on or in the soil of the public domain are the property of the State. On 26 July 1986 specific legislation, Law No. 86-61 Concerning Dealers in Cultural Goods, was promulgated, following France as one of the few countries controlling the activities of dealers in items of cultural heritage. Another decree was promulgated on 19 September 1986, Decree No. 299 Regulating the Excavation, Commercialization and Export of Cultural Goods.10 In South Africa, cultural property is protected by the comprehensive National Heritage Resources Act 1999.11 The preamble states that the objective of the Act is to introduce an integrated and interactive system for the management of the national heri tage resources, to promote good government at all levels, and to empower civil society to nurture and conserve its heritage resources so that they may be bequeathed to future generations. Part 2 of Chapter I (sections 11–26) of the Act establishes the South African Heritage Resources Agency (SAHRA), together with its Council, to coordinate and promote the management of heritage resources at national level. Section 23 provides for the establishment of a provincial heritage resources authority. This is a welcome regulation. Too often cultural heritage legislations in Africa are top-down instead of bottom-up. They do not involve local authorities and local people who, in many cases, are the best custodians of their heritage. In contrast to South Africa, Nigeria very much lags behind in terms of recent legislative measures. The first legislation enacted was the Antiquities Act 1953, which was supplemented in 1974 by the Antiquities (Prohibited Transfers) Act. A consolidating legislation, the National Museums and Monuments Act, was promulgated in 1979.12 Since then, there has been no legislation for the protection of the cultural heritage in this vast country. Tanzania’s situation is like that of Nigeria. In 1937, the colonial government promulgated the Monuments Preservation Ordinance. In 1964, the Monuments Preservation Ordinance was repealed and replaced by the Antiquities Act of that year. It remains the principal legislation, although it was modified by the Antiquities (Amendment) Act of 1979.13 A Proclamation to Provide for Research and Conservation of Cultural Heritage was decreed 27 June 2000 under the authority of article 55 (1) of the Constitution of the Federal Democratic Republic of Ethiopia 1995.

10 See . 11 See . 12 See . 13 See .

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816 Folarin Shyllon In 2006 Kenya enacted consolidating legislation, the National Museums and Heritage Act 2006,14 which, inter alia, provides for the identification, protection, conservation, and transmission of the cultural and natural heritage of Kenya; and repealed two 1983 laws—namely, the National Museums Act and the Antiquities and Monuments Act. Under section 46 of the 2006 Act, all antiquities which are lying in or under the ground, or being objects of archaeological, palaeontological or cultural interest discovered in any part of Kenya after the commencement of the Act, ‘shall be the property of the Government’. Section 49 prohibits anyone from buying, selling, or exchanging an antiquity unless he or she has been licensed to deal in antiquities. Section 50 authorizes the Minister to compulsorily purchase an antiquity or protected object if the Minister considers that it is in danger of being destroyed, injured or allowed to fall into decay, or of being unlawfully removed. Namibia’s National Heritage Act 2004,15 in its preamble, states that it seeks to provide for the protection and conservation of places and objects of heritage significance and the registration of such places and objects in the National Heritage Register. It establishes the National Heritage Council as the administrative body for the management of Namibia’s cultural heritage. Section 24 provides for the establishment of Namibian Heritage Register in respect of places and objects of heritage protected under the Act.

4. Reflections on Country Survey The Ethiopian legislation is a good example in terms of simplicity and packing a lot into a short piece of legislation. In terms of detail and specificity, the South African law is a model. In North Africa, Egyptian Law 117 is exemplary. Malawi, Mauritania, and Namibia have some excellent specific provisions which have been highlighted. With regard to general cultural heritage legislations, some countries do not have precise laws and regulations that protect cultural heritage. Others, like Madagascar and Mauritania, have tried to put in place worthwhile laws. Yet, these laws have not taken a holistic approach and are deficient in some respects. The Mauritanian law was passed in 1972, and that of Madagascar in 1982. In some significant respects the provisions were ahead of their time and anticipated Egyptian Law 117 of 1983. It is important, in the present predicament of looting and illicit trafficking of cultural goods, to declare and create State ownership of all undiscovered antiquities. Some of the legislations have done so; others have not. Such a pivotal provision has been of immense help to Egypt, whose 1983 Law on the Protection of Antiquities has helped it secure the return of stolen antiquities. Egyptian Law 117 prohibits private ownership, possession, or trade in undiscovered and 14 See . 15 See ; .

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Africa 817 registered antiquities and imposes sanctions for violations including prison terms with hard labour. In the celebrated Frederick Schultz case, when asked who owns all recently discovered antiquities, one of the witnesses, Gaballa Ali Gaballa, the then Secretary General of Egypt’s Supreme Council of Antiquities, responded ‘the Egyptian government, of course’. He also said that the finder of an Egyptian antiquity could never legally keep it. It has long been argued by the art trade, and many collectors, that ‘nationalization laws’ are somehow not legal and that the courts in the West, particularly those in the two main market countries, the US and the UK, should disregard them. The Schultz case and the conviction of Tokeley-Parry16 appear to reject that thinking. Egyptian Law 117 should therefore be adopted by all African countries.

5. Security of Museums At a workshop on the prevention of illicit trafficking in cultural objects in southern Africa in Windhoek in 2011, the representative of Zimbabwe warned that museum buildings should not be the weakest link in the fight against illicit trafficking in cultural property.17 This is an important point to make. Unfortunately, in sub-Saharan Africa, subject to a few exceptions (such as South Africa), museums lack adequate security. At the Windhoek workshop, the representative of Malawi admitted that security measures in museums need to be tightened to prevent theft of objects. Lesotho frankly admitted the ‘absence of a museum structure’ in the country, having as a consequence that ‘the objects are not well documented. This can lead to easy trafficking of them.’ With regard to Nigeria, I wrote in 1996: ‘At the moment, national museums across the country lack critical security infrastructure namely, well trained security personnel, electronic burg lary alarm systems and close circuit television monitoring systems.’18 After well over two decades, the situation has not changed. Small wonder, then, that, at the Conference on the Protection of African Cultural Heritage held in Amsterdam in 1997, some Western experts demanded that Africa should first put its house in order.19 Appropriately, the speaker on behalf of Zimbabwe at Windhoek suggested that museum professionals should not allow unauthorized access through break-ins, and ‘museum buildings that exist need strengthening by prioritizing physical security’. He concluded on this issue 16 Jonathan Tokeley-Parry was convicted in 1997 by a British court of smuggling the sculpture of the head of Amenhotep III, who died in 1375 bc, out of Egypt by dipping it in plastic and painting it black to make it look like a cheap tourist souvenir. He sold it to Manhattan dealer Fredrick Schultz for $915,000. Shultz himself was convicted in the United States of conspiring to sell ancient artefacts that had been illegally removed from Egypt. 17 UNESCO, Report of the Workshop of Prevention and Fight Against Illicit Traffic of Cultural Goods in Southern Africa Region: Current Situation and Way Forward 14–15 September 2011, Windhoek, Namibia. 18 Folarin Shyllon, ‘Cultural Heritage Legislation and Management in Nigeria (1996) 5 International Journal of Cultural Property 235, 261. 19 Harrie M. Leyten, ‘African Museum Directors Want Protection of their Cultural Heritage’ (1998) 7 International Journal of Cultural Property, 261.

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818 Folarin Shyllon that ‘[e]lectronic systems to assist more effective monitoring of movement; entry and exit into and from different security areas of the museum building should be installed’.20 This passage is gently also hinting at the issue of corruption among some of Africa’s museum professionals. Professor Frank Willet, a specialist in Benin art, was reported in the London Times of 7 December 2001 as saying that ‘the [Benin] bronzes could not go back to Nigeria while there were allegations of corruption and museum staff selling items’. The management of museums must ensure that the gamekeepers do not become poachers.

6. Database If inventories and accurate descriptions of cultural objects do not exist, it will be very difficult subsequently to establish where the object came from and to whom it really belongs. Successful lawsuits for the return of cultural objects generally occur where the objects are documented and their ownership is clear. The critical role of adequate registration and documentation in the fight against illicit traffic in cultural property has been emphasized again and again in discussions at every session of the Intergovernmental Committee on Return and Restitution to date. At the Committee’s inaugural session held at the UNESCO headquarters in Paris in May 1980, ‘several delegates and observers brought up the question of inventories of cultural property, stressing the fundamental importance of such instruments’.21 And at the tenth session in Paris, in January 1999, it was concluded that ‘documentation is of crucial importance for the protection of cultural property, since, without a precise description and photographs, it is difficult for the legitimate owner to recover it’.22 Botswana’s report at the Windhoek workshop is not encouraging. The collections at the Botswana National Museum, it was reported, have been documented manually, but electronic documentation is lagging behind. Without a proper electronic documentation and inventory system, the collections are not well organized. Therefore, in the case of theft it is not easy to pass information to the law enforcement agencies, let alone post information on the Internet for the international audience. Lesotho said inventory in the only museum in the country—the Morija Museum—is taken regularly. Namibia confessed it had an inadequate inventory system. Swaziland, too, did not indicate it had any satisfactory inventory system; its inventory appears to be taken manually. ‘Objects, photographs, artworks etc. kept in the national 20 UNESCO, Report of Workshop (n 17). 21 UNESCO, Report of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation. First Session. UNESCO Doc 21C/83(1980). 22 UNESCO, Report of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation. Tenth Session. UNESCO Doc 30/C/REP.4. (1999).

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Africa 819 museum and the national archives are securely kept and marked to be easily detected for the purpose of protecting them from would be smugglers and thieves. They are marked and these marks cannot be easily removed’, Swaziland’s report optimistically said. In South Africa, most museums establish and update their own inventories inde pendently. A major challenge is the lack of a centralized national database. The South African Heritage Resources Agency (SAHRA) is in the process of identifying and inventorying State-owned collections and objects, focusing on those at risk. The medium- and long-term outcome of the project was to establish the South African Heritage Resources Information System (SAHRIS), which will serve not only as a digitized inventory of cultural resources but also as a management tool to effectively and efficiently monitor cultural property. It is obvious that South Africa is forging ahead in establishing a firstrate inventory system. Other countries should also give utmost priority to adopting electronic and digitized inventory systems.

7. Strengthening and Upgrading Legislation Attention should first be drawn to UNESCO–UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects. In six short and simple paragraphs, the group of experts that prepared the model provisions sought to encourage the protection of archaeological objects and to favour their restitution to the State where illicit excavation took place. Provision 1 provides that the State shall take all necessary and appropriate measures to protect Undiscovered Cultural Objects. The new law should incorporate provisions 2 to 6. Provision 2 states that ‘[u]ndiscovered Cultural Objects which include objects which, consistently with national law, are of importance for archaeology, prehistory, literature, art or science and are located in the soil or underwater’. Provision 3 declares that ‘[u]ndiscovered Cultural Objects are owned by the State, provided there is no prior ownership’. In provision 4 it is declared that ‘[c]ultural objects excavated contrary to the law or licitly excavated but illicitly retained are deemed to be stolen objects’. ‘The transfer of ownership of a cultural object deemed to be stolen under Provision 4’, provision 5 adds, ‘is null and void, unless it can be established that the transferor had a valid title to the object at the time of the transfer.’ Finally, provision 6 declares that ‘[f]or the purposes of ensuring the return or the restitution to the enacting state of cultural objects excavated contrary to the law or licitly excavated but illicitly retained, such objects shall be deemed stolen objects’.23

23 See .

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820 Folarin Shyllon In order to ensure the legislative implementation of the conventions, the provisions highlighted below should be incorporated into any new law. Clear legislation is advocated, defining cultural property and establishing State ownership of cultural heritage. The following provisions are suggested.24

1. Establishment of a heritage resources agency or by any other name as the supreme coordinating body for the protection and preservation of cultural heritage. 2. Establishment of an advisory body to deal with such matters as acquisition and de-accession. 3. Cultural property may be owned by the State or any person. 4. All archaeological objects discovered and undiscovered belong to the State. 5. Antiquities owned by private individuals must be registered. 6. Trade in antiquities must be strictly regulated. 7. Licit market in cultural property and activities of dealers should be adequately regulated. 8. All possessors of antiquities must register them with the State. 9. Export of cultural objects without the State’s licence must be prohibited. 10. Import control. 11. Clear guidelines on lending of antiquities for exhibition abroad. 12. Offences, sanctions, and penalties. 13. Impact assessment prior to any excavation. 14. Rescue archaeology programmes must be guaranteed. 15. Close supervision of archaeological excavations. 16. Restriction on use of metal detectors. 17. Coordination of the work of the national police, customs, and immigration. 18. Compilation of inventories of heritage in and out of museums. 19. Prompt communication of precise details of losses to Interpol, ICOM etc. 20. Educating the public and school children of the harmful effects of illicit traffic. 21. Local government authorities to be involved in cultural heritage management. 22. Acquisition and de-accessioning must conform to ICOM standards. 23. Obligation to enter into beneficial bilateral and multilateral cooperation agreements with other countries. 24. Introduce the system of Heritage Inspectors/Wardens encompassing National Museum officers, the police, and customs with police powers of search and arrest. 25. Establish a cogent administrative machinery to supervise the implementation of the legislation. 26. Establish a national forum for the enforcement of heritage related issues. 27. Compilation of objects outside the country.

24 Shyllon, ‘Legislative and Administrative Implementation’ (n 7) 42–3.

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Africa 821

7.1 Administrative Measures In Articles 5 and 14 of the 1970 Convention, States Parties undertake to set up, as appropriate for each country, one or more national services for the protection of cultural heritage, with qualified staff and an adequate budget. Legislation alone cannot safeguard the cultural heritage nor prevent trafficking in cultural objects. Administrative measures must also be deployed to strengthen legislative and regulatory measures. The following administrative measures are recommended.25

1. Draw up a strategy for preventing and combating illicit traffic. 2. Integrate this strategy into the overall strategy for the protection, management, and promotion of the cultural heritage. 3. Complete the inventory of private and public cultural objects, preferably according to ‘Object ID’26 standard. 4. Complete inventory of archaeological sites. 5. Enhance security in all museums, particularly the national museums, with the latest state-of-the-art technology including CCTV etc. 6. Establish a national database of cultural property in national and regional museums. 7. Prepare management plans for archaeological sites which focus particularly on key security issues. 8. Step up the surveillance of archaeological sites, museums, and depositories. 9. Improve and strengthen controls at frontier posts and at the airports. 10. Compile and keep up-to-date statistical records of thefts and of illicit exports and imports of cultural objects. 11. Create a national database of stolen or illicitly exported cultural objects. 12. Take the necessary administrative measures to ensure that the putting up for sale of cultural objects on the Internet does not promote illicit traffic. 13. Establish antiquities police squads. 14. Introduce training and advanced training programmes for members of the administrative, police, and judicial authorities involved in the implementation and application of the illicit traffic prevention strategy. 15. Draw up a general long-term information strategy, aimed at mobilizing efforts of all sections of civil society to prevent and combat illicit traffic. 16. Improve the quality of the content of awareness-raising campaigns and of the selection of the target groups for the campaigns. 17. Encourage the development of the activities of national sections of National Commission for UNESCO, ICOM, AFRICOM, and ICOMOS.

25 Ibid, 43–4. 26 Object ID is the international core documentation standard for recording minimal data on m ovable cultural property and for identifying cultural objects with a view to combatting illicit traffic in cultural property.

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822 Folarin Shyllon 18. Coordinated action, especially between the police and customs services and relevant international organizations such as Interpol and the World Customs Organization. 19. Establish a national committee to combat trafficking in natural and cultural property including fauna and flora. 20. Provide adequate financial and personnel resources. 21. Establish bilateral cooperation on illicit trafficking, particularly with countries with common borders.

7.2 Participation in the Armed Conflict, Illicit Trafficking, UNIDROIT, and Underwater Cultural Heritage Conventions The Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 covers both movables and immovables, including monuments of architecture, art or history, archaeological sites, works of art, manuscripts, books, and other objects of artistic, historical, or archaeological interest, as well as scientific collections of all kinds. It was adopted at the Hague on 14 May 1954 and entered into force on 7 August 1956. Well over sixty years after it became part of international public law, only thirty-two out of fifty-four independent African countries are States Parties to the Convention.27 Only twenty are members of the 1954 First Protocol,28 and fewer still—just fourteen—are Member States of the Second Protocol 1999.29 Since independence, sub-Saharan Africa has been afflicted with civil wars, armed rebellions, and all sorts of armed conflict. The Rwandan genocide of 1994 readily comes to mind. It is, therefore, in the interest of the nations in the sub-region to subscribe to the Convention and its two Protocols. The fact that the Convention came into force prior to 1960 is not a good enough excuse for the poor rate of participation. In any case, the same excuse cannot be relied upon with regard to the 1999 Protocol. Article 21 of the Second Protocol 1999 specifically requires an occupying power to adopt such legislative, administrative, or disciplinary measures as may be necessary to suppress any illicit export, other removal, or transfer of ownership of cultural property from occupied territory. By all accounts African States appear to be the most vulnerable of any group of countries to illicit trade in cultural property. So far, however, only thirty-five countries are members of the Illicit Traffic in Cultural Property Convention 1970.30 With regard to the 27 These and other statistics on participation were accessed on the UNESCO homepage; see accessed 28 July 2019. 28 See accessed 28 July 2019. 29 See accessed 28 July 2019. 30 See accessed 28 July 2019.

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Africa 823 stronger and complementary UNIDROIT Convention, African participation is even poorer. Currently, only nine African countries are Member States, namely Algeria, Angola, Botswana, Burkina Faso Gabon, Ghana, Nigeria, South Africa, and Tunisia.31 There are just sixteen African States Parties to the Convention on the Protection of the Underwater Cultural Heritage 2001, as if membership is peripheral to combating illicit trafficking in cultural property. The Convention seeks to prevent any dealing in, or possession of, underwater cultural heritage objects illicitly exported and/or recovered. It is imperative for African countries that have not done so to join the four relevant conventions, namely Hague 1954 and Protocols, Illicit Trafficking 1970, UNIDROIT 1995, and Underwater Heritage 2001. African governments can show their deepest concern about what has been described as cultural genocide by becoming parties to these conventions. This is a duty that must be performed without delay. The moral impact of all fifty-four African countries acceding to all these Conventions should not be under estimated. Furthermore, there is scope for concerted efforts by African States on the issue of illicit trafficking in cultural property. There is no reason why the respective police, customs, and immigration departments cannot have special units linked together under bilateral and multilateral mutually beneficial agreements. Simultaneously, the African Union (AU) should be proactive in the matter. At the second Pan African Cultural Congress, held in Addis Ababa in October 2009, a commissioned paper on the protection of African cultural goods was presented.32 More recently, in 2013 the AU asked a group of African experts to undertake a study on the ongoing cooperation between European Union and Africa with regard to illegal trafficking in cultural goods.33 The proposals and suggestions in the two reports should be effected.

8. Intangible Cultural Heritage For well over half a century, UNESCO—in the discharge of its responsibility as the lead organ of the United Nations on culture—has initiated programmes and adopted standardsetting instruments for the preservation and protection of intangible cultural heritage. The UNESCO Collection of Traditional Music of the World is one of the most outstanding achievements in UNESCO’s programme for the preservation and revitalization of 31 See accessed 28 July 2019. Four African States—Algeria, Egypt, Libya, and Morocco—voted against the adoption of the Convention at the diplomatic conference in Rome. They wanted to express the view that the instrument does not go far enough and, especially, does not oblige States to return stolen cultural objects unconditionally, i.e. without compensation of a bona fide purchaser. Kurt Siehr, ‘Editorial’ (1996) 7 International Journal of Cultural Property 5. 32 Shyllon, Negri, and Schneider, ‘The Role of National and International Legal Instruments in the Protection of African Cultural Goods’ (n 3). 33 Victor S. Dugga, Folarin Shyllon, Emmanuel Dandaura, Christopher Odhiambo, Mufunaji Magalasi, and Nath Mayo Adediran, Combating Illegal Trafficking in African Cultural Goods: AU Report (African Union 2014) .

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824 Folarin Shyllon intangible cultural heritage. It contributes to the dissemination of such treasures of humanity as traditional popular and classical music, sacred music, music of rural and urban origin, and festive or carnival music that involves singing, the playing of instruments, and dancing. The UNESCO Collection was launched by Alain Danielou in 1961 in collaboration with the International Music Council (IMC). Today UNESCO collaborates with the International Council for Traditional Music on new recordings and with the IMC on reissues.34 On 15 November 1989, the Recommendation on the Safeguarding of Traditional Culture and Folklore was adopted by the General Conference of UNESCO at its 25th session. Traditional culture and folklore contain a synthesis of the living definitions of folklore. Its forms include language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture, and other arts. Folklore is a window to a community’s cultural and social identity, its standards and values. It is part of the community’s self-expression and means of communication. The recommendation therefore urges Member States to preserve folklore in their respective countries. This is because folklore is seen as essential to the enrichment of the cultural heritage of humanity and protection of cultural identities.35 The Republic of Korea proposed to the 142nd session of the Executive Board of UNESCO, in 1993, the establishment of a UNESCO Living Human Treasures programme, and the Board adopted a resolution inviting Member States to establish such systems in their respective countries. Living Human Treasures are persons who possess to a very high degree the knowledge and skills required for performing or creating specific elements or items of the intangible cultural heritage that Member States have selected as a testimony to living cultural traditions and the creative genius of groups, communities, and individuals present in their territory. In 1996, the Director-General of UNESCO wrote to Member States calling on them to establish Living Human Treasures in their respective countries.36 In 1998, UNESCO created an international distinction, the Proclamation of the Masterpieces of the Oral and Intangible Heritage of Humanity, to honour the most remarkable examples of the oral and intangible heritage of humanity. The Proclamation encourages governments, non-governmental organizations (NGOs), and local communities to identify, safeguard, revitalize, and promote their oral and intangible cultural heritage. It also aims to encourage individuals, groups, institutions, and organizations to contribute to the management, preservation, protection, and promotion of this heri tage. The Proclamation rewards cultural spaces and traditional/popular forms of cultural expression that are of outstanding value. A cultural space is defined as a place that brings together a concentration of popular and traditional cultural activities and also as a time for a regularly occurring event. A traditional/popular form of cultural expression employs languages, oral literature, music, dance, games, mythology, rituals, costumes, 34 See . 35 See . 36 See .

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Africa 825 craftwork, and other arts as well as traditional forms of communication and information. Masterpieces already proclaimed include a thousand-year-old Chinese musical idiom that is mastered by a mere fifty people and the know-how of itinerant doctors in South America who are familiar with the properties of almost a thousand plant species.37 While the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore is the soft law on intangible cultural heritage, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (ICH) is the hard law. Article 2 of the Convention defines intangible cultural heritage as 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. Intangible cultural heritage is manifested, inter alia, in the following domains: oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the universe; and traditional craftsmanship. The Convention specifically provides for the drawing-up of national inventories of cultural property to be protected, the establishment of an Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (composed of experts from States Parties to the Convention), and the creation of two lists—a Representative List of Intangible Heritage of Humanity and a List of Intangible Cultural Heritage in Need of Urgent Safeguarding. It also establishes an Intangible Cultural Heritage Fund.38 In spite of the reluctance around, and scepticism over the need for, an ICH Convention, the 2003 Convention has turned out to be one of the most popular UNESCO cultural conventions. Though adopted at the 32nd session of the General Conference of UNESCO meeting in Paris from 29 September to 17 October 2003 and entered into force on 20 April 2006, as at 11 May 2018, it has 178 States Parties. This means it is second only to the World Heritage Convention 1972 with 193 Member States as at 31 October 2016, and that after merely eleven years. To put things in perspective, the World Heritage Convention attained its current membership of 193 after forty-three years, having come into force on 17 December 1975. The ICH has outstripped earlier Conventions in membership. The 1954 Armed Conflict Convention entered into force on 7 August 1956, and sixty-two years on had 133 members (as at 17 May 2018), while the Illicit Traffic Convention that came into force 24 April 1972 had 137 States Parties as at 9 April 2018. The Underwater Heritage Convention of 2001 as at 27 April 2018 had sixty States Parties. It was adopted in 2001 and waited eight long years to enter into force on 2 January 2009. The Diversity of Cultural Expressions 2005 Convention, adopted four years after the Underwater Heritage Convention, came into force two years before the latter on 18 March 2007 and has 145 States Parties (2 November 2017). Thus, the ICH Convention and Diversity of Cultural Expressions Convention enjoy more approval and acceptance in the comity of nations. The least subscribed of the cultural heritage conventions is the 37 See . 38 See .

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826 Folarin Shyllon UNIDROIT Convention 1995, with only forty-eight States Parties as at 2 December 2019 although it entered into force as long ago as 1 July 1998. Following decolonization in the 1960s, many independent African nations saw in folklore one of the means of asserting their cultural identity. In 1967, Bolivia passed a law providing legal protection of its national folklore, using a quasi-copyright framework.39 Many African countries followed Bolivia’s example. They are countries acceding to the Bangui Agreement of the African Intellectual Property Organization, concluded in 1977. Among them were Algeria, Angola, Benin, Burkina Faso, Burundi, Cameroon, Central African Republic, Congo (Brazzaville), Democratic Republic of Congo, Cote d’Ivoire, Gabon, Ghana, Guinea, Kenya, Lesotho, Liberia, Malawi, Mali, Morocco, Niger, Nigeria, Rwanda, Senegal, Seychelles, and Tunisia. Folklore provisions in postcolonial African States must be seen as an attempt to cater for the peculiar needs of these countries whose civilization and tradition are oral. Another reason is that folklore is a cultural patrimony and, therefore, a national heritage. This invests folklore with tangible and intangible attributes, as well as the need to sustain it. The point being made is confirmed in the definitions contained in various national laws. Thus, the Copyright Act of Malawi of 1987 states that folklore means ‘all literary, dramatic, musical and artistic works belonging to the cultural heritage of Malawi’ (Section 2).40 Article 4 (f) of Angola’s Law on Author’s Rights41 of 1990 declares that folklore means ‘all literary, artistic and scientific works . . . passed from generation to generation . . . and constituting one of the basic elements of the traditional cultural heri tage’. Tunisia’s Law of 1994 on Literary and Artistic Property42 provides that ‘folklore forms part of the national heritage’. The Law Instituting Protection for Copyright and Neighbouring Rights of Gabon 199043 states in article 6 that folklore is ‘all literary and artistic productions created on the national territory . . . which forms one of the fundamental elements of the national cultural heritage’. Nigeria’s more detailed provisions on folklore in the Copyright Act 198844 rely heavily on UNESCO–WIPO model provisions. Section 31(5) defines folklore as a group-oriented and tradition-based creation of groups or individuals. They reflect the expectation of the community as adequate expression of its cultural and social identity, its standards and values as transmitted orally. These include: (a) folk tales, folk poetry, and folk riddles; (b) folk songs and instrumental folk music; (c) folk dances and folk plays; and (d) drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, handicrafts, costumes, and Indigenous textiles. These expressions of folklore are protected against: (a) reproduction; (b) communication to the public by performance, broadcasting, distribution by cable, or other means; and (c) adaptations, translations, and other transformations, 39 Alan Jabbour, ‘Folklore Protection and National Patrimony: Developments and Dilemmas in the Legal Protection of Folklore’ (1983) 17(1) Copyright Bulletin 10, 12. 40 See . 41 See . 42 See . 43 See . 44 See .

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Africa 827 when such expressions are either made for commercial purposes or outside their traditional or customary context. Section 33(1)(d) of the Act provides, inter alia, that any person who wilfully distorts an expression of folklore in a manner prejudicial to the honour, dignity, or cultural interests of the community in which it originates commits an offence and, on conviction in the case of an individual, is liable to a fine not exceeding 100,000 Naira, imprisonment for one year, or both fine and imprisonment; and, in the case of a legal entity, to a fine of 500,000 Naira. The criminalization of misappropriating folklore may appear drastic, but it can be defended in view of the ravages that careless and irreverent adaptation, reproduction, and communication of folklore have wrought on the integrity, continuity, and legitimacy of folklore and folk traditions. It is an attempt to protect our intangible cultural heritage. Section 32 of the Act prescribes penalties for any infringement of Nigerian folklore. It stipulates that any person who, without the consent of the Nigerian Copyright Commission, uses an expression of folklore in a manner not permitted by section 31 of the Act is in breach of statutory duty and liable to the Commission in damages, injunctions, and any other remedies as the court may deem fit to award in the circumstances. The priority given to the legal protection of folklore forced the matter onto the international agenda and encouraged the adoption of regional treaties and model provisions such as the Bangui Agreement of 1977 (revised in 1999),45 the Tunis Model Copyright Law for Developing Countries46 elaborated by UNESCO and WIPO in 1976, and Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions 1985,47 another joint effort by UNESCO and WIPO, approved by a committee of governmental experts in 1985. In addition, WIPO in 2000 established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore48 as an international forum for debate and dialogue concerning the interplay between intellectual property, traditional knowledge, traditional cultural expressions (folklore), and genetic resources.

9. African Participation in Intangible Cultural Heritage and Cultural Diversity Conventions Of the fifty-four independent African States, forty-eight are States Parties to the Intangible Heritage Convention as at 11 May 2018. This is the strongest African participation in 45 See . 46 See . 47 See . 48 See .

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828 Folarin Shyllon UNESCO’s cultural heritage conventions other than their participation in the World Heritage Convention. This is not surprising. The fact is that folklore plays a much more important role in Africa and Asia than in Europe. As Ralph Oman, former Registrar of the United States Copyright Office, once commented, Africans and Asian watched with a growing sense of frustration as foreign composers visited, carefully studied, and in some cases recorded the country’s rich folkloric music and then rushed back home to use these rhythms and harmonies to write hit songs or symphonies which enjoyed full copyright protection. ‘Meanwhile, the interpretive performers, the village bards, the travelling troubadours, and the wandering minstrels, who have created these original variations of the works derived from traditions with deep roots in the culture, get n either credit, nor money, nor protection for their creative expression.’49 (Dvorak, to his credit, sub-titled his Ninth Symphony From the New World in acknowledgement of AfricanAmerican and Native American melodies he used for the symphony.) African participation in the Convention on the Protection and Promotion of the Diversity of the Cultural Expressions is equally strong, with forty-three African nations ratifying or acceding to the Convention. The equally rapid accession to the Convention by African States as it is with the ICH Convention when compared to the earlier conventions indicate that both are regarded as complimentary to each other. The fear of the effect of globalization on culture and gradual homogenization impelled African countries to join the conventions without the foot-dragging that has been their attitude to the older conventions. African countries naturally subscribe to the clarion assertion in paragraph 18 of the Preamble to the Convention that ‘cultural activities, goods and services have both an economic and a cultural nature . . . and must therefore not be treated as solely having commercial value’. In spite of its controversial nature and the vagueness of some of its provisions, the rapid rate of ratification of the Convention adopted on 20 October 2005—with 145 Member States already—shows that many countries have a strong concern about the survival of their languages and other cultural emanations in a world of globalized trade.50 As Prott and O’Keefe have highlighted, a coalition of interests and concerns among certain Asian countries and African States played decisive role in the emergence of the ICH Convention. Asian countries were anxious that globalization should not lead to the disappearance of cultural traditions that had been developed in isolation over centuries. African countries, on the other hand, felt that a World Heritage List anchored in a Convention that emphasized the achievements of, and directed economic benefits to, cultural activities of European countries did not exemplify their intangible heritage achievements and wanted the World Heritage Convention amended to take care of the African cultural genius. Joint work by UNESCO and the World Intellectual Property Organization (WIPO) resulted in the Model Provisions for National Laws on the 49 Ralph Oman, ‘Folkloric Treasures: The Next Copyright Frontier’ (1996) 15(4) Newsletter (A publication of the American Bar Association Section of Intellectual Property Law) 3. 50 Patrick J. O’Keefe and Lyndel V. Prott, Cultural Heritage Conventions and Other Instruments: A Compendium with Commentaries, Institute of Art and Law (Institute of Art and Law 2011) 148–9, 165.

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Africa 829 Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions in 1985.51 This ultimately led to the adoption of the ICH Convention.52 The developed States were, however, not enthusiastic about the emergence of the Convention. Thus, in 1984 a communication from the Federal Republic of Germany to the group of experts on the international protection of expressions of folklore by intellectual property triumphantly declared: ‘In the Federal Republic of Germany there is, incidentally, no need to subject the use of folklore to any limitations.’ It then concluded condescendingly: ‘Furthermore, general and free access to folklore should be an argument that is also of relevance to the developing countries since it fosters the dissemination and hence conservation of their cultural heritage.’53 When Germany eventually joined the ICH Convention in April 2013, the instrument of acceptance was accompanied by the declaration that it would not be bound by the provision in article 26 (1) on voluntary contribution to the intangible cultural heritage fund. Be that as it may, the degree of participation in the ICH Convention and Cultural Diversity Convention suggests that the international community has now accepted the concept of promoting and protecting the intangible heritage of mankind and thus ensuring and safeguarding cultural diversity. The extent of participation even before the first decade of its coming into force is a confirmation of the assertion of the then Director-General of UNESCO, Koichiro Matsuura, on the occasion of the International Round Table: Intangible Cultural Heritage: Working Definitions in Turin, Italy in March 2001: ‘Intangible cultural heritage is gaining increasing recognition worldwide for the fundamental role it plays in our lives in the maintenance of and enhancement of cultural identity and diversity.’54

10. Neglect of Immovable Cultural Heritage—Monuments and Sites Collecting objects from conquered countries flourished during the nineteenth century among European powers. One commentator referred to it as ‘the collecting frenzy of European empires’.55 The material evidence of the newly discovered cultures was studied, catalogued, and displayed in European museums to illustrate the greatness of 51 See . 52 O’Keefe and Prott, Cultural Heritage Conventions and Other Instruments (n 50) 148–9. 53 UNESCO and WIPO, Communication from the Federal Republic of Germany dated 5 October 1984 to Group of Experts on the International Protection of Expressions of Folklore by Intellectual Property, UNESCO/WIPO/FOLK/GEI.1/3 Annex. Paris, 30 November 1984. 54 UNESCO, Address by Mr Koichiro Matsuura Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO) on the Occasion of the International Round Table: ‘Intangible Cultural Heritage: Working Definitions’, Turin, Italy, 14 March 2001, DG/2001/33. 55 Ana Vrdoljak, International Law, Museums and the Return of Cultural Objects (Cambridge University Press 2008) 5.

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830 Folarin Shyllon the empire. Colonial administrators and teachers in the colonies started the museum movement in the conquered territories. They were mainly concerned with collecting cultural objects. The post-independence legislation of many countries deals with both movable and immovable cultural heritage. Lesotho passed the Historical Monuments, Relics, Fauna and Flora Act in 1967. In 1969, Ghana also promulgated a decree establishing the Ghana Museums and Monuments Board. Botswana passed the Monuments and Relics Act in 1970. Nigeria enacted the National Commission for Museums and Monuments Act in 1979. Kenya enacted the Antiquities and Monuments Act in 1983. Malawi passed the Monuments and Relics Act in 1991. This fact notwithstanding, our cultural heritage managers have emphasized the museums aspect of their mission to the detriment of their duty to preserve monuments. Nigeria is a classic example of the plight of monuments in postcolonial African countries. In 1987, the incumbent Director-General of the Nigerian Commission for Museums and Monuments lamented: It is an open and confidential fact that the overwhelming majority of the sixty or so national monuments protected by Nigerian laws are in a shocking state of disrepair and maintenance. I mourn inwardly to say that within the space of thirty or fewer years after some of these monuments were declared, quite a number have collapsed totally.56

This underlying malaise has been well captured in the analysis in the report of the World Commission on Culture and Development, Our Creative Diversity. The problem was compounded when State institutions such as departments of antiquities and/or archaeology were established during the colonial period and tailored to the needs of empire. Many such bodies focus on the buried past: the skills of their personnel in respect of architectural heritage are limited. Many have also inherited the distances created by colonial period relationships between ordinary people and the bureaucracy. This has resulted in a profound hiatus between ordinary civic life and public concern for the cultural past embodied in an officially listed monumental heritage. As a consequence, this heritage has been owned by the State and not by the people, both in a technical legal sense and in allegorical terms. ‘Protected’ monuments have been relegated to the lowest priority of resource allocation. They often exist behind heavily guarded boundaries in varying states of care, surrounded if not invaded by low-income squatters and illegal business premises. Monuments not listed are left to decay and oblivion.57 Furthermore, in sub-Saharan Africa management of monuments and sites has been undermined by ‘an overzealous belief in modernist paradigms in architecture and city building’ that has hastened the obliteration of many historic buildings and sites. An 56 Ade Obayemi, Ancient Cultures for the Living: Nigerian Monuments and Antiquities Today (Institute of African Studies, University of Ibadan 1991) 18. 57 World Commission on Culture and Development, Our Creative Diversity (UNESCO 1995) 183.

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Africa 831 observer of the scene in south-west Nigeria, for example, noted the vogue among Yoruba Obas (Kings) of constructing new palaces as elements of the new social order. ‘Consequently, vast segments of an older palace may be abandoned to rust and decay while considerable time is devoted to the acquisition of building funds for the new palace, usually an architecturally barren and culturally alien edifice that is often referred to as ultra-modern.’ 58 In Kenya, increasing dependence on tourism has made it easy for foreign investors to make handsome deals, leading to the destruction of Swahili cultural heritage. Tourism led to the creation of marine national parks on the coral reefs. Ironically, it is the tourists who have caused the most damage to the coral reef through snorkelling, diving, and shell collection.59 A recent visitor to Lamu Old Town, a UNESCO World Heritage Site, reported that a massive port is being built next to Lamu ‘and unregulated construction is damaging the integrity and authenticity of this unique site’. Its stunning buildings display the long history and development of Swahili technology. New concrete constructions dwarf the Indigenous architecture dating back to the twelfth century. ‘Entire historic homes have been disassembled and sold off for their rare carved doors, windows and interiors.’60 In the United Republic of Tanzania it has been observed that a staggering amount of heritage resources has been destroyed in the course of development activities, especially since the 1970s. During this period, major construction works involving railways, trunk roads, dams, pipelines, airports, large farms, harbour expansion projects, urban growth, and industry took place in the country.61 The fact is, in sub-Saharan Africa governments put little premium on world heritage and, instead, are preoccupied with revenue-generating enterprises to the detriment of national heritage. Examples abound. The iconic World Heritage Site of Mapungubwe in the middle Limpopo valley of northern South Africa has been in the media for the last several years because of threats posed to its integrity by coal mining. In a different context, Swaziland withdrew the Ngwenya Middle Stone Age Ochre Mines from the UNESCO World Heritage Sites nomination list62 in favour of reviving industrial iron ore extraction. In the Sudan, vast stretches of cultural landscape hosting valuable and less valuable heritage are under threat from dam construction. Surely, as Shadreck Chirikure has posited, governments are required to balance conservation needs against 58 Dele Jegede, ‘Nigerian Art as Endangered Species’, in Peter R. Schmidt and Roderick J. McIntosh (eds) Plundering Africa’s Past (Indiana University Press 1996) 133. 59 Chapurukha Kusimba, ‘Kenya’s Destruction of the Swahili Cultural Heritage’ in Schmidt and McIntosh, Plundering Africa’s Past (n 58) 201–24. 60 Jeff Morgan, ‘Challenges Facing World Heritage in Africa Today’ (Huffpost 22 August 2013) accessed 7 July 2014. 61 Amini Aza Mturi, ‘Whose Cultural Heritage? Conflicts and Contradiction in the Conservation of Historic Structures, Towns, and Rock Art in Tanzania’ in Schmidt and McIntosh, Plundering Africa’s Past (n 58) 170–90; N. J. Karoma, ‘The Deterioration and Destruction of Archaeological and Historical Sites in Tanzania’ in Schmidt and McIntosh, Plundering Africa’s Past (n 58) 191–200. 62 See n 5.

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832 Folarin Shyllon the needs of other stakeholders, such as local communities that may need the hospitals, the jobs, and the income associated with developments.63

11. Participation in the World Heritage Convention The World Heritage Convention of all UNESCO’s cultural heritage instruments has undoubtedly enjoyed the greatest success not only through the public interest it has aroused but also within the international community itself, as it has been ratified by 19364 of its 19565 Member States. Equally, the Convention has been ratified by fifty-three out of fifty-four African States, the only exception being Somalia. In terms of the World Heritage List, Africa (excluding Arab North Africa) has ninety-three inscriptions, representing 8.67 per cent of the total. Nevertheless, as the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), based in Rome, laments in its newsletter for October 2000, ‘African cultural heritage is still under represented on the World Heritage List despite the continent’s archaeological, architectural, technical, and spiritual treasures.’66 Also, of the total fifty-four inscriptions on the World Heritage List in Danger,67 Africa has twenty-three out of fifty-four, representing 43 per cent of the total.

12. The Way Forward Overall, whether in the field of tangible and intangible heritage or the domain of movable and immovable cultural heritage, sub-Saharan Africa legislation and administration of cultural property have been blighted by the colonial past. Independence has not always been used as opportunity for a breaking off or breaking forth with the c ultural heritage protection system installed by the former colonial power. It appears that the formulation and elaboration of cultural heritage laws are often designed on European concepts of the protection of cultural property. The laws are, therefore, not often adapted to the present African realities. This is a legacy of the colonial past.68

63 Shadreck Chirikure, ‘Heritage Conservation in Africa: The Good, the Bad, and the Challenges’ (2013) 109 South African Journal of Science 1, 1. 64 See . 65 See . 66 ICCROM Newsletter, No. 26, October 2000, 30. 67 See . 68 Shyllon, Negri, and Schneider, ‘The Role of National Legislation and International Instruments in the Protection of African Cultural Goods’ (n 3).

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Africa 833 It may be desirable to borrow best practices from Asian countries like Japan and the Republic of Korea. Korea, for example, apart from its Cultural Heritage Administration, also has the Overseas Korean Cultural Heritage Foundation and Cultural Property Return Campaign Centre. With regard to legislation, the Korean 1962 Cultural Property Protection Law, for example, classifies cultural heritage in four main categories: Tangible Cultural Heritage, Intangible Cultural Heritage, Monuments, and Folklore Cultural Heritage. One does not see this type of classification in African legislation but, rather, the monolithic European denomination. Our cultural heritage managers must realize that they operate not only under the various cultural heritage legislations but also under the planning and environmental protection laws. In collaboration with environmental and planning agencies, cultural heritage managers must evolve a holistic approach to the management of monuments and sites. The indispensable tools in this endeavour will include environmental impact assessment and heritage impact assessment. Environmental assessment is an informationgathering exercise which will enable a planning authority, or other determining body, to understand the environmental effects of a development before deciding whether or not to grant planning permission for a land-use proposal. Archaeologists have lamented that perhaps the greatest tragedy to archaeology in Africa is the way in which monuments and other cultural and natural sites are being destroyed by all forms of construction work. What is needed is a regime of heritage impact assessment in which, where it is established that any proposed or ongoing construction or other development adversely impacts on a historical, archaeological, cultural, or natural site or monument, it must either be abandoned or limiting measures taken before it proceeds. What has given much efficacy to the protection of the environment in the United States is the ability of concerned citizens to bring class actions for the protection of their environment. Court procedures should therefore permit such class actions, as enshrined in the Constitution of Burkina Faso. Cultural heritage law, as well as planning legislation, could have provisions to allow heritage managers and town planners to preserve buildings or other objects of architectural, historic, or artistic interest or significance. The provisions would then offer ample scope for a proactive initiative on the preservation of monuments. It should be possible through an application for a mandatory order to compel a local planning authority or a cultural heritage management agency to protect an endangered monument. The judiciary, for its part, should not constrain itself with outmoded concepts that no longer influence English, or indeed Continental, courts. It must display a heightened sense of judicial responsibility responsive to the national and public concern for the protection of their monuments. It may be necessary to organize workshops to sensitize judges on the issue. I have in mind here the sort of workshops that have been organized in Nigeria by the Nigerian Copyright Commission in collaboration with the WIPO to sensitize judges as to the fundamental principles and issues at stake in copyright infringement cases. The result has been a dramatic improvement in judicial attitudes. While it may be difficult to organize separate seminars for judges, it should be considered henceforth to include them among future participants in UNESCO, ICOM, and ICCROM workshops on the management of the cultural heritage.

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834 Folarin Shyllon Inadequate conservation capacity is the bane of immovable heritage management in sub-Saharan Africa, just as three decades ago it was with the movable heritage management. Thanks to the ICCROM programme Prevention dans les Musees Africains (PREMA), the situation of movable heritage has improved.69 As PREMA was nearing the end of its projected life, the AFRICA 2009 programme was introduced in 1998 at a regional meeting of African cultural heritage professionals held in Abidjan, Cote d’Ivoire. AFRICA 2009 was a ten-year programme aimed at integrating the conservation of immovable cultural heritage into a sustainable development framework in sub-Saharan Africa. The programme, like its predecessor in the area of movable heritage, operated primarily through strengthening the capacity and capability of a broad spectrum of professionals to better manage and care for their heritage resources and by building and enhancing networks of professionals both in and outside Africa. Activities included courses, seminars, research projects, publications and newsletters, and projects at specific sites in the region. These projets situes have been carried out at several World Heritage Sites including the Asante Traditional Buildings (Ghana), Tombs of Buganda Kings at Kasubi (Uganda), and Khami Ruins National Monument (Zimbabwe). Others include the Kondoa Rock Painting Site (Tanzania) and James Island (The Gambia).70 Africa 2009 helped in many ways to enhance in manifold ways the conservation of immovable cultural heritage in sub-Saharan Africa through a sustainable development process. It has also helped in better recognition of African immovable heritage, which is one of the objectives of the Global Strategy of the UNESCO World Heritage Centre. Countries in the sub-region must replace current legislation, aligning the new enactments with the latest concepts and needs for a vibrant immovable cultural property management. The legislation for each country must incorporate environmental impact assessment and heritage impact assessment into its monitoring schemes. Furthermore, the legislation must confer power on the cultural heritage agency to make subsidiary legislation under the enabling Act. This is an invaluable and potent device which has been used as a tool to fill in the details or gaps in modern legislation. Effective cultural heritage management in the United Kingdom, for example, has been done not solely through the various enabling Acts but principally through the instrumentality of subordinate legislations made under them. It is the various statutory instruments, Department of Environment Circulars, and Planning Policy Guidance Notes that give efficacy to the enactments.71 This fundamental point must be grasped. Any Act for the protection, preservation, and conservation of immovable cultural heritage will remain a skeletal construct. To the bones must be attached the flesh of regulations, rules, and orders. An adroit use of subsidiary legislation to augment the enabling law can have a profound impact on the effectiveness of immovable heritage protection, preservation, and conservation. 69 ICCROM Newsletter No. 25 July 1999, 8; ICCROM Newsletter No 26 October 2000, 30; PREMA Newsletter, No 8, 3–5. 70 Africa 2009: Conservation of Immovable Cultural Heritage in Sub-Saharan Africa . 71 John Pugh-Smith and John Samuels, Archaeology in Law (Sweet & Maxwell, London 1996).

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Chapter 35

Asi a Keun-Gwan Lee*

1. Introduction Asia, which is an expansive and diverse region, has undergone a rapid socioeconomic transformation, largely after the European model. This change has posed a serious challenge for its cultural heritage. Overwhelmed and dazzled by the apparent superiority of modern European civilization, not enough regard was paid to the traditional culture and ways of life. Against this background, a large portion of Asian cultural heritage, both tangible and intangible, suffered significant damage and destruction. For instance, in the early days of Mao Zedong’s era, Beijing’s 500-year-old wall, ‘probably the largest and most complete city wall left in the world’, began to be razed due to the zeal to ‘transform the imperial capital into a socialist showcase’.1 The dramatic socioeconomic growth in Asia had a hefty downside in terms of protection of cultural heritage. The accelerated expansion of cities often led to the demolition of centuries-old inner-city neighborhoods.2 The economic development has fostered an increasing appetite for cultural artefacts, which is often sated by illegal excavations and illicit traffic.3 It needs to be remarked that these activities (in particular, in the still developing parts of Asia) are not infrequently sustained and nurtured by the presence of overseas markets.

* Part of this contribution is based on the report titled ‘An Overview of the Implementation of the 1970 Convention in Asia’ submitted by the author to the the Second Meeting of States Parties to the 1970 Convention which was held in Paris (UNESCO Headquarters) on 20–21 June 2012. 1 ‘The Antique that Mao Destroyed: A Regretful Beijing is Rebuilding its Wall’ The Economist (24 October 2002). 2 Jonathan Kaiman, ‘Razing History: The Tragic Story of a Beijing Neighborhood’s Destruction’ The Atlantic (9 February 2012). 3 For a discussion of this question, see Section 2.1.

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836 Keun-Gwan Lee The ascendancy of this region on the international stage is being accompanied by the recovery of self-confidence. In particular, China—which went through a ‘century of humiliation’ until the founding of the People’s Republic of China in 1949—feels that its humiliation is perpetuated by the presence abroad of looted cultural objects of Chinese origin. Its sense of mortification is aggravated when these objects are commercially traded in art markets (for instance, when they are put on the block at international auction houses). A similar bone of contention can be found in the bilateral relations between Korea and Japan. Despite some attempts for reconciliation by the ‘turning over’ of cultural objects of Korean origin by Japan in 1965 and 2010, the problem appears to linger on and even fester. In South East Asia, one encounters the same question—that is, return of cultural objects displaced during the colonial period to their countries of origin. From this short description, it becomes clear that Asia is confronted with a plethora of challenges for its cultural heritage. In this short contribution it is impossible to do justice to all the problems the cultural heritage of this expansive and diverse region is facing. To begin with, the meaning of cultural heritage itself is very broad, having some grey zone. Albeit not exhaustive, the list of UNESCO Conventions attests to the wideranging meaning of cultural heritage. Until recently, UNESCO’s focus has been largely on the protection of the tangible cultural heritage. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,4 the first-ever UNESCO Convention on cultural heritage, is a case in point. Another major contribution in this field, the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,5 also concerns tangible cultural heritage, together with the 1995 UNDROIT Convention on Stolen or Illegally Exported Cultural Objects.6 The 2001 Convention on the Protection of the Underwater Cultural Heritage7 is also geared towards tangible cultural heritage located under the sea. One of the most widely adhered to treaties, the 1972 Convention on the Protection of the World Cultural and Natural Heritage, falls into the same category. The focus of the UNESCO on tangible cultural heritage underwent some adjustment with the adoption—and exceptionally speedy and wide acceptance—of the 2003 Convention on the Safeguarding of the Intangible Cultural Heritage. In this contribution, due to space constraints, I concentrate on the protection of tangible cultural heritage, with particular reference to the illicit traffic in cultural objects. I also discuss in some detail the return of cultural objects to their countries of origin.

4 For a detailed analysis of this Convention, see Jiri Toman, Protection of Cultural Property in the Event of Armed Conflict (Taylor and Francis 2017). 5 For a detailed analysis of this Convention, see Patrick J. O’Keefe, Commentary on the 1970 UNESCO Convention (2nd ed, Institute of Art and Law 2007). 6 For a detailed analysis of this Convention, see Lyndel V. Prott, Commentary on the UNIDROIT Convention (Institute of Art and Law 1997). 7 For a detailed analysis of this Convention, see Patrick J. O’Keefe, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage (2nd ed, Institute of Art and Law 2014).

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Asia 837 As regards the geographical coverage, how to define the term ‘Asia’ is a thorny question. In this contribution, I will adopt the method used by the United Nations system, including its method of dividing the forty-eight Asian States into various regions: Central Asia, East Asia, Southern Asia, South East Asia and Western Asia.8 Due to constraints in terms of space and ability, I will limit myself to the discussion of two sub-regions, namely, East Asia (mainly China, Japan, and Korea) and South East Asia (mainly the ASEAN States). In Section 2 dealing with East Asia, I will start by describing the serious threats posed to the cultural heritage of the sub-region (2.1). I will go on to discuss the legislative efforts of China, Japan and Korea to respond to these threats (2.2). I will proceed then to the consideration of (the lack of) of international cooperation in East Asia (2.3). This discussion will be followed by the consideration of the return of cultural objects to their countries of origin in East Asia (2.4). In Section 3, I will describe the dangers the cultural heritage of South East Asia is exposed to by looking into the Cambodian case as a representative example (3.1). An overview of the legislative responses by the States in the sub-region will follow (3.2). After discussing the present state of international cooperation (3.3), the return of cultural objects to their countries of origin will be briefly considered (3.4).

2. East Asia 2.1 The Rise of Asia in the Art Market and Its Shadow The spectacular growth of the art market in Asia, in particular in China, is now a matter of public knowledge. A well-known annual publication on the global art market describes the rise of China as follows: After emerging from virtually nowhere (with less than 5% of global sales up to 2006), China overtook the UK’s long-established second place in 2010. [The US has been the leading market for the past 20 years, bar one, when sales in China tempor arily overtook it by a slight margin in 2011] With Chinese sales embarking on an unprecedented boom and the British market recovering from the fallout of the global financial crisis, China maintained dominance until 2014. In 2015 and 2016, the UK regained some share and moved up in the global ranks again, however, a strong year of sales in China in 2017 and a weak pound meant that in 2017 China was once again in second position by a small margin.9 In 2016, after a fall in the value of US auction sales, the Chinese auction market was the largest worldwide, accounting for 34% of total sales (versus 32% in the US).10 8 This classification follows the method adopted by the United Nations Statistics Department at accessed 25 May 2019. 9 Clare McAndrew, The Art Market 2018: Art Basel and UBS Report, 34. 10 Ibid, 108.

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838 Keun-Gwan Lee Chinese collectors’ interest is not limited to their own artists, such as the Chinese painter Qi Baishi. They are expanding into Western and contemporary art. It is also to be noted that as the Chinese art market ‘sizzles’, the largest boom has been in Chinese antiquities.11 As was eloquently demonstrated by the 2009 controversy over the auction of the two artefacts originating from the Yuanmingyuan (more about this in Section 2.4), there has been an acutely heightened interest in the repatriation of the Chinese cultural objects that had been displaced and scattered all over the world since, in particular, 1860.12 The exponential growth in demand for antiquities has had far-reaching and serious repercussions on the protection of cultural objects in China.13 Even before the arrival of the booming art market in China, illegal excavations or thefts of cultural objects were a serious problem. Faced with an increasingly serious problem of illicit trafficking in cultural objects, the Chinese State Council promulgated a notice on the Suppression of Illicit Excavation and Smuggling of Cultural Objects in 1987. In its preamble, the notice observed the high incidence of illicit excavations and smugglings of cultural objects in China and warned about the dangers these illegal activities posed for Chinese society.14 The notice also pointed out in its preamble that the existence of an overseas market for the smuggled Chinese cultural objects worked as a stimulant and catalyst for illegal activities.15 In 1991, the State Bureau of Cultural Relics had already noted that the damage arising from illegal excavations was unprecedented.16 The persistence of illegal excavations of and illicit traffic in cultural objects is demonstrated by a slew of newspaper articles reporting on these crimes.17 Needless to say, in this region the problems of illegal excavations and illicit traffic are not limited to China. The same problems are replicated in other countries of the region, and the issue of illicit traffic in cultural objects sometimes flares up into a diplomatic controversy. In October 2012, a group of Korean individuals travelled to a Japanese island (Tsushima, which is close to the Korean port city of Busan) and stole two Buddha statues, one from a Buddhist temple (Kannonji), the other from a Shinto shrine (Kaijin Jinja). The Japanese government notified the Member States of the 1970 UNESCO Convention of the theft in accordance with its 2002 law, which was adopted for the implementation of the Convention. In January 2013, four Korean individuals were 11 ‘Asian Art Market Sizzles’ China Daily (6 April 2011). 12 Ibid. 13 For a description of the pillaging of cultural heritage sites and the theft of cultural objects from collections, see Stefan Gruber, ‘The Fight against the Illicit Trade in Asian Cultural Artefacts: Connecting International Agreements, Regional Co-operation, and Domestic Strategies’ (2013) 3 Asian Journal of International Law 341–63. 14 J. David Murphy, Plunder and Preservation: Cultural Property Law and Practice in the People’s Republic of China (Oxford University Press 1995) 68–9. 15 For the text of the Notice, see Xin Zhongguo Wenwu Fagui Xuanbian (‘New Selection of China’s Laws and Regulations on Cultural Relics’) (Wenwu Chubanshe 1987) 327–31. 16 Murphy, Plunder and Preservation (n 14) 69. 17 For information on these cases, see the following websites: ; ; ; ; ; ; , all accessed 25 May 2019.

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Asia 839 arrested in Korea for stealing the statues. Initially, this case appeared very simple. The statues were imported into Korea through theft. And, unlike the 1990s when similar cases occurred, both Korea and Japan were now parties to the 1970 Convention (Japan ratified the Convention only in 2002, Korea in 1983). However, complications arose because a Buddhist temple (Buseoksa) in Chungcheong Namdo province of Korea claimed to be the owner of a statue. In support of its claim, the temple invoked a document found within the Buddha statue which recorded that the statue had been ‘eternally’ dedicated to that temple in 1330.18 The exact circumstances under which this statue was taken to the Japanese island have not been established. Concerning this question, a Korean historian claimed that it is probable that it had been looted by what are known as wako, ‘Japanese pirates’, who were active in the area close to the temple in the mid-to-late fourteenth century. The Korean temple filed a claim for an injunction seeking retention of the Buddha statue in Korea, thus preventing the Korean government from returning the statue to Japan. In February 2013, Daejon District Court ruled in favour of the temple. In the meantime, another Buddha statue was returned to Japan in 2015 since there was no evidence proving the illegality of its export and there was no one claiming ownership over the statue within Korea.19 As regards the ownership of the Buddha statue that remains in Korea, Daejon District Court held in January 2017 that there were sufficient grounds to presume that the statue had been taken to Japan in a not normal manner in light of, among other things, historical records that the area where the statue was located was invaded by wako five times in the latter half of the fourteenth century.20 The court ordered the Korean government to return the statue to the claimant temple. However, the Korean government appealed the judgment and also requested an injunction for the suspension of the execution of the judgment. This request was accepted and, as a result, the Buddha statue is to remain under the custody of the National Research Institute of Cultural Heritage until the end of the appeal proceedings. The deterioration in the relations between Korea and Japan over, among other things, the ‘unfortunate past’ appears to have added to the potency and complexity of the controversy.

2.2 Domestic Legislation on the Protection of Cultural Heritage 2.2.1 China As early as 1930 the nationalist government promulgated legislation to preserve antiquities.21 However, it was only after the establishment of the People’s Republic of 18 See accessed 25 May 2019. 19 See accessed 25 May 2019. 20 See accessed 25 May 2019. 21 James Ding, ‘China’ in James A. R. Nafziger and Robert Kirkwood Paterson (eds), Handbook on the Law of Cultural Heritage and International Trade (Edward Elgar 2014) 107.

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840 Keun-Gwan Lee China in 1949 that various measures to protect cultural heritage were put in place and regional authorities in charge of the protection and management of cultural heritage were established.22 It would be an understatement to say that the protection and management of cultural heritage was seriously hindered during the Cultural Revolution (1966–76). A large number of cultural objects were destroyed and damaged during this political and social upheaval. China resumed its protection of cultural heritage in a systemic way in the 1980s. It was in 1982 that China introduced a comprehensive law on the subject titled Wenwu Baohufa (‘Law on the Protection of Cultural Relics’).23 This law has been amended six times since its promulgation: in 1991, 2002, 2007, 2013, 2015, and 2017.24 Extensive amendment and supplementation took place in 2002, when the number of articles increased from thirty-three to eighty.25 A substantial amendment of the law was advertised in December 2015 which would have increased the total number of articles to more than 110. However, the fifth amendment of the law (November 2017) was fairly limited. A series of regulations and supplementary rules have been adopted to facilitate the implementation of the law.26 The basic distinction found in the law on the protection of cultural relics is between unmovable cultural relics (Chapter 2) and movable cultural relics (chapters 3–6). Chapter 7 provides for ‘legal responsibilities’—that is, various sanctions (civil, administrative, and penal) in case of violation of the relevant provisions of the law. It needs to be noted that the Penal Code contains a number of provisions governing the cultural heritage–related crimes such as smuggling (art 151), theft (art 264), and illegal excavation (art 328). Committing some of these crimes under aggravating circumstances can result in the imposition of a sentence of up to life imprisonment.27 The category of intangible

22 Ibid, 107–8. For a comprehensive compilation of the laws, regulations, and other normative documents on the protection and management of cultural heritage from 1949 until 2009, see Guojia Wenwuju (‘State Administration of Cultural Heritage’) (ed), Zhongguo Wenhua Yichan Shiye Fagui Shiye Wenjian Huibian (‘Compilation of Legal Documents on the Matter of Chinese of Cultural Heritage’) (Wenwu Chubanshe 2009). 23 For the diverse translation of the term wenwu, see Phillip Newell, ‘The PRC’s Law for the Protection of Cultural Relics’ (2008) 5 Art, Antiquity and Law 13. 24 The English text of the 2013 version of the Law can be found at accessed 25 May 2019. 25 For a detailed discussion of this amendment in 2002, see Zhengxin Huo, ‘Legal Protection of Cultural Heritage in China: A Challenge to Keep History Alive’ (2016) 22 International Journal of Cultural Policy 499. For an elaborate analysis of the 2002 Law, see Newell, ‘The PRC’s Law’ (n 23) 1–58. 26 For a selection of the legal documents on the protection of cultural heritage, see Guojia Wenwuju (‘State Administration of Cultural Heritage’) (ed), Wenwu Baohu Falü Wenjian Xuanbian (‘Selection of Legal Documents on the Protection of Cultural Relics’) (Wenwu Chubanshe 2012). 27 The imposition of death penalty was repealed for all crimes related to cultural relics when the rele vant provisions were revised in 2011. Stefan Gruber, ‘Perspectives on the Investigation, Prosecution and Prevention of Art Crime in Asia’ in Saskia Hufnagel and Duncan Chappell (eds), Contemporary Perspectives on the Detection, Investigation and Prosecution of Art Crime: Australasian, European and North American Perspectives (Ashgate 2014) 221–35.

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Asia 841 cultural heritage is separately regulated by the Law on Intangible Cultural Heritage Law (Feiwuzhi Yichan Fa) which was promulgated in 2011.28 A noticeable character of the Law on the Protection of Cultural Relics is its emphasis on the value of Chinese cultural relics for ‘education in patriotism and revolutionary tradition’.29 With the growth of nationalistic tendency within China, the political import ance of China’s cultural heritage is increasingly highlighted. For instance, in October 2018 the Communist Party of China and the State Council published a document entitled Guanyu Jiaqiang Wenwu Baohu Liyong Gaigede Ruogan Yijian (‘Opinions on How to Strengthen the Protection and Utilization of Cultural Relics’). In the part describing the ‘basic principles’ of the document, the protection and utilization of cultural relics should ‘provide mental impetus for the realization of the Chinese dream of great rejuvenation of the Chinese nation’. The future amendment of the Law on the Protection of Cultural Relics will probably reflect some of the ideas forcefully presented in this document. Concerning cross-border movements of cultural objects, Chapter 6 of the Law on the Protection of Cultural Relics is titled ‘Export and Import of Cultural Objects’. This chapter, which has four articles, is geared largely towards control of export of Chinese cultural objects. On that question, the law puts in place detailed provisions for a strict regulation of the outbound flow of Chinese cultural objects. The chapter devotes one article (art 63) to the inbound flow of foreign cultural objects. The article deals only with the case of temporary import of cultural objects. As is the case with Japan and Korea, there is regulatory asymmetry between export and import of cultural objects; there is hardly any restriction on the import of cultural objects, whereas strict controls are in place over their export.30 A highly detailed document, the Review Standards on the Exit of Cultural Objects (promulgated on 13 July 2007), proves the point. Here one can find a number of detailed provisions on the inspection of exported cultural objects; in contrast, there are only two articles on the temporary import of cultural objects for res toration, exhibition, sale, or appraisal. On the question of bona fide acquisition (Shanyi Qude), there exists in China a heated debate on whether this rule applies to stolen goods. Concerning whether this rule should apply to stolen cultural objects or not, there is a suggestion that the application of the rule be recognized when the purchase is made from a company that trades in or auctions cultural objects.31 In contrast, an op-ed column in the official newspaper of the Supreme People’s Procuratorate of the PRC proposes that the rule of bona fide acquisition 28 The English translation of the 2011 Act can be found at accessed 25 May 2019. 29 Art 1 of the Law on the Protection of Cultural Heritage. 30 For a newspaper articles explaining the procedures for import and export of, among others, cultural objects and works of fine arts, see Renmin Ribao (Haiwaiban), Xiedai Shoucangpin Ruhe Jinchujing (‘Hand-carrying Cultural and Art Objects, Procedures for Export and Import’) (5 July 2014) at accessed 25 May 2019. 31 Li Yuanjie, ‘Woguo Wenwu Zangwu Shanyi Qude Zhidu Tanxi’ (‘An Analysis of the Question of Bona Fide Acquisition of Stolen Cultural Objects in China’) (2017) 3 Gugong Bowuyuan Yuankan 125.

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842 Keun-Gwan Lee should not apply to stolen cultural objects. In addition to the support deriving from a comparative law consideration (in particular, the Dutch legislation) and the relevant international treaties such as the 1970 and 1995 Conventions, the author argues that such an approach would be instrumental in repatriating the looted cultural objects of Chinese origin.32

2.2.2 Japan In the pre-1945 period, Japan promulgated a couple of laws on the protection of cultural objects, such as Shiseki Meisho Tennen Kinen-butsu Hozonho (‘Law on the Preservation of Historic Sites, Places of Scenic Beauty and Natural Monuments’) (1919), Kokuho Hozonho (‘Law on the Preservation of National Treasure’) (1929),33 and Juyo Bijutsuhin Tono Hozon ni Kansuru Horitsu (‘Law on the Preservation of Important Art Objects and Others’) (1933). These pieces of legislation were consolidated into the Bunkazai Hogoho (‘Law on the Protection of Cultural Properties’).34 This law did not merely consolidate the existing laws on the preservation of cultural objects; it introduced such new categor ies as Mukei Bunkazai (‘intangible cultural properties’) and Maizo Bunkazai (‘buried cultural properties’).35 There are also other laws such as the Koto Hozonho (‘Ancient Capitals Preservation Law’) and Keikanho (‘Landscape Act’). Japan successfully carried out its project of modernization earlier than other Asian countries. In doing so, Japan put in place an articulate legal system of cultural heritage conservation that had a substantial influence on the subsequent legislation adopted by its Asian neighbours. In particular, the concept of ‘intangible cultural properties’ that came to be stipulated in the 1950 Law on the Protection of Cultural Properties36 found its global acceptance through the broad adoption and implementation of the 2003 UNESCO Convention on the Safeguarding of Intangible Cultural Heritage. Concerning the question of protection of cultural objects on the international dimension, how do the Japanese legislation and practice measure up? The Law on the Protection of Cultural Properties does not include many provisions on this problem. Article 44 of the law provides for the prohibition of the export of important cultural properties unless ‘the Commissioner for Cultural Affairs grants permission therefor in 32 Jin Quan, ‘Yi Shanyi Yu Guocuo Biaozhun Hengliang “Daozang” Shanyi Qude’ (‘Evaluating the Bona Fide Acquisition of Stolen Objects by Using the Standards of Good Faith and Negligence’) Jiancha Ribao (3 July 2017) at accessed 25 May 2019. 33 The original 1897 Koshaji Hozonho (‘Law on the Preservation of Ancient Shrines and Temples’) was amended to become this law. 34 For a detailed discussion of Japan’s cultural heritage conservation system, see Natsuko Akagawa, Heritage Conservation in Japan’s Cultural Diplomacy: Heritage, National Identity and National Interest (Routledge 2015) Chapter 3. 35 For a detailed discussion of the half-century history of the law, see Bunkachou (‘Agency for Cultural Affairs’), Bunkazai Hogohou Gojunenshi (‘A Fifty-year History of the Law on the Protection of Cultural History’) (Gyousei 2001). 36 The text of the 2007 version of the law can be found at accessed 25 May 2019.

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Asia 843 recognizing its special necessity for international exchange of culture or for other reasons’. Article 82 obligates any person who intends to export an object of ‘important tangible folk cultural property’ to obtain the permission of the Commissioner for Cultural Affairs.37 Within the law itself, there is no provision regulating the import of cultural objects from abroad. The regulatory asymmetry between the export and import of cultural objects is fairly conspicuous. This may not be surprising in light of the fact that Japan has remained a major ‘market country’ attracting a large amount of illegally transferred cultural objects. Japan took a step to rid itself of its reputation as ‘the looter of cultural assets’38 in 2002 by ratifying the 1970 UNESCO Convention. For the domestic implementation of the Convention, Japan promulgated a new piece of legislation titled ‘the Act on Controls on the Illicit Export and Import of Cultural Property’ and amended some relevant provisions of the Act for the Protection of Cultural Properties. The core provision of the 2002 Act is article 3, which provides for the designation of ‘[foreign] cultural property [that] has been stolen from an institution stipulated in article 7(b)(i) of the Convention’ as ‘specified foreign cultural property’. This designation is made by the Minister of Education, Culture, Sports, Science, and Technology upon notification by the Minister of Foreign Affairs of theft from a foreign government. Specified foreign cultural property can be imported into Japan only with import approval in accordance with the provisions of article 52 of the Foreign Exchange and Foreign Trade Law (art 4). This means import of the specified foreign cultural property is virtually impossible. Thus, the coverage of the 2002 law is fairly limited. It applies only to the case of import of cultural property stolen from a museum or other institution. The law does not have within its purview the case of export without an export certificate provided for in article 6(b) of the Convention. The 1970 Convention, which was the end product of a complicated and difficult compromise, suffers from ambiguous drafting. Under the circumstances, it may not be surprising that some parties to the Convention take a restrictive approach to the coverage of the Convention with particular reference to the interpret ation of article 6.39 Article 6 of the 2002 Act provides for an exception to the bona fide purchaser rule as stipulated in the Japanese Civil Code. The provision extends the period within which the victim of the theft may claim for recovery of the stolen cultural property up to ten years (under the Civil Code, two years). Given the negative attitude of the Japanese antique dealers towards the 1995 UNIDROIT Convention providing for a much longer period for recovery, there is little likelihood of Japan becoming a party to this Convention.40

37 There are other provisions regulating the export of cultural objects, such as arts 65, 168, 193, and 194. The last two articles provide for penal sanctions in case of unauthorized export of an object of ‘important cultural property’ and an object of ‘important tangible folk cultural property’. 38 Shigeru Kozai and Toshiyuki Kono, ‘Japan’ in Nafziger and Paterson, Handbook (n 21) 269. 39 O’Keefe, Commentary (n 5) 55–6. 40 Kozai and Kono, ‘Japan’ (n 38) 269.

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844 Keun-Gwan Lee

2.2.3 Korea Korea promulgated the Law on the Protection of Cultural Properties (Munhwajae Bohobeop) in 1962.41 At the time of promulgation, this law took the Japanese law with the same title as its template, and, as a result, one can find a significant degree of similarity between the Korean and Japanese law in, among other things, the definition of ‘cultural property’ and their overall structure. With the rapid development of Korean society and economy, the Korean law has evolved in the direction of incorporating a large number of provisions that address the concerns and problems with which Korean society has been confronted concerning cultural heritage. For instance, the amendment of the law in 2012 provided for the establishment of a government-funded Gug-oe Sojae Munhwajae Jaedan (‘Overseas Korean Cultural Heritage Foundation’), the functions of which include, among other things, ‘investigation and research on the current status of [Korean] cultural heritage overseas and the details of their removal from the country’ and ‘acquisition, preservation, and management of [Korean] cultural heritage overseas’ (art 69 ter). This provision reflects the keen interest within Korean society in the repatri ation of important cultural objects of Korean origin. Like many States in the region, illicit traffic in cultural objects is a cause of great concern in Korea. One not infrequently encounters media reports on disputes over the rightful owner of stolen cultural objects. The liberal rules on the bona fide acquisition as provided for in the Korean Civil Code often functioned as a hurdle to the recovery of stolen cultural objects. There have been a series of court judgments—most of which involve cultural objects stolen from Buddhist temples—where the courts decided in favour of individual collectors or museums invoking the rules of bona fide acquisition and acquisitive prescription. For instance, a Korean court held that the five Buddhist paintings stolen from a temple (Seonamsa) in 1978 had been duly acquired by the owners by dint of these rules.42 These decisions gave rise to an outcry, particularly in Buddhist circles, which led to the amendment of the Law on the Protection of Cultural Properties. According to this amendment, as from July 2007 the rule of bona fide acquisition does not apply to cultural objects publicly announced as stolen or lost (art 87, para 5). Korea ratified the 1970 Convention in 1983. Instead of adopting a separate law for its domestic implementation, Korea amended the relevant parts of the Act for the Protection of Cultural Properties. Most requirements under the 1970 Convention were largely met by the relevant provisions of the Act. Under the pre-amended Act, a gap existed concerning the protection of foreign cultural property. The gap was filled by inserting a new article 78 (renumbered in 2007 as art 97) titled ‘protection of foreign cultural property’ into the law. 41 The English text of the 2015 version of the law can be found at accessed 25 May 2019. Here the title of the law is rendered as ‘Cultural Heritage Protection Act’. 42 See accessed 25 May 2019. See also Judgment No 2009NA18816 of Busan High Court (Rendered on 28 September 2011) at accessed 25 May 2019.

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Asia 845 This article provides, among other things, a general obligation of protecting foreign cultural property, the competence to impound foreign cultural property upon wellfounded suspicion that it is illegally exported from its country of origin, and the duty to take necessary measures for the return of foreign cultural property which has been illegally exported. The Act as it was amended in 1982 reflected an extensive interpretation of the duties imposed by the Convention. For foreign cultural property to be legally imported into Korea, documents establishing that it was legally exported from the foreign country in question should be produced. However, the clause providing to that effect was deleted in 1999 under the pretext of ‘abolishing ineffective administrative practices’. The Act was extensively amended in 2007, among others, reflecting the spirit of the 1995 UNIDROIT Convention by excluding the rule of bona fide purchasers in certain categories of transactions in cultural objects. To provide for a more detailed regulation for the protection of intangible cultural heritage, Korea promulgated in 2015 the Law on the Preservation and Promotion of Intangible Cultural Property.43 Under that law, an International Information and Networking Center for Intangible Cultural Heritage for the Asia-Pacific Region under the auspices of UNESCO was established.

2.3 (Lack of) International Cooperation in East Asia Concerning the suppression of the illicit traffic in cultural objects, countries in the subregion resort to bilateral as well as multilateral cooperation on the international plane. For instance, in 2009 China entered into a bilateral agreement with the United States of America in the form of a Memorandum of Understanding concerning the Imposition of Import Restrictions on Archaeological Material from the Paleolithic Period through the Tang Dynasty and Monumental Sculpture and Wall Art at least 250 Years Old, which was extended in 2014.44 At the multilateral level, the 1970 Convention and the 1995 Convention exist. China, Japan, and Korea are all parties to the former Convention, which had 138 parties as of the end of 2018. As regards the 1995 UNIDROIT Convention, which had forty-four States Parties at the end of 2018, China alone is a party. Therefore, the 1970 Convention, which is generally regarded as ‘le principal instrument multilatéral’ for the suppression of illicit traffic in cultural objects,45 is supposed to work as a common normative framework for cooperation among these States.

43 The text of the law can be found at accessed 25 May 2019. 44 The text of the 2009 and 2014 memorandums can be found at accessed 25 May 2019. 45 Guido Carducci, La Restitution des Biens Culturels et des Objets d’Art (Librairie Générale de Droit et de Jurisprudence 1997) 134–5.

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846 Keun-Gwan Lee However, the following questions can be raised about the role of the 1970 Convention in East Asia. First, the ratification of the 1970 Convention has led China, Japan, and Korea to introduce implementing legislation. However, one may be justified in questioning the comprehensiveness and effectiveness of the legislation. Ambiguities lurking in the Convention have resulted in the differing conceptions of duties imposed by the Convention. As was shown in Section 2.2.2, some States have adopted implementing legislation reflecting a restricted view of the duties to be discharged under the Convention. The lack of a uniform conception of the Convention’s substantive extent or scope places significant hurdles to a smooth operation of the Convention. It needs also to be pointed out that the relevant legislation in China, Japan, and Korea concerns itself mostly with the outbound flow of cultural objects, while paying much less attention to the inbound traffic. Secondly, the problem of illicit traffic in cultural objects is serious in the sub-region. Under the circumstances, sub-regional cooperation at various levels is essential to address the problem. However, there exist no effective institutional mechanisms or arrangements for regional collaboration. This situation constitutes a stark contrast with the European Union which has adopted binding instruments regulating the problem.46 East Asia does not have even a soft-law instrument along the lines of the 2000 ASEAN Declaration on Cultural Heritage. Thus, there is a strongly felt need for improving the normative framework for regional cooperation in East Asia.

2.4 Return of Cultural Objects to Their Countries of Origin In discussing the suppression of illicit trade in cultural objects in East Asia, one needs also look at the closely related question—that is, the return or repatriation of cultural objects originating from this sub-region, in particular from China and Korea. The issue of return or restitution of cultural objects to the countries of their origin has recently acquired a high profile in international society.47 However, nowhere has this issue attracted more heightened attention than in China. In particular, the controversy surrounding the auction of the Yves Saint Laurent and Pierre Bergé collection in the spring of 2009 highlighted the sensitivity of the question in China. Apprised that Christie’s planned to auction off a collection that included two Qing-period bronze animal heads (one depicting a rabbit and the other a rat) looted by

46 For instance, Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods and Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast). The European Union did not have common rules on the import of cultural objects. To address this problem, a proposal for a Regulation of the European Parliament and the Council on the import of cultural goods was made in July 2017 (COM/2017/0375). 47 For a detailed discussion of this question, see Ana F. Vrdoljak, International Law, Museums and the Return of Cultural Objects (Cambridge University Press 2006).

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Asia 847 the British and French ‘invaders’ in 1860,48 the Chinese side put pressure on the auction house to stop the sale.49 Sixty-seven Chinese lawyers initiated a lawsuit before a French court requesting that Christie’s withdraw the bronzes from the auction. They also asked the court to order the return of the looted artefects to China. The court rejected their request and the auction proceeded as planned. The objects were auctioned off to a Chinese bidder for the price of 31 million euros. The whole controversy took a further twist when the Chinese collector refused to pay for the sculptures.50 The poignancy of this question among the Chinese people is amply demonstrated by the observation of a Chinese lawyer who called the Old Summer Place ‘[China’s] unhealed scar, still bleeding and aching’.51 It needs to be noted that the controversy over the Yves Saint Laurent collection broke out against the background of China becoming activist over the issue of return or restitution of cultural objects of Chinese origin to their country of origin. Recently it has become a noticeable trend for Chinese collectors to buy, in the West and Hong Kong, cultural objects originating from China and repatriate them to China. In October 2002, the Foundation of Chinese Social and Cultural Development, which is under the auspices of the Ministry of Culture, established a Lost Cultural Relics Recovery Fund. In July 2003, China also launched a national project on the recovery of the treasures displaced abroad (called Guobao gongcheng, ‘National Treasure Project’).52 Since the mid-1990s, China has sent experts to Japan and the West to conduct surveys on cultural objects of Chinese origin.53 In the autumn of 2009, when the memory of the controversy over the Yves Saint Laurent collection was still vivid, China decided to send a team of experts abroad to make an inventory of cultural objects taken from the Old Summer Palace.54 In November 2009, a senior Chinese diplomat posted to the United Nations criticized the auction of the two bronzes from the Old Summer Palace and affirmed that ‘protecting cultural heritage and promoting the restitution of cultural property to the countries of origin are inalienable and fundamental cultural rights of the people of countries of origin’.55 48 For a detailed discussion of the looting of Yuanmingyuan (‘Garden of Perfect Brightness’, popularly known as the Old Summer Palace) in 1860 and 1900, see James Hevia, ‘Looting Beijing: 1860, 1900’ in Lydia H. Liu (ed), Tokens of Exchange: The Problem of Translation in Global Circulations (Duke University Press 1999) Chapter 7. 49 David Barboza, ‘China Seeks to Stop Paris Sale of Bronzes’ The New York Times (17 February 2009). 50 Tania Branigan, ‘Chinese Bidder Refuses to Pay for Yves Saint Laurent-owned Artefacts’ The Guardian (2 March 2009). 51 Barboza, ‘China Seeks to Stop Paris Sale of Bronzes’ (n 49). 52 ‘More than 10 Million Chinese Cultural Relics Lost Overseas’ People’s Daily (30 January 2007), at ,accessed 25 May 2019. 53 ‘Chinese NGO to Recover China’s Lost Cultural Relics from Overseas’ People’s Daily (14 March 2006), at accessed 25 May 2019. 54 ‘Les vestiges du Palais d’été recensés’ Le Figaro (19 October 2009). 55 ‘China Opposes Sale of Looted Cultural Relics: Diplomat’ People’s Daily (17 November 2009), at accessed 25 May 2019. The two bronze heads were bought and then returned by the Pinault family (which runs the company that owns Christie’s) to China in June 2013. Terril Yue Jones, ‘Two Bronze Animal Heads, Stolen 153 Years Ago, Returned to China’ Reuters (29 June 2013), at accessed 25 May 2019.

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848 Keun-Gwan Lee The State Administration of Cultural Heritage has consistently expressed the same view whenever cultural objects looted from the Old Summer Place or illicitly displaced from China are put on the auction block.56 This position of the Chinese Government was given a clearer form in October 2016 when the State Administration of Cultural Heritage adopted a document entitled ‘Administrative Measures on the Auction of Cultural Relics’. Article 14(ii) provides that ‘[s]tolen, illegally excavated, or smuggled cultural relics or Chinese cultural relics which were clearly looted in the past in an illicit manner shall not be the objects of auction’.57 Given such developments, it would not be unreasonable to predict that in the coming decades one will see China more actively promoting the return or restitution of cultural objects (in particular, cultural objects of Chinese provenance) to their countries of origin.58 Combined with the increasingly high profile of the issue in the international community and the growing practice of return or restitution, China’s policy and practice is likely to have a substantial impact on the future direction of the debate. East Asia still struggles with ‘un passé qui ne passe pas’. The thorny question of bringing closure to the ‘unfortunate past’ in this region takes many forms, and one of these is the return of cultural objects displaced during colonial or military occupation. Let us briefly discuss the bilateral relations between Korea (the official title is the Republic of Korea, which is widely known as South Korea) and Japan. Korea was colonized by Japan for thirty-five years, from 1910 until 1945. During the long and arduous negotiations for the normalization of diplomatic ties between the two States, the issue of returning cultural objects of Korean origin was discussed. In 1965, the two States concluded an Agreement on the Cultural Objects and Cultural Cooperation between the Republic of Korea and Japan.59 Article 2 of the Agreement provides that ‘[t]he Government of Japan shall . . . turn over to the Government of the Republic of Korea the cultural objects enumerated in the Annex within six months after the entry into force of the present Agreement’ (italics added). The expression ‘turn over’ was adopted as a compromise. During the negotiations, Korea insisted on the term of ‘restitution’, implying that those cultural objects had been illegally displaced, while Japan demanded that the expression ‘donation’ be used, proceeding on the legality of their displacement from Korea. While Korea requested the ‘restitution’ of 4439 items, the list annexed to the Agreement enumerates 1432 items.

56 Fazhi Wanbao, ‘Guojia Wenwuju Fandui Paimai Qianlong Yuxi’ (‘State Administration of Cultural Heritage Criticizes the Auction of Emperor Qianlong’s Seal’) (29 April 2009), at accessed 25 May 2019; Xinhuawang, ‘Guojia Wenwuju Chenggong Jiaoting Riben Mou Paimai Gongsi Paimai Woguo Liushi Wenwu’ (‘State Administration of Cultural Heritage Succeeds in Stopping a Japanese Auction Company from Auctioning Off Cultural Objects Displaced from China’) (4 November 2016), at . 57 See accessed 25 May 2019. 58 For a detailed discussion of this question, see Zuozhen Liu, The Case for Repatriating China’s Cultural Objects (Springer 2016); Meng Yu, ‘Approaches to the Recovery China’s Cultural Objects Lost Overseas: A Case Study from 1949 to 2016’ (2018) 24 International Journal of Cultural Policy 741. 59 For a brief discussion of the Agreement, see Shigeru Oda, ‘The Normalization of Relations between Japan and the Republic of Korea’ (1967) 61 American Journal of International Law 47.

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Asia 849 The conclusion and implementation of the 1965 Agreement did not bring the matter to a close. With the rapid development of its society and economy, Korea became aware of the presence of a much higher number of cultural objects of Korean origin within Japan and developed a strong interest in having important cultural objects located in Japan repatriated. Claims for further return of cultural objects of Korean origin were strongly put forth by some non-governmental organizations under the general blessing of Korean society. This development led to the conclusion of an Agreement on the Books between the Republic of Korea and Japan in 2010, the year that marked the centenary of Japan’s colonial annexation of Korea. In the implementation of this agreement, 1205 royal protocols and other books were ‘turned over’ to Korea in 2010–11. Article 1 of the agreement provides that ‘[t]he Japanese Government, as a special measure for the promotion of friendship between the two states and their nationals . . . turns over the books enumerated in the Annex within six months after the entry into force of the present Agreement’. It needs to be mentioned that there were voluntary returns by Japanese citizens who yearned for amicable relations between Korea and Japan. For instance, Hachiuma Tadasu donated 383 items to the National Museum of Korea in 1994. They are displayed on the second floor of the Museum under the name the Hachiuma Tadasu collection.

3. South East Asia 3.1 Serious Challenges for the Protection of Cultural Heritage in South East Asia—the Cambodian Experience Concerning the protecting of cultural heritage, South East Asia is confronted with a plethora of problems, in particular the illicit trade in movable cultural objects. This subregion, which is rich in cultural heritage, both tangible and intangible, has been going through a rapid socioeconomic transformation which constitutes a challenge and threat to the preservation and protection of cultural heritage. To aggravate the situation, some countries in the region were afflicted by cataclysmic events such as war (for instance, Vietnam), civil war, and foreign occupation (for instance, Cambodia). As a snapshot of these problems, let us look at the case of Cambodia. A notorious event in 1923 was emblematic of the challenges Cambodia has subsequently had to cope with in protecting its cultural heritage. In that year, a young Frenchman named André Malraux, who later became the French Minister for Cultural Affairs, was arrested for attempting to steal statues from the temple of Banteay Srei. He and his wife had planned to sell the stolen statues in the West. This cause célèbre took place in the context of substantial displacement of Cambodian artefacts to the museums and collections of Cambodia’s metropolitan state—that is, France. When Cambodia achieved independence in 1953, the government gave a priority to cultural conservation,

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850 Keun-Gwan Lee for instance actively participating in the international discussion leading to the adoption of the 1970 UNESCO Convention. Cambodia’s keen interest in this issue is demonstrated by, among other things, the fact that it was one of the first countries to ratify the Convention (in September 1972). However, civil war broke out in 1970, and five years later the Khmer Rouge came to power, which spelled doom for Cambodia’s cultural heritage. In the catastrophic turmoil that ensued, including Vietnam’s occupation of Cambodia (1979–89) and the continued civil war (until 1998), Cambodia’s cultural heri tage was subjected to systematic and massive destruction. It is reported that most of the looting and pillaging of cultural heritage in the 1970s and thereafter was organized by the Khmer Rouge regime itself in order to fund its activities.60 The end of the Vietnamese occupation (1989) left a power vacuum in Cambodia, and the country fragmented into several armed political factions.61 During the early 1990s, looting and the illegal traffic of Khmer artefacts became ‘an organized industry within Cambodia’.62 The gravity of the situation is shown by the fact that the temples of Angkor, which had largely survived the Khmer Rouge regime unscathed, were now under attack.63 Most of the illegally excavated Cambodian antiquities were taken out of the country, resurfacing on the ‘legitimate’ international art market, including well-known auction houses. According to an empirical study, one of the two leading international auction houses placed 377 Khmer objects on the block between 1988 and 2010. Of these items, 71 per cent had no published provenance or ownership history,64 strongly suggesting that they had been illicitly acquired.65 To respond to this problem, Cambodia took legislative measures, including criminalizing looting and the unauthorized export of artefacts, first in 1992 and again 1996.66 In addition to taking domestic action, Cambodia has actively participated in international efforts to suppress the illicit traffic in cultural objects. Cambodia was the first Asian country to ratify the 1995 UNIDROIT Convention as well as the 1970 UNESCO Convention. Domestic implementation of these Conventions by Cambodia has resulted in a law that provides for a detailed regulation of import as well as export of cultural objects. To protect its cultural heritage, put at risk by looting and illicit traffic, Cambodia has relied on bilateral as well as multilateral international agreements. For instance, in 1999, Cambodia, placing reliance on article 9 of the 1970 Convention, asked the United States government to impose emergency import restrictions on Khmer stone sculpture and architectural elements from Cambodia. The United

60 Noah Charney, ‘The Case of the Missing Feet: Antiquities and Terrorism in Cambodia’ The Observer (12 April 2017). 61 Tess Davis, ‘Supply and Demand: Exposing the Illicit Trade in Cambodian Antiquities through a Study of Sotheby’s Auction House’ (2011) 56 Crime, Law and Social Change 169. 62 Ibid. 63 Ibid. 64 Ibid, 163–6. 65 A researcher goes so far as to argue that ‘one can assume that all objects of Khmer art sold or exhibited outside Cambodia are acquired illegally’. Masha Lafont, Pillaging Cambodia: The Illicit Traffic in Khmer Art (McFarland & Company 2004) 58. 66 Davis, ‘Supply and Demand’ (n 61), 170. The English translation of the 1996 Law on the Protection of Cultural Heritage can be found at accessed 25 May 2019.

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Asia 851 States government complied with the request.67 In 2003, Cambodia and the United States signed a Memorandum of Understanding Concerning the Imposition of Import Restrictions on Archaeological Material from Cambodia from the Bronze Age through the Khmer Era, which has been extended and amended every five years.68 Despite these efforts by Cambodia, a decade of turmoil, coupled with the attractiveness of Cambodian cultural heritage, has led to a flooding of the market with Khmer antiquities.69 Recently, Cambodia has succeeded in repatriating a number of cultural objects looted and then illegally exported. For instance, the two statues taken from Koh Ker’s Praset Chen temple were returned by a major museum in New York in June 2013.70 They had been illicitly exported to the United States in the 1980s and early 1990s. Other statues taken from the same temple were later returned by major auction houses and museums in the United States, in some cases following a court dispute.71 According to a 2017 letter submitted by the Lawyers’ Committee for Cultural Heritage Preservation, a non-profit organization, in support of the extension of the Memorandum of Understanding between Cambodia and the United States of America, despite continued progress Cambodia still suffers widespread looting.72

3.2 Overview of the Domestic Legislation for the Protection of Cultural Heritage in South East Asia The Cambodian experience is a snapshot of the problems faced by some other countries in the sub-region. To respond to the threat to their cultural heritage, these countries have taken a series of measures, including strengthening their domestic legislation on the protection of cultural heritage and engaging in interstate cooperation by, among other things, concluding international agreements. That there has been improvement in domestic legislation in some of the countries in the sub-region is shown by the following survey. Malaysia promulgated the National Heritage Act in 2005. The adoption of this law repealed the Antiquities Act 1976 and the Treasure Trove Act 1957. A comparison of the 67 Federal Register vol 64 no 231 (2 December 1999) 67479, at accessed 25 May 2019. 68 The text of the 2003, 2008, and 2013 MOUs can be found at accessed 25 May 2019. The text of the 2018 Memorandum can be found at accessed 25 May 2019. 69 Abby Seiff, ‘How Countries Are Successfully Using the Law to Get Looted Cultural Treasures Back’ ABA Journal (July 2014), at accessed 25 May 2019. 70 Ibid. 71 Audrey Wilson, ‘Last Koh Ker Piece Coming Home’ The Phnom Penh Post (30 January 2016), at accessed 25 May 2019. 72 See accessed 25 May 2019.

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852 Keun-Gwan Lee 2005 Act with the 1976 Act shows the remarkable strides made in the field of protection of cultural heritage during the thirty years separating the two. While the 1976 Act had only thirty-five articles, the 2005 Act is composed of 126 articles.73 The former regulated tangible cultural heritage only, while the latter expanded its subject-matter jurisdiction to the category of intangible cultural heritage.74 The 1976 Act referred briefly to underwater cultural heritage in article 3(3) but did not contain elaborate provisions on underwater cultural heritage. The 2005 Act has a separate part on this category of cultural heritage. The 2005 Act also created the post of the Commissioner of Heritage (section 4), the organ of the National Heritage Council (Part IV), and the Heritage Fund (Part V). A remarkable difference between the two Acts concerns the regulation of the export and import of cultural objects. The 1976 Act had an elaborate set of provisions regulating ‘export of antiquities and historical objects’ in Part VI (sections 21–5). However, it did not have any provision on the import of cultural objects. In contrast, the 2005 Act has highly detailed provisions on the ‘importation of foreign heritage item’ (section 84) as well as the ‘license to export’ (section 83). Even though Malaysia is not a party to the 1970 UNESCO Convention, section 84 of the 2005 Act can be regarded as one of the most detailed national provisions that reflect the object and purpose of the Convention. The 1992 Indonesian Act on the Protection of Cultural Property (Undang-undang tentang Benda Cagar Budaya) can be described as rather skeletal, having only thirty-two articles. The 2010 Act on [Tangible] Cultural Heritage (Undang-undang tentang Cagar Budaya) provides for much more detailed definitions and regulations, having no fewer than 120 articles.75 The new Act provides for, among other things, return of cultural heritage of Indonesian origin found outside the territory of Indonesia (art 20). In 2009, the Philippines promulgated a comprehensive law entitled ‘National Cultural Heritage Act’. This Act consolidated various laws on the protection of cultural heritage. The comprehensiveness of the law is shown by its name during the drafting stage: ‘the Omnibus Cultural Heritage Law’.76 The 2009 Act was not simply a consolidation of various laws on the protection of cultural heritage. Improvements over the previous 73 The 2005 Act consolidated the 1976 Antiquities Act and the 1957 Treasure Trove Act. The latter Act, as subsequently amended, had about ten substantive articles. The simple addition of the number of art icles of the 1976 Act and that of the 1957 Act’s articles produces less than fifty, which shows a substantial expansion of the 2005 Act. 74 In art 2(1), the Act provides for the definition of ‘intangible cultural heritage’. However, unlike underwater cultural heritage, it does not have a separate chapter for intangible cultural heritage. Art 60 stipulates ‘conservation of intangible cultural heritage’. 75 For a detailed discussion of the history of the Indonesian legislation on the protection of cultural heritage, including a comparison of these two acts, see Isnen Fitri, Yahya Ahmad, and Ratna, ‘Cultural Heritage and Its Legal Protection in Indonesia since the Dutch East Indies Government Period’ 81 Advances in Social Science, Education and Humanities Research (ASSEHR) 1st International Conference on Social and Political Development (ICOSOP 2016), Medan, Indonesia, 127–34, at accessed 25 May 2019. 76 Background on Cultural Heritage Law of Philippines and Presentation of the Different Cultural Institutions and Actors (circa 2003), at accessed 25 May 2019.

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Asia 853 legislation include, among others, a redefinition of cultural heritage to include intangible as well as tangible cultural properties.77 Article VI, composed of sections 23 and 24, is titled ‘Regulating the Export, Transit, Import, and Repatriation of Cultural Property’. Section 23 provides for the regulation of export of cultural property. Section 24, reflecting the increasing interest in and demand for the repatriation of Philippines cultural objects illegally exported, charges the Ministry of Foreign Affairs with handling of repatriation claims.78 Vietnam adopted a comprehensive law on cultural heritage (Luật di sản văn hóa) in 2001 containing seventy-four articles.79 This law was amended and supplemented in, among other years, 2002 and 2009.80 Article 13 prohibits, among other things, ‘illegal shipment of relics, antiquities or national treasures abroad’. Article 43 (1) provides, among other things, that ‘[r]elics and antiquities may only be taken abroad with the permission of state authorities responsible for culture and information’. Article 44 stipulates the conditions to be met for the shipment of relics and antiquities abroad. In June 2016, the Prime Minister further elaborated on these provisions by issuing Decision No 23/2016/QĐ-TTg, according to which cultural objects categorized as national treasures (Bảo vật quốc gia, ‘objects handed down from the past with historical, cultural or scientific value of exceptional significance to the country’)81 may be taken abroad to serve State-level diplomatic activities of the Party General Secretary, the President, the Prime Minister, and the National Assembly Chairperson.82 The 2009 law places much emphasis on the protection of intangible cultural heritage.83 Reflecting the increasing 77 Art II, section 3(o) provides for the definition of ‘cultural property’ as follows: ‘all products of human creativity by which a people and a nation reveal their identity, including churches, mosques and other places of religious worship, schools and natural history specimens and sites, whether public or privately-owned, movable or immovable, and tangible or intangible’ (italics added). Sub-paragraphs (x) and (y) of the same section provide for the definitions of ‘intangible cultural heritage’ and ‘intangible cultural property’ respectively. 78 Even though art VI includes ‘import’ in its title, no regulation of import of cultural objects can be found in either section 23 or section 24. The predecessors of the 2009 Act—that is, the 1966 Act and the 1974 Act, both of which carried the title of ‘Cultural Properties Preservation and Protection Act’—provided in section 11 that ‘[n]o cultural property may be imported without an official certification of exportation from the country of origin’. Instead, section 48 (e) of the 2009 Act provides for penal sanctions for ‘whoever intentionally imports . . . cultural property stolen, or otherwise lost against the will of the rightful owner’. 79 The English translation of the 2001 law can be found at accessed 25 May 2019. 80 The Vietnamese version of the 2009 Law on the Amendment and Supplementation of Certain Provisions of the Law on Cultural Heritage can be found at accessed 25 May 2019. 81 Art 4(vii) of the 2009 law. 82 ‘PM Allows Transport of National Treasures Abroad’, Vietnam Law and Legal Forum (16 June 2016), at accessed 25 May 2019. 83 In the law, the category of intangible cultural heritage is regulated in a detailed manner. In art 1, providing for the definitions of the terms used in the law, that of intangible cultural heritage is given ahead of the definition of tangible cultural heritage. Chapter 3 provides for the protection and promotion of intangible cultural heritage; chapter 4 provides for the protection and promotion of tangible cultural heritage.

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854 Keun-Gwan Lee concern within Vietnam, the law includes the protection of underwater cultural heritage within its purview.84 Thailand has a long history in legislative activities for the protection of cultural heritage. Its first such law was called ‘Proclamation on Temple Boundary and Temple Looters’ and was issued in 1851 during the reign of King Rama IV.85 This law had a limited objective of protecting royal temples. The first comprehensive legislation on cultural heritage was adopted in 1934 and was subsequently amended in 1943, 1961, and 1992. The Act on Ancient Monuments, Antiques, Objects of Art, and National Museums of 1961 was amended by the Act on Ancient Monuments, Antiques, Objects of Art, and National Museums (No 2) of 1992. According to this Act, the Department of Fine Arts is entrusted with the implementation of the Act. Section 22 of the Act provides for the export or taking out of Thailand of ‘any antique or object of art irrespective of whether it is registered or not’ subject to the issuance of a licence by the Director-General of the Department of Fine Arts.86 Even though it is well known that Thailand remains ‘an important hub’ for the trafficking of cultural objects illegally exported from other countries, predominantly Cambodia,87 in the Act there is no provision regulating the import of cultural objects into Thailand. This Act, which has a long pedigree, has only the category of tangible cultural heritage within its regulatory ambit. As regards the category of intangible cultural heritage, in 2016 Thailand promulgated the Act Promoting and Safeguarding the Intangible Cultural Heritage.88 The growing awareness of the importance of cultural heritage in Laos is demonstrated by the elaborate and comprehensive Law on National Heritage, which was promulgated in November 2005. The law regulates intangible as well as tangible cultural heritage.89 The law provides for the categories of natural heritage.90 Laos became a party to the 1972 UNESCO World Heritage Convention in 1987 and has two world cultural heritage sites. The 2005 law establishes a linkage to the 1972 Convention by providing for the category of ‘world-level’ cultural and historical heritage (art 19) and the category of ‘world-level’ natural heritage (art 24). Article 35 regulates the ‘export to other countries for analysis of parts or objects that are the national cultural and historical heritage’, which is subject to 84 Damien Huffer and Duncan Chappell, ‘Local and International Illicit Traffic in Vietnamese Cultural Property: A Preliminary Investigation’ in Joris D. Kila and Marc Balcells (eds), Cultural Property Crime: An Overview and Analysis of Contemporary Perspectives and Trends (Brill 2015) 271. 85 Thanik Lertcharnrit, ‘Thailand, Cultural Heritage Management’ in Claire Smith (ed), Encyclopedia of Global Archaeology (Springer 2014) 7287. 86 Sections 38 and 39 of the 1992 Act provide for penal sanctions for the violation of section 22. 87 Gruber, ‘Perspectives on the Investigation, Prosecution and Prevention of Art Crime’ (n 27) 227. 88 The Thai text of the Act can be found at accessed 25 May 2019. For a discussion of the protection of intangible cultural heritage in Thailand, see Ratchaneekorn Sae-Wang, ‘Cultural Heritage Management in Thailand: Common Barrier and the Possible Ways to Survive’ (2017) 17 Silpakorn University Journal of Social Sciences, Humanities, and Arts 133. 89 Art 3(i) of the 2005 law offers the definition of ‘national cultural and historical heritage’ as ‘tangible objects, intangible items, moveable property and immoveable property which are of high outstanding value’. 90 Part II, chapter 3 of the 2005 law.

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Asia 855 approval by State authorities. Article 36 provides that the importation, display, or distribution of cultural products of other countries requires examination and approval by the information and cultural sector. The second paragraph of the same article provides that ‘tangible cultural products of other countries, especially Buddhas, or intangible items that contradict the culture, [or] fine national traditions of Laos will not be permitted to be imported, displayed or distributed’. In July 2015, Myanmar repealed the 1957 Antique Objects Act and promulgated the Protection and Preservation of Antique Objects Law. The 2015 law is rather short, having only twenty-nine articles, of which six (arts 15–20) are devoted to ‘offences and penalties’. The definition of antique objects as provided for in article 4(a) specifically mentions ‘fossil, corpse and bones of human beings’ as well as those of ‘various types of animals’.91 Article 15 of the Act provides for penal sanctions for ‘whoever carries or transports an antique object to a foreign country without permission’. Singapore constitutes an exception in this legal and regulatory landscape. It imposes no controls on art sales. It is not infrequently pointed out that Singapore has become a transit and distribution centre for cultural objects looted from other Asian countries such as Cambodia, China, Indonesia, and Myanmar.92 Its rule on the six-year limitation period in case of theft—in stark contrast with the British law, which does not impose any limitation period for the institution of an action in conversion—does not help in suppressing the illicit traffic in cultural objects.93 Based on the above discussion on the laws and practices on the protection of cultural heritage of South East Asian nations, one can make the following observations. First, public awareness of the importance of cultural heritage has been greatly raised in these countries. This development has translated into an active promulgation or amendment of laws and regulations on the protection of cultural heritage in the past two decades. Secondly, the coverage of these laws and regulations have been expanded beyond the traditional category of tangible cultural objects to include other categories such as intangible cultural heritage,94 natural heritage, and, in some countries, underwater cultural heritage. As regards these latter categories of cultural heritage, UNESCO has appeared to play a positive role, in particular through its work on various international conventions. Thirdly, the region is faced with the serious problem of illicit traffic in cultural objects. Most of the national laws provide for the strict regulation of export of cultural objects abroad by imposing the export licence system and prescribing penal sanctions in case of violation. However, there is much less interest in regulating the import of foreign 91 The 1957 Act also included ‘any fossil remains of man or of animal’ in the definition of ‘object of archaeological interest’; Art 2(ii). 92 Jack Tsen-Ta Lee, ‘Treaties, Time Limits and Treasure Trove: The Legal Protection of Cultural Objects in Singapore’ (2004) 9 Art, Antiquity and Law 244. 93 Ibid, 245–9. 94 For a detailed discussion of the legislation on intangible cultural heritage in Laos, Malaysia, the Philippines, and Vietnam, see Steven Van Uytsel, ‘Intangible Cultural Heritage Legislation in Asia: In Search for the Spirit of 2003 UNESCO Convention’ (2 December 2016), at accessed 25 May 2019.

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856 Keun-Gwan Lee c ultural objects. This asymmetry, coupled with the lack of coordination among the different national laws in, among others, bona fide acquisition and the deficient crossborder cooperation, makes for the persistence of the illicit traffic in cultural objects.

3.3 (Lack of) International Cooperation in South East Asia As regards the international and regional cooperation for the protection of cultural heritage, one must mention a series of bilateral agreement concluded by the States in the sub-region, most notably the 2000 Agreement between Thailand and Cambodia to Combat against Illicit Trafficking and Cross-Border Smuggling of Movable Cultural Property95 and to Restitute it to the Country of Origin, and the Memorandum of Understanding between Cambodia and the United States of America concerning the Imposition of Import Restrictions on Archaeological Material from Cambodia from the Bronze Age through the Khmer Era.96 The latter bilateral agreement entered into force in 2003 and was later extended in 2008, 2013, and 2018.97 In 2018, an Action Plan (2018–22) pertaining to implementation of the Memorandum of Understanding was adopted by the United States Department of State and the Cambodian Ministry of Culture and Fine Arts.98 At the multilateral level, the participation in the 1970 Convention and the 1995 Convention is low.99 Of the ten ASEAN Member States, only four (Cambodia, Laos, Myanmar, and Vietnam) are parties to the 1970 Convention; only two (Cambodia and Myanmar) are parties to the 1995 Convention. Non-participation in these Conventions does not necessarily mean a lack of interest in or disregard for them. As shown in Section 3.2, the 2005 Act of Malaysia incorporates the relevant provisions of the 1970 Convention on the import of foreign cultural objects in a most detailed and serious way, even though Malaysia is a party to neither of the Conventions. This state of affairs constitutes a stark contrast with their participation in the ‘more popular’ conventions such as the 1972 Convention100 and the 2003 Convention.101 Absence of many South East Asian countries from the 1970 and 1995 Conventions, which share a universalistic objective, is not only morally discouraging but will work as a stumbling block to effective regional cooperation. Given that most States of South East Asia often find themselves victims of theft or illegal

95 See accessed 25 May 2019. 96 See accessed 25 May 2019. 97 See accessed 25 May 2019. 98 See accessed 25 May 2019. 99 For a review of the participation in the 1970 Convention by Asian States, see Keun-Gwan Lee, An Overview of the Implementation of the 1970 Convention in Asia (UNESCO 2012), at accessed 25 May 2019. 100 As of 31 January 2017, this Convention had 193 parties; see accessed 25 May 2019. 101 As of 11 May 2018, this Convention had 178 parties; see accessed 25 May 2019.

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Asia 857 export of cultural objects, efforts should be renewed for a more active participation in these international agreements. South East Asia has a regional international organization called ASEAN that is broadening and deepening regional cooperation. This organization adopted the ASEAN Declaration on Cultural Heritage in 2000. The document was adopted by the foreign ministers of the ten member countries. It is composed of a preamble and fifteen sections. Section 1 of the Declaration provides for the definitions of culture and cultural heritage. The definition of cultural property embraces the category of intangible cultural heritage. Concerning the threat posed by the ‘theft, illicit trade and trafficking, and illegal transfer’, Section 10 of the Declaration urges ASEAN Member States to protect cultural heritage against these dangers and to ‘cooperate to return, to seek the return, or help facilitate the return, to their rightful owners of cultural property that has been stolen from a museum, site or similar repositories’. As a measure of strengthening Member States’ cooperation for the protection of cultural heritage, the ASEAN Cultural Heritage Digital Archive project was launched in February 2018. This project will provide a single portal to give access to existing digital archives of ASEAN Member States and contribute to the raising of awareness on ASEAN’s cultural awareness.102 It will also be instrumental in preventing the illicit trade in cultural objects originating from the region. Whether the 2000 ASEAN Declaration which is of a recommendatory or hortatory nature will be developed into a regional treaty or the legally binding instruments similar to those found in the EU area remains to be seen.

3.4 Return of Cultural Objects to Their Countries of Origin The issue of repatriation of cultural objects displaced during colonial domination or wartime occupation has entered the public agenda in South East Asia. This development is reflected in the laws on the protection of cultural heritage which provide for the repatriation of national cultural heritage. For instance, the laws of the Philippines and Indonesia provide for repatriation of important national cultural objects found abroad. In countries such as Cambodia, increasing attention is paid to the repatriation of cultural objects displaced during the colonial period. The return of Khmer artefacts looted during the turmoil in the recent past has rekindled Cambodia’s wish to have Khmer antiquities (in particular, Cambodian statues) displaced in the more distant past—that is, during the French colonial period—returned to their country of origin.103 102 See accessed 25 May 2019. 103 For instance, the website run by the Cambodian Law and Policy Journal carries an op-ed piece titled ‘Cambodia’s Historical Art Objects Should be Returned’ (December 2014) accessed 25 May 2019. In a related development, in January 2016 the head of a Khmer statue, which had been taken to France in 1889, was reunited with its body after 130 years apart. The head was returned in exchange for a statue fragment at the Cambodia National Museum that completes a sculpture at the Musée Guimet in Paris. Sen David, ‘Statue Head Reunited with Body’, The Phnom Penh Post (22 January 2016) accessed 25 May 2019.

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858 Keun-Gwan Lee

4. Concluding Remarks I have looked into the laws and practices relating to the protection of cultural heritage in the Asian region by focusing, geographically, on the sub-regions of East Asia and South East Asia and, thematically, on the suppression of the illicit traffic in cultural objects and the return of cultural artefacts to their countries of origin. Rapid socioeconomic transformation in East Asia and South East Asia has posed a serious challenge to the cultural heritage of these sub-regions. In some cases, political instability brought on by civil war or foreign occupation aggravated the issue. The substantial damage and destruction inflicted on the cultural heritage, coupled with the growth of public awareness on its importance for national identity, prompted the governments in the region to take action, in particular, through promulgation of the laws and regulations for the protection of cultural heritage. In so doing, the meaning of cultural heritage has generally expanded beyond the traditional, tangible cultural objects into intangible and underwater cultural heritage. A series of international conventions for the protection of cultural heritage, adopted under the auspices of UNESCO, has undoubtedly provided much impetus. Thus, the legislative landscape in the domestic setting has appreciably improved in the recent past. However, the strengthening of the legislation of individual States does not make for a better protection of cultural heritage. The loopholes provided by the lack of coordination among various national laws provide a strong impetus for the illicit traffic in cultural objects. This is why improved coordination and cooperation on the regional and international plane is called for. In this regard, much needs to be done in this region. In South East Asia, ASEAN has taken some measures for the protection of cultural heritage on the sub-regional dimension, such as adopting the ASEAN Declaration on Cultural Heritage which is, however, of a hortatory character only. East Asia remains a region which is rather notorious for the general lack of sub-regional cooperative mechanisms despite its growing profile on the international stage. The area of protection of cultural heritage is no exception from this regrettable tendency. An active participation in the multilateral treaties such as the 1970 Convention and the 1995 Convention could have compensated for the coordination deficit. As we have seen, in South East Asia, the level of ratification and acceptance of these treaties was low. In East Asia, China, Japan, and Korea have all ratified the 1970 Convention (of the three countries, China alone is a party to the 1995 Convention). The lack of a uniform conception of duties imposed by the Convention is a cause for concern. It raises a serious question about where the Convention exists as a set of common rules within the contracting States. Given the fundamental importance accorded to the principle of reciprocity in international law, substantially differing views on the substantive extent of the Convention may work as a hurdle for the smooth operation of the Convention. Another tendency is that the States in the region focus their attention and efforts on the regulation of export of cultural objects, while taking a less strict attitude to the illicit import of

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Asia 859 foreign cultural objects. The Convention is founded on the spirit of international cooperation, without which it cannot be effectively implemented. There seems to be a yawning gap between the enormity of the problems to be tackled by the countries in the region and the institutional mechanism or the region-wide ethos for cooperation and solidarity for the protection of cultural heritage, in particular the suppression of illegal excavations and illicit traffic. The return of cultural objects displaced during colonial domination or wartime occupation is expected to loom increasingly large in the region, particularly in East Asia. Invoking the rule of inter-temporal law in a rigid manner would end up justifying the colonialist behaviour of some Western powers and perpetuating the psychological scars of the former colonies or occupied nations. On the other hand, retroactive application of today’s normative standards to the colonial past would give rise to a substantial instability within the existing legal relations, both between individuals and between States. How to articulate an equitable and fair solution to this highly thorny question is a pressing task to be tackled in a spirit of mutual understanding and reconciliation. Recently, one often hears about the ‘rise’ of Asia in international relations. This rise is generally discussed in economic and military terms. For the rise of Asia to be acceptable to, and even welcomed by, the international community, it needs to take place at the cultural and moral dimension as well. If the countries in the Asian region assumed a more active and exemplary role in the protection of cultural heritage by, among other things, putting in place a more robust institutional mechanism for regional collaboration and promoting international cooperation through a stronger commitment to international treaties and instruments, particularly the UNESCO Conventions, it would help the ‘rise’ of Asia to be taken as constructive for the common good of the international community.

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Chapter 36

Ocea n i a Craig Forrest and Jennifer Corrin*

1. Introduction Oceania, spanning both western and eastern hemispheres, comprises four geograph ical area: Melanesia, Polynesia, Micronesia, and Australasia. Melanesia, comprising Solomon Islands, Vanuatu, Fiji, Papua New Guinea, and the French dependency of New Caledonia, is characterized by the distinctive culture of the Melanesian people who, together with the Australian Aboriginal peoples, are believed to have originated from the Proto-Australoids who immigrated from Africa up to 100,000 years ago.1 Polynesia, extending over a vast area of the Pacific Ocean covering thousands of islands, is linked through a similar culture. Today, these are grouped into the independent States of Samoa, Tonga, Tuvalu, and New Zealand, together with Cook Islands, Niue, and Tokelau—self-governing States in free association with New Zealand—and a number of islands or groups of islands that are dependencies or overseas territories of various political types—American Samoa (US), French Polynesia (France), Hawaii (US), Easter Island (Chile), Norfolk Island (Australia), Wallis and Fortuna Islands (France), and Pitcairn Island (UK).2 Micronesia, the third distinctive Indigenous cultural group, is grouped around the northern Pacific islands comprising the independent States of Palau, Marshall Islands, Kiribati, Nauru, and the Federated States of Micronesia, as well

* TC Beirne School of Law, The University of Queensland. The authors thank Phoebe Green for the invaluable research assistance in the preparation of this chapter. 1 Roger M. Keesing and Miriam Kahn, ‘Melanesian Culture’ in Encyclopaedia Britannica accessed 10 September 2017; Bronwen Douglas and Chris Ballard, Foreign Bodies: Oceania and the Science of Race 1750–1940 (ANU Press 2008). 2 Robert C. Kiste, Miriam Kahn, and Robert Carl Suggs, ‘Polynesian Culture’ in Encyclopaedia Britannica accessed 10 September 2017.

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Oceania 861 as the Northern Mariana Islands, Guam, and Wake Island, all US territories.3 Polynesian and Micronesian peoples are thought to be most closely related to Taiwanese Aborigines and East Asians. This appears to support the view that their ancestors were migrating seafarers originating from Taiwan and coastal China at least 3500 years ago.4 While Oceania is said to include Australasia, this grouping is somewhat distinct from the three more clearly defined cultural groupings of Melanesia, Polynesia, and Micronesia. Australasia, comprising Australia and New Zealand, and at times Papua New Guinea (PNG), is reflected culturally in the recent western migration to Australia and New Zealand and the subsequent domination of the Western cultures in these islands. In terms of size, Oceania is dominated by the landmass of Australia with its 24 million people and significant economy. Papua New Guinea follows, with a population of about 8 million in a landmass of about 460,000 square kilometres; New Zealand is about half the size of PNG in terms of size and population but with a significantly larger economy. The other States of Oceania are generally small island States. Tuvalu, for example, is a State of only 26 square kilometres, while Niue only has a population of 1269.5 In these small island States, the Indigenous peoples form the majority and largely continue to live in accordance with a long and rich cultural tradition. Their size and remoteness results in narrowly based economies with increased exploitation, often driven by entities from non-Oceania States. These nations are among the most vulnerable to the effects of climate change and natural disasters. However, while there are some commonalities, the area is one of immense cultural and biological diversity. This was aptly expressed in the preamble of the Pacific World Heritage Action Plan: We the people of the Pacific offer a unique contribution to the World Heritage com munity, through our enormous wealth of cultural diversity, as well as the island and marine biodiversity of our region which covers one third of the earth’s surface.

The peoples of Oceania relate to their environment through the prism of their heritage. That heritage is holistic, embracing all life, and is both tangible and intangible. Understood through cultural traditions, it defines their cultural identity and remains inseparable from their social, economic, and environmental well-being.6 The preamble to the Pacific World Heritage Action Plan goes on to explain that the peoples view the seascapes and landscapes as an inseparable whole, woven together by rich cultural, his torical, and genealogical relationships. Moreover, this endows the natural features with 3 Robert C. Kiste, Miriam Kahn, and John L. Fischer, ‘Micronesian Culture’ in Encyclopaedia Britannica accessed 10 September 2017. 4 Jonatah Friedlaender et al., ‘The Genetic Structure of Pacific Islanders’ (2008) 4(1) PLoS Genetics accessed 10 September 2017. 5 UNESCO accessed 4 November 2017. 6 The Draft Pacific Action Plan 2016–2020 was developed and approved by delegates from Pacific States Parties and territories at the Pacific World Heritage Action Plan meeting, Suva, Fiji, 1–4 December 2015. UNESCO, Regional meeting on the Pacific World Heritage Action Plan 2016–2020 accessed 4 November 2017.

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862 Craig Forrest and Jennifer Corrin ‘highly powerful spiritual value’.7 The result is that this heritage is often managed through traditional practices that reinforce the inseparable relationship between communities, cultures, and the environment. The protection of that heritage therefore requires respect for, and an understanding and maintenance of, traditional cultural practices, Indigenous knowledge, and systems of land and sea tenure in the Pacific.

2. Oceanic States and International Law Generally, Pacific Island States have not played a major individual role in the making, implementation, or enforcement of international law. Rather, they have been notable for their failure to contribute. This is well-illustrated by the fact that ten Pacific nations failed to vote on the United Nations Declaration on the Rights of Indigenous Peoples8 and Samoa abstained. Another example is the failure to engage with the international human rights system, which has been a persistent theme for Pacific Island States.9 Similarly, only Kiribati, Nauru, and Solomon Islands are party to the Vienna Convention on the Law of Treaties. Nauru did not ratify the Geneva Conventions10 until 2006. The same can be said for a number of UNESCO’s cultural heritage conventions, including the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,11 the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,12 and the 2001 Convention on the Protection of the Underwater Cultural Heritage.13 However, noticeable is the significant take-up of the 1972 Convention Concerning the

7 UNESCO, Regional meeting on the Pacific World Heritage Action Plan 2016–2020 (n 6). 8 United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UN Doc A/61/L.67. 9 Rhona K. M. Smith, ‘The Pacific Island States: Themes Emerging from the United Nations Human Rights Council’s Inaugural Universal Periodic Review?’ (2012) 13 Melbourne Journal of International Law 1. In relation to the Second Cycle of Periodic Review see, for example, Working Group on the Universal Periodic Review, ‘Draft report of the Working Group on the Universal Periodic Review: Fiji’, UN GAOR, 20th sess, UN Doc A/HRC/WG.6/20/L.5 (31 October 2014). 10 Geneva Conventions Act 2012 (Nauru). 11 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 215. 12 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231. 13 Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009), 41 ILM 37 (2002).

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Oceania 863 Protection of the World Cultural and Natural Heritage14 and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage.15 The poor engagement of many of the States of Oceania (with the exception of Australia and New Zealand) arises because of a number of difficulties. Oceania, cover ing a large geographic area, is isolated, has limited financial and human resources, skills and capacities, and institutions to adequately manage the region’s cultural and natural heritage, and has restricted access to information and assistance. It also suffers from political instability and a lack of good governance.16 ‘There are also greater external challenges and threats in the Pacific than in most other regions of the world, with less capacity to respond to their impacts.’17 These challenges include climate change, finan cial stability, technological development, commercialization, energy supply and demand, and exposure to natural disasters.18

3. Regional Programmes UNESCO, the principal international organization for heritage issues, has a number of important regional or thematic programmes of importance to the States of Oceania, driven primarily through the UNESCO Regional Office in Apia, Samoa.19 An active and important regional programme is the Pacific World Heritage Action Plan (discussed in Section 5), which addresses a range of heritage-related issues throughout Oceania that is much broader than the ‘world heritage’ its title suggests. For example, within the Action Plan is the establishment of a Pacific Heritage Hub.20 The Hub was established at the University of the South Pacific in 2014, with funding initially from the Australian Government, to serve as a communications and information facility for all things ‘Heritage’ in the Pacific and coordinate information and opportunities between regions, countries, institutions, organisations and experts to improve the implementation of the 1972 World Heritage Convention and Safeguard Pacific Cultural and natural heritage including intan gible cultural heritage.21 14 Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 (World Heritage Convention). 15 Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1 (Intangible Cultural Heritage Convention). 16 UNESCO, Pacific World Heritage Action Plan 2016–2020 accessed 4 November 2017. 17 Ibid. 18 Ibid. 19 UNESCO, ‘UNESCO Office in Samoa’ accessed 10 November 2017. 20 Pacific Heritage Hub and accessed 2 August 2019. 21 Pacific Heritage Hub accessed 2 August 2019.

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4. Regional Organizations The principal regional organization for Oceania is the Pacific Islands Forum (PIF), established in 1971. Its membership comprises Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Republic of the Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu, and, since September 2016, French Polynesia and New Caledonia. The PIF’s remit covers economic and political governance and security and aims at fostering regional coordin ation and integration in the Pacific.22 This remit is reflected in the early concerns over French nuclear testing,23 security, and terrorism.24 This concern continues, and the Forum Secretariat has introduced the Pacific Plan for Strengthening Regional Cooperation and Integration.25 This plan supports the ratification and implementation of international and regional human rights treaties, and the need for ratification was a common theme of the first and second cycles of the Universal Periodic Review pro cess.26 The PIF’s recent initiatives have concentrated on ocean sustainability,27 climate change, and disaster risk.28 The other important regional organization is the Pacific Community (SPC). Founded in 1947 as the South Pacific Commission, the SPC is the principal scientific and tech nical organization in Oceania, with a current focus on ‘major cross-cutting issues, such as climate change, disaster risk management, food security, gender equality, human rights, non-communicable diseases and youth employment’.29 While not having cultural

22 Pacific Islands Forum Secretariat, ‘About Us’ accessed 8 November 2017. 23 Pacific Islands Forum (PIF), First Forum Communiqué 11, 18. See, further, Global Partnership for the Prevention of Armed conflict et al., Pacific Governments Have Committed to a Nuclear Free Pacific accessed 21 December 2016. 24 See, for example, PIF, ‘Aitutaki Declaration on Regional Security Cooperation’, Twenty-Eighth Pacific Islands Forum Communiqué Annex 2 (1997) accessed 8 November 2017. 25 Pacific Islands Forum Secretariat, The Pacific Plan for Strengthening Regional Cooperation and Integration, October 2005–7 accessed 14 December 2016. 26 See, for example, Human Rights Council Working Group on the Universal Periodic Review, Draft Report of the Working Group on the Universal Periodic Review, UN GAOR, 20th sess UN Doc A/HRC/ WG.6/20/L.5 (27 October–7 November 2014). 27 PIF, ‘Pohnpei Ocean Statement–a Course to Sustainability’, Forty-Seventh Forum Communiqué Annex 3 (10 September 2016). See, also, PIF, ‘Palau Declaration on The Ocean: Life and Future: Charting a course to Sustainability’, Forty-Fifth Forum Communique Annex B (31 July 2014). 28 See PIF, ‘Strengthening Pacific Resilience to Climate Change and Disaster Risk’, Forty-Seventh Pacific Islands Forum Communiqué Annex 2 (8–10 September 2016). See, also, PIF, ‘Pacific Islands Forum Leaders Declaration on Climate Change Action’, Forty-Sixth Pacific Islands Forum Communiqué Annex 1 (8–10 September 2015). 29 Pacific Community accessed 8 November 2017.

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Oceania 865 heritage within its remit per se, the SPC touches on a range of issues that have heritage as an underlying component.30 Many of the States of Oceania are Small Island Developing States (SIDS) that form part of the loose collective recognized in 1992 as a distinct group at the United Nations Conference on Environment and Development31 and which have morphed into specific international organizations such as the Alliance of Small Island States (AOSIS), of which fifteen Oceania States are members.32 The Pacific Regional Environment Programme (SPREP) also touches on a number of cultural heritage issues but does not address them directly.33 At a sub-regional level, in 2007 Melanesian countries formed the Melanesian Spearhead Group (MSG). The members are Fiji, Front de Liberation Nationale Kanak et Socialiste,34 Papua New Guinea, Vanuatu, and Solomon Islands.35 MSG is primarily focused on trade within the region, and its interests in this are somewhat removed from cultural heritage considerations. However, as discussed further in Section 7, members have agreed on the Framework Treaty on Traditional Knowledge and Expressions of Culture.36

5. World Heritage The islands of Oceania consist of a diversity of geographical landscapes, from pristine marine environments to ecologically abundant rainforests and volcanic formations dat ing back millions of years. Due to the holistic philosophies of these island cultures, these landscapes encompass a significant value and symbolism to the traditional cultures.37 Not surprisingly, almost all of the World Heritage Sites in Oceania are cultural sites.

30 Ibid. 31 SIDS include Fiji, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. UNESCO, List of Small Island Developing States (24 October 2017) accessed 8 November 2017. 32 Alliance of Small Island States accessed 8 November 2017. 33 SPREP accessed 8 November 2011. 34 The FLNKS represents the ethnic Kanak (Indigenous) population in New Caledonia, which consti tutes about 108,055 Melanesian people (estimated 44 per cent of the 2009 population figures). See Melanesian Spearhead Group, FLNKS accessed 2 August 2019. 35 Melanesian Spearhead Group, Agreement Establishing the Melanesian Spearhead Group, March 2007

accessed 6 January 2017. 36 Melanesian Spearhead Group accessed 9 November 2017. 37 Anita Smith and Kevin Jones, Cultural Landscapes of the Pacific Islands (ICOMOS 2007) 9.

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866 Craig Forrest and Jennifer Corrin With 193 States Parties to the Convention for the Protection of the World Cultural and Natural Heritage,38 Oceania is conspicuous in having two non-States Parties: Nauru and Tuvalu. This, however, reflects the difficulties that these small islands States have had in engaging with international law and the ratification or acceptance of international con ventions, rather than any objection to the Convention itself.39 Indeed, many of the other small islands States only became party to the Convention relatively recently: Kiribati in 2000 and Marshall Islands, Micronesia, Palau, and Vanuatu all in 2002. This difficulty was recognized by UNESCO in 2004 with the adoption of the Pacific World Heritage Action Plan 2004–2009, which in 2005 was included in the launch of the World Heritage Programme for SIDS (Small Island Developing States).40 The Pacific Action Plan is now in its third iteration (2016–2020) and provides the framework for way in which world heritage, and heritage in a wider sense, is addressed by many of the States of Oceania. The Action Plan is primarily a driver for world heritage identification and protection, providing support for new nominations to the World Heritage List and sustainable conservation and management practices for sites already inscribed. This is particularly important as a number of Oceanic States, following ratification of the Convention, had some difficulty in successfully nominating sites for listing due primar ily to the lack of resources required to address the criteria provided for in the Convention and Operational Guidelines. The Action Plan, however, is somewhat broader than merely world heritage and touches on a range of issues related to heritage. It also includes proposed regional-level activities and a summary of national-level activities by Member States.41 A total of four teen States within the Oceania region have committed to this Action Plan, which is a promising indication that a regional approach is gaining momentum.

6. World Heritage List By 2008, thirty-six years after the World Heritage Convention was adopted, the only independent States in Oceania with World Heritage Sites on their territory were Australia, New Zealand, and Solomon Islands. With the increase in membership since 2000, and with the unrolling of UNESCO’s SIDS program, a number of additional States now have a single World Heritage Site—all but one cultural: PNG and Vanuatu

38 Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151. 39 UNESCO, UNESCO States Parties Ratification Status accessed 2 August 2019. 40 UNESCO, Small Island Developing States—Action Plan 2016–2021 (UNESCO 2016) 26, 27 accessed 8 November 2017. 41 UNESCO, Pacific Action Plan 2016–2020, Suva, Fiji, 1–4 December 2015, 12–17.

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Oceania 867 in 2008, Kiribati and Marshall Islands in 2010, Palau in 2012, Fiji in 2013, and Micronesia in 2016.42 The sites on the World Heritage List, and the number on the tentative lists,43 within the Oceanic regions (excluding Australia)44 are as follows: - Fiji: one (Levuka Historical Port Town 2013); three on tentative list45 - Kiribati: one (Phoenix Island Protected Area 2010); none on tentative list - Marshall Island: one (Bikini Atoll Nuclear Test Site 2010); three on tentative list46 - Federated States of Micronesia: one (Nan Madol: Ceremonial Centre of Eastern Micronesia 2016—in danger list); one on tentative list47 - New Zealand: three (Te Wahipounamu, Tongariro National Park, New Zealand Sub-Antarctic Islands 1990); eight on tentative list48 - Palau: one (Rock Island Southern Lagoon 2012); four on tentative list49 - PNG: one (Kuk Early Agricultural Site 2008); seven on tentative list50 - Solomon Islands: one (East Rennell 1998); two on tentative list51 - Vanuatu: one (Chief Roi Mata’s Domain 2008); five on tentative list52 - Samoa: none; two on the tentative list53

42 World Heritage Committee, Taonga Pasifika: World Heritage in the Pacific, WHC Doc, 31st sess (2 July 2007) 42, 43. 43 UNESCO, World Heritage List accessed 2 August 2019; UNESCO, Tentative List accessed 2 August 2019. 44 Australia has nineteen World Heritage Sites: Great Barrier Reef, Kakadu National Park, Willandra Lakes Region, Lord Howe Island Group, Tasmanian Wilderness, Gondwana Rainforests, Uluru-Kata Tjuta National Park, Wet Tropics, Shark Bay, Fraser Island, Australian Fossil Mammal Sites (Riversleigh/ Naracoorte), Heard and McDonald Islands, Macquarie Island, Greater Blue Mountains Area, Purnululu National Park, Royal Exhibition Building and Carlton Gardens, Sydney Opera House, Australian Convict Sites, and Ningaloo Coast. 45 Sigatoka Sand Dunes, Sovi Basin, and Yaduataba Crested Iguana Sanctuary. 46 Likiep Village Historic District, Mili Atoll Nature Conservancy (and Nadrikdrik), and Northern Marshall Islands Atolls. 47 Yapese Disk Money Regional Sites. 48 Auckland Volcanic Fields Kahurangi National Park, Farewell Spit and Canaan karst system, Kerikeri Basin historic precinct, Kermadec Islands and Marine reserve, Napier Art Deco historic pre cinct, Waitangi Treaty Grounds historic precinct, Waters and seabed of Fiordland (Te Moana O Atawhenua), and Whakarua Moutere (North East Islands). 49 Imeong Conservation Area, Ouballang ra Ngebedech (Ngebedech Terraces), Tet el Bad (Stone Coffin), and Yapease Quarry Sites. 50 Huon Terraces—Stairway to the Past, Kikori River Basin / Great Papuan Plateau, Kokoda Track and Owen Stanley Ranges, Milne Bay Seascape (Pacific Jewels of Marine Biodiversity), The Sublime Karsts of Papua New Guinea, Trans-Fly Complex, and Upper Sepik River Basin. 51 Marovo–Tetepare Complex and the Tropical Rainforest of Solomon Islands. 52 Lake Letas, The Nowon and Votwos of Ureparapara, The President Coolidge, Vatthe Conservation Area, Yalo, Apialo, and the Sacred Geography of Northwest Malakula. 53 Fagaloa Bay–Uafato Tiavea Conservation Zone and Manono, Apolima and Nuulopa Cultural Landscape.

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868 Craig Forrest and Jennifer Corrin - Tonga: none; two on the tentative list54 - New Caledonia: one (France) (Lagoon on New Caledonia 2008); none on tentative list - French Polynesia: one (France) (Taputapuātea 2017); none on tentative list - Hawaii: two (US) (Hawaii Volcanoes National Park 1987, Papahānaumokuākea 2010); none on tentative list - Easter Island: one (Chile) (Rapa Nui National Park 1995); none on tentative list - Henderson Island: one (UK 1998); none on tentative list. Each State has an average of three sites listed with an approximate waiting time of twelve years.55 The scale of activity, however, is reflected not in the list but in the development of the tentative list of a number of these States. To date, twenty-nine sites in nine States are on the tentative list.56

6.1 World Heritage Operational Guidelines In order for UNESCO to transfer a nominated site from the tentative list to the World Heritage List, the Member State must demonstrate to UNESCO that it has implemented domestic measures complying with the Operational Guidelines.57 The Guidelines contain a number of obligations that have significant relevance to, and pose a major impediment for, many of the States of Oceania. The Guidelines require that States Parties prepare their tentative lists with the par ticipation of a wide variety of stakeholders, including site managers, local and regional governments, local communities, NGOs, and other interested parties and partners.58 While reaching agreements such as this is problematic in many cases, two related issues make this problematic for many States of Oceania. First, the system of land tenure and the predominance of customary ownership make management of lands and the heritage thereon difficult. Secondly, this is in fact partly due to the legal pluralism that underpins many of the legal systems of these States. These two difficulties, discussed in the following section, hamper the effective imple mentation of other Operational Guideline obligations. For instance, the Guidelines require that ‘[l]egislative and regulatory measures at national and local levels should assure the protection of the property from social, economic and other pressures or changes that might negatively impact the Outstanding Universal Value, including the 54 Lapita Pottery Archaeological Sites (a National Serial Site for consideration as the Kingdom of Tonga’s contribution to a transnational serial site listing) and The Ancient Capitals of the Kingdom of Tonga. 55 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, WHC Doc 16/01 (26 October 2016). 56 UNESCO, Tentative List accessed 2 August 2019. 57 UNESCO, Operational Guidelines (n 55) 15. 58 Ibid, 15 (64).

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Oceania 869 integrity and/or authenticity of the property. States Parties should also assure the full and effective implementation of such measures.’59 This is particularly acute when con sidering the land on which the heritage is situated in a pluralistic legal system.

6.2 Legal Pluralism and Customary Land Ownership From the mid-1960s onwards, the majority of Oceanic States gradually gained inde pendence or the right of self-government.60 Independence constitutions, in the main, reflected a desire to promote local culture and tradition. While common law systems were perpetuated, together with laws introduced by foreign powers during the colonial era, custom and customary laws were also given a role in State legal systems.61 As a result, most Pacific countries have a plural legal system. Regional constitutions also introduced a Westminster style of government, although with some variations on the classic model.62 However, in some countries of the region, local leaders are given a role in State government; for example, the Malvatumauri in Vanuatu is empowered to ‘make recommendations for the preservation and promotion of ni-Vanuatu culture and languages’.63 At independence, the majority of land in most Pacific countries was still under cus tomary tenure.64 Many independence constitutions contain express provisions about land. Generally, these provisions prohibit the alienation of customary land65 and often restrict freehold or perpetual ‘ownership’66 to Indigenous people.67 Consequently, in most countries 80 to 90 per cent of land is under customary tenure and is governed in accordance with customary laws.68 An exception to this is the State of Tonga, in which all the land is held by the Indigenous king.69 The most common form of ownership of customary land in region is communal. Members of a community, which is normally based on blood relationship, have joint undivided interests in the area of land where the community is located. However, these interests are not necessarily exclusive; many communities allow other individuals or groups to enter customary land and use it for certain purposes, either as of right or with permission. There is a great deal of uncertainty 59 Ibid, 21 (98). 60 Jennifer Corrin and Don Paterson, Introduction to South Pacific Law (Intersentia 2017) 5, 81. See also Michael Ntumy (ed), South Pacific Islands Legal Systems (University of Hawaii Press 1993). 61 Tonga is an exception to this. 62 Corrin and Paterson, Introduction to South Pacific Law (n 60) 101–3. 63 Constitution of Vanuatu 1980, art 30(1). In some countries a constitutional commitment to includ ing traditional leaders in government has not been fulfilled: see, for example, Constitution of Solomon Islands 1978, s 114(2)(b). 64 Tonga is an exception to this. 65 See, for example, Constitution of Samoa 1960, art 102. 66 The use of the word ‘ownership’ to describe aspects of customary land tenure is problematic. See Jennifer Corrin, ‘Customary Land and the Language of the Common Law’ (2008) 37 Common Law World Review 305. 67 See, for example, Constitution of Solomon Islands 1978, s 110. 68 See, for example, Constitution of Vanuatu 1980, art 73. 69 Ibid, art 2.

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870 Craig Forrest and Jennifer Corrin surrounding customary land tenure. The nomadic nature of Pacific communities made it difficult for settled patterns of ownership and occupation to develop.70 Natural features, such as rivers and hills, or sacred places, which could change over the years, normally indicated boundaries of land.71 Further, records drawn up by foreign administrators during the colonial era were often erroneous,72 and, in some countries, the bodies authorized to determine boundaries and ownership of customary land have not operated effectively.73 As a result, in most Pacific countries, there are ongoing disputes about boundaries and tenure of customary land. This creates serious challenges for Member States seeking to implement the Operational Guidelines. For example, section 64 of the Operational Guidelines requires agreements be reached between the local and regional governments in addition to the local communities.74 For the reasons discussed, it may not be possible to form a general consensus with all interested parties; however, it is a requirement that this participation be undertaken in preparation of the tentative list. Section 98 intensifies the process by stipulating legisla tive and contractual measures must be entered at a national and local level for ensuring extenuating factors will not impact upon the outstanding universal value of the site.75 Furthermore this requires an agreement of understanding be reached between the local communities; consequently, any restrictions become legally binding upon the community. Similarly, the Guidelines provide that ‘wherever necessary for the proper protection of the property, an adequate buffer zone should be provided’,76 being ‘an area surrounding the nominated property which has complementary legal and/or customary restrictions placed on its use and development to give an added layer of protection to the property’.77 Section 104 elaborates on this requirement in that a buffer zone is subject to restrictions 70 Peter France, The Charter of the Land (Oxford University Press 1969) 138. 71 See, for example, Pole Atanraoi, ‘Customary land and development in an Atoll Nation—the case of Kiribati’ in Ron Crocombe (ed), Customary Land Tenure and Sustainable Development: Complementarity or Conflict? (South Pacific Commission/Institute of Pacific Studies 1995) 63. 72 See, for example, Ron Crocombe, ‘The Cook Islands’ in Ron Crocombe (ed), Land Tenure in the Pacific (University of the South Pacific Press 1987) 60–1. 73 In Niue, there was no effective Land Court in operation for seventy years; as Professor Crocombe notes, ‘the periodic requests by Niueans for an effective land tribunal were delayed until 1941, when Judge McCarthy arrived to undertake comprehensive lands determination and registration. The Pacific War, however, led to his withdrawal shortly thereafter. Applications made in 1923 were dealt with in 1942, but those lodged in 1942 (and earlier) were still pending 20 years later. Niueans stated in the 1950s that the law provided no effective way for them to settle their own land problems, and that the government had promised to set up the legally constituted court “as soon as possible” for 50 years. Even in 1968, only 1.6 per cent of Niuean land had been registered, though a great deal of preparatory work had been done in anticipation of legislation.’ Ron Crocombe, ‘Traditional and colonial tenure in Niue’ in S. Kalaini (ed), Land Tenure in Niue (University of the South Pacific Press 1977) 21. In Vanuatu, in early 1997, the acting chief justice announced that the Supreme Court would not hear any more appeals in land cases because of a lack of judges. Vanuatu has since introduced a land management system allowing for decisions on customary land to be decided by chiefs in the customary setting of the nakamal (meeting house): Custom Land Management Act 2013. 74 Ibid, 64. 75 Ibid, 98. 76 Ibid, 103. 77 UNESCO, Operational Guidelines (n 55), 22 (104).

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Oceania 871 on its use and development in assisting to provide the site with the level of protection required. The issue with this buffer requirement arises when the buffer zone is custom ary owned land that is held by a neighbouring community of the nominated site.78 The neighbouring community may not be receptive to the impositions of restricting cultural activities or development of their customary land. These restrictions may cause negative implications for their cultural practices and economy; therefore this has the potential to create tension and conflicts of interest. It is a dichotomy in that attaining international legal protection of a cultural site may restrict the community’s sovereignty over custom ary land.

6.3 UNESCO SIDS Action Plan 2016–2021 Some of these issues are touched on in the UNESCO SIDS Action Plan, which outlines five priorities for its Member States. Priority number 4 is of relevance to protecting cul tural heritage throughout the region, providing a commitment to ‘[p]reserving tangible and intangible cultural heritage and promoting culture for island sustainable develop ment’. In achieving this priority, the SIDS Action Plan outlines four main objectives: 1. Encourage SIDS to ratify all six UNESCO conventions and implement these con ventions at a national level. 2. Assist in inventory and proposing World Heritage Sites. 3. Strengthen the capacity of SIDS to transmit their cultural heritage. 4. Sustainable tourism.79

7. Intangible Cultural Heritage Indigenous and traditional knowledge and cultural expression underscore the deep connections among people, culture, knowledge, and the natural environment in Oceania.80 The intangible heritage of the region embodies traditional knowledge and is often expressed in an artistic form such as songs, dances, and ceremonies.81 The protec tion of intangible cultural heritage is crucial in ensuring that this cultural heritage con tinues to be practised by future generations while also ensuring the intangible cultural heritage is not published or expressed outside its traditional context. Traditional know ledge is the bedrock of many societies in Oceania and remains crucial to leadership status, agricultural practices, fishing, navigation, rights to land, spiritual beliefs, social 78 Ibid. 79 UNESCO, Small Island Developing States—Action Plan 2016–2021 (n 40) 26, 27. 80 UNESCO, Pacific World Heritage Action Plan 2016–2020 (n 16). 81 Synexe Consulting Ltd, Valuing Culture in Oceania: Methodology and Indicators for Valuing Culture, Including Traditional Knowledge, in Oceania (Secretariat of the Pacific Community 2010) 18.

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872 Craig Forrest and Jennifer Corrin organization, and exchange networks.82 Therefore, safeguarding intangible cultural heritage is of paramount importance for the island States in Oceania, including Australia and New Zealand. The extent to which the cultural heritage in Oceania is intangible underscores the dif ficulty in addressing issues of protection and conservation. It does, however, provide a mechanism to further other pressing issues. For example, this intangible heritage can meaningfully advance sustainable development and social cohesion, strongly supporting the efforts of SIDS to promote cultural diversity, intercultural dialogue and international cooperation in the cultural field in line with applicable inter national conventions, in particular those of UNESCO and to develop and strengthen national and regional cultural activities and infrastructures, including through the network of World Heritage sites, which reinforce local capacities, promote aware ness in SIDS, enhance tangible and intangible cultural heritage, including local and indigenous knowledge, and involve local people for the benefit of present and future generations.83

The Convention for the Safeguarding of the Intangible Cultural Heritage84 was, and continues to be, positively received, with approximately twelve States of Oceania85 as well as France86 and Chile87 (with territories in Oceania) either accepting or ratifying the Convention.88 Importantly in the region, neither Australia nor New Zealand is a party to the Convention, and they are unlikely to join in the near future.89 Despite the general acceptance of the Convention in Oceania, only two listings have come from the region: the Lakalaka dances and sung speeches of Tonga and the sand drawings of Vanuatu, both listed in 2008.90 In part to address this lack of regional representation, UNESCO has assisted with a number of projects for the safeguarding of intangible cul tural heritage in States of Oceania.91 Vanuatu has been particularly successful in being 82 Miranda Forsyth, ‘The Traditional Knowledge Movement in the Pacific Island Countries: The Challenge of Localism’ (2011) 29 Prometheus 269, 271. 83 UNESCO, Pacific World Heritage Action Plan 2016–2020 (n 16). 84 Intangible Cultural Heritage Convention (n 15). 85 Fiji, Papua New Guinea, Vanuatu, Federated States of Micronesia, Marshall Islands, Nauru, Palau, Cook Islands, Samoa, Tonga, and Tuvalu. 86 New Caledonia, French Polynesia, and Wallis and Fortuna Islands. 87 Easter Island. 88 UNESCO, The States Parties to the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) (25 October 2017) accessed 9 November 2017. 89 Solomon Islands and Kiribati are not parties, nor are the United States or United Kingdom with respect to Guam, Northern Mariana Islands, Wake Island, American Samoa, Hawaii, and Pitcairn Island. 90 UNESCO, List of Intangible Cultural Heritage accessed 8 November 2017. 91 UNESCO, Projects for the Safeguarding of Intangible Cultural Heritage accessed 8 November 2017.

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Oceania 873 the beneficiary of three projects: ‘Safeguarding indigenous vernacular architecture and building knowledge in Vanuatu’; ‘Safeguarding of Vanuatu Sand Drawings’ and ‘Traditional Money Banks in Vanuatu’. Vanuatu’s commitment to intangible cultural heritage is also reflected in its adoption of the Convention for the Safeguarding Intangible Cultural Heritage Act 2009.92 Tonga has also received funding for ‘Safeguarding of Lakalaka, Sung Speeches with Choreographed Movements’ under this UNESCO programme. A broader project on Safeguarding Intangible Cultural Heritage through the Strengthening of National Capacities in Asia and the Pacific has involved a number of States from Oceania, includ ing Fiji, Papua New Guinea, Samoa,93 and Solomon Islands. While the protection of intangible cultural heritage is of some concern in many of the States of Oceania, what has been of perhaps greater concern is the exploitation of intan gible cultural heritage in the form of traditional knowledge and expressions of culture. In 2002, the Pacific Community developed a Model Law for the Protection of Traditional Knowledge and Expressions of Culture.94 In 2010, the PIF developed a Traditional Knowledge Implementation Action Plan95 and, in collaboration with UNESCO, provided funding and resources to assist members in endorsing the model law. In par ticular, to implement the model laws States need to establish a cultural council, develop an inventory database, and appoint experts in legislative drafting to ensure the model law is implemented consistently within the region.96 This model law is being developed into national legislation in a number of States. The Cook Islands and Niue97 have passed an Act, while other States such as Vanuatu, Fiji, Kiribati, and PNG have endorsed policies reflecting the model laws.98 This concern with traditional knowledge as intellectual property rather than intangible cultural heritage is also reflected in the development of the Melanesian Spearhead Group Framework Treaty on the Protection of Traditional Knowledge and Expressions of Culture, adopted in 2012.99 92 Convention for the Safeguarding of the Intangible Cultural Heritage Act 2009 (Republic of Vanuatu) 93 The establishment of a new legal framework for protection of traditional knowledge has been sug gested in Samoa; see National Heritage Board, Final Report—May 2013 [2013] SLRC 3 (1 May 2013) accessed 26 November 2018. 94 Pacific Island Forum Secretariat, Model Law 2002 accessed 8 November 2017. 95 Traditional Knowledge Implementation Action Plan accessed 9 November 2017. 96 Pacific Island Forum Secretariat, Model Law 2002 (n 94), ss 36, 38, 39. 97 Taoga Nieu Act 2012. 98 World Intellectual Property Organization (WIPO), Pacific Island Forum Countries Regional Framework, paper presented at WIPO Seminar on Intellectual Property and Genetic Resources, Traditional Knowledge & Traditional Cultural Expression: Regional, Nation and Local Experiences, Geneva, Switzerland, 30 March 2015, 9. 99 Melanesian Spearhead Group accessed 9 November 2017. See, also, Jimmy Naouna, Third

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8. Remaining UNESCO Conventions Other than the World Heritage Convention and the Intangible Cultural Heritage Convention, the States of Oceania have not ratified or acceded to many of the UNESCO Conventions that are designed to protect cultural heritage. Of the fifteen States of Oceania, only Australia and New Zealand are party to the 1954 Hague Convention on the Protection of Cultural Heritage in the Event of Armed Conflict.100 This is perhaps not surprising, as few of the small island States of Oceania have been involved in the kind of wars envisaged by the drafters of the Convention, and, other than Australia and New Zealand, the States of Oceania have little role to play in operations in other States. Somewhat more surprising, the same applies with respect to the 1970 Convention on the Illicit Trafficking of Cultural Heritage.101 Both Australia and New Zealand are party to the Convention, have implementing national legislation, and are actively involved in issues that touch both on the return of Australian102 and New Zealand heritage to Australia and New Zealand respectively, and the return to other States of illicit heritage found in Australia103 or New Zealand.104 However, other States of Oceania are not immune from the illicit trade in cultural heritage.105 It is, however, rather rare given the forms of tangible heritage in the Islands of Oceania do not tend to fetch great prices on the art and antiquity market. In the event that heritage has been exported illegally, there is little chance that it can be traced by the source States given their lack of capacity. Even so, State legislation does touch on the issue, including, for example, Nauru’s recently

International Decade for the Eradication of Colonialism, discussion paper presented at Pacific Regional Seminar of UN Special Committee on Decolonisation, Managua, Nicaragua, 31 May–2 June 2016, 3; and Miranda Forsyth, ‘The Traditional Knowledge Movement in the Pacific Island Countries: The Challenge of Localism’ (2011) 29 Prometheus 269. 100 Convention for the Protection of Cultural Property in the Event of Armed Conflict (n 11). As at 2 August 2019, there were 133 States Parties; see accessed 2 August 2019. States parties that have territories in Oceania include Australia, France, Chile, New Zealand, the United Kingdom, and the United States. 101 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (n 12). As at 2 August 2019, there were 140 States Parties; see accessed 2 August 2019. See also Craig Forrest, ‘Strengthening the International Regime for the Prevention of The Illicit Trade in Cultural Heritage’ (2003) 4(2) Melbourne Journal of International Law 592. 102 See Craig Forrest, ‘Australia’ in James A. R. Nafziger and Robert K. Paterson (eds), Research Handbook on the Law of Cultural Heritage and Trade (Edward Elgar Press 2013) 44. 103 See Craig Forrest, ‘Australia’s Protection of Foreign States’ Cultural Heritage’ (2004) 27(3) University of New South Wales Law Journal, 605, and Craig Forrest, ‘The Illicit Trade in Iraqi Heritage: Considerations for the Australian Art and Antiquities Market’ (2004) 29(3) Alternative Law Journal 121. 104 Piers Davies and Paul Myburgh, ‘The Protected Objects Act in New Zealand: Too Little, Too Late?’ (2008) 15 International Journal of Cultural Property 321 105 See, for example, the trade in World War II artefacts: Craig Forrest and Jennifer Corrin, ‘Legal Pluralism in the Pacific: Solomon Island’s World War II Heritage’ (2013) 20 International Journal of Cultural Property 1.

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Oceania 875 adopted National Heritage Act 2017 and the Federated States of Micronesia’s Historical Sites and Antiquities Act. While, in relative terms, the 2001 Underwater Cultural Heritage (UCH) Convention is a more recent convention, Oceania has a significant body on underwater cultural heritage, yet only one State in Oceania, the Federal States of Micronesia, has ratified the Convention.106 For the small island States of Oceania, seafaring is at the heart of many of their cultures, but little of their maritime heritage remains. This is primarily due to the nature of the craft used, comprising highly organic material that is unlikely to survive very long in the mostly tropical conditions of Oceania. Moreover, much of the underwater cultural heritage that exists from World War II, and some from World War I, is perceived as being the heritage of Europe and or of major powers such as Japan, with little to do with the cultures of Oceania other than, at best, as a tourist resource. Since none of the belligerent States of World War II that have wrecks in these waters are party to the Convention, little regulation of this heritage exists. UNESCO did host a meeting of the States of the South Pacific in 2009 in Solomon Islands to promote the adoption of this Convention in the region, but there has been no subsequent progress.107 The adoption of the Convention by the Federated States of Micronesia is of some importance in the region, especially as Chuuk Lagoon falls within this federation. There at least fifty-three known World War II wrecks in the Chuuk Lagoon, and a number of the 453 aircraft known to have been lost over Chuuk.108 As a State within the federation, the State legislation—the Chuuk Lagoon Monument Act109—provides a level of protec tion but not to the degree required by the UCH Convention. As such, the Federated States of Micronesia does not have legislation that effectively implements the UCH Convention. Nevertheless, it is the focus of much activity which can drive interest in the Convention in Oceania. A UNESCO workshop on National Consultation on the Underwater Cultural Heritage Safeguarding was recently held in Chuuk,110 and in 2017 the UN Our Oceans conference, convened to support the implementation of Sustainable Development Goal 14,111 supported a project to assist Pacific SIDS, in particular [the] Federated States of Micronesia (FSM), in the preservation of their underwater cultural heritage in an Emergency Situation. It also addresses urgent and serious risks related to environmental hazards emanating 106 Convention on the Protection of the Underwater Cultural Heritage (n 13). As at 2 August 2019, there were sixty-one States Parties; see accessed 2 August 2019. 107 UNESCO, Underwater Cultural Heritage in Oceania accessed 9 November 2017. 108 UNESCO, National Consultation on the Underwater Cultural Heritage Safeguarding Held in Chuuk accessed 29 July 2019. 109 Maritime and Marine Resources 25 CSC 8. Chuuk Lagoon Monuments Act. 110 See accessed 29 July 2019. 111 See accessed 29 July 2019.

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876 Craig Forrest and Jennifer Corrin from certain World War II shipwreck sites in the Pacific, taking Chuuk Lagoon as an example case for the region.112

In 2018, Australia passed the Underwater Cultural Heritage Act, replacing its 1976 Historic Shipwreck Act. This will enable Australia to become a party to the UCH Convention. Should this happen, it may prove to be a boost to the exposure of the Convention in the region and hasten more adoptions.

9. Comparative National Approaches As noted, not only is there poor engagement with the international law protecting cul tural heritage, but there is also a paucity of domestic legislation and policy protecting cultural heritage within the region. This is in spite of the fact that many States in Oceania have made a constitutional pledge to uphold tradition and cultural values. In Solomon Islands, for example, the preamble to the Constitution begins with the following words: We the people of Solomon Islands, proud of the wisdom and the worthy customs of our ancestors, mindful of our common and diverse heritage and conscious of our common destiny, do now, under the guiding hand of God, establish the sovereign democratic State of Solomon Islands.113

It also agrees and pledges to ‘cherish and promote the different cultural traditions within Solomon Islands’.114 In the substantive provisions, an application for citizenship must include ‘respect for the culture, the language and the way of life of Solomon Islands’.115 Similarly, the Constitution of Tuvalu provides that the laws of Tuvalu should be based on ‘the acceptance of Tuvaluan values and culture, and on respect for them’.116 In Nauru, amendments to the Constitution have been considered which would incorporate a stronger commitment to the traditional political structure and culture of the people of Nauru, by inserting the following words: [W]e affirm the matrilineal basis of our society and take pride in our traditions, culture, heritage, aspirations, respect for family life, our 12 tribes, kinship and the preservation and unity of the people.117

Palau has also highlighted a commitment to protection of Palauan culture and tradition. The Second Constitutional Convention affirms the duty of ‘national government to 112 Chuuk Lagoon Pacific Ocean Emergency Response—Safeguarding Underwater Cultural Heritage (FSM National Archives, Historic Preservation & Culture Office) accessed 29 July 2019. 113 Constitution of Solomon Islands 1978, Preamble. 114 Ibid, Preamble, para (d). 115 Ibid, s 20(4)(f). 116 Constitution of Tuvalu 2008, s 11(b). 117 Constitutional Amendment (No. 2) (Nauruan Culture Amendment) Bill 2013 (Nauru) [1].

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Oceania 877 assist traditional leaders in preservation, promotion and protection of Palauan heritage, culture, languages, customs and traditions’.118 A provision that has less obvious impact on cultural heritage is the right to freedom of expression, which is enshrined in the constitutions of countries including Cook Islands, Kiribati, Nauru, Samoa, Solomon Islands, Tuvalu, and Vanuatu. In some countries, this right is specifically stated to extend to protection of traditional religious beliefs and cus toms. In Papua New Guinea, this provision119 has recently been examined in Somare v Zurenuoc.120 This case concerned the removal of carvings and directions depicting nude images from the parliamentary precinct. These objects were of cultural significance, and the Director of the National Museum and Art Gallery attempted unsuccessfully to stop their removal and damage to carvings. The defendants argued that they were not objects of ‘national cultural property’, as they had not been declared as such under the National Cultural Property (Preservation) Act 1965. It was held that the objects were national cul tural property under the Act and that the damage to these artefacts infringed s 45 of the Constitution, which proved for freedom of conscience, thought, and religion and the freedom to manifest and propagate beliefs, including traditional beliefs and customs.121 This case demonstrates that domestic legislation or ratification of international conven tions is not necessarily required to protect cultural objects in Papua New Guinea or, by analogy, any of the other countries where a similar right is constitutionally enshrined. Therefore, while international scrutineers may portray Pacific countries as affording limited legal protection for cultural heritage, in practice avenues for protection may exist at the highest domestic level—that is, under the constitution.

10. Conclusion Cultural heritage, both tangible and intangible, defines the people of Oceania. With strong cultural ties, and similar threats, the island States of Oceania would benefit from a more defined regional approach to the protection of cultural heritage. But this is prob lematic as the region simply does not have the ability to generate a regional approach without international assistance, and this is then exacerbated by the problems inherent in the very cultures that a regional approach would seek to protect.

118 Second Constitutional Convention, 15 July 2005 (Republic of Palau) [17 C.P-No.2–272]. 119 Constitution of Papua New Guinea 1978, s 45. 120 Somare v Zurenuoc [2016] PNGNCJ 124. 121 Ibid [5]; Constitution of Papua New Guinea 1978, ss 7(3), 155(4).

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Chapter 37

Cen tr a l a n d Sou th A m er ica Lucas Lixinski*

1. Introduction The region comprising Central and South America includes thirty-two countries of deceptive uniformity. Whereas one usually thinks of Central and South America as largely equating to ‘Latin America’, countries that were once colonies of Portugal (Brazil) or Spain (the rest of Latin America), in fact there is a wide range of historical experiences, from once-French islands like Haiti to once-Dutch countries like Suriname to the Anglophone Jamaica and Belize. Even among Spanish-speaking countries there is far more diversity than one would think, from the Andean countries of Colombia to the prairies of Argentina and the isthmus of Central America that is in many ways defined by the direct military influence of the United States in the twentieth century, under the guise of development (Panama) or ridding the country of communism (Nicaragua).1 This diversity is reflected in the plethora of regional integration processes across the region, many of which encompass smaller clusters of countries (like the Common Market of the South—MERCOSUR—2 or the Andean Community of Nations),3 to more ambitious processes like the Union of Nations of South America (UNASUR) or the Community of Latin American and Caribbean States (CELAC). All these organizations are endowed with some law-making capacity, whether hard law or soft law. And they

* I am grateful to Camila Zúñiga Navarro for her research assistance. All errors remain my own. 1 For more details, see UNESCO’s The General History of Latin America, an ambitious nine-volume project undertaken by 240 historians from the region and beyond. 2 On the law of MERCOSUR in general, see Marcílio Toscano Franca Filho, Lucas Lixinski, and María Belén Olmos Giupponi (eds), The Law of MERCOSUR (Hart Publishing 2010). 3 On the Andean Community’s approach to heritage in general, and particularly intangible heritage, see Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press 2013) 98–103.

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Central and South America 879 have all tapped into heritage as a mechanism through which to promote their goals, as we will see in this chapter. But, for now, this example showcases that the region is more plural than is often assumed; after all, if it were uniform, there would not be the need for so many varied configurations of countries pursuing similar objectives through different means. In spite of this diversity, there are a few traits shared by Central and South American nations that deeply inform their regional approach to heritage safeguarding: a shared past of European colonization; the presence of Indigenous peoples; biodiversity; and the need for development. These four characteristics are, of course, all related among themselves and relate to broader features of the region’s geopolitics (such as the perennial shadow cast by the United States, or the largely shared past of dictatorial regimes and civil wars in the twentieth century). These characteristics inform the approach taken in the region to cultural heritage and its potential to advance certain causes or claims. I argue in this chapter that the key defining features of Central and South American regional efforts in the field of heritage are the use of heritage as a tool for development and the connection between heritage and indigeneity. With respect to development, the main approach is policy-driven, which can be explained both by the nature of the objective (economic) and also by the fact that most organizations engaging in this area have somewhat reduced mandates for rule-making with respect to heritage. With respect to indigeneity, on the other hand, rule-making is much stronger and engages a proud tradition of international law-making in the region, which started as part of a Pan-American reliance on the rules of international law to shield Central and South American nations from European colonialism and US neo-colonialism.4 In the specific area of heritage, there is certainly a conversation between the regional and the global that needs to be accounted for, as this chapter outlines. What follows discusses the Central and South American approach to international heritage law from different perspectives: the ‘regional’ in relation to the ‘universal’ (UNESCO, in this case); the uses of heritage as a maker of regional identity, particularly relying on the recovery of Indigenous identity; heritage’s framing as a tool for economic/ human/social/holistic development; and specific treaty-making in the region, through initiatives by the Organization of American States (OAS), the regional organ that is a successor to the Pan-American Union founded in the nineteenth century. While my focus is on regional and international efforts, with domestic references used as means to illustrate the regional and universal aspects of heritage safeguarding,5 a few words are warranted on domestic legal frameworks as well.

4 Documenting this tradition, specifically in the context of the creation of the United Nations, see Mats Ingulstad and Lucas Lixinski, ‘Pan-American Exceptionalism: Regional International Law as a challenge to International Institutions’ in Alanna O’Malley and Simon Jackson (eds), The Institution of International Order: From the League of Nations to the United Nations (Routledge 2018) 65–89. 5 For an insightful analysis of some domestic legislation, particularly focused on the traffic of cultural objects, see Donna Yates, ‘Reality and Practicality: Challenges to Effective Cultural Property Policy on the Ground in Latin America’ (2015) 22(2–3) International Journal of Cultural Property 337.

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880 Lucas Lixinski

2. Domestic Law Trends across the Region In spite of the range of legal systems across Central and South America, there are some trends with respect to domestic heritage law in the region which are worth briefly highlighting. A majority of countries in the region are civil law jurisdictions which have inherited Portuguese and Spanish law (and since incorporated elements of German, French, and Italian law), but there are also common law countries in the Caribbean and a range of countries where customary Indigenous law receives some degree of recognition. Trends worth highlighting amid this diversity are the constitutional recognition of culture and cultural heritage as State priorities;6 the use of administrative law as the key field of domestic law through which heritage is safeguarded; and the positioning of these countries, with respect to cultural objects, largely as source nations, in spite of some emerging evidence to the contrary. With respect to constitutional recognition, a majority of countries in the region bene fits from fairly young constitutions, which incorporate a wide range of social and political interests. It is remarkable that most of these constitutions make express reference to cultural heritage in their text, at least in Latin American nations. For the most part, the connection is to minority culture and the role of minority culture in shaping national identity. Often, minority culture translates as Indigenous culture, but it also encompasses peasant and Afro-descendant groups. The Bolivian Constitution of 2009, for instance, provides in article 289 that ‘[r]ural native indigenous autonomy consists in self-government as an exercise of the determination of the nations and rural native indigenous peoples, the population of which shares territory, culture, history, languages, and their own juridical, political, social and economic organizations or institutions’. Several countries specifically single out heritage as a key objective of the State. The Costa Rican Constitution’s article 89 indicates among the ‘cultural objectives of the Republic: to protect the natural beauties, to preserve and to develop the historic and artistic patrimony of the Nation and to support the private initiative for scientific and artistic progress’. And Guatemala’s Constitution makes explicit reference to a few World Heritage Sites in the country in article 61: The archaeological sites, [the] collections of monuments and the Cultural Center of Guatemala [Centro Cultural de Guatemala], will receive special attention from the State, with the purpose of preserving its characteristics and safeguarding [resguardar] its historical value and cultural assets. The Tikal National Park, the 6 For a broader discussion of the ways in which culture appear in constitutions around the world, see Lucas Lixinski, ‘Culture’ in Rainer Grote, Frauke Lachenmann and Rüdiger Wolfrum (eds), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press 2019).

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Central and South America 881 Archeological Park of Quiriguá, and the city of Ancient [Antigua] Guatemala, will be subject to a special conservation regime because they have been declared [part of the] Heritage of the World [Patrimonio Mundial], as well as those that acquire a similar recognition.

Another trend in the region is the reliance upon administrative law instruments, which is not exclusive to Central and South America and I understand is the most common means of domestic heritage safeguarding. Chief among them is the mechanism of listing, which largely echoes international legal obligations, even if it sometimes predates them, like the Brazilian law on intangible heritage of 2000.7 By using administrative law, legislation engages the State in the role of protector of heritage, and non-State actors only engage with heritage indirectly or mediated by the State. This type of mechanism can be particularly problematic for Indigenous and minority heritage, in instances where the State is not supportive of heritage safeguarding and the claims that may arise for the community on the basis of heritage status.8 Further, the use of administrative law can be seen as creating a barrier between the domestic and the international for nonState actors, as domestic public law can often preclude the use of private international law mechanisms.9 Lastly, Central and South American countries often configure themselves in the pos ition of source nations of cultural heritage artefacts and are more concerned with export regulations than import regulations. But recent situations have shown that there is indeed a network of trafficking of antiquities within Central and South America, and several countries are in fact becoming market nations for pre-Columbian artefacts.10 A key effect of this emerging trend is to highlight the need for greater cooperation in regulating the import of cultural objects, as well as a reconfiguration of the duality that posed Central and South American nations’ heritage as victims of the Global North. These domestic trends inform and map onto regional discussions and engagement with heritage safeguarding. But, as noted with respect to administrative law, another important element is the influence of (universal) international law on regional efforts. To that conversation between the regional and the universal we move next.

7 Brazil, Decreto No 3.551 (4 August 2000). Long title: Institui o Registro de Bens Culturais de Natureza Imaterial que constituem patrimônio cultural brasileiro, cria o Programa Nacional do Patrimônio Imaterial e dá outras providências. For a discussion, see Lucas Lixinski, ‘O direito do patrimônio cultural da humanidade no Brasil: bases para reforma da legislação brasileira à luz do direito internacional’ (2013) 72 Revista de Direito Ambiental 135. 8 On the exclusion of community from legal processes around heritage more generally, see Lucas Lixinski, International Heritage Law for Communities: Exclusion and Re-Imagination (Oxford University Press 2019). 9 For a critical discussion of the foreign public law exception, see Hans W. Baade, ‘The Operation of Foreign Public Law’ (1995) 30 Texas International Law Journal 429, 498. 10 See generally Anauene Dias Soares, Direito International do Patrimônio Cultural: o Tráfico Ilícito de Bens Culturais (IBDCult 2018).

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882 Lucas Lixinski

3. The Universal in the Regional Central and South American countries participate actively in international heritage law. This involvement underlines the deep-seated commitment to international law across the region. However, the participation in treaties does not always translate into their effective use, which can be measured for our purposes through the use of lists and other international recognition processes created by the principal treaties, the World Heritage Convention (WHC) and the Intangible Cultural Heritage Convention (ICHC). With respect to ratification, the table below (see Table 37.1) shows the extensive ratification of heritage treaties (regional and universal) by States in the region. It shows that two UNESCO treaties, the WHC and the ICHC, have been ratified by all countries in Central and South America. It likewise shows that, across the board, ratification of other UNESCO treaties is high. A pattern emerges with respect to a number of these less-ratified treaties, in that they are more ratified by the Portuguese- and Spanish-speaking countries, perhaps indicating a stronger tradition among Latin American nations that is not necessarily shared by other countries in Central and South America (which I will refer to as Caribbean nations). One exception to this divide is the Underwater Cultural Heritage Convention (UCHC), which is widely ratified by both Latin American and Caribbean nations and in a high proportion compared to the rest of the world. In fact, nearly one-third of all ratifications of the UCHC (eighteen out of fifty-seven total ratifications at the time of writing) are from Central and South American States. The reasons for this widespread ratification are unclear but quite possibly associated with the large presence (particularly in and around the Caribbean) of shipwrecks that would be old enough to be considered underwater heritage under the terms of the UCHC. This participation in international treaties is also reflected in participation in lists under the WHC and ICHC. With respect to the WHC, Central and South American States have 105 sites on the World Heritage List from twenty-seven countries, accounting for just under 10 per cent of the total sites (excluding the thirty-four World Heritage Sites listed by Mexico).11 With respect to the ICHC lists, there are no statistics available for regions, but Central and South American States have over fifty manifestations of intan gible heritage inscribed on those lists, out of 429 elements at the time of writing (therefore, also close to 10 per cent of all heritage on those lists).12

11 Statistics available at UNESCO, World Heritage List Statistics accessed 18 August 2017. 12 UNESCO, Browse the Lists of Intangible Cultural Heritage and the Register of Good Safeguarding Practices accessed 18 August 2017.

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Central and South America 883 Participation in these lists happens also through multinational nominations in the region, even though there are relatively few of them: four on the World Heritage List13 (but one does not include other Central and South American countries)14 out of thirty-four (therefore, still keeping roughly 10 per cent representation); and four on the ICHC lists (out of thirty transboundary elements there, again in keeping with the proportion).15 Therefore, in spite of representing between 16 per cent (WHC) and 18 per cent (ICHC) of States Parties to the major treaties, Central and South American States account only for about 10 per cent of the heritage given international recognition by those instruments. These figures may be seen as pointing to a lack of representation of Central and South American heritage in international processes, which is not correlated to the willingness of countries in the region to engage in international instruments. Other factors, such as the expenditure related to preparing nominations for those lists, may be at stake, but those are issues of representation nevertheless. In addition to this widespread participation in international treaties, UNESCO also engages directly with the region as the ‘Latin America and the Caribbean’ group (therefore, including Mexico). This activity focuses largely on increasing the ratification of relevant UNESCO treaties and the utilization of international mechanisms under them (particularly international lists), alongside changing domestic laws to include community participation and sustainable development.16 There is thus relevant activity aimed at increasing the representation of Central and South American countries in UNESCO heritage activities. The emphasis on sustainable development seems to be at least partly driven by a 2016 resolution by the United Nations General Assembly, or at least the resolution reflects these efforts.17 This resolution, while calling for the strengthening of legal frameworks for the safeguarding of heritage,18 builds upon the connection between culture and sustainable development and ‘emphasizes the important contribution of culture to the three dimensions of sustainable development’.19 The first dimension is the connection 13 These are: Jesuit Missions of the Guaranis: San Ignacio Mini, Santa Ana, Nuestra Señora de Loreto and Santa Maria Mayor (Argentina), Ruins of Sao Miguel das Missoes (Brazil) (Argentina and Brazil); Qhapaq Ñan, Andean Road System (Argentina, Bolivia, Chile, Colombia, Ecuador, and Peru); and Talamanca Range-La Amistad Reserves/La Amistad National Park (Costa Rica and Panama). 14 This site is The Architectural Work of Le Corbusier, an Outstanding Contribution to the Modern Movement (Argentina, Belgium, France, Germany, India, Japan, and Switzerland). 15 On the Representative List, these are: Marimba music, traditional chants and dances from the Colombia South Pacific region and Esmeraldas Province of Ecuador (Colombia and Ecuador); Tango (Argentina and Uruguay); and Language, dance and music of the Garifuna (Belize, Guatemala, Honduras, and Nicaragua). On the Inventory of Best Safeguarding Practices, there is the Safeguarding intangible cultural heritage of Aymara communities in Bolivia, Chile and Peru (Bolivia, Chile, and Peru). 16 UNESCO, ‘Regional Work Plan for Culture in Latin America and the Caribbean 2016–2021’ (2015) 14 Culture & Development 48. 17 United Nations General Assembly, Culture and Sustainable Development, UN Doc A/RES/70/214 (26 February 2016). 18 Ibid, para 10.h. 19 Ibid, para 3.

San Salvador 1976

Hague 1954

Hague Protocol 1 1954

Hague Protocol 2 1999

Cultural Objects 1970

Underwater Intangible Heritage Heritage

Diversity of Cultural Cultural Objects Expressions 1995

01/11/1983 25/04/2013 25/04/2013 25/04/2013

World Heritage

15/04/1935

15/04/1935 14/05/1980 03/06/1998 03/06/1998 09/12/2003 06/03/1996 23/08/1977

15/04/1935

Colombia

Costa Rica

Cuba

23/02/2007 15/03/2011

19/03/2008 19/03/2013 14/06/2012

10/12/2008 13/03/2007

01/03/2006 16/01/2007 23/03/1999

04/04/1995

13/09/2012 02/07/2013 16/07/1999

15/04/1935 31/08/1978 02/10/1956 08/02/1961 02/08/2004 24/03/1971 16/06/1975 01/12/2006 13/02/2008 08/11/2006 26/11/1997

02/10/2006 24/09/2009

05/09/2005 07/08/2015

30/01/1980 24/03/1981 26/05/2008 29/05/2007 29/05/2007

24/05/1988 24/05/1983

05/01/1960 21/03/2002 03/03/2009 07/03/1973 12/02/1985

26/11/1957 26/11/1957

18/06/1998 18/06/1998 24/11/2010

11/09/2008 11/09/2008 11/09/2008 18/04/2014 20/02/1980

El Salvador 15/04/1935 27/06/1980 19/07/2001 27/03/2002 27/03/2002 20/02/1978 08/10/1991

Ecuador

Dominican 15/04/1935 Republic

Dominica

15/04/1935

Chile

12/09/1958 12/09/1958 23/09/2005 16/02/1973 01/09/1977

15/04/1935

Brazil

04/10/1976 04/10/1976 24/02/2017 28/02/2006 04/08/2006 13/04/1999

15/04/1935 17/01/2003 17/11/2004

Bolivia

06/11/1990 04/12/2007 24/03/2015

15/05/2014 29/12/2014

09/10/1997 15/05/2014

09/04/2002 02/10/2008 02/10/2008 10/04/2002 09/04/2002 02/10/2008 02/10/2008 02/10/2008

Barbados

Belize

UNIDROIT

15/04/1935 27/05/2002 22/03/1989 10/05/2007 07/01/2002 11/01/1973 23/08/1978 19/07/2010 09/08/2006 07/05/2008 03/08/2001

Roerich

UNESCO

Bahamas

Argentina

Antigua and Barbuda

Country

Inter-American

Table 37.1 Status of Ratification and Deposit of Instruments of Ratification of Cultural Heritage Treaties by Central and South American Countries—Universal and Inter-American Treaties (status as of 18 August 2017) OUP CORRECTED AUTOPAGE PROOFS – FINAL, 06/20/2020, SPi

10/09/1992 13/08/1998 15/01/2009 15/01/2009 15/01/2009

15/04/1935 28/11/1979 21/07/1989 21/07/1989 24/05/2005 24/10/1979 24/02/1982

Peru

03/02/2003 08/11/2010

16/02/2005 27/07/2010 22/07/2010 26/07/2010

Saint Vincent and the Grenadines

Trinidad and Tobago

Venezuela 15/04/1935 (Bolivarian Republic of) 09/05/2005

21/03/2005 30/10/1990

24/09/1999 24/09/1999 03/01/2007 09/08/1977 09/03/1989

23/10/1997

Surinam

Uruguay

14/10/1991 01/02/2007 01/02/2007 01/02/2007

Saint Lucia

12/04/2007 28/05/2013

18/01/2007 18/01/2007

25/09/2009 25/09/2009

10/07/1986 03/12/2009 15/04/2016 26/04/2016

Saint Kitts and Nevis

15/04/1935

15/04/1935 20/06/2006 09/11/2004 09/11/2004 09/11/2004 09/11/2004 27/04/1988 07/09/2006 14/09/2006 30/10/2007 27/05/1997

Paraguay

23/09/2005 16/10/2006 05/03/1998

15/04/1935 10/05/1978 17/07/1962 08/03/2001 08/03/2001 13/08/1973 03/03/1978 20/05/2003 20/08/2004 22/01/2007 26/06/2009

14/02/2006 05/03/2009

15/04/1935 06/02/1980 25/11/1959 25/11/1959 01/06/2001 19/04/1977 17/12/1979

Panama

14/06/1983 09/08/2011 27/09/2010 04/05/2007

Nicaragua

Jamaica

15/04/1935 15/04/1983 25/10/2002 25/10/2002 26/01/2003 19/03/1979 08/06/1979 23/07/2010 24/07/2006 31/08/2010 08/05/1998

14/12/2009

Honduras

20/06/1977 28/04/2014 08/02/2010 18/01/1980 09/11/2009 17/09/2009 08/02/2010

15/04/1935 28/10/1983

Haiti

Guyana

Guatemala 15/04/1935 24/10/1979 02/10/1985 19/05/1994 04/02/2005 14/01/1985 16/01/1979 03/11/2015 25/10/2006 25/10/2006 03/09/2003

Grenada

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886 Lucas Lixinski between heritage and economic development through tourism and creative industries.20 The second is with respect to the social development of ‘all, including local communities and indigenous peoples, with . . . safeguarding of the cultural and natural heritage’.21 The third is the connection between sustainable development and environmental sustainability,22 which, as I have argued elsewhere using a South American case study, can be problematic in its exclusionary effects on communities.23 As the most developed instrument under UNESCO remains the World Heritage Convention, it is also to be expected that some of the most advanced regional activities come through this treaty. The World Heritage Centre has published a specific Action Plan for World Heritage in Latin America and the Caribbean (2014–2024).24 This plan proposes an ‘experimental’ regional approach to world heritage25 and has an ‘overall goal that brings together all the others . . . that heritage can be a factor of sustainable development that contributes to: a) improve the quality of life of the peoples of Latin America and the Caribbean b) poverty reduction c) gender equality and d) to promote cultural and natural diversity’.26 Perhaps the most innovative approach in the plan is the development of ‘pilot projects’ to showcase ‘good practices’ for the conservation of world heritage in the region.27 The World Heritage Centre’s efforts with respect to the WHC listing in the region apply equally to cultural and natural heritage. However, and back to the issue of representation on the lists, it is worth noting that a higher proportion of Central and South American natural properties exists on the list, compared to cultural or mixed properties. Out of 206 natural sites, thirty-two are in Central and South America, corresponding to 15 per cent of the total of sites (and thus in accordance with the proportion of ratifications). This greater representation of natural sites as opposed to cultural or mixed ones highlights the importance of biodiversity for the region. However, as a report prepared for IUCN in this context has noted, ‘the well-documented and increasingly acknowledged spatial overlap of cultural and natural diversity in the region is not reflected in the number of inscribed “mixed” properties’,28 and the natural properties of a site seem to be privileged at the expense of cultural elements. The criteria upon which these properties are listed supports the interpretation of a bias towards showcasing biodiversity.29 Another phenomenon worth noting with respect to natural sites is that of transboundary listings. Out of the transboundary listings in Central and South America, 20 Ibid, para 3.a. 21 Ibid, para 3.b. 22 Ibid, para 3.c. 23 Lucas Lixinski, ‘Sustainable Development in International Heritage Law: Embracing a Backwards Look for the Sake of Forwardness?’ (2015) 32 Australian Yearbook of International Law 65. 24 UNESCO World Heritage Centre, Progress Report on Periodic Reporting in All Other Regions. Annex—Action Plan for World Heritage in Latin America and the Caribbean (2014–2024), Doc WHC14/38.COM/10B (16 May 2014). 25 Ibid, 9. 26 Ibid, 10. 27 Ibid. 28 Tilman Jaeger, Natural World Heritage in Latin America and the Caribbean: Options to Promote an Underutilized Conservation Instrument (IUCN 2013) 2. 29 Ibid, 2–3.

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Central and South America 887 only one is natural,30 in spite of the fact that there are contiguous listed World Heritage Sites ‘on opposite sides of international borders without formal recognition as a transboundary property’.31 It seems, therefore, the potential for transboundary cooperation is better deployed with respect to culture than nature. It may be still that nature is too closely intertwined with discourses on sovereignty in the region, given the (not-so-) recent history of biopiracy in the region. But it may also be that it is cultural heritage (and not natural heritage) that actually serves transboundary objectives related to culture and diplomacy—namely, that of promoting a shared regional identity. To the formation of a possible Central and South American identity through cultural heritage we move next.

4. Forging Regional Identity through Heritage In forging regional identity through heritage, there are two characteristics that come to mind in relation to Central and South America. The first is the reference to indigeneity, which speaks to the pre-Columbian history of the Americas as a past to be revisited and treasured. The second, also tied to indigeneity but with some independent features, is the use of the language of human rights to promote this identity. Both of these characteristics, as the formation of regional identity usually does, have to do with the definition of an identity that shelters and sheltered from and against a (former) oppressor. On the second factor, the use of the language of human rights is itself part of the strong international legal tradition of the region. The American Declaration on the Rights and Duties of Man, for instance, predates the Universal Declaration on Human Rights. Blake suggests that the American Declaration in fact sets out the basic element for shaping the broader legal framework around heritage in the region.32 The American Declaration, in fact, does establish both rights and duties with respect to culture. The preamble speaks of the duty to exercise, maintain, and stimulate through all available means culture, since culture is ‘the highest social and historical expression of . . . spiritual development’.33 There is also a right, mirrored in the subsequent Universal Declaration of Human Rights, to ‘take part in the cultural life of the community’.34 30 Talamanca Range–La Amistad Reserves/La Amistad National Park (Costa Rica and Panama). 31 Jaeger, Natural World Heritage in Latin America and the Caribbean (n 26) 4. ‘These are the national parks of Iguazu (Argentina) and Iguaçu (Brazil), and the national parks of Darién (Panama) and Los Katíos (Colombia), respectively.’ 32 Janet Blake, International Heritage Law (Oxford University Press 2015) 319. 33 Inter-American Commission on Human Rights (IACtHR), American Declaration of the Rights and Duties of Man, 2 May 1948: ‘Since culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power.’ 34 Ibid, art XIII.

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888 Lucas Lixinski This human rights dimension of cultural heritage is best developed in the region with respect to Indigenous peoples’ rights. The recognition of the need to protect heritage is commonplace in constitutions in the region but more often than not is closely connected to provisions on Indigenous rights.35 Importantly, though, domestic legislation across Central and South America has not always maintained this connection to Indigenous rights. Laws promote State ownership and control over heritage sites,36 instead of control by Indigenous communities. In fact, most domestic heritage legislation does not even mention Indigenous groups as stakeholders in heritage action, and the efforts with respect to Indigenous peoples are more focused on land claims and immediate livelihood issues, rather than control over cultural resources. ‘However, they have recently increased their demands on heritage issues, mainly in two topics: the control of the historical narrative exerted by archaeologists and, in some countries, the restitution of their ancestors’ human remains.’37 This lack of Indigenous involvement in heritage narratives is also shown in the context of World Heritage properties: natural World Heritage Sites, in particular, have a complicated relationship with Indigenous peoples, including ‘dramatic examples of forced re-settlements’, as well as the presence of non-contacted Indigenous peoples in World Heritage areas.38 There is an overall inconsistency between rules protecting Indigenous peoples’ rights and legislation on cultural heritage. One of the effects is that even consultation and consent frameworks with respect to the exploitation of Indigenous resources (which should include cultural resources) fall short of promoting the degree of control and autonomy they promise to promote.39 In the historic practice of heritage in the region, the connection between heritage and indigeneity thus has more of a symbolic function (indigeneity forms the identity of the nation state), rather than a proper right that can be exercised. New constitutionalism in the region attempts to revert this pattern, as do cross-regional efforts in the area of Indigenous rights.40 With respect to Indigenous rights in the region, the OAS Declaration on the Rights of Indigenous Peoples (OASDRIP)41 is a relevant instrument, in that it represents the current high-water mark for the world in terms of Indigenous rights (having benefited from nearly one decade of action under the UN Declaration before its approval in 2016),

35 Lucas Lixinski, ‘Constitutionalism and the Other: Multiculturalism and Indigeneity in Selected Latin American Countries’ (2010) 14 Anuario Iberoamericano de Justicia Constitucional 235. 36 Maria Luz Endere, ‘Archaelogical Heritage Legislation and Indigenous Rights in Latin America: Trends and Challenges’ (2014) 21 International Journal of Cultural Property 319, 320. 37 Ibid, 324. 38 Jaeger, Natural World Heritage in Latin America and the Caribbean (n 26) 13. 39 Endere, ‘Archaelogical Heritage Legislation and Indigenous Rights in Latin America’ (n 34) 326–7. 40 But one must beware of the dark sides and unintended consequences of excessive focus on culture as a means of Indigenous emancipation. For a critique specifically based on Central and South America, see Karen Engle, The Elusive Promise of Indigenous Development: Culture, Rights, Strategy (Duke University Press 2010). 41 Organization of American States, American Declaration on the Rights of Indigenous Peoples, Doc AG/RES. 2888 (XLVI-O/16) (Adopted at the third plenary session, held on 15 June 2016).

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Central and South America 889 as well as an emblematic document in the region, with a long and painstaking negotiating history.42 As a matter of context, Rodolfo Stavenhagen, in a report prepared for the OAS, identified ‘heritage’ as one of the possible meanings to be attributed to culture. According to him, the right to culture means the right of access to the ‘cultural capital’ that is formed by heritage, both tangible and intangible.43 He criticized this view for saying that it fails to distinguish among cultural contents and that it focuses exceedingly on a ‘universal culture’, failing to acknowledge that different societies have different competing understanding of cultures, which may often clash, and that culture cannot thus be understood as an abstract right but as the right of a social group to its own culture. What a people’s cultural heritage is needs to be determined by the people itself.44 The OASDRIP is a controversial document. Similar to its counterpart at the UN level, the OASDRIP was a highly debated document in its preparation, with wide participation of Indigenous communities in a consultation process that lasted from 1989 (when the OAS first began developing the instrument) to 1996. The first draft of the Declaration was proposed by the Inter-American Commission of Human Rights in 1997, and States were subsequently given the opportunity to comment upon the draft and propose amendments. As a result, all controversial language from the Declaration was elimin ated, and its force and reach were weakened overall. Indigenous organization members of the Indigenous Peoples’ Caucus of the Americas (heavily involved in the negotiations) working on restoring the force of the document have faced fierce State opposition. They were partly successful with respect to the provisions on heritage, which are stronger than the comparable provisions in the UN Declaration. In addition to specific provisions on heritage, the OASDRIP makes indirect reference to domains of heritage as elements of Indigenous identity, provisions that were largely finalized in 2009 and 2011. These provisions make reference to the recognition of the multilingual and multicultural character of Indigenous peoples;45 their right to cultural development;46 and the recognition of their collective rights, including their development and culture.47 A specific section on cultural identity, in addition to a specific provision on heritage discussed shortly, also protects systems of language, knowledge, and communication,48 as well as forms of Indigenous spirituality and the means to transmit those customs.49 In doing so, the OASDRIP offers subsidies to safeguard the intergenerational features of Indigenous heritage, particularly intangible cultural heritage. The specific provisions on cultural heritage were only finalized in 2015 and 2016, having therefore benefited from early practice under the UN Declaration. The key 42 Some of the discussion of the negotiating history is drawn from Lixinski, Intangible Cultural Heritage in International Law (n 3) 73–6. 43 Rodolfo Stavenhagen, ‘La Diversidad Cultural en el Desarrollo de las Américas: Los pueblos indígenas y los estados nacionales en Hiaponoamérica’ (2004) OEA, Unidad de Desarrollo Social, Educación y Cultural, Serie de Estudios Culturales No 9, paras 128–9. 44 Ibid, para 130. 45 Art II. 46 Art III. 47 Art VI. 48 Art XIV. 49 Art XVI.

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890 Lucas Lixinski differences between the provisions in the UN Declaration50 and the OASDRIP51 are that, while the UN document focuses on heritage as a cultural privacy concern and a form of exercise of soft self-determination, the OASDRIP shifts conceptualizes heritage as part of a broader way of life and insists on free, prior, and informed consent as a right, therefore incorporating the idea of cultural heritage as a resource. Article XIII proclaims the right of Indigenous peoples to their cultural integrity and their heritage as important factors for the survival of the communities and the identity of their members, especially to the extent that heritage is connected to the Indigenous cosmovisión. And article XXVIII, on cultural heritage rights, specifies what counts as the heritage of Indigenous peoples, including both tangible and intangible elements, speaking of Indigenous peoples’ right to control their heritage, as well as the duty of States to secure free, prior, and informed consent and consult with Indigenous peoples in the design of laws and other regimes for the protection of heritage ‘and intellectual property associated with that heritage’.52 This provision is far stronger than the Commission’s 50 ‘Article 12. 1. Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. 2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned. ‘Article 31. 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, know ledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.’ 51 ‘SECTION THREE: Cultural identity. Article XIII. Right to cultural identity and integrity. 1. Indigenous peoples have the right to their own cultural identity and integrity and to their cultural heri tage, both tangible and intangible . . . 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs. 3. Indigenous people have the right to the recognition and respect for all their ways of life . . . ‘SECTION FIVE: Social, Economic, and Property Rights . . . Article XXVIII. Protection of Cultural Heritage and Intellectual Property. 1. Indigenous peoples have the right to the full recognition and respect for their property, ownership, possession, control, development, and protection of their tangible and intangible cultural heritage and intellectual property, including its collective nature, transmitted through millennia, from generation to generation . . . 3. States, with the full and effective participation of indigenous peoples, shall adopt measures necessary to ensure that national and international agreements and regimes provide recognition and adequate protection for the cultural heritage of indigenous peoples and intellectual property associated with that heritage. In adopting these measures, consultations shall be effective intended to obtain the free, prior, and informed consent of indigenous peoples.’ 52 ‘Article XXVIII. Protection of cultural heritage and intellectual property. 1. Indigenous peoples have the right to full recognition and respect for the ownership, dominion, possession, control, development, and protection of their tangible and intangible cultural heritage and intellectual property, including its collective nature, transmitted over millennia from generation to generation. 2. The collective intellectual property of indigenous peoples includes, inter alia, traditional knowledge and traditional

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Central and South America 891 original proposal (then article XX), which only declared the right of Indigenous peoples to collective forms of intellectual property (IP) adapted to their cultural specificities, and extending IP tools to the protection of their traditional cultural crafts, referring then to manifestations of ICH.53 In this sense, IP is now subordinated to heritage, as opposed to being the main means through which it is translated into law. It is a welcome development in the OAS and a firm step towards better safeguarding of heritage by this organization. In terms of the legal uses of the OASDRIP, it is not meant to be a binding instrument but, rather, a guide to lawmakers in drafting national legislation on Indigenous rights. It may also serve as an interpretive aid to the activity of the Inter-American Commission and Court of Human Rights.54 It is related to the UN Declaration through article XLI of the OASDRIP, which puts the two declarations together as part of a same set of ‘minimum standards’.55 In spite of the OASDRIP’s attempts to elevate Indigenous peoples’ aspirations to control their heritage to the status of a right, there is still resistance to this idea by certain countries. Colombia, for instance, has filed interpretative notes (which would amount to a reservation if the OASDRIP were a treaty) to the effect that ‘the determination and regulation of Indigenous peoples’ sacred sites and objects is to be governed by cultural expressions, including traditional knowledge associated with genetic resources, ancestral designs and procedures, cultural, artistic, spiritual, technological, and scientific expressions, tangible and intangible cultural heritage, as well as knowledge and developments of their own related to biodiversity and the utility and qualities of seeds, medicinal plants, flora, and fauna. 3. States, with the full and effective participation of indigenous peoples, shall adopt measures necessary to ensure that national and international agreements and regimes provide recognition and adequate protection for the cultural heritage of indigenous peoples and intellectual property associated with that heritage. In adopting such measures, consultations shall be held to obtain the free, prior and informed consent of indigenous peoples.’ 53 The text, as originally approved by the Commission, is the following: ‘Article XX. Intellectual property rights. 1. Indigenous peoples have the right to the recognition and the full ownership, control and protection of their cultural, artistic, spiritual, technological and scientific heritage, and legal protection for their intellectual property through trademarks, patents, copyright and other such procedures as established under domestic law; as well as to special measures to ensure them legal status and institutional capacity to develop, use, share, market and bequeath that heritage to future generations. 2. Indigenous peoples have the right to control, develop and protect their sciences and technologies, including their human and genetic resources in general, seed, medicine, knowledge of plant and animal life, original designs and procedure. 3. The states shall take appropriate measures to ensure participation of the indigenous peoples in the determination of the conditions for the utilization, both public and private, of the rights listed in the previous paragraphs 1. and 2.’ 54 Given the Inter-American Court’s willingness to look at instruments other than the American Convention in determining the reach of this instrument, and the number of Indigenous cases brought before the system, it is likely that the OASDRIP will play precisely this role and quickly reach the status of customary law before the Court. On how the Inter-American Court uses ‘foreign’ instruments to expand its understanding of provisions of the American Convention, see Lucas Lixinski, ‘Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law’ (2010) 21(3) European Journal of International Law 585. 55 ‘Article XLI. The rights recognized in this Declaration and the United Nations Declaration on the Rights of Indigenous Peoples constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the Americas.’

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892 Lucas Lixinski developments attained at the national level’, since it argues there is no settled international definition of Indigenous heritage sites. Importantly, Colombia here makes no reference to UNESCO heritage instruments, perhaps pointing again to the disconnect between Indigenous and heritage instruments. This attitude is in marked contrast to a high-profile constitutional case in Colombia about the restitution of a collection of Indigenous gold artefacts known as the Quimbaya Cultural Treasure.56 This case is about whether the donation of the treasure by a Colombian president to the Spanish crown over a century ago was lawful and consequently whether Colombia can claim the restitution of the treasure. A judgment in the case57 ordered the restitution of the treasure, and the arguments presented to the Colombian Constitutional Court are enlightening for our purposes. In these arguments, the Indigenous claims that could be associated with the treasure are not mentioned at all, partly because the Quimbaya people is largely considered extinct but also because the treasure, in spite of bearing the name of the Indigenous people, is considered to be the property of the Colombian State. Therefore, even in contemporary examples, there is still resistance to the idea of Indigenous control over their heritage, and the idea of indigeneity is used primarily as a galvanizer of national (and also regional) identity, sometimes in opposition to a former colonial power (in the Quimbaya Treasure case, Spain). Regional identity is sometimes also articulated independently from indigeneity, even though then it is done more as a declaration of the existence of a regional identity that needs fostering rather than a specification of what that identity consists of. Much of this proclamation is pioneered by the OAS in its work connecting regional identity to economic development. The OAS, however, is not alone in this angle, and a large number of regional economic integration processes in Central and South America also rely on the language of heritage and regional identity to pursue economic development goals. The next section takes a closer look at a number of these initiatives.

5. Policy Programmes: Development through Culture The tools used by the OAS and economic integration processes in this area are primarily the development of policy programmes. They are, therefore, based on soft-law instruments in most occasions. In focusing on culture as a mechanism of development, much of this action seems to be directed at intangible cultural heritage as practices that are 56 For some of the press coverage, see Natalia Vaquero, ‘El Tesoro Quimbaya de España, motivo de discordia en Colombia’, in La Opinión A Coruña (29 April 2017) accessed 19 August 2017. 57 For a commentary, see Mejía-Lemos D, “The ‘Quimbaya Treasure,’ Judgment SU-649/17” (2019) 113 American Journal of International Law 122.

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Central and South America 893 themselves economic activities, with relatively few examples of development in or around tangible heritage, in which case development happens largely through tourism.58 One of the leaders in this area is the OAS.59 Article 48 of the OAS Charter indicates that ‘[t]he Member States will cooperate with one another to meet their educational needs, to promote scientific research, and to encourage technological progress for their integral development. They will consider themselves individually and jointly bound to preserve and enrich the cultural heritage of the American peoples’ (emphasis added).60 The OAS’s structure is complex, and there are organs designed to address the several areas of activity of the Organization and fulfil its mandate. Among these is the InterAmerican Council for Integral Development (Consejo Interamericano para el Desarrollo Integral—CIDI), which is one of the organs created by the OAS Charter (articles 93–8). This organ is composed of ministers or equivalents of each Member State,61 and it counts on the support of the Executive Council on Integral Development, which is the bureaucratic arm of the body, connected to the General Secretariat of the OAS, and responsible for the execution and coordination of projects approved by the Council.62 Regular meetings in the context of presidential summits helped breathe life into this mandate. The First Summit of the Americas (1994) was an opportunity for heads of State to direct the OAS to strengthen its cultural activities, with two related objectives: to promote exchanges within the Americas and to promote cultural diversity as a key part of ‘achieving harmonious hemispheric integration’.63 CIDI in 1998 started a specific InterAmerican Program on Culture, for which the dissemination and safeguarding of cultural heritage is one of four priority areas, alongside tourism, creative industries, and

58 For instance, in a book cataloguing eighteen best practices of development through culture in the region, only two are around tangible heritage. See OAS Office of Education and Culture of the Executive Secretariat for Integral Development, Culture, Common Denominator for Development: 18 Successful Practices (Organization of American States, 2011). 59 Some of this discussion on the OAS has appeared elsewhere. See Lixinski, Intangible Cultural Heritage in International Law (n 3) 68–73. 60 Charter of the Organization of American States, 119 UNTS 3, entered into force 13 December 1951; amended by Protocol of Buenos Aires, 721 UNTS 324, OAS Treaty Series, No 1-A, entered into force 27 February 1970; amended by Protocol of Cartagena, OAS Treaty Series, No 66, 25 ILM 527, entered into force 16 November 1988; amended by Protocol of Washington, 1-E Rev OEA Documentos Oficiales OEA/Ser.A/2 Add.3 (SEPF), 33 ILM 1005, entered into force 25 September 1997; amended by Protocol of Managua, 1-F Rev OEA Documentos Oficiales OEA/Ser.A/2 Add.4 (SEPF), 33 ILM 1009, entered into force 29 January 1996. 61 ‘Article 93. The Inter-American Council for Integral Development is composed of one principal representative, of ministerial or equivalent rank, for each Member State, especially appointed by the respective Government. In keeping with the provisions of the Charter, the Inter-American Council for Integral Development may establish the subsidiary bodies and the agencies that it considers advisable for the better performance of its duties.’ 62 ‘Article 98. The execution and, if appropriate, the coordination, of approved projects shall be entrusted to the Executive Secretariat for Integral Development, which shall report on the results of that execution to the Council.’ 63 Guillaume Lamontagne, Culture in the Organization of American States: A Retrospective (1889–2013) (Organization of American States 2013) 27–8.

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894 Lucas Lixinski cultural diversity more broadly. In spite of the promise of this programme, funding has been uneven.64 The Council has undertaken the objective of promoting cultural heritage as a means to enhance development, in fulfilling the mandate of Article 48 of the Charter. This is one of the perspectives through which the OAS addresses the topic. The other is cultural heritage as a human rights concern, as discussed in Section 4. One of the remarkable features of the OAS treatment of cultural heritage is that such heritage is approached as if it were almost exclusively the concern of Indigenous peoples. When it comes to tan gible heritage, there has been some recognition of non-Indigenous heritage, but most of the discussion on the protection of culture still refers only to Indigenous cultures (here including populations of African ancestry, which are in many municipal systems treated in the same way as Indigenous populations). The idea is that, in the linkage between culture and development, one must look at American cultures and their tangible and intan gible heritage as the historical result of a series of interactions among different cultures, most of which are Indigenous.65 The conservation of Indigenous cultural heritage must be a priority, it is argued, because pre-Columbian cultures are the common and shared heritage of American identity.66 And this focus is not because there are no manifestations of non-Indigenous heritage worth protecting—quite the contrary. But the OAS focuses more on Indigenous culture, and I suggest this may be rooted in an attempt at finding a distinctive, ‘genuine’ American identity that is separate from the European colonizers. This focus on preColumbian identity is closely connected to the set of ideas often referred to as PanAmericanism.67 In attempting to construct an identity distinct from that of European colonizers as a means to catalyse nation-building throughout (Latin) America, these States have endeavoured to promote their indigeneity, even if such indigeneity is only a fragment of the identities of the political elites in these countries (who, at least in the nineteenth century, were still predominantly white, even if this situation has changed in recent years, particularly in Andean countries). Much of the work with respect to nonIndigenous heritage in Central and South America seems to be left to UNESCO and universal instruments like the WHC. In a sense, thus, the work of the OAS is complementary to that of UNESCO and more geared towards promoting regional identity. It is unfortunate, though, that much of the OAS activity neglects the contribution of nonIndigenous groups to the formation of regional identity, as it creates an incomplete and 64 Ibid. 65 See Orlando Albornoz, ‘Relaciones entre Cultura y Desarrollo, informe presentado al Programa Regional Interamericano de Cultura—Oficina de Asuntos Culturales’, Workshop on Case Studies in the Protection of Cultural Heritage—Central American Region (March 2007) accessed 20 August 2017. 66 See Stavenhagen, ‘La Diversidad Cultural en el Desarrollo de las Américas’ (n 41), para 19. 67 See, for example, Alonso Aguilar, Pan-Americanism from Monroe to the Present: A View from the Other Side (Monthly Review Press 1968), and Herbert L. Matthews and K. H. Silvert, Los Estados Unidos y América Latina: De Monroe a Fidel Castro (Editorial Grijalbo 1967).

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Central and South America 895 exclusionary picture, even if I applaud the intention to make indigeneity a central part of the picture. The Executive Council for Integral Development undertakes the core of activities related to heritage protection under the OAS. While there is a relatively developed sector on culture within the Department of Education and Culture,68 and heritage protection is considered a priority topic, most of the activities in this regard refer to the preservation of tangible heritage, with a special emphasis on the illicit trafficking of cultural objects.69 There is, naturally, some mention of intangible heritage or at least intangible values, inasmuch as tangible and intangible heritage are intrinsically connected. But, fundamentally, there are no specific programmes aimed exclusively at the protection of intangible heritage. Faithful to its mandate, the Council connects the protection of culture and heritage to its usefulness in the promotion of development. Therefore, the goal the OAS looks at when protecting heritage is the promotion of development. It has been highlighted that development programmes must recognize the specific role of culture in their design, reflecting that in the inclusion of programmes for development of intangible and tangible heritage. The preservation of heritage is thus an important goal of development.70 Several policy documents make the connection between culture and development, and it is in these documents that one can find the most relevant information regarding the possibilities for the protection of intangible heritage within the OAS. Culture, for instance, has been pointed to as one of the goals of development. An OAS document, in preparation of a meeting of Cultural Policy Experts, highlights the shift from considering culture an obstacle to development, to seeing culture as an integral part of development, and a contributor thereto.71 Development is seen as culture-sensitive and with great economic potential.72 The Mexico Declaration on culture and development of 2004 gives voice to these concerns.73 This Declaration is centred on three topics: culture as a generator of economic growth, employment, and development; challenges to cultural and creative industries; and culture as an instrument of social inclusion and cohesion and to combat poverty. 68 OAS Organizational Chart, available at accessed 20 August 2017. 69 See, for instance, the proceedings of the Workshop on Case Studies in the Protection of Cultural Heritage—Central American Region accessed 20 August 2017. 70 See José Álvaro Moisés, Cultural Diversity and Development in the Americas (OAS Unit for Social Development, Education and Cultural, Cultural Studies Series No 9 2004). 71 Organization of American States, La Cultura como Finalidad del Desarrollo: Documento para el Seminario de Expertos en Políticas Culturales, Vancouver, Canadá, marzo 18 y 19 de 2002, 1. 72 Ibid, 4–5. 73 Inter-American Council for Integral Development (CIDI), Declaración de México, aprobada durante la Sexta Sesión Plenaria celebrada el 24 de Agosto de 2004, durante la Segunda Reunión Interamericana de Ministros y Máximas Autoridades de Cultura. OEA/Ser.K/XXVII.2 REMIC-II/ DEC.1/04 cor.1, 1 September 2004.

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896 Lucas Lixinski The Declaration reaffirms that the safeguarding of cultural heritage in all of its forms is important for the promotion of cultural diversity and that places, objects, and living traditions are a permanent legacy that needs to be acknowledged and preserved. Even though it affirms the need of protecting living traditions, however, the Mexico Declaration only speaks of the strengthening of cooperation for the prevention of illicit trafficking, wilful destruction, and illicit possession of cultural goods, not mentioning intangible heritage as a specific policy area. This narrowing is partly explained by the fact that this Declaration was largely driven by archaeologists, who focus more on looting and its impact on the integrity of archaeological sites. A class of expert professionals therefore dictates how heritage should be best protected, without much direct concern for communities that are actually connected to or practise that heritage.74 These documents have always been concerned with Indigenous culture as a special type of culture and perhaps the one to which more attention should be devoted. For instance, in 2006 Guatemala, collaborating with Mexico, issued a Concept Paper on the Ministerial Topic of Culture and the Role of Indigenous Peoples (Documento Conceptual para el Tema Ministerial Cultura y el Rol de los Pueblos Indígenas). This document highlighted the importance of Indigenous cultures on the American continent and evaluated the contribution of the tangible and intangible heritage of Indigenous peoples for the development of national cultures in American States.75 The protection of heritage specifically was the subject of another concept paper, presented by the United States in collaboration with the Dominican Republic. The paper highlights that the protection of tangible and intangible heritage is a growing concern among Member States and that one of the key issues in this regard is the documentation and presentation of intangible cultural heritage. The document also criticizes the fact that the documentation on intangible heritage is mostly done by UNESCO or other foreign organizations and that this documentation usually belongs to the organizations that conducted the research, arguing that living heritage, because it is so closely connected to local populations, would be best documented precisely by local stakeholders.76 In this way, the document highlights the importance of national protection to give visibility to heritage at the local level and thus helps to create an environment that will keep the culture alive, while also trying to carve out a space for the regional organization separate from UNESCO. 74 For this critique of expertise in international heritage law more generally, see Lucas Lixinski, ‘International Cultural Heritage Regimes, International Law and the Politics of Expertise’ (2013) 20(4) International Journal of Cultural Property 407. 75 CIDI, Documento Conceptual para el Tema Ministerial Cultura y el Rol de los Pueblos Indígenas, presentado por la Delegación de Guatemala para la Tercera Reunión Interamericana de Ministros y Máximas Autoridades de Cultura, del 13 al 15 de noviembre de 2006 en Montreal, Canadá. OEA/Sr.K/ XXVII.3 CIDI/REMIC-III/doc.4/06, 25 October 2006. 76 Organization of American States, Inter-American Council for Integral Development, Concept Paper for the Ministerial Theme Preservation and Presentation of Cultural Heritage, presented by the Delegation of the United States for the Third Inter-American Meeting of Ministers of Culture and Highest Appropriate Authorities, on November 13–15, 2006, in Montreal, Canada. OEA/Ser.K/XXVII.3 CIDI/ REMIC-III/doc.5/06, of 26 October 2006.

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Central and South America 897 The activity of the OAS in this area continues but always referencing heritage as one strand in a broader discourse about the connection between culture and development. Cultural heritage is seen as a means to ‘ensure the national and regional identity necessary for integral development’,77 thus connecting development and the formation of regional identity but making the latter serve the former. Cultural heritage is particularly tied to tourism as a mechanism of development, not only in attracting tourists directly but also in their potential to draw in private investors. The OAS, however, recognizes that ‘this is challenging for governments that look to strike an appropriate balance between conserving cultural heritage and allowing local and community companies to use these assets’.78 The OAS does not have the monopoly of regional integration in Central and South America, however, and other organizations in the region have also engaged in the area. One of the most notable is the Community of Latin American and Caribbean States (CELAC), which in 2014 adopted a Special Declaration on Culture as a Promoter of Human Development.79 This Declaration highlights the importance of cultural rights as a subset of human rights80 and how culture is a catalyst for eradicating poverty and reducing social inequalities.81 It also points to the need ‘to continue working on the struggle against illicit trafficking in cultural properties in the region, and the promotion, recovery and safeguard of the tangible and intangible heritage of our countries’.82 CELAC’s 2014 Plan of Action, a document geared at the entire organization’s strategy, dedicates some language to cultural heritage. In particular, it highlights the need to protect the intangible heritage ‘native populations, Afro-descendant communities, and other geographical communities now forming part of Latin American and Caribbean identities’.83 It also underscores the need to strengthen mechanisms under the 1970 UNESCO Convention on cultural objects,84 thus indicating a willingness to promote cooperation between the regional and the universal, rather than replication of efforts. The cooperation between universal and regional is also evident in CELAC’s specific cultural Plan of Action for 2015–2020, which builds regional identity around indigeneity. This plan also highlights the importance of cultural industries as a tool for development, and seeks to promote more standard-setting in the region, but largely by making reference to UNESCO mechanisms and urging their ratification by Central and South American countries.85 77 Organization of American States Inter-American Council for Integral Development, Fifth Regular Meeting of the Inter-American Committee on Culture (March 21–22, 2013) Annotated Agenda, Doc OEA/ Ser.W/XIII.5.6 and CIDI/CIC/doc.3/13 rev.2 (1 April 2013) 4. 78 Organization of American States Inter-American Council for Integral Development, Seventh Regular Meeting of the Inter-American Committee on Culture (November 17–18, 2016) Annotated Agenda, Doc OEA/Ser.K/XXVII.7 and CIDI/REMIC-VII/doc.3/16 rev.1 (17 November 2016) 3. 79 Comunidad de Estados Latinoamericanos y Caribeños (CELAC), Special Declaration on Culture as a Promoter of Human Development (Havana, 29 January 2014). 80 Ibid, para 2. 81 Ibid, para 4. 82 Ibid, para 9. 83 CELAC, CELAC Plan of Action 2014, Doc. II CUMBRE Doc 3.2 (28–29 January 2014) 6 (para 5). 84 Ibid, para 8. 85 CELAC, CELAC Cultural Action Plan 2015–2020 6, accessed 26 July 2019.

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898 Lucas Lixinski Another organization with a broad integrationist mandate in the region is the Union of South American Nations (UNASUR). Made up of all twelve countries in South America, UNASUR has a specific mandate for integration based on development (rather than trade), and that includes cooperation in the area of culture. It has created a specific Council of Culture in 2013,86 which serves as a forum for consultation and coordination of intergovernmental policies on cultural matters. It recognizes culture as integral to development and regional integration87 and aims to help safeguard natural and cultural heritage, both tangible and intangible, as well as promote its visibility and value for society.88 Particularly important, UNASUR has established a specific mechanism for coordination with the Common Market of the South (MERCOSUR),89 an organization with a specific economic integration mandate that covers a number of countries in the region. This type of mechanism is to be expected, in light of the complementarity between the two organizations.90 MERCOSUR, in spite of being a regional trade organization, has created a specific body under the direction of the group of Ministers of Culture,91 drawing a mandate on culture from the connection between culture and development, and focused on creative industries as a subject of commercial policy. This group, despite being created in 1995, has only been active since 2014. There is also a specific Cultural Fund of MERCOSUR, currently not active.92 MERCOSUR also has had, since 1996, a Protocol of Cultural Integration (Protocolo de Integración Cultural) which establishes the broader framework for cooperation in cultural affairs,93 including cooperation for initiatives that showcase the shared history and diversity of heritage in MERCOSUR.94 This Protocol also determines the promotion of research on shared historical and cultural themes,95 as well as cooperation among institutions responsible for preserving cultural heritage, with the specific goal of ‘harmonizing specific criteria relative to the classification, cataloguing and preservation, with the objective of creating a registry of historical and cultural heritage of the States Parties of MERCOSUR’.96 86 UNASUR, Estatuto del Consejo Suramericano de Cultura, Doc Res.2/2013 (Sixth Regular Meeting of Council of Heads of State, 30 November 2012). 87 Ibid, art 2. 88 Ibid, art 3.f. 89 MERCOSUR, Complementación y Articulación MERCOSUR-UNASUR, Doc MERCOSUR/CMC/ DEC. 32/14 (16 December 2014) Annex, para 4. 90 For this discussion, see Fabiano de Andrade Correa and Lucas Lixinski, ‘The Legal Future of MERCOSUR’, in Marcílio Toscano Franca Filho, Lucas Lixinski, and María Belén Olmos Giupponi (eds), The Law of MERCOSUR (Hart Publishing 2010) 413–23. 91 MERCOSUR, Reunión de Ministros de Cultura, Doc MERCOSUR/CMC/DEC. No. 2/95 (5 August 1995). 92 MERCOSUR, Fondo MERCOSUR Cultural, Doc MERCOSUR/CMC/DEC. No. 38/10 (16 December 2010). 93 MERCOSUR, Protocolo de Integración Cultural del MERCOSUR, Doc MERCOSUR/CMC/DEC. No. 11/96 (17 December 1996). 94 Ibid, art 2. 95 Ibid, art 5. 96 Ibid, art 6.

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Central and South America 899 The greater action of MERCOSUR in this area come from a 2014 resolution on Cultural Heritage of MERCOSUR, which recognizes the role of cultural heritage in shaping regional identity.97 It also establishes regional heritage standards, with the objective of strengthening regional identity and promote development.98 It creates a List of Cultural Heritage of MERCOSUR, which includes tangible or intangible heritage that promotes a sense of shared identity or history.99 It accepts nominations from individual States as well as States jointly.100 Nominations must come from the highest authorities in matters of culture in the relevant State(s) and must be adopted by consensus.101 Nominations must promote local development and respect human rights.102 In addition to specific nomination criteria to accommodate the different types of heritage,103 the Decision also creates an emblem that can be associated with listed heritage.104 Currently, four sites are listed as regional cultural heritage—Puente Internacional Baron de Maua (June 2013, Uruguay); La Payada/La Paya (June 2015, Brazil); Itinerario de las Misiones Jesuiticas Guaranies, Moxos y Chiquitos (June 2015, Brazil); and the MERCOSUR building, Montevideo, Uruguay (June 2016, Uruguay). More sites are being considered. This mechanism essentially replicates UNESCO mechanisms but with a view of valuing heritage that promotes a shared regional identity. The reason behind this duplication is unclear, but it may partly speak to the relative under-representation of Central and South American sites on UNESCO lists, as well as the need to list heritage of regional importance that may not otherwise meet the criteria for ‘outstanding universal value’ needed for the World Heritage List. Another regional economic integration organization in Central and South America that has looked at heritage in the context of trade and development is the Andean Community of Nations.105 The Andean Community of Nations was created in 1969 and congregates nations from the north-western part of South America (Bolivia, Colombia, Ecuador, and Peru)106 around several factors of cohesion, including their shared cultural heritage, tangible and intangible.107 In many ways, it resembles the EU in its structure and competences, as the organization is clearly empowered with elements of supranationality, distinguishing it from other regional trade areas in the world, which are still intergovernmental and depend on the Member States for decision-making in most areas. The Andean Region is home to vast Indigenous populations, which in some of the countries of the Community actually make up the majority of the population. There is 97 MERCOSUR, Patrimonio Cultural del MERCOSUR, Doc MERCOSUR/CMC/DEC. No. 21/14 (16 December 2014), preamble. 98 Ibid, Anexo—Reglamento para el Reconocimiento del Patrimonio Cultural del MERCOSUR, art 1. 99 Ibid, art 3. 100 Ibid, art 4. 101 Ibid, art 5. 102 Ibid, art 7. 103 Ibid, Appendix 1. 104 Ibid, Appendix 2. 105 Some of this discussion is drawn from Lixinski, Intangible Cultural Heritage in International Law (n 3) 98–100. 106 Venezuela became a Member State in 1973, but it decided to leave the Andean Community in 2006 and join MERCOSUR instead. Chile, an original Member State, left the Andean Community in 1976. 107 Comunidad Andina de Naciones, ¿Quienes Somos? accessed 29 November 2012.

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900 Lucas Lixinski evidently a great concern with the preservation of cultural distinctiveness in the region, coupled with yet another important feature of the region, it being the home to a great percentage of the world’s biodiversity.108 These factors decisively shape the attitude of the Andean Community towards cultural heritage. The link between traditional knowledge (TK) and heritage is a constant in the activ ities of the Andean Community regarding heritage protection. As a matter of fact, it is possible to say that the real concern of the Andean Community is TK protection and that cultural heritage (particularly intangible) is protected only to the extent that the two notions converge, even if accidentally. The Andean Community regards TK as an indissoluble part of culture and of strategic value for the development of Indigenous peoples and the development of the Andean Countries.109 The Andean Community groups together biodiversity, what it calls ‘cultural aspects’, and intangible heritage (referred to as ‘folklore’ by the Andean Community).110 There is a close connection between heritage (both tangible111 and intangible) and indigeneity in the Andean Community, similarly to the OAS. There is a close connection between Indigenous peoples and their traditional sites, which are seen as ‘ceremonial centers for the reproduction of cultural identity with a highly spiritual content’.112 This Indigenous-centric approach, and the fact that much of the heritage to be protected within the bloc stems from biodiversity, has led the Andean Community to consistently consider using the framework of the Convention on Biological Diversity (CBD). It has also forced it to consider other prospects, such as traditional IP responses, particularly in light of international trade law. A key report has been produced by the Andean Community precisely trying to conciliate all these different approaches and offering some alternatives and elements for consideration in all different international forums.113 In this way, the Andean Community has recognized the plurality of different responses to the matter and has attempted to conciliate the values it aims at defending when speaking of TK and intangible heritage. In considering this plurality of legal frameworks, the Andean Community seems to have veered towards adopting sui generis solutions, which attempt to conciliate proprietary approaches with Indigenous law.114 All in all, then, the main thrust of the Andean Community action is aimed at protecting biodiversity resources and the TK of Indigenous communities associated with it. There is a considerable conceptual overlap between intangible heritage and traditional knowledge,

108 Estimates range from 30 to 50 per cent. See Comunidad Andina de Naciones, Elementos para la protección sui generis de los conocimientos tradicionales colectivos e integrales desde la perspectiva indígena (2005) 18. 109 Ibid, 3. 110 Ibid, 7. 111 See ‘Comunicado sobre la Protección y Recuperación de Bienes del Patrimonio Cultural de los Países Miembros de la Comunidad Andina’, in Los Pueblos Indígenas y la Integración Andina—Primer Foro de Intelectuales e Investigadores Indígenas (2008) 96. 112 Comunidad Andina de Naciones, Elementos (n 105) 8. 113 See Comunidad Andina de Naciones, Negociaciones sobre acceso a recursos genéticos y conocimientos tradicionales (2003). 114 See Lixinski, Intangible Cultural Heritage in International Law (n 3) 100–2.

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Central and South America 901 and it may be even said that TK is a specialized type of intangible heritage.115 However, the way in which protection is framed suggests that the regime for protecting intangible heritage is that of biodiversity protection and not that of the ICHC. The Andean Community itself is concerned with the fact that different elements of traditional culture should require different tools for protection, thus opening the way for a different regulation of TK and more ‘general’ or ‘artistic’ manifestations of intangible heritage, such as cultural spaces, crafts, and artistic and literary creations.116 Because of this emphasis, then, any protection granted to other aspects of cultural heritage are only incidental to the protection granted to biodiversity resources. This ‘specialization’ within the Andean Community is understandable once one considers the reality of the region, which has overwhelming biodiversity and was presented with the CBD regime a decade before the ICHC was approved, meaning that they are already familiar with the taxonomy of the CBD and its mechanisms, have for the most part already transposed them into national legislation and thus prefer them. Further, the type of protection granted within the Andean Community seems to be solely in response to the market or to the extent to which biodiversity can contribute to development.117 While this is a realistic account in many ways and falls well within the mandate of an economic integration organization, it may fail to capture more nuanced concerns over religious feelings and cultural harm by adopting this logic of protection that aims at development through the sharing of genetic resources. Free, prior, and informed consent to exploitation of TK by third parties may help prevent much harm, but perhaps an organization established with essentially economic goals is not the best venue to address the issue. Nevertheless, one must bear in mind that economic organizations do bring important considerations to the table and must be seen as important allies in protecting intangible heritage. What a lot of these regional initiatives share is a lack of adequate funding, resulting in their relative inefficiency. It is unclear why these organizations still refer to cultural heri tage and create specific initiatives that cannot be adequately funded and pursued. At the very least, these initiatives point to there being energy for safeguarding cultural heritage in the region and an impression that UNESCO frameworks may not be capable of engaging with heritage in all the ways for which Central and South American countries hope. Chief among these organizations, and seemingly more successful, is the OAS. But the activity of the OAS is not restricted to policy programmes in the area of culture as an element of development. On the contrary, the OAS has also engaged in standard-setting in the area of cultural heritage through treaties and is currently considering a new treaty for safeguarding cultural heritage in the Americas. To these law-making efforts we move next.

115 Comunidad Andina de Naciones, Elementos (n 105) 15. 116 Ibid, 33. 117 See Comunidad Andina de Naciones, Biocomercio en la subregión andina—Oportunidades para el desarrollo (2005) (exploring a series of developmental projects using biodiversity and genetic resources as tools to promote development in the region).

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902 Lucas Lixinski

6. Standard-Setting in the Americas: Roerich and Beyond As discussed, Central and South America, particularly through organs like the OAS and its predecessor, the Pan-American Union, enjoy a long tradition of reliance on international law as a method to establish the rule of law in the continent and structure relations among these nations. In particular, part of this tradition stems from a desire to keep at bay the influence of former colonial powers and the United States of America, and for those objectives to be accomplished the notion of a shared identity is both a premise and an objective of international law-making. The creation of shared identity through international cultural heritage law has in this sense received some attention from continental regional organizations, with more initiatives currently ongoing. The first multilateral treaty in the Americas (and the first in the world, in the modern era) dedicated exclusively to the safeguarding of cultural heritage is the Roerich Pact.118 This treaty, approved by the Pan-American Union in 1935, was actually originally designed for the League of Nations, with the acts of World War I in mind. But the treaty failed to gather enough momentum in the League and was then brought to the PanAmerican Union for consideration. It is dedicated to the protection of cultural heritage in wartime, and when the 1954 Hague Convention was drafted a specific provision was put in place on the relationship between the two instruments, making the Hague Convention ‘supplementary to the Roerich Pact’.119 At the time of writing, all parties to the Roerich Pact are parties to the 1954 Hague Convention, with the exception of Haiti. The Roerich Pact extends protection to cultural heritage and institutions housing it, both in times of war and times of peace.120 With respect to wartime, it makes cultural heritage and cultural institutions ‘neutral’ for the purposes of the conduct of hostilities.121 It determines States Parties must provide a list of heritage to be given the protection of the Roerich Pact,122 and it establishes a symbol to be affixed to each protected item.123 Military use will render the protection of the monument or site void.124 118 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact). Washington, 15 April 1935. For a history, particularly in relation to the Hague Convention, see Friedrich T. Schipper and Erich Frank, ‘A Concise Legal History of the Protection of Cultural Property in the Event of Armed Conflict and a Comparative Analysis of the 1935 Roerich Pact and the 1954 Hague Convention in the Context of the Law of War’ (2013) 9(1) Archaeologies 13. 119 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954. The Hague, 14 May 1954. ‘Article 36. Relation to previous conventions . . . 2. In the relations between Powers which are bound by the Washington Pact of 15 April, 1935 for the Protection of Artistic and Scientific Institutions and of Historic Monuments (Roerich Pact) and which are Parties to the present Convention, the latter Convention shall be supplementary to the Roerich Pact and shall substitute for the distinguishing flag described in Article III of the Pact the emblem defined in Article 16 of the present Convention, in cases in which the present Convention and the Regulations for its execution provide for the use of this distinctive emblem.’ 120 Roerich Pact, art 1. 121 Ibid. 122 Ibid, art 4. 123 Ibid, art 3. 124 Ibid, art 5.

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Central and South America 903 As one can see, the Roerich Pact in many respects laid the foundation for the s ubsequent universal regime under UNESCO (the 1954 Hague Convention). The fact that it had been rejected by the League of Nations can be read in two different but not mutually exclusive ways: that the League at the time was already moribund and therefore unable to agree on the instrument (particularly considering its requirement of consensus for decision-making); or that the American nations, because of their deeper tradition of international law-making that predated both the League and the United Nations,125 were simply a more welcoming audience, in spite of the fact that they had not been particularly active in World War I, therefore not having first-hand experience of extensive harm to cultural heritage in conflicts of such scale. Regardless of the reason, the Roerich Pact was a pioneering treaty at the time, even if it has largely fallen into disuse today.126 Subsequent to the Roerich Pact, the OAS was formed in 1948, and it was not before the 1960s that its treaty-making activities again took up the issue of cultural heritage protection. In 1967, a meeting of heads of State decided to request the OAS to look into the issue of inter-American cooperation in the conservation and use of archaeological, historical, and artistic monuments.127 In the 1970s, a series of four inter-American centres dedicated to technical training in cultural heritage were created, focusing on restoration of movable and immovable heritage, as well as museography.128 In 1972, a Charter of American Archives was adopted, establishing the importance of archives as ‘an indivisible part of the national heritage’.129 But it was only in 1976 that these efforts bore fruit in the form of a treaty, with the adoption of the Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador).130 This instrument’s objective is ‘to identify, register, protect, and safeguard the property making up the cultural heritage of the American nations in order: (a) to prevent illegal exportation or importation of cultural property; and (b) to promote cooperation among the American States for mutual awareness and appreciation of their cultural property’.131 This treaty, focused primarily on movable heritage, defines heritage under its scope as covering Indigenous heritage primarily but also colonial buildings, archives, and other heritage considered to fall under the treaty’s scope by States Parties (upon notification to 125 As discussed in Ingulstad and Lixinski, ‘Pan-American Exceptionalism’ (n 4). 126 John Henry Merryman, ‘Cultural Property Internationalism’ (2005) 12(1) International Journal of Cultural Property 11. But see Lyndel V. Prott, ‘The International Movement of Cultural Objects’ (2005) 12(2) International Journal of Cultural Property 225 (qualifying Merryman’s statement as ‘dangerous’). 127 OAS, Declaración de los Presidentes de América, Reunión de Jefes de Estado Americanos, Punta del Este (1967) accessed 26 July 2019. 128 Lamontagne, Culture in the Organization of American States (n 60) 22. 129 CIECC, Regional Cultural Development Program of the Organization of American States (OAS General Secretariat 1982) 42. Cited in Lamontagne, Culture in the Organization of American States (n 60) 22. 130 Organization of American States, Convención sobre Defensa del Patrimonio Arqueológico, Histórico y Artístico de las Naciones Americanas (C-16), OAS Treaty Series No. 47 (Convención de San Salvador). Santiago, 16 June 1976. 131 Ibid, art 1.

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904 Lucas Lixinski the other parties).132 The treaty’s primary substantive position is focused on preventing the illicit trade of cultural objects133 and, like the 1970 UNESCO Convention, it defers the matter of private ownership rights to the domestic law of States Parties.134 The San Salvador Convention establishes a procedure for the restitution of cultural objects135 but, at the same time, declares the immunity from seizure and suit of objects on loan in institutions abroad, in that respect differing from the 1970 UNESCO Convention.136 The treaty makes no explicit reference to the 1970 UNESCO Convention, either, only containing a general reference that allows parties to the San Salvador treaty to establish other bilateral or multilateral treaties,137 in language similar to the equivalent provision in the 1970 Convention.138 It is unclear what the San Salvador Convention was meant to accomplish, considering the majority of ratifications happened after the same States ratified the 1970 UNESCO Convention (and, at present, all parties to the San Salvador treaty are parties to the 1970 UNESCO Convention, with many other States in Central and South America having ratified the latter but not the former). The provision on immunity in the San Salvador treaty could be seen as weakening the 1970 Convention and thus as being an example of strategic fragmentation of international law in this area.139 That provision weakening the treaty in relation to the 1970 Convention is, on the other hand, counterbalanced by one strengthening it, which makes extradition treaties automatically apply to crimes involving cultural objects,140 as well as what seems to be a broader application of the San Salvador Convention in not requiring the registration of individual objects for the purposes of the treaty (meaning the San Salvador treaty would, for instance, apply to

132 Ibid, art 2: ‘Artículo 2. Los bienes culturales a que se refiere el artículo precedente son aquellos que se incluyen en las siguientes categorías: a) monumentos, objetos, fragmentos de edificios desmembrados y material arqueológico, pertenecientes a las culturas americanas anteriores a los contactos con la cultura europea, así como los restos humanos, de la fauna y flora, relacionados con las mismas; b) monumentos, edificios, objetos artísticos, utilitarios, etnológicos, íntegros o desmembrados, de la época colonial, así como los correspondientes al siglo XIX; c) bibliotecas y archivos; incunables y manuscritos; libros y otras publicaciones, iconografías, mapas y documentos editados hasta el año de 1850; d) todos aquellos bienes de origen posterior a 1850 que los Estados Partes tengan registrados como bienes culturales, siempre que hayan notificado tal registro a las demás Partes del tratado; e) todos aquellos bienes culturales que cualesquiera de los Estados Partes declaren o manifiesten expresamente incluir dentro de los alcances de esta Convención.’ 133 Ibid, art 3. 134 Ibid, art 7. 135 Ibid, arts 10–15. 136 Ibid, art 16. 137 Ibid, art 18. ‘Ninguna de las disposiciones de esta Convención impedirá la concertación por los Estados Partes, de acuerdos bilaterales o multilaterales relativos a su Patrimonio Cultural, ni limitará la aplicación de los que se encuentren vigentes para el mismo fin.’ 138 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. Paris, 14 November 1970. Art 15. 139 For a discussion of strategic fragmentation in general, see Surabhi Ranganathan, Strategically Created Treaty Conflicts and the Politics of International Law (Cambridge University Press 2014). 140 San Salvador Convention, art 14. ‘Están sujetos a los tratados sobre extradición, cuando su aplicación fuera procedente, los responsables por delitos cometidos contra la integridad de bienes culturales o los que resulten de su exportación o importación ilícitas.’

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Central and South America 905 artefacts illegally excavated as well, which is a blind spot of the 1970 Convention).141 But for the most part the treaties are too similar, and they come across in my reading as more of a duplication of efforts with some refinement of mechanisms (considering the San Salvador Convention was approved six years after the 1970 UNESCO Convention). After the San Salvador Convention, standard-setting activity in the area of heritage remained largely dormant in the continent for several decades. The Social Charter of the Americas,142 in 2012, contained some new language on cultural heritage, even if primarily related to the connection between culture and development more broadly (discussed in the previous section), through the creation of jobs and social inclusion through cultural activities and cultural tourism in particular.143 The Charter proclaims cultural development as a key part of social and economic development and that activities that preserve and protect cultural heritage should be part of ‘inclusive and participatory cultural policies’.144 The Charter also makes people, rather than States, the primary beneficiaries of cultural development, presenting a different focus from much of existing international heritage treaties.145 The Charter embraces cultural diversity and interculturalism, as well as language as a key mechanism of cultural expression;146 the protection of tangible and intangible heritage is declared to be ‘of vital importance and appears to be closely linked to the preservation, defense, and enrichment of cultural diversity’.147 The Charter makes specific reference to Indigenous cultures148 but extends a right to enjoy cultural and natural heritage to all persons in a separate provision. Specifically, it proclaims that States should raise awareness to heritage and foster conditions for its production, reproduction, and transmission, as well as protecting ‘the beliefs, traditions, and values of peoples, groups, and individuals.’149 It finally recalls the importance of natural heritage as a vehicle for sustainable development.150 The Social Charter showcases very nuanced and sophisticated understandings of the importance and uses of cultural heritage, in its connection to cultural diversity, and seems to move some of the discussion in Central and South America away from indigeneity (even if not breaking with it, which would be not only difficult but also inappropriate considering the reality of the region) and towards more inclusiveness in the consideration of cultural heritage and its value for society. Importantly, it also moves the focus of heritage protection away from the protection of State interests and towards the people who actually practise and live with or around heritage. 141 Organization of American States, Annotated Agenda of the Inter-American Juridical Committee, 91st Regular Session (Rio de Janeiro, August 7 to 16, 2017) Doc OEA/Sec.General DDI/doc. 4/2017 (15 May 2017) 50. 142 Organization of American States, Social Charter of the Americas (adopted at the second plenary session, held on 4 June 2012) Doc OEA/Ser.P AG/doc.5242/12 rev. 2 (20 September 2012). 143 Organization of American States Inter-American Council for Integral Development, Seventh Regular Meeting of the Inter-American Committee on Culture (November 17–18, 2016) Annotated Agenda (n 75) 4. 144 Social Charter of the Americas, art 24. 145 Ibid, art 25. 146 Ibid, art 26. 147 Ibid, art. 27. 148 Ibid, art 28. 149 Ibid, art 29. 150 Ibid.

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906 Lucas Lixinski At the time of writing, the Inter-American Juridical Committee is considering the need and desirability of a treaty for the safeguarding of cultural heritage in the Americas. It seems, however, that the work will not become a new instrument in this area. The mandate for the Inter-American Juridical Committee to explore the topic came from a 2016 resolution by the General Assembly of the OAS, which requested the Committee look at the current status of international and regional law in the area, with a view of ‘bolster[ing] the inter-American [sic] legal framework in this area’.151 A Rapporteur was designated for the topic, and reports were submitted by the Rapporteur152 and by the Technical Secretariat of the Inter-American Juridical Committee.153 The Rapporteur seems to have approached the topic uniquely from the perspective of movable cultural heritage, neglecting other forms of tangible (not to mention intangible) heritage. Discussions in the OAS Juridical Committee when this report was presented focused mostly on the mechanics of movable heritage protection and restitution, only adding a quick reference to the topic of cultural heritage in armed conflict, which had been separately examined by another member of the Inter-American Juridical Committee.154 In the end, the key recommendations are to increase the ratification of international treaties (particularly the San Salvador Convention, discussed earlier in this section), alongside the more effective implementation of international rules in domestic law (albeit offering no direct guidance in this respect).155 The Inter-American Juridical Committee, with this discussion and ensuing reports, has considered its mandate to be largely concluded in this area, without referencing values underlying cultural heritage safeguarding beyond technical mechanisms of court-centric dispute resolution for the return of objects, not to mention the activity of other regional organizations in the Americas.

7. Concluding Remarks Cultural heritage is thus protected in the Americas as a reservoir of the commonly shared culture of the continent, in an apparent effort to promote Pan-Americanism. While this move may be criticized on grounds of inaccuracy, it is also a significant rhet orical tool indicating the favouring of broader development and human rights issues in 151 Organization of American States General Assembly, International Law, AG/RES 2886 (XLVI-O/16) (14 June 2016). 152 CJI/doc 512/16, cited in Organization of American States, Annotated Agenda of the Inter-American Juridical Committee, 91st Regular Session (Rio de Janeiro, August 7 to 16, 2017) Doc OEA/Sec.General DDI/doc. 4/2017 (15 May 2017). 153 Inter-American Juridical Committee, Support document on cultural heritage assets—Universal and Regional instruments and Bilateral examples, Doc DDI/doc.5/16 (30 August 2016). 154 For the discussion, see Organization of American States, Annotated Agenda of the Inter-American Juridical Committee (n 149) 48–50. 155 Ibid, 50–1.

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Central and South America 907 the continent, especially those of Indigenous peoples. The fact that States are willing to bring the debate on the safeguarding of cultural heritage to the OAS can be read as a reflection of internal developments towards recognition of the cultural rights of Indigenous peoples, even if the connection between indigeneity and cultural heritage needs to be worked out more clearly. Specifically, Indigenous culture needs to be used as more than just a proxy for a shared identity in Central and South America and needs to be controlled by Indigenous peoples themselves. The collaboration between UNESCO and regional organizations in Central and South America needs to be better structured. There are issues of representation at the international level that need to be addressed, whether through action within UNESCO or through the creation of specific mechanisms that complement (but do not replicate) mechanisms under UNESCO treaties. Cultural heritage is also seen as a claim for development tied to culture across Central and South America. It is internationalized but, at the same time, includes the important fallback position of protection of local cultures and ways of life, which necessarily includes economics. The plethora of initiatives across the region show that, while the connection between heritage (and culture more generally) and development is acknow ledged on a conceptual level, concerted regional action on the matter is still lacking. The relative lack of standard-setting in the field points to that effect. The recent work of the Inter-American Juridical Committee in attempting to develop a treaty on cultural heritage for the Americas seems to be a missed opportunity for the developing of standard-setting in heritage that both complements and furthers international instruments. If the OAS were to take on the topic again, there are a few elements which it must take into account, in my opinion. First of all, it needs to make sure not to create any mechanisms that simply replicate what UNESCO already does (like listing heritage sites and practices). Likewise, its references to Indigenous heritage must be coupled with the recognition of enforceable rights of Indigenous peoples to control their own heritage (as well as other local and community stakeholders). Lastly, any law-making initiative for Central and South America must be predicated on the power of heritage to shape hemispheric identity that needs, in fact, to be defined and steered by the OAS, instead of simply implied as indigeneity, and based on the diversity of cultures in the region, Indigenous and non-Indigenous.

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Chapter 38

Eu rope Rachael Craufurd Smith

1. Introduction Within Europe, two regional organizations have played a central role in supporting, coordinating, and supplementing domestic initiatives in relation to cultural heritage: the Council of Europe (CoE) and the European Union (EU). Both organizations found their origins in the devastation caused by the two world wars of the twentieth century and the determination of key European leaders to put in place systems of cooperation that would prevent further armed conflict. The international organizations of the inter- and post-war periods made little, if any, reference to earlier forms of international collaboration in relation to cultural heritage, adopting a deliberately forward-looking break with the past.1 There had, however, been considerable informal and formal interaction among interested individuals and, ultim ately, dedicated organizations within Europe dating back to the early nineteenth century and beyond.2 The two key ‘European’ organizations established shortly after World War II, the CoE (1949) and the European Coal and Steel Community (‘ECSC’) (1951), soon to be joined in 1957 by the European Economic Community (‘EEC’), were designed to address, albeit in different ways, the challenge of post-war economic and social regeneration and the threat of Soviet expansion. The CoE alone, however, had an express cultural remit. The need for such a remit was recognized at the Hague Congress in May 1948, which brought together pro-European organizations to discuss the development of new forms of

1 Astrid Swenson, The Rise of Heritage: Preserving the Past in France, Germany and England 1789–1914 (Cambridge University Press 2013) 336. 2 Ibid, and Astrid Swenson, ‘ “Heritage” on Display: Exhibitions and Congresses for the Protection of Ancient Monuments at the World’s Fairs 1855–1915’ (2010) XIX(1) IWM Junior Visiting Fellows’ Conferences accessed 15 May 2019.

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Europe 909 European cooperation and related institutions.3 At the Congress, the culture working committee put forward a draft resolution which called for the creation of a European cultural centre, independent of government influence, with the general task to ‘give expression to the conscience of Europe and to maintain the widespread influence of Western culture amongst all the peoples of the world who are like ourselves its heirs’.4 One question raised at the Hague Congress was whether the creation of a cultural organization at the European level would lead to problematic duplication with other organizations, both at national and international levels. The recent experience of fascism was thought to illustrate, however, that individuals may need protection from their own States in cultural matters, and it was noted that Europe faced its own specific challenges of reconstruction and reconnection that could only be meaningfully addressed at the regional level.5 As Janet Blake has noted, policy formation at this level ‘allows for greater freedom and ambition than on the global scale’.6 The arguments for regional cooperation ultimately proved persuasive, and the Council of Europe was established by the Statute of the Council of Europe in London in 1949 (‘Treaty of London’).7 After much debate, the CoE took the form of an orthodox intergovernmental organ ization, leaving States free to determine whether or not to adhere to proposed conventions or follow the various recommendations made by its central political body, the Committee of Ministers (CM). For the more federally minded pro-Europeans, this structure was a major disappointment, and they ultimately sought to drive forward European integration outwith the CoE. The first step in this process was the creation of the ECSC in 1951.8 Focused as it was on coal and steel, and with an initial membership limited to six countries (Belgium, France, the Federal Republic of Germany, Italy, Luxembourg, and the Netherlands), there was little, if any, scope for tensions with the CoE. With the establishment of the more ambitious EEC in 1957, the potential for duplication and rivalry between the two institutions in the cultural field gradually became apparent.

2. A Regional Response? The references to ‘Europe’ and ‘European’ in the titles of the CoE and EEC respectively were more aspirational than descriptive, in that the cold war meant that their initial membership was restricted to a relatively small number of West European democratic 3 Congress of Europe (Verbatim Report), The Hague 7–11 May 1948 (Council of Europe 1999), accessed 15 May 2019 (hereafter ‘Congress of Europe 1948’). 4 Congress of Europe 1948 (n 3) 331. 5 Ibid, 367–9. 6 Janet Blake, International Cultural Heritage Law (Oxford University Press 2015) Chapter 9. 7 Statute of the Council of Europe (opened for signature 5 May 1949, entered into force 3 August 1949) CETS No 1 (hereafter ‘Treaty of London’). 8 Treaty establishing the European Coal and Steel Community (1951) 11951K/TXT.

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910 Rachael Craufurd Smith States. In the immediate post-war period there was no ‘regional’ perspective on Europe’s cultural heritage but, rather, a number of competing and overlapping narratives. Some of the early concerns of the CoE, such as the preservation of buildings and artefacts of special historic, artistic, or aesthetic importance, showed considerable continuity with the past, but there was a renewed emphasis on their European as opposed to national status. The richness of the past was to be used to enhance understanding and cooper ation among Europe’s democratic States, now facing a very different world order, and to help foster peace.9 In Central and Eastern Europe, aspects of cultural heritage were used to forge a new, forward-looking identity in line with communist ideology. National culture was incorporated, not always easily, within a wider internationalist and proletarian frame of reference.10 Culture was, however, one field where contact could take place across the political divides, and the Council of Europe sought to forge cultural links with Central and Eastern European countries, helping to lay positive foundations for their future membership.11 The titular references to ‘Europe’ also serve to delimit the potential membership of the two organizations, differentiating them from other international bodies. In relation to the CoE, articles 3–4 of the Treaty of London provide that ‘[a]ny European State’ that is deemed able and willing to comply with the rule of law and respect human rights and fundamental freedoms may be invited to become a member by the CM.12 The term ‘European’ is not further defined. Membership now extends beyond the original ten to forty-seven countries, including most Central and East European States, as well as the ‘transcontinental states’ Turkey and the Russian Federation. Article 237 of the EEC Treaty (‘TEEC’) similarly opened membership to ‘[a]ny European State’,13 a term also left undefined, subject to the agreement of terms of entry and the unanimous approval of the existing Member States. Applicant members are now required to show that they respect the values of the EU set out in article 2 of the Treaty on European Union (‘TEU’), namely ‘dignity, freedom, democracy . . . the rule of law’ and ‘respect for human rights, including the rights of persons belonging to minorities’.14 The EEC has grown from the original six States to the present twenty-eight Member States of the EU, which include key Central and East European States previously within the Soviet sphere of influence. At time of writing, the UK was engaged in tortuous negotiations to leave. 9 Consider, for example, the European Cultural Convention (opened for signature 19 December 1954, entered into force 5 May 1955) CETS No 18 (hereafter ‘Cultural Convention’) arts 1 and 5. 10 Eleazar Aleksandrovič Baller, Communism and Cultural Heritage (Progress 1984); Pablo Alonso Gonzalez, ‘Communism and Cultural Heritage: the Quest for Continuity’ (2016) 22 International Journal of Heritage Studies 653. 11 Birte Wassenberg, History of the Council of Europe (Council of Europe Publishing 2013). 12 Treaty of London (n 7). 13 Treaty Establishing the European Economic Community (TEEC) [1957] 11957E/TXT (hereafter ‘TEEC’). 14 Consolidated Version of the Treaty on European Union [2016] OJ C202/13 (hereafter ‘TEU’) art 49.

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Europe 911

3. The Council of Europe 3.1 Competence and Instruments Article 1(a) of the founding Treaty of London provides that the CoE’s underlying aims are, first, to safeguard ‘the ideals and principles’ that are the ‘common heritage’ of its members and, second, to facilitate economic and social progress. The term ‘culture’ is not explicitly mentioned in this paragraph, and one might conclude that the safeguarding of cultural heritage is not, therefore, a direct objective of the CoE. On the other hand, the Treaty recitals indicate that the ‘common heritage’ includes both spiritual and moral values that support individual freedom, political liberty, and the rule of law. The Treaty was adopted shortly after the 1948 Universal Declaration of Human Rights (‘UDHR’), which not only recognizes the right of everyone ‘to participate in the cultural life of the community’ (art 27) but also that cultural rights are indispensable for an individual’s dignity and the free development of his or her personality (art 22).15 It is arguable, therefore, that the foundational ideals and principles that the CoE is tasked with realizing include the protection of certain cultural rights. Moreover, the preservation of cultural heritage can support social and economic progress within the second limb of article 1(a) of the Treaty of London, enhancing the lived-in environment and acting as a stimulus for creativity and economic activity. Culture is expressly mentioned in article 1(b) of the Treaty, which notes that ‘discussion of questions of common concern and . . . agreements and common action in . . . cultural . . . matters’ can contribute to greater unity among the CoE members. Indeed, an awareness of the past, brought home by its tangible and intangible manifestations in the present, can help to anchor foundational ideals within a given community. The safeguarding of cultural heritage can thus support the realization of common values and be a distinct objective of the CoE in its own right. The main policy and decision-making body of the CoE is the Committee of Ministers (‘CM’), composed of the ministers of foreign affairs or their representative from each Member State. The CM, which approves conventions before they are opened for signature, can also address non-binding recommendations to the Member States and adopt declarations. CoE conventions can be opened to non-party States and organizations, though they have in practice attracted limited external adherence. The other main CoE institution is the consultative Parliamentary Assembly (‘PACE’). This provides a forum for democratic debate among members of parliament from the Member States and can make recommendations to the CM, suggesting various lines for future action.16 Apart from adopting conventions and recommendations, the CoE supports research, provides 15 Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly in Paris, 10 December 1948 accessed 28 August 2019 (hereafter ‘UDHR’). 16 On this and other institutional aspects, see Wassenberg, History of CoE (n 11).

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912 Rachael Craufurd Smith technical and legal advice, and facilitates networks among civil society and interested bodies in order to promote the sharing of good practice and expertise. The CoE engages with democratic organizations operating at sub-State level, now represented by the Congress of Local and Regional Authorities (‘CLRA’). There is also a dedicated Steering Committee for Culture, Heritage, and Landscape (‘CDCPP’),17 which provides expert advice, monitors implementation of cultural policies, and engages with interested parties and institutions. A wide range of international and non-governmental bodies are entitled to either participate or seek observer status at CDCPP meetings, without the right to vote. The CoE is thus able to assist cooperation on both horizontal and vertical planes and between State and non-State actors. Article 1(c) of the Treaty of London provides that participation by a State in the CoE is not to affect its ability to collaborate in the work of the UN or ‘other international organisations or unions to which they are parties’. Conventions tend to be expressed as subsidiary to existing and future agreements between members in the cultural field.18 All CoE members are expected to ratify the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), adopted in 1950.19 The ECHR is unusual among international conventions in having its own dedicated court, the European Court of Human Rights (‘ECtHR’), with jurisdiction to apply the Convention in concrete cases brought by States Parties or by individuals, once domestic remedies have been exhausted. Under Protocol 16 to the Convention, domestic courts from ratifying States can now ask the ECtHR to provide a non-binding advisory opinion on the interpretation or application of Convention rights and freedoms.

3.2 Substantive Measures The CoE has adopted a range of both general and specialist conventions relating to cultural heritage, backed by numerous recommendations and declarations that provide guidance to the Member States on implementation and best practice in the field.20 Two conventions that apply generally to all forms of cultural property, the 1954 European Cultural Convention (‘Cultural Convention’) and the 2005 Framework Convention on the Value of Cultural Heritage for Society (‘Faro Convention’), are of foundational importance.21 They illuminate not only the respective concerns of their day but also the 17 CoE, Steering Committee for CDCPP, Terms of Reference 1 January 2018 to 31 December 2019, detailed in CM(2017) 131–addfinal at accessed 10 December 2019. 18 For example, Cultural Convention (n 9), art 8(a). 19 Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 November 1953) ETS No 5 (hereafter ‘ECHR’). 20 Council of Europe Recommendations and Declarations in the field are detailed at accessed 28 August 2019. 21 Respectively, Cultural Convention (n 9) and Framework Convention on the Value of Cultural Heritage for Society (opened for signature 27 October 2005, entered into force 1 June 2011) ETS No 199 (hereafter ‘Faro Convention’).

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Europe 913 ability of the CoE to tap into social and political developments in order to offer an innovative blueprint for cultural action now and in the future. A further convention relating to the illegal trafficking of cultural property and its restitution did not receive sufficient State support to enter into force, and a new Convention on Offences Relating to Cultural Property was consequently adopted in 2017 (hereafter ‘Nicosia Convention’), although this too has still to receive the requisite ratifications.22 The early specialist conventions focused on traditionally recognized material manifestations of cultural heritage, such as archaeological and architectural heritage.23 In these areas, the CoE has sought to keep pace with social and economic developments. The 1992 Valletta Convention, for example, addressed threats to the archaeological heritage posed by rapid urban development, updating the 1969 European Convention on the Protection of the Archaeological Heritage that had focused on the then-major problem of illegal excavations.24 The CoE has also shown an awareness of technological developments and new manifestations of cultural heritage. The Convention for the Protection of the Audiovisual Heritage recognized the importance and fragility of cinematographic works as records of contemporary society, while a linked protocol on television productions illustrates the willingness of the CoE to engage with popular and not merely elite cultural forms.25 By the mid-1990s the CoE had moved into the politically sensitive territory of the protection of minority cultures.26 The 2000 European Landscape Convention (‘Landscape Convention’), which prefigured in many ways the Faro Convention, emphasized the importance of sustainable development, the role of culture in enhancing quality of life, and the need for public engagement in the development and implementation of landscape policy.27 The rationales for CoE action have evolved over time. The foundational Cultural Convention sought to enhance greater understanding among the peoples of Europe by promoting the study of the ‘language or languages, history and civilisation’ of one State in the territory of another (art 2), as well as the exchange of persons and objects of 22 Convention on Offences Relating to Cultural Property (opened for signature 19 May 2017) ETS No 221 (hereafter ‘Nicosia Treaty’). 23 Respectively, the European Convention on the Protection of the Archaeological Heritage (opened for signature 6 May 1969, entered into force 20 November 1970) ETS No 66 (hereafter ‘Granada Convention’), and the Convention for the Protection of the Architectural Heritage of Europe (opened for signature 3 October 1985, entered into force 1 December 1987) ETS No 121. 24 Convention for the Protection of the Architectural Heritage of Europe (opened for signature 3 October 1985, entered into force 1 December 1987) ETS No 121. 25 European Convention for the Protection of the Audiovisual Heritage (opened for signature 8 November 2001, entered into force 1 January 2008) ETS No 183, and Protocol on the Protection of Television Productions (opened for signature 8 November 2001, entered into force 1 April 2014) ETS No 184. 26 European Charter for Regional and Minority Languages (opened for signature 5 November 1992, entered into force 1 May 1998) ETS No 148; Framework Convention for the Protection of National Minorities (opened for signature 1 February 1995, entered into force 1 February 1998) ETS No 157 (here after ‘Convention on National Minorities’). 27 European Landscape Convention (opened for signature 20 October 2000, entered into force 1 March 2004) ETS No 176 (hereafter ‘Landscape Convention’).

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914 Rachael Craufurd Smith cultural value in order to support such understanding (art 4).28 The Treaty encompassed aspects of both tangible and intangible cultural heritage, indicative of the CoE’s holistic approach to cultural heritage. Cultural diplomacy as endorsed in the 1954 Cultural Convention is unlikely to be problematic for States, but the Convention also designates a category of ‘objects of European cultural value’, part of ‘a common cultural heritage of Europe’ (art 5), which contracting States must take ‘appropriate measures to safeguard’ and to which they must ensure ‘reasonable access’.29 The ‘common cultural heritage of Europe’ is not here further defined and could be considered to comprise the sum of the diverse cultural heritages in each contracting State, with Europe acting as a sort of geographical container. Alternatively, it could mark out a category of cultural heritage that has a specific European resonance, either because of its presence across all, or significant parts of, Europe or because it has been forged through interaction among the various peoples of Europe. These latter conceptions are more problematic for the Member States, in that they entail an independent European stake in the preservation and development of such heritage alongside their own.30 The CoE has arguably played with the ambiguity of this concept in subsequent conventions. The 1969 European Convention on the Protection of the Archaeological Heritage, while acknowledging that the protection of the ‘European archaeological heritage’ rests ‘in the first instance’ with contracting States, held that it was ‘also the concern of European States jointly’.31 In the 1985 Convention for the Protection of the Architectural Heritage of Europe (the ‘Granada Convention’), it is the richness and diversity of Europe’s architectural heritage that is identified as contributing to the common heritage of all Europeans.32 The 1992 Valletta Convention emphasized the importance of the archaeological heritage for the development of a ‘European collective memory’ and arguably, therefore, a collective identity, as well as ‘an instrument for historical and scientific study’.33 The Faro Convention includes in its definition of the ‘common heritage of Europe’, alongside the ‘ideals, principles and values . . . which foster the development of a peaceful and stable society’,34 recognized in the founding Treaty of London, a second, overlapping category of cultural heritage, building on the approach in Valletta. This comprises ‘all forms of cultural heritage in Europe which together constitute a shared source of 28 Cultural Convention (n 9). 29 Ibid, art 5. 30 Consider Ahunbay v Turkey, App No 6080/06, 29 January 2019 (hereafter ‘Ahunbay v Turkey’), discussed at Section 3.3. 31 European Convention on the Protection of the Archaeological Heritage (opened for signature 6 May 1969, entered into force 20 November 1970) ETS No 66 (hereafter ‘ECHR’) preamble. 32 Convention for the Protection of the Architectural Heritage of Europe (opened for signature 3 October 1985, entered into force 1 December 1987) ETS No 121 (hereafter ‘Granada Convention’), preamble. 33 European Convention on the Protection of the Archaeological Heritage (Revised) (opened for signature 16 January 1992, entered into force 25 May 1995) ETS No 143 (hereafter ‘Valletta Convention’) art 1.1. 34 Faro Convention (n 21), art 3(a).

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Europe 915 remembrance, understanding, identity, cohesion and creativity’.35 The word ‘together’ here suggests a reference only to those forms of cultural heritage that support a shared sense of European identity, which could be considered out of line with the general aim of the Faro Convention to safeguard cultural heritage of value to communities whatever their reach or focus. Alternatively, ‘together’ might instead be understood as indicating a common resource of heritage that is important for the reasons indicated for diverse communities and which Europe therefore seeks to preserve. The concept of the ‘common heritage of Europe’ in fact plays little part in the Faro Convention, though article 17 calls on States Parties to cooperate in its promotion. The two CoE conventions on national minorities and regional or minority languages of the mid-1990s pick up on the importance of valuing cultural diversity, as both an individual and social resource.36 Both conventions emphasize the human rights dimension in their preambles: the Framework Convention on National Minorities makes general reference to ‘United Nations Conventions and declarations’, while the Charter on regional and minority languages refers to the principles established in the International Covenant on Civil and Political Rights (ICCPR) and the ‘spirit’ of the ECHR.37 The Landscape and Faro Conventions that mark the turn of this century build on the two foundations reflected in the previous treaties: the need to safeguard Europe’s cultural heritage and to ensure respect for fundamental human rights.38 The Landscape Convention engages with the sub-State level by emphasizing the importance of landscape for the formation of local cultures, in turn ‘a basic component of the European . . . cultural heritage’.39 ‘Landscape’ is defined in article 1(a) as ‘an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors’ and is recognized to be an important part of the quality of life for people everywhere. Once again, the CoE rejects an elitist approach, acknowledging in the preamble that landscape embraces areas of outstanding natural beauty as well as ‘everyday’, even ‘degraded’, areas. This understanding of landscape has important implications for the involvement of communities and individuals, alongside politicians and professionals,40 in the development of cultural policy. In the 1992 Valletta Convention, adopted after the destructive and rapid development of many historic urban centres, the CoE emphasized the import ance of involving professional archaeologists in town planning, while the public remained the object of consciousness-raising activities or beneficiaries of additional rights of access.41 In contrast, the earlier 1985 Granada Convention had already recognized the 35 Ibid, art 3(b). 36 Convention on National Minorities (n 26). 37 International Covenant on Civil and Political Rights (opened for signature 16 December 1966, entered into force 23 March 1976) 999 UNTS (hereafter ‘ICCPR’). 38 Landscape Convention (n 27), Faro Convention (n 21). 39 Landscape Convention (n 27), preamble. 40 Zbigniew Kobyliński, ‘Protection, Maintenance and Enhancement of Cultural Landscapes in Changing Social, Political and Economic Reality in Poland’ in Ludomir R. Lozny (ed), Landscapes Under Pressure: Theory and Practice of Cultural Heritage Research and Preservation (Springer 2006) 213. 41 Valletta Convention (n 33), arts 5–6; compare art 9.

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916 Rachael Craufurd Smith need for public engagement alongside experts ‘in the various stages of the decision-making process’.42 Such engagement necessitates the introduction of appropriate machinery for the ‘supply of information, consultation and cooperation between the State, regional and local authorities, cultural institutions and associations and the public’.43 The Landscape Convention itself calls for representative and coordinated policymaking, with public engagement in the process of identifying and assessing landscapes and in defining ‘landscape quality objectives’ (articles 1(c) and 6.C–D). Effective participation cannot simply be imposed from above: mechanisms need to be in place to support participation and to prevent particular groups or individuals dominating proceedings, thereby undermining trust in the process.44 Following adoption of the Landscape Convention, the CoE carried out valuable research into how such participation can best be realized in practice,45 which can inform the broader commitment to ‘democratization’ in the cultural heritage field at both regional and international levels. The Faro Convention builds on the Landscape Convention to establish an ambitious overarching framework for the identification and management of all forms of cultural heritage. Framed in the aftermath of the devastating wars in former Yugoslavia, fuelled by nationalist rhetoric and ethnic and religious divisions, the Convention expressly ‘dissociates itself from an affirmation of the unity of heritage, identity, ethnicity and cultural belonging’.46 Interestingly, although there is an emphasis on rights and responsibilities, the Convention does not itself seek to establish new cultural rights. Rather, it starts from the important premise that there is already an established right to participate in cultural life, identified in the UDHR and rendered binding on States Parties by article 15.1(a) of the International Covenant on Economic, Social, and Cultural Rights (‘ICESCR’), which recognizes the right of everyone ‘to take part in cultural life’.47 A key role of the Convention is thus to remind States of the (pre-)existence of this right and to indicate the steps needed to realize it in practice. The preamble to the Convention expresses a commitment to treating ‘all cultural heritages equitably’, and, although it refers to both the UDHR and ICESCR, it does not mention the International Covenant on Civil and Political Rights (‘ICCPR’), with its more limited focus on the cultural rights of minorities in article 27.48 Rather, article 4 of the Convention refers to the rights of ‘everyone’, the same term employed in article 15.1(a) ICESCR, ‘to benefit from the cultural heritage and contribute towards its 42 Granada Convention (n 23), art 14. 43 Ibid. 44 Joris de Vente, Mark Reed, Lindsay Stringer, Sandra Valente, and Jens Newig, ‘How Does the Context and Design of Participatory Decision Making Processes Affect Their Outcomes? Evidence from Sustainable Land Management in Global Drylands’ (2016) 21(2) Ecology and Society 24, and, more specifically in relation to Faro, Noel Fojut, ‘The Philosophical, Political, and Pragmatic Roots of the Convention’ in Council of Europe, Heritage and Beyond (Council of Europe 2009) 20. 45 Secretariat General CoE, Directorate of Democratic Participation, Draft Recommendation ‘Landscape and Democracy: Public Participation’, 10 April 2019, CEP-CDCPP(2019) 15E. 46 Gabi Dolff-Bonekämper, ‘The Social and Spatial Frameworks of Heritage: What is New in the Faro Convention?’ in Council of Europe, ‘Heritage and Beyond’ (n 44) 69, at 71. 47 International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, entry into force 3 January 1976) 993 UNTS (hereafter ‘ICESCR’). 48 ICCPR (n 37).

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Europe 917 enrichment’, subject to legitimate public interest limitations and the responsibility to respect the cultural heritage of others.49 These rights can be exercised either alone or collectively.50 The rights-based focus also leads the Convention to draw another important conclusion—namely, that everyone has the right ‘to engage with the cultural heritage of their choice’.51 Culture is not ‘owned’ by any particular group and should not be used as an exclusionary or divisive force in society. Like the Landscape Convention before it, the Faro Convention recognizes the ‘need to put people and human values at the centre of an enlarged and cross-disciplinary concept of cultural heritage’.52 The influence of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, with its dynamic conception of cultural heritage and emphasis on community engagement and sustainable development, is also evident, reflecting the cross-fertilization of ideas at international and European levels.53 ‘Cultural heritage’ is defined broadly in article 2(a) of the Faro Convention as those ‘resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions’. It includes not merely cultural resources that are aesthetically beautiful, inspirational, or inventive but also the manifestations of past conflicts and inhumane acts that inform present values. Identification is typically by ‘heritage communities’, an innovative concept that article 2(b) of the Convention defines as people ‘who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations’. On this basis, Europe’s cultural heritage will inevitably be wide-ranging, multilayered, contested, and mutable, but the Faro Convention identifies processes that can address this complexity. As in the Landscape Convention, ‘cultural heritage’ is not a product, or at least not solely a product, of expert appreciation.54 Parties to the Convention are required to encourage ‘everyone to participate in . . . the process of identification, study, interpretation, protection, conservation and presentation of the cultural heritage’, taking into account the value that each heritage community ascribes to particular cultural manifestations.55 The Convention also encourages reflection and equitable treatment of competing values and interpretations of cultural heritage.56 The various CoE conventions discussed above characteristically call for the identification and study of specific aspects of cultural heritage, cooperation among professionals working in the field, the exchange of expertise, enhanced public access, awareness-raising, 49 On art 15.1(a) ICESCR, see UN Economic and Social Council, General Comment No 21, E.09–46,922, adopted 43rd session of Committee on Economic, Social and Cultural Rights, 2–20 G November 2009, II.A. 50 Faro Convention (n 21), art 4. 51 Ibid, preamble. 52 Ibid. 53 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (opened for signature 17 October 2003, entered into force 20 April 2005) 2368 UNTS (hereafter ‘Convention on Intangible Cultural Heritage’). 54 John Schofield, ‘Forget About “Heritage”: Place, Ethics and the Faro Convention’ in T. Ireland and J. Schofield (eds), The Ethics of Cultural Heritage (Springer 2015) 197. Arguably, experts can also form a discrete ‘heritage community’ in their own right. 55 Faro Convention (n 21), art 12(a). 56 Faro Convention (n 21), art 7(b).

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918 Rachael Craufurd Smith and educational initiatives. The Faro and Landscape conventions are notable for their emphasis on the mainstreaming of cultural heritage concerns across all areas of environmental, agricultural, social, and economic policy.57 This sophisticated and developed body of treaty law informs the CoE’s policy and strategy documents, most recently the European Cultural Heritage Strategy for the 21st Century (hereafter ‘Strategy for the 21st Century’).58 The influence of both the Faro and Landscape conventions is particularly evident in its identification of sustainable development, knowledge and education, and social participation and good governance as key themes. CoE conventions, such as the Delphi Convention, do not always gain sufficient State support to enter into force, and it may take many years to attain the requisite ratifications. The Faro Convention took five-and-a-half years to come into force and has to date been ratified by only eighteen States. Influential founding CoE members, such as the UK and France, have so far abstained. One notable aspect of the Faro Convention, however, is its capacity to speak directly to interested groups across Europe. The CoE supports heritage communities that participate in the Faro Convention Network, providing guidance on identifying cultural heritage and how to engage effectively with public and private bodies to further the Convention’s objectives.59 Even with limited State buy-in for its policies, therefore, the CoE can still have a direct impact on the ground. Once implemented, a major challenge for international organizations such as the CoE is enforcement. The ECHR, discussed further in the next section, is unusual in having its own system of judicial oversight. In other contexts, the CoE relies heavily on State reports and consultation with non-governmental organizations to elicit a wider range of views on implementation. Reputational damage is thus the main disincentive for non-compliance and is not always sufficient to deter late, or even non-, filing of reports.60 The two conventions on minority rights have independent expert committees to review domestic implementation, but the general process of evaluation is resourceintensive at a time when the CoE faces significant financial challenges.61 In response to these problems, the CoE has taken steps to streamline and make the monitoring process more effective and enhance co-ordination across the CoE’s various institutions and bodies; it has also been suggested that parties to its conventions could be asked to contribute financially to their ongoing maintenance.62 57 As argued for by Jon Hawkes, The Fourth Pillar of Sustainability: Culture’s Essential Role in Public Planning (Common Ground Publishing in association with the Cultural Development Network (Vic) 2001) 35. 58 Committee of Ministers Recommendation on the European Cultural Heritage Strategy for the 21st Century (CM/Rec(2017)1) (hereafter ‘Strategy for the 21st Century’). 59 Council of Europe, Faro Convention Action Plan Handbook 2018–2019 accessed 28 August 2019. 60 See, for example, CoE reporting data for the Framework Convention on National Minorities at accessed 28 August 2019. 61 Thorbjørn Jagland, Ready for Future Challenges—Reinforcing the Council of Europe, Report by the Secretary General for the Ministerial Session in Helsinki, 16–17 May 2019 (Council of Europe 2019) accessed 28 August 2019, 49–52. 62 Jagland, Ready for Future Challenges (n 61) 44–52.

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Europe 919

3.3 The European Convention on Human Rights and the Preservation and Protection of Cultural Heritage The ECHR focuses on core civil rights and freedoms, many of which, such as the rights to private life, to marry, and of freedom of thought, conscience, religion, expression, and association, are of considerable cultural relevance.63 Though inspired by the thenrecently adopted UDHR,64 there are no direct parallels to articles 22 and 27 UDHR, which concern access to culture and confirm the importance of cultural rights for personal development and dignity. This raises the question whether the ECHR should be updated to bring it into line with more recent regional and international developments, particularly in light of the Ahunbay case discussed later in this section.65 Earlier attempts to introduce a specific cultural protocol to the ECHR were discontinued in 1997 on the basis that the various proposed articles would add nothing to the existing guarantees, could be abused, or were insufficiently precise to found meaningful legal rights.66 In many instances, it is correct that individuals will be able to rely on one of the rights indicated above to challenge State measures that restrict or disadvantage certain cultural practices.67 A number of cases have also explored the extent to which States are under a positive obligation to prevent private entities from curtailing the ability of individuals to manifest their culture.68 The ECtHR considers the protection of different lifestyles to be important, not just for the individuals concerned but because cultural diversity is of value more generally to society. The majority must not, therefore, abuse their dominant position to the detriment of minorities.69 This does not prevent the manifestation of aspects of the majority culture in public places such as schools, provided this does not involve an attempt to promote, or indicate the superiority of, the beliefs or practices in question.70 Where possible, States should seek to accommodate difference and diffuse tensions.71 When competing political, social, and cultural interests cannot be accommodated, policy choices are inevitable, and, in the sensitive cultural context, the court characteristically affords States a wide margin of appreciation.72 Although the ECtHR has recognized that some forms of cultural heritage are of European, if not universal, importance, it has not to date felt able to develop the existing 63 Arts 8, 12, 9, 10, and 11 ECHR. 64 See n 15. 65 Ahunbay v Turkey (n 30). 66 Yvonne Donders, ‘Protection of Cultural Rights in Europe: None of the EU’s Business?’ (2003) 10(2) Maastricht Journal of European and Comparative Law 117. 67 ECHR Research Division, Cultural Rights in the Case Law of the European Court of Human Rights (Council of Europe 2011, updated 2017) accessed 28 August 2019. 68 For example, Eweida and Others v UK, App Nos 48,420/10, 59,842/10, 51,671/10, 36,516/10, 15 January 2013. 69 S.A.S. v France, App No 43835/11, 1 July 2014 (hereafter ‘S.A.S v France’) paras 127–8. 70 Lautsi and others v Italy, App No 30814/06, 18 March 2011. 71 Osmanoğlu and Kocabaş v Switzerland, App No 29086/12, 10 January 2017. 72 Consider, for example, discussion of linguistic rights in ECHR Research Division, Cultural Rights (n 67), para 58.

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920 Rachael Craufurd Smith Convention articles to establish an individual right to the preservation of such heritage. A general interest in the preservation of cultural heritage can, however, limit the discretion retained by States to curtail Convention rights. Thus, in Akdaş v Turkey, the ECtHR held that Turkey’s wide margin of discretion under article 10.2 ECHR to prohibit the publication of literary works in order to protect morals was more limited where the work formed part of ‘Europe’s literary heritage’. 73 Such an interest can also help to legitimize State measures that curtail Convention rights. In Beyeler v Italy, the Court recognized a ‘general interest’ in wide public access to ‘universal culture’ and the ‘heritage of all nations’. This interest could justify State controls over private property, protected by article 1 of Protocol 1 ECHR, such as important paintings or works of art.74 The Court in Kozacıoğlu v Turkey went further in holding that it is ‘incumbent’ on public authorities to ensure that cultural heritage, which reflects ‘the historical, cultural and artistic roots of a region and its inhabitants’, is protected and promoted.75 The recent ruling in Ahunbay v Turkey serves, nevertheless, to underline the limited protection presently afforded cultural heritage under the ECHR.76 The case concerned the submersion of archaeological sites, classified as of primary importance, by the creation of the Ilisu dam. The applicants argued that loss of these sites constituted an infringement of a range of rights, including articles 8 and 10 ECHR and article 2 of Protocol 1: flooding would prevent further scientific study of the site, impede access to information about the past, and prevent future generations from learning about their cultural patrimony. Although the court took into account international law in its interpretation of the ECHR77 and recognized a common European and international understanding of the need to protect access to cultural heritage, it held that the law currently extended only to protecting the interests of members of minorities and indigenous populations. It was not able to discern a European consensus on more extensive protection and therefore held the application inadmissible. A broader international conception of cultural rights as belonging not just to members of minorities but to ‘everyone’ can, however, be discerned. This is deeply rooted not only in articles 22 and 27 UDHR and article 15 ICESCR78 but also in international conventions such as the UNESCO Convention on the Diversity of Cultural Expressions, which calls for equal respect for all cultures.79 At the European level, the Faro Convention recognizes the right of everyone to benefit from the cultural heritage subject only to restrictions necessary to protect the public interest and the rights of others.80 73 Akdaş v Turkey, App No 41056/04, 16 February 2010. 74 Beyeler v Italy, App No 33202/96, 5 January 2000, paras 111–13. 75 Kozacıoğlu v Turkey, App No 2334/03, 19 February 2009 (hereafter Kozacıoğlu v Turkey), para 54. 76 Ahunbay v Turkey (n 30). 77 In line with art 31.3(c) of the Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 78 UDHR (n 15); ICESCR (n 47). 79 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (opened for signature 20 October 2005, entered into force 18 March 2007) 2440 UNTS (hereafter ‘Convention on Cultural Diversity’), art 2.3. 80 Faro Convention (n 21).

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Europe 921 The Cultural Convention requires State parties to safeguard ‘objects of European cultural value’, to which they must ensure ‘reasonable access’.81 These Conventions remind us that it is not only members of ‘minority’ groups that have rights to cultural heritage but also those who are part of broader communities of interest at State level or beyond. These communities may not fit easily into a minority or majority frame of reference, as in a case such as this, which concerned the preservation of the remains of a powerful but extinct civilization. By holding the application to be inadmissible, the ECtHR prevented independent judicial oversight of the evaluation process regarding the dam development.82 The roughly coterminous case of Cangi v Turkey indicates that the ECHR can nevertheless assist cultural heritage communities in engaging with the decision-making process.83 Cangi v Turkey similarly concerned the flooding of an archaeological site, but here the applicant sought to receive information from the State concerning the approval process for the project under article 10 ECHR. The ECHR held that it was in the public interest that the applicant should receive a transcript of an important administrative meeting at which a cultural organization may have been subject to official pressure. Information of this type can be useful when campaigning for the protection of cultural heritage, even absent a European right to such protection. The case serves to emphasize the importance of the effective, open, and participatory processes endorsed in both the Landscape and Faro Conventions.

4. The European Union 4.1 Competence and Instruments The powers of the EU are established, and limited, by its governing treaties: the Treaty on European Union (‘TEU’); and the Treaty on the Functioning of the European Union (‘TFEU’).84 The EU’s human rights charter, the Charter of Fundamental Rights (‘CFR’), now has Treaty status by virtue of article 6.1 TEU.85 The initial EEC Treaty of 1957 (‘TEEC’) contained no specific legal basis for action in the cultural field,86 though article 36 TEEC (now article 36 TFEU), allowed Member States to restrict the import of goods in order to protect ‘national treasures possessing artistic, historic and archaeological value’. The economic focus of the TEEC and absence of a specific culture article led some States to argue that the EEC had no competence in the cultural field. This argument was

81 Cultural Convention (n 9), art 5. 82 As in Kozacıoğlu v Turkey (n 75). 83 Cangi v Turkey, App No 25973/15, 29 January 2019. 84 TEU (n 14) and Treaty on the Functioning of the European Union [2016] OJ C202/47 (hereafter ‘TFEU’). 85 Charter of Fundamental Rights of the European Union [2016] OJ C202/389 (hereafter ‘CFR’). 86 TEEC (n 13).

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922 Rachael Craufurd Smith decisively rejected by the Court of Justice (‘CJ’) in the 1968 case of Commission v Italy.87 The case concerned a tax imposed by Italy on exports of art works. Italy argued cultural goods of this type were fundamentally different to ordinary consumer goods and fell outside the scope of the EEC Treaty. The CJ held, however, that if a product could be valued in money and form the subject of commercial transactions then it would be covered by the Treaty rules, in this case the rules on customs duties, whatever its other characteristics.88 Growing awareness of the cultural influence of EEC law led some Member States to conclude that it was better to expressly shape a cultural policy for the EEC from within than leave this to develop, if at all, in an indirect and haphazard way as an adjunct to other policy strands.89 Key figures in the EEC institutions also saw culture as a means to enhance public support for European integration, if not a distinct European identity.90 The inclusion of a culture article in the Treaty would also place funding for initiatives, such as the restoration of cultural heritage sites and cultural prizes, on a firmer footing. A series of Treaty changes were thus introduced that significantly extended EU competence in the cultural field. The most important of these was the introduction in 1992 of a dedicated article on culture, now article 167 TFEU. Paragraph 1 entrusts the EU with the task of contributing to ‘the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’. Paragraph 2 states that the EU can ‘support and supplement’ action by the Member States in order to improve knowledge of the ‘culture and history of the European peoples’, conserve and safeguard ‘cultural heritage of European significance’, and support non-commercial cultural exchanges and literary and artistic creation. A derogation for State aid ‘to promote culture and heritage preservation’ was also added in 1992 in what is now article 107.3(d) TFEU. More recently, the Lisbon Treaty amended the TEU to include a new article 3.3 TEU,91 which states that the EU ‘shall respect its rich cultural and linguistic diversity’ and ‘ensure that Europe’s cultural heritage is safeguarded and enhanced’. Zagato has suggested that inclusion of these objectives in the initial ‘common provisions’ of the Treaty underlines the constitutional importance which the EU now ascribes to the preservation of cultural heritage.92 Zagato also suggests that use of the word ‘enhanced’ in article 3.3 87 Commission v Italy [1968] ECLI:EU:C:1968:51. 88 Ibid, 428–9. 89 Rachael Craufurd Smith, ‘Community Intervention in the Cultural Field: Continuity or Change?’ in Rachael Craufurd Smith (ed), Culture and European Union Law (Oxford University Press 2004) 19; Kate Mattocks, ‘Uniting the Nations of Europe? Exploring the European Union’s Cultural Policy Agenda’ in Victoria Durrer, Toby Miller, and Dave O’Brien (eds), The Routledge Handbook of Global Cultural Policy (Taylor and Francis 2017) 397. 90 Oriane Calligaro, ‘From “European Cultural Heritage” to “Cultural Diversity”? The Changing Core Values of European Cultural Policy’ (2014) 3 Politique européenne 6; Rachael Craufurd Smith, ‘Article 151 EC and European Identity’ in Craufurd Smith, Culture and European Union Law (n 89). 91 Treaty of Lisbon [2007] OJ C306/01. 92 Lauso Zagato, ‘The Notion of “Heritage Community” in the Council of Europe’s Faro Convention: Its Impact on the European Legal Framework’ in Nicolas Adell, Regina F. Bendix, Chiara

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Europe 923 TEU may have been influenced by its use in the Faro Convention, indicating the wider conceptual importance of this Convention outwith the CoE. 93 EU competence in the human rights field developed gradually, initiated by a series of ‘innovative’ CJ rulings that require the EU institutions and Member States to respect fundamental rights when operating within the field of EU law.94 The CFR establishes a distinct set of EU rights and principles that apply within the scope of EU law.95 Principles take effect through EU or Member State measures implementing EU law and can be used to guide the interpretation, or determine the legality, of such measures.96 The CFR includes not only civil and social rights but also a number of cultural rights and prin ciples, discussed further in Section 4.3. Article 167.3 TFEU calls on the EU to ‘foster cooperation with third countries and the competent international organizations in the sphere of culture, in particular the Council of Europe’. More general competence for international collaboration is established in article 220 TFEU, while article 216 TFEU establishes the power to enter into agreements with other international organizations to achieve one of the aims of the Treaty. Under article 207.4(a) TFEU, Council unanimity is required for trade agreements that could prejudice the Union’s ‘cultural and linguistic diversity’. At the institutional level, the European Council, composed of heads of State or government of the Member States, provides high-level policy direction, while the independent Commission develops and oversees the implementation of EU policies and proposes legislation.97 The key EU legislative institutions are the Council, representing the interests of the Member States, and the European Parliament (‘EP’), whose members are directly elected by EU citizens. As in the CoE, there are a number of advisory bodies that enable various tiers of government and civil society organizations to engage with the EU, notably the European Committee of the Regions (‘ECR’) and the European Economic and Social Committee, both of which have taken an active interest in cultural matters.98 The Commission has sought to structure its engagement with the many cultural organizations and interest groups operating across the EU, creating networks and organizing meetings, notably through biannual forums.99 Within the Commission, the Directorate General for Education, Youth, Sport, and Culture has specific competence for cultural matters but, because of the cross-cutting Bortolotto, and Markus Tauschek (eds), Between Imagined Communities of Practice (Göttingen University Press 2015) 141, 151. 93 Ibid, 152. 94 Francis Jacobs, ‘Human Rights in the European Union. The Role of the European Court of Justice’ (2001) 26(4) European Law Review 331. 95 CFR (n 85), art 51. 96 Ibid, art 52.5. 97 For discussion of the role of the various EU institutions in the cultural field see Mattocks, ‘Uniting the Nations of Europe?’ (n 89). 98 See accessed 27 August 2019. 99 An approach initiated by European Commission, Communication on a European Agenda for Culture in a Globalizing World, COM(2007) 242 final (hereafter ‘European Commission, European Agenda’).

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924 Rachael Craufurd Smith nature of cultural concerns, effective co-ordination across Directorates General is essential.100 Concern that cultural aspects were not being adequately identified led to the inclusion of the ‘mainstreaming’ provision in article 167.4 TFEU. This requires the EU to take culture ‘into account’ when acting under other Treaty bases, ‘in particular in order to respect and to promote the diversity of its cultures’. With EU accession to the UNESCO Convention on Cultural Diversity at the end of 2006,101 and growing awareness of the potential economic and social value of culture, the profile of cultural considerations in both internal and external EU policy fields was raised.102 Increasingly, mainstreaming is considered an opportunity to incorporate cultural initiatives into other areas of activity, in line, it would seem, with the more promotional aspects of articles 167.4 TFEU and 3.3 TEU, as opposed to requiring consideration of any potential negative impacts of EU initiatives on culture.103 Despite specific recommendations, the EU has not established a formal cultural heritage impact assessment procedure,104 so that cultural issues have to be located within the human rights, environmental, or social considerations covered by the Commission’s integrated approach to impact assessments.105 Affording adequate weight to cultural concerns, which cannot be assessed simply in economic terms, is challenging, and the EU has recognized the need to develop appropriate evaluative criteria, drawing also on international initiatives.106 The value of systematic EU engagement with cultural concerns is illustrated by recent revisions to the EU environmental impact assessment regulations, which now require consideration of ‘cultural heritage and landscape’ factors.107 Although the EU has at its disposal highly effective legislative instruments in the form of directly applicable regulations and directives, which are binding on Member States even though they require domestic implementation, Article 167.5 TFEU restricts direct EU cultural action to incentive measures and non-binding Council recommendations. Harmonization is expressly excluded. As a result, the EU employs soft-law mechanisms, 100 Evangelia Psychogiopoulou, ‘Taking Cultural Aspects into Account in EU Law and Policies’ in Céline Romainville (ed), European Law and Cultural Policies (P.I.E. Peter Lang 2015) 99. 101 UNESCO Convention on Cultural Diversity (n 79). 102 Psychogiopoulou, ‘Taking Culture into Account’ (n 100), and European Commission, ‘European Agenda’ (n 99). 103 See European Commission, Communication: Towards an Integrated Approach to Cultural Heritage for Europe, COM(2014) 477 final, 2.2, and, more explicitly, Council of the EU, Conclusions on the Need to Bring Cultural Heritage to the Fore Across Policies in the EU, 4 May 2018, CULT 52 (here after ‘Council of the EU, Bringing Cultural Heritage to the Fore’), paras 8–9. 104 See European Parliament Resolution of 8 September 2015, Towards an Integrated Approach to Cultural Heritage for Europe (2014/2149(INI)), recommending a specific cultural heritage impact assessment and the exclusion of the cultural heritage field from legislation where a negative impact is identified (para 21). 105 European Commission, Staff Working Document, Better Regulation Guidelines, SWD (2017) 350, chapter III. 106 European Commission, Staff Working Document, European Framework for Action on Cultural Heritage, SWD(2018) 491 final, 4.2 (hereafter ‘European Commission, Framework Document’); Council, ‘Bringing Cultural Heritage to the Fore’ (n 106), para 23. 107 EP/Council Directive (EU) 2014/52/EU amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L124/1, at revised art 3(d).

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Europe 925 primarily funding programmes, and the ‘open method of co-ordination’ (‘OMC’). The OMC brings together representatives from the Member States to share experience and good practice in areas identified by the Council.108 Although the OMC has provided thoughtful analysis and guidance,109 it is left to States and interested organizations to decide whether or not to build on these resources.110 As Psychogiopoulou observes, the OMC in this context does not involve indicators or targets, reporting requirements or external oversight, which characterize coordination under other Treaty provisions, such as the digitization of cultural material under article 292 TFEU.111 Although any ‘stiffening’ of the OMC itself would be seen by the Member States as encroaching on their cultural autonomy, the Commission in its New European Agenda for Culture proposes to support joint follow-up projects that will lead to concrete implementation and enhance impact.112

4.2 Substantive Law and Policy EU engagement with cultural heritage stemmed initially from the operation of a limited number of Treaty articles, primarily those concerned with removing impediments to the internal market, and supporting competition, agriculture, and cohesion among States with very different economic conditions. The free movement provisions opened up domestic markets to foreign goods, services, and workers, challenging the insularity of many domestic cultural policies.113 Although the CJ accepted that States could impose non-discriminatory restrictions on trade in the general interest, such restrictions had to be legitimate and proportionate. Thus, in Commission v Greece, the CJ recognized that the ‘proper appreciation of the artistic and archaeological heritage of a country’ was such an interest but held that this did not require tourist guides, accompanying tourists from other countries to Greece, to obtain a Greek diploma.114 Such guides could offer an alternative perspective on Greek history and might be better equipped to address the interests of their party. EU law thus enhances individual choice in the cultural field but also exposes cultural goods and services to heightened competition. The EU also reviews State funding for the cultural sector under article 107 TFEU to ensure that this does not distort competition. As noted, Article 107.3(d) TFEU provides a specific derogation for aid ‘to promote culture and heritage preservation’, and a wide range of domestic schemes to support cultural heritage have been approved by the 108 Evangelia Psychogiopoulou, ‘The Cultural Open Method of Coordination: A New but Different OMC?’ (2018) 3(1) European Papers 257. 109 For example, European Commission, Participatory governance of cultural heritage, Report of the OMC working group of Member States’ experts (EU Publications 2018). 110 Kate Mattocks, ‘ “A few sparks of inspiration”? Analysing the Outcomes of European Union Cultural Policy Coordination’ (2018) 19(1) European Politics and Society 20. 111 Psychogiopoulou, ‘The Cultural Open Method’ (n 108) 274. 112 European Commission, Communication on A New European Agenda for Culture, COM(2018) 267 final (hereafter ‘European Commission, New Agenda’), at 6.1. 113 Craufurd Smith, ‘Community Intervention’ (n 89). 114 Commission v Greece [1991] ECLI:EU:C:1991:79, para 21.

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926 Rachael Craufurd Smith Commission under this provision.115 These include schemes to support museums, the restoration of ancient monuments, and even the preservation of traditional farming methods, indicating a broad conception of cultural heritage in line with the Faro Convention.116 Obtaining approval can be a lengthy and burdensome process, and the EU accommodates cultural concerns by exempting States from the need to notify cultural schemes where the aid for a specific project falls below 150 million euros or operational aid is below 75 million euros per undertaking per year.117 EU intervention ‘outwith’ article 167 TFEU has not been restricted to reviewing the legality of State regulations or aid in the cultural field. The EU has also adopted a number of more ‘positive’ measures designed to protect or stimulate the production of various forms of cultural heritage. These include the creation of distinct forms of protection, such as the EU system of geographical indications and specialty designations applicable to authentic foods, wines, and spirits,118 or entitlements, such as the artists’ resale right (droit de suite).119 Other measures seek to enhance Member State cooperation in addressing common problems, illustrated by the adoption of procedures to facilitate the return of ‘national treasures’ unlawfully exported to another EU country and to prevent the illegal export of cultural goods outwith the EU area.120 The EU has also adopted regulations to prevent the import into the EU of illegally obtained cultural goods from specific countries and is considering adopting a general regulation to tackle illicit trafficking in cultural property.121 The EU Structural Funds provide considerable financial support for culture. During 2007 and 2013, for example, it is estimated that 3 billion euros were awarded to cultural heritage projects.122 The Funds support economic regeneration and development and cultural projects must fit within these parameters to obtain aid by, for example, supporting

115 Delia Ferri, ‘Cultural Diversity and State Aids to the Cultural Sector’ in Evangelia Psychogiopoulou (ed), Cultural Governance and the European Union: Protecting and Promoting Cultural Diversity in Europe (Palgrave 2015) 119. 116 Ibid, at 127–30. 117 Commission Regulation (EU) 651/2014 declaring certain categories of aid compatible with the internal market in application of arts 107 and 108 of the Treaty [2014] OJ L 187/1, as amended, art 4(z). 118 See Council/EP Regulation (EU) 1151/2012 on quality schemes for agricultural products and foodstuffs [2012] OJ L343/1. 119 EP/Council Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art [2001] OJ L272/32. 120 EP/Council Directive (EU) 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast) [2014] OJ L159/1 and Council Regulation (EC) 116/2009 on the export of cultural goods (Codified version) [2009] OJ L39/1, certain limitations of which are discussed by Tania Kyriakou, ‘The Protection of National Treasures in the EU Single Market’ in Psychogiopoulou (ed), ‘Cultural Governance’ (n 115) 63, 69. 121 See Council Regulation (EC) 1210/2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96 [2003] OJ L169/6 and European Commission, Proposal for a Regulation of the EP and Council on the import of cultural goods, COM(2017) 375 final. 122 European Commission, Policy Themes, Funding From Structural Funds for Culture (EC, N.d.) accessed 28 August 2019.

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Europe 927 cultural tourism or the innovative use of technology.123 Adoption of article 167 TFEU, however, enabled the EU to establish specific funding programmes for culture. The scale and nature of these programmes have evolved over time;124 the current Creative Europe Programme (2014–2020) seeks, in particular, to make Europe’s cultural sector more competitive through innovation and enhanced scale.125 The funding available through these programmes is comparatively limited: the Creative Europe Programme allocated 1.46 billion euros for its seven years of operation. Article 167 TFEU also enabled the EU to develop for the first time an explicit cultural policy. The desire to avoid conflict with the Member States, always protective of their cultural competences and with very different cultural policy approaches, may explain why it was only in 2007 that the Commission produced its first major policy document in the field, its ‘European Agenda for Culture in a Globalizing World’.126 In 2018 this was replaced by ‘A New European Agenda for Culture’ (‘New Agenda’), which emphasizes social and economic objectives and the need to strengthen international cultural relations.127 The New Agenda places particular emphasis on ‘Europe’s’ cultural heritage as a shared resource that ‘reinforce[s] a sense of common European identity’.128 This instrumental use of culture is both long-standing and controversial.129 Overshadowed for a while by a focus on intercultural dialogue, a key strand in the 2007 Agenda, its regained prominence may reflect a degree of insecurity in light of EU tensions with both the US and Russia and the imminent departure of the UK.130 Specific initiatives designed to feed into such a European identity include the popular European Capitals of Culture events, the European Heritage Label scheme, which identifies sites important for their role in ‘European’ history, and various ‘European’ prizes, including the European Heritage Awards.131 Recognition of the broader importance of cultural heritage as enhancing social and individual well-being underpinned the EU’s dedication of 2018 as the European Year of Cultural Heritage (‘EYCH’). As a follow-up to the EYCH, the Commission published a European Framework for Action on Cultural Heritage (‘Framework Document’), setting out key guiding principles and priority areas for action in the following next two years.132 The Framework Document was consciously aligned with the CoE’s Strategy for the 21st 123 Ibid. 124 Rachael Craufurd Smith, ‘Article 167 and the European Union’s Competence in the Cultural Field’, in Romainville, ‘European Law’ (n 100) 59. 125 EP/Council Regulation (EU) 1295/2013 establishing the Creative Europe Programme (2014 to 2020) [2013] OJ L347/221. On impact, see European Commission, Mid-term evaluation of the Creative Europe Programme (2014–2020) COM(2018) 248 final. 126 European Commission, ‘European Agenda’ (n 99). 127 European Commission, ‘New Agenda’ (n 112). 128 Ibid, 4.1; see also Commission Communication on Strengthening European Identity through Education and Culture COM(2017) 673. 129 See, for example, Tobias Theiler, ‘Does the European Union Need to Become a Community?’ (2012) 50(5) Journal of Common Market Studies 783; see also works cited at n 90. 130 Consider Council, ‘Bringing Cultural Heritage to the Fore’ (n 103), paras 5 and 14. 131 Craufurd Smith, ‘Article 167’ (n 124) 67. 132 European Commission, ‘Framework Document’ (n 106).

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928 Rachael Craufurd Smith Century133 and identifies a similar range of challenges and priorities.134 As in the CoE document, it emphasizes the importance of sustainable development and innovative uses of new technology; education and training; and the need to foster participatory, evidence-based decision-making. In line with article 167.3 TFEU, the EU engages with a range of international bodies active in the cultural field, including the CoE and UNESCO.135 Such coordination takes place in different venues and contexts; it is, for example, built into the EU Cultural Heritage Forum established following the EYCH.136 The EU played an active role in negotiations surrounding adoption of the UNESCO Convention on Cultural Diversity,137 to which it has acceded and whose principles it promotes in its external relations with other States.138 The EU also incorporates cultural goals and provides financial and logistical assistance in its development agreements and agreements with candidate and neighbouring countries.139 The Framework Document indicates that there will be a particular emphasis on supporting cultural heritage in future strategic agreements with countries such as Tunisia.140

4.3 Cultural Heritage and Human Rights in EU Law Unlike the ECHR, the CFR includes a number of articles that refer specifically to culture. Article 22 CFR requires the EU to respect ‘cultural, religious and linguistic diversity’,141 while article 25 ‘recognises and respects’ the rights of the elderly to participate in social and cultural life. Other provisions, such as article 21 on non-discrimination, parallel ECHR articles that can be used to protect various cultural manifestations. Though the CFR appears more ‘culturally aware’ than the ECHR, it does not provide a specific individual right to access cultural heritage, save in relation to elderly persons, or to the protection of cultural heritage. The explanatory notes to Article 22 refer to the first 133 Strategy for the 21st Century (n 58). 134 European Commission, ‘Framework Document’ (n 106), notes at p 3 regular exchanges with the CoE. 135 For instance on illegal trafficking: European Commission, ‘Framework Document’ (n 106) 22. 136 See Register of Commission Expert Groups, Cultural Heritage Forum at accessed 28 August 2019. 137 Delia Ferri, EU Participation in the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Some Constitutional Remarks (European Diversity and Autonomy Papers3/2005, EURAC Research, 2005) accessed 28 August 2019. 138 Alison Harcourt, ‘ “Cultural Coalitions” and International Regulatory Co-operation’ (2012) 50(5) Journal of Common Market Studies 709. 139 European Commission, Joint Communication: Towards an EU strategy for international cultural relations, JOIN/2016/029 final; Lilian Richieri Hanania, ‘Trade, Culture and the European Union Cultural Exception’ (2019) 25(5) International Journal of Cultural Policy 568. 140 European Commission, ‘Framework Document’ (n 106) 27–8. 141 John Morijn, ‘The EU Charter of Fundamental Rights and Cultural Diversity in the EU’ in Psychogiopoulou (ed), Cultural Governance (n 115) 151.

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Europe 929 clause of article 3.3 TEU on respect for cultural and linguistic diversity, which thus informs the interpretation of Article 22 under Article 52.7CFR, but not the second clause on safeguarding and enhancing cultural heritage. Moreover, Article 22 CFR is generally considered to establish a principle rather than establish rights.142 The specific gap in ECHR coverage, evident in cases such as Ahunbay v Turkey,143 would appear, therefore, to have been carried over into the CFR. Céline Romainville has, however, suggested that certain cultural rights could form part of the common constitutional traditions of the Member States, which the CJ has held must also be respected in the field of EU law.144 As discussed in Section 4.2, cultural concerns have been accommodated in a number of EU secondary measures, as exemplified by the environmental impact assessment regulations, and, wherever an EU ‘peg’ can be identified, article 167.4 TFEU requires that culture be taken into account, in line with article 3.3 TEU.

5. The CoE and the EU: Friends and Rivals? With the growing confidence of the EU in cultural matters and an extended EU membership, is there a continuing role for the CoE in the field?145 The answer is undoubtedly ‘yes’. The CoE includes a number of strategically important large and small countries that are not EU Member States, thereby enhancing cultural dialogue and the implementation of certain cultural measures.146 Perhaps surprisingly, the instruments available to the CoE have certain advantages. Innovative, if not radical, conventions, such as the Faro and Landscape Conventions, are feasible precisely because States remain free to decide whether or not to become a party. Once in force, however, such conventions can impose significant obligations on States Parties, including the adoption of legal measures and even criminal sanctions; they can also be opened to non-members. Enforcement undoubtedly remains a challenge, though reporting requirements and monitoring procedures impose reputational constraints. Though the EU can engage with cultural matters through the application of treaty articles other than article 167 142 Marie-Claire Foblets and Jan Velaers, ‘Article 22’ in F. Picod and S. Van Drooghenbroeck (eds), Charte des droits fondamentaux de l’Union européenne. Commentaire Article par Article (Bruylant, Brussels 2018) Chapter 22. 143 Ahunbay v Turkey (n 30). 144 Céline Romainville, ‘The Effects of EU Interventions in the Cultural Field on the Respect, the Protection and the Promotion of the Right to Participate in Cultural Life’ in Romainville, European Law (n 100) 191, see also art 6.3 TEU. 145 The question is usually asked the other way round; see Donders, ‘Protection of Cultural Rights in Europe’ (n 66). 146 Countries ratifying, for example, the Faro Convention (n 21) include Armenia, Bosnia and Herzegovina, Georgia, Montenegro, North Macedonia, Norway, Republic of Moldova, Switzerland, and Ukraine.

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930 Rachael Craufurd Smith TFEU, a strategy which affords scope for a high level of coordination and binding legal effect, there is always the risk that such action will be considered politically, if not legally, an abuse of power. By contrast, when acting to realise cultural objectives under article 167 TFEU the EU is prevented from harmonization and limited to ‘soft’ measures. The CoE has been directly involved in the cultural policy field for considerably longer than the EU, enabling it to develop conceptual frameworks, practical procedures, and networks of interested parties that together work to protect and enhance cultural heritage. The EU, however, is comparatively well placed in terms of financial and administrative resources; enjoys a degree of flexibility in deciding whether to address cultural matters within or without the constraints of article 167 TFEU; can engage internationally using a range of trade and cultural cooperation agreements; and is a fast learner—assimilation of ideas from other organizations is in its blood. Despite a history of sometimes difficult relations,147 both the EU and the CoE are committed to collaboration in the cultural field.148 There are many areas, such as the collection of statistical information or inventories of State measures, where duplication can be avoided. In other areas, collaboration can extend coverage, leverage impact, and bring greater authority: it is notable that the EU promoted the Faro principles during the EYCH. The EU and CoE have collaborated on a number of significant cultural projects in the past, such as the Regional Programme on Cultural and Natural Heritage in South East Europe, designed to assist reconciliation in divided communities.149 The common outlook and principles evident in recent cultural policy documents can, and should, form the basis for further meaningful collaboration in the future.

147 Wassenberg, History of CoE (n 11), part 2; see also Russell Johnston, Report: European cultural cooperation: activities of the European Union and relations with the Council of Europe, 7 June 1996, Doc 7575 https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=7514> accessed 28 August 2019. 148 See, European Commission, ‘New Agenda’ (n 112) 9, and ‘Framework Document’ (n 106) 2–3; Council of the EU, ‘Bringing Cultural Heritage to the Fore’ (n 103), para 19. 149 Council of Europe, Ljubljana Process: Rehabilitating Our Common Heritage accessed 28 August 2019.

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Chapter 39

M iddle E ast a n d North A fr ica Morag M. Kersel and Mounir Bouchenaki

1. Introduction Agricultural practices, development, looting, local and regional instability, and conflict are ongoing and pernicious threats to the cultural heritage of the Middle East and North Africa (MENA). In order to safeguard the cultural resources of a region, States often turn to local, national, and international policies and law. Under the auspices of the United Nations Educational, Scientific, and Cultural Organization (UNESCO), a number of international conventions have been promulgated to protect vulnerable sites, monuments, and objects. In his examination of international law and cultural heritage protection, Forrest1 suggests that attempting to ‘provide a normative protective regime for what is a nebulous, subjective, and constantly changing notion is fraught with difficulty’. Here, Forrest is referring primarily to the UNESCO Conventions and Recommendations; what of national legislative efforts to protect and preserve cultural heritage? Is there consensus on who is charged with protection, what is being protected and for whom, the date range for protection, how to protect? What is meant by protection? The following article attempts to answer these questions through the lens of cultural heritage law in nine Middle Eastern and North African countries (Algeria, Egypt, Iraq, Israel, Jordan, Lebanon, Libya, Palestine, and Syria). This piece provides an overview of legislative measures taken to care for cultural items and sites in the region. Intended as a complement to the chapter by Gerstenblith2, this will focus on the situation in the Middle East and North Africa: the similarities and 1 Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010) XIX. 2 See Chapter 9 of this Handbook.

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932 Morag M. Kersel and Mounir Bouchenaki differences in approaching protection of cultural objects and landscapes, with the aim of advocating for greater regional cooperation and interaction on shared issues in threatened cultural heritage. After a brief survey of the development of cultural heritage law in the Middle East and North Africa, this chapter will examine a few of the international conventions embraced by each of the nine countries, with common threats to and interests in the material remains of the past. A major portion of the contribution is dedicated to the domestic laws adopted by individual States to protect the cultural heritage within their national boundaries—laws that are the direct result of earlier colonial legal legacies of the Ottoman Empire, the British and French mandates, and other imperial occupiers. It is not possible to present a detailed discussion of the specific technical aspects of the domestic legislation in each country, so a selection from the MENA (Middle East and North Africa) will be discussed in detail in order to provide a better understanding of how nations in this region care for their national heritage.

2. International Approaches to Protecting the Past In the aftermath of World War II, an outbreak of activity associated with the protection and preservation of cultural heritage was unleashed. Established in 1945, UNESCO became the perceived authority and neutral body associated with all things related to cultural heritage. Its mission to promote ‘collaboration among the nations through education, science and culture’ resulted in a number of international conventions, which are responses to past and emerging dangers posed to global cultural heritage. Each convention addresses a particular aspect of protection but always with the premise of a shared notion of cultural heritage as a common good on which all States Parties agree. The aim of the various conventions is an attempt to build common and universal cultural values relevant to the global population beyond individual States.3 In ratifying the various UNESCO documents, nations tacitly support the idea of common or universal (using the favoured term of UNESCO) heritage, although perhaps not always in agreement on whose heritage is the common element. Ratification of a convention is a public demonstration of caring about culture, at the same time as receiving the imprimatur of the West.4 Not without detractors, UNESCO and the various conventions are often the focus of critiques surrounding Eurocentrism and a 3 J. P. Fishman, ‘Locating the international interest in international cultural property disputes’ (2010) 35 Yale Journal of International Law 347. 4 See Chiara De Cesari, ‘World Heritage and Mosaic Universalism: A View from Palestine’ (2010) 10 Journal of Social Archaeology 299; Lynn M. Meskell, Claudia Liuzza, E. Bertacchini, and D. Saccone, ‘Multilateralism and UNESCO World Heritage: Decision-making, States Parties and Political Processes’ (2015) 5 International Journal of Heritage Studies 423, on UNESCO as a Western invention.

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Middle East and North Africa 933 Western-dominated approach to heritage resources.5 Lostal6 suggests that the staggering number of conventions make little sense to individual States when combined. There is disagreement over the definitions of cultural property and protection, and there are no specific guidelines for safeguarding cultural heritage—all of which leaves States Parties with latitude to interpret the various conventions to suit their needs and aims. Forrest7 implies the adoption of various conventions has morphed from a standard regime designed to protect physical manifestations of culture to an emphasis on international cooperation coordinated under the auspices of UNESCO. According to Forrest, effective oversight of cultural heritage requires a number of actors working cooperatively, with UNESCO as the neutral overseer and mediator.8 Massive destruction of cultural heritage during World War II led to the adoption of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention)9 and the First Protocol.10 This Convention established the idea that damage to any cultural property implied ‘damage to the cultural heritage of all mankind’.11 The 1954 Hague Convention is a potential protection mechanism of cultural heritage during times of armed conflict. Enforcement of the principles of the Convention is based on States having ratified the Convention and then adhering to its ideology during armed conflict and occupation. The Second Protocol,12 adopted in 1999, is intended to supplement the provisions of the original 1954 Hague Convention and to reinforce its implementation. However, many nations have not ratified the Second Protocol, which specifically addresses the issue of archaeological fieldwork by an occupying nation. In 1970 UNESCO adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transport of Ownership of Cultural 5 See Lyndel V. Prott, ‘The International Movement of Cultural Objects’ (2005) 12 International Journal of Cultural Property 225; Michael Di Giovine, The Heritage-scape: U.N.E.S.C.O., World Heritage, and Tourism (Lexington Books 2008); Chiara De Cesari, ‘Creative Heritage: Palestinian Heritage NGOs and Defiant Arts of Government’ (2010) 112 American Anthropologist 625; Poul Duedahl, ‘Selling Mankind: UNESCO and the Invention of Global History, 1945–76’ (2011) 22 Journal of World History 101; Lynn M. Meskell, A Future in Ruins: UNESCO, World Heritage, and the Dream of Peace (Oxford University Press 2018). 6 Marina Lostal, ‘Challenges and Opportunities of the Current Legal Design for the Protection of Cultural Heritage during Armed Conflict’, paper presented at Cultural Heritage in Times of Risk: Challenges and Opportunities, Yildiz Technical University, Istanbul, Turkey, 15–17 November 2012. 7 Forrest, International Law (n 1) 17. 8 Ibid, 18. 9 Convention for the Protection of Cultural Property in the Event of Armed Conflict (opened for signature 14 May 1954 and entered into force on 7 August 1956), 249 UNTS 215 (hereafter ‘1954 Hague Convention’). 10 Protocol for the Protection of Cultural Property in the Event of Armed Conflict (opened for signature 14 May 1954, entered into force 7 Aug 1956) 249 UNTS 358. See also Patty Gerstenblith, ‘Beyond the 1954 Hague Convention’ in Robert Albro and Bill Ivey (eds), Cultural Awareness in the Military: Developments and Implications for Future Humanitarian Cooperation (Macmillan 2014) 83. 11 Preamble, 1954 Hague Convention. 12 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (opened for signature 17 May 1999, entered into force 3 September 2004) 2253 UNTS 172.

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934 Morag M. Kersel and Mounir Bouchenaki Property13 (1970 UNESCO Convention), a convention intended to stem the flow of looted antiquities from archaeologically rich nations to art-importing nations. The 1970 UNESCO Convention encourages cooperation among nations to prevent the illicit import and export of cultural property across borders. Most of the responsibility for controlling the illegal movement of cultural property is placed on the States from which the material originates. The 1970 UNESCO Convention recommends the development of an export certification programme to help control the flow of cultural property and to provide an authenticated provenance for the object. The 1970 UNESCO Convention was signed on 14 November 1970 and came into effect on 24 April 1972.14 In postcolonial MENA, nation states began adopting the 1970 UNESCO Convention with the aim of protecting their cultural resources and at the same time asserting themselves as legitimate States who care about culture. UNESCO efforts were also aimed at fostering greater parity between nations, with the intention of eliminating or at least ameliorating colonial legacies of inequality and misappropriation.

Table 39.1 Dates of MENA States Parties ratification or accession to the 1954 Hague and 1970 UNESCO Conventions State

Statehood

1954 Hague15

1st Protocol16

2nd Protocol17

1970 UNESCO18

2005

1973

Algeria

1962

Egypt

1922

1955

1955

1974

Iraq

1931

1967

1967

Israel

1948

1957

1958

1973

Jordan

1946

1957

1957

Lebanon

1943

1960

1960

Libya

1951

1957

1957

2001

1973

Palestine

1988/2012

2012

2012

2012

2012

Syria

1946

1958

1958

19

2009

1974 1992

1975

13 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transport of Ownership of Cultural Property (opened for signature 14 November 1970, entered into force 24 April 1972) 823 UNTS 231 (hereafter ‘1970 UNESCO Convention’). 14 For a detailed discussion of the 1970 UNESCO Convention, see Chapter 9 of this Handbook. 15 The Convention entered into force on 7 August 1956, in accordance with art 33. 16 The First Protocol entered into force on 7 August 1956, in accordance with art 10. 17 The Second Protocol entered into force on 9 March 2004, in accordance with art 43.1. 18 This Convention entered into force on 24 April 1972. 19 Palestine was declared a State by the Palestine Liberation Organization in 1988. It was admitted to UNESCO as its 195th State on 31 October 2011. On 29 November 2012, the United Nations General Assembly adopted resolution 67/19 upgrading Palestine to non-member observer State status in the United Nations. UNGA, 29 November 2012; Resolution 67/19. Status of Palestine in the United Nations (Doc No A/RES/67/19).

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Middle East and North Africa 935

3. National Legislative Approaches After World War I, in the fading days of the Ottoman Empire, the region comprising modern Iraq, Israel, Jordan, Lebanon, Palestine, and Syria was divided under the mandate system of French and British control, sanctioned by the new League of Nations. With a stated aim of not annexing territory, the mandate system made governing countries trustees until such time the locals were deemed ready for independence. In accordance with the Sykes-Picot Agreement of 1916, in the early 1920s France was assigned the League of Nations mandate of Syria, which included the territory of present-day Lebanon and Syria.20 The Mandate for Palestine included British administration of the territories of Palestine (modern Israel and Palestine) and Transjordan (modern Jordan).21 The draft mandate for Mesopotamia (modern Iraq) intended for the region to fall under British oversight, but a regional revolt in 1920 led to the establishment of the Kingdom of Iraq in 1920, which gained independence in 1931.22 Loosely ruled by the Ottomans, the Mediterranean region of Algeria was taken over by France in 1848 until its independence in 1962. A part of the Ottoman Empire since the sixteenth century, Libya was seized by the Italians in 1911–12 until 1942 when the region was divided between the French, who administered Fezzan, and the British, who controlled Cyrenaica and Tripolitania.23 In 1951 Libya gained independence. Egypt, once a part of the Ottoman Empire, was also governed for short periods by the French and British, until 1922 when it was established as an independent State.24 In their initial days of statehood, most postcolonial entities did not alter the basic institutional arrangements of colonial law and administration.25 In the Middle East and North Africa this resulted in the adoption of laws and policies related to the protection and preservation of cultural heritage, which included elements from earlier Ottoman laws and by-laws, British and French Mandatory laws and ordinances, and the legislative 20 Idir Ouahes, Syria and Lebanon Under the French Mandate: Cultural Imperialism and the Workings of Empire (I. B. Taurus 2018); American Journal of International Law 17(3) Supplement: Official Documents (July 1923) 177–82. 21 Shimon Gibson, ‘British Archaeological Institutions in Mandatory Palestine, 1917–1948’ (1999) 131 Palestine Exploration Quarterly 115; Morag M. Kersel, ‘License to Sell: The Legal Trade of Antiquities in Israel’ (PhD dissertation, University of Cambridge 2006); Elena Dodge Corbett, Competitive Archaeology in Jordan: Narrating Identity from the Ottomans to the Hashemites (University of Texas Press 2014). 22 James F. Goode, Negotiating for the Past: Archaeology, Nationalism, and Diplomacy in the Middle East, 1919–1941 (University of Texas Press 2007). 23 Massimiliano Munzi and Andrea Zocchi, ‘The Lepcitanian Territory: Cultural Heritage in Danger in War and Peace’ (2017) 48 Libyan Studies 51. 24 Donald Reid,Whose Pharaohs? Archaeology, Museums, and Egyptian National Identity from Napoleon to World War I (University of California Press 2002); Elliot Colla, Conflicted Antiquities: Egyptology, Egyptomania, Egyptian Modernity (Duke University Press 2007). 25 Nandini Chatterjee and Lakshmi Subramanian, ‘Law and the Spaces of Empire: Introduction to the Special Issue’ (2014) 15 Journal of Colonialism and Colonial History 1.

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936 Morag M. Kersel and Mounir Bouchenaki efforts of the colonial powers of France and Italy.26 Increasing foreign archaeological interest in the area, the excavation of some high-profile sites and monuments, and the looting of archaeological material from the Ottoman Empire resulted in a sequence of laws (1869, 1874, 1884, 1906)27 related to cultural heritage protection and preservation. Prior to 1869, all governance of cultural heritage in the Ottoman Empire was based on Islamic law and local jurisprudence. The 1869 Turkish By-law on Antiquities (Asar-ı Atika Nizam-namesi) provided the first formalized ‘procedural and legal structure to regulate search, extraction, possession, and preservation of antiquities’.28 It is this law that provides the basic tenets of what constitutes a thorough law governing cultural heritage, and many of these legal elements appear in current legislative efforts.

3.1 Elements of National Cultural Heritage Legislation? The intent of such legislation is to preserve and protect cultural heritage for the benefit of the common good (writ large, internationally, or writ small, nationally) and to mitigate negative impact on these resources.29 Typically, national laws aimed at protecting cultural heritage resources begin with a definition of movable and immovable tangible heritage including a date range for what qualifies as an antiquity. These legislative efforts, which usually vest the ownership of the national patrimony30 in the State, outline provisions for governmental oversight (the responsible authorities and their duties of care).

26 Magnus Bernhardsson, Reclaiming a Plundered Past: Archaeology and Nation Building in Modern Iraq (University of Texas Press 2005); Goode, Negotiating for the Past (n 22); Morag M. Kersel, ‘The Trade in Palestinian Antiquities’ (2008) 33 Jerusalem Quarterly 21; Morag M. Kersel, ‘The Changing Legal Landscape for Middle Eastern Archaeology in the Colonial Era, 1800–1930’ in G. Emberling (ed), Pioneers to the Past: American Archaeologists in the Middle East, 1919–1920 (Oriental Institute 2010) 85–90; Morag M. Kersel, ‘Itinerant Objects: The Legal Lives of Levantine Artifacts’ in A. Yasur-Landau, E. H. Cline, and Y. M. Rowan (eds), The Social Archaeology of the Levant (Cambridge University Press 2019) 594–612. 27 Wendy M. K. Shaw, Possessors and Possessed: Museums, Archaeology, and the Visualization of History in the Late Ottoman Empire (University of California Press 2003); Kersel, ‘The Trade in Palestinian Antiquities’ (n 26); Kersel, ‘The Changing Legal Landscape’ (n 26); S. Özel, ‘Under the Turkish Blanket Legislation: The Recovery of Cultural Property Removed from Turkey’ (2010) 38 International Journal of Legal Information 177; Z. Çelik, About Antiquities: Politics of Archaeology in the Ottoman Empire (University of Texas Press 2016); E. Eldem, ‘From Blissful Indifference to Anguished Concern: Ottoman Perceptions of Antiquities, 1799–1869’ in Z. Bahrani, Z. Çelik, and E. Eldem (eds), Scramble for the Past: A Story of Archaeology in the Ottoman Empire, 1753–1914 (SALT 2011) 281–330; Corbett, Competitive Archaeology in Jordan (n 21); Goode, Negotiating for the Past (n 22); Bernhardsson, Reclaiming a Plundered Past (n 26); Reid, Whose Pharaohs? (n 24). 28 Eldem, ‘From Blissful Indifference to Anguished Concern’ (n 27) 314. 29 Patty Gerstenblith, ‘Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past’ (2007) 8 Chicago Journal of International Law 167, 170–4; Simon Mackenzie, ‘Conditions for Guilt-Free Consumption in a Transnational Criminal Market’ (2014) 20 European Journal of Criminal Policy and Research 503. 30 The definition of ‘patrimony’ (from the Latin patrimonium, from patr-, pater father) is ‘property inherited from one’s father or passed down from one’s ancestors; an inheritance’ (Oxford English Dictionary). Cultural patrimony often implies that an artefact is of significance to a particular civilization

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Middle East and North Africa 937 Characteristic elements of such laws also contain an inventory mechanism, guidelines for archaeological excavations and surveys, a framework for import and export of cultural property, and a list of penalties for crimes against cultural heritage. Building upon and updating the earlier work of Irsheid31 and Fraoua,32 the following is a summary of the national cultural heritage laws from nine Middle Eastern and North African countries.33 This list includes Israel as its provision for a legal trade in antiqui ties, which are sold in State-licensed shops and which pre-date 1978,34 provides a venue for looted material from the surrounding nations to be laundered and then legally sold.35 At the same time a source, transit (both geographically advantaged and art market), and destination nation as defined by Prott and O’Keefe,36 Israel facilitates the movement of illegally obtained material from the area.37 Current tensions in the MENA region and Israel’s failure to ratify the 1970 UNESCO Convention38 further complicate any effort to protect cultural heritage collaboratively. Also included in this consider ation is Palestine, who, after gaining UNESCO recognition as a Member State in 2011,39 ratified many of the UNESCO conventions and enacted national legislation, DecreeLaw No 11 About Tangible Cultural Heritage in 2018. and is the inalienable birthright of its descendants. Lisa Borodkin, ‘The Economics of Antiquities Looting and a Proposed Legal Alternative’ (1995) 95 Columbia Law Review 377, 380 n 14. Synonyms for ‘cultural patrimony’ include ‘cultural property’, ‘antiquities’, ‘cultural heritage’, and ‘archaeological material’. These terms are often used interchangeably, but the use of a specific term can also denote a particular political stance. There are no universally accepted definitions of cultural heritage, and many of the definitions used in local, national, and international legal conventions are divergent and contradictory. The reference to cultural heritage in this work embodies some feature of a group’s cultural identity illustrating the group’s customs, practices, or beliefs. Cultural heritage helps to foster and to reinforce the shared values of the group. See Lyndell V. Prott and Patrick O’Keefe, Law and Cultural Heritage: Movement (Butterworths 1989). And cultural heritage should be understood in its original context in order to fully comprehend its meanings and associations. Under some definitions, cultural heritage can be anything from the intangible to the tangible, but for present purposes this work will focus on mainly archaeological artefacts and will endeavour to use the term cultural heritage consistently throughout this work. National ownership laws are those laws that vest the ownership of archaeological objects, usually not yet excavated or discovered, in the nation. 31 Christine Irsheid, ‘The Protection of Cultural Property in the Arab World’ (1997) 6 International Journal of Cultural Property 11. 32 Ridha Fraoua, ‘Legislative and Institutional Measures to Combat Trafficking in Cultural Property in Arab States’ Second Meeting of States Parties to the 1970 Convention, UNESCO Headquarters, Paris, 20–21 June 2012 accessed 26 June 2019. 33 Algeria, Egypt, Iraq, Israel, Jordan, Lebanon, Libya, Palestine, and Syria. 34 Israel Antiquities Law 5378–1978 (hereafter ‘Israeli Antiquities Law’), Chapter 4 and Amendment 2002. 35 See Kersel, ‘License to Sell’ (n 21); Kersel, ‘Itinerant Objects’ 2019 (n 26); Eitan Klein, ‘Illicit Trafficking of Antiquities and the Antiquities Dealers: The Israel Experience’ in Proceedings of the 3rd International Conference of Experts on the Return of Cultural Property (Athens 2014); Eitan Klein and Ilan Hadad, ‘Israel’s response to the threats facing cultural heritage’ (2019) 88 WCO News 60. 36 Prott and O’Keefe, Law and Cultural Heritage (n 30). 37 See Kersel, ‘The Trade in Palestinian Antiquities’ 2008 (n 26); Klein and Hadad, ‘Israel’s response to the threats facing cultural heritage’ (n 35). 38 See Table 1. 39 See n 19.

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938 Morag M. Kersel and Mounir Bouchenaki

Table 39.2 A brief overview of the current national cultural heritage legislation of nine MENA States State

Nation

Current National Legislation

Government Oversight

Date of Antiquity

Definition of Cultural Property

Algeria

1962

Law No 98-04 of 15 June 1989 on the Protection of the Cultural Heritage Law No 90-30 of 1 December 1990 Executive Decree No 05-79 of 2005

The Ministry of Culture

Older than 250 years

The national cultural patrimony consists of all immovable cultural goods, those immovable by destination, and those movables existing on and within the ground of structures within the national domain, belonging to individuals by private right, or found underneath waters, that have been left by the different civilizations which have succeeded from prehistoric times to the present day (art 2).

Egypt

1922

Law No 117 of 1983 on Antiquities Protection Amended by Law No 3 of 2010 Promulgating the Antiquities’ Protection Law

The Ministry of Antiquities

Older than 100 years

The product of Egyptian civilization or the successive civilizations or the creation of art, sciences, literature, or religions that took place in the Egyptians lands since the prehistoric ages and during the successive historic ages till before 100 years (art 1).

Iraq

1931

Law No 55 of 2002 for the Antiquities & Heritage of Iraq

The Ministry of Tourism and Antiquities State Board of Antiquity and Heritage

Older than 200 years

The movable and immovable property which has been built, made, carved, produced, written, or painted by man, those age of which is not less than 200 years, as well as the man and animal skeletons besides the plants remains (art 4: 7–10).

Israel

1948

Antiquities Law 5738-1978 Antiquities Authority Law 5749-1989 Amendments 2002

The Ministry of Culture and Sport, Israel Antiquities Authority

1700

Any object, whether detached or fixed, which was made by man before the year 1700 of the general era, and includes anything subsequently added thereto which forms an integral part thereof (Ch. 1).

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Middle East and North Africa 939

Jordan

1946

Law No 24 1934 Law No 21 1988 Amending Law No 23 2004 Regulations for Archaeological Projects in Jordan based on the provisions of the Jordanian Antiquities Law No 21 for the year 1988 and its amendments, 2016

The Ministry of Tourism and Antiquities Department of Antiquities

1750

(a) Any movable or immovable object which was made, written, inscribed, built, discovered or modified by a human being before the year ad 1750 including caves, sculpture, coins, pottery, manuscripts and other kinds of manufactured products which indicate the beginning and development of science, arts, handicrafts, religions, traditions of previous civilizations, or any part added to that thing or rebuilt after that date; (b) Any movable or immovable object as provided for in Clause ‘a’ of this definition which dates back after AD 1750 and which the Minister requests to be considered an antiquity by a decision published in the Official Gazette; (c) Human, animal and plant remains which date back before AD 600 (art 2.7).

Lebanon

1943

The Regulation on Antiquities, Arrêté No 166 (1933) Law No 37, (2008) Decree No 3065

The Ministry of Culture The Directorate General of Antiquities

1700

The 1933 law defines antiquities as ‘all the products of human activities, belonging to any civilization, dating to before 1700’ (art 1). Also considered as antiquities are immovables that date after 1700 and whose conservation is of public interest from the perspective of history and art and that are listed on the General Inventory of Historic Monuments (art 1). (continued)

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940 Morag M. Kersel and Mounir Bouchenaki

Table 39.2 Continued State

Nation

Current National Legislation

Government Oversight

Date of Antiquity

Definition of Cultural Property

Libya

1951

Law Number 3 of 1994 (1424 PD).

Ministry of Tourism The Department of Antiquities

Older than 100 years40

Anything that was created by a human, or that was produced by a human that has a relationship to the human heritage and dates back more than one hundred years (art 1).

Palestine

2012

Decree-Law No 11 About Tangible cultural heritage (enacted 2018)41

Ministry of Tourism and Antiquities Palestinian Department of Antiquities and Cultural Heritage

Anything before 1917

Any movable or immovable object, located on the surface or underground, or submerged in water in whole or in part, before the year 1917, or to more recent date accordance with the provision of this decree by law. (art 1)

Syria

1946

Decree-Law No 222 on the Treatment of Antiquities in the Syrian Arab Republic, 1963 Law No1, 1997

Ministry of Culture, Directorate General of Antiquities and Museums (DGAM)

Older than 200 years

Antiquities are movable and immovable properties which were built, manufactured, produced, written or drawn by humankind, and date back to at least two hundred Christian years or two hundred and six Hejira years. The Antiquities Higher Commission, by a ministerial Decree, is entitled to include all movable and immovable properties belonging to a later date and consider them as antiquities once these monuments are proven to be of a historical, artistic or national characteristic (art 1).

40 Manuscripts and archives are included in the law’s protections if they are older than fifty years. 41 The new Palestine Decree-Law No 11 of 2018 (hereafter ‘Palestinian Antiquities Law’) supersedes the previous Provisional Law on Antiquities No 51 (1966) and its amendments (which was in force in the northern governorates) and Law on Antiquities (Title V) (1929) and its amendments (which was in force in the southern governorates). It provides a comprehensive set of provisions on the protection, management, and promotion of Palestinian tangible cultural heritage. Joint Statement the Palestinian Ministry of Tourism and Antiquities (MoTA) and UNESCO on the Decree Law on the Palestinian Tangible Cultural Heritage (3 June 2018) accessed 23 June 2019.

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Middle East and North Africa 941

3.1.1 Government Oversight In their national cultural heritage legislation, each State identifies the governmental authority responsible for the protection and preservation of archaeological objects, sites, and landscapes. For most of these nations, establishing a governmental structure finds its origins in the earlier Ottoman laws and decrees42 and Mandate ordinances and legislation.43 In Algeria, Executive Decree No 05-79 of 2005 establishes the role of the Ministry of Culture, which is responsible for all aspects of the cultural domain within the national political sphere and assures vigorous enforcement of the laws and regulations. The Supreme Council of Antiquities, a department within the Egyptian Ministry of Culture, was once charged with these duties until it became an independent ministry, the Ministry of Antiquities44 (MoA), in January of 2011. Reporting to the Ministry of Culture are governmental units dedicated to safeguarding cultural heritage. In Libya, the Department of Antiquities (DoA)45 is the primary entity responsible for the protection, study, and management of Libya’s cultural resources. It was established by the Italian colonial administration along similar lines to the Italian system of regional Soprintendenze delle Antiquità and operates within the framework of the same legislation that was established in Italy by Mussolini in 1939.46 The Directorate General of Antiquities (DGA) in Lebanon focuses specifically on cultural heritage matters, as do the Israel Antiquities Authority (IAA), the Iraqi State Board of Antiquity and Heritage (SBAH), the Department of Antiquities in Jordan (DoA), the Directorate General of Antiquities and Museums in Syria (DGAM), and the Palestinian Department of Antiquities and Cultural Heritage (DACH). In 1989 a separate law47 was enacted in Israel to establish the organization responsible for all the antiquities of the country, including underwater finds. In addition to safeguarding heritage, many of these entities are authorized to excavate, curate, exhibit, and administrate antiquities when necessary. Within the various units are special divisions dedicated to particular aspects of cultural heritage protection. Some of these special units act in advisory capacity and comprise members with expertise in archaeology, anthropology, law, architecture, and all things related to cultural heritage management and protection. The Archaeological Collection Administration of Egypt inspects and registers all antiquities in the

42 See Çelik, About Antiquities (n 27); Eldem, ‘From Blissful Indifference to Anguished Concern’ (n 27); Özel, ‘Under the Turkish Blanket Legislation’ (n 27). 43 Corbett, Competitive Archaeology in Jordan (n 21); Gibson, ‘British Archaeological Institutions’ (n 21); Kersel ‘License to Sell’ (n 21). 44 The Egyptian Ministry of Antiquities, accessed 23 June 2019. 45 Chiara Dezzi Bardeschi and William Raynolds. Libya Cultural Profile. Rep N.p. (UNESCO 2012). 46 Munzi and Zocchi, ‘The Lepcitanian Territory’ (n 23). 47 Antiquities Authority Law 5749–1989 (Israel).

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942 Morag M. Kersel and Mounir Bouchenaki ossession of the general public. The Artistic Committee of Iraq is responsible for p the following: 1. Determining whether the antiquity or heritage property [is] a fake or not. 2. Making an evaluation (a reward) of the materials prescribed in item 1 of this article, according to the market prices, which shall not be less than the intrinsic value if they were made of gold, silver or precious stone. 3. Evaluating a compensation for the reparation for the damage sustained on the antiquity (monument) or any antiquity and heritage artefact. 4. Deciding the sum of a reward to whoever discovers or reports any antiquity.48 The Archaeological Council of Israel advises ‘on matters of archaeology and antiquities,’49 including reviewing requests for permission to excavate and survey and adjudicating grievances brought against the Israel Antiquities Authority regarding land appropriation and notifications that an antiquity in the possession of a collector is of special status and may be acquired by the State.50 The newly formed (2018) Palestinian Advisory Council for Cultural Heritage includes a thirteen-member panel with representatives from the Ministry of Tourism and Antiquities, local government, the Ministry of Awqaf and Religious Affairs, the Land and Environmental Authorities, representatives from academic institutions, and experienced representatives from civil society organizations working in the field of heritage.51 This body advises on a strategic plan for heritage management, on World Heritage nominations, and on guidelines for conservation, protection, management and development, and it forms specialized committees, when required, to carry out the specific tasks related to cultural heritage.52

3.1.2 Definition of Cultural Property and Date Notoriously difficult to define,53 it is the later 1970 UNESCO Convention definition of cultural property ‘something 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’54 that appears in the national legislative efforts of the nine countries under review. The legislation of Algeria,55 Egypt,56 Iraq,57 48 Iraq Law No 55 of 2002 (hereafter ‘Iraqi Antiquities Law’), art 49. 49 Israeli Antiquities Law (n 34), Chapter 9: Archaeological Council and Objection Committee. 50 Ibid (n 34), Chapter 9(7). 51 Palestinian Antiquities Law (n 41), art 10:A–G. 52 Ibid (n 41), art 11:1–7 2. 53 Marina Vecco, ‘A Definition of Cultural Heritage: From the Tangible to the Intangible’ (2010) 11 Journal of Cultural Heritage 324. 54 1970 UNESCO Convention, art 1, which includes a list of categories of cultural property; art 4(a). 55 Algeria Law No 98–04 of 1989 (hereafter ‘Algerian Antiquities Law’). 56 Egypt Law No 117 of 1983 was amended by Law No 3 of 2010 (hereafter ‘Egyptian Antiquities Law’). According to Fraoua, ‘Legislative and Institutional Measures’ (n 32) 4 n 26, ‘[t]he latter does not make any change to terminology or to the definition in art 1 of the 1983 law’. 57 Iraqi Antiquities Law (n 48).

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Middle East and North Africa 943 Israel,58 Jordan,59 Lebanon,60 Libya,61 Palestine,62 and Syria63 all use the classic definition of movable and immovable, using terms like ‘cultural patrimony’, ‘cultural property’, ‘created’, ‘manufactured’, ‘produced’, ‘written’, ‘drawn by humankind’, and ‘left by earlier civilizations’.64 The dates of movable and immovable items range from fixed dates such as 191765 to older than 100 years66, 67 or 200 years.68 Many of the laws include detailed lists of cultural property. According to article 3 of Law No 98-04 of 1989 in Algeria, cultural goods include immovable and movable cultural goods that have been left by the different civilizations which have succeeded from prehistoric times to the present day. More specifically, immovable cultural goods include historical monuments, archaeological sites, and rural and urban landscapes.69 Movable cultural goods include the products of archaeological exploration and research on the ground and underwater; antiquities, such as tools, ceramics, inscriptions, coins, weapons, and funerary remains; architectural elements taken from historic sites; cultural objects connected to religion, history of science and technology, and history of social, economic and political evolution; objects of artistic interest, such as hand-made paintings and drawings, statues and sculptures, artistic works made of glass, ceramic, metal or wood; manuscripts and incunabula, books, and documents or publications of special interest; objects of numismatic interest (medallions and coins) or philately; and archival documents, maps and other cartographic materials, photographs, cinematographic films, sound recordings and machine-readable documents.70

Contained in the definition in some of the laws are the results of archaeological investigations, as well as human, animal, and plant remains and items of scientific importance to anthropology and ethnology.71 In Palestine items of cultural, economic, and natural significance dated after 1917 can also be defined as cultural heritage if they are deemed as significant under the following categories:

1. Cultural significance: historical, rare, aesthetic, artistic, social, scientific, religious, architectural, spiritual, symbolic, representative and interactive for cultural heritage for the present and coming generation.

58 Israeli Antiquities Law (n 34). 59 Jordan Law No 21 1988 and 2004 and 2016 Amendments (hereafter ‘Jordanian Antiquities Law’). 60 Lebanon Law No 37 of 2008 (based on No 166 of 1933) (hereafter ‘Lebanese Antiquities Law’). 61 Libya Law No 3 of 1994 (hereafter ‘Libyan Antiquities Law’). 62 Palestinian Antiquities Law (n 41). 63 Syria Decree-Law No 222 1963 and Law No 1 1997 (hereafter ‘Syrian Antiquities Law’). 64 See Table 2 for detailed definitions. 65 Palestinian Antiquities Law (n 41), art 1. 66 Egyptian Antiquities Law (n 55), art 1; Libyan Antiquities Law (n 60), art 1. 67 Manuscripts and archives are included in the Libyan antiquities law if they are older than fifty years (Libyan Antiquities Law (n 61), art 2). 68 Syrian Antiquities Law (n 63). 69 Algerian Antiquities Law (n 55), art 8. 70 Ibid, art 51. 71 Jordanian Antiquities Law (n 59), art 2.7; Lebanese Antiquities Law (n 60), art 2A(b).

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944 Morag M. Kersel and Mounir Bouchenaki

2. Economic significance: values associated with the direct and indirect economic effects for the cultural heritage and constitute a national resource that contributes to the support and development of the local and national economy. 3. Natural significance: values associated with the heritage, and considered part of its environment, components and cultural and natural scene.72

3.1.3 Ownership and Transfer of Cultural Objects There are detailed provisions in the legislation of each of the nine countries regarding ownership of cultural objects. According to Fraoua:73 ‘Public ownership of movable cultural objects is generally assumed, except in the cases of property held in waq fs,74 and property of which natural persons or private law corporations claim to be owners and can prove their ownership rights.’75 There are three elements related to ownership that are common to almost all of the laws examined: a provision for State ownership; a duty to report chance finds to the relevant authority; and those legally entitled to own cultural materials must register their collection, and if the items are transferred there is an obligation to inform government agencies of the transfer.76 In the laws of each of the nine nations under consideration, the terms property of the State77 or public property78 appear, indicating that after the relevant law came into force, all items found on private or public land, whether discovered accidentally or not, are the property of the State. There is a duty to report any such accidental finds of sites and objects in many of the laws.79 In Israel, ‘[p]rivate persons and public authorities are also under a duty to report to the Director of the IAA the discovery of any antiquity site and a person who alleges that any antiquity was discovered or found before the coming into force of this Law shall bear the onus of proof ’.80 In some instances there is a legal stipulation for government compensation for both the taking of lands for excavation purposes or for the recovery of artefacts. In Jordan, ‘[a]ny person who accidentally discovers any antiquities must report the discovery within ten days; the Director may pay an appropriate cash reward to the discoverer’.81 Under article 12 of the Lebanese law of 1933, ‘[t]he person who discovers movable antiquities by chance must report them to the government, which has the right to acquire the antiquity, the price for which is set through 72 Palestinian Antiquities Law (n 41), art 4B: 1–3. 73 Fraoua, ‘Legislative and Institutional Measures’ (n 32) 5. 74 A waqf is an Islamic religious trust for controlling and managing religious properties and cultural heritage. 75 See for example Egyptian Antiquities Law (n 56), art 6; Iraqi Antiquities Law (n 48), art 10; Lebanese Antiquities Law (n 60), art 5 para 2; Syrian Antiquities Law (n 63), art 4. 76 Algerian Antiquities Law (n 55), art 61. 77 Algeria, Iraq, Israel, Jordan, Lebanon, Palestine, and Syria. 78 Egypt and Libya. 79 Algerian Antiquities Law (n 55), art 61; Egyptian Antiquities Law (n 56), art 23; Israeli Antiquities Law (n 34), Chap 1 § 2; Iraqi Antiquities Law (n 48), art 12; Jordanian Antiquities Law (n 59), art 15; Lebanese Antiquities Law (n 60), art 12; Libyan Antiquities Law (n 61), art 28; Palestinian Antiquities Law (n 41), art 72; and Syrian Antiquities Law (n 63), art 36. 80 Israeli Antiquities Law (n 34), Chap 1 § 2(a–b). 81 Jordanian Antiquities Law (n 59), art 8a.

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Middle East and North Africa 945 negotiation between the government and the finder. If the government does not choose to acquire the antiquity, then it becomes the property of the discoverer.’82 Elements of law regarding the private ownership of collections includes grandfathering in collections that predate the establishment of the law,83 proof of ownership,84 and responsibilities of ownership.85 Most private collectors are required to register86 their collection with the relevant governmental agency. In Jordan movable antiquities are subject to a private right of possession but not to private ownership, and a possessor must provide the Department of Antiquities a list of movable antiquities with a description and accompanying photographs.87 In the 2002 Amendment to the Antiquities Law of Israel a collection is defined as more than fifteen pieces and must be registered with the IAA.88 In 2016, Lebanon adopted Decree Number 3065, under which private collect ors must register their collections with the DGA.89 Once registered the archaeological objects are considered owned by the individuals ‘and the receipt granted in return of such a declaration is an official evidence revealing such an ownership’.90 The public acknowledgement and registration of private collections in Lebanon resulted in the recent opening of the Nabu Museum showcasing the now-registered private collections of Fida Jdeed, Badr El-Hage, and Jawad Adra’, who purchased much of the material on display from auction houses in London, New York, and Paris.91 Included in the corpus are approximately 100 clay tablets supposedly from the site of Irisagrig in the central part of Iraq. The region has been subject to ongoing looting, raising questions about the display of plundered materials and calling into question ethical issues with the registration process in the 2016 Decree.92 In most provisions any archaeological items in a private collection that have not been declared may be seized by the State as items deemed of national importance. Transfer of ownership is prohibited in most instances without prior governmental approval.93 In Jordan this also applies to cultural property originating from outside the Kingdom. According to article 5c, ‘Cultural property originating from outside the Kingdom may be privately owned and collected so long as this is permitted under the legislation of the country of origin.’94 There is also a prohibition for Jordan to act as a transit nation in the movement of antiquities, unless it is proved in writing that possession 82 Lebanese Antiquities Law (n 60), art 12. 83 Libyan Antiquities Law (n 61), art 5. 84 Palestinian Antiquities Law (n 41), Ch. 5 art 5.1; Syrian Antiquities Law (n 63), art 4A. 85 Egyptian Antiquities Law (n 56), art 8; Syrian Antiquities Law (n 63), art 32. 86 Syrian Antiquities Law (n 62), art 4B. 87 Jordanian Antiquities Law (n 59), art 7. 88 Israeli Antiquities Law (n 34). 89 Lebanon Decree No 3065 of 2016. 90 Ibid, art 4. 91 Lizzie Porter, ‘Lebanon Celebrates 2,000 Years of Creativity with New Nabu Museum’ The National (14 October 2018) accessed 13 June 2019. 92 Owen Jarus, ‘Lost City of Irisagrig Comes to Life in Ancient Stolen Tablets’ Live Science (30 May 2018) accessed 14 June 2019; Abdul-Salam Subhi Taha, ‘A New Museum in Lebanon Raises Questions About Archaeological Looting’ Al-Fanar Media (31 May 2019) accessed 14 June 2019. 93 Syrian Antiquities Law (n 63), art 34.1. 94 Jordanian Antiquities Law (n 59), art 5c.

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946 Morag M. Kersel and Mounir Bouchenaki of the antiquities is legal.95 Under the Law No 3 of 2010 in Egypt anyone who has taken possession of an antiquity must inform the Ministry of Antiquities with six months.96

3.1.4 Inventories and Records Inventories are a requirement of effective heritage management. The registration of both movable and immovable cultural property is necessary for the purposes of identifying and managing cultural heritage of a region, additionally providing documentation in the event of a legal proceeding.97 As such, many of the laws of the nine nations prescribe inventories and classification methods and stipulate the legal effects of both.98 In add ition to the registration of private collection (see Section 3.1.3), each of the countries also requires a national inventory of its cultural resources. In order to keep accurate records, inventories should include a description, a photograph, and more recently a bar code99 in order to tighten security measures to prevent the replacement of genuine artefacts with fakes. In 2016, it was discovered that 400 of the 401 ancient gold and silver coins on display in the Jordan Archaeological Museum on the Amman Citadel had been stolen and fakes put in their place.100 As a result, greater emphasis has been placed on the documentation of museum collections in Jordan.101 The ‘Protection of Cultural Heritage in Jordan’—a joint project among the Jordan Archaeological Museum, the German Protestant Institute of Archaeology, the DoA, and the Gerda Henkel Foundation—aims to document the collections in the Jordan Archaeological Museum and to train museum staff on inventory and recording methods and procedures.102 This project will digitize and inventory objects, install cameras and alarm systems, and design a computerized database to meet national and international standards as well as the requirements of Interpol. There is also a database list of confiscated objects from government agencies.103 The goal of the documentation is to provide historical and cultural information and also 95 Ibid, art 5g. 96 Egyptian Antiquities Law (n 56), art 8. 97 Fraoua, ‘Legislative and Institutional Measures’ (n 32) 6. 98 See, for example, Algerian Antiquities Law (n 55), arts 10–40, 50–66; Egyptian Antiquities Law (n 56), arts 12–14 and 26; Iraqi Antiquities Law (n 48), art 5.1; Lebanese Antiquities Law (n 60), arts 20 to 46; Palestinian Antiquities Law (n 41), arts 6.3.3. 99 Egyptian Antiquities Law (n 56). 100 Raed Omari, ‘Ancient Coins Were Replaced with Fakes Between 2001–2002’ Jordan Times (9 February 2016) accessed 17 June 2019. 101 Rana Husseini, ‘House Panel Looking Into Museum Artefacts After 400 Ancient Coins Replaced with Fakes’ Jordan Times (3 February 2016) accessed 17 June 2019. 102 See Cultural Preservation (DOJAM) accessed 17 June 2019. 103 Jordan, ‘National Report on the Implementation of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 2011–2015’ accessed 17 June 2019, at 2.

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Middle East and North Africa 947 evidence if an artefact is stolen.104 Both the 1933 Arrêté of Lebanon and the 2008 law establish a list of recognized movable and immovable cultural property, subject to different criteria for listing and different regulations. Cultural resources may be placed on a list, which includes identifying features of the cultural property, the owner, and any subsequent transfers.105 In a recent discussion about a pilot project for developing a national inventory for archaeological heritage management in Israel, Alef106 suggests that, despite a catalogue of 30,000 archaeological sites, the list is missing key elements resulting in knowledge gaps, inadequate resource protection, and a misallocation of funds. The Israeli law ‘provides extensive protection for antiquities (objects) but does not provide practical tools for identification, evaluation, protection and conservation of antiquity sites as cultural heritage sites for present and future generations’.107 The MEGA-Jordan108 database has an extensive and up-to-date record of archaeological sites in Jordan. Excavation and survey permit holders (both Jordanian and foreign) are required109 to record all aspects of the fieldwork in this national database, including instances of looting and unofficial site disturbance. The recording of the thousands of sites and objects, both known and yet to be discovered, is an enormous undertaking. Owing to the complexity and lack of resources, the inventory and classification procedures are often incomplete and unenforced,110 leaving cultural resources in an inauspicious predicament, with Fraoua111 offering a cautionary personal observation on the seriousness of the situation. A point illustrated richly by Gerstenblith112 in a discussion of the coalition forces invasion of Iraq and the theft from the Iraq Museum in Baghdad, the lack of a comprehensive catalogue of the museum holdings added to confusion over the quantity of missing artefacts.

3.1.5 Archaeological Excavations and Surveys In order to combat the illegal excavation of sites in the quest of archaeological artefacts for the market, article 5 of the 1970 UNESCO Convention calls on Member States to establish a series of national services, such as 5(d) ‘organizing the supervision of archaeological excavations, ensuring the preservation in situ of certain cultural property, and protecting certain areas reserved for future archaeological research’. Without 104 Saeb Rawashdeh, ‘Heritage Stakeholders Join Forces to Preserve Archaeological Artifacts’ Jordan Times (11 May 2017) accessed 17 June 2019. 105 Lebanese Antiquities Law (n 60), arts 4–16. 106 Y. Alef, ‘Towards an Inventory for Archaeological Heritage Management in Israel’ (2017) XLII-2/W5 The International Archives of the Photogrammetry, Remote Sensing and Spatial Information Services 21. 107 Ibid, 21. 108 Mega-Jordan, www.megajordan.org, accessed 24 June 2019. 109 Regulations for Archaeological Excavations and Surveys in Jordan Issued pursuant to the provisions of the Jordanian Antiquities Law No 21 for 1988 as amended in 2016, art 12a. 110 Fraou, ‘Legislative and Institutional Measures’ (n 32) 7. 111 Ibid, 7. 112 Patty Gerstenblith, ‘From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the Beginning of the 21st Century’ (2005–2006) 37 Georgetown Journal of International Law 245, 290.

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948 Morag M. Kersel and Mounir Bouchenaki exception, archaeological investigations are regulated in each of the nine States.113 Also without exception, it is illegal to excavate without the permission of the relevant government authority. Each of the laws contain a similar sets of criteria for carrying out excavation and survey, which includes: an application for permission including excavation methods, a rationale, and the expected outcomes; a methodologically and scientifically sound recording and publication plan; the requirement of a preliminary and final report to be submitted to the relevant authority, with site plans, a list of finds, photographs, field notes, and the results of any specialist studies. Permit holders are also required to pay for the permit and all expenses related to excavation and/or survey. ‘No individual is allowed to carry out excavations for antiquities in any place, even if he [sic] was the owner of that place’114 is a sentiment echoed in all of the laws. Privately owned land cannot be excavated without permission. Guidelines outlined in the Jordanian Antiquities Law No 21 (1988) and its amendments (2004, 2016) offer a comprehensive and thorough list of regulations for archaeological survey and excavations. Where there is some deviation on archaeological investigations and the by-products is in the disposition of archaeologically recovered materials. A vestige of colonial expeditions and earlier legal arrangements, partage115 is now largely a thing of the past. Nascent Middle Eastern countries in the post-Ottoman period enacted national ownership laws ending the practice of partage.116 Under the 1933 Arrêté, Lebanese antiquities discovered through excavations were subject to partage: the finds were divided between the Antiquities Service and the excavation team with the exception of finds that were considered of national importance. In Syria, ‘[a]ll antiquities discovered by the organ ization, association or mission, are the property of the state and shall not be given to the excavating organization, association or mission, particularly the pieces which constitute complete sets and represent the civilizations, history, arts and crafts of the country’.117 The law goes on to state that the DGAM may give the excavators pieces of the movable antiquities of large number of similarities discovered in the same excavation zone.118 As explained in the law, the rationale for the division of archaeological material is the promotion of outside interest in the civilizations that flourished on the territories of the 113 See Algerian Antiquities Law (n 55), arts 70–76; Egyptian Antiquities Law (n 56), arts 31–8; Iraqi Antiquities Law (n 48), arts 29–36; Israeli Antiquities Law (n 34), Chap 3; Jordanian Antiquities Law (n 59), arts 16–22; Lebanese Antiquities Law (n 60), arts 56–72; Libyan Antiquities Law (n 61), Chap 8 arts 51–5; Palestinian Antiquities Law (n 41), art 7.1; Syrian Antiquities Law (n 63), arts 41–55. 114 Syrian Antiquities Law (n 63), art 42. 115 Partage is a system whereby archaeologically rich nations, foreign excavators, and sometimes landowners split the excavated artefacts at the end of a field season. Partage was standard practice in the Middle East during the later nineteenth and early twentieth centuries; see Çelik, About Antiquities (n 27); Eldem, ‘From Blissful Indifference to Anguished Concern’ (n 27); Kersel, ‘The Changing Legal Landscape’ (n 26); Özel, ‘Under the Turkish Blanket Legislation’ (n 27). 116 See Morag M. Kersel, ‘Storage Wars: Solving the Archaeological Curation Crisis?’ (2015) 3 Journal of Eastern Mediterranean Archaeology and Heritage Studies 42, 48–9, for further discussion of partage and cultural heritage law. 117 Syrian Antiquities Law (n 63). 118 Ibid, art 52 (emphasis added).

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Middle East and North Africa 949 Syrian Arab Republic and to encourage foreign scholars to become involved in archaeological investigations.119 A 2010 amendment to the Egyptian Law No 117 of 1983 annulled the partage arrangement, which consisted of 10 per cent of ownership granted to foreign missions carrying out survey and excavation in Egypt.120 While partage is no longer sanctioned, in Jordan the export of archaeological artefacts on long-term loan for study and exhibition purposes121 is encouraged and facilitated by the Jordanian DoA. In Iraq, ‘[a]ntiquities uncovered during excavation activities and information of such activities, including photographs, maps, and plans shall become public property. They may not be disposed of or published inside Iraq or abroad without the written consent of the Antiquities Authority.’122 Other nations (Israel, Jordan, Lebanon, and Palestine) may allow shortand long-term loans of archaeological materials and samples.

3.1.6 Trade in Cultural Items States parties123 to the 1970 UNESCO Convention are requested in article 10(a) to regulate the trade in cultural objects. Employing the rationale that if there is no legal trade there will be no looting, Egypt,124 Jordan,125 Iraq,126 Libya,127 and Syria128 have a blanket ban on the trade in cultural material. In addition to prohibiting the trade in antiquities129 in Palestine, it is illegal to ‘sell, buy or trade any material extracted from immovable heritage’130 or ‘to sell or purchase of rubble and soil from heritage sites, used in restoration works, or to transport it’.131 Some nations have distinct sectors dedicated to monitoring and preventing cultural heritage related crimes. Algeria has a special squad within the national police responsible for investigations into cultural heritagerelated crimes. It coordinates with the Ministry of Culture and other national entities responsible for cultural heritage management. Algeria also has an independent antitrafficking unit and cultural heritage protection units within the national gendarmerie. Established in 1985, the Israeli Antiquities Theft Prevention Unit is a nationwide unit for preventing antiquities theft and supervising the licensed trade in antiquities.132 This unit works closely with a network of international and regional agencies, including Interpol and the US Department of Homeland Security.133 119 Ibid; for further examples of artefacts as ambassadors, see the Jordanian case study from Bab a dh-Dhra’ in Kersel, ‘Storage Wars’ (n 115); Christina Luke and Morag M. Kersel, U.S. Cultural Diplomacy and Archaeology: Soft Power, Hard Heritage (Routledge Press 2013). 120 Egyptian Antiquities Law (n 56). 121 Jordanian Antiquities Law (n 59), art 8. 122 Iraqi Antiquities Law (n 48), art 35.1. 123 Excepting Israel, which has not ratified the 1970 UNESCO Convention. 124 Egyptian Antiquities Law (n 56), art 8. 125 Jordanian Antiquities Law (n 59), art 23. 126 Iraqi Antiquities Law (n 48), art 22, para 3. 127 Libyan Antiquities Law (n 61), art 23. 128 According to Fraoua, ‘Legislative and Institutional Measures’ (n 32), at n 57, ‘the prohibition does not stem explicitly from the law on antiquities, but implicitly from one of its penal provisions, namely art 57(c)’. 129 Palestinian Antiquities Law (n 41), art 27 (4). 130 Ibid, art 15 (4). 131 Ibid, art 26 (6). 132 Israeli Antiquities Law (n 34), Chap 4. 133 Abigail VanderHart, ‘The Antiquities Market: A “Cat and Mouse” Game’, Bible History Daily (11 June 2019) accessed 12 June 2019. 134 See the Lebanese Antiquities Law (n 60), art 12. 135 Algerian Antiquities Law (n 55), art 63. 136 Ibid, art 64. 137 Fraoua, ‘Legislative and Institutional Measures’ (n 32) 8–9. 138 Under the Algerian Antiquities Law (n 55), art 6, dealers are required to register with the Ministry of Culture and to complete sale certificates with provenance information; amended Executive Decree No 09–229, art 9. 139 Jeremy Keenan, ‘Tourism, Development and Conservation: A Saharan Perspective’ in D. J. Mattingly et al. (eds), The Libyan Desert: Natural Resources and Cultural Heritage (Society for Libyan Studies 2006). 140 Lebanese Antiquities Law (n 60), art 12. 141 Ibid, art 13(1). 142 Lebanon Decree No 3065 (n 89), art 10. 143 Recall that Israel is not a State Party to the 1970 UNESCO Convention. 144 A. Gopher, R. Greenberg, and Z. Herzog, ‘Archaeological Public Policy’ in D. Korn (ed), Public Policy in Israel: Perspectives and Practices (Lexington Books 2002). 145 Israeli Antiquities Law (n 34), chap 4 § 17. 146 Ownership of cultural property after the enactment of Israeli Antiquities Law is vested in the State. Ibid, chap 1 § 2. 147 Ibid, chap 4.

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Middle East and North Africa 951 descriptions like ‘Roman oil lamp—clay with red slip’, accompanied by a fuzzy image and a unique number assigned by the dealer. Tourists visiting a licensed shop assume that because they are making a purchase in a State-sanctioned establishment they are not required to do anything further as part of the transaction. Under AL 1978, ‘[a] person shall not take out of Israel an antiquity of national value save with the written approval of the Director. A person shall not take out of Israel any other antiquity save with the written approval of the Director.’148 This somewhat vague wording places the onus on the tourist to ask the dealer for the export permit, rather that obligating the dealer to offer an export licence with each antiquity sale. In order for the dealer to receive an export licence for a particular object, the dealer contacts the IAA with the registry number of each item being sold, the IAA issues a licence, and the sold item is deleted from the dealer’s inventory. If the tourist does not ask for the export licence, and the dealer does not offer, there is no record of the sale. If there is no request for an export licence and no record of the sale, the original registry number can be reused for a similar ‘Roman oil lamp—clay with red slip’, allowing recently looted material to be laundered and to enter the closed and supposedly regulated system in Israel.149 Recognizing the issue of artefact laundering, the Antiquities Theft Prevention Unit of the IAA instituted additional licensing guidelines in 2015.150 All licensed dealers are now required to document their entire inventories in a national online database administered by the IAA. Dealers have to allocate each artefact a unique identification number and to take mul tiple photographs from various angles, which should ensure a match between what is being sold and what is in the dealer’s inventory.151 A 2012 amendment to AL 1978 was enacted after realizing that that Israel was serving as a transit and title laundering point for antiquities coming from countries around the MENA area and eastern Mediterranean.152 After undergoing a laundering process, illegal material was then being ‘legally’ exported to markets in Western Europe and North America.153 Until 2012, antiquities could enter Israel legally, be sold legally, and then be legally exported with an export permit, providing a veneer of legality in other market countries.154 The amendment now requires all importers to submit provenance documentation detailing the entire history of the item and to attach required export documentation in accordance to the country from which it was purchased. If sufficient documentation is not submitted, the entry of this item will not be approved, and it will be returned to sender. If there is any doubt as to the legitimacy of any imported item, immediate contact is made with Interpol.155 The 2012 customs regulation is enforced by a collaboration between the Antiquities Theft Prevention Unit, the local police, Interpol, and Israeli Customs. Eitan Klein, Deputy Director of the Antiquities Theft Prevention Unit, Israel Antiquities Authority, reported in 2014 that, due to this change, Israeli authorities have succeeded in preventing the unregulated import of antiquities into 148 Ibid, § 22 (a)(b). 149 Kersel, ‘License to Sell’ (n 21). 150 Klein, ‘Illicit Trafficking of Antiquities’ (n 35); VanderHart, ‘The Antiquities Market’ (n 133). 151 VanderHart, ‘The Antiquities Market’ (n 133). 152 Kersel, ‘Itinerant Objects’ (n 26) 607–8. 153 Klein, ‘Illicit Trafficking of Antiquities’ (n 35) 228. 154 Ibid. 155 Ibid.

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952 Morag M. Kersel and Mounir Bouchenaki Israel.156 These recent legal developments are instrumental in limiting the smuggling of artefacts from Egypt, Iraq, Jordan, and Syria. Israeli ratification of the 1970 UNESCO Convention would result in even greater prevention of the illegal movement of artefacts and other cultural objects.

3.1.7 Export and Import Controls Export and import controls are designed to manage the international movement of cultural items for a number of reasons. Due to the significance and importance attached to its cultural heritage, individual States are concerned with retaining cultural material within their territory or with monitoring the movement of such items outside of their borders. According to Mackenzie, ‘many archaeologically-rich countries have employed blanket export prohibitions, and yet owing to low official wages which increase the attractiveness of bribes, and a healthy demand for artefacts abroad, such legislative prohibitions have been rendered less than fully effective’.157 Archaeological objects, due to their perceived value, have long been the target of local, national, and international crime. As such, this movement is of interest to national and international police and customs authorities. National tax agencies are concerned with the import and export of certain cultural goods, which are subject to customs duties and/or VAT; export controls can ensure proper tax collection.158 In article 6 of the 1970 UNESCO Convention, States Parties are directed to regulate the export of cultural items by instituting a legal export certificate process. Article 7(b)(i) of the 1970 UNESCO Convention requests that States prohibit the importation of cultural objects stolen from a museum or similar institution.159 Egyptian Law No 117 abolishes all permanent export of antiquities outside of Egypt. The law stipulates that disposal of any antiquity possessed by an individual within Egypt must be accompanied by written consent from the Antiquities Authority, provided that the disposal does not result in the object leaving Egypt.160 In Algeria the temporary export of protected cultural goods is permitted as part of cultural or scientific exchanges or for participation in research, but export requires authorization from the Ministry of Culture.161 The Israeli law restricts the export of antiquities without the written approval of the Director of the IAA.162 However, large loopholes exist for the illegal export of cultural objects through Israel.163 In a discussion of cultural property protection in Lebanon, Seif,164 former Head of the Scientific Departments and coordinator of arch 156 Ibid. 157 Simon Mackenzie, ‘Illicit Antiquities, Criminological Theory, and the Deterrent Power of Criminal Sanctions for Targeted Populations’ (2002) 7 Art Antiquity & Law 125, 128. 158 Fraoua, ‘Legislative and Institutional Measures’ (n 32) 11. 159 Ibid, 1970 UNESCO Convention, art 7(b)(i). 160 Egyptian Antiquities Law (n 56), art 9. 161 Algerian Antiquities Law (n 55), art 62. 162 Israeli Antiquities Law (n 34), Chapter 4 § 22(a). 163 Ibid, § 15(a). Sections 15–18 address regulation and requirements of licensed antiquities dealers. See section vi for further discussion. 164 Assad Seif, ‘Illicit Traffic in Cultural Property in Lebanon’ in F. Desmarais (ed), Countering Illicit Traffic in Cultural Goods: The Global Challenge of Protecting the World’s Heritage (ICOM 2015) 66.

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Middle East and North Africa 953 aeological research and excavations in Lebanon at the Directorate General of Antiquities in Beirut, States that ‘as early as 1926, in an attempt to control the circulation of antiqui ties, the French Mandate authorities in accordance with the Great Lebanon government issued Law No 651 prohibiting the import of archaeological artefacts from Iraq and Palestine unless accompanied by the proper certifications from the States of origin’. Controls of exports of cultural items vary from country to country, although most require the approval of the relevant authority for the export.165 In Syria, the DGAM166 should grant export licences for the following categories: A. Antiquities which are exchanged with museums and scientific associations outside the Syrian Arab Republic; B. Antiquities given to a scientific organization, association or mission after official excavations they have carried out. The antiquities mentioned above are exempt from export duties. Some categories of exported material in Lebanon are also exempt from taxation.167 Under the 1933 law, export of movable antiquities that are classified as historic monuments is forbidden. Under the 2008 law, the export of any recognized or classified cultural property is prohibited unless authorization is obtained.168 The export of archaeological objects outside of Lebanon is prohibited under Decree 3065, except for the purpose of non-commercial exhibition purposes in museums or other cultural venues.169 In his 2012 report to UNESCO, Fraoua170 argues that a complete ban on the export of cultural objects has ‘not put an end to trafficking in antiquities’. Ongoing study of the illegal movement of archaeological material demonstrates that demand is the nub of the problem.171 Porous borders, weak enforcement, lack of training for police and customs officers, little or no public awareness of the issues related to demand for archaeological objects, and headlines like ‘Antiquities: The Hottest Investment’172 or ‘Antiquities: A Solid Investment’173 create the perfect environment for illicit transfer to endure. Archaeological artefacts, regarded as an asset—particularly during financial crises—are now being sold on the international art market in which conditions are more profitable 165 Iraqi Antiquities Law (n 48), art 41; Jordanian Antiquities Law (n 59), art 24; Libyan Antiquities Law (n 61), art 8; Palestinian Antiquities Law (n 41), 5 art 28.1.B. 166 Syrian Antiquities Law (n 63), art 69.1. 167 Lebanese Antiquities Law (n 60). 168 Ibid, art 12 (1). 169 Lebanon Decree No 3065 (n 89), art 9. 170 Fraoua, ‘Legislative and Institutional Measures’ (n 32) 14. 171 See Abdulamir al-Hamdani, ‘Protecting and Recording our Archaeological Heritage in Southern Iraq’ (2008) 71 Near Eastern Archaeology 221; Morag M. Kersel, ‘A Focus on the Demand Side of the Antiquities Equation’ (2008) 71 Near Eastern Archaeology 230; Donna Yates, ‘The Global Traffic in Looted Cultural Objects’ in N. Rafter and M. Brown (eds), The Oxford Encyclopedia of Crime, Media, and Popular Culture (Oxford University Press 2016). 172 Maria Baugh, ‘Antiquities: The Hottest Investment’ Time Magazine (12 December 2007) accessed 13 June 2019. 173 Chris Carter, ‘Antiquities: A Solid Investment’ Money Week (12 August 2017) accessed 13 June 2019.

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954 Morag M. Kersel and Mounir Bouchenaki than on the local market.174 In a study of antiquities as investments, Brodie suggests: ‘While antiquities dealers and auction houses like to maintain that most of their stock derives from old family collections, and so the total number of antiquities available for circulation is limited and will diminish, in reality, it is not the case.’175 Most if not the majority of antiquities that enter circulation are derived from illegal excavations, as demonstrated in the case study from the legal market in Israel and the exchange of inventory numbers.176 Missing from popular articles and blogs on the benefits of investing in the antiquities market are considerations of the damage done to ancient landscapes as a result of looting in search of saleable items; the value of a particular piece to historians and archaeologists is as much in its context as in the object itself.177 Cultural heritage is at risk from looting and the subsequent illegal movement in most, if not all, of the nine States under consideration in this chapter. Clearly more can be done nationally but also internationally as advocated for in article 9 of the 1970 UNESCO Convention, which calls on Member States to cooperate in safeguarding threatened cultural heritage. Some178 have suggested that harsher penalties may act as deterrents in cultural heritage crime.

3.1.8 Cultural Heritage Crime and Penalties National legislation in each of the nine States has a section179 outlining what constitutes cultural heritage crime and the potential penalties if found guilty of such crime. In Algeria both the illegal export of an Algerian cultural object and the illegal import of a cultural object whose historical, artistic, or archaeological value is recognized by the country of origin are treated with the same penalties.180 In most nations, violators face fines and imprisonment, which are often doubled if the perpetrator is a repeat offender.181 Crimes include unauthorized archaeological excavation, trafficking in objects (movable and immovable), failure to declare accidental archaeological discoveries, failure to declare discoveries in authorized excavations, and the vandalism 174 Fraoua, ‘Legislative and Institutional Measures’ (n 32), 15. 175 Neil J. Brodie, The Investment Potential of Antiquities (Archaeology Center Stanford University 2009) accessed 13 June 2019. 176 Ibid, 2; Kersel, ‘Itinerant Objects’ (n 26) 607. 177 Morag M. Kersel, ‘The Power of the Press: The Effects of Press Releases and Popular Magazines on the Antiquities Trade’ in Carol Meyers and Eric Meyers (eds), Archaeology, Politics and the Media (Eisenbrauns 2012) 72–82. 178 See chapters in Joris D. Kila and Marc Balcells (eds), Cultural Property Crime: An Overview and Analysis of Contemporary Perspectives and Trends (Brill 2015). 179 Algerian Antiquities Law (n 55), arts 91–105; Egyptian Antiquities Law (n 56), chap 3 arts 40–7; Iraqi Antiquities Law (n 48), sect 6 arts 38–47; Israeli Antiquities Law (n 34), chap 10 § 37–8; Jordanian Antiquities Law (n 59), arts 26–8; Lebanese Antiquities Law (n 60), art 20; Libyan Antiquities Law (n 61), arts 51–8; Palestinian Antiquities Law (n 41), arts 59–71; and Syrian Antiquities Law (n 63), chap 5 arts 56–68. 180 Algerian Antiquities Law (n 55), art 102. 181 Ibid, art 102.

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Middle East and North Africa 955 of sites and monuments. There are also less serious violations such as attaching a sign to an antiquity.182 Penalties range from as little as two months’183 up to fifteen years’184 imprisonment for stealing an artefact. In Iraq, ‘anyone who knowingly takes an article of antiquity out of Iraq or who contemplates doing so shall be punished by death’ so far as can be determined, the death penalty has not been utilized.185 In Israel there is a presumption that if a person is found with tools for excavation or a metal detector they will be believed to be looking for antiquities, unless they can demonstrate otherwise. 186 Also in Israel187 it is illegal to sell a fake or a composite—that is, an antiquity consisting of parts of different antiquities glued together without making clear that the antiquity is composed of different parts and is not in its original condition. The monetary fine for those convicted of a heritage crime can be as low as 10,000 Algerian Dinars188 (US$84) to over 20,000 Jordanian Dinars189 (US$28,208). In some instances fines are related to the value of the stolen artefact.190 Under the Palestinian law there is a punishment of one year, or a fine of 5000 Jordanian dinars or equivalent in the currency in circulation, for any person who dumps solid, medical, industrial, or building waste in any of the heritage areas and the surrounding area.191 ‘Let us not pretend that simply because the law says that excavation or export of a commodity is prohibited, those acts will cease,’ cautions Mackenzie in a discussion of cultural heritage crime.192 Despite the well-articulated sections on crime and punishment in the cultural heritage laws of the nine countries, looting and illegal trade are ongoing. The penalties do not act as deterrents, and rewards outweigh the potential risks. If there is demand for undocumented artefacts there will always be supply in the form of looting, which creates a set of negative externalities.193 In producing material for the market, archaeological sites are looted, resulting in the negative externalities of a lunar-like landscape, objects illegally removed from their original contexts, and a loss of local and academic knowledge related to the sites and artefacts. Gerstenblith suggests that in addition to punishing the looter ‘[t]he law should therefore impose a cost on those who contribute directly or indirectly to the looting of sites by punishing the handling, selling, and buying of looted antiquities’.194 Most of these MENA laws have specifications aimed at penalizing the handlers and sellers of antiquities but few directed at buyers. 182 Jordanian Antiquities Law (n 59), art 27 (a). 183 Ibid, art 27. 184 Iraqi Antiquities Law (n 48), art 40.1.1. 185 Ibid, art 41.1. 186 Israeli Antiquities Law (n 34), chap 10 § 38. 187 Ibid, chap 4 § 21. 188 Algerian Antiquities Law (n 55), art 94. 189 Palestinian Antiquities Law (n 41), art 65. 190 Iraqi Antiquities Law (n 48), arts 38, 40.1.1; Jordanian Antiquities Law (n 59), art 27; Palestinian Antiquities Law (n 41), art 71; Syrian Antiquities Law (n 63), art 68. 191 Palestinian Antiquities Law (n 41), art 66. 192 Mackenzie, ‘Illicit Antiquities’ (n 156) 128. 193 Gerstenblith, ‘Controlling the International Market in Antiquities’ (n 29); Mackenzie, ‘Conditions for Guilt-Free Consumption’ (n 29); Nikos Passas and Neva Goodwin (eds), It’s Legal but It Ain’t Right: Harmful Social Consequences of Legal Industries (University of Michigan Press 2004). 194 Gerstenblith, ‘Controlling the International Market in Antiquities’ (n 29) 174.

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4. Conclusion ‘[C]ultural property constitutes one of the basic elements of civilization and national culture, and its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.’195 States parties all agree to care about culture and to work towards its protection and preservation. The 1970 UNESCO Convention was the first international attempt to control the market in artworks and cultural objects in order to protect landscapes. It was promulgated in response to the growth of the market in the 1960s and, in particular, the destruction of ancient monuments and sites to satisfy market demand.196 The 1970 UNESCO Convention offers a framework of control and protection mutually agreed upon by States Parties. The 1970 UNESCO Convention also advocates for international cultural cooperation, which could take the form of mutual assistance between countries. Of the nine States considered, Algeria and Egypt197 have implemented a bilateral agreement to protect against the illegal movement of cultural property. In 2015, Jordan and Egypt signed a bilateral agreement regarding the protection and return of illicitly removed cultural objects to their country of origin.198 Egypt has also signed bilateral agreements with the United States (2016),199 Switzerland (2011),200 China (2010),201 Italy (2008),202 Ecuador (2008),203 Cuba (2008),204 and Peru (2005).205 Jordan has cooperative agreements with Iraq and Syria on the export and import of illegal antiquities.206 Any State Party to the 1970 UNESCO Convention who can establish that demand for ethnographic and archaeological material in the United States is placing its cultural heritage in jeopardy can request a bilateral agreement under the 1983 Convention on Cultural Property Implementation Act (CCPIA).207 A basic tenet of the CCPIA is the notion that, by stemming the movement of archaeological and ethnological materials between nations who are States Parties to the 1970 UNESCO Convention, there will be fewer incidents of theft from storerooms and museums and less pillaging of sites and destruction of landscapes. Under the CCPIA, in order to impose import restrictions on certain classes of materials, a country that believes its cultural property is at risk 195 1970 UNESCO Convention, Preamble. 196 Gerstenblith, ‘Controlling the International Market in Antiquities’ (n 29) 176; Clemency Chase Coggins, ‘United States Cultural Property Legislation: Observations of a Combatant’ (1998) 7 International Journal of Cultural Property 52, 52–4. 197 Fraoua, ‘Legislative and Institutional Measures’ (n 32) 17. 198 Bilateral Agreement between the Egyptian and Jordanian Governments regarding the Protection and Return of illicitly removed cultural objects to their country of origin, 2015 accessed 25 August 2019 (Arabic). 199 See accessed 28 June 2019. 200 See accessed 28 June 2019. 201 See accessed 28 June 2019. 202 Ibid. 203 Ibid. 204 Ibid. 205 Ibid. 206 Ibid. 207 19 USC §§ 2601 et seq.

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Middle East and North Africa 957 must make a formal request of the US government for a cultural property agreement. A signed cultural property agreement between the US and a requesting nation is the embodiment of caring for culture, as both countries agree that cultural heritage is at risk, and the dossier documents that the risk is the result of demand in the US. Currently there are bilateral agreements with twenty nations, including Algeria, Egypt, Jordan, and Libya. Emergency import restrictions for illegally exported cultural materials from Iraq and Syria were applied, respectively, pursuant to UN Sec. Council Resolutions 1483208 and 2199209 and special legislation enacted by Congress in 2003 (for Iraq)210 and in 2016 (for Syria).211 As the United States is a known destination market that is driving local looting, this leaves just Lebanon to make a formal request for a bilateral agreement with the US.212 Additional bilateral or multilateral agreements between countries that export and import cultural objects, particularly in the region, are recommended in the global fight against the illegal trade in antiquities. Currently this element of the 1970 UNESCO Convention is ‘not institutionalized and remains inadequate to ensure concerted efforts to prevent and to combat trafficking’.213 Unfortunately, as Cohan,214 Fraoua,215 and Irsheid216 observe, national laws aimed at the protection of cultural heritage are applied inconsistently, resulting in the continued illegal excavation of sites and the illegal trade in cultural items. These laws, many of which find their origins in 1874 Ottoman legislation217 vesting ownership of cultural heritage in the Empire, establishing a department responsible for oversight, and a permitting process for excavations and recovery of objects,218 are not the panacea of protection sorely needed in the MENA region. Greater regional cooperation, increased funds for monitoring sites, and a focus on the demand side219 of the supply chain in the antiquities trade are needed. Traditionally, when engaging with issues of illegal trade, most measures, including those highlighted in the UNESCO Conventions and in the

208 UNSC Res 1483 (22 May 2003) UN Doc S/RES/1483, para 7. 209 UNSC Res 2199 (12 February 2015) UN Doc S/RES/2199, paras 15–17 accessed 12 June 2019. 210 Emergency Protection for Iraqi Cultural Antiquities Act of 2004, Pub L No 108–429, §§ 3001–3. 211 Protect and Preserve International Cultural Property Act, HR 1493 accessed 12 June 2019. 212 Neither Israel—which is not a State Party to the 1970 UNESCO Convention—nor Palestine— because the US does not recognize it as a country or as a State Party to the 1970 UNESCO Convention— could make a formal request under the CCPIA. 213 Fraoua, ‘Legislative and Institutional Measures’ (n 32) 17. 214 J. Cohan, ‘An Examination of Archaeological Ethics and the Repatriation Movement: Respecting Cultural Property (Part Two)’ (2004) 28 Environs: Environmental Law and Policy Journal 4. 215 Fraoua, ‘Legislative and Institutional Measures’ (n 32). 216 Irsheid, ‘The Protection of Cultural Property in the Arab World’ (n 31). 217 See Çelik, About Antiquities (n 27); Eldem, ‘From Blissful Indifference to Anguished Concern’ (n 27); Kersel, ‘The Changing Legal Landscape’ (n 26); Özel, ‘Under the Turkish Blanket Legislation’ (n 27). 218 David Keane and Valentina Azarov, ‘UNESCO, Palestine and Archaeology in Conflict’ (2012–13) 41 Denver Journal of International Law and Policy 309. 219 See Al-Hamdani, ‘Protecting and Recording our Archaeological Heritage in Southern Iraq’ (n 171); Kersel, ‘A Focus on the Demand Side of the Antiquities Equation’ (n 171).

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958 Morag M. Kersel and Mounir Bouchenaki national legislative efforts discussed in this chapter, are directed at looters, those considered to be the source of the problem. Legal remedies focused on the buyer in addition to regional cooperation and collaboration with international agencies like Interpol, greater allocation of resources (both financial and human), regular updating and expansion of national inventories, consistent monitoring of sites and excavations, and the application of existing penalties would aid in the protection of the past. Heritage is often at risk. This risk can deprive a community of its memory, the physical testimony to its past, but also of a precious resource for emotional, social, and economic well-being. In an attempt to prevent illicit trafficking and destruction of cultural heritage, UNESCO acts as a coordinator and catalyst to bolster cooperation and strengthen networking among national and international actors. At the same time, UNESCO seeks to harness the power of heritage as a positive and unifying force that can help prevent conflicts and facilitate peace-building, recovery, and reconciliation. Through the implementation of its mutually reinforcing cultural conventions, UNESCO works with the international community to protect the past and to demonstrate that each nation cares about their culture.

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chapter 40

North A m er ica n Cu ltu r a l H er itage L aw Derek Fincham

This chapter will offer a comparative perspective on the key components of contemporary cultural heritage law in North America. The region’s collective tangible and intangible cultural heritage has an array of legal and policy tools to safeguard it for future generations, though the coordination between the three nations involved would benefit from increased cohesiveness. The primary legal mechanisms to prevent illicit movement are restrictions on removing archaeological materials, declarations of ownership for some or all of this material, export restrictions, and the ultimate enforcement of these protections both domestically and abroad. All three countries in North America have made this body of law a priority. For those seeking in-depth treatment of the individual nations, there are excellent resources covering Mexico,1 Canada,2 and the United States3 1 Ernesto Becerril, ‘Mexico’ in James A. R. Nafziger and Robert Kirkwood Paterson (eds), Handbook on the Law of Cultural Heritage and International Trade (Edward Elgar Publishing 2014); Kevin F. Jowers, ‘International and National Legal Efforts to Protect Cultural Property: The 1970 UNESCO Convention, the United States, and Mexico Symposium—International Litigation—Comment’ (2003) 38 Texas International Law Journal 145; Jason C. Roberts, ‘The Protection of Indigenous Populations’ Cultural Property in Peru, Mexico and the United States Comment’ (1997) 4 Tulsa Journal of Comparative & International Law 327. 2 See Robert Kirkwood Paterson, ‘Canada’ in Nafziger and Kirkwood Paterson, Handbook on the Law of Cultural Heritage and International Trade (n 1); Catherine Bell, ‘Aboriginal Claims to Cultural Property in Canada: A Comparative Legal Analysis of the Repatriation Debate’ (1992) 17 American Indian Law Review 457; Catherine Bell and Robert Paterson, ‘Aboriginal Rights to Cultural Property in Canada’ (1999) 8 International Journal of Cultural Property 167. 3 See James A. R. Nafziger, ‘United States’,in Nafziger and Kirkwood Paterson, Handbook on the Law of Cultural Heritage and International Trade (n 1); John Henry Merryman, ‘A Licit International Trade in Cultural Objects’ (1995) 4 International Journal of Cultural Property 13; Clemency C. Coggins, ‘United States Cultural Property Legislation: Observation of a Combatant’ (1998) 7 International Journal of

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960 Derek Fincham individually. This chapter will take a more general view. Particular attention will be paid to the law enforcement efforts, international outreach, and treatment of specific objects of cultural heritage. It concludes by describing the relationship of these North American States with the World Heritage Convention and UNESCO’s Underwater Cultural Heritage Convention.

1. Domestic Regulation in North America Mexico, Canada, and the United States take varied approaches to safeguarding domestic cultural heritage. With respect to objects of antiquity that are still in their archaeological context, all three nations place high importance on preserving objects and monuments in situ.

1.1 Mexican Domestic Protection, Nationalization Since its independence, Mexico has enacted various provisions to secure its cultural heritage. Mexico has made the important legal pronouncement declaring all preColumbian cultural objects to be a national resource and, thus, owned by the State.4 This has allowed Mexico to secure and seek the return of cultural heritage that has been illegally removed, much of which is then smuggled to the United States owing to the very long shared border between the two nations. Under article 27 of the Declaration, any antiquities recovered by excavation are deemed the property of Mexico, whether that excavation was authorized or unauthorized. This pronouncement has allowed Mexico to seek the return of important objects of cultural heritage from the United States. In 2012 alone, the United States Immigration and Customs Enforcement (ICE) announced the return of a staggering 4000 antiquities that had been illegally removed from Mexico, the culmination of eleven separate investigations.5

52; Carolyn Shelbourn, ‘Protecting Archaeological Resources in the United States: Some Lessons in Law and Practice for England?’ (2007) 12 Journal of Art, Antiquity & Law 259. 4 Ley Sobre Monumentos Arquelogicos (Law on Archaeological Monuments), art 1, Diario Oficial de la Federacion, 11 May 1897. 5 Immigration and Customs Enforcement, ‘ICE Returns Stolen and Looted Archeological Art and Antiquities to Mexico’ ICE Newsroom (24 October 2012) accessed 26 September 2017.

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North American Cultural Heritage Law 961 Ancient ruins and archaeological context have suffered destruction caused by the art market—much of it sadly from dealers and buyers in the United States.6 The theft and illegal movement of works of art from Mexico damages the archaeological context, removes precious monuments, and undermines the legitimate art trade. Mexico’s National Institute of Anthropology and History estimated that between 1999 and 2006 more than 1000 pieces of art had been stolen from Mexican churches alone.7 Mexico has strict export restrictions for art and antiquities, as well as the benefit of a bilateral agreement with the United States.8 The looting and recovery of the Maya temple decoration from Placeres demonstrates one path of looted material from Mexico to markets in North America. In 1968, a wellpreserved stucco façade was located by looters near the site of Placeres in the Mexican region of Campeche.9 In his work examining the illicit art trade, Karl Meyer alleged that an antiquities dealer, Everett Rassiga, financed the looting of the massive façade and ordered the construction of a nearby airstrip for a considerable sum, so that a plane could be flown in from Florida. The façade was sawn into small pieces and flown through Mérida and New Orleans, ultimately reaching New York.10 Once the façade was in New York, the dealer Rassiga approached the Metropolitan Museum of Art about displaying the piece in an upcoming exhibition and even offered the piece for sale for a reported US$400,000. The director of the Metropolitan Museum of Art in New York, Thomas Hoving, approached Dr Ignacio Bernal of the Mexican National Museum of Anthropology. Bernal visited the Met and expressed doubts about the piece, alleging it was likely illegally removed from Mexico. Ultimately, the piece was turned over to Mexican authorities and was returned.11 This kind of cooperative effort is a common occurrence, and though important Mexican and American law and international norms inform this process, the return was secured without recourse to judicial mechanisms. An important component of cultural heritage law, especially in the United States, is the signalling which takes place in the wake of prosecutions and investigations. While some may point to a return like this as indicative of inattention to the problem of looting or to gaps in the legal regime, another more nuanced view would be that these efforts are made possible by the current State of the law and that there exists a limit to the amount of judicial, prosecutorial, and enforcement resources cultural heritage crime can rightly expect. 6 Clemency Coggins, ‘Illicit Traffic of Pre-Columbian Antiquities’ (1969) 29 Art Journal 94. 7 Elisabeth Malkin, ‘Nothing Is Sacred, as Looters Rob Mexican Churches of Colonial Treasures’ The New York Times (4 October 2006) accessed 22 September 2017. 8 United States v McClain, 545 F.2d 988 (5th Cir. 1977). 9 David Freidel, ‘Mystery of the Maya Façade—Archaeology Magazine Archive’ (2000) 53(5) Archaeology. 10 Karl E. Meyer, The Plundered Past: The Story of the Illegal International Traffic in Works of Art (Atheneum 1973) 22. 11 Donna Yates, ‘Value and Doubt: The Persuasive Power of “Authenticity” in the Antiquities Market’ (2015) 2 PARSE: Platform for Artistic Research Sweden 71, 78–9.

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1.2 United States Domestic Protection The United States has experienced a net influx of art and antiquities from other cultures, owing to its limited import restrictions and tax incentives for art donations. The United States has failed to enact export restrictions on cultural objects.12 Unlike Mexico, the United States has not declared ownership of antiquities. Instead, it has a series of overlapping regulations at the State and federal level that apply to various pieces of cultural heritage, cultural heritage sites, and sacred objects. Indigenous cultural heritage was seldom preserved during the early settlement of the United States by early American colonists from Europe. Consequently, the United States was slow to enact legislative protections for this Indigenous cultural heritage. The first notable American initiative to protect ancient sites was the Antiquities Act of 1906.13 The Act was a reaction to the destruction taking place at Native American sites in the south-western United States. The Act seeks to protect cultural sites from destruction by bringing them under the protection of the federal government. The President may set aside as national monuments ‘historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest’ located on lands owned or controlled by the federal government.14 The Act established basic policies for dealing with archaeological resources. It also made the creation of national monuments quicker and easier. The Act also makes certain harmful activities criminal. An individual who excavates, appropriates, injures, or causes the destruction of any historic or prehistoric ruin or antiquity on land owned or under the control of the federal government, without permission from the federal department with jurisdiction over that land, will be subject to either a fine or imprisonment.15 Perhaps most importantly, it established the requirement of professionalism, including a scientific approach, to excavation of areas on public lands.16 Some aspects of the Antiquities Act of 1906 have had dramatic success, but those successes are tempered by some problematic aspects with criminal penalties under the Act. In one notable prosecution, a defendant’s conviction for illegally removing antiquities from federal lands was overturned because the federal court found that the definitions in the Act of ‘ruin’, ‘object of antiquity’, and ‘monument’ were too vague.17 These shortcomings helped bring about the Archaeological Resources Protection Act of 1979 12 The United States only expressly signed on to articles 7 and 9 of the 1970 UNESCO Convention. The 1970 UNESCO Convention art 13 provides: ‘The States Parties to this Convention also undertake, consistent with the laws of each State: . . . (d) 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.’ 13 16 USC §§431–433m (2012). 14 Ibid, §431 (2012). 15 Ibid, §433 (2012). 16 The Secretary of the Interior, Agriculture, or Army—whichever has jurisdiction over the land implicated—may grant permits for the excavation and exploration of archaeological sites. 16 USC §432 (2012). 17 United States v Diaz, 499 F.2d 113, 114 (9th Cir. 1974).

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North American Cultural Heritage Law 963 (ARPA).18 That Act protects material remains of human life or activities that are at least one hundred years old and of archaeological interest.19 Its drafters took great pains to define archaeological resources and to avoid the interpretive problems courts had with the criminal provisions of the Antiquities Act.20 ARPA makes a crime the excavation, destruction, unauthorized removal, sale, or purchase of archaeological resources from federally owned or controlled lands.21 It only applies to activity on federal or Native American land, though there are provisions aimed at those who transport in interstate commerce archaeological resources in violation of any State or local law. A conviction under ARPA carries both civil and criminal penalties. Under §6(d) the maximum fine for a misdemeanour conviction is US$100,000, while a felony conviction carries a maximum fine of US$250,000. A defendant may be sentenced to up to twelve months’ imprisonment for a misdemeanour and up to five years for a felony conviction. There is also a forfeiture provision in §8(b) that allows for all archaeological resources, along with any ‘vehicles or equipment’ used in the commission of the offence, to be subject to forfeiture. Civil penalties under ARPA also punish illicit excavation and effectively remove any profit for those apprehended. Under §7 of ARPA, any person who violates the Act may be required to pay a civil penalty, which will be assessed by the federal land manager. These proceedings are heard before an administrative law judge and may be doubled where the offence is a subsequent offence. With respect to material that has been removed from Native American or tribal land, under American law the right to return objects which has been taken abroad still rests largely with Native American tribes or Native Hawaiian groups. Unfortunately this also places the burdens of litigation on these groups, an expense they are seldom able to bear.22 The result of the lack of legal protections over this material has been predictable, but domestic repatriation of material which has not left the United States is a much more effective tool. The Native American Graves Protection and Repatriation Act (NAGPRA) ushered in a new era of cooperation and dialogue between Native Americans and the federal government.23 It addressed the theft and destruction of Native American cultural objects and remains by brokering a compromise and crafting working relationships between the federal government, museums, archaeologists, and Native Americans.24 Its two purposes are, first, to control removal of Native American remains and cultural items from federal or tribal lands after its enactment and, second, to address the disposition

18 16 USC 470aa–470mm (2012). 19 However, this federal ownership is not strictly limited to objects over one hundred years old. United States v Shivers, 96 F. 3d 120 (5th Cir. 1996) (holding metal tokens on National Forest land were the property of the federal government even though they were between fifty and 100 years old). 20 This clarifies the ambiguity which the Ninth Circuit found in the Antiquities Act of 1906. 16 USC §470ee (2012). 21 16 USC §470ee (2012). 22 Jonathan Liljeblad, ‘The Hopi, the Katsinam, and the French Courts: Looking Outside the Law in the Repatriation of Indigenous Cultural Heritage’ (2017) 23 International Journal of Heritage Studies 41. 23 25 USC §§3001–3013 (2012); and 18 USC §1170 (2012). 24 136 Cong. Rec. S17174 (daily edn 26 October 1990) (statement of Sen. Inouye).

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964 Derek Fincham of remains and cultural objects controlled by federal agencies and museums.25 NAGPRA vests ownership and control of Native American human remains and cultural objects from federal or tribal lands with the tribes. It regulates the excavation of human remains and objects from federal or tribal lands, subject to criminal sanctions. It requires federally funded institutions to furnish an inventory of Native American human remains and other objects. Finally, the law provides for repatriation of objects via prescribed procedures. Under NAGPRA, criminal liability attaches to anyone who steals or trades in Native American remains or items.26 These penalties focus on the item itself, rather than the land or property it may have originated from, which is relevant for NAGPRA’s civil provisions. NAGPRA focuses on the intent of the defendant to make a profit. It does not affect unsuspecting curators or scientists studying cultural objects for research as the defendant must have scienter.27 The profit does not have to be realized; only the intent to profit is necessary. A defendant need not know the specific item they are selling may be prohibited. So long as he or she has a general knowledge of the Native American cultural market, they should have the requisite knowledge. In United States v Corrow, the defendant challenged his indictment for selling Navajo ceremonial masks, a prohibited act under NAGPRA.28 During the criminal trial, the defendant, Corrow, claimed the statute was unconstitutionally vague because the terms ‘cultural items’ and ‘cultural patrimony’ were not sufficient to provide him fair notice that he was violating its provisions. The federal district court disagreed, holding Corrow had sufficient knowledge of Navajo culture and traditions to meet the knowing requirement of the criminal offence—Corrow knew that the buying and selling of the ceremonial masks was probably illegal. The defendant also argued the criminal provision would lead to arbitrary and discrimin atory enforcement, because law enforcement officers would be unable to determine which objects might fit under the statutory definitions. The court dismissed this argument, as testimony of a United States Department of the National Park Service employee stated that law enforcement personnel frequently consult with tribes to determine if an object may be contested.29 Corrow raised the same issue on appeal.30 He relied on conflicting Navajo testimony regarding the importance of the ceremonial masks at issue. However, the Tenth Circuit court of appeals rejected his argument. He had ‘fair notice’ that the masks ‘could not be bought and sold absent criminal consequences’.31 Once again, the court analysed the specific conduct of the defendant. The void for vagueness test looks at the subjective intent of the defendant. Here, the defendant had frequently 25 Providing for the Protection of Native American Graves, and for Other Purposes, HR Rep No 101–877, at 8–9 (2nd Sess. 1990). 26 18 USC §1170 (2012). 27 United States v Tidwell, 191 F.3d 976, 980 (9th Cir. 1999) (noting ‘that the NAGPRA requires the government to establish that the defendant “knowingly” traded in cultural items . . . This scienter element protects the unwary from criminal punishment’) (internal citations omitted). 28 941 F. Supp. 1553, 1564–67 (D N Mex. 1996). 29 Corrow, 941 F. Supp. 1553, 1564–7. 30 United States v Corrow, 119 F.3d 796, 799 (10th Cir. 1997). 31 Ibid, at 804.

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North American Cultural Heritage Law 965 bought and sold Native American objects and was on notice that his behaviour was criminal, even if he was not aware of the specific provision under NAGPRA which may have been applicable. Similarly, in United States v Tidwell the defendant appealed his conviction for trafficking in objects in violation of NAGPRA.32 Tidwell argued that the vagueness of the cultural patrimony definition rendered the statute unconstitutionally vague. As the terms used by NAGPRA were established by oral history, ‘it was impossible for him to have fair notice of his wrongful conduct’.33 The court did not look with favour on Tidwell’s argument. His background knowledge as a dealer in Native American art put him on notice of NAGPRA’s prohibitions. Courts will uphold NAGPRA’s criminal provision so long as the defendant has the knowledge necessary to violate the law. The criminal provision of NAGPRA aimed to ‘give teeth’ to the overall purpose of the statute, which was ‘to eliminate the profit incentive perceived to be a motivating force behind the plundering of such items’.34 In Tidwell, the court differentiated the situation where a tourist innocently purchased a protected object from that of a knowledgeable defendant who regularly deals in goods of this kind.35 If a defendant has some kind of familiarity with the market in Native American cultural property, courts will not look with favour on the void for vagueness defence. NAGPRA is an important milestone for domestic protection of cultural objects in the US. In many ways, NAGPRA claims involving repatriation are similar to replevin claims over stolen art. Both seek the return of property to those who claim to be the rightful owners. NAGPRA has been widely praised, because in large part it allows for a collab orative process between competing interests which is seldom seen in claims for stolen art or other illicitly excavated antiquities.

1.3 Canadian Domestic Protection of Heritage Canada regulates the movement of cultural objects across its borders via the Cultural Property Export and Import Act (Canadian Act).36 The Act represents Canada’s implementation of the 1970 UNESCO Convention as well as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Act balances the interests of the art market with retaining significant works of art in Canada by allowing for prices to be matched if a work of art is denied export for a sale. In this way it falls between the position of Mexico, which prohibits nearly all export of works of art and antiquity, and the United States, which has no export restrictions on works of art. 32 Tidwell, 191 F.3d 976, 979. 33 Ibid, at 980. 34 United States v. Kramer, 168 F.3d 1196, 1201–02 (10th Cir. 1999) (citing Corrow, 119 F.3d at 796). 35 Tidwell, 191 F.3d at 980. 36 The Cultural Property Export and Import Act RSC 1985, c. C-51. See David A. Walden, ‘Canada’s Cultural Property Export and Import Act: The Experience of Protecting Cultural Property’ (1995) University of British Columbia Law Review 203; Ian Christie Clark, ‘The Cultural Property Export and Import Act of Canada: Legislation to Encourage National Cooperation’ (1982) 15 New York University Journal of International Law & Policy 771.

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966 Derek Fincham The Canadian Act sets out categories of cultural objects which it governs, which are largely based on the definitions provided under article 1 of the 1970 UNESCO Convention. If an object on the Canadian Cultural Property Export Control List is less than fifty years old or made by a living person, it is not subject to any export restrictions. Other objects on the list require an export permit from the Canada Border Services Agency. At that point a Canadian expert examiner, often an employee of a museum, art gallery, archive, or library, must determine: (a) whether [the] object is of outstanding significance by reason of its close associ ation with Canadian history or national life, its aesthetic qualities, or its value in the study of the arts or sciences, and (b) whether the object is of such a degree of the national importance that its loss to Canada would significantly diminish the national heritage.37 These criteria resemble in large measure the limited export restrictions of the United Kingdom with the Waverley Criteria.38 Similar systems also exist in Australia and New Zealand. Under the Canadian system, if an expert examiner advises that an export permit should not be issued, the applicant cannot export the object from Canada for two years. This means the expert examiners can potentially effectively bar the export of objects on the Control List. The system seems to function effectively as Canada, unlike the United Kingdom, has never concerned itself with acquiring large amounts of art and cultural objects from other nations through conquest or a large art market. If an expert examiner advises against export, an applicant can appeal the decision to the Canadian Cultural Property Export Review Board. This board consists of ten persons, two representing the public at large and the rest from the museum, art market, art, archival, and collector communities. The administration of the Act has been lacking, according to some, in improperly accounting for the interests of Canada’s Aboriginal peoples.39 The Review Board will typically review twelve to fifteen export permit appeals.40 If the Review Board affirms that the Waverley Criteria applied, the object in question cannot be exported from Canada for a period of two to six months. At that time Canadian institutions are put on notice that the cultural object is available for purchase, with financial assistance available from the government of Canada. If no offer to purchase arises, an export permit must be issued after the delay period. The applicant for export does not have to accept any purchase offer, but, if they do not, the object will 37 Canadian Act, s 11. 38 Vivian F. Wang, ‘Whose Responsibility? The Waverley System, Past and Present’ (2008) 15 International Journal of Cultural Property 227; Clare Maurice and Richard Turnor, ‘The Export Licensing Rules in the United Kingdom and the Waverley Criteria’ (1992) 1 International Journal of Cultural Property 273. 39 Catherine Bell and Robert Paterson, ‘International Movement of First Nations Cultural Heritage in Canadian Law’ in Catherine Bell and Robert Paterson (eds), Protection of First Nations Cultural Heritage: Laws, Policy, and Reform (UBC Press 2009) 84. 40 Canadian Heritage, Communications: Reviews of Refused Export Permits (22 April 2016) accessed 22 September 2017.

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North American Cultural Heritage Law 967 not be eligible for export for two additional years. The price for the item is set by the Review Board. The Canadian Act allows grants and loans to be given to Canadian cultural institutions to assist in the purchase of cultural objects which have been temporarily denied permission to export. Another important aspect of the Canadian Act is its certification of the fair market value of works of art donated to Canadian cultural institutions. In many cases the value of the tax deduction received would exceed the benefit were there an outright cash gift.41 This review of tax benefits for donations of works of art is echoed in many ways in the United States. The United States is unique in that its cultural institutions are privately run and organized yet are supported by public funds and tax benefits. Apart from the Smithsonian system and the museums of the individual States, the major museums in the United States are organized as charitable corporations. This means that the works of art donated to these institutions receive favourable tax deductions. Much like the deduction system in Canada, this leads to lucrative tax benefits for donors of works of art that, in many cases, far exceed the benefits which would flow if a donor were to simply make a straight cash donation. Much attention has been paid to the recent returns of illicit cultural material from institutions such as the Getty,42 the Metropolitan Museum of Art in New York,43 the Museum of Fine Arts in Boston,44 and many other institutions. Yet an underappreciated aspect of these returns are the tax benefits which accrued to the donors of this material. So, in a sense, the United States and its cultural institutions have paid a steep penalty for the return of illicit material. The owner who donated the material to the institution long ago received a tax benefit, which in a sense can be viewed as an expenditure on the part of the federal government. Though not a straight line, we can imagine that every tax deduction given to an individual is a kind of expenditure, in the form of lost revenue to the government. In this sense the federal government has paid through its charitable deduction system for the acquisition of illicit and looted material. Much can be improved about the safeguards when works of art are donated to cultural institutions, and perhaps more attention should be directed to ways in which sensible criteria applied by expert panels might improve the donation of works of art to cultural institutions in the way Canada and the United Kingdom have demonstrated.45 41 See David G. Duff, ‘Tax Treatment of Charitable Contributions in Canada: Theory, Practice, and Reform’ (2004) 42 Osgoode Hall Law Journal 47, 79; Robert K. Paterson, ‘Valuing Art for Tax Purposes in Canada—The Sarick Case and Its Aftermath’ (1997) 6 International Journal of Cultural Property 109. 42 Jason Felch and Ralph Frammolino, Chasing Aphrodite: The Hunt for Looted Antiquities at the World’s Richest Museum (Houghton Mifflin Harcourt 2011). 43 Carol Vogel, ‘Ciao to a Met Prize Returning to Italy’ The New York Times (11 January 2008) accessed 23 September 2017. 44 Geoff Edgers, ‘Museum of Fine Arts Returns Looted “Weary Herakles” Statue to Turkey’ Boston Globe (23 September 2011) accessed 23 September 2017. 45 See Derek Fincham, ‘Deaccession of Art From the Public Trust’ (2011) 16 Journal of Art, Antiquity & Law 1.

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1.4 Special Law Enforcement Efforts Devoted to Cultural Heritage An important step any nation can take to respond to the illicit trade in cultural objects is training and equipping a specialized law enforcement and legal team to respond to the special challenges presented by the international movement of art and antiquities. All three North American nations have small but dedicated units. In 2014, Mexico’s thenpresident Enrique Peña Nieto announced plans for a new paramilitary gendarmerie to act as an independent force to respond to economic crimes. Though there were plans for 50,000 officers, the initial numbers were limited to just 5000. In August of 2017, the head of the National Gendarmerie, Benjamín Grajeda Regalado, announced plans to create a new division within the Federal Police that would recruit officers with knowledge of art and antiquity. The unit seems positioned to respond to the theft and looting of cultural artefacts, in much the same way that Italy’s Carabinieri Tutela Patromonio Culturale polices that nation’s art and heritage crime.46 Canada has its own art crime enforcement unit, created in a collaborative effort between the Royal Canadian Mounted Police and the Sûreté du Québec in 2008.47 The United States has a similar set of efforts spread across a number of different local, state, and federal agencies. In 2004, the Art Crime Team was established as a part of the Federal Bureau of Investigation to combat the illicit trade in cultural objects. The Art Crime Team targets domestic thefts of cultural material which exceed US$2000 in value. It also investigates material which has been looted or stolen abroad and may have been brought into the United States. As Professor James Nafziger has illustrated, the Art Crime Team likely shows how the United States emphasizes law enforcement investigations rather than express export controls.48

2. Engagement with International Efforts Due to the losses being suffered, Mexico and Peru put the illicit trade in antiquities front and centre with UNESCO.49 Much of this material moves directly to art markets and museums in the United States. UNESCO stands as the primary intergovernmental 46 ‘Mexico Creates New Federal Police Division to Protect Cultural Heritage’ DW.com (27 August 2017)

accessed 25 September 2017. 47 ‘Unit of RCMP and Quebec Cops Focused on Art Theft | CTV News’ The Canadian Press (31 January 2009) accessed 26 September 2017. 48 Nafziger, ‘United States’ (n 3) 517. 49 UNESCO Doc 11 C/DR/186, 1 December 1960.

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North American Cultural Heritage Law 969 organization working to reduce the illicit trade in cultural objects. Perhaps as a result, the United States has had an uneven relationship with UNESCO and has not offered the support or enthusiastic participation offered by both Mexico and Canada. In October of 2017, the Trump administration announced that it would withdraw the United States from UNESCO. The State Department attempted to justify the withdrawal by citing concerns ‘with mounting arrears at UNESCO, the need for fundamental reform in the organization, and continuing anti-Israel bias’.50 Soon after the announcement of the decision, UNESCO Director-General Irina Bokova expressed her ‘profound regret’ with respect to the withdrawal. UNESCO was founded in 1945 as an organization which would promote art, culture, science, and education. The first delegate of the United States to the organization, Archibald MacLeish, is credited with the opening line of the UNESCO Constitution: ‘That since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed.’51 The United States had to halt its financial obligations to UNESCO in 2011, which put the United States over US$500 million behind in its promised financial obligations to the organization.52 In contrast, Canada contributes over US$19 million per year, while Mexico contributes a little over US$9 million annually.53 The United States withdrew funding from UNESCO due to an obscure law passed by Congress in 1984 which prevents the United States from contributing funding ‘to any organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood’.54 When UNESCO admitted Palestine as a member in 2011 the law was triggered, and Congress made the decision not to amend the law and discontinued funding for UNESCO. Though this step seems unprecedented, the United States has withdrawn from UNESCO once before—in 1984, amid the Reagan administration’s claims of politicization and waste at the organization. From 1984 until 2003 the United States was granted observer status, and it may decide to seek a similar arrangement in the wake of this latest withdrawal. Fortunately for the United States, its withdrawal does not seem likely to impact the twenty-three sites in the United States on the World Heritage List, including the most recent site inscribed on the list: five missions near San Antonio designated as World Heritage Sites in 2015.

50 US Department of State, ‘The United States Withdraws From UNESCO’ (12 October 2017) accessed 20 October 2017. 51 UNESCO Constitution, 16 November 1945 accessed 20 October 2017. 52 UNESCO, Status of Contributions to the Regular Budget as at 19 October 2017 (19 October 2017) accessed 20 October 2017. 53 UNESCO World Heritage Centre, ‘San Antonio Missions’ (UNESCO World Heritage Centre, no date) accessed 20 October 2017. 54 22 USC § 287e (2012).

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970 Derek Fincham

3. The United States and the 1970 UNESCO Convention The Senate gave its unanimous consent to the UNESCO Convention in 1972 but with the qualification that it would require implementing legislation. Debate on the precise form that legislation should take took over ten years and was finally implemented with the Cultural Property Implementation Act of 1983 (CPIA).55 With the CPIA, the United States erected a framework to ban the import of certain archaeological and ethnological objects. This system implements the import restriction regime of articles 7 and 9 of the 1970 UNESCO Convention. No other nation has taken quite the same approach to implementing the Convention. And though that fact rightly exposes the United States system to criticism, for the most part the evaluation process works effectively. However, it does burden nations of origin, which must present a case for import restrictions to the members of the Cultural Property Advisory Committee which makes the recommendation to the President. To date, no request for an import restriction from another nation has been denied. Under the CPIA, the President can enter into bilateral treaties under the UNESCO Convention, which restricts the importation of cultural objects from nations which make this request. Before this, other nations had to craft bilateral agreements without the CPIA framework. Mexico was one of the first nations which entered into such a preCPIA treaty with the United States.56 That treaty required both nations to use all ‘legal means at its disposal to recover and return from its territory stolen archaeological, historical and cultural properties that are removed after the date of entry into force of the Treaty from the territory of the requesting party’.57 It also protected pre-Columbian objects, official documents from before 1920, religious items, and historical items that are ‘of outstanding importance to the national patrimony’.58 The treaty also allows the Attorney General of each nation to initiate civil actions to facilitate the return of cultural property covered by the treaty.59 The United States puts the primary burden of policing archaeological sites on the source nation. The import restrictions will only apply if the US has a bilateral or multilateral agreement and if the requesting State can show that its cultural patrimony is in

55 Convention on Cultural Property Implementation Act, 19 USC §§2601–2613 (2012). 56 Treaty of Cooperation Between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties on July 17, 1970. (22 UST 494). 57 Art III. 58 Art I. 59 See Marilyn Phelan, ‘A Synopsis of the Laws Protecting Our Cultural Heritage’ (1993) 28 New England Law Review 63, 96. Soon after, in 1972 the United States passed legislation to specifically regulate illicit Pre-Columbian art. 19 USC §§2091–2095 (2012). The Act prohibits the import of pre-Columbian monumental or architectural sculpture or murals without export permission from the country of origin. The Act applies to works from Mexico, Central America, South America, and the Caribbean Islands.

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North American Cultural Heritage Law 971 danger of pillage and that it has taken substantial measures to protect it.60 In certain exigent cases, the President may issue emergency import restrictions if the archaeological or ethnological property is: (1) a newly discovered type of material that is important for the understanding of the history of mankind; (2) identifiable as coming from a site of high cultural significance; or (3) a part of the remains of a particular culture or civilization the record of which is in danger. Also, the class of objects must be ‘in jeopardy from pillage, dismantling, dispersal or fragmentation which is or threatens to be, of crisis proportions’, and the application of import restrictions must reduce the incentive for this pillage.61 No archaeological or ethnological material which is covered under an emergency decree or bilateral or multilateral agreement may be imported into the US without documentation certifying the exportation of the object complied with the laws of the exporting nation; any undocumented objects are subject to seizure and forfeiture.62 In this limited case, then, US courts will enforce foreign export restrictions. The CPIA also integrates language from the UNESCO Convention with respect to stolen cultural property. Consequently, ‘[n]o article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution in any State Party which is stolen from such institution . . . may be imported into the United States’.63 Stolen property will be subject to seizure and forfeit ure if imported. It must be noted, though, that this does not significantly alter previously existing US law, because claimants have had the option to bring suit in US courts to recover stolen cultural property. In addition, the CPIA is not an exclusive provision, and all common law and other remedies remain in effect.64 It was not until 1987 that the CPIA was invoked on an emergency basis, to bar imports of artefacts from the Cara Sucia region of El Salvador.65 In 1989, another emergency decree banned Coroma textiles from Bolivia.66 In 1990, Peru successfully sought an emergency import ban. This prevented Moche artefacts from the Sipán region of Peru from entering the United States unless accompanied by an export permit.67 The first bilateral agreement under the CPIA was the Agreement on Prehispanic Artifacts from El Salvador, which took effect in 1995.68 The designated list of restricted objects included ceramics, stone sculptures, and metal artefacts from the pre-Columbian era. A State Department committee called the Cultural Property Advisory Committee (CPAC) advises the President on whether the United States should adopt import restrictions under article 9 of the UNESCO Convention. Congress established the committee to balance the interests of archaeologists, museums, and private collectors. The eleven members of the CPAC are tasked with evaluating the extent to which the illicit trade in cultural property puts important cultural sites and objects at risk. The foreign nation 60 19 USC §2602. 61 Ibid, §2603. 62 Ibid, §2606. 63 Ibid, §2607. 64 See S. Rep. No 97–564, at 1, 22 (1982), reprinted in 1982 USCCAN, 4078, 4099. 65 See Import Restrictions on Archaeological Material From El Salvador, 52 Fed Reg 34,614 (1987). 66 See Antique Ceremonial Textiles from Coroma, 58 Fed Reg 29,349 (1993). 67 See Archaeological Material from the Sipan Archaeological Region, 55 Fed Reg 19,029 (1990). 68 See Import Restrictions on Prehispanic Artifacts from El Salvador, 60 Fed Reg 13,352, 13,361 (1995).

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972 Derek Fincham must give evidence that it is combating looting inside its own borders; it has to show the American market is substantial enough to warrant more control; it must also show that other means to decrease the theft and destruction are unavailable so that American dealers and collectors are not unfairly disadvantaged. To this point, all requests for import restrictions have been accepted.

4. Prosecution of Illicit Trafficking of Cultural Property in the United States Federal criminal penalties for dealing in illicit cultural property have gradually evolved over the last forty years. Successful prosecutions are rare because the cultural property trade has often been able to evade the high burden of proof to establish the intent to deal in illicit material. As a result, prosecutors in the United States have increasingly utilized seizure measures. These strategies can effectively punish individuals in limited circumstances or secure the return of some material, yet they do not effectively regulate the everyday operation of the art market. The current state of affairs will always produce limited results unless the market can effectively distinguish between licit and illicit objects. Without transparency, this will prove difficult. The next test of the applicability of the National Stolen Property Act (‘NSPA’) to cultural property came with the two appellate decisions stemming from United States v McClain.69 The defendants were convicted under the NSPA for stealing pre-Columbian artefacts from Mexico and selling them in the United States.70 This group of art dealers and appraisers created a network in Mexico which took artefacts from excavations to the Mexican Archaeological Institute; they were then given false papers and backdated to before 1972 in an attempt to give them clean provenance.71 The objects were then taken across the border to Calexico, California, where they were sold. These actions ultimately raised the suspicions of the director of the Mexican Cultural Institute, which informed the FBI, resulting in an undercover investigation. Mexico declared ownership of undiscovered pre-Columbian artefacts in 1972.72 As a result, the history and date of discovery of the objects was an important potential issue. However, in the first conviction, the government presented no evidence as to how and when the objects were discovered or exported. McClain I dealt with the vesting of 69 United States v. McClain, 545 F.2d 988 (5th Cir. 1977) (‘McClain I’); United States v McClain, 593 F.2d 658 (5th Cir. 1979) (‘McClain II’). 70 McClain I, 545 F.2d 988. 71 McClain II, 593 F.2d at 661. 72 McClain I, 545 F.2d at 992; see Ley federal sobre monumentos y zona, published in the Diario Oficial de la Federación on 6 May 1972.

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North American Cultural Heritage Law 973 ownership of antiquities with Mexico, with the court considering the definition of ‘stolen’ under the NSPA.73 The Fifth Circuit determined that the term should be given a broad meaning and remanded to the district court the issue of when precisely the objects were exported from Mexico.74 Federal prosecutors argued that an 1897 law accomplished State ownership, but the Fifth Circuit held title did not completely vest with Mexico until enactment of the 1972 law, because only then did Mexico declare ownership of all pre-Columbian artefacts.75 The jury had not been instructed to determine when any of the pre-Columbian objects at issue had been exported from Mexico or how to apply the relevant Mexican law to the export.76 The defendants were once again convicted of violating the NSPA and of conspiracy to violate the Act.77 At the retrial, the prosecution was required to establish beyond a reasonable doubt that the defendants knew they were selling stolen objects. In McClain II, the court upheld the conspiracy conviction due to overwhelming evidence that the defendants intended to smuggle Mexican artefacts, clearly violating the 1972 Mexican Act and by implication the NSPA.78 However, the conviction under the NSPA itself was overturned because of due process concerns.79 The district court judge and not the jury must determine questions of foreign law.80 As the Fifth Circuit court of appeals reasoned, the most likely interpretation of the evidence by the jury led to the conclusion that Mexico deemed itself the owner of its pre-Columbian objects as early as 1897. However, that Act was too vague to impose criminal liability upon a defendant under the ‘jurisprudential standards’ of the United States.81 The conviction of the McClain defendants for conspiracy to violate the NSPA firmly established the precedent that individuals may be convicted under the NSPA for dealing in objects that foreign States have nationalized.82 This ownership interest will be enforced by American courts despite the absence of any actual possession of the object by the foreign State. If a misappropriation occurs, such as removing that object from the foreign territory, then the action will be deemed a theft and will trigger potential enforcement mechanisms. This precedent was more firmly established with the prosecution of the prominent antiquities dealer Frederick Schultz.83 Schultz had worked closely with Jonathan Tokeley-Parry, who had earlier been convicted of violating the Theft Act in 1997 and handed a six-year custodial sentence in England.84 In 2002, thanks largely to the policing by London’s Art and Antiques Squad and Richard Ellis, and the testimony of Tokeley73 McClain I, 545 F.2d at 994–7. 74 McClain I, 545 F.2d at 993, 997–1004. 75 Ibid, at 997–8, 1000–1. 76 Ibid, at 1004. 77 Ibid, at 665–6. 78 Ibid, 671–2. 79 Ibid, 670. 80 Ibid, 669–70. 81 Ibid, 670. 82 See also United States v An Antique Platter of Gold, 991 F Supp 222 (SDNY 1997), affirmed, 184 F.3d 131 (2d Cir. 1999) (involving the forfeiture of a gold phial stemming from customs violation and the NSPA). On appeal, the Second Circuit Court of Appeals affirmed the forfeiture under the customs forfeiture and did not reach the NSPA issue. United States v An Antique Platter of Gold, 184 F.3d 131, 135 (2nd. Cir. 1999). 83 United States v Schultz, 333 F.3d 393 (2d Cir. 2003). 84 R v Tokeley-Parry (1999) Crim LR 578.

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974 Derek Fincham Parry, Schultz was found guilty by a jury of conspiring to violate the NSPA when he and Tokeley-Parry smuggled and disguised Egyptian antiquities from Egypt to the United States. Among the objects smuggled was a head of Pharaoh Amenhotep III. These acts violated Egyptian Law Number 117 of 1983, which declared all antiquities discovered after enactment of that law the property of the Egyptian government. Shultz appealed his conviction to the Second Circuit court of appeals, arguing that the Cultural Property Implementation Act of 1983 had superseded the precedent laid down in the McClain and Hollinshead decisions. The Second Circuit upheld the convictions. The court reasoned that the NSPA recognizes a foreign State’s rights to safeguard cultural objects within its borders and allows the looting of cultural objects from a foreign State to be adapted into a crime against the people of the United States. There are limits on the enforcement of these foreign patrimony declarations. For one, the vesting legislation must be sufficiently clear so as to give notice of its effects. Also, the criminal misappropriation must have occurred after the effective date of the vesting legislation. Due to the difficulty of establishing knowledge of an object’s illicit nature on the part of the defendant, prosecutions have been rare under the NSPA. Mexico and other nations of origin with objects valued in the American art market continue to suffer enormous losses of cultural property. Without the deterrent effect of the NSPA there might have been far more looting, yet the current state of deterrence is hardly limiting theft and destruction of archaeological sites to a satisfactory level. One of the most prevalent regulatory tools utilized by prosecutors in the United States is the forfeiture of illicit cultural objects. In the United States, a hybrid civil and criminal legal mechanism has sought to target objects and proceeds of illegal activity. And these tools have been used extensively to secure the forfeiture of illicit art and antiquities. One such effort involved a historic manuscript which had been in the Mexican National Archives in Mexico City as late as 1993.85 The manuscript dated from 1778 and was signed by Fray Junipero Serra, a missionary and soldier. The manuscript had allegedly been sold in 1992 at a flea market in Mexico City for only US$300. It was then illegally imported into the United States, sold to a man for US$16,000, and placed under consignment with Sotheby’s. A California antiquities dealer noticed the document in Sotheby’s catalogue and notified the Mexican National Archives that the document may have once been housed there. Soon after, the Archives undertook an examination and determined that the manuscript had been removed from a volume which had been microfilmed. The possessor of the manuscript, a Chicago area art collector named Dana Toft, purchased the manuscript from the man who illicitly imported it into the United States. In the end, the manuscript was returned to Mexico, and Toft received no compensation for his ill-advised purchase.

85 United States v An Original Manuscript Dated November 19, 1778, 1999 WL 97894, at *1 (SDNY 1999).

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North American Cultural Heritage Law 975

5. The Key Role Played by Customs and Border Protection in the United States The favoured approach in recent years in the United States has been to use seizure and forfeiture mechanisms to take contested objects from museums, collectors, and auction houses and return them to the nations of origin.86 This has the benefit of returning objects, yet there are seldom punishments or fines levelled against the individuals to continue to import this material—which leads, perhaps, to continued efforts to acquire illicit material. The United States federal government also routinely returns large amounts of cultural objects to nations of origin through Customs and Border Protection (CBP). Interpol and other cooperating foreign nations can request that the CBP seize or return material that may be illegally trafficked. Even without such a request, law enforcement agencies in the United States may seize objects under customs laws or civil forfeiture legislation.87 In a recent forfeiture proceeding, federal prosecutors brought an action against a painting known as Hannibal by the late artist Jean-Michel Basquiat. The claimant claimed the value of the painting and another sculpture at US$100 each.88 In fact, the claimant bought the painting by Basquiat for over US$1 million and the sculpture for over US$600,000. The court held these misrepresentations were material, and the importation of the items was declared illegal, with the result being the federal government receiving possession of the works, which it ultimately repatriated back to Brazil, allowing the Brazilian government to use the forfeiture of the works to punish Brazilian financier Edemar Cid Ferreira for defrauding the Brazilian financial system. The broad powers of the CBP to seize or detain objects presents serious consequences for importers of cultural objects. These consequences are so profound that they can even impact good-faith possessors of objects. After CBP has seized a cultural object, the Office of Enforcement will investigate the history of the object and attempt to discover the nation of origin, and notify authorities there. During this restitution process,

86 Derek Fincham, ‘Two Ways of Policing Cultural Heritage’ in Stefano Manacorda and Arianna Visconti (eds), Proceedings of the International Conference on Protecting Cultural Heritage as a Common Good of Humanity: A Challenge for Criminal Justice (International Scientific and Professional Advisory Council 2014). 87 See 18 USC §545 (2012) (smuggling goods into the United States); 19 USC §1497 (2012) (penalties for failure to properly declare objects); 19 USC §1595 (2012) (allows the search and seizure of objects on suspicion of failure to pay any required duty or if it has been introduced into the United States ‘contrary to law’). 88 United States v Painting known as Hannibal, 578 Fed Appx. 10 (2nd Cir. 2014).

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976 Derek Fincham the government may take additional measures such as further forfeiture proceedings or even a criminal action.89

6. The Protect and Preserve International Cultural Property Act In 2016, US President Obama signed into law a new provision which served to refine the framework set up under the CPIA.90 The reforms were targeted in two main areas, coordinating different agencies and erecting import restrictions on material from Syria. First, the Act attempts to allow the coordination of efforts across the various federal agencies which could potentially regulate illicit cultural objects. The committee is tasked to ‘coordinate the efforts of the executive branch to protect and preserve international cultural property at risk from political instability, armed conflict, or natural or other disasters’. It also provides that the committee gather representatives from the Department of State, the Smithsonian Institution, and other federal agencies. The Act requires the President to report to Congress annually for seven years to update progress of the executive branch to protect and preserve cultural property. Also, the new legislation erected import restrictions on material from Syria. One of the flaws of the CPIA and the Cultural Property Advisory Committee is their reliance on foreign States to seek the safeguards of import restrictions of material entering the United States. For a nation in turmoil, this can be an impossible step. So to prevent the United States art market from driving demand for illicit material, import restrictions can only be implemented with action from Congress. These safeguards were created for material from Syria. Import restrictions were placed on any archaeological or ethno logica l material originating from Syria. The Act allows the President to waive these import restrictions in limited circumstances to provide safe harbour for at-risk objects.91 89 Christina Luke, ‘U.S. Policy, Cultural Heritage, and U.S. Borders’ (2012) 19 International Journal of Cultural Property 175. 90 Pub L No 114–151. Derek Fincham, ‘Recent American Legislation Responding to the Loss of Cultural Heritage’ 2 Santander Art and Culture Law Review, Issue 1, 63 (2015). 91 These include: if either the owner or custodian requests that material may be temporarily located in the U.S. for its protection or no such owner or custodian can be identified and the President determines that the material should be temporarily located in the U.S.; if the material will be returned to the owner or custodian when requested; and if there is no credible evidence that the waiver will contribute to illegal trafficking or the financing of criminal or terrorist activities. See Designated List of Archaeological and Ethnological Material of Syria 81 Fed Reg 53,916–01 (15 August 2016) accessed 20 October 2017.

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North American Cultural Heritage Law 977

6.1 Canada and the 1970 UNESCO Convention In 1978, Canada acceded to the 1970 UNESCO Convention in a more comprehensive way, typical of most other States Parties to the Convention.92 In 1981, the first request was received from a foreign government for the return of illegally exported cultural objects. Mexico asked for the return of two pre-Columbian statuettes which had been illegally exported from Mexico and were forfeited under the Canadian Customs Act because they were improperly described on their customs declaration.93 Another request for the return of cultural property under the UNESCO Convention occurred in December 1981, when a Nok terracotta sculpture was seized by the Royal Canadian Mounted Police.94 The object originated from Nigeria and passed through the United States on its way to Canada, where two American art dealers had hoped to sell the object for as much as US$650,000. Illegal import charges were brought under Canada’s Cultural Property Export and Import Act, but the charges were dismissed at the criminal trial because the defendants claimed that the legislation in Canada did not become effective until 1978, and the figurine had allegedly been in a private collection in Paris since perhaps the 1950s. The trial of these dealers marked an early instance of cooperation between the United States and Canada with respect to policing the antiquities trade, although it also led to one of the most effective defences used by antiquities dealers— namely, that the alleged illicit material had existed outside the country of origin before the operation of the national ownership declaration or the import restriction. In essence, the case and others like it have set a precedent that safeguards on the movement of illicit cultural heritage are not retroactive and cannot be used to police material which has left its nation of origin before the regulatory measure was enacted. This has handcuffed efforts to police the antiquities trade. Canada’s Cultural Property Act balances the control on the movement of cultural objects with incentives. The Act was limited to preventing the export of national treasures, to identify and protect only the most outstanding or important Canadian cultural objects.

6.2 The World Heritage Convention The 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage applies to natural or human-created sites that are of ‘outstanding universal

92 Ian Clark argued this accession to the Convention demonstrated Canada’s ‘responsibility to act as guardian of the heritage of all Canadians’ and this responsibility ‘extends to the cultural heritage of all mankind.’ Clark, ‘The Cultural Property Export and Import Act of Canada’ (n 36) 786. 93 Ibid, citing Department of Communications (Canada), Annual Report 1981–1982: Cultural Property Export and Import Act 12 (1982). 94 Grace Glueck, ‘Canada Arrests Two Art Dealers In Import Case’, The New York Times (28 December 1981) accessed 5 October 2017.

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978 Derek Fincham value’.95 The Convention has been one of UNESCO’s most successful initiatives and has worked well to draw attention to the world’s outstanding heritage sites. The State Party in which the site sits nominates sites. Then the World Heritage Committee updates the list and makes a determination about whether sites should be placed on that list. A heritage site which has been nominated must pass an authenticity test and meet one of the ten selection criteria listed in the Operational Guidelines to the Convention. In order to achieve inscription on the World Heritage List, a site must be tentatively designated by a State and evaluated independently, a management plan must be approved, and the decision of final approval is subject to the World Heritage Committee. States parties to the Convention agree to undertake effective site management, to submit periodic reports, to prepare management plans for sustainable tourism, and to ensure sustainable stewardship of the site. In turn, of course the States Parties enjoy the prestige of having an inscribed site, increased tourism, and access to assistance if a World Heritage Site is in danger. The Convention has achieved nearly unanimous adoption. The three North American States have all signed on to the Convention and have a number of sites inscribed on the list. Canada signed on to the Convention in 1976 and has eight cultural, ten natural, and one mixed World Heritage Site on the list.96 Mexico signed on to the World Heritage Convention in 1984 and has twenty-seven cultural sites, six natural sites, and two mixed sites.97 The United States signed on to the Convention in 1973 and has ten cultural, twelve natural, and one mixed site on the list.98 Some sites, though, are in danger. The World Heritage Committee maintains a list which helps to identify those sites which are under threat from climate change, conflict, pollution, or inadequate management. These sites are entitled to emergency safeguards that may entail special funding. In some cases a site in danger may be at risk due to development which the committee considers unwise. For example, the Yellowstone National Park in the United States was on the danger list for a number of years until local mining operations stopped, local building and road development was modified, the amount of tourist visitors was reduced, and snowmobile riding was limited in the park.99 The World Heritage Committee has been criticized for unequally inscribing sites and demonstrating a bias towards Europe, Asia, and North America. As a consequence, the number of sites per State Party has reduced dramatically in recent decades, and the Committee has placed limits on the number of sites which may be considered each year 95 Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972) 1037 UNTS 151 (World Heritage Convention). 96 UNESCO World Heritage Centre, ‘Canada’ (UNESCO World Heritage Centre, no date) accessed 3 October 2018. 97 UNESCO World Heritage Centre, ‘Mexico’ (UNESCO World Heritage Centre, no date) accessed 3 October 2018. 98 UNESCO World Heritage Centre, ‘United States of America’ (UNESCO World Heritage Centre, no date) accessed 3 October 2018. 99 Helen Hazen, ‘“Of Outstanding Universal Value”: The Challenge of Scale in Applying the World Heritage Convention at National Parks in the US’ (2008) 39 Geoforum 252.

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North American Cultural Heritage Law 979 and capped the number of sites individual States Parties may have considered. The three North American States have enjoyed the benefits of inscription of their World Heritage Sites. The criticisms which have been levelled at World Heritage status, as a driver of tourism, with not enough attention paid to stewardship and preservation, can be seen in the sites there as elsewhere.

6.3 Underwater Cultural Heritage In 2001, UNESCO adopted the Convention on the Protection of the Underwater Cultural Heritage.100 The Convention entered into force in 2009. As of 2018 it has sixty States Parties, including Mexico which ratified the Convention in 2006. But neither Canada nor the United States has expressed much interest in joining the Convention. During the period of negotiation of the Convention, the United States was not a member of UNESCO. The Convention makes sensible calls to incorporate accepted archaeological and scientific standards when handling and preserving underwater cultural sites. It prohibits commercial exploitation of these resources, however. The Underwater Convention reveals the continuing trend in UNESCO against commercial development of any kind. For example, article 2(7) states: ‘Underwater cultural heritage shall not be commercially exploited.’ This makes it impossible for salvagers to explore or excavate underwater sites, a prohibitively expensive undertaking. Perhaps such a complete ban is warranted; however, the Convention’s total ban of any commercial exploitation, and its seeming pessimism over any kind of archaeologically responsible commercial exploit ation, reveals the position of UNESCO within the broader cultural heritage policy debate. It also makes the major maritime nations of the United States and Canada unlikely to fully embrace the tenets of the Convention.

7. Conclusion In examining each of these three nations’ approach to cultural heritage law, some interesting themes have emerged. As we have seen, Mexico has taken the approach most typically employed by nations of origin with a rich material cultural heritage that must be safeguarded against looting and the irrepressible forces of the art market. Canada has taken an approach which has much in common with other Commonwealth nations such as Australia and New Zealand—borrowing some of the legal traditions and policy solutions of the United Kingdom, while also trying to safeguard the material and intan gible cultural heritage of Indigenous groups. The United States, on the other hand, due 100 UNESCO Convention on the Protection of the Underwater Cultural Heritage (6 November 2001) 2562 UNTS 3 (Underwater Convention).

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980 Derek Fincham to its robust art market and private organization of its cultural institutions, is often a destination for illicit cultural objects. As such, it has required federal agencies and individual law enforcement personnel and prosecutors to respond to this illicit movement. This has led to staggering amounts of repatriated material flowing from the United States, much of it due to the lack of adequate safeguards by the actors and regulators of the movement of these cultural objects.

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Index

A

Africa see also Middle East and North Africa intangible cultural heritage 365–6 participation in conventions 827–9 programmes initiated by UNESCO 823–7 movable cultural heritage benefits of adopting Egyptian law 816–17 comparison of national legislations 814–16 need for accurate inventories and descriptions 818–19 need for administrative measures 821–2 need for strengthened and upgraded legislation 819–21 overview of national controls 813 security of museums 817–18 special vulnerability from armed conflict 822–3 neglect of immovable cultural heritage 829–32 participation in WHC 832 way forward 832–4 Alternative dispute resolution (ADR) alternative mechanisms 679–80 efficiency in area of cultural heritage 733–6 establishment of fair and just solutions 683–6 institutional aspects establishment of specific rules and procedures 726–9 ICOM–WIPO Art and Cultural Heritage Mediation Program 729–31 UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property t 726–9

litigation compared 718–20 methods arbitration 724–6 conciliation 723–4 mediation 722–3 negotiation 720–2 role in international disputes 666 settlements out of court 680 Americas see Central and South America; North America Amnesties 177, 180–1 Applicable law benefits of ADR 679 conflict of law cases overriding or mandatory rules 713 public order of the forum State 712–13 public order of third States 713–14 international investment law 485, 492–4, 505 key issues in domestic courts lex contractus 696–7 lex fori 700 lex loci delicti commissi 699–700 lex loci protectionis 700 lex rei sitae 698–9 lex successionis 700 limits posed 669 public law 701–2 substantive law 708–12 overview 716–17 treaty arbitration 525 WHC 252, 269, 676 Arbitration 724–6 Archaeological heritage defined as cultural heritage 3 Hague Convention 1954, 2nd Protocol 62–3 ICO international regime of antiquities and excavations 17–20

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982 index Archaeological heritage (cont.) protection of national artistic and historical treasures 20–2 regulation of sites and transfer of objects 31–5 regional approaches Central and South America 881 North America 960 theft and illicit excavation history and development of market for works of art 201–3 international cultural heritage law 216–19 models of implementation for UNESCO Convention 1970 219–23 overview 200–1 particular legal and knowledge-based concerns 225–6 state controls 203–16 UN Security Council Resolutions 223–5 Armed conflict see War and armed conflict Armed non-State actors (ANSAs) growing number of direct attacks against cultural sites 760 protection of cultural property in armed conflict 764–7 Asia East Asia domestic legislation to protect heritage 839–45 lack of international cooperation 845–6 return or repatriation of cultural objects 846–9 spectacular growth of art market 837–9 need for improved coordination and cooperation 858–9 overview 835–7 South East Asia Cambodian experience 849–51 lack of international cooperation 856–7 return or repatriation of cultural objects 857–8 strengthening of domestic legislation 851–6

B

Blue Shield International Committee (ICBS) 69, 247, 748, 767–8

C

Central and South America apparent effort to promote Pan-Americanism 906–7 domestic law trends 880–1 forging regional identity through heritage 887–92 overview 878–9 participation in international law 882–7 policy programmes 892–901 standard-setting 902–6 Codes of ethics and conduct ADAA 800 as art market regulation instruments 803–5 CINOA 789, 791, 794, 797 classification as soft-law 801–3 control over exploration and excavation 203–5 due diligence principle 546 ICOM Code of Ethics for Museums 2004 241, 682, 730, 732, 788 illicit exports and imports 249 key provisions acquisition and transfer of items and collections 790–2 de-accessioning policies and procedures 797–9 non-binding sanctions 799–800 origin of items and collections 792–4 professional conduct 794–7 main kinds of effects 805–7 origins and role 787–90 State responsibility 620 UNESCO International Code of Ethics for Dealers in Cultural Property 1999 240, 248 Conciliation 723–4 Conflict of laws overriding or mandatory rules 713 public order of the forum State 712–13 public order of third States 713–14 Conventions see International cultural heritage law Copyright 478–81 Crimes against humanity defined at Nuremberg 110–11, 111–12

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index 983 developments of ICT case law definition of persecution 112–14 lack of specific definition 111–12 ILC approach 111, 111–12 intentional destruction 82–4 post-conflict and transitional justice amnesties and vetting 180–1 investigation and prosecution of serious crimes 179–80 responsibility to protect (R2P) 122, 129–30 State responsibility 97–8 Criminal law see International criminal law ‘Cultural cleansing’ 78 Cultural diversity Central and South America 878–9 common heritage of humanity 388 indigenous peoples 419–20 re-emergence as safeguarding issue 35–8 regional approaches Africa 825 Central and South America 884 Europe 920 restricting trade in cultural items 508 s links between cultural heritage and the natural environment 336 strengthening of cultural identity 403 Subsidiary Committee role 240 UNESCO Heritage Conventions 758–9 Cultural genocide case study of Khmer Rouge in Cambodia 117–20 ICTY case law on mens rea 116–17 intentional destruction 84–5 leading case before ICJ 673–4 origins and development of definition 115–16 peremptory principles of jus cogens 548–9 post-conflict and transitional justice amnesties and vetting 180–1 investigation and prosecution of serious crimes 179–80 responsibility to protect (R2P) 122 alternative concept of ‘culturecide’ 140 development of current case law 136–8 ethnic cleansing 138–40 historical examples 133–5 issues arising in Iraq and Syria 140–2 overview 130–2

Customary international law emergence of new rules 550 illicit transfers from territories under military occupation 539–40 indigenous peoples International Law Association 423–7 State practice and opinio juris 421–3 intentional destruction 98–9 ‘Stela of Matara’ ruling 535–7 UN approach 537–8 international humanitarian law 52 international responsibility for cultural heritage wrongs 602 responsibility to protect (R2P) 144 State responsibility 613–14 State succession 590–7 status of UNCSIs antiseizure norms 573–80 substantive IHL obligations attacks against or in vicinity of cultural property 53–6 conduct of belligerent occupiers 59–60 dangers resulting from military operations 57–8 destruction or damage of controlled property 56 missapropriation and vandalism 58–9 use of cultural property or immediate surroundings 56–7 underlying methodological premise 533–5

D

Destruction see Intentional destruction Disasters cross-fertilization between ILD and ICHL 156–62 disaster risk reduction (DDR) due diligence 151–2 Hague Convention 1954 148 IDL instruments 152–6 potential ‘mitigating’ factors 152 World Heritage Convention 148–51 ICOM Disaster Risk Management Committee 767 impact of recent events 145 lack of specialist instruments 145–6 meaning and scope 146

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984 index Disasters (cont.) need for increased cross-fertilization between ILD and ICHL 167–8 overview 145–6 refined US legislative framework 976 relief and recovery phases 163–7 responsibility to protect (R2P) 123, 126, 127 right to take part in cultural life 88 synergies between wartime and peacetime protection 74 Dispute resolution see International dispute resolution Diversity see Cultural diversity Domestic courts see also Dispute resolution benefits of litigation 667 difficulties of access 669 examples of successful claims 667–8 importance for art law disputes 715 key issues applicable law 696–707 immunity 687–9 jurisdiction 689–96 last resort in the cultural heritage field 668 limits posed by jurisdiction and applicable law 669–70 prior exhaustion of domestic remedies in State pleading immunity 564 recognition of foreign judgments recovery of Holocaust art located abroad 714–15 submission of defendant living abroad 715 restitution of stolen or looted heritage 646 transnational art cases 666–7 Due diligence disaster risk reduction (DDR) 151–2 general principle 545–6 protection of cultural heritage by non-State actors 773–6

E

East Asia domestic legislation to protect heritage China 839–42 Japan 842–3 Korea 844–5 lack of international cooperation 845–6

return or repatriation of cultural objects 846–9 spectacular growth of art market 837–9 Enforcement see Remedies Environmental law see International environmental law Ethics see Codes of ethics and conduct Ethnic cleansing see Cultural genocide EU law see also Europe art market regulation 804 destruction of cultural sites perpetrated by ISIS/Da’esh 74 disaster relief/recovery discourse 167 European Landscape Convention 2000 inadequacy as legal tool in itself 290–3 from landscape as heritage to landscape as public space 288–90 origins 287–8 illicit exports and imports 245 intangible cultural heritage 366–7 intentional destruction 80 landscapes 276–8 language 377–8 national treasures 522–3 return of cultural objects 34–5 status of UNCSIs antiseizure norms 579 substantive law and policy 925–8 Europe see also EU law continuing role for CoE 929–30 Council of Europe competence and instruments 911–12 ECHR focus 919–21 substantive measures 912–18 European Union competence and instruments 921–5 ECHR focus 928–9 substantive law and policy 925–8 membership developments 909–10 two key organizations 908–9 Execution immunity for cultural heritage property status of UNCSIs antiseizure norms 573–80 under the UNCSI 569–73 Exports see Illicit exports and imports

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index 985

F

‘Folklore’ see Intangible cultural heritage Foreign judgments see Recognition of foreign judgments Freedom of expression Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 388 crimes against humanity 87 ending of gender silence 452 Oceania 877 protection of cultural diversity 437 relevance to cultural heritage 397, 405 State responsibility 405 Freedom of thought and religion ECHR 919 international dispute resolution 672 relevance to cultural heritage 397–8, 404

G

General principles derived from domestic law due diligence 545–6 sovereign rights of patrimony 544–5 variety of normative models 544 emergence of ‘aspirational’ principles 546–7 emergence of new rules 550 overview 531–3 peremptory principles of jus cogens 548–50 procedural principles 547–8 reflection of fundamental values and interests of international community examples 541–2 principle of cultural heritage of humanity 542–3 world cultural heritage 543–4 source of international obligations 540–1 Genocide see Cultural genocide Governance impact of dispute resolution 499–501 international investment governance dispute settlement mechanisms 486–7

need for improved cultural governance and development of law 505–6 overview 485–6 protection to investors’ rights 486 landscapes 284–7 role of non-State actors adoption of WHC 776–7 meetings of the World Heritage Committee 779–80 Operational Guidelines 777 participation of communities 778–9 shift in authority and governance 785–6 World Heritage List 777–8 rule of law 499–500

H

Heritage see Cultural heritage History of international protection background to League of Nations and the United Nations 13–14 Intellectual Cooperation Organisation adoption of agreed system of antiquities and excavations 17–20 background to current role 14 early importance 38 origins and establishment 15–17 promotion of cultural diversity 22–3 protection of cultural property during wars or civil strife 23–4 regulation of trade in art and antiquities 20–2 international humanitarian law 45–6 UNESCO early importance 38–9 history of organisation 24–6 impact of changing membership 26 protection of cultural property during armed conflict 27–9 regulation of transfer and restitution of cultural objects 31–5 replacement of founding ideals government imperatives 39 safeguarding of intangible heritage and cultural diversity 35–8 World Heritage Convention 29–31

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986 index Human rights see also Cultural rights; Indigenous peoples; Womens’ cultural rights approaches to cultural heritage access, contribution, participation and enjoyment 400–2 limitations of rights and harmful cultural practices 403–5 cases before ECtHR 671–3 clash with State immunity execution immunity for cultural heritage property 572 overview 551 status of UNCSIs antiseizure norms 574 clash with State succession general principles of territorial provenance 603 issue of automatic succession 598 overview 582 UN programmes for the peace processes in Bosnia-Herzegovina and Kosovo 599 construction of cultural rights as true human rights 8 European Landscape Convention 2000 290–1 freedom of expression 397 growing importance of cultural heritage 379–82 indigenous peoples overview 408 UN Declaration on the Rights of Indigenous Peoples 2007 411–14 individual and collective rights 399–400 intentional destruction international instruments 86–7 overview 85 as persecution 87 right to culture and to cultural heritage 89–90 rights violated 87–9 links with cultural identity 389–90 recognition of individuals as interested party 7–8 regional approaches 864 Africa 812 Central and South America 887–92, 897, 899, 906

Europe 910–12, 915, 919–24, 928–9 Oceania 862 relationship to intangible cultural heritage 361–3 responsibility to protect (R2P) 143 right to a remedy and reparations compensation and rehabilitation 189–91 guarantees of non-repetition 192–5 overview 184–5 remedies 185–6 reparations 186–7 restitution 187–9 satisfaction 191–2 right to enjoy culture for minorities and indigenous peoples 395–7 right to take part in cultural life ESCR Committee 391–5 International Covenant on Economic, Social and Cultural Rights 1976 391 State responsibility 394 Universal Declaration of Human Rights 1948 390–1 right to truth 181–4 ‘self-contained’ regimes affecting the protection of cultural heritage 605 shielding of cultural heritage from negative effects 405–6 shift from cultural property to cultural heritage 4 UNESCO heritage instruments Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 388 importance 382–3 Recommendations 386–7 three Cultural Heritage Conventions 384–6 Universal Declaration on Cultural Diversity 2001 387–8

I

Illicit exports and imports see also Theft and illicit excavation African cultural heritage benefits of adopting Egyptian law 816–17 comparison of national legislations 814–16

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index 987 need for accurate inventories and descriptions 818–19 need for administrative measures 821–2 need for strengthened and upgraded legislation 819–21 security of museums 817–18 special vulnerability from armed conflict 822–3 arguments for international trade liberalization 508 CITES 1973 339 code of ethics 249 complex relationship between culture and trade 507 East Asia domestic legislation to protect heritage 839–45 lack of international cooperation 845–6 return or repatriation of cultural objects 846–9 spectacular growth of art market 837–9 EU law 245 history of international protection regulation by UNESCO of transfer and restitution of cultural objects 31–5 regulation of trade in art and antiquities in 1930s 20–2 illicit transfers from territories under military occupation customary international law 539–40 treaty regulation 538–9 interaction between UNESCO Convention 1970 and international trade law overview 509–10 UNESCO’s assumption regarding nexus 520–1 international cultural heritage law background and signing of 1970 Convention 231–3 concluding treaties of the Napoleonic wars 229 failure to distinguish between peacetime and wartime 233 Hague Convention 1954 230–1 Palermo Convention 238–9 UNESCO–UNIDROIT Model Provisions on State Ownership 237–8 UNIDROIT Convention 1995 233–7

international investment agreements 523–6 key elements in international prevention measures 249 Middle East and North Africa archaeological excavations and surveys 947–9 criminal sanctions 954–5 export and import controls 952–4 inventories and records 946–7 ownership and transfer 944–6 trade in cultural items 949–52 models of implementation for UNESCO Convention 1970 hybrid approach 221–2 reciprocal restrictions 219 specific designation requirements 222–3 supplementary bilateral agreements 220–1 national treasures exceptions in other international agreements EU law 522–3 Mercosur’s trade liberalization obligations 523–4 need for uniform standard for documentation and identification 246 networking cooperative network 248 law enforcement agencies 247–8 North America Canadian domestic protection 965–8 Mexican domestic protection 960–1 special law enforcement efforts 968 US domestic protection 962–5 US prosecution of illicit trafficking 972–5 US seizure and forfeiture mechanisms by customs 975–6 protection of cultural heritage by non-State actors amending the ‘due diligence’ requirement 773–6 UNESCO Operational Guidelines 771–2 role of intergovernmental and NGOs Blue Shield International Committee 247 International Council of Museums (ICOM) 241–2 INTERPOL 242–3

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988 index Illicit exports and imports (cont.) national police units 243–4 Subsidiary Committee to 1970 Convention 240–1 UNESCO as lead agency 239–40 United Nations Office on Drugs and Crime (UNODC) 239 World Customs Organization (WCO) 244–5 South East Asia Cambodian experience 849–51 lack of international cooperation 856–7 return or repatriation of cultural objects 857–8 strengthening of domestic legislation 851–6 theft and illicit excavation history and development of market for works of art 201–3 state controls 205–6 uncertainties in international law 526–7 UNESCO Convention 1970 bilateral agreements or understandings 513–14 core definitions and obligations 510–11 State controls on exports and imports 511–12 UNESCO Heritage Conventions 748–50 UNESCO–WCO Model Export Certificate 246–7 war and armed conflict failure of 1970 Convention to distinguish between peacetime and wartime 233 looting by Nazis during WWII 228–9 origins as trophy of war 227–8 trophies of British Empire 229–30 WTO quantitative restrictions GATT 1994 514 most-favoured nation (‘MFN’) obligation 515 national treasures exception 515–18 potential for dispute 518–20 Immunity execution immunity for cultural heritage property status of UNCSIs antiseizure norms 573–80 under the UNCSI 569–73

key issues in domestic courts art objects 688–9 changing approach to problem 715–16 defendants 687–8 ‘return guarantees’ 689 State immunity emerging agreement and consolidation 580 execution immunity for cultural heritage property 569–73, 573–80 immunity from jurisdiction 553–8, 558–62, 562–9 intriguing legal and policy questions 551 litigation in domestic courts 719 overview 551–2 UNESCO representatives 745 Imports see Illicit exports and imports Indigenous peoples alternative dispute resolution 719 Central and South America apparent effort to promote Pan-Americanism 906–7 forging regional identity through heritage 887–92 overview 878–9 policy programmes 892–901 construction of cultural rights as true human rights 8 cultural heritage as cross-cutting issue 408 cultural heritage as foundation for thriving 407 ‘cultural integrity’ 407–8 customary international law International Law Association 423–7 State practice and opinio juris 421–3 establishment of national commissions on folk art 22–3 four key conclusions 429–30 good practices 427–9 holistic concept of cultural heritage 414–16 human rights 408 intentional destruction 89 international instruments Convention for the Protection of the Diversity of Cultural Expression 2005 419–20

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index 989 Convention on the Rights of the Child 1989 418 ILO Convention 169 420 International Covenant on Civil and Political Rights 1976 416–17 International Covenant on Economic and Social Rights 1966 417–18 UNESCO Convention for safeguarding of the Intangible Cultural Heritage 2003 418–19 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995 420 internationalization of investment disputes fair and equitable treatment 488–90 indirect expropriation 490–9 links with specific environmental treaties Declaration on the Rights of Indigenous Peoples 1997 344–5 ILO Convention 169 343–4 Oceania intangible cultural heritage 871–3 legal pluralism and customary land ownership 869–71 promotion of a holistic understanding 4 Ramsar Convention 1971 338–9 remedies for misappropriation of culture historical processes of group cultural destruction 650–5 restitution of wrongly appropriated items 647–50 responsibility to protect (R2P) 143 right to enjoy culture for minorities and indigenous peoples 395–7 Rio Declaration 1992 323 safeguarding of diversity by UNESCO 35–8 UN Declaration on the Rights of Indigenous Peoples 2007 background and development 409–11 explicit affirmation of rights 411–14 Institutional aspects alternative dispute resolution establishment of specific rules and procedures 726 ICOM–WIPO Art and Cultural Heritage Mediation Program 729–31

framework for IHL general constitutional mandate of UNESCO 70 intergovernmental Committee for the Protection of Cultural Property 69–70 International Committee of the Red Cross 70 technical assistance from UNESCO 69 intellectual property 468–9 international cultural heritage law role of UNESCO 737–9 strengthened cooperation between UN and UNESCO 740–4 structure of UNESCO 744–5 UNESCO Heritage Conventions 746–59 international dispute resolution absence of specialized forum for solving disputes 665–6 ICOM–WIPO Art and Cultural Heritage Mediation Program 682–3 Intergovernmental Committee for Promoting the Return of Cultural Property (ICPRCP) 680–1 overview 665–6 international tribunals ECtHR 671–3 ICC 675–6 ICJ 672–4 ICSID 676 ICTY 674–5 inconsistent judicialization 670 virtues and vices of judicial proceedings 678–9 World Bank Inspection Panel 676–7 regional approaches Middle East and North Africa 935–6 Oceania 864–5 Intangible cultural heritage Africa participation in conventions 827–9 programmes initiated by UNESCO 823–7 defined as cultural heritage 3 evolving implementation of 2003 Convention 369–70 increasing role of non-state actors 5 indigenous peoples 418–19

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990 index Intangible cultural heritage (cont.) intellectual property complex relationship with cultural heritage 481–2 history and development of legal principles and institutions 466–70 key developments in international heritage law 460–6 legal protection for ‘folklore’ after WWII 35–6 overview 459–60 relationship to intangible cultural heritage 359–61 TCE and copyright 478–81 TCE/TK and trademarks 474–8 TK and patents 470–4 intentional destruction 76–7 language component of every national legal order 373–5 international cultural heritage law 375–8 as part of cultural heritage 371–2 link with environment 333–4 principle of cultural heritage of humanity 543 promotion of cultural diversity by ICO 22–3 regional approaches Africa 365–6 Europe 366–7 Oceania 871–3 Organization of American States (OAS) 367–8 South East Asia 368–9 relationship to other international agreements human rights 361–3 intellectual property 359–61 international environmental law 363–5 restitution of wrongly appropriated items 647–50 role of non-State actors 781–5 role of UNESCO normative and related operational activities 1990–2003 347–52 subsequent implementation and limitations 352–9 safeguarding by UNESCO 35–8

shift from cultural property to cultural heritage 4 UNESCO Heritage Conventions 756–8, 756–9 women’s’ cultural rights 441 Intellectual Cooperation Organisation (ICO) adoption of agreed system of antiquities and excavations 17–20 background to role 14 early importance 38 efforts to secure and sustain peace 170–1 origins and establishment 15–17 promotion of cultural diversity 22–3 protection of cultural property during wars or civil strife 23–4 regulation of trade in art and antiquities 20–2 Intellectual property history and development of legal principles and institutions 466–70 key developments in international heritage law definitions 461–2 overview 460–1 TCE and TK 462–6 legal protection for ‘folklore’ after WWII 35–6 overview 459–60 relationship to intangible cultural heritage 359–61 TCE and copyright 478–81 TCE/TK and trademarks 474–8 TK and patents 470–4 Intentional destruction see also International humanitarian law challenges raised by public outcry 1 crimes against the international community development in international courts 91 UNESCO 90 customary international law 98–9 State responsibility 537 ‘Stela of Matara’ ruling 535–7 UN approach 537–8 discriminatory intent of the perpetrators 76–8

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index 991 international criminal law crimes against humanity 82–4 cultural genocide 84–5 prosecution of individuals 94–6 war crimes 80–1 international cultural heritage law 79–80 peremptory principles of jus cogens 548–9 post-conflict and transitional justice 178 practice over time 75–6 remedies impact of Al Mahdi Reparation Order 658–62 overview 655–6 post-conflict ad hoc approach 656–7 responsibility to protect (R2P) 142–3 State responsibility 95–8, 537 substantive IHL obligations 56 threat to international peace and security 92–4 violation of human rights international instruments 86–7 overview 85 as persecution 87 right to culture and to cultural heritage 89–90 rights violated 87–9 Intergovernmental organizations see Nongovernmental and intergovernmental organizations International Council of Museums (ICOM) Code of Ethics 682, 730, 732, 792–3 Disaster Risk Management Committee 767 ICOM–WIPO Art and Cultural Heritage Mediation Program 682–3, 729–31 illicit exports and imports 32, 239, 241–2, 247 institutionalization of ADR 726 International criminal law ancillary IHL rules 66–8 compartmentalization of cultural heritage 4 crimes against humanity defined at Nuremberg 110–11, 111–12 developments of ICT case law 111–12, 111–14, 112–14 ILC approach 111, 111–12 intentional destruction 82–4

responsibility to protect (R2P) 122, 129–30 State responsibility 97–8 cultural genocide case study of Khmer Rouge in Cambodia 117–20 ICTY case law on mens rea 116–17 origins and development of definition 115–16 responsibility to protect (R2P) 122, 130–42 enforcement of IHL 72–3 intentional destruction crimes against humanity 82–4 cultural genocide 84–5 prosecution of individuals 94–6 need for harmonization of criminal liability 120 post-conflict and transitional justice accountability of perpetrators 177–9 amnesties and vetting 180–1 investigation and prosecution of serious crimes 179–80 overview 176–7 recognition of individuals as interested party 7–8 recognition of international community as interested party 6–7 State responsibility attribution of wrongful acts to states 617–24 circumstances precluding wrongfulness 628–32 ICC Statute 614–17 legal and practical consequences 632–40 wrongful conduct of the State resulting in the breach 624–7 variety of approaches to protection of cultural heritage 100–1 International cultural heritage law cultural heritage defined 2–3 customary international law illicit transfers from territories under military occupation 538–40 intentional destruction 535–8 overview 531–3 underlying methodological premise 533–5

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992 index International cultural heritage law (cont.) direct or indirect links with environment Convention on Diversity of Cultural Expressions 2005 336 Hague Convention 1954 329 ICH Convention 2006 333–4 ICH Operational Directives 335–6 Underwater Cultural Heritage Convention 2001 333–4 Universal Declaration on Cultural Diversity 2001 332–3 World Heritage Convention 329–30 World Heritage Operational Guidelines 1992 330–2 disasters cross-fertilization between ILD and ICHL 156–62 due diligence 151–2 Hague Convention 1954 148 lack of specialist instruments 145–6 need for increased cross-fertilization between ILD and ICHL 167–8 potential ‘mitigating’ factors 152 relief and recovery phases 163–7 World Heritage Convention 148–51 dominance of States 5–6 general principles derived from domestic law 544–6 emergence of ‘aspirational’ principles 546–7 emergence of new rules 550 overview 531–3 peremptory principles of jus cogens 548–50 procedural principles 547–8 reflection of fundamental values and interests of international community 541–4 source of international obligations 540–1 illicit exports and imports background and signing of 1970 Convention 231–3 concluding treaties of the Napoleonic wars 229 failure to distinguish between peacetime and wartime 233

Hague Convention 1954 230–1 Palermo Convention 238–9 UNESCO–UNIDROIT Model Provisions on State Ownership 237–8 UNIDROIT Convention 1995 233–7 indigenous peoples Convention for the Protection of the Diversity of Cultural Expression 2005 419–20 Convention on the Rights of the Child 1989 418 ILO Convention 169 420 International Covenant on Civil and Political Rights 1976 416–17 International Covenant on Economic and Social Rights 1966 417–18 UNESCO Convention for safeguarding of the Intangible Cultural Heritage 2003 418–19 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995 420 institutional aspects role of UNESCO 737–9 strengthened cooperation between UN and UNESCO 740–4 UNESCO Heritage Conventions 746–59 intentional destruction EU law 80 Hague Conventions 79–80 UNESCO Declaration 2003 79–80 key developments relating to intellectual property definitions 461–2 overview 460–1 TCE and TK 462–6 landscapes adoption of WHC 278–9 European Landscape Convention 2000 287–93 impact of WHC on global governance 284–7 language Convention on Cultural Diversity 2005 376–7 EU law 377–8

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index 993 Intangible Cultural Heritage Convention 2003 375–6 two ways in which linguistic heritage is protected 375 major contribution of UNESCO through World Heritage Convention 29–31 origins in IHL 43–4 oversight by UNESCO and UNIDROIT 1–2 recognition of interested parties 7 regional participation Africa 827–9, 832 Canadian participation in UNESCO Convention 1970 977 Central and South America 882–7, 902–6 Council of Europe 912–18 East Asia 845–6 Middle East and North Africa 932–4, 956–8 North American participation in WHC 978–9 Oceania 862–3, 874–6 South East Asia 856–7 US participation in UNESCO Convention 1970 970–2 role for the international community 6–7 State responsibility Hague Conventions 608–10 UNESCO Declaration 2003 610–11 State succession 597–9 theft and illicit excavation early developments by UNESCO and UNIDROIT 216–18 UNESCO Convention 1970 218–19 UNIDROIT Convention 1995 218 UNESCO Heritage Conventions cultural diversity 758–9 illicit exports and imports 748–50 intangible cultural heritage 756–8 underwater cultural heritage 754–6 war and armed conflict 747–8 women’s’ cultural rights Convention on the Elimination of Discrimination Against Women 1979 438–41 gender in practice 453–6

International Covenant on Economic, Social and Cultural Rights 1976 441 legal silence in drafting of treaties 451–3 overview 450–1 remedying gender-blindness 456–7 world cultural heritage effectiveness of WHC 270–1 impact of WHC 268–9 importance of WHC 250–2 International disaster law cross-fertilization between ILD and ICHL 156–62 emerging branch of law 145 influence on disaster risk reduction (DDR) 152–6 need for increased cross-fertilization between ILD and ICHL 167 relief and recovery phases 163–7 International dispute resolution see also International tribunals absence of specialized forum for solving disputes 665–6 advantages 679 alternative dispute resolution alternative mechanisms 679–80 arbitration 724–6 conciliation 723–4 efficiency in area of cultural heritage 733–6 establishment of fair and just solutions 683–6 establishment of specific rules and procedures 726–9 ICOM–WIPO Art and Cultural Heritage Mediation Program 729–31 litigation compared 718–20 mediation 722–3 negotiation 720–2 role in international disputes 666 settlements out of court 680 UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property t 726–9 establishment of fair and just solutions 683–6 ICOM–WIPO Art and Cultural Heritage Mediation Program 682–3

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994 index International dispute resolution (cont.) Intergovernmental Committee for Promoting the Return of Cultural Property (ICPRCP) 680–1 international investment law fair and equitable treatment 488–90 indirect expropriation 490–9 internationalization of investment disputes 486–7 policy options for better balance between public and private interests 501–5 potential impact on cultural governance, human rights law, and international law 499–501 structural imbalance between mechanisms 487–8 litigation in domestic courts benefits of litigation 667 difficulties of access 669 examples of successful claims 667–8 importance for art law disputes 715 key issues 687–9, 689–96, 696–707 last resort in the cultural heritage field 668 limits posed by jurisdiction and applicable law 669–70 prior exhaustion of domestic remedies in State pleading immunity 564 recognition of foreign judgments 714–15 restitution of stolen or looted heritage 646 transnational art cases 666–7 litigation in international tribunals ECtHR 671–3 ICC 675–6 ICJ 672–4 ICSID 676 ICTY 674–5 inconsistent judicialization 670 virtues and vices of judicial proceedings 678–9 World Bank Inspection Panel 676–7 overview 665–6 International environmental law fair and equitable treatment in investment disputes 488–90

increasing convergence 345–6 indigenous peoples 427–8 instruments relating to indigenous and local communities Declaration on the Rights of Indigenous Peoples 1997 344–5 ILO Convention 169 343–4 international cultural and natural heritage instruments Convention on Diversity of Cultural Expressions 2005 336 Hague Convention 1954 329 ICH Convention 2006 333–4 ICH Operational Directives 335–6 Underwater Cultural Heritage Convention 2001 333–4 Universal Declaration on Cultural Diversity 2001 332–3 World Heritage Convention 329–30 World Heritage Operational Guidelines 1992 330–2 landscapes as an integrating tool for sustainable development 293–4 multilateral environmental agreements Agreement on the Conservation of Polar Bears 1973 338 CITES 1973 339 Convention on Biological Diversity 1992 340–1 Convention on Migratory Species 1979 339–40 Convention to Combat Desertification 1994 342 Framework Convention on Climate Change 1992 341–2 International Whaling Convention 1946 337–8 North Pacific Fur Seals Convention 1957 338 overview 337 Ramsar Convention 1971 338–9 Treaty on Plant Genetic Resources 2001 342–3 overview 318–20 policy instruments and soft-law declarations Earth Charter 2019 323–4

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index 995 Global Pact for the Environment 2017 327–8 IUCN Draft Covenant 2015 326–7 IUCN World Declaration 2016 327 Millennium Development Goals 2000 324–5 Rio Declaration 1992 323 Stockholm Declaration 1972 321 Sustainable Development Goals 2015 325–6 World Charter for Nature 321–2 World Commission Environment and Development 322–3 relationship to intangible cultural heritage 363–5 shift from cultural property to cultural heritage 4 UNCLOS 1982 ‘activities directed at underwater cultural heritage’ 301–2 arts 149 & 303 298–9 importance 296–8 raising public awareness and information 312–13 relationship between UNCLOS and the 2001 Convention 304–5 rules governing archaeology, protection of sites, and preservation of recovered objects 313–17 salvage 309–10 State vessels and aircraft 310–12 UNESCO Convention on Underwater Cultural Heritage 2001 Operational Guidelines 301–2 relationship between UNCLOS and the 2001 Convention 304–5 International humanitarian law see also Intentional destruction crimes against humanity defined at Nuremberg 110–11, 111–12 developments of ICT case law 111–12, 112–14 ILC approach 111, 111–12 intentional destruction 82–4 responsibility to protect (R2P) 122, 129–30 State responsibility 97–8

cultural genocide case study of Khmer Rouge in Cambodia 117–20 ICTY case law on mens rea 116–17 origins and development of definition 115–16 responsibility to protect (R2P) 122, 130–42 effectiveness against damage from armed conflict 74 enforcement criminal sanctions 72–3 State responsibility 71–2 grave threats from armed conflict 73–4 historical background 45–6 institutional framework general constitutional mandate of UNESCO 70 intergovernmental Committee for the Protection of Cultural Property 69–70 International Committee of the Red Cross 70 technical assistance from UNESCO 69 intentional destruction war crimes 80–1 issue of automatic succession 598 limits on what can be done 73 origins of international cultural heritage law 43–4 post-conflict and transitional justice accountability of perpetrators 177–9 amnesties and vetting 180–1 investigation and prosecution of serious crimes 179–80 overview 176–7 role of UNESCO in prosecution of international crimes 28–9 rules ancillary to substantive obligations cooperation and assistance of State parties 68 criminal sanctions 66–8 marking of cultural property 65 peacetime regulations and instructions 66 sources of law customary law 52

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996 index International humanitarian law (cont.) Geneva Conventions 1949 and Additional Protocols 50–2 Hague Convention 1954 and Its First and Second Protocols 46–9 State responsibility attribution of wrongful acts to states 617–24 circumstances precluding wrongfulness 628–32 customary international norms 613–14 Geneva Conventions 612–13 legal and practical consequences 632–40 wrongful conduct of the State resulting in the breach 624–7 substantive obligations established by Additional Protocols 1977 64–5 substantive obligations established by Hague Convention 1954 respect for personnel engaged in protection 61–2 safeguarding of cultural property 60–1 services or specialist personnel 61 substantive obligations established by Second Protocol to Hague Convention 1954 alterations to or changes of use of cultural property 63 enhanced protection 63–4 protection of archaeological excavations 62–3 substantive obligations established in customary law attacks against or in vicinity of cultural property 53–6 conduct of belligerent occupiers 59–60 dangers resulting from military operations 57–8 destruction or damage of controlled property 56 misappropriation and vandalism 58–9 use of cultural property or immediate surroundings 56–7 synergies between wartime and peacetime protection 74 terminology 44

war crimes civilian-use rationale and cultural-value approach distinguished 101–2 definition of offences 105–7 development of cultural-value approach in case law 107–10 genesis of two approaches 102–4 incoherent development of rules 104–5 responsibility to protect (R2P) 122, 129–30 State responsibility 97–8 International investment law applicable law 252 compartmentalization of cultural heritage 4 dispute resolution fair and equitable treatment 488–90 indirect expropriation 490–9 potential impact on cultural governance, human rights law, and international law 499–501 structural imbalance between mechanisms 487–8 expanding ambit of cultural heritage 3 export and import of national treasures 523–6 ICSID’s case law 675–6 international investment governance dispute settlement mechanisms 486–7 overview 485–6 protection to investors’ rights 486 multifaceted concept of cultural heritage 483–5 need for improved cultural governance and development of law 505–6 policy options for better balance between public and private interests counterclaims to protect cultural entitlements 504–5 judicially-driven approach 502–4 treaty-driven approach 502 restriction of trade through international investment agreements 524–6 role of WHC 269 International jurisdiction defendant’s habitual residence 690–1 doing business of defendant 694 location of art object 691–3 locus delicti commissi 694–5 presence of defendant 694

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index 997 International Law Commission (ILC) codification of law of State succession 587–90 crimes against humanity defined at Nuremberg 111–12 indigenous peoples 427 intentional destruction 81–3, 87, 97–8 International Museum Office (IMO) adoption of agreed system of antiquities and excavations 17–20 establishment 17 protection of cultural property during wars or civil strife 23–4 regulation of trade in art and antiquities 20–2 International tribunals ECtHR 671–3 ICC 675–6 ICJ 672–4 ICSID 676 ICTY 674–5 inconsistent judicialization 670 virtues and vices of judicial proceedings 678–9 World Bank Inspection Panel 676–7 INTERPOL 242–3 Investment law see International investment law

J

Jurisdiction international jurisdiction defendant’s habitual residence 690–1 doing business of defendant 694 location of art object 691–3 locus delicti commissi 694–5 presence of defendant 694 key issues in domestic courts exceptions with respect to transient jurisdiction and to personal jurisdiction 716 international jurisdiction 690–5 subject matter jurisdiction 695–6 maritime zones the Area as sole source of authority 307–8 continental shelf and EEZs 305–7 normal rules of international law 305

nationality and port State jurisdiction 308–9 State immunity commercial transaction exception 553–8 expropriation exception 562–9 property-related exceptions 558–62 subject matter jurisdiction administrative courts 695 criminal courts 696 underwater cultural heritage 296–8 Jus cogens 548–50 Justice see Transitional justice

L

Landscapes defined as cultural heritage 3 early international protection EU law 276–8 UNESCO instruments 274–6 etymological and epistemological origins 273–4 European Landscape Convention 2000 inadequacy as legal tool in itself 290–3 from landscape as heritage to landscape as public space 288–90 origins 287–8 intangible cultural heritage 366–7 international cultural heritage law adoption of WHC 278–9 European Landscape Convention (ELC) 287–93 impact of WHC on global governance 284–7 overview 272–3 potential as an integrating tool for sustainable development 293–4 regional approaches Europe 915–16 Oceania 865–6, 869–71 as world heritage adoption of WHC 278–9 impact of WHC on global governance 284–7 maintenance of customs and traditional farming practices 282–4 Operational Guidelines of World Heritage Committee 279–82

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998 index Language component of every national legal order 373–5 defined as cultural heritage 3 international cultural heritage law Convention on Cultural Diversity 2005 376–7 EU law 377–8 Intangible Cultural Heritage Convention 2003 375–6 two ways in which linguistic heritage is protected 375 as part of cultural heritage 371–2 Latin America see Central and South America League of Nations see ICO Lex contractus 696–7 Lex fori applicable law 700 conflict of law cases 712–13 overriding or mandatory rules 713 public order of third States 713–14 Lex loci delicti commissi 699–700 Lex loci protectionis 700 Lex rei sitae 698–9 Lex successionis 700 Litigation see also International tribunals disadvantages 718–20 domestic courts benefits of litigation 667 difficulties of access 669 examples of successful claims 667–8 importance for art law disputes 715 last resort in the cultural heritage field 668 limits posed by jurisdiction and applicable law 669–70 prior exhaustion of domestic remedies in State pleading immunity 564 restitution of stolen or looted heritage 646 transnational art cases 666–7 international tribunals ECtHR 671–3 ICC 675–6 ICJ 672–4

ICSID 676 ICTY 674–5 inconsistent judicialization 670 virtues and vices of judicial proceedings 678–9 World Bank Inspection Panel 676–7 key issues in domestic courts applicable law 696–707 immunity 687–9 jurisdiction 689–96 recognition of foreign judgments recovery of Holocaust art located abroad 714–15 submission of defendant living abroad 715 Looted artefacts see Illicit exports and imports; Theft and illicit excavation

M

Maritime zones the Area as sole source of authority 307–8 continental shelf and EEZs 305–7 normal rules of international law 305 Mediation 722–3 Middle East and North Africa elements of national legislation archaeological excavations and surveys 947–9 criminal sanctions 954–5 definition of cultural property and date 942–4 export and import controls 952–4 governmental oversight 941–2 inventories and records 946–7 overview 936–40 ownership and transfer 944–6 trade in cultural items 949–52 national legislative approaches 935–6 overview 931–2 participation in international law 932–4, 956–8

N

National treasures exceptions in other international agreements EU law 522–3 Mercosur’s trade liberalization obligations 523–4

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index 999 international investment law 523–6 uncertainties in international law 526–7 WTO exception ‘cultural property’ compared 516–17 GATT 1994 515–16 stringency of ‘chapeau’ requirement 517–18 Nationality and port State jurisdiction 308–9 Negotiation 720–2 New international order efforts to secure and sustain peace 170–1 Intellectual Cooperation Organisation (ICO) 171–3 UNESCO 173–5 United Nations 173 Non-governmental and intergovernmental organizations see also UNESCO; United Nations Blue Shield International Committee 69, 748, 767–8 codes of ethics and conduct 788–9 illicit exports and imports Blue Shield International Committee 247 International Council of Museums (ICOM) 241–2 INTERPOL 242–3 national police units 243–4 Subsidiary Committee to 1970 Convention 240–1 UNESCO as lead agency 239–40 United Nations Office on Drugs and Crime (UNODC) 239 World Customs Organization 244–5 indigenous peoples 427 Intellectual Cooperation Organisation adoption of agreed system of antiquities and excavations 17–20 background to role 14 early importance 38 efforts to secure and sustain peace 170–1 origins and establishment 15–17 promotion of cultural diversity 22–3 protection of cultural property during wars or civil strife 23–4 regulation of trade in art and antiquities 20–2

Intellectual Cooperation Organisation (ICO) adoption of agreed system of antiquities and excavations 17–20 background to role 14 early importance 38 efforts to secure and sustain peace 170–1 origins and establishment 15–17 promotion of cultural diversity 22–3 protection of cultural property during wars or civil strife 23–4 regulation of trade in art and antiquities 20–2 International Council of Museums Code of Ethics 682, 730, 732, 792–3 Disaster Risk Management Committee 767 ICOM–WIPO Art and Cultural Heritage Mediation Program 682–3, 729–31 illicit exports and imports 32, 239, 241–2, 247 institutionalization of ADR 726 International Museum Office adoption of agreed system of antiquities and excavations 17–20 establishment 17 protection of cultural property during wars or civil strife 23–4 regulation of trade in art and antiquities 20–2 need for effective participation 5 participation in General Assembly 784 Proclamation of the Masterpieces of the Oral and Intangible Heritage of Humanity 824 protection of cultural heritage by non-State actors amending the ‘due diligence’ requirement 773–6 UNESCO Operational Guidelines 771–2 protection of cultural property in armed conflict 764–7 Red Cross International Committee 69–70, 126, 748, 768 regional approaches Asia 849 Europe 912, 918

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1000 index Intellectual Cooperation Organisation (ICO) (cont.) right to a remedy and reparations 185–6 safeguarding of intangible heritage 781–5 shift in authority and governance 785–6 UNESCO resolutions 762 world cultural heritage governance adoption of WHC 776–7 meetings of the World Heritage Committee 779–80 Operational Guidelines 777 participation of communities 778–9 World Heritage List 777–8 World Customs Organization harmony and uniformity in customs systems 244–5 standard export certificate 246–7 World Intellectual Property Organization dispute resolution 680 history and development of legal principles and institutions 466–70 ICOM–WIPO Art and Cultural Heritage Mediation Program 682–3, 729–31 key developments in international heritage law 460, 462, 462–6 regional approaches 826–7 World Trade Organization failure to promote diversity 37 intellectual property 360, 468 international trade liberalization 508 meaning of national treasures 507 quantitative restrictions on imports and exports 514, 515, 515–18, 518–20 scope and meaning of GATT 1994 672 uncertainties in international law 526–7 UNESCO’s assumption regarding nexus with WTO 511–12 Non-State actors active participants in cultural heritage protection 763 interwar spirit of internationalism 15 protection of cultural heritage from trafficking amending the ‘due diligence’ requirement 773–6 UNESCO Operational Guidelines 771–2

protection of cultural property in armed conflict 764–7 recognition of increasing role 5 role for the international community 6–7 safeguarding of intangible heritage 781–5 shift in authority and governance 785–6 significant role in international law 761 spotlight on negative impact of ANSAs 760–1 State responsibility 761–2 UNESCO resolutions 762 world cultural heritage governance adoption of WHC 776–7 meetings of the World Heritage Committee 779–80 Operational Guidelines 777 participation of communities 778–9 World Heritage List 777–8 North Africa see Middle East and North Africa North America domestic regulation Canadian domestic protection 965–8 Mexican domestic protection 960–1 special law enforcement efforts 968 US domestic protection 962–5 overview 959–60 participation in WHC 978–9 theft and illicit excavation models of implementation for UNESCO Convention 1970 220–1 recognition of foreign State ownership 207–15 US control over exploration and excavation 204 underwater cultural heritage 979 United States domestic protection 962–5 prosecution of illicit trafficking 972–5 refined legislative framework 976 seizure and forfeiture mechanisms by customs 975–6 UNESCO Convention 1970 970–2

O

Oceania comparative national approaches 876–7

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index 1001 failure to contribute to international law 862–3 inability to generate regional approach 877 intangible cultural heritage 871–3 landscapes 865–6 legal pluralism and customary land ownership 869–71 overview 860–2 regional organizations 864–5 regional programmes 863 UNESCO SIDS Action Plan 2016–2021 871 World Heritage List 866–8 World Heritage Operational Guidelines 868–9 Ownership of cultural objects foreign patrimony laws 710 Iran’s ownership law 213 legal pluralism and customary land ownership 869–71 national legislation in Middle East and North Africa 944–6 shipwrecks and their cargo 300–1 sovereign rights of patrimony 544–5 State ownership method of control 206–7 recognition of State ownership by foreign courts 207–15 undiscovered cultural objects 215–16 UNESCO–UNIDROIT Model Provisions on State Ownership 237–8

P

Patents 470–4 Procedural principles 547–8 Protection see Responsibility to protect (R2P) Public law application in local courts 716 Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 822 de-accession policies and procedures 797 export prohibitions 706 Iran’s ownership law 213 preclusion of private international law 881 spoils of war war on land 701 war on water 702

State immunity 556–7 subject matter jurisdiction 695 UNESCO Convention 1970 237

R

Recognition of foreign judgments recovery of Holocaust art located abroad 714–15 submission of defendant living abroad 715 Red Cross International Committee (ICRC) 69–70, 126, 748, 768 Regional approaches Africa intangible cultural heritage 823–9 movable cultural heritage 813–23 neglect of immovable cultural heritage 829–32 overview 811–12 participation in WHC 832 way forward 832–4 Asia East Asia 837–49 need for improved coordination and cooperation 858–9 overview 835–7 South East Asia 849–57 Central and South America apparent effort to promote Pan-Americanism 906–7 domestic law trends 880–1 forging regional identity through heritage 887–92 overview 878–9 participation in international law 882–7 policy programmes 892–901 standard-setting 902–6 Europe continuing role for CoE 929–30 Council of Europe 911–21 European Union 921–9 membership developments 909–10 two key organizations 908–9 Middle East and North Africa elements of national legislation 936–55 national legislative approaches 935–6 overview 931–2

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1002 index Regional approaches (cont.) participation in international law 932–4, 956–8 North America Canadian participation in UNESCO Convention 1970 977 domestic regulation 960–8 emerging themes 979–80 overview 959–60 participation in WHC 977–9 refined US legislative framework 976 seizure and forfeiture mechanisms by customs 975–6 underwater cultural heritage 979 US participation in UNESCO Convention 1970 970–2 US prosecution of illicit trafficking 972–5 Oceania comparative national approaches 876–7 failure to contribute to international law 862–3 inability to generate regional approach 877 intangible cultural heritage 871–3 landscapes 865–6 legal pluralism and customary land ownership 869–71 overview 860–2 participation in international law 874–6 regional organizations 864–5 regional programmes 863 UNESCO SIDS Action Plan 2016–2021 871 World Heritage List 866–8 World Heritage Operational Guidelines 868–9 Religion see Freedom of thought and religion Remedies alternative dispute resolution efficiency in the area of cultural heritage 733–6 fair and just solutions 683–6 indigenous peoples 719 domestic courts 666 establishment of fair and just solutions 683–6

historical processes of group cultural destruction 650–5 intentional destruction impact of Al Mahdi Reparation Order 658–62 overview 655–6 post-conflict ad hoc approach 656–7 international humanitarian law criminal sanctions 72–3 State responsibility 71–2 legal and practical consequences of State responsibility 632–40 prior exhaustion of domestic remedies in State pleading immunity 564 ‘recalibration’ process being undertaken 662 recognition of foreign judgments recovery of Holocaust art located abroad 714–15 submission of defendant living abroad 715 regional approaches Africa 819–21 Central and South America 880–1 Council of Europe 910 East Asia 839–45, 846–9 EU law 925–8 Middle East and North Africa 936–55, 958 North America 962–76, 968, 971 South East Asia 851–6, 857–8 restitution of stolen or looted heritage intangible cultural items 647–50 tangible cultural items 644–7 right to a remedy and reparations compensation and rehabilitation 189–91 guarantees of non-repetition 192–5 overview 184–5 remedies 185–6 reparations 186–7 restitution 187–9 satisfaction 191–2 right to remedy and reparations 181–4 right to truth 181–4 State-centred approach and lack of enforcement 642–4 transitional justice 176

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index 1003 Responsibility to protect (R2P) crimes against humanity 129–30 cultural genocide alternative concept of ‘culturecide’ 140 development of current case law 136–8 ethnic cleansing 138–40 historical examples 133–5 issues arising in Iraq and Syria 140–2 overview 130–2 cultural heritage cultural protection zones 129 SC safe havens 126–8 theoretical underpinning 124–6 future developments customary international law 144 intentional destruction 142–3 link with human rights 143 possible next step 144 soft law 143–4 intentional destruction 97–8 international humanitarian law enhanced protection under Second Protocol to Hague Convention 1954 63–4 Sate enforcement 69 peremptory principles of jus cogens 549–50 persons ICSS report 2001 122 three pillars adopted by World Summit 2007 122–4 underlying concept 121–2 war crimes 129–30 Right to a remedy and reparations compensation and rehabilitation 189–91 guarantees of non-repetition 192–5 overview 184–5 remedies 185–6 reparations 186–7 restitution 187–9 satisfaction 191–2 Right to self-determination collective cultural rights 416 customary international law 421, 423 indigenous peoples 89, 344, 409, 424, 427–30 Intellectual Property Rules 462 OASDRIP 890 recognition of ‘indispensable’ collective rights 411

reflection of fundamental values and interests of international community 542 relevance to cultural heritage 398–400 State succession 601 UN role 737 Right to truth 170, 176, 181–4, 199 Rule of law accountability for serious crimes 176 codes of conduct 797 EU law 910–11 good cultural governance 499–500 history of international protection 38 impact on ICO’s codification efforts 171 international litigation 678 IUCN World Declaration on the Environmental Rule of Law 327 post peace-making processes 170 power-sharing arrangement in Sudan 194 side-lining of cultural heritage 198 standard-setting in the Americas 902 UN guidelines and recommendations 175 UNESCO’s role 197, 738

S

Salvage 309–10 Security Council intentional destruction as threat to peace and security 92–4 looted artefacts 223–5 recognition of illicit trafficking 239 responsibility to protect (R2P) 126–8 Self-determination see Right to self-determination South America see Central and South America South East Asia Cambodian experience 849–51 intangible cultural heritage 368–9 lack of international cooperation 856–7 return or repatriation of cultural objects 857–8 strengthening of domestic legislation 849–51 Spoils of war substantive law 709–10 war on land 701 war on water 702

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1004 index State immunity emerging agreement and consolidation 580 execution immunity for cultural heritage property status of UNCSIs antiseizure norms 573–80 under the UNCSI 569–73 immunity from jurisdiction commercial transaction exception 553–8 expropriation exception 562–9 property-related exceptions 558–62 intriguing legal and policy questions 551 litigation in domestic courts 719 overview 551–2 State responsibility see also Responsibility to protect (R2P) controls on exports and imports 511–12 general norms and breaches of international obligations attribution of wrongful acts to states 617–24 circumstances precluding wrongfulness 628–32 legal and practical consequences 632–40 wrongful conduct of the State resulting in the breach 624–7 importance of States in fight against trafficking 775 intentional destruction 95–8, 537 international criminal law attribution of wrongful acts to states 617–24 ICC Statute 614–17 international cultural heritage law Hague Conventions 608–10 UNESCO Declaration 2003 610–11 international humanitarian law customary international norms 613–14 Geneva Conventions 612–13 international responsibility for cultural heritage wrongs 600–2 non-State actors 761–2 overview 605–7 remaining lacunae in law 640–1 right to take part in cultural life 394

theft and illicit excavation control of market and exports 205–6 control over exploration and excavation 203–5 recognition of State ownership by foreign courts 207–15 State ownership 206–7 undiscovered cultural objects 215–16 underwater cultural heritage 296–8 State succession actual international practice in addressing difficulties 590–7 codification of law 583–6 effect of territorial change 583–6 global cultural heritage governance 603–4 international cultural heritage obligations 597–9 international responsibility for cultural heritage wrongs 600–2 overview 581–3 States ancillary IHL rules requiring cooperation and assistance 68 discrepancy in political and economic power 6 dominance within international cultural heritage law 5–6 enforcement of IHL 71–2 importance of international assistance 267–8 sovereign rights of patrimony 544–5 UNESCO–UNIDROIT Model Provisions on State Ownership 237–8 Subject matter jurisdiction administrative courts 695 criminal courts 696 Substantive law converted art 711 foreign patrimony laws 710 Holocaust art 708–9 misattributed art 712 smuggled art 710 spoils of war 709–10 stolen art 711

T

Theft and illicit excavation see also Illicit exports and imports

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index 1005 African cultural heritage need for administrative measures 821–2 need for strengthened and upgraded legislation 819–21 East Asia domestic legislation to protect heritage 839–45 lack of international cooperation 845–6 return or repatriation of cultural objects 846–9 spectacular growth of art market 837–9 historical processes of group cultural destruction 650–5 history and development of market for works of art 201–3 Intergovernmental Committee for Promoting the Return of Cultural Property (ICPRCP) 680–1 international cultural heritage law early steps by UNESCO and UNIDROIT 216–18 UNESCO Convention 1970 218–19 UNIDROIT Convention 1995 218 Middle East and North Africa archaeological excavations and surveys 947–9 criminal sanctions 954–5 export and import controls 952–4 inventories and records 946–7 ownership and transfer 944–6 trade in cultural items 949–52 models of implementation for UNESCO Convention 1970 hybrid approach 221–2 reciprocal restrictions 219 specific designation requirements 222–3 supplementary bilateral agreements 220–1 North America Canadian domestic protection 965–8 Mexican domestic protection 960–1 special law enforcement efforts 968 US domestic protection 962–5 overview 200–1 particular legal and knowledge-based concerns 225–6 restitution of stolen or looted heritage

intangible cultural items 647–50 tangible cultural items 644–7 South East Asia Cambodian experience 849–51 lack of international cooperation 856–7 return or repatriation of cultural objects 857–8 strengthening of domestic legislation 851–6 spoils of war substantive law 709–10 war on land 701 war on water 702 state controls control of market and exports 205–6 control over exploration and excavation 203–5 State ownership method of control 206–7 recognition of State ownership by foreign courts 207–15 undiscovered cultural objects 215–16 substantive law converted art 711 foreign patrimony laws 710 Holocaust art 708–9 smuggled art 710 spoils of war 709–10 stolen art 711 UN Security Council Resolutions 223–5 UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property 726–9 Trade in cultural property see Illicit exports and imports Trademarks 474–8 Transitional justice combating impunity accountability for serious crimes 176–7 accountability of perpetrators 177–9 amnesties and vetting 180–1 investigation and prosecution of serious crimes 179–80 differing objectives between proceedings and peace processes 185 formalization of international law norms 198

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1006 index Transitional justice (cont.) nonrecurrence initiatives 197–8 post-conflict focus 175–6 requirement for policies 184 right to a remedy and reparations compensation and rehabilitation 189–91 guarantees of non-repetition 192–5 overview 184–5 remedies 185–6 reparations 186–7 restitution 187–9 satisfaction 191–2 right to truth 181–4 rigidity of non-retroactivity principle 646 role of culture rights 170 Treaties see International cultural heritage law Tribunals see International tribunals Truth see Right to truth

U

Underwater cultural heritage benefits of improved access 295–6 control over exploration and excavation 203 defined as cultural heritage 3 importance 295 jurisdiction 296–8 link with environment Underwater Cultural Heritage Convention 2001 333–4 maritime zones the Area as sole source of authority 307–8 continental shelf and EEZs 305–7 normal rules of international law 305 nationality and port State jurisdiction 308–9 ownership of shipwrecks and their cargo 300–1 principle of cultural heritage of humanity 543 regional approaches Africa 819, 823, 825 Asia 836, 858 Central and South America 882, 884 Middle East and North Africa 941, 943

North America 960, 979 Oceania 862, 875–6 South East Asia 852–5 rules governing archaeology, protection of sites, and preservation of recovered objects Annex to UNCLOS 1982 313–14 centrality of the archaeologist 316 details of report preparation 317 general principles 314–16 shift from cultural property to cultural heritage 4 significant objective of international legal system 317 State responsibility circumstances precluding wrongfulness 628–9 legal and practical consequences of State responsibility 636 UNCLOS 1982 ‘activities directed at underwater cultural heritage’ 301–2 arts 149 & 303 298–9 importance 296–8 raising public awareness and information 312–13 relationship between UNCLOS and the 2001 Convention 304–5 rules governing archaeology, protection of sites, and preservation of recovered objects 313–17 salvage 309–10 State vessels and aircraft 310–12 UNESCO Convention on Underwater Cultural Heritage 2001 Operational Guidelines 301–2 UNESCO Heritage Conventions 754–6 UNESCO background to current role 14 construction of cultural rights as true human rights 8 Convention on Underwater Cultural Heritage 2001 Operational Guidelines 301–2 relationship between UNCLOS and the 2001 Convention 304–5 ‘cultural cleansing’ 77–8

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index 1007 cultural heritage defined 2–3 disasters cross-fertilization between ILD and ICHL 158–62 DDR strategies 153–5 lack of specialist disaster instruments 147 relief and recovery phases 164–6 discrepancy in political and economic power of States 6 dispute resolution 680 early importance 38–9 efforts to secure and sustain peace 195–8, 199 global cultural heritage governance 603–4 Heritage Conventions armed conflicts 747–8 cultural and natural heritage 750–4 cultural diversity 758–9 illicit exports and imports 748–50 intangible cultural heritage 756–9 overview 746–7 underwater cultural heritage 754–6 heritage instruments recognising human rights Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 388 importance 382–3 Recommendations 386–7 three Cultural Heritage Conventions 384–6 Universal Declaration on Cultural Diversity 2001 387–8 history of organisation 24–6 illicit exports and imports background and signing of 1970 Convention 231 bilateral agreements or understandings 513–14 core definitions and obligations 510–11 as lead agency 239–40 need for uniform standard for documentation and identification 246 State controls on exports and imports 511–12 uncertainties in international law 526–7

UNESCO–UNIDROIT Model Provisions on State Ownership 237–8 UNESCO–WCO Model Export Certificate 246–7 UNESCO’s assumption regarding nexus with WTO 511–12 impact of changing membership 26 indigenous peoples 409, 418–19 institutional aspects strengthened cooperation between UN and UNESCO 740–4 structure of UNESCO 744–5 as world cultural institution 737–9 institutional framework for IHL general constitutional mandate 70 technical assistance 69 intangible cultural heritage normative and related operational activities 1990–2003 347–52 subsequent implementation and limitations 352–9 intentional destruction criminal sanctions 94 ‘cultural cleansing’ 77–8 cultural heritage is component of cultural identity 86 Declaration 2003 79 State responsibility 96 unjustifiable offence to the principles of humanity 90 Intergovernmental Committee for Promoting the Return of Cultural Property t 726–9 International Code of Ethics for Dealers in Cultural Property 1999 240, 248 key developments in international heritage law 460 key developments relating to intellectual property 461–2 landscapes 274–6 major contribution through World Heritage Convention 29–31 new international order 173–5 non-State actors 762 oversight of international treaties 1–2 peremptory principles of jus cogens 550

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1008 index UNESCO (cont.) principle of cultural heritage of humanity 542 principle of due diligence 546 Proclamation of the Masterpieces of the Oral and Intangible Heritage of Humanity 824 promotion of a holistic understanding 4–5 protection of cultural heritage from trafficking 771–2 protection of cultural property during armed conflict 27–9 regional approaches Africa 823–7 North America 968–9 Oceania 863, 871 regulation of transfer and restitution of cultural objects 31–5 remedies for intentional destruction 656 replacement of founding ideals government imperatives 39 responsibility to protect (R2P) 124–6, 142–3 restitution of stolen or looted heritage intangible cultural items 649 tangible cultural items 645–6 safeguarding of intangible heritage and cultural diversity 35–8 shift from cultural property to cultural heritage 4 State succession 592–4 status of UNCSIs antiseizure norms 578 structure Executive Board 745 General Conference 744 immunities 745 Secretariat 745 theft and illicit excavation Convention 1970 200–1, 218–19 early developments 216–18 models of implementation for UNESCO Convention 1970 219–23 particular legal and knowledge-based concerns 226 undiscovered cultural objects 215–16 women’s’ cultural rights 437 gender in practice 454–5

legal silence in drafting of treaties 451–3 remedying gender-blindness 456–7 world cultural heritage impact of WHC 268–9 importance of WHC 250–2 internal Oversight Service 267 UNIDROIT attribution of wrongful acts to states 623 cultural heritage defined 2–3 illicit exports and imports background and signing of 1970 Convention 231 UNESCO–UNIDROIT Model Provisions on State Ownership 237–8 UNIDROIT Convention 1995 233–7 indigenous peoples 420 oversight of international treaties 1–2 principle of due diligence 546 protection of cultural heritage by non-State actors 773–6 restitution of stolen or looted heritage 645–6 sovereign rights of patrimony 545 status of UNCSIs antiseizure norms 578 theft and illicit excavation Convention 1995 218 early developments 216–18 overview 201 particular legal and knowledge-based concerns 226 undiscovered cultural objects 215–16 United Kingdom sovereign rights of patrimony 545 status of UNCSIs antiseizure norms 579 theft and illicit excavation control of market and exports 205–6 control over exploration and excavation 204–5 recognition of foreign State ownership 211–15 United Nations see also UNESCO background to League of Nations 13–14 cross-fertilization between ILD and ICHL 157–62 ‘culture of peace’ 192, 199 customary international law 537–8

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index 1009 environmental instruments Declaration on the Rights of Indigenous Peoples 1997 344–5 Millennium Development Goals 2000 324–5 Sustainable Development Goals 2015 325–6 World Commission Environment and Development 322–3 illicit exports and imports Office on Drugs and Crime (UNODC) 239 Security Council recognition of illicit trafficking 239 UNESCO as lead agency 239–40 indigenous peoples Declaration on the Rights of Indigenous Peoples 2007 409–14 Draft Principles and Guidelines on the Protection of the Heritage of Indigenous People 414–15 Expert Mechanism on the Rights of Indigenous Peoples 415–16 new international order 173 recognition of increasing role 5 right to take part in cultural life ESCR Committee 391–5 International Covenant on Economic, Social and Cultural Rights 1976 391 Universal Declaration of Human Rights 1948 390–1 Security Council intentional destruction as threat to peace and security 92–4 looted artefacts 223–5 recognition of illicit trafficking 239 responsibility to protect (R2P) 126–8 strengthened cooperation between UN and UNESCO 740–4

V

Vetting 177, 180–1

W

War and armed conflict see also International humanitarian law efforts to secure and sustain peace

impact on cultural heritage 198–9 new international order 170–5 overview 169–70 post-conflict and transitional justice 175–81 right to a remedy and reparations 184–95 right to truth 181–4 sustaining peace 195–8 history of international protection interwar attempts to protect cultural property during wars or civil strife 23–4 UNESCO’s key focus 27–9 illicit exports and imports failure of 1970 Convention to distinguish between peacetime and wartime 233 looting by Nazis during WWII 228–9 origins as trophy of war 227–8 trophies of British Empire 229–30 illicit transfers from territories under military occupation customary international law 539–40 treaty regulation 538–9 intentional destruction 535–7 new international order efforts to secure and sustain peace 170–1 Intellectual Cooperation Organisation (ICO) 171–3 UNESCO 173–5 United Nations 173 non-State actors protection of cultural property in armed conflict 764–7 spotlight on negative impact of ANSAs 760–1 regional approaches African cultural heritage 822–3 Cambodian experience 849–51 United States 976 remedies for intentional destruction impact of Al Mahdi Reparation Order 658–62 overview 655–6 post-conflict ad hoc approach 656–7 restitution of stolen or looted heritage 644–7

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1010 index War and armed conflict (cont.) right to a remedy and reparations compensation and rehabilitation 189–91 guarantees of non-repetition 192–5 overview 184–5 remedies 185–6 reparations 186–7 restitution 187–9 satisfaction 191–2 role of NGOs 767–70 spoils of war substantive law 709–10 war on land 701 war on water 702 UNESCO Heritage Conventions 747–8 War crimes civilian-use rationale and cultural-value approach distinguished 101–2 definition of offences Hague Convention 1954 106–7 ICC Statute 105–6 development of cultural-value approach in case law ICC 109–10 ICTY 107–9 genesis of two approaches 102–4 incoherent development of rules 104–5 intentional destruction 80–1 post-conflict and transitional justice accountability of perpetrators 178–9 amnesties and vetting 180–1 investigation and prosecution of serious crimes 179–80 responsibility to protect (R2P) 122, 129–30 State responsibility 97–8 Washington Conference Principles 188, 567, 646, 704, 708 Women’s’ cultural rights discourse on the intersectionality of religious and cultural traditions and women’s rights 445–50 foundational principles Convention on the Elimination of Discrimination Against Women 1979 438–41 International Covenant on Economic, Social and Cultural Rights 1976 441

overview 436–7 UNESCO World Report 2009 437 Vienna Declaration and Programme of Action 1993 437–8 ICCPR General Comment No 28 445 intangible cultural heritage 441 interconnected manifestation of individual and collective identity 457–8 interconnectedness of cultural heritage, cultural rights, and broader human rights 432–6 international cultural heritage law gender in practice 453–6 legal silence in drafting of treaties 451–3 overview 450–1 remedying gender-blindness 456–7 observations of Special Rapporteur Cyprus 2017 442–3 issues in focus 441–2 Malaysia 2018 443–4 Morocco 2011 442 Russian Federation 2013 443 Traditional Practices Affecting the Health of Women and Children 444–5 Vietnam 2013 442 overview 431–2 World cultural heritage absence of specialized forum for solving disputes 665–6 complex relationship with intellectual property 481–2 defined development through successive treaties 2–3 evolving and expanding ambit 3 shift from cultural property to cultural heritage 4 deletion from WHL 263–5 determining ‘outstanding universal value’ need for relativization and adaptation of criterion 257 preliminary test of authenticity and integrity 256–7 six applicable criteria 255–6 World Heritage List (WHL) 255

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index 1011 establishment of underlying concept 250 growing importance for human rights 379–82 human rights approaches access, contribution, participation and enjoyment 400–2 limitations of rights and harmful cultural practices 403–5 identification and delineation dynamic evolution of criteria 254–5 ‘monuments, groups of buildings and sites of outstanding universal value’ 252–3 underlying problems 253–4 impact of social media and new technologies 1 importance of international assistance 267–8 importance of UNESCO Convention 1972 250–2 intangible cultural heritage see Intangible cultural heritage intellectual property see Intellectual property international cultural heritage law effectiveness of WHC 270–1 impact of WHC 268–9 importance of WHC 250–2 landscapes see Landscapes language see Language List of the World Heritage in Danger 261–3 overlap with natural heritage 8 process of inscription in WHL 257–61 promotion of a holistic understanding 4–5 reflection of fundamental values and interests of international community 543–4 responsibility to protect (R2P) SC safe havens 126–8 theoretical underpinning 124–6 supervision and monitoring through reporting 265–7 terminology 44 underwater cultural heritage see Underwater cultural heritage

women’s’ cultural rights see Women’s’ cultural rights World Customs Organization (WCO) harmony and uniformity in customs systems 244–5 standard export certificate 246–7 World Heritage Committee deletion from WHL 263 determining ‘outstanding universal value’ 255 e International Indigenous Peoples’ Forum 345 final stage in the process of inscription 259–60 functions 750–4 ‘imbalance’ in the World Heritage Lists 254 North American participation 978–9 overlap between cultural and natural heritage 8 practically oriented approach 149 relationship with non-State actors 779 reports to UNESCO 265 role of non-State actors 779–80 threats from armed conflict 175 World Heritage List (WHL) deletion of property from WHL 263–5 determining ‘outstanding universal value’ 255–6 ‘imbalance’ 254 Oceania 866–8 process of inscription 257–61 role of non-State actors 777–8 World Intellectual Property Organization (WIPO) dispute resolution 680 history and development of legal principles and institutions 466–70 ICOM–WIPO Art and Cultural Heritage Mediation Program 682–3, 729–31 key developments in international heritage law definitions 462 overview 460 TCE and TK 462–6 regional approaches African intangible cultural heritage 826–7

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1012 index World Trade Organization (WTO) failure to promote diversity 37 intellectual property agreed legal principles and institutions 468 harmonization of IP rights 360 international trade liberalization 508 meaning of national treasures 507 quantitative restrictions on imports and exports

GATT 1994 514 most-favoured nation (‘MFN’) obligation 515, 515–18 potential for dispute 518–20 scope and meaning of GATT 1994 672 uncertainties in international law 526–7 UNESCO’s assumption regarding nexus with WTO 511–12

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OUP CORRECTED AUTOPAGE PROOFS – FINAL, 06/13/2020, SPi

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 06/13/2020, SPi

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 06/13/2020, SPi