UNESCO, Palestine and Archaeology in Conflict

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I. INTRODUCTION

On 23 November 2011, Palestine became a member of the United Nations Educational, Scientific and Cultural Organization ("UNESCO"), and acceded to and ratified a number of UNESCO's Conventions. (1) Some observers view this membership as decisive, or at least significantly dispositive, in the debate on the international recognition of Palestinian statehood. (2) UNESCO is characterized as a springboard by which Palestine can further recognition of its international sovereignty, which, at the present time, is inexorably stalled. However, this recognition is not without challenge--for example, the Prosecutor of the International Criminal Court has not recognized Palestine's acceptance of the Court's jurisdiction. (3) UNESCO has, in turn, descended into a budgetary crisis with the withdrawal of funding from the U.S. and other states, which represent twenty-two percent of its budget. (4) In February 2012, UNESCO responded to this crisis with a plan to "re-engineer" the organization, implicitly confirming that it will not allow any revocation of the Palestinian membership vote, (5) despite a campaign to "un-admit" Palestine. (6) This paper analyzes the legal consequences of Palestine's membership in UNESCO and its ratification of UNESCO conventions through an examination of the protections afforded by the UNESCO treaty framework governing cultural, amongst other forms of, heritage. This is particularly relevant as Palestine's application for UNESCO membership took place in the context of what are termed the Palestinian U.N. initiatives, intended to further Palestine's status and activate its rights as a state in the international legal order. (7) The initiatives manifested in a resolution adopted by the U.N. General Assembly on 29 November 2012 "upgrading" Palestine's observer status. (8)

For more than a century, Palestinian cultural heritage and property has been the subject of capture and destruction by other states. Palestine's accession to various UNESCO conventions testifies to the effect that no other sovereign controls its cultural heritage and property. Palestinians have habitually asserted internationally-recognized principles as a point of departure in "final status" negotiations on what is termed the "archaeology file," (9) yet have been unable to maintain complete control of such property. Ahmad A. Rjoob of the Palestinian Ministry of Tourism and Antiquities describes Palestinian cultural heritage as "one of the most intensively abused, excavated and subsequently disturbed worldwide," (10) a result of more than a century of management from different administrations, each with its own methods of research and distinct political purpose. "The Palestinian Ministry of Tourism and Antiquities and Israeli sources estimate that between 1967 and 1992 about 200,000 artifacts were removed from the occupied Palestinian territory annually," with approximately 120,000 removed each year since 1995. (11) This hemorrhaging of Palestinian cultural property is occurring in a context where archaeology has been used by Israel "as a pretext to gain territorial control" and exercise sovereign rights "over Palestinian lands [in order] to further its settlement enterprise" and exploit natural resources. (12)

Section II traces the history of archaeological laws and practices in Palestine, from the Ottoman era to contemporary Israeli military orders. Section III examines the rules governing the protection of cultural property during military occupation under the aegis of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, (13) and the consequences of future Palestinian ratification of the Convention and its 1999 Second Protocol. (14) Section IV tracks the illicit trade in antiquities from Palestine, and the potential effects that ratification of two instruments would have on regulation and restitution--particularly, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, (15) and 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. …