Different Legal Issues Related to the Protection of Cultural Property in Peacetime and Wartime

Article excerpt

The topic of "Confronting Complexity in the Preservation of Cultural Property: Monuments, Art, Antiquities, Archives, and History" is pertinent, because cultural property throughout the world is constantly threatened by a large variety of factors ranging from armed conflicts and natural disasters to different peacetime human activities which, regrettably, do not take into account the need to safeguard and respect it.

My remarks are divided into three parts: In the first part, I will discuss the 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage (the Declaration); then I will cover the issue of sanctions under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (the Hague Convention) and its Second Protocol; finally, I will compare protection provided by the Hague Convention and its Second Protocol with that provided under the 1972 World Heritage Convention.

Let me start with the 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage. It is a legal instrument aimed at protecting cultural heritage including that linked to natural sites both in peacetime and wartime, and it was unanimously adopted by 32 C/Resolution 33 of the thirty-second session of the General Conference of UNESCO. (1)

In March 2001, the international community helplessly witnessed the destruction of the Buddhas of Bamiyan--an enormous tragedy that impoverished the cultural and spiritual heritage not only of Afghanistan, but of all humanity. (2) This mindless act of destruction took place despite massive efforts by the international community including the United Nations Educational, Scientific and Cultural Organization (UNESCO) to persuade the Taliban regime not to destroy the statues. (3)

As a reaction to the destruction of the Buddhas, the Executive Board of UNESCO adopted at its one hundred and sixty-first session (Paris, May 28-June 13, 2001) 161 EX/Decision 3.1.1 (III) which, among other things, resolutely condemned "the acts of destruction committed against historical and cultural monuments," in particular in Afghanistan, described by the Director-General as "crimes against culture'" and invited

   Member States tirelessly to pursue their efforts to ensure the full
   application of the principles of the Convention for the Protection
   of Cultural Property in the Event of Armed Conflict (The Hague,
   1954), the Convention on the Means of Prohibiting and Preventing
   the Illicit Import, Export and Transfer of Ownership of Cultural
   Property (1970), the Convention for the Protection of the World
   Cultural and Natural Heritage (1972) and the other relevant
   international legal instruments.

The decision finally resolved to include the item "Acts constituting a crime against the common heritage of humanity" in the agenda of its 162rid session and in the provisional agenda of the 31st session of UNESCO's General Conference." (4)

The issue of acts constituting a crime against the common heritage of humanity was further discussed during the one hundred and sixty-second session of the Executive Board of UNESCO (Paris, Oct. 2-31, 2001) and the thirty-first session of the General Conference of UNESCO (Paris, Oct. 15-Nov. 3, 2001). The latter considered this issue extensively and adopted 31 C/Resolution 26 on the "Acts constituting a crime against the common heritage of humanity" (5) which, among other things, invited the Director-General "to formulate, for the 32nd session of the General Conference, a Draft Declaration concerning the Intentional Destruction of Cultural Heritage."

Let me take this opportunity to explain that in UNESCO's standard-setting terminology, conventions are international legally binding instruments defining rules that, not binding ex se, except for those states which accept, accede, approve, ratify, or succeed to them. They are adopted by a two-thirds majority of states which attend the General Conference of UNESCO. …