Review of the Convention for the Protection of Cultural Property in



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CHAPTER 16

ROLE OF STATES: BOTH HIGH CONTRACTING PARTIES

AND OTHER STATES

16. 1. Ultimately, no measures aimed at protecting culture in times of war can succeed without the support of the sovereign states that make up the world community at the international level. Consequently it is vitally important that both the civil administrations and the military commands of States are fully conversant with, and supportive of, the 1954 Hague Convention and the Hague Protocol. There is little or no evidence of deliberate hostility to the high ideals and minimum standards of the Convention, so failure to support at least the principles of it must be the result of either ignorance or neglect.


16. 2. it is clear that there are still very many States in membership of the United Nations and UNESCO which have never given serious consideration to the possibility of adopting the Convention and Protocol, while it is time for those previously reluctant to adopt them to review their positions. In both respects the initiatives recom­mended for action by UNESCO in this Report should be of assistance, especially the suggestion that the Executive Board should formally request all States which have not adopted the Hague Convention to do so, as should the proposed increased publicity and regional training/information seminars.
16. 3. Although it has not been possible in the course of this study to calculate the possible cost of implementing the Hague Convention's peace-time protection and preparation measures it is clear that even in countries which have the best developed systems such as The Netherlands, the costs are so low as to be hardly identifiable: the system depends very largely on an integrated approach to the physical protection of the cultural patrimony against all threats - natural, civil and military - and on a network of volunteer experts granted the legal status of military reserve officers.
16. 4. It should also be remembered that at the height of the enormous cultural property protection programme during the final year of and just after the end of the Second World War in Europe (between April 1944 and about the end of 1947), involving many thousands of threatened and damaged monuments, and the recovery and repatriation of many tens of thousands of looted or stolen works of art etc., there were never more than six Monuments, Fine Arts, and Archives Protection Officers at any one time within the United States forces in France and northern Germany, with a roughly similar number in the British and French forces. Nevertheless, with the active involvement of professional and technical experts of the territories concerned the scale of damage and destruction of monuments, and of losses of collections was clearly greatly reduced. Certainly the claim on public resources of a reasonable level of peacetime preparedness planning and practical protection should be well within the resources of almost every State.
16. 5. Most High Contracting Parties to the 1954 Convention still have very much to do at the practical level to implement the solemn pledges they have given to the world community, and indeed to their own citizens, in their ratification of, or accession to, this important Treaty. Far more needs to be done at the practical level to meet the obligations that States party to the Convention have entered into in their acceptance of it. There are however some notable exceptions to this generalisation, though perhaps four or five at the most, for example, Austria, Switzer­land and The Netherlands, (and indeed in some respects the former Yugoslavia). These examples of serious and successful application of the practical provisions of the Convention show that the task is not a very onerous one in terms of either money or resources. However, information on the practical measures taken by such countries needs to be shared more widely, for example through the proposed new UNESCO train­ing/information seminar and publications programmes.
16. 6. Particularly high priorities are the implementing of effective provisions within national military and civilian criminal law for the investigation and punishing of alleged `cultural' war crimes and other offences by nationals and other residents of the State, and the establishment of active programmes of military and public education and information intended to increase knowledge and understanding of, and respect for, the protection of the cultural property and cultural values of all peoples.
16. 7. In view of the grave losses of movable cultural property from areas affected by international wars and internal armed conflicts such as civil wars and inter-communal conflicts, high priority needs to be given to effective national adminis­tra­tive and criminal law measures to stop the international trafficking in stolen or otherwise illicitly acquired and transported cultural property from such war zones, in accordance with the spirit of the 1954 Protocol and the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cul­tural Property.
16. 8. All High Contracting Parties should review their arrangements for the training of military personnel of all levels in relation to their obligations under the Convention and other relevant aspects of international law. Further, Member States participat­ing in United Nations operations should ensure that the forces allocated to particular operations are adequately and specifically re-trained and briefed in such matters, and that appropri­ate military discipline is maintained in relation to the respect of monuments and other cultural property, and relevant cultural property export laws and codes.
16. 9. All High Contracting Parties which are also parties to the 1972 World Heritage Convention should review each of the cultural localities within the State which are inscribed on the World Heritage List and consider whether they are eligible for the granting of `Special Protection' as `centres contain­ing monuments' under Article 2(c) of the 1954 Convention.
16.10. All States Parties should note that in the absence of specific provisions for the resolution or enforcement of inter-government disputes or complaints concerning the interpreta­tion and application of the 1954 Convention and Protocol, such matters may be referred to the International Court of Justice under Chapter XIV of the Charter of the United Nations, and specifically under Chapter II of the Statutes of the International Court of Justice annexed to the United Nations Charter.
16.11. All High Contracting Parties should establish a national advisory committee to assist with the practical implementation of the 1954 Convention and Protocol, in accordance with Recommendation II of the 1954 Intergovernmental Conference.
16.12. All States which previously decided not to ratify or accede to the 1954 Convention and Protocol, or which have so far not considered accession to it should review their position in relation to the Convention as a matter or urgency, since such interna­tional instruments ultimately derive their authority from their universal acceptance by the world community.
16.13. Regardless of the decision of any State not to adopt the 1954 Convention, it should nevertheless be respected as Customary International Law, and as the successor and supplementary provisions and clarification of the principles established in earlier Interna­tional Instruments, particularly the 1899 and 1907 Hague Conven­tions and the 1935 Washington Treaty (`Roerich' Pact), and also as the applicable law in many parts of the world where their armed forces may be in action, eg. as part of a United Nations peacekeeping operation.
16.14. Whether or not such States decide to ratify or accede to the 1954 Conven­tion, they should take all necessary action to implement effective provisions within national military and civilian criminal law for the investigation and punishing of alleged `cultural' war crimes and other offences by nationals and other residents of the State, and to establish active programmes of military and public education and information intended to increase knowledge and understanding of, and respect for, the protection of the cultural property and cultural values of all peoples.
16.15. In particular, Member States participating in United Nations operations should ensure that the forces allocated to particular operations are adequately and specifically trained and briefed in their obligations under Customary International Law and in the 1954 Hague Convention (since this could very well be applicable law in the theatre of operations), and that appropri­ate military discipline is maintained in relation to the respect of monuments and other cultural property, and relevant cultural property export laws and codes.

CHAPTER 17
NON-GOVERNMENTAL ORGANISATIONS

17. 1. Non-Governmental Organisations also have an important role to play in promoting both understanding and the acceptance of civilised standards of conduct (particular­ly in this case adherence to the 1954 Hague Convention and Protocol). Similarly, they have a vital role in developing appropriate professional standards of protection for the practical action of both immovable cultural property and collections. Their non-governmental status can also give them a very considerable advantage over governmental and inter-governmental organisations in cases where there are serious political problems making the practical involvement of bodies such as UNESCO impossible. The most obvious examples are the cases where the territory is under the control of a regime declared to be illegal by the interna­tional community through the United Nations, (a continuing problem for nearly twenty years now in northern Cyprus in respect of the practical application of the Hague Convention and Protocol, and other UNESCO Instruments such as the 1970 movable cultural property and 1972 World Heritage Conventions, to give just one example).


17. 2. The relevant non-governmental organisations themselves are currently taking a considerable interest in ways of improving the effectiveness and application of the 1954 Convention, as for example in the various initiatives of the international Council of Monuments and Sites (ICOMOS) in exploring both the better integration of planning and prepared­ness for all types of disasters, including war, and in exploring the possibility of creating some form of non-governmental `Blue Shield' international organisation for cultural property, as a direct parallel of the Red Cross in relation to other areas of humanitarian assistance.314 The International Council of Museums (ICOM) is also active in this field with working groups on both Disaster Preparedness and the Application of the Hague Convention with cross-representa­tion between the two groups.
17. 3. All non-governmental organisations operating in the tangible heritage sector, and especially international NGOs in relationship with UNESCO working and relevant regional organisations, should recognise the important role they can play in developing both practical advice and training procedures in relation to the protection of monuments and collections etc. within their respective fields of interest in the face of the risk of both natural and civilian disasters as well as armed conflicts. They should work closely with UNESCO in both developing and actively promoting at the professional level the measures that it is recommended to undertake under Recommendations B.2 to B.7 above.
17. 4. The relevant international, regional and national non-governmental organisations, together with National Commissions of UNESCO, should take an active role in promoting knowledge and acceptance of the 1954 Conven­tion and Protocol among their members and their governments, urging both the adoption and active implementation of their provisions, especially in countries which have not yet adopted the Convention and/or which have not yet taken the necessary legal and administrative measures required for its effective implementation.
17. 5. Non-governmental organisations have the potential to play a most important role in providing direct assistance in terms of professional and technical labour, specialised equipment and materials for protection and emergency conservation, and for assisting with the temporary evacuation of important movable cultural property in times of actual or threatened armed conflict. The role of the voluntary sector could be especially crucial in those cases where international and governmental organisations are unable to offer such assistance because of the (unavoidable) political consequences, eg. where the country is under a de facto government or administration which is not recognised as legitimate by the United Nations or other international organisations.

CHAPTER 18.

POSSIBLE FUTURE AMENDMENTS OF THE

1954 CONVEN­TION

18. 1. Although technical improve­ments to the detailed provisions of the Conven­tion and Protocol, are certainly desirable in the long term, these are less urgent at this time than the over-riding priority of achieving greater recogni­tion, acceptance and application of their provisions in the face of current and continuing breaches on the one hand, and the comparatively low level of ratifications on the other. Nevertheless, in the course of this study significant issues have been raised, which ought to be incorporated into the provisions of the 1954 Hague Instruments as soon as circumstances permit, probably by means of an additional Protocol, rather than by a revision of the Convention itself, though that may be desirable in the future.


18. 2. The present definition of `cultural property' in the 1954 Convention is rather out-of-date and very imprecise. Subsequent UNESCO international instruments, particularly the 1970 and 1972 Conventions, and various UNESCO Recommenda­tions have adopted what are generally more comprehensive and explicit definitions (though these others are not at all consistent in their wording)315. In relation to future Instruments and policy statements it would be desirable for UNESCO to adopt a more consistent approach to definitions, subject of course to the special needs of the particular case. Also, in view of the growing importance of non-traditional catalogue and other record systems for both movable and immovable cultural property, in any future revision of, or Additional Protocol to, the 1954 Convention, the definition of `cultural property' in Article 1 (a) the phrase `or of reproductions of the property defined above' be replaced by `or of paper, microform or electronic catalogues, documenta­tion, or copies of the property defined above'.
18. 3. In the 1954 Convention legal enforcement and action in respect of eg. alleged `cultural' war crimes, rests almost entirely with national governments and national legal systems. There is no explicit provision in the Convention for the resolution of inter-govern­mental disputes about its application and interpretation316, and it would desirable to establish some appropri­ate, relatively simple and quick, means of arbitrating on inter-govern­mental disputes relating to the application of the 1954 Convention.
18. 4. Bearing in mind the precedents of the 1949 Geneva Conventions the inclusion of the `military necessity' exemption was already inappropriate by the time of the 1954 Intergovernmental Con­ference. It is strongly recommended that in any revision of the primary text of the 1954 Convention or in any new Additional Protocol to it, High Contracting Parties should renounce the provisions of Article 3 (2) allowing the waiving of the provisions of the Convention in the case of military necessity.
18. 5. It seems clear that the concept of `Special Protection' in the Convention was devised primarily in order to protect a strictly limited number of permanent and temporary shelters and other `refuges', though it is also possible for High Contracting Parties to propose for `Special Protection' what are defined as `centres containing monu­ments and other immovable cultural property of very great importance'. However, neither definition covers even the most important museums, libraries, archive repositories etc., and `Special Protection' for these can only be applied for if these happen to be located in zones with outstanding immovable cultural property as well. Any future updating should provide for the granting of `Special Protection' to the world's greatest museums and similar institutions on the basis of the pre-eminent importance of their collections, (providing, of course, it is possible to meet the other requirements for `Special Protection' - particularly the demilitarising of the surrounding area).

18. 6. There are currently serious problems in relation to the procedures for the appointment of Commissioners-General for Cultural Property, both in general and particularly in relation to situations where there are no nominated Protecting Powers. Changes in this area are needed, with the aim of making the Commis­sioner-General provisions enforceable on both parties to an armed conflict. However, achieving this would require solutions to difficult problems of interna­tional law, and the matter therefore needs to be considered by appropriate experts in interna­tional law.


18. 7. In order to improve the understanding and application of the Hague Convention there is a need for it to be supported by an Intergovernmental Advisory Committee on the Protection of Cultural Property in the Event of Armed Conflict, modelled on the World Heritage Committee. The proposed terms of reference and composition are outlined in Appendix X of this Report.
18. 8. There are strong arguments for the granting of both `ordinary' and `special' protection in times of armed conflict for localities of pre-eminent importance to the natural heritage and the survival of endangered species, such as key nature reserves, conservation parks and especially important collections of live animals and plants. Amongst international organisations both the International Union for the Conservation of Nature and the International Committee of the Red Cross, to give just two examples, are very concerned about the need to provide such protection in international law. However, such sites clearly appear to be quite outside the definition, and indeed the title, of the 1954 Convention, and moves in this direction would require extensive international negotiation.
18. 9. Also, the amount of land, in terms of both area and type, that could be subject to protection from military activity would be of a quite different order of magnitude in many cases. While the largest entry on the current Hague Convention `Special Protection' list (the Vatican City `centre containing monuments') is just 0.44 square kilometres in extent317, very many natural sites worthy of international protection extend to many hundreds of square kilometres. If brought within the requirements of a revised Hague Convention the size of the areas subject to constraint on the waging of war would be greatly increased, raising the very real possibility of serious military objections, which might weaken the existing protection afforded by the 1954 Convention. (To give just one concrete example out of many, the World Heritage List protection of the dry tropical forest in the frontier regions of Costa Rica and Nicaragua applies to more than 80% of the land border between the two countries. Also, the nature of some of the wartime protection mechanisms and expertise and controls that would be required are in relation to natural sites are rather different, (eg. action against pollution from either the fighting forces and weapons themselves and from the destruction of e.g. oil installations, and action to protect flora and fauna during armed conflicts). Consequently, such a change cannot be recom­mended at the present time, but should instead the subject of new international negoti­ations on the issues of principle involved.
18.10. In terms of the mechanism for making such changes, the issues relating to the definitions in the Convention, to enforcement measures, the extension of the concept of `Special Protection' and the establishment of the proposed Advisory Committee as an official body under the Convention, could probably dealt with by means of the adoption of an Additional Protocol. However, if States Parties wished to pursue the suggested extension of the 1954 Convention to cover the natural heritage as well as the cultural heritage, would involve a fundamental change in its underlying purpose, and would probably require a completely new international instrument.



APPENDIX I.
TEXTS OF 1954 HAGUE CONVENTION, PROTOCOL AND

HAGUE CONFERENCE RESOLUTIONS

CONVENTION FOR THE PROTECTION OF CULTURAL

PROPERTY IN THE EVENT OF ARMED CONFLICT

(THE `HAGUE CONVENTION')

[PREAMBLE]
The High Contracting Parties,
Recognizing that cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is in increasing danger of destruction;
Being convinced 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;
Considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection;
Guided by the principles concerning the protection of cultural property during armed conflict, as established in the Conventions of The Hague of 1899 and of 1907 and in the Washington Pact of 15 April, 1935;
Being of the opinion that such protection cannot be effective unless both national and international measures have been taken to organize it in time of peace;
Being determined to take all possible steps to protect cultural property;
Have agreed upon the following provisions:

Chapter I. General provisions regarding protection
Article 1. Definition of cultural property
For the purposes of the present Convention, the term `cultural 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 history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts. books and other objects of artistic, historical or archaeological interest; as well as scientific collec­tions and important collections of books or archives or of reproduc­tions of the property defined above;

(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 sub paragraph (a);

(c) centres containing a large amount of cultural property as defined in sub paragraphs (a) and (b), to be known as `centres containing monuments'.


Article 2. Protection of cultural property
For the purposes of the present Convention, the protection of cultural property shall comprise the safeguarding of and respect for such property.
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