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Recent Developments Concerning the Law for the Protection of Cultural Property in the Event of Armed Conflict

  • Gerard J. Tanja

Extract

On May 14, 1954 the Inter-governmental Conference on the Protection of Cultural Property in the Event of Armed Conflict which convened in The Hague, managed to adopt the text of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention). Apart from the Convention as such, the Regulations for the Execution of the Convention, a Protocol directed towards the prevention of the exportation of cultural property from occupied territories during armed conflicts, and three Resolutions were adopted.

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1 Reprinted in UNESCO, Conventions and Recommendations of UNESCO Concerning the Protection of Cultural Heritage 136 et seq. (1985).

2. UNESCO 141 EX/18, March 26, 1993.

3. It should be noted in this respect that the World Heritage Convention belongs to the law of peace, whereas the Hague Convention of 1954 is, to a large extent, part of the body of law applicable in times of armed conflict.

4. Peter H. Kooijmans, Speech on the Occasion of the Expert Meeting on the Application and Effectiveness of the 1954 Hague Convention, The Hague, 5 July, 1993.

5. UNESCO, 26 C/Res. 39.

6. Reprinted in UNESCO 140 EX/13.

7. Id.

8. The Executive Board Meetings are convened twice a year in Paris. The Netherlands is a member of the Board and therefore in a position to initiate discussions on certain specific agenda items. Discussions and decisions of the Executive Board serve as a preparation for the Agenda and decision-making at the General Conference of UNESCO which is held every two years. Hence, the decision of the Netherlands to start discussions on this issue as early as 1992, whereas the next General Conference will be organized in November 1993.

9. The Sixth Committee has established a special Working Group on the implementation of the Decade of International Law. The review and revision of existing legally binding instruments definitely fall within the scope of the progressive development of international (humanitarian) law and could, therefore, be discussed by the Working Group. At present, the Sixth Committee also deals-without much success-with another international humanitarian law topic: “The protection of the environment in times of armed conflict”. See also L. Lijnzaad & G.J. Tanja, The Protection of the Environment in Times of Armed Conflict: the Iraq - Kuwait War 2 Netherlands International Law Review 169–199 (1993)

10. The Explanatory Note is reprinted in UNESCO 140 EX/26 of 11 September 1992 and was submitted under agenda item 5.5.3.: Review of the Application of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, May 14, 1954.

11. This decision was taken after extensive (informal) consultations with several Members of the Board, especially Latin American, Asian and African countries which, in general, favoured the approach by the Netherlands and refused to accept any process to amend or change the operation and implementation of the 1972 Convention together with a revision of the 1954 Convention. A further important factor was the support from the UNESCO Secretariat for this approach. In addition, the United States and the United Kingdom, although not Member States of UNESCO, made it clear that they would not accept any proposal to review the contents of the 1972 Convention, a position which was also taken by the Canadian chairperson of the Executive Board.

12. Boylan, Patrick J., Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, April 30, 1993.

13. Agenda item 5.5.1.; UNESCO 140 EX/Decision 5.5.2, see UNESCO 141 EX/18.

14. The informal negotiations leading to this joint proposal took place in Paris and resulted in the aboverefered to joint Draft Decision to the Executive Board.

15. UNESCO EX/Decision 5.5.1. The Decision substantially weakened the original Italian ideas to also revise the 1972 Convention and lo coordinate the two processes. As a matter of fact, the Decision explicitly states that a revision of the 1972 Convention is at present not necessary. Hence, the call for coordination between processes/mechanisms (now in rather general terms) to enhance the protection of the cultiural heritage becomes largely without substance; it seems more a ‘face-saving device’ for the Italian original position.

16. See Report of the Meeting of Experts, The Hague, July 7, 1993, reprinted ad verbatim in UNESCO 142/EX/15.

17. One might envisage the drafting of a new legally binding instrument outside the framework of the amendment procedure of Article 39 of the 1954 Convention. The new regime would have the advantage of legal certainty and could be developed by means of a consensus expressed by all the parties involved in the negotiating process. Participants would not be bound by the inherent restrictions of Article 39 (Article 39 limits the participation in a revision process to the High Contracting Parties to the Convention); the relation of the new treaty to the 1954 Convention would be regulated by the general law of treaties. On the other hand, one could also envisage the need to restrict the participation in a revision process to the High Contracting Parties and, hence, follow the procedure laid down in Article 39 of the Convention. The advantage would be a clearly legally binding text within the framework of the 1954 Convention. It would seem that three options are available under this approach: the amendment of the 1954 Convention or its Regulations; the development of an Additional Protocol; a combination of these options. A third approach would be to set the level of aspiration much lower and to strive towards the elaboration of a set of non-binding recommendations or resolutions to be contained in a political declaration. This approach would have the advantage of flexibility and the relative short time of preparation, but would not result in a binding document. The last approach could consist of a combination of the above-mentioned approaches.

18. It must be recalled here that the scope of the 1954 Convention is not limited to international conflicts; it is also applicable in conflicts of a non-intemational character.

19. Meeting of the IUCN Experts on the Protection of the Cultural Heritage, Amsterdam, 1992, unpublished.

20. Reprinted in UNESCO, Conventions and Recommendations, supra note 1 at 57 et seq.

21. In his Report Prof. Boylan also addressed these important elements. See supra note 12, Appendix X to his Report has the heading “Outline of Recommended Composition and Role of the Proposed Intergovernmental Advisory Committee on the Protection of Cultural Property in the Event of Armed Conflict”.

22. See Report, at 6.

23. The issue will be discussed this year in the General Assembly (Sixth Committee) of the United Nations, where it has been put on the agenda by New Zealand. The issue was also (hotly) debated during the recent ICRC Conference in Geneva (Aug. 31 - Sept. 2, 1993) and will probably become one of the most important issues in the next few years within the context of international humanitarian law.

24. The idea to have a Protective Power stems from the 1949 Geneva Conventions, but as Prof. Boylan has proved in his Report, it is outdated, unenforceable, ineffective and hypothetical. Supra note 12, at 17.

25. During the recent ICRC Conference, however, the Commission issued a non-paper, calling upon States not only to accept the competence of the Fact-Finding Commission in general terms, but also to consider the possibility to accept its competence on an ad hoc basis. Furthermore, the Commission stated that it did not consider its responsibilities and functions be limited to international armed conflict. Also conflicts of a non-international nature would fall within its competence, a statement which was contested by many third world countries like Pakistan, India, Egypt and Syria and for these reasons was not included in the Final (consensus) Declaration.

* Gerard J. Tanja, Office of the Legal Adviser, Dutch Ministry of Foreign Affairs. The views expressed in this article do not necessarily represent the opinion of the Dutch government.

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