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How the Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 contribute to better protection of cultural property
Published online by Cambridge University Press: 29 June 2022
Abstract
This article analyzes the contribution of 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 (the Guidelines) to better protection of cultural property in peacetime and in times of armed conflict. The first part of the article introduces the Guidelines within the context of 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 (1999 Second Protocol) and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and provides examples of UNESCO's other standard-setting instruments such as the 1972 Convention Concerning the Protection of the World Cultural or Natural Heritage, the 2001 Convention on the Protection of the Underwater Cultural Heritage and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, as well as bodies providing for guidelines for these instruments. The second part underscores the most important advances of the Guidelines in the implementation of the 1999 Second Protocol. The third part focuses on the contribution of the Guidelines as subsequent practice in the application of the 1999 Second Protocol establishing the agreement of the parties regarding its interpretation in the framework of Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties. Finally, the fourth part concludes by highlighting the main advantages of the Guidelines in providing better protection for cultural property.
Keywords
- Type
- Research Article
- Information
- International Review of the Red Cross , Volume 104 , Issue 920-921: How International Humanitarian Law Develops , August 2022 , pp. 1948 - 1970
- Copyright
- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC
Footnotes
*
The present article is based on a number of my previous presentations. The factual information in this article reflects the situation as of 12 May 2022.
References
1 The 1999 Second Protocol supplements the 1954 Hague Convention with regard to relations between the parties: see Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999 (1999 Second Protocol), Art. 2, available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/590 (all internet references were accessed in June 2022). It provides a number of considerable advances: for example, it elaborates the content of peacetime safeguarding measures through the provision of concrete examples; it clarifies the notion of military necessity with regard to cultural property under both general and enhanced protection by providing for conditions when this notion may be applied, thus preventing its misinterpretation or abuse; it elaborates the notion of precautions in attack and precautions against the effects of hostilities; it improves the protection of cultural property in occupied territory by providing for specific obligations of the Occupying Power; it introduces the notion of enhanced protection with regard to certain categories of cultural heritage (as discussed in the section on “Enhanced Protection” later in this article); it defines the notion of serious violations of the 1999 Second Protocol as well as other violations of this agreement; it improves the protection of cultural property in non-international armed conflicts by providing for the applicability of the 1999 Second Protocol in its entirety to non-international armed conflicts; it establishes the Committee for the Protection of Cultural Property in the Event of Armed Conflict (see the following section below) and a biannual Meeting of the Parties; and finally, it establishes the system of international assistance and creates the Fund for the Protection of Cultural Property in the Event of Armed Conflict.
2 See also Kevin Chamberlain, War and Cultural Heritage: A Commentary on the Hague Convention 1954 and its Two Protocols, 2nd ed., Institute of Art and Law, Builth Wells, 2013, p. 164.
3 The Committee is essentially responsible for the monitoring of the implementation of the 1999 Second Protocol and management of enhanced protection and international assistance. Its functions are set out in Article 27(1) of the Protocol. The Committee is currently composed of Austria, the Czech Republic, Estonia, Greece, Morocco and Nigeria (elected until 2023), and Azerbaijan, El Salvador, Finland, Japan, Qatar and Ukraine (elected until 2025). The current chairperson of the Committee is H. E. Ms Claudia Reinprecht (Austria).
4 In conformity with Articles 41 and 42 of the 1999 Second Protocol, only High Contracting Parties may become party to the Protocol. In other words, a State wishing to become party to this Protocol is required to first join the 1954 Hague Convention.
5 The 1954 Hague Convention does not establish any supervisory body. The 1954 Hague Intergovernmental Conference considered this issue, but the discussion did not result in the creation of the supervisory body. Article 27(2) of the 1954 Hague Convention provides for the possibility of convening meetings of the High Contracting Parties, the main purpose of which is “to study problems concerning the application of the Convention and of the Regulations for its execution, and to formulate recommendations in respect thereof”. The first meeting of the High Contracting Parties took place in 1962. It considered, inter alia, the issue of “adequate distance” under Article 8(1)(a) of the 1954 Hague Convention but did not reach any specific conclusions. The last (14th) meeting of the High Contracting Parties took place in 2021.
6 1999 Second Protocol, Art. 23(3)(b).
7 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, Paris, December 2019 (Guidelines), paras 1–2, available at: https://en.unesco.org/sites/default/files/1999_Protocol_Guidelines_EN_2020.pdf. Paragraph 3 provides for the possibility of revising the Guidelines to reflect the decisions and recommendations adopted by the Meeting of the Parties and the Committee.
8 The main purposes of the Operational Guidelines for the Implementation of the World Heritage Convention are set forth in their paragraph 1, which reads as follows: “The Operational Guidelines for the Implementation of the World Heritage Convention … aim to facilitate the implementation of the Convention concerning the Protection of the World Cultural and Natural Heritage …, by setting forth the procedures for:
a) the inscription of properties on the World Heritage List and the List of World Heritage in Danger;
b) the protection and conservation of World Heritage properties;
c) the granting of International Assistance under the World Heritage Fund; and
d) the mobilization of national and international support in favor of the Convention.”
Paragraph 2 of the Operational Guidelines provides for their periodic revision to reflect the decisions of the World Heritage Committee. See UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO Doc. WHC.21/01, 31 July 2021, available at: https://whc.unesco.org/en/guidelines/ (this web page also contains a section on the historical development of the Operational Guidelines).
Regarding the Operational Guidelines, Professor Catherine Redgwell has stated: “The Guidelines do not constitute a legally binding instrument, but rather perform a valuable policy function in guiding the implementation of the Convention by the key stakeholders, which include the States Parties, members of the Committee, the Bureau, the Advisory Bodies (ICOMOS, IUCN, and ICCROM), the UNESCO secretariat, and the site managers.” Catherine Redgwell, “Article 2: Definition of Natural Heritage”, in Francesco Francioni (ed.), The 1972 World Heritage Convention: A Commentary, Oxford Commentaries on International Law, Oxford University Press, New York, 2008, pp. 66–67.
9 The main purpose of the 2001 Convention's Operational Guidelines under their paragraph 22 is to facilitate the implementation of this Convention by giving practical guidance. Paragraph 23 of the Operational Guidelines provides for the possibility of their revision by the Meeting of States Parties to the 2001 Convention whenever deemed necessary. See UNESCO, Operational Guidelines for the Convention on the Protection of the Underwater Cultural Heritage, UNESCO Doc. CLT/HER/CHP/OG 1/REV, August 2015, available at: https://unesdoc.unesco.org/ark:/48223/pf0000234177.
10 According to the UNESCO website, available at: https://ich.unesco.org/en/directives: “Article 7 of the Convention stipulates that one of the functions of the Committee is to prepare and submit to the General Assembly for approval operational directives for the implementation of the Convention.
The General Assembly adopted for the first time the Operational Directives in June 2008, and amended them in June 2010, 2012, 2014 and 2016. It will continue to complete and revise them in future meetings.
Among other things, the Operational Directives indicate the procedures to be followed for inscribing intangible heritage on the lists of the Convention, the provision of international financial assistance, the accreditation of non-governmental organizations to act in an advisory capacity to the Committee or the involvement of communities in implementing the Convention.”
The Operational Directives are also available on the web page cited above.
11 According to the UNESCO website, available at: https://en.unesco.org/creativity/convention/texts: “Operational Guidelines of the Convention include a set of texts elaborated by the Intergovernmental Committee and adopted by the Conference of Parties, providing general guidelines for the implementation and application of the provisions of the Convention. They are to be considered as a ‘roadmap’ for understanding, interpretation and implementation of specific articles of the Convention.” The Operational Guidelines are also available on the web page cited above.
12 According to the UNESCO website, available at: https://en.unesco.org/fighttrafficking/1970/subsidiary_committee_and_sessions: “The Subsidiary Committee of the Meeting of States Parties to the 1970 Convention is made up of representatives from 18 States Parties (3 per regional group). The election of the Committee follows the principles of geographic representation and fair rotation. The members of the Committee are elected for a period of four years. Every two years, the Meeting of States Parties renews half of the members of the Committee. A member of the Committee cannot be elected for two consecutive terms.
The functions of the Subsidiary Committee are:
- •
• promoting the aims of the Convention;
- •
• reviewing of national reports submitted to the General Conference by States Parties to the Convention;
- •
• preparing and submitting to the Meeting of States Parties recommendations and guidelines that can contribute to the implementation of the Convention;
- •
• identify problematic situations resulting from the implementation of the Convention, including matters relating to the protection and return of cultural property;
- •
• establishing and maintaining coordination with the ‘Return-Restitution’ Committee in connection with capacity-building measures to fight the illicit trafficking of cultural property;
- •
• informing the Meeting of States Parties of the activities that have been implemented.”
13 Available at: https://en.unesco.org/fighttrafficking/operational-guidelines.
14 Further details on the contents of the 1954 Hague Convention and its two Protocols can be found in International Committee of the Red Cross (ICRC), “1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict and Its Protocols”, fact sheet, ICRC Advisory Service on IHL, April 2021, available at: www.icrc.org/en/document/1954-convention-protection-cultural-property-event-armed-conflict-and-its-protocols-0.
15 Further details on general, special and enhanced protection may be found in ICRC, above note 14.
16 A copy of the Register is on file with the author.
17 Jiří Toman, “The Road to the 1999 Second Protocol”, in Nout van Woudenberg and Liesbeth 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, Leiden and Boston, MA, 2010, p. 5. When analyzing the issue of enhanced protection, Jean-Marie Henckaerts and Nout van Woudenberg stress the practical difficulties concerning the notion of “adequate distance” and the issue of cultural property in the heart of large urban, political, and industrial centres (see pp. 32 and 52, respectively, of the above publication).
18 Ibid., p. 5.
19 See Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 52(1): “Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.”
20 See Jean-Marie Henckaerts, “New Rules for the Protection of Cultural Property in Armed Conflict: The Significance of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict”, in N. van Woudenberg and L. Lijnzaad (eds), above note 17.
21 A copy of the International List of Cultural Property under Enhanced Protection is on file with the author.
22 These criteria are heavily inspired by criteria (i), (ii) and (iii) set forth in paragraph 77 of the Operational Guidelines for the Implementation of the World Heritage Convention, above note 8.
23 A copy of the Register is on file with the author.
24 The six-member Bureau (the chairperson, the four vice-chairpersons and the rapporteur) is elected in conformity with Rule 16.1 of the Rules of Procedure of the Committee at the beginning of each ordinary session of the Committee. In accordance with Rule 15.1 of the Rules of Procedure of the Committee, the functions of the Bureau are to coordinate the work of the Committee and to fix the dates, hours and order of business of meetings. In addition, under the Guidelines the Bureau plays an important role in the management of requests for the granting of enhanced protection and those related to the granting of international assistance. The current Bureau is composed of H. E. Ms Claudia Reinprecht (Austria), the chairperson; H. E. Mr Imoh Sunday Egbo (Nigeria), the rapporteur; and the four vice-chairpersons from El Salvador, Estonia, Japan and Morocco.
25 The notion of a “tentative list” was taken almost expressis verbis from paragraph 62 of the Operational Guidelines for the Implementation of the World Heritage Convention, above note 8.
26 Ibid., para. 63.
27 See ibid., para. 155, introducing the Statement of Outstanding Universal Value. The 1999 Second Protocol Statement closely mirrors the Statement of Outstanding Universal Value.
28 It should be pointed out that Chapter V (“The Distinctive Emblem”) of the 1954 Hague Convention provides for the distinctive emblem. Its description is contained in Article 16(1) of the Convention, and the modalities for its use in Article 17. Furthermore, Articles 20 and 21 of the Regulations for the Execution of the Convention deal with the issue of the emblem.
29 Guidelines, above note 7, Annex IV, “Distinctive Emblem for Cultural Property under Enhanced Protection, Including Its Graphic Charter”.
30 “The Parties to a conflict shall ensure the immunity of cultural property under enhanced protection by refraining from making such property the object of attack or from any use of the property or its immediate surroundings in support of military action.”
31 Under the Guidelines, the term “reasonable implementation” means establishing as criminal offences under domestic criminal law of the parties serious violations of the 1999 Second Protocol as set forth in Article 15(2) of the Protocol. Article 15(2) provides the following: “Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties. When doing so, parties shall comply with general principles of law and international law, including the rules extending individual criminal responsibility to persons other than those who directly commit the act.”
32 Article 15(1) stipulates the following: “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.”
33 Article 37(1) of AP I, above note 19, prohibits killing, injury or capture of an adversary by resort to perfidy. Perfidy is constituted by acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence. Furthermore, the authoritative ICRC study on customary international humanitarian law provides in its Rule 61 for the prohibition of the improper use of other internationally recognized emblems: see Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (ICRC Customary Law Study), available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1. This rule is applicable both in international and non-international armed conflicts (see Henckaerts, Jean-Marie, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict”, International Review of the Red Cross, Vol. 87, No. 857, 2005CrossRefGoogle Scholar). Finally, the authoritative commentary on Rule 61 (ICRC Customary Law Study, above, pp. 212–213) states that the distinctive emblem for cultural property is covered by Rule 61 in both international and non-international armed conflicts.
34 Article 29 of the 1999 Second Protocol (“The Fund for the Protection of Cultural Property in the Event of Armed Conflict”) reads as follows: “1. A Fund is hereby established for the following purposes:
(a) to provide financial or other assistance in support of preparatory or other measures to be taken in peacetime in accordance with, inter alia, Article 5, Article 10 sub-paragraph (b) and Article 30; and
(b) 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 in accordance with, inter alia, Article 8 sub-paragraph (a).
2. The Fund shall constitute a trust fund, in conformity with the provisions of the financial regulations of UNESCO.
3. Disbursements from the Fund shall be used only for such purposes as the Committee shall decide in accordance with the guidelines as defined in Article 23 sub-paragraph 3(c). The Committee may accept contributions to be used only for a certain programme or project, provided that the Committee shall have decided on the implementation of such programme or project.
4. The resources of the Fund shall consist of:
-
(a) voluntary contributions made by the Parties;
-
(b) contributions, gifts or bequests made by:
-
(i) other States;
-
(ii) UNESCO or other organizations of the United Nations system;
-
(iii) other intergovernmental or non-governmental organizations; and
-
(iv) public or private bodies or individuals;
(c) any interest accruing on the Fund;
(d) funds raised by collections and receipts from events organized for the benefit of the Fund; and
(e) all other resources authorized by the guidelines applicable to the Fund.”
As of 16 March 2022, the total amount of assets available under the Fund amounts to $499,409.49. See UNESCO, “Item 4 of the Provisional Agenda: Emergency International Assistance to Ukraine”, UNESCO Doc. C54/22/2.EXT.COM/4, 16 March 2022, p. 3, para. 14, p. 3, available at: https://en.unesco.org/sites/default/files/item.3_ext_international_assistance_en_0.pdf.
35 1954 Hague Convention, Art. 26(2): “Furthermore, at least every four years, they [the High Contracting Parties] shall forward to the Director-General [of UNESCO] a report giving whatever information they think suitable concerning any measures being taken, prepared or contemplated by their respective administrations in fulfillment of the present Convention and of the Regulations for its execution.” 1999 Second Protocol, Art. 37(2): “The Parties shall submit to the Committee, every four years, a report on the implementation of this Protocol.” For an analysis of the reporting system under the 1954 Hague Convention, see Hladík, Jan, “Reporting System under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict”, International Review of the Red Cross, Vol. 82, No. 840, 2000Google Scholar.
36 1999 Second Protocol, Art. 5 (“Safeguarding of Cultural Property”): “Preparatory measures taken in time of peace for the safeguarding of cultural property against the foreseeable effects of an armed conflict pursuant to Article 3 of the Convention shall include, as appropriate, 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.”
37 1954 Hague Convention, Art. 3 (“Safeguarding of Cultural Property”): “The High Contracting Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate.”
38 On file with the author.
39 Under Article 27(1)(d), the Committee is mandated “to consider and comment on reports of the Parties, to seek clarifications as required, and prepare its own report on the implementation of this Protocol for the Meeting of the Parties”.
40 See Resolution 9.SP 5 in UNESCO, Resolutions Adopted during the 9th Meeting of the Parties to the 1999 Second Protocol, UNESCO Doc. C54/21/9.SP/Resolutions, Paris, 30 November–1 December 2021, available at: https://unesdoc.unesco.org/ark:/48223/pf0000380338.
41 Vienna Convention on the Law of Treaties, 23 May 1969, Art. 31(3)(b): “There shall be taken into account, together with the context: … any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”
42 ILC, Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, with Commentaries, 2018, available at: https://legal.un.org/ilc/texts/instruments/word_files/english/commentaries/1_11_2018.doc.
43 Ibid., p. 9.
44 Ibid., p. 9, para. 3.
45 Ibid., p. 11, para. 9.
46 Ibid., p. 17, para. 16.
47 Ibid., p. 17, para. 17.
48 Ibid., p. 22, para. 2.
49 Ibid., p. 28, para. 3.
50 Ibid., pp. 28–29, para. 3.
51 Ibid., p. 35, para. 23.