Intersections in International Cultural Heritage Law Edited by Anne-Marie Carstens and Elizabeth Varner

ICRC Library

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Since the United Nations Educational, Scientific and Cultural Organization (UNESCO) Conventions of the early 1970s¹ first recognized the public and collective value of cultural heritage – a value transcending national boundaries and thus deserving of protection at the international level – the protection of cultural heritage has grown into its own distinctive branch of international law. The early twenty-first century has seen the adoption in rapid succession of instruments expanding the notion of cultural heritage and seeking to fill gaps in the legal regime protecting it from destruction and misappropriation.² Moving beyond the initial monumentalist vision, they now better encompass the intangible dimensions of cultural heritage and recognize its centrality to human identity and community life. The destruction and pillage of sites of incomparable value in Mali, Syria, Iraq and Yemen, notably, have acted as powerful and tragic reminders of the enduring disconnect between law and reality, raising the issue's urgency. Growing public concern and political will are further motivated by cultural property trafficking being used to finance armed groups and organized crime. Those developments have attracted considerable critical attention in recent years, leading to a burgeoning – if not yet fully bloomed – body of literature.

However, provisions for the protection of “cultural property” or “cultural heritage” in international legal instruments far predate the birth of a dedicated branch of public international law. Intersections in International Cultural Heritage Law is an invitation to look beyond the discipline's “breaking news”. The book's opening premise holds that “the content of international legal rules designed to protect and to foster the preservation of cultural heritage has emerged almost exclusively within other fields of international law”.³ In fifteen contributions, scholars and practitioners look at the diversity of sources, actors and institutions behind the composite development of the international legal protection of cultural heritage. They zoom in on key intersections between international cultural heritage law and other fields of international law, including international humanitarian law (IHL), international criminal law, international human rights law, and the law of the sea, evaluating recent developments and future trajectories under this interdisciplinary light.

The aim of the volume's cross-cutting approach is twofold. First, it allows for a historical investigation of the interactions between public international law and the protection of cultural heritage. Together, the contributions build a clear picture of how the latter has been shaped by the former, with founding principles of international law such as sovereignty and territoriality constraining the current regime of the protection of cultural heritage. Perhaps more surprisingly, they also illuminate instances where the opposite is true, where principles affirmed in the context of cultural heritage protection were later accepted outside of a cultural heritage-specific context.⁴ Second, focusing on intersections between strains of international cultural heritage law and associated areas of public international law proves key to identifying gaps and loopholes in the current protective regime and potential measures to resolve enduring protection challenges.

The volume is divided into five thematic parts, with the editors providing connective tissue through an introduction to each part. The first is quite logically dedicated to IHL, historically the first body of international law to include provisions to safeguard cultural property. What are the consequences of the current protective regime finding its roots in measures meant for wartime? Patty Gerstenblith,⁵ for instance, sees in the bifurcation between IHL instruments and rules on the transnational movement of cultural objects in peacetime a disconnect that provides to this day a less robust protection for movable objects than for immovable sites. She argues that although IHL prohibits and criminalizes pillage and misappropriation, it fails to address the subsequent trafficking of cultural objects illegally removed from conflict zones, while the conventions regulating the international movement of cultural objects⁶ have limited efficacy in situations of armed conflict. Thus, the lack of intersection between the wartime and peacetime legal regimes leaves a gap in the protection of movable cultural heritage, which fails to prevent cultural objects illegally removed from conflict zones from entering the international art market.

The second section of the volume turns to the criminalization and prosecution of cultural heritage-based offences. Anne-Marie Carstens’ contribution recounts how the inclusion of such offences as war crimes was far from self-evident in the historical development of international criminal law. Karolina Wierczyńska and Andrzej Jakubowski then turn to the landmark 2016 Al Mahdi case⁷, the much-discussed first prosecution of a cultural heritage crime before the International Criminal Court. Their analysis centres on the reparation order, highlighted as an important feature in the evolving system of individual criminal responsibility for cultural heritage crimes, and on how the Court grappled with the issues of identifying victims and quantifying the damage. Janet Blake's chapter⁸ echoes Patty Gerstenblith's IHL contribution discussed above. Blake addresses a similar question – how to ensure that an illegally removed cultural object remains stained with illegality as it travels and moves through different jurisdictions – this time through the contribution of mechanisms for fighting transnational organized crime. She points out the limits of resting on the prevailing approach to combating trafficking based on the international legal regime protecting cultural property. She considers the alternative international law enforcement approach, stressing the similarities between cultural heritage trafficking and other forms of illegal trade and organized crime activities.

The third part of the volume is dedicated to the action of the different United Nations (UN) bodies. Contributions focus on the spearheading role of UNESCO, the implications of the growing involvement of the UN Security Council and Human Rights Council (HRC), and the jurisprudence of the International Court of Justice. Kristin Hausler's chapter⁹ contrasts the framing of cultural heritage-based offences as violations of international human rights law by the HRC and as threats to peace and security by the Security Council. She commends the HRC's human rights-based approach for its inclusion of intangible cultural heritage, such as religious and cultural practices, under special threat in ethnically or religiously motivated armed conflicts. Now that the destruction of both tangible and intangible cultural heritage is recognized as a matter both of peace and security and of respect for human rights, she argues, better coordination between the HRC and the Security Council is necessary to guarantee a holistic approach to the protection of cultural heritage.

The volume's fourth part looks at special legal regimes for World Heritage Sites and underwater cultural heritage. Using the World Heritage Convention as a case study, Lucas Lixinski and Vassilis P. Tzevelekos¹⁰ find the lack of attention given to State responsibility in the development of international cultural heritage law a key barrier to its efficacy. Sarah Dromgoole's chapter¹¹ on the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage is a thought-provoking outlier in the book: while most contributors identify gaps in the law, Dromgoole instead points out the problematic side effects of the 2001 Convention's wide material scope of application. She argues that a strict interpretation of its blanket approach to what constitutes underwater cultural heritage is bound to pose real challenges. Should the tons of silver recovered from a shipwreck truly be considered cultural heritage? What about wrecks containing hazardous materials, such as munitions or mustard gas? The chapter is an interesting contribution to the important debates on how cultural heritage is defined in international law. Past instruments have alternatively espoused a comprehensive approach or a selective approach based on a threshold of cultural significance and/or prior identification of sites and objects, and neither option appears to be without pitfalls.

The protection of cultural heritage involves different and sometimes competing interests at the international, national and community levels. The volume's fifth and final part looks at the challenges arising from that competition. Contributors point out the limitations of current instruments in accommodating international and community interests. Vanessa Tünsmeyer makes a strong case for a reinterpretation of a State's duty to protect cultural heritage in light of its human rights obligations.¹² She develops a “functions-based” approach to the appraisal of cultural heritage in order to reframe its protection in human rights terms. Bridging conceptual gaps between international cultural heritage law and international human rights law, she argues, is key to preventing the marginalization or destruction of cultural heritage outside of national cultural identity. Robert Peters’ contribution¹³ fleshes out the tensions between the increased recognition of the universal value of cultural heritage and legal instruments that remain State-centred. The unidimensional focus of States on national export laws to protect their own heritage makes for an illuminating example. Only the harmonization of national import and export laws, Peters argues, will help curb the illegal movement of cultural objects.

Ultimately, the book's major contribution lies in its ability to identify protection gaps precisely at the intersections between international cultural heritage law and other branches of public international law. Its authors look for ways to close, or at least minimize, such gaps by improving the articulation between the different legal regimes and the communication between implementing institutions. The book shows how the interwoven threads of treaties, soft-law instruments, and actors involved in the protection of cultural heritage at the international level all form an intricate and evolving net. To tighten the net, the book seems to argue, we should start to tie up the loose threads found at the titular “intersections in international cultural heritage law”.