Part III General International Law, Ch.25 Cultural Heritage and State Succession

2020 ◽  
Author(s):  
Jakubowski Andrzej
Keyword(s):  
Cultural Heritage ◽  
International Law ◽  
Cultural Property ◽  
Theory And Practice ◽  
Customary International Law ◽  
International Responsibility ◽  
State Succession ◽  
State Archives ◽  
The Relationship ◽  
Protection Of Cultural Heritage

This chapter describes the relationship between the evolving international law regime for the protection of cultural heritage and the theory and practice of State succession. State succession in respect of cultural heritage has usually been associated with the allocation and division of movable cultural treasures following territorial transfers. Hence, much of the doctrinal effort has focused on the principles and criteria governing the passing of State cultural property and attempted to respond to the topical question of to whom cultural property belongs. The chapter then looks at the codified sources of the law on State succession. It also examines the consequences of State succession relating to distinct pre-existing legal situations: State archives and property; international cultural heritage obligations arising from treaties and customary international law; and international responsibility for cultural heritage wrongs committed prior to the date of succession.

scholarly journals The protection of cultural heritage: common heritage of humankind, national cultural ‘patrimony’ or private property?

2020 ◽  
Vol 64 (3) ◽  
pp. 351-364
Author(s):  
Fiona Macmillan
Keyword(s):  
Intellectual Property ◽  
Cultural Heritage ◽  
International Law ◽  
Private Property ◽  
Community Identity ◽  
Cultural Patrimony ◽  
Postcolonial Discourse ◽  
The Relationship ◽  
Property Regime ◽  
Protection Of Cultural Heritage

Starting from an argument about the relationship between cultural heritage and national and/or community identity, this article considers the different ways in which both the international law regime for the protection of cultural heritage and the international intellectual property regime tend to appropriate cultural heritage. The article argues that, in the postcolonial context, both these forms of appropriation continue to interfere with the demands for justice and for the recognition of historical wrongs made both by indigenous peoples and by many developing countries. At the same time, the article suggests that these claims are undermined by the misappropriation of the postcolonial discourse with respect to restitution of cultural heritage, particularly in the intra-European context. The article advocates the need for a regime for the protection of cultural heritage that is strong enough to resist its private appropriation through the use of intellectual property rights and nuanced enough to recognise significant differences in the political context of local and national claims to cultural heritage.

Part II Substantive Aspects, Ch.4 Intentional Destruction of Cultural Heritage

2020 ◽  
Author(s):  
Lenzerini Federico
Keyword(s):  
Human Rights ◽  
Cultural Heritage ◽  
International Law ◽  
International Community ◽  
Cultural Groups ◽  
Special Significance ◽  
Customary International Law ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Protection Of Cultural Heritage

This chapter focuses on the practice of deliberate destruction of cultural heritage, which has represented a plague accompanying humanity throughout all phases of its history and has involved many different human communities either as perpetrators or victims. In most instances of deliberate destruction of cultural heritage, the target of perpetrators is not the heritage in itself but, rather, the communities and persons for whom the heritage is of special significance. This reveals a clear discriminatory and persecutory intent against the targeted cultural groups, or even against the international community as a whole. As such, intentional destruction of cultural heritage, in addition of being qualified as a war crime, is actually to be considered as a crime against humanity. Furthermore, it also produces notable implications in terms of human rights protection. Protection of cultural heritage against destruction is today a moral and legal imperative representing one of the priorities of the international community. In this respect, two rules of customary international law exist prohibiting intentional destruction of cultural heritage in time of war and in peacetime.

Intersections in International Cultural Heritage Law

2020 ◽  
Keyword(s):  
Cultural Heritage ◽  
International Law ◽  
International Criminal Law ◽  
Public International Law ◽  
Transnational Organized Crime ◽  
Law Of Armed Conflict ◽  
World Cultural Heritage ◽  
United Nations System ◽  
The Relationship ◽  
Protection Of Cultural Heritage

The recent threats to cultural heritage, including in Iraq, Mali, Nepal, Syria, and Yemen, has led to increased focus on the sources of international cultural heritage law. This volume reflects that this is not a discrete and contained body of law, but rather a diverse one whose components are drawn from—and often developed and contained within—public international law. These ‘intersections’ have formed in two ways: when public international law has been used to provide greater protection for cultural heritage; and when concern for cultural heritage protection or codification of rules within cultural heritage-centric instruments have helped fuel developments within other areas of public international law. In this volume, scholars and practitioners explore some of the primary points of intersection where international cultural heritage law and public international law converge. The contributions are organized according to five major ‘intersections’: (1) the Law of Armed Conflict and the Protection of Cultural Heritage; (2) Cultural Heritage-Based Offenses in International Criminal Law and in Laws for Combatting Transnational Organized Crime; (3) the United Nations System and the Protection of Cultural Heritage; (4) Special Legal Regimes for the World Cultural Heritage and Underwater Cultural Heritage; and (5) Intersections of International, National, and Community Interests in Cultural Heritage. The result is a diverse and cohesive collection that explores these intersections and examines how the regimes operate together and how the relationship between them largely facilitates, but also sometimes hinders, the development of international law governing the protection of cultural heritage.

1 Introduction

2015 ◽  
Author(s):  
Azaria Danae
Keyword(s):  
International Law ◽  
Dual Function ◽  
Customary International Law ◽  
Key Concepts ◽  
Scope Of Application ◽  
Treaty Interpretation ◽  
International Responsibility ◽  
The Relationship

Chapter 1 illustrates the importance of means of transportation in the development of international law, and the modern relevance of transit of energy via pipelines in this respect. The chapter sets the framework and method used in the study. Key concepts (transit, energy, and pipelines) and the scope of application of the treaties (ratione loci and ratione materiae) examined in the study are explained. It explains the rules of treaty interpretation that are used in the study for determining the scope and content of obligations regarding transit of energy, for identifying the nature of these obligations with a view to establishing standing to invoke international responsibility in case of their breach, and for determining the relationship between treaty rules and customary international law. It focuses on the role of subsequent agreements and practice, which is extensively used in this study as a means of treaty interpretation. The elements of an internationally wrongful act are then discussed. Emphasis is placed on attribution of conduct of private entities, and on the dual function of countermeasures under the law of international responsibility.

The Cultural Heritage Law Committee of the International Law Association: Special Session, June 8, 2009, Geneva, Switzerland

2009 ◽  
Vol 16 (4) ◽  
pp. 415-416
Author(s):  
Robert K. Paterson ◽  
James A. R. Nafziger
Keyword(s):  
International Trade ◽  
Cultural Heritage ◽  
International Law ◽  
Rio De Janeiro ◽  
Special Session ◽  
Export Controls ◽  
Trade Law ◽  
International Trade Law ◽  
The Relationship ◽  
Protection Of Cultural Heritage

In August 2008 the Seventy-third Conference of the International Law Association (ILA) in Rio de Janeiro adopted the Cultural Heritage Law Committee's “Guidelines for the Establishment and Conduct of Safe Havens for Cultural Material,” the text of which appears in this issue. The Committee, after discussing its on-going project concerning the relationship between international trade law and the protection of cultural heritage, decided to focus on national export controls.

Comparing Interpretations of States’ and Non-State Actors’ Obligations Toward Cultural Heritage in Armed Conflict and OccupationMilitary Manuals and the Law of War

2020 ◽  
pp. 56-81
Author(s):  
Elizabeth Varner
Keyword(s):  
United States ◽  
United Kingdom ◽  
Cultural Heritage ◽  
International Law ◽  
Armed Conflict ◽  
Hague Convention ◽  
The United States ◽  
Cultural Property ◽  
Customary International Law ◽  
The United Kingdom

The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention) remains the leading treaty on the treatment of cultural heritage during armed conflict and occupation. After several decades of relative dormancy, eleven States have joined the 1954 Hague Convention in the last decade, including two major military powers: the United States and the United Kingdom. In addition to the 1954 Hague Convention, a host of laws touch on the protection of cultural property in armed conflict, as well as those under customary international law. Nonetheless, there are disagreements in interpretations of States’ obligations toward cultural property during armed conflict stemming from a variety of factors. These factors can include: whether States are Parties to the instrument that conveys the obligation or if the obligation is one of customary international law, which itself is often contested; the individual State’s interpretation; interpretation by tribunals; and a plethora of other factors. Given these discrepancies in interpretation, a review of States’ military manuals is useful to see if they shed any light on the State’s interpretation of their obligations toward cultural property under the law of armed conflict (LOAC) and international obligations in LOAC more generally. This chapter will analyze and compare the military manuals of the United States and the United Kingdom to determine how they elucidate several key issues in the protection of cultural property during armed conflict, such as the definition of ‘cultural property’, requirements for ‘respect’, the doctrine of military necessity, and laws applicable in non-international armed conflicts.

Culture, conflict and armed non-state actors: cultural heritage protection in a changing operating environment

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Mark Dunkley
Keyword(s):  
Cultural Heritage ◽  
Armed Conflict ◽  
Armed Forces ◽  
Cultural Property ◽  
Islamic State ◽  
Operating Environment ◽  
Content Type ◽  
State Actors ◽  
Protection Of Cultural Heritage

PurposeThis paper examines the implications, for States Parties, of the 1954 Convention safeguarding regime in the context of contemporary non-international armed conflict and ANSAs, with a general focus on the Middle East and in situ cultural property.Design/methodology/approachAs the nature of conflict changes and armed forces become further engaged in supporting peacekeeping operations and deliver training to host nation security forces, and human security becomes an increasingly important function of military operations, the protection of cultural heritage (as an expression of a people's identity) becomes a significant contribution to individual operations.FindingsInternational obligations to States Parties for the in situ protection of cultural heritage, under both International Humanitarian Law and HC54, become an ever increasing important responsibility for armed forces to help deliver.Research limitations/implicationsWhile NATO is increasingly focussed on the defence of western states parties from threats posed by the Russian Federation, and observing a commercially and military assertive China, a recent report issued by the Pentagon noted that the Islamic State in Iraq and Syria (ISIS) is regrouping in Iraq faster than in Syria and could regain territory in six to twelve months in the absence of sustained military pressure.Practical implicationsPreservation in situ is used by heritage professionals to refer to the protection of a cultural heritage asset in its original location while the in situ protection of cultural property is a cornerstone topic of the 1954 Hague Convention Special Protection category. The Convention was drafted with international armed conflict in mind but the initial signatories to the Convention had sufficient foresight to consider non-international armed conflict and its potential effect on in situ cultural property by parties to the conflict, including Armed Non-State Actors (ANSA)Social implicationsUN Security Council Resolution 2449 (December 2018) recognized the negative impact of the presence, violent extremist ideology and actions on stability in Syria and the region of both Islamic State of Iraq and the Levant (ISIL) and the Al-Nusrah Front (ANF). This includes not only the devastating humanitarian impact on civilian populations but also the unlawful destruction of cultural heritage.Originality/valueANSAs comprise individuals and groups that are wholly or partly independent of State governments and which threaten or use violence to achieve their goals, such as Islamic State. As such, the military operating environment has changed since 1954.

Introduction

2019 ◽  
pp. 1-26
Author(s):  
Lucas Lixinski
Keyword(s):  
Cultural Heritage ◽  
Cultural Property ◽  
Natural Heritage ◽  
Working Definition ◽  
Definition Of ◽  
The Relationship

The Introduction details the book’s general aims and argument. It also lays the groundwork for some of the broader theoretical themes that run through the book, namely: the relationship between law and non-law with respect to cultural heritage; the conservation paradigm under which international heritage law operates; and the basic terminology that the book uses, in its choice to refer to simply ‘heritage’, instead of ‘cultural heritage’, ‘cultural property’, ‘natural heritage’, and a working definition of ‘community’.

5 Obligations of International Organizations, 5.2 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt , Advisory Opinion, [1980] ICJ Rep 73

2016 ◽  
Author(s):  
Brölmann Catherine
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Advisory Opinion ◽  
Customary International Law ◽  
Legal Obligations ◽  
The Icj ◽  
Legal Character ◽  
First Time ◽  
The Relationship

The 1980 WHO Advisory Opinion elaborates on the general legal obligations (grounded in the duty of co-operation and good faith) that are part of the relationship between an international organization and its host state. In this opinion the ICJ possibly for the first time articulated this relationship as a set of mutual obligations between legal equals. The opinion moreover enunciates the sources of international legal obligations binding upon international organizations (IOs): the treaties they conclude (uncontroversial); I customary international law; their constitutions. The Court uses the proverbial reassurance of UN member states in saying that the WHO is not a ‘super-state’. Finally, in accepting jurisdiction the Court explicitly separated the legal character of the question from the political considerations motivated by that question.

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