Part V Regional Approaches, Ch.35 Asia

This chapter explores the protection of cultural heritage in Asia. Rapid socioeconomic transformation in East Asia and South East Asia has posed a serious challenge to the cultural heritage of the sub-regions. The substantial damage and destruction inflicted on the cultural heritage, coupled with the growth of public awareness on its importance for national identity, prompted the governments in the region to take action, in particular through promulgation of the laws and regulations for the protection of cultural heritage. In so doing, the meaning of cultural heritage has generally expanded beyond the traditional, tangible cultural objects into intangible and underwater cultural heritage. A series of international conventions for the protection of cultural heritage, adopted under the auspices of UNESCO, has undoubtedly provided much impetus. Also, the question of return or repatriation of cultural objects to their countries of origin looms increasingly large in Asia.

Part V Regional Approaches, Ch.34 Africa

This chapter describes cultural heritage law and management in Africa. Whether in the field of tangible and intangible heritage or the domain of movable and immovable cultural heritage, sub-Saharan Africa legislation and administration of cultural property have been blighted by the colonial past. Independence has not always been used as opportunity for a breaking off or breaking forth with the cultural heritage protection system installed by the former colonial power. It appears that the formulation and elaboration of cultural heritage laws are often designed on European concepts of the protection of cultural property. The laws are, therefore, not often adapted to the present African realities. This is a legacy of the colonial past. The chapter then considers the AFRICA 2009 programme, which has helped in many ways to enhance in manifold ways the conservation of immovable cultural heritage in sub-Saharan Africa through a sustainable development process.

Part II Substantive Aspects, Ch.19 Cultural Heritage and Women

The women’s rights movement has secured important reforms aimed at realizing the promise of genuine equality and the universality of fundamental human rights norms. Giving substantive voice to the cultural rights of women has been an important feature of the discourse and has led to significant advances in recognizing the intersectionality of the forms of oppression experienced by women, the centrality of women’s agency in exercising their cultural rights, and the dangers of essentialized conceptions of the lived experiences of women. The chapter explores the extent to which gender issues are reflected in international cultural heritage instruments as well as in the practices and policy initiatives of UNESCO. It suggests that the advances made in the realization of women’s cultural rights have not yet been fully translated in the context of international cultural heritage law and practice.

Part II Substantive Aspects, Ch.13 Underwater Cultural Heritage

This chapter focuses on underwater cultural heritage. This form of heritage is important because it constitutes what has been called a ‘time capsule’—meaning everything on a site may well be as it was when it disappeared beneath the water’s surface. It may be the wreck of a ship, the remains of a town, or a prehistoric settlement where land has subsided. There is general agreement that what remains is important to humanity. As such, protection and preservation of the underwater cultural heritage is a significant objective of the international legal system. The UNESCO Convention of 2001 is illustrative of this. However, the Convention exists within the international political and legal framework. In negotiating it, States were constrained by what they felt this framework required. Many were prepared to be generous in how they interpreted those requirements—others not so. The result is a complex agreement requiring care in implementation.

Part II Substantive Aspects, Ch.11 World Cultural Heritage

The concept of ‘world heritage’ was legally codified by the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (WHC). This convention occupies a special position in the ever-expanding body of international cultural heritage law. This is for three fundamental reasons. First, with its 193 States Parties, it is a truly universal treaty in force for the protection of cultural heritage. Second, it represents a major innovation by its unprecedented approach that brings together cultural properties and natural sites of exceptional importance, both subject to the same system of international cooperation for their identification, delineation, and protection. Third, this convention has contributed to the reconceptualization of ‘cultural property’, paving the way for its dynamic evolution into the more comprehensive concept of ‘cultural heritage’, understood as the inherited patrimony of culture—inclusive of the intangible heritage and living culture of relevant human communities.

Part II Substantive Aspects, Ch.4 Intentional Destruction 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.

Part I Historical Overview, Ch.2 Intellectual Cooperation Organisation, Unesco, And The Culture Conventions

This chapter provides an overview of multilateral interventions in the field of cultural heritage and its legal protection over the last century by focusing on the work of specialist cultural international organizations that have spearheaded the adoption and implementation of the leading treaties. The first part examines the early work of the League of Nations’ Intellectual Cooperation Organisation from the 1920s to the Second World War. The second part considers the work of its successor, UNESCO from the mid-twentieth century to the present day. The concluding observations consider the challenges which both organizations faced in realizing their mission in the cultural field. A deeper understanding of the ideals, challenges, and tensions which have marked the internal workings of UNESCO, its forerunner, and their Members States is fundamental to appreciating the instruments and initiatives in the cultural field that they adopted and seek to implement.

Part V Regional Approaches, Ch.37 Central and South America

This chapter discusses the protection of cultural heritage in Central and South America. The key defining features of Central and South American regional efforts in the field of heritage are the use of heritage as a tool for development and the connection between heritage and indigeneity. With respect to development, the main approach is policy-driven, explained both by the nature of the objective (economic) and by the fact that most organizations engaging in this area have reduced mandates for rule-making with respect to heritage. With indigeneity, rule-making is stronger, engaging a proud tradition of international lawmaking in the region, which started as part of a Pan-American reliance on the rules of international law to shield Central and South American nations from European colonialism and US neo-colonialism. In the specific area of heritage, there is certainly a conversation between the regional and the global that needs to be accounted for.

Part III General International Law, Ch.23 Custom and General Principles of International Cultural Heritage Law

This chapter assesses whether contemporary international law prescribes obligations in the field of cultural heritage protection, which are binding upon States and other relevant international actors independently of or even against their consent. This question is relevant for a number of reasons. First, in spite of the widespread acceptance of treaty obligations in the various fields of cultural heritage protection, many States remain outside of the treaty regimes. Second, even for the States bound by treaties in force, their obligations have no retroactive effect, therefore leaving situations or disputes arising before the entry into force of relevant treaties outside their scope of application. Third, recognition of the character of custom or general principles to certain norms of international law may guarantee a superior ranking in the domestic law hierarchy of sources of the law.

Part II Substantive Aspects, Ch.22 National Treasures at the Intersection between Cultural Heritage and International Trade Law

This chapter analyses the extent to which international trade law accommodates the export and import control measures that States commonly adopt in order to prevent illicit trade in cultural property in accordance with the 1970 UNESCO Convention. It examines the exception for ‘national treasures’ found in World Trade Organization (WTO) law and other international economic agreements. The definition of cultural property in the relevant UNESCO treaty is not necessarily identical to the meaning of national treasures in WTO law. Moreover, the WTO Appellate Body has shown reluctance to apply non-WTO law in determining WTO disputes, so a conflict between UNESCO and WTO provisions or domestic regulations might not necessarily be resolved as expected. This conclusion provides one example of the limitations of the current Appellate Body approach to international law and suggests, with respect to cultural property, that closer alliance in treaty drafting may be required to enhance coherence.