The UN Security Council, the Human Rights Council, and the Protection of Cultural HeritageA Matter of Peace and Security, Human Rights, or Both?

The UN Security Council and the UN Human Rights Council have increasingly addressed the destruction of cultural heritage in recent years, reflecting an expanded focus on cultural heritage protection across the UN system. This chapter examines the approaches of these two bodies to cultural heritage destruction and explores how their approaches have mutually reinforced each other but also reflected their different mandates: international peace and security and international human rights, respectively. This chapter starts with an analysis of some of the key Human Rights Council resolutions on the matter, as well as the work of its special procedures, in particular the Special Rapporteur in the Field of Cultural Rights. It then looks at the resolutions of the Security Council both to assess the manner in which the Security Council has introduced cultural heritage destruction to the peace and security agenda and also to identify whether the Security Council has additionally addressed such destruction as a human rights violation. The chapter concludes with discussion of whether a human rights approach to cultural heritage destruction should be adopted more widely.

The Al Mahdi CaseFrom Punishing Perpetrators to Repairing Cultural Heritage Harm

This chapter examines the ongoing process of consolidating international criminal law regimes for counteracting cultural heritage crimes, with particular focus on reparations for cultural harm. It begins with a wider panorama of international criminal law and jurisprudence in relation to cultural heritage crimes. This background outlines the limited provisions of the Rome Statute and offers some critical observations in relation to the evolving system of individual criminal responsibility for cultural heritage crimes. Second, it scrutinizes the approach taken by the International Criminal Court (ICC) in convicting Al Mahdi for the crime of intentionally directing attacks against buildings dedicated to religion and/or historical monuments. Third, this chapter considers the issue of remedies and reparations for cultural harm suffered in light of the relevant provisions of the Rome State and the practice of international human rights bodies. Next, it analyzes the approach taken by the ICC in Al Mahdi regarding the methodology of determining reparations for the international destruction of cultural heritage. This chapter also analyzes the possible reconsideration of the crime of deliberate attacks against protected cultural sites going beyond the notion and scope of war crime.

Military Intervention, the UN Security Council, and the Role of UNESCOThe Case of Mali

Intentional destruction of cultural heritage by extremist non-State actors—be it by the Taliban in Afghanistan, the Islamic State (ISIS or ISIL) in Syria, Iraq, and Libya, or Boko Haram in Nigeria—is on the rise. Using the destruction of cultural heritage in Mali in 2012–13 as a case study, this chapter argues that the creation of the self-proclaimed independent State of ‘Azawad’ in Mali became a ‘test case’ for the United Nations’ will and capacity to prevent further destruction of world cultural heritage, and it also analyzes the legal foundation of the 2013 French military Operation Serval in Mali. It also discusses the responsibility to protect as applied to cultural heritage, evaluates the subsequent deployment of the United Nations MINUSMA, and evaluates the mandate given by UN Security Council Resolution 2100 (2013), the first in UN history that included comprehensive protection of cultural and historical sites as a task of a UN peacekeeping operation. Therefore, the chapter reviews critically not only the mandate of MINUSMA, but also its potential relevance concerning future culture-embedded UN peace missions, and also contributes to the debate of the usefulness of more ‘robust’ cultural protection action by the United Nations.

The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage and Its Principles Relating to the Recovery and Disposition of Material from Shipwrecks

The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage is designed to regulate activities directed at heritage assets located in the marine environment. Basic principles and objectives are enunciated in the main text of the treaty and ‘Rules’ setting out internationally accepted archaeological standards are enshrined in the treaty’s Annex. Section I of this chapter summarizes the background to the Convention and its material scope of application before going on to outline its provisions with respect to the recovery and disposition of heritage assets that fall within its scope. Section II draws attention to certain problems that may arise when these provisions are applied to the most prevalent form of underwater cultural heritage: shipwrecks. In the concluding section, some explanation is given for why these issues are not properly catered for by the Convention and some consideration given to their potential impact in the future.

The World Heritage Convention and the Law of State ResponsibilityPromises and Pitfalls

Under many UNESCO instruments there is a disconnect between the language of the treaties and the mechanics of the positive law, on the one hand, and the actuality of international heritage management practice, on the other. Specifically, existing primary norms often do not set sufficiently clear legal obligations. This chapter explores this mismatch with a focus on (concurrent) State responsibility in the context of the World Heritage program. It focuses specifically on two different levels of State involvement in heritage protection: (1) multinational heritage nominations and (2) heritage that is listed by only one State, but that is also of interest to another State. The 1972 World Heritage Convention places heritage squarely within the territorial State’s sovereignty, even if it does recognize that States have a duty to cooperate in the protection of world heritage in other States as well. The duty of cooperation is seen as eroding State sovereignty, but critics also highlight that in fact there is too much sovereign control over those allegedly sovereignty-eroding dimensions of World Heritage processes.

Nationalism Versus Internationalism

Within the debate of nationalism versus internationalism, this chapter describes the development of international cultural heritage law, analyzes the notions and concepts used in this context, and highlights the existing shortcomings and loopholes in national and international legal frameworks in this field. First, the chapter explores the concept of a World Heritage Trust, and argues that the procedure used to designate World Heritage sites has become a national contest between States to obtain as many designations as possible, rather than the international and non-partisan procedure intended. Second, the chapter addresses the issue of trafficking in movable cultural heritage, by arguing that an exclusive focus on patrimony and national export laws (nationalism) is unidimensional and insufficient to protect movable cultural heritage from trafficking. In contrast, the mutual recognition of export laws through export and import regulations is a much more comprehensive and truly international approach (internationalism). In view of recent developments at the national level in Germany, as well as at EU level, the chapter demonstrates coordination between export and import regulations is necessary to protect cultural heritage against destruction and trafficking.

Bridging the Gap Between International Human Rights and International Cultural Heritage Law Instruments

With the activities of UNESCO in the recent decades international cultural heritage law has become its own area within public international law. By its very nature, namely its focus on cultural heritage and forms of cultural expression, it is closely linked to different human rights. However, this link has only really been realized in more recent instruments and even then not fully. States have obligations in both areas of international law. This raises the question of how to best accommodate State duties and rights under UNESCO instruments with individual and community rights under the respective human rights treaties. The author proposes to examine the functions of cultural heritage as one way in which to better bridge the gap between the two fields.

The International Court of Justice and Cultural HeritageInternational Cultural Heritage Law Through the Lens of World Court Jurisprudence?

The International Court of Justice, and its predecessor court, the Permanent Court of International Justice, have dealt with cultural heritage issues in a number of cases extending back over a century. Scholars’ attention to this case law appears fragmentary. This chapter intends to fill this gap and analyze the ICJ jurisprudence involving cultural heritage. Through the analysis of ICJ case law on cultural heritage and cultural heritage-related arguments resorted to by States in ICJ disputes, this chapter wishes to prove the relevance of cultural heritage issues for public international law and the key, often-underestimated role of the ICJ for international law on cultural heritage.

The Role of UNESCO in the Elaboration and Implementation of International Art, Cultural Property, and Heritage Law

This chapter analyzes the role of UNESCO in the elaboration and implementation of its international law instruments (conventions, recommendations, declarations) concerning artifacts, cultural property, and heritage. The elaboration of such instruments is not a simple matter. It requires, first, a clear decision from the majority of Member States that such elaboration is desirable; second, significant preparatory work from the UNESCO’s Secretariat to submit a first draft; third and throughout the elaboration of the instrument, negotiation of each of the draft text’s provisions among the numerous Member States’ legal and cultural property (or heritage) experts. Once the elaboration is completed and the General Conference of UNESCO adopts the instrument in its final version, UNESCO’s role then starts as to the implementation of its conventions by States Parties.

Intersections in Public International Law for Protecting Cultural Heritage LawPast, Present, and Future

In this introductory chapter, the volume editors observe that despite the increasing recognition of international cultural heritage law as an emerging field, this body of law is comprised largely of a collection of rules developed at and within different intersections in public international law. The chapter outlines how rules for protecting tangible and intangible cultural heritage developed, for example, in the law of armed conflict, international criminal law, international human rights law, and the law of the sea, as well as how States, international organizations, international tribunals, and other actors have contributed to this development. The chapter argues that as a result of this evolutionary background, the scope of international law governing the recognition, protection, or return of cultural heritage law can be illuminated by studying cultural heritage regimes within the context of the intersections in which they have developed.