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Intersections in International Cultural Heritage Law$

Anne-Marie Carstens and Elizabeth Varner

Print publication date: 2020

Print ISBN-13: 9780198846291

Published to Oxford Scholarship Online: June 2020

DOI: 10.1093/oso/9780198846291.001.0001

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

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

Chapter:
(p.1) Intersections in Public International Law for Protecting Cultural Heritage LawPast, Present, and Future
Source:
Intersections in International Cultural Heritage Law
Author(s):

Anne-Marie Carstens

Elizabeth Varner

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198846291.003.0001

Abstract and Keywords

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.

Keywords:   cultural heritage law, cultural property, cultural objects, public international law, destruction, seizure, illicit trafficking

The recent spate of threats to cultural heritage, including in Syria, Iraq, Mali, Nepal, and Yemen, has led to increased focus on the sources of international cultural heritage law. International law governing the protection and preservation of cultural heritage, both tangible and intangible, has grown rapidly over the past several decades with the introduction of new treaties and other instruments, the development and elucidation of customary rules, the increasing involvement of a variety of international bodies and other international actors, and the creation of a rich body of jurisprudence from international tribunals. The very recognition of international cultural heritage law as an emerging and identifiable field within public international law itself testifies to this expansive development.1

This volume on Intersections in International Cultural Heritage Law highlights and reflects that international cultural heritage law is not a discrete and contained body of law, but rather a diverse body of law whose component parts are drawn from—and often developed and contained within—principal fields of public international law. In fact, 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. These ‘intersections’ have formed in two ways: when public international law has been used as a vehicle for providing 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.2

(p.2) International cultural heritage law has matured from rules and initiatives that sometimes have resided in other areas of international law for generations. Perhaps the longest-standing such rules are the conventional and customary rules barring the unnecessary destruction of certain cultural institutions and of historic monuments during times of armed conflict, which emerged in the codified laws and customs of war more than a century ago alongside corollary rules that protect hospitals and schools, for example, or that prohibit pillage and bombardment of undefended towns.3

International cultural heritage law thus represents a field pieced together from constituent parts—the international rules, principles, and norms that combine to protect cultural property—formed at various intersections of public international law. One traversing the trail of international cultural heritage law to gain an understanding of its content and its scope would cross multiple intersections. This journey would include collecting rules not just from the law of armed conflict, but also from international criminal law, international human rights, the law of the sea, international intellectual property law, and other areas of international law. At these intersections, one would also encounter the many actors and institutions that create international law or facilitate its development. For these reasons, these intersections serve as the principal activity centers where international law protecting cultural heritage first emerged and continues to develop.

This volume is devoted to exploring primary points of intersection in international cultural heritage law and public international law. The chapters are authored both by contributors from within the cultural heritage field and by contributors who concentrate largely on specific areas of public international law where intersections with cultural heritage protection arise. Together their contributions establish how strains of international cultural heritage law and the associated areas of public international law are often mutually reinforcing, and increasingly so. They also sometimes reveal the limitations that public international law sometimes imposes on the progressive development of cultural heritage protections or present approaches for drawing more effectively on cultural heritage law or public international law to resolve continuing challenges in the international protection of cultural heritage.

(p.3) I. The Development of Intersections for International Cultural Heritage Law and Public International Law

The ‘intersections’ of international cultural heritage law and public international law have formed in two ways: when public international law has been used as a vehicle for providing greater protection for cultural heritage, and when concern for cultural heritage protection or codification of rules within cultural heritage-centric instruments helped fuel developments within other areas of public international law. Drawing again from the example of the law of armed conflict, the drafters of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention)4 sometimes relied on the earlier 1949 Geneva Conventions, particularly the convention dedicated to civilian protection,5 as a model instrument rather than cutting all of its provisions from whole cloth. Both instruments, for example, provide in nearly verbatim language for ‘Protecting Powers’ that are responsible for safeguarding the interests of the Parties to the conflict.6 Yet the 1954 Hague Convention also went further than the 1949 Geneva Conventions in certain respects. It provided that the rules governing the conduct of hostilities applied also in conflicts ‘not of an international character’,7 a principle that occasioned little objection in the context of cultural property protection despite having been the subject of vociferous dissent during the adoption of the 1949 Geneva Conventions only four years earlier, in the context of civilian protection.8

The easy adoption of this principle in the 1954 Hague Convention subsequently smoothed the path leading to the 1977 adoption of Additional Protocol II to the 1949 Geneva Conventions, a treaty devoted exclusively to codifying customary rules governing non-international armed conflict.9 The 1977 Additional Protocols then served the same function in return, with Additional Protocol I codifying rules of distinction and proportionality as part of new conventional rules for taking precautions against the effects of hostilities and precautions in attack,10 which were (p.4) later incorporated in a new protocol specific to cultural property protection, the Second Protocol to the 1954 Hague Convention.11

In addition, whereas the protection of cultural property once resided in provisions in larger treaties that codified the laws and customs of war, and were also often encompassed by generalized rules governing the protection of civilian property, the interest in preserving cultural heritage ultimately fostered the creation of entire treaty regimes dedicated to protecting cultural heritage. This process started principally with the 1954 Hague Convention. At the same time, specific rules for protecting cultural property and the more general rules governing civilian and State property became mutually reinforcing and resulted in tiered levels of protection that depended on distinctions between various categories of property.

The law of armed conflict was not sufficient, though, as the exclusive regime for protecting cultural heritage in international law. It was ill-equipped for managing other repercussions of armed conflict, such as demands for returning or restituting property, or punishing the most serious violations of the law of armed conflict. Historically, postwar negotiations and armistice agreements served as de facto enforcement mechanisms for resolving such issues, but they consistently resulted in lopsided enforcement that favored victors. When the First World War followed closely on the heels of the first binding international treaties on the laws and customs of war—the 1899 and 1907 Hague Conventions governing land warfare12—the subsequent negotiations and peace treaties called for restitution of a variety of cultural artifacts, but they also attempted to establish the first international criminal tribunal.13 While unsuccessful, these efforts nonetheless laid the groundwork for a new international criminal regime that would respond to the lack of norms for enforcing the law of armed conflict and that could prosecute and punish the high-level perpetrators of the most serious violations.

The very limitation of this principal regime to circumstances of armed conflict and occupation further meant that it provided no financial support for preserving cultural heritage, for example, and few mechanisms to stem the illicit trade in cultural artifacts. Nor did it foster international cooperation in protecting ‘the cultural heritage of mankind’ from threats that included not only the hazards of warfare, but also illicit looting, natural disasters, deterioration, climate change, and other threats that could endanger cultural heritage irrespective of war. Following largely unsuccessful efforts initiated within the framework of the League of Nations,14 (p.5) the United Nations Educational, Scientific and Cultural Organization (UNESCO) was created after the Second World War inter alia to promote international efforts to protect cultural property, yet several decades would pass before new treaty regimes on these diverse fronts firmly took root. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention)15 and the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage (1972 World Heritage Convention)16 focused on curbing the illicit trafficking in cultural objects and artifacts and on establishing a system of international cooperation for protecting universally recognized cultural sites, respectively. The 1970 UNESCO Convention aimed to regulate downstream markets for stolen and illicitly excavated cultural objects through import and export restrictions; it also established diplomatic avenues for seeking return and restitution, though these combined measures have proved insufficient for addressing significant losses of movable cultural heritage that stem from armed conflict.17 The 1972 World Heritage Convention, on the other hand, quickly grew to become one of the most popular international treaties, establishing a monetary fund for preservation and its well-known World Heritage List on which cultural sites possessing ‘outstanding universal value’ can be inscribed.18

Still, foundational principles of international law played an important role in the development of these regimes. The underlying premise of efforts to regulate the international trade in stolen and illicitly excavating objects rests on principles of cultural nationalism, for example, sometimes at odds with the principles of cultural internationalism that pervade the obligations set out in the law of armed conflict and the 1972 World Heritage Convention.19 The World Heritage Convention’s (p.6) regime of international cooperation to protect endangered cultural sites, in turn, was constrained by the operation of fundamental principles of sovereignty and territoriality, forcing the drafters to place the principal responsibility for nominating and protecting sites in the hands of the national authorities in whose territory a qualifying site sits. This approach sometimes frustrated protection at the international level for endangered sites, especially transboundary sites.20

During this same period, a blending and merging also occurred of the traditional ‘Hague Law’—prescriptive rules that governed the conduct of hostilities and occupation, with its formulation based on military objectives—and the more recent ‘Geneva Law’—the body of law premised on humanitarian ideals and focused principally on protecting victims and reducing human suffering during armed conflict. Both remained complementary but distinct through the immediate postwar period, with the former still represented primarily by the 1899 and 1907 Hague Conventions, and the latter represented most prominently by the four Geneva Conventions adopted in 1949 to govern the treatment of victims, especially civilians. The adoption of the 1977 Additional Protocols I and II to the 1949 Geneva Conventions was widely heralded as the merging of these two regimes under the umbrella of international humanitarian law, with the formally separate ‘law of war’ or ‘law of armed conflict’ either subsumed within international humanitarian law or constituting one of its two main branches.21 Though the treaty names indicate that they are dedicated to the protection of victims, the 1977 Additional Protocols codified and clarified the foundational rules from the Hague and Geneva regimes, placing the protection of cultural property directly alongside the protection of civilians and civilian property, and affording corollary protections and applying the same principles to both.22 In addition, Additional Protocol II incorporated the most well-entrenched rules from both regimes—those rules achieving the greatest consensus that they had passed into customary international law—to establish a regime specifically applicable to non-international armed conflicts (NIACs).23

Indeed, after the First World War and especially since the Second World War, the international community had grown increasingly aware and sensitive to the (p.7) orchestrated destruction and seizure of cultural heritage as one facet of the persecution of minority groups, directly linking civilian protection with cultural property protection. So many of the existing regimes, with their focus on State sovereignty and respect for territorial integrity, though, failed to provide avenues for cultural groups to seek the protection and preservation associated with their collective identity, in and out of armed conflict. They were often also an imperfect fit for fostering the preservation of, and preventing the exploitation of, intangible cultural heritage, including traditional knowledge, customs, and folklore. These realities led to a push to connect the preservation of cultural heritage, both tangible and intangible, to other international regimes, such as major treaties on international intellectual property law or emerging international human rights law.24

The shortcomings of these regimes stimulated developments in both, but they also supported the development of a regime focused exclusively on protecting intangible cultural heritage. This expansion occurred first through a series of soft law instruments and ultimately through the adoption in the first years of this century of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (2003 Intangible Cultural Heritage Convention or ICH Convention).25

Another cultural property-specific regime was adopted in the early years of the new millennium that was dedicated to the protection of underwater cultural heritage. Advances in technology had increased discoveries of historic shipwrecks and other underwater cultural heritage that had rested on the ocean floor sometimes for centuries, and the historic character of the contents created financial incentives for Parties to recover artifacts relying on the law of finds and law of salvage long established in maritime law. The comprehensive 1982 UN Convention on the Law of the Sea (Law of the Sea Convention or UNCLOS)26 includes, among its hundreds of provisions, a provision expressly establishing a duty to protect archaeological and historical objects found at sea, beyond territorial waters.27 Yet marine archaeologists, former maritime powers, and others stakeholders agitated for a more comprehensive treaty regime that would favor in situ protection that was realized in the 2001 Convention on the Protection of the Underwater Cultural Heritage.28

(p.8) The Rome Statute for the International Criminal Court (Rome Statute)29 also entered into force, creating a permanent international criminal tribunal for the first time following several ad hoc tribunals, including the International Military Tribunal (Nuremberg Tribunal) and International Criminal Tribunal for the Former Yugoslavia (ICTY).30 The Rome Statute expressly provides that intentionally directing attacks against buildings dedicated to religion or historical monuments qualifies as a ‘war crime’.31 Prosecutions before the International Criminal Court (ICC) reinforced the connection of cultural heritage destruction to targeted cultural groups, and the ICC even issued orders for reparations.32 The international community also placed additional focus on the losses of cultural heritage due to another kind of criminality, namely transnational organized crime. The 2000 United Nations Convention against Transnational Organized Crime (2000 Palermo Convention) expanded the enforcement regime by facilitating international cooperation to curb looting and the illicit sale of antiquities as part of a broader framework to crack down on organized criminal networks and illicit trafficking.33

Contemporary international cultural heritage law also represents the culmination of efforts of a full panoply of international actors, whose concern for protecting cultural heritage has grown more widespread and prevalent. Cultural heritage protection was long relegated primarily to the cultural heritage arm within the United Nations, UNESCO, which continues to employ multiple strategies to respond to threats, as recently shown in Mali.34 Now, though, more international (p.9) bodies and agencies, such as the UN Human Rights Council (UNHRC) and the UN Security Council (UNSC),35 and a growing number of non-governmental organizations, including the International Committee of the Red Cross (ICRC), consider cultural heritage within their mandate. International tribunals, including the International Court of Justice (ICJ), also reached cultural heritage issues that arose independent of international criminal prosecutions.36

International protection of cultural property also emerged from other sources. Several states adopted new domestic regimes that bolstered immunity from seizure for cultural objects that crossed borders in international art loans.37 New instruments aimed at combatting global threats generally, as in the case of climate change and other environmental threats, also prove adaptable to the specific threats facing cultural heritage.38 Taken together, this shift indicates a mainstreaming of cultural heritage protection within the international legal system.

II. The Contemporary Intersections of International Cultural Heritage Law and Public International Law and Their Future Trajectory

The chapters in this volume address several issues occurring at principal intersections where international cultural heritage law and public international law converge. These broadly defined intersections include:

  1. (1) the law of armed conflict and the protection of cultural heritage;

  2. (2) cultural heritage-based offenses in international criminal law and in the legal regime for combatting transnational organized crime;

  3. (3) the United Nations system and the protection of cultural heritage;

  4. (4) special legal regimes for world cultural heritage and underwater cultural heritage; and

  5. (5) international, national, and community interests in cultural heritage.

(p.10) The coverage of intersections in this volume nonetheless is by no means exhaustive, either within the identified intersections or within public international law. Significant developments in cultural heritage protection have emerged at several additional intersections beyond the scope of this volume, such as in international economic law or in international intellectual property law, for example.

Moreover, the developments in protection occurring at the identified intersections have not occurred in isolation but instead often overlap with developments that are occurring (or have occurred) at other intersections. For example, international criminal law developed from the law of armed conflict, such that the two regimes contain overlapping language and concepts, though this volume devotes a separate section to each regime. As a further illustration, the volume devotes a section to the role of the United Nations, even though the instrumental role performed at several intersections by its agencies or bodies—such as UNESCO, the UN Security Council, the UN Human Rights Committee, and the ICJ—are featured throughout the volume. Even within just one arm of the United Nations, UNESCO has been a chief actor in promoting, facilitating, and implementing many of the treaties discussed in this volume, including the 1954 Hague Convention, the 1970 Convention, and the 1972 World Heritage Convention, as well as newer treaties, such as the 2001 Underwater Cultural Heritage Convention.

Of course, core principles such as sovereignty and territoriality and arguments over cultural nationalism versus cultural internationalism run throughout. These overlapping areas reinforce rules for protecting cultural heritage and other legal regimes in public international law.

This volume nonetheless represents merely a starting point for a thematic analysis of ways in which cultural heritage protection and public international law intersect. The origins and placement of rules protecting cultural heritage within different segments of public international law continue to shape the development of international cultural heritage law, as well as to inform our understanding of it. The reverse can also be true. Some principles or developments appeared early in cultural heritage law, thus paving the way for the increased recognition of the same principle or thematic development in other areas of international law.

O’Keefe has observed that without an understanding of the situation and tools available, reaction from the point of view of international law to the destruction and looting of the cultural heritage of Iraq, Syria, and elsewhere risks doing more harm than good.39 However, despite the occasional ill-informed commentary and institutional misstep, he maintains that legal responses at the international and national levels to the recent cultural cataclysms have been impressively sensible. He also argues that it is the practicalities of enforcing the laws that are the barriers to protecting cultural heritage, in response to those who argue that the (p.11) current legal tools themselves are insufficient. Nonetheless, several contributors participating in this book have expressed dissatisfaction with specific aspects of international regimes for cultural heritage protection, while sometimes acknowledging the practical limitations of the current cultural heritage laws or the public international regimes in which they reside. They also have advanced arguments to utilize various sections of public international law or to expand cultural heritage laws to strengthen cultural heritage protections. It is likely that given the barriers to enforcement of existing cultural heritage laws (such as State sovereignty, limited resources, complications of non-State actors, and the vagaries of applicability of laws), which show no sign of waning, efforts to expand or improve the existing legal regimes will continue.

As the world changes, laws will continue to evolve to accommodate international developments and dissatisfaction with the damage, destruction, and theft of cultural heritage. As a consequence, it is likely that these intersections and multi-directional influences will also continue in the future. This likely trajectory reflects the view that it can be easier either to use a proven body of law (with existing State obligations) or to develop additional cultural heritage laws based on existing public international law than to reinvent the wheel.

Developments in international cultural heritage law at some intersections are nonetheless at a more advanced or more emergent stage by comparison with others, which also will shape the future trajectory of international regimes for protecting cultural heritage. Of the intersections covered in this volume, dynamic developments are anticipated in several emerging areas, including the protection of intangible cultural heritage, efforts to combat cultural heritage trafficking as an important aspect of transnational organized crime, and the recourse to international human rights. Developments in intangible cultural heritage and cultural heritage trafficking as a transnational organized crime, in particular, will likely remain active as they are relatively new areas governed by more recent treaties,40 and thus are currently underdeveloped areas where State practice and interpretations continue to evolve. Future developments will probably also occur in the context of international human rights law because the law of armed conflict and international criminal law have not adequately embraced, nor left ‘space’ for, several important values in cultural heritage protection that reflect how losses of cultural heritage can adversely impact a community’s identity and distinctive characteristics. The international human rights regime therefore presents an alternate avenue for new rules or developments that directly link the protection of human rights with the protection of symbolic objects and practices, particularly for minority communities.

The expansion of international actors that address or attempt to combat threats to cultural heritage also likely will continue. Within the UN system, both the UN (p.12) Human Rights Council and the UN Security Council (and, to a lesser extent, the ICJ) have grown increasingly active in the new millennium and will probably continue this activity, particularly given the continuing NIACs. These actors have expanded the conception of cultural heritage destruction by characterizing it as a threat to international peace and security and as an affront to human or community rights. This characterization likely will serve as further impetus for more public and private actors to become active in protecting cultural heritage or redressing its loss.

Fewer concrete developments are likely to take place at other intersections, which instead will experience more nuanced shifts. At some intersections, such as the law of armed conflict and international criminal law, new instruments or treaties are unlikely because the intersections already have a rich body of existing instruments and a long history of development paired with relatively recent clarifications of several existing obligations. The area thus is relatively stabilized by existing treaty and customary practice, though changes in interpretations of obligations are likely as State practice evolves and conflicts with non-State actors continue. The primary area of expansion likely will continue in the direction of greater application of the law of armed conflict to NIACs. The adoption of the Rome Statute establishing and governing a permanent international criminal tribunal, on the other hand, largely put an end to ad hoc international criminal codes that incorporated offenses based on attacks on cultural heritage to varying degrees. Recent and future prosecutions of cultural heritage-based offenses nonetheless will clarify how effective international criminal law will be in enforcing violations of the law of armed conflict and in deterring future violations.

Few major developments are expected similarly in some more specific areas, such as for the protection of underwater cultural heritage or the immunity from seizure for cultural objects in transboundary art loans. Minimal anticipated movement for underwater cultural heritage protection is attributable to the adoption of a UNESCO-based treaty, to which few current leading maritime States have shown themselves likely to join, and the continuing prominence of applicable rules from the UN Law of the Sea Convention. Continuing issues with State sovereignty and enforcement in the high seas also likely will contribute to a period of relative doctrinal stagnation. For international art loans, significant strides have taken place in the past two decades, with a flurry of States adopting rules that immunize international art loans from seizure or other adverse action, with important exceptions; still, at this juncture, the most-affected States have already taken recent domestic action on this front, while the adoption of an international treaty that would codify the core tenets of this protection remains elusive.41 Developments therefore will continue on a smaller front with respect to the number of countries still adopting (p.13) or clarifying such rules and with further expected clarifications for the somewhat-varying exceptions to such immunity. UNESCO also is certainly likely to continue its robust activity in promoting cultural heritage protection across several intersections, though the organization is not likely to see significant accretions to its mandate.

Principles of international law will continue to shape the development of international cultural heritage law in important ways. Principles of sovereignty in particular likely will continue to wield significant influence, just as this volume demonstrates that they have done so to date. While the expansion of the law of armed conflict and international criminal law to NIACs reflects a whittling away of sovereignty principles, as historically understood, such principles continue to have outsized influence on the international regime governing illicit trafficking in cultural objects and the protection of world cultural heritage. No significant regimes have advanced in nearly a quarter-century to address the continuing problem of illegal looting and trafficking of artifacts. Efforts to address illicit trafficking as an international law enforcement problem or a threat to international peace and security represent attempts at partial fixes, but none appreciably stems the tide of illicitly trafficked cultural goods from zones of conflict and occupation or from elsewhere. Discontent also is likely to continue with the condition of World Heritage sites, particularly in States that are unable or disinclined to care for them, where sovereignty and territoriality principles will probably continue to restrict external care for these sites to some extent. Incremental changes may occur with respect to mitigating certain threats to cultural heritage, though, such as environmental threats that increasingly endanger the integrity of World Heritage sites on several continents.

Over the next century, the intersections of international cultural heritage law and public international law themselves will likely multiply to address both existing and future challenges. These new intersections will present new avenues for protection, some perhaps not yet envisioned, while other developments will intersect with those already well mapped. (p.14)

Notes:

(1) The growing collection of international legal instruments dedicated to protecting, preserving, or otherwise governing the treatment of cultural property themselves attest to the development of this field. Several leading international law publishers, too, have added series in the last two decades that are dedicated to cultural heritage law or cultural heritage policy, including the series from Oxford University Press in which this volume appears.

(2) Several of these themes were explored at an international conference on ‘Intersections in International Cultural Heritage Law’ held at Georgetown University Law Center in March 2016. Several contributors presented papers that evolved into the chapters presented here. The editors therefore thank the Georgetown University Law Center, which served as host and sponsor, as well as the Cultural Heritage and the Arts Interest Group of the American Society of International Law and the Georgetown Art Law Association. They also express gratitude to the three participants whose featured contributions fostered thoughtful discussion on these topics: Professor Patty Gerstenblith, Professor Sir Frank Berman, and Professor Roger O’Keefe.

(3) See eg Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900) 187 CTS 429, arts 25, 27, 28, 47, 56 (1899 Hague Convention); Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (open for signature 18 October 1907, entered into force 26 January 1910) 187 CTS 227, arts 25, 27, 28, 47, 56 (1907 Hague Convention).

(4) Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 249 UNTS 240 (1954 Hague Convention).

(5) Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (1949 Fourth Geneva Convention).

(6) 1949 Fourth Geneva Convention, art 9; 1954 Hague Convention, art 21.

(7) 1954 Hague Convention, art 19.

(8) See Final Record of the Diplomatic Conference of Geneva of 1949 (4 vols, Federal Political Department (Switzerland) 1949–51) esp vol 2 passim.

(9) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, opened for signature 12 December 1977, entered into force 7 December 1978) 1125 UNTS 609 (1977 Additional Protocol II).

(10) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, opened for signature 12 December 1977, entered into force 7 December 1978) 1125 UNTS 609, arts 57–58 (1977 Additional Protocol I).

(11) Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, opened for signature 17 May 1999, entered into force 9 March 2004) 253 UNTS 172, arts 7–8 (1999 Second Protocol).

(12) See also Convention (IX) on Bombardment by Naval Forces in Time of War (open for signature 18 October 1907, entered into force 26 January 1910) 205 CTS 345.

(13) Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference (29 March 1919), in (1920) 14 AJIL 95 (Report of the Commission on Responsibilities).

(14) See eg Draft Convention on the Protection of Historic Buildings and Works of Art in Times of War, 19 LNOJ 937 (1938) Annex; Draft International Convention for the Protection of National Historic or Artistic Treasures, League of Nations Doc CL 34.1936.XII (1936) Annex and Corr 2; Recommendations Adopted by the International Committee on Intellectual Co-operation (League of Nations) League of Nations Doc CL 176.1932.XII (23 July 1932) 2.

(15) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231 (1970 UNESCO Convention).

(16) Convention concerning the Protection of the World Cultural and Natural Heritage (open for signature 16 November 1972, entered into force 15 December 1975) 1037 UNTS 151 (1972 World Heritage Convention).

(17) 1970 UNESCO Convention, arts 5–14. See Patty Gerstenblith, ‘The Disposition of Movable Cultural Property’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 1).

(18) 1972 World Heritage Convention, arts 11–16.

(19) See eg 1970 UNESCO Convention, art 4 (defining the cultural property that ‘forms part of the cultural heritage of each State’); 1972 World Heritage Convention, art 6 (subject to principles of sovereignty, recognizing that ‘it is the duty of the international community as a whole to co-operate’ in protecting world heritage). These concepts of ‘cultural nationalism’ and ‘cultural internationalism’ were first posited by John Henry Merryman and have been subjected to substantial examination and critique since that time. See eg John Henry Merryman, ‘Two Ways of Thinking About Cultural Property’ (1986) 80 AJIL 831; Robert Peters, ‘Nationalism versus Internationalism: New Perspectives Beyond State Sovereignty and Territoriality in the Protection of Cultural Heritage’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 15).

(20) See 1972 World Heritage Convention, arts 6, 11; Lucas Lixinski and Vassilis P Tzevelekos, ‘The World Heritage Convention and the Law of State Responsibility: Promises and Pitfalls’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 10).

(21) See eg Elvina Pothelet, ‘Grave Breaches’ in Dražan Djukić and Niccolò Pons (eds), The Companion to International Humanitarian Law (Brill 2018) 357; Daniel Thürer, ‘International Humanitarian Law: Theory, Practice, Context’ (2011) 338 Recueil des Cours de l’Académie de la Haye 50–51; Theodor Meron, ‘The Humanization of the Law of War’ (2003) 301 Recueil des Cours de l’Académie de la Haye 25–26; François Bugnion, ‘Law of Geneva and Law of the Hague’ (2001) 83 Intl Rev Red Cross 905.

(22) 1977 Additional Protocol I, arts 50–58.

(23) For discussion of how these obligations have been incorporated into recent military manuals, see Elizabeth Varner, ‘Comparing Interpretations of States’ and Non-State Actors’ Obligations Toward Cultural Heritage in Armed Conflict and Occupation: Military Manuals and the Law of War’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 2).

(24) See eg Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization (TRIPS Agreement); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 999 UNTS 3 (ICESCR). For a discussion of cultural rights, in particular, see Vanessa Tünsmeyer, ‘Bridging the Gap Between International Human Rights and International Cultural Heritage Law Instruments: A Functions Approach’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 13).

(25) Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003 entered into force 20 April 2006) 2368 UNTS 3 (2003 Intangible Cultural Heritage Convention or ICH Convention).

(26) United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397 (Law of the Sea Convention or UNCLOS).

(27) ibid, art 303.

(28) Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 2562 UNTS 3 (2001 Underwater Cultural Heritage Convention or UCH Convention). For discussion of the application of this treaty to certain shipwrecks, see Sarah Dromgoole, ‘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’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 12).

(29) Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute).

(30) Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May 1993 in UNSC Res 827, as amended).

(31) Rome Statute, art 8(2)(e)(iv). For discussion of the evolution of cultural heritage crimes up through the Rome Statute, see Anne-Marie Carstens, ‘The Swinging Pendulum of Cultural Heritage Crimes in International Criminal Law’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 4).

(32) See eg Karolina Wierczyńska and Andrzej Jakubowski, ‘The Al Mahdi Case: From Punishing Perpetrators to Repairing Cultural Heritage Harm’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 5).

(33) United Nations Convention Against Transnational Organized Crime (adopted 15 November 2000 UNGA Res 55/25, entered into force 29 September 2003) 2225 UNTS 209 (2000 Palermo Convention). See Janet Blake, ‘Trafficking in Cultural Property: Where Cultural Heritage Law and the International Fight against Transnational Organized Crime Coincide’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 6).

(34) See Guido Carducci, ‘The Role of UNESCO in the Elaboration and Implementation of International Art, Cultural Property, and Heritage Law’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 7) (discussing comprehensive role of UNESCO in this field); Sabine von Schorlemer, ‘Military Intervention, the UN Security Council, and the Role of UNESCO: The Case of Mali’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 3) (discussing role of UNESCO and others in responding to threats and damage at World Heritage site of Timbuktu).

(35) Kristin Hausler, ‘The UN Security Council, the Human Rights Council, and the Protection of Cultural Heritage: A Matter of Peace and Security, Human Rights, or Both?’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 8).

(36) Gabriele Gagliani, ‘The International Court of Justice and Cultural Heritage: International Cultural Heritage Law Through the Lenses of the World Court Jurisprudence?’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 9).

(37) Nout van Woudenberg, ‘Developments Concerning Immunity from Seizure for Cultural State Property on Loan’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 14).

(38) See eg Ottavio Quirico, ‘Nested Boxes: Tangible Cultural Heritage and Environmental Protection in Light of Climate Change’ in Anne-Marie Carstens and Elizabeth Varner (eds), Intersections in International Cultural Heritage Law (OUP 2020) (Ch 11).

(39) Roger O’Keefe, ‘Cultural Heritage and the Laws of Armed Conflict: Ecce Homo’ (conference on Intersections in International Cultural Heritage Law, Washington, DC, 29 March 2016).

(40) 2001 Underwater Cultural Heritage Convention; 2000 Palermo Convention.

(41) United Nations Convention on States and Their Property (2001) (adopted as Annex to UNGA Res 59/38 (2 December 2004) (2004 UN Convention)).