This Article has been written by A. Taibah Fathima, a 5th year BA.,LLB student from Government Law College, Villupuram, Tamil Nadu

 

Abstract:

In recent years, the social dimension of cultural heritage has gained significance in international law. A better understanding of the human rights dimensions of cultural heritage has resulted in substantial recognition of the right to heritage; a right that has not been explicitly regulated in international law. This article aims to analyse the path that cultural heritage law has taken to adopt a human rights law dimension. It also discusses the construction of the right to heritage and maps the connections and disconnections between and within cultural heritage law and international human rights law frameworks. The article uses the example of Indigenous peoples as a referent, due to the special bond that many may have to cultural values which play a significant role in the formation of Indigenous identity. In this context, I argue for a human rights approach to cultural heritage, which offers not only participation but also the co-creation of heritage together with local and Indigenous communities.

 

Key Words: Culture, Human Rights, International Law, Heritage 

 

Introduction:

 

International cultural heritage is divided into two main categories:

                              1) tangible cultural heritage and 

                              2) intangible cultural heritage.

The former represents physical artistic expressions such as historic buildings, monuments, artistic objects, paintings, sculptures, historic sites, etc.,  whereas the latter represents nonphysical artistic expressions such as songs, narrations, tales, traditional expressions such as dance, religious practices, beliefs, etc. Tangible cultural heritage is also regarded as “cultural property” because it is essentially the natural property of the nation that owns it. However, according to some experts, intellectual property, which is also a form of intangible cultural heritage, is also considered cultural property. From its dawn and throughout its evolution over time, humanity has presented works and progress highly dependent on the degree of cultural development. Culture has followed a constantly upward trajectory mainly due to the strong will of subsequent generations to protect, preserve, maintain and develop the cultural

property delivered to them by their ancestors. However, a structured and organized approach to the value of cultural heritage through the systematic study of cultural works of the past dates back to the Renaissance, i.e., 15th and 16th century. Rapid progress and more systematic approaches to elements constituting cultural heritage as well as to issues regarding the protection of cultural property and the establishment of international rules primarily aimed at regulating cultural heritage took place no later than the end of the 19th century and continued during the 20th century, especially in the light of significant losses resulted from the two World Wars.

Definition of Cultural Heritage:

 

Cultural heritage is defined as the legacy of cultural property along generations in order to maintain and exploit it and to further deliver it to future generations. More precisely, the definition of cultural heritage is trifold: Cultural Heritage is composed of Tangible Cultural Heritage, Intangible Cultural Heritage and Natural Heritage. Tangible Cultural Heritage includes all tangible cultural goods including

       (i) movable cultural heritage, e.g., paintings, sculptures, coins, manuscripts, etc.,

       (ii) immovable cultural heritage, e.g., monuments, archaeological sites, etc. and

       (iii) underwater cultural heritage, e.g., shipwrecks, underwater

ruins and cities, etc. Intangible Cultural Heritage includes knowledge and techniques as well as tools, crafts and cultural places associated with them, representations, expressions and practices which can be recognized by communities, groups and, in some cases, individuals as part of their cultural heritage. More specifically, intangible cultural heritage include oral traditions and expressions, linguistic and artistic cultural heritage, social practices, rituals and festivities, knowledge and practices concerning nature and the universe as well as know-how linked to traditional crafts. Natural Heritage includes all natural monuments which may consist of various physical and biological formations. It further includes geological and physiographic

formations and areas where biodiversity (flora and fauna) develops. Finally, it refers to all natural landscapes of global scientific value or of particular natural beauty.

 

The development of the concept of cultural heritage in international law:

 

The protection of cultural heritage at the international level started with a discourse on the loss of cultural memory in connection with the colonial era and continued with a discussion concerning the outcomes of the massive destruction of historical monuments in the major wars of the 19th and 20th centuries; in particular the latter. It is unquestionable that UNESCO was initially designated the task of creating a legal framework to prevent the destruction of cultural heritage during times of armed conflict, which materialized with the 1954 Hague Convention.

 This UN agency was subsequently responsible for establishing international protection mechanisms to recognize and preserve cultural pieces of unique significance from physical loss. In 1972, the Convention for the Protection of the World Cultural and Natural Heritage (“the WH Convention”, or WHC) established a framework to prevent the destruction and disappearance of items of cultural and natural heritage. The scope of the Convention covers monuments, sites, objects, and artefacts, thus considering heritage as only physical pieces. This standpoint has been justified for two reasons. Firstly, it was tangible heritage that had been

primarily destroyed or illegally traded during wartime. Secondly, for many scientific disciplines the materiality of physical objects guarantees a basis for reliable evidence. However, only those cultural elements which are considered to be of “outstanding value” for the whole of humankind will be granted recognition under the WHC. The concept of universal values worth protecting has been dominant across all fields of international law and has also established a system for international cooperation in the cultural heritage field. Despite the former appreciation for the concept of universality, current scholarship has largely criticized it as tending to homogenize cultural elements. Moreover, the current literature attacks the notion that some sites and monuments are more valuable than others due to their “universal” significance. This has given rise to tension between “universal heritage” and “heritage of local and/or Indigenous significance”, the latter of which can be challenged by grass-roots initiatives, leading to conflicts between local communities and officials. Since the 1970s, heritage theory has been gradually and incrementally influenced by Indigenous peoples’ ontologies and the then-emerging Indigenous peoples’ rights movement.

 

Legal framework for the protection of cultural heritage during

Periods of armed conflict:

 

The progressive development of the laws of armed conflict led to the simultaneous modernization of existing framework for the protection of cultural heritage during periods of armed conflict; specifically, Protocols I and II of 1977 to the Geneva Convention of 1949. Protocol I deals with international armed conflicts and Protocol II with non-international armed conflicts. It is worth noting that art.53 of Protocol I relating to cultural objectives and areas prohibits any kind of hostile act against historical monuments, works of art, or places of

worship which constitute cultural or spiritual heritage of peoples as well as their use in any military effort or use of them as the subject of retaliation. It basically covers the same idea of protection as Art. I of the 1954 Hague Convention, but the obligation appears much more stringent, both in relation to the obligation resulting from the Hague Convention and from that resulting from the 1907 Hague Regulations. This protocol contains no deviation, even for reasons of military necessity. Only if the warring parties are included in both

the Hague Convention of 1954 and in the Additional Protocol I, does the possibility of invoking military necessity exist. While Art.52 relates to the protection of civil targets and, by extension, of the cultural goods not covered by Art.53. According to this, attacks must be strictly limited to military objectives while urban targets should not be made the object of attack or reprisals. Finally and importantly, the content of Art.85, which recognizes the action of intentionally attack against historic monuments, works of art or places of worship as a war crime. An exception is recognized only in the event of proximity of a cultural object to military objectives, or if a specified cultural object is used somehow in a military effort. In this way, the

possibility of appeal is given to international courts in case of protocol violation. Protocol II of the Geneva Convention of 1977, as already mentioned above, covers non-international armed conflicts. In particular Art.16 refers to culture. It reiterates the prohibition of committing hostile acts against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and their use in support of military efforts. This Protocol, leaves outside its own boundaries isolated and sporadic acts of violence and a number of similar types of internal unrest. However there have been cases of internal conflict which eventually received an international character, for which the way the Protocol was applied has been disputed.

 

Legal framework for the protection of cultural heritage during periods of peace:

 

The major issue of the preservation of cultural heritage preoccupied the international community in general, i.e. in times of peace, because the threats were real and in no way restricted to only times of war. The ever worsening environmental conditions, climate change, illegal trafficking of cultural goods, acts of terrorism are some of the problems that can arise in peacetime.

After the foundation of UNESCO, Conventions began to be adopted in order to safeguard, preserve and protect cultural heritage at a worldwide level. The International Convention concerning prohibiting and preventing the illicit import, export and transfer of ownership of cultural property of UNESCO (1970) and the International UNESCO Convention on the Protection of the World Cultural and Natural Heritage (1972) were the central core around which cultural protection was formed. This framework was recently supplemented by the Convention on the underwater heritage signed in 2001 and the Convention on the Protection and

Promotion of the Diversity of Cultural Expressions, signed in 2005. Equally important was the Convention for the Safeguarding of the Intangible Cultural Heritage signed in 2003. This includes new concepts and is a springboard for a more complete and balanced perception of humanity’s cultural heritage. Particular reference should be made to the 2003 UNESCO Declaration on the intentional destruction of cultural heritage which was unanimously adopted by all Member States of UNESCO. However, it does not constitute an obligatory legal document binding states at an international level. According to this 2003 Declaration, Member States commit to combat the intentional destruction of cultural heritage, both in wartime and in peacetime. In peacetime, states are strongly suggested to follow all international recommendations and conventions, while in time of war states are called upon to respect customary international law, international conventions and UNESCO recommendations. However, a highly important issue included in this Declaration is the recognition of responsibility on behalf of both States and individuals regarding destruction of cultural heritage: States bear responsibility for any intentional destruction of cultural heritage

and individuals bear legal responsibilities for criminal activity involving cultural heritage.

 

Management of cultural heritage in periods of socio-political

Crisis:

 

Nowadays, while many countries show signs of social and political crisis, or are even blighted by them, they are presented with risks arising from their cultural resources which are diverse and multidimensional. The instability of a country, taking the form a civil war at a typical, most devastating scenario, may threaten the cultural heritage but may also lead to a significant loss of parts of it. This is because such countries become isolated and close their borders thus complicating communication with state representatives for risk assessment and protection of cultural heritage while also preventing international organizations from supporting the protection of cultural heritage. Obviously, however, when speaking of endangered human lives, cultural heritage protection may well be considered as an issue of low priority. Furthermore, during socio-political crisis, cultural heritage runs the risk of vandalism and looting even by internal population. It is also worth noting that it is impossible to protect the cultural heritage of a country in socio-political crisis via diplomatic or political means. Information exchange is only feasible among experts subject to local and national limitations. The creation of a local network of experts able to assess the value of cultural heritage would definitely help towards the rapid establishment of communication channels.

Following a similar line, international organizations, e.g., UNESCO, could more efficiently communicate with local experts rather than rely on civilian administrations. In the special case when extremist groups threaten cultural resources for religious reasons, any political effort would be ineffective and would further increase

the risk of attack. Instead, local experts could more easily deal with the problem identifying the perpetrators, trying to come up with resolutions and eventually accelerating the process of saving endangered cultural resources. Public awareness is essential for efficiently facing issues related to cultural heritage protection. The organization of social activities by professionals working on cultural heritage as opposed to any type of administrative measures can play a catalytic role in preventing and healing the problem. This is because cultural heritage experts can organize public activities with an objective to raise awareness. Furthermore, due to their education, training and skills they can efficiently evaluate situations and propose adequate protection methods and course of action. In addition, they can communicate with international organizations and provide updated information since they either actively participate in them or are at least know how they

work.

 

 Conclusion:

 

Applying human rights standards to cultural heritage, and in particular, to the participation of communities in its co-creation, reveals the existing blind spots of the legal system and thus the tensions between the States and communities concerned. Cultural heritage treaties set out the framework of obligations and principles within which executive tools are developed and implemented to enable participation in the heritage-making process at all stages of its creation. However, there remains a lack of clarity concerning who should and can decide about the

heritage and thus shape its meaning for and within its bearers. 

 

References:

• C. Geering, Protecting the Heritage of Humanity in the Cold War: UNESCO, the Soviet Union and Sites of Universal Value, 1945-1970s, “International Journal of Heritage Studies” 2020, Vol. 26(12), pp. 1132-1147.

 

• Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 240; see J. Blake, International Cultural Heritage Law, Oxford University Press, Oxford 2015, p. 4.
• W. von Truetzschler, The Evolution of “Cultural Heritage” in International Law, in: 15th ICOMOS General Assembly and International Symposium: “Monuments and Sites in Their Setting – Conserving Cultural Heritage in Changing Townscapes and Landscapes”, 17-21 October 2005, Xi’an, China, http://openarchive.icomos.org/id/ eprint/303/1/1-33.pdf  .
• J. Blake, International Cultural Heritage Law.
• Bassiouni, C. Reflections on Criminal Jurisdiction in International Protection of Cultural Property. Accessible to; http://surface.syr.edu/cgi/viewcontent.cgi?article=1148&context=jilc  
• Sersis, M. (1996). “Protection of Cultural Property in Time of Armed Conflict“, Netherlands Yearbook of International Law, vol. 27.
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University of patras, greece, in ijasos- international e-journal of advances in social sciences, vol. Iii, issue 7, april 2017

• The Right to Cultural Heritage In International Law, With Special Reference To Indigenous Peoples’ Rights by Karolina Sikora in  Santander Art and Culture Law Review 2/2021 (7): 149-172
• The Protection of Cultural Heritage by International Law in Armed Conflflict by Waseem Ahmad Qureshi in Loyola University Chicago International Law Review Volume 15 Issue 1 Article 3 ,2017