I set out below two essays I submitted for the Diploma in Art Law course at the Institute of Art & Law in London, which I am in the final stages of completing.
- ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’
- ‘Mediation of Cultural Property Disputes.’
I also set out below the following supplementary material which did not form part of the second essay:
- Table – ‘Ethical Principles.’
- Table – ‘Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable ‘Principles of Repatriation.’
- Table – ‘Tools & Precedents.’
See also my blogs on the International Humanitarian Law & Mediation page at www.diplomaticlawguide.com.
As a political science graduate, author, legal practitioner and mediator, with a special interest in Cultural Heritage and International Humanitarian Law, I am planning from 2025 to research and write a book provisionally entitled ‘Cultural Heritage Diplomacy.’
The book will examine and discuss the dynamic inter-relationship between:
(i) the significance and strategic importance of cultural property and heritage i.e. why it needs to be preserved and protected;
(ii) the framework of protective principles under international humanitarian law and human rights law;
(iii) preservation and stability of the international rules based system and order;
(iv) human security, development and the environment;
(v) peace-building, geopolitical mediation, and negotiating political order;
(vi) post-conflict transformation through a process of truth and reconciliation – which is linked to the jurisdiction and powers of the International Criminal Court, the award of reparations, and the public prosecution of war criminals; and
(vii) restitution and repatriation of cultural property.
This will be based upon:
- Primary sources.
- The Bibliography on the International Humanitarian Law & Mediation page at www.diplomaticlawguide.com.
- Other material assembled on that website.
Essay – ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’
In this essay the author argues that:
- Cultural Heritage it is part of our shared humanity.
- Cultural Heritage is entwined with UNESCO’s broader mandate concerning human rights, the rule of law, development, and peace.
- The duty of a state to protect Cultural Heritage (‘CH’) is quintessentially a fiduciary duty under International Humanitarian Law (‘IHL‘). The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.
- Intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity.
- Destruction of CH is not only a war crime under IHL it can also be a political mistake – that is the paradox of Machiavelli’s Principle of Survival (‘MPS’).
- If the destruction of CH has the potential to politically destabilise the aggressor (‘H’ i.e. a Hegemon), then it follows that surrounding states in the region (‘SIR’s’) also have a national security interest in the survival of H.
- Therein, and counter-intuitively, lies the seed of a principle that can result in the mediation of terms of peace which ensure the survival of both H and the sovereign state invaded by H. If this geo-political interest is recognised by all parties to the conflict and their supporters, that could open the door to a mediated dialogue using cultural heritage as a language of diplomacy, to negotiate a ceasefire and peace agreement.
- This is where a non-partisan Non-State Actor (‘NSA’) e.g. an NGO, can play an instrumental diplomatic and mediation role.
Strategic importance of Cultural Heritage
In the frequently quoted words of the 1954 Hague Convention, cultural property is ‘the cultural heritage of all mankind.’[i] In other words, Cultural Heritage it is part of our shared humanity. Therefore, we all have a common interest in preserving and protecting cultural property everywhere.
Cultural Heritage is entwined with UNESCO’s broader mandate concerning human rights, the rule of law, development, and peace.[ii]
‘Annihilation of cultural heritage is gradually evolving into an issue of peace and security in the 21st century. Destructive ideologies are not new in history, as the UNESCO Strategy, entitled ‘Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict’, acknowledges; but today “threats to cultural heritage in the event of armed conflict result from intentional destruction, collateral damage, forced neglect, as well as from organised looting and illicit trafficking of cultural objects … [on] an unprecedented scale.”[iii] Intentional destruction of cultural heritage by extremist non-State actors, such as the Taliban in Afghanistan, the so-called Islamic state (Islamic State of Iraq and the Levant, or ISIL, or Daesh) in Syria, Iraq, and Libya, or Boko Haram in Nigeria, may be seen as part of “ideological warfare against cultural property.”[iv] …’[v]
Cultural identity is considered to part of human dignity. It is linked to human rights because cultural heritage is of crucial importance to individuals and communities as part of their identity. As cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.
‘The cultural heritage of a people is not limited to the tangible expressions of art, architecture, religion, poetry, or writing in general but also includes its intangible heritage, which is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity. More generally, cultural heritage includes the expressions of the people’s spirituality, and the body of values which give meaning to life’ (Francioni & Vrdoljak‘, p 77).
Duty to protect
The author’s thesis, is that when ‘Art’ (‘A’) is of cultural significance, i.e. is recognised as being ‘Cultural Heritage’ (‘CH’), it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor (‘P’) who owns A that is also CH, is also a custodian of the CH. In which case, duties attach to possession, e.g. a duty to preserve and protect the cultural property (‘DP). DP also applies to an underwater archaeological site, because as the French Archaeologist Salomon Reinach famously remarked, ‘The sea is the largest museum in the world’. If P is a state, these duties extend to protecting the CH in the event of war. Therefore, DP is quintessentially a fiduciary duty under IHL. The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.[vi] This also highlights the existence of a potential intersection between: (i) ‘principles of humanity’ under IHL; and (ii) the existence of ‘fiduciary duties’ on state actors under foundational principles of international law – see Criddle & Fox-Decent (2009).
The paradox of Machiavelli’s Principle of Survival
In the 16th century, the strategist and political philosopher Niccolò Machiavelli wrote that ‘he who becomes a master of a city accustomed to freedom and does not destroy it, may expect to be destroyed by it, for in rebellion it has always [been] the watchword of liberty and its ancient privileges as a rallying point, which neither time nor benefits will ever cause it to forget.’ (‘The Prince’, Chapter V – ‘Concerning The Way To Govern Cities Or Principalities Which Lived Under Their Own Laws Before They Were Annexed.’)(1532). In other words, if you really want to destroy a people, its pride, it self esteem, and its sense of belonging to its own cultural identity, you need to destroy its cultural heritage, otherwise you will not be able to dominate. (‘Machiavelli’s principle of survival’) [‘MPS’].
‘The real target of most acts of intentional destruction of cultural heritage is therefore, not the heritage in itself but the human communities for which such a heritage is of special significance.’ (‘Mens Rea of Intentional Destruction of Cultural Heritage’, by Federico Lenzerini, Chapter 4 of the Oxford Handbook of International Cultural Heritage Law’ (2020), Oxford University Press, page 77).
Analysing the psychology of an invasion through the hard geo-political lens of ‘Offensive Realism’ (see Mearsheimer 2014), if an invading sovereign state is a hegemon or an aspiring hegemon) (‘H’), and the political logic underlying invasion is survival, then since a hegemon must dominate in order to survive, there is a paradox, because PA requires the destruction of CH. In other words, to achieve its political objectives, H must destroy part of itself.
Therefore, invasion may be a political mistake[vii]. The miscalculation is that instead of H becoming stronger it will actually weaken itself, because by invading a state with a shared cultural heritage, H will to an extent destroy its own cultural identity. If that happens then over time, institutionally H may become unstable and ungovernable, resulting ultimately in the political break-up of H. In other words, institutionally, the destruction of cultural heritage by H is an act of political self-destruction.
The existential question for H then becomes, how do they end the war without ending up being in a worse position than they were in before it, in order to:
(i) preserve the status quo within H itself; and
(ii) restore the balance of power (i.e. the status quo ante) between H and other hegemons and aspiring hegemons in the region/world, including H‘s political allies – who may pursue their own self-interest at the expense of H, if H becomes politically unstable, i.e. by annexing territory that H can no longer politically control because its military capability and economy have been weakened.
If the author is right, then the calculus of risk by H is a dynamic that can influence a decision by H to end a war by positively engaging in mediation.
Intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity
‘The destruction of heritage, and prohibition of cultural behaviours are used by certain conflict actors as “shaping operations”, where violence against the “Other” becomes normalised as communities, either incrementally or at once, lose their property, freedoms, and humanity. Culture is a shared set of values, ideas, and behaviours that enable a social group to function and survive. Cultural heritage maintains identity, social cohesion, and a sense of security through intangible practices, including rituals, music, language and skills, and tangible property such as artefacts, archaeology and places. Roosevelt’s four freedoms link cultural behaviour – to freedom from fear and want. Targeting cultural heritage is an act of power that legitimises one group while diminishing others and is often a precursor for the most offensive form of cultural destruction: genocide.’[viii]
Hence, there is an unspoken connection between:
- the deliberate destruction of cultural heritage as a strategy by an invading force in war and occupation;
- ethnic cleansing; and
The intentional destruction of cultural heritage is an offence against humanity as a whole. ‘[It] seems to have been forgotten that even wars have limits. The so-called “Hague-Law”, which regulates the use of means and methods of warfare so as to mitigate, as much as possible, the “calamities of war”, is the oldest branch of IHL. It’s basic tenet can be summarised in three fundamental maxims, namely: (i) that “the only legitimate object which states should endeavour to accomplish during war is to weaken military forces of the enemy”; and that therefore, in pursuing this aim, both (ii) “the right of the parties to the conflict to choose methods or means of warfare is not unlimited”; and (iii) “[t]he civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.” …’ (Saul, Ben & Dapo Akande (2020) The Oxford Guide To International Humanitarian Law, Oxford University Press.(‘ p.235). Article II.2 of the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (17 October 2003) states:
‘For the purposes of this Declaration “intentional destruction” means an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case in so far as such acts are not already governed by fundamental principles of international law.’
In other words, the intentional destruction of cultural heritage is an unjustifiable offence to the principles of humanity and the dictates of public conscience.
Principles of Humanity
Whether IHL can bring warring P‘s together in an ‘offensive realism’ paradigm depends upon the answer to the following questions:
- Do universal ethical values exist under IHL as ‘Principles of Humanity’ [‘principles’][ix].
- What are these principles.
- In the real world, could these principles be used in mediation as potential building blocks of a peace process, protocol, and agreement – i.e. are they a sufficient basis for starting a ‘difficult’ conversation that can eventually transform attitudes and each P’s Political Doctrine [‘PD’], resulting in the negotiation of a sustainable and enduring Peace Treaty.
The philosophical pillars of universal Principles of Humanity under IHL, are two classical doctrines:
(i) obligations ‘erga omnes’; and
(ii) ‘jus cogens’.
Although it can be said that jus cogens rules consist of rules stipulating erga omnes obligations, it is not axiomatic that erga omnes obligations constitute jus cogens. While there is an overlap between: (i) obligations erga omnes; and (ii) jus cogens rules, the IHL principles and norms that can be derived from the nexus between these doctrines in relation to Cultural Heritage suffer from a lack of scholarly formulation, definition and classification.
Therefore the answer to the first question is yes. However because the formulation of these principles and their philosophical basis under IHL, requires further research[x], the answer to the second question is almost a blank canvass.The answer to the third question depends upon whether these principles align with H’s political interest in the preservation of CH, as destruction of CH is ultimately an act on institutional self-destruction. So, in theory, because, by definition preservation of CG is common ground, the door is open for a form of Mediation to take place through Cultural Heritage Diplomacy.
There is a tension between the:
(i) common ground represented by a shared cultural heritage, including a set of ethical, philosophical and religious values/beliefs; and
(ii) political ambitions and objectives (‘PA’) that drive military strategy in war.
A logical corollary of MPS, is that where an invading state and an invaded state share a common cultural heritage i.e. CH, that the invader must destroy part of itself in order to achieve its political objective(s), i.e. its PA.
Arguably, Principles of Humanity under IHL are a powerful diplomatic tool in mediating a peace process and agreement, because violation, i.e. the impact of war on CH, may adversely sway public opinion within H and weaken support for the war.
When the political strategy of H is to create a failed state i.e., where it has failed in its primary objective to turn the invaded state into a client state, then the preservation and protection of cultural heritage in the invaded state, is also arguably elevated to the level of being a threat to the national security of any other state in the region (‘SIR’), because there is a risk of a failed state emerging within SIR‘s geo-political sphere of influence.
If the destruction of CH has the potential to politically destabilise H, then it follows that SIR also has a national security interest in the survival of H. Therein, and counter-intuitively, lies the seed of a principle that can result in the mediation of terms of peace which ensure the survival of both H and the sovereign state invaded by H. If this geo-political interest is recognised by all parties to the conflict and their supporters, that could open the door to a mediated dialogue using cultural heritage as a language of diplomacy, to negotiate a ceasefire and peace agreement. This is where a non-partisan NSA e.g. an NGO, can play an instrumental diplomatic and mediation role.[xi]
Blake, Janet On Developing a New International Convention for Safeguarding Intangible Cultural Heritage, Art Antiquity & Law, Vol VIII, Issue 4, 381, December 2003. (‘Blake’).
Bowling, Daniel (Editor) & David Hoffman (Editor) (2003), Bringing Peace Into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution, Jossey-Bass. (‘Bowling et al’).
Carstens, Anne-Marie & Elizabeth Varner (2020), Intersections In International Cultural Heritage Law, Oxford University Press. (‘Carstens & Varner’).
Chalcraft, Jasper Into the Contact Zones of Heritage Diplomacy: Local Realities, Transnational Themes and International Expectations, International Journal of Politics, Culture and Society (published online 05.01.2021). (‘Chalcraft’).
Clack, Timothy & Mark Dunkley (2022) Cultural Heritage in Modern Conflict, Past, Propaganda, Parade, Routledge. (‘Clack & Dunkley’).
Cloke, Kenneth (2019) The Crossroads of Conflict – A Journey Into the Heart of Dispute Resolution, Goodmedig Press. (‘Cloke’).
Criddle, Evan J. & Evan Fox-Decent (2016) Fiduciaries of Humanity – How International Law Constitutes Authority, Oxford University Press. (‘Criddle & Fox-Decent (2016)’).
Criddle, Evan J. & Evan Fox-Decent A Fiduciary Theory of Jus Cogens, The Yale Journal of International Law, Vol 34: 331-387. (Criddle & Fox-Decent (2009)’).
Criddle, Evan J, Miller, Paul B. & Robert H. Stikoff, editors (2019) The Oxford Handbook of Fiduciary Law, Oxford University Press. (‘Criddle, Miller & Sitkoff’).
Durbach, Andrea & Lucas Lixinski (2019) Heritage, Culture And Rights – Challenging Legal Discourses, Hart. (‘Durbach & Lixinski’).
Francioni, Francesco & Ana Filipa Vrdoljak‘ (2020) The Oxford Handbook of International Cultural Heritage Law, Oxford University Press. (‘Francioni & Vrdoljak‘).
Grant, Adam (2021) Think Again – The Power Of Knowing What You Don’t Know, Penguin Books. (‘Grant’).
Goold, Benjamin J. & Liora Lazarus (2019) Security And Human Rights, Hart Publishing. (‘Goold & Lazarus’).
Gozzi, Gustavo (2019) Rights and Civilizations – A History and Philosophy of International Law, Cambridge University Press.(‘Gozzi’).
Iverson, Jens (2021) Jus Post Bellum: The Rediscovery, Foundations, and Future of the Law of Transforming War into Peace, Brill Nijhoff. (‘Iverson’).
Jervis, Robert (2017) Perception and Misperception in International Politics. Princeton University Press.(‘Jervis (2017)’).
Jervis, Robert (2017) How Statesmen Think – The Psychology of International Politics, Princeton University Press.
Jervis, Robert (2017) How Statesmen Think – The Psychology of International Politics, Princeton University Press. (‘Jervis (2019)’).
Kim, Jihon (2022) Non-State Actors in the Protection of Cultural Heritage: An Analysis on Their Rights, Obligations, and Roles, Springer-Verlag. (‘Kim’).
Mearsheimer, John J. (2014) The Tragedy Of Great Power Politics (Updated Edition), Norton. (‘Mearsheimer (2014)’).
Mearsheimer, John J. (2019) The Great Delusion: Liberal Dreams and International Realities (Henry L. Stimson Lectures), Yale University Press. (‘Mearsheimer (2019)’).
Mearsheimer, John J. (2023) & Sebastian Rosato How States Think: The Rationality of Foreign Policy, Yale University Press. (‘Mearsheimer & Rosato’).
Milton, Patrick, Michael Axworthy and Brendan Simms (2018) Towards A Westphalia for the Middle East, C Hurst & Co Publishers Ltd. (‘Milton et al’).
O’Keefe, Patrick J. (2017) Protecting Cultural Objects: Before And After 1970, Institute of Art & Law. (‘O’Keefe’).
Paterson, Robert J ‘Protecting Taonga: The Cultural Heritage of the New Zealand Māori’, 8 Intnl J. Cultural Prop. 108 (1999). (‘Paterson’).
Powell, Jonathan (2014), Talking To Terrorists – How to end armed conflicts, Vintage. (‘Powell’)
Randolph, Paul (2016) The Psychology of Conflict, Bloomsbury. (‘Randolph’).
Ury, William (1999) The Third Side – Why We Fight And How We Can Stop, Penguin Books. (‘Ury’).
Saul, Ben & Dapo Akande (2020) The Oxford Guide To International Humanitarian Law, Oxford University Press.(‘Saul & Akande’).
Shinn, John P. ‘A new world order for cultural property: addressing the failure of international and domestic regulation of the international art market’, 34 Santa Clara L.Rev 977 (1994). (‘Shinn’).
Simpson, Moira Museums and restorative justice: heritage, repatriation and cultural education, Museum International, Vol 61, No.1-2, 2009 (UNESCO Publishing and Blackwell Publishing Ltd). (‘Simpson’).
Slaughter, Anne-Marie ‘Every day global governance’, 132 Daedalus 83 (2003). (‘Slaughter’).
Stamatoudi, Irini ‘Mediation and cultural diplomacy’, 61 Museum Int’l 116 (2009). (‘Stamatoudi’).
Strother, Grant ‘Resolving Cultural Property Disputes in the Shadow of the Law’, Harvard Negotiation Law Review, 2014, Vol19:335.(‘Strother’).
Tsagourias, Nicholas & Alasdair Morrison (2023) International Humanitarian Law – Cases, Material And Commentary, Second Edition, Cambridge University Press. (‘Tsagourias & Morrison’).
Weatherall, Thomas (2015) Jus Cogens – International Law and Social Contract, Cambridge University Press. (‘Weatherall’).
[i] This has a philosophical root in the western liberal theory of cultural property internationalism ‘A related claim is a critique of the nationalist position, namely that cultural heritage is a fluid concept and hence claims to total sovereignty are arbitrary. The position is less that there is no national claim to territorial cultural property, but rather that a balance should be struck between sovereignty and shared access to what is viewed by the cultural property internationalists as a common cultural heritage of humanity. Support for these claims are likewise evident from Article 4 UNESCO 1970, which includes in the definition of “cultural heritage” both “cultural property which has been the subject of a freely agreed exchange,” and “cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property.” These provisions seem to reflect an idea that cultural property can be attributed to a cultural heritage beyond the territory of its origin, and also acknowledges the value in protecting other states’ provision of access to cultural property of foreign origin.’ (Strother, p.358).
[ii] ‘Culture is [also] a key element of operational understanding. Operations of both the British and US militaries in Afghanistan and Iraq taught hard lessons: culture is critical. Culture is a driver and motivator of people. It is also a medium for communication and a means to achieve military effect. It can also shape and define the Information Environment. Culture, as a component of military planning is one of four key human factors that shape the operating environment. Put simply, culture determines how people interpret and orientate themselves to that environment.’ Clack & Dunkley, p.301 – An interview with Captain Mark Waring. These are the words of Captain Waring.
[iii] UNESCO General conference, ‘Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict (2 November 2015) UNESCO doc 38/C/49. See also UNESCO General Conference, ‘Strategy for the Reinforcement of UNESCO’s action for the protection of culture and the promotion of Cultural Pluralism in the Event of Armed Conflict’ (24 October 2017) UNESCO doc 39/C/57, para 1.
[iv] Kirsten Schmalenbach, “ideological Warfare Against Cultural Property: UN Strategies and Dilemmas” 19 Max Planck YB UN L 1.
[v] Carstens & Elizabeth Varner, p.82.
[vi] Note also that ‘fiduciary principles play a prominent role in the international law of occupation. As one leading scholar has observed, the foundational principle upon which the entire law of occupation is based is the principle of inalienability of sovereignty through unilateral action of a foreign power. Accordingly, when a state establishes effective control over foreign territory, its international legal status is conceived to be that of a trustee who exercises only temporary managerial powers until the occupation ends. … An occupant also bears a variety of proscriptive fiduciary duties. It must respect unless absolutely prevented, the laws in force in the country. … Nor may an occupant confiscate private property, [or] destroy property without military necessity. … Moreover the occupant serves only as administrator and usufructuary of public buildings, [and] real estate … belonging to the hostile state, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct, avoiding wasteful or negligent destruction of the capital value … Contrary to the rules of good husbandry. … For centuries, international lawyers and statesmen have endorsed the principle that a state’s sovereign authority is held in trust for the benefit of its people.’ (Criddle, Miller & Sitkoff, pp.356 & 358-9).
[vii] In a proxy war, where a hegemon (‘H‘) is a liberal democracy acting in support of a strategic asset (‘SA’), aggression by SA in breach of IHL not only undermines the integrity of the international rules based order where a Nelsonian blind eye is turned to violation, it can also turn SA into a ‘liability’ which can sway public opinion in H, who demand that support for SA cease.
[viii] Clack & Dunkley, p.301 – An interview with Colonel Rosie Stone. These are the words of Colonel Stone.
[ix] Primary sources include:
- Hague Convention II, 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):-
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and requirements of the public conscience.’
- Additional Protocol 1, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (adopted 8 June 1977, entered into force 7 December 1978):-
1(2) – In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’
- International Criminal Tribunal for the former Yugoslavia – Prosecutor v. Kupreskic et al., (Judgment), Case No. IT-95-16-T, Trial Chamber (14 January 2000).
The following is an extract from Tsagourias & Morrison, pp43 & 44:
‘On the issue of humanity and how it assists in the interpretation of IHL, the Chamber held as follows:
- More specifically, recourse might be had to the celebrated Martens Clause which, … Has by now become part of customary international law. True, this Clause may not be taken to mean that the ‘Principles of Humanity’ and the ‘Dictates of Public Conscience’ have been elevated to the rank of independent sources of international law, for this conclusion is belied by international practice. However, this clause enjoins, as a minimum, reference to those principles and dictates any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances, the scope and purport of the rule must be defined with reference to those principles and dictates.’
- Danish Ministry of Defence, Defence Command Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations (2016, updated 2020), chapter 4:-
‘The principle of humanity expresses a fundamental prohibition against the infliction of suffering, injury, or destruction that is not actually necessary for the accomplishment of legitimate military purposes. The principle also implies the basic requirement of humane treatment. … There are three aspects to the principle of humanity. The first aspect concerns the fact that belligerents are limited in their use of means and methods of warfare. … The second aspect of the principle of humanity is the requirement that certain precautions – for instance, in the choice of means and methods – must be taken in connection with the planning and execution of attacks and in the defence against attacks. … The third aspect of the principle concerns a minimum standard for the humane treatment of any person who is held in the custody of the belligerent state.’
- ‘The key to understanding international jus cogenslies in a much neglected passage of The Doctrine Of Right, where Immanuel Kant discusses the innate right of humanity which all children may assert against their parents as citizens of the world. Drawing on Kant’s account of familial fiduciary relations, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to state power. An immanent feature of this state subject fiduciary relationship is that the state must comply with jus cogens.’ (Criddle & Fox-Decent (2009), pp.353 – 354 (Kant’s Model of Fiduciary Relations).
[x] ‘An additional consideration should be devoted, as well, to unpacking the fiduciary model’s consequences for future litigation to enforce alleged jus cogens violations, including such threshold concerns as standing, sovereign immunity, causes of action, compulsory jurisdiction, forums, and remedies. … Addressing these questions will be essential to determine the specific legal consequences that flow from a breach of jus cogens.’ (Criddle & Fox-Decent (2009)).
[xi] For example in mediating a ceasefire, in order to create a network of humanitarian corridors, i.e. by designating certain areas as ‘Cultural Heritage Safe Zones’, and then linking them up, so as to create a matrix, which in effect brings about a cessation of military operations throughout a conflict zone.
Essay – ‘Mediation of Cultural Property Disputes’
Cultural property disputes are multifaceted, legally complex, often involve multiple stakeholders[i], and can be multi-jurisdictional.
‘The handing back of property to the original possessor or owner is known variously as restitution, return, and repatriation … are treated differently in law, with some covered by private law instruments and others by public law. … [Points] of convergence can be seen where there are no legal means of claiming restitution, either because the passage of time or because there has been no unlawful act. It can also happen that, once outside the state territory, there may be limits to the protection afforded to a disputed item of property under public law, even where international conventions apply, as these are sometimes unenforceable..’ (Cornu & Renold’ pp. 1-2).’
The result is limbo.
A further legal impediment, is that museum trustees cannot voluntarily dispose of artefacts in a museum’s collection, whatever the merits of a moral/ethical case for repatriation, unless the disposal is lawful. ‘Although the law is not blind to moral claims, trustees and those who control charitable institutions can only satisfy such claims within the framework of the law..’ (‘Ethical Dilemmas For Charities: Museums And The Conscionable Disposal Of Art’ by The Hon. Sir Anthony Mason AC KBE, Art Antiquity And Law, Vol VIII, Issue 1, March 2003, page 3).
Mediation can result in a break-through, because it enables ‘parties in dispute’ to become ‘collaborators’ in a process of exploring the existence of terms of a deal, whereby a ‘third-way’ can be jointly-developed, which is sufficient, i.e. ‘enough’ to satisfy their primary needs, resulting in a ‘convergence’ of interests, trust, goodwill, and a mutually acceptable agreement about ‘what is the right thing to do.’
In this essay, I seek to answer the following questions within the context of non-institutional mediation of a cultural property dispute:
- What is Mediation.
- What are the benefits.
- How does the process work – i.e. what are the key terms of the ‘Mediation Agreement’.
- What are the challenges for a Mediator.
- Where is the deal-making zone (‘DMZ’).
- What is the Mediator’s methodology.
‘Although life can only be understood backwards, it must be lived forwards’.[ii] Litigation is a backwards looking process, at the end of which a Judge must make a binary choice between competing narratives. Mediation is a forward-looking process in which the participants (‘P’s’) work out their own solution through a process of engagement. Therefore, the first challenge for a mediator (‘M’) is to understand what each P wants, needs, prioritizes, and why. This requires empathy and affirmation. The second is to facilitate engagement. Some might add that an ancillary challenge for M is to understand the facts – the narrative, and it is often helpful if each P provide M with a statement of facts/’Position Paper’.
In essence, mediation is a forward-looking conversation. The role of M is to manage the process and ensure that it is conducted in accordance with the terms of the ‘Mediation Agreement’. The mediator must also:
- Create an environment in which adversarial parties in a confrontational dispute can come out of their ‘positional’ trenches and walk towards the centre of the multifaceted problem which divides them.[iii]
- Empower adversarial parties to a dispute to become collaborators in a creative and bespoke problem-solving exercise, and eventually, to walk side by side in jointly exploring and developing a practical solution of their own design which takes into account: the facts presented in their respective position papers; the documentary evidence in an agreed bundle of documents; legal merits (and there may be none); reputational risks; the time value of money; and e.g. the political benefits[iv] of ‘doing a deal’ now, instead of incurring further costs and wasting time by resuming trench warfare in public.
This requires counter-intuitive thinking and behaviour, and the outcome can be a ‘paradigm shift’ which results in a creative solution that a court/arbitration tribunal does not have the jurisdiction and power to impose. It therefore also requires an ‘ethical’ rather than a ‘forensic’ legal mind-set, and some imagination. The challenge for a mediator is to persuade each participant to identify (in strict confidence) what is actually at stake, i.e. to drill down to what each participant’s individual objectives, needs and priorities are, and to understand why.
While it is not the function of a mediator to speak truth to power, a mediator can facilitate the re-framing of a dispute as an opportunity, by enabling each participant to think about what is important to them, so that the P‘s can jointly agree upon a ‘methodology’, i.e. a ‘road map’ for convergence and consensus. This requires acceptance by each P that there is a better way of resolving their dispute through collaboration, rather than confrontation.
Orthodox mediator strategy is to move the P’s from considering their positions to considering their interests, and ultimately their needs. There is no magic formula. Each M will have their own style and approach. Mediators expect the unexpected, and progress at mediation is rarely linear. Achieving settlement at mediation requires momentum, which in turn requires flexibility, so, while it has a ‘beginning’, a ‘middle’ and an ‘end’, the process does not always take place in that order, and in practice, M’s do not adhere to a rigid structure/agenda. In other words, mediation is always improvised to an extent. However, for the purposes of analysis and discussion, in my opinion, a well-constructed Mediation typically involves seven distinct phases which can overlap:
- Exchange of further information.
- Formulation of proposals.
- Adjustments to narrow the gap.
- Agreement of terms in principle followed by the drafting and execution of a binding Settlement Agreement.
On the Mediation Day, the mediator’s role is to listen and help the participants to have a conversation – whatever the outcome. While to an extent, the mediation of a cultural property dispute by a mediator who has specialist knowledge of art and cultural property law will irresistibly, and therefore inevitably in my opinion, engage both a facilitative and an evaluative style, the mediator does not possess all the facts, and unlike a judge has not heard all of the evidence, therefore, it is not M’s function to express an opinion about law and merits. For the same reasons M may ask P – ‘tell me more’, because in order to help the P’s jointly develop their own methodology for resolving the dispute, M needs to grasp the issues in dispute, and drill down into each P’s position and underlying reasons. Until M has engaged in this conversation with each P he cannot ask laser-focussed reality testing questions, i.e. by playing Devil’s Advocate, about the issues in dispute. Therefore, M should be in no hurry, and must not place himself under false pressure. Likewise in order to steer the P’s toward a methodology that yields a solution (i.e. a joint framework of principles that can be applied to solve the problem), M must allow each P the space and time in which to develop their own thinking and ideas. This works well in the mediation of cultural property disputes, because the process is protracted and rarely completed in the course of one day.[v]
The mediator is not the author of the participants’ journey/adventure, because they will write the ending. Since the P’s do not know where the mediation is going to end up, M does not know where it can lead. Therefore, at the start of the conversation, the demeanour of M should be one of polite curiosity. M can and should summarise without expressing a judgment and may ask thought provoking questions, but he must be seen to be neutral – which is why body language is important. Mediation is the art of the possible, and like Indiana Jones in ‘Raiders of the Lost Ark’, a mediator should enter the cave with all the wariness of an explorer, because he/she does not know what dangers lie ahead. While M is not likely to encounter a hail of poisoned darts, if he/she agitates P, M could make the dispute worse – which in mediation is a cardinal sin! That is why M should not be in any hurry and needs to tread step by step with great care.
‘The issue of cultural property, in general, is an immensely charged area of both legal and political discussions. … Hence, when disputes focus on cultural objects, cultural property is transformed into a hotly contested area because legal claims of ownership are infused with politically and emotionally charged interests.’ (Gegas, pp.133 & 144). Mediation can take the heat out of the contest because it is non-adversarial dialogue. The P’s focus is on ‘doing’ a deal and not on ‘going to war’. Mediation creates a safe and confidential space in which a private conversation can take place behind closed doors about how to do a deal by closing the gap between each P’s position.
Through consensus-building, mediation can result in a creative solution that no judge or arbitrator can impose. ‘[M]ediation empowers parties to look beyond their original claims to the interests that underlie them. … [M]ediation asks disputants to identify their real motivations and to cooperate to come to mutually beneficial agreements which address each disputant- stakeholder’s most critical interests. This practice is the essence of consensus building.. … [M]ediation facilitates positive future interactions between parties. Because mediation is non-adversarial and encourages creative problem-solving, parties can come to agreements which cooperatively preserve their relationships and lay the groundwork for the resolution of future disputes.’ (Mealey, p. 192).
Generically, the benefits of mediation also include: the P’s remain in control of the process and of the decision-making – and can end the process at any time; flexibility; costs; and the ability to conduct the process in stages with P’s located in different time zones, using Zoom or TEAMS; and enforcement of any agreement under the Singapore Convention.[vi]
The Mediation Agreement
The P’s can either instruct a panel mediator through a one-stop shop mediation provider, i.e. ICOM and WIPO[vii] or they can jointly agree upon the appointment of a mediator, or a panel of co-mediators.
As a matter of contract, the Mediation Agreement ensures that:
- The process is confidential.
- When the mediator meets a participant (P1) in a private session, he will not repeat anything said to him to another participant (P2), unless M has been expressly authorised to do so by P1.
- The ‘without-prejudice’ rule applies to and protects all communications between everyone taking part or present at the mediation. Therefore, what is said in the mediation stays in the mediation and cannot be used or referred to in any legal proceedings or open communication after the mediation has ended.
- Each participant undertakes to act in good faith.
- Each participant confirms that they have full authority to negotiate and agree terms of settlement.
- Each participant confirms that they are available for the planned duration of the mediation.
- The process is voluntary, and a participant may end the process at any time if it is not working for them.
- No agreement as to the terms of any settlement reached during the mediation will be legally binding unless and until terms have been reduced to writing and signed, and therefore, that nothing is agreed, until everything is agreed.
- If an agreement is reached between the participants, terms of agreement will be prepared in writing and signed by them, or by their legal representatives on their behalf.
- It is understood that the mediator will not provide any legal advice, and that before making any decision, participants are free to take advice from their own professional advisers at any time.
- It is understood that the mediator will not be involved in drafting any settlement offer, memorandum of understanding (MOU), settlement agreement.
Consequently, in practice, a mediation cannot proceed unless and until a Mediation Agreement has been signed.
At the epicentre of the restitution dialogue is a struggle between two competing theories under International Cultural Heritage Law.
|1. Cultural nationalism’ – Proponents of this view believe that cultural objects belong within the boundaries of the ‘source’ nation of origin.
|UNESCO Convention 1970, Article 2 and the Preamble.[viii]
|2. ‘Cultural internationalism’ – Proponents of this view regard cultural property as being in the words of the 1954 Hague Convention – “the cultural heritage of all mankind.”’
|Preamble of the Hague Convention 1954.[ix]
UNESCO Convention 1970, Article 4.
Therefore, the first challenge for M is to find a way of reconciling these conflicting and competing views, in a way that satisfies and meets each P’s underlying interests and needs.
Deal Making Zone (‘DMZ’)
In my opinion, the settlement of a cultural property dispute invariably involves a trade-off between ten inter-connected variables along a spectrum of needs, resources, priorities, and ‘Red-line’ dealmaker/breaker imperatives, i.e. each P’s BATNA[x]. The DMZ exists in the space between two interacting parallel dynamics which may converge in the consciousness of each P:
– Relative Gains v. Relative Losses [‘P.1 – P.2’].
– Common Ground [‘CG’].
Relative Gains v. Relative Losses:
(i) Legal rights.
(iii) Recognition, Reputation & Credibility.
Common ground in eliminating litigation risk by doing a deal instead of proceeding to trial includes:
(iv) Saving costs.
(v) Saving time.
(vi) Saving energy.
(vii) Avoiding further stress and anxiety.
(viii) Avoiding publicity.
(ix) Avoiding the creation of a legal precedent.
(x) Building a relationship and goodwill.
I posit that the gap between P1. and P.2 is reduced by the convergence of CG with P.1 – P.2. In other words, the closer P.1 – P.2 is to the underlying CG, the smaller the gap is between P.1 and P.2. That is the DMZ. Visually this can be represented as follows:
I further posit that in a cultural property dispute, CG lies at the centre of a series of interlocking circles labelled:
- P1 Wants/Needs/Priorities.
- P2 Wants/Needs/Priorities.
- International Relations.
The alchemy in the mediation of a cultural property dispute is to discover what lies in the centre, i.e. in that small space where these circles all overlap with each other (the ‘Hub’), because that is common ground.
The Hub is also the zone in which a ‘Black Swan’ may exist. ‘Black Swans are events or pieces of knowledge that sit outside our regular expectations and therefore cannot be predicted.. … There are those things we know … Those are known knowns. There are those things we are certain that exist that we don’t know. … Those are known unknowns and they are like poker wild cards; you know they’re out there but you don’t know who has them. The most important are those things we don’t know that we don’t know, pieces of information we’ve never imagined that would be game changing if uncovered.. … These unknown unknowns are Black Swans. … Finding and acting on Black Swans mandates a shift in your mindset. It takes negotiation from being a one-dimensional move counter move game of checkers to a three-dimensional game that is more emotional, adaptive, intuitive … and truly effective.’[xi]
A mediator needs to be aware of this concept and the importance of looking not only for what the P’s ‘don’t know’, but also for what the P’s ‘don’t know that they don’t know’.
Mediation is the art of knowing how, when and why to ask questions which can bring about a ‘cognitive shift’ in each P’s thinking and behavior, i.e. a ‘paradigm shift’ about what they perceive to be at stake and the value of settling. Metaphorically, ‘questions’ are the ‘steering-wheel’ whereby M can navigate a ‘difficult conversation’ with each P in order to bring closure by helping each P to sort out their dispute for and by themselves.[xii]
While each P is locked in confrontation, i.e., is in ‘adversarial mode’, e.g. ‘This belongs to us’ v. ‘It belongs in a museum of mankind’, the challenge for M is to bring about a ‘paradigm shift’[xiii].
In order to discover and enter a potential DMZ, each P must be willing to settle, and set aside ad hominem attacks. M will acknowledge at the start of the mediation day that because the P’s have agreed to participate in the process in ‘good faith’, M is confident that ‘a deal can be done.’[xiv] Discovering the existence of common ground requires ‘realism’ and ‘courage’, because it is only natural that each P will to some extent, harbor a fear of the unknown or a fear of ‘losing’.[xv] M can help each P fully embrace the deal-making ethos of mediation, by explaining that in order to discover the existence of common ground, they need to share their thinking with M on a confidential basis so that M is clear about their approach, i.e. about what they want and how they think they are going to get it. This is also an opportunity to use M as a sounding board. There may have been a ‘misperception’ by e.g., P.1 about why P.2 is insisting upon a particular condition of settlement. In which case P.2 can authorize M to clarify the point in a private session with P2. and to relay in broad terms where there is flexibility in overcoming the roadblock, i.e., how a mutually satisfactory solution could be agreed and implemented. If both P’s are willing to confide in M by sharing their settlement range at the start, then M can assist each P to frame proposals and make offers that reflect each P’s perception of reality. That is how common ground is discovered. First, however, each P needs to come down to earth.
In my opinion, advancing a theory of international law gets you nowhere in the resolution of a cultural property dispute, because: it is positional; it polarises; and it results in deadlock. A breakthrough can occur in mediation. For this to happen, at some point in a successful mediation, a ‘paradigm shift’ occurs in each ‘P’s perceptions, thinking and feelings, which opens the door to creative ‘out of the box’ thinking through collaborative problem-solving, resulting in the abandonment of what prior to that moment, were rigidly held and fiercely fought over positions.
In my opinion, the ‘tipping’ point at which a paradigm shift may occur in the Mediation of a Cultural Property Dispute, is at the intersection of:
- ‘Practical Ethics’, i.e. ‘doing the right thing’; with
- the exercise by museum trustees of their legal powers in accordance with their legal duties.
At which point, ‘conscience’, ‘morality’, and ‘ethics’, collide with law, and can become fused in ‘equity’. In Mediation the possibilities are only limited by the imagination of the participants and their legal representatives[xvi]. Whilst not infinite, ‘doable’ deals that ‘are enough’ are possible. That is the magic of mediation.
- Abbott, Kenneth W. et al ‘The concept of legalisation’, 54 Int’l Org 401 (2000). (‘Abbott’).
- Bryne-Sutton, Quentin ‘Arbitration and Mediation in Art-Related Disputes’, Arbitration International, Volume 14 Number 4, 1998, p.447. (‘Bryne-Sutton’).
- Chechi, Alessandro The Settlement of International Cultural Heritage Disputes (2014), Oxford University Press (‘Chechi’).
- Cornu, Marie & Marc-Andre Renold ‘New developments in the restitution of cultural property: alternative means of dispute resolution’, 17 Intnl J. Cultural Prop.1 (2010). (‘Cornu & Renold’).
- Eckblad, Ariel In Pursuit of Fairness: Renegotiating Embedded Norms and Reimagining Interest-Based Negotiation, Harvard Negotiation Law Review, Vol 26:1 Fall 2020, 1-29. (‘Eckblad’).
- Falkoff, Stacey ‘Mutually beneficial repatriation agreements: returning cultural patrimony, perpetuating the illicit antiquities market’, 16 J.L. & Pol’y 265 (2007). (‘Falkoff).
- Fisher, Roger ‘Coping with conflict: what kind of theory might help?’ , 67 Notre Dame L.Rev. 1335 (1992).(‘Fisher’).
- Francioni, Francesco and Ana Filipa Vrdoljak, editors (2020) Oxford Handbook of International Cultural Heritage Law, Oxford University Press (‘OHICHL’).
- Gegas, Evangelos I. ‘International arbitration and the resolution of cultural property disputes: navigating the stormy waters surrounding cultural property’, 13 Ohio, St J. on Disp Resol 129 (1997). (‘Gegas’).
- Gerstenblith, Patty The fiduciary duties of museum trustees, Columbia Journal of Art And The Law (1983), Vol 8: 175-206. (‘Gerstenblith’).
- Hoffman, David, & Helen Winter Follow the Science: Proven Strategies for Reducing Unconscious Bias, Harvard negotiation Law Review, Vol.28.1, Fall 2022, 1-63. (‘Hoffman & Winter’).
- Lavi, Dafna ‘Can the Leopard change his spots?! Reflections on the collaborative law revolution and collaborated advocacy’, 13 Cardozo J. Conflict Resol, 61 (2011). (‘Lavi)].
- Linveh, Yair Overcoming the Loss Aversion Obstacle in Negotiation, Harvard negotiation Law Review, Vol.25:187, Spring 2020, 187-212. (‘Linveh’).
- Mealy, Nate ‘Mediation’s Potential Role in International Cultural Property Disputes’, 26 Ohio St.J. on Disp Resol, 169 (2011).
- Mnookin, Robert H. & Lewis Kornhauser ‘Bargaining in the shadow of the law: the case of divorce’, , 88 Yale L.J. 950 (1979).(‘Mnookin & Kornhauser’).
- Murdoch J. ‘Attribution and the claim to objectivity’, Intnl J. Cultural Prop (1993) 2(2) pp 319-334. (‘Murdoch’).
- Shehade, Maria, Kalliopi, Fouseki & Katherine Walker Tubb Editorial: Alternative Dispute Resolution in Cultural Property Disputes: Merging Theory and Practice, International Journal of Cultural Property, (2016) 23: 243-355. (‘Shehade, Fouseki & Tubb’).
- Stamatoudi, Irini ‘Mediation and cultural diplomacy’, 61 Museum Int’l 116 (2009). (‘Stamatoudi’).
- Strother, Grant ‘Resolving Cultural Property Disputes in the Shadow of the Law’, Harvard Negotiation Law Review, 2014, Vol19:335.(‘Strother’).
- Voss, Chris (2016) Never Split The Difference – Negotiating as if your life depended on it, rh Business Books. (‘Voss’).
- Wilson, Martin (2022) Art Law And The Business Of Art, Edward Elgar Publishing. (‘Wilson’).
[i] So, a wide range of interests and underlying dynamics are in play.
[ii] ‘Sending Them Home – Some Observations on the Relocation of Cultural Objects from UK Museum Collections’, by the late Professor Norman Palmer, Art Antiquity And Law, Vol 5, Issue 4, December 2000, page 353.
[iii] Note that In the case of a Cultural Property disputes there is always a wider political dimension involved.
[iv] ‘As recent MBRA’s [Mutually Beneficial Repatriation Agreements] demonstrate, generosity can forge bonds between nations and foreign institutions and encourage future collaborations. One of the driving forces behind the MBRA reached between the Getty and Italy in 2006 was the Getty’s desire to establish a new working relationship with Italy. In some cases, MBRA’s may explicitly require parties to maintain a cooperative rapport with one another. For example, under the terms of the February 2006 MBRA between the Met and Italy, the Met must respect the negotiated return dates for the objects in the Morgantina Collection and the Euphronious Krater, while Italy will be obliged to follow through on its promise to provide the museum with long-term loans. Moreover, in a more general sense, repatriation can be seen as an expression of respect, potentially leading to improved international relations between the source nation and the nation in which the object is located.’ (Falkoff, p277).
[v] An exception was the mediation of the Tasmanian Aboriginal Centre claim against the Natural History Museum in London for the return of human remains mentioned below, was concluded in three days, see: 17 Tasmanian Human Remains – Tasmanian Aboriginal Centre and Natural History Museum London — Centre du droit de l’art (unige.ch).
[vi] The SCM ostensibly provides “a framework to allow for the recognition and enforcement of international commercial settlement agreements reached via mediation. It enables a party which has mediated their dispute to enforce the resulting cross-border mediated agreement in any country that is Party to the Convention without needing to commence an action for breach of contract”. (Speech by the Parliamentary Under Secretary of State for Justice Lord Bellamy KC on 2nd March 2023 to the House of Lords).
[vii] ‘Art and Cultural Heritage Mediation An alternative litigation resolution method adapted to art and cultural heritage fields Press conference: 12 July, 2011 in Paris.’: 110701_DP_Mediation_EN.pdf (icom.museum).
ICOM mediation contain s a default mechanism if the P’s cannot agree upon whom to appoint:-
In the case of a cultural property dispute (return, restitution, acquisition, loan, deposit or intellectual property rights issues), the claimant can submit the dispute to mediation by sending a request to the ICOM Secretariat. The ICOM Secretariat analyses the case in order to ascertain that the dispute falls within the intended scope of the mediation procedure in thirty (30) days. All eligible requests are sent to the WIPO Arbitration and Mediation Center for the mediation to commence and the WIPO Center administers the process, the commencement of the mediation starts at this stage.
The parties have seven (7) days from the commencement of mediation to agree on the person of the mediator. If the parties fail to reach an agreement within that period, the mediator is appointed according to the ICOM-WIPO Mediators Rules. Conduct of Mediation The parties and the mediator establish a timetable for the mediation and decide whether they communicate documents and datas. The parties send a statement summarizing their interest and contentions to the mediator before they meet. A first meeting is set up. Then, the mediator offers a solution, which can be accepted or not. If so, other meetings are organised until an agreement is reached.’
[viii] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (‘UNESCO 1970’).
[ix] Convention for the Protection of Cultural Property in the Event of Armed Conflict (‘Hague Convention 1954’).
[x] Best alternative to a negotiated solution.
[xi] Never Split The Difference – Negotiating as if your life depended on it’, by Chris Voss (2016), rh Business Books, page 216.
[xii] For a detailed discussion of mediation skills see paragraphs 14-042 to 14-101 of ‘Brown & Marriot’s ADR Principles And Practice’, by Shirley Shipman, Ben Waters, and William Wood KC (2018), Sweet & Maxwell, which lists:
- Observing non-verbal communications.
- Helping parties to hear.
- Using language effectively and reframing.
- Use of metaphor.
- Managing conflicts and the expression of emotions.
- Lateral thinking.
- Understanding triangulation and avoiding alliances.
- Encouraging a problem-solving mode.
- Being silent.
- Constructive facilitation.
[xiii] In order to bring about a ‘paradigm shift’ M needs to ask questions designed to uncover information that specifically creates new insights for the P’s. For a full discussion of the technique, see ‘The Mediator’s Toolkit – Formulating and Asking Questions for Successful Outcomes’, by Gerry O’Sullivan (2018), new society Publishers. These questions ‘help to identify any inner conflict or inconsistencies within a party, to safely teasing out alternative perspectives. They identify the core of a problem and facilitate the creation of a future without the problems of the past.’ (Page 8 of the Book).
[xiv] Note also the ‘Pygmalion’, or ‘Rosenthal’ effect – The psychological phenomenon in which high expectations lead to improved performance and conversely, low expectations, lead to failure. In other words, if the P’s genuinely want to settle and achieve a settlement agreement on the day, then their expectations influence the chances of a deal being done, so the chances of settlement will increase if the P’s come to the table with hope and positive expectations of what can be achieved in the time available. The ‘Dunning Krueger’ effect is somewhat the opposite.
[xv] For a discussion of psychological barriers including ‘Loss Aversion’ and ‘Unconscious Bias’, see Hoffman & Winter, pp.28&44; Eckblad, p.3; and Linveh, pp.1-2.
[xvi] ‘The imaginative powers of lawyers know no bounds. … [A] remarkable case is that of the Afghan cultural assets held for many years in the Afghanistan Museum in exile in Bubendorf, Switzerland, with a view to safeguarding them and one day making restitution. This was a form of trusteeship that ended on the day UNESCO decided that the property in question could be handed back. [Another original solution] has been suggested in this field based on the Anglo-American trust and the Waqf in Islamic law.’ (Cornu & Renold, pp.16-22).’
Supplementary Material – which did not form part of the essay:
Table – ‘Ethical Principles’
Respect for diverse religious, spiritual and cultural beliefs, and attitudes to cultural property – i.e. ‘tolerance’ and ‘respect’, demonstrates humility and modesty regarding one’s own opinions, and shows respect for individuals, cultures, groups and communities. This principle requires participants in Mediation, i.e. the decision-makers, to give consideration to the cultural and historical backgrounds, beliefs and values relevant to all parties concerned. Specifically, it would require a museum to recognize and respect that a community may place a particular cultural value on cultural property that is not shared by others. This may include an ancient ‘spiritual’/’mystical’ belief that a physical object, e.g. a stone, is imbued with ‘energy’ and some form of ‘power’, for which there is no ‘scientific’ evidence.
Ethical principles may provide a Mediator with tools for steering the P‘s toward recognition of common ground. However, the Mediator must not pre-label each P’s values, as that could result in loss of trust from the start. What the Mediator needs to do through careful questioning, is to get each P to talk about their values, so that in conversation with each other, they can recognise the existence of an overlapping framework of principles which can be used to develop a creative, practical and lawful solution which essentially satisfies their competing interests, ambitions, imperatives, and priorities.
|Non-Maleficence – doing no harm
Non- Maleficence would require you to avoid doing harm wherever possible. This could include avoiding harm to an individual, a community or the general public. For example, not taking an action that would cause distress to a particular community.
|DCMS – Guidance for the Care of Human Remains in Museums|
|Respect for diversity of belief – respect for diverse religious, spiritual and cultural beliefs and attitudes to cultural property – i.e. tolerance and respect
Respect for diversity of beliefs demonstrates humility and modesty regarding one’s own opinions, and shows respect for individuals, cultures, groups and communities. This principle requires decision-makers to give consideration to the cultural and historical backgrounds, beliefs and values relevant to all parties concerned. For example, it would require a museum to recognize and respect that a community may place a particular cultural value on cultural property that is not shared by others.
|Respect for the value of science – respect for the scientific value of certain forms of cultural property, e.g. human remains, and for the benefits that scientific enquiry may produce for humanity.
This principle holds that individuals and communities (past, present and future) benefit both personally and indirectly, through the benefits to their loved ones, descendants and communities, from the fruits of science.
|Solidarity – furthering humanity through co-operation and consensus in relation to cultural property.
The principle of solidarity recognizes that we all have a shared humanity and an interest in furthering common goals and tolerating differences that respect fundamental human rights. Mutual respect, understanding and cooperation promote solidarity by fostering goodwill and a recognition of our shared humanity. This principle emphasizes the importance of rising above our differences to find common ground, co-operation and consensus. It would be reflected, for example by seeking to find a consensus in relation to competing claims over cultural property that all parties can accept.
‘Here the law must perform a very delicate balancing act in order to prevent any indignation suffered through the mistreatment of human remains and to satisfy the demands made by the pursuit for knowledge and advancement. The law cannot deny the educational value that can be gleaned from archaeological research, but also cannot dismiss the price paid by those who regard such activities as a gross invasion of their cultural and spiritual heritage.’ [‘Can dust remain dust – English law and indigenous human remains’, by Tristan R. Shek, Art Antiquity And Law, Vol 5, Issue 3, September 2000].
|Beneficence – doing good, providing benefits to individuals, communities or the public in general.
Beneficence would dictate that your actions have good outcomes wherever possible. This could include advancing knowledge that is of benefit to humanity (for example, by using human remains for scientific research) or respecting the wishes of an individual (for example, by returning the remains of their relative for the burial).
|Under International Law are Museums obliged to strive to be better collaborative custodians of world heritage? – The analytical starting point is does such a duty exist, and if it does what does it require? The arguments which support the existence of such a duty include:
|Logic – The logical corollary of the proposition that a National Museum owes a duty to preserve art and cultural heritage treasures for the ‘benefit of all mankind’, is that such institutions also owe a wider duty to strive to be better ‘collaborative custodians’ of world heritage.|
|‘Fiduciary Theory of Art’ – The author’s thesis is that when art [‘A’] is of cultural significance, i.e. is recognised as being cultural property [‘CP’], it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor [‘P’] who owns A that is also CP, is also a custodian of the object [‘CPO’]. In which case, custodial duties attach to possession, e.g. a duty to preserve and protect the cultural property [‘DP’]. If P is a state, these duties extend to protecting the CP in the event of war. Therefore, DP is a quintessentially fiduciary duty. The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments. It therefore follows, that a National Museum as the agency of a state, owes fiduciary duties in relation to CP.|
|The philosophy of International Law – Because cultural identity is considered to part of human dignity, it is linked to human rights, i.e. cultural heritage is of crucial importance to individuals and communities as part of their identity. Since cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.
‘The cultural heritage of a people is not limited to the tangible expressions of art, architecture, religion, poetry, or writing in general but also includes its intangible heritage, which is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity. More generally, cultural heritage includes the expressions of the people’s spirituality, and the body of values which give meaning to life. … The real target of most acts of intentional destruction of cultural heritage is therefore, not the heritage in itself but the human communities for which such a heritage is of special significance.’ (‘Mens Rea of Intentional Destruction of Cultural Heritage’, by Federico Lenzerini, Chapter 4 of the Oxford Handbook of International Cultural Heritage Law’ (2020), Oxford University Press, page 77).
There is also a relationship between the human environment, development and culture. The commentary to the preamble to the Draft International Covenant on Environment and Development (5th edition, IUCN Switzerland 2015) states:
‘All civilisations spring from and are shaped by the quality of their surrounding natural elements [and that] the histories of different peoples are inseparable from the natural conditions in which they have lived for millennia. … Art, literature and science cannot be understood, or even imagined, without acknowledging the influence of nature and its components. Thus, cultural diversity, like biological diversity, emerges from the various ecosystems.’
|For further research – see the Art Law Centre – University of Geneva: Bienvenue sur ArThemis — Centre du droit de l’art (unige.ch)]|
Table – ‘Issues for the Mediator to discuss during a Pre-Mediation Zoom Call about preparatory steps and agreeing ‘criteria’ i.e. applicable Principles of Repatriation’
|Inventory – Has a list and index been made of the artefacts [‘A‘] which an institution e.g. a museum [‘M’] is holding that are being claimed?|
|When and how were the artefacts acquired? – i.e. how did they get there.|
|Why is M holding A – i.e. what is A doing in the possession of M? e.g. is A even on display, and if so then in what context (e.g. in a cabinet of ‘curiosities’ / ‘spoils of war’), and for what purpose (e.g. study and research)?|
|What connection does the Claimant [‘C’] have to ‘A’ e.g. ancestral lineage i.e. because A is part of C’s living culture.|
|Why is possession of A of importance to C? e.g. to keep their culture alive, because they can only discover, decode and transmit the sacred and artistic/artisan knowledge manifest/recorded in or symbolically represented by A by visiting M (i.e. the foreign museum where the cultural objects are situated) – which may not be accessible. Note that in the case of a request for repatriation of human remains this may be based upon a belief that where human remains are disturbed and removed, the perpetual chain of reincarnation from the spirit wells of specific groups is disrupted, e.g. the Aborigine belief that, ‘The dead must be returned to Mother Earth where the spirit becomes one with the land and the people themselves.’ (June Lesley Fogarty Director of the Aboriginal Arts Unit) – see: Aboriginal Human Remains repatriated by Glasgow City Council (returningheritage.com).|
|How important is A to C? e.g. because A is part of C’s identity/genetic ‘cultural’ blueprint, and therefore A is of unique significance to C.|
|What is the cultural home of A? [‘H’] – which is linked to the concepts of:
· a ‘Lex Originis’;
· the ‘legitimacy’ of a place where A should be located (‘Patrie’ – i.e. the cultural ‘homeland’ of A);
· the applicable law being that of H – and what state law applies in default if the law of H is not a unified, i.e. recognised body of law in jurisprudence;
· the sovereignty of indigenous peoples and their human rights; and
· the concept of the creation for public display, i.e. in a museum/gallery, of a ‘unity of art.’
|What legal framework applies to the making of a decision by M? i.e. a statute (e.g. the British Museum Act 1963), terms of governance contained in a trust deed, a state law e.g. Vatican Law.|
|What Code(s) of Ethics and Museum Guidance apply to M.|
|Is M under a wider moral/’best practice’/ and possibly ‘fiduciary duty’ under International Humanitarian Law, to strive to be a better ‘collaborative custodian’ of objects of cultural importance to an indigenous people? – This is linked to the potential for the participants in the Mediation [i.e. C and M] to both obtain valuable benefits, and to the prospect of a culturally rewarding future relationship.|
|Is M’s freedom to return A to C constrained by a legal prohibition against alienability? – i.e. does the ‘principle of inalienability’ apply to the making of a disposition of A by M?|
|Are there exceptions? – This is connected to the negotiation of an agreement to enter into arrangements which de facto return A to C, e.g. an indefinite loan of C to A. This is also connected to the imposition by M on C of conditions for returning A (e.g. public display), and to the blunt rebuke by C that, ‘what we do with sacred property you took from us after it has been returned, is frankly none of your business.’|
|What are M’s counter-arguments? – e.g. preservation, study, access, and that spreading the cultures and histories of the nations of the world, as represented by their art, engenders understanding, which is a platform for building/maintaining peaceful and mutually healthy/prosperous co-existence – i.e. that the dissemination and sharing of cultural information and artefacts is of benefit to all mankind, and therefore should be accessible to all mankind.|
|What larger ‘relationship’ issues are in play? e.g. righting a historical wrong through a process of Cultural Heritage Diplomacy involving truth and reconciliation – NB restitution is always part of a wider political dimension involving states.|
|So, what is the larger or ‘big’ picture/dimension to the claim/dispute?|
|What applications can be made by Trustees for guidance, directions and a ‘blessing’, i.e. to the Court/Charity Commissioners, so that they may exercise their powers in accordance with their duties, i.e. what legal and administrative tools are available to M to act lawfully in doing a deal?|
Table – ‘Tools & Precedents’
|The ‘National importance’ test.
|Constitution of Australia.|
|The ‘National importance’ test.
‘By the 19th century it is quite clear that the prerogative of treasure trove in England and in Ireland continue to be exercised on behalf of the Crown by the Government of Great Britain and Ireland but for a purpose wholly different from that which had been its historical origin. Its purpose now clearly was the retention by the state, for the common good, of antiquarian objects of interest and value, which formed part of the heritage of the People. … One of the most important national assets belonging to the People is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history. If this be so, then it would appear to me to follow that [there] should be an ownership by the state of objects which constitute antiquities of importance which are discovered and which have no known owner. It would appear to me to be inconsistent with the framework of the society sought to be created and sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them.’ (Webb v. Ireland  Irish Reports 353 (High Court), 373 (Supreme Court), per the Chief Justice at ).
|Long term loan.||Hebrew Manuscripts in the Vatican Archives.|
|In evaluating the request for repatriation on its merits Glasgow City Council eventually developed a strategy which consisted of five criteria:
(i) The status of those making the request i.e. their right to represent the community to which the object(s) originally belonged.
(ii) The continuity between the community which created the object(s) and the current community on whose behalf the request was made.
(iii) The cultural and religious importance of the object(s) to the community.
(iv) How the object(s) have been acquired by the museum and their subsequent and future use.
(v) The fate of the object(s) if returned.
The procedure agreed to process the request included:
(a) Briefing by an academic expert in the provenance and historical background of the objects in question.
(b) Consultation with the Council’s legal department – who advised that there was no obligation in law to return the objects in question and that the Council had the legal power to transfer ownership of the objects if it wished.
(c) Consultation with members of the museum community.
‘If museums represent our better selves, our humane values, then we have to admit to the possibility that there may be other values, which are more important than that of possession and preservation. Possession in itself cannot be an absolute value, taking precedence over all others. And if our values lead us to preserve an object because of what it tells us about the history of a particular human group, then it is inconsistent not to give that group the respect of at least taking their views seriously. The objects we preserve and the stories they tell reflect our values, what we stand for, how we wish to see ourselves, what we wish to bring with us into the future. A related argument here is that to give one object back creates a precedent and the floodgate will be opened up. The City Council has rejected this argument. It cannot be right to say, the case for returning this group of objects is just, but it cannot be done because future unjust cases may be encouraged. Values are above all a matter of choice, and for values to be real we must continually make the necessary choices. In Glasgow our vision of museums is not just as dusty storerooms but as places where urgent issues of personal and communal meaning and identity can be explored and renegotiated.’ (Mark O’Neill, Head of Arts and Museums for Glasgow City Council, who at the time was Head of Curatorial Services).
See also ‘Restitution and Repatriation: Guidelines for Good Practice’ published by the now defunct Museums and Galleries Commission in 2000 and Restitution and Repatriation: A Practical Guide for Museums in England | Arts Council England.
|Lakota Ghost Dance Shirt.|
|Lewis Chess Pieces.|
|Stone of Destiny.|
|Venus of Cyrene.|
|International recognition that states should assist one another to prevent the unlawful removal of cultural objects including antiquities.||Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd (CA).|
|Split legal and beneficial ownership using a trust, i.e.
(i) Legal title to the PM is vested in both British Museum and Greek National Trustees.
(ii) The PM is beneficially owned by (a) Greece; and (b) Mankind.
A ‘trust’/’fiduciary’ custodial solution might for example involve the transfer of the PM to a bespoke trust created by statute for the benefit of: (i) the people of Greece; and (ii) mankind, involving the appointment of both BM and Greek T‘s, and the conferring of a power on the T‘s to deliver the PM to Greece for permanent display.
In order to create a valid trust there are technical drafting challenges to overcome, Some of these challenges may be overcome by: (i) skilful drafting; (ii) statute; and if necessary (iii) by choosing a governing law other than English Law, using e.g. a Guernsey Purpose Trust as a vehicle.
|Parthenon Marbles [‘PM’] – i.e. a possible solution?
|Provision of a replica.|
|Treaty of Tolentino.||The fruits of war: how Napoleon’s looted art found its way home (theartnewspaper.com)|
|UK Spoliations Committee.|