Art & Cultural Heritage Law

  • My next book – ‘Cultural Heritage Law’.
  • Issues I will explore & discuss in the book.
  • Research Bibliography.
  • My Essay – ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’

My next book

In November 2024 I am starting work on the writing of a new book – ‘Cultural Heritage Law.’

My aim is to write a handbook for students & practitioners about Cultural Heritage Law & Practice.

See also:

Issues I will explore & discuss in the book

My research interest is the intersection between:

(i)    Cultural Heritage Law.

(ii)   International Humanitarian Law.

(iii)  Distributive Justice.

(iv)  Natural Law.

(v)   The jurisdiction & powers of the International Court of Justice (‘ICJ’) & of other Tribunals.

(vi) Mediation in Cultural Property disputes.

‘One can safely conclude that the ICJ has given consideration, although with varying degrees, to cultural heritage and cultural heritage arguments and thus has contributed to the development of international cultural heritage law. Generally speaking, Parties in dispute before the ICJ Have not leveraged strong cultural heritage law arguments. As a consequence, the ICJ itself has recognised relevance to cultural heritage arguments only when these have been coupled with other types of argument, such as access to natural resources or the immunity of historical monuments used for public purposes. Nonetheless, the court, together with the PCIJ, has marked the emergence and expansion of international cultural heritage law. It has elaborated relevant concepts such as the one of ‘community’, and it has corroborated the relationship between cultural heritage and other fields of international law, such as environmental law and human rights. Moreover, it has allowed for the borders of cultural Heritage law to expand, and it has somehow strengthened the ‘international’ approach to cultural protection and management. In this position, the ICJ has engaged in a ‘dialogue’ with other international tribunals.’ (‘The International Court of Justice and Cultural Heritage – International Cultural Heritage Law Through the Lens of World Court Jurisprudence?’ by Gabriele Gagliani, published in ‘Intersections In International Cultural Heritage Law’ (2020), edited by Anne-Marie Carstens & Elizabeth Varner.)

As this quote illustrates, there is a wide range of potential cultural heritage claims/applications which have been/could be determined by the ICJ, that are linked to the protection under International Humanitarian Law (‘IHL’) of:

(i)    a ‘community’;

(ii)   a ‘society’;

(iii)  an ‘indigenous population’;

(iv)  their ‘cultural property’;

(v)   their ‘language’ and ‘intangible cultural heritage’; and

(vi)  the ‘environment’,

during an armed conflict, i.e. collectively, as ‘cultural heritage.’

However, there is a gap in the published literature about:

(a) What claims/applications can be made.

(b) Procedure in the ICJ in cultural heritage claims – including ‘jurisdiction’ and ‘standing’.

(c) The powers of the court, i.e. what orders the ICJ can make (including restitution and compensation)/opinions it can provide.

(d) Enforcement of orders through the United Nations Security Council.

(e)  The availability and operation of other international cultural heritage dispute tribunals, their procedure, and practice.

(f) Institutional and ad hoc mediation of cultural property disputes, i.e. for the return/restitution of stolen art/misappropriated cultural property, e.g. the Parthenon Marbles dispute, see the ‘Mediation of Cultural Property Disputes’ page of this website.

In writing this book, one of my aims is to add to knowledge by filling this gap in the literature.

In the book I will also discuss and explore:

(i) The intersection and nexus between jus cogens and erga omnes under International Humanitarian Law, including the absolute prohibition against genocide. As I explain below, where such a nexus can be shown to exist, it is a devastating weapon in the trial advocate’s armoury in proceedings before the International Court of Justice.

(ii) The existence of ‘fiduciary’ duties owed by states under International Law to both their own people and to humanity, i.e. to the international community as a whole – the ‘Dual Commission’ principle.

(iii) The case for the establishment of an International Cultural Heritage Court by either the UN or BRICS.

States can respond to breaches of obligations ‘erga omnes’ by instituting proceedings in the International Court of Justice (‘ICJ’).

Where under International Law a war crime or a crime against humanity (i.e. against humanity as a whole) e.g. genocide is also a ‘jus cogens’ violation, there can be no legal justification whatsoever for the crime.

So, at trial:

(a) ‘erga omnes’ – which on the factual matrix may arise out of a breach of ‘fiduciary duty’ (see below); and

(b) ‘jus cogens’,

are powerful arguments in discharging the burden proof, because if the other threshold issues including ‘actus reus’ and ‘intent’ are proven, there is no legal defence whatsoever.

See also the material assembled at www.diplomaticlawguide.com

Regarding the existence of ‘fiduciary duties’ under International Humanitarian Law:

‘Verdross argued that states bore an imperative duty under international law to undertake certain moral tasks. Lauterpacht asserted that peremptory norms derive their unique legal authority from two interrelated sources – international morality and general principles of state practice. In Lauterpacht’s view, “overriding principles of international law,” [which in the author’s submission includes a duty by an occupier to protect ancient public monuments located in the occupied territory – subject to the doctrine of military necessity], “may be regarded as constituting principles of international public order (ordre international public). These principles … may be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognised by civilised nations which the ICJ is bound to apply [under] it statute.” … Kant’s theory of international law ultimately relies on his social contract theory of the state. [The] theory we defend is that the state and its institutions are fiduciaries of the people subject to state power, and therefore a state’s claim to sovereignty, properly understood, relies on its fulfilment of a multifaceted and overarching fiduciary obligation to respect the agency and dignity of the people subject to state power. One of the requirements of this obligation – is compliance with jus cogens. Put another way, the fiduciary principle governs the relationship between the state and its people, and this principle requires the state to comply with peremptory norms. … Fiduciary relations arise from circumstances in which one party (the fiduciary) holds discretionary power of an administrative nature over the legal or practical interests of another party (the beneficiary), and the beneficiary is  peculiarly vulnerable to the fiduciary’s power in the sense that she is unable, either as a matter of fact or law, to exercise the entrusted power. … The fiduciary’s power is purposive in that it is held or conferred for limited purposes, such as furthering exclusively the equitable interests of a trust’s beneficiary.  And finally, the power is institutional in that it must be situated within a legally permissible institution.  … The law seeks to dissolve rather than regulate relationships of incorrigible domination. Beneficiaries are particularly vulnerable in that, once in a fiduciary relationship, they generally are unable to protect themselves or their entrusted interests against an abuse of fiduciary power. … Locke had famously asserted that legislative power is “only a fiduciary power to act for certain ends” and that “there remained still in the people a supreme power to remove or alter the legislators, when they find the legislative act contrary to the trust reposed in them. In other words, popular sovereignty denotes that the state sovereign powers belong to the people, and so those powers are held in trust by the rulers on condition that they be used for the people’s benefit. Popular sovereignty thus implies that the state and its institutions are fiduciaries of the people, for their justification rests exclusively on the authority they enjoy the governance of the people. … [It] is an entity’s assumption of state powers, not de jure statehood per se, that triggers the fiduciary principle. Any entity that assumes unilateral administrator power over individuals bears a fiduciary obligation to honour the basic demands of dignity, including the peremptory norms of international jus cogens. … [Implicit] within the state’s obligation to secure legal order is another independently sufficient condition for the identification of peremptory norms: the rule of law. … Public corruption offends the state subject fiduciary relation irrespective of whether the corrupt acts are large or small in scope: a low-level public official who … Accepts a petty bride violates the peremptory norm against corruption, just as a head of state violates jus cogens by draining the state treasury for private gain. The prohibition against corruption thus illustrates the important principle that the scope of jus cogens is not limited exclusively to acts such as military aggression. … Violations of peremptory norms .. are necessarily wrongful and legally impermissible on any scale. …

Legal scholars have traced the fiduciary concept as far back as the Code of Hammurabi in ancient Mesopotamia … and have shown that concepts of fiduciary obligation informs not only Roman law … But also Islamic law. … Indeed, the modern Anglo-American law of trust owes a considerable debt to the waqf from Islamic law – an endowment created by a donor for use by designated beneficiaries and under the administration of the trustee – which was introduced to England by Franciscan friars returning from the Crusades in the 13th century.’ (Criddle, Evan J. & Evan Fox-Decent A Fiduciary Theory of Jus Cogens, The Yale Journal of International Law (2009) Vol 34: 331-387).

I will also examine and discuss the case for the establishment of an International Cultural Heritage Court by either the United Nations or BRICS.

As I observe in my essay ‘Mediating Cultural Property Disputes’ on the ‘Mediating Cultural Property Disputes’ page  of this website:

‘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.
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.’

Is this tension capable of reconciliation by the determination of a judge sitting in an International Cultural Heritage Court established by either the UN or BRICS?
Unlike a common law ‘domestic’ judge, such an international judge could:

(i) Apply principles of International Cultural Heritage Law.

(ii) Espouse evolutive interpretations of International Law Treaties.

(iii) Consider factors external to the law such as: history; morality; ‘practical ethics’; and peculiar local customs, i.e. after hearing expert academic opinion and evidence.

(iv) Exercise judicial discretion in order to ignore the letter of Treaty law where it proves to be unjust or immoral, thereby creating a new body of international law jurisprudence, i.e. of ‘equitable’ principles based upon: (a) core tenets of ‘natural law’, and ‘distributive justice’; and (b) a ‘re-imagining’ of the core principles of international law evolved centuries ago by western legal philosophers, in order to satisfy the ‘cultural‘ needs of what is now a globalised ‘civilization’/’community’ in a modern, post-colonial, and geo-politically ‘multi-polar’ era?
Could such an international court become an incubator and instrument of ‘creative’ co-operation between states, in contrast to being a blunt and ‘politicised’ tool of binary competition for scarce resources between states in the Global North v. states in the Global South?

‘The current legal regime does not always manage to accommodate the diverse and competing interests struggling with each other in the realm of cultural heritage. In addition, while ADR methods are to be preferred, it is rather unlikely that all cultural heritage controversies can be effectively resolved through these mechanisms. Furthermore, litigation appears inadequate, lengthy and costly. Overall, these problems support the case for the establishment of a permanent international court. One can argue that until there is a supranational body empowered to resolve disputes and penalise uncooperative nations, unethical stakeholders and criminals, persuasion or appeals to cooperation will not prevail if it is not in the interests of the stakeholder concerned.’ (‘The Settlement Of International Cultural Heritage Disputes’, by Alessandro Chechi (2014), Oxford University Press, pp. 204 & 205.)

Research Bibliography

Albertini, Leon Battista (1972) On Painting, Penguin.

Aust, Anthony (2005) Handbook Of International Law, Second Edition, Cambridge University Press.

Aust, Anthony (2013) Modern Treaty Law and Practice, Third Edition, Cambridge University Press.

Bailliet, Cecilia M. (editor) (2020) Research Handbook on International Law and Peace, Edward Elgar Publishing Limited.

Bandle, Anne Laure (2016) The Sale Of Misattributed Artworks And Antiques At Auction, Edward Elgar.

Berger, John (1972) Ways of Seeing, Penguin.

Besong , Brian (2018) An Introduction to Ethics: A Natural Law Approach, Cascade Books.

Besson, Samantha & John Tasioulas (2013) The Philosophy of International Law, Oxford University Press.

Boas, Gideon (2012) Public International Law – Contemporary Principles and Perspectives, Edwar Elgar.

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.

Carstens, Anne-Marie & Elizabeth Varner (2020), Intersections In International Cultural Heritage Law, Oxford University Press.

Carter, Jennifer (2022). Human Rights Museums: Critical Tensions Between Memory and Justice, Routledge.

Carty, Anthony (2017) Philosophy of International Law, Second Edition, Edinburgh University Press.

Catsambis, Alexis, Ben Ford & Donny L. Hamilton Editors (2011) The Oxford Handbook of Maritime Archaeology, Oxford University Press.

Chechi, Allesandro (2014) The Settlement Of International Cultural Heritage Disputes, Oxford University Press.

Clack, Timothy & Mark Dunkley (2022) Cultural Heritage in Modern Conflict, Past, Propaganda, Parade, Routledge.

Crawford, James & Martti Koskenniemi Editors (2012) The Cambridge Companion To International Law, Cambridge University Press.

Crawford, Emily & Alison Pert (2024) International Humanitarian Law Third Edition, Cambridge University Press.

Criddle, Evan J. & Evan Fox-Decent (2016) Fiduciaries of Humanity – How International Law Constitutes Authority, Oxford University Press.

Criddle, J., Evan Fox-Decent, Andrew S. Gold, Sung Hui Kim & Paul B.Miller (2018), Fiduciary Government, Cambridge University Press.

Criddle, Evan J., Paul B. Miller and Robert H. Sitkoff (2019) The Oxford Handbook of Fiduciary Law, Oxford University Press.

Crisp, Roger (2015) The Oxford Handbook of The History Of Ethics, Oxford University Press.

D’Alleva, Anne (2012) Methods & Theories Of Art History Second Edition, Laurence King Publishing.

Davies, Stephen (2016) The Philosophy Of Art Second Edition, Wiley Blackwell.

de Chazournes, Laurence Boisson, Marcello G. Kohen & Jorge E. Vinuales (2013) Diplomatic and Judicial Means of Dispute Settlement, Martinus Nijhoff Publishers.

Djefal, Christian (2016) Static and Evolutive Treaty Interpretation, Cambridge University Press.

Drazewska, Berenika (2021) Military Necessity in International Cultural Heritage Law, Brill Nijhoff.

Dromgoole, Sarach (2014) Underwater Cultural Heritage and International Law, Cambridge University Press.

Duke, George & Robert P. George Editors (2017) The Cambridge Companion To Natural Law Jurisprudence, Cambridge University Press.

Durbach, Andrea and Lucas Lixinski (2019) Heritage, Culture And Rights – Challenging Legal Discourses, Hart.

Eldridge, Richard (2014) An Introduction to the Philosophy of Art, Cambridge University Press.

Espósito, Carlos and Kate Parlett, Editors (2023) The Cambridge Companion to the International Court of Justice, Cambridge University Press.

Fentiman, Richard (2010) International Commerical Litigation, Oxford University Press.

Fleck, Dieter, Editor (2021) The Handbook of International Humanitarian Law 4th ed, Oxford University Press.

Francioni, Francesco and Ana Filipa Vrdoljak, Editors (2020) The Oxford Handbook of International Cultural Heritage Law, Oxford University Press.

Fox-Decent, Evan (2011) Sovereignty’s Promise – The State as Fiduciary, Oxford University Press.

French, Duncan, Matthew Saul and Nigel D. White, Editors 2012) International Law and Dispute Settlement – New Problems and Techniques, Hart.

Friedlander, Max J. (1942) On Art And Connoisseurship, Beacon Press.

Gardiner, Richard (2015) Treaty Interpretation, Oxford University Press.

Goold, Benjamin J. & Liora Lazarus (2019) Security And Human Rights, Hart Publishing.

Gozzi, Gustavo (2019) Rights and Civilizations – A History and Philosophy of International Law, Cambridge University Press.

Grando, Michelle T. (2009) Evidence, Proof, and Fact-Finding in WTO Dispute Settlement, Oxford University Press.

Hansen Peo and Stefan Jonsson (2015) Eurafrica – The Untold History Of European Integration And Colonialsim, Bloomsbury.

Herman, Alexander (2021) Restitution – The Return of Cultural Artefacts, Sotheby’s Institute of Art.

Herman, Alexander (2023) The Pathenon Marbles Dispute, Institute of Art & Law.

Hollis, Duncan B. (2012) The Oxford Guide to Treaties, Oxford University Press.

Khalidi, Rashid (2020) The Hundred Years’ War On Palestine – A History of Settler Colonial Conquest and Resistance, Profile Books.

Kim, Jihon (2022) Non-State Actors in the Protection of Cultural Heritage: An Analysis on Their Rights, Obligations, and Roles, Springer-Verlag.

Kolb, Robert (2016) Theory of International Law, Bloomsbury.

Kolb, Robert (2017) Peremptory International Law Jus Cogens – A General Inventory, Bloomsbury.

Kolb, Robert (2017) The Law Of Treaties, Edward Elgar.

Koopmans, Sven M.G. (2008) Diplomatic Dispute Settlement – The Use of Inter-State Conciliation, T.M.C Asser Press.

Koopmans, Sven M.G. (2018) Negotiating Peace – A Guide To The Practice, Politics, And Law Of international Mediation, Oxford University Press.

Lafollette, Hugh (2010) The Oxford Handbook of Practical Ethics, Oxford University Press.

Lammy, David (2020) Tribes: A Search for Belonging in a Divided Society, Constable.

Lefebvre, Alexandre and Melanie White (editors) (2012) Bergson, Politics, And Religion, Duke University Press.

MacIntyre, Alasdair (2001) Whose Justice? Which Rationality?, Duckworth.

MacIntyre, Alasdair (2022) After Virtue, Bloosmbury.

Malik, Kenan (2014) The Quest for a Moral Compass: A Global History of Ethics, Atlantic Books.

Malik, Kenan (2023) Not So Black and White: A History of Race from White Supremacy to Identity Politics, Hurst Publishers.

May, Larry (208) The Cambridge Handbook of the Just War, Cambridge University Press.

Mearsheimer, John J. (2014) The Tragedy Of Great Power Politics (Updated Edition), Norton.

Mearsheimer, John J. (2019) The Great Delusion: Liberal Dreams and International Realities (Henry L. Stimson Letures),Yale University Press.

Mearsheimer, John J. (2023) & Sebastian Rosato How States Think: The Rationality of Foreign Policy, Yale University Press.

Merrill, John and Eric De Brabandere (2022) Merrill’s International Dispute Settlement, Cambridge University Press.

Meyer, Thomas, Jose de Sales Marques & Marion Telo (2021) Towards a New Multilateralism – Cultural Divergence and Political Convergence?, Routledge.

Mirzoeff, Nicholas (2015) How to See the World, Penguin.

Nafziger, James A.R. & Robert Kirkwood Paterson Editors (2014) Handbook on the Law of Cultural Heritage and International Trade, Edward Elgar.

Napolitano, Andrew P. (2023) Freedom’s Anchor: An Introduction To Natural Law Jurisprudence In American Constitutional History, Academica Press Washington-London.

Natziger, James A.R., and Robert Kirkwood Paterson (2014) Handbook on the Law of Cultural Heritage and International Trade, Edward Elgar.

Odon, Daniel Ovo (2023) Armed Conflict and Human Rights Law: Protecting Civilians and International Humanitarian Law, Routledge.

Osthagen, Andreas (2022) Ocean Geopolitics: Marine Resources, Maritime Boundary Disputes and the Law of the Sea, Edward Elgar Publishing Limited.

O’Keefe, Patrick J. (2014) Shipwrecked heritage – A Commentary On The UNESCO Convention On Underwater Cultural Heritage, Second Edition, Institute of Art & Law.

O’Keefe, Patrick J. (2017) Protecting Cultural Objects: Before And After 1970, Institute of Art & Law.

Olsaretti, Serena, Editor (2018) The Oxford Handbook of Distributive Justice, Oxford University Press.

Peak, Thomas (2021) Westphalia From Below: Humanitarian Intervention and the Myth of 1648, C Hurst & Co Publishers Ltd.

Poljanec, Kristijan (2023) Legal Theory Of Auction, Routledge.

Preziosi, Donald (2009) The Art of Art History – A Critical Anthology, Oxford University Press.

Prowda, Judith B. (2013) Visual Arts And The Law – A Handbook For Professionals, Lund Humphries in association with Sotheby’s Institute of Art.

Ramsbotham, Oliver, Tom Woodhouse & Hugh Miall (2021) Contemporary Conflict Resolution, Fourth Edition, Polity.

Roberts, Sir Ivor (2018) Satow’s Diplomatic Practice, Seventh Edition, Oxford University Press.

Robertsom, Iain & Derrick Chang (2008) The Art Business, Routledge.

Roodt, Christa (2015) Private International Law, Art and Cultural Heritage, Edward Elgar.

Ruys, Tom and Nicolas Angelet with Luco Ferro, Editors (2019) The Cambridge Handbook of Immunites And International Law, Cambridge University Press.

Sassòli, Marco (2024) International Humanitarian Law – Rules, Controversies, and Solutions to Problems Arising in Warfare Second Edition, Edward Elgar.

Saul, Ben & Dapo Akande (2020) The Oxford Guide To International Humanitarian Law, Oxford University Press.

Shafer-Landau, Russ (2013) Ethical Theory – An Anthology, Wiley-Blackwell.

Sheppard, Anne (1987) Aesthetics – An introduction to the philosophy of art, Oxford University Press.

Singer, Peter (1993) A Companion To Ethics, Blackwell Publishing.

Spencer, Ronald D. editor (2004) The Expert versus the Object – Judging Fakes And False Attributions In The Visual Arts, Oxford University Press.

Strasser, Freddie & Paul Randolph (2004), Mediation – A Psychological Insight into Conflict Resolution, Contunuum.

Stokes, Simon (2019) Digital Copyright Law And Practice Fifth Edition, Hart.

Stokes, Simon (2021) Art And Copyright Third Edition, Hart.

Tasioulas, John Editor (2020) The Cambridge Companion To The Philosophy Of Law, Cambridge University Press.

Tams, Christian J. & Antonios Tzanakopoulos (2012), Basic Documents on The Settlement Of International Disputes, Hart Publishing.

Tan, Floris (2023) The Duty to Investigate in Situations of Armed Conflict: An Examination under International Humanitarian Law, International Human Rights Law, and their Interplay, Brill Nijhoff.

Torremans, Paul and James J. Fawcett, Editors (2017) Cheshire, North & Fawcett – Private International Law, Fifteenth Edition, Oxford University Press.

Tsagourias, Nicholas and Alasdair Morrison (2023) International Humanitarian Law – Cases, Materials And Commentary, Cambridge University Press.

Vasari, Giorgio (1991) The Lives of the Artists, Oxford University Press.

Vivet, Emmanuel Editor (2019) Landmark Negotiations from Around the World – Lessons for Modern Diplomacy, intersentia.

Weatherall, Thomas (2015) Jus Cogens – Interntional Law and Social Contract, Cambridge University Press.

Welsh, Jennifer (2016) The Return Of History – Conflict, Migration, and Geopolitics in the Twenty-First Century, Anansi.

Wilde, Ralph (2014) International Territorial Administration – How Trusteeship and the Civilizing Mission Never Went Away, Oxford University Press.

Wilson, Martin (2022) Art Law And Business Of Art, Second Edition, Edward Elgar Publishing.

Yarwood, Lisa (2012) State Accountability under International Law – Holding states accountable for a breach of jus cogens norms, Routledge.

Zhong, Hui (2018) China, Cultural Heritage And International Law, Routledge.

Zwier, Paul.J. (2013) Principled Negotiation And Mediation In The International Arena, Cambridge University Press.

My Essay – ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’

(Written and submitted for the Diploma in Art Law course which I undertook at the Institute of Art & Law in London between 2020 and 2023. The Diploma was awarded on 13 December 2023).

Introduction

In this essay the author argues that:

  • Cultural Heritage 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:

  1. the deliberate destruction of cultural heritage as a strategy by an invading force in war and occupation;
  2. ethnic cleansing; and
  3. genocide.

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.

Conclusion 

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]

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[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):-

‘Preamble …

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:

  1. 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.