Mediation of Art & Cultural Heritage Disputes

I am developing the Mediation of Art & Cultural Heritage Disputes as a practice niche.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the eminent Art Historian, Pandora Mather-Lees  (www.artonsuperyachts.com) entitled, ‘Art & Heritage Assets – Duties of Trustees’. I am also a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art LawThe provisional title of my three Diploma essays, which I am planning to write during the second half of 2022 is:

  • ‘Fiduciary Duties of Trustees of Art & Cultural Heritage Assets.’  
  • ‘The protection of Cultural Heritage under International Humanitarian Law’ (see the ‘Fiduciary Theory of Art’ essay below).
  • ‘The IHT Heritage Property scheme.’ 

I have been commissioned by Trusts & Trustees (Oxford University Press), to write an in-depth article about the ‘Fiduciary Duties of Trustees of Art & Cultural Heritage Assets’, which I am co-writing with a leading academic at Cambridge University and an eminent Art Historian in London, for publication later this year or early in 2023. Work will begin on this writing project in August 2022.

‘Fiduciary Theory of Art’

  • Introduction.
  • Premise.
  • The nexus between International Humanitarian Law (‘IHL’) and classical fiduciary theory.
  • Are fiduciary principles and norms underlying IHL a tool in the negotiation of a peace process and agreement?
  • Use of a triangle of influence as a dynamic framework for developing a strategy to protect Cultural Heritage and to mediate a peace process and agreement.

Introduction

I have a degree in political science, and at Keele University was tutored in political theory. In those days, this required reading the original works (and translations) of the great thinkers who shaped political philosophy. Back then, as now, I rejected ideology, and was greatly influenced by the thinking of Michael Oakeshott, the author of ‘Rationalism in Politics.’ Michael Oakeshott on Rationalism in Politics – Foundation for Economic Education (fee.org)

That is why, I subscribe to ethics rather than ideology, and reject the idea that any man-made political theory can be a universal panacea, because every society and civilization is unique and different. Therefore, the idea that there is a practical and meritorious ‘one size fits’ all model of civil society, is inherently flawed as a political design. However, do universally recognised ‘fiduciary’ principles of governance and behaviour exist, based upon shared values and interests, e.g. protecting the environment?

I believe that they do, and while politics is not my profession, I have an  academic research interest in the:

(i) existence of ‘Fiduciary Principles for the Protection of Cultural Heritage under International Humanitarian Law’, and

(ii) practical application of these principles through a process of ‘Humanitarian Mediation’, see www.diplomaticlawguide.com.

The foundation of the theory I advance, is the idea that states and their governments are fiduciaries of humanity, and therefore of civilization, under both classical fiduciary theory and International Law.

In this essay, I will argue that universally recognised fiduciary principles for the protection of Cultural Heritage exist under International Law (in particular International Humanitarian Law [‘IHL’], and cohere, as an ethical foundation for the development of an integrated strategic framework for the protection of Cultural Heritage in a conflict zone, and its implementation though a process of mediation. This theory is based upon two ancient doctrines – Obligations ‘erga omnes’ and ‘jus cogens’.

This is linked to:

(i) Principles for the resolution through a process of multilateral ‘Cultural Heritage Diplomacy’, of the conflict between: (a) the ethical duty of a state and its governments to behave as a ‘fiduciary of humanity’; and (b) the political ambitions of hegemons and aspiring hegemons in an ‘offensive realism’ paradigm, see: John Mearsheimer – Offensive Realism in Brief | Genius, (i.e. the idea that states and governments can maximise their survival and gains through collaboration, instead of competition, which leads to confrontation and war).

(ii) The development of a unified and coherent international relations doctrine of Fiduciary Principled Behaviour’.

(iii) The mediation of a process and protocol for the preservation and protection of Cultural Heritage in a conflict zone by a politically non-aligned non-state actor (‘NSA’), as a foundation stone in the negotiation of a sustainable and enduring peace process and agreement, based upon recognition of shared values, interests, and practical ethics. See the ‘Humanitarian Mediation’ page at www.diplomaticlawguide.com.

Viewing future conflicts through the hard geo-political lens of the international relations doctrine of Offensive Realism’, the rules of war under IHL are not an effective deterrent to the destruction of Cultural Heritage, because as I argued in my blog ‘Is the pen mightier than the sword?’ (on the‘Humanitarian Mediation’ page at www.diplomaticlawguide.com), ‘if an invading sovereign state is a hegemon (or an aspiring hegemon) and the political logic underlying invasion is survival, i.e. because a hegemon must dominate, then [achieving its political objectives] requires the [deliberate] destruction of [Cultural Heritage].’ This is based upon what I labelled ‘Machiavelli’s Principle of Survival’).

Furthermore, the Achilles Heel of IHL is that to prosecute a violation you must be able to prove that the destruction of e.g. a monument, church or library was deliberately targeted. Even if you could prove this intent, there is no international police force to deter the destruction of Cultural Heritage before it happens, i.e. IHL has no political, diplomatic or military teeth.

Is there a better way of deterring the destruction of Cultural Heritage in war? Because of the significance and value of Cultural Heritage (which is often completely misunderstood by politicians, policy makers, diplomats and the military), I argue that there is, and that as part of this vision:

(i) The protection of Cultural Heritage needs to be integrated into a grand strategy in confronting and defeating an enemy during war – not least because of the paradox that when the enemy destroys part of a shared Cultural Heritage, it is destabilising its own society, because it is destroying part of: (i) its own identity; and (ii) a historical legacy owned by its own people. Therefore, its own people will inevitably ask – ‘who and what are we fighting for – the survival of a political elite (‘them’) or ourselves (‘us’).’

(ii) There is an urgent need to explore innovative and practical mechanisms that will allow non-state actors (NSA’s), to ensure the sustainable protection of Cultural Heritage. This is linked to the use of ‘Cultural Heritage Diplomacy’ as an instrument in the mediation of a peace process and agreement.

This essay is an incomplete and unfinished work in progress.

Premise

The premise of this theory is that in relation to both antiquities and cultural heritage (which includes landscape), there is a philosophical and legal nexus between:

(i)     the existence of ethical standards; and

(ii)    norms of behaviour.

Because formulating international ‘ethical’ duties of care and standards (i.e. framing and institutionalisation), that are capable of practical implementation, monitoring, and enforcement involves multi-lateral diplomacy, Mediation  is an incubation tool in Cultural Heritage Diplomacy. 

Norms are linked to the existence of fiduciary duties. This is an evolving question that is linked to the concept of global fiduciary governance in the form of treaty-making and multi-lateral co-operation. Therefore, ‘fiduciary’ norms and duties (whatever their source), are a potential building block in reforming the institutional architecture of International Humanitarian Law (‘IHL‘).

My theory 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, fiduciary duties attach to possession, e.g. a duty to preserve and protect the cultural property [‘DP’] (including an underwater archaeological site). If 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.

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.’

Since the Declaration of the UN Conference on the Human Environment, Stockholm, June 1972  (the ‘1972 Stockholm Declaration’) stated that ‘Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat which are now gravely imperilled …’, and this ‘special responsibility’ includes a duty to restore and maintain the integrity of the environment, the existence of fiduciary duties in relation to cultural heritage is linked to wider: environmental; strategic; legal; and policy issues, i.e. international law applying to activities on the high seas and on the continental shelf.

The big question is ‘What ethical standards of behaviour do these duties give rise to?’ 

This is linked to:

(i)      the protection and preservation of cultural property in a conflict zone and war, i.e. IHL; and

(ii)     illicit trafficking of art and antiquities.

The problem of illicit trafficking is further linked to:

(a)          organised crime;

(b)          money-laundering; and

(c)          terrorist financing.

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 nexus between International Humanitarian Law (‘IHL’) and classical fiduciary theory

Cultural Heritage is entwined with UNESCO’s broader mandate concerning human rights, the rule of law, development, and peace.

The intentional destruction of cultural heritage is an offence against humanity as a whole. 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.

While there are no rules establishing any particular consequences, the International Criminal Tribunal For The Former Yugoslavia emphasised in Prosecutor v. Jokić Case IT-01-42/1-S (Judgment) Trial Chamber (18 March 2004), paragraph 46, that in the interests of humanity as a whole:

‘since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site’.

Therefore, this may be considered as an aggravating factor in determining the length of any sentence in the prosecution of perpetrators.

‘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. Its characterization into different kinds (tangible, intangible, spiritual, etc), is simply descriptive and approximate, as one single piece of heritage may assume different meanings for a community, depending on the values it incorporates as perceived by the people concerned. For instance, a building which is considered of outstanding universal value – i.e. of exceptional significance for humanity as a whole – may at the same time have a special spiritual and social (intangible) significance for a given community, for which it greatly transcends the artistic architectural, aesthetic, and economic worth of the property concerned. It is exactly such a special spiritual and social significance which is usually targeted by the perpetrators of acts of intentional destruction of cultural heritage. Indeed, when they destroy a piece of cultural heritage, they demolish much more than an outstanding and irreplaceable object. They destroy the special – often spiritual – connection between that object and a human community, a fundamental element of the cultural and social identity of the latter, ultimately upsetting the community as such. 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.’ The Oxford Handbook of International Cultural Heritage Law’, pages 76-78.

In the 16th century, the strategist and political philosopher Niccollo 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 (‘Machiavelli’s principle of survival’) [‘MPS‘].

This reality has been denounced, much more recently by the United Nations Educational Scientific and Cultural Organization (UNESCO), affirming that ‘the loss of heritage during times of conflict can deprive a community of its identity and memory, as well as the physical testimony of its past. Those destroying cultural heritage seek to disrupt the social fabric of societies.” Intentional destruction of cultural heritage carries a message of terror and helplessness: it destroys part of humanity’s shared memory and collective consciousness: and it renders humanity unable to transmit its values and knowledge to future generations.’ 

‘Most recent cases of international destruction of cultural heritage have in common the circumstances that the target of perpetrators was not a particular community that they wanted to annihilate but rather the international community as a whole, with the exception of those who share their same ideals. As noted by Ana Vrdoljak, it is “cultural and religious diversity which the perpetrators find abhorrent and seek to expunge through such acts.” In all those cases, these crimes against culture assume the characterisation not only of crimes against persons but also and especially of crimes against the international community as a whole.’ The Oxford Handbook Of Cultural Heritage Law (2020), page 90.

The Second Protocol to the 1954 Hague Convention For The Protection of Cultural Property In The Event Of Armed Conflict enumerates five war crimes, known collectively as ‘serious violations’ of the Second Protocol, in respect of which States Parties owe a suite of obligations of suppression through their own or another willing States Party’s criminal law and courts.

In addition to the regime applicable to serious violations, the Second Protocol obliges States Parties to adopt such legislative, administrative, or disciplinary measures as may be necessary to suppress any use of cultural property in violation of the Convention or Second Protocol and any illicit export, other removal, or transfer of ownership of cultural property from occupied territory in violation of the Convention or Second Protocol.

Therefore, there is an unspoken connection between:

(i) the deliberate destruction of cultural heritage as a strategy by an invading force in war and occupation; and

(ii) genocide.

Are fiduciary principles and norms underlying  IHL a tool in the negotiation of a peace process and agreement?

If fiduciary principles are a cornerstone of International Humanitarian Law [‘IHL’], are they a potential negotiation tool in the mediation of a peace process and agreement?

There is a tension between the:
(a)      common ground [‘CG’] represented by a shared cultural heritage (including a set of ethical, philosophical and religious values/beliefs); and
(b)      political ambitions and objectives [‘PA’] that drive military strategy in war.

A logical corollary of Machiavelli’s Principle of Survival (as I have defined it above) [‘MPS‘], is that where CG exists between an invading state and an invaded state, that the invader must destroy part of itself in order to achieve its political objective(s). Analysing the psychology of an invasion through the lens of an ‘Offensive Realism’ paradigm  (see Mearsheimer, John J. (2014) The Tragedy Of Great Power Politics (Updated Edition), Norton in the Research Bibliography and my blog ‘Is the pen mightier than the sword?’ on the ‘Humanitarian Mediation’ page at www.diplomaticlawguide.com), and: Offensive realism – Wikipedia if an invading sovereign state is a hegemon (or an aspiring hegemon) [‘H’] and the political logic underlying invasion is survival, i.e. because a hegemon must dominate, then there is a paradox because PA requires the destruction of CG. In other words, to achieve its political objectives, H must destroy part of itself.

Therefore, invasion may be a political mistake. 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. 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.

If I am right, then the calculus of risk by H is a dynamic that can influence a decision by H to end a war in Mediation. In other words, the fiduciary principles and norms which underly IHL are a tool in the negotiation of a peace process and agreement. It is a powerful tool, because the impact of war on CG, may influence public opinion within H and weaken support for the war.

When the political strategy of H is to create a failed state [‘FS‘], after 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 arguably elevated to the level of being a threat to UK national security, becuase there is a risk of a failed state emerging within the UK’s neighbouring geo-political sphere of influence, i.e. in the heart of Europe. If the destruction of CH has the potential to politically destabilise H, then it follows that the UK 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, then this can open up a dialogue which includes the use of cultural heritage as a language of diplomacy, to negotiate a ceasefire and peace agreement. This is where a politically non-aligned non-state actor (‘NSA’) can play an instrumental diplomatic and mediation role.

Use of a triangle of influence as a dynamic framework to protect Cultural Heritage and to mediate a peace process and agreement

This brings me on the subject of the ‘Blue Shield’ triangle within a circle dynamic framework developed by Professor Peter Stone at Newcastle University, see:

Home – Blue Shield International (theblueshield.org)

A specific problem which the Blue Shield Triangle of influence (see below) appears to be designed to solve through a dynamic inter-disciplinary dialogue, is explaining the significance and relevance of Cultural Heritage to strategic policy makers, diplomats, their political masters, and the military. This where an expert NSA can provide pre-emptive support through a programme of education and training for the Diplomatic and Officer corp.

This is a subject that I am planning to discuss with Professor Stone later this year or early in 2023.

The specific question I will put to him when we meet is, ‘How can a NSA support the mediation of a process and protocol for the preservation and protection of  Cultural Heritage in a conflict zone?’

This is linked to my idea of ‘Cultural Heritage Safe Zones’ discussed in a blog on the Humanitarian Mediation page at www.diplomaticlawguide.com.

See also by blogs:

Applicable Law – Applicable law in an Art Authenticity dispute? | Carl’s Wealth Planning Blog

Copyright – Copyright protection of Art | Carl’s Wealth Planning Blog

Cultural Heritage Diplomacy – British cultural heritage diplomacy post-BREXIT | Carl’s Wealth Planning Blog

Deaccessioning – Deaccessioning of art & antiquities by a museum in breach of fiduciary duty | Carl’s Wealth Planning Blog

Does equity give teeth to international humanitarian law? – Does equity give teeth to international humanitarian law? | Carl’s Wealth Planning Blog

Moral Rights – Moral Rights of Artists | Carl’s Wealth Planning Blog

Protecting Cultural Heritage – Use of British soft power to protect Cultural Heritage in a conflict zone? – UK Review of Security, Defence, Development and Foreign Policy (March 2021) | Carl’s Wealth Planning Blog

Recognition of a foreign law asserting state ownership of antiquities – Recognition of a foreign law asserting state ownership of antiquities | Carl’s Wealth Planning Blog

The state as a fiduciary? – The state as a fiduciary? | Carl’s Wealth Planning Blog

Humanitarian Mediation – Diplomatic Law Guide

Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog

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Cases

Al Malki v. Reyes [2017] UKSC 61: https://www.supremecourt.uk/cases/uksc-2016-0023.html

Avrora Fine Arts Investment Ltd v Christie, Manson & Woods Ltd [2012]: http://www.bailii.org/ew/cases/EWHC/Ch/2012/2198.html

Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62: https://www.supremecourt.uk/cases/uksc-2015-0063.html

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Elidor Investments SA v. Christie’s Manson Woods Ltd [2009] EWHC 3600

Sotheby’s v Mark Weiss Ltd & Ors [2020] EWCA Civ 1570 (23 November 2020): Sotheby’s v Mark Weiss Ltd & Ors [2020] EWCA Civ 1570 (23 November 2020) (bailii.org)

Fairlight Art Ventures LLP –v- Sotheby’s (Claimant) & others – YouTube

Luxmoore-May v. Messenger-May Baverstock [1990] 1 All ER 1067

Okpabi and others (Appellants) v Royal Dutch Shell Plc and another [2021]

QSN Paper Co. Chartwell Shipping Ltd [1989] 2 SCR 683.

South Australia Asset Management Corp v. York Montague Ltd [1997] AC.191

Thomson v Christie Manson & Woods Ltd & Ors [2005]: http://www.bailii.org/ew/cases/EWCA/Civ/2005/555.html

Thwaytes v Sotherby’s [2015]: http://authenticationinart.org/pdf/artlaw/Thwaytes-v-Sothebys1.pdf

Statutes

Dealing in Cultural Objects (Offences) Act 2003: https://www.legislation.gov.uk/ukpga/2003/27/contents

Limitation Act 1980: https://www.legislation.gov.uk/ukpga/1980/58

The Artist’s Resale Right Regulations 2006: http://www.legislation.gov.uk/uksi/2006/346/contents/made

Sale of Goods Act 1979: https://www.legislation.gov.uk/ukpga/1979/54

Tribunals Courts and Enforcement Act 2007 (Part 6): https://www.legislation.gov.uk/ukpga/2007/15/part/6

Treaties

Council of Europe Declaration on Jurisdictional Immunities of State-Owned Cultural Property: https://www.coe.int/en/web/cahdi/news-cahdi/-/asset_publisher/FL6bNvghtkKV/content/declaration-on-jurisdictional-immunities-of-state-owned-cultural-property

The Granada Convention 1985 (The Convention for the Protection of Architectural Heritage in Europe): https://rm.coe.int/168007a087

The Hague Convention 1954 (The Convention for the Protection of Cultural Property in the Event of Armed Conflict): http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html

The Paris Convention 1954 (European Cultural Convention): https://www.coe.int/en/web/culture-and-heritage/european-cultural-convention

The Valetta Convention 1992 (The Convention for the Protection of the Archaeological Heritage of Europe): https://www.coe.int/en/web/culture-and-heritage/valletta-convention

The World Heritage Convention 1972: http://whc.unesco.org/en/conventiontext/