Cultural Heritage in a Post-Colonial WorldSymposium

Cultural heritage protection: a truly “global” legal problem?

In the course of recent years, international legal efforts to safeguard cultural heritage have undergone two seemingly contrasting developments: on the one hand, the general public has expressed an increasing concern with regards to the protection of cultural heritage from destruction and looting, first in light of the conflicts in the former Yugoslavia, Afghanistan and Iraq, and most recently as a result of the acts of the Islamic State in Iraq and Syria and Ansar Dine in Mali. On the other hand, UNESCO, the UN body with a mandate for the protection of cultural heritage, has faced increasing criticism not only from its member States, but also from civil society and academia. These critiques have been compounded by recent calls for the restitution of objects looted during the colonial period – which (although not necessarily always directed at UNESCO) indicate growing dissatisfaction amongst a range of societal actors with the current legal regime.

As such, whilst there have undoubtedly been beneficial developments which can be ascribed to cultural heritage law, there are a number of trends which call into question whether the legal regime is in need of adjustment, and perhaps whether cultural heritage protection is a matter for (international) law at all. These developments thus raise a fundamental question: is cultural heritage protection a truly ‘global’ legal problem, which requires the intervention of the international community by virtue of public international law?

General consensus would seem to indicate that cultural heritage needs to be protected. The main problem seems to be: by (and for) whom? And how? Asking these questions requires us to – as Bénédicte Savoy suggests in her inaugural lecture at the Collège de France which formed the inspiration for this symposium – engage in a certain process of introspection and readjustment of our traditional doctrinal assumptions. This contribution examines one of these doctrinal assumptions: the central role given to universality within cultural heritage law, both in terms of the rhetoric used by UNESCO and other actors, as well as in international legal instruments developed to safeguard heritage.

Universality and cultural heritage protection

Universality has a long history within international law, which can be retraced today through the existence of concepts such as jus cogens norms and obligations erga omnes. In short, universality implies that certain ‘things’ – whether these are the use of force, climate change, or, indeed, cultural heritage – are a common interest of the international community and therefore (should be) subject to international law. The manner in which this is achieved differs according to that which the international community seeks to regulate.

Such universalistic philosophies are at the core of international cultural heritage protection, although the precise expression of these philosophies has differed across the various moments of international law-making that have occurred over the past century. International legal instruments such as the 1954 Hague Convention and the 1972 World Heritage Convention posit that any damage to ‘universal’ heritage causes ‘damage to the cultural heritage of mankind’. These instruments view the destruction of heritage as a grave loss to the international community, generally positing it as a common concern and granting protection to heritage of ‘outstanding universal value’ or of ‘great importance to … mankind’.

Similar invocations of the common concern of the international community can be found in the rhetoric employed by international institutions, such as the UN, UNESCO, and the ICC. When rationalising the need for international involvement, statements from officials of these organisations invariably emphasise the loss to the international community which occurs when cultural heritage is damaged or destroyed. However, when drawing upon what is undoubtedly the powerful vocabulary of universality, it pays to be wary of the pitfalls of such language. As Martti Koskenniemi suggests, ‘[o]ne should be careful with those who speak in the name of humanity’. Vitally, in most situations, the territorial State remains the actor with the chief power to determine which heritage is of global import.

Thus, for example, the concept of ‘outstanding universal value’ at the heart of the World Heritage Convention has come increasingly under fire, as many sites have been nominated to the World Heritage List which purportedly do not express outstanding universal value. In addition, in the course of paying heed to universality, the international community at times overlooks the risks this poses to living heritage and human rights.

In short, it is evident that sustained analysis of the effects of universality on the practice of cultural heritage protection remains important in order to fully capture the intended and unintended effects of this mode of thinking on cultural heritage. Such critiques can be strengthened by approaches adopted by scholars working in TWAIL and critical legal studies, in addition to interdisciplinary approaches.

Cultural heritage protection as a global problem

However, these developments need not suggest that international legal protection of cultural heritage is a lost cause. On the contrary: there are a number of situations in which some degree of international involvement in the protection of cultural heritage is vital. The issue of ‘colonial’ looted heritage is one example in this regard: as the looted object is generally located in a different State than its country of origin, the issue becomes by its very nature an international problem. Similarly, the international community has increasingly acknowledged that damage to heritage can moreover form a threat to international peace and security, as the Security Council recognised in Resolution 2347 in 2017.

Issues also arise in countries where different types of heritage are valued by the majority and the minority, for example in the case of indigenous peoples. In such situations, the language of international law, particularly when framed in terms of human rights, can provide an impetus to ensure the protection of the heritage of minorities within a given State. Simultaneously, the language of international criminal law provides an appropriate means to respond to situations where State actors or armed groups are wilfully damaging heritage, as has been visible in the ICC’s Mali investigation and the prosecutions of Al Mahdi and Al Hassan.

These illustrations provide a brief sketch of situations where international involvement is desirable to a certain extent. However, believing that cultural heritage protection is indeed a ‘global’ problem does require us to depart from one fundamental premise: that the protection of cultural heritage is a common good. Debate will of course doubtless remain as to the purpose of this protection: do we protect heritage for purely intrinsic reasons, or should heritage protection instead be instrumental in achieving other goals of the international community, such as conflict resolution or economic development?

In addition, heritage protection is also a ‘global’ problem in the truest sense: it is not only a matter for States, as the orthodox point of departure within international law dictates. Precisely because of its close connection to culture, an integral element of heritage protection is the meaningful involvement of individuals. While important first steps have been taken by States and UNESCO in this regard, it is crucial to remain aware of the variety of factors which can complicate meaningful participation in heritage protection in order to guarantee continued support from those whose heritage the international community seeks to safeguard.

 

Sophie Starrenburg is a PhD researcher at Leiden University and an LL.M. graduate of Leiden University and the University of Cambridge. She has previously worked as a researcher at the Dutch Restitutions Committee for Nazi-Looted Art. Her interests lie in charting the intersections between cultural heritage protection and public international law.

 

Cite as: Sophie Starrenburg, “Cultural heritage protection: a truly ‘global’ legal problem?”, Völkerrechtsblog, 5 September 2018, doi: 10.17176/20180919-181637-0.

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5 Comments

  1. Ruwen Fritsche
    5 September, 2018 at 11:11 — Reply

    Vielen Dank für diesen interessanten Beitrag!
    Der Hyperlink zu “Universalität” ist leider nur für registrierte Nutzer der Universität Leiden erreichbar. Für einen kurzen Hinweis auf den Titel/ Autor des verlinkten Artikels wäre ich dankbar!

  2. Sophie Starrenburg
    5 September, 2018 at 22:08 — Reply

    Thank you, I will ask the editors to update the link. The reference is to André Nollkaemper’s entry on ‘Universality’ in the Max Planck Encyclopedia of Public International Law, available at http://opil.ouplaw.com/abstract/10.1093/law:epil/9780199231690/law-9780199231690-e1497?rskey=qzygSa&result=1&prd=OPIL (although a log-in is still required to access the article).

    • Ruwen Fritsche
      6 September, 2018 at 11:56 — Reply

      Thanks!

  3. 11 September, 2018 at 18:08 — Reply

    Thank you for your interesting post, Ms Starrenburg.
    You have rightly pointed out a number of issues that take place in the event of an armed conflict. However, I miss those of them that happen (or might happen) to occur in times of peace. For example, terrorists who aim to destroy European monuments (e.g. Sagrada Familia during the Barcelona attacks in summer 2017). Apart from domestic law, is there any additional protection at the international level that cover attacks against cultural property in times of peace? Does the ICC have jurisdiction over these acts? Certainly, this is a hot topic. Perhaps we can discuss it further via email. Thanks again and congrats for your post.
    Best wishes,
    Pablo Gavira Díaz
    Walther Schücking Institute for International Law
    University of Kiel (Germany)

    • Sophie Starrenburg
      17 September, 2018 at 11:15 — Reply

      Dear Pablo,

      Thank you for your comment – and I absolutely agree with you there. Destruction during peacetime is certainly a relevant issue – particularly as it might often also concern the destruction of cultural heritage by members of the same cultural group as the heritage which is destroyed (the Buddhas of Bamiyan being the obvious example here). Some have argued that the World Heritage Convention could be construed as an elaboration of a broader norm which would at least prohibit the state from taking deliberate measures during peacetime which could result in damage to cultural heritage located on their territory. The 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage has of course also been advanced in this regard.

      In any case, these developments would seem to be separate from the question of individual criminal responsibility for destruction of cultural heritage during peacetime, which (in terms of the Rome Statute) would leave us with persecution based on cultural grounds (or destruction of cultural heritage as perhaps contributing to persecution based on one of the grounds enumerated in Article 7(1)(h) of the Statute) and would thus also require the existence of a widespread or systematic attack against a civilian population. The Al Hassan case at the ICC might lead to some interesting developments in this regard, if the Prosecutor decides to bring evidence relating to the destruction of heritage in Timbuktu in order to support the charge of persecution on religious and gender grounds (although the crimes of course took place in the context of a non-international armed conflict).

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