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Cultural Heritage ManagementA Global Perspective$

Phyllis Mauch Messenger and George S. Smith

Print publication date: 2010

Print ISBN-13: 9780813034607

Published to Florida Scholarship Online: September 2011

DOI: 10.5744/florida/9780813034607.001.0001

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International Laws, Treaties, and Organizations

International Laws, Treaties, and Organizations

Chapter:
(p.251) 19 International Laws, Treaties, and Organizations
Source:
Cultural Heritage Management
Author(s):

Patrick J. O'Keefe

Publisher:
University Press of Florida
DOI:10.5744/florida/9780813034607.003.0020

Abstract and Keywords

International conventions, recommendations, and resolutions on preservation of cultural resources provide a guide to how states view various matters and what they are likely to accept if proposals on public policy are put forward. This chapter takes into account the role of international communities in creating a legal framework for preserving the world's cultural resources. It provides a selected account of the conventions, recommendations, resolutions, and regulations that have shaped cultural resource preservation. The chapter also brings into the limelight different conventions of UNESCO pertaining to heritage management throughout the world.

Keywords:   international community, legal framework, cultural resources, UNESCO, cultural heritage management, international conventions, preservation of cultural resources, international laws, treaties, organizations

Over the past 50 years, the international community has developed a legal framework to preserve the world's cultural resources. This is still very much a work in progress. To date, it has concentrated on tangible heritage—sites, monuments, and objects—and largely ignored the intangible—stories, songs, myths, language, religion—even when these are associated with the former. Moreover, development of the framework is uneven, with certain aspects receiving more attention than others. States, the principal players on the world stage as far as cultural preservation is concerned, do not give this a high priority and often prefer to do as little as possible to fulfill their obligations.

Organizations

The United Nations Educational, Scientific and Cultural Organization (UNESCO) is the main body concerned with the preservation of cultural resources worldwide. It is one of the group of organizations known as the United Nations Specialized Agencies—organizations associated with, but independent of, the United Nations Organization. Culture is listed third in the title and this is the role it occupies in the working of the body, where it is the smallest division— just ahead of social sciences. However, it must be recognized that this is the decision of states. The secretariat may propose budgets and programs, but it is the states that decide what funds will be voted and how they are to be allocated. Of course, the secretariat has great power in that it is represented by one person—the director general—while the states are split into various power groups with their own agendas.

The UNESCO framework for preserving cultural resources consists of conventions and standard-setting recommendations.1 The former are international legal instruments carrying rights and obligations for those states that become party to them. The latter have little legal weight—states should observe their requirements and report to the general conference of UNESCO at regular intervals on action taken to implement them. Recommendations have a value to nongovernmental organizations and individuals who, concerned at the action (p.252) of a governmental authority, can contact the UNESCO secretariat to complain. The secretariat can then bring a relevant recommendation to the attention of the authority who may then be prepared to take it into account when establishing policy or taking specific action.

States members of UNESCO have adopted the following conventions (numbers of states parties to each convention are listed as of October 2009):

  • Convention on the Protection of Cultural Property in the Event of Armed Conflict 1954 (123 states parties—“Hague Convention”) together with two protocols of 1954 (100 states parties) and 1999 (55 states parties) respectively;

  • Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (118 states parties—“1970 Convention”);

  • Convention Concerning the Protection of the World Cultural and Natural Heritage 1972 (186 states parties—“World Heritage Convention”);

  • Convention on the Protection of the Underwater Cultural Heritage 2001 (26 states parties—“Underwater Convention”);

  • Convention on the Safeguarding of the Intangible Cultural Heritage 2003 (116 states parties—“Intangibles Convention”); and

  • Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 (103 states parties—“Cultural Expressions Convention”).

A number of UNESCO's recommendations deserve special mention in the current context:

  • Recommendation on International Principles Applicable to Archaeological Excavations 1956;

  • Recommendation Concerning the Safeguarding of the Beauty and Character of Landscapes and Sites 1962;

  • Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works 1968;

  • Recommendation Concerning the Protection at National Level of the Cultural and Natural Heritage 1972; and

  • Recommendation Concerning the Safeguarding and Contemporary Role of Historic Areas 1976.2

The role of UNESCO in promoting these instruments has been challenged. For example, during negotiations on the Underwater Convention, Norway reserved its position as to whether UNESCO was the appropriate forum for negotiation and adoption of the convention. It would have liked the negotiations removed to the United Nations in New York, presumably on the grounds that there the law of the sea arguments would be more likely to prevail. However, it (p.253) was difficult to see the real basis for Norway's objections. In June 2005, during the negotiations of governmental experts on what was to become the Cultural Expressions Convention, the delegation of the United States of America walked out of the concluding speech of the meeting's chairman. The delegation stated, “The draft Convention produced by this Working Group is deeply flawed and fundamentally incompatible with UNESCO's constitutional obligation to promote the free flow of ideas by word and image.” The United States took the view that the draft convention was about trade and not culture.

The conventions of UNESCO are public law instruments in that they deal with their subjects on an inter-state level. It was felt that there should be a convention that allowed action for recovery of stolen objects at the private level. Thus, UNESCO requested the International Institute for the Unification of Private Law (UNIDROIT) to draft such an instrument. The resulting UNIDROIT Convention (Convention on Stolen or Illegally Exported Cultural Objects 1995 [29 states parties—“UNIDROIT Convention”]) is regarded as complementary to the Convention of 1970.3

The United Nations Organization has produced resolutions on restitution of cultural property for many years, but its most important one is Resolution 1483 of May 22, 2003, which includes a paragraph requiring states to take appropriate steps to facilitate the return of cultural property to Iraq. This has been implemented by legislation in states such as Australia, Switzerland, the United Kingdom, and the United States.

The most important regional organization involved in matters of resource preservation is the Council of Europe. This body is responsible for promoting the cultural development of Europe along with economic and social progress. It has produced some significant conventions in the field of cultural resource preservation:

  • European Cultural Convention 1954 (49 states parties);

  • European Convention on Protection of the Archaeological Heritage (revised) 1992 (35 states parties—“European Archaeological Convention”);

  • European Landscapes Convention 2000 (25 states parties—“Landscapes Convention”); and

  • Council of Europe Framework Convention on the Value of Cultural Heritage for Society 2005 (1 state party; needs 10 to come into force— “Framework Convention”).4

The Parliamentary Assembly of the Council of Europe has also produced a number of recommendations addressed to the Committee of Ministers indicating desirable action on specific matters. Among these are

  • Underwater Cultural Heritage 1978;

  • Metal Detectors and Archaeology 1981;

  • (p.254) Protecting the Cultural Heritage Against Disasters 1986;

  • International Protection of Cultural Property and the Circulation of Works of Art 1988;

  • Maritime and Fluvial Cultural Heritage 2000; and

  • Tax Incentives for Cultural Heritage Conservation 2003.

The Committee of Ministers has also issued recommendations addressed to member states. Of significance in the present context is Recommendation No. R(98)4 on Measures to Promote the Integrated Conservation of Historic Complexes Composed of Immoveable and Moveable Property

The European Union, until recently not particularly involved in cultural resources preservation, has produced a directive (93/7/EEC of March 15, 1993) titled The Return of Cultural Objects Unlawfully Removed from the Territory of a Member State and a regulation (No. 3911/92) titled The Export of Cultural Goods. These are legally binding on member states and must be implemented in local law.

Shaping Cultural Resource Preservation

There is no room here to discuss all the ways in which cultural resource preservation is shaped by the above conventions, recommendations, resolutions, and regulations. Certain aspects have been selected and the impact on them of some of the international instruments will be examined.

Archaeology Underwater and in the Development Process

The two instruments most directly relevant to archaeology are the Revised European Convention and the Underwater Convention. Part of the latter consists of an annex setting out “Rules Concerning Activities Directed at Underwater Cultural Heritage.” This is an integral part of the convention and thus has the same standing in international law. The original draft was done by the International Council on Monuments and Sites (ICOMOS), but was renegotiated by governmental experts to be part of the convention.

Both instruments state that archaeological sites should be preserved in situ. This is not an inflexible rule. Rule 1 of the annex to the Underwater Convention requires in situ preservation to be considered “as the first option.” States party to the European Archaeological Convention must make provision, as circumstances demand, “for the conservation and maintenance of the archaeological heritage, preferably in situ.” They must also undertake to conserve “in situ when feasible” elements of the archaeological heritage found during developmental work. It is obvious that public policy as represented by these two instruments favors in situ preservation.

The major reason for revising the European Archaeological Convention in (p.255) 1992 was to ensure that there was an archaeological input into the developmental planning process from the very beginning—that archaeologists not be consulted only when something was found. States parties have to ensure that archaeologists and town and regional planners work together in a systematic way to modify developmental plans where necessary and to allow time and resources for study of the site and publication of the results. Where activities incidentally affect the underwater cultural heritage, states parties to the Underwater Convention must use the best practicable means at their disposal to prevent or mitigate adverse effects.

Both of these instruments require states parties to take certain measures to ensure that archaeological work does not adversely affect the heritage. For example, both state that non-destructive techniques must be used whenever possible. Both deal with the vexed issue of publication. The European Archaeological Convention requires the production of surveys, inventories, and maps, as well as “a publishable scientific summary record before the necessary comprehensive publication of specialized studies.” The annex to the Underwater Convention states that interim and final reports shall be made available according to a timetable established at the commencement of the project and that a final synthesis shall be made public as soon as possible.

Archaeology in Occupied Territory

Recent years have seen a number of situations where territory of one state has been occupied by the armed forces of another. Two long-standing occupations are those of Northern Cyprus and the West Bank of Palestine. Can the occupying state conduct archaeological survey and/or excavation in the occupied territory? This question was addressed in UNESCO's recommendation of 1956, which said that states should refrain from any excavations, and that any chance finds should be handed over to the authorities of the territory at the termination of hostilities.

The matter was taken up again in the Second Protocol to the Hague Convention in 1999. Under article 9, states parties that are in occupation must prohibit and prevent any archaeological excavation “save where this is strictly required to safeguard, record or preserve cultural property.” Also to be prohibited and prevented is “any alteration to, or change of use of, cultural property which is intended to conceal or destroy cultural, historical or scientific evidence.” Public policy is clearly to stop states in occupation from conducting archaeological excavations. It would seem that less intrusive activities such as surveying and photography would be permitted.

Site Preservation

The goal of preserving sites obviously underlies many of the provisions of the European Archaeological Convention and the Underwater Convention. It is (p.256) also inherent in other international instruments such as the World Heritage Convention. In general, the latter applies to monuments, groups of buildings, and sites of outstanding universal value. The duties of states under this convention are set out in broad terms. For example, states have a “duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage.” Some have argued that the convention is too vague to create legal obligations on the part of states. However, this was rejected by the High Court of Australia in Commonwealth v. Tasmania (see Commonwealth of Australia 1983).

Here the Commonwealth of Australia was attempting to use powers derived from the World Heritage Convention in order to override action by the government of the state of Tasmania in constructing a dam that would have destroyed significant natural areas but also Aboriginal habitation sites of great antiquity. A majority of the judges held that the convention imposed an obligation on Australia, as a state party, to take effective and active measures for the protection, conservation, presentation, and transmission to future generations of its cultural and natural heritage, “including the taking of legal measures to this end.” One of the judges, Anthony Mason, said, “Unless one is to take the view that over 70 nations have engaged in the solemn and cynical farce of using words such as ‘obligation’ and ‘duty’ where neither was intended or undertaken, the provisions of the Convention impose real and identifiable obligations and provide for the availability of real benefits” (see Commonwealth of Australia 1983).

The World Heritage Convention establishes a list on which are placed monuments, groups of buildings, and sites of outstanding universal value. As part of the process of inscribing one of these on the list, the state on whose territory it lies should show that a management plan is in place to provide for its preservation. There have been exceptions such as in the case of Angkor in Cambodia, but in general there is compliance. This has more immediate effect than the very general provisions of the convention provided that states do actually implement the requirements of the management plan and keep it up to date.

The definition of “sites” in the World Heritage Convention refers to “the combined works of nature and of man.” From this has evolved for the purposes of the convention the concept of “cultural landscape,” which, according to the operational guidelines, consists of three categories: those defined and intentionally created by man, those that have evolved organically, and those that have an associative nature. The European Landscape Convention goes further and refers to an area “perceived by people, whose character is the result of the action and interaction of natural and/or human factors” (article 1). But in both contexts the intent is to preserve significant areas involving cultural resources.

(p.257) Illicit Traffic

Theft and smuggling of cultural heritage items often damages them and the cultural record. Smuggling in many cases flows from clandestine excavation, which, by its very nature, destroys context as well as objects already damaged or those with little or no commercial value. Encompassed within the general term of illicit traffic, this activity is seen as a major threat to preservation of cultural resources.

The United Nations Educational, Scientific and Cultural Organization has tried to fight illicit traffic with its Convention of 1970. This was the culmination of a process that began during the period between the two world wars when a convention was drafted in the context of the League of Nations but was halted by the advent of war. Unfortunately, acceptance of the convention by the major art market states has been slow in coming, although recent years have seen acceptance by states such as Japan, Sweden, Switzerland, and the United Kingdom. It is under active consideration in Belgium and Germany, to name but two. However, there are significant differences in how states have implemented the convention.

Objects stolen from “a museum or a religious or secular public monument or similar institution” are to be prohibited entry into a state party, provided the object is “documented as appertaining to the inventory of that institution.” There is no problem with states' implementation of this provision. The problem is with the much broader issue of other theft and smuggling in general. The convention provides in article 3 that “the import, export and transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit.” Another provision, article 9, refers to cultural patrimony in jeopardy from pillage of archaeological or ethnological materials. Australia and Canada, in reliance on article 3, have implemented the convention broadly. The United States, in reliance on article 9, has a narrow implementation relying on presidential declarations and additional bilateral agreements. However, all three countries will take action on behalf of a foreign claimant. In contrast, Switzerland, in its legislation of 2003 implementing the convention, also requires bilateral agreements with other states. Japan has a much more restricted implementation. Indeed, it must be questioned whether Japan has effectively become party to the convention. Its law of 2002 really only applies to objects stolen from a museum or similar institution as described above, and then only when Japanese authorities are notified before the objects enter Japan.

The public policy underlying the UNIDROIT Convention of 1995 is quite clear: “The possessor of a cultural object which has been stolen shall return it.” Moreover, “a cultural object which has been unlawfully excavated or lawfully excavated but unlawfully retained shall be considered stolen” provided this is (p.258) consistent with the law of the state where the excavation took place. This makes clear a situation that has been much debated in international law circles particularly as it appertains to the United States. Private persons can use these provisions of the convention to claim stolen objects—a great advantage when the state refuses to take action because of matters that may be entirely unconnected with the claim. The convention also permits a state party to claim, in the courts of another state party, a cultural object that has been unlawfully exported. The court has to return the object if the claimant state establishes one or more of four specified grounds or, more generally, “that the object is of significant cultural importance for the requesting state.”

Intangible Heritage

Intangible heritage can be closely tied to the preservation of cultural resources. There may be a connection between myth and a site, between religion and a monument, between song and a building. The United Nations Educational, Scientific and Cultural Organization has attempted to deal with this aspect of the heritage in its Intangibles Convention, but that, in the opinion of many people, is flawed since it contains little in the way of duties or obligations on the part of states members. Work being done in the World Intellectual Property Organization may have a more successful outcome, but that organization is limited by its constitution to matters of intellectual property.

The definition of intangible cultural heritage in the Intangibles Convention is complex and is not really a definition, consisting as it does of part description. To come within the terms of the convention, intangible cultural heritage must be compatible with international human rights “as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.” The convention requires the establishment of the Representative List of the Intangible Cultural Heritage of Humanity. The purpose of this list is to ensure better visibility of intangible cultural heritage and awareness of its significance, as well as to encourage dialogue that respects cultural diversity. This is a laudable objective, but hardly one requiring an international convention to achieve.

Historic Complexes

The Council of Europe is the only international organization that has tried to deal specifically with the relationship between a structure and its contents where there is a heritage value in the relationship itself exceeding the individual values. In the case of industrial archaeology, for example, the value of discarded machinery may be enhanced if the place where it worked is still in existence and the connection can be maintained. In its recommendation on the matter, the Council of Europe sought to encourage owners to maintain that connection by various incentives, including tax exemptions.

(p.259) The issue is controversial as it inhibits the ability of an owner to dispose of movable property. This is particularly significant in those jurisdictions where the eldest son inherits the immovable property and only the movable may be distributed among other children. It can result in one child inheriting an empty building. Where the family wants to maintain the connection between the building and the furniture, for example, some children have to forgo their right of possession. The situation becomes more complex as generation follows generation.

Conclusion

International conventions, recommendations, and resolutions on preservation of cultural resources are not just for lawyers. All of these documents represent a considerable investment by states in terms of time and money. They cannot be lightly dismissed. They are often the result of lengthy debate and hard fought compromises. They provide a guide to how states view various matters and what they are likely to accept if proposals on public policy are put forward. The information is there, but principles in terms of public policy have to be extracted from the texts, the process that led to adoption, and what has happened since.

Notes

(1.) There are also instruments such as declarations and guidelines that are significant in interpreting the law and applying it in practice.

(2.) The text of all of these instruments can be found at United Nations Educational, Scientific and Cultural Organization, http://portal.unesco.org/en/ev.php-URL_ID=12024&URL_DO=DO_TOPIC&URL_SECTION=201.html.

(3.) The text is available at International Institute for the Unification of Private Law [UNIDROIT] 1995.

(4.) Texts are available at Council of Europe, Complete list of the Council of Europe's treaties.

References Cited

Bibliography references:

Brown, Michael 2005 Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property. International Journal of Cultural Property 12(1):40–61.

Chamberlain, Kevin 2004 War and Cultural Heritage. Institute of Art and Law, Leicester.

Commonwealth of Australia 1983 Commonwealth v. Tasmania (The Tasmanian Dam Case), 158 CLR 1, 46 ALR 625. Electronic document, http://law.ato.gov.au/atolaw/view.htm?DocID=JUD%2F158CLR1%2F00004, accessed April 18, 2009.

(p.260) Council of Europe 2009 Complete list of the Council of Europe's treaties. Electronic document, http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG, accessed April 18, 2009.

International Institute for the Unification of Private Law (UNIDROIT) 1995 Convention on Stolen or Illegally Exported Cultural Objects (Rome). Electronic document, http://www.unidroit.org/english/conventions/1995culturalproperty/main.htm, accessed April 18, 2009.

Musitelli, Jean 2002 World Heritage, between Universalism and Globalization. International Journal of Cultural Property 11(2):323–36.

O'Keefe, Patrick 1997 Trade in Antiquities: Reducing Destruction and Theft. UNESCO Publishing, Paris; Archetype Publications, London.

2002 Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage. Institute of Art and Law, Leicester.

2007 Commentary on the UNESCO 1970 Convention on Illicit Traffic. 2nd ed. Institute of Art and Law, Builth Wells, Wales.

Prott, Lyndel 1997 Commentary on the UNIDROIT Convention. Institute of Art and Law, Leicester.

United Nations Educational, Scientific and Cultural Organization (UNESCO) 2009 Standard-Setting Instruments. Electronic document, http://portal.unesco.org/en/ev.php-URL_ID=12024&URL_DO=DO_TOPIC&URL_SECTION=201.html, accessed April 18, 2009.

Voon, Tania 2006 UNESCO and WTO: A Clash of Cultures. International & Comparative Law Quarterly 55(3):635–52.

Notes:

(1.) There are also instruments such as declarations and guidelines that are significant in interpreting the law and applying it in practice.

(2.) The text of all of these instruments can be found at United Nations Educational, Scientific and Cultural Organization, http://portal.unesco.org/en/ev.php-URL_ID=12024&URL_DO=DO_TOPIC&URL_SECTION=201.html.

(3.) The text is available at International Institute for the Unification of Private Law [UNIDROIT] 1995.

(4.) Texts are available at Council of Europe, Complete list of the Council of Europe's treaties.