The human dimension of international cultural heritage law: An introduction

European Journal of International Law

Volumn 22, Issue 1, 2011, Pages 9-16

  Francioni, Francesco ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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[No Author keywords available]

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EID: 79954556034     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chr018     Document Type: Editorial

References (26)

1. Merryman, 'Two Ways of Thinking about Cultural Property', 80 AJIL (1986) 831.
2. United Nations Declaration on the Rights of Indigenous Peoples, GA Res. of 13 September 2007, Sixty-first Session, Supplement No. 53 (A/61/53), especially Articles 11, 12,13, 14, 15 and 16.
3. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, adopted 26 March 1999, published in 38 ILM (1999) 769, especially Articles 15-18; Article 3d of the Statute of the International Criminal Tribunal for Yugoslavia, 32 ILM (1993) 1192, and Article 8 of the Statute of the International Criminal Court 37 ILM (1998) 999.
4. See the UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage adopted by the General Conference of UNESCO at its 33rd session, Paris, 19 October 2005, reprinted in Standard Setting in UNESCO, vol. II (2007) 733.
5. See also Francioni and Lenzerini, 'The Destruction of the Buddhas of Bamyan and International Law', 14 EJIL (2003) 619.
6. UNESCO was created on 16 November 1945 by the representatives of 37 countries who signed the Constitutive Act (entry into force 4 November 1946, available at www.unesco.org/new/en/unesco/about-us/who-we-are/history/constitution/).
7. The synthetic expression 'cultural property' was used for the first time in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954, available at http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html. In earlier international instruments there was no unitary notion of cultural property, but rather an empirical indication of objects of historical, monumental or humanitarian interest that should be spared from acts of war.
8. See Articles 27 and 56 of the Annexed Regulation of the IV Hague Convention of 1907, as well as Article 5 of the IX Hague Convention.
9. See the 1949 Geneva Conventions (Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; and Convention (IV) relative to the Protection of Civilian Persons in Time of War) as well as their Additional Protocols of 1977, particularly Articles 52(1), 53 and 86 of Protocol I and 16 of Protocol II.
10. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted in Paris on 14 November 1970, available at http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html.
11. See http://portal.unesco.org/la/convention.asp?KO=13039&language=E&order=alpha. This Convention has been ratified by 120 states, among which the largest importers and exporters of cultural objects, such as the United States, the United Kingdom, Switzerland, Japan, Italy and France.
12. Convention concerning the Protection of the World Cultural and Natural Heritage, adopted in Paris on 16 November 1972, available at http://portal.unesco.org/en/ev.php-URL_ID=13055&URL_DO=DO_TOPIC&URL_SECTION=201.html.
13. Convention on the Protection of the Underwater Cultural Heritage, adopted in Paris on 2 November 2001, available at http://portal.unesco.org/en/ev.php-URL_ID=13520&URL_DO=DO_TOPIC&\URL_SECTION=201.html.
14. Convention for the Safeguarding of the Intangible Cultural Heritage, adopted in Paris on 17 October 2003, available at http://portal.unesco.org/en/ev.php-URL_ID=17716&URL_DO=DO_TOPIC&URL_SECTION=201.html.
15. There are 123 states parties to the 1954 Hague Convention, the last being the United States, which ratified the Convention on 13 March 2009 after more than half a century; see http://portal.unesco.org/la/convention.asp?KO=13637&language=E&order=alpha.
16. Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 and Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999.
17. Case Concerning the Temple of Preha Vihear (Cambodia v. Thailand), judgment of 15 June 1965, ICJ Reports (1962), at 6 et seq.
18. Certain Property (Liechtenstein v. Germany), judgment of 10 February 2005.
19. Genocide case (Bosnia-Herzegovina v. Serbia), judgment of 26 February 2007. Here the Court was presented with the applicant's argument that the documented systematic destruction of religious buildings, libraries and other cultural properties was evidence of the respondent's plan to accomplish a deliberate act of obliteration of all traces of life and culture of the Muslim population in the targeted territory, so as to amount to genocide. The Court, although recognizing the character of international crimes of such acts, declined to consider them as evidence of the special intent to commit genocide (paras 335-344).
20. Judgment of 13 July 2009, paras 134-144.
21. See particularly Beyeler v. Italy, Application n. 33202/96, decision of 5 January 2000, concerning the compatibility of Italy's pre-emption and export control law on art works with Protocol 1 to the European Convention on Human Rights, and Sud Fondi Srl c. Italia, application n. 75909/01, decision of 20 January 2009, where the Court found that the Italian decision to demolish a large building erected in a protected coastal area in violation of national landscape regulation amounted to a breach of the principle nullum crimen sine lege (Article 7 of the Convention) and of the right to property.
22. Article 1 of Protocol I.
23. Partial Award - Central Front, Eritrea's Claims 2, 4, 6, 7, 8 and 22, 28 April 2004. reprinted in Daly, 'The Potential for Arbitration of Cultural Property Disputes', in Permanent Court of Arbitration, The Law and Practice of international Courts and Tribunals (2005), at 261 et seq.
24. Prosecutor v. Kordic and Cerkez, ICTY Case No. IT-95-14/2-T, 26 February 2001, para. 207.
25. See the seminal case Church of Cyprus and the Republic of Cyprus v. Goldberg, judgment of the 7th Circuit, 1990, 917 F. 2d 278. UN Doc. S/RES/1483 (2003).
26. The Convention for the Safeguarding of Intangible Cultural Heritage was adopted by the UNESCO General Conference on 17 October 2003 and entered into force on 20 April 2006. It is now in force for 133 states.