Challenges and Opportunities of the Current Legal Design for the Protection of Cultural Heritage During Armed Conflict
International Symposium on Cultural Heritage Protection in Times of Risk: Challenges and Opportunities. Yildiz Technical University, ICOMOS ICORP,. Istanbul (Turkey) 2012
11 Pages Posted: 20 Nov 2012
Date Written: 2012
The field of cultural property protection in armed conflict is composed of “many laws but little law” (Sadeleer, 2002, p. 267). There is a staggering number of conventions that make little sense when put together. This is for three reasons: (1) there is no single understanding of what “cultural property” or “protection” stands for; (2) the greater the number of states involved in an international armed conflict, the lower the chances that regulations for cultural property protection will apply; (3) and despite a massive production of rules, no convention has yet devised a specific safeguarding regime for cultural heritage, which refers to the most outstanding class of cultural objects. One more thing threatens this field of law: international law-makers try to solve the above issues by adopting new laws. However, attempting to counteract failures of the law with more laws is a nonsensical exercise. As a result, such casuistic and reactive law-making policy only worsens the field’s problems.
To turn these problems into challenges, we should use the tools provided by legal methodology to (1) elucidate this field’s rationale and (2) confer the World Heritage Convention a leading role in its interpretation. I claim that the rationale underlying the rules for the protection of cultural property in armed conflict is very straightforward (yet, neglected): cultural and religious objects are factually different from the wider category of civilian property and therefore, the law needs to account for this distinction, awarding the former a special regime of protection. Furthermore, some instances of cultural and religious institutions are more important (e.g. cultural heritage, iconic places of worship) and thus require a more stringent regime of preservation than ordinary cultural objects. On its side, the World Heritage Convention possesses some features that, coupled with some techniques of legal methodology, can turn this field of law into its best possible version. For instance, since it numbers 190 parties (out of roughly 197 states), the World Heritage Convention benefits from an almost-universal acceptance; it is the only one that tackles the category of cultural heritage; and it can be applied simultaneously to other instruments. Following the maxims of harmonisation, systemic integration and the principle of effet utile, there is an opportunity (1) to re-interpret this field of law in a way that pays justice to its rationale; (2) to award cultural heritage a specific safeguarding system; and (3) to make the rules of the World Heritage Convention the new minimum legal denominator applicable to all armed conflicts.
Keywords: legal framework, cultural heritage, armed conflict, World Heritage Convention
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