International Law and the Protection of Cultural Heritage

International Law and the Protection of Cultural Heritage
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Contents
Table of Conventions and other international instruments
Table of cases
Preface
1 Defining cultural heritage in international law
	Introduction
	The notion of cultural heritage
		The values attributable to cultural heritage
			The expressive value of cultural heritage
			Preservation of archaeological and historical evidence
			Economic value
		To whom the cultural heritage is of value
			Group or community
			The nation
			Humankind
		The meaning of protection
			Physical protection
			Protection in situ
			Protection of visibility and accessibility
			Retention of cultural heritage
			Protection as co-operation
			Conclusion
	The legal value of cultural heritage
	The definition of cultural heritage in International Conventions
	Conclusion: For the purposes of the present Convention
		Post script: A note on terminology
2 International legal framework
	Introduction
	The International Law of Conventions
		The adoption of Conventions and consent by States to be bound
			Protocols
		Reservations
		Entry into force
		Revision of Conventions
		Retrospectivity of Conventions
	The national implementation of international Conventions
	Interpretation of Conventions
	The binding nature of Conventions
		The State in whose territory the cultural heritage is found
		Other States Parties to a Convention
		Third States
		The international community
	Customary international law
	Soft law
3 Cultural heritage and armed conflicts
	Introduction
		The armed conflict in the Balkans
		Iraq and the Gulf Wars
	A history of war and cultural heritage
		The Hague Regulations
		The First World War and its aftermath
		The Second World War and the 1949 Geneva Conventions
	The doctrine of military necessity
	1954 Hague Convention
		Overview of the Convention
		The preamble’s guiding principles
		Scope of Application of the Convention
		Definition of cultural property
		The core Conventional duties
			Safeguarding cultural property
			Respect for cultural property
		Occupation
		Special protection
			Special protection and the military necessity exception
		The international regulatory regime
	First Protocol and occupation
	The 1977 Additional Protocols to the Geneva Conventions
	The 1999 Second Protocol
		General provisions regarding protection
		The enhanced protection regime
			The list of cultural property under enhanced protection
			Enhanced protection and military necessity
		Penal sanctions
		New institutional arrangements
	The protection of cultural property during armed conflict and  customary international law
	Conclusion
4 The return, restitution and repatriation of movable cultural heritage
	Introduction
		The history of the protection of movable cultural heritage
	The return, restitution and repatriation framework
		The market for cultural heritage
		Defining terms of movement
			Restitution
			Return
			Repatriation
		Place of origin
			Identifying the physical origin
			Identifying the cultural origin
		Concepts of ownership
			Private ownership
			State ownership
			State ownership through forfeiture
		Export restrictions
		Effectiveness of national laws
		The retentionist debate
	Return of cultural heritage
		The universal museum
		The return of human remains
	The 1970 Convention
		The negotiation history
		The preamble’s guiding principles
		Definition of cultural property
		National cultural property
		Making illicit the export and import of cultural property
			The export and import regime
			An expanded interpretation of the export and import regime
			A narrow interpretation of the export and import regime
			The timing of the illicit export and import
		Transfer of ownership of cultural property
		National services and duties that address the illicit trade in cultural property
		Sanctions
			Occupied and controlled territories
			Bilateral agreements
			Participation in the Convention
			An evaluation of the Convention
		The 1995 UNIDROIT Convention
			The preamble’s guiding principles
			Defining cultural objects
			Scope of the Convention
			The restitution of stolen cultural objects
				The right of the original owner to restitution
				Time limitations
				Compensation
			Illegally exported cultural objects
				Time limitation
				Compensation
				The exception to the rule
			Jurisdiction
				Non-retrospectivity
			An evaluation of the UNIDROIT Convention
			The illicit trade in Irqi cullural property
5 World Heritage Convention
	Introduction
		National protection for monuments
		The development of the Conventional regime
	The World Heritage Convention
		The preamble’s guiding principles
		Defining world cultural heritage
		Determining ‘outstanding universal value’
			Outstanding universal value as an evolving concept
			The 2008 Operational Guidelines’ criteria for outstanding universal value
			The legal meaning of outstanding universal value
		Authenticity and integrity
		The protection and management regime
		Defining the natural heritage
	National protection of cultural heritage
	International protection of cultural heritage
		Deliberate actions of a State that damages the World Heritage
		Property rights and national legislation
	The World Heritage Committee
	The World Heritage List
		The Tentative List
	Nomination and listing of cultural heritage on the World Heritage List
	The List
	The List of World Heritage in Danger
	World Cultural Heritage not Inscribed on the World Heritage List
		International assistance
			Cultural heritage eligible for international assistance
			Requests and granting of assistance
			Types of international assistance
			Requests and granting of assistance
			The administration of the international assistance granted
			The World Heritage Fund
				The nature of States Parties contribution to the Fund
				The management of the Fund
	The administrative framework
		The advisory bodies
		The reporting structure
		The relationship between UNESCO and the World Heritage administrative structure
	The nature of the international obligations in the World Heritage Convention
		Obligations erga omne
			Enforcement of obligations
		The temples of Angkor and the Buddhas of Bamiyan
			The Angkor Archaeological Park
			Bamiyan Buddhas
	The future of the Convention
	Conclusion
6 Underwater cultural heritage
	Introduction
	From salvage to underwater archaeology
		Beginnings
		The nascent discipline of underwater archaeology
		The continued application of salvage law
			The Nuestra Señora de Atocha
			The Geldermalsen
			The Central America
			The Titanic
		The law of salvage and finds
			Marine peril
			Voluntary efforts
			Success
			Salvor’s rights
			Exclusive possession
			Salvage award
			Ownership of underwater cultural heritage
			Finders
		The conflict between archaeology and salvage
			The economic exploitation of underwater cultural heritage
			Ownership of artefacts
			Splitting up of collections
			Employment of inappropriate recovery techniques
			Co-operation between user groups
			Conclusion
		International law of the sea
			Article 149
			Article 303
			Council of Europe Draft Convention
		Salvage Convention
		Underwater Cultural Heritage Convention
			The International Law Association initiative
			The scope of the convention
				Defining ‘underwater cultural heritage’
				Warships and other State owned vessels
				Identifying the activities to be regulated
				The geographical scope
			Good archaeological practice
				In situ preservation
			The place of salvage law and the law of fi nds
				The development of the non-commercialisation clause
				The development of the salvage law clause
			The jurisdictional structure
			The enforcement regime
				Authorisation, sanctions and seizure
				Competent authorities, public awareness and training
			International co-operation in the protection of underwater cultural heritage
		International principles and consistency
		Conclusion
7 Intangible cultural heritage
	Introduction
		The legal protection of intangible cultural heritage
	The intangible cultural Heritage Convention
		The preamble’s guiding principles and context
		Purpose of the Convention
		Defining the intangible cultural heritage
		The Conventional structure
	National safeguarding of intangible cultural heritage
	The international safeguarding of intangible cultural heritage
		The Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage
		Representative List of the Intangible Cultural Heritage of Humanity
		The List of Intangible Cultural Heritage in Need of Urgent Safeguarding
		International co-operation and assistance
			The Fund
	The tangible and intangible relationship
	Conclusion
8 From five international conventions to an international law of co-operation
	Introduction
	A convention of its time
	The extent of overlap between the cultural heritage conventions
	From norms to international co-operation
		The normative conventional regimes
			Criminal offences against cultural heritage in international law
			Conventional norms as the sustainer of confl ict
			International enforcement
		The co-operative conventional regimes
		A principled basis for the protection of cultural heritage
	Cultural heritage as the common concern of humankind
		Cultural heritage as the common heritage of humankind
			The international concept of the common heritage of humankind
			Cultural ‘nationalism’ vs ‘internationalism’
	An institutional approach
		UNESCO’s mandate
		The relationship between UNESCO and the UNESCO cultural heritage conventions
		Education
		Principle of co-operation
	The future of the international law of co-operation
Appendix I: Table of State Parties
Appendix II : Defining the Cultural Heritage
Bibliography
Index