Case study: the intricacies of international law in relation to cultural heritage

Aug 27, 2019

Written By Tuula Petersen

Standfirst: The protection of cultural heritage is essential to safeguard artefacts, sites and various intangible features of a society’s past. However, the idea of cultural heritage is not without any limitations. How exactly does international law protect artefacts—and when does it let them down?

Hampi is a village located in the state of Karnataka in southern India. The village contains magnificent ruins from the 14th-16th centuries, including fort walls and gateways, audience halls, pleasure pavilions, temples and shrines. In 1986, the site was awarded a world heritage status.

As a result, over the following 20 years, Hampi has attracted a great number of tourists as well as many residents from neighbouring villages looking for work. To accommodate the growing population, extensive construction was carried out—often with little regard to the preservation and protection of the village.

In 2010, the Archaeological Survey of India (ASI) assumed control of the Virupaksha Temple and Hampi Bazaar and declared the village’s population to be squatters without any rights. Their dwellings, shops and stalls were deemed illegal encroachments. The local community was evicted and the newly-built structures were demolished.

The Hampi case demonstrates that although world heritage status can potentially boost the regional economy by providing an influx of tourists and job opportunities, such a status can equally work to the detriment of the community—human rights violations and unsustainable tourism, to name just two.

UNESCO, international law and the principle of universality

According to the United Nations Educational, Scientific and Cultural Organization (UNESCO), cultural heritage is: “the legacy of physical artefacts and intangible attributes of a group or society that are inherited from past generations, maintained in the present and bestowed for the benefit of future generations”. To safeguard such cultural heritage, countries have become subject to international law detailing certain restrictions and procedures of due diligence. However, despite this remarkable initiative, the protection of cultural heritage under international law has faced increased criticism and occasionally has proven to be ineffective.

For an issue to be subject to international law, it has to abide by the principle of universality, which means all individuals are affected by the matter in question to varying degrees. In terms of cultural heritage, universality relates to a common consensus to protect artefacts or intangible attributes of importance from past societies for future generations. However, universality implies humanity as a whole has a say in cultural heritage protection, yet it essentially remains within the power of the state to determine what constitutes something of cultural heritage.

World heritage sites—which countries benefit?

Determining whether or not a specific site qualifies as a UNESCO world heritage site is highly contested. The site in question needs to demonstrate outstanding universal value and the nominating country is required to draft a comprehensive plan for its protection and management. However, due to the nomination process and the associated costs delegated to this venture, funds distributed by UNESCO for the site maintenance and protection are allocated disproportionately to affluent countries looking to add another world heritage site to their name.

Currently, there are 529 world heritage sites in Europe—which accounts for 47.19% of the total list of world heritage sites—whereas Africa contains 96 world heritage sites, equivalent to 8.56%. This disparity highlights the convoluted and discriminatory procedure for a site to acquire a world heritage status and supports the assumption that international heritage protection is an externally-imposed Western construct which echoes colonial dynamics.

To avoid eventual shortcomings, there are several international legal instruments to protect cultural heritage. The 1954 Hague Convention was established to protect cultural property in the event of armed conflict. There is also the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, and the 1972 Convention for the protection of the world cultural and natural heritage (WHC). More recently, a United Nations Security Council Resolution (2347) formulated in 2017 condemns damage of heritage as a threat to international peace and security.

International involvement in the protection of heritage has proven to be vital in several cases. This is especially true in relation to colonial “looted” art, in which an object of artistic importance was taken by a colonial power from one of their colonies and kept on display or in storage for the benefit and amusement of their home country. Since the artefact in question has crossed borders, if the country from which the artefact was taken claims rightful ownership, international law is likely to form the foundation for their case.

International law also proved instrumental in the prosecution of Ahmad Al Faqi Al Mahdi. An alleged member of Ansar Eddine, a movement associated with Al Qaeda, he was found guilty by the international criminal court for intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in 2012.

Case study: Islamic State

However, international law is not always able to protect cultural heritage sites or prosecute war criminals. In 2012, Islamic State (IS) was responsible for damage to Aleppo’s Souq al-Medina, a world heritage site. In 2015, the militant group also destroyed the Arch of Triumph and the Temple of Bel in Palmyra. UNESCO has condemned these acts as a war crime aimed at wiping out a symbol of Syria’s diverse cultural heritage. In 2017 ISIS supposedly blew up the Great Mosque of al-Nuri in Mosul, Iraq. In 2016, it was estimated that looting and selling of archaeological artefacts enabled IS to acquire capital ranging between $4 million to $7 billion.

In relation to the destruction of the Mosul mosque, Alexander Herman, the assistant director of the Institute of Art and Law, writes: “despite the deplorable act committed, there is very little that can be offered under international criminal law or international law more generally”.

For a crime to be prosecuted before the International Criminal Court (ICC), the country in question needs to have signed up to the Rome Statute of 1998. However, Iraq never proceeded to do so. An alternative course of action could be through the Hague Convention of 1954 which imposes that any acts of aggression and war directed against cultural property are prohibited with the exception of inevitable military necessity. However, Iraq is unable to seek justice through the 1954 Hague Convention because IS is not a state, and under the convention, only a state can be held accountable for its crimes.

Although international law related to cultural heritage is subject to many restrictions and does not necessarily guarantee the optimal outcome, the absence of international law would prove to be even more problematic. But it is clear that a one-size-fits-all solution does not exist for the complex question of heritage.

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