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The Meaning of ‘Cultural Property’ under the 1954 Hague Convention

  • Roger O'Keefe
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The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict has, until recently, sat on the sidelines of humanitarian law. One reason for this, which has been overlooked to date, is a seemingly widespread though rarely confessed confusion over the nature and extent of the ‘cultural property’ to which it applies. Article 1 defines cultural property within the meaning of the Convention as: ‘movable or immovable property of great importance to the cultural heritage of every people …’

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2. 249 UNTS p. 240, reproduced in Roberts, A. and Guelff, R., eds., Documents on the Laws of War, 2nd edn. (Oxford, Clarendon Press 1989) No. 22.

3. One UNESCO representative also referred frankly in 1984 to ‘a loss of interest in an instrument which rarely hits the headlines’: M. Makagiansar, ‘The Thirtieth Anniversary of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954): Results and Prospects’, in Istituto Internazionale di Diritto Umanitario, The International Protection of Cultural Property. Acts of the Symposium Organized on the Occasion of the 30th Anniversary of the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflicts (Rome, Fondazione Europea Dragan 1986) pp. 27 et seq. at p. 39. The ‘revitalization of the Convention’ called for by Makagiansar (ibid.) has since been embarked upon and will culminate in a Diplomatic Conference to be held in The Hague from 15 to 26 March 1999: see infra and generally Hladik, J., ‘The Review Process of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and Its Impact on International Humanitarian Law’, 1 YIHL (1998) p. 313;Donald, A. Mc, ‘The Year in Review’, 1 YIHL (1998) p. 113 at pp. 135–136.

4. This article deals only with cultural property qualifying for ‘general protection’ under chapter I of the Convention. It does not consider cultural property eligible for ‘special protection’ in accordance with chapter II.

5. Art. 1, sub-para. (a) goes on to give examples of cultural property, ‘such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above’. This list is purely illustrative, not exhaustive. The property encompassed by sub-paras. (b) and (c) depend on the basic definition of cultural property given in sub-para. (a).

6. This is evident from the fact that Arts. 6, 10, 16 and 17 establish a scheme under which cultural property to which the Convention applies is rendered clearly identifiable by the affixing of a distinctive emblem by the authorities of the state on whose territory it is situated. In addition, Art. 3 imposes a prior peacetime obligation on the territorial state to take active measures of safeguard in respect of cultural property. Moreover, the territorial state is obliged under Art. 26(2) to report periodically to the UNESCO Director-General on such measures. All this posits the territorial state – and not an attacking force at the moment of targeting – as the one responsible for delimiting in advance the Convention's application to specific property.

7. See Boylan, P J., Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954) (Paris, UNESCO 1993), UNESCO Doc. CLT-93/WS/12, ch. 3 and Appendix VI. See, similarly, Breucker, J. de, ‘Pour les vingt ans de la Convention de La Haye du 14 mai 1954 pour la protection des biens culturels’, 11 Rev. belge de droit int. (1975) p. 525 at p. 532. For verbatim restatement of Art. 1 as a substitute for analysis, see Williams, S.A., The International and National Protection of Movable Cultural Property. A Comparative Study (Dobbs Ferry, N.Y., Oceana Publications 1978) p. 36.

8. Boylan, op. cit. n. 7, para. 3.1.

9. Ibid., para. 3.11.

10. Kalshoven, F., Restraints on the Waging of Law, 2nd edn. (Geneva, ICRC 1991) p. 37.

11. Nahlik, S.E., ‘Protection of Cultural Property’, in UNESCO, International Dimensions of Humanitarian Law (Geneva, Henry Dunant Institute 1988) pp. 203 et seq. at p. 206 [emphasis added]. See also Nahlik, S.E., ‘La protection internationale des biens culturels en cas de conflit armé’, 120 Recueil des cours (1967–1) p. 61 at p. 122 (‘the intrinsic characteristics of an object’) [author's translation] and at p. 146; but cf., S.E. Nahlik, ‘Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague 1954: General and Special Protection’, in Istituto Internazionale di Diritto Umanitario, op. cit. n. 3, pp. 87 et seq. at pp. 89, 95.

12. The closest to doing this has been Frigo, M., La protezione dei beni culturali nel diritto internazionale (Milan, Giuffrè 1986) pp. 143151.

13. Green, L.C., The Contemporary Law of Armed Conflict (Manchester, Manchester University Press 1993) p. 145, fn. 184. See, similarly, Rogers, A.P.V., Law on the Battlefield (Manchester, Manchester University Press 1996) p. 90;Partsch, K.J., ‘Protection of Cultural Property’, in Fleck, D., ed, The Handbook of Humanitarian Law in Armed Conflicts (Oxford, Oxford University Press 1995) pp. 377 et seq. at p. 382.

14. Przyborowska-Klimczak, A., ‘Les notions des “biens culturels” et du “patrimoine culturel mondial” dans le droit international’, 18 Polish YIL (1989–1990) p. 47 at p. 53; Nahlik (1986), op. cit. n. 11, pp. 89, 95;Clément, E., ‘Le concept de responsabilité collective de la communauté internationale pour la protection des biens culturels dans les conventions et raccommendations de l'UNESCO’, 26 Rev. belge de droit int. (1993) p. 534 at p. 551. See also ‘Address by Mr Nagendra Singh at the celebration of the thirtieth anniversary of the Hague Convention’, in ‘Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict’, 1984 Reports, UNESCO Doc. CLT/MD/3, pp. 14 et seq. at p. 15; and, slightly more equivocally, Solf, W., ‘Cultural Property, Protection in Armed Conflict’, in Bernhardt, R., ed., Encyclopaedia of Public International Law, Vol. 9 (Amsterdam, North-Holland 1986) pp. 64 et seq. at p. 67;Toman, J., The Protection of Cultural Property in the Event of Armed Conflict (Paris/Aldershot, UNESCO/Dartmouth 1996) pp. 4950;Seršić, M., ‘Protection of Cultural Property in Time of Armed Conflict’, 27 NYIL (1996) p. 3 at p. 9.

15. Malintoppi, without citing figures, speaks of the Convention as protecting ‘a vast category of cultural property’: Malintoppi, A., ‘La protezione “speciale” della città del Vaticano in caso di conflitto armato’, 43 Rivista di diritto internazionale (1960) p. 607 at p. 609 [author's translation].

16. ‘Legality of the Threat or Use of Nuclear Weapons’, Advisory Opinion, ICJ Rep. (1996) p. 226 at p. 467.

17. But see infra n. 98 for the number of buildings to which Germany applies the Convention in actual practice.

18. Art. 19(1) of the Convention states: ‘In the event of an armed conflict not of an international character occurring within the territory of one of the high contracting parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property’.

20. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS p. 3, reproduced in Roberts and Guelff, op. cit. n. 2, No. 26. For an updated list of States Parties, see http://www.icrc.org/unicc/icrcnews.nsf.

21. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS p. 609, reproduced in Roberts and Guelff, op. cit. n. 2, No. 27. For an updated list of States Parties, see http://www.icrc.org/unicc/icrcnews.nsf.

22. ‘Article 53 – Protection of cultural objects and places of worship Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:

(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;

(b) to use such objects in support of the military effort;

(c) to make such objects the object of reprisals’.

23.Article 16 – Protection of cultural objects and of places of worship

Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort’.

24.Article 4 – Respect for cultural property

1. The high contracting parties undertake to respect cultural property situated within their own territory as well as within the territory of other high contracting parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.

2. The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where imperative military necessity requires such a waiver’.

25. Solf, op. cit. n. 14, at pp. 67–68; J. de Preux, ‘La Convention de La Haye et le récent développement du droit des conflits armés’, in Istituto Internazionale di Diritto Umanitario, op. cit. n. 3, pp. 107 et seq. at pp. 113–114; Sandoz, Y., Swinarski, C. and Zimmermann, B., eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, International Committee of the Red Cross 1987) para. 2072;Toman, J., ‘La protection des biens culturels dans les conflits armés internationaux; cadre juridique et institutionnel’, in Swinarski, C., ed., Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet (The Hague, Martinus Nijhoff 1984) pp. 559 et seq. at p. 565 and Toman, J., ‘La protection des biens culturels en cas de conflit armé non international’, in Haller, W., et al., eds., Im Dienst an der Gemeinschaft. Festschrift für Dietrich Schindler zum 65. Geburtstag (Basel, Helbing & Lichtenhahn 1989) pp. 311 et seq. at p. 335;David, E., Principes de droit des conflits armés (Brussels, Bruylant 1994) paras. 2.51–2.52.

26. See also Resolution 20(IV) of the Diplomatic Conference, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) (Bern, Federal Political Department 1978) (hereinafter, ‘Records (1974–1977)’, Vol. I, Part I, p. 213; Sandoz, Swinarski and Zimmermann, op. cit. n. 25, paras. 2046 (Prot. I) and 4832 (Prot. II). Several delegates placed great emphasis on the pre-eminence of the 1954 Convention: re Protocol I, see CDDH/SR.42, para. 12, Records (1974–1977), Vol. VI, p. 207 (Belg); CDDH/SR.42, Annex, Ibid., p. 224 (Can), p. 234 (Pol); CDDH/III/SR.15, para. 22, ibid., Vol. XIV, p. 121 (USSR); CDDH/III/SR.16/SR.16, para. 15, ibid., p.129 (Pol); CDDH/III/ SR.24, paras. 28–30, ibid., pp. 221–222 (Neth); re Protocol II, see CDDH/SR.52, paras. 2 and 7, ibid., Vol. VII, pp. 125, 126 (Belg); CDDH/SR.53, para. 4, ibid., p. 142 (FRG).

27. When they do address the question, there is a tendency among specialists on the laws of armed conflict (a tendency already noted in respect of the 1954 Hague Convention) to see Arts. 53 and 16 as applying only to ‘unique masterpieces’, an extremely limited class of objects asserted to correspond to that protected by the 1954 Hague Convention's regime of so-called ‘special’ protection: see Solf, op. cit. n. 14, at p. 67; see also de Preux, op. cit. n. 25, at pp. 113–116.

28. The only substantive difference between the two is that Protocol I, Art. 53(c), additionally forbids the taking of reprisals against cultural property.

29. With the exception, that is, of material manifestations of the spiritual heritage of peoples, as protected by Protocol I, Art. 53, and Protocol II, Art. 16. In practice, this additional category of property should not make a significant difference to the relative scope of the Protocols' application vis-à-vis the Convention. Most places of worship important enough to constitute the spiritual heritage of peoples will tend to be historic monuments and/or works of art which merit protection, under both the Protocols and the Convention, independently of their spiritual significance.

30. See Sandoz, Swinarski and Zimmermann, op. cit. n. 25, paras. 2039–2040, 2046 (Prot. I) and 4825–27 (Prot. II). See also CDDH/III/SR.16, para. 10, Records (1974–1977), supra n. 26, Vol. XIV, p. 129 (Neth).

31. Sandoz, Swinarski and Zimmermann, op. cit. n. 25, para. 4844 (Prot. II). See similarly ibid., para. 2064 (Prot. I). See also Toman, op. cit. n. 25, at pp. 333–334.

32. Sandoz, Swinarski and Zimmermann, op. cit. n. 25, para. 2064, fn. 23 (Prot. I). In this light, the terms ‘historic monuments’ and ‘works of art’ should be seen as generic terms whose full content is to gleaned from the detailed definition given in Art. 1 of the Convention: ibid., paras. 2068 (Prot. I) and 4838 (Prot. II). See also Partsch, op. cit. n. 13, at p. 382.

33. Prott, L.V. and O'Keefe, P.J., ‘“Cultural Heritage” or “Cultural Property”?’, 1 Int'l J Cult. Prop. (1992) p. 307 at pp. 312, 318.

34. Note that the definition of ‘cultural property’ under Art. 1 of the Convention is not cross-referable with the definition of ‘cultural property’ in UNESCO's subsequent Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, adopted in 1968 and reproduced in UNESCO, Conventions and Recommendations of Unesco Concerning the Protection of the Cultural Heritage (Paris, UNESCO 1985) pp. 149 et seq.; nor with that laid down in the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, reproduced in Ibid., pp. 59 et seq.; nor with that embodied in the 1976 Recommendation concerning the International Exchange of Cultural Property, reproduced in ibid., pp. 183 et seq. Each definition is tailored to the object and purpose of the particular instrument.

35. Reproduced in Evans, M.D., Blackstone's International Law Documents, 3rd edn. (London, Blackstone Press 1996) pp. 171 et seq.

36. In other words, the term is used in the Convention as shorthand for the more precise material cultural heritage, which excludes non-material elements like folklore, dance and crafts that are considered part of the cultural heritage in its widest sense. Note that the word ‘heritage’, as distinct from ‘property’, carries additional connotations that are not at issue here, implying obligations both communal and intergenerational: see Prott and O'Keefe, loc. cit. n. 33, at pp. 309–312; Prott, L.V., ‘The development of legal concepts connected with the protection of the cultural heritage’, in Blanpain, R., ed., Law in Motion. World Law Conference, Brussels, 9–12 September 1996 (The Hague, Kluwer Law International 1997) pp. 599 et seq. at pp. 612–616; A. Gattini, ‘Il Common Heritage of Mankind: una rivoluzione in diritto internazionale?’, 17–18 Communicazioni e studi (1985) p. 649 at p. 708. For the implications and difficulties for the Civil lawyer of the use of the term ‘heritage’ in this context, see Cornu, M., Le droit culturel des biens. L'intérêt culturel juridiquement protégé (Brussels, Bruylant 1996) pp. 2546; Frigo, op. cit. n. 12, at p. 293.

37. This confusion is added to by the secondary literature's frequent rendering of the phrase as ‘of all peoples’: see, e.g., Saba, H., The Protection of Movable Cultural Property. Compendium of Legislative Texts, Vol. 1 (Paris, UNESCO 1984) p. 17.

38. The French and Spanish texts of Protocol I, Art. 53 and Protocol II, Art. 16 speak identically of ‘le patrimoine culturel … des peuples’/‘el patrimonio cultural … de los pueblos’. Recall that where a treaty is authenticated in two or more languages, as is the Convention, the terms of the treaty are presumed to have the same meaning in each authentic text: Vienna Convention on the Law of Treaties, supra n. 35, Art. 33(3).

39. See Records of the Conference convened by the United Nations Educational, Scientific and Cultural Organization held at The Hague from 21 April to 14 May 1954 (The Hague, Staatsdrukkerijen uitgeverijbedrijf 1961) (hereafter ‘Records (1954)’). The preparatory works of a treaty are a supplementary source of interpretation under Art. 32 of the Vienna Convention on the Law of Treaties, supra n. 35.

40. The relevant drafting of Art. 1, both before and during the Conference, was done in committee and not recorded. No interpretative declarations were offered by the delegates after the provision's individual adoption.

41. Records (1954), supra n. 39, para. 128 (Belg), para. 164 (Fra), para. 165 (Ita), para. 869 (Den).

42. Ibid., para. 1 (Opening Address), para. 136 (USSR), para. 146 (FRG).

43. The first element is the notion of ‘the cultural heritage’, used as a form of shorthand to refer to objects or buildings of historic or artistic significance. The reference to ‘great importance’ derives from UNESCO's draft definition of property entitled to special protection (‘of very great cultural importance’), found in Arts. 13 and 14 of the draft Regulations: UNESCO Doc. CBC/3. The final strand of Art. 1 is an amendment proposed by the UK delegate which aimed to limit the Convention's protection to movable or immovable property ‘which by its intrinsic nature, is of high cultural value’: UNESCO Doc. CBC/DR/31.

44. Identically, speaking of the scope of Protocol 1, Art. 53, the ICRC Commentary explains that, ‘[i]n case of doubt, reference should be made in the first place to the value … ascribed to the object by the people whose heritage it is’: Sandoz, Swinarski and Zimmermann, op. cit. n. 25, para. 2065.

45. See also, more generally, Frigo, op. cit. n. 12, at pp. 143–151, esp. p. 144. Frigo rightly emphasises the dynamic and necessary interrelationship between international law and internal norms in the identification and evaluation of cultural property for the purposes of international legal protection: see ibid. and pp. 1–3, 24–34. Cornu, for her part, states unambiguously that the legal notion of ‘cultural property’ as used in international law ‘refer[s] back to national definitions’: Cornu, op. cit. n. 36, at p. 159 [author's translation].

46. Though not necessarily, as a matter of international law. See, generally, Frigo, op. cit. n. 12, at p. 145, esp. fn. 53.

47. It is crucial to appreciate at the outset that the overwhelming majority of states have legislation giving official protection to select immovable and movable property of a historic, artistic, architectural or similar character: Saba, supra n. 37, at p. 11. For a survey of national laws governing the protection of movable (and some immovable) cultural property, see ibid. and Saba, H., The Protection of Movable Cultural Property. Compendium of Legislative Texts, Vol. II (Paris, UNESCO 1984). See also Prott, L.V. and O'Keefe, P.J., Law and the Cultural Heritage. Volume III: Movement (Abingdon, Professional Books 1989) Annex I. As far as its in situ protection goes, cultural property of a movable nature need not originate in a country for it to be considered part of that country's cultural heritage, both under most domestic legislation and, more importantly, under Art. 1 of the Convention itself, which makes it clear that the term ‘cultural property’ covers all such property ‘irrespective of origin or ownership’.

48. The Preamble is considered an integral part of the text of a treaty and hence a primary means of its interpretation: Vienna Convention on the Law of Treaties, supra n. 35, Art. 31(2).

49. The context lent to the phrase in question by the terms surrounding it is a primary means of interpretation within the meaning of the general rule laid down in ibid., Art. 31(1).

50. The subsequent practice of the parties is a primary means of treaty interpretation: ibid., Art. 31(3)(b).

51. Fitzmaurice, G.G., ‘The Law and Procedure of the International Court of Justice, 1951–4: Treaty interpretation and Other Treaty Points’, 33 BYIL (1957) p. 203 at p. 229 [original emphasis]. Of course, ‘if there is a conflict, the latter will prevail’: ibid.

52. Ibid., at p. 227. See also Fitzmaurice, G.G., ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’, 28 BYIL (1951) p. 1 at p. 25. Indeed, the French delegate to the 1954 drafting conference expressed the view that ‘the Preamble was an important document constituting the frontispiece of the Convention’: Records (1954), supra n. 39, para. 860.

53. After introducing the term ‘the cultural heritage of all mankind’ in the preceding recital, the Preamble considers ‘that the preservation of the cultural heritage [of all mankind] is of great importance for all peoples of the world and that it is important that this heritage should receive international protection’.

54. The Director-General of UNESCO explicitly cited this recital in his two interventions of 1997 on behalf of the cultural heritage of Afghanistan imperilled by civil war: see UNESCOPRESS 97–61 and UNESCOPRESS 97–151. It is similarly on this part of the Preamble that Seršić bases her conclusion that ‘Contracting Parties are free to designate the objects in their territory which are important enough to be protected’: Seršić, op. cit. n. 14, at p. 9. See also Merryman, J.H., ‘Two Ways of Thinking About Cultural Property’, 80 AJIL (1986) p. 831 at pp. 836–837, esp. fn. 21 and Merryman, J.H., ‘The Public Interest in Cultural Property’, 77 Calif. L Rev. (1989) p. 339 at p. 343, esp. fn. 17. For a justification of the reading of ‘peoples’ as ‘nations’/‘states’ for present purposes, see infra.

55. ‘Address by Mr Nagendra Singh at the celebration of the thirtieth anniversary of the Hague Convention’, supra n. 14, at p. 15. In fact, in terms of the movable cultural heritage, cultural property situated in one country is often literally the cultural heritage of all mankind, since a country's museums and art galleries – particularly those of former imperial powers – are often filled with objects from all over the globe.

56. See Constitution of the United Nations Educational, Scientific and Cultural Organisation, 4 UNTS p. 275, Arts. IV and VIII. For a brief explanation of the workings and status of UNESCO recommendations and declarations, see Marks, S.P., ‘Education, Science, Culture and Information’, in Schachter, O. and Joyner, C., United Nations Legal Order, Vol. 2 (Cambridge, The American Society of International Law 1995) pp. 577 et seq. at pp. 578–582, 621–625;Wolfrum, R. and Philipp, C., United Nations: Law, Policies and Practice, Vol. 2 (Dordrecht, Martinus Nijhoff 1995) pp. 13071308;Saba, H., ‘Unesco and Human Rights’, in Vasak, K. and Alston, P., The International Dimensions of Human Rights, Vol. 2 (Westport, CT: Greenwood Press 1982) pp. 401 et seq. at pp. 402–403.

57. Note that while the definition of the term ‘cultural property’, where it appears, varies with each standard-setting instrument (see supra n. 34), the content of the underlying vision of the cultural heritage of mankind remains consistent.

58. Adopted in 1976, reproduced in UNESCO, op. cit. n. 34, pp. 193 et seq.

59. LNOJ, 13th Year, No. 11 (Nov. 1932), p. 1776.

60. Similarly, using the term ‘cultural property’ itself, the Preamble to UNESCO's Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, supra n. 34, declares ‘that cultural property is the product and witness of the different traditions’.

61. See, for example, the Declaration of Principles of International Cultural Co-operation, adopted 1966, UNESCO Doc. 14 C/Resolutions, p. 86, Art. 1(3); the Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It, UNESCO Doc. 19 C/Resolutions, Annex I, p. 29, paras. 2(c) and 4(f); and the Recommendation on the Safeguarding of Traditional Culture and Folklore, adopted 1989, reproduced at http://www.unesco.org/culture/ch/intangible/intangible7a.htm, esp. Preamble, first recital. See also, very clearly, Saba, op. cit. n. 56, at p. 402.

62. See the Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, supra n. 34, Art. 2: ‘The term “cultural property” includes not only the established and scheduled architectural, archaeological and historic sites and structures, but also the unscheduled or unclassified vestiges of the past as well as artistically or historically important recent sites and structures.’ See also ibid., Art. 3; and, almost identically, Art. 3 of UNESCO's 1962 Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites, reproduced in UNESCO, op. cit. n. 34, pp. 127 et seq., which covers, inter alia, man-made sites.

63. See the UNESCO- and UN-sponsored World Commission on Culture and Development, Our Creative Diversity. Report of the World Commission on Culture and Development, 2nd rev. edn. (Paris, UNESCO 1996) pp. 24–25: ‘A country's culture … is dynamic and continually evolving … [and this] is the fountain of our progress and creativity.’ See also Prott, L.V., ‘Cultural Rights as Peoples' Rights in International Law’, in Crawford, J., The Rights of Peoples (Oxford, Clarendon Press 1988) pp. 93 et seq. at p. 95. As with the non-material culture, so too with the material. In Prott's straightforward words, ‘Not every thing can, or ought to be, kept’: Prott, L.V., ‘Problems of Private International Law for the Protection of the Cultural Heritage’, 217 Recueil des cours (1989-V) p. 215 at p. 226.

64. See Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas, supra n. 58, Art. 18. The need for selectivity imposed by finite resources is emphasised in World Commission on Culture and Development, supra n. 63, p. 177.

65. ‘Recall that what is at issue here is the legal definition with all the limitations it entails, and not the definition of what should be [considered] cultural property in abstracto’: Cornu, op. cit. n. 36, at p. 161, fn. 479 [author's translation]. That is, ‘[f]rom a legal point of view, not all property which represents the material expression of a culture or civilisation can be considered cultural property’: Frigo, op. cit. n. 12, at p. 25 [author's translation] and, generally, ibid., pp. 25–34.

66. See Recommendation on International Principles Applicable to Archaeological Excavations, adopted 1956, reproduced in UNESCO, op. cit. n. 34, pp. 103 et seq., Art. 2; Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, supra n. 34, Art. 5; Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property, adopted 1964, reproduced in ibid., pp. 139 et seq., Art. 2; Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites, supra n. 62, Art. 4; Convention on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property, supra n. 34, Art. 1; Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, adopted 1972, reproduced in ibid., pp. 165 et seq., Art. 40; Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas, supra n. 58, Art. 18; Recommendation for the Protection of Movable Cultural Property, adopted 1978, reproduced in ibid., pp. 211 et seq., Art. 2. See also the UNESCO-sponsored Sykes, M.H., Manual on Systems of Inventorying Immovable Cultural Property (Paris, UNESCO 1984), esp. pp. 2123; and Saba, op. cit. n. 37, at pp. 31–34; Prott and O'Keefe, op. cit. n. 47, at pp. 26–30.

67. Prott and O'Keefe, op. cit. n. 33, at pp. 309, 311.

68. Wyss, M.P., ‘The Protection of the Cultural Heritage and its Legal Dimensions: The Heidelberg Symposium 22–23 June 1990’, 1 Int'l J Cult. Prop. (1992) p. 232 at p. 234.

69. See also Mastalir, R.W., ‘A Proposal for Protecting the “Cultural” and “Property” Aspects of Cultural Property Under International Law’, 16 Fordham ILJ (1992–1993) p. 1033 at p. 1061, fn. 106. Frigo mistakenly cites the use of ‘the common heritage of mankind’ in both the 1954 Hague Convention and the World Heritage Convention: M Frigo, ‘Reflexions sur quelques aspects juridiques de la protection Internationale des biens culturels’, in Istituto Internazionale di Diritto Umanitario, op. cit. n. 3, pp. 215 et seq. at pp. 215, 221, fn. 2. For two particularly egregious examples of terminological confusion, see Williams, op. cit. n. 7, pp. 52–54 and Reichelt, G., ‘International Protection of Cultural Property’, 1 Uniform L Rev. (1985) p. 43 at p. 79.

70. Note, however, that Art. 27 of the early Recommendation on International Principles Applicable to Archaeological Excavations, supra n. 66, does refer to ‘the common archaeological heritage’.

71. See, generally, Gattini, op. cit. n. 36, esp. at p. 652, fn. 2; Frigo, op. cit. n. 12, at pp. 282–310; Dolzer in Weiss, op. cit. n. 68, at p. 234; Prott, op. cit. n. 36, at p. 617.

72. See Recommendation concerning the International Exchange of Cultural Property, supra n. 34, Art. 2; Recommendation for the Protection of Movable Cultural Property, supra n. 66, Preamble.

73. The term is notably absent from what might be called the ‘protectionist’ instruments relating to movable cultural property, namely the Recommendation and subsequent Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property, supra nn. 66 and 34 respectively, both of which seek to uphold the integrity of each state's national heritage of artefacts and artworks.

74. For the potential legal content of the term ‘mankind’, see Frigo, op. cit. n. 12, at pp. 293–294; Gattini, op. cit. n. 36, at pp. 708–710; Kiss, A.-C., ‘La notion de patrimoine commun de l'humanité’, 175 Recueil des cours (1982–II) p. 99 at pp. 235–240;Wolfrum, R., ‘The Principle of the Common Heritage of Mankind’, 43 ZaöRV (1983) p. 312 at pp. 318–319. For an analysis of the intergenerational interests thereby implied, see Agius, E., et al., eds., Future generations in international law (London, Earthscan Publications 1998).

75. Even then, the phrase's currency in respect of movable cultural property is less technical than inspirational: see Frigo, op. cit. n. 12, p. 304. Part XI of the 1982 UN Convention on the Law of the Sea (UN Doc. A/CONF.62/122, reproduced in Evans, op. cit. n. 35, pp. 280 et seq.) and Art. 11(1) of the 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies (UN Doc. A/RES/34/68, reproduced in ibid., pp. 259 et seq.), both of which embody the notion of the common heritage of mankind, pertain to geographical areas outside the jurisdiction of any state. On the other hand, the two UNESCO Recommendations which use the term deal with (cultural) resources situated squarely within a state's sphere of sovereignty, the right to ‘exploit’ which is incontestable. By way of distinction between the two, Kiss speaks helpfully of ‘the common heritage of mankind by nature’ to refer to the deep seabed, the moon and other celestial bodies; and of ‘the common heritage of mankind by dedication’ to refer to resources – notably, immovable cultural property – situated within the sovereign sphere of states: Kiss, op. cit. n. 74, at pp. 225–232 [author's translation].

76. For a rare example of the conscious use of the phrase ‘common heritage’ to this effect, see the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, reproduced in Evans, op. cit. n. 35, pp. 43 et seq., Preamble, 5th recital, which speaks of ‘European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law …’ But cf., the CSCE's Guidelines for the Future, 30 ILM (1991) p. 199 at p. 204: ‘We recognise the essential contribution of our common European culture … in overcoming the division of the continent. Therefore, we underline our attachment … to the protection of our cultural and spiritual heritage, in all its richness and diversity’ [emphasis added].

77. The feature which unites the common heritage as applicable to cultural property with the common heritage by nature is ‘the notion of trust: the cultural heritage … must be conserved and dealt with … on behalf of the international community as a whole, present and future, and in its interest’: Kiss, op. cit. n. 74, at p. 229 [author's translation, original emphasis]. (In French, Kiss speaks elsewhere of states acting ‘en tant que mandataire (trustee)’, ‘comme administrateur d'une tutelle (trust)’ and ‘en tant que dépositaires, mandataires, trustees’: ibid., at pp. 115, 118, 231–232 respectively [original emphasis]). See also, generally, ibid., at pp. 128–134, 171.

78. For example, when the UNESCO Director-General appealed to the warring parties in Afghanistan to respect ‘the common cultural patrimony’, he used the phrase in the sense of ‘a heritage that belongs ultimately to all humanity’, thereby underscoring the responsibility incumbent upon the belligerents: UNESCOPRESS 97–151. Similarly, a UNESCO website on the World Heritage Convention entitled Our Common Heritage describes cultural sites as ‘a common heritage’ for the reason that their ‘disappearance would be an irreparable loss for each and every one of us’ and hence their ‘preservation … concerns us all’: http://www.unesco.org/whc/intro-en.htm, p. 1.

79. 1037 UNTS p. 151, reproduced in UNESCO, op. cit. n. 34, pp. 77 et seq.

80. 1984 Reports, supra n. 14, at p. 39.

81. http://www.unesco.org/whc/intro-en.htm, p. 1 [emphasis added]. The Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas, supra n. 58, Art. 2, uses the term ‘universal heritage’ (‘patrimoine universel’) in a similar way, as does the Recommendation on the Safeguarding of Traditional Culture and Folklore, supra n. 61, Preamble (‘universal heritage of humanity’). Somewhat confusingly, the French phrase ‘patrimoine universel’ is elsewhere rendered in English as ‘the world's inheritance’: see Constitution of UNESCO, supra n. 56, Art. 1(2)(c).

82. Commonwealth of Australia v. State of Tasmania, 68 ILR p. 266 at p. 373, per Murphy J.

83. Even more so the epistemologically dubious recourse to self-evidence. Nahlik opines that ‘a work of art [as protected by the Convention] has qualities surpassing those embodied in the works of ordinary craftsmanship, a unique character, marking the individual genius of its creator’: Nahlik (1988), op. cit. n. 11, at p. 203. Similarly, Vedovato speaks of the Convention as protecting ‘such a great miracle of creative genius, such a bright light of cultural beauty, such a deep richness of spiritual perfection’: Vedovato, G., ‘La Protezione del Patrimonio Storico, Artistico e Culturale nella Guerre Moderna’, 2 Recueils de la Société Internationale de Droit Pénal Militaire et de Droit de la Guerre (1961) p. 117 at p. 119 [author's translation]. In practice, such purple prose tends merely to mask faintly hegemonic prescripts of taste.

84. World Commission on Culture and Development, op. cit. n. 63, at p. 29.

85. Ibid., at p. 16. See, almost identically, ‘General Conference closes with a rousing call for the preservation of cultural diversity’, UNESCOPRESS 97–219. See also Dupuy, R.-J., ‘Conclusions du colloque’, in Dupuy, R.-J., ed., L'avenir du droit international dans un monde multiculturel. Colloque, La Haye, 17–19 novembre 1983 (The Hague, Martinus Nijhoff 1984) pp. 447 et seq. at pp. 463–464.

86. Sax, J.L., ‘Heritage Preservation as a Public Duty: The Abbé Grégoire and the Origins of an Idea’, 88 Mich. L Rev. (1990) p. 1142 at p. 1144, fn. 8 [emphasis added]. See also Prott and O'Keefe, op. cit. n. 33, at pp. 311, 318; Saba, op. cit. n. 37, at p. 30.

87. The UK's first historic preservation legislation went by the name of the Ancient Monuments Protection Act 1882. The current legislation is the Ancient Monuments and Archaeological Areas Act 1979, as amended by the National Heritage Act 1983. For a pancontinental survey of national legislation, thirty-eight examples of which refer to ‘monuments’, see Prott, L.V. and O'Keefe, P.J., Law and the Cultural Heritage. Volume I: Discovery and Excavation (Abingdon, Professional Books 1984) pp. 3767. See also ‘Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague 1954’, 1995 Reports, CLT-95/WS/13, pp. 30, 40, 42.

88. Babelon, J.P. and Chastel, A., ‘La notion du patrimoine’, 49 Revue de l'art (1980) p. 5 at pp. 18, 19, 21; Sax, loc. cit. n. 86, at p. 1144, fn. 8.

89. Loi du 31 décembre 1913 sur les monuments historiques.

90. Babelon and Chastel, loc. Cit. n. 88, at p. 21; Parent, M., ‘La problématique du patrimoine architectural légal: Les “monuments historiques”‘, 49 Revue de l'art (1980) p. 84 at p. 87.

91. 35 ILM (1996) p.75 at pp. 141 et seq.

92. Ibid., Art. IV.

93. ‘Monuments’, within the meaning of Art. 1, refers to buildings and structures which have some historic or artistic importance in themselves, as distinct from (or in addition to) what they house. The term should be taken to include ‘constructions of a certain age and design, whatever their purpose, as well as monuments, in the more limited sense, erected to commemorate some event or person’: UNESCO Docs. 5C/PRG/6, Annex I, para. XV and 7C/PRG/7, Annex 1, p. 7.

94. It is permissible to take into account, as a primary means of interpretation, any subsequent practice in the application of the Treaty which establishes the agreement of the parties regarding its interpretation: Vienna Convention on the Law of Treaties, supra n. 35, Art. 31(3)(b).

95. In the past, the Director-General has called for these reports on a somewhat ad hoc basis, rather than at a regular interval of four years as laid down in Art. 26(2). See ‘Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague 1954’, 1967 Reports, UNESCO Doc. SHC/MD/1; 1970 Reports, SHC/MD/6; 1979 Reports, CC/MD/41; 1984 Reports, supra n. 14; 1989 Reports, CC/MD/11; 1995 Reports, supra n. 87.

96. It should be noted that, on the question of the Convention's scope of application, the probative value of the periodic reports is not wholly satisfying, particularly as regards the earlier reports. The information given by states has often been sketchy, with only passing or no reference to Art. 1. Moreover, the proportion of high contracting parties who actually submit reports at all has been very disappointing. See, generally, Boylan, op. cit. n. 7, ch. 8; Toman, op. cit. n. 14, at p. 281. Nonetheless, the periodic reports do provide sufficient grounds on which to base conclusions at the level of generality offered here. In addition, the most recent batch of reports – published in 1995 – reveals a marked improvement in both the quality and quantity of the information received.

97. This approach is made sufficiently clear by Belarus, 1995 Reports, supra n. 87 at p. 17; Bulgaria, ibid., at p. 19; Croatia, ibid., at p. 22; Germany, ibid., at p. 24; Iran, ibid., at p. 31; Liechtenstein, ibid., at p. 35; Madagascar, ibid., at p. 36; Slovenia, ibid.; Switzerland, ibid., at pp. 43–44; Ukraine, ibid., at p. 48; India, 1989 Reports, supra n. 95, at p.16; Netherlands, ibid., at p. 27; Norway, ibid., at p. 30; the former USSR, ibid., at p. 38; Hungary, 1979 Reports, supra n. 95, at p. 19; Iraq, ibid., at p. 20; Austria, ibid., at p. 22; Niger, ibid., at p. 25; Luxembourg, 1970 Reports, supra n. 95, at p. 16; Albania, 1967 Reports, supra n. 95, at pp. 11–12; San Marino, ibid., at p. 33.

98. For example, it is clear that Germany, in casting the Convention's protection over 10,000 monuments in the former West alone (1995 Reports, supra n. 87, at p. 24), is still applying it rather sparingly. If we can rely on the figures cited by Judge Weeramantry, ‘[t]he number of listed monuments in the Federal Republic of Germany alone, in 1986, was around 1 million … ’: ‘Legality of the Threat or Use of Nuclear Weapons’, Advisory Opinion, ICJ Rep. (1996) p. 226 at p. 467 (diss. op. Weeramantry).

99. Australia's most recent report declares explicitly that the relevant Australian authorities ‘are currently developing “The Register of the National Estate”. The Register is a national list or inventory of places which make up Australia's … historic and Aboriginal and Torres Strait Islander heritage … It is envisaged that the Register may well be used as a basis for Australia's identification of its cultural property [within the meaning of the Convention] in the future … ’: 1995 Reports, supra n. 87, at p. 17. Similarly, Ukraine's 1995 report refers to ‘work on the compilation of the Register of National Cultural Heritage … [which] will coincide with the identification of cultural property as defined in the Convention’: ibid., at p. 48.

100. Only three states have, in the past, come down firmly in favour of a highly restrictive scope of application for the Convention, although more have probably tended in this direction without saying so in their reports or without reporting at all. Poland has previously drawn a very firm distinction between ‘the total heritage of Polish immovable cultural property’, which numbered 36,000 items, and ‘particularly remarkable cultural property worthy of being given … general protection’: 1967 Reports, supra n. 95, at p. 31, para. l.a. (It is unclear from the country's latest report whether this remains its approach: see 1995 Reports, supra.n. 87, at pp. 40–41.) See also, more equivocally, the former Federal Socialist Republic of Yugoslavia, 1989 Reports, supra n. 95, at p. 39. (Again, the current position of the Federal Republic of Yugoslavia is difficult to ascertain: 1995 Reports, supra n. 87, at pp. 25–28.) Spain has formerly distinguished explicitly between its ‘entire architectural heritage’ and ‘the list of items of cultural property as defined under Article 1 of the Convention’, characterising the latter as being ‘practically identical to the list … transmitted to the World Heritage Committee’ for consideration for inclusion on the World Heritage List: 1984 Reports, supra n. 14, at p. 39.

101. 1995 Reports, supra n. 87, at p. 31. Similarly, Ukraine states that its Register of National Cultural Heritage ‘will include movable and immovable property of great importance for national consciousness which shows the contribution of the Ukrainian people to the world's cultural heritage’: ibid., at p. 48.

102. Ibid., at p. 34.

103. Of the states which have cited figures, the Netherlands has spoken of 43,000 items of immovable cultural property as enjoying protection: 1989 Reports, supra n. 95, at p. 27; Bulgaria, 39,412 immovables: 1995 Reports, supra n. 87, at p. 19; Austria, 25,000: 1979 Reports, supra n. 95, at p. 13; Australia, 10,721 places on the National Register, both cultural and natural (although it is unclear how many cultural immovables will enjoy Convention's protection): 1995 Reports, supra n. 87, at p. 17; Germany, 10,000 immovables in the former West Germany alone stated as already bearing the Convention's distinctive sign (but whether more are considered protected is uncertain): ibid., at p. 24; Slovenia: 5,550: ibid., at p. 42. Iraq's protected archaeological sites alone number 10,000, as formally registered and gazetted: 1989 Reports, supra n. 95, at p. 20. Owing to its vast size, the former USSR had an inventory of 254,000 historic monuments or groups of historic monuments: ibid., at p. 38.

104. 1995 Reports, supra n. 87, at p. 20.

105. Toman, op. cit. n. 14, at p. 49.

106. Nahlik (1986), op. cit. n. 11, at p. 95.

107. See Saba, op. cit. n. 37, at pp. 30–36; Prott (1997), op. cit. n. 36, at p. 613; Frigo, op. cit. n. 12, at pp. 35–38.

108. ‘Some restraint as to proliferation may be expected from the obligation under Art. 4(1) to refrain from any use of the property and its immediate surroundings which [is] likely to expose it to destruction or damage’: Solf, op. cit. n. 14, at p. 67.

109. See, generally, Parent, loc. cit. n. 90; Babelon and Chastel, op. cit. n. 88, at pp. 8, 19–30; Lowenthal, D., The Past is a Foreign Country (Cambridge, Cambridge University Press 1985);Choay, F., L'allégorie du patrimoine (Paris, Éditions du Seuil 1992);Gamboni, D., The Destruction of Art: Iconoclasm and Vandalism since the French Revolution (London, Reaktion Books 1997) ch. 11 and 15.

110. For example, the English stately home has fared differently at different times under successive Conservative, Liberal and Labour governments: see Mandler, P., The Fall and Rise of the Stately Home (New Haven, Yale University Press 1997); G. Worsley, ‘Stately homes relived’, Times Literary Supplement No. 4938, 21 Nov. 1997, pp. 4–5 (but note that the United Kingdom is not in fact a party to the Convention.)

111. For example, in a somewhat overstated criticism, it has been argued that, until relatively recently, the public and private organisations responsible for heritage preservation in Great Britain fostered intensely conservative and perhaps reactionary notions of ‘the national heritage’: see Wright, P., On Living in an Old Country (London, Verso 1985);Hewison, R., The Heritage Industry. Britain in a Climate of Decline (London, Methuen 1987). For a discussion of this claim, see Samuel, R., Theatres of Memory. Vol. 1: Past and Present in Contemporary Culture (London, Verso 1994), esp. pp. 227312;Lowenthal, D., The Heritage Crusade and the Spoils of History (New York, The Free Press 1996), esp. pp. 80, 95–96;Colley, L., ‘Looking for ourselves. Uses and abuses of the heritage idea’, Times Literary Supplement No. 4909, 2 May 1997, p. 8.

112. Nonetheless, whatever the leanings of particular high contracting parties, it is crucial to keep in mind that Art. 1 of the Convention does not itself embody a specifically high-, middle- or low-brow view of cultural property. Note also that UNESCO's Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, supra n. 66, Art. 5, states that the cultural heritage comprises ‘not only works of great intrinsic value, but also more modest items that have, with the passage of time, acquired cultural … value’.

113. The retention of a degree of national discretion for the purpose of protecting the cultural heritage, as opposed to preventing the circulation of its movable manifestations, is acknowledged as necessary even by opponents of so-called ‘cultural nationalism’. ‘Obviously, nations have a legitimate interest, if not a duty, to protect their cultural treasures from [physical] dangers. Cultural protection of this kind benefits not only the native culture but all of mankind’: Roberts, E.L., ‘Cultural Policy in the European Community: A Case Against Excessive National Retention’, 28 Texas ILJ (1993) p. 191 at p. 211. See, similarly, Nahlik (1967), op. cit. n. 11, at p. 158; Merryman, J., ‘The Nation and the Object’, 3 Int'l J Cult. Prop. (1994) p. 61 at pp. 70–71.

114. See supra n. 103.

115. In the definition of cultural property under the Convention, ‘the conviction was expressed that the establishment of identical criteria for every country, without distinction as to the grandeur or comparative state of their respective cultural heritages, would be unjust’: Przyborowska-Klimczak, op. cit. n. 14, at p. 53 [author's translation]. Nieć sees this as the ‘practical realization of the principle that in international relations the cultures of individual nations are equal and … [that] each nation contributes its own unique share to the cultural heritage of mankind’: Nieć, H., ‘Sovereign Rights to Cultural Property’, 4 Polish YIL (1971) p. 239 at p. 250, endorsed by Prott and O'Keefe, op. cit. n. 47, at p. 732.

116. See also World Commission on Culture and Development, op. cit. n. 63, at pp. 16–17, 53–75, 239–245. Revealingly, under Art. VI of the UNESCO-influenced Annex 8 to the Dayton Agreement, supra n. 91, a ‘National Monument’ of the Republic of Bosnia-Herzegovina is defined as ‘movable or immovable property of great importance to [any] group of people with common cultural, historic, religious or ethnic heritage’ comprising part of the overall cultural mosaic of Bosnia-Herzegovina.

117. See Nahlik (1967), op. cit. n. 11, at pp. 156–157.

118. This is how the term is used in the Preamble to UNESCO's Declaration of the Principles of International Cultural Co-operation, supra n. 61: ‘Considering that the Organization's Member States … have agreed and determined to develop and increase the means of communications between their peoples ….’ [emphasis added]. Note also the choice of terminology in Art. 1(2) of the Declaration, namely that ‘[e]very people has the right and duty to develop its culture’ [emphasis added].

119. Prott (1988), op. cit. n. 63, at p. 102.

120. See the respective Preambles of the Recommendation on International Principles Applicable to Archaeological Excavations, supra n. 66 (which refers to ‘peoples’, ‘nations’ and ‘States’); the 1960 Recommendation concerning the most Effective Means of Rendering Museums Accessible to Everyone, reproduced in UNESCO, op. cit. n. 34, pp. 117 et seq. (‘peoples’ and ‘nations’); the Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites, supra n. 62; the Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, supra n. 34; the Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, supra n. 66; and the 1980 Recommendation for the Safeguarding and Preservation of Moving Images, reproduced in ibid., pp. 227 et seq. As well as the passages of the Declaration of the Principles of International Cultural Co-operation, supra n. 61, cited supra at n. 118, see Arts. 4, 5 and 9 (distinguishing among ‘peoples’, ‘nations’ and ‘States’).

121. Separately, such an interest might also conceivably be asserted in the human rights context as an incident of the right to take part in cultural life, as recognised by Art. 27 of the Universal Declaration of Human Rights (UNGA Res. 217A(111), reproduced in Evans, op. cit. n. 35, pp. 39 et seq.) and Art. 15 of the International Covenant on Economic, Social and Cultural Rights (993 UNTS p. 3, reproduced in Evans, op. cit. n. 35, pp. 160 et seq.). See, generally, O'Keefe, R., ‘The “Right to Take Part in Cultural Life” under Article 15 of the ICESCR’, 47 ICLQ (1998) p. 904. Prott and O'Keefe also assert, in the abstract, ‘the right of each community to define its own cultural heritage’: Prott and O'Keefe, op. cit. n. 47, at p. 927.

122. See, generally, Prott and O'Keefe, op. cit. n. 87, at p. 29; Prott (1988), op. cit. n. 63, at p. 101. This conclusion blurs Crawford's clear delineation between the use of the term ‘peoples’ in international law to refer to governments and its use to refer to groups or communities as opposable to governments: J. Crawford, ‘The Rights of Peoples: “Peoples” or “Governments”?’, in Crawford, op. cit. n. 63, pp. 55 et seq.

123. In this light, see the ILC's reference to the North Atlantic Coast Fisheries Case and the Case concerning Rights of US Nationals in Morocco in its commentary on what eventually became VCLT, Art. 26: ILC Yearbook (1966–II) p. 211, para. 2. On the same principle and same cases, see also Zoller, E., La bonne foi en droit international public (Paris, Pedone 1977) paras. 79–80. For the distinction between breach of treaty and bad faith, see ibid., para. 71.

124. Supra n. 66, Art. 4. Similarly, the Recommendation on the Safeguarding of Traditional Culture and Folklore, supra n. 61, Pt B: ‘Folklore, as a form of cultural expression, must be safeguarded by and for the group (familial, occupational, national, regional, religious, ethnic, etc) whose identity it expresses. To this end, Member States should encourage ….’ [emphasis added].

125. Under Annex 8 to the Dayton Agreement, supra n. 91, Art. V, ‘any concerned person in Bosnia and Herzegovina’ may submit to the Commission to Preserve National Monuments a petition for the designation of property as a national monument. For their part, the Operational Guidelines for the Implementation of the World Heritage Convention, reproduced at http://www.unesco.org/whc/opgulist.htm, para. 14, state that ‘[p]articipation of local people in the nomination process is essential ….” See also ibid., para. 34; Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, supra n. 66, Art. 11. Such participation would go a long way towards defusing the criticism voiced of the ‘profound hiatus between ordinary civic life and public concern for the cultural past embodied in an officially listed cultural heritage’: World Commission on Culture and Development, op. cit. n. 63, at p. 183.

126. At the same time, the practical difficulty of applying Art. l's definition of cultural property – and the very notion of property itself – to the dynamics of some indigenous cultures is pointed out in Australia's latest periodic report: 1995 Reports, supra n. 87, at p. 16. See also Prott and O'Keefe, loc. cit. n. 33, at pp. 310, 314–315.

127. For example, at present under the common law in England and Wales, no ordinary member of the public (nor even a very large number of members of the public who have joined together for the very purpose) has standing to challenge a decision made by the relevant Secretary of State not to schedule a site as a monument of national importance under the Ancient Monuments and Archaeological Areas Act 1979, s. 1(3). See R v. Secretary of State for the Environment ex parte Rose Theatre Trust Co [1990] 1 All ER 754. See also Goyder, J., ‘Scheduling Monuments: The Rose Theatre Case’, 1 Int'l J Cult. Prop. (1992) p. 353.

128. Frigo, op. cit. n. 12, at p. 151 [author's translation].

1 BA, LL.B (Hons) (Sydney), LL.M (Cantab). The author would like to thank the Overseas Research Students Awards Scheme, the Cambridge Commonwealth Trust and the Leslie Wilson Research Scholarships at Magdalene College, Cambridge for their generous assistance.

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