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International Law for the protection of Cultural Heritage

As we all know that cultural heritage simply means taking caring the famous and incredible things made of the human beings. Different countries having different kinds of culture and tradition which is very close to their heart. It is the identity of their country and one of the major source of earning in tourism industries.

Cultural heritage

Culture
Culture refers to the way of life of a specific group of people. It can be seen in ways of behaving, beliefs, values, customs followed, dress style, personal decoration like makeup and jewellery, relationships with others and special symbols and codes. Culture is passed on from one generation (parents) to the next (children). Culture is not static as each generation contributes its experience of the world and discards things that are no longer useful to them.

Heritage

Heritage is anything that is considered important enough to be passed on to the future generations. Heritage is broadly categorized into two main divisions:- Cultural Heritage refers to the cultural aspects like heritage sites, monuments, folklore, traditional activities and practices, language etc. that are considered vital to be preserved for the future generations. It gives people a connection to certain social values, beliefs, religions and customs.

According to ICOMOS, (2002) Cultural Heritage is an expression of the ways of living developed by a community and passed on from generation to generation, including customs, practices, places, objects, artistic expressions and values. Cultural Heritage is often expressed as either Intangible or Tangible Cultural Heritage. In tangible culture includes (buildings, monuments, landscapes, books, works of art, and artifacts, intangible culture (folklore, traditions, language, and knowledge), and natural heritage (including culturally significant landscapes, and biodiversity).[i]

There are various types of international law on the protection of the cultural heritage following are the some of the laws ,conventions, treaties or organizations:

  1. The 1954 Hague Convention was drawn up after the widespread devastation of cultural property in World War II. Together with its two Protocols of 1954 and 1999, it is the most widely recognised international treaty exclusively dedicated to the protection of cultural heritage in armed conflict. The treaty stipulates a number of measures that States and the armed forces should conduct during peacetime to prepare for conflict, and provides a regime for its protection during fighting.

    Article 1 of the Convention provides a (non-exhaustive) definition of the types of cultural property that are eligible for protection under the Convention provided that they are: of great importance to the cultural heritage of every people.

    Article 1. Definition of cultural property

    For the purposes of the present Convention, the term `cultural property’ shall cover, irrespective of origin or ownership:
    1. movable or immovable property of great importance to the cultural heritage of every people, 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; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;
       
    2. buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);
       
    3. centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as `centers containing monuments’.

      The States that are party to the Convention benefit from the mutual commitment of more than 130 States who are committed to sparing cultural heritage from consequences of possible armed conflicts. States and their armed forces should implement a number of proactive safeguarding measures in peacetime to prepare for armed conflict.

      1. Inventories:
        • adoption of measures such as the preparation of inventories identifying significant cultural property of great importance to the nation;
        • consideration of the possibility of registering a limited number of refuges, monumental centres and other immovable cultural property of very great importance in the International Register of Cultural Property under Special Protection in order to obtain special protection for such property;
        • consideration of the possibility of marking important buildings and monuments with the distinctive emblem of the Convention – the Blue Shield – to facilitate their recognition.
           
      2. Proactive preparation of protective measures:
        • preparation for the removal of movable cultural property or the provision for adequate in situ protection of property,
           
      3. Proactive preparation of emergency measures:
        • developing and practicing emergency measures for protection against fire or structural collapse;
           
      4. Competent authorities
        • designation of competent authorities responsible for the safeguarding of cultural property; and establishment of special units within armed forces to be responsible for the protection of cultural property;

          These are supported by requirements for awareness raising, and training as required.
          • developing respect for all cultural property (that of the State and others); and
          • wide promotion of the Convention within the general public and target groups such as cultural heritage professionals, the armed forces or law-enforcement agencies.

          The Convention also has measures to be carried out during armed conflict which include:
          • refraining from any use of the property and its immediate surroundings for purposes likely to expose it to destruction or damage, and refraining from any act of hostility directed against such property
          • use of respect for the regimes of Special and Enhanced protection
          • sanctions for breaches of the Convention;
          • implementation of the protective regimes developed during peacetime if required, such as evacuation to refuges; and
          • a regime for managing and enforcing the Convention during conflict (the Regulations of Control).

            In addition to the general protection provided to cultural property of great importance by the Convention, assuming certain conditions are met, a limited number of locations of cultural property of very great importance (immovable cultural property, centres containing monuments , and refuges of movable cultural property) may be entered onto UNESCO’s International Register of Cultural Property under Special Protection, which provides a higher level of immunity in conflict from all State Parties to the 1954 Convention.

            The Second Protocol (1999) provides an additional protection regime called Enhanced Protection for cultural property of the greatest importance to humanity, again assuming certain conditions are met. This protection regime provides an even higher level of immunity, but only if all sides in the conflict are party to the Second Protocol. Sites that are registered for Enhanced Protection are listed on UNESCOs website.

            Although the 1954 Hague Convention and its Protocols are treaties, and so are normally only binding on those States that have signed them, many parts of the 1954 Hague Convention are so widely implemented that the International Committee of the Red Cross (ICRC) considers them to be part of customary international law, and so deems them to be binding on all parties in a conflict at all times.

            The 1999 Second Protocol to the 1954 Hague Convention makes the provisions of the convention and both protocols applicable to non-international armed conflicts.

            By October 2018, the main Convention has been ratified by 133 States, the First Protocol by 110, and the Second Protocol by 82 States.
            The Convention and its Protocols should be interpreted in light of the laws of armed conflict, in particular the principles of necessity, proportionality, distinction, good faith, humane treatment, and limitation. Learn more about the Laws of Armed Conflict in our Customary Law section. [ii]
             
  2. The major issue of the preservation of cultural heritage preoccupied the international community in general, i.e. in times of peace, because the threats were real and in no way restricted to only times of war. The ever worsening environmental conditions, climate change, illegal trafficking of cultural goods, acts of terrorism are some of the problems that can arise in peacetime.

    After the foundation of UNESCO, Conventions began to be adopted in order to safeguard, preserve and protect cultural heritage at a worldwide level. The International Convention concerning prohibiting and preventing the illicit import, export and transfer of ownership of cultural property of UNESCO (1970) and the International UNESCO Convention on the Protection of the World Cultural and Natural Heritage (1972) were the central core around which cultural protection was formed.

    This framework was recently supplemented by the Convention on the underwater heritage signed in 2001 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, signed in 2005. Equally important was the Convention for the Safeguarding of the Intangible Cultural Heritage signed in 2003. This includes new concepts and is a springboard for a more complete and balanced perception of humanity's cultural heritage. Particular reference should be made to the 2003 UNESCO Declaration on the intentional destruction of cultural heritage which was unanimously adopted by all Member States of UNESCO.

    However, it does not constitute an obligatory legal document binding states at an international level. According to this 2003 Declaration, Member States commit to combat the intentional destruction of cultural heritage, both in wartime and in peacetime. In peacetime, states are strongly suggested to follow all international recommendations and conventions, while in time of war states are called upon to respect customary international law, international conventions and UNESCO recommendations.

    However, a highly important issue included in this Declaration is the recognition of responsibility on behalf of both States and individuals regarding destruction of cultural heritage: States bear responsibility for any intentional destruction of cultural heritage and individuals bear legal responsibilities for criminal activity involving cultural heritage. International law together with state participation in international contracts imply a direct obligation of every state according to which internal rules of law must be in accordance with international requirements. Specifically, components constituting cultural heritage should be protected, as a whole or individually, by legislative or other regulatory measures.

    Therefore, each state has the obligation and the right to provide a legal definition of cultural goods. The obligation stems from international documents and the right stems from sovereignty on cultural property situated in its territory. Also, each state is obliged to ensure preservation and non-destruction of its cultural heritage.

    This is a general principle that all states accept. An additional obligation refers to the preservation of cultural diversity that is safeguarding of all cultures. This issue is seen as particularly important and is especially highlighted due to relevant resolutions adopted by the UN General Assembly.

    Finally, if a State violates its international commitments on issues related to cultural heritage, criminal and administrative penalties are foreseen. It can be easily seen that there was an imperative the need for the establishment of international norms for the protection of cultural heritage in peacetime.

    So far, there have been considerable efforts in this direction but there is still several room for improvement due to the increasingly urgent need to protect cultural heritage and also due to new sorts of challenges. [iii]
     
  3. ICOMOS works for the conservation and protection of cultural heritage places. It is the only global non-government organisation of this kind, which is dedicated to promoting the application of theory, methodology, and scientific techniques to the conservation of the architectural and archaeological heritage.

    ICOMOS is a network of experts that benefits from the interdisciplinary exchange of its members, among which are architects, historians, archaeologists, art historians, geographers, anthropologists, engineers and town planners.

    The members of ICOMOS contribute to improving the preservation of heritage, the standards and the techniques for each type of cultural heritage property: buildings, historic cities, cultural landscapes and archaeological sites.

    ICOMOS facts and figures (December 2018):

    10 546 Individual Members in 151 countries
    271 Institutional Members
    107 National Committees
    28 International Scientific Committees[iv]

    Reasons for the damages of Cultural Heritage

    There are two types of threats:
    • destruction of heritage sites and objects caused by war, poverty, and development initiatives
    • the looting and trafficking of objects that frequently arises out of those contexts

    In wartime, destruction of heritage sites can be a result of collateral damage, for example, when a bomb targeting one location inadvertently hits another; or it can be the result of intentional damage, aimed to demoralize and insult the values and religious and cultural symbols of an enemy. It is often difficult to distinguish between collateral and intentional damage, and perpetrators may claim deliberate destruction was an accident in an attempt to avoid prosecution. In the Syria conflict, for example, you’ve probably heard about the destruction caused by ISIS. However, the majority of damage to cities and to heritage has in fact not been caused by ISIS, but by the Syrian government’s campaign of relentless aerial bombardment, which has destroyed up to 70% of the fabric of the ancient city of Aleppo, a UNESCO World Heritage site.

    And though it’s easy to demonize a regime in a country far away, it’s important to remember that similar levels of destruction were caused by both the Axis powers and the Allies in World War II — for the Allies, most famously in Dresden, where a British and American aerial campaign in 1945 left more than 70% of the city in ruins.

    The neglect of the occupying U.S. forces in Iraq in 2003 famously led to the looting of the National Museum of Iraq, with thousands of objects lost, only half of which have returned, as well as the burning and destruction of Iraq’s magnificent national library, including hundreds of priceless manuscripts dating back to the 16th century. Deliberate or neglectful destruction of heritage has long been a key strategy of war, and perpetrators are rarely prosecuted for it.

    The long history of the destruction of heritage shows us that the elimination of culture has always been viewed as a powerful tool of domination and as a key strategy for eliminating the value humans accord to their lives. In recent years, the destruction of heritage:
    whether through war, commercial exploitation, and/or looting — has been defined by UNESCO as a form of cultural cleansing. In taking human lives, oppressors erase the existence of individual people: but in destroying culture, the memory and identity of entire peoples are erased. It is not surprising to note, therefore, that the destruction of heritage is often a precursor to genocide.

    This is because in denying people their past, perpetrators also deny them a future.
    Nevertheless, wartime destruction of heritage is only a small fraction of the overall loss of cultural heritage around the world. Much more significant and long-lasting is destruction due to urban development, mineral and resource extraction, climate change, tourism, and even natural disasters.

    For example, the ancient Buddhist site of Mes Aynak in Afghanistan is now threatened by Chinese mining interests, a situation made famous in a recent documentary. Similarly, the push to expand resource extraction on public lands in the United States is also causing widespread loss of heritage, as at the Bears Ears National Monument, which was controversially reduced by 85% in a decision signed by President Trump in December 2017.

    Although many heritage sites are preserved in order to encourage tourist revenue, tourism can also cause massive destruction because of the large numbers of people it can attract and also because transforming a site into a tourist-friendly locale often profoundly transforms its meaning for local people, who may find their connections to a place have been erased. Such is the case at Dubrovnik, a city that was reconstructed by an international consortium of donors after the Balkan war and which now finds itself managing a Game of Thrones-inspired tourist influx that threatens to leave little of the original city behind, a destruction that some residents have characterized as worse than that during wartime.

    Looting
    If destruction of heritage during wartime is akin to a relatively sudden death, looting is like a cancer that slowly erodes it. Looting is the theft of heritage items for sale on the antiquities market, most often to wealthy private buyers in the United States and Europe. As art history professor Nathan Elkins has shown, the consequences of purchasing even small items like coins can be devastating for our knowledge about the past. Once an object is removed from its original environment, it instantly loses much of its ability to convey information about how people once lived.

    Archaeologists call the environment in which an object is found, its context. Context is the object and its relationship to all the other objects and material in an archaeological site. The relationships between these objects is what enables archaeologists to recreate the past (objects that have been looted, and thereby robbed of this context can be called ungrounded). As such, even the smallest objects, such as ancient coins, can provide powerful evidence about the lives of people in the past.

    While locals are often blamed for looting, it is important to point out that local looting is often subsistence looting — looting carried out to supplement meagre incomes — and that it is only profitable because it responds to demand in wealthy countries. The antiquities market is vast, and as the Wall Street Journal reported last year, it has consequences far beyond just loss of our knowledge about the past, since much like drug trafficking, its profits fuel terrorism, criminal enterprises, and many other forms of criminal activity.[v]
     

Laws in India for protecting the Culture Heritage

Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same" - Article 29 of the Constitution

"It shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture" - Article 51 A(F) of the Constitution

Following are some of the Acts:
  1. The Ancient Monuments and Archaeological Sites and Remains Act of 1958 came into force with effect from 29th August 1958. According to the Act, ancient and historical monuments, sculpture carvings and other like objects, archaeological sites and remains are protected and preserved. Archaeological excavations are regulated and are of National importance.
     
  2. The Delivery of Books (Public Libraries) Act of 1952 provides for delivery of books to the National library and Public Libraries. This was amended on 29th December 1965 and named as the Delivery of Books & Newspaper (Public Libraries) Amendment Act, 1956.
     
  3. The Antiquities and Art Treasures Act of 1972 came into force with effect from 9th September 1972. According to the Act export trade in antiquities and art treasures is regulated and smuggling and fraudulent dealings in antiquities and ancient monuments is prevented.
     
  4. Public Records Act of 1993 came into force with effect from 2nd March 1995. According to the Act the Central Government in the Department of Culture has the power to permanently preserve public records which are of enduring value
     
  5. Legislations:
    • The Ancient Monuments Preservation Act, 1904
    • The Treasure Trove Act, 1878
    • The Ancient Monuments and Archaeological Sites Remains Act, 1958
    • The Ancient Monuments and Archaeological Sites Remains Rules, 1959
    • The Antiquities and Art Treasures Act, 1972
    • The Antiquities and Art Treasures Rules, 1973
    • The Delivery of Books' and Newspapers' (Public Libraries) Act, 1954
    • The Delivery of Books (Public Libraries) Rules, 1955 [vi]

How Protect the Cultural Heritage

There was various solution to preserve and protect the cultural heritage.Some of the easy Solution for protecting our cultural heritage which is in our hand are follows:
  1. Partner:
    You or your organization can become a UNESCO partner and get involved in conservation activities, world heritage promotion, mobilization of resources and financial support. The World Heritage Center has partnered with various international organizations, national institutions, privacy corporations and non-profits over the years
     
  2. Volunteer:
    Join the UNESCO interning or volunteering programs. The UNESCO accepts students from a wide range of disciplines for strategic activities or to perform administrative or technical functions. No experience is necessary for most volunteer projects, which can range from patrolling the shores of the Galapagos and excavating dinosaurs in Argentina to studying lake ecosystems in Siberia and restoring archaeological sites in Zimbabwe and Tanzania.
     
  3. Travel:
    Even if you choose not to join UNESCO, you can practice sustainable tourism by respecting local culture and customs and not damaging sites or littering when visiting. It is important to continue to visit sites, even endangered ones (assuming that there is no immediate physical threat to visitors, such as warfare or violent crime), so as to contribute to the local economy and to draw attention to the constant need for repair and renovation.
     
  4. Spread Awareness:
    You can help by creating an awareness of the importance of preserving these invaluable sites by sharing news and links through social networking sites such as Facebook and Twitter.
     
  5. Donate:
    Lastly, monetary donations are the most direct way to support UNESCO and its projects.
As quoted on UNESCO’s World Heritage site, we can work together to encourage international cooperation in the conservation of our world’s cultural and natural heritage to preserve our world for ourselves and future generations.[vii]

End-Notes:
  1. https://choki2wangchuk.wordpress.com/2016/09/17/cultural-heritage-importance-of-cultural-heritage/
  2. https://theblueshield.org/resources/laws/1954-hague-convention-treaty-law/armed-conflict-protocols/
  3. http://ijasos.ocerintjournals.org/en/download/article-file/298438
  4. https://www.icomos.org/en/about-icomos/mission-and-vision/mission-and-vision
  5. https://www.khanacademy.org/humanities/special-topics-art-history/arches-at-risk-cultural-heritage-education-series/arches-beginners-guide/a/cultural-heritage-in-crisis
  6. http://www.indiaculture.nic.in/legal-mandate
  7. https://www.onegreenplanet.org/animalsandnature/5-things-you-can-do-to-preserve-world-heritage/#:~:text=Spread%20Awareness%3A%20You%20can%20help,support%20UNESCO%20and%20its%20projects.

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