International cultural heritage law in armed conflict

Abstract

The field of cultural property protection in armed conflict is composed of many conventions but little law. This is because: (1) there is no single understanding of the concepts of "cultural property" or "protection" (2) due to the principle of reciprocity, the more international an armed conflict is, the lower the chances that a treaty concerning cultural property will apply and (3) no convention has yet devised a specific safeguarding regime for "cultural heritage", which refers to the most outstanding class of cultural objects. Legal scholarship often accepts this situation, or suggests adopting a new convention to solve the field's problems. However, attempting to counteract law's failure with more laws is a nonsensical exercise that would, in the long-run, worsen the current situation. This thesis rejects law-making as an alternative and argues in a new direction. It contends that it is already possible to identify a branch of international cultural heritage law (ICHL) underpinned by a set of specific principles and a systemic objective (telos). The cross-fertilisation of such principles and telos with those of IHL provides the rationale underlying the protection of cultural property in armed conflict. The thesis proposes to re-interpret this field in light of such rationale using the World Heritage Convention as its common legal denominator. Pursuant to the postulate of systemic integration and that of effet utile, the interplay between the World Heritage Convention and the 1954 Hague Convention, its 1999 Second Protocol, the 1977 Two Additional Protocols and customary international law is examined. Their interplay vests this field of law with a more consistent understanding of "cultural property" and "protection" it affords a specific regime of protection to "cultural heritage" and it ensures that, as a minimum, the obligations of the World Heritage Convention will apply in international armed conflicts.