Introduction
Cultural heritage is the legacy of physical artifacts and intangible attributes of our society. They are inherited from past generations, maintained in the present, and bestowed for the benefit of future generations. The deliberate act of keeping cultural heritage from the present for the future is known as preservation or conservation, though these terms may have a more specific or technical meaning in the same contexts in the other dialect.
The word ‘heritage’ is multifaceted. It is a literal translation of the French word ‘héritage’ which means inheritance. This original narrow legal sense of inheritance or inherited goods has widened. It also implies individual or collective cultural identities and memories linking past and present thus contributing to nation-building and statehood. Initially in England, cultural heritage was referred to as ancient monument sites or works of art. For example, the Ancient Monument Act of 1882 or currently the Ancient Monument and Archaeological areas Act of 1979. Likewise, the expression of cultural heritage was very rare until the 1980s. For example, in 1982 a report written for UNESCO mentioned the use of the expression cultural heritage but noted that it was more traditional to use the word national heritage of patrimony.
Their preservation demonstrates a recognition of the necessity of the past and of the things that tell its story. In ‘The Past is a Foreign Country', David Lowenthal observes that preserved objects also validate memories. While digital acquisition techniques can provide a technological solution that can acquire the shape and the appearance of artifacts with unprecedented precision in human history, the actuality of the object, as opposed to a reproduction, draws people in and gives them a literal way of touching the past. This, unfortunately, poses a danger as places and things are damaged by the hands of tourists, the light required to display them, and other risks of making an object known and available. The reality of this risk reinforces the fact that all artifacts are in a constant state of chemical transformation so that what is considered to be preserved is changing – it is never as it once was. Similarly changing is the value each generation may place on the past and on the artifacts that link it to the past.
What one generation considers "cultural heritage" may be rejected by the next generation, only to be revived by a subsequent generation. Cultural property includes the physical, or "tangible" cultural heritage, such as works of art. These are generally split into two groups of moveable and immoveable heritage, according to UNESCO. The World Heritage List now numbers 936 properties: 183 natural sites; 725 cultural; and 28 mixed. Each of these sites is considered important to the international community. The underwater cultural heritage is protected by the UNESCO Convention on the Protection of the Underwater Cultural Heritage. This Convention is a legal instrument helping states parties to improve the protection of their underwater cultural heritage In addition, UNESCO has begun designating masterpieces of the Oral and Intangible Heritage of Humanity. The Committee on Economic, Social, and Cultural Rights sitting as part of the United Nations.
Understanding Cultural Heritage Law
Cultural heritage emphasizes the shared past of a nation of all human beings as it includes natural resources as well as oral traditions, tribal knowledge, memory, and its identity. It emphasizes the commonality of the heritage and the common duty of all states to protect and preserve the treasures falling under this category in the interest of the world community as a whole. It has become both an emotional and political connection to culture as illustrated by the destruction of the Buddhas of Bamiyan which was a political act of annihilation of an alien and offending past similarly the bombing of Dubrovnik during the war in ex-Yugoslavia was a political activist since the town, a UNESCO World Heritage Site was demilitarised.
Little objects like the Eye Idol, some 5000 years old and discovered in Syria, are an irreplaceable part of the country's cultural heritage. Sadly, the Eye Idols are only one example of many objects at risk of disappearing completely. While the conflict in the country rages on, the theft of ancient artifacts during illegal excavations becomes easier. And they can be small enough to fit in a piece of hand luggage. Since 2011, 25% of Syria's archaeological sites have been pillaged. Once stolen, they're smuggled into neighboring countries. Despite these countries' best efforts to fight illegal trafficking, stolen artifacts eventually end up on the antique market. Syria is home to some of humanity's oldest and most valuable cultural wonders. The looting of artifacts threatens the country's rich cultural identity. As we have seen more recently, the destruction of heritage in Mali, and Iraq was made with the intent to destroy an offending past. However, the destruction both negates the monument but emphasizes its value as heritage. It negates it because it creates a void but this void, this emptiness, emphasizes its importance for the history of humanity. So, what is cultural heritage law?
Cultural heritage law has developed in the last 50 years, and it is the law that aims to regulate cultural heritage. Heritage is a broad concept so consequently; the field of cultural heritage law is very broad. Cultural heritage law is the body of legal norms and regulations, both national and international, that regulates cultural heritage. Cultural heritage law overlaps substantially with public international law, international private law, criminal law, contract law, and tort law amongst other laws. So cultural heritage law looks at the different categories of heritage and the protection that they need. Special regulations are applying to the different categories of heritage that will overlap such as museum regulations for antiquities and works of art. Or in the category of immovable planning control, scheduled monuments, and also excavations of sites of archaeological interest. So, we have a division by category, but we also have a division by the levels of protection: international, regional, national, international. For example, at the international level, six important conventions have been adopted under the aegis of the UNESCO United Nations Educational Scientific and Cultural Organisation.
The first Convention was adopted in 1954, after World War 2, to protect cultural property in the event of armed conflict. The second convention of 1970 is the convention that aims to prohibit the trafficking of cultural property of cultural objects. In 1972, the UNESCO most famous and mostly ratified convention is the World Heritage Convention, the Convention concerning the protection of the world's cultural and natural heritage. In 2001, the Convention on the Protection of the Underwater Cultural Heritage was adopted. In 2003, the Convention for the Safeguarding of the Intangible Cultural Heritage and in 2005 the Convention on the Protection and Promotion of the Diversity of Cultural Expressions and we see here in the last two conventions that were adopted under the aegis of UNESCO in 2003 and 2005 the widening definition of heritage as not only objects and monuments or places but also as the importance of the intangible heritage of practices, cultural practices.
In sum, there exists a complex web of rules and regulations that might contradict each other. So one of the points of a critical approach to cultural heritage law is to bring consistency to those different regulations and rules, to bring order to those different rules, to understand the different principles or the underlying principles of the rules that have been adopted or the conventions that have been adopted. For example, specific protection recognizing the cultural heritage of every people is enshrined in the 1954 Hague Convention for the protection of cultural property during armed conflict, which was complemented by the 1977 Additional Protocols, and has become part of customary international law. The obligation to respect cultural property in the event of armed conflict and the obligation to abstain from appropriating and transferring cultural property within military-occupied territories.
International Law in the Face of disregard for the Normative Structure
It is known and it has been advertised widely as well that ISIS or Daesh is currently illicitly excavating antiquities from the zones that it is occupying. Those antiquities then find their way to Lebanon and London or other marketplaces Paris, Geneva, Berlin, New York and they are being sold. Edifices that stood for more than 3000 years were obliterated in seconds. ISIL fighters laid waste to the ancient Iraqis city of Nimrod. Palaces and temples were blown up a towering pyramid bulldozed. The United Nations says such deliberate destruction constitutes a war crime. Archeologists describe it as cultural cleansing. Islamic State has used these deliberate destructions of cultural heritage to attack cultural memory, cultural identity, and cultural diversity and a systematic campaign of cultural cleansing throughout the region. Now that groups such as the Islamic state have established the destruction of cultural heritage and the theft of cultural property as important parts of jihadi terrorism other groups are going to do the same. When ISIL was at its peak in 2014 there were more than 700 recorded attacks on cultural heritage in Syria and 90 in Iraq.
Preserving the archaeological knowledge for future generations, fifteen years after the Afghan Taliban blew up the Buddha's of Bamiyan the International Criminal Court gave a nine-year prison sentence to a man who helped destroy the fabled shrines of Timbuktu in Mali. It was the first time the deliberate destruction of cultural heritage was judged to be a war crime. For places like Syria and Mali, it means that the heritage of the people is currently being depleted by traffickers but also by people who are buying those objects. It is necessary to look at the law, what is it doing and what it is not doing, and to reinforce the importance of the protection of cultural heritage for the people as a rule.
Conclusion
Rather than incidental or collateral damage during a conflict, there's an additional danger that has eclipsed. Looting and pillaging of cultural property during armed conflict. The legal frameworks applicable to the protection of cultural property in armed conflict whether it is international armed conflict or non-international armed conflict are in a dilemma. There needs to be a twofold approach. The international community needs to be very clear that deliberate. Destruction of cultural heritage in a time of armed conflict is a war crime and that it will be subject to prosecution either during
or post the armed conflict.
The international community must ensure that there's appropriate dissemination of the rules about armed conflict so that people will know that to destroy cultural heritage is a violation of international humanitarian law and may be subject to criminal prosecution. Thirdly, in a non-international armed conflict where there are elements of cultural, religious, ethnic motivation in the conflict- the bulk of the people within that society give them a voice- encourage them to lift their voice in defense of their cultural heritage. During a time when it's subject to threat, we have to bear in mind that people have a culture, and culture is made up of objects and those objects are part of who the people are. So it is very important to question those laws, to question the process of identifying heritage to better protect heritage for us and our future generations.
Comentários