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The Control System Under the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 and its Second Protocol1

Published online by Cambridge University Press:  17 February 2009

Jan Hladik
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Extract

This article examines the control system under the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (the Convention) and its Second Protocol (the Protocol). It is divided into three parts. Part 1 introduces the control system and provides some examples of its implementation; Part 2 focuses on the evaluation of the control system during a recent review of the Convention; and Part 3 compares the control system under the Convention with that under the Second Protocol to the Convention.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 4 , December 2001 , pp. 419 - 431
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2001

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References

3. Art. 18 reads as follows:

1. Apart from the provisions which shall take effect in time of peace, the present Convention shall apply in the event of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one or more of them.

2. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

3. If one of the Powers in conflict is not a Party to the present Convention, the Powers which are Parties thereto shall nevertheless remain bound by it in their mutual relations. They shall furthermore be bound by the Convention, in relation to the said Power, if the latter has declared that it accepts the provisions thereof and so long as it applies them.'

From the above text it follows that this Article is applicable only in international armed conflicts. Thus, the Regulations and the control system based on them are not applicable in non-international armed conflicts or conflicts of mixed character.

4. Toman, J., The Protection of Cultural Property in the Event of Armed Conflict (Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, signed on 14 May 1954 in The Hague, and on other instruments of international law concerning such protection) (Aldershot, Dartmouth/Paris, UNESCO 1996) pp. 231–232Google Scholar.

5. Parry, C. and Grant, J.P., Encyclopaedic Dictionary of International Law (New York, Oceana Publications 1986) p. 308Google Scholar.

6. Art. 22(1) of the Convention.

7. Toman, op. cit. n. 4, at p. 224.

8. For detailed information concerning the designation of Protecting Powers as well as Commis-sioners-General, see ‘Information on the Implementation of the Convention for the Protection of Cultural Property in Case of Armed Conflict’, The Hague 1954, UNESCO Doc. CC/MD/41, Paris, 25 June 1979, p. 7.

9. Ibid., p. 7.

10. For the detailed information concerning the selection of the Commissioners-General, see ‘Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict’, The Hague 1954, 1989 Reports, UNESCO Doc. CC/MD-11, Paris, December 1989, p. 6.

11. Toman, op. cit. n. 4, pp. 264–267.

12. ‘The United Nations Educational, Scientific and Cultural Organization may offer its services to the parties to the conflict.’

13. ‘Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict’, The Hague 1954, 1970, UNESCO Doc. SHC/MD/6, Paris, 30 04 1970, p. 8Google Scholar.

14. Constitution of the United Nations Educational, Scientific and Cultural Organization, Basic Texts (ParisUNESCO 2000) p. 8Google Scholar.

15. For more detailed information concerning UNESCO's action for the protection of Afghan cultural heritage, visit http://www.unesco.org/opi2/afghan-crisis/.

16. The scope of destruction of cultural property in the last decade both in international and non-international armed conflicts and the practice of the implementation of the Convention showed certain deficiencies. For this reason, in 1991 the Secretariat undertook a review of the Convention with a view to elaborating a new supplementary legal instrument to fill in existing gaps, such as the lack of clarity in the interpretation of the clause of ‘military necessity’, the application of special protection and of the control system of the Convention, and the reinforcement of penal provisions, as well as the lack of an institutional body to monitor the implementation of the Convention. The review of the Convention resulted in the adoption of the Second Protocol to the Hague Convention by the March 1999 Hague Diplomatic Conference. For more detailed information on different issues raised during the review of the Convention, see 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) pp. 313–322CrossRefGoogle Scholar.

17. UNESCO Doc. 140 EX/13, Paris, 4 September 1992.

18. Ibid., p. 3.

19. ‘Review of the application of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, (The Hague, 14 May 1954)', UNESCO Doc. 140 EX/26, Paris, 11 September 1992.

20. Ibid., p. 5. ICOMOS is the International Council on Monuments and Sites.

21. Idem.

22. Boylan, P.J., Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954), UNESCO Doc. CLT-93/WS/12, Paris, 1993Google Scholar.

23. Ibid., pp. 17 and 85–88.

24. Ibid., p. 87.

25. Idem.

26. Ibid., p. 18.

27. Document ‘The Second Expert meeting on the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict’, Lauswolt, The Netherlands, 9–11 February 1994, p. 7.

28. Ibid., pp. 8–10.

29. Expert meeting on the ‘Review of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict — a working document prepared by the Secretariat’, UNESCO Doc. CLT/94/608/1, 28 November 1994, Paris, p.20.

30. Ibid., p. 21.

31. ‘Draft provisions for the revision of the 1954 Hague Convention and commentary from the UNESCO Secretariat’, UNESCO Doc. CLT-97/CONF.208/2, Paris, October 1997, pp. 18–26.

32. Annex to ‘Report by the Director-General on the results of the meeting of governmental experts on the revision of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (Vienna, 11–13 May 1998)’, UNESCO Doc. 155 EX/51, Paris, 17 August. 1998, p. 4.

33. Doc. HC/1999/1, October 1998, pp. 7–10.

34. Ibid., p. 7.

35. Doc. HC/1999/1/rev. 1, February 1999.

36. Ibid., pp. 16–23.

37. For a more detailed account of the Conference, see Hladik, J., ‘Diplomatic Conference on the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, Netherlands (15–26 March 1999)’, 8 International Journal of Cultural Property (1999) pp. 526–529CrossRefGoogle Scholar.

38. ‘Diplomatic Conference on the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1–26 March 1999) — summary report’, UNESCO Doc. Paris, June 1999, p. 5.

39. Ibid., p. 8.

40. The relevant part of Art. 11 of the 1949 First Geneva Convention on the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field reads as follows: ‘…For this purpose, each of the Protecting Powers may, either at the invitation of one Party or on its own initiative, propose to the Parties to the Conflict a meeting of their representatives, in particular of the authorities responsible for the wounded and sick, members of medical personnel and chaplains, possibly on neutral territory suitably chosen…’ Thus, Art. 36 provides for a solution of the situation where there is no Protecting Power. If such a situation occurred under the Convention, it would be settled under Art. 9 of the Regulations.

41. In addition to the general protection available to all categories of cultural property listed in Art. 1 of the Convention, the Convention also provides for special protection which may be granted to three categories of property: (a) refuges intended to shelter movable cultural property in the event of armed conflict; (b) centres containing monuments; and (c) other immovable cultural property of very great importance (Art. 8(1)). The granting of special protection is essentially subject to two conditions: the cultural property in question must be situated at an adequate distance from any large industrial centre or from any important military objective constituting a vulnerable point; and secondly, such property may not be used for military purposes (Art. 8(1)(a) and 8(1)(b)). However, in case of proximity of the cultural property to an important military objective, such property may be placed under special protection if the state on whose territory the property in question is located undertakes not to use the military objective (Art. 8(5)). Special protection is not granted automatically; it is granted upon a special request of the state on whose territory the cultural property in question is situated (Art. 13(1) of the Regulations). Such a request is addressed to the Director-General of UNESCO (Art. 13(1) of the Regulations. Finally, it should be pointed out that in order to obtain special protection for its cultural property, the state requesting special protection is requested to obtain consent of all other States Parties; otherwise special protection will not be granted (Art. 14 of the Regulations).

Cultural property under special protection is listed in the International Register of Cultural Property under Special Protection, a special register maintained by the Director-General of UNESCO (Art. 8(6) of the Convention). To date, cultural property in three High Contracting Parties (Germany, the Holy See and the Netherlands) has been entered in the Register at the request of those states (a total number of four refuges as well as the whole of the Vatican City State).

It should be noted that the concept of special protection has never fully developed its potential, given that only three States Parties have placed five sites under special protection and the last entry in the Register took place in 1978.

42. In conformity with Art. 43 of the Second Protocol, for entry into force, the deposition with UNESCO's Director-General of 20 instruments of ratification, acceptance, approval or accession is required. To date, seven states (Austria, Belarus, Bulgaria, Cyprus, the former Yugoslav Republic of Macedonia, Qatar and Spain) have deposited their instruments of ratification and Argentina, Azerbaijan, Libyan Arab Jamahiriya, Lithuania, Nicaragua and Panama have deposited their instruments of accession. Thus, five additional instruments of acceptance, accession, approval or ratification are needed for its entry into force.