October 2020 marked Turkey cultural heritage month in the United States, a 54-year long tradition celebrating the friendship between people of the United States of America and Turkey. In 2020, the celebrations assumed increased political significance, given the pending Memorandum of Understanding (MoU) between the two States through which Turkey has proposed the imposition of strict restrictions on the import of Turkish artefacts and patrimony.^[1] Manyscholars condemned Turkey’s proposal as being another attempt to destroy andappropriate the heritage of the ethnic and religious minorities who now live in Turkey.^[2] But the criticism has not managed to prevent or stop Turkey from claiming that the MoU facilitates its performance of its obligations under the1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.^[3]

As the 1970 UNESCO Convention celebrates its50^th anniversary,^[4] Turkey’s actions prompt us to think about why States are still able to use the 1970 Convention as a vehicle to drive political objectives without facing accountability. More importantly, it prompts us to revisit the impact - legal, political, and normative - of international cultural heritage law (ICHL) more generally, and understand how human rights can ease the contestations within ICHL.

ICHL’s State story - Who guards the guardians?

There is a narrative among those involved in the development of ICHL that is so pervasive as to be almost sacrosanct. It can be briefly summarized thus: Cultural heritage around the world requires protection and ICHL is one of the best tools to ensure its protection.^[5] Indeed the last few years have witnessed an unprecedented growth in the popularity of ICHL instruments and processes (as proof, the UNESCO alone currently oversees six international culture treaties),^[6] lauded by some scholars as a welcome new era in ICHL.^[7]

However, the implementation of ICHL is far more political and potentially problematic than might, at first, appear. The structure of public international law means that nation States are always the norm interpreters and empowered actors in ICHL processes. All ICHL initiatives, even those that claim to serve indigenous or sub-state communities, are — in the end — mediated and implemented by States parties. The 1970 UNESCO Convention, for instance, makes the States parties responsible for fighting the root causes of illicit trade and theft of cultural property.^[8] The Convention also exclusively vests States with the right of designating property that merits protection as cultural property.^[9]

Such models lend a blanket character of legitimacy to State actions vis-à-vis heritage. This is evident in the way that the World Heritage Sites system, where select States nominate sites within its borders that have “universal value,”^[10] is now regarded as a stamp of validation and legitimacy awarded to a government from the international community.

This vision of heritage gives the States room to minimize or obfuscate their own potentially harmful behavior. Illustratively, the international horror at the widespread heritage destruction in Syria allowed the government led by President Bashar Al-Assad to attribute blame to the ISIS, and render invisible much of the government’s own contributions to the destruction.^[11] The legitimizing currency of ICHL regimes becomes all the more problematic when governments use ICHL to enshrine nationalist narratives,^[12] promote ethnocentric agendas,^[13]  and often to hold on to relics of misogyny^[14] and colonial superiority.^[15] When compounded with the loose framing of ICHL obligations^[16] and UNESCO’s otherwise limited enforcement powers,^[17] it becomes almost impossible to hold State parties of ICHL instruments accountable for their defaulting actions.

Other tools in the nationalist toolbox

Expectedly, ICHL has seen some pushback to its state-centric structure. The most successful of these challenges have come from settler states, such as Canada, Australia, and the United States, whose indigenous communities successfully argued that ownership for heritage objects should be vested in the ethnic group that created it or that today is regarded as having the closest cultural link to it.^[18] States used this pushback to channel a property versus heritage debate, with many States increasingly litigating cultural heritage claims through property law.^[19] The 1970 UNESCO Convention was a product of this support for a proprietary understanding of ICHL – the Convention contains a refrain of “movable property”, “State ownership”, “transfer”, and “trade”.^[20] Many national ownership laws (see Egypt’s Law no 117 of 1983 and Italy’s Law of 1 June 1939) now recognize looting and theft of antiquities as property offences, allowing victims to file a petition for seeking restitution.^[21] In the US this is done usingasset forfeiture proceedings which can either be administrative, civil, or criminal.^[22] Admittedly, prima facie, the strong support for property law appears to ease the burden on petitioners, since it dispenses with the need to trace and/or indict the persons responsible for illegally obtaining such artefacts, but the use of property law serves a more devious purpose.

Property law does not have the vocabulary to accommodate or acknowledge given that the latter is premised on traditional ideas ofpersonal dominion or ownership by acquisition.^[23] In the absence of this angle, a property claim devolves into apower struggle between States,^[24] museums, industrialist benefactors of museums, NGOs, and the affected victim communities, where communities and poor States find themselves withno leverage to make any demands of their own.^[25]

Back to the basics - The resurgence of international humanitarian law

International criminal law has also gained currency as a device to enforce cultural heritage protection in times of conflict. This comes as no surprise given that attacks on cultural property have been used as a war strategy ever since World War II.^[26] The ad hoc tribunals, in particular, were repeatedly tasked with claims of individual criminal responsibility for the bombing and destruction of hospitals, churches, and synagogues during the forcible expulsion of Bosnian Muslims from Yugoslavia in the 1990s.^[27]  The International Criminal Court recently forged new ground with its Al Mahdi decision,^[28] by recognizing the “irreparable damage”^[29] suffered by the community on account of attacks against cultural heritage. While this is a welcome departure, international criminal law does not necessarily solve the problems of autonomous ICHL. This is because international criminal law has been quite rigid in service of its subject matter scope. Despite Al Mahdi decision’s clear endorsement of community harm, attacks on cultural heritage are still criminalized as “war crimes” and not as “crimes against humanity”. This is reflective of the law’s proclivity towards “atrocity crimes”.^[30] Such a veneer of gravity traditionally prevents it from bringing lesser violent acts such as pillaging to the prosecutorial table.^[31]

 Beyond these topical barriers, international criminal law also grapples with an issue of reception and legitimacy. Right from its inception, the Court was critiqued for choosing a seat in the Hague, far removed from the sites of the deep-rooted ethnic and socio-economic conflicts it was adjudicating. Despite repeated reminders from the academic community,^[32] the Court has resisted efforts to make international criminal justice more reflexive.^[33] This is not to say that international criminal justice is a doomed project. A trial at the Court itself holds immense expressive meaning - from having the potential to spark conversations about norms and norm violations to facilitating healing.^[34] However, a robust cultural heritage protective framework requires more than expressive benefits. It needs a set of obligations on all stakeholders - States, communities, civil society, and museums - towards the preservation of heritage and mechanisms to enforce responsibility in case of defaults. Both by design and current form, international criminal law does not boast of a toolkit that allows the imposition of such obligations.

Time to humanize cultural property?

One way to improve ICHL would be to synthesize it with international human rights law.^[35]  International treaties such as the ICCPR,^[36] ICESCR,^[37] and declarations, such as the 2007 United Nations Declaration on the Rights of Indigenous Peoples,^[38] recognize a plethora of rights that protect the community’s relationship with cultural heritage. These range from the right to participate in cultural life and the right to be consulted, to the right to self-determination. Legally speaking, there are two primary benefits of invoking human rights law.^[39] First, human rights law, by design, vests rights in individuals and groups - unlike ICHL, which consider individuals as beneficiaries of heritage and not as stakeholders or creators of cultural heritage. Secondly, the implementation of obligations in relation to cultural rights is monitored by independent committees, and not by States. This makes it difficult for governments to use heritage conservation paternalistically. Third, by recalibrating ICHL within the human right to participate in cultural life, States can be mandated to ensure equal access to culture and consult the affected peoples before executing policies that may affect their enjoyment of culture. This bears immense significance since it can help decolonize and feminize the male-centric, imperial narratives advertised by States. Arguably, we run this risk of patriarchal narratives even with conferring complete autonomy to rural and urban communities. Fortunately, human rights instruments caveat against the application of customary law standards that deprive dignity, diversity, and equality (see Article 14 of the United Nations Declaration on the Rights of Indigenous Peoples and Article 4 of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities).^[40]

On a more systemic level, the language of human rights boasts of more universality than international criminal law or property law. While some human rights are relative and can be circumscribed depending on the culture of the region they are applied in, the value of human dignity (especially insofar as it is inherent in the enjoyment of culture) is still universal.^[41] This equivalence equips communities everywhere to associate State maltreatment of heritage with human rights’ violations and find a vocabulary to assert their own rights. Using human rights, communities can communicate with intermediaries such as museums, many of which are now actively taking cognizance of their outreach role in heritage protection.^[42] This also minimizes the power imbalance between State regulators, museums, wealthy industrialists and communities, because human rights are conferred equally on all individuals.

This is not to say that human rights law is free from vice. Much like international criminal law, human rights law has been accused of following a “civilizing mission” which underpinned its reluctance towards recognizing indigenous peoples right to self-determination and even collective or group rights.^[43]

Nonetheless, there is good reason to continue to keep faith in human rights law. The disagreement over the culturalization of human rights is proof of how human rights law confers communities and civil society with the authority to impose checks on State discretion.^[44]  Given that institutionalization of human rights norms is progressing so rapidly, there are a wider array of norm interpreters/actors involved - from non-State actors to communities to civil society.^[45] This disables States from both controlling the content of the norms and from resisting compliance for too long.

The way forward - A completely new design for ICHL or some repackaging?

The groundswell of opposition to standing symbols of white supremacy seen earlier this year was a testament to the role of the community in rejecting cultural icons that are emblematic of the problematic beliefs of the past.^[46] Unfortunately, governments used heritage laws to resist such displacement of meaning, coloring the global movements as threatening the sanctity and integrity of the heritage itself. However, the time is ripe for ICHL to evolve. In Professor Lixinski’s words, the “purpose of heritage law is not to protect an oppressive past but lead us to a better future”.^[47] Therefore, this article does not call for the complete debunking of the autonomous ICHL regime. Rather, it is a plea for ICHL to not operate in a vacuum. For ICHL to be married to human rights norms in its “implementation”. Such a marriage will give legs to the community’s rights to participate in the execution and development of action plans to preserve heritage on their terms.^[48] More importantly, it will nurture a reflexive ICHL, which appreciates the benefits of associating dynamic meanings to heritage to reflect society’s changing aspirations for the future.

Raghavi Viswanath is a PhD researcher at the European University Institute. Raghavi is also a Research Associate at the Public International Law and Policy Group. She takes keen interest in international human rights law, international criminal law, and third world approaches to international law. Jessica Wiseman is an LLM researcher at the European University Institute. Jessica’s areas of specialization are critical heritage studies, anthropology, and cultural heritage law. Raghavi and Jessica jointly lead the Cultural Heritage Working Group at the Institute.

^[1] Elias Gerasoulis: A geo-political perspective on the Turkish MoU, Cultural Property News, 30 September 2020, https://culturalpropertynews.org/elias-gerasoulis-a-geo-political-perspective-on-the-turkish-mou/.

^[2] Patricia Claus, “Preposterous” US-Turkey Deal Could Lead to Pillage of Cultural Heritage, Greek Reporter, 16 September 2020, https://greekreporter.com/2020/09/16/preposterous-us-turkey-deal-could-lead-to-pillage-of-cultural-heritage/; UNESCO statement on Hagia Sophia, Istanbul, 10 July 2020, https://en.unesco.org/news/unesco-statement-hagia-sophia-istanbul.

^[3] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, No. 11806, 823 U.N.T.S. 231 (Nov. 14, 1970).

^[4] Celebrate 50 years of fight against illicit trafficking, UNESCO, 1 January 2020, https://en.unesco.org/news/celebrate-50-years-fight-against-illicit-trafficking.

^[5] Syria's Assad tries to polish image with Palmyra's recapture, CBS News, 29 March 2016, https://www.cbsnews.com/news/syria-bashar-assad-tries-to-polish-image-with-palmyra-recapture/.

^[6] A Vrdoljak and F Francioni, Introduction in The Oxford Handbook of International Cultural Heritage Law (OUP, 2019).

^[7] Id.

^[8] 1970 UNESCO Convention, art.2.

^[9] 1970 UNESCO Convention, art.1.

^[10] World Heritage List nominations, https://whc.unesco.org/en/nominations/.

^[11] Diana Darke, Who own’s Syria’s cultural heritage, Middle Eastern Institute, 23 September 2020, https://www.mei.edu/publications/who-owns-syrias-cultural-heritage.

^[12] Ksenia Svetlova, The battle for Palmyra and restoring Syria’s cultural heritage, Jerusalem Post, 20 September 2019, https://www.jpost.com/Middle-East/The-battle-for-Palmyra-602118.

^[13] Patricia Claus, “Preposterous” US-Turkey Deal Could Lead to Pillage of Cultural Heritage, Greek Reporter, 16 September 2020, https://greekreporter.com/2020/09/16/preposterous-us-turkey-deal-could-lead-to-pillage-of-cultural-heritage/.

^[14] Iran Tries to Make Child Marriage Cultural Heritage, Iran News Updates, 27 October 2020, https://irannewsupdate.com/news/women/iran-tries-to-make-child-marriage-cultural-heritage/.

^[15] E Perot Bissell V, Monuments to the Confederacy and the Right to Destroy in Cultural-Property Law, 128 Yale Law Journal 1130 (2019).

^[16] Patty Gerstenblith, The meaning of 1970 for the acquisition of archaeological objects, 38(4) Journal of Field Archaeology 364 (2013).

^[17] Eric Posner, The International Protection of Cultural Property: Some Skeptical Observations, 8 Chicago Journal of International Law 213 (2007).

^[18] Roger Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International Law, 16 Fordham Int'l L.J. 1033 (1992).

^[19] Lyndel V. Prott & Patrick J. O'Keefe, Cultural Heritage or Cultural Property?, 1 International Journal of Cultural Property , 307-320 (1992).

^[20] 1970 UNESCO Convention, arts.1, 3.

^[21] Kelly Elizabeth Yasaitis, National Ownership Laws as Cultural Property Protection Policy: The Emerging Trend in United States v. Schultz, 12 International Journal of Cultural Property, 95-113 (2005).

^[22] Patty Gerstenblith, The meaning of 1970 for the acquisition of archaeological objects, 38(4) Journal of Field Archaeology 364 (2013).

^[23] Katyal, Carpenter, and Riley, In Defense of Property, 118(6) Yale Law Journal 1022 (2009).

^[24] Sebastian Spitra, The politics of cultural heritage protection in international law, Völkerrechtsblog, 3 September 2018, https://voelkerrechtsblog.org/the-politics-of-cultural-heritage-protection-in-international-law/.

^[25] Eric Posner, The International Protection of Cultural Property: Some Skeptical Observations, 8 Chicago Journal of International Law 213 (2007).

^[26] Martin Morana, From Royal Opera House to Pjazza Teatru Rjal, Government of Malta, https://culture.gov.mt/en/pjazzateatrurjal/Pages/history.aspx.

^[27] Serge Brammertz, Kevin C. Hughes, Alison Kipp, William B. Tomljanovich, Attacks against Cultural Heritage as a Weapon of War: Prosecutions at the ICTY, 14(5) Journal of International Criminal Justice, 1143–1174 (2016).

^[28] Prosecutor v. Al Mahdi, Judgment and Sentence, ICC-01/12-01/15, 27 September 2016.

^[29] Marina Lostal, Prosecutor v. Al Mahdi: A Positive New Direction for the ICC?, Opinio Juris, 26 October 2016, http://opiniojuris.org/2016/10/26/prosecutor-v-al-mahdi-a-positive-new-direction-for-the-icc/.

^[30] Mark A. Drumbl, Atrocity, Punishment, and International Law (CUP, 2007).

^[31] Prosecutor v. Bosco Ntaganda, Request by Public International Law & Policy Group for leave to submit

observations on the merits of the legal questions presented in ‘Order inviting expressions of interest as amici curiae in judicial proceedings (pursuant to rule 103 of the Rules of Procedure and Evidence)’ of 24 July 2020 (ICC-01/04-02/06-2554), ICC-01/04-02/06 A2, 14 August 2020.

^[32] Thijs Bowknegt, ICC: Bring Justice out of Quarantine, Justice info.net, 23 October 2020, https://www.justiceinfo.net/fr/45744-cpi-sortons-la-justice-de-sa-mise-en-quarantaine.html.

^[33] Situation in Bangladesh/Myanmar, Public with Confidential Annex A Corrected version of “Decision on Victims’ joint request concerning hearings outside the host State” (26 October 2020, ICC-01/19-38), ICC-01/19, 27 October 2020.

^[34] Carsten Stahn, Justice as message (OUP, 2020).

^[35] Roger Matthews, Heritage and cultural healing: Iraq in a post-Daesh era, 26(2) International Journal of Heritage Studies 120 (2020).

^[36] International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171.

^[37] International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3.

^[38] The United Nations General Assembly. Declaration on the Rights of Indigenous People. 2007.

^[39] Yvonne Donders, Cultural Heritage and Human Rights, in Oxford Handbook on International Cultural Heritage Law (2020).

^[40] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 3 February 1992, A/RES/47/135.

^[41] J. Donnelly, Cultural Relativism and Universal Human Rights, 6 Human Rights Quarterly 400 (1984).

^[42] ICOM Webinar | Local Communities Strengthening Museums, August 2020, https://icom.museum/en/news/icom-webinar-local-communities-strengthening-museums-2/.

^[43] Karen Engle, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, 22(1) European Journal of International Law, 141–163 (2011).

^[44] Federico Lenzerini, Rethinking the Debate on Universalism and Cultural Relativism in the Light of the Culturalization of Human Rights Law in The Culturalization of Human Rights Law 215 (Oxford University Press, 2014).

^[45] Margaret Keck and Kathryn Sikkink. Activists beyond Borders: Advocacy Networks in International Politics (Cornell University Press, 1998).

^[46] Alexandra Sternlicht, Confederate Monuments Come Down: Alexandria Statue Removed, As ‘Black Lives Matter’ Written On Others, Forbes, 2 June 2020, https://www.forbes.com/sites/alexandrasternlicht/2020/06/02/confederate-monuments-come-down-alexandria-statue-removed-as-black-lives-matter-written-on-others/?sh=74753d0037ad.

^[47] Lucas Lixinski, Protect the cultural icons that speak to our future, UNSW Sydney, 19 June 2020, https://newsroom.unsw.edu.au/news/social-affairs/protect-cultural-icons-speak-our-future.

^[48] Petronela Spiridon and Ion Sandu, Conservation of cultural heritage: from participation to collaboration, 5(1) ENCATC Journal of Cultural Management and Policy (2015).