3International Action to Protect Cultural Heritage: Key Debates

As momentum builds around protection for cultural heritage in armed conflicts, so too does the urgency to seize the present political moment. Cultivating international consensus around a possible comprehensive framework will require navigating the shoals of political and bureaucratic differences. This chapter outlines issues raised by the process of protecting people and cultural heritage, which should be addressed before meaningful consensus on a new international framework can be garnered. Advocates for a new framework for protection will have to avoid at least three political fault lines: the limits of sovereignty, the role of nonstate actors, and the nature of cultural property.

Sovereignty

As agreement grows about the necessity to protect threatened cultural heritage, it becomes apparent that any effort to advance new norms or customary international law will confront the common claim of sacrosanct sovereignty. In particular, proposals involving any possible forceful intervention against the expressed wishes of political authorities are invariably contested. The responsibility to protect has encountered such controversy, as had humanitarian intervention in the 1990s, and so too will the protection of cultural heritage in armed conflicts.

Sovereignty undergirds the international system; it figures in UN Charter Article 2 and in the equivalent documents of other international intergovernmental organizations. States—major, middle, or minor powers; rich or poor; from the North or Global South—pursue self-defined vital interests in such bodies and seek to preserve sovereignty’s normative and legal primacy. Analysts often view the developing countries of the Global South as places where sensitivity to outside meddling is justifiably high, but encroachments on sovereignty are anathema for developed countries as well. The sovereignty of pariah states can be set aside with international approval in the form of Security Council decisions, but that abrogation is temporary.

At the same time, sovereignty traditionally has provided cover for state actors who may commit all manner of sins with reasonable assumptions of immunity. Deliberations about the nature of international human rights essentially revolve around where domestic and international jurisdictions begin and end. One relatively unknown example helps to illustrate this dynamic with reference to cultural heritage. Carrying out the will of the government, Azerbaijani officials destroyed an Armenian cemetery in Julfa, demolishing thousands of medieval Armenian tombstones. Using its sovereign powers, Azerbaijan has asserted that Armenians never existed in this particular territory and effectively denied access to EU and Council of Europe investigators; it also denied access to the site to the US ambassador to Azerbaijan in 2011. Along with sovereign authority comes the sovereign power to deny investigations into what the state claims are internal affairs.

Responding to gross human rights abuses in the 1990s, then UN secretary-general Kofi Annan put forward the notion of conditional rather than absolute sovereignty. Increased attention to individual sovereignty, he wrote, affirms states’ obligation to act in the service of their populations: “When we read the charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.” In arguing for the creation of a systematic framework for coming to the rescue of victims caught in the crosshairs of state and nonstate violence, he contested the limits of sovereignty as traditionally conceived.

Annan was hardly the first to call for a better balance between the sovereignty of individuals and states, but his plea fell on more receptive diplomatic ears than had earlier pronouncements. In particular, ICISS built on the momentum, and R2P codified the principle of conditional sovereignty—at least mass atrocity crimes were no longer a purely domestic issue. It established guidelines about the circumstances under which conditional sovereignty applies; it also spelled out what constitutes humanitarian need, proper authority of the intervening actors, and precautionary principles. Since its adoption by the General Assembly in 2005, and its application by the Security Council in Libya in 2011 and in a host of other resolutions since, R2P has perhaps paved the way for the further expansion of human and cultural protection.

Nonstate Actors

The changing relationship between nonstate actors and international law is crucial. International law, by definition, is signed and ratified by states; and state practice, especially by major powers, is the most important criterion in establishing international customary law. Substate actors such as corporations and NGOs, as subjects of the state, are accountable to the agreements into which states enter, pending state enforcement. However, such rogue actors as terrorists do not acknowledge—in fact, quite the opposite, they deny—the authority or jurisdiction of the states in which they operate. Terrorist groups are ill-suited subjects for international law. In addition, the United Nations has no agreed definition of “terrorism.” Countries pursuing the GWOT have identified such groups as targets, but agreement about the groups’ pariah status says little about the possibilities for enforcing more broadly what hardly reflects an international consensus.

For the purposes of this essay, gaining access to zones of armed conflict in order to secure endangered cultural heritage would certainly be necessary. Without the ability to negotiate access, and especially in cases where the state no longer has effective control over the territory in question or is actively attacking it, ensuring access and protection of cultural heritage will require either some deft diplomacy or willingness to proceed without the consent of political authorities, or both.

It is important to recall that the United Nations, until the late 1980s, was poorly equipped to work with nonstate actors. Intergovernmental organizations relate to the governments of their member states, which make decisions and sometimes pay the bills. Any relationships with the armed opposition were supposed to convey recognition and thus to be avoided. NGOs, not the UN system, pioneered cross-border operations. However, a turning point for the world organization came with Operation Lifeline Sudan, when UNICEF effectively negotiated access with the government of Sudan and with South Sudanese rebels to deliver humanitarian aid to victims of famine and civil war, wherever they were located. An essential element of the negotiations was that they explicitly denied conveying legitimacy for or implying any official recognition of the Sudan Liberation Army. Since then, negotiations with nonstate actors and assistance for them have become standard operating practice for the UN; but sensitivities to official reactions from capitals still by far carry the most weight.

In terms of cultural heritage, UNESCO has the lead role within the UN system and sets essential standards but has become operational in any meaningful sense only in recent years. It has relationships with a range of civil society actors, including universities, museums, and heritage organizations. It signed a Memorandum of Understanding with the ICRC to leverage the latter’s unparalleled access and sterling reputation in zones of armed conflict, and thus to elevate the protection of cultural heritage and reinforce the connection between protecting it and protecting people. UNESCO’s Unite for Heritage campaign specifically aims to promote such partnerships, although it is doubtful that these arrangements will suffice to guarantee the access required.

Further, appropriate access may not lie exclusively in the ability of international organizations to negotiate with nonstate actors. Outside military force—except of the Chapter VII variety—is dependent on state consent. In the destruction of cultural heritage in Timbuktu, Mali requested military intervention from the UN to regain control of its territories and protect cultural heritage. Syria has made no such overture. Obviously, no such request was forthcoming in Afghanistan ahead of or in response to the Taliban’s destruction of museums and monuments.

Claims to Cultural Property

Perhaps the most impassioned debates will concern notions of cultural value and culture as property, because the “universal value of cultural heritage” is not universally accepted. John Merryman helpfully laid out the contours of this debate by contrasting cultural internationalism with cultural nationalism. The former posits a shared heritage to which all peoples have contributed across time. It envisions a common humanity as the basis for a shared cultural heritage that is not dependent on the accidents of geography (contemporary national borders) or of political change (separations over time). According to this view, significant examples of immovable and movable cultural heritage have value to all people, who have an interest in preserving and guaranteeing access. Kwame Anthony Appiah articulates a critical distinction: “It is the value of the cultural property to people and not to peoples that matters. It isn’t peoples who experience and value art; it’s men and women.” Encyclopedic museums are a project of cultural internationalism: in presenting artifacts from diverse times and geographic origins, they allow visitors to draw observable comparisons and make connections to things they may otherwise have ignored. The cultural internationalist view is typically associated with a cosmopolitan preference for the free flow of art and artifacts because all people have a claim to them and can learn from exposure.

In contrast, cultural nationalism attributes a national quality to objects that originated in the country whose borders and government are currently recognized and where the heritage was created. Greek claims to the Elgin Marbles in the British Museum are probably the best-known example. Cultural nationalism posits a special relationship between the actual location and the local environment in which an item was created, the people who created it, and their descendants who have inherited it in the same place. According to this view, artifacts lose meaning and value outside of their place of origin, or can really only be appreciated in their original context and alongside other items from the same location.

Countries with high concentrations of antiquities—or “source countries,” as they are often called—tend to promote the nationalist approach; they seek to establish a legitimate claim on all cultural heritage items produced within their current national jurisdictions. Indeed, they sometimes even claim ownership over items that originated in former parts of a country or empire, or that were acquired by other countries or individuals (legally or not). China and Egypt, for instance, make a claim to all objects created within their historic and current borders but now located anywhere in the world. The value of repatriation is seldom questioned. Turkey today claims ownership over objects originating in or transported to the Ottoman Empire, and even objects originating within the Roman Empire in lands that later became part of the Ottoman Empire.

The two perspectives thus answer very differently the following question: “Is cultural heritage important to all of us or only to the governments (and their citizens) of the countries that claim jurisdiction?” The opposing answers—the former an Enlightenment-driven cosmopolitanism, the latter a proud and committed nationalism—are enshrined in various legal instruments, although often in fuzzy diplomatic language that obfuscates the differences. The most prominent legal embodiment of the internationalist view is the 1954 UNESCO Convention. Its Preamble posits “that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.” This instrument is concerned with the protection of cultural heritage, both movable and immovable, and advances the position that all states are responsible for stewardship.

In contrast, the Preamble to the 1970 UNESCO Convention attributes cultural heritage to the source country. It identifies culture as one of a country’s great assets: “cultural property constitutes one of the basic elements of civilization and national culture, and . . . its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.” Further, States Parties recognize that “the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property” (Article 2). The 1970 UNESCO Convention aims to protect national treasures from illicit trade and, as noted, gives the government of a current state the ultimate authority to declare what cultural heritage is worth protecting.

The difference between these two approaches and UNESCO’s two conventions reflects a historic political shift. A wave of post–World War II nationalism shifted the balance of numbers in intergovernmental organizations toward postcolonial countries. Given the large overlap between source and developing countries, there were strong claims of abuse and the need for repatriation of cultural heritage that had been removed under the banner of empire or because of market forces and sales. Thus and as noted, a dramatic change in language and conception of ownership occurred between 1954 and 1970. Nonetheless, some industrialized countries—notably, Italy and Greece—also have large concentrations of antiquities, which have been widely dispersed in former parts of an empire or in encyclopedic museums. Thus, they are sometimes on the same page as countries from the Global South on this issue.

Much of the recent debate has taken place in litigation concerning ownership. Museums are compelled to return artifacts acquired decades ago under different legal regimes if evidence exists that they were removed illegally from the jurisdiction of their owners. Countries of transit are asked to interdict trafficked goods and repatriate them to the source country. Because there are not always clear agreements about who owns an artifact, disputes frequently arise about who is the rightful claimant. While both perspectives provide powerful arguments about the rightful claims to heritage, Merryman proposes an object-oriented approach that emphasizes less the state and ownership and more the intrinsic value of cultural heritage. Rather than considering who has the strongest claim to an object, he proposes three criteria to make a judgment about policy options: preservation, truth, and access. Which outcomes promote the best preservation of an object, the greatest scholarly utility, and the greatest degree of public and specialist access? These are the questions, he argues, that should guide discussions of where an object should end up. Consequentialism, not ideology, could provide more objective and defensible answers.

Applying the object-oriented perspective suggests that “stewardship” rather than “ownership” would be a preferable term and approach for effectively protecting cultural heritage in armed conflicts and more generally. Neil MacGregor suggests the notion of “trusteeship” as the way to frame the issue, because it “brings with it the notion of an obligation to hold the object for the benefit of others, the whole world, natives as well as foreign, those living now and not yet born.” For those who dismiss as biased the remarks from the former head of the British Museum, it is harder to discount Kwame Anthony Appiah’s use of the same term and of universal “belonging” as the metaphor for “ownership” of cultural heritage because it is “of potential value to all human beings.”

Looking to Political Precedents

This chapter has provided an overview of anticipated debates related to the formulation of an international framework for the protection of cultural heritage. ICISS confronted similar debates but managed to forge political innovations and compromises that paved the way for the consensus now surrounding the responsibility to protect. It is to that process we now turn.