Cultural Heritage
of the State … [or] as a justification for interven- ing, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the Party in the territory of which that conflict occurs.” (Article 22). Aprophe can argue that its destruction of the Mai-Tocao Temple was carried out as part of its effort “to defend the na- tional unity and territorial integrity of the State.”
The Second Protocol also clarifies the military ne- cessity waiver, provided in Article 4 of the main Convention. It states that the waiver based on im- perative military necessity can only be invoked for as long as “that cultural property has, by its func- tion, been made into a military objective …” (Ar- ticle 6(b))(emphasis added). This narrowing of the circumstances in which the waiver might apply undercuts Aprophe’s argument that the destruc- tion of the Mai-Tocao Temple should be excused under the military necessity doctrine because the Temple was not being used in a way that would make it a military objective.
30
The second difficulty in applying the 1954 Hague Convention and its Protocols is that neither Ap- rophe nor Rantania has ratified any of these legal instruments. The lack of certainty as to applicabil- ity during the Balkan conflicts led the drafters of the Statute of the International Criminal Tribunal for the Former Yugoslavia not to rely directly on the 1954 Convention but rather to rely on customary international law. The Updated Statute of the ICTY, Article 3 (d)4
states that “seizure of, destruction
or wilful damage done to institutions dedicated to religion, charity and education, the arts and sci- ences, historic monuments and works of art and science” are violations of the laws or customs of war. Article 3(d) of the ICTY cites as “sources in international customary and treaty law” to define the elements of the offense Article 27 of the 1907 Hague Regulations, the 1954 Hague Convention, Article 53 of Additional Protocol I, and Article 16 of Additional Protocol II. Prosecutor v. Strugar, Case No. IT-01-42-T (31 Jan. 2005). Whether Ap- rophe can be held responsible for the destruction
of the Mai-Tocao Temple would depend on the applicability of customary international law, which now recognizes, at a minimum, the obligation to refrain from the intentional targeting and destruc- tion of cultural property, unless it is excused by imperative military necessity. However, the un- certainty of applicability to a purely internal action requires turning to other sources of international law.
The one international convention that both Ap- rophe and Rantania have joined is the 1972 UNES- CO Convention concerning the World Cultural and Natural Heritage Convention. Among UNESCO’s cultural legal instruments, this is one of the more popular with currently 189 States Parties. The primary function of the World Heritage Conven- tion is the creation and maintenance of the World Heritage List. States Parties may nominate to the list cultural and natural sites that the State Party “considers as having outstanding universal value” (Article 11). The Committee also maintains a Tentative List and a List of World Heritage Sites in Danger.
According to the facts of the Jessup Competi- tion problem, the Tai-Macao Temple Complex is listed on the World Heritage List, thus signifying its outstanding universal cultural value. However, the World Heritage Convention makes nomina- tion to the List and maintenance of sites on the List entirely the responsibility of the nation within whose territory a World Heritage site is located. The only sanction provided in the Convention is the placement of a site on the List of World Heri- tage Sites in Danger and the removal of a site from the World Heritage List if it no longer fits the criteria of a site of outstanding universal value.
Some provisions of the World Heritage Conven- tion reach beyond the listing of sites. Article 4 provides: “Each State Party to this Convention recognizes that the duty of ensuring the identifi- cation, protection, conservation, presentation and transmission to future generations of the cultural
ILSA Quarterly » volume 20 » issue 4 » May 2012
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96