Cultural Heritage
crimination. In the last decades, internation- al practice has extended the scope of appli- cation of all main principles of humanitarian law, originally meant for international armed conflicts, to civil wars, ethnic conflicts and conflicts of a non-international character.
The point the authors make was echoed more recently in the opinion of Justice Cançado Trin- dade in the 2011 Order of the International Court of Justice in the case of Cambodia v. Thailand concerning the Temple of Preah Vihear. Although the facts of the Preah Vihear case and those of the Jessup problem are quite different, some of the comments in Judge Cançado Trindade’s separate opinion are instructive on the question of whether international law can and should ap- ply to domestic destruction of cultural heritage. Emphasizing the interconnectedness of human beings, their spiritual lives, and their relationship to both the past and the future, he wrote:
32
[C]ultural and spiritual heritage appears more closely related to a human context, rather than to the traditional State-centric context; it appears to transcend the purely inter-State dimension, that the Court is used to. … [B] eyond the States are the human beings who organize themselves socially and compose them. The State is not, and has never been, conceived as an end in itself, but rather as a means to regulate and improve the living conditions of the societas gentium, keep- ing in mind the basic principle of humanity, amongst other fundamental principles of the law of nations, so as to achieve the common good. Beyond the States, the ultimate titulai- res of the right to the safeguard and preser- vation of their cultural and spiritual heritage are the collectivities of human beings con- cerned, or else humankind as a whole ….7
This focus on human beings and their relationship to the past and to the future, in large part through their spiritual and religious, as well as cultural,
heritage, forms an argument for looking beyond the territorial and sovereignty rights of the nation. This looking beyond the sovereignty of the nation may at times be compelled but should also be limited to narrow circumstances, such as those presented in the Jessup problem, in which the nation intentionally acts counter to customary in- ternational law principles requiring preservation of cultural heritage.
While there is no clear outcome to this issue in the 2012 Jessup International Law Moot Court Competition problem, the problem provided a wonderful learning opportunity for a large num- ber of students, their coaches and the judges who participated in the competition. As the competition problem demonstrates, all involved in international law need to gain a greater under- standing of the evolving and expanding role that cultural heritage plays in both formal international legal instruments and customary international law. Far more people are now familiar with the issues involved in the preservation of the world’s cultural heritage—and the important role that this heritage plays for human identity, cultural devel- opment, and well-being.
Endnotes for The Protection of Cultural Heritage During Armed Conflict
. * Patty Gerstenblith is the Distinguished Research Profes-
sor and Director, Center for Art, Museum and Cultural Heritage Law, DePaul University College of Law; Director, U.S. Committee of the Blue Shield
1
Roger O’Keefe, The Protection of Cultural Property in Armed Conflict 5-13 (2006).
2 Jirí Toman, The Protection of Cultural Property in the
The Marquis de Somerueles, Vice-Admiralty Reports 482 (Vice-Admiralty Court of Halifax 1813).
Event of Armed Conflict 5 (1996). 3
4 Available at
http://www.un.org/icty/legaldoc-e/basic/stat-
ut/statute-feb08-e.pdf. 5
Id. at 637. The Destruction of the Buddhas of Bamiyan and Interna-
tional Law, 14 European J. Int’l L. 619, 630-38 (2003). 6
7
Paras. 23-24, available at:
http://www.icj-cij.org/docket/ files/151/16584.pdf.
. ILSA Quarterly » volume 20 » issue 4 » May 2012
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