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Публикувано: Marga Koutsarova. The Roerich Pact – the Foundation of the International Legal System for the Protection of Cultural Property and its Future // The Roerich Pact. The Past and the Present. Catalogue of the exhibition organized by the International Centre of the Roerichs under the patronage of UNESCO and of the Ministry of Culture of the Russian Federation. Moscow: International Centre of the Roerichs, Master-Bank, 2012, p. 15-22

 

Marga Koutsarova

THE ROERICH PACT – THE FOUNDATION OF THE INTERNATIONAL LEGAL SYSTEM FOR THE PROTECTION OF CULTURAL PROPERTY AND ITS FUTURE


Wherever there is Culture, there is also peace. There are heroism and right solutions to the most difficult social problems. Culture is the accumulation of the highest Grace, of the highest Beauty, of the highest Knowledge. Mankind may in no way be proud that it has done enough for the flowering of culture.

Nicholas Roerich

   The Roerich Pact is the first international treaty which provides comprehensive solution to the problems of cultural property protection. It has become the foundation of the contemporary international legal system for the protection of treasures of culture. The Pact has given enormous opportunities for the preservation of Culture, in the past some of them have been seized, others have been lost. The Pact also bears in itself new opportunities for the future. It depends on us whether they will come true in the name of Culture.
   The above said shall be substantiated by way of analysis of the provisions of the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact). We shall compare the Roerich Pact and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and in particular the nature of the protection provided for in these treaties, the protected objects, the criteria for their registration and the sign for the protection thereof. There will be considered also the 1977 Additional Protocol I to the Geneva Conventions, the 1999 Second Protocol to the 1954 Hague Convention and other international legal instruments.

Unconditional protection of cultural property or conditional one?

   The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict provides in the first paragraph of its Article 4 that no act of hostility should be directed against cultural property and that such property should not be used for purposes which are likely to expose it to destruction or damage in the event of armed conflict. However, in the second paragraph of the same Article it is said that: «The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.»
   This reservation relates to cultural property enjoying general protection in accordance with the 1954 Hague Convention. That Convention has provided also for a system of special protection of movable and immovable cultural property which is of very great importance. However, such cultural property is entitled to conditional protection as well–its immunity may be withdrawn, i.e. the obligation for its protection may be waived «in exceptional cases of unavoidable military necessity.» Thus, the protection accorded by the 1954 Hague Convention to cultural property is a conditional one. The 1954 Hague Convention has borrowed this limitation from the 1907 Hague Regulations Respecting the Laws and Customs of War on Land, where the destruction and the seizure of the enemy’s property is forbidden unless such destruction or seizure be imperatively demanded by the necessities of war . [1]
   However, these notions–«imperative military necessity» and «exceptional cases of unavoidable military necessity»–have not been defined in the 1954 Hague Convention and their content has remained vague. [2] Therefore one cannot but agree with the opinion that the imperative military necessity as well as the exceptional cases of unavoidable military necessity reservation makes possible «the intentional destruction of cultural property because of purely military considerations. On this account it is unacceptable and should be corrected de lege ferenda». [3]
   The adopted in 1977 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (hereinafter: 1977 Additional Protocol I) did away with the approach of the 1954 Hague Convention. [4] This Protocol envisages that only military objectives are to be made the object of military attack, whereas civilians and civilian objects are not to be made the object of such an attack. Cultural property is civilian property and as such it may not be subjected to a hostile military act against it. Civilian objects and, therefore, cultural objects may be attacked only in those cases when they have become military objectives. There is no exception to this rule.
   The Diplomatic Conference, which adopted the 1977 Additional Protocol I, had as its result the definition of the notion «military objective» and this is considered as one of its major achievements. According to Article 52 (2) of this Protocol, the definition of military objective includes two criteria, which have to be fulfilled cumulatively if an object is to be considered as military. The first criterion relates to the nature, location, purpose and use of the object–due to any of the enumerated characteristics the object has to make an «effective contribution to military action.» The second criterion relates to the military advantage to be gained by destroying, capturing or neutralizing this object and this military advantage has to be «definite, in the circumstances ruling at the time.»
   In 1992, the Government of the Netherlands and UNESCO jointly commissioned to Professor Patrick Boylan a «wide-ranging review of the apparent failure of the 1954 Hague Convention and its Protocol (now the First Protocol) to achieve the clear and honourable objectives which this important International Legal Instrument was intended to achieve.» [5]
   Following the recommendations contained in Professor Boylan’s report and the huge preparatory work done by UNESCO and the Government of the Netherlands, there was convened a Diplomatic Conference within the framework of which the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was signed on May 17th, 1999. It entered into force in 2004.
   This Protocol has taken over from the 1977 Additional Protocol I the rule that there may be no hostile attack against cultural property except for the cases, when such property has become military objective. The Second Protocol differs from the 1977 Additional Protocol I since it has restricted the criteria, which give reason to consider that a cultural object has become a military objective. This restriction has come about as a result of considerable effort at the Diplomatic Conference in the Hague in 1999. Unlike other civilian objects, the nature and the purpose of a cultural object cannot make it a military objective, whereas its use can–there have been no arguments on this point. However, the issue of the location has caused heated debates. The Greek and the Egyptian delegations, as well as the International Committee of the Red Cross firmly opposed the approach whereby the mere location of a cultural property is capable of making it a military objective, because if such approach were to be accepted the protection of cultural property as a whole would be greatly diminished. [6] Although the criterion of the location of the cultural property has not carried conviction, several delegations, mostly from NATO countries, vigorously insisted on it. [7] A compromise has eventually been reached by way of the following wording: an act of hostility may be directed against cultural property which, by its function, has been made into a military objective. One cannot but agree with Jean-Marie Henckaerts, the lawyer of the International Committee of the Red Cross who participated in the elaboration of the Second Protocol, that only by a stretch of imagination it is possible to assert that «function» covers not only the use, but also the location of the cultural property. [8]
   The debate on the location criterion related only to those cultural objects which, in accordance with the 1954 Hague Convention and the Second Protocol to it, enjoy general protection. As regards the cultural property which by virtue of the Second Protocol is entitled to enhanced protection, there have been no disputes whatsoever: the enhanced protection of such cultural property my be lost only if by its use it has become military objective. [9]
   The Roerich Pact–the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, signed on April 15th, 1935 at the White House in Washington, provides for the protection of cultural property without reservations. Owing to the initiative and the enormous work of Nicholas and Helena Roerich and their fellow-champions in many countries of the world, a great victory has been achieved on the eve of the Second World War, since the Roerich Pact introduced for the first time in international law, clearly and categorically, the principle of the priority of the protection of cultural property over military necessity. This principle enshrined in itself the fundamental idea that cultural property has an imperishable significance for the whole humanity, whereas military necessity has transient and time-serving character. This very approach to the problem of the protection of cultural property shows the tremendous difference between the Roerich Pact and the adopted before it 1907 Hague Conventions respecting the Laws and Customs of War on Land and concerning Bombardment by Naval Forces in Time of War.
   The Roerich Pact was conceived and elaborated as universal international treaty and, therefore, its adoption gave to all peoples, to all mankind the exceptional possibility to save in the forthcoming world war many invaluable treasures of world culture. The intended universal character of the Roerich Pact has to be particularly stressed. The Pact introduced for the first time legal principles and rules which had in the past and have at present worldwide significance. The materials of the Third Conference on the Roerich Pact, convened in November 1933 in Washington, also testify to the universal character of the Pact. The resolution of the Third Conference recommended the adoption of this humane act–the Roerich Pact–«by the governments of all nations as a demonstration of the noble attitude of their peoples to the protection of culture». [10] Furthermore, in the text of the Treaty itself it is said that States, which do not sign the present Treaty on the date it is opened for signature may sign or adhere to it at any time. [11] In the Preamble of the Roerich Pact the object of this international treaty is stated, which is namely: the universal adoption of a flag (the Banner of Peace), already designed and generally known. Let us also remind that at the signing of the Roerich Pact president Roosevelt said: «In opening this Pact to the adherence of the nations of the world, we are endeavoring to make of universal application one of the principles vital to the preservation of modern civilization.» [12]
   Because of the fact that many countries, and first of all the European countries, did not adhere to the Roerich Pact on the eve of the Second World War, the possibility to save so many treasures of the human genius was lost. The 1907 Hague Conventions did not help protect the treasures of culture as was demonstrated by the First World War. This was specifically mentioned in the address of Baron Michel de Taube to the 1933 Third Conference on the Roerich Pact: «…both 1907 Conventions demonstrated clearly enough during the world war their inefficiency.» [13] The ineffectiveness of the 1907 Hague Conventions as regards cultural property protection was confirmed, unfortunately, by the Second World War as well. In 1999 Jean-Marie Henckaerts wrote: «As history shows, however, the concept of military necessity has not limited warfare in any significant way. The Second World War, for example, was fought under the restriction that no property could be destroyed unless there was an imperative military necessity to do so. Yet entire cities were destroyed.» [14]
   After the Second World War yet another possibility was lost–the possibility to retain the achieved by the Roerich Pact highest standards in the international legal protection of cultural property. The Roerich Pact was not proposed to the adherence of all the countries in the world and, therefore, it remained a regional treaty, signed by the American countries.
   During the Diplomatic Conference which adopted the 1954 Hague Convention it was the US and the United Kingdom that insisted on the «military necessity» reservation. [15] An interesting fact is worth mentioning–the representative of Romania has pointed out that there is no such reservation in the Roerich Pact and it is striking that the US in particular, which have signed and ratified the Roerich Pact, insist on the inclusion of this reservation. [16] «The position of the United States at the Conference», notes Professor P. Boylan in 1993, «seems particularly illogical since it was (and remains) a Party to the 1935 Washington Pan-American Treaty (Roerich Pact), which requires unconditional “respect and protection” with no hint of any “military necessity exemption”.» [17] The Soviet delegation was against the reservation, its leader V. S. Kemenov stated that the cultural heritage of humanity should be preserved for the generations to come and that this task overrules all «military necessity». If bombs were to fall over the Acropolis, Versailles or Westminster, it would be poor consolation to ascertain that it is done in observance of the provisions of the Hague Convention. [18] A substantial number of states represented at the 1954 Hague Diplomatic Conference were opposed to the «military necessity» reservation, including France, Greece, Spain and the countries of the former ‘socialist’ block. The Anglo-Saxon countries, however, made it clear that this reservation is a conditio sine qua non for their acceptance of the Convention. [19] As a result the Conference adopted the reservation and it was included in the text of the 1954 Hague Convention which, in this respect, made a step backward in comparison to the Roerich Pact. And only half a century later–in 2004 when the Second Protocol to the 1954 Hague Convention entered into force, there was achieved that level of unconditional protection which the Roerich Pact envisaged in 1935.
   Article 5 of the Roerich Pact provides that cultural property shall cease to enjoy the protection envisaged in the Pact in case it is made use of for military purposes. Neither the location of the cultural property, nor anything else apart from its use for military purposes may serve as the reason for losing the protection accorded by the Roerich Pact. This solution, which is simple and the only correct one, was adopted by the Second Protocol to the 1954 Hague Convention in relation to the cultural objects enjoying enhanced protection. One could say that as a whole, due to compromises in the wording, it has been adopted also in relation to cultural objects enjoying general protection. This was accomplished more than sixty years after the signing of the Roerich Pact.
   There are new rules in the Second Protocol which should be welcomed, since they are not to be found in the Roerich Pact and the 1954 Hague Convention, and they provide for an important additional layer of protection for cultural property. For example, in relation to cultural object enjoying general protection, Article 6 of the Second Protocol stipulates that if, by its function, it has been made into a military objective it may be attacked only if there is no alternative and after an effective advance warning has been given whenever circumstances permit. These new rules have been elaborated drawing on the implementation of the 1977 Additional Protocol Ito the Geneva    Conventions and this itself once again proves the rightfulness of Nicholas Roerich who always insisted on the study and use in the field of the protection of cultural property of the experience of the Red Cross. The provisions on the individual criminal responsibility of persons responsible for the violation of the international rules on the protection of cultural property are also a very important achievement of the 1999 Second Protocol.