Международноправно значение на Пакта

List of protected cultural property. Criteria and procedure for inclusion in the list

   The 1954 Hague Convention, as was earlier mentioned, provides for two systems of cultural property protection. When cultural property is subject to general protection no list is drawn and the protection may be lost in cases of «imperative military necessity». The special protection, whichhas been established with a view of preserving such treasures of culture as the Acropolis, the Versailles Palace, the Taj Mahal or the Hermitage, requires the entry of the respective objects in the International Register of Cultural Property under Special Protection and it may be lost «in exceptional cases of unavoidable military necessity.» However, this system of special protection as a whole has had very limited success. [20] Only five objects have been entered in the International Register of Cultural Property under Special Protection–Vatican City and four refuges of cultural property (in the Netherlands and in Germany). [21]
   There are several reasons which are to account for this situation. It should be pointed out in the first place that according to the Convention cultural objects may be entered in the Register provided that they are situated at an adequate distance from any large industrial centre or from any important military objective. [22] There is no clarity as to what «adequate distance» actually designates. The specified above criterion is, of course, almost impossible to fulfill, since many treasures of culture are located in the city centres and are surrounded by potential military objectives. [23] In the second place, any state which is Party to the Convention may lodge an objection to the entry of cultural property in the Register. [24] Past experience has shown that states can object to the entry of cultural objects in the International Register of Cultural Property under Special Protection on grounds which are political and have no relation to culture. [25]
   While preserving the existence of the special protection under the Hague Convention, the 1999 Second Protocol to the Hague Convention establishes a new system of enhanced protection of such cultural property, which is of the greatest importance for humanity.
   The cultural property enjoying enhanced protection has to be entered into a separate list. States Parties to the Protocol have the right to object to an entry proposed by another State Party only on grounds which relate to the significance of the cultural property, to its protection on national level and to the obligations of the proposing state not to use the respective cultural property for military purposes.
   If we compare the criteria and the procedure for entry in the list of protected cultural property envisaged by the Roerich Pact and by the 1954 Hague Convention, we should note that the Roerich Pact established more flexible system. In accordance with Article 4 of the Roerich Pact, the Signatory Governments and those which accede to the Pact shall send to the Pan-American Union [26] a list of the monuments and institutions for which they desire the protection agreed to in the Pact. Thus, unlike the 1954 Hague Convention and the Second Protocol to it, the Roerich Pact provides for the entry into the list of all protected by it cultural property and not just of a particular category.    The list is to be drawn up independently by each state which has signed or acceded to the Pact, and there are no conditions or restrictions as regards the inclusion of monuments or institutions in this list. There is a correspondence between the unconditional protection of cultural property envisaged by the Roerich Pact and the lack of any restrictive location criterion (proximity to industrial centres or to important military objectives) for the entry of such property in the list.
   The Second Protocol, aiming at eliminating the imperfect provisions of the Hague Convention, has provided for solutions which are closer to the ones of the Roerich Pact: it has done away with the onerous and unrealistic requirement of the Convention for an adequate distance from industrial centres and military objectives and has limited the number of those entitled to take decisions on inclusion in the enhanced protection list (in accordance with the 1999 Second Protocol the decisions on the entry in the list are to be taken by the Committee consisting of the representatives of 12 States Parties to the Protocol).
   The Convention concerning the Protection of the World Cultural and Natural Heritage adopted in Paris in 1972 establishes the World Heritage List. The 1954 Hague Convention regulates the protection of cultural property only during armed conflicts. The established by it International Register of Cultural Property under Special Protection is legally binding in wartime.
   Thus, in accordance with these two Conventions, we have two lists of cultural property. The success and the authority of the World Heritage List have served as an incentive to search for a better mechanism for the list in time of armed conflict. As a result the enhanced protection system under the 1999 Second Protocol was established and the criteria for entry in the list of the cultural objects which are entitled to such protection were alleviated.
   In the absence of wartime list, UNESCO successfully availed itself of the World Heritage List. During the war in the former Yugoslavia UNESCO referred to the World Heritage List in relation to Dubrovnik and as a result this city was more or less spared. [27] Let us stress that a list which has not been intended for wartime purposes has served to protect during armed conflict. The worldwide renown and the authority of the World Heritage List helped to protect Dubrovnik. This comes to attest Nicholas Roerich’s idea of the greatest educational importance of the legal protection of cultural property in time of peace, since the very fact of such protection cultivates in the consciousness of the population of many countries respect for the cultural property and appreciation of its significance.
   The Executive Board of UNESCO adopted a decision in 1993 inviting States Parties to both the Hague Convention and the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage which had sites listed on the World Heritage List to consider the possibility of nominating them for the International Register of Cultural Property under Special Protection. [28] Although this decision of the Executive Board of UNESCO did not bring about concrete results, the initiative itself should be welcomed as it testifies to the orientation towards a single list for the treasures of Culture of mankind.
   The Roerich Pact provides for the protection of cultural property both in time of peace and in wartime and it envisages a single list for the protected cultural objects. The latter provision of the Pact demands our special attention. The events of the last fifty years confirm the viability and correctness of this approach. Cultural property should be protected, as it is written in the Pact, «in any time of danger» and a single list should direct such a protection. If the lists are different, it means that we do not really follow the principle of protection of Culture but rather considerations of military nature.
   The language of the Roerich Pact is very expressive: if states desire to give cultural objects the protection envisaged in the Pact, they have to include them in the list. This requirement itself clearly indicates that the protection of the cultural property demands the efforts of the country to which they belong in peace-time.
   Article 2 of the Roerich Pact requires States Parties to this treaty to adopt the measures of internal legislation necessary to insure the protection provided for by the Pact. Taking into consideration that all protected by the Pact cultural objects are to be entered in the list, the aforementioned provision signifies that in the internal policy of these states particular attention has to be given to culture, which includes in itself also art, spirituality and science. We shall come back to this later.

Objects of protection

   The Roerich Pact provides for the protection of the most comprehensive range of cultural property: historic monuments, museums, scientific, artistic, educational and cultural institutions. [29]
   It is worth noting that the Roerich Pact protects both movable and immovable cultural property. Some authors have expressed the opinion that the Roerich Pact envisages the protection of just immovable cultural property. [30] It is not possible to agree with this. In the draft of the Roerich Pact published in 1929 it is said that «[t]he historic Monuments, educational, artistic and scientific Institutions, artistic and scientific Missions, the personnel, the property and collections of such Institutions and Missions above mentioned shall be deemed neutral and, as such, shall be protected and respected by belligerents.» [31] It follows clearly from the wording of the text that the authors of the draft provided for the protection of movable cultural property. In the text of the Pact adopted in April 1935 the words «the property and collections» are no longer present, but it is not possible to consider that the international legal protection of movable cultural property has been dropped. The protection of the museums stipulated in Article 1 of the Roerich Pact presupposes the protection of the buildings of the museums and of their exhibits. The museum unifies in a single whole the building and the preserved in it movable cultural valuables, and this whole may not be severed since the building on its own is not a museum but at best–a monument of architecture. This argument applies also to the movable cultural property preserved in the scientific, educational, cultural and artistic institutions protected by the Roerich Pact.
   The Roerich Pact provides for the protection of the personnel of the mentioned above institutions. [32] It is not possible to overemphasize the tremendous significance of the protection given by the Pact to the people working in the fields of culture, arts, science and education! These people are the spiritual and intellectual wealth of every country and their loss oftentimes has grave repercussions on the next generations. It is very important that the Pact protects the personnel of the aforesaid institutions not only in wartime, but also in time of peace. It is sufficient here to recall the Stalin’s repressions in the Soviet Union in the 1930s, which were particularly ruthless to those who were the bearers of ideas, knowledge and the search for truth–in other words, to those who create Culture.
   It is rightly pointed out by E. Alexandrov that the accorded by the Roerich Pact protection to the specified above institutions covers not only their material substance, but also their non-material characteristics–the legal status of these institutions, the achieved recognition, the nature of their activity, their place in social and cultural life, the conditions for developing the institutions’ specific activities, etc. [33] This broad interpretation of the protection envisaged by the Roerich Pact pertains also to the protection of the personnel of these institutions: not only the physical integrity, but also the mental integrity of these persons is entitled to protection. The latter implies securing the possibilities and conditions for the work of the personnel and for the manifestation of their creative potential.[34] 
   It follows from Article 1 of the 1954 Hague Convention, that the Convention protects – using the terminology of the Roerich Pact–historic monuments, museums and some cultural institutions (large libraries and depositaries of archives; refuges, intended to shelter, in the event of armed conflict, the movable cultural property enumerated in Article 1 of the Convention). The Convention uses the descriptive method of detailed enumeration of these objects. The 1999 Second Protocol to the Hague Convention did not introduce any changes as to the scope of the protected by the Convention objects. It is evident from Article 1 of the Hague Convention, that, unlike the Roerich Pact, it does not protect:

• scientific institutions (except for scientific collections);
• educational institutions;
• the personnel of the museums and of the scientific, artistic, educational and cultural institutions, i.e. persons engaged in creative work.

   Thus, we can see that the Roerich Pact provides for a much broader scope of protected objects than the 1954 Hague Convention. The Pact is based on an integral approach to the definition of the objects of culture in accordance with the concept of Culture of the initiator of the Pact–Nicholas Roerich. E. Alexandrov justly notes that «[t]he existing provisions of international law protect only part of the cultural objects, the future provisions will cover all, or nearly all.» [35] In this respect the Roerich Pact is a leading international treaty which undoubtedly paves the way to an all-embracing protection of all the elements of culture.

Distinctive sign for the protection of cultural property

   The Roerich Pact introduced for the first time the principle that there should be generally known and obligatory sign for the protection of cultural property, and that principle was accepted by the 1954 Hague Convention.
The adopted by the Roerich Pact sign of the Banner of Peace was not taken over by the draft Convention and, therefore, the issue of its adoption was not raised altogether at the Diplomatic Conference in the Hague in 1954. The Conference approved of another distinctive sign of the Convention, which has the form of a shield, pointed below, persaltire blue and white (Article 16). The Hague Convention stipulates the following in its Article 36, Paragraph 2: «In the relations between Powers which are bound by the Washington Pact of 15 April, 1935 for the Protection of Artistic and Scientific Institutions and of Historic Monuments (Roerich Pact) and which are Parties to the present Convention, the latter Convention shall be supplementary to the Roerich Pact and shall substitute for the distinguishing flag described in Article III of the Pact the emblem defined in Article 16 of the present Convention, in cases in which the present Convention and the Regulations for its execution provide for the use of this distinctive emblem.»
    It follows from the quoted above provision of the Convention that in the cases in which the Roerich Pact provides for higher level of protection of cultural property in comparison to the Convention there has to be applied the Pact.
It follows also from the same provision of the Convention that the emblem of the Blue Shield is to be used in the cases in which the Convention and the Regulations for its execution provide so, however in relation to cultural property which is not protected by the Convention, but is within the scope of the protection of the Pact–for example the educational and scientific institutions–the Banner of Peace has to be used. Hence, for these countries which are bound both by the Convention and by the Roerich Pact [36] there have to be used in time of armed conflicts the Blue Shield and the Banner of Peace.
   The rules of the 1954 Hague Convention regulate the use of the distinctive emblem in time of armed conflicts, but not in time of peace. This approach of the Convention is explained in the UNESCO Director-General’s circular letter CL/717 of 5 February, 1953, which contains the UNESCO Secretariat’s Draft Convention and a commentary to it. The Draft Article 15 stipulated that the distinctive emblem of the Convention shall take the form of a solid light blue equilateral triangle on a white circle, and in the commentary to this Article it is said:
   «…One question of some difficulty is whether the distinctive emblem should be affixed in peace-time or only on the outbreak of hostilities. In the case of isolated refuges specially constructed for the purpose, there can be little doubt; the emblem should be affixed as soon as the Convention enters into force. The case is otherwise, however, with other refuges (certain historic castles or palaces, for example) or with important monuments situated in large urban centres; such marking, in peace-time, might raise difficulties on aesthetic and even psychological grounds, and this would be even more true in the case of a centre containing monuments. The draft [of the Convention], therefore, contains no provision on this point.» [37]
   The text of the 1954 Convention which was finally adopted provides for the distinctive sign of the Blue Shield. In spite of that, one should think that the concerns expressed in the cited above comment remained, since the 1954 Convention does not contain rules on the use of the emblem in time of peace. As of 2004 only 15 states have given information to UNESCO on the marking of cultural property with the distinctive emblem of the Convention, and some of them have expressed their opinion that they do not deem necessary the use of the emblem in peace time.
The Roerich Pact provides for the use of the Banner of Peace in time of armed conflicts as well as in time of peace.    This follows from Article 3 of the Pact which allows the use of the Banner of Peace for the purpose of the identification of the protected monuments and institutions, and also from Article 1, Paragraph 3, which provides that the protection of these objects is to be the same in time of war as well as in peace. [38]
   The distinctive sign of the Roerich Pact which was created by one of the greatest artists of the 20th century is remarkable for its special harmony and its symbol forms an intrinsic part of the cultural treasures context. The roots of this symbol are ancient and they are present in the cultures of all the peoples in the world. It is for this reason that the Banner of Peace of the Roerich Pact has always entered naturally in the life of the historic monuments and cultural institutions. It is sufficient here to recall the consecration of the Banner of Peace in the Basilica of the Holy Blood in Bruges and its hoisting above the Ministry of Education of Japan on the very day of the opening of the Third Conference on the Roerich Pact in Washington in 1933. From the very beginning of his work aimed at cultural property protection Nicholas Roerich was of the opinion that the greatest importance of the Pact was in its educational effect. Therefore a sign-symbol was created, which has a pictorial influence and which is capable to direct our thoughts towards Beauty, towards the value of knowledge, towards spirituality. The Initiator of the Pact entrusted the Banner of Peace with the most difficult task of ennobling and uplifting the consciousness of people. Such a task, without doubt, is fulfilling the sign of the Red Cross [39] and it is for this reason that Nicholas Roerich oftentimes called the Banner of Peace the sign of the Red Cross of Culture. The Banner of Peace, just as the Red Cross, in accordance with the concept of Nicholas Roerich had to become our constant companion in life. It is for this reason that the Roerich Pact envisages the use of its distinctive emblem both in time of peace and in wartime over historic monuments, museums, scientific, artistic, educational and cultural institutions. Nicholas Roerich wrote about this as follows: «The Banner cannot be hanging only in time of military actions, but the masses and thereby the future warrior “should already in time of peace be accustomed to the perception of this sign”. Truly, could the Red Cross be of significance if it was all of a sudden unfurled just in time of battle?» [40]
   The protection of Culture is–as Nicholas Roerich insisted–not only the responsibility of states, but also of people. Therefore the role of the Banner of Peace is extremely important, since by way of directing our thoughts towards Beauty and Knowledge it also attracts the consciousness of the general public to the cause of the protection of Culture. It is precisely these ideas of the founder of the international movement for the protection of the objects of Culture which were left outside the issues for consideration at the Diplomatic Conference in the Hague in 1954. However, the ideas of Nicholas Roerich gradually gain foothold throughout the world and in the adopted in 1999 Second Protocol to the Hague Convention it is said (Article 30): «The Parties shall endeavour by appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect for cultural property by their entire population.»
   The Banner of Peace, taken to Space by international crews of cosmonauts at the end of the 20th century, shows the strength of the ideas of Roerich about Culture as the highest achievement of humanity which can free the Planet of all wars and establish peace throughout the world. Today the Banner of Peace as the symbol of this greatest idea as well as of the necessity for the protection of Culture is used in peace-time in Russia and in other countries of Eastern Europe and Asia, which are not Parties to the Roerich Pact.

To carry the Banner of Culture

   The Roerich Pact from its inception had many supporters, among them there were prominent military men. The Pact, however, had many opponents as well; its adoption required the overcoming of numerous obstacles. Some of the objections against the Pact took the form of legal arguments. In this respect of particular importance is the address by Michel de Taube to the Third Washington Conference on the Roerich Pact in 1933. In this address he responded to objections against the adoption of the Pact, which were made on the grounds that the provisions of the two 1907 Hague Conventions (IV and IX) already recommended to the attacker in bombardments to spare «as far as possible» buildings dedicated to religion, art, science, or charitable purposes and also historic monuments marked with certain distinctive signs. Taube in particular stressed that these articles of the 1907 Hague Conventions are not clear, they do not provide for a generally known and obligatory distinctive sign and they do not envisage the drawing up in advance of the urgently needed list of protected objects. He pointed out–in the first section of this article his words were already quoted–that the two 1907 Conventions demonstrated during the world war their inefficiency [41]. Indeed, the obligation to protect cultural property «as far as possible» qualified further by the military necessity exception brought about the sad results which are well known.
   Today we can say with confidence: in spite of the regional character of the Roerich Pact, it is the fundamental international treaty in the field of cultural property protection. The Pact introduced for the first time and established in international law the following principles and rules:

• cultural property, irrespective of its ownership and State allegiance, belongs to all mankind as its cultural heritage;
• cultural property enjoys unconditional protection and respect in time of armed conflict;
• cultural property loses the protection it is entitled to only in cases when it is used for military purposes;
• cultural property must be protected in time of peace;
• cultural property has to be registered and included in list with a view of its protection both in time of peace and in wartime;
• generally known and obligatory sign for the protection of cultural property in time of peace and in time of armed conflict is to be established;
• application of the national regime of protection to the foreign cultural property.

   It should be added that the provisions in this treaty relating to the protection of cultural property «in any time of danger» (the Preamble of the Roerich Pact), in wartime and in time of peace (Article 1, Paragraph 3) are extremely important, it is owing to them that the Roerich Pact is applicable both to international armed conflicts and to conflicts of non-international character. At the Third Washington Conference on the Roerich Pact official representatives of states as well as lawyers pointed out to this purpose of the Roerich Pact [42].
   In the Preamble of the draft of the Roerich Pact it is said about «the ideas sponsored by a wise and generous foresight» which brought about the signing of the 1864 Geneva Convention of the Red Cross. Owing to this Convention so many human lives were saved during the First World War. And of the Roerich Pact itself, which was signed in 1935, one could say that it was inspired by wise foresight. If all the countries in the world, and in particular the European countries, have adhered to it, many irreplaceable treasures of culture would have been saved during the Second World War.
    The Roerich Pact is a tremendous achievement of mankind, it should be the true pride of the countries which have adopted it and in particular of the country which has turned out to be the leader in the cause for its advancement and adoption–the United States of America. Due to a number of circumstances, the US has discontinued its patronage of the ideas of the Roerich Pact and did not take further upon itself the leading role in the field of the protection of Culture. After the Second World War there was lost the possibility to retain the high level of protection of cultural property which was achieved by the Roerich Pact.
   The 1954 Hague Convention at present is the universal international treaty for the protection of cultural property in the event of armed conflict, ratified by many countries in the world. [43] The Convention has taken over many of the most important principles and rules of the Roerich Pact, however it differs from it in a fundamentally important point: it subordinates the protection of cultural property to military necessity. The 1977 Additional Protocol I to the Geneva Conventions has made a very important contribution to the protection of cultural property. The adopted in 1999 Second Protocol to the 1954 Hague Convention, which came into force in 2004, is a significant achievement of contemporary international law.
    In 1972, in Paris there was adopted the Convention concerning the Protection of the World Cultural and Natural Heritage. Although the Convention does not refer to the Roerich Pact, there is no doubt that it consolidates and develops the established by the Roerich Pact principle of protection of cultural property in time of peace.
   In the speeches of the participants in the Third Conference on the Roerich Pact in Washington Nicholas Roerich was justly compared to Henry Dunant, the founder of the International Red Cross Movement and the initiator of the 1864 Geneva Convention. Nicholas Roerich became the founder in the beginning of the 20th century of the International movement for the protection of the objects of Culture and the initiator of the first international treaty devoted to their protection in wartime as well as in time of peace.
   Cultural property is threatened, as we all know, not just by armed conflicts, but also by shortsighted government policy in time of peace–for example by momentary considerations of imperative financial necessity to cut down on the funding for the maintenance and development of cultural objects. Here we come up to the vital importance of the Roerich Pact not only for the future development of the international legal system for the protection of cultural property, but for the world as a whole. At present, there exists the system established by the 1944 Bretton Woods Agreement which is effected by the International Monetary Fund (IMF) and the World Bank. In the Western academic literature the activity of these financial institutions is subjected to a considerable criticism. There is a good reason for that. If we put aside the words and look at the results of their activity, it is impossible not to see that the policy of the IMF, for example, secures the paying back of the debts by the poor countries, as well as the liberalization of their markets, but it is also the main cause for the considerable curtailment in these countries of the funding for science, culture, education and healthcare. The system is so designed that it reproduces itself: the poor countries become permanent debtors and lose many opportunities for their development. Some of the poorest countries, languishing under the burden of the debts, have them remitted from time to time, but this can hardly be considered as the solution of the problem. And the problem first and foremost relates to the question: where the financial resources are being channeled on a global scale and for what needs of humanity. What could be the alternative to the existing practice of suppression of culture, education, science and healthcare which is being carried out in too many countries with modest means?
   Let us recall the words of Nicholas Roerich, that most important for us should be the spirit and creativity, then comes health, and only in the third place–wealth. [44] The Roerich Pact bears in itself the potential for integrating these ideas of Nicholas Roerich in international relations. We should note that in the Pact, which establishes the obligation to respect and protect cultural objects in peace-time, there is no reservation of imperative financial necessity which could waive this obligation and respectively allow the systemic cutting down on the funding of objects of culture.
    The idea of Nicholas Roerich for establishing a Banner of Peace Fund has to a certain extent been brought into being–the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage has set up a Fund, which has as its objective the provision of support to states and the supplementing of their efforts aimed at the preservation of cultural treasures of world significance. The 1999 Second Protocol to the Hague Convention also provides for the setting up of a Fund, which has to contribute to the protection of cultural property during armed conflict. But if we recall that the Roerich Pact provides for an all-embracing protection of the objects of culture as well as of the personnel of the artistic, scientific and educational institutions, if we recall the words of Nicholas Roerich that the Banner of Peace Fund shall provide financial support to those who are carrying the message of Beauty, the message of knowledge in the broad sections of the public, then it shall become clear that an International Fund working under the aegis of the Banner of Peace and aiming at the development of the cultures of the peoples of the world and at all-embracing education has not yet been established and its establishment, when this happens, shall become the true possibility for the development of many countries–of all the human family on our Planet.
   «But a world-wide fund, in which everyone shall contribute one’s voluntary mite», writes Nicholas Roerich, «shall be the sign that humanity has already become mature enough to carry the Banner of Culture.» [45] This, of course, is a task which is enormous in its scale and extremely difficult. Its fulfillment requires not only the united efforts of the international community, of states and peoples, but, as in the case with the International Red Cross and Red Crescent Movement, it requires a leader. Let us recall once again the words of Nicholas Roerich that due to the Red Cross Switzerland has extraordinarily risen in the esteem of the whole world. [46] Having taken under its patronage the ideas of the great Swiss Henry Dunant, this country has become «the guardian of the Red Cross Precepts». [47] Will Russia, the Native Land of Roerich, be capable of taking under its patronage the ideas of its great son embodied in the Banner of Peace and the Culture Pact?
    It is certain that the future will belong to the countries which take upon themselves to implement these ideas for the good of the whole world. For Culture is the future. The future world will be the world of Culture, without wars and destruction. This will be the world of all-penetrating love and compassion for the human and for every living being. This will be the world in which the leading and most important role in life is accorded to spirituality, beauty and knowledge.