The Role of the Convention for the Protection of Cultural Property in the Event of Armed Conflicts and its Protocols in the Pacific

Logo for Enhanced Protection under the 2nd Protocol

I) Introduction

Often times, given that the Pacific Region is not heavily afflicted by armed conflict, questions arise as to the applicability of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict to the Pacific Region. The following text demonstrates how the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereinafter “the Convention”) and its two Protocols have an important role to play in the Pacific Region.        

II) The History and Purpose of the Convention

The Convention is an international law, developed in the wake of WWII. Given the massive, costly destruction of priceless cultural property, the international community agreed to enshrine the protection of cultural property, a broad definition that includes movable and immovable cultural heritage (e.g., museums, archives, libraries, monuments, heritage sites, and paintings), during times of peace and armed conflict in a legal document of international scope. 

III) The Convention’s Purpose in Times of Peace

This section addresses how the Convention applies in times of peace, not just times of armed conflict. This topic is extremely important, given that the Convention is often incorrectly viewed as   just a wartime convention, creating confusion for those who believe that a wartime convention has little role to play in a region where wars are not particularly common. The topic of how the Convention is not merely a wartime convention but one applicable to times of peace is addressed by: (1) exploring the language of the Convention and its Protocols, which clearly expresses the Convention’s applicability to times of peace, and (2) exploring the meaning of the phrase “in the event of armed conflict.”     

1) Exploring the Language of the Convention and its Protocols

Based on the language of the Convention and its Protocols, the Convention is designed to operate in times of peace, not only times of armed conflict. The following are excerpts from the actual text of the Convention and its Protocols, with emphasis added, demonstrating that the Convention is applicable in times of peace:

 The Preamble to the 1954 Hague Convention: “such protection cannot be effective unless both national and international measures have been taken to organize it in time of peace.”

 Article 3 of the 1954 Hague Convention: “The High Contracting Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate." 

 Article 7 of the 1954 Hague Convention: “The High Contracting Parties undertake to introduce in time of peace into their military regulations or instructions such provisions as may ensure observance of the present Convention.”

 Article 7 of the 1954 Hague Convention: “The High Contracting Parties undertake to plan or establish in peace-time, within their armed forces, services or specialist personnel whose purpose will be to secure respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it.”

 Article 8 of the 1954 Hague Convention: “such diversion shall be prepared in time of peace.”

 Article 25 of the 1954 Hague Convention: “The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the text of the present Convention and the Regulations for its execution as widely as possible in their respective countries.”

 Article 5 of the Second Protocol to the 1954 Hague Convention: “Preparatory measures taken in time of peace for the safeguarding of cultural property against the foreseeable effects of an armed conflict pursuant to Article 3 of the Convention shall include, as appropriate, the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property.”

2) Exploring the Meaning of the Phrase “in the Event of Armed Conflict.”

To further illustrate that the Convention is not just a wartime convention but one designed to operate in times of peace, the language of the Convention's title will be analyzed. The language of the Convention's title is: "in the Event of Armed Conflict." This phrasing is often misunderstood as during armed conflict. However, this is incorrect. The phrasing is more accurately expressed as the preparatory protection of cultural property in case an armed conflict should actually arise.

Moreover, the reality is that to protect cultural property successfully in times of armed conflict the cultural property must first be protected in times of peace. If nations were to wait until armed conflict to begin protecting their cultural property, they would likely find it was too late, which is reflected in the preamble language of the Convention. Ultimately, the preparatory protection of cultural property in times of peace ensures that nations are not left remedying their deficiencies during the challenging periods of armed conflict.          

Therefore, even without a high level of armed conflict in the Pacific Region at present, Pacific States still have a duty to protect their cultural property if an armed conflict should ever arise in the region. Thus, the Convention has a major role to play in the Pacific Region.     

III) The Convention’s Utility as National Heritage Legislation

The fact that the Convention is applicable in times of peace and that it provides a comprehensive legal framework for the protection of cultural property is of particular importance to the Pacific States, given that many of the Pacific States generally have underdeveloped legislation on the protection of cultural property, whether in times of peace or in times of armed conflict. The Convention can assist in remedying this deficiency because it is legislation which: (1) covers a broad variety of cultural heritage, including movable and immovable cultural property; (2) it functions during times of peace and in the very difficult situation of armed conflict; (3) the Convention and its Protocols contain a wide-ranging framework of offences and penalties for the destruction of cultural property, which means the Convention's language not only provides for the respect and safeguarding of cultural property but also for an updated penal code that reflects the gravity of the destruction of cultural property, something not often present in national cultural heritage legislation; and (4) the Convention has a model law, which provides an example of how the Convention can be implemented as national heritage legislation.    Therefore, given the lack of developed, centralized cultural property law, the Convention has a place to occupy in the Pacific because it assists in ameliorating this gap.           

IV) The Convention’s Applicability to Internal Armed Conflicts

Armed conflict covers a variety of different conflict situations, not just war. Armed conflict situations, under the second Protocol, include internal armed conflicts in a nation (“Article 22 on armed conflicts not of an international character: This Protocol shall apply in the event of an armed conflict not of an international character, occurring within the territory of one of the Parties.”). As such, this means the Convention has a broader application than just times of international war. Various Pacific States have in the past experienced internal armed conflicts with the lingering possibility of experiencing them in the future. This means that the Pacific States would be well served by ratifying and implementing the Convention in order to safeguard their cultural property in times of internal armed conflict.

V) The Conventions Place in the System of International Humanitarian Law

Though international wars are not so predominant in the Pacific region, international wars are widespread around the world. Given that the treaty is at its basic level an international agreement made up of High Contracting Parties (i.e., States), the success of this international agreement depends on the number of High Contracting Parties that agree to abide by this agreement and commit to enforcing it. Furthermore, the Convention occupies the critical realm of international law known as international humanitarian law (i.e., the laws of war). Just as there are laws on the protection of civilians during armed conflicts, the Convention is a law regarding the protection of cultural property in the event of and during armed conflict. Nations around the world have both an international moral responsibility and duty as participants in the global legal system to contribute to the legal regime of the Convention to increase its success and further its universal spirit. Thus, given its prominence in the world and the duty of Pacific States as participants in the international legal system, the Convention has a vital place to occupy in the Pacific.        

VI) The Convention’s Relevance to UN Peacekeeping Forces

Lastly, though international wars may not be so widespread in the Pacific Region, the reality is that many Pacific States commit a certain number of assistance troops to UN Peace Keeping Operations around the world. By entering into the Convention, an international agreement, these States are not only agreeing to protect their cultural property in their respective territory, but they also agree to act in compliance with international humanitarian laws. The Pacific States have a responsibility to ensure that their troops respect and safeguard cultural property in the event of armed conflicts, which can best be done in an official, legal manner by ratifying and implementing the Convention.     

 

Ronald Porcelli, Legal Assistant, UNESCO Office for the Pacific States

Back to top