Digital Commons Network^™

Standing And Collective Cultural Rights, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The procedural question of standing has deep implications for the definition and enforcement of cultural rights. Cultural rights have individual and collective elements that can lead to several entities seeking access to justice when these rights are violated. This chapter focuses on the question of standing to explore the contours of existing cultural human rights and possible reparations flowing from their violation. It considers claims by (1) an individual member of the group who has been wronged because of their membership of the group; (2) a collective action brought by the group; and (3) a representative action on behalf of …

Indigenous Peoples, Intangible Cultural Heritage And Participation In The United Nations, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter concentrates on the participation of indigenous peoples in multilateral initiatives to protect cultural heritage, with specific reference to intangible heritage. While an international instrument for the protection of intangible heritage was adopted over a decade ago, the importance of intangible heritage for indigenous peoples is evident in their work in various UN fora. I examine indigenous peoples’ interventions before UNESCO and bodies established to implement the Convention on the Safeguarding of Intangible Cultural Heritage; within WIPO in respect of ongoing moves to adopt specialist instruments on traditional knowledge and cultural expressions; and finally, within UNEP and the implementation …

The Criminalisation Of The Illicit Trade In Cultural Property, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter considers the criminalisation of illicit traffic of cultural objects in international law and its impact for domestic law. The regulation of the trade in cultural objects has long been resisted in so-called market States, which host major auction houses and art and antiquities dealers. The lobbying was particularly directed against the enforcement of foreign public laws covering export controls in domestic courts. However, the Security Council’s adoption of resolutions that condemned the pillage of Iraqi and Syrian cultural sites has transformed this debate. These resolutions enunciate an obligation to prosecute in domestic courts which is covers all UN …

The Criminalisation Of The Intentional Destruction Of Cultural Heritage, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter examines how modern international law is protecting world heritage (‘the cultural heritage of all humanity’) by criminalising the intentional destruction of cultural heritage. In the digital age of the twenty-first century has witnessed a proliferation of deliberate acts of destruction, damaging and pillaging of World Heritage sites and their broadcasting via social media and the Internet. This chapter examines the evolving rationales for the intentional destruction of cultural heritage since the early twentieth century and international law’s response to such acts. First, there is an analysis of its initial criminalisation with the codification of the laws and customs …

Cultural Heritage, Human Rights And The Privatisation Of War, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter focuses on the legal issues raised by the impact of the privatisation of war on cultural rights and cultural heritage during military engagements. It is divided into four parts. First, there is an examination of the current debate amongst heritage practitioners, particularly archaeologists and anthropologists, about their professional engagement with PMSCs in recent conflicts and belligerent occupation. Second, there is an overview of existing international humanitarian law and human rights provisions covering cultural rights and cultural heritage during armed conflict and occupation. Third, the response of professional bodies and associations of heritage practitioners through their codes of ethics …

Women, Pmscs And International Law, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

It is deeply ironic that as the implementation and enforcement of international humanitarian law and human rights law has been strengthened, in the last decades, through the establishment of individual complaint procedures, specialist tribunal and courts covering breaches of human rights law, international humanitarian law and international criminal law, there has been an erosion of these principles and protections through the privatisation of governmental and intergovernmental functions. Despite an exponential increase in the contracting out of these activities to PMSCs since 2001, the legal regulation of these companies and their personnel has been slow and fragmented.

The failure of the …

International Exchange And Trade In Cultural Objects, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The legal protection of movable cultural heritage at the international level has been defined by a perennial tug-of-war between forces promoting international exchange and those seeking regulation of the transfer of the cultural objects. Shifts over the last century in how the balance between these twin aims is achieved reflect changes in the composition of Member States of intergovernmental organizations and their corresponding changing priorities. In the early twentieth century, the balance fostered under the League of Nations favored a cosmopolitan view promoting the circulation and interchange of cultural material to further knowledge and mutual understanding between peoples. The balance …

Challenges For International Cultural Heritage Law, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The period from the shelling of Dubrovnik, Sarajevo and Mostar in the 1990s to the bombardment of Homs and Aleppo in the 2010s, witnessed the significant expansion of interventionist activities by the international community and then their gradual contraction in this new century. The factors that fostered the cosmopolitan drive during this brief period had a positive impact on the protection of cultural heritage during armed conflict and peacetime. It also puts into stark relief the perpetual challenges facing the legal protection of cultural heritage at the international level, which forms the core of this chapter. In this first part, …

Human Rights And Culture Heritage In International Law, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Regional and international conflicts defined as a so-called ‘clash of civilisations’, civil conflicts from Central and South America, to former Yugoslavia, from the north Africa and the Middle East to Southeast Asia, and discrimination against and persecution of vulnerable individuals within ethnic or religious communities, appear to indicate tensions between human rights and culture at all levels of society, from the global to the local, from the collective to the individual. Despite the growing cognisance of these cleavages, the international community rather than suppressing cultural, ethnic or religious differences, has actively promoted the importance of cultural diversity and religious tolerance …

Controls On The Export Of Cultural Objects And Human Rights, Ana Filipa Vrdoljak, Kevin Chamberlain Kmg

Ana Filipa Vrdoljak

Specialist instruments for the protection of cultural heritage have made oblique and overt reference to respecting established human rights norms since the adoption of the Universal Declaration of Human Rights. Explicit references to human rights and fundamental freedoms have become pronounced in instruments finalised in the last two decades.

This chapter considers the relevance of human rights for the control on export of cultural objects. It is divided in two parts. The first part details how human rights norms have been referenced in multilateral instruments for the protection of cultural heritage. The second part examines the relationship between controls on …

Liberty, Equality, Diversity: States, Cultures And International Law, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter explores how culture is addressed by contemporary international law, with particular reference to human rights law norms. The first part covering freedom focuses on the rise of the modern state and its conscious reimagining of ties with its citizens through the promotion of tolerance and a secular, national identity. The shift is explored through the prisms of the freedom of religion, the right to participate in (national) cultural life, and the limitations on freedom of expression including prohibition of hate speech and domestic blasphemy laws. The second part on equality centres on the relationship between the state, the …

Human Rights And Illicit Trade In Cultural Objects, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Movable cultural heritage is not bounded nor shielded by national territorial borders. Applicable domestic laws are of limited import without the cooperation of other states and the international community. Despite a century of domestic legal protection of movable cultural heritage in many states, widespread non-compliance and lack of enforcement has been the norm rather than the exception. However, the tide is turning. States formerly reluctant to ratify cultural heritage treaties have done so, signalling their acceptance of the importance of multilateral action in this field. Enforcement of such laws is viewed as part of the reinforcement of good governance, rule …

Gross Violations Of Human Rights And Restitution: Learning From Holocaust Claims, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

In its 2012 Jurisdictional Immunities of the State decision, the International Court of Justice (ICJ) found that State practice over the preceding century had negated a finding that a rule existed in customary international law which required ‘the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole…’. Yet, examples of peace agreements and post-war settlements covering reparations for gross violations of human rights exist, with the Allied governments’ response to crimes arising from the Shoah and during the Second World War being a leading instance.

This …

Enforcing Restitution Of Cultural Heritage Through Peace Agreements, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Peace agreements have been an important source of international law in modern times. They have been especially important in the earliest formulations of the international and regional protection of cultural heritage. The significance of this source of international law making and its enforcement has become more pronounced with the exponential proliferation of peace processes and resultant agreements since the end of the Cold War. It is argued that how cultural heritage (and cultural rights) is historically dealt with in peace agreements falls broadly into three discernible categories: (1) restitution and restoration of cultural heritage as reparations between existing states, post …

Restitution Of Cultural Properties Trafficked During Colonization: A Human Rights Perspective, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

On the occasion of the successfully negotiated return of the Uigwe (the Royal Protocols of the Joseon Dynasty), the Oe-kyujanggak Books and other cultural patrimony to Korea from France and to augment UNESCO and the Korean National Commission’s initiative to foster a network for the return of cultural property, this paper shall cover three broad themes. First, there is a brief description of how international law and the international community has conceptualised claims for restitution of cultural objects removed during colonization prior to the late twentieth century. Second, there is an examination of the redefinition of these restitution re quests …

Genocide And Restitution: Ensuring Each Group's Contribution To Humanity, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The protection of minorities in modern international law is intimately connected with and fueled the recognition of the crimes of persecution and genocide. Minority protection represented the proactive component of the international efforts to ensure the contribution of certain groups to the cultural heritage of humankind. Prohibition and prosecution of persecution and genocide represented the reactive element of these same efforts. The restitution of cultural property to persecuted groups by the international community was recognition that their ownership and control of these physical manifestations was necessary for the realization of this purpose.

In this paper, I consider the emergence, contraction …

Women And Private Military And Security Companies, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Lack of clarity about the application of international law norms and inadequacies of existing regulatory regimes covering private military and security companies have reinforced concerns about transparency and accountability in respect of gender-related violence, harassment and discrimination. This chapter focuses on the main issues and legal concerns raised by the impact of the privatisation of war on women, both as PMSC employees and civilians. Part I highlights how armed conflict, civil unrest, occupation and transition have a detrimental effect upon the lives of women with particular reference to safety, displacement, health and economic disadvantage. Part II provides a summary of …

Cultural Rights: The Possible Impact Of Private Military And Security Companies, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Culture and its protection has been present in the earliest codifications of the laws of war and international humanitarian law, both in its physical manifestations as cultural heritage and its practice and enjoyment as cultural rights. However, the engagement of PMSCs in recent conflicts has again raised the vexed issue of the role of ‘culture’ and heritage professionals in armed conflicts and belligerent occupation. This debate has in turn exposed the limitations of existing IHL and human rights instruments.

To complement the PRIV-WAR project’s current and projected work, this report is divided into four parts. First, there is an examination …

Women's Rights: The Possible Impact Of Private Military And Security Companies, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Armed conflict and occupation are by definition necessarily violent for all participants, be they civilians or combatants. However, for women it heralds an exacerbation in existing violence, discrimination and inequalities. While international humanitarian law (IHL) has dedicated or ‘special’ provisions for women, feminist legal scholars have done much to exposed the gendered nature of this branch of international law. In recent decades, the United Nations’ campaign of mainstreaming of women’s issues has impacted significantly on relevant human rights law (HR Law), and the International Committee of the Red Cross (ICRC) has actively sought to investigated and address women’s concerns. However, …

History And Evolution Of International Cultural Heritage Law: Through The Question Of The Removal And Return Of Cultural Objects, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The role of law in the removal and return of cultural objects has long been fraught and contested. This paper examines the history and development of the legal protection of cultural heritage at the international level with particular reference to the return of cultural objects.

With a view to facilitating the Intergovernmental Committee's future work, the paper is divided into four parts. First, there is an examination of the historical development of international cultural heritage law in respect of restitution over the last two centuries. Second, the establishment and work of the Intergovernmental Committee is considered in this historical legal …

Human Rights And Genocide: The Work Of Lauterpacht And Lemkin In Modern International Law, Part I, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 40s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims.

The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, …

Cultural Heritage In Human Rights And Humanitarian Law, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The public outcry in response to the looting of the Baghdad Museum following the 2003 invasion of Iraq and the bombardment of the historic city of Dubrovnik in 1991 are contemporary examples of international condemnation of attacks upon cultural heritage during armed conflict and belligerent occupation. This international concern has manifested itself since the earliest codification of the laws of war which provided cultural heritage with a protection regime distinct from other civilian property, and state categorically that violations shall be subject to legal sanctions. These general international humanitarian law instruments are augmented by a specialist multilateral framework which governs …

Unravelling The Cradle Of Civilization “Layer By Layer”: Iraq, Its Peoples And Cultural Heritage, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The modern state of Iraq came into being with its demarcation by outside Powers following the First World War. This moment threw into stark relief two characteristics which have prevailed to the present day. On the one hand, a centrifugal force, the diversity of its constituent peoples, that is, the multifarious ethnic, religious and linguistic minorities which live within its territorial boundaries. On the other, its rich cultural heritage has been deployed consistently to imbue its populace with a unified, national sentiment - a centripetal force. The promotion and protection of both the diversity of minority cultures and religions (and …

Article 13 World Heritage Committee And International Assistance, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The core framework created by the 1972 World Heritage Convention ('WHC') which has rendered it innovative and successful is made up of three elements: international assistance, the World Heritage Fund ('Fund') and the World Heritage Committee ('Committee'). While the World Heritage List raises the profile of the properties in the public eye; it is the possibility of financial and technical assistance which has proved an additional incentive for states to sign-up to the Convention. The creation, maintenance and evolution of this international assistance under the Convention has only been possible through the combined effect of the Committee and the Fund. …

Self-Determination And Cultural Rights, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Self-determination has broadly two components: one relates to participation and the other concerns identity. Until recently, contemporary discourse on self-determination has largely centred on the former. Yet, from its earliest conceptions, self-determination has been inextricably tied to notions of identity of peoples - and cultural rights. This paper examines the evolving link between self-determination and cultural rights in modern international law. By detailing this often tandem, sometimes overlapping, development, it is argued that the reformulation and reinforcement of self-determination in recent decades has had an accompanying impact upon cultural rights.

Access To Justice For Minority Groups, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

From the 1648 Treaty of Westphalia to the present-day efforts to resolve the fate of Kosovo, the community of states have continually been preoccupied with minorities. The demarcation of state territorial boundaries often means that there are groups distinguishable from the governing elites or majority. This situation may result in discrimination or persecution of minorities and their members; or conversely, agitation by the minority or its representatives for special treatment or secession.

The threat that this potentially volatile situation poses for regional and international peace and security explains the international community's recurring efforts in the field. It is not surprising …

Remembering And Reconciliation: An International Law Perspective, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Most states are going through or have gone through periods of ‘transition’ which have involved a collective confrontation with past painful events. However, since the 1990s, there has been a proliferation of legal and non-legal mechanisms created to promote reconciliation and accountability in post-authoritarian or post-conflict societies. These mechanisms have been heavily influenced by (and have influenced) international law norms in the field of human rights, humanitarian law and international criminal law. Failure to address promptly and effectively the lingering legacy of gross violations of human rights law or serious violations of international humanitarian law impact on victims directly and …

Reparations For Cultural Loss, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Destruction, damage and dispossession of culture and heritage loom large in actions pursued by indigenous peoples at the international, regional and domestic levels. This chapter considers how the claims and remedies for cultural losses sustained by indigenous peoples, collectively and individually, push the existing boundaries of international law. First, it outlines how culture and its manifestations is conceptualized by indigenous peoples. Second, how claims for cultural loss are framed by expanding upon existing international human rights law and international humanitarian law is explained. Finally, it examines the application of recent developments at the international and regional levels to accommodate broader …

Intentional Destruction Of Cultural Heritage And International Law, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This note considers the impact of the ICTY jurisprudence and the 2003 UNESCO Declaration upon two discernible trends in the international law concerning cultural heritage. First, the dissolving of the divide between the protection afforded during period of armed conflict and peacetime. Second, the recognition of the importance of cultural heritage to subjects beyond the State in which it may be located: namely, humanity generally (including future generations), and non-state groups. These trends are complementary and reflect the increasing significance of the protection and promotion of cultural diversity in international law. Yet, they are also being met with significant trepidation …

Minorities, Cultural Rights And The Protection Of Intangible Heritage, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

The protection of intangible cultural heritage has often been regarded as the long neglected area of international cultural heritage law. Indeed, while international conventions for the protection of movable and immovable, tangible heritage have been operational for several decade, a specialist multilateral instrument covering intangible heritage was only finalised in 2003. Yet, the safeguarding of intangible heritage has preoccupied international law for well over a century. I argue that the question of intangible cultural heritage in international law has influenced, and is influenced by, the protection of minorities and the articulation of cultural rights. Treaties covering these various areas contain …