By Dr. Derek Fincham*

Looters at Iraqi site of Isin, May 2003.
Photo: U.S. Dept. of Defense

















On Friday, May 19, the Committee of Ministers of the Council of Europe will meet to open a new treaty for signatures on a new Convention on Offences relating to Cultural Property. Given that the Council of Europe now has 47 member states, including both Russia and Turkey, the impact of this new Convention could be immense. This is particularly true given that the member states of the Council of Europe include art-acquiring states, transit states, and states with ancient monuments.  The Convention may even allow any non-Council state to sign on to the Convention. The work of this draft Convention could catapult the member states of the Council of Europe to the head of the pack in embracing the complementary international conventions aimed at stemming the illicit trade in cultural property.

The final text of the draft Convention has, at the time of writing, not been made public. I was able to have a look at a nearly-finished version of the text at a meeting of international legal experts at a Conference at IMT in Lucca earlier in 2017. One of the most outstanding aspects of the draft Convention is its focus on regulating all levels of the trade in cultural objects, including looters, traffickers, and end-of-the-chain art sellers and buyers. This encompassing approach will lead – I suspect – to better effective policing of the illicit trade in cultural objects and will serve to protect and aid the good actors in the art trade who are abiding by the law but have been suffering due to the unfair competition provided by illicit traffickers.

This Convention, which has been referred to as both the Nicosia agreement, and the Blood Antiquities Convention joins a growing array of international instruments that deal with cultural heritage. Those include the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which directed its provisions at safeguarding art and heritage during armed conflict. The subsequent 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Illicit Cultural Property served to orient public international law to the problem of illicit cultural property and raised the profile of the problem of the illicit trade in works of art and the destruction and looting of cultural heritage. The 1995 UNIDROIT Convention worked to craft a model set of rules for private law amongst buyers and sellers of works of art and antiquities which may be illicit.
The Council of Europe’s new Convention emerges in this context to carry forward the lessons of those Conventions, to offer solutions to the problem of the illicit trade in antiquities—a problem which is diffuse, varied, and requires a cohesive regulatory response.

Controlling the Exportation of Cultural Objects
One particularly useful aspect of the Draft Convention is the prohibition on Export, distinguishing it from a similar, problematic aspect of the European Council Regulation. One of the flaws with the European Council Regulation on the export of cultural goods is its different treatment of regulation of the trade in cultural objects from Member States and other non-member states or third countries. Article 2(2) requires Member States to check whether goods that have come from another Member State were moved from one Member State to another in a way that is “lawful and definitive.” Due to some technical differences in language, the current Council Regulation prevents Member States from having the same checks for objects from Member States as from non-Member States which may be non-EU in origin because Article 2 does not include this “lawful and definitive” language from its scope. Article 5 of the Draft Convention effectively avoids any of this difficulty. I read the draft Convention then to mean that the Convention erects safeguards to protect against theft, illegal excavation, and illegal export of all cultural objects, irrespective of whether the object was illegally exported from a Member State or some other third country.

Measures at the domestic and international levels
Another noteworthy aspect of the draft Convention are Articles which erect concrete measures to establish inventories which are publicly accessible; introduce import and export procedures subject to specific certificates; to establish records of transactions; and to promote consultation and information across State boundaries. These measures – if properly implemented and funded – have an important and critical function which will do a great deal to make the efforts to stem the trade in illicit cultural property more effective. It is my hope that these procedures would allow the investigation into whether a work of art which has travelled through a number of individual States was properly given an export and import certificate in all of these individual states. And if not, a proper investigation and penalty regime could be erected which would serve to effectively disincentivize the illicit transfer of cultural objects across State borders. By erecting a system by which investigators can check the various exports of an object, it would be possible to both trace an object back ideally to its nation of origin, or failing that, to allow an investigator to use the export violations which have potentially occurred in transit states to secure a successful investigation, resulting either in the return of the object or in the prosecution of culpable individuals.

Conclusions
The merits of any multilateral Convention such as this will always be dependent on the political will and the resources devoted to its implementation. Given the challenges facing the world’s cultural heritage, both in terms of intentional destruction, and the looting of sites to finance illegal activity, the moment is now for a strong Criminal Convention. Its renewed emphasis on regulating exports takes account of the multinational character of the international trade in cultural heritage, its emphasis on information sharing and collaboration can effectively combat the opaque nature of certain aspects of the art trade, and will serve to work around any deficiencies present in the domestic law of other third party nations. The draft convention comes at a dangerous moment for so much of the world’s cultural heritage, and I am optimistic about its capacity to meet this challenge head-on.

*Dr. Fincham writes about the illicit trade in cultural property, he teaches writing, art law, and admiralty law at South Texas College of Law Houston. He regularly blogs at www.illicitculturalproperty.com

By Jack Mitchell*


The Temple of Bel, Palmyra, was destroyed in 2015 by the Islamic State.Photo: Wikimedia Commons/Bernard Gagnon

I
In 2012, at the UNESCO World Heritage site in Timbuktu, Mali, Ahmad Al Faqi Al Mahdi destroyed historic mausoleums, manuscripts, and even a mosque. Al Mahdi belonged to the Al-Qaeda-linked group, Ansar Dine. His subsequent conviction by the International Criminal Court (ICC) last year was covered in the mainstream press and art world publications as a “landmark” case, the first time the destruction of “cultural heritage” was prosecuted as a war crime in the ICC. In prosecuting and convicting Al Mahdi, however, the ICC did not create a new war crime for destroying “cultural heritage.” Rather, it invoked part of Article 8 of the Rome Statute that it had never used before. Under Article 8(2)(e)(iv) of the Rome Statute, intentionally “directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick are wounded and collected, provided they are not military objectives” is a war crime.

The Al Mahdi case was so lurid because it fit a grisly pattern of World Heritage and other significant cultural sites targeted by Islamist extremists, including the Islamic State of Iraq and the Levant (ISIL). ISIL has destroyed numerous historic sites in Syria and Iraq, including ancient Assyrian sites. When it obliterated the Temple of Bel and other ancient features in Palmyra in 2015, for example, the loss was as devastating as the 2001 Taliban bombing in Afghanistan of the Buddhas of Bamiyan.  So far, though, Al Mahdi’s conviction remains a significant but isolated precedent.  The destruction of the Bamiyan Buddhas was never subject to prosecution in the ICC because the Rome Statute had not yet entered into force.  The perpetrators of cultural heritage destruction in Syria also might elude prosecution in the ICC because Syria, like the United States, is not a party to the ICC, meaning that an ICC investigation and prosecution would require an unlikely referral from the UN Security Council.

But it’s not just terrorist groups. States and non-state actors have participated in recent cultural heritage destruction. According to Matthew Barber, former director of Yazda, ISIL’s campaign to exterminate the Yazidis went forward because KDP forces decided not to defend them. Similarly, the US has been mute as its ally Saudi Arabia bombs the UNESCO-listed Old City of Sana’a in Yemen.

II
First, principles about the law of cultural heritage are surprisingly unsettled. What is the difference between “cultural heritage” and the older term, “cultural property?” If cultural heritage is the more encompassing concept, what should its boundaries be? Second, how do we assess the gravity of cultural heritage destruction?
International criminal law would do well to focus on cultural property destruction as a war crime—as opposed to language and oral history, for example—because deeper efforts at “cultural cleansing” would possibly fit better under the umbrella of crimes against humanity.

Two key factors concerning when cultural property destruction should be prosecuted are military necessity and gravity of the crime. Military necessity, although the doctrine is controversial, is a kind of “affirmative defense” to cultural property destruction because an opponent’s use of cultural property or its status as a military objective can be used as justification for its destruction. This doctrine has sparked promising efforts to improve militaries’ awareness about where cultural property is located such as ICOM’s Red List and archeological inventories used to create “no-strike lists.”


The gravity of the crime question depends upon our purpose. Should cultural heritage law protect people or things? A “people” approach emphasizes what cultural property means to distinct groups of people. A “things” approach emphasizes its supposed intrinsic worth. Both approaches are flawed. The first might have to credit nationalistic myths. The second might entail using market value or the fallible judgment of UNESCO as a proxy for actual value. My trite but sincere belief is that international criminal law can adopt a flexible standard that recognizes that gravity is established for targeted, damaged, or destroyed cultural property both when it is especially meaningful to specific cultures and when it has internationally recognized importance.

*Jack Mitchell is a student at Georgetown University Law Center in the class of 2019. This blog post is the winner of the International Cultural Heritage Law Blog Post Competition that was co-sponsored by the American Society of International Law, the Georgetown Journal of International Law, the Lawyers’ Committee for Cultural Heritage Preservation, and the Georgetown Art Law Association.
By Aure Demoulin













Spurred by a sense of urgency and increasing global recognition that environmental deterioration is a pressing issue, several key developments took place in international environmental law in 2016. In addition to the Paris Agreement, 2016 was the year of the first-ever global agreement cutting pollution from commercial airlines, the Marrakech Summit, and environmental lawsuits on behalf of future generations.

First Meeting of the Prep Com: The UN General Assembly established a Preparatory Committee (Prep Com) to receive recommendations for an internationally binding legal agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. The Prep Com held its first meeting from March 28 to April 8, 2016 and discussed the relationship between the proposed instrument and other existing agreements, as well as marine genetic resources, benefit-sharing, environmental impact assessments, capacity building, and marine technology transfer. The sustainable but efficient use of ocean resources is a hot topic in environmental law, and the Prep Com’s first meeting only preceded the third edition of the Hamburg International Environmental Law Conference by a few days. The Conference debated ways to conserve the oceans’ ecosystems, as well as the role International Environmental Law should play in regulating activities such as deep sea mining, marine energy generation, seabed pipeline and cable systems.

Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA): The Carbon Offsetting and Reduction Scheme for International Aviation is the first-ever global agreement to cut greenhouse gas emissions from commercial airlines. Announced on October 6, 2016, this sweeping deal aims to curb carbon dioxide emissions from the international aviation sector, as well as aviation pollution’s effect on climate. The deal will be implemented in phases (participation in the early years being entirely voluntary) and aims to put the industry on a path toward more sustainability. 191 nations have expressed intent to voluntarily participate.

Kigali Amendment to the Montreal Protocol: On October 15, 2016, 197 countries endorsed the Kigali Amendment to the Montreal Protocol. The amendment aims to curb the production and consumption of hydrofluorocarbons (HFCs), powerful greenhouse gases, by more than 80 percent over the next 30 years in the hope to prevent up to 0.5 degrees Celsius (0.9 F) of global warming by the end of this century. Manufacturers have used HFCs to replace chlorofluorocarbons (CFCs)—phased out under the Montreal Protocol—as refrigerants in a variety of products. The amendment calls for developed countries to start reducing their consumption of HFCs by 2019 and for most developing countries to freeze consumption by 2024 or 2028. The new amendment pledges to provide funding for climate-friendly alternatives in developing countries.  

The Paris Agreement: The Paris Agreement is an agreement within the UN framework Convention on Climate Change (UNFCC) meant to strengthen the global response to climate change. The agreement aims to curb greenhouse gases emissions in order to prevent a global temperature rise of more than 2 degrees Celsius (3.6 F). After 195 countries negotiated the agreement, final language was adopted on December 12, 2015, and the agreement was opened for signature on April 2, 2016. As of December 2016, 194 UNFCC members had signed the treaty, 132 of which had ratified it. In October 2016, enough countries had ratified the agreement for it to enter into force. As a result, the agreement went into effect on November 4, 2016.

The Marrakech Summit: The twenty-second session of the Conference of the Parties (COP 22), the twelfth session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP 12), and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA 1) were held in Bab Ighli, at the Marrakech Summit, Morocco from November 7-18, 2016. The Conference successfully demonstrated to the world that the implementation of the Paris Agreement is underway and that cooperation on climate change continues.

Global Lawsuits on Behalf of Young and Future Generations: In 2016, a global trend of lawsuits filed on behalf of future generations continued in the United States with a case filed in an Oregon District Court. The plaintiffs argued that by failing to protect public trust resources like water and air, the federal government is violating their constitutional rights to life, liberty, and property. Similarly, in June 2016, the Pakistan Supreme Court ruled in favor of seven-year-old petitioner Rabab Ali, allowing her constitutional climate change lawsuit to proceed. Yet another similar case is currently underway in the Philippines. In 2015, the Hague District Court in the Netherlands had ruled in favor of the Urgenda Foundation (representing multi-generations of citizens), compelling the government to reduce Dutch greenhouse gas emissions by 25% by 2020 (making current Dutch climate policies, which aim only for a 16% reduction, unlawful).

CETA: The EU-Canada Comprehensive Trade Agreement (CETA) is a new trade agreement between the EU and Canada. The European Parliament voted to adopt CETA on February 15, 2017, though EU national parliaments must approve the agreement before it can take full effect. However, throughout 2016, member of the European Parliament, such as Bart States, and public interest organizations had called for the rejection of CETA. States had warned that CETA risked undermining regulatory measures with regard to endocrine disruptors, which are estimated to cost Europe well over 150 billion Euros each year in additional health expenses. The European Commission has already acknowledged that mounting pressure from EU trade partners has led it to propose to lower standards of protection against endocrine disruptors. With CETA, Canada and Canadian businesses will be given increased leverage to pressure the EU not to introduce precautionary laws.