The Obligation of the Coalition Provisional Authority to Protect Iraq's Cultural Heritage
United Nations Security Council Resolution 1483 obligates member states to take appropriate steps to facilitate the safe return of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from Iraqi institutions, and to prohibit illegal trafficking of any such items. [1] [2] The resolution also calls upon UNESCO and other international organizations to assist in the implementation of this mandate. This obligation extends to all member states, regardless of whether they are parties to the 1970 Convention that bans illegal trafficking of cultural property.
In executing the Security Council's mandate, the Coalition Provisional Authority (CPA)-- composed of the United States and the United Kingdom, the two member states that presently occupy Iraq--bears a special responsibility in retrieving stolen cultural objects, preserving and restoring archaeological, historical, and cultural sites that have suffered damage. The CPA might also be obligated to nominate key sites to the UNESCO's World Heritage List.
The CPA is already cooperating with UNESCO expert missions recently dispatched to Iraq to assess the damage that looting, sabotage and fire have caused to museums, historic buildings, archives and libraries, and to prepare the ways for restoring the principal Iraqi cultural institutions, including the National Museum and the National Library.
In addition, the CPA is likely to cooperate with the World Heritage Committee, a statutory body established under the 1972 Convention concerning the Protection of World Cultural and Natural Heritage (World Heritage Convention). [3] The World Heritage Committee is meeting during the week of June 30 to July 5 in Paris to consider the nominations of cultural and natural properties for 2003. [4] The Committee will be reviewing nominated Iraqi cultural properties for possible inclusion in the World Heritage List--a catalogue of cultural and natural properties protected worldwide to assure that future generations inherit the treasures of the past. There are already 730 properties inscribed on the World Heritage List, including the Taj Mahal, Saint Catherine Area, Tower of London, and Statute of Liberty.
The World Heritage Convention is designed to protect select cultural properties that embody universal value for all the peoples of the world, and not just for a particular social, religious or national community. A cultural property might be of great interest, importance or value, and yet it may not qualify for inclusion in the World Heritage List.
The criteria for the inclusion of cultural properties in the World Heritage List have evolved since the adoption of the World Heritage Convention, which generally prescribes that the properties be "of outstanding universal value from the point of view of history, art or science." [5] [6] Furthermore, a nominated property shall not be accepted for the List unless the State Party provides adequate national legal protection and management mechanisms to ensure its conservation. In sum, each nomination is presented to the Committee "in the form of a well-argued case." [7] Before accepting a nominated property for the List, the World Heritage Committee consults internal and external experts. Building on this principle, the World Heritage Committee has developed Operational Guidelines to provide several alternative selection criteria. For example, a cultural property nominated for inclusion in the List should "represent a masterpiece of creative human genius" or "bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared."
When a site on the World Heritage List is seriously endangered by human or natural causes, it is placed on the List of World Heritage in Danger. The endangered properties are entitled to special attention and international assistance. For example, Yellowstone, a natural property under serious environmental stress, has been placed on the Heritage in Danger List.
For a legion of factors, including the Iran-Iraq war, two Gulf wars, massive aerial bombings, economic sanctions, environmental degradation, failure to develop conservation plans, and general neglect, Iraq's exceptional cultural heritage is in a great danger of suffering irreparable harm. The looted and neglected archeological treasures of Nineveh and Nimrud, for example, have been for years in mortal danger of losing their outstanding universal value.
In the past thirty years, the Iraqi government has periodically nominated several cultural properties for inclusion in the World Heritage List. So far, only one, Harta--a large fortified city of outstanding architectural value, which withstood two Roman invasions in the second century--has made the List. Other nominations were rejected because the Iraqi government failed to furnish sufficient information or appropriate conservation plans. In 2000, the Iraqi government nominated seven sites for the World Heritage List, including the Sumerian city-state of Ur, the archeological sites of Nineveh and Nimrud, and the Islamic Fortress of Al-Ukhaidar. These seven properties represent a small portion of a large trove of antiquities and monuments in Iraq's 7,000 years of uninterrupted but ever changing civilization.
It will be up to the CPA to play a vigorous role in developing the necessary protective legislation and conservation plans that the previous government had failed to provide. Now that economic sanctions have been lifted, Iraq, as a State party to the World Heritage Convention, is in a position to allocate adequate resources for the necessary preservation of its cultural heritage. Right now, the burden falls on the CPA.
The CPA might face a technical barrier in the nomination process. Operational Guidelines require that the nomination be done by the State Party where the properties are located. This requirement raises the question whether the CPA has the legal standing to submit the nominations of Iraqi cultural sites to the World Heritage Committee. A formalistic interpretation of the Guidelines may disqualify the CPA from the nomination process, since the CPA is the alliance of the United States and the United Kingdom, both of which are State Parties to the World Heritage Convention, and yet they are not the State Party where cultural properties to be nominated are located.
This barrier can be overcome, however, if the CPA is viewed as the de facto government of Iraq, which for all present purposes it is. It is unclear whether the CPA, in submitting nomination files to the World Heritage Committee, can rely on the Estrada Doctrine, under which any effective government, regardless of its origin, may represent the state in international affairs. The Estrada Doctrine has been applied to "recognize" domestic governments that seize power in violation of the constitution. [8] A generous interpretation of the Estrada Doctrine may include the acceptance of any efficacious government, domestic or foreign.
The CPA may also rely upon the Security Council Resolution 1483, which recognizes the United States and the United Kingdom as the occupying states and allows them to conduct Iraqi affairs until a lawful government is put in place. The Resolution, in its Preamble, stresses the need for respect for, and continued protection of, Iraq's archaeological, historical, cultural and religious sites. More specifically, the Resolution obligates all member states, including the occupying states, to facilitate the safe return to Iraq of its unlawfully removed cultural property. The clear intention of these provisions is to safeguard Iraq's cultural property, and not just to deal with the problem of looting. One important way to do that would be for the CPA to take appropriate steps to develop conservation plans for the preservation and restoration of Iraq's cultural property, including nomination of Iraq's cultural sites to the World Heritage List. Taking the Resolution's Preamble and overall thrust into account, one could argue that it obligates the CPA not merely to receive and restore stolen cultural property, but also to take reasonable steps to provide more durable means for its safety and preservation.
Because it would be difficult for the CPA to make decisions acceptable to the Iraqi people about nominating sensitive Islamic sites, such as Shia shrines, it could be argued that the CPA's authority under Resolution 1483 does not extend that far.
[1] . Security Council Res. 1483 (May 23, 2003), Para 7.
[2] . Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 823 U.N.T.S. 231 (Paris, 1970), 9 ILM 1031 (1970).
[3] . World Heritage Convention, Art.1. 1037 U.N.T.S.151, 11 ILM 1358. As of June, 2003, 176 states are parties to the Convention.
[4] .T he meeting was originally planned to be held in Suzhou, China, but has been moved to Paris due to concerns about the Severe Acute Respiratory Syndrome (SARS).
[5] . World Heritage Convention, supra note 3, Art. 1
[6] . Operational Guidelines for the Implementation of the World Heritage Convention, Para. 24,. http://whc.unesco.org/nwhc/pages/doc/main.htm. The selection criteria for natural properties are listed in Para. 44.
[7] . Id. Para. 10.
[8] . L. Thomas Galloway, Recognizing Foreign Governments 5-10 (1978).
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About the Author:
Ali Khan is a Professor of Law at Washburn University. His recent book, A Theory of Universal Democracy (Kluwer, 2003), argues for the protection and promotion of universal values.
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Addendum
By Ali Khan
July, 2003
In concluding its 27th session at its Paris headquarters, the World Heritage Committee has decided to add 24 new natural and cultural sites to the World Heritage List, including one from Iraq--the ancient city of Ashur located on the Tigris River. Associated to the Assyrian god Ashur, the city dates back to the third millennium B.C. [1]
The Committee has also decided to simultaneously place the city of Ashur on the World Heritage in Danger List. [2] The danger arose from the previous government's project to build a dam that would have partially flooded the site. The CPA had suspended the project. In placing the property on the in Danger List, however, the Committee was concerned about a possible threat to the site from any future construction of the dam as well inadequate present protection.
The responsibility now falls on the CPA to protect the city of Ashur in accordance with the World Heritage Convention and Operational Guidelines [3] and to undertake the necessary preparatory work for the nomination of other cultural sites in the future.
[1] .The site was nominated by the previous government, and not by the CPA.
[2] . The Committee has decided to remove Yellowstone from the World Heritage in Danger List--a property mentioned in the Insight by way of an example.
[3] .The CPA, as the effective government of Iraq, is directed "to put in place on-site monitoring arrangements as an integral component of day- to-day conservation and management of the sites." Operational Guidelines, Para 72.