WOULD IT BE DIFFICULT FOR CHINA TO RATIFY THE 1999 SECOND PROTOCOL?

AuthorHu, Xiujuan

The 1999 Second Protocol to the 1954 Hague Convention is of great importance for the protection of cultural property during armed conflict and has garnered special attention over recent years. However, China is not party to this Protocol although it is committed to protecting the world's cultural heritage and is party to most of the major international cultural heritage conventions. This article analyses the real barriers to China's ratification and concludes that, taking the purpose of the 1999 Second Protocol into account, it would be better for China to ratify the 1999 Second Protocol.

  1. INTRODUCTION

    The Convention for the Protection of Cultural Property in the Event of Armed Conflict (the 1954 Hague Convention) is the first international treaty focusing exclusively on the protection of cultural heritage during armed conflict. (1) It arose out of the massive destruction of cultural property during the Second World War, and was adopted in 1954 for the purpose of curbing, and, if possible, preventing the future destruction of cultural heritage in the course of armed conflict. However, a series of incidents since 1954 in different areas of the world, notably south-east Asia, the Middle East, Cyprus during the 1960s to 1980s, especially in the Former Yugoslavia of the early 1990s highlighted the deficiencies of the 1954 Hague Convention and the necessity of drawing up a new instrument. Thus, the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (the 1999 Second Protocol) was adopted in March 1999 and entered into force in 2004. (2)

    The looting and destruction of cultural property in Syria, Mali and Iraq (3) in recent years have caused alarm and made the international community more aware of the need to protect cultural heritage during armed conflict. The 1999 Second Protocol is now receiving increased attention as a consequence. Five States (4) became party to the 1999 Second Protocol in 2017 and eight States (5) in 2018. These new Parties have taken active measures to spread and implement the 1954 Hague Convention and its two Protocols. (6)

    China is committed to protecting the world's cultural heritage and began to enhance its connections with the international community after adopting the reform and opening-up policy in the late 1970s. Since then, China has become party to most of the existing cultural heritage conventions. It has been party to the Convention for the Protection of the World Cultural and Natural Heritage (70 since 1985. It also has been party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (8) (the 1970 UNESCO Convention) and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (9) (the 1995 UNIDROIT Convention) since 1998. It ratified the 1954 Hague Convention and its first Protocol in 2000, and it also ratified the 2003 Intangible Cultural Heritage Convention (10) in 2004 and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (11) in 2007 (Table 1). In other words, there are only two main cultural heritage treaties to which China is not party, namely the Underwater Cultural Heritage Convention (12) and the 1999 Second Protocol. In addition, China is party to the two 1977 Additional Protocols (13) to the 1949 Geneva Conventions (14) which contain articles (15) on protection of cultural property during armed conflict.

    Although protection of cultural heritage has become a serious concern in China and the 1999 Second Protocol has aroused the interest of the international community, it seems that China is reluctant to become a Party to the 1999 Second Protocol. (16) The following sections will examine the relationship between the 1999 Second Protocol and the 1954 Hague Convention. The strengths of the 1999 Second Protocol will also be discussed before identifying any drawbacks which might cause China to hesitate before becoming party to the 1999 Second Protocol and, to conclude, this paper will consider the reasons why it is better for China to become party to the 1999 Second Protocol.

  2. THE RELATIONSHIP BETWEEN THE 1999 SECOND PROTOCOL AND THE 1954 HAGUE CONVENTION

    The destruction and looting of cultural heritage during armed conflicts since 1954 in different regions of the world, especially in the Former Yugoslavia at the beginning of the 1990s, have presented new challenges to the international community, and the effectiveness of the 1954 Hague Convention became a serious concern as a consequence. In view of this, in 1991, the Government of Netherlands undertook a review of the 1954 Hague Convention. From 1992 onwards, the Netherlands, UNESCO and a number of experts in various fields worked on a revision of the 1954 Hague Convention and this resulted in the 1999 Second Protocol at the diplomatic conference which took place in The Hague in March 1999.

    Throughout the review process, there were four different proposals for the possible modification of the 1954 Convention and the relationship between the revised document and the Convention. (17) The first option was to modify the Convention directly, but this was rejected because it was difficult to obtain complete agreement and, under Article 39 of the 1954 Convention, modification of the terms of the Convention requires the unanimous agreement of all Parties. The second option was to draw up a new treaty independent of the 1954 Convention. However, this option was not pursued because it would have needed substantive discussion and there was a risk that a new independent instrument could bring about two separate systems with regard to protection of cultural property during armed conflict. The third option was to enact a protocol for a modification of the 1954 Hague Convention which was rejected because it also needs the unanimous agreement of all Parties. Eventually, the fourth option was adopted, that of drafting a new protocol to supplement the original 1954 Hague Convention with this new agreement binding only those States who choose to ratify it. Thus, the 1999 Second Protocol supplements the 1954 Hague Convention, which remains the basic text. A State can be a Party to the 1999 Second Protocol only if it is a Party to the 1954 Hague Convention. (18)

  3. NEW DEVELOPMENTS IN THE 1999 SECOND PROTOCOL COMPARED WITH THE 1954 HAGUE CONVENTION

    The 1999 Second Protocol introduces some innovations as compared with the 1954 Hague Convention and these can be summarised as follows:

    1. Extending All its Provisions to Non-international Armed Conflicts

      As a result of the massive destruction of cultural property during the Second World War, the 1954 Hague Convention focused on the consequences of classic international armed conflicts. (19) However, most of the conflicts that have occurred in the world since 1954 are not classic international armed conflicts. (20) In the case of a non-international conflict occurring within the territory of a State Party each side is required (21) to apply, as a minimum, the Convention provisions relating to respect for cultural property. (22) The international community also adopted the 1977 Additional Protocol II to the four Geneva Conventions of 1949 focusing on non-international armed conflict which contained a provision specifically aiming at cultural heritage. (23) In the light of this fact and new developments in international humanitarian law mentioned above, the 1999 Second Protocol extended all its provisions to both international and non-international armed conflict (24) which constitutes a reflection of modern thinking. At the same time, the 1999 Second Protocol clarified the definition of 'non-international armed conflict'. (25)

    2. Specifying the Obligations to Make Preparations to Safeguard Cultural Property during Peacetime

      The 1954 Hague Convention contains a relatively simple provision with respect to the obligations of States to make preparations in time of peace: Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict by taking such measures as they consider 'appropriate'. (26) However, the term 'appropriate' is not defined in the 1954 Hague Convention and there was concern that the provision was too vague to be followed. As a consequence, the 1999 Second Protocol enumerated the measures to be taken as including: 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.

    3. Obligation to Take Precautions in Attack and Against the Effects of Hostilities

      Articles 7 and 8 of the 1999 Second Protocol impose new obligations in relation to precautionary measures which mirror Articles 57 and 58 of the 1977 Additional Protocol I to the 1949 four Geneva Conventions respectively. In launching an attack, Article 7 of the 1999 Second Protocol requires Parties to do everything feasible to verify that the objects to be attacked are not cultural property under the 1954 Hague Convention. The 1999 Second Protocol also deals with the problem of 'collateral damage' to cultural property. In this circumstance, parties are required to take all feasible precautions to choose the means and methods of attack, or cancel or suspend an attack, in order not to cause excessive incidental damage.

      As noted in the commentary of the 1977 Additional Protocol I to the 1949 four Geneva Conventions, the provision concerning the obligation to take "precautions against the effects of attacks" is concerned with measures which every power must take in its own territory in favour of its nationals or in territory...

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