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] This obligation extends to all member
states, regardless of whether they are parties to
the 1970 Convention that bans illegal trafficking
of cultural property.
[2] The resolution also calls upon UNESCO
and other international organizations to assist in
the implementation of this mandate.
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] 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." [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.
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.
[8] . L. Thomas Galloway, Recognizing Foreign Governments 5-10 (1978).
____________________________
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.
____________________________
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.
_________________________________________________________________________
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