The initial introduction of the idea of cultural property protection in legal codes came with implementation of the United States of America War Department General Orders No. 100: Instructions for the Governance of the Armies of the United States in the Field, drafted by Francis Lieber in April 1863 [known as the Lieber Code].47  The Lieber Code, the prototype for international conventional law protecting cultural property, prohibited the destruction and seizure of private property, while stressing the importance of protection of works of art, scientific collections, libraries, and hospitals. Article 34 postulates that "the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character...whether public schools, universities, academies or learning or observations, museums of fine arts, or of a scientific character-such property is not to be considered public property."48   The first international regulations for wartime protection of cultural property, the Declaration of Brussels, drew upon the principles in the Lieber Code.  The 1874 international conference provided in Article 8 that "the property of parishes (communes), or establishments devoted to religion, charity, education, arts and sciences, although belonging to the State, shall be treated as private property.  Every seizure, destruction of, or willful damage to, such establishments, historical monuments, or works of art or science, shall be prosecuted by the competent authorities."49

Only with the implementation of the First Hague Conference in 1899 did cultural property acquire protection by a formal international treaty.  Article 56 of the Hague Conference adopted the principles of both the Declaration of Brussels and the Oxford Code to formulate a body of Regulations Respecting the Laws and Customs of War on Land, "while the parallel rules governing naval bombardment tried to afford some protection to churches and other important cultural monuments, including a provision for marking such protected buildings with a distinctive flag."50  A more substantial Hague Convention in 1907, attended by 44 sovereign states, including the United States and Russia, revised the 1899 Convention and adopted a number of resolutions on the Laws and Customs of War. For instance, Article 27 of the Fourth Hague Convention declared that "in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes, historic monuments...provided that they are not being used at the time for military purposes."51   Furthermore, the treaty affirmed that it is forbidden "to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war."52 Provisions for cultural property protection became engrossed in a number of other international conventions throughout the 19th and 20th centuries, culminating in the 1954 Hague Convention on the Protection of Cultural Property in Times of Armed Conflict.

It was in this convention where the term "common cultural heritage of all mankind" was finally enshrined as a precept of international law, implying that cultural objects belong to the human civilization as a whole.  Destroying cultural property would prevent future generations from experiencing the splendor of such objects.

The notions of property rights and mutual respect drove states to develop legislation and agreements prohibiting the plunder of cultural property and stipulating its return. The matter of the Vessel Marquis de Somereules [1812 Stew. Adm. 482] was the first legal case to address these prohibitions and requirements for repatriation.   During the War of 1812, a ship carrying cultural objects belonging to the Philadelphia Museum of Art was captured by the British Navy; the contents were held as prizes of war.53  The Canadian court hearing the case ordered the objects returned to their rightful owner. The court reasoned that "art was a part of the common cultural heritage of mankind and, thus, protected from seizure during war."54   This decision constituted the first legal recognition of cultural property rights and was the first case to actually utilize the term "cultural property of all mankind."

Around the turn of the 19th century, Napoleon undertook the greatest looting operation since the fall of Rome.  In 1798, Paris was the setting for an "elaborate spectacle which deliberately echoed the classical Roman triumph."55   In the Champs de Mars Square, a procession was held for the world's supreme works of art looted during Napoleon's conquests. These included the Discobolus, the Dying Gladiator, the Laoccon, the Medici Venus, and numerous other works that now form the "vocabulary of art."56  After Napoleon's defeat in Waterloo, the Convention of Paris in 1815 addressed the issue of art plunder during Napoleon's conquests.  The Duke of Wellington, speaking for the Allies, stated that "the systematic looting of art by a conquering army was contrary to the principles of justice and to the rules of modern warfare."57  The Allies ordered France to return both confiscated property, and property acquired through treaty, to their countries of origin."58

The 1812 court ruling and the 1815 Convention of Paris order reflect a shifting trend in Europe at that time.  On some level, states adopted the Kantian model of rights and ethics in the treatment of one another.  The recognition of laws on the international level and the mutual respect by states demonstrate the emergence of "higher" moral codes of conduct as guiding principles of international affairs.  The idea of a common heritage of mankind was consistent with these principles as it instilled into states the notion that some objects carry a higher purpose and thus, need to be preserved.

back.gif (287 bytes) back.gif (221 bytes)


Page 6

 

Alexander Frid - The Common Heritage Doctrine and... [1] [2] [3] [4] [5] [6] [7] [8] [9] [10]