or "practically" applied by states until well into the 20th century, its meaning was fundamental in rule-making for the international community in the 19th century.

Hegel's influence on liberalism and the transformation of society is central to this analysis.  For Hegel, the French Revolution represents a tremendous human achievement, the idea to put reason at the foundation of a state.  The Revolution signified the advent of "subjective consciousness and, with it, the principles of liberty, equality, and the rights of man and citizen."34  Hegel thought that these principles constituted the true essence of a modern state.  In his writings, Hegel expressed that it is necessary that all men be recognized as free, that the principle of internal freedom have made its appearance in religion, and that the particularity of needs be evident in man's morals.35  The realization of these ideals would only occur at the end of history.  Hegel's proclamation of the end of history in the Phenomenology of Mind came with Napoleon's defeat of the Prussian monarchy at the Battle of Jena.  He saw this as "the victory of the ideals of the French Revolution, and the imminent universalization of the state incorporating the principles of liberty and equality."36  These principles make up the Hegelian "World Spirit," a universal concept of progress.  The 1806 Battle of Jena marked the point when the "vanguard of humanity actualized the principles of the French Revolution."37  Hegel, in affirming the universality of human nature, writes: "[i]t is part of culture, of thought as consciousness of the individual in the form of universality, that I am apprehended as a universal person in which all are identical.  A man counts because he is a man, not because he is Jewish, Catholic, Protestant, German, Italian, etc."38 This idea was directly counter to the doctrines of the national identity movements gaining force in early 19th century Europe. Hegel's man was endowed with "self-will," not group identification, reinforcing the common human identity principle.

Hegel criticizes Kant's idea of perpetual peace through membership in a federation of states.  Kant's league assumes the adherence and obedience of all states in the federation.  Hegel notes that "even if a number of states make themselves into a family, this group as an individual must engender an opposite and create an enemy."39   He also disagrees with international law scholars about the efficacy of such laws, remarking that "international law is the result of the relations between independent states.  Its content has the form of the 'ought to be,' because its realization depends upon different sovereign wills."40 States, like individuals, exist and enter into agreements only if they recognize each other.  As Hegel claims, "since the sovereignty of a state is the principle of its relations to others, states are to that extent in a state of nature in relation to each other. Their rights are actualized only in their particular wills and not in a universal will with constitutional powers over them."41  When states cannot reach an agreement, they turn

to war to settle their disputes.  International law does not have any universal authority and thus, can not impose its will to secure peace. Hence, Kant's support for international law as a means of dispute resolution is not a feasible option in a state system.  As such, Hegel proposes the so-called "universal homogeneous state," emerging at the end of history, that "recognizes and protects through a system of law, man's universal right to freedom, and [is] democratic insofar as it exists only with the consent of the governed."42

By and large, the Kantian federation of states and the Hegelian "universal homogeneous state" advocate some sort of universal identity among people. This new sense of universalism, prevalent in literature of the late 18th and early 19th centuries, brought about the development of the common heritage of mankind doctrine.   The doctrine was certainly pivotal in the origination of rules governing the protection of cultural property.  Many historians affirm that "the taking of important movable cultural symbols of invaded and conquered states and peoples as trophies of war [or merely for their economic value], and the defacing or destruction of their monuments as marks of victory, have been important parts of the culture of the waging of war for millennia."43  The development of the rules for the protection of cultural property came from the much broader liberal ideal­the anti-war norm.  As L. T. Hobhouse noted in 1911, "it is of the essence of liberalism to oppose the use of force, the basis of all tyranny" and thus, "liberals stand firmly against the 'tyranny of armaments' and the 'military spirit' which 'eats into free institutions and absorbs public resources which might go to the advancement of civilization'."44  Rules were developed to lessen the amount of destruction that occurs in war.  These laws precluded states from systematically killing civilians, abusing prisoners of war, and utilizing overly destructive warfare methods in battle.  The majority of these rules emerged from the essential liberal principle­the freedom of the individual.  As Michael Doyle suggests, "this is a belief in the importance of moral freedom, or the right to be treated and a duty to treat others as ethical subjects, and not as objects or means only.  This principle has generated rights and institutions."45  Other liberal ideas, namely the right to own, may explain the emergence of the cultural property protection regime.   John Locke acknowledged that humans have certain natural rights, one being the right to self-preservation.  He extrapolated those rights into a right to own property.46 Cultural property not only belongs to a person or a state, but in the words of the 1954 Hague Convention, it constitutes a "common heritage of all mankind."  Thus, destroying any of it detracts from the essence of human civilization.  Similarly, states gained mutual respect for one another and devised provisions in international legislation prohibiting the plunder of cultural property.

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