GENERAL INFORMATION ON INTERNATIONAL LAW

Chapter 1 is titled Defining Cultural Heritage in International Law. What I find particularly commendable in this chapter is a discussion of various kinds of value attributable to the objective elements of the cultural heritage. Without a perception of value, few would recognize the concept of cultural heritage. Equally useful is a discussion on protection, a word that is sometimes substituted in the literature by “safeguarding.” I myself have tried to elaborate on this core concept of the legal aspirations to preserve the cultural heritage, and I get much support from Forrest's thoughts. He divides the meaning of protection into the following subcategories: physical protection, protection in situ, protection of visibility and accessibility, retention, and cooperation. Arguably, one aspect is missing: protection of use. Some heritage items would be deprived of value if efforts were not made—by recourse to legal means as well as economic—to protect their historic usage. In the industrialized part of the world, this would be applicable, for example, to farming methods on their way out: harvesting, cattle keeping, milling, and so on. Sometimes use can only be preserved in museums. The fact that protection of usages often requires special financial incentives does not make legal protection irrelevant.

Forrest continues with an insightful description of how the term cultural heritage became introduced in the international conventions, starting with the 1954 Hague Convention. He describes the linguistic movement away from the original concept of cultural property to the currently used cultural heritage. It may be useful to note that when used in particular contexts the terms cultural property, object, or material could be more pertinent than the broad heritage notion.

Chapter 2 provides an overview that may be of particular interest to anyone not already well versed in international law. Forrest describes how treaty law functions to weld together conventions, as agreements between sovereign states, and how the procedures may differ from one convention to the other. He also clarifies the meaning of the terms protocol and reservation. One personal observation: When the 2001 Underwater Heritage Convention was in the preparatory stages, I followed Sweden's attitudes behind the scenes. Procedures used by UNESCO differed somewhat from what, perhaps, is more general within the United Nations (UN) system, which irritated the Swedish delegates with their Ministry of Foreign Affairs background and made them feel uneasy about where this would be leading. Sweden subsequently abstained from voting at the General Conference and submitted a declaration that did not mention procedural reasons. However, reservations of that nature could have influenced the Swedish hesitance in some measure.

Forrest also briefly discusses the important questions of retroactivity (“retrospectivity” is the term he uses) and implementation. He describes the basic differences between the monistic view—a convention becomes directly binding on citizens once it has gained legal force for the state—and the dualistic system—a convention needs supplementary legislation before it is binding on individuals. This is most pertinent to the conventions aimed directly at individual behavior, such as the movement of goods across borders covered by the 1970 Convention and the 1995 UNIDROIT Convention. Coming from a state that still, in theory at least, sticks to the dualistic system, I cannot help but feel that in actual practice—and especially for nations under the influence of European Law, both from the Union and the Council of Europe—the difference is getting more and more insignificant. The supreme courts of Sweden increasingly solve any quandary posed by the lack of sufficient implementation by resorting to interpretation in “conformity” with the convention.

With regard to retroactivity, Forrest puts his foot down. The Vienna Convention on the Law of Treaties, now considered customary international law, rules out retroactivity, regardless of what was sought by many nations in conceiving the 1970 Convention. Quite another matter is that retroactivity sometimes may be achieved as a result of political power play or negotiation.

On the note of customary international law—law that applies regardless of conventions (jus cogens, erga omnes)—Forrest also provides an analysis as to its applicability to the cultural heritage. He finds that such law may have been in existence with regard to the conduct of war and before the inception of the 1954 Hague Convention. Therefore, the principles of that convention may be universally binding on states that have not acceded to it.

THE 1954 HAGUE CONVENTION

Chapter 3 is devoted to the 1954 Hague Convention, but it also gives a broad perspective to the development of international law, including customary law, regarding the safeguarding of property during armed conflict. It contains a nonchronological background, starting with the wars in the Balkans and Iraq, and then going back to antiquity and the international efforts of the late nineteenth century to regulate warfare, the two global wars, and the renewed efforts in 1949 in Geneva to humanize conduct in military conflicts. Under the definition of cultural property as “the heritage of all mankind” the author makes the somewhat puzzling observation that this makes the heritage concept more a collective than a common one. If there is a difference, and a pertinent one, it remains elusive. Forrest analyzes the convention and its two protocols in necessary detail; relates and comments on the opinions of other authors; and provides examples from various armed conflicts, including the recent ones in Iraq, Cyprus, Afghanistan, and the Balkans. This is very well done.

THE 1970 AND 1995 CONVENTIONS

Chapter 4 deals with the perhaps most hotly contested regulatory field of them all: the return, restitution, and repatriation of movable cultural heritage. Forrest divides the illicit market in three broad categories: illegally excavated goods, stolen goods, and illegally exported goods. I think there is merit in this categorization, at least from a standpoint of what legal countermeasures may or may not be effective. Many nations combine export control with a right to redeem the goods in question for the benefit of public collections, but there are still many countries that uphold export control as the only means to preserve objects for their citizens. The usefulness of this sole control in a world of free trade and open borders is indeed questionable.

The summary of the various terms of movement is also valuable. Although I am not so sure that the use of terms, derived from Wojciech Kowalski, is generally accepted, lawyers thrive on definition. So here is something to start with. Forrest goes on to relate the principal issues of good faith acquisitions, the retentionist debate, and the reasons for return. The 1970 Convention and the 1995 UNIDROIT Convention are fully analyzed with due references. There are many intricacies that Forrest helps explain, such as the various time limitations applicable to objects being parts of identified monuments or archeological sites or belonging to public collections.

This chapter ends with a summary evaluating the failures of the international order to prevent the spoliation of the Iraqi cultural heritage resulting from the two wars. It also discusses how to some extent the damages have been mitigated through the application not just by the two conventions—they seem in fact to have played only a minor role—but by other instruments of legal regulation.

THE 1972 WORLD HERITAGE CONVENTION

If the conventions directed at illicit trade have been contested, this is hardly the case with the 1972 World Heritage Convention, as discussed in Chapter 5. With 187 ratifications in June 2011, this is by far the most successful UNESCO heritage convention. It is probably also the most widely known, especially through the resulting World Heritage List, encompassing now 911 properties, the overwhelming proportion being cultural.

Like other chapters, Chapter 5 also begins with a historical background—in this case brief—to the convention, before the author sets out to describe and analyze it. There are many differences between this convention and the others. For example: so much is not regulated by the convention text in itself, but by the Operational Guidelines, which since 1977 have been decided and amended—most recently in 2008—by the World Heritage Committee. Another marked difference is the emphasis in the convention on international assistance, with a principal obligation on the States Parties to contribute to the World Heritage Fund. The chapter concludes with an interesting argument in favor of the convention having erga omnes effects as well as a summary of the rather successful story around Angkor in contrast to the disastrous fate of the Bamiyan Buddhas.

THE 2001 UNDERWATER HERITAGE CONVENTION

Craig Forrest's background as a diver raises particular curiosity regarding his treatment of the 2001 Underwater Heritage Convention, a treaty that did not gain effect until 2009. Despite my reluctance to have too much water above my own head, I share his interest in the subject matter. One added impetus here for both of us is that this convention was originally initiated by the International Law Association (ILA) Cultural Heritage Law Committee, although neither of us can claim any credit, as it was long before our terms as members.

There is a full and useful background, which includes not just the technical development of underwater archaeology, but also the evolution of salvage law, the law of finds, and admiralty law (noticeable primarily in common law nations). The background would be incomplete without a discussion of UNCLOS, the 1982 United Nations Convention on the Law of the Sea, so it is, of course, covered as well. Here I find a minor flaw in Forrest's generally educative and straightforward treatment. When on page 321 he describes Article 149 of UNCLOS pertaining to what is called “the Area,” it would have been more helpful if he had not delayed explaining what the Area is until page 349. It is difficult grasping the limits of Article 149 if one does not realize that it is applicable only to the deep seabed, beyond all limits of national jurisdiction, and outside the continental shelf.

Forrest raises a finger of warning to alternative solutions to the convention in the shape of various regional agreements aiming at protection of what is underwater. Although such solutions may raise awareness, they still may infuse a false sense of having achieved something legally. A pertinent example for a Swedish reviewer is a tripartite agreement between Estonia, Finland, and Sweden. It aspires to protect the grave site of 852 victims who went down in the Baltic Sea on the passenger ferry Estonia in 1994. But this agreement could do nothing to prevent German and U.S. citizens from diving on the wreck.

THE 2003 INTANGIBLE HERITAGE CONVENTION

Chapter 7 treats the last convention, the 2003 Intangible Heritage Convention. For a conventional lawyer like me, this is probably the most difficult to grasp. The intangible obviously is not protectable in any traditional sense. It does not come with rights similar to intellectual property. The keyword in the convention is “safeguarding,” which is defined to encompass other propensities than the usual “protection.” Safeguarding means measures aimed at ensuring viability: identification, documentation, research, preservation, protection, promotion, enhancement, and transmission. The issue at stake is immaterial more than material: awareness raising and respect for tradition. That this chapter is the shortest one need not reflect disrespect on part of the author. Being the newest convention, there simply is not enough application available yet for an extensive commentary. Forrest goes through the essentials, however, including a presentation of the two lists: the representative list and the urgent safeguarding list. There is a useful section dealing with the relationship between the tangible, as it occurs in the World Heritage List, for example; and the intangible, a relationship that is not always beneficial for the intangible heritage, because extensive tourism prompted by World Heritage listing tends to disturb the exercise of traditional crafts and traditions.

THE AUTHOR'S CONCLUSIONS

The last chapter, Chapter 8, is a summary entitled: “From Five International Conventions to an International Law of Co-operation.” The author's hypothesis is that cooperation is overtaking binding conventions as the predominant vehicle in protecting the cultural heritage, and he cites the 2001 and 2003 conventions as examples of more cooperative than normative approaches. A skillful comparative section on overlap of the conventions and a useful section on various enforcement measures available—or not available is followed by a discussion of the cultural heritage as a common concern for humankind and a recap of the debate on nationalism/retention versus internationalism. Forrest seems to side with those who claim that the concept of a common heritage is a fragile one, subject to state sovereignty and suffering from the lack of representatives with rights: Who can claim to be the holder of a power of attorney for future generations? He sees cooperation within, or at least promoted by, UNESCO as the most likely institutional answer to that question.

Craig Forrest's comprehensive and intelligent treatise on the heritage conventions should be valuable to anyone who seeks both background and application in this field of international law. It is an intricate field, indeed, and Forrest's provides excellent guidance. Given all these intricacies, however, one heretical thought enters my mind. Without the aid of any convention, UNESCO has, since 1992, maintained the Memory of the World Programme, resulting in the Memory of the World Register. This program—as many readers may already be aware—is aimed at preserving documentary heritage: libraries, archives, and similar collections of documents. The register is in many ways a parallel to the World Heritage Register, but the procedures are much, much simpler. Member states nominate the documents, then the entry into the register is screened by an International Advisory Committee and approved by the director general of UNESCO on the criteria of world significance and outstanding universal value. Apparently, cooperation can be achieved without conventions.

A NOTE ON FOOTNOTES AND OTHER EDITORIAL ASPECTS

Personally, I prefer footnotes to endnotes, simply because I do not need to turn pages. So I am all in favor of Forrest's work in this respect also. However, it is not always entirely evident to what work a footnote refers. When a citation reads just “O'Keefe, op cit,” it becomes a somewhat galling task to try to find out whether the author is Patrick or Roger, and which book or article is the relevant one. In note 12, page 138, reference is made to an op cit. by Prott (1997), but the bibliography does not list any of her works from that year. In note 41, page 146, a reference is made to a purported work by “Last” op cit. There is no such author in the bibliography, and Internet searches on Google has not helped either. I suspect that the author means the work in the preceding (or latest) note, but the reader should not be left to such guesswork. A small error in footnote 185, page 94, should be corrected in future editions: It is the Wawel in Krakow. (Misprints are, of course, unavoidable, but on page 333 (middle), a whole sentence has become garbled beyond recognition.)

Because I am not a native user of English, I should of course be sparing in my comments on how a native user applies that language. But in this day and age when English has become a lingua franca, it becomes important that international functionality is sought. I think Forrest lives up to this criterion; his language is clear and not fraught with excessive legalese. But he entertains a somewhat irritating linguistic hiccup in starting too many sentences with “while” or “whilst” (e.g., on p. 131).