Kirchmair, Lando

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Turning Hagia Sophia into a mosque(again)Has international law anything to say about that?Lando Kirchmair 2020-07-21T14:31:16The announcement by Recep Tayyip Erdo#an to change the status of Hagia Sophiaand to turn it into a Mosque last Friday, 10 July 2020, has provoked a worldwideoutcry. With a ruling of 2 July 2020, published also on Friday, 10 July 2020 (No2020/2595), the Council of State, Turkey’s highest administrative court, invalidatedthe 1934 transformation of Hagia Sophia from a Mosque into a museum. On theday the court ruling was released, the Turkish President signed decree no 2729opening the UNESCO world heritage site – once again – to Muslim worshipers.Consequently, Hagia Sophia ceases to be a public museum, becomes a Mosqueagain, and the inaugurating Friday prayers will take place on 24 July 2020,coinciding with the 97th anniversary of the conclusion of the Treaty of Lausanne in1923.This is yet again a historic change in the long history of Hagia Sophia, which wasbuilt in 537 AD on the orders of emperor Justinian I, constituting once the world’slargest church. Following the conquest of Constantinople by Sultan Mehmed II in1453, it was immediately converted into a Mosque. The founder of modern Turkey,Mustafa Kemal Atatürk, transformed Hagia Sophia some 500 years later on 24November 1934 into a museum. As a museum, it lasted from 1 February 1935until 10 July 2020. This status change met worldwide opposition. For instance,Pope Francis said that he is “very saddened” by this decision, Greek’s PrimeMinister Kyriakos Mitsotakis “condemned” it, and also UNESCO expressed its“deep regret”, calling upon the Turkish authorities “to initiate dialogue without delay”and announcing that “the state of conservation […] will be examined by the WorldHeritage Committee at its next session”. This contribution seeks to explore whetherinternational law has a role to play in this incident.Indeed, the UNESCO did not only regret the decision made, but also called onTurkey to “abide by its ‘legal commitments and obligations’” stemming from theratification of the World Heritage Convention in 1983 in general and the listing ofHagia Sophia as a World Heritage Site in particular. UNESCO’s Director-General,Audrey Azoulayparticularly highlighted Hagia Sophia’s “status as a museum [which]reflects the universal nature of its heritage and makes it a powerful symbol fordialogue.” It has been admitted to the World Heritage List as part of the “HistoricAreas of Istanbul” in December 1985. Yet, in a 2019 Report on a Joint UNESCOWHC and ICOMOS Advisory mission to the Historic Areas of Istanbul, the currentlyongoing reconstruction of the adjacent 19th century Ottoman Madrasa (place ofIslamic higher learning) was applauded and it was acknowledged as “a building in- 1 -use rather than a museum or monument”. And indeed, in an open letter about thestatus of Hagia Sophia, scholars of Byzantine and Ottoman art state that “in a certainsense, Hagia Sophia is currently functioning as both a museum and a mosque” as“[s]ince 2016, Hagia Sophia has been served by a full-time imam, the call to prayerhas sounded from the minarets, and Qur’anic readings and prayers have taken placewithin during the annual observation of Laylat al-Qadr [the most important festivenight during Ramadan].”This provokes to take a closer look at the selection criteria according to theOperational Guidelines for the Implementation of the World Heritage Conventionwhich have led to the listing of the “Historic Areas of Istanbul” in general and HagiaSophia in particular. Criterion (i) highlights that “[t]he Historic Areas of Istanbulinclude monuments recognized as unique architectural masterpieces of Byzantineand Ottoman periods” and explicitly refers to Hagia Sophia as an example,mentioning its design by Anthemius of Tralles and Isidore of Miletus in 532–537.Criterion (ii)emphasizes that “[t]hroughout history the monuments in Istanbul haveexerted considerable influence on the development of architecture, monumentalarts and the organization of space, both in Europe and the Near East.” Criterion (ii)further specifies this, again by pointing to Hagia Sophia, which “became a modelfor an entire family of churches and later mosques, and the mosaics of the palacesand churches of Constantinople influenced both Eastern and Western art.” Theacceptance of Hagia Sophia as a World Heritage Site, thus, implicitly refers to thevery specific history of Hagia Sophia, being first object of desire and pray, and thenserving somehow the purpose of unification and tolerance between world religions.Yet, the listing must not be reduced to a specific function or use as for the inclusionin the World Heritage List at least one criteria must be met.According to UNESCO, however, “[a]ny modification requires prior notification bythe State concerned to UNESCO and then, if necessary, examination by the WorldHeritage Committee.” UNESCO’s Assistant Director-General for Culture, ErnestoOttone, specified that “[i]t is important to avoid any implementing measure […] thatwould affect physical access to the site, the structure of the buildings, the site’smoveable property, or the site’s management”.The law, however, seems not to be fully supportive of such an assessment. Article 4of the Convention Concerning the Protection of World Cultural and Natural Heritage(World Heritage Convention, WHC, 1037 UNTS 151) stipulates that each State Party“recognizes that the duty of ensuring the identification, protection, conservation,presentation and transmission to future generations of the cultural and naturalheritage referred to in Articles 1 and 2 and situated on its territory, belongs primarilyto that State.” Article 5 WHC obliges State Parties “[t]o ensure that effective andactive measures are taken for the protection, conservation and presentation of thecultural and natural heritage situated on its territory”. This includes no concreteprovision on how to use a World Heritage Site, except of course any usage beingdetrimental to its preservation. And indeed, other inscribed sites, such as the Notre-Dame de Paris or the Cologne Cathedral like many other churches on the WorldHeritage List, are open to worshipers. Article 6 WHC, finally, explicitly mentions therespect of the “sovereignty of the States on whose territory” the cultural heritage is- 2 -situated. Precisely to Turkey’s sovereignty, also Erdo#an has appealed when heannounced his decision to inaugurate the Mosque Hagia Sophia with prayers on 24July 2020. Thus, prima vista the announced status change of Hagia Sophia seemsnot to be forbidden by international heritage law.Even if we would come to conclude that the change of status is forbidden, thelegal sanctions of the World Heritage Convention seem to be rather toothless.According to Article 11 para 4 WHC, the World Heritage Committee runs a “Listof World Heritage in Danger”. Subject to a listing on this red list, however, is onlyproperty a) which is already listed as world heritage, b) “for the conservation ofwhich major operations are necessary” and also c) “for which assistance has beenrequested under this Convention”. The last criterion is actually not given in ourcase, as Turkey did not request any support. However, the Committee has – in asomewhat creative interpretative fashion – already disregarded c) in earlier decisionsas for instance when listing the “Historic Centre of Vienna” in 2017 and arguably thislittle sanctioning tool has become a case of “other subsequent practice” accordingto Article 32 Vienna Convention on the Law of Treaties. ILC Special RapporteurGeorg Nolte has specified that other subsequent practice “as a supplementarymeans of interpretation under article 32 [VCLT] consists of conduct by one or moreparties in the application of the treaty, after its conclusion”. As the contracting partiesto the WHC did not protest against prior decisions, the extension of the mandateby the decision of the WHC can arguably be attributed to them. In case of “urgentneed”, as the last sentence of para 4 explains, the Committee “may at any time […]make a new entry in the List of World Heritage in Danger and publicize such entryimmediately”.Besides that, what still remains as a consequence is the loss of reputation comingwith a listing as an endangered site. However, isn’t the turmoil that would comewith such a listing precisely the aim of the Turkish President? Beyond these doubts,would the next step after the red list, the withdrawal of the world heritage status,be actually an appropriate legal sanction? Does the Hagia Sophia cease to be aworld heritage, because of its envisaged use as a Mosque? Or is the architecturalmasterpiece – given the fact that its physical status remains intact (and Christiantraces, such as Jesus Christ Pantocrator are not destructed) – not still a worldheritage within the listed “Historic Areas of Istanbul”? In other words, the sanction ofdelisting or rather excluding Hagia Sophia from the world heritage “Historic Areas ofIstanbul” would be a defeat for both sites. Turkey would face a loss of reputation andUNESCO would lose its protection status concerning Hagia Sophia.- 3 -Myrabella / Wikimedia Commons / CC BY-SA3.0After all, it seems that international law in the form of the World Heritage Conventiondoes not forbid the announced change of status or holds only weak sanctions ready.Technically speaking, the change of status is – if we dare to believe the statement bythe High Board of Religious Affairs on Hagia Sophia Mosque – only a mere reductionof opening hours as Hagia Sophia shall remain open for visitors when no prayerstake place. It is sad, indeed, that Erdo#an has finally taken this long impending step.However, the international community is arguably better advised not to call for legalconsequences as the ground for such measures is weak. Moreover, in the abovementioned open letter about the status of Hagia Sophia, scholars of Byzantine andOttoman art and culture highlight that in their opinion “the central question is not,‘Should Hagia Sophia be a museum or a mosque?’ The central question is rather,‘How can we best care for Hagia Sophia?’”Despite this rather sober finding, the public concern following the decision isnevertheless understandable and also appropriate in the face of the symbolicnature of this move. The museum Hagia Sophia stood for the unity, tolerance andunderstanding of the European Christian world and the Muslim world of the MiddleEast. The change of status, so it seems at least, is precisely to the detriment of this.If the change of status, however, has also implications for the physical preservationof Hagia Sophia,  legal obligations would stand against such a decline in protection.What remains to be seen is how the scheduled “conversion process” to make thefuture Mosque suitable for Islamic prayers unfolds. For instance, the implementationof the Islamic reservation against the depiction of living beings (especially within- 4 -places for prayer) is – despite the calming 16 July 2020 statement by the High Boardof Religious Affairs on Hagia Sophia Mosque which is now in charge speaking of“curtained or blackened [pictures] during prayers by means of utilizing appropriatemethods” – so far largely uncertain. More practical and monetary concerns relate tothe former 100 Turkish Liras entry fee, which was due for visiting the museum. If thefee won’t be kept for tourists either, the free entry of 3,7 million tourists visiting HagiaSophia in 2019 will constitute quite a detrimental financial loss, which might have animpact on expensive conservation practice.These are speculations. What is clear, however, is that international law obligationswould certainly stand against a potential reluctance of care in the preservation ofone of the most important objects of our common heritage. Beyond that and despitethe fact that the status change seems not to be forbidden by international law, thismove nevertheless reveals a backward-looking international policy, praising nationalsovereignty and prioritizing it over international cooperation. In this vein, this stepsquares in a way with the overall image of Erdo#an’s foreign policy. Among of whichthe deplorable illegal invasion in Syria ironically labelled “Operation Peace Spring”or his rather questionable energy “policy” in the Eastern Mediterranean stand out. Inthat respect, turning Hagia Sophia into a mosque again is another brick falling out ofthe unifying wall between Europe, Turkey, and the international community. Lando Kirchmair is Deputy Professor for National and International Public Law witha focus on the Protection of Cultural Heritage, Department of Social Sciences andPublic Affairs, Bundeswehr University Munich, and Co-PI, European ConstitutionalCourt Network project, Faculty of Law, University of Salzburg. He is grateful forhelpful comments from Daniel-Erasmus Khan, Robert Langer and Cornelia Schäffer. Cite as: Lando Kirchmair, “Turning Hagia Sophia into a mosque (again)– Has international law anything to say about that?”, Völkerrechtsblog, 21July 2020.- 5 -

Turning Hagia Sophia into a mosque (again): Has international law anything to say about that?

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Turning Hagia Sophia into a mosque (again): Has international law anything to say about that?

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