Delegation of Finland

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Santa Clara University School of Law

Santa Clara LawSanta Clara Law Digital CommonsProtection of Cultural Property in the Event ofArmed Conflict Law Library Collections1-1-1999Draft Guidelines for the Implementation of the1999 Second Protocol to the Hague Convention of1954 for the Protection of Cultural Property in theEvent of Armed Conflict: Comments - FinlandDelegation of FinlandFollow this and additional works at: http://digitalcommons.law.scu.edu/cultpropThis Response or Comment is brought to you for free and open access by the Law Library Collections at Santa Clara Law Digital Commons. It has beenaccepted for inclusion in Protection of Cultural Property in the Event of Armed Conflict by an authorized administrator of Santa Clara Law DigitalCommons. For more information, please contact sculawlibrarian@gmail.com.Automated CitationDelegation of Finland, "Draft Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 forthe Protection of Cultural Property in the Event of Armed Conflict: Comments - Finland" (1999). Protection of Cultural Property in theEvent of Armed Conflict. Paper 4.http://digitalcommons.law.scu.edu/cultprop/4..Draft Guidelines for the Implementation of the 1999 Second Protocol to the HagueConvention of 1954 for the Protection of Cultural Property in the Event of Armed ConflictComments - FinlandThe Second Protocol to the Hague Convention requires guidelines for implementation because inpart it operates at a fairly general level. The draft Guidelines clarify the provisions of the Protocoland also contain fundamental principles in line with the Vienna Convention on the Law of Treaties(1980). When adopted, the Guidelines will promote efficient implementation of the contractualobligations.Although the Guidelines have been expertly drafted, we think they might benefit from developmentin some points.The draft examines quite comprehensively the nature of the relationship between the Conventionand the Second Protocol, but this remains partly theoretical and lacks concrete instructions guidingthe action of the Contracting Parties. The Guidelines should be formulated clearly as a documentguiding the practices of the parties.Section 4 analyses how the protection concepts of the 1954 Convention, the Second Protocol andthe 1972 World Heritage Convention relate to each other, and section 5 deals with the conditionsfor enhanced protection and procedures for granting this status. These sections are crucial inspecifying the conditions of selection of sites, in clarifying the details of the protection process, andin issuing general recommendations for application of the criteria.In particular, the implementation guidelines should outline the practical application of the differentdegrees of protection. This also concerns possible listing of the World Heritage sites underenhanced protection. The Committee should seek to specify how special protection relates toenhanced protection. The point of departure could be that the countries which are parties both to the1954 Convention and to the Second Protocol would only present sites for enhanced protection. Theinclusion of the World Heritage sites in enhanced protection would also be justified, but this shouldnot be an automatic procedure, and the sites should naturally fulfil all the criteria for enhancedprotection.Since the definition of "cultural heritage of the greatest importance for humanity" is exceedinglyopen to interpretation, it is essential to examine this point exhaustively in the Guidelines. Theground work done for the World Heritage Convention helps with regard to immovable culturalproperty but gives no support to the definition of movable property. Since the determination of thecriteria demands extensive consensus, it might be useful to convene a separate expert meeting todiscuss the matter. In this respect the international expert organisations, such as rCOMOS, rCOM,IFLA, rCA and rCBS, are of the utmost importance. The international Committee of the Red Crossmight also have valuable information.The observation about a buffer zone in the draft Guidelines is good but, instead of a fixed minimumdistance, the buffer should be considered case by case according to the nature and location of thesite or object and expected military threats to it. The possibility to set a buffer zone should exist butits breadth should be ultimately decided by the Committee after hearing the necessary experts. Themodel for the delimitation of the sites could be the Operational Guidelines for the World HeritageConvention (II.F, 99 - 102).The request for enhanced protection has been modelled after the one used in the World Heritagesystem and is suitable as such for the implementation of the Hague Convention.The Operational Guidelines for the World Heritage Convention give a detailed timetable for thesubmission and handling of applications. It could be worthwhile to consider setting a correspondingannual timetable for the Second Protocol Committee. This would also help in establishing thetimetable and the rules of procedure for the Committee.Since the Committee would hardly have competence to assess the quality of all the suggestedprotection sites, it would be justifiable to require that the applicant submit a statement from aninternational expert organisation. The Committee could identify the appropriate organisation(s).The recommendation concerning the emblem for protected sites in Section 5.6.2. is not veryexplicit. Sites under general protection use the emblem once, without repetition. The Committeeshould discuss the possibility of indicating both general and enhanced protection by the emblemthree times repeated. As regards these two forms of protection, an identical emblem would notnecessarily be a problem since the number of protected sites in both categories is limited and thesites are not used for military purposes.Nearly half of the draft Guidelines deal with "enhanced protection" referred to in Article 10 of theProtocol. Property not under enhanced protection has been given less attention. We think that theGuidelines could also include a general recommendation calling upon the Contracting Parties totake necessary preparatory steps to protect all cultural property, including property not covered byenhanced protection, in the event of armed conflict.The point of departure in the protocol is that it is in the interest of each country to safeguard culturalproperty located on its territory and to identify cultural property worth protecting. However, thepremise for protection can be biased and selective unintentionally or intentionally, for instancegiving less attention to the protection of cultural property relating to the identity of minoritycultures. The Guidelines should seek to instruct how the selection of the sites should be made withsufficiently broad-based expertise and after comprehensive survey of potential sites.With a view to enhancing the visibility of the Hague Convention and making it widely known, it isimportant to disseminate widely the list of sites under enhanced protection. In view of this, theGuidelines could include a recommendation that the list be kept up-to-date in real time by means ofmodem information technology.The Guidelines quite justifiably draw attention to the fact that the obligations relating to reportingunder the Hague Convention of 1954 and its Second Protocol overlap, suggesting the possibilitythat both reports be submitted at the same time. The suggestion is very reasonable. The SecondProtocol Committee could, within its competence, also consider other ways to streamline thereporting.

Draft Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict: Comments - Finland

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Draft Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict: Comments - Finland

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