Identifying cultural property
entitled to protection
45. There are three types of protection afforded
by the Convention and its two Protocols: special protection, enhanced
protection, and what has become known as "general" protection.
The concept of special protection has, in effect, been superseded
by that of enhanced protection.
46. Under Article 10 of the Second Protocol, cultural
property may be placed under "enhanced protection"
if it is "cultural heritage of the greatest importance for
humanity", if it is protected by domestic legal and administrative
measures recognising its exceptional value, and if it is not being
used (and will not be used) for military purposes. Parties to
a conflict must refrain from attacking such property, even if
it would otherwise be imperative militarily to do so. Only if
the property itself is being used for military purposes by the
opposing force do the obligations lapse. Each State Party to the
Second Protocol is required to submit a list of cultural property
proposed for "enhanced protection"; each list is then
considered by the Committee for the Protection of Cultural Property
in the Event of Armed Conflict, a body composed of twelve States
Parties and assisted by a secretariat provided by UNESCO.[50]
The policy of the UK Government is that the 22 cultural sites
(as opposed to natural environmental sites) on the World Heritage
List, museums and galleries which are non-Departmental Public
Bodies or (in Wales) Assembly Sponsored Public Bodies, and the
National Archives and each of the five legal deposit libraries,
would be submitted for inclusion on the list of cultural property
meriting enhanced protection, subject to the views of the Ministry
of Defence.[51]
47. "General" protection applies to all
cultural property which meets the definition in Article 1 of the
Convention, which encompasses "moveable and immoveable property
of great importance to the cultural heritage of every people",
buildings whose main and effective purpose is to preserve or exhibit
moveable cultural property, or centres containing a large amount
of cultural property. Although parties to the Convention are required
not to direct any act of hostility against such property, they
may do so if justified by "imperative military necessity".[52]
48. In September 2005, the Department for Culture,
Media and Sport issued a consultation paper on various aspects
of the Convention and its implementation in the UK.[53]
One of the questions posed in the paper was how far the list of
cultural property meriting general protection should extend. The
Department recognised that a balance would need to be struck and
that to put forward an excessive number of sites for protection
risked making the protection unworkable in practice. It noted
that "an enemy confronted with a multitude of protected sites
(particularly in an urban setting) would be unable to direct its
operations via the least important obstacles and would probably
have to resort to claiming military necessity to achieve its goals.
Putting forward too many sites would, therefore, have the opposite
effect to that desired in that it would actually jeopardise the
level of protection that can be provided by the Convention".
Consultees were invited to comment on the proposal that general
protection afforded by the Convention should be extended only
to:
- listed buildings of Grade I
status (category A in Scotland and Northern Ireland), totalling
approximately 7,000 list entries in England and Wales[54]
and around 3,650 Category A buildings in Scotland);
- in England, listed historic
parks and gardens of Grade I status (126 list entries);
- all UK World Heritage Sites,
excluding those sites which are inscribed as natural sites (22
sites);
- the collections of those Museums
and Galleries that are directly sponsored or funded by Government;
- the museums, galleries and
universities in England with designated collections and in Scotland
with important collections; and
- the National Record Of?ces
and the ?ve legal deposit libraries.
49. A majority of respondents to the consultation
agreed with the proposal but believed that further categories
should be added, such as scheduled ancient monuments, important
historic city centres, Grade 2* listed buildings, all parish churches
and cathedrals, all conservation areas, designated library and
archive collections, and all local authority record offices. The
Department concluded that it would be impractical and counterproductive
to extend the list so widely (inclusion of all cathedrals and
parish churches alone would increase the amount of cultural property
entitled to general protection by up to 16,000 entries), although
it accepted the case for including designated libraries and archives.
50. English Heritage urged us to recommend that the
definition of cultural property deserving "enhanced protection"
should be drawn so as to include Grade 2* listed buildings and
certain private collections; and Mr Gaimster, representing the
UNESCO UK National Commission, pressed for the inclusion of certain
independent collections.[55]
We note that to bring Grade 2* listed buildings within the general
protection regime would add a further 20,000 buildings to the
total.[56]
51. We invited the Minister to explain the Department's
policy when she appeared before the Committee to give evidence
on the Draft Heritage Protection Bill. In oral evidence, she told
us that "we have not come to a view" on whether Grade
2* listed buildings or historic urban centres should be entitled
to general protection, as she had yet to receive guidance from
UNESCO. Dr Thurley, Chief Executive of English Heritage, told
us that "English Heritage's view would probably be that Grade
2* buildings should be included" but, like the Minister,
he awaited the guidance from UNESCO before taking a firm view.[57]
Mrs Hodge later wrote to
the Committee to explain that the Government felt that it was
unnecessary to specify historic city centres as a category considered
to be under general protection, as such blanket protection would
cover buildings which had only the lowest form of designation
or even no designation at all, which she believed would be inconsistent
with the aims of the Convention. She was also opposed to the inclusion
of Grade 2* listed buildings, which would increase the number
of protected buildings and monuments by some 75% and could provoke
hostile forces to invoke the waiver of "imperative military
necessity" provided for under Article 4.2 of the Convention.[58]
52. Although at first glance it would appear sensible
to await guidance from UNESCO, we note that those guidelines are
not expected to be completed before 2009-10, with the first sites
likely to be submitted for enhanced protection by States Party
in 2010-11 at the earliest.[59]
As Professor Stone pointed out, rather than simply waiting for
guidance to emerge, the UK could be making an effort to take part
in and influence the process.[60]
The UNESCO UK National Commission also urged the UK to participate
actively in preparation of the guidelines.[61]
We query the ten-year delay
in drawing up guidelines for implementation of a Protocol adopted
in 1999, and we recommend that the UK Government and English Heritage
should play a more active part in the preparation of those guidelines.
53. We note
that there is in fact no requirement under the Convention or its
Protocols to draw up any list of properties in order for them
to qualify for general protection: a list would be merely indicative
and would signal to the general public and to foreign states the
Government's assessment of how far the regime of general protection
might extend. In the event of conflict, decisions on whether any
particular item or building qualified for general protection under
the Convention would, it appears, fall to a court.[62]
This brings into question the value of drawing up a list, which
might mislead the public into believing that cultural property
was protected when it was not, and vice versa. Such distinctions
might, in any case, have no legal substance if a conflict were
actually to take place on UK soil. On balance, however, although
a list of cultural property entitled to "general" protection
under the Convention may have limited practical value, it would
be indicative of the UK's commitment to the Convention, and it
is difficult to see how the new regime could be made to work without
one. We believe that a list
of cultural property worthy of "general" protection
should be drawn up. However, we believe that to include all Grade
2* listed buildings and historic city centres, as some have suggested,
would risk significantly diluting its credibility.
54. Until decisions
are taken on what cultural property will enjoy "general protection"
under the Convention, or indeed whether any list will be drawn
up, it is difficult to know whether any significant demands will
be placed upon staff in the Department and at English Heritage
in preparing and maintaining lists. According to the Regulatory
Impact Assessment accompanying the draft Bill, the Government
anticipates that the costs of producing and periodically updating
the list of cultural property considered to be protected under
the Convention "can be absorbed within current budgets".[63]
55. The
written memorandum from English Heritage expressed concern that
there was no indicative timetable or commitment to resourcing
for the identification of cultural property meriting protection
under the Convention and its Protocols.[64]
However, we note that the witness representing English Heritage
did not appear to be daunted by the task, although she said that
"this is not something that is going to be introduced wholesale
overnight".[65]
Much of the work may be undertaken in any case if the reform of
the heritage protection system as proposed by the Draft Heritage
Protection Bill is taken forward. Nonetheless, we
recommend that the Government should not bring before Parliament
legislation to ratify the 1954 Hague Convention and its two Protocols
until:
(i) it is able to present a clear
statement on whether it intends to draw up a list of cultural
property deemed to be entitled to general protection and, if so,
which cultural property will be included in that list; and
(ii) what the implications for publicly
funded bodies are likely to be.
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