SECOND PROTOCOL TO THE HAGUE CONVENTION OF 1954 FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT

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1 12 COM C54/17/12.COM/11 Paris, 25 September 2017 Original: English SECOND PROTOCOL TO THE HAGUE CONVENTION OF 1954 FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT COMMITTEE FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT TWELFTH MEETING UNESCO Headquarters November 2017 Item 11 of the provisional agenda: The notions of control and jurisdiction as set forth in Articles 10 (c) and 11 (2) of the Second Protocol: perspectives under international law and international case-law This document contains information submitted by the States Parties to the 1999 Second Protocol concerning the notions of control and jurisdiction as set forth in Articles 10 (c) and 11 (2) of the 1999 Second Protocol. Draft Decision: paragraph 26.

2 C54/17/12.COM/11 page 2 I. INTRODUCTION 1. At its 11 th meeting (Paris, December 2016), the Committee for the Protection of Cultural Property in the Event of Armed Conflict ( the Committee ) adopted Decision 11.COM 10, which established the need to further develop the notions of control and jurisdiction, as provided by Articles 10 (c) and 11 (2) of the 1999 Second Protocol. Decision 11.COM 10 requested the Secretariat, following electronic consultations with the States Parties, to propose to its 12 th meeting draft amendments to the Guidelines for the Implementation of the 1999 Second Protocol ( the Guidelines ), specifically Section III. A, paragraph 2, in order to cover the maximum cases of requests for the granting of enhanced protection. 2. Articles 10 (c) and 11 (2) of the Second Protocol refer to enhanced protection, as established by the 1999 Second Protocol. While Article 10 (c) sets one of the criteria for the granting of enhanced protection (non-military use declaration), Article 11 (2) defines the authority competent to submit a request to the Committee for enhanced protection to be granted. 1 Article 11 (4) refers to territories claimed by more than one State and the rights of parties to the dispute Pursuant to these provisions, the Party which has jurisdiction or control over the cultural property may request that it be included in the List of Cultural Property under Enhanced Protection ( the List ). However, only the Party under whose control the cultural property in question finds itself is deemed competent to make a declaration confirming that it is not and will not be used for military purpose. 4. It is to be noted that neither the 1954 Hague Convention, nor its 1999 Second Protocol, defines the notions of jurisdiction and control. During the 11 th meeting of the Committee, the Secretariat provided the States Parties with document C54/16/11.COM/INF.10, which aimed to define the notions of control and jurisdiction under international law. II. ELECTRONIC CONSULTATIONS WITH STATES PARTIES TO THE 1999 SECOND PROTOCOL 5. To follow up Decision 11.COM 10, the Secretariat conducted electronic consultations with States Parties to the 1999 Second Protocol. The deadline for the submission of comments was set as 30 June Thirteen States Parties to the 1999 Second Protocol submitted written observations (Argentina, Armenia, Austria, Belgium, Canada, Cyprus, The Czech Republic, Japan, Mexico, Morocco, The Netherlands, Slovakia and Switzerland). These written observations are summarised below as follows. 6. Argentina agrees with the common understanding and use in international law of the notions of control and jurisdiction provided in document C54/16/11.COM/INF.10 and stresses that the mechanism proposed in paragraph 15 of document C54/16/11.COM/INF.10 regarding non-autonomous territories should not apply if the territory is subject to a sovereignty s dispute between several countries. 3 If however this mechanism is applied in the future due to a request for the granting of enhanced protection 1 See Articles 10 and 11 of the 1999 Second Protocol (Annex 1) 2 See Article 11 of the 1999 Second Protocol (Annex 1) 3 Paragraph 15 of Document C54/16/11.COM/INF.10: It can also refer to a geographical area that does not fall under the sovereignty of a Party, but over which the latter enjoys, individually or collectively with other Parties, a legal title that confers on it the authority to manage its cultural heritage (2nd case) [ ] The Committee s current practice offers no concrete example of the second case. The non-autonomous territories referred to in Article 73 of the United Nations Charter, namely territories for which one of the Members of the United Nations assumes responsibility for the administration, without the latter falling under its sovereignty, offer a pertinent illustration of the second case. In practice, the administering State, provided that it is party to the Second Protocol and has conducted the appropriate consultations with the population of the territory concerned, may request the granting of enhanced protection for cultural property located in the nonautonomous territory.

3 C54/17/12.COM/11 page 3 for cultural property situated in a disputed territory, Argentina wishes to include a special reference to Article 11 (4) of the 1999 Second Protocol in any future document of the Committee in case of divergences of views. 7. Armenia stated that as paragraph 42 of the Guidelines concerns Article 10 (c), an amendment to paragraph 42, either replacing the term control with the term jurisdiction or just adding the latter will contradict the provisions of the 1999 Second Protocol. In case of exclusion of the term control the mechanisms intended for the protection of cultural property will become vulnerable. Armenia also stated that Article 11(4) should definitely be taken into account when elaborating the present document. 8. Austria generally agrees with the conclusions presented in C54/16/11.COM/INF.10 on the notions of control and jurisdiction and recommends that more clear and distinct definitions of the concepts of sovereignty, jurisdiction and control, be proposed by the Secretariat. Austria also recommends that the Secretariat specifically addresses the questions related to movable cultural property as well. 9. Belgium considers that there is no need to amend the Guidelines and that any interpretation or amendment to the Guidelines which would enlarge Article 10 (c) to States that have jurisdiction over the property in question cannot be legally accepted. This can only be achieved through the amendments of the 1999 Second Protocol. Belgium also states that the notion of control does not extend to the notion of jurisdiction as expressed in Article 11 (2) of the 1999 Second Protocol, which expressly mentions the two notions side by side, thus the two notions must be distinct and considered separately. In addition, Belgium claims that Article 11, in paragraphs 2 and 3, reflects that the logic behind the drafting of Articles 10 (c), 11 (2) and (3) was fundamentally different: exclusive for Article 10(c); inclusive under Article 11 (2) and (3). Article 11 (2) can therefore in no way provide a basis for extending the restrictive wording of Article 10 (c). Furthermore, Belgium states that the preparatory work for the 1999 Diplomatic Conference confirms that the provision, as reflected in Article 10 (c) of the 1999 Second Protocol, specifically refers only to the concept of "control, which must therefore be understood in its strictest sense (1969 Vienna Convention on the Law of Treaties, Article 32). For Belgium, there is no other possible legal approach: a broad interpretation of Article 10 (c) of the Second Protocol would go beyond the ordinary meaning of the term "control" and go against the object and purpose of this provision; only the State Party which has effective control over the cultural property is able to declare that it is not used for military purposes. 10. Canada states that a non-military use declaration can only be signed by Parties having effective control over a property, as reflected in Article 10 (c) of the 1999 Second Protocol. With respect to any amendments to the Guidelines, Canada states that no amendment could be considered that would constitute a de facto amendment of the Second Protocol. Concerning paragraph 42 of the Guidelines, Canada considers that the only potential amendment would be one that assists the reader, and particularly the Committee, to understand what is meant by control. As a result, in the event that it would add transparency and greater certainty to what is currently meant in paragraph 42 of the Guidelines, Canada proposed the following amendment: 42. The cultural property concerned must not be used for military purposes or to shield military sites. The Party which has control over the cultural property has to make a declaration confirming that the cultural property will not be used for military purposes or to shield military sites. Any assessment concerning whether the Party making such a declaration has control over the cultural property should be made on the basis of the principle of effectiveness. In accordance with Article 3 of the Second Protocol, these provisions also apply in times of peace. 11. Canada also states that the Second Protocol, and the Operational Guidelines, have been drafted to recognize situations of occupation, where two different Parties may have

4 C54/17/12.COM/11 page 4 jurisdiction and control over the same cultural property. If the jurisdiction and control are borne by two different Parties, it is the responsibility of the Party with jurisdiction over the property to secure the required declaration from the Party with the control, if this Party is party to the 1999 Second Protocol. The Committee may help to facilitate this if required. Such an amendment could be considered to paragraph 42 of the Guidelines. 12. In its comments, Cyprus submitted definitions for sovereignty, jurisdiction and effective control, suggesting how they may be interpreted to apply to the 1999 Second Protocol as well as the issue of submission of requests for the granting of enhanced protection. Additionally, Cyprus states that it disagrees with the Secretariat s interpretations of the notions of control and jurisdiction as they do not take into consideration cases of belligerent occupation. Cyprus claims that effective control emphasises the practical exercise of jurisdiction and that there is no rule of international law that specifies the relationship between the three concepts (sovereignty, effective control and jurisdiction). Effective control of a territory is not necessarily control by a lawful authority. Cyprus states that in these cases, when a State is occupied, yet still retains its sovereignty and jurisdiction over its territory then the basic International Law Rules prevail. With regards to extraterritorial jurisdiction, Cyprus claims that jurisdiction is not necessarily derived from a legal title. There can be instances where both jurisdiction and control are exercised without a valid legal basis, and this should be reflected by the Secretariat. Furthermore, Cyprus states that according to precedent established by the European Court of Human Rights: the concept of jurisdiction under Article 1 of the Convention (ECHR) was not restricted to national territory of Contracting States. Thus Cyprus claims that jurisdiction should be understood according to the Loizidou v Turkey case, and in particular: that the concept of States jurisdiction permits: a) Extra territorial action by States in circumstances where there was effective overall control; and b) Where jurisdiction was exercised, there was then State responsibility for acts in exercise of the jurisdiction. 13. In order to apply these definitions to the 1999 Second Protocol, Cyprus interprets that the use of the terminology of jurisdiction and control was designed to maximise the opportunities to apply for enhanced protection and that the notions oblige parties to comply with the provisions of the Second Protocol even if a State Party lacks either control or jurisdiction. Cyprus states that occupation does not displace a State s international responsibility for territory under its sovereignty or jurisdiction, and the State remains internationally obligated by international law and by treaties (including the Second Protocol.) Also, Cyprus acknowledges that only the party in control may submit a declaration of non-military use, and that in cases of occupation such requests may originate from two different authors, yet raises concerns about the fact that a State party that has jurisdiction may submit a request for the granting of enhanced protection but the party with control may refuse to sign a non-military use declaration. 14. The Czech Republic is of the view that the amendments to the Guidelines for the purposes of defining the terms of jurisdiction and control within the meaning of Article 10 (c) and 11 (2) of the Second Protocol are not necessary. The Czech Republic claims that there was a consensus among States during the adoption of the Second Protocol that those terms should be interpreted in such a sense, that both the State which has the legal title and the one which controls the cultural property may submit an application for enhanced protection. 15. Thus, in the event that amendments to the Guidelines are proposed, the Czech Republic proposes the following: a) The notions of control and jurisdiction, as set forth in Articles 10 (c) and 11 (2) of the Second Protocol, need to be interpreted in accordance with the applicable rules of international law.

5 C54/17/12.COM/11 page 5 b) The request for granting of enhanced protection comes under the scope of Article 11 (2) or 11 (9) of the Second Protocol, the latter may be submitted either by the Party having jurisdiction over the cultural property or by the Party having control over this property. c) Only the Party having control over the cultural property may validly subscribe to the declaration that it will not be used for military purposes pursuant to Article 10 (c) of the Second Protocol. d) An interpretation of the notion of jurisdiction in the context of the Second Protocol would involve an assessment of whether the jurisdiction refers either to a geographical area over which a Party to the Second Protocol exerts sovereignty, or to a geographical area that does not fall under the sovereignty of a Party but over which the latter enjoys, individually or collectively with other Parties, a legal title that confers on it the authority to manage its cultural heritage. e) An interpretation of the notion of control in the context of the Second Protocol would consist of an assessment of such control with respect to the principle of effectiveness. 16. Japan is also of the view that it is not appropriate to amend the Guidelines to include interpretation of the notions of control and jurisdiction. It notes that it is possible that the request for the granting of enhanced protection and the non-military use declaration could be submitted by two different parties. However, Japan states that the Committee needs to discuss further the issue that the party having control may not be able to provide legal protection for the cultural property. 17. Mexico agrees with the Secretariat that the request for enhanced protection and the nonmilitary use declaration may originate from two different Parties. When defining jurisdiction, Mexico considers adopting a broader definition that contemplates the exercise of the rights of States Parties both in the geographical area in which they exercise their sovereignty, as well as the one where they enjoy, individually or collectively with other Parties, a legal title conferred by the authority to manage its cultural heritage. With regard to the notion of control, Mexico claims that the interpretation of control in the context of the Second Protocol coincides in the application of the principle of effectiveness ex factis ius oritur. However, Mexico submitted draft criteria that may assist in determining effective control. These are: a) The ability of the occupying power forces to allow or restrict total or partial access to said assets; b) Perform maintenance, restoration and conservation activities; c) Allow or prohibit scientific activities in the area in which they are located. 18. However Mexico insists that the ability of the occupying power to allow or restrict access to cultural property should not be understood as an authorisation to use them for military purposes. 19. Morocco is of the opinion that effective exercise of territorial sovereignty is essential in order to submit requests for the granting of enhanced protection within the framework of the Second Protocol and that only a party having such exercise may submit a non-military use declaration. It may be advisable to think about assimilating the two concepts of jurisdiction and control in case of claiming state competence. 20. The Netherlands indicated that further elaboration of the notions of control and jurisdiction are required, especially because in the case of defining jurisdiction, the Secretariat s document describes jurisdiction in terms of geographical area. With regard to the interpretation of the notion of jurisdiction The Netherlands suggests the reflection of the discussions during the drafting process of the Second Protocol. Lastly, The Netherlands claims that a clarification of the notions of jurisdiction and control in relation to a situation

6 C54/17/12.COM/11 page 6 of occupation should be included in the document, without making reference to specific situations. 21. Slovakia wishes to remain neutral concerning requests for the granting of enhanced protection and on the Guidelines on the concepts of control and jurisdiction. 22. Switzerland considers that only a party having control over the cultural property concerned may submit a non-military use declaration. With regard to Article 11 (2), the application for the granting of enhanced protection may be submitted either by the Party having jurisdiction over the cultural property or by the Party having control over the cultural property. Where the request for the grant of enhanced protection is made by the Party having control over the cultural property in question, the Committee should ensure that Registration is also desired by the Party having jurisdiction. III. PROPOSAL PUT FORWARD BY THE SECRETARIAT States are currently party to the 1999 Second Protocol. Of these 72 States, only 13, that is just over 18%, submitted their observations. Beyond the fact that they express the positions of a limited number of States Parties, an analysis of the comments received does not reveal a broad consensus with regards to any potential amendments to the Guidelines. The positions of the Parties concerned vary, and are sometimes difficult to reconcile. 24. With this in mind, the Secretariat is not in a position to propose any amendments to those paragraphs of the Guidelines relating to the notions of control and jurisdiction that are likely to be approved by the Parties or, at the very least, by the majority of them. As a result, unless the Committee indicates the direction in which future amendments to the Guidelines should be taken, the status quo would appear to be appropriate. 25. A possible centreline could be to adopt a decision where the Secretariat will be requested to draft modifications to the Guidelines, once a consensus is reached among Committee Members on the definitions of the notions of control and jurisdiction. 26. The Committee may wish to adopt the following decision: DRAFT DECISION 12.COM 11 The Committee, 1. Having examined document CLT-17/12.COM/11; 2. Recalling its Decision 9.COM 6 10.COM 3 and 11.COM 10; 3. Thanks the Parties and the Secretariat for their comments during the consultation phase; 4. Notes that the definitions provided so far on the notions of control and jurisdiction as set forth in Articles 10 (c) and 11 (2) of the Second Protocol need to be further developed; 5. Invites the Secretariat to propose, after the reaching of a consensus among the States Parties on the definitions of control and jurisdiction as appropriate, amendments of the Guidelines for Implementation of the Second Protocol (1999), in particular of Section III, A paragraph 42 in order to cover the maximum cases of requests for the granting of enhanced protection including cases of occupation, and to report to it at its next thirteenth meeting.