The second installment of a two-part policy brief from Al-Shabaka
, the Palestinian Policy Network. The first part can be found here.
Al-Shabaka is an independent non-profit organization whose mission is to educate and foster public debate on Palestinian human rights and self-determination within the framework of international law.
The policy brief is co-authored by Valentina Azarov and Nidal Sliman.
Palestine gained membership of UNESCO in 2011 but its representatives have not yet made best use of this new status due in part to pressure by Israel and the United States. Al-Shabaka Policy Member Nidal Sliman and Guest Author Valentina Azarov review the value of UNESCO in the quest to fulfill Palestinian rights and to apply the relevant international law instruments to the case of Palestine.
They make a compelling argument that Palestine can gain significant practical advantages from its UNESCO membership, including reasserting sovereignty over its land and sea and obliging third states to hold Israel accountable for its obligations.
Palestine's Duty to Protect Cultural Heritage
Statehood status and accession to international organizations and treaties can afford protection for rights, but they also entail obligations on the part of the state party. Thus, Palestine is required to modify its national legal system and relevant institutions in accordance with its obligations under the UNESCO Constitution and the eight conventions it has ratified.
The legislation currently in force in the OPT – composed of Ottoman, British mandatory, Jordanian (West Bank), Egyptian (Gaza Strip), Israeli, and Palestinian Authority (PA) laws (Legislative Council laws, Presidential Decrees, Council of Ministers regulations, and ministerial directives) – does not adequately protect Palestinian cultural heritage. It is fragmented, subject to Israel’s whims and does not meet international standards. For example, the 1929 version of the Antiquities Ordinance No. 51 that is still in force in the Gaza Strip, and the 1966 version applicable in the West Bank, only deal with tangible cultural heritage.
The Palestinian Basic Law obliges the President to "be faithful" to the homeland's "national heritage." Yet the role and mandates of the bodies officially responsible - the PA Ministry of Tourism and Antiquities and the Ministry of Culture, as well as the Palestine Liberation Organization National Commission for Education, Culture and Science – are not well defined, further impeding national capacity to protect national heritage.
And, of course, Israel restricts their area of operations: Israeli military orders enforceable in Area C of the West Bank vest all regulatory powers regarding cultural property in a military officer. In addition, Israel has extended the application of its domestic law to occupied East Jerusalem and declared all undiscovered artifacts in the city as its own in flagrant violation of international law. Nevertheless, as argued at the end of this section, it is important that the Palestinian authorities pass the necessary legislation in line with international standards: This will make it harder for Israel to continue to illegally remove Palestinian heritage from the OPT, and will enable the Palestinian authorities to pursue legal actions in third countries to recover such cultural properties.
With technical assistance from UNESCO, the PA Ministry of Tourism and Antiquities renewed the initiative to draft modern legislation in 2011. In 2012, two draft laws for the protection of tangible and intangible cultural heritage were prepared, in consultation with public and private stakeholders, which took account of Palestine’s international obligations under UNESCO’s Constitution and treaties, as well as international best practices, including model laws prepared by the World Intellectual Property Organization and the Arab League.
The main provisions of the 2012 draft law on tangible cultural heritage include the principle of public ownership of cultural heritage, a ban on the sale or transfer of such properties, and a mechanism enabling the local authorities to reclaim cultural properties illegally removed from occupied territory. The draft law itself obliges the state to seek ratification of international conventions aimed at protecting cultural heritage. However, the capacity and resources for the management and preservation of sites in Palestine remain limited, resulting in a backlog in documentation and preservation. The draft law seeks to address this state of affairs by establishing an independent Authority to preserve, protect and develop cultural heritage in Palestine.
The 2012 draft law concerning intangible cultural heritage, which includes Palestinian folk dance, embroidery, and hikaye
(a narrative expression practiced by women), among others, addresses the measures for safeguarding such heritage and defines the criminal offenses that can be perpetrated against it.
It is unfortunate that, given the Palestinian Legislative Council’s inactivity since 2007, due to Israeli restrictions as well as internal Palestinian politics, the laws' formal enactment is unlikely to take place in the foreseeable future. Nor have the laws been submitted to the PA Council of Ministers for review and endorsement before submission to the President to issue a decree as he has done in other cases.
Palestine's obligations under international treaty law, in addition to the urgent practical need to enhance protection of Palestinian cultural heritage in the face of threats, should be incentives to ensure conformity of Palestine’s own legislation and practice to international standards. The draft laws could, if enacted, significantly enhance Palestine’s national legal framework, deter domestic violations and further Palestine’s standing in third countries and international institutions to contest, prevent, and take measures against unlawful Israeli conduct.
For example, in a recent judgment by Israel's High Court
, a defendant in a case involving illegal removal of cultural property from the OPT, claimed that since the law currently in force in the OPT does not declare all undiscovered cultural property to be that of the state (which is the case under Israeli law), it was the responsibility of the state prosecutor to prove that the cultural properties had been stolen. The Court rejected this argument; at the same time, it also ignored international law banning the removal of cultural property from the OPT. The issue only proves the urgency of enacting a strong unequivocal Palestinian law that declares all cultural property found in Palestine to be that of the state.
Conclusions and Recommendations
UNESCO conventions and instruments offer a framework of control and protection for Palestine's cultural heritage, as well as access to international cooperation for the protection of cultural heritage, based on codified law. By strictly limiting the role of an occupying power in relation to excavations and use of cultural property in the occupied territory, the 1954 Hague Convention, amongst other instruments, protects the rights of the legitimate sovereign and its people over their cultural property and heritage during armed conflict.
With its newly-acquired UNESCO membership and its ability to accede to further treaties, Palestine today is better-equipped than ever before to seek the restitution of illicitly-removed or traded cultural properties, to assert control over its underwater heritage in the exclusive economic zone and territorial waters off Gaza, and to include national sites on UNESCO’s World Heritage List, removing them from the political negotiations agenda by securing its national sovereignty over them. Palestine is also better positioned to explore the potential of litigation and other legal measures in foreign domestic jurisdictions to facilitate the return of artifacts and bring Israeli officials involved in unlawful excavations to justice.
Palestine can claim its rights by engaging with UNESCO's institutions as well as seeking to compel third states and international actors to pressure Israel to comply with its UNESCO obligations. In light of Israel’s record of unlawful acts in this domain (and others), any third state relations with Israel should be structured in a manner that guarantees Israel’s good-faith compliance with international law, to ensure the ability of the third state or international actor, such as the European Union, to respect its own international and domestic legal obligations.
In turn, Palestine should demonstrate its own good faith commitment to UNESCO's protection framework by adopting the necessary legal and administrative measures in its national law, and seeking their enforcement, to the extent possible, as long as Israel continues to maintain principal control over Palestinian territory. The very inability of the local Palestinian institutions to enforce their national laws and policies demonstrates Israel’s violations of its international legal obligations, to say nothing of its theft, damage and destruction of Palestinian heritage.
It is in Palestine’s best interest to comply with the international legal obligations that come with membership, as well as consider its options for promoting them through UNESCO’s international fora and in the domestic systems of third states, whereby a notification procedure should be agreed in the context of UNESCO to facilitate return of cultural property to their geographic origins and context.
Adequate legal protection of cultural heritage on the national level will support Palestine’s efforts to reclaim possession of stolen cultural properties and further its efforts to regain control over its territory. Once Palestinian draft laws are agreed and finalized in consultation with all stakeholders, including the private sector and civil society, they should be taken through the existing PA legislative process. In parallel, a Palestinian inventory of documentation on transferred artifacts and site excavations should be devised.
Local and international civil society organizations should be more vocal in calling upon the Palestinian Government to take appropriate measures to protect cultural heritage in Palestine by adopting the draft laws, and strengthening national institutions entrusted with safeguarding cultural heritage in Palestine. Civil society organizations can also play an important role in raising awareness domestically and internationally on the need to separate the issue of protecting cultural heritage from the politics of the "peace process."
Ultimately, the effective protection of Palestine's cultural and natural heritage can only be attained by reconnecting the Palestinian people with that heritage. The proper utilization of the UNESCO framework, both nationally and internationally, is a critical step towards Palestine’s ability to gain control over its cultural heritage by ensuring that it is managed and governed by its sovereign law, in accordance with international standards.