Tag Archive | "history"

Loss of Culture: Can laws prevent the destruction of antiquities?  

“Without memory, there is no culture. Without memory, there would be no civilization, no society, no future.” – Elie Wiesel

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ISIS fighters destroy antiquities in Iraq. Courtesy of Chicago Tonight. hicagotonight.wttw.com/2015/03/10/destruction-antiquities-iraq

Over the course of human history, great and mighty civilizations have emerged, such as the Romans and Aztecs,
only to fall to plague, pestilence or conquest. However, the lasting effects of these civilizations are the archaeological sites and artifacts left behind. Artifacts, like the Rosetta Stone, the Terra Cotta Army, and the David, and ancient ruins, like Machu Picchu, the Coliseum, and the Great Wall of China, give the world insight into how ancient civilizations lived, and contribute to the future development of the human race. Through the discovery and preservation of artifacts such as these, the human race can continue to preserve ancient cultures and ensure that they may help shape the future of humanity.

Recent world events show a lack of regard for preserving these jewels of the past in the 21st century.  For example, the world was recently shocked by Islamic State’s destruction of ancient artifacts and archaeological sites in Syria and Iraq. This is not unprecedented, however, as this type of destruction happens all over the world; not just in the Middle East, but in South America, and China, and is attributable to numerous causes, including urban development and war.

The international community has attempted to ensure the integrity of the world’s cultural sites through the creation of the United Nations Educational, Scientific, and Cultural Organization and two international treaties: the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention Concerning the Protection of the World Culture and Natural Heritage, also knows the 1972 World Heritage Convention, created the World Heritage List allowing for archeological sites of “outstanding universal value” to be placed on a list that tries to keep the sites protected. For example, the Statute of Liberty, the Tower of London, and the city of Venice are just some of the sites on the World Heritage List. The World Heritage List also includes cites that are in danger, such as the Old City of Jerusalem and its Walls.

Although these safe guards ensure archaeological sites and artifacts are recognized, and the conventions include sanctions which deter member States from breaching the conventions, it is the sovereign duty of each State to ensure that its archeological sites are protected. It is also the duty of each State to bring charges against parties that destroy or harm archaeological sites. In some cases, when a State does nothing to protect a site, or does not punish parties who destroy artifacts, the archeological artifact can be lost forever. Even though state parties to the above-mentioned treaties agree to protect their antiquities, the international community does not enforce its sanctions provisions against states who fail to protect. As of yet, no State has been brought before the International Court of Justice for a lack of protection. For example, China did little to protect artifacts when construction for an IKEA store unearthed an ancient tomb. Although China imposes a fine on companies who destroying ancient tombs, it does not enforce these law strongly, and as a result, an irreplaceable piece of history has been lost. The larger issue is that China was not brought before the ICJ for failure to protect in this case.

The larger issue is that state sovereignty protects most state decisions regarding antiquities. Also, under the treaty, only a State Party may bring a suit against another State Party for violation of a treaty or convention provision. Thus, the principally affected shareholders, like the existing Mayan populations in Belize whose ancestor’s pyramids were destroyed, have no avenue by which to make the State answer for its lack of protection. In most cases, States are able to pressure principally affected stakeholders into forgoing a public fight, likely due to lack of enforcement by the international community. For example, the 1972 World Heritage Convention only asks Party States to “endeavor, in so far as possible” to protect the culture of the State. These archeological sites and artifacts are the backbone of ancient civilizations, and in essence are owned by the people of the State and the existing decedents of those civilizations. Yet, principally affected stakeholder have no recourse to stop the destruction.

So what can be done?

A model that States can follow to ensure preservation of archeological sites and artifacts is that of the United States. The United States strives to ensure the rights to cultural sites and artifacts are given to decedents of the creating civilization. The Native American Graves Protection and Repatriation Act of November 16, 1990 gives the right of ownership over human remains and sacred objects to Native American tribes, after certain requirements are met, such as showing a relationship of lineal descent. Likewise, the Archaeological Resources Protection Act of 1979 protects the archaeological sites and resources of Native American lands. If other States follow a similar model as that of the United States, then the archeological sites and artifacts have a better chance of survival. Even if a State does everything to try and curb the destruction of archeological sites and artifacts, once destruction has occurred, the history, the memory, the civilizations are lost forever.

Teresa Milligan is a 2L law student at the University of Denver Sturm College of Law and is Editor in Chief for the Denver Journal of International Law and Policy.

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Treaty of Nanjing

Chinese Perspectives Part 2: History

To understand anything about the contemporary Chinese perspective on international law, one must have a cursory understanding of China’s history of international relations. In this regard, Chinese history can be divided into three distinct periods: 1842 to 1949, 1949 to 1978, and 1978 to the present.

Treaty of Nanjing

Treaty of Nanjing

The first period begins on August 29, 1842 with the coerced signing of the Treaty of Nanjing and ends on October 1, 1949 with the creation of the People’s Republic of China. Professor Wang described this period as “the unequal treaty regime” because it was characterized by China signing treaties with imperial powers while under duress; treaties which were highly detrimental to China’s own interests.

 

The most egregious example from this period came in the form of the infamous Twenty-one Demands made by Japan upon China. In 1915, the Qing Dynasty had just been overthrown in the Xinhai Revolution, leaving China in a politically vulnerable state of transition. At the same time, Japan had recently emerged as an imperialist power after its victories in the First Sino-Japanese War and the Russo-Japanese War. With an eye towards “gobbling up the whole of China, ” Japan occupied the Chinese province of Shangdong and presented the Twenty-one Demands to the President of the New Republic of China, along with an ultimatum that the Chinese president accede to the demands or Japan would retaliate with the use of force. Accordingly, President Yuan Shikai signed this treaty of “national betrayal and humiliation ” which, inter alia: recognized Japan’s predominant position in Shangdong, Manchuria, and Inner Mongolia, provided for the joint Japanese-Chinese operation of China’s iron and steel industries, and mandated control by Japan of China’s political, financial, and police administrations through the imposition of Japanese officials within Chinese administrative structures.

The Twenty-one Demands are representative of many of the treaties China signed during the unequal treaty regime in that they were between China and an imperialist power, signed under duress, accompanied by a threat of force, and contained provisions that seriously impaired China’s sovereign integrity. Chen Tiqiang explains the paradigm by stating, “The whole system of international law, its principles and its rules, were considered operative essentially only in relations among Western powers, the co-called ‘civilized’ or ‘Christian’ countries, while China was not a ‘civilized’ country.”

The second pertinent period began on October 1, 1949 with the founding of the PRC and ended in 1978 when China began its process of “opening up.” During this period, China was actively precluded from participation in the development of international law. Western powers simply did not regard the People’s Republic of China as a legitimate state, such that it could be a part of the international community. As a result, the most populous country in the world was not admitted to the United Nations until October 25, 1971.

During this second period, China developed its own identity relative to the world and began the process of institutionalizing international law in society. Because of its unique situation, China established what could be described as a dual identity during the Cold War period. On the one hand, China found an obvious ally in the Eastern Bloc due to a shared political and economic ideology. On the other hand, China identified with developing countries due to their shared history and troubles. With this identity in mind, China began inviting legal scholars to China to develop a system of diplomacy in accordance with international legal principles. China sought to conduct its international affairs using the principles of equality, mutual benefit, and mutual respect for territorial integrity and sovereignty.

Only during the final period, starting in 1978 when China opened up economically and continuing to the present, did it become a full member of the international community. Since then, it has become party to over 300 multilateral conventions and is now active in the creation of international law in all fields. In 2009, the Chinese Society of International Law conducted a study which found that over 600 universities offer courses in international law, 64 universities offer masters programs, and 16 universities offer doctoral programs. The importance placed on international law in the modern Chinese educational system shows that China takes the development of international law seriously and sees itself as an important player in the process.

In short, China has gone from being a victim of international law to an outside observer of international law and is now an active participant in international law. Contrasting this history with that of the Western powers, who have been active and equal participants in the development of international law since its inception, makes it easy to understand why a pronounced difference in perspectives persists. While an appreciation for Chinese history is essential in understanding China’s position on all areas of international law, it is particularly relevant to the nation’s position on the concept of sovereignty. The next installment of this series will focus on the importance China places on state sovereignty.

Posted in 1TVFA Posts, 2Featured Articles, Jon BellishComments (0)


University of Denver Sturm College of Law

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