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State Responsibility for the Destruction of Cultural Property
German Yearbook of International Law, Vol. 61 (2018), Iss. 1 : pp. 295–345
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Patrizia Vigni, Senior Lecturer and Researcher of Public International Law at the Department of Business and Legal Studies, University of Siena, Italy.
- Degree in Law (University of Siena, Italy), Magister Juris (University of Oxford, United Kingdom), Doctorate in International Law (University of Siena, Italy).
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Abstract
International cultural property law has significantly developed at the level of standard-setting and to some extent at the level of ‘secondary rules’ concerning the individual criminal responsibility for the damage and destruction of cultural objects (in particular when it is intentional). But a gap remains as to State responsibility, an issue carefully shunned in treaties concerning the conservation of cultural property (especially during peacetime). This article addresses the question of how this lacuna can be filled by the application of general principles governing State responsibility for internationally wrongful acts. The analysis highlights that in this field there is a constant interplay between the conduct of States and private actors, with the consequent need to devise some form of shared responsibility for cultural offences, especially when they affect properties of outstanding value. Although no peremptory norm has yet emerged in this field, practice has shown the tendency to make a distinction between ordinary and serious breaches entailing international crimes. This affects the question of who may invoke the responsibility for destruction of cultural objects of great importance to humanity, and raises the question of the applicability of the ‘responsibility to protect’ doctrine to prevent and suppress crimes against cultural property.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Patrizia Vigni: State Responsibility for the Destruction of Cultural Property | 1 | ||
| Abstract | 1 | ||
| I. Introduction | 1 | ||
| II. The Substantive Aspects of State Responsibility for Wrongful Acts Resulting in the Destruction of Cultural Property | 6 | ||
| A. Defining Cultural Property | 6 | ||
| B. Illicit Conducts Entailing the Destruction of Cultural Property | 1 | ||
| 1. General Remarks | 1 | ||
| 2. The Relevance of Time and Place | 1 | ||
| 3. The Intentional Destruction of Cultural Property | 1 | ||
| 4. Military Necessity | 2 | ||
| 5. The Element of Damage | 2 | ||
| 6. Conclusive Remarks | 2 | ||
| III. The Attribution of Wrongful Conducts Entailing the Destruction of Cultural Property to States | 2 | ||
| A. State Responsibility for the Wrongful Conducts of State Organs | 2 | ||
| B. State Responsibility Arising from the Wrongful Conducts of Private Persons | 2 | ||
| C. The Attribution of Responsibility for the Illicit Conducts of Insurrectional Movements | 3 | ||
| D. Joint Responsibility of States | 3 | ||
| IV. Circumstances Precluding State Responsibility | 3 | ||
| V. Consequences Arising from State Responsibility | 3 | ||
| A. Invocation of Responsibility and Injured States | 3 | ||
| B. The Right of a State Other than the Injured State to Invoke Responsibility | 4 | ||
| C. Reparation for Damage to the Cultural Property | 4 | ||
| D. Countermeasures as Response to State Wrongful Acts | 4 | ||
| VI. Conclusions | 5 |