Human rights law – the granting of specific rights and freedoms to every human individual – is one of the most important and dynamic areas of modern international law.
Applicable in times of both peace and armed conflict (see para 106, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, International Court of Justice), human rights are universal, as they are based on universal values shared around the entire world. They are indivisible, interrelated and interdependent, meaning that one right cannot be guaranteed without considering others.
Every human right imposes three duties on a State bound by its rules:
- the duty to respect – a State must refrain from infringing upon a human right
- the duty to protect – a State must take measures to prevent third parties from infringing upon a human right
- the duty to fulfill – a State must allocate sufficient resources (e.g. funding or personnel) to enable a human right to prosper
These duties generally apply within the territory of a State Party to a human rights treaty, but extra-territorial application is, in principle, widely accepted and set down in the text of many treaties for cases where a State exercises its jurisdiction abroad.
Traditionally this has meant effective control over the territory of one State by another, but in modern international law, according to No. 9 of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, this is understood to extend to
- “acts or omissions [which] bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory”, or
- “situations in which the State is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially”.
The International Bill of Rights
Some of the key sources of substantive international human rights law are collectively known as ‘The International Bill of Rights’ and comprise the non-binding Universal Declaration of Human Rights (UDHR), the legally binding International Covenant on Economic, Social and Cultural Rights (ICESCR) and the legally binding International Covenant on Civil and Political Rights (ICCPR).
It is worth noting that all rights enshrined in the ICESCR are subject to the principle of progressive realisation, Article 2 (1) ICESCR, where a State is not required to achieve the full enjoyment of the human right immediately, but must, to the extent of its maximum available resources (which includes those resources reasonably available through international cooperation), work to achieve the Covenant’s ideals step-by-step. Such steps must be “deliberate, concrete and targeted as clearly as possible towards meeting obligations recognized in the Covenant” (see para 2 of CESCR General Comment No. 3).
Progressive realisation implies the principle of non-retrogression (see para 9 of CESCR General Comment No. 3) which obliges the State to not reduce the standard that has been reached, except with the most careful of consideration and only in cases of severe economic difficulties, war or force majeure.
Despite these limitations, every right is guaranteed a minimum standard, the minimum core content (see para 10 of CESCR General Comment No. 3), a threshold below which the state of enjoyment of a human right must never fall. The principle of non-discrimination as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status is always applicable, Article 2 (2) ICESCR.
Rights guaranteed in the ICCPR are not limited by the principle of progressive realisation. The principle of non-discrimination applies as above.
Specific human rights relevant to cultural heritage
The right to take part in cultural life, Article 15 (1)(a) ICESCR and Article 27 UDHR, guarantees every human being the right to be part of a culture, to access the expressions of a culture and to contribute to a culture (para 15 of CESCR General Comment N. 21). However, “taking part” goes beyond mere access and a State’s duty to respect. Access alone is worth little when nothing remains that is worthy of access. The full dimension of Article 15 (1)(a) ICESCR also includes the obligation to preserve and protect expressions of culture, knowledge and ideas from damage and destruction by third-party actors (duty to protect) and the obligation to provide adequate resources to preserve and restore cultural heritage for current and future generations (duty to fulfill).
The application of Article 15 (1)(a) ICESCR is clear in that it binds the host country with respect to cultural heritage located in its territory. However, the scope of its obligations goes beyond that. Located in Iraq are some of the richest tangible expressions of world culture. Uruk, the first city known to humankind, was built in Iraq (ancient Mesopotamia). The Code of Hammurabi, one of the oldest law codes of the world, was also created in Iraq. The remains of Babylon, reputed for its hanging gardens, wonder of the ancient world, are located in Iraq. Even sites and artifacts of less fame are important, for to echo the Preamble of the 1954 Hague Convention: “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”.
Where this common heritage of humankind is concerned, every human being on the planet has a right to access cultural expressions of the world’s cultures and world culture and a right to their preservation and protection. Correspondingly, every State Party to ICESCR in the world is bound by Article 15(1)(1) ICESCR to work, through international cooperation and technical assistance, towards protecting, preserving and restoring the common heritage of humanity according to its extraterritorial obligations, including those sites and objects located in Iraq. The same arguments apply to the equally urgent and distressing situation in the Syrian Arab Republic.
Deeply intertwined with Article 15 (1)(a) ICESCR is the right to education, set down in Article 13 (1) ICESCR and Article 26 UDHR. To be part of a culture and to access it, one must first learn about it. Education is the fundamental stepping stone on the way to developing the human personality (see para 4 of CESCR General Comment No. 13).
Walking the streets of Uruk does not grant understanding in itself. The ‘Epic of Gilgamesh’ was lost in time prior to academic achievements which enabled its translation. Transmitting the understanding of cultures from one generation to the next requires continual research, learning and education, from elementary schools to universities. Key to access is not the mere transmission of cultural knowledge itself, but also the tools to accessing, harnessing and expanding it, such as language, research and excavation skills, conservation expertise and organizational know-how. Universities and other centers of higher learning have an obligation to share their knowledge and empower other institutions around the world, especially when their research interests bring them to Iraq and they benefit from the rich cultural heritage of ancient Mesopotamia.
Article 18 (1) ICCPR and Article 18 UDHR guarantee the right to freedom of religion or belief, one of the oldest human rights in existence. An essential part of that freedom is the right to manifest one’s religion or belief in public or in private (forum externum), including the building and use of places of worship and religious expression (see para 4 of CCPR General Comment No. 22). In Iraq, militant groups have been violating this freedom by intentionally targeting and destroying structures and sites of religious significance in an attempt to erase any trace of the beliefs of others, be they Muslim, Christian, Yazidi or anything else. Promotion of one’s own understanding of religion at the cost of all others infringes freedom of religion, for one’s own freedom ends where that of others begins.
Heritage sites, museums and other physical centers of cultural heritage can be a major economic factor, especially in underdeveloped regions where they represent an important source of gainful employment both directly, for researchers, site guards, administrators and educators, and indirectly, via the international research teams and tourism they attract in more peaceful times, ensuring the right to an adequate standard of living, Article 11 (1) ICESCR and Article 25 (1) UDHR.
Human rights compliance is monitored by a wide range of international bodies and institutions, most notably the UN Human Rights Council and the UN Treaty Bodies, but even the UN Security Council has taken important steps and acknowledged its own important role in protecting human rights and fundamental freedoms.
The United Nations Human Rights Council is the premier human rights body in the world. It serves as a forum for formulating international opinion on human rights issues and sets standards in the development of international human rights law. It monitors human rights compliance in every State of the world through its Universal Periodic Review mechanism and appoints individuals of outstanding moral character to serve as Special Rapporteurs tasked with monitoring and analysing specific human rights issues.
- Joint Statement on cultural rights and the protection of cultural heritage, supported by 145 States (March 2016)
The UN Special Rapporteur in the field of cultural rights, Professor Karima Bennoune, has dedicated the work of her mandate in 2016 to countering the destruction of cultural heritage. She has published two thematic reports on the issue, including a wealth of recommendations:
- Mapping of cultural right and preliminary views on destruction of cultural heritage as a violation of human rights (Human Rights Council, March 2016)
- Intentional destruction of cultural heritage (General Assembly, October 2016)
Her predecessor, Ms. Farida Shaheed previously published two important reports outlining the general content of cultural rights and their relation to cultural heritage:
- First Report of the independent expert in the field of cultural rights (Human Rights Council, March 2010)
- The right of access to and enjoyment of cultural heritage (Human Rights Council, March 2011)
The UN Treaty Bodies are monitoring mechanisms composed of independent experts created by each of the core human rights treaties, except for the ICESCR (whose Treaty body has its legal basis in an a UN ECOSOC resolution, but functions just like any of the other Treaty bodies). Treaty bodies may, inter alia, a) receive and consider State reports, b) receive and consider individual complaints and c) publish General Comments on the application of a Convention. They aim to advance the enjoyment of human rights through constructive dialogue with State Parties and quasi-judicial consideration of individual cases.
The UN Security Council first acknowledged the link between human rights and international peace and security in 1991 when it condemned violations of human rights in Iraq in Resolution 688. It has since expanded on this initial pronouncement and serious human rights violations are regularly brought before the Security Council. Concerning the cultural heritage of Iraq, the following resolutions are noteworthy:
- In 2003, acting under Chapter VII of the UN Charter, it adopted Resolution 1483, recognising the importance of the archaeological, historical, cultural and religious heritage of Iraq (Preamble) and decided to require all UN Member States to combat the illegal trade in antiquities looted from Iraq (para 7).
- In 2014, acting under Chapter VII of the UN Charter, it adopted Resolution 2170, condemning mass atrocities, the destruction of cultural heritage and violation of social, economic and cultural human rights (para 2) and demanding action to counter Daesh (para 6).
- In 2015 it adopted Resolution 2199, condemning the destruction of cultural heritage and legally binding UN Member States under Chapter VII of the UN Charter to prevent the illegal trade in Iraqi and Syrian cultural property (paras 15 to 17).
Resolutions adopted by the UN Security Council under Chapter VII of the UN Charter are legally binding on all Member States of the United Nations as per Articles 48 and 49 UN Charter. Other resolutions are binding under Article 25 UN Charter.