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§ 2.4. Additional report II (1999) to the Convention «About protection of cultural values to a confrontation case» 1954

Report 1999 represents an embodiment of ideas of revision otyodelnyh "weak" positions of the convention of 1954 which have been revealed by practice of the states, and also necessity of the coordination and harmonisation of "old" positions of the Convention of 1954 with new positions mezhdunarodyonogo humanitarian law in the field of protection of cultural values, and also technical development of modern war.

For the first time the idea of revision of the Convention of 1954 has sounded in the early seventies of the XX-th century, after the conflict beginning in the Near East in which course weaknesses of separate positions of the Convention were distinctly showed. Such obyorazom, to execute item 8 of the resolution 4.3.1 accepted on 83 sessions, IspolniYOtelnyj UNESCO council has asked the General director R.Meyer proyokonsultirovatsja with the governments of the countries-participants of the Convention of 1954 otyonositelno expediency of convocation in the short term High dogovarivajuyoshchihsja the Parties for studying «means of specification of value and increase efyofektivnosti the mentioned Convention». To execute given decision GeneYOralnyj the director has directed to the governments of the countries-participants of the Convention pisyomo with the request to express concerning expediency of convocation such soyoveshchanija (UNESCO DG/6/A/2620 Document). All provided procedure was spent according to Convention item 27 and as was not polucheyono the consent from 1/5 parts of the governments-participants of the Convention, General diyorektor has considered, that convocation at that time was неуместным2.

Again the idea of revision and development of separate positions of the Convention of 1954 at official international level has been sounded during a meeting of legal experts in Vienna on October, 17-19th, 1983, the offer zayokljuchalos in preparation of the additional report, which in advance preyodusmatrival the measures, which Conventions facilitating application in ekstren -

1 Tanja G. J. The decree. Soch. - the River 124.

2 Document of UNESCO. - 87 ЕХ/14.

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nyh cases. However this judgement has not met support from all experts, some of them insisted that, first of all, neobhodiyomo to formulate a series of recommendations which would provide to the countries-participants search of decisions of an exit from the difficult situations arising during application of the Convention 1954 1.

Process of revision of the Convention has received practical development in the early nineties of the XX-th century, after the beginning of known conflicts in Iraq and the former Yugoslavia when weaknesses otdelyonyh positions of the Convention of 1954 were most distinctly showed

According to the expert of UNESCO concerning protection cultural tsenyonostej J.Hladika in case of a confrontation these weaknesses were:

• the Convention has been calculated on application in conditions klassicheyo skoj wars between two and more countries, regulating mutual relations aryo mii throughout long time, however the majority of conflicts from the end of "Cold" war had not international character;

• application of system of Powers-patronesses and system GeneYo ralnogo the commissioner on cultural values became impossible for the reason that the Convention of 1954 was not universally applicable (not all goyo sudarstva in it participate);

• the monitoring system is difficult for application during time kratkovremenyo nyh conflicts, the monitoring system is not calculated on application during conflicts of not international character;

• the Convention of 1954 did not contain sanctions for its infringement that did not give possibility to count on its effective application;

• at last, the intergovernmental body, called to watch its application has not been created.

1 Document of UNESCO. - CLT-83/CONF.641/1. - item 38 and 39.

2 Hladik J. The review process of the 1954 Hague convention for the protection of cultural property in the event of armed conflict and its impact on international humanitarian law/J. Hladik//Yearbook of International Humanitarian Law.-1998.-Vol. 1.-P. 313-314.

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In an international law science very many works in which all course peyoresmotra positions of the Convention 1954 1 reveals have been devoted process of revision of the Convention of 1954.

In 1991 at the initiative of UNESCO and the governments of the Netherlands and ItaYOlii the commission has been created, and also fund, whose primary goal was studying of possible ways of improvement of the Convention of 1954 the Given work has been charged the professor P.Bojlanu who доклад2 has been published in 1993 The professor has offered following possible improvements of the Convention of 1954: 1) replacement of existing concept of cultural values, 2) acceptance of means for the permission of intergovernmental disputes concerning Convention application, 3) refusal of concept of military necessity, 4) expansion konyotseptsii special protection, 5) an establishment of protection for natural places in the separate convention 6) revision of an appointment procedure General koyomissara on cultural values, 7) establishment of the intergovernmental committee simulated on similarity of what is provided the Game-ventsej of UNESCO 1972 3.

On November, 13th, 1993 General conference has accepted the resolution which recognised necessity of urgent improvement of positions of the Convention. After this a series of meetings which have constituted process pereyosmotra Conventions of 1954 has followed

1 Marhic G. Le protocole de 1999 additionel a la convention de 1954 sur la protection des biens culturels en cas de conflit arme "/ G. Marhic//Un sidde droit international humanitaire.-Bruxelles: Bruylant. - 2001. - P. 43 - 54., Symonides J. Towards the amelioration of the protection of cultural property in times of armed conflict: recent UNESCO initiatives concerning the 1954 Hague convention / J. Symonidies//He" ctor gros espiell amigorum liber.

1997. Vol II. - P. 1533 - 1547., Desch T. The second protocol to the 1954 Hague convention for the protection of cultural property in the event of armed conflict / T. Desch//Yearbook of International Humanitarian law. - 1999. - Vol. 2. - P. 63 - 90., Henckaerts J-M. New rules for the protection of cultural property in armed conflict / J - M. Haenckaerts//IRRC.-1999.-Vol. 835 - 620., GiolaA. The development of international law relating to the protection of cultural property in the event of armed conflict: the second protocol to the 1954 Hague convention / L Giola//Italian Yearbook of International Law. - 2001. - Vol XI. - P. 25 - 57., Desch T. The convention for the protection of cultural property in the event of armed conflict and its reversion / T. DESCH. - Humanitares VOlkerrecht. -

1998. - Vol. 11. - P. 103 et seq., HIadik J. The decree. soch. - P. 313 - 322., Clement E. Le reexamen de la convention de la Haye de 1954 pour la protection des biens culturels en cas de conflit arme / E. Clement//International Legal Issues Arising under the United Nations Dccads of International Law. - The Hague/Boston/London: Martinus Nijhoff Publishers, 1993.-P. 133-150.

2 Document of UNESCO. - CLT 93AVS/12.

3 Symonides J. The decree. soch. - P. 1536-1537.

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The first meeting of non-governmental experts has occurred in the July, 1993, the second in Lausvelte (Netherlands) in February, 1994 which has developed the Project under the name «lausveltstky the document», the third - in November-December, 1994 in Paris. After these meetings have followed: the meeting of the states-participants in 1995, then the fourth meeting of non-governmental experts in March, 1997 on which has been developed reviewed «lausveltsky doyokument», in November, 1997 has passed the third meeting of the states-participants (all meetings passed in Paris), at last, in May, 1998 in Vienna there has passed zakljuchiyotelnaja a meeting of intergovernmental experts on which the definitive project which after little changes has been signed at a final fourth meeting of the states-participants of the Convention in March, 1999 has been approved

Apparently from the given example, revision process was stretched praktiyocheski for 10 years, as to revision procedure the preference has been given enough a bulky and extensive series of meetings, instead of sushchestvoyovavshej before practice of acceptance of amendments at diplomatic conferences.

Before to start the analysis of the Most additional report II (1999), in our opinion, it is necessary to pay attention to mutual relation between it and the Convention of 1954

Originally, during process of revision of the Convention there were some variants: acceptance of amendments to the Convention, acceptance of the new convention, acceptance of the report serving to the purposes of revision of the Convention, and an essence chetyovertoj positions which dominated, consisted in that new doyopolnitelnyj the report was not included into the text as the reservation, but supplemented and supported it only concerning those states which will sign it.

In the latter case for a basis were Additional reports are taken (1977) to the Geneva conventions of 1949 Thus, each effort svoyodilos improving a protective mode without change of text KonYOventsii, and at the same time to be assured, that each position of the report actually is additional.

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It was necessary to refuse the first position, because any amendment demanded unanimous acceptance by all parties to the convention though viryotualno it was possible, position has been denied, in spite of the fact that some countries have supported it. The second position demanded essential and long negotiations, creation of two otdelyonyh systems could become result of that.

The third position, not looking that it was supported by much depuyotatami, also as a result was отклонена1.

For that moment in the Convention procedure pereyosmotra (item Z item 39), in that kind in which it was kodifitsirovana item 41 of the Viennese Convention of 1969 «About international treaties», without convocation konfeyorentsii has already been designated. However to take advantage of the procedure provided by the Convention of 1954 during working out of Report 1999 it was not possible, as only 75 from 95 countries-participants of the contract were present at conference and only two countries (Israel and France) have declared that is necessary to adhere to the procedure provided by item 39 of the Convention of 1954

As the purpose of Additional report II (1999) was not exclusively updating of relations between the Convention parties, and there was an improvement of quality and improvements of the Convention 1954 g, Report II (1999) should be considered additional de facto, and accepted resheyonie breaking position of the Hague convention of 1954

However some scientists, in particular A.Dzhiola, evading from odnoyoznachnogo the answer, notice, that actually separate positions of the Report are de facto additional, and in any case Report 1999 is formulated in such a manner that is not capable to affect a position of the states which are the party of the Convention of 1954, its problem not to belittle, and to improve positions of the Convention of 1954 Thereupon the reference on DopolnitelYOnye reports 1977 as an example would be not absolutely useful, as

1 Henckarets J-M. The decree. soch. - the river 595 - 596.

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Unlike the Convention of 1954 the Geneva conventions of 1949 did not contain any procedure of their revision.

In case of conflict occurrence between the countries which are participants as Conventions of 1954, and Additional report II (1999), according to и.2 item Z of Report 1999, new rules will be primeyonjatsja in their mutual relations, and concerning those who is not participants of the Report old rules while the last agree to apply the given rules will be applied. However it definitively does not solve voyoprosa as Report positions are formulated in such a manner that in any degree are not incompatible with Convention positions, therefore them primeyonenie is not capable to break Convention position at all.

In this connection, a question on legitimate position of Report 1999 ostayoyotsja the opened.

In item 2 of Additional report II (1999) it is told, that it prednaznayochen for addition of the Convention of 1954 in the relation between the state-participants of both tools, hence, unlike Report 1954, Report 1999 is opened only for parties to the convention of 1954 so, in item 40 and 42 position that it is opened for all gosuyodarstv-participants in sense of item 1 of Report 1999 gl is fixed

In it it is easy to notice the contradiction between character of the document and position data, and that in the course of revision repeatedly govoriyolos, that the given international treaty should become opened even for those states which are not parties to the convention, it was some kind of a leitmotif of all process of revision.

If to analyze positions of Report II (1999) it is necessary to tell, that the greatest influence on its acceptance has rendered Additional report I (1977) to the Geneva conventions of 1949, and also going paralyolelno with acceptance of this report process of acceptance of Roman statute MeYOzhdunarodnogo of the criminal court.

' Giola L.Ukaz. soch. The river 27 - 30.

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If in the first case it is shown in following positions: attacks to the objects representing cultural values, are legitimate only in cases of transformation into military object (item 1 of item 13 of Report 1999), position about preparation for attacks repeats position of item 57 DopolniYOtelnogo of report I (1977) to the Geneva conventions of 1949 (item 7 protoyokola of 1999), the category of gross infringements (item 15) is borrowed from item 85 of Additional report I (1977), article about responsibility of the states (item 38) repeats item 91 of Report I (1977) in the second the greatest vlijayonie is felt in the head about responsibility and jurisdiction.

Even at meetings experts repeatedly declared necessity soyoglasovyvat the actions with International Law Commission work, razrayobatyvajushchej the Charter of the International criminal court to avoid повто­рений1, and Tribunal across the former Yugoslavia. So, for example, project item 15 practically has been entirely based on item 7 of the Statute International TribuYOnala on were Югославии2.

Report II (1999) specifies that he tries to consider all innovations of the international humanitarian law (paragraph 4 preamyobuly) in a preamble.

So the new and positive was made by Additional report II (1999) to the Convention of UNESCO of 1954?

First, according to item 1 of item 22 the Report comes under to application entirely in case of the conflict which does not have the international character. It means, that all come under to application not only the positions, concerning respect kulturyonyh values, but also others, including procedural positions доку­мента3.

In the latter case, in our opinion, the given position should cause some scepticism as it is difficult enough to count on that,

1 Document of UNESCO. - CLT-97/CONF.208/3. - the River 3.

2 Hladik J. The decree. soch. - the river 317 - 318.

3 For example, it is difficult enough to present, that non-governmental forces, will apply the head about otvetstyo vennosti, and equally to co-operate with the international committee and the international fund and others instituyo tami as it is provided in 6 head of Report 1999, etc.

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That non-governmental contradictory forces these proyotsedurnye carried out (remedial) positions, in particular, on entering of a cultural value into the register of the objects which are under "strengthened" protection.

The in itself tendency of degradation of borders should cause simpayotii as it proves to be true the international practice. For example, the Charter of the International criminal court does not do distinctions in degree and hayoraktere the criminal liability depending on that, is made prestuyoplenie during international or not international armed konyoflikta, placing «capture, destruction or deliberate destruction inyostitutov, employees to the religious, charitable, educational, cultural and scientific purposes, and also historical monuments, proizvedeyony sciences and arts» in one article (item 8 (()).

However, as to the given tendency it should not become rezulyotatom full mechanical moving of the rules regulating mezhdunayorodnyj the conflict, to the conflicts which do not have the international character, otherwise the given positions risk to get declarative hayorakter.

The given position is criticised by some scientists because till now there are international law general provisions according to which the contract cannot create both obligations, and the rights for the third party which is not participating in the contract and also because negosudarstva are not the international subject until insurgents will not be priyoznany other state as the opponent (enemy).

Secondly, Report II (1999) has established the new form of protection, naming its "strengthened" which on the one hand should expand a circle of objects by which protection is guaranteed, and with another to facilitate their inclusion in the list of the objects which are under strengthened protection, and as a whole to improve predosyotavljaemuju protection.

1 Desch T.Ukaz. soch. - the river 83, Giola L.Ukaz. soch. - the river 33.

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Thirdly, concretised a protection essence, having designated protection measures, predyoprinimaemye in a peace time that was not in the Convention of 1954, naming among them: inventory, the fire-prevention and other measures capable predotvrayotit their destruction, appointment of the authorities responsible for preservation kulyoturnyh of values and so on (Report item 5).

Fourthly, has provided preparatory measures on a case of attacks, tseyolikom having transferred positions of item 57 of Additional report I (1977) to Zheyonevsky conventions of 1949

Fifthly, has provided for the first time in world practice humanitarian prayova the obligation of the invader to interfere with illegal excavation on okkupiyorovannoj territories, and also the obligation to prevent export with okkupiyorovannoj territories in the most basic document, instead of separate line as it was in Report 1954 (Report 1999 item 9).

Sixthly, has entered the whole chapter about jurisdiction and the sanctions called razyovit of position of item 28 of the Convention of 1954 Kategorizatsija of infringements was proyovedena depending on gravity of infringements, and definition has been borrowed from Additional report I (1977) to Geneva konvenyotsijam 1949

Gross infringements have been divided on two groups: serious nayorushenija norms of the international humanitarian law of the cultural values devoted to protection, gross infringements of norms of the Report and the Convention of 1954, other less serious нарушения1. Though in Report 1999 it is spoken only about serious and less serious нарушениях2.

The whole spectrum of measures jurisdiktsionnogo character reflected the last novoyovvedenie in the field of the international criminal law, also in IV head «UgoYOlovnaja responsibility and jurisdiction» the important position about an extradition has been fixed.

Seventhly, has made changes in institutsionalnyj level, having created, poyostojanno the operating special international committee which is not entering in

1 Gioia L, - the Decree. soch. - the river 52 - 55., Henckaerts J-M. The decree. soch. - in the same place.

2 In more details this problem we will mention in the corresponding paragraph.

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UNESCO structure, with strictly outlined competence, called to watch observance of the Convention of 1954, and also the special international fund constructed on similarity of Fund for protection world and cultural nasleyodija within the limits of Convention JUMESKO of 1972, called to carry out finanyosirovanie the international programs in the given area.

The V-eighth, in sphere of the control over observance of the Convention of 1954, uzakoyonil special predstayovitelej the General director and intermediaries of UNESCO, in a case if inyostitut Powers-patronesses it is impossible to involve the practice of a message established by then (item 1 of item Zb of the Report).

The V-ninth, has provided, that attacks are legitimate, in a case esyoli cultural values are transformed into military object, meaningly having lowered positions about military necessity.

The V-tenth, has tried to concretise the positions concerning to poyonjatiju of military necessity, having entered more objective signs for konyostatatsii it "presence, and also procedure of its use.

The V-eleventh, has entered article about responsibility of the states for narusheyonija convention positions that was not in the Convention 1954, but was in DopolYOnitelnom report I (1977) to the Geneva conventions of 1949 (item 38 proyotokola of 1999).

The V-twelfth, has entered compulsion of the written prevention proyotivnoj the parties about the beginning of attacks and summer residences of reasonable term for the termination naruyosheny Report positions.

The V-thirteenth, in Report 1999 text it is not supposed reservations, that, of course, creates its certain safety factor положениям1.

As to the negative moments, and also what was not otrayozheno in the Report, to this number it is possible to carry:

1) Not clear and inconsistent legal nature of all Report 1999, only small which part of positions de facto is dopolyonitelnymi, and the majority of positions is formulated in such a manner that

Desch T.Ukaz. soch. - the river 89.

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Does not mention positions of the parties which are parties to the convention and Report 1954

Thus according to articles 40 and 42 Report is opened only for uchastniyokov the Convention and Report 1954 that will be inevitable to interfere priyosoedineniju those countries which adhere to that system of protection kulyoturnyh values which has been provided Additional protokoyolami 1977 to the Geneva conventions of 1949

2) the concept of cultural values though during revision of the Convention of 1954 offers on its change expressed Is left without change, and also the criticism repeatedly expressed. The lawyer from Australia M.Driver considers, that in definition followed include the places having cultural value for primitive tribes (people) 1.

3) the concept of military necessity Is left.

4) It is pursued only deliberate destruction cultural valuable stej, there is no responsibility for careless (casual) destruction.

5) L.N.Galensky considers, that Report 1999 is very cautious in the formulations concerning personal responsibility and has not considered sushchestyo vujushchej practice. Destruction and destruction of cultural values closely intertwines with such crime as aggression and should attract not only the personal criminal liability, but also responsibility государства2.

The given thought is not absolutely clear, as Report 1999 contains norm about responsibility of the states, probably, the author meant that responsibility of the states is placed in chapter 8 (Report Execution), instead of in the chapter IV (the Criminal liability and jurisdiction), thereby podrazumeyovaet, that responsibility of the state arises only in case of default of the obligations by it, according to the Report.

As to an individual responsibility, that, following logic of the author, responsibility of the state should arise in each concrete case

1 Driver M. S - the Decree. soch. - the river 2 - 3.

2 Galensky L.N.legal regulation are sewn up cultural values in case of armed konflikyo tov / L.N.Galensky//the Russian year-book of international law. - Spets. Release. - 2000. - with. 81 - 84.

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The committing a crime which have entailed destruction and destruction of a cultural value.

It is difficult to agree with this position, as it is far not always, presyotupnoe the behaviour of separate citizens is a part of a nation-wide policy as it took place in fascist Germany.

Another matter, if Л.II. Galensky meant the recommendation that in each case of committing a crime the question about otvetstvennoyosti the states in this case it is possible to agree with this position, an another matter was brought up that will realise it in practice not simply.

6) According to L.N.Galensky, Report 1999 has narrowed quantity obekyo tov which can apply for the special form of protection as preyo dusmotrel new additionals for their inclusion. The report not izyo changes the form of special protection existing earlier which to a prodale zhaet to exist, and provides its new visibility improved a miscellaneous, simply practically impracticable conditions have been replaced on meyo it strict and vypolnimye.

7) the Report has not explained, whom when and in what order will be napravyo ljatsja the obligation, that the object will not be used in the military purposes.

8) the Report has disregarded necessity obligatory easily soiled rovki the cultural values which are under the general protection about which the professor P.Bojlan in the Report to that followed udeyo, by the way, spoke pours more attention.

9) Followed include at least general provisions on an order of the resolution of disputes which can arise between the parties as inclusion of objects in список2.

Thus, Report 1999 has left without changes of the head, otnosjayoshchiesja to transportation of cultural values (gl. III), to the personnel (gl. IV) and to a discriminating sign (gl. V), Conventions of 1954

1 In more details about forms zashshy nojuvorim p to the following chapter. 2GioIaA. Ukaz.soch. The-river 56.

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It would be desirable to be reserved, that the majority of these lacks are revealed at the first stage, as to the others, that, probably, the subsequent practice will reveal also others, after all the Report has been accepted only in 1999 and on the present of serious tests for durability not имел1.

1 V. De nouvelles perspectives pour la protection des biens culturcis en cas de conflit arme: l'entree en vigueur du Deuxieme Protocole relatif a la Convention de La Haye de 1954 V. Mainetti//IRRC. - 2004. - Vol. 86.-L ' 2 854.-P. 337-365.

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A source: AHMETZJANOV AZAT AJRATOVICH. International-LEGAL PROTECTION of CULTURAL VALUES In case of the CONFRONTATION. The dissertation on competition of a scientific degree of the master of laws. Kazan-2005. 2005

More on topic § 2.4. Additional report II (1999) to the Convention «About protection of cultural values to a confrontation case» 1954:

  1. § 2.3. The convention of 1954« About protection of cultural values in case of a confrontation »and Additional report I to it.
  2. § 3.2. The control and responsibility over infringements of international legal norms but protection of cultural values in case of a confrontation.
  3. the CHAPTER II OPERATING INTERNATIONAL LEGAL CERTIFICATES ON PROTECTION of CULTURAL VALUES In case of the CONFRONTATION
  4. 14 CHAPTER I HISTORICAL STAGES of FORMATION it is international - the RULES OF LAW REGULATING PROTECTION of CULTURAL VALUES In case of the CONFRONTATION
  5. AHMETZJANOV AZAT AJRATOVICH. the MEZHUDNARODNO-LEGAL PROTECTION of CULTURAL VALUES In case of the CONFRONTATION. The dissertation on competition of a scientific degree of the master of laws. Kazan-2005, 2005
  6. § 2.2. A parity of military necessity and protection of cultural values in a case pooruzhepnogo the conflict.
  7. § 3. International legal protection of armed forces of the United Nations and the Third additional report to the Geneva conventions on protection of victims of war of 1949
  8. § 3. 1. The general, special and strengthened legal modes of protection of cultural values, their application in confrontations mezhyodunarodnogo and nemezhduiarodiogo character.
  9. § 1.2. Spontaneous regulation of protection of cultural values.
  10. § 2.3. Problems of realisation of the Convention on protection of an underwater cultural heritage of 2001
  11. the convention on protection of the world cultural and natural heritage of 1972
  12. § 2.2. The purposes and features of positions of the Convention on protection of an underwater cultural heritage of 2001