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§ 2.1. Concept of cultural values in international legal akyotah and in the international law doctrine.

Concept of cultural values one of key in a problem considered by us as their protection constitutes a subject rassmotreyonija the given dissertational research.

In concept of cultural values allocate philosophical and legal aspects that underlines many-sided nature and complexity given scientific kateyogorii, therefore it is possible to speak about cultural values, as about philosophical, cultural urological and legal категориях1.

As to legal aspect here too it is necessary to notice, that approaches to concept of cultural values, no less than to most opredeleyoniju to be separated in dependence about what area of the right and with whom they rasyosmatrivajutsja, proceeding from it it is possible to allocate interstate and meyozhdunarodno-legal aspects of the given concepts.

In the Soviet literature to a problem of cultural values were posvjashcheyony D.I.Ambresene, M.M.Boguslavsky, M.V.Vasilevoj, N.N.eider, L.N.Galensky, N.D.Gnedovsky, V.G.Gorbachev, JU.N.Markin, T.R.Sabitova, A.P.Sergeeva, S.A.Chernyshevoj's works, etc.

Among modern researches it is possible to allocate R.B.BulatoYova, A.D.Dirgina's works, Of this year Debt, A.V.Karpenko, A.S.Linnikova, S.N.MolchaYonova, O.N.Hlestova, etc.

1 Medvedev E.A.criminally of cultural values: Lvtoref. A bottom. kand. jurid. Sciences: 12.00.08 / E.L.Medvedev. - Kazan, 2003. - 30 with.

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The considerable attention has been given the given problem in the last disseryotatsionnyh researches ate. Egorovoj and E.V.Medvedeva1.

In the given dissertational research we, first of all, sfokusiruyoemsja on international legal concept of cultural values, will try to give its characteristic through the comparative analysis with close (adjacent) concepts, such as, "cultural heritage" and «world cultural nayosledie».

Some Russian scientists consider the given concepts as тож­дественные2.

Despite almost full interchangeability in frameworks mezhdunarodyonogo the rights of terms «a legal regime of objects world cultural nayosledija (properties) and a legal regime of"easier"cultural values — razyolichajutsja cardinal образом3.

In our opinion to use the given terms, starting with dejstyovujushchih international legal norms, as identical is incorrect as volumes of the given concepts do not coincide. Attempt to explain, why it so will be more low given.

For the first time the concept of cultural values has appeared in item 1 of the Convention of 1954, but earlier accepted positions of item 27 and 56 IV and item 5 of IX Hague conventions of 1907, and Roerich's Pact in which position about necessity of protection educational (scientific) has been fixed, reyoligioznyh, charitable and cultural establishments, proceeding from the target nature and object appointment became ideological soil for this purpose.

The representative of Secretary of UNESCO during work of diplomatic conference of 1954 has noticed, that the Hague conventions of 1907 protected ob -

1 Egorov ate, state-legal it is sewn up cultural values (the comparative analysis of the Russian and French legislation): the Bottom.

kand. jur id. Sciences / E.JU.Egorov. - M, 1996.

2 Potapovs N.A.international legal protection of cultural values and the legislation Russian fedeyo portable radio sets: the Bottom. On degree competition kand. jurid. Sciences / N.A.Potapov; RUDN - M, 1992. - 155 with. Boguslavsky M.M.Ukaz.soch.-23s.

3 Molchanov of SI. About use of concepts "cultural values" and «a cultural heritage (property)» in international law (information-analytical oGjop) / S.N.Molchanov//MZHMP. - 2000. - And *> 2. - С.27.

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ekty owing to internal properties inherent in them, but obvious references on kulturyonuju the nature of the given objects not было1.

It is necessary to tell, that among protected objects of item 56 of IV Hague konyoventsii 1907, the municipal property has been mentioned also, that at first sight can cause some bewilderment, but the given position should be considered as an illustrative example; the reference on munitsipaliyotety represents instructions on the most probable proprietor as at the moment of acceptance of the Hague conventions of 1907 the majority from ohranjaeyomyh objects was in the property of municipalities, other inyoterpretatsija will make the given position of paragraph 1 of item 56 бессмысленным2.

In item 56 of IV Convention of 1907 the first attempt of definition of cultural values through transfer has been undertaken, using thus an illustrative element to facilitate understanding of data teryomina. Further the given reception will receive a wide circulation in poyosledujushchih conventions.

As to the Convention of 1954 it for the first time in world practice poyopytalas to give the general collective concept to those objects which podlezhayoli to protection on a confrontation case, and for these purposes and was vvedeyono concept of cultural values, but along with this position in a preamble and item 1 the concept of a cultural heritage has been entered.

The joint coexistence of the given concepts of international law has begun with this moment.

The first attempt to make collective definition has pushed off razrayobotchikov the project of the Convention of 1954 with a problem of legal definition of cultural values as the concept particularly is not defined in any international legal sources. At the same time, mezhdunarodyonoe the community has not refused references to an object special-purpose designation, skon -

1 Records of the conference covered by the UNESCO held at the Hague 21 April - 14 May 1954//Intergovernmental conference on the protection of cultural property in the Hague, Hague: Staatsdrukkerijcn Uitgevrijbedrijf, 1961. - § 160. - Further under text Records.

2 Franklin W.M. Municipal property under belligerent occupation/W.M. Franklin//American Journal of International Law.-1944. - Vol. 38. - P. 383 - 396.

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struirovav items 1 of the Convention of 1954 in such a manner that in it have entered the objects which basic purpose is exhibiting and storage dvizhiyomyh cultural values, such, as archives, museums, libraries, time refuges.

In a science of international law not enough attention was given to a problem of mutual relations of norms of conventions of UNESCO and a part of definition by them ponjayoty cultural values and a cultural heritage. So, Australian uchyoyonyj River O'Kiffi names only M.Frigo1's work. To this list it is possible doyobavit L.Protta's works and Item О'Киффи2.

As to standard base here, besides UNESCO Conventions «About measures forbidding illegal import, export and right transfer sobstyovennosti on cultural values» 1970 and «About protection world prirodyonogo and a cultural heritage» 1972 3 it is necessary to name a series of Recommendations ЮНЕСКО4 which cultural tsennoyostej in confrontations do not concern in the direct image a question of protection, but from their analysis it is possible to understand the maintenance of the above-named concepts. Their number concern: RekomenYOdatsija about the international principles applied to archaeological raskopyokam (on December, 5th, 1956); the Recommendation, concerning acceptances more effektivyonyh the measures doing accessible museums for each person (on December, 14th, 1960);, etc.

Besides, it is possible to mention the European cultural convention of 1954 and the European convention «protection of an archaeological heritage» 1969

The traditional concept of cultural values covers movable and immovable cultural-significant objects — originally, mainly, meaning subjects and monuments of the Classical Century (the concept has received

1 Frigo M La protenzione dei beni culturali nel diritto internazionale / M. Frigo. - Milan: Giuffre. - 1986. - P. 143 - 151.

2 Prott L.V., O'Kecfe P J. Cultural heritage or cultural property / L.V. J'rott, P.J. O'Keefe//International Journal of Cultural Property. - 1992. - D 1. - Vol. 1. - P. 307 - 320.

3 Further under the text the Convention of UNESCO 1970 and 1972 according to.

4 Boy Ian P.J. Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954) / P.J. Bo> lan//CLT-93/WS/12. - UNESCO. - 1993. - P. 50.

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The distribution in XIX century when the discipline archeology was formed and covered all prehistoric and major remains). It includes the major subjects graphic and an applied art, arhitektuyory, including recent and modern.

The modern term "cultural heritage" is more preferable, poyoskolku includes also not man-made cultural heritage (folklore, skills and abilities), unessentially embodied in any objects, but nevertheless requiring in защите1.

River O'Kiffi considers, that the Convention of 1954 was seldom applied until recently because in it the nature and degree of the cultural values which are under the general protection is not defined. The problem opredeyolenija cultural values is addressed the state, in whose territory they are, but thus to the states it is difficult for making, being guided noryomami Conventions 1954 2.

The estimation of concept of the cultural values, given razlichyonymi scientists is more low resulted.

P.Bojlan in the report describes simplicity and big neopredelenyonost понятия3.

Belgian lawyer Z.Brjuke says that those examples which are resulted in item 1 of the Convention of 1954, do completely not necessary a phrase «bolyoshoe value for a cultural heritage of all people» 4.

The scientist from the Netherlands F.Kalshoven speaks about such cultural obyoektah, as museums, churches to which the attention of item 1 Конвенции5 is insufficiently full paid.

1 O'Keffe P.J., Prott L.V. Cultural property / P.J. O'Kefle, L.V. Prott//Encyclopedia of Public International LAW. - Armterdam: North-Holland Publ, Max Planck Institute for Comparative Public Law and International Law. - Vol. 1. - 1992. - P. 890 - 892.

2 O'Keffe R. The meaning of «cultural property» under the 1954 Hague convention / R. O'Keffe//Netherlands International Law Review. - 1999. - P. 27.

3 Boylan P. The decree. soch. - P. 49 - 53.

4 Breucker J. Pour Ies vingt ans de la Convention de la Hayed u 14 mai 1954 pour la protection des biens culturels / J. Breucker//Revue beige de droit international.-1975. - Vol. 11. - P. 525 - 532.

5 Kalshoven F. Restrains on the Waginig of Law/F. Kalshoven. - Geneva. - 1991. - P. 37.

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The Polish lawyer, professor SE. Yahlik speaks about those epistemologicheyoskih difficulties which are attracted with connection attempt in one concept priroyody and the importance of the objects, which in itself represent hudozhestvenyonuju, historical and archaeological ценность1.

And Items O'Kiffi specify L.Prott in ways of definition of cultural values through transfer, kategorizatsiju and классификацию2.

The basic lack consists that the accepted definition noyosit in many respects subjective character as is estimated. The given concept contains only unique external sign cultural tsennoyosti, such as the importance, leaning on which it is difficult to give exact and odnoyoznachnoe judgement about, whether is this or that object a cultural value.

At the same time in a science allocate also other signs, such, as unikalyonost, (originality), age. In this respect the concepts given in posleyodujushchih conventions, namely of Conventions of UNESCO of 1970 and 1972 javljayojutsja a doubtless step forward as in the definitions contain the above-named signs. But even in this case the given signs have dis-positive character as even such, apparently, objective kriteyory as the age of a thing (object), finally, has recommendatory character, and the states have the right to define independently it at creation standard базы3.

The International lawyer from Australia of River O'Kiffi speaks about two protiyovopolozhnyh camps in an international law science. One scientists consider, that the object can be under protection of the Convention of 1954, in that case esyoli it possesses «well-known glory», which widespread all over the world. Proceeding from it, only such important objects as the Collosseo in RiYOme, the mausoleum Tadzh-waved in India, pyramids Heopsa in Egypt, a picture Lso -

1 Nahlik S.E. Convention for the protection of cultural property in the event of armed conflict. The Hague 1954: general and special protection/S.E. Nahlik//The international protection of cultural property / Istituto internazionale di diritto umanitario, Rome, Dragan European Foundation. - 1986. - P. 89, 95.

2 Prott L.V. Law and the cultural heritage/L.V. Prott., P.J. O'Keffe. - 1989. - London / Edinburgh: Butenvorths. - 1989. - Vol. 3. - Movement.-27 - 30 p.

3 O ' Keffe P.J. Commentary on the UNESCO 1970 convention on illicit traffic / P.J. O ' Keffe. - Leicester. - 2000.-P. 35-36.

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nardo da Vinci «Mona Liza», M.Shagala's stained-glass windows in hospital Hadashah in IeYOrusalime, have the right to count on the given protection.

Others consider, that the Convention of 1954 is applicable only to rukotvoryonym to the movable and immovable cultural values which are in kazhyodoj the High contracting party. They consider, that the purposes of the Convention of 1954 in addition send us to national-cultural heritage to everyone страны1.

Last point of view is more preferable as it proves to be true also judiciary practice. The judge from Germany Veramantri in the separate opinion about legality of use of the nuclear weapon, sending to the interests protected by the Convention of 1954, has resulted as an example neyometsky the city of Cologne, having noticed, that only it has about 9000 protected buildings entered the list. Thus, application of the nuclear weapon against a city will deprive Germany, in particular, and equally and all world soobshcheyostvo as a whole their considered segment cultural наследия2.

The convention of 1954 is applied to all personal estate, pamjayotuja that it forms a part national-cultural heritage kazhyodoj страны3. Following the given point of view, we will inevitably come to there is nobody the average register of national cultural values, koyotoryj could mean, that the Convention is applied to tens, and, probably, and hundreds thousand buildings and the subjects which are in territory of each of the countries.

The definition given in item 1 of the Convention of 1954, is designed in such a manner that as cultural values are called the objects which are of great value for a cultural heritage of all people.

The preamble uses the term «a mankind cultural heritage», koyotoroe as the preamble constitutes the Convention integral part, pomogayoet to understand sense of key concept "cultural value".


1 About ' Keffe R. The decree. soch. - the river 27 - 56.2

Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion, ICJ report.-1996. - P. 226 - 467. 3 Sandoz Y. Commentary on the Additional Protocols of 8 June 1977 to Geneva Conventions of 12 August 1949 / Y. Sandoz, WITH Svvinarski, B. Zimmermann. - Geneva: IRRC. - 1987. - Para. 2065.

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The key term in the given phrase - a cultural heritage which in tseyoljah studying of the given problem represents the sum movable and neyodvizhimogo the property, being important from the historical, art and architectural points of view.

The Italian lawyer M.Karsione, according to English scientist L.Rogers, pays attention to distinction between the wide concept kulyoturnyh the values, put in pawn in a preamble, and the main definition, davaeyomom item 1 of the Convention of 1954 which says about cultural values, imejuyoshchih "great value", and item 8, fixing position about cultural tsenyonostjah "very big" value (narrower under the maintenance), that can create difficulties in interpretation of the given concepts. It is especially true, as an establishment of protective marks in case of the general protection not always обяза­тельно1.

River O'Kiffi considers, that in that kind in which article exists, not vyyopolnjaetsja the requirement of item 31 of the Viennese convention on international treaties of 1969 about a unique value of a key phrase «great value for a cultural heritage of all parodov the world (Russian variant) all people (angyolijsky a variant)» as «all people» can mean both set of all people, and each people in отдельности2.

Followed design a phrase «as for all people or for each people separately» as in the preamble text the dichotomy between each people and all mankind as a whole it is necessary to read the English version of article 1 of the Convention of 1954 is put in pawn, after a word which «are of great importance for each people separately». As in a preamble zayokrepleno position that the damage put to each people, means detrimenting to a cultural heritage of all человечества3.

The answer to a question, where object mortgaged valuables as in hoyode works on the Convention project it has been laid aside internally - is not clear

1 Rogers A.P.V. Law on the battlefield / A.P.V. Rogers. - Manchester / New York: Manchester University Press, 1996 p.

2 One more reminder on a problem of interpretation of multilingual contracts.

3 Commonwealth of V. State of Tasmania//International Law Reports. - Vol. 68. - P. 266 - 373.

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Cultural importance inherent in object, proceeding from it, not clearly, whether is enough for this purpose only ascertaining of istoriko-art "importance" in obshcheyostvennom consciousness or enough only critical оценки1.

How the made definition on diployomaticheskoj conferences of 1954 was accepted, it is necessary to tell, that it became result of the compromise between two basic approaches: attempt to give the general sobiyoratelnoe definition (France) and attempt to give it by simple pereyochislenija.

The compromise edition offered by the USA which contained besides the general definition the list of cultural values as an illustrative example has been as a result accepted.

In an original project it was offered to protect objects of culture without dependence from a pattern of ownership owing to internal value inherent in them. As a result of conference work the given offer sprayovedlivo has been dismissed, as not all cultural values as, for example, the Egyptian papyruses represent value owing to inherent in them vnutyorennih qualities, and should be protected, because they allow to judge those ancient institutes which existed ранее2.

Though the Convention of 1954 says that it is applied to all cultural values without dependence from an origin and the owner, the working mechanism is hardly probable calculated on it. It is a tribute predshestvujuyoshchim to attempts more likely, for example, IV Hague convention of 1907 which namerevayolas to create an equal mode for all objects, without dependence from the form sobyostvennosti, after all the decision on reckoning of objects to cultural values, anyhow, is connected with the imperious decision corresponding gosudarstvenyonyh bodies. Moreover, to provide operative and adequate protection kulyoturnym to values, first of all, to movable cultural values, nahodjayoshchimsja in private possession personally it is not obviously possible to us.

1 O'KePe R. The decree. soch. - the river 34.

2 RECORDS. - § 160.

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Therefore in the Convention of 1954 followed talk about the form sobstvennoyosti, that is more logical as it does not exclude powers vlayodenija from the state.

As to the objects presented in the list, following points zreyonija have been presented at diplomatic conference 1954 1:

The word "monuments" should be used not only in sense traditional for the western civilisation as a construction immortalising chelovecheyosky a feat or any significant event, but also in wide, the course obyosuzhdenija it proves item 1 of the Convention of 1954.

So, in some countries trees also are protected in kacheyostve monuments of history and культуры2. The delegate from Lebanon has noticed, that "istoyoricheskie" trees also should be protected.

The majority of participants has tended to opinion, that for these purposes luchyoshe all to use a word "monuments", having filled with its new maintenance. During discussion some examples of such historical places have been resulted.

It is possible to agree with this opinion, having quoted opinion of one of deyolegatov, noticed, that «it is possible to keep one tree, but all wood».

The convention was exposed time and again to criticism, that was not in it mesyota to natural objects, even the representative of the USA has declared, that from KoEshentsii it is not necessary to exclude places of national beauty.

Nevertheless, it could not come true for a variety of causes so, even P.Bojlan's who was standing up for it the professor, has understood, that within the limits of the given Convention to make it it is impossible, and acceptance of the separate convention or the separate report devoted to these questions is more expedient.

On a discussion course the reasons on which vkljuyochenie natural places is impossible also have been reflected:

' RECORDS. - § 125,132,200-201.

2 Prott L.V., O'Keefe P. J. Cultural heritage or cultural property / L.V. Prott, P.J. O'Keefe//International Journal of

Cultural Property. - 1992. - № 1. - Vol. 1. - P. 308.

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• one of the reasons consists in artificial character of culture and, as consequence, in man-made character of protected objects, inclusion of natural objects is not entered in such context;

• the representative of France has declared, that natural places will be much, that can serve as the reason of that it becomes inefficient;

• the third and the principal cause consists in that width and those ogromyo nyh spaces which frequently occupy natural objects and, as consequence, absence of objective possibility to localise, at the same time and to give them effective protection.

In L.I.Sergey's domestic doctrine has stated judgement, that landyoshafty and other objects of environment only provide the best vosyoprijatie world around and thus do not become cultural tsennostjayomi, therefore it is necessary to subject them to separate regulation. If on them the uniform certificate they should be разграничены1 is accepted.

It was offered to include also in the list of item 1 of the Convention of 1954 reyoproduktsii the cultural values, the given idea was supported by the representative of the USSR who have noticed, that the USSR possesses many Roman copies drevneyogrecheskih works, moreover in many museums in territory Soviet gosuyodarstva copies are protected on a level with originals.

The representative of France has noticed, that creation of copies of frescos from walls soyoborov hardly not a unique way of their preservation as many frescos very fragile and suffer even from distant explosions as very much chuvstviyotelny to the slightest changes of environment.

The representative of Switzerland has declared, that the word-combination «cultural nayosledija» in item 1 of the Convention of 1954 should be understood in a broad sense and should include scientific, historical and archaeological, no less than obrayozovatelnye concepts. In it it is possible to notice influence of a position IV and IX Conventions of 1907

1 Sergeys L.I.civil-law protection of cultural values in the USSR / L.I.Sergey. - M, 1990. - 26-28 with.

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It is possible also otmstit the offer of the Scandinavian countries, podderzhanyonoe the representative of Cuba, about inclusion in item 1 point «the big and small places which even if do not contain monuments, represent as a whole

* The big cultural value »(amendment CBC/DR 41). In Scandinavian strayo nah there are not enough museums and churches, and the big value for them is represented to environment by not century villages and forgotten farms in which their life and ukyo a harmony throughout many centuries remains.

The representative of Cuba, having supported the given point of view, has noticed, that for its state that place where was born is extremely important even

* The first president of the risen republic.

It is a question of so-called noteworthy places the place in the Convention was not which.

In the Soviet and Russian science time and again it was spoken about necessity of inclusion for the legislation on protection of cultural values of objects, koyotorye have the mixed character combining historical and cultural and prirodno-natural value. Double protection should and those objects which are born by the nature can polzoyovatsja only, but are connected with names of historical figures and bear past traces: grottoes, rocks with petroglyphic letters, memorial estates of visible creative figures etc. professor M.M.Boguslavsky who to one of the first in a domestic science of international law has devoted the issle-dovanie to the given problem adheres to the Similar point of view.

The delegation from China suggested to include scientific laboratories in the list of protected objects, but the given offer has been dismissed, pamjatuja how it is active in days of the Second World War nazis used many nayouchnye establishments in the military purposes.

The delegate from Italy has noticed, that the corresponding list should be created and concerning the cultural values which are under general zashchi -

1 Boguslavsky M.M.Ukaz. soch. - 127 with.

2 Document of UNESCO. - 7C/PRG/7. - 1954. - I. - the River 7.

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That. Realistic, at first sight, the argument that there is no possibility sohrayonit all most important thing, with reference to this case is not adequate.

More important another how to know, that from this a large quantity of cultural objects in the country actually is important, therefore on goyosudarstve responsibility for entering into the list of those kulturyonyh values which require protection entirely lays.

According to Hungarian scientist Irzhi Tomana, instead of «sosreyodotochenija cultural values» item 1 (item)) the Convention of 1954 is better than the centres govoyorit about «group of monuments», and also instead of a word "archives" (item 1 item), kotoyoroe has in the states to use various semantic values vyrayozhenie «the collection of documents and the objects representing scientific character» 1.

During discussion the problem distinctly was outlined, consisting that on the one hand the list of objects has approximate character and gosuyodarstva can bring even those objects which it is direct in it are not designated, but on the other hand, entering into it of new objects, except what peyorechisleny above, it is interfaced to the big difficulties.

As to definition of cultural values which has appeared in other international legal certificates it basically does not differ from toyogo definitions which has been given in item 1 of the Convention of 1954 with that only razniyotsej, that in them the emphasis not on simple transfer, and on kategorizatsiju and classification of protected objects is placed. The convention of UNESCO of 1970 «About meyorah, directed on prohibition and the prevention of illegal import, vyvoyoza and conveyances of property on cultural values» specifies on neyokotorye internal signs of objects, such, as originality, unikalyonost, age which should be present at a thing. We consider, that it should be a management and in a case with the objects which are under the general protection according to the Convention of 1954

But even this definition causes the certain criticism in a science. Angyolijsky scientific P.Bator considers the description in item 1 of the Convention of 1970 on -

1 Toman J. The protection of cultural property in the event of armed conflict / J. Toman. - UNESCO. - 1996. - 52 p.

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Means kategorizatsii superwide, imposing senseless ograniyochenija on scope Конвенции1.

The expert of UNESCO in protection of cultural values during the period vooyoruzhyonnogo G.Karduchchi's conflict names the made definition "smeshanyonym": one of the elements, allowing the states to define own cultural heritage, another is subjective, and - importance within the limits of defined categories, объективным2.

As to the definition given by Additional report I (1977) to the Geneva conventions of 1949 on the one hand, it is a little bit wider than what is given by the Convention of 1954 as speaks and about «a spiritual heritage» mankind, on the other hand, article 53 is designed in such a manner that does not contain examples, and sends only to the most significant (important) objects for all mankind as a whole, laying aside less significant objects which are protected item 52 in which the general provisions on protection of civil objects for military actions are fixed.

At the same time item 53 closes a blank admitted by item 1 of the Convention of 1954 as article in that kind in which exists, does not cover the cultural values belonging to the small people, and the word "spiritual" allows it сделать3.

In comments to Additional reports to Geneva konventsiyojam it was noticed 1949, that words «... Which constitute cultural and duhovyonoe a heritage» (item 53) and position «... Which represent big znacheyonie for a cultural heritage of each people» (items 1 of the Convention of 1954) have no various values and confirm that the question on creation of new categories of cultural objects before accepting reports did not stand.

As to the Convention of UNESCO of 1972 «About protection world priyorodnogo and a cultural heritage», as the positive moments

1 Bator P.M. An Essay on the International Trade in art / P.M. Bator//Stanford Law Review. - 1982. - Vol. 34. - P. 275 - 377.

2 Carducci G. Le restitution internationale des biens culturels et des objets d'art. - Paris.-1997. - 218 - 220 p.

3 Driver M.C. The protection of cultural property during wartime/M.C. Driver//Review of European Community AND International Environmental Law. - 2000.-Vol. 9. - Issue 1. - P. 7 - 8.

4 O'Keffe R. The decree. soch. - P. 33, and also footnotes on the given page.

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It is necessary to name that under its protection have got so-called dostoprimechayotelnye places the place in the Convention of 1954 was not which, and also that under protection were natural objects are taken.

Unlike the previous conventions, the Convention of 1972 uses vyyorazhenie «outstanding universal value», that together with the criteria used that object has got to the list world kulturnoyogo and a natural heritage, is limited only "elite" cultural and natural объектами1.

In an international law science time and again it was noticed, that in all three KonYOventsijah the UNESCO takes place various definition cultural tsennoyostej, at the same time that in it there is nothing terrible as Conventions have the different purposes was specified, nevertheless, in our opinion, it brings nekoyotoruju an ambiguity in definition of cultural values.

Speaking about cultural values as it has already been told, it is possible to allocate property and cultural aspects. The first follows from this, that all cultural values represent a thing and, as consequence, they by all means should be in someone's possession. At the same time concept of value otyolichaetsja from the concept of cost inherent in the majority of things as only economic maintenance while ponjayotie values contains still cultural and aksiologicheskoe the maintenance consists in cost. In more details the problem «references to value» is mentioned in above-named raboyote by E.J.Egorovoj3.

The material aspect of cultural values is expressed in shape, razyomere, rarities, age and their commercial cost.

As to cultural aspect it is expressed, first of all, in the cultural importance of object for those people which has created it. And two given criteria should constitute a single whole, but sometimes do not depend from each other. So, from the moment of a premise of some objects, for example, that

1 O'Kcfle R. The decree. soch. - the river 44.

2 Protection of cultural property//International institute of human right. - Fifth study session.-1974.

3 Egorovs E.JU.decree. soch.

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temov, statues of deities of the small people, the given subjects will continue to exist as the property, but they cease to matter as kulyoturnye objects because they will be actually separated from the people, kotoyoryj them has created. The cultural aspect is shown also that such objects cannot be considered as property in usual sense as any separately taken person cannot be considered as it sobstyovennika.

In it influence of the doctrine of the world heritage is looked through, one of which characteristics is absence exclusive gosudarstyovennogo the sovereignty in territories representing the world heritage of mankind. In more details this question will mention in works of such scientists, as B.M.Klimenko, A.Kise, R.Volfrum, Z.Blank3.

The concept of the world cultural heritage used by the Convention of 1972, is similar to the general heritage of mankind, but as a matter of fact they are various, hoyotja and have some general semantic elements, in both cases it is a question of international legal regulation of use of universal values. But in case of the general heritage of mankind it is a question about ekspluatayotsii mankind natural resources, and in other - of protection obshchechelovecheyoskih values from destruction or разрушения4.

Items About ' Kiffi and L.Prott notice, that in concept of cultural values the big accent becomes on property and on the property right, rather than on other important factors, and, in general, such property approach is peculiar to the western civilisation as a whole, where firmness of the property right sostavyoljaet hardly probable not a basis of all system of values. The term vveyoden as continuation of a line the property - a private property - intelyolektualnaja the property was not casual. But this concept can result in the deadlock

Kiss. A.S. Patrimone commun de l'humanite / A.C. Kiss//Recueil des cours. - Hague:. Martinus nijhoff publishers.-1982. - Tome 175. - Vol II. - P. 164 - 174.

2 Wolfrum R Protection of cultural property in armed conflict/R. Wolfrum. '/Israel Yearbook on Human Rights. - 2002. - Kch 32.-P.313-337.

3 Blake J. On Defining the cultural heritage / J. Blake//International and Comparative Law Quarterly. - Vol. 49. - 2000.-P. 61-85.

4. Klimeiko B.M.general a mankind heritage / B.M.Klimenko. TH.: mezhd. Relations, 1989-35 with.

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Situation when it is a question of the subjects belonging to natives and the small people.

As to difference of the concept of cultural values from adjacent concepts, such as a cultural heritage, it is necessary to tell, that the last is wider and helps to cover all elements of culture, including non-material. Components of the concept of a cultural heritage do not coincide with concept of cultural values as besides materialyonyh objects include also other elements, such, as intellektualyonye the rights to works of art, rituals, skills, abilities, traditions, oral creativity (fairy tales, folklore), and also the contextual information, nayoprimer as musical instruments are used, in what case and кем1.

Some scientists declare that the concept of a cultural heritage is preferable as it is capable to reflect its communication with pravayomi человека2.

If to compare the definition of cultural values given sovetyoskimi and the Russian scientists, to what are used in mezhdunarodyonom the right, that, in our opinion, the definitions fixed in mezhdunarodyonyh certificates, are less substantial and have only practical nayopravlennost.

For example, ate. Egorov is given by following definition: «Cultural values (history and culture monuments) - forms of synthesis of material and spiritual results of human activity, for which society priyoznalo historical, scientific, art and other cultural value owing to their uniqueness and ability to represent itself as the unifying beginning for representatives of the people of one country, including between razlichyonymi generations» 3.

Cultural values are especially protected the right unikalyonye material results of human activity, which, being

1 Prott L.V. The protection of the cultural heritage/L.V. Prott//Recueil des cours / Hague: Academic de Droit International. - 1989. - T. 217. - P. 223 - 317.

2 Blake J. The decree. soch. - P. 75 - 85.

3 Egorovs ate. The decree. soch. - 10 - 20 with.

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Product of general work, have important scientific, art or other cultural value for a society, serve as a link between razlichyonymi generations of people, have concrete historical character and vystuyopajut as the factor of formation of type necessary for a society личности1. Thus, it is necessary to draw following conclusions:

1) Cultural values and a cultural heritage are different ponjayo tijami though contain some general elements, about a cultural heritage as cultural values can speak about a synonym only when mean only material component of a cultural heritage, that is in narrow sense of this word.

The relation between two concepts can be characterised as priyochinno-investigatory and attributive as in all definitions one concept speaks by means of another.

2) In a science of international law there is no uniform concept cultural to the price nostej and a cultural heritage that speaks the various purposes, presleyo blown conventions.

The basic lacks of that definition which has been given in item 1 of the Convention of 1954 is that it does not cover objects of the mixed nature (noteworthy places), and the objects belonging to the radical and small people.

At the same time it is necessary to notice, that the list of objects carries not ogranichiyotelnyj, and illustrative character.

3) the Definition given by item 1 of the Convention of 1954, is very difficult for vosyo acceptance as simultaneously contains both elements of this concept, and signs of descriptive character. In our opinion, followed at first make the general definition of cultural values, and after to give the approximate list of the given objects.

4) According to the majority of foreign scientists, mainly from the English-speaking countries, instead of the term of "value" it is more preferable ispolzo -

Sergeys L.I.decree soch. - 28 with.

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vat the term "property", in a domestic science of international law the given point of view supports L.N.Galenskaja1, for following reasons:

• the English word «property» in a translation into Russian means "property" 2;

• the Convention of 1954 does not do distinctions in protection cultural to the price nostej depending on patterns of ownership;

• «the cultural property» is wider concept, than "cultural values" and covers all those objects which were pereyo chisleny in the Hague conventions of 1907;

• the term "property" is used in all legal systems without an exception, has thus identical semantic value;

• unlike the concept "cultural values" which are otseyo night, concept «the cultural property» has objective character.

In this connection we recommend in a domestic science and practice aktivyonee to use the term «the cultural property» and to bring sootvetstvujuyoshchee change in the Russian text of the Convention of 1954

5) In definition there are no criteria helping sdeyo lat conclusions about degree of importance of object which carries as a whole estimated so also subjective character. To leave from so zatrudniyo telnogo positions to the states, first of all, it is necessary to pay attention to other operating international certificates and Recommendations of UNESCO and on the positions fixed in them, including on uniqueness (originalyo nost), age, the general universal importance of object.

Certainly, first of all, cultural values should schiyotatsja the objects (subjects) possessing «well-known glory».

6) it would be quite good to constitute hierarchy of cultural values that the states could be guided by it.

1 From L.N.Galensky's performance at the scientifically-practical conference devoted to celebrating pjatideyosjatiletija from the date of acceptance of the Hague convention of 1954, passing in St.-Petersburg in June, 2004 1 One more certificate of a problem of interpretation of multilingual contracts.

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7) Actually in article 1 of the Convention of 1954 there is no definition because in it cultural values are defined through a value word. Such definition does not answer one of requirements of formal logic, namely is inadmissible, that a defined word, in this case it «to the price nost», was defined through itself.

8) If to try to get off minor alterations, that, preyo zhde everything, it is necessary to change point) item 1 of the Convention of 1954 on «objects May terialnogo the world, growing out of human activity, kotoyo rye are of great importance for a cultural and spiritual heritage of all miyo ra or each people separately, such as...» - and further follows perechisyo lenie, or not to specify at all in "great value" as it a wasp lozhnjaet perception, and to be limited to only simple transfer.

9) In that kind in which definition has been made, it is inevitable priveyo lo to "inflating" of the Convention till the huge sizes, that also is its lack. Obvious discrepancy between desire and vozmozhnostjayo mi is available, for this reason Additional report II (1999) has given it the expert pektu the big attention, having taken some restrictive measures.

10) to Protect natural objects within the limits of Convention of 1954 is it possible owing to the reasons stated above, except for what can get under definition the "monuments" occupying small territories.

11) Cultural values have concrete historical character, and this fact is proved to that in Additional report 1999 otmechayo etsja, that cultural values can lose such status if will lose the bases on which they have been put into the list (item 13 item 1).

12) Even if object does not meet the requirements of article 1 of the Convention of 1954 nevertheless, item 27 corrected and 56 IV Hague convention of 1907 can be priyo menimy for protection of cultural values in case of armed конфликта1.

' Rosenberg v Fischer, Switzerland, Federal Tribunal (Chamber for the Restitution of Assets Seized in Occupied territory). - June 3. 1948. - International Law Reports. - 1948. - Tom 15. - P. 467 - 470., Menzel v List, United States, Supreme Court, New York Country. - 10 February 1966. - International Law Reports. - 1971. - Tom 42. - P. 34-39.

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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 § 2.1. Concept of cultural values in international legal akyotah and in the international law doctrine.:

  1. § 3.2. The control and responsibility over infringements of international legal norms but protection of cultural values in case of a confrontation.
  2. § 1. The concept international «the soft right» in the international legal doctrine
  3. 14 CHAPTER I HISTORICAL STAGES of FORMATION it is international - the RULES OF LAW REGULATING PROTECTION of CULTURAL VALUES In case of the CONFRONTATION
  4. the CHAPTER II OPERATING INTERNATIONAL LEGAL CERTIFICATES ON PROTECTION of CULTURAL VALUES In case of the CONFRONTATION
  5. the CHAPTER III INTERNATIONAL LEGAL MODES of PROTECTION of CULTURAL VALUES, PROBLEMS of the CONTROL And OTVESTVENNOSTI FOR THEIR INFRINGEMENTS
  6. the Chapter II. The PROBLEMS CONNECTED With DEVELOPMENT of FORM OBEKTIVIROVANIJA of NORMS of INTERNATIONAL LAW, Within the limits of the DOCTRINE ABOUT INTERNATIONAL LAW SOURCES
  7. Chapter 1. Concept and classification of objects of an underwater cultural heritage of international law
  8. the Concept of worthy work the SQUANDERER as the basic doctrine of development of the international law of master and servant
  9. the Chapter I. Concept and a place of the doctrine of freedom of the discretion of the states of international law
  10. § 3.4. An international law science about an international legal liability of infringement of installations of the Charter of the United Nations about force non-use in the international relations
  11. § 2. Essence of differentiation of the international humanitarian law and international law of human rights as international law branches
  12. the Chapter I. The DOCTRINE ABOUT INTERNATIONAL LAW SOURCES AS LEGAL KA TEGORII
  13. SECTION 2. The PLACE of NORMS About INTERNATIONAL LEGAL STRUGGLE Against TERRORISM In INTERNATIONAL LAW CHAPTER 5. The INTERNATIONAL CRIMINAL PROSECUTION of TERRORIST CRIMES
  14. the Chapter III. The INTERNATIONAL LAW SCIENCE About INTERNATIONAL LEGAL INSTALLATIONS ON RESTRICTION And PROHIBITION of APPLICATION of FORCE In the INTERNATIONAL RELATIONS And ABOUT RESPONSIBILITY FOR THEIR INFRINGEMENT