§ 1.1. Formation of the status of cultural values.

Before to start the direct analysis legal pamjatyonikov and the current legal sources containing norms, kayosajushchiesja protection of cultural values in confrontations, it would be desirable to stop on a following moment.

Speaking about history of development of international legal norms in given области1, it is necessary to allocate two soyostavljajushchie the given process: actually historical component, and also its legal part.

Though, basically, two given processes are closely interconnected, but with a view of convenience of studying of the given problem, we consider expedient, rassmatriyovat them separately.

The historical component of the given process is connected with occurrence of the idea of protection of cultural values in armed konflikyotov, and also with the historical analysis of variety of wars in which course cheloyovechestvo bore the given idea.

If the first of them testifies to single instances of the statement of the given ideas from lips at first antique philosophers, religious figures, uchyoyonyh, and later and visible military leaders, heads of the states, the second, svidetelyostvuet about agreements of the states reached in given area, carrying thus legally a binding character.

Other difference consists that in case of protection of cultural values in confrontations, and, however, as well as in most guma -

1 History of international law and its science to the Great October socialist revolution: rs international law: In 7 t-h. / J.J.Baskpn, D.B.Levin, D.I.Feldman. - M, 19S9.


nitarnom the right as a whole, ideas frequently much more advanced time, that is that moment when they became norms of international law, and peyorezhivali the authors on hundreds and even thousand лет1. Whereas idea fastening in the international legal certificate, testifies to the consent and its acceptance as that the whole people.

Statements prepared as though ideological soil, wars podtveryozhdali or confuted correctness of statements, opened imperfections and the committed errors, and only the most indisputable positions were included subsequently into international legal certificates.

The norms, concerning protection of cultural values, have arisen not on pusyotom a place, and on fertilised by horrors of war to soil.

War has put historical monuments, works of art peyored the person of two basic dangers: the danger following from prakyotiki of capture of trophies during conducting of operations, and danger razruyoshenija from military actions, especially artillery and air bombardments ".

The history of protection of cultural values can be divided into following stages: antiquity, the Middle Ages, the present (XVI century - first half XIX centuries, second half XIX century - first half of XX-th century, and, at last, second half of XX-th century after the Second World War and Nuremberg triyobunala) 3.

Greek scientist A.P.Helleni divides the given history otherwise, allocating following stages: from Antiquity by XVIII century, an early stage sovreyomennoj histories XVIII - XIX centuries, the present - first half of XX-th century, and Separately Hague convention of 1954 as continuation of a new coil in istoyorii protection cultural ценностей4.

1 the idea of refusal of the states from soldiers as one of instrumenyo tov the foreign policy is Most indicative in this respect.

2 Visschcr S International Protection of Works of Art and Historical Monuments / WITH Visscher. - USA.: Department of State publication 3590. - International Information and Cultural series 8. ■ Reprinted from Documents and State Papers, June 1949.-P. 823.

3 Verri P. The condition of cultural property in armed conflicts / P. Verri//International Review of the Red Cross. - 1985. № 245.-P. 67-138.

4 Helleni A.P. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict: an Historical Analysis / A.P. Helleni//International Journal of Legal Information. - 2000. - Vol. 28.№1. - P. 1 - 44.


L some authors in general start consideration given proyoblemy, since an epoch of Napoleonic wars, is groundless ignoring thus ancient историю1.

As to legal aspect here division looks as follows: at first the history and formation of the status of cultural values in peyoriod a confrontation, behind it follows a stage when plunder and soyovershenie other hostile actions concerning cultural values becomes war crime, and last stage proceeding and is to this day a legal regime concerning cultural values, ustanavyolivaemyj the Hague convention of 1954 and others, operating on segodnjashyony day international legal нормами2.

It is necessary to disagree with L.P.Helleni and to notice, that the international legal history of protection of cultural values begins with the second stage as at the earliest stage - a stage of formation of the status of cultural values, we practically do not meet international legal norms, and esyoli and there are norms they carry political or vnutrigosudarstyovennyj характер3.


In those far times of war occurred mainly for the sake of trofeyoev, therefore it was impossible to spend distinctions between war, a piracy or plunder, moreover, according to the Ancient Greek philosopher, istoyorika and commander Fukdida, in a piracy is not present anything бесчестного4.

War absolutization pours out in the so-called "trophy" right which for that period was not limited to anything, except appetite at war. War and trophies constituted the basic profitable part for the ancient and antique states, moreover throughout long time the military

1 Williams S.A. The international and national protection of movable cultural property a comparative study / S. A. Williams. - New York: Oce? na publications, INC. Dobbs Ferry, 1978.

2 Helleni A. P. The decree. soch.

3 Lukashuk II.И. Norms of international law in the international standard system / I.I.Lukashuk. - M, 1997.

4 Verri R.Ukaz. soch. - the river 67 - 70.


Services was very profitable as gave the chance to soldiers uchastyovovat in an extraction sharing.

Concerning extraction, a robbery, capture as trophies, marauding, it is necessary to tell, what even for today almost all given area in osyonovnom has unwritten character. So, till 1946 in international law there were no legal definitions for terms "trophy", "extraction", "robbery". Was considered, that each soldier should know, that is at it in hands, is capable to answer a question independently: whether is the given subject a work of art or is not present, and, hence, to make the decision on how it should arrive with the given subject (object).

The question of trophies is devoted commanders in the field of fight and their decision though sometimes and are accepted with participation of legal advisers, do not carry dokumenyotalnogo character.

One of omissions of the Convention of 1954, among other others, that in it following terms "robbery" are lowered is, "extraction", "trophy". For the today, the given terms are defined international ugolovyonym правом1.

The similar picture was and in ancient Rome. The fact is well-known also, that Rome was exposed time and again to attacks of vandals from which impacts has fallen in 476

On change to Greeks Romans, and to it, in turn, gunny, Gauls and goty, with interest inherited the severe relation to subjects искусства3 have come. Changes have concerned only territorial frameworks of the states and them kolichestyova, but not sights.

Despite separate cases of respect of cultural values, in drevyonej Greece and Rome, they were defenceless before severe realities of war.

1 V. Cultural property, protection in armed conflict V. Solf//Encyclopedia of Public International law. - Amsterdam: North-Holland Publication, Max Planck Institute for Comparative Public Law and International Law, 1986.-P. 64-68.

2 Helleni L. R.Ukaz. soch. - P. 7 - 8. In the given context the term is used for the name of one of drevne - the German tribes which have given subsequently existence to a word vandalism, designating reckless zhesyo tokost in relation to cultural values up to their destruction.

3 After falling of Rome regional fights of the marauding military forces which have plundered Rome and other part of Europe took place. However among them was not equal in cruelty gotam till the period of crusades.


In any case, the respect of the property having sacral character, and places of departure of a cult has been connected with their religious character and was not svjayozano with their art value '.

The Middle Ages.

Individual robberies were disaster for very strong and voinstyovujushchih units as brought disorganisation and dissonance in an army and even could become the defeat reason. For this reason marauding was zapreyoshcheno at first in the theory, and then specially in practice is separated from kollekyotivnogo a robbery. However, still, the prevailing tendency was to burn down, take away, destroy «everything, that it was possible to overtake».

The relation of the Roman Catholic church to cultural values hayorakterizovalos two opposite tendencies. On the one hand, any hostile actions concerning the religious property provozyoglashalis sacrilege certificates, and with another, full neglect in otnosheyonii other "not Catholic" people, the found expression in crusades.

Crusaders have apprehended the Roman model of behaviour, having surpassed them in indifference with which the plunders were accompanied, based on the ethno-racist superiority. The majority valuable with art or with reyoligioznoj the points of view of subjects of other cultures was used as souvenirs, trophies, indemnification or derision subjects.

At the same time, the Roman Catholic church itself fell a victim of a military robbery. In the answer, church undertakes attempts obezopayosit itself and the property from hands of vandals.

In 1464 in attempt to constrain the church property stream, Daddy Py II publishes the instruction forbidding export of works of art from the possession, osuzhdajushche noticing, that soldiers spill blood of the Christ in pagans, stretch the hands not only on the treasures belonging gosu -

VerriP. The decree. soch. The-river 71.


darstvu, plunder without distinction poor and rich, but also venture proyostirat hands property Церкви1.

Process of allocation of a lump of trophies of the church property having immunity from hostile actions owing to it "bozheyostvennogo" of character proceeds. The church, whose competence is limited only religiozyonoj by soil, successfully has presented the first restriction of the right of military trophies.

The given success directly shows a judgement of Daddy Benedikta IX which, in the decision concerning capture by Czechs of the Polish property during war of 1039 among which it has appeared church utyovar, hallows sacred, bells, on argument of the Czech prince, that it it prinadyolezhit under the law of arms which they lead against Poles, has answered: «in kayokoj to war it is not necessary to plunder the Divine temples, carrying away from them relics, posvjayoshchennye to the god subjects even if it is war fair for wars are led against people, instead of against the subjects concerning to tsarstviju heavenly and divine service». Business has ended with the restitution guaranteed vyshenayozvannymi by negotiations. However historical sources speak nothing about наказании2.

The synod of the Roman Catholic church which was passing in a county to the Sphere in 989, declared, that places of departure of a cult and property henceforth are under protection, and this duty is connected with their sacral nature and not connected with their quality as works of art. The same Synod in 989 uchyoredil, that «the world and an armistice is will of the God» with a view of prohibition ograyonichennyh or in another way private wars, having anathematized all those who oskveryonjaet places of divine service and their vicinity in radius of 100 steps and is engaged in a robbery.

1 Nafziger J.A.R. International penal aspects of protecting cultural property / J.A.R. Nafziger//International Lawyer. - 1985.-Vol. 19.-P. 835.

2 Kovvalski W.W. Restituion of works of art pursuant to private and public international law / W.W. Kovvalski//Academie de droit internatioanale des cours. - Hague, 2001. - T. 288. - P. 55 - 56., and also article of the given author on the Internet. - http://spoils libfl.ru'spoik'rus'ypoiH4.html^l.


The church tries to soften consequences of wars, but not to forbid them in tseyolom, there is a division of wars on "fair" and "unfair". SvjaYOtoj Avgustin in the sermons says that capture of trophies is грехом2.

That the impression of was not made that the problem of protection of cultural values excited only a western civilisation, it is necessary to tell also, that corresponding norms can be found and in other parts of the world, and at other states representing various legal системы3.

In ancient India the just war concept ordered it uchayostnikam to leave temples and other sacred places the same as fruits and sadoyovye flowers, нетронутыми4.

Laws Manu contained the positions obliging won king to leave divine service in temples, to be fair with priests and obespechiyovat safety of people in subdued стране5.

The Koran forbids to combat in such sacral places, as мечети6.

As well as in an antiquity, during the Middle Ages epoch the military service was dostayotochno employment comfortable and profitable, rather easy and not so dangerous to a life bringing a damage public and a private property, including cultural subjects. Soldiers received few trophies in a kind proizyovedeny arts — they saw in them only market value in their "pure" weight in the form of silver and gold. Art value of products iskusyostva was considered only when they got to possession of monarchs which placed them in the коллекции7.

1 For example, crusades.

2 Bhat P.I. Protection of cultural property under international humanitarian law: some emerging trends / P.I. Bhat//Yearbook oflnternational and Refugee LAW. - Indian society of international law.-2001. Vol. 1.-P. 50.

3 Bugnion F. La genese de la protection juridique des biens culturels en cas de conflit arme / F. Bugnion//IRRC. — 2004. - Vol. 86. - Ka 854. - P. - 315.

4 Penna L. R. Written and Customary Provisions Relating to the Conduct of Hostilities and Treatment of Victims of Armed Conflicts in Ancient India/L. R. Penna//International Review of the Red CROSS. - 1989. № 278.-P. 333-47.

5 Manu VII. - P. 201., Katyayana 21., Rama Jois M. Legal and Constitutional history of India / M. Jois RAMA. - (Tripathi N. M. 1984). - Vol. 1. - 664 - 665 p.

6 Koran. Chapter II verse 191., Ereksoussi M.K. The Koran and the Humanitarian Conventions. International / M.K. Ereksoussi//Review of the Red Cross, 1962. - P. 5.

7 Verri P. The decree. soch. - P. 80.

21 Renaissance.

Renaissance in Europe which was extended up to the middle of XVIII century becomes a following stage in history of protection of cultural values. As to sights they too change. Together with domination of ideas of Reason and Beauty and that special attention which are arrested to the Person, for the first time there is an idea of protection of works of art and liyoteratury, and also lives of great people, as material embodiment cheloyovecheskogo the genius. It was expressed in theoretical attempt to allocate from a lump of trophies the subjects having cultural character.

Polish lawyer Jacob Przheluski who in the work notices that became the founder of the given idea: «cacra, literrarum et artificum nobelium monumenta conservabit integra cunctisab injuriis defence» (sacral subjects, the literary works, the most known monuments of art dolzhyony to be preserved against harm which can be caused them) 1.

Further the idea will be extended in L.Dzhenti-li, G.Gretsija, E.Vattelja's works - «fathers of founders of international law», predyoprinjavshih attempt of codification of the law of arms.

But already two discrimination to protection kulyoturnyh values at this time is outlined. One believed what to protect cultural values sleduyoet proceeding from their outstanding quality, and others considered, that protection is not meaningful until they will not cease to be the war purposes, that is pereyostanut to be used in military men целях2.

International legal protection of cultural values, rassmatrivaeyomaja in a context of a confrontation or in a peace time, became rezulyotatom two tendencies. The first consists in its criminal nature and includes an interdiction, prosecution and punishment for destructions of cultural values and their theft. The second consists in the civil nature and includes the restitution of cultural values full sobstven -

' Przyluski J. Leges seu Statuta the expert privilegia Regni Poloniae omnia.../J. Przyluski. - Cracovia. 1553. cap. I: Dc

expeditione ad bellum. F. 875.

2 Most brightly it is shown in Jacob Przhelusskogo's works and Gugo Grotsija.


To peaks which can be as the state, individuals or juridicheyoskie лица1.

In XVIII century has affirmed, that though any state could not be justified in case of destruction of the given works, except for accident or in case of inevitable military necessity, nevertheless, there was permissible a capture and confiscation of such personal estate.

With growth of cities and formation of market relations appears neyoobhodimost in protection and private property absolutization. It vyrazhayoetsja in attempt to protect a private property from encroachments of absolutely everything, not only in peace, but also a wartime. Further, attempt zashchiyotit public cultural values will lean on absolute harakyoter private property protection.

Restitution cases were not so frequent, but gradually they become an integral part of peace treaties. Since the Vestfalsky peace treaty of 1648 there are, in increasing frequency, the positions concerning restiyotutsii at first only of archives, and then and works of art, peremeshchyonyonyh during time сражений3. According to work of Polish scientist SE. Nahlika nayostojashchim the contract concluded in Muenster in 1648 which has entered a principle of the general restitution private собственности4 became break. In it it was spoken: «all personal estate and the goods, except for such as compressed uroyozhaj, to return which is not obviously possible, followed return».

Among returned objects even more often meet cultural predyomety. Such positions can be found, for example, in the Olivsky peace treaty of 1666 which has obliged Sweden to return the grasped archives and queens -

1 Bassiouni M. S Reflections on Criminal Jurisdiction in International Protection of cultural Property / M.C. Bassioni//Syracuse journal of International law and commerce. - 1982/83.-Vol. 10. - P. 280,285, 287. 1 Halleck International Law / Hallcck.-ed. By G. Sherston Baker, 1908. - 80 p.

3 Nahlik S.E. Protection of cultural property / S.E. Nahlick//International Dimensions of Humanitarian Law. - Paris / Geneva: Henry Dunant Institute / UNESCO / Martinus Nijhoff Publishers, 1988. - P. 203 - 204, Garden de C. Histoirc genc'rale des traite "s de paix et autres transactions principales entre toutes les puissances de l'Europe depuise la Paixe de Wcstphalic. - Paris: Amyot (n.d.), 14 volumes.

4 Nahlik S.E. La protection internationale des biens culturels en cas de conflit arme / NahliK, S E.//Recueil des cours de PAcaddmie de droit international / Hague. - 1967. - Vol. 120. - P. 77., Philimore F. Three Centuries of Treaties of Peace and Their Teaching / F. Philimore. - London, 1919. - 8 p. et seq.


I will hold down library Polshe1. Some of contracts even provided special restitutsionnuju процедуру2.

At all positive tendencies which were outlined during this period, at the same time there was a reservation on military necessity which will be igyorat a key role subsequently, in the course of formation and funktsionirovayonija norms on protection of cultural values. Even those who supported protection of cultural values, agreed with presence of that, doing vozmozhyonym destruction cultural ценностей3.

So, we approach to the key moment, namely a boundary XVIII - XIX centuries when extremely rough events which have burst in Europe, have put in pawn qualitatively new bases of a world order. The basic centre of events stanoyovitsja France, falling of dynasty Burbonov, and then and policy Napoleon Bonaparte, have left an indelible mark on all the subsequent evropejyoskuju history. It is enough to recollect, that because of Napoleon's plans irevratit Paris in the great centre of art in which the best would be collected proizyovedenija arts from all Europe, time of its board becomes simply the period of continuous robberies.

Created by Napoleon Luvr, has been constructed to store trophies, Napoleonic завоеваний4.

Napoleon, realising illegality of a policy carried out by it, quite often aspires to give visibility of legality to the marauding, poyosredstvom fastenings of positions about transfer of works of art with nachayola in military agreements, and later in official peace договорах5 with pokoyoryonnymi the countries. Ways of moving was much - from simple konfi -

1 L'article 9. - Acta Pacis Oliviensis inedita, Vratislava. 1763.

2 Article 102 of the Pirenejsky peace treaty between France and Spain 1659, Israel F. (ed.) Major Peace Treaties of Modern History 1648 - 1967 with an introductory Essay by Arnold Toynbee. - New York: Chelsea House, McGraw-Hill, 1967. - Vol. 1. - 108 p.

3 De Vattel E., The Law of Nations / E. De Vattel. - ed., by Chity, 1844. - 367 - 368 p.

4 Gould With Trophy of Conquest, The Musee Napoleon and the Creation of the Louvre / With Gould. - 1965., Helleni. A. P. The decree. soch. - the river 12.

5 Items 4. The peace treaty between France and Parma, concluded on May, 8th, 1796, Item 3. Contracts between France and Molenoj from May, 12th, 1796, contract Item 8 between France and the Daddy, concluded on June, 23rd, 1796


skatsii based on the requirement to give trophies, before their "legitimation" instead of the military contribution or in addition to ней1.

He resorted and to legal cunning, aspiring to legalise the kriyominalnoe behaviour. Cunning, according to American scientist D.H.measure, consisted in a presentation of official requirements about transfer doyokumentov (the state archives, etc.) to the subdued government, in sluyochae which refusal and so was in most cases, Napoleon resorted to силе2.

Plunder by Napoleon Evropy the in itself fact awful, but us interests that reaction of the European countries which has followed after this that has given the basis to some scientists to declare more: «the Essence of all of this istoyorii that thanks to the unconditional restitution which have followed for napoyoleonovskim by plunder, such norm mezhdunayorodnogo the rights as full protection of works of art and an interdiction for them zayohvat during time войны3 which did not exist before in contractual practice» definitively was established.

D.Rigbi perfectly generalises Napoleon's epoch following words: «it is probable, nobody would be knocked more strongly Napoleon, learn it, that its avidity has closed a door for marauding in Europe, and is so dense, that it managed to be sealed to peacemakers of the First World War and deryozhat so until Ldolf Hitler has not broken it from loops» 4.

Approximately at the same time, on other doomsday vice-admiral's court in Halifax, decreing concerning return of the pictures grasped anglijyoskim by a warship during their transportation from Italy in the USA, skayozhet: «All civilised nations recognise, that art and a science show soyoboj a number of exceptions of severe rules of war, possess the right on pokroviyotelstvo and protection. They are considered not as a personal property of this or that country and as the property of all mankind as a whole, belong to the common interest of all mankind. The large-scale restitution

1 Visschcr S.Ukaz. soch. - the river 824.

2 Merryman J.H. Law Etnics and Visual Arts/J.H. Merryman, A. E. Eiscn. - 1987. - Vol I. - 16 p.

3 Kowalski WAV. The decree. co4.-http:/ApoiK1ihfl.m/

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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 § 1.1. Formation of the status of cultural values.:

  2. Influence of cultural values on metaphors about transfer
  4. § 1.2. Spontaneous regulation of protection of cultural values.
  6. § 2.3. The convention of 1954« About protection of cultural values in case of a confrontation »and Additional report I to it.
  7. § 3.2. The control and responsibility over infringements of international legal norms but protection of cultural values in case of a confrontation.
  8. § 2.4. Additional report II (1999) to the Convention «About protection of cultural values to a confrontation case» 1954
  9. § 2.1. Concept of cultural values in international legal akyotah and in the international law doctrine.
  10. § 2.2. A parity of military necessity and protection of cultural values in a case pooruzhepnogo the conflict.
  11. § 3. 1. The general, special and strengthened legal modes of protection of cultural values, their application in confrontations mezhyodunarodnogo and nemezhduiarodiogo character.
  14. 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
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  16. § 4. Requirements, interests, values condemned and their role in subculture formation
  17. Patterns of formation of conceptual system of chemistry in historical and cultural development of a science