MEXICO CITY (Process).- King Solomon built the First Temple (1200-586 BC) shortly after King David conquered Jerusalem and turned it into the Jewish capital; when Nebuchadnezzar II (630-562 BC), ruler of Babylon, took it, he razed the building in 586 BC and expelled the Jews to this other city. Cyrus, the Persian emperor (600-530 BC), allowed them to return to Jerusalem and build the Second Temple at Yehud Medinata.
Later, already under the rule of the Roman Empire, the Jewish people insurrectioned (70 AD), but the revolt was put down bloodily: the Roman general and later emperor Caesar Titus Flavius Vespasian (39-81) destroyed the city and the Second Temple. The Arch of Titus on the Via Sacra, in Rome, commemorates the event. On the other hand, this devastation lives on with regret in the collective memory of the Jewish community, in whose tradition it is commemorated with a special day of fasting (Tisha B’av).
The sack of Syracuse by the Romans (213-212 BC) is another historical fact that, in addition to the subjugation, meant the destruction and plunder of Greek cultural assets. This Hellenistic city in Sicily contained treasures of the greatest importance that were the object of robbery perpetrated by the Roman legions. In that fight Archimedes was executed by an invading soldier, in contravention of the orders of General Marco Claudio Marcelo, who had pardoned the great sage.
The string of incidents such as those described is inexhaustible: everlasting episodes that alone demonstrate how the destruction of cultural heritage has accompanied humanity on its long pilgrimage.
In contrast, reflections stand out such as those of Marco Tulio Cicero (106-43 BC) exposed in In Verrem, his work related to the trial that he initiated against Cayo Verres in the Roman forum and in which he develops cardinal arguments in favor of safeguarding the cultural heritage. Verres, governor of Sicily, was indicted by Cicero on charges of venality and abuse of power for his looting of cultural property, including religious pieces from the Sanctuary of Ceres in Enna, Sicily (Margaret Melanie Miles).
It is precisely the Ciceronian narrative, profusely disseminated in Europe during the Enlightenment, which opened the debate in our time around the safeguarding of cultural heritage and the reintegration of cultural assets by looting, and also became the seed of legislation regarding of the latter.
Although the narrative about the cultural legacy begins with the Enlightenment, the reference for the analysis of the looting and devastation of cultural assets in times of war and conquest is contained in the famous plea of Cicero. In In Verrem, he elaborates the Roman perception regarding the cultural and social function of art, especially in public spaces, as was the case with the first public library located in the Roman forum, founded by Gaius Asinius Pollio (75AD/4BC ), who was the patriarch of Virgil and a close friend of Horace.
Our time
The technologies of the contemporary era have inexorably instilled a new behavior in human beings; Although these have favored universal access to culture, at the same time they have exacerbated xenophobic attitudes and, even more so, religious intolerances that have gained the right of the city. (Ana Vrdoljak and Lynn Meskel).
Currently, the looting of cultural property has not changed substantially from that practiced in antiquity; the only difference is the form of devastation. Despite this, and in accordance with Cicero’s dictum, over time national and international legislation related to the safeguarding of cultural heritage has been developed; evolutionary process in which they have had multiple interstices and have described a solution of continuity.
It was in the second part of the 20th century when the international community was finally able to conclude international conventions on the matter, although always under the domination of the West, which, in effect, was the one that had a decisive influence on the configuration of these laws, on the which prevailed as the cornerstone of the notion of property with regard to tangible cultural heritage.
As time progressed, however, a transfiguration of cultural property into a cultural legacy was gestated; very deep metamorphosis that, in countries of Africa, Latin America and Asia, meant abandoning the transactional terms of ownership, typical of relationships between individuals, and replacing them with the notions of guardianship and custody in community and intergenerational contexts.
Thus, in our region, the Inter-American Court of Human Rights (IACHR) dispensed with the right to property and privileged the spiritual bond with the land that indigenous communities maintain in their settlements.
At the universal level, this metamorphosis can be clearly identified in the Unesco prescriptions. In the Convention on the Measures that Must Be Adopted to Prohibit and Prevent the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 Convention), which is the axis for combating illicit trafficking, the notion of property, in great confrontation with the Convention for the Safeguarding of the Intangible Cultural Heritage of 2003, also from Unesco, which refers to an essentially mutable and community heritage in which the emphasis lies on its guard and custody.
This evolutionary process tends towards a holistic understanding of the cultural and natural heritage, whose binding interaction is more than evident; Such a vision has been viable due to the fundamental participation of the IACHR and the Supreme Courts of Justice through the jurisprudential creation of a new cultural model.
The protagonists
In the twilight of the 20th century, the evolutionary process of cultural legislation is characterized by social insurgency against the status quo driven by new actors, such as indigenous communities, non-governmental organizations (NGOs), minorities, migrants and local communities. LGBTIQ, among others; but it was the emerging indigenous movement that promoted the most significant constitutional changes in Latin America at the end of that century and on the threshold of the 21st.
The clarification is necessary: the traditional scheme of actors in international law was reserved exclusively for States and their interaction with their peers, and its foundation was the notion of sovereignty. Now the States have been forced to alternate in the international arena with these new actors.
Furthermore, this social effervescence forced the UN Human Rights Council Rapporteur for Cultural Rights to postulate that, in terms of access to culture, new and legitimate interests should be recognized in the field of cultural heritage (2011 report). . Despite these sustained efforts, it must nevertheless be admitted that, as in any profound social process, this recognition is gradual, and these new interests, moreover, have a limited scope, even as a result of the inconvenience of the States themselves.
international law
Any analysis of the different multilateral conventions on culture allows us to conclude that, despite the emergence of the new actors already mentioned, the intervention of national States is decisive, since they arrogate to themselves the prerogative of determining what should be culturally protected. , an act that derives in cultural hegemony, such as that resulting in the 1970 Convention or the 1972 Convention on the Protection of the World Cultural and Natural Heritage.
In the latter, tensions between States and cultural communities, especially indigenous ones, are observed. In the case of Kenya, the state inscribed the lake area as a world cultural heritage site after the local indigenous communities had already obtained a favorable resolution from the African Commission on Human Rights recognizing their rights over that sacred region. The resulting pandemonium is easily imagined.
To mention the obvious, there is a clear fragmentation of international legislation on the subject of culture, caused by the preparation of the Conventions in different interstices of the evolutionary process, highly ductile, of culture, the latter inserted in perfectly defined universal historical cycles. Thus, the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954) and its Protocol I were drawn up during the Cold War, and its Protocol II during the Balkan War.
The urgency in safeguarding cultural heritage is confronted with the sovereign zeal of the members of the international community, few of whom are willing to assume obligations on this same scale and cede an armament of their sovereignty, for which reason in the conventions There is hardly any full representation of the international community within Unesco.
In the Al Mahdi precedent (Prosecutor v. Ahmad Al Faqi Al Mahdi) the International Criminal Court (ICC) sentenced the perpetrator Mahdi for the destruction of the Islamic temples of Timbuktu in Mali. The body founded and motivated its resolution in the interest of the international community that assisted it, personified in the case by Unesco. Although the significant advance is undeniable, the type of crime that the ICC considered was a war crime, when the appropriate figure would have been a crime against humanity.
The resolutions of the UN Security Council have had cardinal importance, especially that of 2017 (Resolution 2347); What is transcendent in this is the displacement of international obligations, previously limited to conflicts between defined countries or specific regions (inter partes obligations), and the fact of recognizing a general effect that makes them valid for the entire international community as regards to the destruction and plunder of heritage (erga omnes obligations). It is, therefore, an expansive effect that began in the last decade of the 20th century.
Human rights
For the rest, the contemporary movements that claim human rights have kept pace with the new actors in the international arena and are distinguished by upholding cultural, individual or collective rights, especially in the legislation of industrial property and in the culturalization of rights. human rights. This has allowed indigenous communities to access the benefits of their creations and full participation in cultural life.
The aforementioned movements precipitated a number of pronouncements, such as the United Nations Declaration on the Rights of Indigenous Peoples of 2007 and the late American Declaration on the Rights of Indigenous Peoples of 2016, in a region whose ethnic composition is heterogeneous, with large indigenous segments.
Furthermore, these phenomena have given rise to what is known as the culturalization of human rights, both in domestic and international legislation.
Epilogue
Despite the fragmentation of the Unesco Conventions and their different approaches in relation to the cultural legacy, there is an evident reciprocal pollination through holistic interpretations whose objective is to create a basic harmonic corpus juris.
The jurisprudential work has allowed giving the same conventions a current meaning and reversing their diachronic effect; Thus, together with UNESCO, international organizations such as the International Criminal Court, the UN Security Council and the United Nations Office on Drugs and Crime (UNODC), culture has been substantiated as a global public good, as it was postulated in Mondiacult Mexico 2022.
* PhD in Law from Panthéon-Assas University.
Text published in number 2434 of the printed edition of Proceso, in circulation since June 25, 2023.
