UNESCO, Palestine and archaeology in conflict.

• Author: Keane, David
• Position: UN Educational, Scientific and Cultural Organization

1. INTRODUCTION

   On 23 November 2011, Palestine became a member of the United Nations Educational, Scientific and Cultural Organization ("UNESCO"), and acceded to and ratified a number of UNESCO's Conventions. (1) Some observers view this membership as decisive, or at least significantly dispositive, in the debate on the international recognition of Palestinian statehood. (2) UNESCO is characterized as a springboard by which Palestine can further recognition of its international sovereignty, which, at the present time, is inexorably stalled. However, this recognition is not without challenge--for example, the Prosecutor of the International Criminal Court has not recognized Palestine's acceptance of the Court's jurisdiction. (3) UNESCO has, in turn, descended into a budgetary crisis with the withdrawal of funding from the U.S. and other states, which represent twenty-two percent of its budget. (4) In February 2012, UNESCO responded to this crisis with a plan to "re-engineer" the organization, implicitly confirming that it will not allow any revocation of the Palestinian membership vote, (5) despite a campaign to "un-admit" Palestine. (6) This paper analyzes the legal consequences of Palestine's membership in UNESCO and its ratification of UNESCO conventions through an examination of the protections afforded by the UNESCO treaty framework governing cultural, amongst other forms of, heritage. This is particularly relevant as Palestine's application for UNESCO membership took place in the context of what are termed the Palestinian U.N. initiatives, intended to further Palestine's status and activate its rights as a state in the international legal order. (7) The initiatives manifested in a resolution adopted by the U.N. General Assembly on 29 November 2012 "upgrading" Palestine's observer status. (8)

   For more than a century, Palestinian cultural heritage and property has been the subject of capture and destruction by other states. Palestine's accession to various UNESCO conventions testifies to the effect that no other sovereign controls its cultural heritage and property. Palestinians have habitually asserted internationally-recognized principles as a point of departure in "final status" negotiations on what is termed the "archaeology file," (9) yet have been unable to maintain complete control of such property. Ahmad A. Rjoob of the Palestinian Ministry of Tourism and Antiquities describes Palestinian cultural heritage as "one of the most intensively abused, excavated and subsequently disturbed worldwide," (10) a result of more than a century of management from different administrations, each with its own methods of research and distinct political purpose. "The Palestinian Ministry of Tourism and Antiquities and Israeli sources estimate that between 1967 and 1992 about 200,000 artifacts were removed from the occupied Palestinian territory annually," with approximately 120,000 removed each year since 1995. (11) This hemorrhaging of Palestinian cultural property is occurring in a context where archaeology has been used by Israel "as a pretext to gain territorial control" and exercise sovereign rights "over Palestinian lands [in order] to further its settlement enterprise" and exploit natural resources. (12)

   Section II traces the history of archaeological laws and practices in Palestine, from the Ottoman era to contemporary Israeli military orders. Section III examines the rules governing the protection of cultural property during military occupation under the aegis of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, (13) and the consequences of future Palestinian ratification of the Convention and its 1999 Second Protocol. (14) Section IV tracks the illicit trade in antiquities from Palestine, and the potential effects that ratification of two instruments would have on regulation and restitution--particularly, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, (15) and 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. (16) Section V focuses on the underwater cultural heritage off the coast of Gaza and the maritime zones of legal control granted by the 2001 Convention on the Protection of the Underwater Cultural Heritage, the first international treaty that Palestine has ratified. (17) Finally, Section VI assesses the consequences of UNESCO membership, including whether membership of a U.N. agency means that Palestine can ratify instruments outside of UNESCO's competence.

2. DOMESTIC LAW AND ARCHAEOLOGY

   The era of Byzantine pilgrimage to the Middle East saw church officials encourage the acquisition of relics, and "[b]y the end of the fourth century C.E., the export ... of relics ... had reached enormous proportions." (18) This Christian interest, which spanned the Muslim conquest from the 7th century C.E. onwards, gave way to a secular interest in the region with the "growth of antiquarianism in the 18th century." (19) In this period virtually all areas of archaeological concern were under Ottoman rule. (20) Regulations on antiquities were first issued in 1869, (21) and the Ottoman rulers enacted an Antiquities Law in 1874 (Asari-Atika), including provisions that have subsequently become canonical in the legal protection of antiquities. (22) Prior to this there is no record of a sui generis antiquities law for Ottoman territories, with the exception of particular or individual archaeological activity regulated via an imperial decree, or firman, from the Sultan. (23) In 1884, a further law "established national patrimony over all artifacts in the Ottoman Empire" and required excavation permits. It deemed all artifacts discovered "the property of the National Museum in Constantinople" and prohibited their export without its permission. (24) These laws were undermined by the lack of enforcement to prevent widespread ransacking of ancient tombs and other forms of illicit digging. As one observer noted, "under Turkish rule everything was prohibited; but everything was possible." (25)

   The territorial shape of Palestine, long left undefined, was determined by the archaeologists of the Survey of Western Palestine, (26) sponsored by the London-based Palestine Exploration Fund and published in 1880. The introduction to the Survey notes that it contains "all the information that is usually found in a topographical map," (27) and it would form the contours of the post-World War I British Mandate over Palestine. (28) The Mandate Period oversaw the establishment of the Palestine Archaeological Museum and the Department of Antiquities of Palestine in 1920. (29) The antiquities law was re-drafted and the resultant Antiquities Ordinance of 1920--re-issued in 1929 (30)--replaced the existing 1884 Ottoman law, representing a "more relaxed legislation that allowed for flexibility in the export of antiquities." (31) The Antiquities Ordinance would subsequently become the basis for the Israeli and Jordanian Antiquities Laws, (32) with the latter being used as its legal basis by the contemporary Department of Antiquities of the Palestine Authority. (33)

   The Antiquities Ordinance laid down that "all antiquities whether of a moveable character or fixed in the soil which shall be hereafter discovered shall be deemed to be the property of the Government," meaning the Civil Government of Palestine, (34) but afforded provisions for a "fair division" of finds between the Palestine Museum and foreign institutions undertaking excavations. (35) This was the result of intense lobbying by the British archaeological establishment to implement more liberal antiquities laws in territories under British dominion and in stark contrast to comparable legislation in European states. (36) After the establishment of the State of Israel in May 1948:

   [T]he West Bank came under the guardianship of the Hashemite Kingdom of Jordan while the Gaza Strip was administrated by Egypt, and the Antiquities Ordinance of 1929 remained in effect in both places. Then in 1966 the temporary Antiquities Law ... was enacted by the Kingdom of Jordan and imposed on the West Bank. This law declared that antiquities are considered the national property of [Jordan].... Since the establishment of the Palestinian Ministry of Tourism and Antiquities in 1994, the Ministry ... has drafted its own version of a national antiquities law ... [which has yet to be] enacted. ... [As a result] the Jordanian Antiquities Law of 1966 is still applicable in the Palestinian Territories today. (37) Following the Israeli occupation of the West Bank and Gaza Strip in 1967, Israel governed the territory through the military's commander and civil administration, as it was the Occupying Power. The law that came to apply in the Palestinian territory under the rule of the Israeli occupier was an amalgamation of the old Ottoman and Jordanian law, some existing Palestinian law, and predominantly military legislation issued by the Israeli military commander and used to control a long list of areas of Palestinian daily life under occupation. "[R]esponsibility for archaeology transferred to two Israeli Staff Officers for Archaeology (SOAs): one for the Gaza Strip and another for the West Bank excluding East Jerusalem." (38)

   The archaeological legal framework remained largely intact with crucial modifications through military orders aimed at licensing, excavations, and the trade in antiquities. (39) "Military orders are decrees issued by the military commander" which become law for every Palestinian living in the area immediately upon issuance. (40) For archaeology, "[t]he most important was Military Order No. 119 of 1967, which revoked many of the principles of [the British Mandate Antiquities Ordinance]" and placed responsibility for antiquities under military officials. (41) According to this "Order Concerning Law Of Antiquities,"...