Operationalising

UNESCO International
Law Obligations through
Third State
Responsibility
Valentina Azarov
Palestine Center, 4 March 2014

Overview
1. Utilising UNESCO law to promote Palestinian
heritage protection

How to make international law work?

How to unpack third state responsibility?

2. Operationalising UNESCO law through third state

responsibility advocacy opportunities

Utilising (UNESCO)
international law
Universal standard to be upheld threshold for
assessing, exposing state practice
Used in documentation/reporting,
international media rallying, public-awareness
Naming and shaming approach
Getting compliance with international law
International law short of real law
compliance subject to political discretion
International organisations provide limited
opportunities for enforcement, often
politicised

Unpacking third state

responsibility?
Duty of non-recognition, non-aid/assistance of
internationally wrongful acts
Voluntary, non-specific

Basis for operationalising non-recognition international

law incorporated into state domestic law and public policy
E.g. EU law internalises obligation to respect international
law

Compliance/enforcement of domestic legal obligations

based on internal legal necessity, not political discretion
Brings third state to require compliance by other states in
context of inter-state relations
E.g. EU guidelines on funding to Israeli entities
based/operating in settlements (July 2013)

Enforcing UNESCO law in

Palestine
UNESCO law as a vehicle for enforcement and
restrictive measures by third states on two
levels:
(1) the general reasserting sovereign rights, third
state non-recognition of Israels unlawful acts,
regime
(2) the specific protecting cultural heritage through
fact collection, return of artifacts, accountability for
wrongdoing

Opportunities for thirdstate responsibility-based

advocacy
Three avenues, from the general to the specific
1) UNESCO as a normative actor upholding
international law and domestic law and public
policy in inter-state relations
2) Triggering enforcement by third states of illicit
transfer, trade and restitution of artifacts
museums and tour operators
3) Individual criminal accountability trial and
travel

(1) UNESCO as a normative

actor
Condemnations and countermeasures resolutions,
listing, aid suspension
Standard for third state non-recognition, refusal of
comity cannot consider Israels practice equivalent
Structure of inter-state cultural
engagement/cooperation
Require Israel to apply territorial distinction, conform to
international law
e.g. EU guidelines on R&D cooperation July 2013

Challenge Israels good standing in international

organisations e.g. OECD
Reassert sovereignty World Heritage List, 24
nautical miles of Gaza territorial waters

(2) Third state enforcement:

Museums and tour operators
Seizure, return of illicitly transferred artifacts
Raise suspicion with national authorities enforcing
domestic law, that incorporates UNESCO law laws
preventing stolen/unlawfully obtained property from
free circulation
Local museums, art dealers, auction houses etc. trading
or exhibiting artifacts from Israel required to resolve
suspicion
Third state to seek Israels law enforcement cooperation
to apply third state law with certainty
If suspicion is confirmed, not dispelled national
authorities could seize, return artifacts

Parallel to motions at UNESCOs restitution

committee

(2) Third state enforcement

Israeli tour operators, sites in settlements under
Israeli law, national budget
Foreign tour agencies misrepresenting destination,
legitimate authority violating consumer protection
law, EU and domestic
Foreign tour agencies benefit from unlawful, nonrecognisable settlement operators breaching
domestic criminal law?

(3) Individual criminal

accountability
Individual criminal responsibility for (under Hague
1954 and its Second Protocol 1999):
excavations in occupied territory;
destruction and appropriation of sites;
removal of artifacts from occupied territory

Long-standing practice, established universal

significance of cultural heritage protection
Nuremberg, ICTY
Domestic universal jurisdiction laws without
regard to nationality, requires physical presence
Obstacle: foreign policy considerations

(3) Individual criminal

accountability
If prosecution not possible
Use good standing of Israeli officials identifiable as
involved in unlawful acts
Basis for travel restrictions by third states is risk
aversive approach transnational law enforcement
rationale
e.g. Staff Officer for Archaeology (SOA), Hananya
Hizmi

Takeaways
Adopt a state/actor specific approach to advocacy,
normative action
Value of technical approach pacify political
discretion that obstructs international law
enforcement
Need coherent international law-based strategy
for engagement, rights advocacy
Build capacity for: fact-finding, documentation,
archiving a register for Palestinian cultural
property?
Consider establishing Palestinian expert team
(legal and other cultural heritage protection
experts)
Mirror domestic and international initiatives