PATENTABILITY OF A PLANT

THE LAW ON PATENTS

IP CODE - Republic Act No 8293

An act prescribing the intellectual property code and establishing the intellectual
property office, providing for its powers and functions, and for other purposes.

1. PATENTABLE MATTERS

Patentable Inventions. — Any technical solution of a problem in any field of human activity
which is new, involves an inventive step and is industrially applicable shall be Patentable. It may
be, or may relate to, a product, or process, or an improvement of any of the foregoing. (Section
21)

Non-Patentable Inventions. — The following shall be excluded from patent protection:

22.1. Discoveries, scientific theories and mathematical methods;

22.2. Schemes, rules and methods of performing mental acts, playing games or doing business,
and programs for computers;
22.3. Methods for treatment of the human or animal body by surgery or therapy and diagnostic
methods practiced on the human or animal body. This provision shall not apply to products and
composition for use in any of these methods;
22.4. Plant varieties or animal breeds or essentially biological process for the production
of plants or animals. This provision shall not apply to micro-organisms and non-
biological and microbiological processes.

Provisions under this subsection shall not preclude Congress to consider the enactment of a law
providing sui generis protection of plant varieties and animal breeds and a system of community
intellectual rights protection:

22.5. Aesthetic creations; and

22.6. Anything which is contrary to public order or morality. (Section 22)

Can plant breeds and animal breeds be patented?

No. Plant breeds and animal breeds or essentially biological processes for the production of
plants and animals are not patentable. However, sui generis protection is provided for plant
varieties under Plant Variety Protection Act of 2002.

However, microorganisms and non-biological and microbiological processes are excluded from
the application of Section 22.4 of the Intellectual Property Code of the Philippines, which
proscribes the protection of plant breeds and animal breeds.

Can products originating from nature be patented?

Natural products in exactly the same form as they are found in nature are not patentable.
However, it is possible to patent a product originating from nature that is in a form in which it
does not occur naturally. For example, an antibiotic separated from a microorganism may be
patented.
Plant Variety Protection Act of 2002 (RA 9168) - AN ACT TO PROVIDE PROTECTION TO
NEW PLANT VARIETIES, ESTABLISHING A NATIONAL PLANT VARIETY PROTECTION
BOARD AND FOR OTHER PURPOSES

THE PHILIPPINE PLANT VARIETY PROTECTION OFFICE

The Plant Variety Protection Office (PVPO) was created through Republic Act 9168, An Act to
Provide Protection to New Varieties, Establishing a National Plant Variety Protection Board and
for other purposes. This law is otherwise known as the Plant Variety Protection Act of 2002.

The PVP Act of 2002 is the legal basis of a sui generis system of intellectual property
rights.

The Act provides rights to plant breeders over the propagating material of their protected
variety. Specifically, the law states In respect of the propagating materials, holders of a
Certificate of Plant Variety Protection shall have the right to authorized any of the following acts:

 Production or reproduction;
 Conditioning for the purpose of propagation;
 Offering for sale;
 Selling or other marketing;
 Exporting;
 Importing; and
 Stocking for any purpose mentioned above.

The PVPO is under the Department of Agriculture-Bureau of Plant Industry, and a Registrar
heads the Office. The PVP Office has the following functions:

 Receive and conduct examination of applications for plant variety protection;

 Receive petitions for compulsory license for transmittal to the Board; and
 Maintain a systematic record of all Certificates of Plant Variety Protection, a database of
existing plant varieties collected from both local and foreign sources, and samples of the
propagating materials of the protected variety.

Section 17. Entitlement. - Any breeder, with respect to the variety developed, may apply for a
plant variety developed, may apply for a plant variety protection and obtain a Certificate of Plant
Variety Protection upon compliance with the requirements of this Act.

Section 39. Coverage of Protection. - The rights of holder under Sections 36 and 38 of this Act
shall also apply in relation to:

a) Varieties which are essentially derived from the protected variety, where the protected variety
is not itself an essentially derived variety;

b) Varieties which are not clearly distinct from the protected variety; and

c) Varieties whose production requires the repeated use of the protected variety.
Section 40. Essentially Derived Varieties. - For the purpose of paragraph 39(a), a variety shall
be deemed to be essentially derived from the initial variety when:

a) it is predominantly derived from the initial variety, or from a variety that is itself predominantly
derived from the initial variety, while retaining the expression of the essential characteristics that
result from the genotype or combination of genotypes of the initial variety;

b) It is clearly distinguishable from the initial variety; and

c) Except for the differences which result from the act of derivation, it conforms to the initial
variety in the expression of the essential characteristics that result from the genotype or
combination of genotypes of the initial variety.

Section 41. Manner of Developing Essentially Derived Varieties. - It shall also be understood
that essentially derived varieties may be obtained through processes which may include, but not
limited to, the selection of a natural or induced mutant, or of a somoclonal variant, the selection
of a variant individual from plants of initial variety, backcrossing or transformation by genetic
engineering. Genetic engineering shall be understood as the introduction of genes by laboratory
techniques.

Section 42. Provisional Protection. - An applicant for a Certificate of Plant Variety Protection
shall be entitled to equitable remuneration from any person who, during the period between the
publication of the application for the certificate and the grant of that certificate, has carried out
acts which, once the certificate is granted, required the holder's authorization as conferred in
this Act: Provided, That the applicant shall initiate the legal action against the alleged infringer
within two (2) years from the date of the granting of his Certificate of Plant Variety Protection.

Section 43. Exceptions to Plant Variety Protection. - The Certificate of Plant Variety Protection
shall not extent to:

a) Acts done for noncommercial purposes;

b) Acts done for experimental purposes;

c) Acts done for the purpose of breeding other varieties, except when Sections 39 and 40 apply;
and

d) The traditional right of small farmers to save, use, exchange, share or sell their farm produce
of a variety protected under this Act, except when a sale is for the purpose of reproduction
under a commercial marketing agreement. The Board shall determine the condition under which
this exception shall apply, taking into consideration the nature of the plant cultivated, grown or
sown. This provision shall also extend to the exchange and sell of seeds among and between
said small farmers: Provided, That the small farmers may exchange or sell seeds for
reproduction and replanting in their own land.

Section 44. Exhaustion of Plant Variety Protection. - The Certificate of Plant Variety Protection
shall not extend to acts concerning any material of the protected variety, or a variety covered by
the provisions of Sections 39 and 40 hereof, which has been sold or otherwise marketed by the
breeder or with his consent in the Philippines, or any material derived from the said material,
unless it:
a) Involves further propagation of the variety in question; or

b) Involves the export of the variety, which enables the propagation of the variety, into a country
that does not protect the variety of the plant genus or species to which the variety belongs,
except where the exported material is for final consumption purposes.

Section 45. Rights of Attribution. - No Certificate of Plant Variety Protection shall be issued
without naming the breeder(s) unless this right is protested in writing within one (1) year.

Section 46. Succession/Transmission. - The Certificate of Plant Variety Protection shall be

considered as a property right and the transmission thereof shall be governed by the law on
Property.

Infringement

Section 47. What Constitutes Infringement. - Except as otherwise provided in this Act, any
person who without being entitled to do so, performs the following acts:

a) Sell the novel variety, or offer it or expose it for sale, deliver it, ship it, consign it, exchange it,
or solicit an offer to buy it, or any other transfer of title or possession of it; or

b) Import the novel variety into, or export it from, the Philippines; or

c) Sexually multiply the novel variety as a step in marketing (for growing purposes) the variety;
or

d) Use the novel variety in producing (as distinguished from developing) a hybrid or different
variety therefrom; or

e) Use seed which had been marked "unauthorized propagation prohibited" or "unauthorized
seed multiplication prohibited" or progeny thereof to propagate the novel variety; or

f) Dispense the novel variety to another, in a form which can be propagated, without notice as to
being a protected variety under which it was received; or

g) Fails to use a variety denomination the use of which is obligatory under Section 15; or

h) Perform any of the foregoing acts even in instances in which the novel variety is multiplied
other than sexually, except in pursuance of a valid Philippine plant patent; or

i) Instigate or actively induce performance of any foregoing acts, may be sued by the holder,
who may also avail of all such relief as are available in any proceeding involving infringements
of other proprietary rights.

Section 48. Where to Commence Action. - Any holder may petition the proper regional trial
court for infringement of his plant variety protection as defined in this Act.

Section 49. Presumption of Validity. - Certificate of Plant Variety Protection shall be presumed
valid and the burden of proof of their invalidity shall rest on the party assailing them.
 GUNTHER HANDL
State Liability for Accidental Transnational Environmental Damage by Private Persons

A striking feature of our times is that private individuals and corporations are engaging
increasingly in activities that may result in significant accidental damage to the transnational
environment. The international community has responded to this phenomenon by strengthening
the transnational accountability of the private actors. Significant efforts have been made to
obtain wide international acceptance of the principle of “equal right of access,” that is, the right
of the actual or potential victim of transnational pollution to have recourse, for the purposes of
both prevention and compensation, to the national authorities that exercise jurisdiction or control
over the private actor concerned. A similar endeavor is discernible towards ensuring, at least in
certain cases, that the private actor will maintain minimal financial resources for compensating
victims of accidental transnational pollution damage.

OBLIGATION TO PROTECT CULTURAL PROPERTY UNDER INTERNATIONAL

HUMANITARIAN LAW

Cultures use properties as the media of expression and blossom them into proud cultural
property of the community. The creative human genius, in the process, flowers into arts,
architecture, sculpture, monument, painting, literature and other innumerable forms of aesthetic
manifestations. Transcending the geopolitical boundaries, they constitute cultural heritage of the
mankind irrespective of the point whether they are products of individual talent or of group
effort.2 From the perspective of specific culture, the cultural property that it produces is an
overt mark of its identity,3 a repository of cultural and traditional informations,4 and an
essential thing for cultural group’s self-understanding.5 Being visible symbols of culture and
creativity,6 great pieces of art are irreplaceable things,7 as they attempt to grasp eternity by
their beauty and grace.

It is the mankind’s sad experience that armed conflicts result in intentional or unintentional
devastation of cultural property. While earlier wars witnessed deliberate destruction of enemy’s
cultural property as a measure of annihilation of enemy’s power, modern armed conflicts with
their more destructive mechanisms inflict extensive loss to cultural property. Such destructions
and their cultural function, offend inter-generation equity, and impoverish the world’s intellectual
and artistic attainment. The anger that suppression of culture breeds in the context of armed
conflicts, in fact, feeds the subsequent generation’s motives for retaliation. As Etienne Clement
observes. “[loss] of, or damage to, treasured structures cause despair and feelings of
overwhelming suffering to the inhabitants of the affected area; it also makes the rehabilitation of
their community much more difficult when the conflict is over”.9 Extensive damage to Iraq’s
antiquities during gulf war (1991), massive ‘cultural genocide’ in the former Yugoslavia involving
destruction of Sarajevo’s numerous churches, mosques and libraries - many of which were built
in the 14th and 15th century - and destruction of sixty three percent of Croatia’s Dubrovnik, the
most outstanding historic town of Europe with 460 monuments (1992-93) are some of the recent
examples of cultural destruction.10 The latest addition to the unfortunate list of destructions is
the destruction of the colossal images of Buddha at Bamiyan of Afghanistan during February
and March 2001. This occurred in a non-international conflict as a measure of fanatic
subjugation and as a means of drawing the attention of the international community for
recognition and economic assistance.
International community has responded from time to time for enhancing the extent of protection
of cultural property. From the Leiber Code to the Second Protocol (1999), to the provisions of
the Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of
Armed Conflict, (hereinafter referred to as the Hague Convention) the norms and measures of
protection to cultural property got crystallized, stabilized and developed. The objective of the
present paper is to comprehend the broad direction of the development and to evaluate the
efficacy of the cultural heritage law in times of crisis. It views that the approach of
multiculturalism, the enhancement of protective measures and standards, down-playing the
factor of military necessity, criminalization of the wrongs against cultural property and more
clear extension of legal norms to protect cultural property during internal conflicts are the major
trends in cultural property law under International Humanitarian Law (hereinafter referred to as
IHL) in recent times. It argues that while these are welcome trends, more serious and intensive
application of these legal norms and adequate preparation towards these objectives during the
time of peace are required; and that, this ought to be done by international cooperation and
administrative actions, by effective incorporation of these values into the municipal legal system
and by building a broad-based public opinion in support of cultural property.

A HISTORICAL OVERVIEW

According to Agnipurana the concept of just war ordained the parties to leave the temples and
other places of worship as well as the fruit and flower garden unmolested. Manu holds that the
victorious king should worship in the temples, honour the priests and proclaim peoples’ safety in
the conquered country. Koran prohibits fighting in sacred places like mosques. St. Augustine
preached in ‘Truce of God’ (989 AD) against looting and desecration of places of worship.The
edict of Frederick I (1158 AD) prohibited plundering during war.

Inspite of abundant principles of humanism in religion and morality, wars were fought in the past
with ruthless savagery. The fall of Carthage, Alexandria, Constantinople, Samarquand and
Vijayanagar hugely imperilled culture. In ancient Greece and Rome wars were aimed at
complete annihilation of the enemy and enrichment of the victorious. Historian Polybius
contracts Alexander’s policy of respect for sacred places during war to Philip’s wicked acts of
plundering, and views that although destruction of fort and resources of enemy may weaken the
enemy and enhance one’s position, no advantage could be derived from wanton destruction of
temples and statues. False belief about deities’ involvement in war motivated destructions
during Roman wars. Looting was the standard procedure during those days. However,
condemning the plundering of artistic treasure, Cicero pleaded that war should spare private
and public buildings, sacred and secular, and all works created for adornment or dedicated to
religion.

In the early Middle Ages when the Goth ruler Totila laid siege on Rome and was about to set
fire, Belisarius, one of the Generals of Justinian wrote to Totila, building works of art in a city can
only be the undertaking of wise men who know how to live with civility; whereas destroying
existing ones can only be the work of lunatics who are not ashamed of going down in history as
such ... If you win this war, by destroying Rome, you will not have destroyed some one’s
property, but your own, whereas if you preserve it, you will logically acquire the most precious of
all artistic heritage”. The advice was respected and Rome was saved from destruction (546
A.D.) Contrasted with this are the destruction of old Greek libraries in Alexandria (642 A.D.)
which treasured the literature of centuries and the outrageous sack and plundering of
Constantinople during the Fourth Crusade. W.N. Weech describes the battle thus:
“the palaces were burnt. The accumulated treasures of antiquity were recklessly looted and
destroyed. The richest monuments went into the melting pot for the value of their metal. The
libraries containing the assembled literature of the classical and early Christina ages, went up in
flames”.

Similarly, Chengiz Khan’s destruction of Samarquand made to disappear the arts and crafts that
had flourished in Central Asia for hundreds of years. The splendid city of Vijayanagar was
rendered to ruins after its defeat (1565 A.D.). In this context, Jawaharlal Nehru observed:
“All the beautiful buildings and temples and palaces were destroyed. The exquisite carvings and
sculptures were smashed, and huge bonfires were lit to burn up everything that could be burnt”.
Medieval India witnessed large scale destruction and plundering of places of worship during
war.

Deviating from the above savage practices, humanity began to evolve a finer principle that
works of art and places of worship shall not be destroyed. Vattel (1714-1767), a pioneer
international law jurist, stated that whatever the reasons for ravaging a country, buildings and
works outstanding for their beauty must be spared, since they were a credit to making and in no
way contributed to strengthening the enemy; that nothing could be gained by destroying them,
and blithely to deprive oneself of these works of art was tantamount to declaring oneself an
enemy of mankind. This ideal did not remain merely as a theoretical one. The Leiber Code of
1863 instructed that the property belonging to churches, establishments of education, and
museums of the fine arts shall be considered as public property and hence immune from
appropriation by the victorious army (Art. 34). Classical works of art, libraries, scientific
collections and precious instruments shall be protected against avoidable injuries (Art. 35).
Bluntschli, commenting on the code, views that it is the duty of the enemy chief to prevent the
pointless destruction of noblest products of the human spirit. Henry Dunant, the initiator and one
of the founders of the Red Cross, warned the future generations against outdoing each other in
destroying the most beautiful masterpieces of which civilisation is proud: palaces, castles, ports,
docks, bridges, buildings and monuments of all kind.

Following the Leiber Code, the English, Italian, Spanish, German and Japanese codes
stipulated that moveable and immovable properties dedicated to science or art, churches,
museums, libraries, collections of art and archives shall be treated as private property and be
spread from bombardment.32 The Brussels Declaration of 1874 not only reiterated these
principles but also imposed a duty on the besieged to indicate the presence of such buildings by
distinctive and visible signs to be communicated to the enemy beforehand.

The Oxford Manual of 1880 went a step ahead in penalizing offender of cultural property. The
Hague Convention of 1907 imposed liability upon the belligerent party which violated the
Convention to pay compensation. In the background of extensive destruction of cultural
property because of sophisticated methods of warfare during the two world wars, the Hague
Rules of Air Warfare 1922, Roerich Pact 1935 and the Inter-Allied Declaration 1943 recognized
the cultural property as neutral, and imposed international duty of respect and protection for
them. The lacuna in the earlier law relating to precautionary measures were highlighted by the
Archaeological Society of Netherlands. The Nuremberg Trial unfolded facts about atrocities and
misappropriation of cultural property.

In this background, the UNESCO, which shoulders the responsibility for the preservation of the
cultural heritage of humanity, initiated the move for cultural property convention in 1949. The
outcome is the landmark Hague Convention of 1954. The Convention is based on the idea that
preservation of the cultural heritage is not only a matter for the state on whose territory it is
located, but is of great importance for all peoples of the world, and deserved international
protection. Realizing the need for enhanced protection of cultural property and to tone down the
rigors of military necessity, especially in the light of Gulf war and Yugoslavian conflicts, the
Protocol of 1999 was adopted.

TRENDS TOWARDS MULTICULTURALISM IN THE PROTECTION OF CULTURAL

PROPERTY UNDER IHL

Co-existence of multitude cultures with a sense of toleration and co-operation with undisturbed
continuance of cultural markers and physical objects irrespective of race, religion and language
is a factor undergirded by International Humanitarian Law on protection of cultural property. It
can be seen below how the very meaning of cultural property got developed on lines of
multiculturalism and how the basic objectives of cultural property law tend to promote
multiculturalism. Gradual decline of the theory of territoriality in this sphere also supports the
cause of cultural pluralism.

Meaning of Cultural Property and its Conduciveness for Multiculturalism

Art. 1 of the Hague Convention, 1954 states that the “term ‘cultural property’ shall cover,
irrespective of origin or ownership movable or immovable property of great importance to the
cultural heritage of every people, such as monuments of architecture art or history, whether
religious or secular; archaelogical sites; groups of buildings which, as a whole, are of historical
or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or
archaelogical interests; as well as scientific collections and important books or archives or of
reproductions of the property defined above”. It also covers buildings whose main and effective
purpose is to preserve or exhibit the movable cultural property, such as museums, large
libraries, archives and refuges and also centers containing a large amount of cultural property
as defined above. The definition is broad enough to cover all the properties which every
respective people consider it as of great importance to their cultural heritage. Hence, too narrow
an interpretation that confines ‘great importance’ to only world renown items such as the
Coliseum, the Sphinx, the Taj Mahal or Mona Lisa will not be appropriate. Judge Weeramantry
in the Legality of Nuclear Weapons case favoured a view that all property listed or scheduled by
high contracting parties form considerable segment of cultural heritage. Judge Nagendra Singh
made an extra judicial observation that “the cultural objects and properties which make up (one
state’s) national heritage (are), consequently, the world’s heritage”. The idea that cultural
heritage of mankind is an aggregate of diverse particularisms is according to Niec, the “practical
realization of the principle that in international relations the cultures of individual nations are
equal.”

The concept of cultural equality percolates into the empirical reality of cultural diversity within
the nation. UNESCO does not subscribe to the essential notions of cultural homogeneity. As
R.O’Keefe observes, “Just as the cultural heritage of mankind is the sum of the heritages of the
respective nations, so too each national heritage is the sum and usually subtle blend of the
various cultures found within that nation, be they ethnic, religious, linguistic, class-based, caste-
based, urban, rural, youth, sub or counter cultures”. Hence, national governments cannot ride
roughshod over the views of non-governmental cultural groupings and associations while
compiling register of national heritage. Popular participation in the listing process by all the
communities including minorities and indigenous bodies is contemplated. In the context of
internal conflicts as in Bosnia-Herzegovina, the minority’s participation in identification of cultural
property becomes a measure of significant safeguard. On the whole the integration of the idea
of cultural equality into the very meaning of cultural property is conducive for multiculturalism.
The Objective of Cultural Property Law under International Humanitarian Law

Humanitarian tradition has two dimensions: first, protection of the physical welfare of the person
by providing him/ her medical aid, food, shelter and freedom from torture; and second,
protection of spiritual and emotional welfare by enabling mobility, family life and access to
cultural life. Since cultural property constitutes one of the basic elements of civilization and
national culture, its protection avoids emotional embitterment, and contributes towards
fortification of the defence of peace in the very minds of people.

The preamble to the Hague Convention 1954 recites: “Being convinced that damage to cultural
property belonging to any people whatsoever means damage to the cultural heritage of all
mankind, since each people makes its contribution to the culture of the world; considering that
the preservation of the cultural heritage is of great importance for all peoples of the world and
that this heritage shall receive international protection”. A significant point of multiculturalism is
made out in this proposition. The very recognition of the fact that each culture’s physical objects,
art, sculpture, monuments and literature add to the heritage of mankind reflects competence of
each cultural group to participate in world culture with an equality of opportunity along with
preserving its own originality. Being nourished by the streams of several cultures, the world
culture has an obligation towards safe continuation of each culture ‘s physical context which is
inextricably linked to its identity. “This critical preambular recital posits the cultural heritage of
mankind as the material sum of the respective national cultures, rather than the manifestation of
the sort of cultura franca suggested by the narrow reading of Article 1” observes R.O’Keefe.

The Preamble takes cognizance of the fact that cultural property has suffered grave damage
during recent armed conflicts and that, by reason of the developments in the techniques of
warfare, there is increasing danger of destruction. It believes that protection of cultural property
cannot be effective unless both national and international measures have been taken to
organise it in time of peace. The thrust of the above objective is spread over the operative
provisions of the Convention.

THE SHIFT FROM ‘NATIONAL PATRIMONY’ TO ‘COMMON CULTURAL PROPERTY’:

IMPLICATIONS

The concept of national cultural patrimony views cultural objects produced, or first discovered,
within a state as belonging to that state based on special relationship between that state’s
people and their cultural artefacts. It argues against decontextualization of cultural property of a
colonial state by the excessive possessive instinct of imperial rulers, soldiers and entrepreneurs.
With the assertion of independence, former colonies began to enact laws asserting state
ownership and control over all the vestiges of the past within their frontiers. Although it is an
argument against colonial exploitation of cultural property, it was paradoxically employed by
Hitler for territorial expansion of Germany on the pretext that cultural property of German origin
was ‘traced’ in non-German territory of Europe, and that logically the territory became part of
Germany. In the post-war period the National Patrimony theory posed two dangers: first,
negative isolationist effect arising from delinking of other countries from access to cultural
property of the ‘patrimony’ state; and second, the destruction of, or disrespect to cultural
property of the minority by the majority of the ‘patrimony’ state. The notion of territorial
sovereignty underlying the doctrine of national patrimony would shut out protective intervention
by other nations.
After the categorical declaration in the Hague Convention of 1954 that cultural property
belonging to any people constituted cultural heritage of all mankind, the territorial sovereignty
theory in this sphere is diluted. But it is only down but not out, especially in view of the principle
in the UN Charter protecting the territorial integrity of the nations (Art. 2.4.). The concept of
common cultural property imposes obligation upon all the High Contracting Parties and their
people to safeguard and respect cultural property, whether in their own territory or in the territory
of others. It is a controversial issue whether and in which circumstances the Security Council of
UN may take collective security measure under Art. 3955 to restore peace and thus protect
cultural property. In the background of destruction of 400 mosques and 200 churches at Serbia,
fall of cultural city like Dubrovnik at Croatia or destruction of Mostar bridge in 1990s it has been
viewed by some scholars like Catherine Vernon that prompt protective intervention by the
international community under the leadership of the UN would have prevented the destruction.
It is submitted, although such serious measure may be well within the framework of international
law, it is only the circumstance of grave apprehension of threat to peace that would justify such
a measure. The contemplation in the preamble to the Hague Convention that cultural property
should receive international protection can be understood to include international community’s
duty to abstain from damaging, and its duty to avoid damage by positive interference in such
circumstances of grave necessity.

The shift from ‘national patrimony’ to ‘common cultural property’ is also a shift from right
perspective to duty perspective. The new concept calls for increased international co-operation
in the field of preservation of cultural property. As J. Crabb views, the solidarity of the
international community can be further intensified in both the political and humanitarian spheres
by an increased concern for the protection of cultural property. Another factor to be noticed is
that the new concept has not dismantled the customary international law principles and treaties
that recognize the right and duty of the country of origin within whose boundary the cultural
property is situated.

THE SCHEMES AND MEASURES FOR PROTECTION OF CULTURAL PROPERTY

The schemes and measures for protection of cultural property are spread over several
Conventions, Protocols and other accepted norms. The underlying policies include prohibition of
destruction, obligation to safeguard and respect, transportation to safe places, special
protection, enhanced protection and creation of public opinion through dissemination of the
message underlying the law.

Prohibition of Destruction

Under the laws and customs regulating land warfare, aerial warfare and war at sea the
belligerents are ordained to take all necessary steps to spare, as far as possible, buildings
dedicated to public worship, art, science or charitable purposes, historic monuments and
hospitals. Article 16 of the 1977 Protocol II to Geneva Convention 1949, states, “it is prohibited
to commit any acts of hostility against historic monuments, works of art or places of worship
which constitute the cultural or spiritual heritage of peoples, and use them in support of the
military effort”. The prohibition of destruction is implicit in the idea of safeguard and respect
contemplated in the Hague Convention 1954 (Articles 2, 3 and 4).

Safeguard of, and Respect for Cultural Property

Safeguarding of cultural property situated within the territory of each High Contracting Parties to
the Hague Convention against the foreseeable effects of war is a duty cast upon them, which is
to be discharged by making necessary preparation during peace (Art. 3, Hague Convention,
1954). Under the Hague Regulations, making inventory and registration of cultural property by
following the prescribed procedure, display of Blue Shield flag and providing special shelters to
them or evacuation and transportation of them are contemplated (Arts. 12-15, 18). Fairness
demands that the listing process should involve popular participation, and community-based
nominations coordinated by religious and ethnic minorities.

The obligation to respect cultural property by refraining from any act of hostility directed against
such property and by refraining from using it or its surroundings in such a way as to expose it to
destruction or damage in the event of armed conflict is imposed under Art. 4. Although this is
subject to waiver on account of military necessity, the factor of military necessity is structurised
by laying emphasis on objective considerations. The duty of nations to prohibit theft,
misappropriation and vandalism also adds to the duty of protection of cultural property (Art. 4.3).
The occupying powers have also similar duties. (Art. 5).

Special Protection and Enhanced Protection

Apart from the general protection discussed above (5.2), two more levels of protection are
available. Special protection under the Hague Convention of 1954 and enhanced protection
under the 1999 Protocol are available under International Humanitarian Law. A limited number
of refuges intended to shelter movable cultural properly and centers containing monuments and
other immovable cultural property of very great importance need to be placed under special
protection. But they should have been situated at an adequate distance from vulnerable point of
military objectives like defense establishment, aerodrome, etc. and should not have been used
for military purpose (Art. 8.1). ‘International Register of Cultural Property under Special
Protection’ contains the entries of such properties. The cultural properties getting special
protection shall be marked with the distinctive emblem of Blue Shield (Art.10) and shall be
immune from any act of hostility against it or its surrounding places (Art.9). But the immunity is
withdrawable when the opposing party violates the obligation under Art. 9 so long as the
violation persists (Art. 11.1). It is also withdrawable ‘in exceptional cases of unavoidable military
necessity, and only for such time as that necessity continues’ (Art. 11.2).

The weakness of the ‘Special Protection’ measure consists in unilateral withdrawal of the
immunity by violation of the obligation and flexibility in the factor of military necessity. The
weakness came to the limelight in the developments of 1990s. The 1999 Protocol tries to
overcome these weaknesses by constituting International Committee for Protection of Cultural
Property (ICPCP) and by entrusting upon it the exclusive power to suspend or cancel enhanced
protection (Art.14). The ICPCP is contemplated to be an impartial and neutral international body
committed to the cause of protection of cultural property. Compared to the scope under the
Hague Convention 1954 to go for unilateral withdrawal of immunity by a State Party, the 1999
Protocol is definitely a positive development, since it is the representative body of the
international community that decides the question of non-availability of enhanced protection.
Further, the ICPCP is required to afford an opportunity of hearing to the parties before
cancelling or suspending the enhanced protection (Art, 14.4). However, these are only checks
against arbitrary withdrawal of protection to cultural property. But when the criteria for enhanced
protection ceases to continue or when serious and continuous violation of enhanced system of
protection persists, the enhanced protection can be stopped subject to compliance with these
procedural safeguards. Such situations are to be considered as exceptional and those arising
only in circumstances of impossibility.
To have enhanced protection, the cultural property should satisfy three conditions: (i) it should
be cultural heritage of the greatest importance for humanity; (ii) it is so recognized and protected
by adequate legal and administrative measure; and (iii) it is not used for military purpose and
the party undertakes not to use it for the same. (Art. 10). It is to be noted that unlike the Hague
Convention, the 1999 Protocol does not adopt adequate distance from military objective as the
criterion for identification of enhanced status. The ICPCP grants the enhanced status on the
basis of request by the parties and specific recommendations by the International Committee of
the Blue Shield and other NGOs (Art. 11). It is submitted, that this enables wider communitarian
participation in the identification of cultural property that requires enhanced protection.

Transportation of Cultural Property

As a measure of protection, transportation of cultural property exclusively, whether within a

territory or to another territory, under the international supervision and with the display of
emblem may take place at the request of the concerned High Contracting Party (Art. 12 of the
Hague Convention 1954 and Arts. 17-19 of Hague Rules 1954). Provisions about transport in
urgent cases, immunity of cultural property from seizure, capture and prize and protection of the
persons engaged in cultural property are also made (Arts. 13, 14 and 15). As experienced
during the Gulf War, timely transportation of cultural property is a significant and rewardful
method of protection.62 The High Contracting Parties to the 1977 Protocol I to the Hague
Convention are under an obligation to prevent exportation of cultural property from occupied
territory, to take into custody the cultural property imported to their territories, to safeguard the
cultural property entrusted to them for safe custody, and return them after the cessation of
hostilities (I and II of the 1977 Protocol).

Fostering the Spirit of Respect for Cultural Property

In order to ensure the observance of the Hague Convention, the High contracting parties are
obligated to inculcate among the members of armed forces, a spirit of respect for the culture
and cultural property of all peoples by adequate training in peace time (Art. 7). Further, they
shall undertake dissemination of the text of the convention so that its principles are made known
to the whole population (Art. 25). It is significant that popular support is sought by means of
educating the public opinion. In fact, efficacy of law consists in basing it in the popular
conscience of the community.

DOWNPLAYING THE FACTOR OF MILITARY NECESSITY

Military necessity is a problematic factor in the cultural property law. In fact, International
Humanitarian Law itself represents necessary balance between military necessity and humanity.
Under the Hague Convention 1954 general protection to cultural property can be waived where
‘military necessity imperatively requires such waiver’ (Art. 4.2.) whereas special protection may
be withdrawn ‘only in exceptional cases of unavoidable military necessity’ (Art. 11.2). What
constitutes military necessity and who is to decide that are vexed questions. It is traditionally
understood that it is the belligerent who determines, but strictly within the parameters
permissible under the laws of war. According to Y. Dinstein and other scholar’s military
necessity cannot override the laws of war and it is itself subject to these same laws. M. Sersic
views, “Military necessity means the necessity for measures which are essential to attain the
goals of war and which are lawful in accordance with the laws and customs of war. Wanton
destruction can never be lawful. The customary legal principle of proportionality between the
damage and the anticipated military advantage must be respected.’

Instead of nice balancing of these factors, states, in practice, resorted to translate military
convenience into military necessity. Entrusting the field commanders to decide the matter
almost amounted to putting the cultural heritage of all mankind “at the mercy of the relatively
parochial interest of certain belligerents”. According to Nahlik it is absurd that the most valuable
works of art can be destroyed in the application of a convention devoted to the protection of
cultural property and according to its terms.

The serious deficiency in the Hague Convention of 1954 was tried to be repaired by the 1999
Protocol. According to Art. 6(a) of the Protocol, “a waiver on the basis of imperative military
necessity pursuant to Article 4 Paragraph 2 of the (Hague) Convention may only be invoked to
direct an act of hostility against cultural property when and for as long as : (i) that cultural
property has, by its function, been made into a military objective; and (ii) there is no feasible
alternative available to obtain a similar military advantage to that offered by directing an act of
hostility against that objective”. Concerning waiver arising from use of cultural property, military
necessity can be invoked only when and for as long as no choice is possible between such use
of cultural property and another feasible method for obtaining a similar military advantage (Art.
6(b)). The Protocol also provides that the decision can be taken only by an officer commanding
a force of battalion and that effective advance warning shall be given. With regard to cultural
property obtaining enhanced protection, there is no express exception for military necessity.
But, when cultural property is used as military objective, its claim for enhanced protection gets
lost. Even in that circumstance, the choice of means and methods of attack shall be guided by
the purpose of terminating such use and avoiding or in any event minimizing, damage to the
cultural property (Art. 13.2(b)). Further, the decision to attack shall be taken only by top officer,
with effective advance warning and by giving reasonable time to the opposing force to mend
(Art. 13.2(c)).

It can be gathered from the above that the 1999 Protocol has put forward rigid parameters about
military necessity and structured the belligerent’s powers in this sphere. Low key treatment of
military necessity is a welcome effort. However, power of the ICPCP to suspend or cancel
enhanced protection in the case of serious violation of immunity of cultural property (Art. 14) is a
weak point of the Protocol and revives the problem of military necessity with the only change
that ICPCP would decide the matter, instead of individual state.

INTERNATIONAL CRIMINALISATION OF WRONGS AGAINST CULTURAL PROPERTY

Imposition of personal criminal liability upon the perpetrators of war crimes has been expected
to yield desirable results of deterrence and universal condemnation. While the 1954 Convention
does not contain any provision for criminalizing the acts of hostility against cultural property, the
municipal law of each country dealt with crimes like theft, mischief, misappropriation, etc. In fact,
taking effective measures for the enforcement of the Convention is a duty cast upon the nations
(Art.34.1). It is a conspicuous development in the 1990s that wrongs against cultural property
are regarded as serious crimes in international law, and dealt with accordingly.

The Statute of International Criminal Tribunal for the former Yugoslavia 1993 confers jurisdiction
upon the Tribunal to deal with violations of the laws and customs of war which expressly
include, ‘seizure of, destruction or wilful damage done to institutions dedicated to religion,
charity and education, the arts and sciences, historic monuments and works of art and science’
(Art. 3(d)).
The Statute of the International Criminal Court, 1998 includes in the list of serious violations of
the laws and customs applicable in international armed conflict, the following acts: “Intentionally
directing attacks against buildings dedicated to religion, education, art, science or charitable
purpose, historic monuments, hospitals and places where the sick and wounded are collected,
provided they are not military objectives” (Art. 8.2.(b) ix.). The Statute confers jurisdiction to ICC
in this matter.

Under the 1999 Protocol, detailed provisions about identification of crimes against cultural
property, jurisdiction, prosecution and extradition have been made (Art. 15-18). But it leaves the
responsibility with the States by providing, “[e]ach party shall adopt such measures as may be
necessary to establish as criminal offences under its domestic law the offences set forth in this
Article and to make offences punishable by appropriate penalties”. It can be seen that National
Patrimony theory wields influence in this regard.

INSTITUTIONAL AND NORMATIVE SUPPORT FOR PROTECTION OF CULTURAL

PROPERTY

The role of institutions like International Committee of the Red Cross in the growth and
application of International Humanitarian Law has been significant. In the regime of cultural
property law, similar role is played by the UNESCO. It not only took initiative in formation of the
Hague Convention of 1954 but also assumed to itself the role of supervisor and monitor.
Systematic registration of the cultural objects by the UNESCO are some of the key functions
that contribute to the success of the Convention (Arts. 23, 26, 27 of the Hague Convention and
Art. 15 of the Hague Regulations, 1954).

Under the 1999 Protocol an international committee called the Committee for the Protection of
Cultural Property in the event of armed conflict is established. Composed of 12 Parties elected
for a tenure of one year by the Meeting of Parties under UNESCO, the Committee is entrusted
with important functions to monitor and supervise implementation of the Protocol, and grant,
suspend or cancel enhanced protection to cultural property (Arts. 25 and 27.1). In addition to
formal relation with UNESCO, International Committee of the Blue Shield and the ICRC, “the
committee shall cooperate with international and national governmental and non-governmental
organisations having objectives similar to those of the Convention”.

Normative support to the protection of cultural property can be gathered from various
international human rights conventions, UNESCO conventions, constitutional provisions of the
nations and their specific statutes. Integration of the principle that protects cultural property with
human rights values mutually support each other. In fact, conservation of cultural identity
contemplated under the International Covenant on Economic, Social, and Cultural Rights (Arts.
3 and 15) is possible only with protection of cultural property. Violation of cultural property
constitutes human right violation itself. The UNESCO convention concerning the protection of
the World Cultural and Natural Heritage of 1972 and the Convention on the Means of Prohibiting
and Preventing the illicit Import, Export and Transfer of Ownership of Cultural Property 1970
also lend normative support to the protection of cultural property.

At the national level, constitutional and legislative norms support the cause of cultural property.
Article 49 of the Indian Constitution states, ‘It should be the obligation of the state to protect
every monument or place or object of artistic or historic interest declared by or under law made
by Parliament to be of national importance, from spoilation, disfigurement, destruction, removal,
disposal or export as the case may be”. Under the Ancient Monuments Act 1904 and various
state legislations on the subject, the Government may declare an ancient monument to be a
protected monument; may purchase or take a lease or get compulsory acquisition of the
protected mounment; or may enter into agreement with the owner for better protection of the
monument.67 In order to protect or preserve any ancient monument from hazardous operations
like mining, blasting or excavation or misuse, pollution or desecration necessary steps can be
taken by the government.68 Persons destroying, altering, imperilling, injuring or removing
monuments, or trafficking in antiquities are punishable.69 The Antiquities and Art Treasures Act
1972 prohibits exports of antiquities by persons other than licensees or in violation of law. Since
these legislations are applicable during both peace and war or in non-international armed
conflicts, strict implementation of them support the International Humanitarian Law’s mission of
protection of cultural property.

APPLICATION IN NON-INTERNATIONAL ARMED CONFLICTS

In the event of non-international armed conflicts also the provisions of the Hague Convention
are applicable (Art. 19). The increasing number of non-international conflicts have necessitated
the application of this provision. The 1999 Protocol makes it clear that the Protocol shall not
apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic
acts of violence and other acts of a similar nature.

The wanton destruction of the Buddha statues by the Taliban forces is the worst example of loss
of cultural property due to fundamentalism and also due to the policy of holding cultural property
as a means of bargain in international relations while prosecuting an internal conflict. The
population of Afghanistan is almost entirely Muslim with a small minority of Hindus and Sikhs,
and the conflict is political rather than inter-religious one. The protracted civil war (1978-1998)
ended in upper hand of Taliban force; whose leaders like Mullah Mohammad Omar and Mullah
Nooruddin Turabi and their followers believed in Islamic fundamentatism and iconoclasm.
Although substantive portion of Afghan territory has been under the control of the Taliban,
except Pakistan, UAE and Saudi Arabia no nation has given recognition to Taliban rule. In view
of UN’s condemnation of the avowed policy of iconoclasm, in 1999 the Shura Council of Taliban
passed a decree preventing the destruction of Afghanistan’s numerous archaeological site: But
drought, loss of revenue because of stoppage of poppy cultivation due to international pressure,
non-recognition and frustration in drawing international community’s attention changed the
Taliban policy. On 26th February 2001 the Taliban commander issued an edict for destruction of
Buddha statues. UNESCO regarded the edict running counter to all the basic principles of
respect, tolerance and wisdom on which Islam is based, and motivated the member countries to
appeal as follows: “We plead with Taliban authorities to stop this irreversible assault on two
millennia of Afghanistan’s artistic and cultural achievements, treasured not only as spiritual
birthright of Buddhists everywhere but also as a universal cultural heritage for people of all faiths
and nationalities.”73 In spite of persuasions by many countries and efforts of UNESCO envoy
Pierre

Lafrane at Afghanistan, the Buddha statues were destroyed and mutilated.

Three important legal issues that have arisen in the Afghan context can be discussed as
follows: First, are the Buddha statues and stupas cultural properties of international importance?
The Buddha statues were carved out of Hindu Kush mountain cliffs during the 3rd and 4th”
century A.D. under the Kushana rulers. The two figures towering at a height of 175 ft and 110 ft
were good examples of Gandhara art and were the most remarkable representation of the
Buddha anywhere in the world. With countless rich frescoes painted in dazzling colours, they
synthesised Greco-Persian art. The archaeological excavations carried during the 20th century
had unearthed a large number of stupas. The archaeological remains are the key to understand
the history of the bygone era. Frequent visits by tourists and Buddhist monks and the UNESCO
records, in addition to the ancient and artistic character of the statues, undoubtedly render them
cultural property of international importance.

Second, is the Afghanistan Government or the Taliban authority under any legal obligation to
protect them? As on today, Afghanistan is not a contracting party to the Hague Convention on
Cultural Property. But as discussed earlier, the evolution of cultural property law in international
law during the last two centuries through Leiber Code, European Codes, Brussel Declaration,
Roerich Pact and other international commitments, which culminated in the Hague Convention
of 1954 suggests that the law is deeply rooted in the customary practice of nations and the
common conscience of the international community. Hence, irrespective of the question whether
Afghanistan is a party to the Hague Convention, the fundamental principle that well established.
customary practices of international law is binding upon the nations can be invoked against
Afghanistan. Since the Taliban authority is the de facto ruler of Afghanistan and at least
recognized by few countries, in spite of non-recognition by other countries, it is bound by the
international legal obligation to protect the cultural property.

Third, whether the legal measures of preventive action, if any, to protect cultural property are
adequate under international law to deal with Afghan type of situation? Unlike the situations in
Yugoslavia or those during crusades or Spanish- Arab conflicts, in Afghanistan the conflict was
not between two rival religious groups. The religious minority in Afghanistan is 1 per cent and
the Buddhists were not in the opposing front. The extent of threat to human rights did not
amount to such a grave threat to international peace calling for collective security measure of
preventive intervention by the United Nations. In this peculiar situation, especially when the
Taliban was holding the Buddha statues as hostages for claiming a ransom of international
recognition and assistance, the UNESCO has a crucial role of mobilising global opinion and
international pressure for prompt action of protection of cultural property. On the whole,
weakness of the law in this sphere shall be made good by global opinion and active steps by the
international community.

CONCLUSION

Unlike other properties, cultural property has the dimension of emotional attachment of the
community. Its destruction or spoilage inflammates the social body in a far more serious way
than it apparently appears to be. By and large, International Humanitarian Law has satisfactorily
responded to the problem. The reasons for non-compliance and violations are traceable to the
inherent non-legal factors and not to the infirmities of International Humanitarian law as such.
International community has shown its increased concern for protection of cultural property in
the light of Gulf War and Yugoslavian conflicts by enacting statutes and protocols. As in other
spheres, here also, efficacy of law depends much upon general acceptance by the global
community. The direction of development in International Humanitarian Law about protection of
cultural property is appropriate as it conforms to basic values of humanitarianism and
multiculturalism. The shift from territoriality to common cultural property, stringent measures for
enhancing the levels of safeguards and the policy of dealing sternly with hostilities against
cultural property are sound developments which ought to be supported by international
solidarity, education and awareness of its importance for the preservation of civilization and
culture and human dignity, and implementation through national legislations.
1954 Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict

The Convention for the Protection of Cultural Property in the Event of Armed Conflict was
adopted at The Hague (Netherlands) in 1954 in the wake of massive destruction of cultural
heritage during the Second World War. It is the first international treaty with a world-wide
vocation focusing exclusively on the protection of cultural heritage in the event of armed conflict.

It covers immovable and movable cultural heritage, including monuments of architecture, art or
history, archaeological sites, works of art, manuscripts, books and other objects of artistic,
historical or archaeological interest, as well as scientific collections of all kinds regardless of
their origin or ownership.

The States Parties to the Convention benefit from their mutual commitment, with a view to
sparing cultural heritage from consequences of possible armed conflicts through the
implementation of the following measures:

Adoption of peacetime safeguarding measures such as the preparation of inventories, the

planning of emergency measures for protection against fire or structural collapse, the
preparation for the removal of movable cultural property or the provision for adequate in situ
protection of such property, and the designation of competent authorities responsible for the
safeguarding of cultural property;

Respect for cultural property situated within their own territory as well as within the territory of
other States Parties by refraining from any use of the property and its immediate surroundings
or of the appliances in use for its protection for purposes likely to expose it to destruction or
damage in the event of armed conflict; and by refraining from any act of hostility directed against
such property;

Consideration of the possibility of registering a limited number of refuges, monumental centres

and other immovable cultural property of very great importance in the International Register of
Cultural Property under Special Protection order to obtain special protection for such property;
Consideration of the possibility of marking of certain important buildings and monuments with a
distinctive emblem of the Convention;

Establishment of special units within the military forces to be responsible for the protection of
cultural property;
Sanctions for breaches of the Convention; and,
Wide promotion of the Convention within the general public and target groups such as cultural
heritage professionals, the military or law-enforcement agencies.

THE 1954 HAGUE CONVENTION

Frequently Asked Questions regarding the Hague Convention and its two Protocols

1. Why is it necessary to protect cultural property in the event of armed conflict and/or
occupation?

Cultural property is particularly threatened by armed conflicts and, in some cases, by a resulting
occupation. As such property reflects the life of the community, its history and its identity, its
preservation helps to rebuild a broken community, re-establish its identity, and link its past with
its present and future. In addition, the cultural property of any people contributes to the cultural
heritage of humankind. Thus, loss or damage to such property impoverishes humankind.

2. Which categories of cultural property are protected under the Hague Convention and its two
Protocols?

First of all, there is no universal definition of cultural property. Each UNESCO Convention,
Recommendation or Declaration defines cultural property in accordance with its purpose and
scope of application.
Article 1 of the Hague Convention provides the following definition of cultural property:

• Movable or immovable property of great importance to the cultural heritage of every people,
such as monuments of architecture, art or history, whether religious or secular; archaeological
sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art;
manuscripts, books and other objects of artistic, historical or archaeological interest; as well as
scientific collections and important collections of books or archives or of reproductions of the
property defined above;

• Buildings whose main and effective purpose is to preserve or exhibit the movable
cultural property defined above, such as museums, large libraries and
depositories of archives, and refuges intended to shelter, in the event of armed
conflict, the movable cultural property; and,

• Centers containing a large amount of cultural property. These are known as

“centers containing monuments”.

The protection granted to cultural property defined under Article 1 of the Convention does not
depend on its origin or ownership.

3. Why is it necessary to adopt safeguarding measures?

As cultural property may be damaged or destroyed in the event of armed conflict, it is necessary
to undertake all appropriate measures against the foreseeable measures of armed conflict in
peacetime by the State where such property is situated. Such measures are helpful not only
during armed conflict, but also in case of a natural disaster such as an earthquake or a flood.

4. Why is it important to respect cultural property?

Cultural property must be respected in view of its character and role in society. In practice, it
means that such property, its immediate surroundings or appliances in use for its protection, are
not to be used for purposes likely to expose it to destruction or damage in the event of an armed
conflict. In addition, it is necessary to refrain from any act of hostility against cultural property.
However, these obligations may be waived in case of imperative military necessity.

It is also necessary to prohibit, prevent and, if necessary, put a stop to any form of theft,
misappropriation and vandalism against cultural property; to prohibit reprisal; and to not
requisition movable cultural property situated in the territory of another State party to the
Convention.

The obligations mentioned in the previous paragraph are not subject to any waiver of
military necessity.
5. What are the obligations of the military with regard to cultural property?

As the military is primarily responsible for the protection of cultural property in the event of
armed conflict, it must be aware of the need to protect cultural property and be familiar with the
provisions of the Convention. For this reason, States Parties must foster in peacetime the spirit
of respect for cultural property and designate in peacetime military services or specialized
personnel responsible for securing respect and cooperation with the civilian
authorities responsible for safeguarding cultural property.

6. Is there any distinctive emblem to mark cultural property? If so, is it obligatory to mark such
property?

Yes, there is such distinctive emblem in the form of a shield consisting of a royal-blue square,
one of the angles of which forms the point of the shield, and of a royal-blue triangle above the
square, the space on either side being taken up by a white triangle.

The marking of cultural property under general protection, which falls within the scope of Article
1 of the Convention, is not obligatory. In other words, it is left to the discretion of each State
Party. However, such marking is compulsory for immovable cultural property under special
protection; cultural property being transported under special protection; and, in other urgent
cases, and, finally, for improvised refuges. The practice of marking cultural property is not
uniform. A number of States Parties refrain from doing so for different reasons.

7. What is special protection and what are the conditions for its application?

Special protection represents a higher level of protection which may be granted to a limited
number of:
• Refuges intended to shelter movable cultural property in the event of armed
conflict;
• Centres containing monuments; and,
• Other immovable cultural property of very great importance.

The granting of special protection is subject to essentially two conditions: the cultural property in
question must be situated at an adequate distance from any large industrial centre or from any
important military objective constituting a vulnerable point; and, secondly, such property may not
be used for military purposes.

The granting of special protection is not automatic, but depends on the request of a State Party
where the property is situated. To obtain special protection, no other State Party may object to
it. The cultural property is granted special protection by its entry in the “International Register of
Cultural Property under Special Protection”, a special register maintained by the Director-
General of UNESCO.

8. What are the sanctions for violation of the Convention?

The Convention provides for the obligation of the States Parties to sanction breaches of its
provisions. They are required, within the framework of their ordinary criminal jurisdiction, to
prosecute and punish persons who breach or order to breach the Convention. However, the
Convention does not contain list of punishable offences. Thus, the elaboration and adoption of
concrete sanctions is left to the discretion of each State Party.
9. Why is it important to protect cultural property in occupied territory?

It well may be that cultural property situated in occupied territory is damaged or otherwise
affected by military operations. For this reason, the Occupying Power must, as much as
possible, support the competent national authorities of the occupied country in safeguarding and
preserving its cultural property. The Occupying Power must also, to the extent possible, take
the most necessary measures of preservation if the competent national authorities of the
occupied State are unable to do so.

10. Why was it necessary to adopt the 1954 Protocol?

The 1954 Protocol deals with the protection of movable cultural property in occupied territory
(the Convention itself does not cover this point). In particular, it prohibits the export of cultural
property from occupied territory and requires the return of such property to the authorities of the
territory from which it was removed. The Protocol also expressly prohibits the appropriation of
cultural property as war reparations.

11. Why was it necessary to adopt the 1999 Second Protocol?

Barbaric acts committed against cultural property during many armed conflicts in the 1980s and
1990s highlighted a number of deficiencies in the implementation of the Convention. For this
reason, in 1991 the UNESCO Secretariat undertook, together with a number of UNESCO
Member States, a review of the Convention in order to elaborate a new supplementary legal
instrument to fill in existing gaps, such as the lack of clarity in the interpretation of the clause of
“military necessity”, the application of special protection and of the control system of the
Convention, and the reinforcement of penal provisions, as well as the lack of an institutional
body to monitor the implementation of the Convention. The review of the Convention resulted in
the adoption of the Second Protocol to the Hague Convention in March 1999 at The Hague.

12. What is the contribution of the Second Protocol to the safeguarding of cultural property?

The Second Protocol clarifies what concrete safeguarding measures are to be taken. In
particular, it is necessary to: prepare inventories, plan emergency measures for protection
against fire or structural collapse, prepare for the removal of movable cultural property or the
provision for adequate in situ protection of such property, and to designate competent
authorities responsible for the safeguarding of cultural property.

13. How does the Second Protocol improve the respect for cultural property?

First, it specifies when the waiver of military necessity, both for the attacker and the defender,
can be applied. Secondly, it provides precautionary measures to be taken in an attack as well
as those against the effects of attacks.

The Occupying Party must prohibit and prevent in relation to the occupied territory any illicit
export, other removal or transfer of ownership of cultural property, any archaeological
excavation (except where this is strictly required to safeguard, record or preserve cultural
property), any alteration to, or change of use of, cultural property that is intended to conceal or
destroy cultural, historical or scientific evidence. Furthermore, no archaeological excavation of,
alteration to, or change of use of, cultural property in occupied territory is allowed, unless not
permitted by the circumstances, to be carried out without close cooperation with the competent
national authorities of the occupied territory.

14. What is enhanced protection? What are criteria for its granting?

As special protection has met with limited success, the Second Protocol elaborated a new
concept of enhanced protection combining aspects of special protection and the criteria for the
listing of outstanding cultural property on the World Heritage List under the 1972 UNESCO
Convention concerning the Protection of the World Cultural and Natural Heritage.

There are three conditions for the granting of enhanced protection:

• Cultural property in question must be of the greatest importance for humanity;
• It must be protected by adequate domestic legal and administrative measures;
and,
• It may not be used for military purposes or to shield military sites.

Enhanced protection is accorded by the Committee for the Protection of Cultural Property in the
Event of Armed Conflict and granted by the entry of the cultural property in question on the List
of Cultural Property under Enhanced Protection. To date, no cultural property has been granted
enhanced protection. Unlike the granting of special protection, which requires unanimity,
generally speaking, enhanced protection may be granted by a two-third majority of the
Committee.

15. What constitute serious breaches of the Second Protocol?

The Second Protocol provides for the following five serious breaches:
• Making cultural property under enhanced protection the object of an attack;
• Using cultural property under enhanced protection or its immediate surroundings
in support of military action;
• Extensive destruction or appropriation of cultural property protected under the
Convention and this Protocol;
• Making cultural property protected under the Convention and this Protocol the
object of an attack; and,
• Theft, pillage, misappropriation of, or acts of vandalism directed against, cultural
property protected under the Convention.

Such breaches must be committed intentionally and in violation of the Convention or the
Second Protocol. In the case of any of the first three breaches, any Party may have jurisdiction
over the offences even if they have been committed by a foreigner abroad.

16. What are other violations of the Second Protocol?

Other violations include any use of cultural property in violation of the Convention or the Second
Protocol, and any illicit export or other removal or transfer of ownership of cultural property from
an occupied territory in violation of the Convention or the Second Protocol.

17. What is the Committee for the Protection of Cultural Property in the Event of
Armed Conflict? What does it do?

The Committee for the Protection of Cultural Property in the Event of Armed Conflict is an
executive intergovernmental body established by the Second Protocol. It is composed of twelve
Parties which are periodically elected by the Meeting of the Parties. Its functions are described
in Article 27 of the Second Protocol, the essential of which may be summarized as follows:
• Granting, suspending or cancelling enhanced protection;
• Promoting the identification of cultural property under enhanced protection;
• Supervising the implementation of the Second Protocol;
• Granting international assistance; and,
• Overseeing the use of the Fund for the Protection of Cultural Property in the
Event of Armed Conflict

The Committee also co-operates with international and national governmental and
nongovernmental organizations that have objectives similar to those of the Convention, its 1954
Protocol and the Second Protocol.

18. What is the Fund for the Protection of Cultural Property in the Event of Armed
Conflict?

The Fund for the Protection of Cultural Property in the Event of Armed Conflict is a fund in trust.
It is established to provide financial or other assistance for preparatory or other measures to be
taken in peacetime. It also provides financial or other assistance in relation to emergency,
provisional or other measures to protect cultural property during periods of armed conflict, or for
immediate recovery after the end of hostilities. Contributions to the Fund are
entirely voluntary, and, to date, no contributions have been made.

19. What is the role of UNESCO in the implementation of the Hague Convention and its two
Protocols?

The Secretariat of UNESCO assists in the promotion and implementation of the Hague
Convention and its two Protocols. It provides technical assistance in organizing the protection of
cultural property upon the request of the High Contracting Parties or States Party to the Second
Protocol. UNESCO may, on its own initiative, make proposals in relation to any problem arising
from the application of the Convention and its Second Protocol.

The Secretariat also acts as the secretariat of the Committee for the Protection of Cultural
Property in the Event of Armed Conflict. It prepares the Committee’s documentation and the
meeting agendas, and has the responsibility of implementing its decisions.

WHY HAVE THE TREATY REGIMES FAILED?

Commentators have suggested several reasons why the treaty regimes have failed.

1. Existing Treaties Are Not Sufficiently Precise, or Do Not Have

Strong Enough Language Both the Hague Convention and the UNESCO Convention have
vague
language, and states can avoid the spirit of the instruments by asserting their compliance with
the literal meaning of the words. For example, the Hague Convention obligated states to
"respect" cultural property, without further elaboration.24 By contrast, article 7 of the Second
Optional Protocol requires states to "do everything feasible to verify that the objectives to be
attacked are
not cultural property." The language of the Second Optional Protocol is stronger and more
detailed. But few states have ratified the Second Optional Protocol.
This criticism may reflect some of the truth. All things equal, stronger obligations should result in
greater cooperation. But all things are not equal. States clearly do not want to take on strong
obligations; this is why 114 states have acquiesced in the vague Hague Convention, while only
44 states have consented to the Second Protocol. To understand why the treaty regime has
failed, one must understand why states have not agreed to stronger obligations than those
embodied in existing instruments that have been widely ratified.

2. Existing Treaties Do Not Have Enough Parties

As noted above, the Hague Convention has 116 parties but the Second Protocol has only 44
parties. The UNESCO Convention has 103 parties. The US is not a party to the Hague regime
but does acknowledge it as customary international law. The US is a party to the UNESCO
Convention. One might think that if more states joined these treaties, compliance with them
would be more widespread.
The problem with this view is that existing parties do not take the treaty regimes seriously. If
existing parties do not take the treaty regimes seriously, there is no reason to think that new
parties would take them seriously either. As one indication of the problem, consider the Hague
Convention's provision that requires states to provide reports to UNESCO that detail their
compliance efforts. Although the provision is not obligatory, it is nonetheless striking that fewer
than a quarter of parties have issued these reports, and the reports themselves in most cases
describe at best perfunctory efforts to comply with the treaty regime. The UNESCO Convention
obligates states to take steps to prohibit the illicit trade in antiquities, and yet no state invests
significant resources in this effort. The US and Britain, for example, have only a handful of
agents involved in prosecuting illegal traders and most countries have one or zero.

3. Existing Treaties Do Not Have Strong Enough Enforcement Mechanisms

Some treaties, such as the treaty that created the World Trade Organization, establish
institutions that are supposed to administer the treaty and sometimes adjudicate treaty disputes.
UNESCO has some power but not much. The Second Protocol creates a committee that is
supposed to administer the Hague regime, but the committee has little power. Would a stronger
international cultural property organization strengthen the treaty regime? Perhaps, but such an
institution is not a realistic possibility. Very few effective international organizations exist
because states are unwilling to trust international organizations to serve their interests.
Similarly, it is difficult to imagine that states or international organizations like the International
Criminal Court would devote significant resources to prosecuting looters and traders if violations
of treaties were treated as international crimes, as many scholars advocate.

4. Governments Do Not Have a Strong Interest in Committing to Protect, or Not to Harm,

Cultural Property

The vague language, the lack of ratifications, and the absence of a strong international
organization reflect a deeper problem-that government do not want to commit themselves to
expend significant resources to protect foreign cultural property during wartime or peacetime.

This might seem surprising, given that governments have gone to the trouble of creating the two
treaty regimes, that governments say that they care deeply about cultural property, and that
governments clearly do care about their own cultural property. But governments have other
priorities, and as international cooperation is difficult even when governments have strong and
shared interests, it is not surprising that international cooperation to protect cultural property has
been unsatisfactory.

The peacetime regime has failed because governments have mixed motives about the
treatment of cultural property. The strongest proponents of export restrictions are mainly poor
countries, which do not have enough resources even to police their own territory, and certainly
do not have enough leverage internationally to compel wealthy states to prosecute illegal
traders. Within the
wealthy states, museums, traders, and collectors want to keep the trade in antiquities alive, and
they pressure the government to reject strong international obligations to shut down the trade.
Thus, the wealthy states have been lukewarm about protecting foreign cultural property,
although they do protect their own.

The wartime regime has failed in part because some governments have a policy of destroying
the cultural property of the enemy. Thus, armies and paramilitary groups during the Yugoslav
civil war targeted cultural property of the enemy in order to demoralize the local population and
drive it off desired territory.
Even well-meaning governments find themselves unable to protect cultural property during
wartime. Consider the recent events in Iraq. Although the US is not a party to the Hague regime,
it has said that it regards that regime as customary international law, and it also clearly had no
interest in destroying Iraq's cultural property. Some have argued that the widespread looting
and destruction of Iraq's cultural property in the aftermath of the American invasion would not
have occurred, or would have been minimized, if the US had ratified the Hague Convention and
one or both of its protocols, or if more elaborate international treaties protecting cultural property
had been in place. This does not seem correct. The looting of Iraq's cultural treasures in the
aftermath of the American invasion was not caused by a defect in international law. The US, as
an occupying power, had a general international legal obligation to maintain law and order in
Iraq, and this general obligation included the specific obligation of preventing theft, whether of
antiquities or of automobiles. The US tried to do so, but failed because it did not have enough
forces in place, could not afford to muster additional military forces, and underestimated the
problems of law and
order that would occur in the wake of the invasion. The problem was not just looting of cultural
property; it was looting of everything-office furniture in government buildings, inventories of
warehouses and retail stores, cars, wiring, books, factory equipment, and so on. America's
priority was protection of oil facilities, whose revenues would be necessary for reconstruction,
and whose
destruction would cause another environmental disaster, as occurred when Saddam's army set
ablaze Kuwaiti oil wells during the first Gulf War. The insurgency has made it impossible for the
US to do more than provide the rudiments of security over the last several years.

It thus seems unlikely that the US would have prevented the looting of the Baghdad Museum
and thousands of archeological sites if it had ratified a treaty obligating it to protect Iraq's
cultural property. If treaty instruments had required the US to divert resources from general
security, the protection of Iraqi ministries, and the reconstruction of sewage treatment plants,
electric facilities,
and oil pipelines, this would only have fueled the insurgency, and would surely have been
considered intolerable by American officials and the Iraqis themselves. The US would have
gone ahead and violated these treaties with the approval or indifference of most of the world.
Diversion of military and economic resources to protect cultural property would most certainly
not have that effect if the consequence was anarchy and civil war, which would surely have
hastened the destruction of Iraq's cultural property.
WHAT IS SPECIAL ABOUT CULTURAL PROPERTY?

The assumption that cultural property is special, and therefore deserving of special legal
protection, is so deeply ingrained that the question, "What is special about cultural property?"
might seem silly. To see that the question is not silly, consider the reaction of local populations
after the collapse of communist rule in Eastern Europe and the Soviet Union-they tore down the
statues of communist heroes such as Lenin and Stalin. This reaction repeated itself after
the US invasion of Iraq, when Iraqis tore down statues of Saddam.

Thus, it is clear that not all cultural property is valuable to the citizens of origin states, only some
is. How does one tell the difference between valuable and valueless cultural property? One
might try to rely on objective aesthetic or scholarly criteria applied by experts, but one could
hardly have demanded that Polish or Hungarian citizens not tear down aesthetically valuable
statues of communists while permitting them to tear down the aesthetically objectionable
statues. Such a judgment would make a mockery of the symbolic behavior of the crowds-to
express their repudiation of the communist legacy.

A starting point is that cultural property, like any other form of property, is valuable to the extent
that people care about it and are willing to pay to consume or enjoy it. If cultural property is
"normal" property, then there is no reason to regulate it, or to treat it as different from other
forms of property. In an unregulated market, the people who value it most will buy it. If a great
many people value it, then we might observe what we in fact observe in many settings-
museums purchasing the most valuable cultural property and showing it to numerous people for
a fee. In a similar way, we have a mostly unregulated market in modern artworks. Some art is
purchased for private collections, but most ends up in museums or in shows where the general
public may see it.

Against this baseline, is there any reason to think that cultural property should receive special
treatment? A number of theories have been proposed; the two that seem to be most influential
are as follows.

A. BOND WITH THE PAST

The most influential idea is that a particular people has a right to possession of its cultural
property because possession of cultural property is important to the dignity of a people.3' There
are several difficulties with this argument, however. First, it is not clear what it means for a
"people" to "possess" cultural property. In practice, proponents of this idea mean that the
cultural property should be stored in museums located in the territory of the state in which the
people live, but why should this satisfy the requirement of possession? Is it necessary for the
people to be able to see the cultural property? What if, as a practical matter, a state can only
store its cultural property, or most of it, in warehouses, or must leave it in the ground? Is it
sufficient if some (or many) people in the relevant population own the cultural property and keep
it stored in their houses?

Second, many local populations do not value cultural property. If people in a particular culture
simply do not value artifacts from the past, should they nonetheless be required to store them in
museums? Should they be forbidden to destroy them? As noted above, it seems odd to say that
citizens of Poland had an obligation to preserve statues of communist leaders. The history of
iconoclasm is long; are all iconoclastic movements to be condemned because they destroy
cultural property?
Third, the moral basis of the "bond with the past" idea is also obscure. Iraqis today have little in
common with the people who lived in Mesopotamia thousands of years ago. Much the same
can be said about the people living in Greece, Italy, and India. Massive migrations have ensured
that ancestral lines have been broken; the people who live in Italy today are descendants of
people who lived in northern Europe or Asia. Most of the descendants of the ancient Greeks
probably live in Turkey and other parts of western Asia. Of course, even if people could show
that their ancestors produced cultural property they claim today, it is far from clear that they
have a moral claim to the property. After all, the ancestors may have sold the cultural property,
or thrown it away, or abandoned it. But in the absence of even this type of claim based on
ancestry, the moral basis of a modern people's claim to cultural property is questionable.

One might respond that, at least, a people should possess cultural property that was produced
by their ancestors. But this response illustrates the oddness of the "bond with the past"
argument. Consider modern cultural property-say, artworks that are being produced by living
artists. No one believes that a painting finished yesterday by an American artist should stay in
America, and be
imprisoned in an American museum, on the grounds that American cultural property should stay
on American soil. Although the painting is not (yet) part of our past, it will be part of our past in
the future, but by then it might be lost to a private collector in Tokyo or London. This possibility
does not seem to bother anyone. People have a strange set of intuitions, according to which
local art should be bought and sold, and exported to other countries, where its presence can
only honor our country; but as time passes, the people who happen to live in the geographic
area where the art was produced, but have no relationship with the artist or the artist's
descendants, have a stronger and stronger claim on the art, so that at some point they are
justified in demanding its return.

The only explanation I can see for this phenomenon is that people make a moral error: they
anthropomorphize peoples. At some point, the art ceases to belong to a particular person (the
artist, the buyer, the subsequent buyer, and so on) and starts to belong to a people (the
population occupying the territory on which the artist lived, or related ethnically or racially to the
artist). As time passes, the people's claim strengthens and any particular person's claim
weakens.

If this is the correct description of human psychology, it nonetheless is difficult to defend on

moral grounds. The current possessor has a strong claim if he or she purchased the artwork
(rather than stole it, in which case the victim would have the strong claim). If the people have a
strong enough psychological need for the artwork, they can always purchase it through a
government or museum. They do not have any moral right to possession.

Fourth, a related idea is that a people should have access to their cultural property so that they
can learn about their history or, I should say, the history of the peoples who lived on the territory
that they now occupy. The educational value of cultural property is similar to its scholarly value,
which I will discuss below. It is sufficient to point out here that the educational value can be
exploited without strict regulation of cultural property. Photographs and models will often be
sufficient for the purpose of education, so it seems doubtful that the educational importance of
cultural property justifies a prohibition on trade or export. International treaties could provide that
institutional owners of cultural property like museums and governments should arrange for
periodic traveling exhibitions.

B. CULTURAL PROPERTY HAS SCHOLARLY VALUE AND DEPENDS ON CONTEXT

Cultural property has two features that distinguish it from other natural resources such as oil.
First, it has scholarly and aesthetic value. It provides a window into the past and often (but not
always) has intrinsic artistic merit.

Second, its scholarly and aesthetic value depends greatly on its careful handling. When
antiquities are removed from archeological sites, care must be used so that their context is
understood and recorded, and the object itself is not damaged.

Modern artworks also have cultural value and many of them have scholarly value. Yet they may
be bought and sold on the market; with limited exceptions, the owner of an artwork has the right
to store and transport it without taking adequate care, to damage, or even destroy it. It is wrong
to say that it is a matter of indifference to the world when the owner of valuable art does not
properly care for it because people clearly do care about the treatment of artworks, even
artworks they never see. But there is good reason to think that the art will flourish in a free
market to a much greater degree than in a controlled market that restricts buyers' ability to
dispose of their purchases however they see fit.

When people are not constrained, there is greater demand for art, which pulls more artists into
the market. Because people care about the art they purchase, they usually take care of it. And
when art is significant enough on cultural grounds, it will usually be purchased by, or given to,
museums. The market is not perfect, but seems to work well enough.

Is there any reason to think that the cultural and aesthetic value of cultural property justifies
regulation of the cultural property market? Archeologists worry that in an unregulated market,
people will extract cultural property from the earth without taking care to prevent damage, and
without recording them contextual details, and so forth. They fear that traders will break apart
large objects because the public has a fetishistic desire for old things and prefer fragments to
nothing at all. And they fear that valuable antiquities will disappear into private collections,
where they will be unavailable for public and scholarly inspection.

All of these concerns are justified, but they seem no more justified than the fear that people will
buy valuable artworks and then damage them. This happens, but it does not happen as much
as one might fear precisely because undamaged art is worth more than damaged art. Similarly,
we should consider the possibility that antiquities are treated poorly today because they are so
heavily regulated. Looters fear detection by the police; that is why they remove antiquities
without taking care. If it were legal to remove cultural property and sell it, then professionals
would take over and use care because antiquities are worth more when their provenance is
known and when they are undamaged.

We should also expect cultural property to remain available for public and scholarly inspection
to the same extent that modern art is. Many products will be purchased by private collectors, but
many will also be purchased by museums and put on public display. Like the case of modern
art, private purchasers of cultural property will lend it to museums and even donate it for tax
benefits or for altruistic reasons. If the market were legal, then light forms of regulation for
example, the requirement that sales of cultural property be recorded-could ensure that
antiquities are not lost, so that scholars could ask current owners for permission to study the
object in question, and museums would be able to track down objects that they would like to
purchase.
In sum, no one has provided a convincing argument that cultural property should be treated
differently from art, oil, and other cultural and natural resources. An unregulated or lightly
regulated market in cultural property would look like these other markets. A lightly regulated
market might be justified because of some of the special features of cultural property; in
particular,
recording requirements may be justified.

CULTURAL HERITAGE LAW UNDER INTELLECTUAL PROPERTY LAW

National Cultural Heritage Act of 2009 (RA No. 10066)

This law aims to protect, preserve, conserve and promote the nation’s cultural heritage, its
property and histories, and the ethnicity of local communities. It also aims to establish and
strengthen cultural institutions and protect cultural workers and ensure their professional
development and well-being.

Through this law, the State endeavors to create a balanced atmosphere where the historic past
co-exists in harmony with modern society, and to administer the heritage resources in a spirit of
stewardship for the inspiration and benefit of the present and future generations.

The following cultural properties are considered Important Cultural Property for purposes of
protecting them against exportation, modification or demolition, unless declared otherwise by
the pertinent cultural agency:

 Works by a Manlilikhang Bayan;

 Works by a National Artist;
 Archaeological and traditional ethnographic materials;
 Works of national heroes;
 Marked structure;
 Structures dating at least fifty (50) years old; and
 Archival material/document dating at least fifty (50) years old.
 All cultural properties declared as Important Cultural Property may receive government
funding for its protection, conservation, and restoration. An official Heritage Marker shall
likewise be placed on an immovable cultural property to identify the same as important
cultural property.

The cultural properties may also be declared as National Cultural Treasures and national
historical landmarks which shall be entitled to certain privileges.

Cultural properties may be declared, or de-listed as National Cultural Treasures or Important

Cultural Property. This law provides for its procedure.

The registration and conservation of cultural property is an important feature if this act. For this
purpose, the establishment of Philippine Registry of Cultural Property (PRECUP) is required.
The local government units, through their cultural offices, are tasked to maintain inventories of
cultural properties under their jurisdiction.
To conserve the cultural property, it is required that all intervention works and measures on
conservation of cultural properties must strictly adhere to the accepted international standards
of conservation.

This act also highlights the need for the local government units to document traditional and
contemporary arts and crafts, including their processes and makers, and sustain the sources of
their raw materials. It is further tasked to encourage and sustain traditional arts and crafts as
active and viable sources of income for the community.

Since this act intends to strengthen the role of the National Commission For Culture And The
Arts (NCCA), the powers of the commission and cultural agencies are identified as follows:

Power to Issue a Cease and Desist Order suspending all activities that will put in danger of
destruction or will cause significant alteration from its original state the national cultural
treasures or important cultural properties;

Power to Issue Compulsory Repair Order when a privately-owned heritage site cannot be
maintained by the owner, or has fallen into disrepair due to neglect to such an extent that it will
lose its potential for conservation;

Visitorial Powers wherein the cultural agencies concerned, through the Commission are given
the power to inspect National Cultural Treasures and Important Cultural Properties, and national
historical landmarks, sites or monuments at any time to ensure their protection and integrity.
Power to Deputize Other Government Agencies and their successors in interest, to enforce the
provisions of this act and its implementing rules and regulations. Heads of departments,
commissions, bureaus, agencies or offices, officers and/or agents found to have intentionally
failed to perform their required duty as prescribed by the deputization order shall be liable for
nonfeasance, and shall be penalized in accordance with applicable laws.

Power to Recover Cultural Properties which are under the custody of foreign nationals or
entities and to bring these properties back to Philippine custody.

This act also mandates that any government or non-government infrastructure project or
architectural site development shall include anthropological, archaeological, historical and
heritage site conservation concerns in their Environmental Impact Assessment System.

Furthermore, the Department of the Interior and Local Government is tasked to coordinate with
the national cultural agencies on matters pertaining to Cultural Properties under its jurisdiction,
and ensure that the provisions of this act is properly executed by the local government unit.

To the extent that the offense is not punishable by a higher punishment under another provision
of law, the following acts among others done intentionally are considered violations of this law:

Destroying, demolishing, mutilating or damaging any world heritage site national cultural
treasures important cultural property, and archaeological and anthropological sites;
Modifying, altering, or destroying the original features of or undertaking construction or real
estate development in any national shrine, monument, landmark and other historic edifices and
structures, declared, classified, and marked by the National Historical Institute as such, without
the prior written permission from the Commission. This includes the designated security or
buffer zone, extending five (5) meters from the visible perimeter of the monument or site.
Other prohibited acts are further identified.
Upon conviction, the offender subject to certain conditions shall be subject to a fine of not less
than Two Hundred Thousand Pesos (P200,000.00) or imprisonment for a term of not less than
ten (10) years, or both upon the discretion of the Court. This law repeals or modifies pertinent
provisions of Republic Act No. 7356, the “Law Creating the National Commission for Culture
and the Arts”; Republic Act No. 8492, the “National Museum Act of 1998”; Republic Act No.
9072, the “National Caves and Cave Resources Management and Protection Act”; and Republic
Act No. 7942, the “Philippine Mining Act of 1995”; and all other laws, presidential decrees,
executive orders and rules and regulations inconsistent with its provisions.

PHILIPPINE CULTURAL HERITAGE LAW

BRIEF BACKGROUND

The drafting of the Omnibus Cultural Heritage Law, otherwise known as the “PHILIPPINE
CULTURAL HERITAGE LAW” aims to provide for the protection and preservation of the
Philippine Cultural Heritage. This began as an interface program within the Subcommission for
Cultural Heritage (SCH) in 1994. This was initiated by the then Commissioner for SCH, Felice
Prudente Sta. Maria as an advocacy mandate of the National Commission for Culture and the
Arts (NCCA).
The bill was further deliberated on by the NCCA members of the 22 National Committees
[representing both the public and private sectors], and the affiliate government agencies, like the
National Museum, Cultural Center of the Philippines, National Historical Institute, Records
Management and Archives Office, and the Intramuros Administration for the Department of
Tourism.

The First Omnibus Philippine Cultural Heritage Law considers existing laws pertaining to culture
and cultural properties, international conventions, heritage laws of different countries, and most
importantly our local needs. Among the major features of the proposed bill are as follows:

1. A redefinition of cultural properties to encompass tangible and intangible

properties;

2. A sharing of responsibilities among national, provincial, and local government

systems -- and private owners -- in the maintenance of cultural properties, which
include financing and training of property managers;

3. A system to prioritize which cultural properties will be conserved ahead of others

-- allowing quality maintenance of major historical sites and collections;

4. The use of sustained cultural education -- through the national formal and non-
formal schooling, as well as the informal programs run by local governments -- in
order to generate people support for conservation;

5. The inclusion of natural sites of scenic, aesthetic, historical, or cultural value as

cultural properties;

6. Creation of a national Cultural Properties Committee and a Conservation Trust

Fund for National Treasures and Important Cultural Properties;
 7. Maximizing the NCCA network of interfaced public and private support for
protection of the national heritage;

8. Designation of History Zones, Art Zones, and History & Art Zones to enhance
residents’ sense of place; and to protect both cultural properties and histories;

9. Sustaining local culture studies in formal, non-formal, and informal education;

10. Strengthening cultural information conduits and their interfacing on local,

provincial, and national levels;

11. Sustaining research and dissemination of local histories as a goal for local,
provincial and national governments.

Note that private ownership of cultural properties – even National Treasures – is respected, and
that the government continues to use as many of its agencies, their budgets and personnel, to
conserve properties.

National Historical Institute continues as the sole agency to place Heritage Markers (rather than
Historical Markers), and becomes the key NCCA member institution to conduct review of
immovable cultural property; National Museum becomes the key NCCA member-institution to
manage review of movable property; Cultural Center of the Philippines becomes the key NCCA
member institution to manage assessment of intangible property and natural sites of
cultural significance.

No one cultural agency, however, can now determine National Treasures on its own because
intangibles and natural properties of cultural significance qualify as Treasures. In fact, there was
a time when some people apparently thought Treasures could only come from government-
owned collections, or worse, on the National Museum’s collection – which could be why none of
the National Library’s or Archives’ holdings are National Treasures as of now. What can be
done to
make it very apparent that main government institutions and their traditional roles are being
respected? But that a new funding and supervisory system is being put into place so
communities will be part of heritage management.

REFERENCES:

AN ACT TO PROVIDE PROTECTION TO NEW PLANT VARIETIES, ESTABLISHING A

NATIONAL PLANT VARIETY PROTECTION BOARD AND FOR OTHER PURPOSES, R.A.
9168, https://www.lawphil.net/statutes/repacts/ra2002/ra_9168_2002.html (last visited Oct 18,
2018).

Philippine Laws on Patents, Philippine Patent Lawyers, http://iprotect.ph/intellectual-property-

code-patent-01.htm (last visited Oct 18, 2018).

Handl, G. (1980). State Liability for Accidental Transnational Environmental Damage by Private
Persons. The American Journal of International Law, 74(3), 525-565. doi:10.2307/2201649
Frequently Asked Questions regarding the Hague Convention and its two Protocols , ,
http://www.unesco.org/culture/pdf/action_normative/faq_en_14dec2009.pdf.

REPUBLIC ACT NO. 10066 AN ACT PROVIDING FOR THE PROTECTION AND
CONSERVATION OF THE NATIONAL CULTURAL HERITAGE, STRENGTHENING THE
NATIONAL COMMISSION FOR CULTURE AND THE ARTS (NCCA) AND ITS AFFILIATED
CULTURAL AGENCIES, AND FOR OTHER PURPOSES. (n.d.). Retrieved from
http://www.wipo.int/edocs/lexdocs/laws/en/ph/ph052en.pdf