Judiciary law protection system needed for cultural heritage

By PENG FENG / 09-30-2021 / (Chinese Social Sciences Today)

The Giant Buddha of Leshan in the Mount Emei Scenic Area, which has been listed as a UNESCO World Heritage Site since 1996. Photo: Frank Solak/PROVIDED TO CSST 

In July, 2021, China’s “Quanzhou: Emporium of the World in Song-Yuan China” was added to the UNESCO World Heritage List as a cultural site. 

Quanzhou was a maritime trade center with over 300 years of history between the Song and Yuan dynasties (10th–14th centuries CE). The coastal city features a typical East Asian and Southeast Asian port city with excellent urban spatial structure. Its 22 heritage locations embody various cultural elements from social structure, administrative system, transportation, production, and commerce. The city’s enormous cultural contribution to a vast territory and sea area has earned the country its 56th world cultural heritage site, which means China has overtaken Italy as the country with the most cultural heritage sites in the world. 
In mid-to-late July this year, many parts of Henan Province were hit by heavy rains, and areas with dense collections of cultural relics were severely damaged, with some museums and archaeological sites suffering from water leaking and flooding. As a key area for Chinese civilization, Henan has the second most immovable cultural heritage sites in the country, with five world cultural heritage sites and 420 key national cultural relic preservation units. The protection of cultural heritage sites during floods also attracted wide attention from all walks of life. 
International cooperation
International cooperation in the protection of cultural heritage began with the rescue work of the Abu Simbel Temples in Egypt in 1959. At the time, UNESCO decided to launch an international campaign to safeguard the site from the construction of the Aswan High Dam, which was to be built by Egypt and Sudan in a bid to better control flooding, provide increased water storage for irrigation, and generate hydroelectricity. 
Finally, the temples were successfully relocated. The successful operation enabled UNESCO to see the importance of international cooperation. The organization published the Convention Concerning the Protection of the World Cultural and Natural Heritage in 1972. China joined the convention in 1985. The convention is a milestone that signifies the beginning of global action for protecting world heritage. 
The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage further complemented the 1972 Convention by bringing the protection of intangible cultural heritage into the spotlight. 
These two conventions serve as legal foundations and an international legal framework for world heritage protection. Together, they have established a set of criteria for cultural value and natural value of cultural heritage. Since then, cultural heritage has been recognized by countries as shared interests of humanity. 
Globally, world heritage is threatened by wars, armed conflicts, major natural disasters, pollution, overtourism, and large-scale urbanization, etc. 
The notable Nuremberg Trials held following World War II recognized that destruction and plunder of cultural property constituted war crimes and crimes against humanity. 
The trials also held war criminals like Alfred Rosenberg individually accountable for looting and confiscating cultural treasures. The trials are a landmark in safeguarding cultural heritage in times of war. In June 2001, the 25th World Heritage Conference was held ahead of schedule, taking the lead in discussing the bombing of Bamiyan Buddhas in Afghanistan. Greek observers stressed that it was necessary to strengthen the legal binding force of the World Heritage Convention with the concept of “anti-cultural crime.” It implied that when dealing with similar cases of cultural heritage destruction, besides seeking moral and political channels, there was not much UNESCO could do to stop such destruction with compulsory legal sanctions or legal resources. 
In addition, in September 2015, Ahmad al Faqi al Mahdi, leader of the “Hisbah,” was accused of deliberately destroying several historical and religious sites in Timbuktu, Mali, buildings that had been traditionally used by the local population as part of their religious observance, between around June 30 and around July 11, 2012. 
On September 27, 2016, the International Criminal Court (ICC) made a ruling and sentenced Mahdi to nine years of imprisonment, which was the first verdict made by the ICC in a case regarding the destruction of historical and religious heritage. 
This marks the first time that the court has made a ruling for cases concerning destroying historic monuments and religious heritages. 
The responsibility to protect the world’s cultural heritage falls upon every country. 
In terms of legislative endeavors, since the adoption of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, the international community has struggled to push for a stronger legal infrastructure. After the destruction of the statues of Buddha in Bamiyan, the Bureau of the World Heritage Committee proposed “A Crime Against the Common Heritage of Humanity,” later UNESCO identified acts constituting a crime against the Common Heritage of Humanity. 
Despite all these achievements and the fact that 2016 saw the international criminal court’s first war crimes trial for destruction of cultural monuments, there is still a long way to go before cultural property is protected by the international legal framework. 
China on the move
Data from China’s Jufanet show that among search results for the keyword “cultural heritage” from 2012, 69.82% are civil cases, 22.26% are administrative cases, 6.72% are criminal cases, 1.16% are execution cases, and 0.04% are national compensation cases. The causes of action for these cases mainly concern trademark disputes, trademark right ownership, infringement disputes, administrative review, contract disputes, and copyright ownership. These rights were mainly protected by traditional civil, criminal, and administrative laws. 
Meanwhile, China should also consider specializing judicial courts for cultural heritage protection, and establish a public interest litigation system for cultural heritage.  
For one thing, cultural heritage protection is in urgent need of judicial specialization. Some local courts in China have tried to set up specialized courts or circuit courts for judicial innovation. 
For example, the Shanxi Provincial Higher People’s Court approved the establishment of the Yungang Culture Protection Court, which serves as a specialized court for hearing historical and cultural heritage protection cases based on the preservation of the Yungang Grottoes. It focuses on hearing cases on historical and cultural heritage protection and all kinds of civil disputes in scenic spots, as well as cases on pollution prevention, ecological conservation, environmental governance, and services. 
The people’s courts at all levels in Fujian Province have strengthened the judicial protection of cultural and natural heritage through the centralized jurisdiction of cases and the establishment of circuit courts, including for example, the Circuit Court for the Protection of Maritime Silk Road Historical Relics in Licheng District of Quanzhou City, the Circuit Court for the Protection of Fuzhou Ancient Houses and Heritage in Taijiang District of Fuzhou City, the Circuit Court for the Protection of Longhai Ancient Dwellings and Cultural Heritage in Zhangzhou City. 
In Qinhuai District, Nanjing City, Jiangsu Province, the Circuit Court for the Protection of Cultural Heritage and the Court for the Protection of Ancient Dwellings have been set up, and typical cases for the protection of cultural relics have been released. It is suggested that on the basis of these local judicial practices, places with certain conditions can bring cultural heritage into the scope of cases of the specialized court for environmental resources. 
Next, a cultural heritage public interest litigation system should be constructed. In China’s judicial practice, in 2016, the China Biodiversity Conservation and Green Development Foundation (CBCGDF) made some attempts in the lawsuit against the Housing and Urban-Rural Construction Bureau of Qingjiangpu District of Huai’an City in an effort to protect the ancient dwellings for the public interest. 
In 2017, the plaintiff, CBCGDF, reached a settlement agreement with the defendants Zhou Yaohe, the Housing and Urban-Rural Construction Bureau of Qinghe District of Huai’an City, the Huai’an Qinghe District Bureau of Culture, Radio, Television, Press, and Publication, and the Qinghe District People’s Government of Huai’an City in the case of immovable cultural relics. 
Because of its typical public interest attribute, cultural heritage belongs to the “common interests of all mankind.” In some cases, the public interest litigation system can meet the judicial remedy needs of cultural heritage for public interests as a supplement to the traditional civil, criminal, and administrative litigation system. 
Peng Feng is a research fellow from the Institute of Law at the Shanghai Academy of Social Sciences. 
Edited by WENG RONG