Rozana Association
The Universal Declaration of Human Rights (1948) provides that everyone has the right freely to participate in the cultural life of the community, and to enjoy the arts. Meanwhile, the International Covenant on Economic, Social and Cultural Rights provides for the right of groups to self-determination and for individuals to enjoy cultural rights, including participation in and enjoyment of the benefits of culture and science, which is an important part of social harmony and is closely linked to the right to education and the right to freedom of thought, conscience and religion, without discrimination against certain groups or violating other human rights.
Article 15 of the International Covenant on Economic, Social and Cultural Rights is devoted to cultural rights as follows:
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
Cultural rights are the least understood and crystallized among other rights guaranteed by International Law. Definitions of culture vary in international texts. The United Nations Committee on Economic, Social and Cultural Rights, in its General Comment No. 21 of 2009, provided detailed guidance to states on their obligations to respect, protect and fulfill the right to participate in cultural life. The Committee also indicated that this right includes five basic and interrelated characteristics:
• Availability of Cultural Services: Cultural Services must be made available for everyone to enjoy and benefit from. This includes institutions and events (such as libraries, museums and theatres), common open spaces, and intangible cultural goods (such as languages, customs and beliefs).
• Accessibility: This includes non-discrimination, physical accessibility, economic access, and information access that guarantees everyone effective, tangible, and accessible opportunities to enjoy culture without discrimination, including access to rural and urban areas, with a focus on persons with disabilities, the elderly, and the poor.
• Acceptance: States must take necessary measures and consult the concerned individuals and communities to ensure acceptance of cultural diversity.
• Adaptability: States should adopt a flexible approach to cultural rights, by respecting the cultural diversity of individuals and communities.
• Adaptation to the relevant context; attention must be diverted to cultural values associated with, inter alia, food consumption, water use, how health and education services are provided, and how houses are designed and constructed.
The Convention for the Safeguarding of the Intangible Cultural Heritage, which is a UNESCO treaty adopted by the UNESCO General Conference on 17 October 2003, defines intangible cultural heritage as the practices, perceptions, forms of expression, knowledge and skills - and associated cultural instruments, pieces, artefacts and places - that are considered by communities and groups, and sometimes individuals part of their cultural heritage. The Convention noted that heritage, which inherited from through generations, is continuously created by groups and communities in accordance with their environment, interactions with their nature and history. Intangible cultural heritage is manifested in oral traditions and expressions, including language as a medium for intangible cultural heritage, performance arts and traditions, social practices, rituals and ceremonies, knowledge and practices relating to nature and the universe, and skills associated with traditional crafts. The Convention also defines safeguarding as measures aimed at ensuring the sustainability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, manifestation and transmission, especially through formal and non-formal education, and the revitalization of various aspects of this heritage.
UNESCO has issued many documents in the form of conventions, declarations, or recommendations that directly, or indirectly, promote cultural diversity. These had progressed since 1950:
• 1950 - Agreement Concerning the Importation of Educational, Scientific and Cultural Materials (“Florence Agreement”) and its Nairobi Protocol
• 1952 - Universal Copyright Convention
• 1954 - Convention for the Protection of Cultural Property in the Event of Armed Conflict
• 1970 - Convention on the Prohibition and Prevention of Illicit Import, Export and Transfer of Ownership of Cultural Property
• 1972 - Convention for the Protection of the World Cultural and Natural Heritage
• 2001 - Convention for the Protection of the Underwater Cultural Heritage
• 2005 - Convention on the Protection and Promotion of the Diversity of Cultural Diversity
• 2003 - Convention for the Safeguarding of the Intangible Cultural Heritage
Cultural and civilization heritage of peoples, which is the basis of civilization and a torch of human knowledge, has suffered damage and ravages caused by wars. Damage to cultural property owned by any people affects the cultural heritage of all humanity. Every nation contributes its share to world culture. Hence, preserving cultural heritage benefits all nations, and accordingly, international protection should be guaranteed to preserve it.
For example, Article (27) of the Hague Regulations of 1907 stipulates that in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. Meanwhile, Article (56) stipulated that property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.
According to the 1972 World Heritage Convention , heritage includes 3 main elements: tangible heritage (urban buildings), intangible heritage (which includes practices, perceptions, forms of expression, knowledge and skills - and associated tools, pieces, artifacts and cultural places - that communities and groups, and sometimes individuals, consider part of their cultural heritage (this is the intangible cultural heritage that is inherited through generations) and the natural heritage includes natural features, geological and physiographic formations, and natural sites.
Cultural Heritage in Palestine
Palestinians suffered after the 1948 Nakba, from displacement, and systematic destruction as well. There was a political will, from the highest levels, to demolish, destroy, burn and plunder everything related to human heritage in Palestine; this was implemented by destroying more than 400 Palestinian villages in 1949/1950 and looting their cultural assets, even after the cessation of hostilities. This included the destruction of dozens of villages of distinctive Palestinian architectural character. This resulted in the dispersal of many aspects of the Palestinian cultural heritage (Al-Ju'beh, 2008). After 1967, the Israeli occupation policy in the West Bank and Gaza Strip was characterized by an attempt to control archaeological activities. The Israeli authorities prevented Palestinians from carrying out local excavations, though it employed dozens of Israeli archeologists to excavate sites that confirms the Talmudic history of the Jewish in Palestine, even though international laws prohibit any archaeological excavations by an occupying force, unless acts untaken to save endangered sites. During these excavations, many archaeological sited dating back to the Islamic, Byzantine and other eras were totally neglected. Palestinians became aware of this negligence in the 1970s, when departments and faculties of archeology in Palestinian universities learnt of that. Nonetheless, there were neither institutions nor resources at the national level that could challenge the Israeli approach.
Palestine gained non-member observer status at the United Nations in November 29, 2012. It became a full member of UNESCO in 2011 and became a party to its conventions and agreements. Since, the Palestinian National Authority has worked to protect some elements of the threatened cultural heritage, such as the registration of the Old City of Hebron on the World Heritage List in 2017. Earlier, the PNA had the Church of the Nativity and the village of Battir registered in the same list. It also succeeded in registering the Palestinian [folklore] as an intangible heritage.
Obstacles to Preserving Cultural Heritage
In addition to measures taken by the occupation to control, or alter, historical features or limit them to Jewish history, its policies indirectly contributed to the deterioration or destruction of many historical sites. For example, the policy followed by the occupation of denying building permits to Palestinians and expanding housing master plans in Palestinian cities and villages has led to misuse of some historical buildings and modifications to some of them to keep pace with the increase in population.
With the establishment of the Palestinian National Authority, the emerging ministries, most of which were established from scratch, took over the reins of government. However, as the PNA had limited control over areas (A), and as it took over a fragmented and outdated legal environment in all fields, the PNA started to establish various village and municipal councils in its areas of control. Meanwhile, urban expansion of Palestinian cities and villages in Area C remained under the control of the Israeli occupation. It allowed only a few of them to expand. There was a construction boom in 1995-2000 in Palestine, putting great pressure on the centers of cities and villages. The number of buildings doubled in a short period of time, without strategic planning or control, which negatively affected archaeological and natural areas.
The Ministries of Tourism, Antiquities and Culture were formed in that period. They tried to develop plans and strategies to promote and protect cultural property. These ministries faced multiple, old and fragmented legal environments. Palestine had no unified law. Different Palestinian areas in the West Bank, Jerusalem and the Gaza Strip were subject to multiple laws, with partial Palestinian control over most of these areas. The Palestinian Legislative Council, which was established in March 1996, began issuing basic legislation, but culture and heritage were not given priority due to competing priorities. However, this work stopped by the end of 2005 before the legislative elections. It stopped completely after the division and the dissolution of the Legislative Council years ago. Severance of the ties of the Palestinian territories, the occupation’s control of Area C, the application of Israeli law in East Jerusalem, and the Israeli forces’ re-occupation of the Palestinian National Authority areas after 2001, put many restrictions on the role of the legislative, judicial, and executive authorities, which negatively affected the cultural and natural heritage in Palestine.
Concerning the cultural scene, although culture and its preservation were not mentioned in the Palestinian Basic Law amended in 2003, Article 35 included a paragraph in the oath of the president: “... I shall be faithful to the homeland and to its sacred places, to the people and its national heritage…” In 2015, Cabinet Resolution No. (14) was issued to establish the Center for the Preservation of Cultural Heritage. This was followed in 2018 by Law No. (11) on tangible cultural heritage. Although the decision reflects the important articles in the Hague Convention (1945), the 1970 Convention on Illicit Traffic in Heritage, and the World Heritage Convention (1972), it was not followed by the preparation of detailed regulations and its activation in the correct manner. One of the most important features of the law is its definition of tangible, immovable or movable cultural property as heritage if its history, is that it dates to 1917 AD, or if it enjoys cultural, economic or natural importance. This is a positive development compared to the previous law, which considered the reference in 1700 AD, which clearly excludes any archaeological or historical sites built during the Ottoman period as antiques, movable objects, religious buildings and natural sites. The issue of individual ownership of many historical buildings or some natural sites remains an obstacle in preserving and developing them.
As for the National Policy Agenda of 2017-2022, and the amended 2021-2023, the Palestinian government adopted the policy of protecting identity and cultural heritage in Palestine as one of the national policies that contribute to strengthening steadfastness and development.
Regarding the intangible cultural heritage law, it has not yet been approved, in addition to other laws related to cultural heritage, such as copyright and others.
