
Contents
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1. Introduction 1. Introduction
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2. Customary Law 2. Customary Law
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3. The Customary Law Prohibition of the Intentional Destruction of Cultural Heritage in the Context of Conflict 3. The Customary Law Prohibition of the Intentional Destruction of Cultural Heritage in the Context of Conflict
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4. Illicit Transfers from Territories under Military Occupation 4. Illicit Transfers from Territories under Military Occupation
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4.1 Is This Practice Evidence of a Customary Rule? 4.1 Is This Practice Evidence of a Customary Rule?
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5. General Principles 5. General Principles
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5.1 General Principles as Expression of a General Consensus of the International Community 5.1 General Principles as Expression of a General Consensus of the International Community
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5.1.1 The Principle of Cultural Heritage of Humanity 5.1.1 The Principle of Cultural Heritage of Humanity
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5.1.2 World Cultural Heritage 5.1.2 World Cultural Heritage
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5.2 General Principles Derived from Domestic Law 5.2 General Principles Derived from Domestic Law
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5.2.1 The Sovereign Right of Every State to Declare Cultural Property Located in Its Territory as Part of the National Patrimony 5.2.1 The Sovereign Right of Every State to Declare Cultural Property Located in Its Territory as Part of the National Patrimony
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5.2.2 The Principle of Due Diligence 5.2.2 The Principle of Due Diligence
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5.3 Aspirational Principles of Progressive Realization 5.3 Aspirational Principles of Progressive Realization
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5.4 Principles of Procedural Character 5.4 Principles of Procedural Character
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5.5 Peremptory Principles of Jus Cogens? 5.5 Peremptory Principles of Jus Cogens?
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6. Conclusions 6. Conclusions
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23 Custom and General Principles of International Cultural Heritage Law
Get accessFrancesco Francioni (Doctor of Laws, Florence, and LLM, Harvard) is Professor Emeritus of international law at the European University Institute, Florence and Professor of international law at LUISS University, Rome. He is a member of the Institut de droit international, a member of the editorial board of the Italian YBk of International Law, and the founder and General Editor (with A. Vrdoljak) of the Oxford University Press series Cultural Heritage Law and Policy. He has been a member of the Italian delegatin in numerous international negotiations and diplomatic conferences, as well as President of the UNESCO World Heritage Committee 1997–1998. He has been Judge ad hoc in the UN Tribunal of the Law of the Sea and currently is Arbitrator at the Permanent Court of Arbitration (The Hague). He has published extensively in the field of public international law, in English, Italian and French languages. He has been visiting professor at Oxford University (1998–2003), Columbia Law School (Winter term 2013), Cornell Law School (1984, 1985, 1986), and Texas Law School from 1987 to 2008. In 2018 he gave the General Course in international law at the Chinese (Xiamen) Academy of International Law. Email: [email protected]
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Published:08 October 2020
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Abstract
This chapter assesses whether contemporary international law prescribes obligations in the field of cultural heritage protection, which are binding upon States and other relevant international actors independently of or even against their consent. This question is relevant for a number of reasons. First, in spite of the widespread acceptance of treaty obligations in the various fields of cultural heritage protection, many States remain outside of the treaty regimes. Second, even for the States bound by treaties in force, their obligations have no retroactive effect, therefore leaving situations or disputes arising before the entry into force of relevant treaties outside their scope of application. Third, recognition of the character of custom or general principles to certain norms of international law may guarantee a superior ranking in the domestic law hierarchy of sources of the law.
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