Features of the conventional protection of cultural heritage at the level of the Council of Europe

Gibadullin Timur Damirovich ORCID: 0000-0003-2752-6347 Postgraduate Student, Department of International and European Law, Kazan Federal University 420008, Russia, Republic of Tatarstan, Kazan, Kremlevskaya str., 18 tdgibadullin@gmail.com

From day to day, cultural heritage — an irreplaceable link between the past, present and future generations, a reflection of the history and identity of peoples — continues to be in danger. During armed conflicts, it is attacked with the aim of destroying the cultural identity of groups, communities and individuals, of which cultural heritage is a part. At the same time, it becomes an object of economic exchange in the context of globalization, which negatively affects the intangible cultural heritage, which finds expression, for example, in the disappearance of languages or customs of the peoples of the world ^{[38, p. v]}.

There are certain problems related to the protection of cultural heritage, including on the territory of Russia. These include frequent violations of legislation in this area (among other things, when the objects in question are excluded from the Unified State Register of Cultural Heritage Objects (Historical and Cultural Monuments) of the Peoples of the Russian Federation, when financing measures to protect cultural heritage, when carrying out urban planning and land use) ^[32]. All this leads to damage and destruction of the priceless cultural heritage of our country. In addition, the mentioned problems include the fact that the powers of representatives of civil society and the public in the field of cultural heritage protection are in some cases insufficiently broad ^{[31, p. 19]}, and this also negatively affects the preservation of the objects and manifestations under consideration.

It is worth noting that the problems described above also have an impact on human rights. In particular, they create difficulties for the full realization of the right to access to cultural values enshrined in the Constitution of the Russian Federation ^{[29, part 2 of Article 44]}. This is explained by the fact that, as stated by the Constitutional Court of the Russian Federation, part of this right is the right to the preservation of cultural heritage objects ^{[30, paragraph 4.1]}.

But how are things going with solving the problems of preserving these objects and manifestations? Answering this question, it should be noted that the last few decades have marked the awareness of the international community of the urgency of solving these issues, along with a significant shift of relevant efforts from the national legal to the international legal level ^{[44, p. vii]}. Only under the auspices of UNESCO during the first five years of the XXI century, three conventions related to cultural heritage were signed ^{[13, 12, 11]}, and more recently, in 2017, even the UN Security Council adopted for the first time a resolution devoted exclusively to the protection of cultural heritage ^[22].

These problems are not ignored at the regional level. In particular, a lot of attention is paid to the issues under consideration by such a regional international organization as the Council of Europe. For example, in the recommendation of the Committee of Ministers of the Council of Europe of February 22, 2017 on the European Strategy on Cultural Heritage for the XXI Century, it was announced that the very statutory goal of the Council of Europe, which is to achieve greater unity among its members ^{[20, paragraph a of Article 1]}, can be implemented through joint actions, including in the field of cultural heritage ^{[28, Preamble, para. 2]}. In general, this international organization has developed a truly extensive legal framework for the protection of the objects and manifestations under discussion, which, however, is studied in the framework of the domestic science of international law, a small number of works are devoted to.

In this regard, and also, among other things, due to Russia's membership in the Council of Europe and the direct influence of its legal acts on it, we believe that issues of cultural heritage protection at the level of this international organization deserve increased attention.

Before proceeding to the main part of our work, we will outline the methodological basis of this study. She used methods of deduction, induction, analysis, synthesis, formal-logical, descriptive, system-structural, historical, comparative and formal-legal methods.

For the purposes of analyzing the issues raised in the title of our work, first of all it is necessary to define cultural heritage. From the point of view of international law, including the law of the Council of Europe, cultural heritage can be defined as material and intangible property received from previous generations, which should be preserved and passed on to future generations ^{[34, p. 8]}. Cultural heritage can be archaeological monuments, buildings, sculptures, paintings, natural objects with cultural aspects, rituals, oral traditions, etc.

At the same time, there is no single definition of tangible cultural heritage in international law. As for the intangible cultural heritage, its definition is contained in the UNESCO Convention on the Protection of the Intangible Cultural Heritage of 2003. According to him, this concept "means customs, forms of representation and expression, knowledge and skills — as well as related tools, objects, artifacts and cultural spaces — recognized by communities, groups and, in some cases, individuals as part of their cultural heritage" ^{[12, paragraph 1 of art. 2]}.

Having decided on the terminology, we will turn directly to the legal framework of the Council of Europe in the field of cultural heritage protection.

Firstly, it must be said that a number of international treaties concerning these objects and manifestations have been adopted under the auspices of this international organization. These international legal acts include:

- European Cultural Convention (December 19, 1954) ^[6];

- European Convention for the Protection of Archaeological Heritage (May 6, 1969) ^[3];

- European Convention on Offences against Cultural Property (June 23, 1985) ^[1];

- Convention on the Protection of the Architectural Heritage of Europe (October 3, 1985) ^[9];

- European Convention for the Protection of Archaeological Heritage (revised) (January 16, 1992) ^[4];

- European Convention on Co-production of Films (October 2, 1992) ^[2];

- European Charter for Regional or Minority Languages (November 5, 1992) ^[7];

- Framework Convention for the Protection of National Minorities (February 1, 1995) ^[18];

- Council of Europe Landscape Convention (as amended by the 2016 Protocol) (October 20, 2000) ^[14];

- The European Convention for the Protection of Audiovisual Heritage (November 8, 2001) ^[5], as well as the Protocol on the Protection of Television Programs to this Convention (November 8, 2001) ^[17];

- Council of Europe Framework Convention on the Significance of Cultural Heritage for Society (October 27, 2005) ^[19];

- Council of Europe Convention on Joint Film Production (revised) (January 30, 2017) ^[16];

- Council of Europe Convention on Offences against Cultural Property (May 19, 2017) ^[15].

In addition, the international organization under consideration has adopted a significant number of "soft law" documents in the field of cultural heritage protection, which, among other things, include provisions on best practices in this area and the implementation of relevant conventions ^{[27, 26, 24]}.

At the same time, it is mainly the latter that contain the legal foundations for the protection and development of European cultural heritage ^{[41, p. 758]}. Of course, the obvious binding nature of the norms of these international treaties for the participating States implies their greatest impact on the protection of cultural heritage among all the documents of the Council of Europe in this area.

In connection with the above, it seems that the regime of protection of cultural heritage at the level of this international organization, established precisely by conventions, is of particular interest. It seems that it is also of interest due to the fact that in the domestic doctrine the conventions discussed in the complex are rarely considered; from the relevant works, the works of S. N. Molchanov can be distinguished ^[33]. As for the foreign science of international law, these issues are covered, among others, in the works of D. Blake ^[34], R. Crofurd-Smith ^[35], K. Odendahl ^[41], D. Theron ^[42], A. Yakubovsky ^[37].

All the above-mentioned international treaties have been supported by the member States of the Council of Europe to varying degrees, but some of them, as of January 2022, have been ratified by the overwhelming majority or even all the member States of this international organization, and other States participate in some. Such international treaties include, with some exceptions, the five most significant, in our opinion, conventions of the Council of Europe concerning cultural heritage:

- European Cultural Convention of 1954;

- Convention on the Protection of the Architectural Heritage of Europe, 1985;

- European Convention for the Protection of Archaeological Heritage (revised) 1992;

- Council of Europe Landscape Convention 2000 (as amended by the 2016 Protocol);

- The Council of Europe Framework Convention on the Significance of Cultural Heritage for Society 2005 (this Convention is the mentioned exception, since as of January 2022, 21 of the 47 member States participate in it).

It is these international treaties that simultaneously have a significant number of ratifications, have entered into force and most directly relate to the protection of cultural heritage, exerting the most extensive influence in this area. 

It should be noted that in the recommendation of the Committee of Ministers of the Council of Europe dated February 22, 2017 about the European Strategy on Cultural Heritage for the XXI Century, these five conventions are called "fundamental" ^{[28, p. 4]}.

In addition, for example, when mentioning in paragraph 8 of the preamble of the Council of Europe Framework Convention on the Significance of Cultural Heritage for Society 2005 of other documents of the Council of Europe, just the other four listed conventions are highlighted.

Finally, in foreign literature it is also either explicitly noted that among the international treaties of the Council of Europe concerning cultural heritage, almost all of the mentioned conventions are the main ones (D. Blake) ^{[34, p. 325]}, or increased attention is paid to them (R. Crofurd-Smith) ^{[35, p. 912-918]}.

We, in turn, also believe that among the international treaties of this international organization in the field under consideration, these conventions can be called the main ones.

The study of these legal acts as the subject of our research allows us to highlight the features of the conventional protection of cultural heritage at the level of the Council of Europe, in the disclosure of a number of which (for example, the first one) the scientific novelty of this work is expressed. Scientific novelty, moreover, is contained in our conclusions and recommendations, which are in the final part of this study.

1. Firstly, we have revealed that the main conventions of the Council of Europe concerning cultural heritage pay special attention to human rights. This correlates with one of the main broad political and social goals of this international organization, namely, ensuring respect for human rights.

Thus, starting from the 1954 European Cultural Convention, the main international treaties of the Council of Europe related to cultural heritage state the obligation of the participating States to ensure access to it ^{[6, Article 5; 9, Article 12; 4, paragraph ii of Article 9; 19, paragraph d of Article 12]}, and such provisions can be considered aimed at ensuring the right of access to cultural heritage.

In addition, the most recent of the main relevant conventions, namely the Council of Europe Framework Convention on the Significance of Cultural Heritage for Society 2005, human rights issues are most explicitly addressed. It is the first international treaty (taking into account universal international treaties) that quite definitely places cultural heritage in the field of individual rights ^{[46, p. 37]}. Article 4 of the Convention under consideration provides for the right to cultural heritage, according to which any individual, individually or collectively, has the right to use cultural heritage and contribute contribution to its enrichment.

The approach of this international treaty, based on human rights, allows us to focus the preservation of heritage on the development of human potential ^{[40, p. 61]}. The considered approach is also valuable from the point of view of securing not only the directly relevant human rights, but also his duties. This international treaty, in addition to the obligation of the participating States to ensure the exercise of the right to cultural heritage, provides for the obligation of individuals and groups to respect the heritage of others ^{[19, paragraph b of Article 4]}, which contributes to conflict resolution, as well as, in the respective States, post-conflict reconstruction and development through cultural means ^{[45, p. 45]}.

In general, it seems that the trend related to the regulation of human rights issues in the Council of Europe conventions on cultural heritage will continue to grow.

2. Another feature of the Council of Europe's approach to the protection of cultural heritage, related to another broad political and social goal of this international organization (the promotion of democracy) and manifested not only in conventions, is the consolidation in relevant documents of provisions concerning the importance of the participation of civil society and the public in a number of activities related to cultural heritage in particular, in its detection and protection ^{[34, p. 324]}. For example, similar provisions are contained in:

- The Convention on the Protection of the Architectural Heritage of Europe of 1985, in which the participating States, for example, undertake to create a mechanism for cooperation in the field of architectural heritage protection between the state, civil society institutions and the public ^{[9, paragraph 1 of Article 14]};

- The 2000 Council of Europe Landscape Convention (as amended by the 2016 Protocol), according to which the participating States, among other things, should develop procedures for the participation of stakeholders, including the population, as well as local and regional authorities, in the definition and implementation of policies for the protection and planning of landscapes, as well as management of them ^{[14, paragraph c of Article 5]};

- Recommendations 1990 (2012) of the Parliamentary Assembly of the Council of Europe of January 24, 2012 "On the right of everyone to participate in cultural life", which, although it says that the key role in the protection of cultural heritage should belong to the state, also at the same time it is noted that it should be the initiator, regulator and stimulator of interaction between state institutions and non-profit and private organizations, in particular contributing to the protection and development of cultural heritage ^[23].

The apotheosis of ensuring democratic participation in issues related to cultural heritage was the adoption of the Council of Europe Framework Convention on the Significance of Cultural Heritage for Society in 2005, the very name of which may indicate a similar bias. According to it, the participating States should encourage universal participation in the process of identifying cultural heritage, its interpretation, study, use, protection and preservation ^{[19, paragraph a of Article 12]}.

At the same time, it should be understood that effective participation of the population in the issues under consideration cannot simply be imposed from above. It is necessary to have mechanisms that facilitate such participation and prevent certain individuals or groups from dominating it, which can undermine public confidence in the process ^[36].

In addition, it seems very important that the 2005 Framework Convention separately establishes the need to ensure the participation of representatives of civil society in activities related to cultural heritage. Article 19, paragraph d, states that participating States should recognize the role of "voluntary organizations", both as partners of the State in activities related to cultural heritage and as constructive critics of policies in this area.

3. Further, there are a number of features of the approach to the protection of cultural heritage and its perception in general, manifested in the main conventions of the Council of Europe devoted to it, which distinguish this approach from the corresponding paradigm at the universal level (here we mean UNESCO).

Thus, a similar feature is the frequent absence at the level of the Council of Europe of an explicit division of the objects and manifestations under consideration into tangible and intangible heritage ^[39] (both from a textual point of view and from the point of view of separate approaches to protection), which is practiced by UNESCO.

For example, the European Cultural Convention adopted back in 1954 — the first international treaty of the Council of Europe concerning cultural heritage — refers simultaneously to such a classical intangible manifestation of cultural heritage (which, however, is not designated there as "intangible" as opposed to "material") as language ^{[6, art. 2]}, and about such material objects as "objects of cultural value" ^{[6, Articles 4-5]}.

Interestingly, in the same year, the first international treaty on the protection of cultural heritage was adopted already under the auspices of UNESCO, namely the Convention on the Protection of Cultural Property in the Event of Armed Conflict ^[8], which concerned only material objects. Only after almost half a century, an international treaty on intangible cultural heritage appeared at the universal level — the Convention on the Protection of Intangible Cultural Heritage of 2003, which clearly draws a line between such manifestations and material objects both from a textual point of view and from the point of view of establishing a separate protection regime.

Returning to the international treaties of the Council of Europe, it is worth noting that the Convention on the Protection of the Architectural Heritage of Europe of 1985, like the European Cultural Convention of 1954, contributes to the protection of not only material cultural heritage (in this case architectural), but also, for example, traditional skills associated with it ^{[9, paragraph 5 of Article 10]}. The latter include, for example, the skill of the so-called "dry masonry", that is, construction of stone without the use of binding mortar. Noteworthy is the fact that a non-governmental organization for the preservation of this traditional method was even established in Croatia, which was noted by the Council of Europe ^[47].

In addition, it must be said that even the very definition of archaeological heritage for the purposes of the European Convention for the Protection of Archaeological Heritage (revised) 1992 includes intangible manifestations. Confirmation of this can be found in the explanatory report to this international treaty, which states that according to the definition of archaeological heritage contained in the Convention, "not only objects [of archaeological heritage] are important", but also "any evidence of any kind that can shed light on the past of mankind" ^{[25, p. 3]}.

4. Another distinctive feature of the regime of the main conventions of the Council of Europe concerning cultural heritage, in comparison with the regime of protection of such objects and manifestations at the universal level, is the coverage by European conventions of objects whose cultural value may not always be immediately obvious — due to their inconsistency with generally accepted ideas about beauty, something outstanding or inspiring.

This applies to the two most recent of the five international treaties of the Council of Europe under consideration. If, for example, according to the UNESCO Convention on the Protection of the World Cultural and Natural Heritage of 1972, objects of "outstanding universal value" are World Heritage sites ^{[10, Articles 1-2]}, then paragraph 7 of the preamble of the Council of Europe Convention on Landscapes of 2000 (as amended by the Protocol of 2016) explicitly states that landscapes in areas in decline, as well as in ordinary areas, are also important for ensuring the quality of life of people. In accordance with the definition of cultural heritage for the purposes of the Council of Europe Framework Convention on the Significance of Cultural Heritage for Society in 2005 ^{[19, paragraph a of Article 2]}, such objects can include not only something beautiful or inspiring from an aesthetic point of view, but also manifestations of conflicts and inhumane acts of the past that affect modern values ^{[35, p. 917]}.

In this regard, we can talk about a certain trend related to the coverage of such "non-obvious" heritage, which, as it seems, will be preserved in further international treaties of the Council of Europe related to cultural heritage.

5. It is interesting that, despite a number of features of the Council of Europe's approach to the protection and perception of cultural heritage in general that distinguish it from the UNESCO approach, there is a significant influence of universal international legal instruments in the main relevant conventions of the Council of Europe.

So, in particular, it is possible to note the influence of the Convention on the Protection of the World Cultural and Natural Heritage of 1972 on the Convention on the Protection of the Architectural Heritage of Europe of 1985. It manifests itself even in the definition of architectural heritage for the purposes of the last international treaty ^{[9, Article 1]}, the three categories of which mentioned in this definition in the English-language text of the 1985 Convention are identical to the categories of world cultural heritage in the English-language text of the 1972 Convention ^{[10, Article 1]}.

In addition, it is worth mentioning the similarity of approaches of the UNESCO Convention on the Protection of Intangible Cultural Heritage of 2003 and the Council of Europe Framework Convention on the Significance of Cultural Heritage for Society of 2005, which are characterized by a dynamic understanding of cultural heritage and an emphasis on the participation of groups and communities in activities related to it ^{[35, p. 917]}.

6. It should also be noted that one of the notable characteristic features of the Convention protection of cultural heritage at the level of the Council of Europe is the active use of the concept of "common" European heritage.

This concept can be interpreted in different ways. As indicated in the literature, it is possible that the common heritage of Europe is understood as a set of diverse objects and manifestations of cultural heritage located in the member States of the Council of Europe ^{[35, p. 914]}. In other words, this concept may simply imply the entire amount of cultural heritage located on the territory of the States of the region in question. It is also possible that the concept under discussion refers to a cultural heritage that has a special meaning for Europe (because of its presence in all or many European states, or because it is the result of the interaction of various European peoples), which implies a separate interest in the preservation and development of such cultural heritage Europe as a whole, and not just a particular member state ^{[35, p. 914]}. For the latter, this can have both pros and cons.

It is important to note that the concept of a common European heritage (in various formulations) is found both in international treaties and other documents of the Council of Europe of the last century, and in relatively recent international legal acts.

From the documents of the XX century, an example can be given, in particular, the European Cultural Convention of 1954, the States parties to which undertake to take the necessary measures to promote the development and protection of "their national contribution to the common cultural heritage ["heritage" in the English text] Europe" ^{[6, Article 1]}, or the Convention on the Protection of the Architectural Heritage of Europe of 1985, in paragraph 3 of the preamble of which architectural heritage is called "the common heritage of all Europeans".

In addition, the concept of "European heritage" was directly related, for example, to the European Plan for Archaeology in 1994, and, interestingly, one of the important events of this plan was the conference held in 1995 at the British Museum on Bronze Age Europe, the theme of which was chosen due to the fact that in this archaeological period, Europe was the most unified in terms of trade and communications ^{[34, p. 323]}.

As for relatively recent international treaties, the 2005 Council of Europe Framework Convention on the Significance of Cultural Heritage for Society is relevant in connection with the issue under consideration, where a separate article of the same name is already devoted to the "common heritage of Europe" ^{[19, Article 3]}. This may indicate that this category has been increasingly consolidated in the legal acts of the Council of Europe over time.

In addition, it should be said that the reference in the documents of the international organization in question to this category may also imply the existence of a common "European identity", an important role in the definition and consolidation of which is played by the pan-European heritage, and which can become the basis for further integration and cooperation in this region ^{[34, p. 323]}.

7. It should be noted that a number of documents of the Council of Europe concerning cultural heritage, including the main relevant conventions, enshrine the principles of "integrated conservation" of such objects. If we talk about the five main international treaties of the Council of Europe under consideration, the relevant provisions have always been included in them, starting with the Convention on the Protection of the Architectural Heritage of Europe of 1985 ^{[9, Article 10; 4, Article 5; 14, paragraph d of Article 5; 19, paragraph g of Article 5, paragraph a of Article 11]}

This particular approach, developed by this international organization, involves the integration of the preservation of cultural heritage, including in urban planning policy, in environmental protection policy and, in particular, the inclusion of the principles of the protection of cultural heritage and its management in all decision-making processes, and also assumes the appropriate adaptation of cultural heritage to modern needs.

It should also be noted that comprehensive conservation requires legal, technical, financial, administrative and human resources, involving the interaction of various sectors, professions, government agencies and the public, as well as professional training and overcoming corporatism ^{[42, p. 22]}.

8. Another feature of the Convention protection of cultural heritage at the Council of Europe level that deserves mention is the focus on sustainable development issues.

This applies to the last two of the conventions under consideration, and if the Council of Europe Landscape Convention 2000 (as amended by the Protocol 2016) mentions sustainable development in general, as well as sustainable landscape protection, sustainable management and planning three times ^{[14, paragraph 3 of the preamble, paragraph e of Article 1, paragraph 4 Article 11]}, then in the Council of Europe Framework Convention on the Significance of Cultural Heritage for Society 2005, similar issues occupy a much more important place, and the sustainable use of cultural heritage is given a whole separate Article 9.

Using the well-known definition of the concept of "sustainable development" given in the 1987 Report of the World Commission on Environment and Development "Our common Future" ^{[21, p. 59]}, the concept of "sustainable use of cultural heritage", in our opinion, can be defined as such its use that meets the needs of the current generation, but which will not prevent future generations from satisfying their needs. In view of this, it can be concluded that the need for the sustainable use of cultural heritage implies even the definition of cultural heritage itself as such, which was given by us in this paper earlier.

9. Finally, it is impossible not to highlight such a characteristic feature of the considered international treaties of the Council of Europe as the recognition in them of a direct link between cultural heritage and quality of life. It can be seen in the Convention on the Protection of the Architectural Heritage of Europe of 1985 ^{[9, paragraph 4 of Article 10]}, in the Council of Europe Convention on Landscapes of 2000 (as amended by the Protocol of 2016) ^{[14, paragraph 7 of the preamble]}, in the Council of Europe Framework Convention on the Significance of Cultural Heritage for Society of 2005 ^{[19, paragraph 4 of the preamble]} It seems that such recognition is connected, among other things, with the important place that the quality of life occupies in the European system of values ^{[34, p. 327]}.

Thus, we have identified the main features of the protection of cultural heritage at the level of the Council of Europe in accordance with the most important conventions in this area adopted under its auspices. It seems that taking into account these features by all interested parties can form a better understanding of the main trends in the development of the law of the Council of Europe in the field of protection of cultural heritage and the prospects of this right. In addition, it seems that taking into account the identified characteristics of the States parties to the international treaties under consideration can contribute to improving the effectiveness of their application of these conventions - which is important, not only individually, but also in a complex.

The latter applies, among other things, to Russia. Moreover, in our opinion, it should intensify its activities in areas related to some of the features of the Convention protection of cultural heritage at the Council of Europe level considered in this study.

So, in the light of the specific problems mentioned in the introduction of our work related to the protection of cultural heritage that take place on the territory of Russia, it seems that it should pay more attention to the principles of integrated preservation of such objects and manifestations.

Again, in the light of these specific problems, it may be appropriate for Russia to ensure greater participation of representatives of civil society and the public in the protection of cultural heritage, including giving them broader powers in this area. This can be facilitated, in particular, by Russia's ratification of the Council of Europe Framework Convention on the Significance of Cultural Heritage for Society in 2005. As already noted, it obliges the participating States to encourage very serious public participation in activities related to cultural heritage, and separately speaks of the need to ensure the participation of representatives of civil society in these activities.

The ratification of this international treaty can also have a positive impact in the context of the second of the features of the convention protection of cultural heritage at the Council of Europe level (concerning human rights) studied in this paper. In particular, it seems that if Russia participates in the 2005 Framework Convention, the content of the constitutional right to access to cultural values may be supplemented. The fact is that, as already mentioned, Article 4 of this Convention provides for the right to cultural heritage, and it includes, for example, the right to contribute to its enrichment, which, in turn, can be included in the content of the said constitutional right.