Hague Convention Research Articles

Communism, Poetry: Communicating Vessels (Some Insubordinate Essays, 1999–2018)

Communism, Poetry: Communicating Vessels (Some Insubordinate Essays, 1999–2018)

The Idiosyncratic Case of Archaeology in Istanbul under Occupation

The Idiosyncratic Case of Archaeology in Istanbul under Occupation Ceren Abi (bio) KEYWORDS Occupation of Istanbul, Archaeology, Allies, Ottoman Empire, International Laws In this article, I will focus on the archaeological activities of the Allied forces during the occupation of Istanbul after World War I. I will address three questions: Why did the Allies engage in archaeology? Why did the Allies not ship their archaeological finds in Istanbul to Europe, given that they did so from elsewhere in the empire? Indeed, all parties that fought on Ottoman lands carried out archaeological activities during the war.1 Lastly, why would they do this in the midst of a brutal global conflict and an occupation? I argue that we can answer these questions by looking at what they sought to gain. Firstly, to stake territorial claims or at least to delineate a zone of influence; secondly, to legitimize their occupation; and thirdly, to take advantage of an exceptional opportunity to produce knowledge and acquire antiquities. The Allies claimed to be the true successors of the ancient civilizations that had developed in the Ottoman lands, which provided an ideological rationale for the occupation. There was precedent for using the past to assert territorial claims, such as by the French in Egypt in the late eighteenth century, [End Page 255] and by France and Italy in North Africa in the nineteenth and early twentieth centuries.2 During the occupation of Eastern Asia Minor during the First World War, Russia also asserted its claim to be the legitimate heir of the Byzantine Empire and initiated excavations.3 In 1919, when the Greek Army occupied the Western coast of Asia Minor, they were similarly accompanied by archaeologists who collected antiquities with the intention of proving the essential "Greekness" of the lands. At the same time, the Italians, who had long had a cultural interest in the same territories, attempted to establish their own historical claims through archaeological studies into the Roman past.4 The Allies also tried to accomplish these same goals through the use of civilizing mission tactics. For example, the French military established a museum in Adana,5 while Italian forces established one in Antalya.6 These museums were presented as having civilized the occupied land and conspicuously displayed the importance of protecting local antiquities. The occupation was also framed as an "exceptional opportunity," in the words of Sir Frederic Kenyon, the director of the British Museum.7 By 1915, when the Allied armies began fighting in the Ottoman lands, the British were already conducting excavations and were shipping their finds back to Britain and France.8 The Ottoman Antiquities Law of 1884 declared all antiquities to be state property and strictly banned their exportation. Article 56 of the 1899 Hague Convention, which concerned the laws and customs of war, prohibited [End Page 256] the seizure of "historical monuments, works of art or science."9 Article 43 of the Hague Convention of 1907, likewise decreed that occupiers must respect the laws in force in the occupied country. Thus, theoretically the Allied archaeological activities were already legally questionable. In Istanbul, it was the French who conducted excavations, working in the Gülhane and Makriköy districts to uncover Byzantine remains.10 The Ottomans also attempted to maintain control of archaeological discoveries and the movement of finds during the occupation period. At the same time, however, officials from the Ottoman state and the occupying archaeologists maintained a scholarly relationship. For example, Theodor Makridy Bey, an archaeologist at the Ottoman Imperial Museum, co-authored articles with French archaeologists.11 The association of Makridy Bey and other Ottoman officials with French archaeologists predated the war. Furthermore, Ottoman officials engaged in civil gestures with the occupation forces.12 Nonetheless, during the occupation, the nature of French excavations became contentious. The French argued that the excavations were mutually agreed upon by General Charpy, the head of the French occupation forces in Istanbul, and Halil Edhem, the director of the Ottoman Imperial Museum, via an exchange of letters. However, Ottoman documents indicate that Halil Bey was upset about not being notified, to the extent that he brought the issue to General Charpy and demanded an explanation and cessation of the excavations...

Cinema as (Tangible and Intangible) Cultural Heritage

This research paper will put forward innovative solutions to strengthen the protection of cinema during armed conflicts, in particular by contending that cinema could be qualified as cultural heritage, thereby falling under the protection of the relevant international Conventions. A special testimony made by artist Sergio Iovino will be first proposed, with a view to highlighting the importance to safeguard cinema and – broadly speaking – every kind of art in wartime. Moving from the current armed conflict in Ukraine, the paper will underline the need for a reassessment of the relevant international regulations. In particular, after having secured a comprehensive definition of cinema, still lacking in international law, it will propose an evolutionary interpretation of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage (1972), the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005). The paper will then analyze the legal relations between International Humanitarian Law (IHL) and filmmaking, which remain nebulous. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict never refers to cinema, but simply mentions “objects of artistic interest” (art. 1), and already such a definition fails to accommodate cinema’s mongrel nature and complex production process. An adaption of IHL, starting from the 1949 Geneva Conventions and their Additional Protocols, will be therefore put forward in order to ensure that the art of filmmaking can enjoy legal protection in all phases of an armed conflict.

A Study on the Interpretation of Non-substantive Review Clauses in the Hague Convention on Judgements

The non-material review clause stipulated in Article 4 (2) of the 2019 Hague Convention on Judgments is the basic clause of the Convention and the concept of facilitating the circulation of foreign civil and commercial judgments pursued by the Convention. However, there are some obstacles in practice, such as differences among countries on the concept of non-material review, vagueness of the scope of non-material review in the Convention and unitary initiation method of non-material review, which hinder the application of non-material review provisions. Based on this, by defining the concept of non-material review, clarifying the scope of non-material review matters and constructing a new diversified non-material review initiation method, this paper aims to improve the relevant provisions of non-material review provisions and promote their application in the process of recognizing and enforcing foreign civil and commercial judgments.

International Child Abduction and the 1980 Hague Convention in Practice: The Biran Case

Abstract With its Decision of 29 November 2021 (No. 7918/21), the Supreme Court of Tel Aviv has ruled on the case of Eitan Biran, the child who survived the crash disaster of the “Mottarone” cable car in Italy. After the accident, the child was entrusted to his aunt, appointed as legal guardian. However, a few months later, the child was unexpectedly conducted to Israel by his paternal grandfather. The Israeli Family Court and District Court, appointed for the return of the child according to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, have ordered the immediate repatriation in Italy. The decision of the District Court was upheld by the Supreme Court, whose decision represents a good example of correct application of the 1980 Hague Convention. Acknowledging that the guiding principle of the Convention is “zero tolerance for child abductions”, the Court has established that the habitual residence of the child was in Italy and that the transfer to Israel was in breach of the custody rights of the legal guardian according to Articles 3 and 5 of the Convention: in fact, the institute of tutore legale in Italy attributes to a person the responsibility of a child, a circumstance that in this case derived from a judicial decision. Moreover, the Israeli Supreme Court has adhered to a strict interpretation of the exceptions stated in Articles 12(2), 13 and 20, none of which resulted applicable to the case at hand.

A return to the doctrine of forum non conveniens after Brexit and the implications for corporate accountability

On 1 January 2021, the European Union’s uniform laws on jurisdiction in cross-border disputes ceased to have effect within the United Kingdom. Instead, the rules governing jurisdiction are now found within the Hague Convention 2005 where there is an exclusive choice of court agreement and revert to domestic law where there is not. Consequently, the doctrine of forum non conveniens applies to more jurisdictional issues. This article analyses the impact forum non conveniens may have on victims of human rights abuses linked to multinational enterprises and considers three possible alternatives to the forum non conveniens doctrine, including (i) the vexatious-and-oppressive test, (ii) the Australian clearly inappropriate forum test, and (iii) Article 6(1) of the European Convention on Human Rights. The author concludes that while the English courts are unlikely to depart from the forum non conveniens doctrine, legislative intervention may be needed to ensure England and Wales’ compliance with its commitment to continue to ensure access to remedies for those injured by the overseas activities of English and Welsh-domiciled MNEs as required by the United Nation’s non-binding General Principles on Business and Human Rights.

Sounds of patriotism and propaganda: the case of the church bell of Mar-quillies (département du Nord, France)

ABSTRACT In late nineteenth-century France, church bells were an integral part of society, sounding the quotidian rhythms of life. During WWI, a shortage of metals for the war effort resulted in German authorities requisitioning church bells in Germany and occupied territories. While the sequestration of the only bell from the church L’Eglise Sainte-Geneviève in the village of Marquillies (France) occurred under this guise, this was an invented cover story in order to remove the bell as a war trophy to Berlin. Contravening the revised Hague Convention of 1907, the removal the bell occurred because, owing to texts inscribed onto the bell by both parties, it was a propaganda tool by the French community and German forces alike. As a unique political symbol of the tension in the Alsace-Lorraine region in the early twentieth-century, the bell serves as a case highlighting the political power of a communal religious icon.

Violation of children’s rights during the war by the Russian Federation

The article is devoted to the study of violations of children’s rights by the Russian Federation during the armed aggression against Ukraine. The article analyzes the international documents on child protection, defines the concept of “child” in the understanding of international institutions. It was found that the special status of children and the need for their legal protection is declared in the Universal Declaration of Human Rights, the UN Convention on the Rights of the Child.
 The international documents that provide for the protection of children’s rights during military aggression have been established, in particular, it has been determined that the Russian Federation systematically violates the norms of the UN Convention on the Rights of the Child, the Geneva Convention and the Hague Convention. Violations of the right to life and protection from torture, the right to security, personal integrity and dignity, the right to protection from sexual violence, the right to safe living and healthy development, the right to property and housing, the right to education and other children’s rights.
 Emphasis was placed on the need for preventive activities to prevent further violations of children’s rights, as well as the importance of strengthening the state’s evacuation mechanisms, agreements on green corridors with Russia and its military at various levels. The Rome Statute is analyzed for signs that may indicate a possible qualification of the aggressive actions of the Russian Federation. It has been established that the actions of Russian servicemen can be qualified as war crimes, namely the intentional commission of acts that expose the civilian population to starvation as a means of waging war by depriving it of its necessities for survival, including intentional obstruction of assistance, as provided for in the Geneva Conventions.
 Emphasis is placed on the importance of teaching children the rules of conduct in shelters, in dangerous places, during air raids.
 It is recommended that children who have already fallen victim to the occupiers be provided with qualified medical and psychological services.

Children’s Objections in Hague Child Abduction Convention Proceedings in Australia and the “Strength of Feeling” Requirement

Abstract The Hague Convention on the Civil Aspects of International Child Abduction creates an exception to the mandatory return of abducted children if the child objects to being returned to their country of habitual residence and has attained an age and degree of maturity at which it is appropriate to take account of their views. The Australian regulations also require that the child’s objection demonstrates a ‘strength of feeling beyond the mere expression of a preference or of ordinary wishes.’ This article examines this unique requirement and how it has been approached by the Family Court. It finds that many Australian judges treat the “strength of feeling” requirement as an additional hurdle that children must overcome before their objection can be taken into account. This approach is contrary to Australia’s international obligations under the Convention. A less restrictive approach, which some other judges follow, is recommended to ensure that the Convention’s primary objective of protecting children is met.

How international humanitarian law develops

AbstractThis article takes a critical look at the development of international humanitarian law (IHL), from its early codification in the Hague and Geneva Conventions to the present day. It examines why and how IHL develops – through treaty, custom, interpretation and soft-law instruments, as well as the influence of jurisprudence and other branches of law. In doing so, it highlights some of the distinctive elements of IHL that set it apart from other bodies of law and explains how these elements influence IHL development. Turning to the present, it addresses some of the key arguments commonly heard against attempting any further development of IHL, by answering the following three key questions: Does IHL need to develop further? If so, how can this be achieved? And what are the prospects for such development in the near future? In answering these questions, the article argues that IHL will continue to develop in many ways, and that while the current environment does not appear propitious for new legally binding norms of IHL, they continue to be both necessary and possible.

The origins, causes and enduring significance of the Martens Clause: A view from Russia

AbstractThe Martens Clause owes its name to the diplomat and jurist Fyodor Fyodorovich Martens, a representative of the Russian Empire at the First Hague Conference in 1899. Drafted and proposed by Martens during the negotiations, yet as a spontaneous compromise, the Clause has been included in the preamble of the Hague Convention with Respect to the Laws and Customs of War on Land and is still considered an important principle of international humanitarian law today. This article traces the biography and academic path of F. F. Martens and explores the enduring significance of the Martens Clause.

The protection of movable cultural property in wartime: Pre-conflict planning in Sweden

AbstractModern warfare has prompted states to protect collections of cultural property by evacuating them to safe locations at times of war. Building on previously classified documents in archives, inquiries and other sources, this article investigates how planning for such evacuation was carried out in Sweden from 1939 to the 1990s. After the end of the Cold War, existing evacuation plans were finally scrapped. Due to the worsening security situation in the region, Swedish heritage institutions today need to build preparedness anew. It is shown that the evacuation of large volumes of property out of cities for practical reasons never was a realistic scenario, but probably should be restricted to a minimum of carefully selected objects, records and books. The process of selecting, transporting, finding safe locations to take the property to, and determining how to monitor it needs to be carefully planned during peaceful conditions in order to efficiently safeguard the collections in wartime. The relationship between Swedish planning and the 1954 Hague Convention, and how other states can learn from this study, is finally discussed.

PRAVNA OBAVEZA ILI KOLABORACIJA? USPOSTAVLJANJE I FUNKCIONISANJE UPRAVE GRADA BEOGRADA POD OKUPACIJOM 1941–1944.

The issue of collaboration has provoked much debate since the end of the Second World War. Appearances of collaboration, diversity depending on geographical location, plans of the Third Reich for a particular country and others were some main phenomena analyzed. However, to adequately study the form of collaboration, it is necessary to start from the legal framework that defined the phenomenon itself. In the pre-war Kingdom of Yugoslavia, the Belgrade City Administration was part of the Ministry of Internal Affairs. The institution of the same name was formed after the beginning of the occupation in 1941. However, it was established in multiple violations of The Hague Conventions and following the decisions of the Third Reich. Organizational changes made to the Belgrade City Administration adjusted it to the occupation system. All of this was against the provisions of The Hague Conventions, which were supposed to determine the form of occupation and be compulsory for Germany. The purpose of this article is to examine the establishment and functioning of the Belgrade City Administration under occupation from the perspective of international law. The legal framework is put in the context of the historical facts and used to analyze comparative experiences in the case of France and Belgium. Thus, the global context of the plans of the Third Reich and the executive practice in the creation of occupation systems in the west of Europe, are compared to the establishment of the Belgrade City Administration, as an occupation institution of domestic origin.

Forum Non Conveniens doctrine – post Brexit applicability in transnational litigation

The article follows the origin of the English forum non conveniens doctrine development in stay proceedings, its alterations, and applicable tests leading to CJEU’s decision in Owusu. Owusu ultimately forbade English courts to stay its proceedings and allow a “more convenient” forum to decide on the dispute merits in cases where the jurisdiction was conferred by the Brussels regime – not only concerning other EU courts but worldwide. With the UK’s withdrawal from the EU, a question appears whether English courts might again exercise this power. If affirmatory, the paper proceeds to assess various applicable, or presumably fitting, instruments, both for allocation of jurisdiction, and recognition and enforcement of judgments – Lugano Convention, Hague Convention 2005, and Hague Convention 2019. The paper also assesses how these instruments might interact with the use of forum non conveniens doctrine.

Dislocated lives: the experience of women survivors of family and domestic violence after being ‘Hagued’

ABSTRACT This article reports on interviews with ten women who had experienced the legal process of the 1980 Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’ or the ‘Convention’). We refer to that experience as being ‘Hagued’. All the women were subjected to a Hague return order after fleeing family and domestic violence perpetrated by their previous partner, because they fled with their children across international borders. Subsequently, all women were ordered to return their children to the country where their abusive previous partner lived. Nine out of the ten women also returned with their children. On return the women experienced further harms: they were vulnerable to, further intimidation and controlling behaviour from previous partners; they became homeless; and they felt punished in ordered from returning country’s courts through reduced contact and custody arrangements. The article concludes by suggesting if the Convention, the domestic implementation laws and ultimately the courts assessing return applications, placed greater emphasis and understanding on family and domestic violence, then the women interviewed probably would not have been ordered to return their children and they would not have experienced further post-Hague harm.

Failing to Create Revolutionaries: Polish POWs in Soviet Captivity, 1920–21

This article examines the Bolshevik Party’s efforts to radicalize tens of thousands of Polish prisoners of war (POWs) held in makeshift prison camps across Soviet Russia in the aftermath of the Soviet-Polish War of 1919­−20. The end goal was to create a new cadre of Polish revolutionaries to agitate for revolutionary change on repatriation. These propaganda efforts were almost entirely undermined by a series of everyday problems from rudimentary camp living conditions and violence against prisoners to disease and ineffective leadership by Soviet institutions. This article will show, however, that as part of these efforts, the Bolsheviks committed to safeguarding POW welfare, mirroring international standards set by the Hague conventions, even if this was primarily designed to better cultivate revolutionaries and was rarely met in practice. In a comparative sense, therefore, the everyday lives of Polish POWs and their management by Soviet authorities did not markedly differ from the POW experience across Europe, where other governments likewise made claims about safeguarding welfare and often failed to deliver. Contrary to existing interpretations of early Soviet POW camps, which present these as unique stepping-stones to the future Stalinist GULAG, this article shows stronger continuities with past practices.

How the Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 contribute to better protection of cultural property

AbstractThis article analyzes the contribution of the Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (the Guidelines) to better protection of cultural property in peacetime and in times of armed conflict. The first part of the article introduces the Guidelines within the context of the implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999 Second Protocol) and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and provides examples of UNESCO's other standard-setting instruments such as the 1972 Convention Concerning the Protection of the World Cultural or Natural Heritage, the 2001 Convention on the Protection of the Underwater Cultural Heritage and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, as well as bodies providing for guidelines for these instruments. The second part underscores the most important advances of the Guidelines in the implementation of the 1999 Second Protocol. The third part focuses on the contribution of the Guidelines as subsequent practice in the application of the 1999 Second Protocol establishing the agreement of the parties regarding its interpretation in the framework of Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties. Finally, the fourth part concludes by highlighting the main advantages of the Guidelines in providing better protection for cultural property.

Role of Polish Armed Forces and Crisis Management System in Cultural Property Protection – review and analysis

Deterring a crisis or war requires the commitment of large forces and resources that may include armed forces, security services or other non-military defense elements. The entire crisis management system is organized by the public administration. A crisis and the threat of war necessitate the implementation of a wide range of tasks aimed at securing life, health and property. Cultural property is a special category of property protected under the Polish legal system. The Republic of Poland undertook to protect it upon accession to the Hague Convention of 1954 on the Protection of Cultural Property in the Time of an Armed Conflict. This international agreement, along with the Polish experiences of the Second World War, laid the foundations for building an efficiently functioning system for the protection of cultural property during an armed conflict. Recent years have brought an increase in global interest in this area. Asymmetric threats against cultural heritage objects forced the involvement of military entities in developing security mechanisms. The author will provide an overview of national institutions tasked with the protection of cultural property in times of peace, assess the quality of these institutions as well as propose de lege ferenda postulates that could improve their functioning.

Possible impact of the 2019 Hague Convention on the recognition and enforcement of foreign judgments in civil or commercial matters on the grounds of international competence in Ghana

The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is a product of the Judgments Project of the Hague Conference on Private International Law. The Hague Judgment Convention has the advantage of providing business partners with a simple, efficient, and predictable structure with regards to the recognition and enforcement regime; as well as reducing related cost. More specifically, the convention fosters predictability and certainty in international commercial relations by enabling international commercial partners to be precisely informed of the grounds on which the decision of the court of one contracting state will be recognised or enforced in the territory of another contracting state. The Convention offers a wide range of jurisdictional filters for the purposes of recognition and enforcement of judgments from Contracting States. This article discusses the modern and innovative grounds of international competence introduced by the Hague Convention and its potential impact on the grounds of international competence for Ghana if Ghana ratifies the convention. The article recommends the ratification of the 2019 Hague Judgment Convention as it would be of enormous benefit to Ghana whose grounds of international competence when it comes to recognition and enforcement of foreign judgments seems antiquated and confined only to residence, submission and more controversially, the presence of the judgment debtor in the jurisdiction of the foreign court.

Editorial: Cyber Security and Defence Challenges

Editorial: Cyber Security and Defence Challenges