Protection of Cultural Heritage in Jammu and Kashmir

by Tanmaya Negi*

It has often been observed that the loss of treasured cultural monuments causes despair and feelings of overwhelming suffering to the effected communities and erodes their sense of shared common culture and tradition.[1] Consequently, over the course of history, destruction of sites of cultural significance has been a common practice adopted to obliterate the historical and cultural basis of the identity of a people. Even in recent times, the Islamic State continues to orchestrate widespread theft and destruction of cultural heritage, targeting religious shrines, ancient cities and even museums.[2 ]Fortunately, international law has long recognised the need for protection of cultural heritage, especially in times of armed conflict. Unfortunately, while the varied effects of the decades of ethno-religious conflict in the State of Jammu and Kashmir has become a part of everyday news, the destruction of its rich cultural heritage remains largely ignored.

A cultural crisis

In late 2016, the Himalayan Research and Cultural Foundation submitted a written statement to the Secretary General of the United Nations cataloguing the extensive [3] destruction of cultural heritage that has taken place in Jammu and Kashmir. This included an extensive list of damaged Hindu temples as well as ancient Sufi shrines. Most of these have played a significant role in the religious traditions of the Kashmiri people and symbolise the cultural pluralism that prevailed in the valley. For instance, the shrine of Sheikh Nooruddin Rishi has been a center of pilgrimage for millions of devotees ,both Hindus and Muslims, over the past 600 years. So has the nearly 700 year old shrine of Naqshband Sahib in Srinagar, the 200 year old khanqah of Sheikh Abdul Qadir Jeelani, and the Hazrat Baba Reshi in Dabrana village.[4] Most of this can be attributed to the ongoing conflict in Kashmir. Militant insurgents have deliberately targeted religious sites while security forces have occupied other monuments. The unprecedented flooding and torrential rains due to climate change only exacerbate this situation.[5]

Applicable Law

The Convention concerning the Protection of World Cultural and Natural Heritage was adopted by the General Conference of UNESCO on 16 November 1972 and defines cultural heritage as the architectural works, works of monumental sculpture & painting, archeological structures, groups of buildings or works of man or the combined works of nature and man, and areas including archaeological sites, which are of outstanding universal value.[6] The Convention imposes a positive obligation upon States to identify and delineate such properties and to ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory.[7] This is supplemented by the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, which obligates States to take all appropriate measures to prevent, avoid, stop and suppress acts of intentional destruction of cultural heritage, wherever such heritage is located.[8] A violation of these conventional obligations would invoke a State’s responsibility under international law and may in particular affect the funding it receives from UNESCO.

India, being a member of UNESCO and a party to the World Heritage Convention has failed to comply with its international obligation with respect to the cultural heritage in the state of Jammu and Kashmir. As the 2003 UNESCO Declaration states, a State that intentionally fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity bears the responsibility for such destruction. India must adopt the appropriate legislative, administrative, educational and technical measures to protect cultural heritage. It becomes especially important, in the face of such turmoil to ensure respect for cultural heritage in society, particularly through educational, awareness-raising and information programmes.

Cultural Property as the common heritage of all mankind

Treaties concerning cultural heritage recognize that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind.[9] Even the World Heritage Convention mandates the creation of an “effective system of collective protection”.[10] It recognizes the fact that each culture’s physical objects, art, sculpture, monuments and literature add to the heritage of mankind and reflect the competence of each cultural group to participate in world culture with an equality of opportunity along with preserving its own originality.[11] Thus, all States have an interest in the safe continuation of each culture’s physical heritage. This is also inextricably linked to the concept of inter-generation equity which recognizes that such cultural heritage must be transmitted to the succeeding generations.[12]

Consequently, the destruction of the cultural heritage in Jammu and Kashmir transcends national concerns, offends the principle of inter-generation equity and impoverishes the world’s intellectual and artistic attainment. There is perhaps a need for involvement of specialized international bodies such as the UNESCO in preservation of the cultural pluralism and restoration of traditional customs, rituals, festivals, arts, crafts, architecture and monuments distinct to Jammu and Kashmir.

 

[*Tanmaya Negi is a third year student at the National Law University Jodhpur. She is a member of the Centre for Policy and Research in International Law and her areas of interest include international humanitarian law and environment law. She can be contacted at tanmayanegi101@gmail.com.]

…………………………

[1]  Etienna Clement, Cultural Heritage Law: Recent Developments and Current Challenges, UNESCO REGIONAL SEMINAR ON IMPLEMENTATION OF INTERNATIONAL LAW AND CULTURAL HERITAGE LAW, KATHMANDU 1997 A REPORT, 31.

[2] http://thediplomat.com/2015/03/isis-is-destroying-priceless-artifacts-heres-how-to- stop-them/

[3] Human Rights Council Thirty-third session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, Written statement submitted by the Himalayan Research and Cultural Foundation, a non-governmental organization in special consultative status, A/HRC/33/NGO/122

[4 ]Ibid.

[5] http://tns.thenews.com.pk/kashmir-cultural-heritage-risk/#.WTD9TBOGO3U

[6 ]Article 1, Convention Concerning The Protection Of The World Cultural And Natural Heritage, 1037 U.N.T.S. 151 (Nov.16, 1972).

[7] Id, Article 5.

[8] UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, 17 July 2003, UNESCO Doc. 32C/25

[9] R. Keefe, The Meaning of ‘Cultural Property’ under the 1954 Hague Convention, NETHERLANDS INTERNATIONAL LAW REVIEW, XLVI 38 (1999).

[10] G. Carducci, Article 4 – 6 in F. FRANCIONI, THE 1972 WORLD HERITAGE CONVENTION: A COMMENTARY 133 (2008).

[11] P.Bhat, Protection Of Cultural Property Under International Humanitarian Law: Some Emerging Trends, 4 ISIL YEAR BOOK OF INTERNATIONAL HUMANITARIAN AND REFUGEE LAW 2001.

[12 ] UNGA Res. 56 (1983) GAOR 25th session Supp. 1

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