Monument Toppling: A Review of International Laws related to Cultural–Heritage Property and their Implications to Tourism

Recent public conversations around cultural property law have exposed this area of international law to several gaps that exist in this field. Cultural property is key to tourism across the world and brings in the much-needed inflow of money in an economy due to its attraction. However, the entire premise of cultural property law is based on preservation and this common thread runs through almost all international legal instruments and most domestic legislations. In this paper, it is analysed through a careful perusal of the history of international cultural property law, if there is scope to introduce a limited right to destroy cultural – heritage property. This is explored through reading of international human rights law along with cultural property law to advance suggestions of rethinking and revamping this legal regime, as it has strong implications to tourism management. In the conclusion, the paper also explores how tourism management would also be reshaped if the international right to destroy oppressive imagery becomes a part of the discourse.

2 newspapers around the world. People saw what happened to Heather and thus started the conversation on racism.
The violence that was perpetuated changed the way in which people understood the spaces around them. These monuments have long stood there as tourist attractions with the tourists completely unaware of the historical underpinnings. The statues, monuments, public buildings, names of towns and cities that we all grew used to being around to the point of them not bothering us at all, were now stark reminders of hate, racism and violence. This discourse slowly trickled into other nations as well. Now the issue is no more restricted to the Confederacy and its symbols but all kinds of racist symbols that stood for colonisation and slavery.
In May 2020, the death of George Floyd in the most brutal and inhumane manner led to widespread Black Lives Matter movements and campaigns (Hill et all 2020). As public debate and discourse on matters on racism grew, public imagery in the form of cultural property came to light. Demands were made to bring down confederate statutes, the statutes of some colonial slave traders were toppled by protesters, some were removed by state authorities.
Traditionally the treatment of cultural property within international law has been with the aim of protection and preservation. The norm has been to protect from destruction and looting within the historical scenario. The response to destruction of cultural property historically has been condemned by the international community. A lot of it grew after World War II and the subsequent armed conflicts in different nations. There is no recognition of the importance to sometimes remove or even destruct cultural property that has racist and oppressive underpinnings.
The demand to decolonise public spaces and rid it of the bigotry and scars of racism requires the exploration of the legal paradigm. It is important to revisit and see what international law in terms of cultural property state in such matters. It is also pertinent to evaluate and look at the genesis of these legal instruments to understand their basic premise and to identify the gaps.
In Part I, this paper explores the international law regime concerning culturalheritage property, by tracking the evolution of international law and the various legal instruments that have been adopted by States. This is important to understand its value within cultural tourism.
Part II discusses the constant tussle between the ideas of preservation of cultural property and destruction of cultural property. To what extent are we going to push this limit and where do we stop. The constant, stark reminders of a traumatic past do not end with statutes, it is within buildings, monuments, halls, libraries, universities. The question is whether international law is even prepared to deal with this gap. In Part III, the paper examines the Human Rights based approach to claims of destruction of cultural property and how that may offer a plausible solution to the international community to develop upon in changing times. This shall also change the way cultural tourism is perceived.
Therefore, the present paper aims at analysing the issue of monument toppling by critically reviewing international laws related to cultural-heritage property. The study should prove relevant, as the study-issue has the implications to the management of tourism, particularly of heritage tourism, one of the most popular tourism sectors in South Asian countries like Nepal and India.

II. Research Methodology
This paper extensively evaluates the existing international regime on cultural property and the blanket protection afforded to such property by the international regime. Reliance for this analysis was placed on international conventions and treaties. The research methodology involved churning out the critical points from each of these international instruments that discuss preservation of cultural property. This has then been juxtaposed against the recent events of monument toppling around the world. This required a historical critique of the events leading up to the erection of such monuments that cause anguish amongst people who have endured suppression and oppression for generations. Through a strictly research based, nondoctrinal and analytical and comparative study, the paper aims to provide plausible solutions in terms of human rights within international law.

III. Findings and Discussions
The following section discusses the key findings of the study.

I. International Cultural Property Law Regime
Before looking at whether or not the right to destroy is an available remedy, it is imperative that the international law regime that decides the recognition of such cultural properties is perused and evaluated. The reason why cultural property remains dear to tourism across the world would be understood here. In this part, the history of the laws and their current modern form are discussed.

A. History of protection of Cultural Property
The international law regime in relation to cultural property has evolved largely from the wars and armed conflicts that have ravaged through the 19 th and 20 th Century.  Code, 1965). Additionally, "In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated or wantonly destroyed or injured" (Leiber Code, 1965).
The Code reflects the unique resolve that even if the property belonged to the adversaries, they were not to be destroyed and were to be preserved. The seeds of a preservationist approach towards cultural heritage property were sowed in this legal document. This restriction on destruction of cultural property is also a manifestation of the limitation to military necessity in an armed conflict. Such proscriptive underpinnings were followed in the Brussels Through the recounting of the various historical legal instruments pertaining to the protection of cultural property, it can be concluded that preservation was key. The approach did not involve questioning the existence of such property, or evaluating the original purpose, or even assessing whether it was drawn upon an oppressive past or not. The international community essentially adopted these rules for the protection of historic cultural properties, but their fleeting importance did not last long and were quickly abandoned during World War I and World War II (O'Keefe & Prott, 2011). Preservation of cultural property traditionally grew as a concept to protect the properties from destruction during armed conflicts and wars. This concept of preservation further became important as international and domestic tourism across the world boosted. Tourist attractions now began including properties of historical significance and those that had been preserved for generations. A direct result of this was expansion of the international law regime that protected cultural monuments as the significance impacted a large number of stakeholders, the significance could be either cultural/historical or commercial or both.

1954 Hague Convention
In 1954, the first modern day treaty exclusively pertaining to culturalheritage property, the instruments, there was an exception to the effect that the prohibition on destruction of cultural property could be waived for military necessity. In the aftermath of the World War II where massive destruction, pillaging and devastation caused to cultural properties was caused, it was felt important to adopt this convention (Gerstenblith, 2012). The preamble of this convention also reflects the same: "…Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world; Considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection; … Being of the opinion that such protection cannot be effective unless both national and international measures have been taken to organize it in time of peace; Being determined to take all possible steps to protect cultural property…" Hague Convention, 1954.
A close reading of the language reveals that it was recognised that culturalheritage property suffered significant damage and the inclination clearly was to avoid such a happening in the future (Graham, 1987). This is also the point in history where the definition of cultural property was affirmed. The definition of the term Cultural Property was now to include any property, irrespective of the fact whether it is public or private property Hague Convention, 1954.
Further it now came to include: "a) both movable or immovable property; b) monuments; c) archaeological sites; d) groups of buildings; e) works of art; f) manuscripts, books and other objects; g) such as museums; h) large libraries and depositories of archives; and i) refuges intended to shelter" Hague Convention, 1954. Another unique aspect of the Convention is that it states that such safeguarding and respecting of cultural property is to be done both in times of an armed conflict and in times of peace Hague Convention, 1954. In the 1954 Hague Convention, 1954, all of the constituents within the meaning of cultural property were seen through the preservationoriented lens and were to be protected from damage.

UNESCO Convention, 1970
The second important treaty related to culturalheritage property was also a direct outcome of World War II. Soon after World War II, the illicit and illegal trade of cultural objects that had been looted and plundered during the war had spiked manifold Hague Convention, 1954

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The language of the preamble directs towards a preservationist approach. The 1970 UNESCO Convention, like the 1945 Hague Convention, keeps preservation of cultural property as the focal point. Even though the aim is to restrict trade of such property, the foundation is protection of culturalheritage property.

The World Heritage Convention
In 1972 language does not hint towards coercing State parties but to take such actions that best suits their resources and capacities (Commonwealth v. Tasmania). Therefore, the language of the World Heritage Convention is also creating a soft obligation to ensure protection of cultural property, something which the Australian High court has also stated (Commonwealth v. Tasmania, 1983).

C. Cultural Property and International Humanitarian Law
In the international humanitarian law regime, the Geneva Conventions of 1949 were a milestone in laying out the rules and law of war. The protection they afford to civilian populations and victims of armed conflict have been laid out in the most sophisticated manner.
In 1977, two Protocols were adopted to supplement the Geneva Conventions of 1949.
Additional Protocol-I deals with international armed conflicts and Additional Protocol II deals with noninternational armed conflicts (an aspect that was originally provided for within common Article 3 of the four Geneva Conventions, 1949).
Both Additional Protocol I and Additional Protocol II lay out provisions for protection of cultural objects, they at the same time also provide for a waiver in case of military necessity. This is a common thread that can be witnessed in the international law provisions discussed above. Hence, the International Committee of the Red Cross (ICRC) has left no stone unturned in these protocols to promote the protection of cultural property and heritage property across the world (Dutli , 2002). Their intention is clear through the two protocols and in the subsequent years, their actions to work towards protection of culturalheritage property has been full well established. Through their studies and reports, the ICRC has reinforced the idea that protection of cultural property is a humanitarian issue and has been the most vocal against cultural cleansing (Price-Jones, 2020).

D. Customary International Law and UNESCO Declarations
Evolution of customary International Law on culturalheritage property corresponds to that of the legal instruments as discussed in this section (Henckaerts, 2005). Much like the conventions and treaties which were a direct response to World War II, the international community reacted strongly to certain international events which have framed to a great extent the understanding of customary international law in the cultural property sphere.
During World War II, Einsatzstab Rosenberg, the special task force under the administration of Adolf Hitler was specifically set up to destroy Jewish Heritage (Wangkeo, 2003). Its acts were sharply denounced; and this was addressed during the Nuremberg trials. The International Criminal Tribunal for the Former Yugoslavia (ICTY) set up in response to the 1990 Yugoslav wars has also prosecuted persons for the devastation caused to the nation's cultural property (Abtahi, 2001). In Prosecutor v. Dario Kordić & Mario ^Erkez, the ICTY held that the destruction of cultural property amounts to being a, "crimes against humanity, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects" (Prosecutor v. Kordić, 2001). The role of ICTY is crucial in adding a layer of protection for cultural property in customary international law. Through its decisions, the ICTY has continuously stressed on how it violates the human rights of a group of people and therefore bringing in the aspect of violation of international human rights law (Vrdoljak & Koufa, 2007).
Another event that caught international attention was the complete demolition of the Bamiyan Buddha statues located in Afghanistan (Hammer, 2010 Careful consideration of the entire history of development international law in relation to culturalheritage property, the modern-day international law regime, that all these were born out of the philosophy of protection. Most of these legal measures and mechanisms were in response to events that were unfolding around the world and have been interpreted to be transnational crimes. So, it can be concluded that it is recognised by international law that protection of symbols, monuments and cultural property is vital. The question remains however, who decides which cultural property deserves protection and which interpretation of that cultural property deserves protection. We see this is a question that is increasingly being asked when the existence of symbols of a racist colonial past have come to light.

II. Preservation versus Destruction
A deliberate perusal of the existing legal apparatus reveals that it does not answer the question of whether removal or destruction of cultural property with traumatic and disturbing underpinnings is possible or not. And if it is possible then how must it be done and what role does the State play in this as the State continues to sometimes even make money off of cultural tourism to these monuments. This part explores that though international law may not provide for a solution on treatment of cultural property that has racial, colonial and oppressive history, the need to recognise this and come up with a desirable resolution is the need of the hour.

A. Colonial Iconography and Confederate Statues
In 2015, the movement widely known as Rhodes Must Fall started as a protest against the statute of Cecil Rhodes which was situated on the campus of the University of Cape Town (Fairbanks, 2015). The statute was removed by the University authorities, but the movement grew bigger and reached the Oxford University (Chaudhuri, 2016). Oriel college of Oxford University, of which he was a member, has a statue of Cecil Rhodes. He is known for his racist, imperialist ideas, was actively engaged in slave trade and apartheid in South Africa. It is his violent legacy and his statue being a symbol of the oppressive history that leads to the mobilization (Chowdhury, 2019). The campaign was revived again in 2020 (McKie, 2020).
The irony is that there is also a scholarship that has long been run in his name offered at Oxford University to students from nations that had been colonised in the past.
Similarly, 2020 saw the downfall literally of many such colonial iconography of men who propagate slave trade, oppressed populations and have been memorialised by way of statutes and monuments. The statute of the slave trader, Edward Colston was toppled by the Black Lives Matter protests in Bristol (Farrer, 2020). The statute of another slave trader, Robert Milligan was brought down by authorities from outside the London Museum in wake of the protests (Milligan, 2020). Many statues of King Leopold II, a colonizer from Belgium and who caused the violent crimes against people in Congo have been removed (Birnbaum, 2020).

Another set of contentious monuments have been the confederate monuments in the United
States. The violent protests that led to the killing of a woman at Charlottesville, toppling of the statues of "Old Joe'' in Florida, Roger Taney in Maryland, Robert E. Lee in Johnston, Texas, all bear witness to the growing consciousness around rejection of a racist past (Morris, 2020).
In the United States, both federal legislature like the National Historic Preservation Act The moment we put into perspective the context in which these colonial and confederate iconography and memorabilia were commissioned, we come face to face with the brutal history of dehumanization of people, mass atrocities, violence and collective trauma. Domestic legislation in the United States for example replicates the international law premise of preservation and protection. This points to the fact that it may be time that these legislations are revisited and revamped.

B. Deliberate Destruction
Though we have the growing consciousness about culturalheritage property that needs to be brought down to ensure racial justice. International Law is also at the same time constantly faced with the question of protection. In recent times, with rise in armed conflicts, there has also been an increase in atrocity crimes. The desecration of the Temple of Bel at Palmyra in Syria (Little, 2020), the Gates of Nineveh in Iraq and the Great Mosque of Aleppo in Syria during wars are examples of why it is important to have even stricter compliance of international law to ensure accountability.
It is amply vivid that the current set of circumstances around the world expose us to challenges that are new and need due consideration. After careful perusal of the existing regime of international law concerning heritage property and bearing in mind the impact on cultural tourism due to this, the author believes that the international community is faced with certain critical questions, namely: 1) How should international law be revisited to ensure protection of cultural and religious property and the rights of minority communities?
2) While ensuring such protection, how should the aspect of revisiting monuments that have been formed on the foundation of grave human rights violations be incorporated?

3) Who decides this balance, what would be the parameters and how?
With these three questions at the heart of this debate, the next section explores possible solutions.

A. Right to destroy of Cultural -Heritage Property
With growing awareness about the past and history of cultural property has initiated a whole new discourse in international law. There is also some consideration by scholars if destruction of cultural property as a right could have some value. E. Perot Bissell V in their paper, argues that a limited right to destroy culturalheritage property could be allowed (Bissell V, 2019).
The rationale behind this argument is that "monuments erected in commemoration of violations of the customary international law of human rights should be exempted from the structures of culturalproperty law when the government that owns them wishes to destroy them" (Bissell V, 2019). Bissell also argues that there is a sort of cathartic value to the destruction of cultural property which in a way is helpful in alleviating the suffering of those whose rights had been violated.
It is undeniable that the presence of Confederate monuments was in celebration of those who actively violated the human rights of an entire population of people. The Civil War was fought because they saw preservation of slavery and propagated racial discrimination (Southern Poverty Law Center, Special Report, 2017 There is strong evidence, like in the case of Confederate Statues that they were built on the foundation of racial discrimination, human rights violations and celebrated those who propagated and practiced slavery. Hence, as per Bissell, in such cases, the context in which the monument was built becomes evident and therefore, the State must have the power to determine whether it can be destroyed or not (Bissell V, 2019).

B. Transitional Justice and Reparation
The Transitional Justice paradigm is founded on ensuring redressal for the victims and at the same time asserting accountability of the perpetrators. "Transitional justice consists of both judicial and non-judicial processes and mechanisms" to achieve the same (Guidance Note of the Secretary -General, United Nations, 2010). Reparations is one such mechanism that forms part of such transitional justice. Through reparation is an individual right, in the case of transitional justice for a set of people, community reparations can be offered.
Often, memorials are built to preserve history and honour the memory of the victims (The African Union Series, 2013). When memorialisation is done as part of reparations, this can be viewed as recognising the past and honouring the memory of the victims and their families.
Ordinarily, memorials are built to acknowledge the past, destroying memorials must be considered as having the same effect.
By putting into context the monument or cultural property in question, the act of taking it down is in itself symbolic of standing with the community that has been victimised. This rejectionist approach then becomes not just motivated by an individual or a mob, but can then be considered by the local, municipal, or state authorities with respect to the circumstances in which the structure in question was raised.
Historical origins of this concept can be found within the Roman era when damnatio memoriae or "dishonouring of the memory" was practised (Robey, 2013). By way of this practice the statutes, busts, buildings or other monuments dedicated to the dictators and tyrannical rulers are toppled. Many memorabilia of the Adolf Hitler and those idealising Nazi Germany were destroyed after World War II (Fortin, 2017). Multiple statutes and busts of Joseph Stalin and Vladimir Lenin have been brought down by former Soviet Union countries (Fortin, 2017).
Therefore, destruction as part of the reparations mechanism towards transitional justice may hold some value. While preservation and construction of monuments is acceptable, similarly destruction to achieve a significant transitional justice goal can also be considered as an important medium.

C. Contextualisation and Preservation of History
The vexed question in the discourse concerning destruction of cultural -heritage property is what about the erasure of history that will be caused. To that it is important to note that after perusing the circumstances in which the monuments may have been erected, the context becomes crucial. Once the cultural property in question has been contextualised, the course of action becomes easy to decide.
After gaining independence from British colonial rule, in India statues of colonial leaders, British Governor Generals, and officers of the East India Company have slowly being removed from public spaces. These statutes or busts often occupied significant spots in and around towns and cities in India. Since the 1960's they are being taken down, removed and sometimes relocated to lesser-known spots or obscure monuments. In the erstwhile East India Company, that helped the Crown to establish colonial rule in India, it was a tradition to honour the outgoing officer generals of the British Army by raising their statutes at prominent city spots (Sohini C, 2020). With time, even roads, streets and other public buildings that were named after British officials have been changed.
If it is determined that the cultural property in question has been established in contravention of the customary international law of human rights, like suggested by E. Perot Bissell V, the right to destroy must supersede preservation (Bissell V, 2019). However, there is also another area that will have to be weighed. This is about the recognition of cultural property and monuments. Once, the context has been determined, the question that will still remain to be answered is who to decide which interpretation and which symbolic meaning is the State protecting. Is there a group of people that will be protected and others that are left out? If so, then as Bissell suggests, the State would have to turn their gaze towards determining the customary international law of human rights that have been violated.

IV. Conclusion
The development of international law with respect to cultural property has essentially only talked in terms of preservation and not destruction of cultural property. The question of whether a legitimate claim to desecration of cultural property is an option that must be 14 available to communities whose rights have been violated and those with an oppressive past.
With the change in moral composition of the society and the manner in which we understand collective trauma and historical injustices has also transformed. The recent debates around historical racism have prompted people and governments to rethink some of the ideals they tend to portray through monuments and statues occupying public spaces. The destruction of such cultural property is prohibited by international law and in most cases considered an atrocity crime. When viewed from the lens of human rights law, cultural property law as an extension to it must therefore offer some possibility of redressal. This redressal may be in the form of recognizing the colonial and racist foundations while permitting destruction of the culturalheritage property.
The key in all of this is that there are also concerns over how this would impact cultural tourism across the world. It is important that states realise that educating the people for the destruction of an oppressive monument is also important, so that the hate and violence of the past is explained. Tourism management in this context requires a careful perusal of all the existing histories and cultures beyond the lens of commercial activities. The moment the commercial angle of tourism is dropped, redressal and using the redressal to explain the right destruction in that context becomes essential. Therefore, a framework adhering to the customary international law of human rights would be the best suited to revamp the existing legal paradigm to introduce a limited right to destroy cultural property after proper contextualisation.