Diplomatic Law Guide – by Carl Islam LLM(Exon), Barrister, Accredited Mediator & Author

‘Quam fluctus diversi, quam mare conjuncti – though the waves are many, the sea is one.’

This website contains an evolving bank of legal materials, on-line library resources, news, and articles about Diplomatic and International Humanitarian law.

This website also contains a page for making donations directly to UNICEF (United Nations Children’s Fund) and the UNHCR (United Nations Refugee Agency).

The website went live in June 2014, and was listed (with my permission) on the website of the United States ‘American Foreign Service Association’ (the ‘AFSA’) based in Washington DC underneath the heading ‘Codes of Conduct from Other Services/Countries’ (http://www.afsa.org/ethics).

According to Google Analytics, in under 10 weeks the website grew from a zero readership to a weekly audience spread across Canada, the USA, South America, the Caribbean, the UK, the Netherlands, Belgium, Germany, France, Spain, Italy, Ukraine, the Russian Federation, North Africa, the Gulf states, Pakistan, India, China, South East Asia, and Australasia.

Carl Amir-UL Islam

Carl

B.Soc.Sc (Keele) (Joint Honours) (Law & Political Science), LLM (Exon)(International Business Law), of Lincoln’s Inn and the Middle Temple, Barrister-at-Law (practising), TEP, SCMA accredited mediation advocate, Accredited Mediator and MSoM (Full Member of the Society of Mediators in London), (Membership Number: 61667028). Certificate in Islamic Banking & Finance (MIHE). Dual qualified as a Solicitor of the Supreme Court. Chambers of Ian Mayes QC, First Floor, 1 Essex Court, Temple, London (www.1ec.co.uk).

I have a professional interest in Cultural Heritage Law and Mediation.

I am studying part-time for a Diploma in Art Law at the Institute of Art & Law in London, and have an academic interest in the:

(i) existence of ‘Fiduciary Principles for the Protection of Cultural Heritage under International Humanitarian Law’ – see my essay ‘Fiduciary Theory of Art’ on the ‘Art & Cultural Heritage Law’ page at www.ihtbar.com, and

(ii) practical application of these principles, through a process of ‘Humanitarian Mediation’, see www.diplomaticlawguide.com.

The foundation of the theory I advance, is the idea that states and their governments are fiduciaries of humanity, and therefore of civilization, under both classical fiduciary theory and International Law.

In the ‘Fiduciary Theory of Art’ essay, I argue that universally recognised fiduciary principles for the protection of Cultural Heritage exist under International Law (in particular International Humanitarian Law [‘IHL’], and cohere, as an ethical foundation for the development of an integrated strategic framework for the protection of Cultural Heritage in a conflict zone, and its implementation though a process of mediation. This theory is based upon two ancient doctrines – Obligations ‘erga omnes’ and ‘jus cogens’.

This is linked to:

(i) Principles for the resolution through a process of multilateral ‘Cultural Heritage Diplomacy’, of the conflict between: (a) the ethical duty of a state and its governments to behave as a ‘fiduciary of humanity’; and (b) the political ambitions of hegemons and aspiring hegemons in an ‘offensive realism’ paradigm, see: John Mearsheimer – Offensive Realism in Brief | Genius, (i.e. the idea that states and governments can maximise their survival and gains through collaboration, instead of competition, which leads to confrontation and war).

(ii) The development of a unified and coherent international relations doctrine of ‘Fiduciary Principled Behaviour’.

(iii) The mediation of a process and protocol for the preservation and protection of Cultural Heritage in a conflict zone by a politically non-aligned non-state actor (‘NSA’), as a foundation stone in the negotiation of a sustainable and enduring peace process and agreement, based upon recognition of shared values, interests, and practical ethics.

Viewing future conflicts through the hard geo-political lens of the international relations doctrine of ‘Offensive Realism’, the rules of war under IHL are not an effective deterrent to the destruction of Cultural Heritage, because as I argued in my blog ‘Is the pen mightier than the sword?’ (on the‘Humanitarian Mediation’ page at www.diplomaticlawguide.com), ‘if an invading sovereign state is a hegemon (or an aspiring hegemon) and the political logic underlying invasion is survival, i.e. because a hegemon must dominate, then [achieving its political objectives] requires the [deliberate] destruction of [Cultural Heritage].’ This is based upon what I labelled ‘Machiavelli’s Principle of Survival’).

Furthermore, the Achilles Heel of IHL is that to prosecute a violation you must be able to prove that the destruction of e.g. a monument, church or library was deliberately targeted. Even if you could prove this intent, there is no international police force to deter the destruction of Cultural Heritage before it happens, i.e. IHL has no political, diplomatic or military teeth.

Is there a better way of deterring the destruction of Cultural Heritage in war? Because of the significance and value of Cultural Heritage (which is often completely misunderstood by politicians, policy makers, diplomats and the military), I argue that there is, and that as part of this vision:

(i) The protection of Cultural Heritage needs to be integrated into a grand strategy in confronting and defeating an enemy during war – not least because of the paradox that when the enemy destroys part of a shared Cultural Heritage, it is destabilising its own society, because it is destroying part of: (i) its own identity; and (ii) a historical legacy owned by its own people. Therefore, its own people will inevitably ask – ‘who and what are we fighting for – the survival of a political elite (‘them’) or ourselves (‘us’).’

(ii) There is an urgent need to explore innovative and practical mechanisms that will allow non-state actors (NSA’s), to ensure the sustainable protection of Cultural Heritage. This is linked to the use of ‘Cultural Heritage Diplomacy’ as an instrument in the mediation of a peace process and agreement.