Maren Krimmer, Soviet War Memorials in Poland – An International Legal Analysis in:

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Maren Krimmer* Soviet War Memorials in Poland – An International Legal Analysis Abstract Cultural property recently came to the public attention during the debate on monu‐ ments and memorials in Poland following the “de-communization law” enacted in 2016. The “Law on the Prohibition of Propaganda of Communist or Other Totalitari‐ an Regimes through Naming Buildings, Objects and Public Utility Installations, dated 1 April 2016” implies banning communist propaganda or other totalitarian regimes and mostly concerns Soviet monuments and memorials erected in Poland after the Se‐ cond World War by the USSR. This law not only concerns the protection of cultural heritage, but there is also an existing Polish-Russian bilateral agreement listing cer‐ tain objects as cultural property. This article analyses the interpretation of the bilate‐ ral treaty between Russia and Poland concerning the protection of cultural property, and further examines whether or not Poland’s actions conform with the 1992 Polish- Russian treaty. Furthermore, this article sheds light on the 1970 UNESCO Conventi‐ on and thus the current status of the customary international law in regard to the de‐ struction of cultural property. Introduction Cultural property recently came to the public attention during the debate on monu‐ ments and memorials in Poland following the “de-communization laws”1 enacted in 2016. The “Law on the Prohibition of Propaganda of Communist or Other Totalitarian Regimes through Naming Buildings, Objects and Public Utility Installations, dated 1 April 2016”2 implies banning communist propaganda or other totalitarian regimes. This principally concerns Soviet monuments and memorials erected in Poland after the Second World War by the USSR. It is problematic that this law not only concerns protecting cultural heritage, but it also concerns relations with Russia. There is an existing Polish-Russian bilateral agreement in which certain objects have been listed as cultural property3: the “Treaty of the Russian Federation and the Republic of Poland on Friendly and Good-Neigh‐ I. * Maren Krimmer, Master in Public Law, Master of Peace and Security Studies; Doktorandin, Universität Tartu. 1 Law on the Prohibition of Propaganda of Communist or Other Totalitarian Regime by Naming Buildings, Objects and Public Utility Installations, dated 1 April 2016, http:// isap.sejm.gov.pl/DetailsServlet?id=WDU20160000744. 2 Ibid. 3 Treaty of the Russian Federation and the Republic of Poland on Friendly and Good-Neigh‐ borly Cooperation, Moscow 22 May 1992 (Договор между Российской Федерацией и OER 4/2019, DOI: 10.5771/0030-6444-2019-4-422 bourly Cooperation, Moscow 22 May 1992”4 (Договор между Российской Федерацией и Республикой Польша о дружественном и добрососедском сотрудничестве, Москва, 22 мая 1992 г.). This bilateral treaty intends protecting memorial sites of importance to both parties. As a response to the new law, the Russian Federal Council and also the commissi‐ on of the Public Chamber made a complaint concerning memorials and monuments to Soviet soldiers who died during liberation from Nazi occupation. The Russian Federal Council demands in a petition that the Polish Parliament amend the Law of 1 April 2016 on prohibiting communist or other totalitarian system’s propaganda, which pro‐ vides for demolishing monuments and memorials and invoking the bilateral treaty be‐ tween the Russian Federation and the Republic of Poland on Friendly and Good- Neighbourly Cooperation of 22 May 1992 and the Agreement between the Govern‐ ment of the Russian Federation and the Government of the Republic of Poland on bu‐ rial places and memorial sites for victims of wars and repressions, dated 22 February 1994. Consequently, Russia claims that implementing this law will be a direct violati‐ on of the previous agreements and would lead to a revision of the current collaborati‐ on with the Republic of Poland concerning the conservation and maintenance of me‐ morial sites and graves of Polish soldiers and civilians on Russian territory.5 The Chairman of the Civic Chamber, Elena Sutormina, even asked the UNESCO to block the demolition of Soviet monuments in Poland.6 In this regard, the 1970 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage7 assumes re‐ levance since it mentions measures in Principle III to prevent the destruction of cultu‐ ral property by asking the States to adopt appropriate measures to ensure adequate protection, to promote elaboration and adaption of legal instruments and the applicati‐ on of instruments already existing. The main question in this article concerns the interpretation of the bilateral treaty between Russia and Poland concerning the protection of cultural property. An exami‐ nation is required of whether or not Poland’s actions conform with the 1992 Polish- Russian treaty. At the same time, it is also interesting to examine the 1970 UNESCO Convention and thus the current status of the customary international law in regard to the destruction of cultural property. In the opening part, first of all I will examine a case study of Soviet monuments in Poland. Many of these monuments have been specifically destroyed, especially now Республикой Польша о дружественном и добрососедском сотрудничестве (Москва, 22 мая 1992 г.), http://dokipedia.ru/print/5191632. 4 Ibid. 5 Russian Federal Council, 25 July 2017, http://council.gov.ru/events/committees/82750/. 6 Civic Chamber of the Russian Federation, Елена Сутормина попросила в ЮНЕСКО заблокировать снос советских памятников в Польше, 29 June 2016, https://www.oprf.ru/ press/news/2016/newsitem/34623. 7 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage, UNESCO, Paris, 16 October 2003, Standard-Setting in UNESCO, 729-732, http://por‐ tal.unesco.org/en/ev.php-URL_ID=17718&URL_DO=DO_PRINTPAGE&URL_SEC‐ TION=201.html. Soviet War Memorials in Poland – An International Legal Analysis 423 with a new law concerning de-communization8 coming into force. Thus, it is interes‐ ting to examine these cases. In the second part I will analyse the bilateral treaty be‐ tween the Russian Federation and the Republic of Poland on Friendly and Good- Neighbourly Cooperation of 22 May 1992 and the Agreement between the Govern‐ ment of the Russian Federation and the Government of the Republic of Poland on bu‐ rial places and memorial sites for the victims of wars and repressions of 22 February 1994. In the third part, the current international standards concerning the protection of cultural property are examined with a focus on the UNESCO Convention, under the aspect of the adequacy for protecting cultural property. This will show that the bilate‐ ral treaty between Poland and Russia is subject to different interpretations and is thus not very effective. Furthermore, the current international treaties do not prevent the destruction of relics by the host state. Moreover, this shows the ineffectiveness of cur‐ rent treaties and would suggest a new standard or norm that better guarantees the pro‐ tection of cultural heritage, especially since the UNESCO only issues recommendati‐ ons. This analysis will show that the destruction of Soviet war memorials may indeed violate the bilateral treaty between Poland and Russia, but it does not constitute a vio‐ lation in accordance with the UNESCO Convention. Case study: Post-Soviet monuments in Poland Protecting cultural heritage is not only important on an international level, but espe‐ cially at a national level since the margin of appreciation concerning the national pro‐ tection of cultural heritage programs lies within the competence of the state. So we should consider the global, national and regional protection of cultural heritage here. After analysing these different levels, it is interesting to put this in relation to the in‐ ternational protection of cultural heritage in order to determine the effectiveness of in‐ ternational conventions and their influence on national laws. For this case study, it is necessary to examine to what extent Polish cultural herita‐ ge is subject to regulations and is bound by bilateral and international treaties, espe‐ cially in regard to former Soviet war memorials. Hence, it is essential to have a look at Poland because the debate concerning removing or preserving Soviet monuments is highly relevant.9 This issue is not only of concern to Poland but also to other former socialist or Soviet countries. Therefore it is worthwhile delving into the current debate in Poland regarding its post-war past. II. 8 Dziennik Ustaw Rzeczpospolitej Polskiej, O zakazie propagowania komu- nizmu lub innego ustroju totalitarnego przez nazwy budowli, obiektów i urządzeń użyteczności publicznej. Pozycja 744 (1 June 2016). 9 Rick Lyman, Political Rage over Statues? Old News in the Old World, New York Times, 17 August 2017, https://www.nytimes.com/2017/08/17/world/europe/european-monumentsstatues-communism.html. Isaac Stanley-Becker, Rewriting history or attending the past? Monuments still confound Europe, too, The Washington Post, 19 August 2017, https:// www.washingtonpost.com/world/europe/rewriting-history-or-attending-to-the-past-monu‐ ments-still-confound-europe-too/2017/08/19/1bbaf734-8413-11e7-9e7a-20fa8d7a0db6_sto‐ ry.html?utm_term=.e5d7504f97d5. 424 Maren Krimmer The Polish “Law on Monuments” In 2005, this debate drew public attention after the centre-right party Law and Justice (Prawo i Sprawiedliwosc, PiS) came to power. The PiS launched a campaign con‐ cerning the de-communization of Poland and encouraging patriotism.10 In 2016, the party started the process of “de-communization” of Poland’s public areas. However, competence was granted to the local authorities. These actions concerning “cleaningup” the memorials landscape therefore depend on politics. This also means that the discourse is volatile, and the creation of historic trails can change depending on who is currently in power and raises the question of what this means for common (Euro‐ pean) history. When looking at Poland it is important to note that the legal system for protecting cultural property changed after 1989 and continues to evolve. During the privatisati‐ ons of the 1990 s, historical buildings and monuments privatised, and this also meant that the state lost its influence over those buildings.11 In addition, European Union re‐ gulations and legal directives now play an important role in this legal framework. Cultural heritage plays an important role for Poland. Article 6 (2) of the Polish Constitution12 puts forward the importance of cultural heritage not only for the nation itself but also for all parties encountering it. Thus, this indicates its high value and the importance of protecting it, which becomes of global importance since not only one country, but also several parties are interested in it. Under Polish law, cultural heritage is connected to the word “monument” (“zabytek”) whereas in international conventions it is mostly referred to as a “cultural good”.13 When considering buildings and monuments that have been constructed du‐ ring the times of authoritarian regimes, classifying these into the category “cultural goods” can be considered as very controversial. This sometimes makes the catego‐ rization of cultural goods quite ambiguous and shows that classifying such buildings or monuments primarily depends on the individual as well as on the legal appraisal that has been obtained in the (host) country. Thus, protecting cultural property is in‐ fluenced not only by the conservation services in place but also by politics, the econ‐ omy and culture as well as by social factors.14 In this regard it is important to note that different people and/or countries will identify and evaluate the same cultural pro‐ perty in different ways. This national dimension constitutes an important factor in the protection of cultural property. Until 1989 monuments in Poland were mainly owned by the State and thus were managed centrally. When the Polish Constitution of 2 April 199715 introduced decen‐ 1. 10 Ewa Ochman, Soviet war memorials and the re-construction of national and local identities in post-communist Poland, Nationalities Papers 38.4 (2010), London 2010, p. 509-530. 11 Maren Krimmer, Certain challenges of property rights in Russia, Osteuropa-Recht 4|2017, p. 462-473. 12 Polish Constitution, http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm. 13 Samanta Kowalska, Cultural heritage in Poland-the Background, Opportunities and Dan‐ gers, Adam Mickiewicz University, Poznan 2012, p. 37. 14 Kowalska, fn. 13, p. 70. 15 The Constitution of the Republic of Poland, 2. April 1997, http://www.sejm.gov.pl/prawo/ konst/angielski/kon1.htm. Soviet War Memorials in Poland – An International Legal Analysis 425 tralization in Article 15, the requirement for a system for preserving cultural property arose. Thus, monuments should be protected through several different legal mecha‐ nisms. They should be entered in the register of monuments, obtaining entitlement as “Monuments of History” from the President of Poland, being conserved in a Cultu‐ ral Park under cultural landscape protection, and there should also be arrangements concerning the local spatial development plan that identifies the historical sites and registers them in a database.16 According to Polish law, the protection of historic monuments is regulated in the act of 23 July 200317. In this act, the Minister of Culture and Cultural Heritage and provincial governors are named as the protection bodies. Furthermore, it enumerates the scope and forms of protection for monuments, rules for creating protection pro‐ grams as well as financing for conservation. Nevertheless, the scope of protection de‐ pends on the politics of the governing party since they determine the policy and what will be considered as cultural property; thus this is not autonomous.18 With decentralisation, the competence lies with local government. Other import‐ ant acts regarding the protection of cultural heritage are the Act of 27 March 2003 on Planning and Spatial Development19 and the Act of 7 July 1994 on the Construction Law20. Overall, there is an active system for protecting monuments in Poland. The PiS government enacted the “Law on the Prohibition of Propaganda of Com‐ munist or Other Totalitarian Regimes by Naming Buildings, Objects and Public Utili‐ ty Installations, dated 1 April 2016”21 in 2016, which implies banning communist propaganda or propaganda from other totalitarian regimes by removing names of buil‐ dings, streets, monuments, etc. that can be linked to these. Perception of the Polish public towards the preservation or destruction of former Soviet monuments Since the municipal authorities have power over the memorials landscape, they have a large influence on how the past is commemorated. In order to have a more complete assessment of the overall situation, it is interesting to examine the public opinion in relation to the former Soviet monuments located on Polish territory. This kind of decommunization has already been taking place in Ukraine where the Ukrainian Parlia‐ 2. 16 HEREIN System: European Heritage Policies, Poland, http://www.herein-system.eu/polandcountry-profile. 17 Act of 23 July 2003 on the protection of monuments and the guardianship of monuments (Journal of Laws No. 162, Item 1568). 18 Kowalska, fn. 13, p. 29-30. 19 Act of 27 March 2003 on the Planning and Spatial Development, https://www.globalregulation.com/translation/poland/2986009/act-of-27-march-2003-on-planning-and-spati‐ al.html. 20 Act of 7 July 1994 on the Construction Law, https://www.paih.gov.pl/files/?id_plik=7120. 21 Internetowy System Aktów Pravnych, Dz U. 2016 poz. 744, http://isap.sejm.gov.pl/Details‐ Servlet?id=WDU20160000744. 426 Maren Krimmer ment adopted four “de-communization laws”22 on 9 April 2015. These laws concer‐ ned renaming cities, public places, streets etc. as well as removing Soviet monuments. In their report concerning Law no. 317-VIII, the Venice Commission and the OS‐ CE/ODIHR recognize the right of Ukraine to ban and/or to criminalize the use of symbols and propaganda for totalitarian regimes, but at the same time points out that the law is lacking in precision.23 In a study carried out by TNS OBOP24 on the national opinion polls in the time frame from 10-14 May 2007, concerning the opinions on monuments and cemeteries for soldiers in Poland, the results were rather interesting and differed from the govern‐ ment’s national discourse. The public had been asked how they perceive these relics and what should be done with them: if they should be removed, moved to a cemetery or left where they are. 57% of respondents replied that the monuments should remain where they are. The other option of moving them to a cemetery for former Soviet sol‐ diers seemed plausible to 28%. Only 8% felt when questioned that these monuments should be removed. Although there had been previous attempts by the government to intervene in the memorial landscape in 2000, it was not until 2016 that the national-conservative PiS forming the majority of the Sejm managed to pass a bill on de-communization of pu‐ blic spaces that same year.25 Hence, it is necessary to take a look at previous treaty obligations of Poland in this matter and also at international law and conventions in order to examine the interna‐ tional standard in this regard. 22 The Verkhovna Rada of Ukraine adopted fours laws in 2015: On the Legal Status and Commemoration of Participants in the Struggle for Independence of Ukraine in the 21st Century, http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_2?id=&pf3516=2538-1&skl=9; On Immortalization of the Victory over Nazism in WWII of 1939-1945, http://w1.c1.ra‐ da.gov.ua/pls/zweb2/webproc4_2?id=&pf3516=2539&skl=9; On Access to Archives of the Repressive Bodies of the Communist Totalitarian Regime of the Years 1917-1991, http:// w1.c1.rada.gov.ua/pls/zweb2/webproc4_2?id=&pf3516=2540&skl=9; On Condemnation of the Communist and National Socialist (Nazi) Totalitarian Regimes in Ukraine and Prohibi‐ tion of Propaganda of their Symbols, http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_2? id=&pf3516=2558&skl=9. 23 Venice Commission, Joint Interim opinion on the Law of Ukraine on the Condemnation of the Communist and National Socialist (Nazi) Regimes and Prohibition of Propaganda of their Symbols, 105th Plenary Session, Venice, 18)19.12.2015,http://www.venice.coe.int/ webforms/documents/default.aspx?pdffile=CDL-AD(2015)041-e. 24 TNS OBOP, May 2007, Warsaw, http://tnsglobal.pl/archiv_files/K.029-07_pomniki_i_cmen‐ tarze_zolnierzy_radzieckich_O05a07.pdf. 25 Dziennik Ustaw Rzeczpospolitej Polskiej, O zakazie propagowania komu- nizmu lub innego ustroju totalitarnego przez nazwy budowli, obiektów i urządzeń użyteczności publicznej. Pozycja 744 (1 June 2016). Soviet War Memorials in Poland – An International Legal Analysis 427 Obelisk, Soviet Military Cemetery, Warsaw: Cmentarz Mauzoleum Żołnierzy Rad‐ zieckich (Ksenia Egorova, Warsaw) Bilateral Treaty of the Russian Federation and the Republic of Poland on Friendly and Good-Neighbourly Cooperation This law is challenging not only regarding the protection of cultural heritage, but also in regard to relations with Russia. There is an existing Polish-Russian bilateral agree‐ III. 428 Maren Krimmer ment in which certain objects have been listed as cultural property.26 Initially, this “Treaty of the Russian Federation and the Republic of Poland on Friendly and Good-Neighbourly Cooperation, Moscow 22 May 1992”27 (Договор между Российской Федерацией и Республикой Польша о дружественном и добрососедском сотрудничестве (Москва, 22 мая 1992 г.) had been established in order to obtain positive diplomatic relations between the two countries and an agree‐ ment on issues such as the inviolability of existing borders, cooperation in security, economic and cultural matters as well as the withdrawal of former Soviet troops from Poland. On concluding the treaty, mutual relations could have been described as posi‐ tive, and several problems affecting the common relationship at that time could be re‐ solved, such as the withdrawal of Russian troops from Poland.28 Nevertheless, nego‐ tiations were not easy to conduct. The Polish side even considered the title of the trea‐ ty as controversial, especially since the Soviet side opposed all references to Stalinist crimes and compensation for victims, which was an important point for the Polish si‐ de. Thus, Poland wanted to place these references in the preamble but was not suc‐ cessful with this attempt. In the end, one of the most important points for Poland was regulating the withdrawal of Soviet troops from Polish territory, and so its leaders agreed to sign the agreement.29 The “Treaty of the Russian Federation and the Republic of Poland on Friendly and Good-Neighbourly Cooperation, Moscow 22 May 1992”30 states in Article 1731 that 1. Cemeteries, burial places, monuments and other memorial places that are objects of respect and memory of citizens of one of the Parties, both military and civil, currently or created by mutual agreement in the future on the territory of the other party, will be pre‐ 26 Treaty of the Russian Federation and the Republic of Poland on Friendly and Good-Neigh‐ borly Cooperation, op.cit. note 3. 27 Ibid. 28 Rafał Czachor, Miejsce Federacji Rosyjskiej w polskiej polityce wschodniej. Wrocławski Przegląd Międzynarodowy, (2), Wroclaw 2011, p.123. 29 Krzystof Fedorowicz, Polityka Polski wobec Rosji, Ukrainy i Białorusi w latach 1989-2010, Wydawnictwo Naukowe UAM, Poznan 2011, p. 85-162. 30 Treaty of the Russian Federation and the Republic of Poland on Friendly and Good-Neigh‐ bourly Cooperation, op.cit. note 3. 31 Treaty of the Russian Federation and the Republic of Poland on Friendly and Good-Neigh‐ borly Cooperation, Moscow 22.05.1992 (Договор между Российской Федерацией и Республикой Польша о дружественном и добрососедском сотрудничестве (Москва, 22 мая 1992 г.), Статья 17. 1. Кладбища, захоронения, памятники и иные мемориальные места, являющиеся объектом уважения и памяти граждан одной из Сторон, как военные, так и гражданские, находящиеся в настоящее время или создаваемые по взаимной договоренности в будущем на территории другой Стороны, будут сохраняться, содержаться, находиться под защитой закона в соответствии с международными нормами и стандартами, а также национальными и религиозными обычаями. 2. Гражданам одной Стороны будут обеспечены доступ и возможности для ухода за могилами соотечественников и местами памяти, находящимися на территории другой Стороны. 3. Стороны будут взаимодействовать в установлении и регистрации мест захоронения граждан одной Стороны на территории другой Стороны, а также осуществлять обмен информацией о погибших и пропавших без вести. Soviet War Memorials in Poland – An International Legal Analysis 429 served, protected by law in accordance with international norms and standards, as well as national and religious customs. Citizens of one party will be provided access and opportunities to care for the graves of compatriots and places of memory located on the territory of the other party. […]. Nevertheless, the matter turned out to be much more difficult in practice. Efforts at implementation were challenged by the economic crisis, and especially the political crisis in Russia. Whereas Poland was heading towards democracy and independence from the former Soviet Republics, this had been perceived as interference from the Russian side since it appeared to be in the opposite direction to where Russia was heading.32 As a response to the new law, the Russian Federal Council drew up a petition con‐ cerning memorial monuments for Soviet soldiers who had died for the liberation from Nazi occupation. The document was submitted by the Committee of the Federal Council for International Affairs. The petition demands that the Polish Parliament amend the Law of 1 April 2016 on the prohibition of propaganda from communist or other totalitarian systems, which provides for the demolition of monuments and me‐ morials, including Soviet soldiers who liberated Poland from Nazi occupation in 1944-1945. The petition demands that the Polish side strictly implement the provisi‐ ons of the bilateral treaty between the Russian Federation and the Republic of Poland on Friendly and Good-Neighbourly Cooperation of 22 May 1992 and the Agreement between the Government of the Russian Federation and the Government of the Repu‐ blic of Poland on burial sites and memorial places for victims of wars and repressions of 22 February 1994. From the Russian side, special attention had been drawn to the fact that implementing this law would be a direct violation of previous agreements and would lead to a revision of the current collaboration with the Republic of Poland concerning the conservation and maintenance of the memorial sites and graves of Polish soldiers and civilians on Russian territory.33 The Polish Council for the Protection of the Memory of Struggle and Martyrdom (ROPWiM), which is responsible for maintaining memorial sites, negotiated a bilate‐ ral agreement between Poland and Russia in 1994, according to which they should both protect mutual memorial sites on their territory.34 As a result, decisions con‐ cerning memorial sites should be made together with the Russian Embassy. The agreement had been respected by both sides until the ROPWiM decided in a dispute concerning a Soviet monument35 which had been in storage due to restoration work, that it should remain in storage.36 In 2015 they issued a statement in which they inter‐ preted the Polish-Russian agreement of 1994 in a way that protection would only app‐ 32 Katarzyna Karkozka, O niektórych aspektach bezpieczeństwa w stosunkach polsko-rosyjs‐ kich po zmianach ustrojowych w 1989 r., in: Res Politicae, 2013/5, Częstochowa 2013, p. 59-74. 33 Russian Federal Council, 25 July 2017, http://council.gov.ru/events/committees/82750/. 34 Dziennik Ustaw Rzeczpospolitej Polskiej (1994) Umowa między Rządem Rzeczpospolitej Polski a Rządem Federacji Rosyjskiej o grobach i miejscach pamięci o ar wojen i represji. Pozycja 543 (22 February 1994). 35 The Monument to the Brotherhood of Arms, Warsaw, Poland. 36 Ewa Ochman, Spaces of Nationhood and Contested Soviet War Monuments in Poland: The Warsaw Monument to the Brotherhood in Arms, in: The Palgrave Handbook of State- Sponsored History After 1945, London 2018, p. 477-493. 430 Maren Krimmer ly to war graves and not to monuments.37 Thus, the interpretations of the treaty by both parties differ and adopt a critical viewpoint towards each other.38 Since at the time of concluding the treaty not much importance was attributed to the article con‐ cerning former war memorials, this now leads to the problem that each side perceives this article in a different sense. The problem is that this norm is objectively open to different interpretations. Interpretation of the Treaty When interpreting a treaty there are three different schools of interpretation that pro‐ vide guidance in properly establishing the meaning of the treaty. The Vienna Conven‐ tion on the Law of Treaties 196939 is the basis for the interpretation of international treaties. In its general ruling concerning interpretation, first of all in Article 31 it re‐ quires good faith, consideration of the context while establishing the treaty as well as the overall goal. This should receive special attention in the case of the Polish- Russi‐ an bilateral agreement since the treaty has been created in two versions, which are in two different languages. Not only the different languages but also the differences in culture, background and intentions of the treaty appear to be significant. Essentially, the three different approaches used for interpreting treaties are the “in‐ tention of the parties school”, the “textual school” and the “teleological school”.40 Whereas the “intention of the parties school” takes not only the prior behaviour and relations of the parties but also the background and objectives of the signatories into account, the “textual school” focuses mainly on literal translations whilst also con‐ sidering the historical background. The “teleological school” has its main focus on the aim of the treaty and on that context as well the preambles. Accordingly, the intention of the treaty receives more importance than the intention of the single parties, and thus this school is mostly favoured when interpreting multilateral treaties such as UN Conventions for example. Interpreting the Polish-Russian bilateral treaty When analysing the Polish-Russian bilateral treaty it makes sense to do so in the light of the “intention of the parties school” since this considers conduct of the parties prior to signing the treaty, the travaux préparatoires (preparatory work) and the conduct of parties when signing the treaty. The treaty had been elaborated during the 1990 s, which were unstable times for both countries since a new social and political order had been established. The prepa‐ 1. 2. 37 Ibid. 38 Ministry of Foreign Affairs of the Republic of Poland, Artur Dmochozski, Statement regar‐ ding Soviet monuments in the territory of Poland, 5 April 2016, http://www.mfa.gov.pl/en/ news/mfa_statement_regarding_soviet_monuments_in_the_territory_of_poland?chan‐ nel=www. 39 United Nations, The Vienna Convention on the Law of Treaties, 1969, http://legal.un.org/ilc/ texts/instruments/english/conventions/1_1_1969.pdf. 40 Anthony Aust, Modern treaty law and practice, Cambridge 2013, p. 205-272. Soviet War Memorials in Poland – An International Legal Analysis 431 rations for the treaty took about one year. With Polish President Lech Wałęsa visiting Moscow in the spring of 1991, and wishing to maintain good relations with Russia, negotiations for the treaty commenced on 24 May 1991. It should be taken into ac‐ count that these were times full of change since the commencement of negotiations started in the Soviet Union, and they were completed one year later, in 1992, follow‐ ing its collapse. The first draft of the treaty did not pass immediately and required a lot of additional negotiations since each side had different priorities. Whilst (at that time) the Soviet Union focused on security issues, Poland mainly placed emphasis on its relations with other former Socialist states. The main text of the treaty was prepa‐ red in early July, but then in August 1991 the negotiations were slowed down due to the political situation in the Soviet Union. In September a new draft was submitted, and negotiations continued. In the end the treaty was signed by both parties on 22 May 1992.41 Whilst the treaty was under discussion, the parties did not focus much on cultural property or the remnants of Soviet monuments. Since these were such unsettled times, the main focus when concluding this treaty was on security issues, troops and relati‐ ons to other former Soviet Republics, since these issues seemed to require more ur‐ gent resolutions. This bilateral treaty between Poland and Russia still has potential for safeguarding positive diplomatic relations between the two countries. Nevertheless, the treaty re‐ quires revisions and also tools for solving disputes. In accordance with the Vienna Convention on Treaties42 it would be necessary to establish clear guidelines con‐ cerning the interpretation of the treaty, too. This could be amended by both parties since this can be facilitated more easily than with a multilateral treaty. A more drastic step would be to terminate the treaty and possibly, if desired, to draw up a new treaty with amendments concerning the disputed articles. The UNESCO Convention: Legal regime of cultural property When examining the international law it becomes clear quite quickly that first of all, it is very important to define the term “cultural property”, which has been difficult ac‐ cording to a lot of researchers over the years, but nevertheless international conventi‐ ons provide a definition. The question of to what extent traditional notions of property can provide an adequate framework to resolve conflicts and contradictions43 also adds to this difficulty. Such a definition is crucial in order to establish what is protected under this term but also how the stakeholders are affected. These may be museums, collectors, salva‐ gers, indigenous groups, or even multinational companies.44 IV. 41 Лев Клепацкий, Российско-польскому договору 20 лет и его инструменты, международная жизнь, No. 5-2012, https://interaffairs.ru/jauthor/material/662. 42 United Nations, Vienna Convention on International treaties, http://legal.un.org/ilc/texts/ instruments/english/conventions/1_1_1969.pdf. 43 Barbara Hoffman, Exploring and Establishing Links for a Balanced Art and Cultural Heritage Policy. Art and Cultural Heritage: Law, Policy and Practice, New York 2013, p.11. 44 Ibid. 432 Maren Krimmer “Cultural property” in the UNESCO Convention When looking into the international conventions, The Hague Convention of 1954, the UNESCO Convention of 1970 and the UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects are the foundations for the protection of cultural property. The Hague Convention had been drawn up in order to guarantee a certain protection of property rights during armed conflicts. As a counter‐ part to that, the UNESCO Convention had been drafted to guarantee protection of cul‐ tural property during peacetime as well.45 Whilst the Hague Convention46 already mentioned the term “cultural property” in its first Article in 1954, its definition remai‐ ned quite vague. The 1970 UNESCO Convention has been ratified by 131 Member States. It is si‐ milar to the 1954 Hague Convention but adds the requirements for the Member States to identify the specific property subject to protection. They must list the properties which they believe fall under the definition of protected property. In its preamble, the UNESCO Convention stated that cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible informati‐ on regarding is origin, history and traditional setting.47 This acknowledges the global value of cultural property and its importance. In Article 148 “cultural property” is defined as property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science as well as several other categories. Both Conventions principally cover the same objects, however the UNESCO Conven‐ tion does not include places in which cultural property exists, such as for example museums.49 The UNIDROIT Convention of 1995 added to the private law aspects of the UNESCO Convention which had already existed, and which were necessary since there were large gaps in international law on how to handle the restitution of stolen cultural property.50 The 1995 UNIDROIT Convention defines cultural property in Ar‐ ticle 2 as 1. 45 Andrea Cunning, The Safeguarding of Cultural Property in Times of War & (and) Peace, in: Tulsa Journal of Comparative and International Law 11|2003, p. 211. 46 The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two (1953 and 1999) Protocols, http://unesdoc.unesco.org/images/ 0018/001875/187580 e.pdf 47 UNESCO 1970 Convention, http://www.unesco.org/new/en/culture/themes/illicit-traffi‐ cking-of-cultural-property/1970-convention/text-of-the-convention/. 48 Ibid. 49 Cunning, fn. 45. 50 Hoffmann, fn. 43. Soviet War Memorials in Poland – An International Legal Analysis 433 cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the catego‐ ries listed in the Annex to this Convention.51 It is especially interesting to determine the legal regime of public or private ow‐ nership under domestic legislation and then by comparison under international law. It is important to look into the Operational Guidelines52 in order to better under‐ stand the purpose and application of the 1970 UNESCO Convention. An initial step was taken in the first meeting of the State Parties which took place on October 2003, with the aim of establishing guidelines for efficiently implementing the Convention. In June 2012, during the second meeting, the State Parties decided to adopt their own Rules of Procedure and they established a Subsidiary Committee to support strengthe‐ ning implementation of the 1970 UNESCO Convention.53 The functions of the Subsi‐ diary Committee had been agreed as being the following: ● To promote the purposes of the Convention, as set forth in the Convention; ● To review national reports presented to the General Conference by the States Par‐ ties to the Convention; ● To exchange best practices, and prepare and submit to the Meeting of the States Parties recommendations and guidelines that may contribute to the implementati‐ on of the Convention; ● To identify problem areas arising from the implementation of the Convention, in‐ cluding issues relating to the protection and return of cultural property; ● To initiate and maintain coordination with the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitu‐ tion in case of Illicit Appropriation (hereafter referred to as the “ICPRCP”) in re‐ lation to capacity building measures combating illicit traffic in cultural property; ● To report to the Meeting of States Parties on the activities it has carried out.54 Article 4 of the 1970 UNESCO Convention demonstrates the link between the protec‐ tion of cultural property and the State. Article 4 (a) to (e) enumerates links that make the ownership of the cultural item owned by the State or its citizens evident. Thus, all parties need to recognize those links […] Cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created with‐ in the territory of that State by foreign nationals or stateless persons resident within such territory; (b) cultural property found within the national territory; […] (e) cultural proper‐ ty received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property.55 51 UNIDROIT Convention on stolen or illegally exported cultural objects, http://www.uni‐ droit.org/instruments/cultural-property/1995-convention. 52 UNESCO, Draft Operational Guidelines of the UNESCO 1970 Convention (Second draft 2014), http://www.unesco.org/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Draft_Operatio‐ nal_Guidelines_UNESCO_1970Convention_Jan2014.pdf. 53 Ibid. 54 Ibid. 55 1970 UNESCO Convention, Article 4. 434 Maren Krimmer If there is a dispute regarding cultural property between different States, the Conven‐ tion requires that such a dispute should be settled by a special agreement or through arbitration. Thus, the State parties should exhaust all options provided by the Conven‐ tion before entering into an arbitration process.56 Regarding the national protection of cultural property, every State must adopt ap‐ propriate measures in order to properly protect the cultural property in their country.57 This includes appropriate legislation conforming with the ethical principles set forth in the Convention as well as supporting national services for preventing the illicit im‐ port or export of such property. In this context, special police units or law enforce‐ ment agencies are considered to be efficient, and States should cooperate with one other as well as with INTERPOL and WCO. In addition to this, a national budget for protecting the national cultural property is required, as is support between Member States. Discretion of Member States In Article 6 of the World Heritage Convention, the discretion lies within the margin of appreciation of the State to determine what is declared as being “cultural heritage”.58 The UNESCO Convention obliges Member States in Article 11 a to take the necessa‐ ry measures for the appropriate protection of cultural property on its territory. This protection includes documentation, research, preservation, protection, promotion, re‐ valuation, passing on through education as well as revitalization.59 This also necessi‐ tates regular inventories and reports by Member States to the Committee as outlined in Article 29 of the Convention. So, in this regard, on the one hand it lies in the discretion of the host state to deter‐ mine what qualifies as cultural property and on the other hand the Convention nevert‐ heless obliges the Member State to do this in a dutiful manner. Thus, the state decides itself what is cultural property and when it needs to be protected. This gives a wide cultural-political margin of assessment to the state and its authorities. The Convention requires merely an obligatory minimum in its Articles 14 and 14 b of adequate efforts by Member States and use of appropriate means regarding the cultural property. Inter‐ national cooperation and support are mentioned in Articles 19ff of the Convention, but they do not provide any enforcement mechanisms. Although protection and preservation are the main aims of the UNESCO Conven‐ tion, this does not prevent destruction of the relic/property by the host state because it leaves the competence up to the State, to define what cultural property constitutes for it. In addition to this it should be noted that – with the variety of Member States of the Convention – there also comes diversity of different legal systems, which then have discretion to determine which objects must be protected. The 1979 UNESCO Con‐ 2. 56 UNESCO, (FN 52). 57 1970 UNESCO Convention, Article 5. 58 Article 6 World Heritage Convention, http://whc.unesco.org/en/conventiontext/. 59 Regina F Bendix, Kilian Bizer and Stefan Groth: Die Konstituierung von Cultural Property- Forschungsperspektiven, in: Sven Missling: Die UNESCO-Konvention zum Schutz des immateriellen (Kultur-) Erbes, Göttingen, 2016, S. 91-113. Soviet War Memorials in Poland – An International Legal Analysis 435 vention on the Illicit Movement of Art Treasures recognizes that the “protection of cultural heritage can be effective only if organized both nationally and internationally among States working in close co-operation.”60 This leads to an impasse regarding the sovereignty of the State in relation to the need for international protection, espe‐ cially during the debate of whether something will be recognized as cultural property or not. Further, the Convention mentions in Article 4 that Each State Party to this Convention recognizes that the duty of ensuring the identificati‐ on, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. […]”. Based on this article the host state determines which cultural heritage is important. There is no consideration that cultural heritage which might not be recognized as im‐ portant by the host state, might be considered very important for another state or for the international community. So, in this regard a national framework governing cultu‐ ral heritage is not very effective. This shows that a common effort by all member sta‐ tes is needed as is stated in the introduction to the Convention. The 1972 Recommen‐ dations61 recognized in their preamble that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole […]. Although it mentions the “world heritage of mankind” a clear definition of “man‐ kind’s heritage” is lacking. Nevertheless, the “Recommendation Concerning the Pro‐ tection, at a National Level, of the Cultural and Natural Heritage”62 recognizes the ge‐ neral principle that the responsibilities [are] on the States in whose territory it is situated, both vis-a-vis their own nationals and vis-a-vis the international community as a whole; Member States should take such action as may be necessary to meet these responsibilities. This leads to a relative and not an absolute international protection of cultural proper‐ ty. Still, this recommendation gives responsibility to Member States regarding the protection of property not only for themselves but for the international community. In the case concerning Soviet war monuments in Poland it remains questionable how far the international community is concerned or whether this is just a national matter. No‐ netheless, it leads to the question of whether the current protection of cultural proper‐ ty is effective enough. So far there has not been a great response from other UNESCO Member States apart from Russia. However, this does not mean that Poland would not benefit from a better preservation system concerning the cultural property on its territory, especially with regard to the UNESCO Convention. 60 UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14.11.1970. 61 UNESCO 1972 Convention on the Protection of the World Cultural and Natural Heritage, http://whc.unesco.org/en/conventiontext/#Article1. 62 UNESCO Recommendation, Concerning the Protection, at a National Level, of the Cultural and Natural Heritage, UNESCO Doc. 17 C/170, 15.11.1972, http://unesdoc.unesco.org/ images/0011/001140/114044 e.pdf#page=145. 436 Maren Krimmer Conclusion The Polish “Law on the Prohibition of Propaganda of Communist or Other Totalitari‐ an Regimes by Naming Buildings, Objects and Public Utility Installations, dated 1 April 2016”63 that implies banning communist propaganda etc., is very restrictive. When adopting the de-communization law, the Polish parliament gave local go‐ vernments the power to remove symbols representing communism from public pla‐ ces. Nevertheless, Russia considers this law to be a violation of the bilateral agree‐ ment between Poland and Russia since the conservation of Soviet (war) memorials should be guaranteed. As seen from the Polish side, it is not as simple as that. Compa‐ ring both versions of the bilateral agreement – the Russian version and the Polish ver‐ sion – they differ in the interpretation of the wording. The Polish side insists that the Polish version does not speak of “places of memory and grave(s) (sites)” but of “pla‐ ces of memorial and rest”, which thus implies a reference merely to the territory of cemeteries.64 Thus, these two different interpretations are juxtaposed and lead to difficulties in Polish-Russian relations. When considering international law and in this particular case, the UNESCO Con‐ vention, the situation is more complex. The Convention commits its Member States to create inventories of their cultural heritage as well as encouraging them to put pro‐ grams in place for preserving and protecting their national cultural heritage. Once the UNESCO Convention is ratified it can provide some funding for safeguarding cultu‐ ral heritage, too. Still, the question remains of whether the Convention is up to the task of safeguarding cultural property. The obligation to create a national inventory of cultural property is already a big step in the right direction. Nevertheless, there are large national differences in understanding what cultural property consists of and what ought to be protected. Every country has the competence to decide for itself what must qualify as their national cultural property and what must not. This can lead to several problems. As we have seen in the small case study on Soviet war monu‐ ments in Poland, the protection of cultural heritage is very much politicized. The committee which determines national cultural property is usually nominated by the governing political parties. This can lead to the problem that population groups not currently represented by the government will not have their cultural heritage protec‐ ted. Another important point is financing for the safeguarding programs. Not every country has the same funds at their disposal for organizing protection programs. Even though UNESCO has special funds that it can distribute to countries in need, this is merely enough to guarantee adequate protection of the world’s cultural heritage. As seen in the case study, the decision on what will be protected as cultural pro‐ perty generally lies within the national competence. This also indicates that the as‐ sessment regarding cultural property can change. It might not be identified as requi‐ V. 63 Law on the Prohibition of Propaganda of Communism or Other Totalitarian Regime by Naming Buildings, Objects and Public Utility Installations, dated 1 April 2016, http:// isap.sejm.gov.pl/DetailsServlet?id=WDU20160000744. 64 Łukas Adamski, Russia’s ‘monumental’ anti-diplomacy, Intersection project, 20 December 2015, http://intersectionproject.eu/article/russia-europe/russias-monumental-anti-diplomacy. Soviet War Memorials in Poland – An International Legal Analysis 437 ring protection by the current government, but might be so in the future. This indica‐ tes moreover that the international community should have more say in these matters, especially if the cultural property concerns not only the history of one state but of se‐ veral states. This legal hiatus for the protection of common cultural property could be improved by giving a right of intervention allowing cultural intercession to Member States of the World Heritage Convention.65 Nonetheless, the UNESCO Convention actually does some very good things: it does highlight the importance of cultural heritage, and puts it in the perspective of a human right since the history of mankind is history with relevance for everyone. We should keep in mind that people can deny the cultural value of certain objects in the future. Still, an objective monitoring organ would help preserving cultural property in a more objective manner and could consider not only national but also international wishes to protect certain relics. In the case of “unwanted” cultural heritage, as it has been discussed in the case study above, one option could be to offer the relic back to its creator before destroy‐ ing it as a consequence. However, bilateral agreements between two states should not be neglected. The given Polish law looks at cultural heritage merely from one side, and this fact leads to a very restrictive outcome. The current regime wants to eradicate all traces linked to its communist past. Nevertheless, this past also constitutes part of the country’s histo‐ ry. As has been done before (for example with Nazi propaganda in Germany), natio‐ nal heritage can be manipulated and history and the past rewritten. This can then be used as propaganda for the current regime.66 If it does not appear possible to combine the interpretations of such a bilateral agreement, then it might be time to rethink the agreement, and whether it still makes sense to keep it alive or not. 65 M. Catherine Vernon, Common Cultural Property: The Search for Rights of Protective Intervention. Case Western Reserve, Journal of International Law 26|1994, p. 435. 66 Ibid. 438 Maren Krimmer

Abstract

Cultural property recently came to the public attention during the debate on monuments and memorials in Poland following the “de-communization law” enacted in 2016. The “Law on the Prohibition of Propaganda of Communist or Other Totalitarian Regimes through Naming Buildings, Objects and Public Utility Installations, dated 1 April 2016” implies banning communist propaganda or other totalitarian regimes and mostly concerns Soviet monuments and memorials erected in Poland after the Second World War by the USSR. This law not only concerns the protection of cultural heritage, but there is also an existing Polish-Russian bilateral agreement listing certain objects as cultural property. This article analyses the interpretation of the bilateral treaty between Russia and Poland concerning the protection of cultural property, and further examines whether or not Poland’s actions conform with the 1992 Polish- Russian treaty. Furthermore, this article sheds light on the 1970 UNESCO Convention and thus the current status of the customary international law in regard to the destruction of cultural property.

References

Zusammenfassung

Osteuropa Recht behandelt Gegenwartsfragen der Rechtssysteme und Rechtswissenschaft im östlichen Europa sowie deren völkerrechtliche Einbindung. Im Fokus stehen die ost-, ostmittel- und südosteuropäischen Staaten sowie der Kaukasus und Zentralasien. Die Zeitschrift dokumentiert und analysiert Gesetzgebung, Rechtsprechung und rechtswissenschaftliche Debatten in den einzelnen Staaten der Region und leistet einen Beitrag zum internationalen Rechtsvergleich. Die Zeitschrift erscheint vierteljährlich und ist peer-reviewed. Publikationssprachen sind Deutsch und Englisch. Osteuropa Recht wurde 1954 von der Deutschen Gesellschaft für Osteuropakunde e.V. gegründet.