Can Palestinians advance their rights through UNESCO?

Fully engaged in U.S.-sponsored peace talks with Israel, the Palestinians have sidelined alternative strategies to achieve their rights, including their right to self-determination. As U.S. Secretary of State John Kerry has recently affirmed, Palestinian negotiators have pledged not to contest the Israeli occupation through the United Nations during the period of negotiations. However, not all roads are blocked. By leveraging Palestine’s existing, hard-won membership in the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the Palestinians could take action to combat the Israeli occupation and expanding settlement enterprise. Their task may be facilitated by the United States and Israel’s recent loss of voting rights in the UNESCO General Conference — a development stemming from the two countries’ refusal to pay membership dues since Palestine became a member in October 2011.

The question, then, is to what extent does UNESCO offer a strategic platform for Palestinians especially as international law has proved toothless on the question of Palestine? On numerous occasions in the past, states have successfully leveraged UNESCO memberships to assert their sovereignty and defend their territorial rights. Now, the Palestinians can do the same. 

For example, having ratified UNESCO’s World Heritage Convention, the Palestinians can effectively challenge Israel’s wrongful claims to Palestinian cultural and historical sites, some of which Israel has illegally included on its national heritage list, by listing them on the internationally-recognized UNESCO Heritage List. The Palestinians have already successfully listed the Church of the Nativity in Bethlehem on the World Heritage List in June 2012 despite U.S. opposition. Twelve other sites remain on its tentative list.

Similarly, the Palestinians could petition UNESCO, and individual member states, to condition Israel’s UNESCO membership privileges on compliance with its international legal obligations under various UNESCO conventions. If Israel does not meet these legal obligations, it would face a reduction of funding for UNESCO-sponsored cultural, scientific, and educational programs and possibly suspension from the organization. A precedent was set in 1974, when Israel’s unlawful excavations in the Old City of Jerusalem led to the suspension of UNESCO aid to Israel. Palestinians can also call on UNESCO to require Israel to provide reparations, including restitution and compensation, to individuals affected by Israel’s illegal actions.

The Palestinians have also ratified eight UNESCO conventions, including the 1954 Hague Convention on the Protection of Cultural Property in Armed Conflict, which assigns individual criminal responsibility for any breach of the Convention, including the removal of cultural properties from the occupied territory for display in Israel or third countries.

While accountability for unlawful settlement activity at the International Criminal Court is currently blocked, under the Hague Convention’s 1999 Second Protocol, the Palestinians are now positioned to demand that other states exercise universal jurisdiction and prosecute individuals for destroying or appropriating cultural property, or conducting excavations in occupied territory.

Notably, Palestine’s status within UNESCO and the treaty system grants it standing under various member states’ domestic laws. The case of Canada is instructive. In 2010 the Israel Antiquities Authority loaned the Dead Sea Scrolls, which the Israeli military had unlawfully removed from the Palestine Archaeological Museum in East Jerusalem in 1967, to the Royal Ontario Museum for exhibition. Although international law required Canada to designate the Scrolls as illegally imported and seize them, it refused based on a Canadian legal requirement that only a UNESCO member state can seek a court order to enforce seizure.

Today, the situation is different. Palestine’s UNESCO member status permits Palestinians to request that member states such as Canada seize artifacts of Palestinian origin and prevent their export or exhibition. 

The right of Palestinians to assert control over their territory is not limited to the West Bank and East Jerusalem. Under the 2001 Convention on the Protection of Underwater Cultural Heritage, which the Palestinians ratified in 2011, states are empowered to regulate any exploration activities within their borders, including protecting cultural heritage in their exclusive economic zone and continental shelf. 

Thus, the Palestinians can challenge Israel’s naval blockade of Gaza by asserting sovereign control over territorial waters and contiguous zone (waters up to 24 nautical miles off the Gaza coast) and over Gaza’s exclusive economic zone (another area of up to 200 nautical miles). The Palestinians could follow the example of the Netherlands, which established a contiguous zone in 2005 and extended its monuments legislation to prevent the infringement of its cultural heritage rights in 2007.

Nonetheless, political pressure has undermined the Palestinians’ ability to activate these new opportunities. In June 2013, Palestinian representatives succumbed to Israeli and U.S. pressure to drop a bid to include some 400 kilometers of landscape terraces in Battir village on the List of World Heritage in Danger. But Palestinians fought back. Last month, Battir was granted "at risk" recognition by being placed on the World Monument Fund’s 2014 Watch List.

There are precedents of other ways to legally challenge Israel’s violations. For instance, the Simon Wiesenthal Center’s construction of the Museum of Tolerance in West Jerusalem — where Israel’s sovereignty is not internationally recognized — has entailed the exhumation of hundreds of graves at the ancient Muslim cemetery known as "Mamilla." These acts of destruction are being legally challenged.

Israel has buttressed its settlement strategy with destructive archaeological excavations, claims to cultural heritage, and other unlawful actions that infringe on Palestinian territorial rights. Israeli sources estimate that between 1967 and 1992 about 200,000 artifacts were annually removed from the occupied Palestinian territory, and another 120,000 or so were removed each year since 1995. In occupied East Jerusalem, ongoing Israeli archaeological projects include the settler-operated "City of David" park. These contested actions amount to de facto claims of sovereignty in occupied territory.

If pursued, a strategy based on Palestine’s UNESCO membership would strengthen the Palestinian
negotiating position and ability to control and protect cultural heritage sites. More important, it would help establish the Palestinians’ territorial sovereignty and further their ability to control and protect their cultural heritage.

To activate a UNESCO strategy, the Palestinians need to demonstrate a good faith commitment to UNESCO’s protection framework by adopting and enforcing the necessary legal and administrative measures. In particular, the Palestinians must implement their domestic obligations under UNESCO conventions by providing adequate protection for cultural heritage sites and enforcing sanctions for their violation. The Palestinians should also create a national inventory of transferred artifacts and site excavations.

Adequate legal protection of cultural heritage sites at the national level will support the Palestinians’ international efforts to reclaim possession of stolen cultural properties and regain control over occupied territory. Despite UNESCO’s politicization, and resultant budgetary cuts, Palestinian leaders should exercise their UNESCO membership to advance territorial rights and challenge Israel’s efforts to occupy and expropriate Palestinian land.

Valentina Azarov and Nidal Sliman are, respectively, Guest Author and Policy Member of Al-Shabaka: The Palestinian Policy Network. For further analysis of this issue, see their recent policy brief.