Resolução da Assembleia da República n.º 41/2018

CourtAssembleia da República
Publication Date09 Fev 2018

Resolução da Assembleia da República n.º 41/2018

Aprova, para adesão, o Segundo Protocolo à Convenção para a Proteção de Bens Culturais em Caso de Conflito Armado, adotado na Haia, em 26 de março de 1999

A Assembleia da República resolve, nos termos da alínea i) do artigo 161.º e do n.º 5 do artigo 166.º da Constituição, aprovar, para adesão, o Segundo Protocolo à Convenção para a Proteção de Bens Culturais em Caso de Conflito Armado, adotado na Haia, em 26 de março de 1999, cujo texto, na versão autenticada na língua inglesa, bem como a respetiva tradução para língua portuguesa, se publica em anexo.

Aprovada em 7 de dezembro de 2017.

O Presidente da Assembleia da República, Eduardo Ferro Rodrigues.

SECOND PROTOCOL TO THE HAGUE CONVENTION OF 1954 FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT

The Hague, 26 March 1999

The Parties:

Conscious of the need to improve the protection of cultural property in the event of armed conflict and to establish an enhanced system of protection for specifically designated cultural property;

Reaffirming the importance of the provisions of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at the Hague on 14 May 1954, and emphasizing the necessity to supplement these provisions through measures to reinforce their implementation;

Desiring to provide the High Contracting Parties to the Convention with a means of being more closely involved in the protection of cultural property in the event of armed conflict by establishing appropriate procedures therefor;

Considering that the rules governing the protection of cultural property in the event of armed conflict should reflect developments in international law;

Affirming that the rules of customary international law will continue to govern questions not regulated by the provisions of this Protocol;

have agreed as follows:

CHAPTER 1

Introduction

Article 1

Definitions

For the purposes of this Protocol:

(a) «Party» means a State Party to this Protocol;

(b) «cultural property» means cultural property as defined in article 1 of the Convention;

(c) «Convention» means the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on 14 May 1954;

(d) «High Contracting Party» means a State Party to the Convention;

(e) «enhanced protection» means the system of enhanced protection established by articles 10 and 11;

(f) «military objective» means an object which by its nature, location, purpose, or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage;

(g) «illicit» means under compulsion or otherwise in violation of the applicable rules of the domestic law of the occupied territory or of international law;

(h) «List» means the International List of Cultural Property under Enhanced Protection established in accordance with article 27, sub-paragraph 1(b);

(i) «Director-General» means the Director-General of UNESCO;

(j) «UNESCO» means the United Nations Educational, Scientific and Cultural Organization;

(k) «First Protocol» means the Protocol for the Protection of Cultural Property in the Event of Armed Conflict done at The Hague on 14 May 1954.

Article 2

Relation to the Convention

This Protocol supplements the Convention in relations between the Parties.

Article 3

Scope of application

1 - In addition to the provisions which shall apply in time of peace, this Protocol shall apply in situations referred to in article 18, paragraphs 1 and 2, of the Convention and in article 22, paragraph 1.

2 - When one of the parties to an armed conflict is not bound by this Protocol, the Parties to this Protocol shall remain bound by it in their mutual relations. They shall furthermore be bound by this Protocol in relation to a State party to the conflict which is not bound by it, if the latter accepts the provisions of this Protocol and so long as it applies them.

Article 4

Relationship between chapter 3 and other provisions of the Convention and this Protocol

The application of the provisions of chapter 3 of this Protocol is without prejudice to:

(a) the application of the provisions of chapter I of the Convention and of chapter 2 of this Protocol;

(b) the application of the provisions of chapter II of the Convention save that, as between Parties to this Protocol or as between a Party and a State which accepts and applies this Protocol in accordance with article 3, paragraph 2, where cultural property has been granted both special protection and enhanced protection, only the provisions of enhanced protection shall apply.

CHAPTER 2

General provisions regarding protection

Article 5

Safeguarding of cultural property

Preparatory measures taken in time of peace for the safeguarding of cultural property against the foreseeable effects of an armed conflict pursuant to article 3 of the Convention shall include, as appropriate, the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property.

Article 6

Respect for cultural property

With the goal of ensuring respect for cultural property in accordance with article 4 of the Convention:

(a) a waiver on the basis of imperative military necessity pursuant to article 4, paragraph 2, of the Convention may only be invoked to direct an act of hostility against cultural property when and for as long as:

i) that cultural property has, by its function, been made into a military objective; and

ii) there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective;

(b) a waiver on the basis of imperative military necessity pursuant to article 4, paragraph 2, of the Convention may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage;

(c) the decision to invoke imperative military necessity shall only be taken by an officer commanding a force the equivalent of a battalion in size or larger, or a force smaller in size where circumstances do not permit otherwise;

(d) in case of an attack based on a decision taken in accordance with sub-paragraph (a), an effective advance warning shall be given whenever circumstances permit.

Article 7

Precautions in attack

Without prejudice to other precautions required by international humanitarian law in the conduct of military operations, each Party to the conflict shall:

(a) do everything feasible to verify that the objectives to be attacked are not cultural property protected under article 4 of the Convention;

(b) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental damage to cultural property protected under article 4 of the Convention;

(c) refrain from deciding to launch any attack which may be expected to cause incidental damage to cultural property protected under article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated; and

(d) cancel or suspend an attack if it becomes apparent:

(i) that the objective is cultural property protected under article 4 of the Convention;

(ii) that the attack may be expected to cause incidental damage to cultural property protected under article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated.

Article 8

Precautions against the effects of hostilities

The Parties to the conflict shall, to the maximum extent feasible:

(a) remove movable cultural property from the vicinity of military objectives or provide for adequate in situ protection;

(b) avoid locating military objectives near cultural property.

Article 9

Protection of cultural property in occupied territory

1 - Without prejudice to the provisions of articles 4 and 5 of the Convention, a Party in occupation of the whole or part of the territory of another Party shall prohibit and prevent in relation to the occupied territory:

(a) any illicit export, other removal or transfer of ownership of cultural property;

(b) any archaeological excavation, save where this is strictly required to safeguard, record or preserve cultural property;

(c) any alteration to, or change of use of, cultural property which is intended to conceal or destroy cultural, historical or scientific evidence.

2 - Any archaeological excavation of, alteration to, or change of use of, cultural property in occupied territory shall, unless circumstances do not permit, be carried out in close co-operation with the competent national authorities of the occupied territory.

CHAPTER 3

Enhanced Protection

Article 10

Enhanced protection

Cultural property may be placed under enhanced protection provided that it meets the following three conditions:

(a) it is cultural heritage of the greatest importance for humanity;

(b) it is protected by adequate domestic legal and administrative measures recognising its exceptional cultural and historic value and ensuring the highest level of protection;

(c) it is not used for military purposes or to shield military sites and a declaration has been made by the Party which has control over the cultural property, confirming that it will not be so used.

Article 11

The granting of enhanced protection

1 - Each Party should submit to the Committee a list of cultural property for which it intends to request the granting of enhanced protection.

2 - The Party which has jurisdiction or control over the cultural property may request that it be included in the List to be established in...

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