Updated: Jul 28, 2020
The protection of the world’s cultural heritage has been proclaimed as the pivotal mission of UNESCO, the body of the United Nations which is promoting the safeguarding of societal, educational, and cultural growth globally. The preservation of cultural heritage sites may be perceived as a simple concept, yet it can be understood differently by different stakeholders (e.g. by different cultures or religions).
An indicative example of the above is the current situation about the status of Hagia Sophia - 'Αγία Σοφία' (original Greek verbatim), in Turkey. Recently, the Turkish government announced that the judiciary approved the re-conversion of the renowned Museum of Hagia Sophia (originally a Byzantine Basilica) into a Mosque. The announcement has sparked controversy globally, since the iconic structure is perceived as a symbol of multiculturalism, whilst the conversion of the building to a mosque is seen to strip Hagia Sophia of this quality.
The main concerns expressed for Hagia Sophia are about the interior of the building. Hagia Sophia is the living testimony of Istanbul’s (previously Constantinople, capital of Byzantium) long history, as the monumental building is about to reach its 1500 years of existence. It traces its Byzantine origins, the later Ottoman period and finally its conversion into a museum by Mustafa Kemal Ataturk, a symbolic move connoting the birth and secularity (the independence from religious influences) of modern Turkey – the moving away from being an Empire and closer to a modern, western state. Many fear that Hagia Sophia’s conversion back to a mosque will encourage iconoclasts to destroy the invaluable murals-mosaics of the building, which depict Christian figures and Saints. The Turkish authorities have assured the international community that the interior will be preserved, whilst the mosaics of rare Byzantine art will be covered with curtains during prayer and uncovered when the building is open to visitors.
However, many are not convinced of Turkey’s assurances. The Byzantine specialist, Gary Vikan has recently expressed his fears on the fate of the mosaics. He commented that ‘there's nothing that stands between an iconoclast and the mosaics’ because ‘they're eminently accessible,’ whilst adding that the change of the building’s regulatory authority (from the department of cultural affairs to that of religious affairs) might prove detrimental, especially, if the newly-assigned regulatory body ‘turns a blind eye…to extremist destruction’. As such, the debate around morality and religiousness of Hagia Sophia’s conversion into a mosque, transforms into a legal matter of international significance.
Murals of Hagia Sophia's mosaics of rare Byzantine art. The mosaics were plastered/covered when the Ottoman rule converted Hagia Sophia into mosque, in 1453. They were uncovered a few centuries later, in 1935, to signal the monument's historic conversion to a museum.
International legal framework for the protection of international cultural heritage
A convention missioned ‘to protect the cultural heritage of all humanity’ was necessary in the aftermath of the two world wars which caused the massive loss and destruction of invaluable cultural property, archaeological/historical sites and monuments, even the disappearance of entire towns and villages. The need to avoid repeating any kind of massive loss was addressed by the enacting of international instruments to better regulate and bind the international community for the greater good.
The pioneering instrument that introduced the legal obligation to protect and safeguard cultural property during armed conflict is the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict and its First Protocol (Protocol I). The Convention grants immunity on cultural property bearing the white and blue sign and requires the parties in conflict to not target cultural property sites, unless there is military necessity. However, this exception has proved to have undermined the instrument’s effectiveness, despite its customary law status. Although the Second Protocol that was promulgated in 1999 has improved the effectiveness of the convention by restricting the availability of the military necessity doctrine, it still requires to be ratified and acceded to by many more states to become international customary law.
A landmark convention in the history of UNESCO (to supplement the earlier instrument, with provisions for protection during peacetime) has been the promulgation of the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage. This instrument has created the so called ‘World Heritage Site List’ which affords special protection to all of its listed sites, which qualify as prominent historical and natural heritage sites of international importance. Once a state successfully includes its heritage sites in the UNESCO list, the organisation, in cooperation with every state, works to safeguard the integrity of those sites. Importantly, UNESCO has the discretion to object to any kind of modification/change proposed by any state that the organisation deems as derogatory to the integrity of any listed heritage site.
The world-renowned ‘Heritage List’ regularly makes the headlines due to its non-exhaustive potential to include more and more heritage sites, provided that they fulfil the requirements set. Since UNESCO’s prestigious list was first introduced, the international community has strived to include their distinguished heritage sites, followed with a change of status – from heritage sites of national importance to heritage sites of international significance. While this change of status is ‘prestigious’ and brings positive attention to the site (especially touristic attention), it inevitably comes with certain duties.
Obligations under UNESCO’s World Heritage Convention
The convention asks for the contracting states to respect the heritage sites of one another and for cooperation where necessary or requested, to preserve heritage sites of international importance. The instrument makes it clear that it respects and recognises the sovereignty of each contracting state, but it equally stresses that when it comes to the World Heritage List, the states must fulfil the obligations imposed upon them for enhanced protection. Among the obligations set for the contracting states, Article 6(3) requires that:
‘Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage situated on the territory of other States Parties to this Convention.’
While the provision refers to listed sites located on the territory of other contracting states, it is implied that the same obligation, to refrain from ‘any deliberate measures which might damage directly or indirectly’ towards any listed site, also applies to domestic listed sites. This has been confirmed by UNESCO in the ‘Operational Guidelines for the Implementation of the World Heritage Convention’ of July 2019 [Introduction, para 15 (h)], which states that contracting states are:
'not to take any deliberate measures that directly or indirectly damage their heritage or that of another State Party to the Convention’
Is the conversion of Hagia Sophia breaching the World Heritage Convention?
Even a change in the status or character of a cultural heritage site may be perceived as damaging (either directly or indirectly), especially if it is the result of deliberation. UNESCO, in their open statement for Hagia Sophia, states that the impact of the change of its status from museum to a mosque is significant, because it might be detrimental to the building’s ‘universal value’ and stressed the requirement to follow the organisation’s engagement and investigation on whether any proposed change can be viable:
‘States have an obligation to ensure that modifications do not affect the Outstanding Universal Value of inscribed sites on their territories. UNESCO must be given prior notice of any such modifications, which, if necessary, are then examined by the World Heritage Committee’. [UNESCO Statement on Hagia Sophia 10/07/2020]
The retainer of Hagia Sophia’s status as a museum is of international interest, especially because it defines the fine line that accommodates the coexistence of Christianity and Islam, whilst preserving history and symbolising multiculturalism. Many viewed the 1935 conversion of the building from a mosque into a museum as a fundamental move that represented a modern, secular Turkey, whilst keeping alive ‘the essence’- the rich history of the city. Hagia Sophia has been described by many as ‘a place where world-changing empires and religions conflicted and intersected’ –with the international community recognising it as a symbol of ‘multicultural representation’. In their open statement, asserting the above, UNESCO stated:
‘… recalls that the effective, inclusive and equitable participation of communities and other stakeholders concerned by the property is necessary to preserve this heritage and highlight its uniqueness and significance. The purpose of this requirement is to protect and transmit the Outstanding Universal Value of heritage, and it is inherent to the spirit of the World Heritage Convention’.
It is evident that the change is against the true spirit and the provisions of the convention, the aim of which is to protect the integrity of historical structures and simultaneously preserve their intellectual features and international significance, including the interests of all stakeholders involved.
The ruling of the Turkish court and its impact beyond Hagia Sophia
The highest administrative court of Turkey, after assessing the ‘legality’ of Hagia Sophia’s conversion from a mosque to a museum in 1935, decided that this should not have happened, and was illegal. The court’s reasoning was based on the Ottoman Sultan’s, Mehmet II covenant which proclaimed the indefinite status of Hagia Sophia as a mosque (‘the foundation owns the Hagia Sophia to this day’).
The impact of this ruling is very significant. It not only opens the road towards the violation of the provisions of a key international instrument for the protection of the world’s cultural heritage but, it also marks a new era for Turkey. Clearly, the decision is one that affects Turkey’s secularism at its core, because it confirms the country’s step-back to a system where the merging of state and religious affairs is closer than it has been for a very long time. This is evident from the ease of using an ancient covenant, to out-rule as illegal the conversion of Hagia Sophia from a mosque to a museum. Subsequently, the same grounds: e.g. the same or any other covenant that marks the establishment of the Ottoman Empire in the former Byzantine territory, might as easily be employed to out rule the domestic reforms that shaped the foundations of modern Turkey in the first half of the 20th century.
Final Thoughts and Outcome
The ruling of the Turkish court and its immediate enforcement by the Turkish authorities violates the 1972 Convention because it disregards Turkey’s obligations towards the international standing of Hagia Sophia, and the interests of all stakeholders involved. The international status of Hagia Sophia is pivotal to understand why the attitude of the Turkish President Erdogan towards the matter, who asserts that the situation ‘is a matter of state sovereignty,’ is not legally justifiable under international law.
Of course, public international law is oftentimes treated as ‘soft law.’ Since the 1972 Convention does not create any direct offences or sanctions, other than the removing of a site from the Heritage List, its enforcement largely depends on diplomacy, or otherwise put, ‘diplomatic pressure/coercion’, by the international community. Therefore, it is highly unlikely that anything other than diplomatic means (e.g. court proceedings are usually not permitted on such grounds) will be done to address the issue, unless Turkey is willing to begin discussions with UNESCO and reach a median solution.
In their open statement UNESCO ‘regrets’ the decision to convert Hagia Sophia, and it was made explicit that no prior engagement for discussion on the issue was initiated by Turkey. Furthermore, UNESCO has called Turkey to ‘initiate dialogue without delay, in order to prevent any detrimental effect on the universal value of this exceptional heritage’. Ernesto Ottone, UNESCO’s Assistant Director-General for Culture has clarified the importance to:
‘avoid any implementing measure, without prior discussion with UNESCO, that would affect physical access to the site, the structure of the buildings, the site’s moveable property, or the site’s management.
In a nutshell, this change is one that raises many issues concerning the preservation of cultural heritage sites, and the dangers that a sometimes ‘minor’ change may give rise to. The list might indeed be endless. Away from cultural matters, it also brings to the table other issues including the effectiveness of international instruments and how these may interact with state sovereignty in practice, as well as realisations about a state’s legal system and its future (or more likely as in the current situation its inclination/return to its earlier foundations).
Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict 1954
Paris Convention Concerning the Protection of the World Cultural and Natural Heritage 1972
Operational Guidelines for the Implementation of the World Heritage Convention (WHC.19/01 - 10 July 2019)
Roger O'Keefe, World Cultural Heritage: Obligations to the International Community as a Whole?  53 The International and Comparative Law Quarterly 189
Newspapers and Blogs
Thomson Reuters, ‘Ancient Hagia Sofia in Turkey to serve as mosque, Erdogan decrees after court ruling’ (CBC, 11 July 2020)
Bobby Ghosh, ‘Erdogan Is Erasing Ataturk’s Stamp on Turkey - The conversion of the Hagia Sophia into a mosque is the culmination of the president’s lifelong political project’ (Bloomberg, 13 July 2020)
Daren Butler and Ece Toksabay, ‘Erdogan declares Hagia Sophia a mosque after Turkish court ruling’ (Reuters, 10 July 2020)
David Gardner, ‘The Hagia Sophia decree is about more than religious chauvinism’ (The Financial Times, 14 July 2020)
Judith Herrin, ‘Converting Hagia Sophia into a mosque is an act of cultural cleansing’ (Washington Post, 15 July 2020)
‘Hagia Sophia: World Council of Churches appeals to Turkey on mosque decision’ (BBC, 11 July 2020)
Helen Stoilas, ‘Some of Hagia Sophia’s mosaics will be covered during Muslim prayers’ (The Art Newspaper, 20 July 2020)
Sarah Cascone, ‘A Turkish Court Has Revoked the Hagia Sophia’s Status as a Museum as the Country’s President Moves to Return It to a Functioning Mosque' (Art World, 10 July 2020)
UNESCO Statement on Hagia Sophia, Istanbul (UNESCO, 10 July 2020)