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1 2 3 Table of Contents Introduction 10 CHAPTER1: The Meant of The Human Antiquities & The Position of The Islamic And National Laws on Antiquities. 1.1 The concept of antiquities and its historical development 13 1.1.1 The importance of the antiquities and their human value 17 1.1.1.1 Historical antiquities 18 1.1.1.2 Economic antiquities 18 1.1.1.3 Social antiquities 18 1.1.1.4 Touristic antiquities 18 1.2 The position of the Islamic law on antiquities 19 1.2.1 The concept of Antiquities in Islamic jurisprudence 20 1.2.2 The Ruling of the Shariah on Antiquities 26 1.3 Protection of Antiquities in National Laws (Kuwait, Iraq, Chinese and Turkish) 31 1.3.1 Introduction 31 1.3.1.1 Culture policies 33 1.3.1.2 Cultural Security 35 1.3.2 The Position of the State of Kuwait 37 1.3.2.1 The Archaeological Movement 37 1.3.2.2 Cultural Heritage 40 1.3.2.3 Legislative protection 41 1.3.2.4 The Employed Strategies 43 1.3.2.5 Achievements 45 4 1.3.3 The Position of the Turkish Republic 46 1.3.3.1 The Concept of Cultural Heritage 48 1.3.3.2 Required Policies and Strategies to Preserve Heritage 49 1.3.3.3 Scope of protection 50 1.3.3.4 Local efforts to preserve natural assets 51 A- Practical problems 52 B-Tourism and economic development of cultural assets 53 1.3.3.5 The Legislative Role 57 1.3.4 The position of the Republic of Iraq 62 1.3.4.1 The concept of cultural heritage 62 1.3.4.2 Legal protection of cultural and natural antiquities and heritage 64 1.3.4.3 Cultural War on Iraq 70 A- Armed groups or so-called (The Organization of the state) and the war of idols 72 B- Efforts to curb theft and destruction 75 1.3.4.4 Proposed Solutions 76 1.3.5 The position of the People's Republic of China 77 1.3.5.1 Scope of Protection 77 1.3.5.2 Problems facing the preservation of Antiquities 80 1.3.5.3 The strategy adopted by the Chinese government to protect the heritage 82 1.3.5.4 The Legislative Role 85 CHAPTER II: The International Protection of The Cultural Properties & International Efforts to Combat 5 Aggression on Cultural Properties 97 2.1 The International Protection of the Cultural Properties 97 2.1.1 Introduction 97 2.1.2 The International Concept of Cultural 107 2.1.3 Criteria for the Identification of Cultural Properties 112 2.1.3.1 Criterion of civil Properties 112 2.1.3.2 Criterion of the Cultural Importance of the Peoples 113 2.1.3.3 The exclusive or descriptive Standard 113 2.1.4 Scope of Legal Protection of Cultural Properties in Accordance with the International Humanitarian Law 114 2.1.4.1 The General Protection 116 2.1.4.2 Special Protection 119 2.1.5 Armed Conflicts 123 2.1.5.1 International Armed Conflicts 123 A-Organized Criminal Groups 125 B- Forms of these Organized Groups 125 2.1.5.2 Non-international Armed Conflicts 127 2.2 International Efforts to Combat Aggression on Cultural Properties 128 2.2.1 Models of the Regulatory Role on Applying the Provisions of the Conventions Related to the Protection of Cultural Properties 129 2.2.1.1 The Hague Convention 1954 129 2.2.1.2 The Supervisory Role of the International Conflict Parties 131 6 2.2.1.3 The Supervisory Role of the Protecting States 133 2.2.1.4 The Role of the International Organizations 133 2.2.1.5 The Role of Regional Organizations 135 2.2.1.6 International liability 138 2.3 The role of the international judiciary in the application and implementation of international rules for the protection of cultural heritage 141 2.3.1 Role of international military courts in applying the rules of the protection of cultural property 143 2.3.2 Role of Provisional Special Courts in the Application of the Rules for the Protection of Cultural Property 144 2.3.3 Role of the Permanent International Criminal Court in the Application of Rules for the Protection of Cultural Property 150 2.3.3.1Jurisdiction of the Court 145 A- Specific Jurisdiction 146 B- Time jurisdiction 147 C- Personal jurisdiction 147 2.3.3.2 Bringing criminal proceedings before the court 147 CONCLUSION 150 RECOMMENDATIONS AND SUGGESTIONS 150 7 8 9 INTRODUCTION The antiquities have a great moral value in our time, because of the fragility of history and witness to the human existence across the different times are the property of all mankind and not limited to a specific spot or a certain people. There are therefore many local committees and institutions within the country hosting the antiquities as well as the international claim to protect the effects from attacks such as looting, destruction or trafficking, and the work of many conventions that criminalize the trade in antiquities or abuse thereof. Key question of Research and Reason for its selection: I chose this rich and interesting subject to be my research subject for its great status that reflects the identity of societies and draws the important human geography, but it unfortunately did not receive enough attention and care, especially in the Arab and Islamic countries, which contain many of the monuments for being a fertile land for the birth of civilizations. Therefore, in practice and the existence of groups An extremist who wants to destroy those antiquities on the basis of misguided ideas or in cases of war and the duty and responsibilities of the international community and if there are competent international courts to consider and impose international sanctions on the host state in the event of failure to play its 10 role and the State of the external aggressor If it has destroyed it during the war, and the extent of the possibility of adopting the modern science in the transfer of the antiquities from the country of aggression to another country takes international consent to transfer to him, or whether this idea remains far from realistic application. Research Methodology: This Research adopts the legal investigative analysis style by the national laws and International efforts related to Protection of Antiquities. Also, the research follows a comparative analysis approach by analyzing Law of Antiquities in Kuwait, China, Iraq and Turkey. it should be noted that it did not come to the Researcher's Knowledge the existence of any previous detailed study regarding Address the position of Islamic law as well as national laws as previously. Research Plan To achieve the desired goals of the research, it was divided as follows: Chapter 1: The Meant of The Human Antiquities & The position of The Islamic and National Laws on Antiquities 1.1What is meant by the human antiquities 1.2 The position of the Islamic law on antiquities 1.3 Protection of Antiquities in National Laws Chapter 11: The International Protection of The Cultural Properties & International Efforts to Combat Aggression on Cultural Properties 2.1The International Protection of the Cultural Properties 11 2.2 International Efforts to Combat Aggression on Cultural Properties 2.3The role of the international judiciary in the application and implementation of international rules for the protection of cultural heritage CONCLUSION Recommendations and Suggestions 12 CHAPTER1: The Meant of The Human Antiquities & The Position of The Islamic And National Laws on Antiquities 1.1 The concept of antiquities and its historical development The human civilizations that have passed on the surface of the globe have remained steadfast and vivid to speak of the antiquities that have brought us many stories, victories, and innovations of tools and machines to continue and maintain the survival, in addition to the aesthetic and artistic sense, which was embodied in drawing, sculpture and construction, to keep it an eternal memory and a witness to that civilization. Which struggled and overcame the circumstances at that time, in order to record our epic and brightness in history. Despite the disappearance of that civilization, i.e., the groups that it included and their annihilation, but the change it made to the city in which it was located has remained. We can see the construction, drawing, sculpture, coins and seals, and sometimes the intact bones, and that prompted specialists and interested scholars to study these substantial materials and search for them to discover the characteristics of the civilization that created them, i.e., (to discover the remnants of the people such as the buildings and statues and mummified remains and money and the like.). 1This is called archeology, which means studying all the remnants of man who lived since ancient times to record his historical and cultural role2. The importance of archeology is to identify ancient civilizations and to identify the ancient human form. Archeology has had a great role in human 1 2 Nakhla, Mona, J, Archeology in the Arab World, Tripoli, Lebanon, Gross-Bruce Publications, pp. 11-14 Nakhla, Mona, J, Ibid ,pp. 13-15. 13 science, since it is actually only a monitoring of human life in a period of time and its integration with its environment. We have also been able to explore the physical qualities of man in ancient civilizations, and contemporary man, to reveal several differences, the most important of which is man's height difference, to show us the evolution of the human race. In the field of urbanization, many ancient civilizations have been distinguished by their magnificent ornamented construction, which aroused the bewilderment and the curiosity of knowing their secrets and trying to access their knowledge and learn from them to learn new ways of construction art, so that we can build similar buildings in the present time. The view of the researcher (also the evidence here according to the common saying is that history is repeating itself, and also civilizations of science and wars and adversity are only a repeat of the subsequent generations with different methods and similar reasons. Careful reading of the previous civilizations is a true prediction of successive generations often with the need for development). There are almost no spots in the world without archeological antiquities, but unevenly. Some areas contain a very small number of artifacts, which are areas of desertified civilization, unlike other areas which contain a large number of different artifacts, and which have the greatest impact on the human heritage. The countries that enjoyed a good climate, which were easy to live in, were considered fertile places for the introduction of civilizations and their sequels, thus gaining history and authority. Their possession of the huge number of monuments may make it a civilized country that acquires a good place at the international level in our time, because of the interest of individuals, institutions and states that it attains. 14 There are many precious antiquities, such as gold boxes and precious stones, which are more distinguished in the Egyptian Pharaonic civilization. In addition, there was an interest of ancient civilizations in agriculture, plowing and plants, which led to the knowledge of a lot of plants and their importance in medicine and also in embalming, which had the greatest impact on the development of modern medicine, especially in the civilization of Mesopotamia3 and the identification of previous religions, and the existence of temples and statues of the gods and some ancient religious books that talked about the nature of worship that they believed in and practiced in their times, as well as knowledge of the languages that they used through the writings on the tablets4. It also enabled us to study the climatic and geological changes on the Earth's layers. The collapse of a whole civilization in a particular area, due to either earthquakes or volcanoes or faults or cracks in them due to other natural factors such as rain or high temperatures5, has helped a lot in the field of Geology. Archaeology ("arkiologiah")6 has contributed to the study of any material and tangible trace of human activity, and the enrichment and the emergence of many other areas of knowledge which are based on verifying or refuting the documents, layers or drawings and old tools, and carrying out specialized studies to reach certain facts that serve the area of research, including the science of engraving, which is interested in the study of archaeological material through the ancient words carved or painted on 3 Dr. Hammad, Hussein, p, Encyclopedia of Historical Archeology, Amman-Jordan, Dar Osama, 2003, p (45). 4 Dr. Nakhla, Mona, Y., op. Cit., P. 158. 5 Dr. Attieh, Ahmed, A. M. Kafafi, Abdul Hamid, Protection and Conservation of Archaeological Heritage, Cairo, Dar al-Fajr, 1/2003, pp. 163- 167 5 Dr. Hammad, Hussein, F., Op. Cit., Pp. 438-440. 6 The word has a Greek origin. (It deals with focusing on the study of human societies and cultures in the past ages) 15 wood or pottery or stone, and also the science of languages, which took care of the Greek or Latin texts found on the graves or temples, as well as the science of Anthropology, which is interested in the study of the science of man, such as the human races, culture and biological evolution through ancient skeletons, (This is what scientists recently relied on, such as DNA analysis of the oldest skeleton lived nearly ten thousand years in southwestern England. It was dark skinned with blue eyes, which indicates that the light skin, which is now the dominant color of Europeans in the northern regions, is dated back to a recent time)7. Also, we have the study of ecology through the remnants of stuffed animals, the science of technology through having access to methods or tools used in ancient ways of living and building and the use of their techniques and development, the science of geomorphology or science of the form of the earth, which is concerned with the study of terrains, in addition to the science of history, sociology and others, which played a great role in monitoring history, civilizations and Sciences8. Archeology did not begin with the currently applied extended concept, but it was only restricted to the study of the outstanding antiquities that were not obscured or buried by external factors, up to a point of its latest development by adopting the approach of exploration and excavation. The Arabs are one of the major contributors to the establishment of archeology and those interested in it, through their exploratory missions, as well as their keenness on building historic houses to preserve and protect historical antiquities, and they called these buildings (khazaain "treasures"). 7 Liliane, Waddy (07/02/2018) For water: The old British cheddar was dark-skinned and blue-eyed, Available at: http://cutt.us/QjW9C (Accessed: 03/04/2018). 8 Dou, Georges, History of Archeology, BahijShaaban, Beirut-Paris, Oydat Publications, 1982, 6-10, published online. 16 They had many important books and works of weight, such as (The book of the idols) by IbnHisham al-Kalbi, the book (Al-Iklil "the garland) by Hamdani, and the book (Ifaadawa l-I'tibaar "testimony and appreciation") by Mufq alDin al-Baghdadi, which is the first Arab archeologist who described the antiquities accurately and clearly and gave them organized details9. In the West, the Greeks were among the oldest archeologists and scholars interested in archeology, until the European Renaissance took place and the sciences spread, including archeology among them, and the number of those interested in it increased. In later periods, archeology became a major significant place of interest and there was an increasing race to acquire artifacts and search and excavate for them10. 1.1.1 the importance of the antiquities and their human value No one denies the most important and fundamental role of antiquities; despite the indifference and absence of priority given to them by our Arab societies, which are still looking at them without feeling the real value that they have occupied in the world. They are the historical fingerprint and concrete evidence of the right of a group or people to a particular land. This is what Israel has always taken to prove its legitimacy in the settlement process that it carried out in Palestine, such as falsifying the facts and claiming and that certain antiquities are Jewish and marketing them in the world as Jewish antiquities to support its position and gain international support11. 9 Hazar, Omran (2016) Antiquities, Available at: https://goo.gl/BrU6yA (Accessed: 11th April 2018). Hazar, Omran (2016) Antiquities, Available at: https://goo.gl/BrU6yA (Accessed: 11th April 2018). 11 Al Saheli, Mohammed (2012/06/02) The Canaanite Arab Antiquities in Palestine, Available at: http://cutt.us/JpEvt (Accessed: 15/03/2018) 10 17 Here are a few aspects of the historical, economic, social and tourist importance of antiquities that we mention as follows12: 1.1.1.1 Historical antiquities represented in the constructional heritage which contributed to linking the civilization of the ancestors and the first parents with the successive societies, and the demarcation of the gap between generations and the convergence of distances and deepening the identity and patriotic and national affiliation, which gave birth to the sense of the obligation of preserving them. 1.1.1.2 Economic antiquities: Antiquities played an important role in the revival of the national economy, by reducing the unemployment rate through finding and creating many jobs, in the tourism sector, in addition to attracting a large number of tourists and thus reviving the local market with its variety. 1.1.1.3 Social antiquities- where identity and belonging led to the cohesion of the members of society and deepening their ties, this is a strong motivation for maintaining this unity and protecting the global national heritage. 1.1.1.4 Touristic antiquities the tourism and economy sectors are two sides of the same coin. Archeology is considered the most attractive way for tourists from all over the world who are attracted by the love of knowledge to travel to and see the view of the drawings, statues, and the ancient tall buildings in the host country, which will revive the touristic activity and hence pump money and flourish the market in the touristic country. 12 Marwan, Mohamed (2017) Importance of Antiquities, Available at: https://goo.gl/NufcJq (Accessed: 12/03/2018). 18 Antiquities are the record of the world heritage of humanity, and its accumulated and balance and inexhaustible wealth, and the witness to its existence, which necessitates the need to preserve this cultural edifice of peoples and make it a source from which all nations benefit, since it is a legacy of mankind. The protection methods prescribed for the human heritage are represented through the establishment of exhibitions and museums and publicizing them in the mass media, to identify them, and carry out periodic care of repair and restoration, with intensified exploration and excavation operations, in addition to the need for States to register the antiquities and the heritage that they have and the issuance of a full law to preserve the antiquities and the criminalization of the abusers, and also their inclusion in international protection. Any attack on antiquities or archaeological museums is a big human, historical and national crime, as the contents of this museum or historical antiquities of historical relics are not only the property of the state but is the property of the nation and all mankind. Therefore, we find international interest and not only national, both in times of peace or war by groups or individuals. 1.2 The position of the Islamic law on antiquities The Islamic religion since its emergence had a creative role in all aspects of human life, whether religious and secular. Its approach to reform and construction did not resort to the demolition but only in the narrow limits of avoiding the evils, as witnessed by the German Orientalist Joseph Shakht , in his book (Islamic Heritage) where he resorted to his introduction in 19 which he showed the contributions of Islam to the human achievements, and its positive impact on the surrounding and the earlier civilizations13. 1.2.1 The concept of Antiquities in Islamic jurisprudence: Islamic law considered that antiquities are included within the seizure of the permissible, because they are regarded as money, but the jurisprudence did not define them separately but mentioned them with the "rikaaz" (ore), minerals and treasures14. The ore in its linguistic sense includes all that contained in the interior of the earth such as gold or silver or jewels such as precious stones, that is, since the creation of the earth it is called minerals, or by intervention of man and his work it is called treasure. i.e., the rikaaz (ore) includes (minerals and treasures)15. However, there was a disagreement among the Islamic jurists in determining what the ore is. Some of them considered it as related to its linguistic meaning; they said that it is the metal and the treasure. Those are the followers of the Hanafischool. Some of the followers of the Shafi'i school and the Malikyaschool considered it only the buried substances of the Jaahiliyyah, and they removed from rikaaz the metals and treasures that were buried after Islam16. 13 Dr. Altojri, Abdul Aziz, A, Heritage and Identity, Rabat - Kingdom of Morocco, ISESCO Press, 2011, p. 18. Dhiaab, Mohammed, The Economic Thought of Abu Jaafar Ahmed bin Nasr Al-Daoudi An Analytical Study of the book Money, Master Thesis, Faculty of Social Sciences and Islamic Sciences, Al-Haj Lakhdar University, Batna, 2006/2007, p. 73. 15 Abu Zahra, Muhammad, The Royal and Theory of Contract in Sharia, Cairo, Dar al-Fikr al-Arabi, 1996, p. 121. 16 Shalabi, Muhammad, M., Introduction to the definition of Islamic jurisprudence and the rules of ownership and contracts in it, House of Authorship Press, 1962, p. 343, 344, 348. 14 20 The fuqaha (Islamic jurists) have agreed that the buried material, if it carries pre-Islamic slogans such as inscriptions or writing of the names of the gods or kings, or sculpting them, in accordance with the meanings of their previous ages, is to be regarded as buried in Jaheleya. But if it carries the indications of the two testimonies or the mention of the unification or the word of Majesty, i.e. any useful or indicative of Islam was considered a buried material or an Islamic treasure. In the case of finding a buried material and it was devoid of any indications to whether it was Jaheli or Islamic, the most correct view is to consider it as an Islamic buried material because of the pre-Islamic ancient ages17. As for Imam Abi Yusuf, it is mentioned in his book Al-Kharaj, in its narration and details on the due provisions of the five, that the ore includes minerals found in the earth since its formation, such as gold, silver, copper, iron and the like, that is only the elements that can be ductile and be melted by means of fire18. So, the Hanafi scholars took this opinion in the matter of identifying minerals which are referred to as rekaaz, except Hanafi Malilki Jurists who equated between all minerals and considered them all as rekaaz without identifying the nature or the type of mineral19. We conclude by summarizing what has been said that all that was buried under the earth by man or the elements of earthquakes and natural volcanoes is called the treasure, or what is revealed from the depths of the earth from the resources of any elements is called minerals. And we 17 Shalabi, Muhammad, M., op.Cit , p. 345- 350. Ibrahim, Abi Youssef, Y., Al-Kharaj, Beirut, Lebanon, Dar al-Maarifah, 1979, p. 22. 19 Abu Zahra, Muhammad, op. Cit., P. 132 18 21 pointed to the different opinions of scholars in determining the rikaaz (ore). There is an agreement among the Islamic jurists on"dafinJaahiliyyah" (the pre-Islamic buried material), i.e., the Jaahiliyyah treasure, was considered as rikaaz (an ore), but the difference was in the Islamic dafin (Islamic buried material) and minerals. The treasure, whether Jahiliyyah (pre-Islamic) or Islamic, whenever it has a historical or technical value to reveal, it is considered antiquities20.; and this is what Islamic jurisprudence calls for, because it is the trace of that has been left by the former and the first, whether associated with the Islamic heritage or with other nations. This raises the following question: Why have the antiquities represented in statues, despite the prohibition of statues of gods or idols after the revelation of the message of Tawheed (monotheism), remained steadfast throughout the Islamic conquests throughout the ages? These antiquities are the witness to the miraculous Noble Koran and the truth of what it narrates of the news of the previous nations, and a description of the circumstances and their loss as a result of their oppression, tyranny or disbelief. Almighty said: "Do they not travel in the land, and see what was the end of those before them? They were superior to them in strength, and they tilled the earth and populated it in greater numbers than these (pagans) have done, and there came to them their Messengers with clear proofs. Surely, Allah wronged them not, but they used to wrong themselves21."He also said:"We will show them Our Signs in 20 Abu Zahra, Muhammad, op. Cit., P. 135 Quran, Surah Al-Rum, verse 9 21 22 the universe, and in their ownselves, until it becomes manifest to them that this (the Quran) is the truth. Is it not sufficient in regard to your Lord that He is a Witness over all things22?" We find that the Ruler Almighty urged us to see the antiquities of the previous nations in order to take an example and learn a lesson, in order to be the evidence of the validity of the message, and to increase the faith of the believers and our certainty, and to guide anyone who has gone astray or become a disbeliever to the true religion, as it is the miracle religion, which provided in its book a precise description of the historical and geological antiquities which had never been offered in any other earlier books in order to be a miraculous evidence to people. The Almihty said: (The people of Noah denied (their Messenger) before them, they rejected Our slave, and said: "A madman!" and he was insolently rebuked and threatened. Then he invoked his Lord (saying): "I have been overcome, so help (me)! So, we opened the gates of heaven with water pouring forth. And We caused the earth to gush forth with springs. So, the waters (of the heaven and the earth) met for a matter predestined. And We carried him on a (ship) made of planks and nails, floating under Our Eyes, a reward for him who had been rejected! And indeed, we have left this as a sign, then is there any that will remember?23 Here in this clear verse narrated the story of our master Noah and the flood that encountered and drowned his people. Geological and archaeological excavation studies have confirmed the presence of silt, which indicates the occurrence of a large flood in the 22 23 Quran, Surah Fussilat , verse 53. Quran, Surah Al-Qamar, verse 9-15. 23 historical period of our master Noah, in Iraq, and the Almighty says: And it was said: "O earth! Swallow up your water, and O sky! Withhold (your rain)." And the water was diminished (made to subside) and the Decree (of Allah) was fulfilled (i.e. the destruction of the people of Noah). And it (the ship) rested on Mount Judi, and it was said: "Away with the people who are Zalimûn (polytheists and wrong-doing)!"24 The traces of Noah were found on the mountain of Judy, as mentioned by the Koran, and this aroused the resentment of skeptics and haters, as well as the traces of Lot people in the depth of the nebula in Jordan. Our Lord Lot warned his people of torment as a result of committing adultery and that they were to be punished by stoning to death. They were not concerned about the matter, but their torment was inflicted on them including the mother of Lot who did not obey the Prophet of God. Allah the Almighty said:

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