The examination of the following three research hypotheses in the light of China’s treatment of Tibet could deliver new legal arguments in favor of including cultural genocide into positive international law:
1) Legal developments tend to indicate that the enforcement of the Genocide Convention of 1948 increasingly deters the perpetration of classical forms of genocide; for this reason, cultural genocide may gain new significance on the international level as a way for perpetrators to circumvent the prohibition of physical and biological genocide.
2) The prevention of cultural genocide de lege ferenda strengthens the prevention of physical and biological genocide de lege lata; this hypothesis combined with an appropriate application of the mental elements (mens rea) insures that cultural genocide de lege ferenda will not diminish or dilute the meaning of physical or biological genocide as the “crime of crimes” de lege lata.
3) The prevention of physical and biological genocide can be more effective by reinforcing the protection and promotion of cultural diversity in international law in order to prevent cultural genocide; article 8 of the new UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005 outlines new approaches to prevent cultural genocide under existing international law.
In particular, the third hypothesis could provide guidance for a specific codification on the crime of cultural genocide. In this context, article 8 of the UNESCO Convention on Cultural Diversity presents a particular interest since it provides that Parties may take all appropriate measures to protect and preserve cultural expressions in special situations where cultural expressions on their territories are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding.
