RICERCA ITALIANA     

THE SAFEGUARDING OF CULTURAL HERITAGE IN INTERNATIONAL LAW: PENDING PROBLEMS AND NEW CHALLENGES

Università degli Studi di Siena

Abstract

The past fifteen years have witnessed a far reaching and intense development of international legal standards concerning the safeguarding of cultural heritage. The 1972 Convention on the Protection of World Cultural and Natural Heritage has attained an almost universal scope of application and has faced many new challenges, especially with regard to the representativity of the World Heritage List, the management of the increasing number of properties inscribed therein, the monitoring of their state of conservation and the strategies of management of the new category of "cultural landscapes". Italy still has the highest number, together with Spain, of properties inscribed on the List, but problems have arisen both with regard to planned limitations on future inscriptions and with regard to the proper conservation at the national level.
Another issue relating to the international regulation of cultural heritage which is presently the object of far reaching evolution is the restitution of cultural property stolen or illegally exported. In this context, new encouraging perspectives are today opening for strengthening the effectiveness of the relevant international action, especially due to the development of bilateral negotiations by States and museums (in the context of which Italy, in most recent practice, has attained a primary role). These agreements are finalized not only to restitution, but also to the development of ethical principles and alternative solutions that may also prove effective in order to grant satisfactory valorisation of the cultural properties concerned in the general interest of humanity.
Among the most significant developments of international law in the field of cultural heritage there are two conventions recently adopted within the UNESCO framework, namely the Convention for the protection of the underwater cultural heritage (2001) and the Convention on the safeguarding of the intangible cultural heritage (2003). Apart from their specific subject matters, they show the interest that the international community today devotes to cultural heritage, especially when it may be considered as the common heritage of mankind. The 2003 Convention, in particular, has entered into force within a very short time, opening a new interesting scenario in the action of the international community concerning the safeguarding of cultural heritage.
A further research topic relates to the protection of cultural diversity and to its interrelation – as an element shaped by the sum of cultural identities of the communities of the world – with fundamental human rights. This holistic conception of culture, meant as a life style characterizing a group of persons, should find its expression in the recently adopted UNESCO Convention on the Protection and Promotion of Diversity of Cultural Expressions (2005), even if it is not possible to ignore that this instrument, despite its seemingly comprehensive title, deals with the issue mainly from an economic point of view, as shown by the many coordination problems with the WTO’s rules (see, especially, article 20 of the Convention). However, the fact that this Convention, contrary to pessimistic forecasts of operators and experts, has entered into force within a very short span of time, witnesses that the issue of cultural diversity is perceived as a crucial element in the context of international relations in the new Millenium, opening very interesting perspectives in order to review the philosophy underlying the international legal action for the safeguarding of cultural heritage, as well as for the perception of culture as a key element for the realization of fundamental human rights and the development of tolerance and mutual understanding among the peoples of the world.
The purpose of this research is to investigate and analyze these topics in order to contribute to the understanding of the state and evolution of general international law on cultural heritage and - at the same time - provide original ideas for policy initiatives aiming at strengthening the international regime of cultural heritage protection and the fundamental values related to it, also enhancing, in particular, domestic implementation of relevant international norms and principles. <<<

Principal Investigator

Francesco Francioni Università degli Studi di SIENA

Research Objectives

The objective of the present research project is to search and analyze international practice relating to the protection of the cultural heritage in order to understand what principles and norms exist in international law and what possible developments and new policies can be suggested especially to resolve the problems of implementation of the relevant international instruments within domestic legal orders. In this respect our purpose consists, in particular, in providing a contribution to the definition of the modalities and strategies of action of the competent national and international institutions, so as to foster rationalization and effectiveness of their action through coordinating harmonically the goals pursued by the relevant international instruments.
First of all, one must ascertain how the mechanism that is established in this convention can be improved in order to ensure the preservation of cultural heritage for future generations. In particular, the present research intends to suggest State actions that can make most effective the institutional framework of the WHC, while raising awareness of the importance of the incorporation of the concept of World Heritage within domestic law.
Secondly, this research team intends to collect, classify, and analyze State legislative and judicial practice concerning the protection of underwater cultural heritage with specific regard to the States that are most interested in this matter such as Italy, Spain, France, US, China and Australia. The present research project intends to evaluate costs and benefits of the possible ratification of the Convention for the protection of underwater cultural heritage by Italy and to ascertain what would be the impact of the implementation of the Convention on domestic law.
Moreover, the present research project is aimed at ascertaining the evolution of the regulation of the issue of the restitution of cultural property in accordance with the new concept of cultural heritage and in the light of the geographic and political changes that affected the international framework, such as the phenomenon of State succession.
Finally, this project intends to analyze whether or not an individual or collective right to cultural identity and diversity exists as means to ensure the effective preservation of cultural heritage.
In the light of the above mentioned issue, this research project is aimed at addressing the matter of the protection of intangible cultural heritage by taking into account the legislative and judicial practice of some relevant States such as Italy, France, Spain, South Africa, Brazil. In this manner, the researchers of this project will be able to define how the 2003 Convention on intangible heritage works and to ascertain the differences between the mechanism and approach of this convention and the one that is adopted by the WHC. <<<

First Results

During the last decades the topic of the international protection of cultural heritage has been characterized by a huge evolution, translated into a wide normative production, in the context of which the fundamental aspect of the coordination among the relevant instruments and the rationalization of the global action in the field has not been adequately deepened. This has led to the development of a legal regime which – globally evaluated – lacks the necessary homogeneity in order to grant effectiveness of the international action in the field, characterized by useless and harmful overlapping of competences and even elements of conflict among the different legal instruments, which eventually lead to the reciprocal interference among them in pursuing their goals. This happens, for example, with respect to the 1972 World Heritage Convention, which is characterized by a State-oriented approach and is based on static and artificially universalized evaluation criteria which openly collide with the holistic and “subjective” philosophy inspiring the recent conventions on intangible cultural heritage and on the diversity of cultural expressions.
With this in mind, the present research will pursue the following goals, strictly interrelated with each other:

1) CONTRIBUTION TO THE EXPANSION OF KNOWLEDGE. The present research is expected to produce an expansion of knowledge on the following relevant aspects: a) the identification and clarification of the modern concept of cultural heritage, taking into account the extension of such concept to intangible cultural traditions and to cultural objects located in areas beyond the national jurisdiction (as in the case of archaeological objects found in the international seabed area); b) the critical re-visitation of the concept of “outstanding universal value” as a condition for the protection under the 1972 World heritage Convention, in light of the great variety of cultural heritage of different nations and communities of the world; c) the identification of the consequences of the recognition of cultural diversity as a "common concern of humanity"; d) the identification of the implications of the international protection of cultural heritage for human rights; e) the assessment of the degree to which principles and norms on the protection of cultural heritage which are contained in multilateral treaties have become part of customary international law.

2) RATIONALIZATION AND OVERCOMING OF THE PROBLEMS RELATING TO EACH OF THE TOPICS INVESTIGATED BY THE RESEARCH, CONSIDERED INDIVIDUALLY. In this respect, with regard to the problems concerning the 1972 World Heritage Convention, the research team will try to assess the strategies that would allow to consolidate the potentialities of the WHC as a fundamental instrument for the safeguarding of cultural heritage to the benefit of future generations. In this sense, on the one hand specific action and measures must be adopted to reinforce the institutional framework from which the system of international cooperation depends. On the other hand, the perspectives for a correct implementation of the WHC at the domestic level need to be explored, in order to make such implementation more effective than in the past. In the context of restitution of cultural properties, the research should allow to identify the appropriate criteria in order to provide feasible procedures to ease and accelerate claims for restitution, when legitimate and appropriate, or to refuse restitution in those scenarios in which it does not appear as the appropriate solution. We will then concentrate on the issue of the settlement of art-related disputes, in order to identify adequate instruments and procedures (including alternative means of dispute resolution). These goals will be pursued with a modern concept of cultural heritage in mind, based not only on the traditional elements of possession, title, and location of cultural property, but will also take into due account the primary goal of safeguarding the common heritage and the common interest of humanity, as well as, at the same time, the interests of the single human communities. As for the topic of cultural diversity and cultural rights, we will try to establish whether it is possible to suppose, for individuals who are repositories of a certain cultural diversity, the existence of a human right to the protection of such a diversity and of the cultural heritage as an expression of it, which is today a really crucial problem in the context of the world’s society, in which, on the one hand, we are witnessing a huge drift of migrants with the consequent problems deriving from the presence of ethnic, religious and linguistic minorities, while, on the other hand, there is the risk of cultural homogenization due to globalization. The main purpose of the research will thus be, in this field, to analyse the existing international instruments and the practice of the relevant bodies in order to prove the existence and the protection of an individual right as just explained. Finally, with respect to underwater cultural heritage and intangible heritage, the research will collect, classify and analyze the pertinent legislation and case law relating to some among the most directly interested countries, evaluating the approach of States with respect to the two relevant UNESCO conventions (adopted, respectively, in 2001 and 2003), as well as the contribution that such instruments may provide for the elaboration and development of the concept of cultural heritage of humankind, trying to clarify, through specific indicators, if and to what extent they show, also for the manner in which they are applied, a collective interest of the international community as a whole that can be added to the interest of single member States.

3) COORDINATION AMONG THE DIFFERENT INTERNATIONAL LEGAL REGIMES CONCERNING THE SAFEGUARDING OF CULTURAL HERITAGE. On the basis of the results achieved in the realization of the previous point, we will proceed to the definition of solutions for the coordination of the relevant legal regimes at the national and international level, trying to offer a contribution for the resolution of the conflicts which presently exist among such regimes and for the rationalization of the international action in the field. In doing this, we will try to foster the development of a common operational concept of cultural heritage applicable to all fields concerned, so as to ensure uniformity of the results achieved in the implementation of the relevant instruments with all co-existing needs contextually in mind. This proposed outcome has very promising perspectives not only with respect to the advancing of the relevant knowledge within the scientific community – especially through clarifying several important aspects on which there are presently many doubts and uncertainties – but also from the point of view of applicative potentialities. Some of the members of the research team – among both the coordinators of the single units and the other participants – are in fact involved in the activity of national (particularly the ministers of culture and foreign affairs) and international (especially UNESCO) competent institutions. For this reason, the results of this research may be translated into proposals and activities which could be implemented by these institutions, thus providing a concrete contribution for the evolution and implementation of the national and international action for the safeguarding of cultural heritage. <<<

Timescale

24 months

National and international background

When, in the early part of the XX Century, the first international rules concerning the protection of cultural heritage emerged in the context of the international legal regime, the perception of its significance by the international community was very far from the “holistic” connotation which has arisen at the threshold of the new millennium. All items of cultural significance were in fact conceived as “properties”, i.e. exclusive pertinence of the territorial state in which they were located. This approach was exactly taken by the 1907 Hague Conventions on the laws and customs of war, which included, inter alia, buildings dedicated to religion, art, science or charitable purposes and historic monuments among the assets with respect to which all necessary steps had to be taken to spare them from the prejudicial effects of sieges and bombardments, provided that they were not used for military purposes. In 1954 the UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflicts was adopted, which contemplated a twofold level of protection of cultural properties (“ordinary protection” and “special protection”) and extended the operational scope of some of its provisions to non-international armed conflicts. Although the 1954 Convention was still centred on the heritage-related proprietary interests of states (as the Convention title evidently suggests), the significance of cultural heritage as transcending the parochial concern of territorial governments was clearly perceived by the drafters of the Convention, as it proclaimed that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind”. The 1954 Convention was accompanied by a Protocol, adopted in the same year, which regulated the circulation and restitution of cultural properties in time of war.
The transit from a state-oriented vision of cultural property to the contemporary conception of cultural heritage as embodying an interest of the human family as a whole took place in the 1970s, when the 1972 UNESCO World Heritage Convention (WHC) was adopted, which changed the history of the international protection of cultural heritage. The WHC represented the consolidation of the intellectual and legal movement aimed at leading cultural heritage to become part of the common heritage of humanity, transcending the narrow concept of “cultural property” as a the object of private rights of predominantly economic nature. The philosophy underlying the WHC consisted in the will to promote a system of international cooperation in the context of which state parties would adhere to the global commitment of preserving the cultural (and natural) treasures located within their territories in the supreme interest of the whole humanity. In the thirty-five years since its adoption, the WHC has proven to be an extremely successful and effective instrument for the protection of immovable cultural property of exceptional interest for humanity. The continual increment in the number of contracting Parties (184 at 25 October 2006) and the enormous proliferation of the number of properties inscribed on the World Heritage List (851 after the 31st Session of the World Heritage Committee, held in New Zealand in 2007) bears witness to this success. In 1992, the system of the WHC was enriched with the inclusion of the category of cultural landscapes, recognizing the fact that many sites cannot be separated into criteria of culture or nature and to the cultural and associative importance attached to landscapes.
Another very sensitive field related to the protection of material cultural heritage concerns the restitution of cultural property, in the context of which the looting of archaeological sites has persisted for centuries to the same extent that the “right to plunder” has been a widespread practice in case of war. The most important international instruments concerning this issue are the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit importation, exportation and transfer of property of cultural heritage and the 1995 UNIDROIT Convention on stolen or illegally exported cultural heritage. Both these instrument aim at addressing the problem of unlawful circulation of movable cultural properties through setting up specific provision for re-establishing the status quo ante by means of facilitating the restitution of the properties concerned to their legitimate owner(s). In particular, the 1995 UNIDROIT Convention tries to make the relevant international action really effective through setting up the obligation of state parties to recognize the relevant law of the country of origin of the stolen or illegally exported cultural property for the purpose of restitution. Nevertheless, only a very few countries (29 at 19 July 2007) have ratified the Convention so far, not including the states were stolen cultural properties are usually sold to private collectors. The issue of the circulation and restitution of cultural property is also the object of two normative instruments adopted at the European Community level. The first (in chronological order) is Regulation 3911/1992 on the exportation of cultural properties, which – aiming at preventing the exportation of the relevant heritage outside the territory of the Community – establishes that no cultural property may be exported outside such territory without an ad hoc authorization of the competent authority of the member state of origin. More focused on restitution is Directive 1993/7, which establishes that the authority of a member state in which a cultural property has been unlawfully transferred from the territory of another member state must order its restitution to the latter, provided that the requesting member satisfies certain conditions (particularly through demonstrating that the requested property belongs to its artistic, historical or archaeological heritage).
A recent subject of interest within the framework of the protection of cultural heritage concerns underwater cultural heritage which has been recently regulated by the 2001 Convention on the Protection of the Underwater Cultural Heritage. This issues firstly raises the problem of identifying clear legal principles concerning the rights and duties of private operators that intend to search for underwater artistic goods. Moreover, specific norms must be address to the States that are involved in the protection of this specific type of cultural heritage such as the State of origin of artistic goods, the coastal State in the waters of which such goods have been found, and the State where these objects are located or directed to. It is moreover self-evident that such an issue leads to a strong interaction, or even overlap, between the specific norms on the protection of underwater heritage and other international legal regimes such as, in particular, the law of the sea.
Cultural heritage does not only entail material goods. Recently, States have adopted international norms dealing with the issue of the protection of cultural identity and diversity. In this field, a prominent role is played by UNESCO, as shown by the recent adoption of three important instruments on these matters: the Universal Declaration on Cultural Diversity (2001), the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) and the Convention on the Protection and Promotion of Diversity of Cultural Expressions (2005). Many other instruments, explicitly listed in a note to the 2001 Declaration, had already been adopted on these issues. However, as UNESCO pointed out, the Convention on the Protection and Promotion of Diversity of Cultural Expressions, despite its comprehensive title, deals only with some particular aspects of cultural diversity. On the one hand, the need to recognize that cultural goods and services convey identity, values and meaning and consequently cannot be considered as mere commodities or consumer goods like any others; on the other hand, the need for States to take all appropriate measures to protect and promote diversity of cultural expressions while ensuring the free flow of ideas and works; lastly, the need to redefine international co-operation, the keystone of the Convention, as each form of creation bears the seeds of a continuing dialogue.
Except for some important cases, this considerable amount of treaties, together with a considerable number of soft law instruments, mostly refers to a notion of “cultural rights” which is only partial. According to this notion, culture is considered as a “spiritual activity” rather than, in an anthropological meaning, a life style which characterizes a group of persons. Consequently, the protection of cultural rights is influenced by this approach. The same partial approach marks some former human rights instruments, for instance the Universal Declaration of Human Rights which in Art. 27 recognizes the right of everyone to take part in cultural life, to enjoy the benefits of scientific progress and its applications and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author. A similar provision is contained in Art. 15 of the International Covenant on Economic, Social and Cultural Rights (1966). The same approach has not been abandoned nowadays; in fact, § 3 of the UNGA Res. 60/167 (Human Rights and Cultural Diversity, 2005), reasserts the same concept in a more concise way.
Thus, the protection of cultural rights as tantamount to the protection of the cultural characteristics of a certain group has to be found elsewhere, in particular in treaties dealing with indigenous peoples and ethnic, linguistic and religious minorities. We can mention, at the universal level, the ILO Indigenous and Tribal Peoples Convention (1989), and, at the regional level, the European Charter for Regional or Minority Languages (1992) and the Framework Convention for the Protection of National Minorities (1995). However, when these conventions appear inadequate or it is necessary to protect the right of the individual as repository of his or her cultural diversity, human rights treaties may be useful. This happens even when these treaties do not contain specific provisions on cultural rights. Some provisions in fact guarantee rights which are different from cultural ones but strictly linked with them, like religious freedom and freedom of expression. This is clearly demonstrated by the case law of the international bodies supervising the implementation of human rights treaties, like the Inter-American Court of Human Rights, the European Court of Human Rights and the Human Rights Committee: some provisions may be interpreted broadly and according to an evolutionary method in order to achieve the effective protection of cultural rights strictly speaking. These are the issues that the present research intends to analyse.
The abovementioned issue is strictly related to the protection of intangible cultural heritage, which has been recently regulated by the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. <<<