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 >>>

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 >>>

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 >>>

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 >>>