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On Defining the Cultural Heritage

Abstract

Examples can be found from ancient times of concern for the protection of cultural artefacts and early legislation to protect monuments and works of art first appeared in Europe in the 15th century. Cultural heritage was first addressed in international law in 1907 and a body of international treaties and texts for its protection has been developed by UNESCO and other intergovernmental organisations since the 1950's. The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict of UNESCO (henceforth the “Hague Convention”) is the earliest of these modern international texts and was developed in great part in response to the destruction and looting of monuments and works of art during the Second World War. It grew out of a feeling that action to prevent their deterioration or destruction was one responsibility of the emerging international world order and an element in reconciliation and the prevention of future conflicts. International law relating to the protection of cultural heritage thus began with comparatively narrow objectives, the protection of cultural property in time of war.

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1. Vide: Trigger B. G.A History of Archaeological Thought (sixth edition, Cambridge University Press, 1994) at pp.2930 and 36.

2. Prott L. V. and O'Keefe P. J.Law and the Cultural Heritage volume I (Professional Books, 1984) at p.34.

3. 1907 Hague Regulations concerning the Law and Customs of Wax on Land protect “historic monuments” from sieges and bombardments.

4. 249 U.N.T.S. 24.

5. Recommendation on International Principles Applicable to Archaeological Excavations, UNESCO 5 Dec. 1956.

6. Recommendation concerning the most Effective Means of Rendering Museums Accessible to Everyone, UNESCO 14 Dec. 1960.

7. Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites, UNESCO 11 Dec. 1962.

8. Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, UNESCO 19 Nov. 1968.

9. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 Nov. 1970 [823 U.N.T.S. 231].

10. Convention concerning the Protection of the World Cultural and Natural Heritage, 16 Nov. 1972 [11 I.L.M. 1358].

11. M'Bow, then Director-General of UNESCO, voiced such sentiments in A plea for the Return of an Irreplaceable Cultural heritage to those who Created It delivered in 1979: “The men and women of these [despoiled] countries have the right to recover these cultural assets which are part of their being… The return of a work of art to the country which created it enables a people to recover part of its memory and identity…’, UNESCO Doc.SHC-76/CONF.615.5 (1979).

12. Prott and O'Keefe, op. cit supra n.2, at p.8.

13. Prott L. V.Problems of Private International Law for the Protection of the Cultural Heritage”, Recueil des Cours vol. V (1989) pp.224317 at p.224.

14. Recommendation on the Safeguarding of Traditional Culture and Folklore, UNESCO 15 Nov. 1989. The Executive Council of UNESCO has also established a programme for the identification “masterpieces of the intangible and oral heritage of mankind” for their protection [UNESCO Doc.155/EX 15, Paris 25 Aug. 1998].

15. 1989 Recommendation, op. cit. supra.

16. Lowenthal D.The Heritage Crusade and the Spoils of History (Viking, 1997) at p.227.

17. Prott L. V. “International Standards for Cultural Heritage,” in UNESCO World Culture Report (Unesco publishing, Paris, 1998) at pp.222236.

18. Vide supra n.14 for details.

19. Prott, op. cit supra n.17, at p.228 notes: “The precise legal implications of terms such as ‘the common cultural heritage’, ‘world cultural heritage’ and similar phrases are not yet clear, although their use in legal instruments makes it imperative to explore the subject.”

20. Cited, supra n.4 and n.9.

21. Recommendation for the Protection of Movable Cultural Property, UNESCO 28 Nov. 1978.

22. Prott L. V. and O'Keefe P. J.‘Cultural Heritage’ or ‘Cultural Property’?” 1:2 I.J.C.P. (1992) pp.307320 at pp.309–312 consider traditional property law values in the context of cultural heritage law, making reference to points such as: the protection of the rights of the possessor, the important function of “property” and “ownership” in Western legal tradition; and the dangers of commoditisation of cultural heritage.

23. Such as French Law No.89–874 of 1 Dec 1989 on Maritime Cultural Property which allows the State to intervene for the preservation of archaeological wrecks if the identified owner fails to do so themself (Art. 11).

24. Vide: Merryman J. H.A Licit International Trade in Cultural Objects”, 4 I.J.C.P. (1995) pp.1360; Coggins C.A Licit International Trade in Ancient Art: Let There be Light!” 4 I.J.C.P. (1995) pp.6180; and Wiehe H. K.Licit International Traffic in Cultural Objects for Art's Sake” 4 I.J.C.P. (1995) pp.8190.

25. Prott, op. cit. supra n.17.

26. Cited supra n.8.

27. 1972 Convention cited supra n.10. Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, UNESCO 16 Nov. 1972.

28. As the 1962 UNESCO Recommendation cited supra n.7 asserts, landscapes “represent a powerful physical, moral and spiritual regenerating influence, while at the same time contributing to the artistic and cultural life of peoples…”.

29. Prott and O'Keefe, op. cit. supra n.22.

30. Sider G. M.Culture and Class in Anthropology and History (Cambridge University Press, 1986) at p.6.

31. Cited supra n.10.

32. Cited supra n.8.

33. Lowenthal, op. cit. supra n.16, at p.228.

34. Joyner C.Legal Implications of the Concept of the Common Heritage of Mankind”, 35 I.C.L.Q. (1986) pp.190199 at 192. The five elements listed are that: the areas are not subject to appropriation of any kind and sovereignty is absent; all people are expected to share in the management of the area and States act only as agents of “all mankind”; resources should only be exploited under the auspices of a common space regime mandate and any economic benefits should be shared internationally; uses of the area should be for exclusively peaceful purposes; and scientific research should be freely and openly permissible and for the benefit of all peoples. See also: Kiss A-C.La notion du patrimoine commun de I'humanite,” Recueil des Cours (1992 –II) pp.99256.

35. UN Law of the Sea Convention (1982) [21 I.L.M. 1261—Art.136 states; “The [deep seabed] Area and its resources are the common heritage of mankind’ and Art.137 proceeds to set out the legal status of the Area and its resources.

36. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies [UN Doc.A/AC105/L.113/Add.4 (1979)] entered into force on 11 June 1984 [18 I.L.M. 1434], known as the “Moon Treaty”. Art.ll(l) reads: “The moon and its natural resources are the common heritage of mankind.”

37. 402 U.N.T.S. 71,1 Dec. 1959; Preamble notes that, “it is in the interests of all mankind that Antarctic shall continue forever to be used exclusively for peaceful purposes…”.

38. Vide: Larschan B. and Brennan B.The Common Heritage of Mankind Principle in International Law”, 21:2 Columbia Journal of Transnational Law (1983) pp.305337 at p.334; and Francioni F. (ed.) International Environmental Law for Antarctica (Giuffre Editore, Milan, 1992).

39. Vide supra at n.16.

40. Art.149 reads: “All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.”

41. UN Convention on Biodiversity, 22 June 1992 [31 I.L.M. 818].

42. Bowman M. and Redgwell C.International Law and the Conservation of Biological Diversity (Kluwer Law, London, 1996) at p.40.

43. As the 1982 LOSC (cited supra n.35) does for deep seabed mineral deposits, for example.

44. Cultural heritage shares many of the characteristics of biological resources, such as its non-renewable nature and the importance given to safeguarding cultural diversity.

45. Cited supra n.10.

46. Art.6(1). This has been criticised as a compromise that limits the effectiveness of the Convention although it is a necessary one to ensure a sufficient number of signatory States.

47. Kiss, op. cit. supra n.34, at p.171: “Elle consacre le principe que certains biens se trouvant sous la souverainte d'Etats ont on interest qui concerne tout l'humanite et que, de la fait, its doivent etre conserves par les soins de la communaute internationale tout entiere.”

48. Simmonds J.UNESCO World Heritage Convention”, 23 Art, Antiquity and Law (1997) pp. 251281 at p.253 makes the point that: “[t]he Convention in no way ‘internationalises’ outstanding property, but rather emphasis that the primary responsibility for it lies with international co-operation and assistance in a supplementary role. The more radical approach would have established a distinct and novel international heritage, administered by an international agency.”

49. Constitution of the United Nations Educational, Scientific and Cultural Organisation (1945) [4 U.N.T.S. 275].

50. For example, Bouchenaki, M. notes in “The world heritage” 3 European Heritage (1995) that: “This Convention, adopted in Paris in 1972, is a real breakthrough in that it reflects the international community's awakening of (sic) two crucial factors: firstly, the connection between culture and nature and, secondly, the need for a permanent protective framework covering both legal, administrative and financial aspects.”

51. Vide. Sutherland J. et al. “Emerging Legal Standards for Comprehensive Rights”, 27/1 Environmental Policy & Law (1997) at pp.1330.

52. Enhancement of the Cultural Heritage of Central and Eastern Europe (Strasbourg, 1996), Doc, MPC–4(96)5 at p.3.

53 Vide supra n.14. An international conference on A Global Assessment of The 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore Local Empowerment and International Cooperation was jointly held by the Smithsonian Institution and UNESCO in Washington D.C., 27–30 June 1999 in order to assess the 1989 Recommendation and UNESCO's other work in the area of intangible cultural heritage.

54. Vide supra n.52.

55. Following adoption of the 1985 Convention on the Architectural Heritage of Europe [ETS no.121].

56. Vienna Declaration of the Council of Europe Summit, Vienna, 9 Oct. 1993.

57. IVth European Conference of Ministers responsible for the Cultural Heritage, Helsinki, 30–31 May 1995, Docs. MPC–4(96)l rev. to MPC–4(96)15.

58. The Cultural Heritage—an Economic and Social Challenge (produced as a General text of the conference) at p.5.

59. Cultural Heritage—a Key to the Future (Strasbourg, 1996) Doc. MPC–4(96)7 p.l.

60. For example, current work by a diplomatic conference established by UNESCO to review the 1954 Hague Convention is illustrative of a recognition that the existing law does not take sufficient account of the motivation behind the destruction of cultural heritage in time of armed conflict which relates to its role in the construction of identity.

61. Aspects of Heritage and Education (Strasbourg, 1996), Doc, MPC–4(96)15 p.3.

62. Williams R., Culture (Fontana, Glasgow, 1982) p. 187.

63. Vide Smith A. D.Nations and Nationalism in a Global Era (Polity Press, 1998) pp.121143 for a critique of attempts at creating a European “super-state” and European identity.

64. Cited supra n.10.

65. Cited supra n.9.

66. Universal Declaration of the Rights of Peoples (Algiers, 1976) cited in Prott L. V. “Cultural Rights and Peoples' Rights in International Law” in Crawford J.The Rights of Peoples (Clarendon Press, Oxford, 1988) at pp.93106.

67. Vide supra n.34.

68. Final Declaration of the 1995 Helsinki Conference of the Council of Europe vide supra n.31, point I.C. at p.2.

69. Democratie, droits de I'homme, minorites: les aspects educatifs at culturels (Strasbourg, 1993) Doc.DECS/SE/DHDM(93)6.

70. Preliminary Draft Protocol to the European Convention for the Protection of Human Rights and Freedoms Concerning the Recognition of Cultural Rights—Concise Summary, prepared by Human Rights Directorate, Council of Europe (Strasbourg, 1992) at p.2.

71. Kamenka E.Human Rights and Peoples' Rights” in Crawford, op. cit supra n.67, pp.127139 at p.134.

72. The Preamble to the Universal Declaration of Human Rights (1948) [U.N.G.A. Res.127A (III); UN Doc. A/811] refers to “economic, social and cultural rights” and, in 1966, the UN adopted the International Covenant on Economic, Social and Cultural Rights …993 U.N.T.S. 3….

73. Prott, op. cit, supra n.67, at p.95.

74. In recognition of this is the publication of UNESCO Cultural Rights and Wrongs (Unesco Publishing, Paris, 1998) which explores cultural rights, including their relationship with the cultural heritage, to mark the 50th anniversary of the 1948 Universal Declaration of Human Rights.

75. ICCPR [999 U.N.T.S. 171] and IESCR [993 U.N.T.S. 3]. Vide. Sohn L.Guide to Interpretation of the International Covenant on Economic, Social and Cultural Rights (Transnational Publishing, New York, 1993); and Craven M.The International Covenant on Economic Social and Cultural Rights (Clarendon Press, Oxford, 1995).

76. Non-governmental human rights organisations, for example, work almost exclusively in the field of civil and political rights, although specialist agencies of the UN (such as the FAO and WHO) deal with economic and social rights while UNESCO deals with cultural rights.

77. Such as those dealing with non-discrimination, the rights of minorities, and the freedom of expression, religion and association. Vide: Steiner H. J. and Alston P.International Human Rights in Context—Law, Politics and Morals (Oxford University Press, 1996) at p.264.

78. Working Paper by the Secretariat in UNESCO Cultural Rights as Human Rights (Unesco, Paris, 1977) pp.914 at p.9.

79. Vide: Stavenhagen R. “Cultural Rights and Universal Human Rights”, in Eide A., Krause C. and Rosas A. (eds.) Economic, Social and Cultural Rights: a Textbook (Martinus Nijhoff, Dordrecht, 1995) pp.6377 at p.65.

80. Prott, op. cit. supra n.74, at pp.96–97 lists eleven cultural rights identified in existing human rights instruments. Six of these are relevant to the cultural heritage and are people'rights.

81. Brownlie I.The Rights of Peoples in Modern International Law”, in Crawford, op. cit. supra n.54, pp.116 at p.4.

82. Crawford J.Some Conclusions” in Crawford, op. cit. supra n.67, pp.159175 at p.170 states that: “What constitutes a people may be different for the purposes of different rights. For example, the right to existence (incorporating the right not to be subjected to genocide and the right not to be deprived of one's subsistence) is plainly applicable to a very broad category of groups, considerably more so than the principle of self-determination, or any view of that principle.”

83. Prott, op. cit supra n.67, at p.97.

84. Vide: Rich R.The Right to Development as an Emerging Human Right”, 23 Va J.I.L. (1982/1983) at p.287.

85. Vide: Boyle A. E. “The Role of Human Rights in the Protection of the Environment”, in Boyle A. E. and Anderson M. R.Human Rights Approaches to Environmental Protection (Clarendon Press, Oxford, 1996) pp.4365.

86. Vide: Vasak K. “Pour une troisieme generation des droits de I'homme”, in Swinarski C. (ed.) Studies and Essays in International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (1984); and Alston P.A third generation of solidarity rights: progressive development or obfustication of human rights law?” 29 N.I.L.R. (1982) pp.307322.

87. Crawford, op. cit. supra n.82, at p.163 notes that activists and NGO's in Western countries “had a range of concerns not met by the traditional and individual rights. These concerns extended to the environment, to peace… to cultural rights, and to the rights of various oppressed groups which did not fall within the orthodox framework of self-determination. It was from this diverse combination—coalition would be the wrong word—that claims to a ‘third generation’ of peoples' rights emerged.”

88. There are many obvious similarities between the protection of the environment and the cultural heritage, such as the idea that both are a finite and non-renewable resource to be preserved for future generations.

89. Boyle, op. civ supra n.85.

90. African Charter on Human Rights and Peoples' Rights (“Banjul Charter”), adopted by the Organisation of African Unity (OAU) in 1981 [21 I.L.M. 58].

91. Cited supra n. 10.

92. Existing formulations of minority rights (such as Art.27 of the ICCPR) only protect the rights of individuals who are members of a minority group and not the collective rights of the group itself. There has thus been pressure for collective rights of ethnic minorities to ensure the future survival of the group, its culture and cultural identity.

93. International Labour Organisation Convention concerning Indigenous and Tribal Peoples (1989) [28 I.L.M. 1382].

94. Human Rights and Cultural Policies in a Changing Europe: the Right to Participate in Cultural Life—Final Statement (1993) of the European Round Table on Human Rights and Cultural Policies, Helsinki 30 Apr.–2 May 1993.

95. Preliminary Draft Protocol [to the E.C.H.R.] (Freibourg, 1994), the “Freibourg Protocol”.

96. Recommendation 1201 on an additional protocol on the rights of national minorities to the European Convention on Human Rights, text adopted by the Parliamentary Assembly of the Council of Europe on 1 Feb. 1993 (22nd sitting).

97. Vide supra n.83.

98. Vide inter alia: Jones S.The Archaeology of Ethnicity: constructing identities in the past and present. (Routledge, 1997); Friedman J.Cultural Identity and Global Process (Sage Publications, London, 1994); and Shennan S. (ed.) Archaeological Approaches to Cultural Identity (Routledge, London, 1994).

99. Pinkerton L.The Native American Graves Protection and Repatriation Act: an introduction”, 2 I.J.C.P. (1993) at pp.297306.

100. Vide: Layton R. (ed.) Who Needs the Past? Indigenous Values and Archaeology (Unwin Hyman, London, 1989).

101. Recent cases include the decision by Edinburgh University to return a collection of shrunken heads to the Maori community in New Zealand and the return of the native American “ghost-dancing” shirt from Kelvingrove Museum, Glasgow.

102. Code of the International Council of Museums (ICOM) adopted at Buenos Aires in 1986.

103. Code of Conduct for Museum Professionals, Museums Association, adopted in 1977 and amended in 1987.

104. Knoop R. R.The Role of the Cultural Heritage Organisations”, 3 European Heritage (1995) pp.2325 at p.23.

105. The choice of the Bronze Age in Europe as the subject for an awareness raising campaign on archaeology within the Council of Europe in 1993 illustrates the political character of such decisions—it was seen as one of the few periods in the history or prehistory of the “Greater Europe” when it was culturally inter-connected without the controversy of imperialism and conquest.

106. Vienna Declaration (1993) cited supra n.57.

107. Cited supra n.9.

* University of Glasgow.

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