Cultural property law

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CULTURAL PROPERTY LAW

 

MEANING

 

Cultural property law is the body of law that relates to protecting the buildings, artifacts and other items that are significant to a people and culture. Cultural property is the collection of unique real and personal property that’s important to a culture. The field of cultural property law seeks to protect cultural items that are important to a society or group. Cultural property may include any of the following:

Cultural property law
AuthorPrachi Palsanawala
ASSN36428
Published on30/01/2019
Co-Assn47195
EditorFaiyaz Khalid
Last Updates02/02/2019

Ancient buildings

Cultural buildings like museums and performing arts centers

Significant sites like burial grounds and historic sites

Historic buildings like old houses

Ancient remains

Religious and ceremonial items

Other ancient relics.

 

DEFINATION

 

Article 1 of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 defines cultural property as follows:

 

"The term 'cultural property' shall cover, irrespective of origin or ownership:

(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);

(c) Centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as 'centers containing monuments'."

 

INTRODUCTION

 

Cultural property could be described as a record of the genius of human beings. The legacy of artefacts, antiquities, sacred places as rituals, traditions and living expressions could be seen as unintelligible foot print left behind for the next generations to mark our path through this world. It’s unimaginable to separate a people’s cultural property from the people itself and their rights. At the present there are many complex legal cases on cultural property waiting to be settled. These cases are a judicial challenge for all stakeholders.

 

 Cultural property Law is broad topic that focus on the legal aspects of cultural property. Cultural property law is concerned with both movable and immovable property of artistic, cultural, religious and historic interest. This extends from archaeology and the protection of ancient monuments to national heritage and public and private collections to the art trade and contemporary art. 'Art law' is an interdisciplinary field involving tax (individual estates and charities), commercial transactions, intellectual property in all aspects and private and public international law. The field of cultural property law addresses the creation, ownership, and transactions involving works of art, immovable historic structures, and cultural objects. It includes the areas of contracts, trust and estate law, intellectual property rights, historic preservation, public and private international law, and litigation.

 

SOURCES

 

  • Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments
  • Convention for the Protection of the World Cultural and Natural Heritage
  • Convention for the Safeguarding of the Intangible Cultural Heritage UNESCO
  • Convention on the Protection and Promotion of the Diversity of Cultural Expressions
  • Convention on the Protection of the Underwater Cultural Heritage (2002)
  • Trade
  • Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property
  • UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects
  • War
  • Convention for the Protection of Cultural Property in the Event of Armed Conflict 
  • Protocol for the Protection of Cultural Property in the Event of Armed Conflict 
  • Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

 

SCOPE

 

One fundamental question about cultural property concerns who has a reasonable interest in it. Only members of a particular culture? Members of a nation that many cultural members call home? All of humanity? Insofar as legal institutions of property are meant to protect our moral property interests, an answer to this question has the potential to in turn shape legal norms governing cultural property. An influential approach in the cultural property literature is to distinguish between cultural nationalist and cultural internationalist positions concerning how broadly a reasonable interest in cultural property should be construed.

 

According to cultural internationalists, each particular culture contributes to an overarching human culture, and thus everyone has an interest in cultural property. Proponents of cultural internationalism typically uses claims about the universal value of cultural property to argue against nationalist restrictions on its export and sale, as well as against many repatriation claims. This position finds support in various aspects of international law and policy, including the Hague Convention of 1954 and the criterion of “outstanding universal value” in the 1972 UNESCO World Heritage Convention. These claims about the universal evaluative scope of cultural property are often predicated on a metaphysical claim about the constitutive relationship between particular cultures and Human Culture: that it is precisely because each culture is a component of Human Culture that each individual culture therefore has a universal value in which everyone has a reasonable interest. However, even independently of the strength of this claim, one might think that individual cultures can secure a universal value in other ways. For instance, according to one line of argument, there are a diversity of grounds for valuing a particular culture such that most everyone could have a reasonable interest in a particular culture.

 

According to the cultural nationalist position, on the other hand, nations have a “special interest” in their cultural property that “implies the attribution of national character to objects”. This position also has support in international law and policy, in particular, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Proponents of cultural nationalism typically use claims about the special national character of cultural heritage to argue in favour of nationalist retention policies that restrict or limit the export or sale of cultural heritage. It is worth noting that the dichotomy between cultural nationalists and internationalists faces a significant limitation in that it does not leave an obvious place for the claims of intra-national cultural groups such as Native American tribes. Although cultural nationalism might in principle account for the claims of sovereign indigenous nations, it has in practice focused on the interests of independent nation-states. Moreover, although indigenous cultural property claims have received increasing attention in both policy and scholarship, appeals to nationalist and internationalist claims remain common in practice, and indeed, the interests and claims of intra-national groups can be in tension with the nationalist identity-building that nation-states often promote through cultural property.

 

One way to read the dispute between cultural nationalists and internationalists is as a dispute over which kind of value-claim should be prioritized: a proponent of each position could recognize the value claims made by both camps, but think that their own should trump the other. Alternatively, one might think that claims about universal human value call into question the applicability of some of the traditional bundle of property rights. For instance, one might argue that the universal value of cultural heritage entails that it should not be excludable in the manner that property typically is Or, in a similar vein, one might argue that we should prioritize the preservation of such objects to the exclusion of any claims to holding them as property. This is a move toward a “stewardship” as opposed to “ownership” model for thinking about cultural property, which is subject to its own set of objections.

 

NATURE

 

Cultural property offers a significant yet ambiguous example of the development of global Regulatory regimes beyond the State. On the one hand, traditional international law instruments do not seem to ensure an adequate level of protection for cultural property; securing

Such protection requires procedures, norms, and standards produced by global institutions,

Both public (such as UNESCO) and private (such as the International Council of Museums).

On the other hand, a comprehensive global regulatory regime to complement the law of cultural property is still to be achieved. Instead, more regimes are being established, depending on the kind of properties and public interests at stake. Moreover, the huge cultural bias that dominates the debate about cultural property accentuates the “clash of civilizations” that already underlies the debate about global governance. The analysis of the relationship between globalization and cultural property, therefore, sheds light on broader global governance trends and helps highlight the points of weakness and strength in the adoption of administrative law techniques at the global level.

In the past few decades, cultural property has been increasing in economic and political relevance worldwide, and its global dimension has been constantly growing.

This is mostly because cultural property represents the physical evidence of a culture and civilization that are not necessarily restricted to a specific national identity. This property bears universal values that must be preserved and made or kept accessible to the public, and this has significant legal implications. As a matter of fact, the term “cultural property” itself was first used and defined in an official document at the international level; it was in 1954, in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

Increased globalization of cultural property is illustrated through a wide range of examples and by data. For instance, cultural sites included in the UNESCO WorldHeritage List currently number 725, as compared with 478 in 1999. The conditionsand procedures for listing these sites have been established not by states but by an

International organization, UNESCO, which has adopted the Operational Guidelines for the Implementation of the World Heritage Convention.

In addition, the globalization of markets has triggered a huge increase in commercial transactions related to cultural property. This has raised several questions concerning illicit trade and the restitution of artworks or cultural relics to their countries of origin; a prime example of these problems is the recent Italian exhibition “Nostoi:

Rescued Masterpieces,” which opened in the Quirinale Palace, in Rome, in December 2007. The exhibition collected 1,168 relics that had been illegally exported from Italy and finally returned by the institutions in which they had been displayed (mostly American, such as the Getty Museum of Los Angeles and the Metropolitan Museum of New York). Closing in Rome in March 2008, the exhibition travelled to Athens, to the new museum of the Acropolis; however, it did not include the most strongly desired and least likely restitution, the friezes of the Parthenon. These remain conserved in the British Museum of London.6 In spite of that, this exhibition provided an example of best practices in the repatriation of stolen relics or artwork; statistics show that in the United States the amount of art trafficking is estimated at $6 billion annually, behind only the drug and arms trades.

 

KINDS/TYPES

 

Let's begin with "culture" — which represents the accumulated knowledge, beliefs, artistic achievements, laws and customs that represent human civilization at its best.

 

If culture survives from one generation to the next, it is inherited; hence the term "cultural heritage".

 

The tangible evidence or expression of cultural heritage is cultural property — an inherently valuable, non-renewable resource that includes, but is not limited to:

 

• Works of art, historic and ancient buildings or their ruins;

• Archaeological sites and artifacts (found on the land) and shipwrecks (Underwater archaeological sites);

• Museums, library collections and archives; and

• Sacred places, such as churches, mosques, temples, shrines, sanctuaries and cemeteries. The value of cultural property, whether archaeological or ethnological in nature, is immeasurable. Such items often constitute the very essence of a society and convey important information concerning a people's origin, history, and traditional setting. The Importance and popularity of such items regrettably makes them targets of theft, encourages clandestine looting of archaeological property considered special and worthy of protection? There sites, and results in their illegal export and import.

The term 'cultural property' shall cover, irrespective of origin or ownership:

 

(a) movable or immovable property of great importance to the cultural property of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

 

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a);

 

(c) Centers containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as 'centres containing monuments'.

 

 

BRANCHES

 

Cultural heritage management (CHM) is the vocation and practice of managing cultural heritage. It is a branch of cultural resources management (CRM), although it also draws on the practices of cultural conservation, restoration, museology, archaeology, history and architecture. While the term cultural heritage is generally used in Europe, in the USA the term cultural resources is in more general use specifically referring to cultural heritage resources. CHM has traditionally been concerned with the identification, interpretation, maintenance, and preservation of significant cultural sites and physical heritage assets, although intangible aspects of heritage, such as traditional skills, cultures and languages are also considered. The subject typically receives most attention, and resources, in the face of threat, where the focus is often upon rescue or salvage archaeology. Possible threats include urban development, large-scale agriculture, mining activity, looting, erosion or unsustainable visitor numbers. The public face of CHM, and a significant source of income to support continued management of heritage, is the interpretation and presentation to the public, where it is an important aspect of tourism. Communicating with government and the public is therefore a key competence.

CHM has its roots in the rescue archaeology and urban archaeology undertaken throughout North America and Europe in the years surrounding World War II and the succeeding decades. Salvage projects were hasty attempts to identify and rescue archaeological remains before they were destroyed to make room for large public-works projects or other construction. In the early days of salvage archaeology, it was nearly unheard-of for a project to be delayed because of the presence of even the most fascinating cultural sites, so it behooved the salvage archaeologists to work as fast as possible. Although many sites were lost, much data was saved for posterity through these salvage efforts.

In more recent decades, legislation has been passed that emphasizes the identification and protection of cultural sites, especially those on public lands. In the United States, the most notable of these laws remains the National Historic Preservation Act. The administration of President Lyndon B. Johnson was most instrumental in passing and developing this legislation, although it has been extended and elaborated upon since. These laws make it a crime to develop any federal lands without conducting a cultural resources survey in order to identify and assess any cultural sites that may be affected. In the United Kingdom, PPG 16 has been instrumental in improving the management of historic sites in the face of development.

The subject has developed from an emphasis on preservation of material culture (by record if not by physical remains), to encompass the broader concepts of culture, which are inseparable from the local communities. Modern thinking takes the view that cultural heritage belongs to the people, therefore access to cultural heritage has to be ensured. The public reaction to the proposed destruction of the Newport ship shows the importance of heritage to local communities.

The legislation of individual nations is often based upon ratification of UNESCO conventions, such as the 1972 World Heritage Convention, the Valletta treaty and the 2001 Convention on the Protection of the Underwater Cultural Heritage. Specific legislation is sometimes needed to ensure the appropriate protection of individual sites recognized as World Heritage Sites.

 

HISTORY

 

The concept of “cultural property” (biens culturels, Beni culturali) was initially introduced in International Law and eventually adopted by State national legislation, thus posing the question of its definition.

The expression “cultural property” first appeared in the text of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Art. 1), then was repeated in the following Conventions, from the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (art.1) to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (art.2).

Immovable cultural property can form part of the World Cultural Heritage when it meets the 1972 Convention on the World Heritage requirements.

A definition for movable property is provided for in Art. 2 of the 1995 UNIDROIT Conv.: << cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex to this Convention >>.

The Annex contains a list by categories of goods to which the treaty rules apply. This list follows the one set forth by Art. 1 of the 1970 UNESCO Convention.

It is not a closed list and doesn’t refer to the monetary value of the goods, moreover it doesn’t correspond exactly to the list of categories of cultural goods described in the Italian Code of cultural property (Art. 10 and Annex to the Code).

Recently the concept has evolved, thanks to two new instruments redacted by UNESCO: the 2003 Convention on the Safeguarding of Intangible Cultural Heritage and the 2005 Convention on the Protection and Promotion on the Diversity of Cultural Expressions, which enlarged the notion of protected “cultural property” far beyond the traditional concept, due to the fact that their scope is to safeguard the living and mainly intangible cultural expressions which weren’t taken into account by the previous conventions.

Then there is the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage which qualifies as cultural property: “all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years”, described in the non-exhaustive list of art. 1.

To tell the truth, the definition of cultural property outlined in the above mentioned international conventions is somewhat tautological.

The idea that an item must be of a “cultural” importance in order to be encompassed by the international treaty law is present in almost all the conventions dealing with this issue, and sometimes qualified by other specifications, such as great, significant or particular importance.

Due to the broadness of the definition, the objective scope of treaty law protection can encompass not only universally recognized masterpieces but also all those items that represent “la testimonianza material avente valore di civiltà” (material testimony of epochs and civilizations), as stated in 1966 by the former Italian legislator in the famous Franceschini Commission’s declaration XXXIX.

 

IN DIFFERENT COUNTRIES

 

In 2003, UNESCO devised an international solution to combat the illicit traffic of cultural property: the UNESCO Database of National Cultural Heritage Laws.

By compiling on the Internet the national laws of its Member States, UNESCO offers all stakeholders involved (Governments, customs officials, art dealers, organizations, lawyers, buyers and so forth) a complete and easily accessible source of information. In the event of a legal question about the origin of an object (which may have been stolen, pillaged, or illegally exported, imported or acquired), it is useful to have rapid access to the relevant national laws.

The UNESCO Database of National Cultural Heritage Laws allows the following to be consulted:

National laws currently in force related to the protection of the cultural heritage in general import/export certificates for cultural property (available on request) official or unofficial translations of national laws and certificates contact details for the national authorities responsible for the protection of the cultural heritage

Addresses of the official national websites dedicated to the protection of the cultural heritage

The database offers access to national legislation relating to the cultural heritage in general, in other words the laws on the following main categories of heritage

 

1. Cultural heritage: Tangible cultural heritage: immovable (monuments, archaeological sites), movable (paintings, coins, archaeological objects), underwater (shipwrecks, underwater cities)

Intangible cultural heritage: oral traditions, performing arts, rituals

2. Natural heritage: natural sites, physical, biological or geological formations

 

One of the historic problems betweennations has been controlling individuals who take, either as the reward of superior excavation or archaeological technology, or as the spoils of war, the cultural property of other countries. Frequently, these nations may not realize until much later that part of their cultural heritage has been exported.

When these countries demand the return of their property, it has already passed through many hands and is often owned by respected museums which have paid large sums of money to acquire the piece. The museum then finds itself in the position of having to decide whether to return a piece, which it has owned and maintained for years, or face alawsuit. Perhaps the most famous instance ofthe export of cultural property of a foreign country is Lord Elgin’s removal, with the approval of the Turkish authorities, of the Marbles from the Parthenon in Athens. The British Museum acquired the Marbles in 1816, and, since independence, the Greek government has repeatedly demanded their return-yet the Marbles remain in Britain.

This situation is not limited to eras of conquest. Most recent is the demand by the government of Thailand that the Art Institute of Chicago return a 9OO-year-old Thai sculpture, allegedly stolen from a temple sometimes during the Vietnam War. The Art Institute did claim that it acquired the sculpture in good faith over twenty years ago and that it was the responsibility of the Thai government to control its exports, but has subsequently agreed to its return.

This scenario is played out repeatedly between different countries over how to control the international movement of art and cultural property, and how to balance the rights of a country to recover its illegally exported or stolen cultural property against the legitimate interest of museums which have legally acquired and preserved the piece for a significant length of time. From the perspective of the less fortunate country, an important piece of its cultural heritage has dical sources and history of art; ‘Software Development’ included expert systems and information systems, computer graphics, concordances, thesauri and indexing, interactive data entry and display, database technology and source-orientated data processing; ‘Data Analysis’ included sessions on dynamic analysis, scaling and clustering, simulation, modelling and quasi-experimental design, content analysis and linguistic analysis, incomplete data and analysis of non-metric dependent variables.

The theme of ‘CA1 in the Historical and Social Sciences’ was treated through sessions on the principles and practice of computeraided instruction, schools, higher education and CAI, CA1 in teaching languages, andpedagogical aspects. The theme of ‘Infrastructure’ was divided into sessions on data archives and data networks, infrastructure for data based historical social research, data

Protection and data access, database resources, directories, bibliographical networks and libraries, the historical workstation and study description. A wide range of demonstrations-felt by many to be the most stimulating feature of the conference-complemented the formal programme, as did workshops on standardization and on ‘Crime and the Industrial Revolution’ (held by INTERQUANT) and the formal meetings of the participating bodies.

Both on paper and in the flesh the Cologne Computer Conference was a highly stimulating and successful event. The cooperation which it embodied is a promising sign for the future. The conference’s true value will perhaps best be appreciated, and its content best sampled, once the publications are available. In its comprehensiveness it will undoubtedly be seen as a future landmark in computing for the social sciences and the database-oriented humanities.

 

REFERENCES/CITATION

 

 

 

 

 

 

 

See also

  1. Cultural heritage introduction and it’s protection
  2. Cultural heritage laws
  3. Convention of offences relating to cultural heritage
  4. European cultural convention
  5. UNESCO convention of means of prohibited of illegal export and import of and transport of cultural property
  6. Protection of artistic and scientific institution and and historic monument
  7. Destruction and conservation of cultural property
  8. The theft of culture and extinction of archaeology
  9. Conserving_heritage_:_cultural_and_intellectual_property_rights
  10. New art laws in India
  11. Legal aspects of heritage laws
  12. Archaeological thefts
  13. Art thefts
  14. Art treasures in war
  15. Art--Collectors and collecting
  16. Artists' contracts
  17. Artists--Legal status, laws, etc
  18. Collectors and collecting
  19. Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954)
  20. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (1970)
  21. Copyright--Art
  22. Copyright--Photographs
  23. Cultural property--Protection
  24. Cultural property--Protection (International law)
  25. Cultural property--Protection--Law and legislation
  26. Illustrators--Legal status, laws, etc.
  27. International Centre for the Study of the Preservation and Restoration of Cultural Property. General Assembly (8th)
  28. Law and art
  29. Law and art--United States
  30. Performing arts--Law and legislation
  31. Photography--Law and legislation
  32. International foundation for art law and cultural property laws
  33. Repatriation and looting of property laws
  34. Treasure trove
  35. Anthropology
  36. Indigenous people
  37. Heritage in the event of armed conflict
  38. Committed for cultural heritage preservation
  39. Illicit traffic of cultural property
  40. UNESCO convention on cultural property
  41. Prevention of underwater cultural heritage
  42. Ancient monuments preservation act 1904
  43. Ancient buildings
  44. Cultural buildings like museums and performing arts centers
  45. Significant sites like burial grounds and historic sites
  46. Historic buildings like old houses
  47. Ancient remains
  48. Religious and ceremonial items
  49. Other ancient relics
  50. The Roerich Pact
  51. Major Treaties and Laws
  52. Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
  53. The Native American Graves Protection and Repatriation Act
  54. American Resources Protection Act
  55. Theft of Government Property Act
  56. National Stolen Property Act
  57. Hobbs Act
  58. Obstruction of Justice laws
  59. Perjury laws
  60. Challenges in the Protection of Cultural Property
  61. An Example of Jurisdictional Challenges – the Wyatt Yeager Case
  62. Preserving Cultural Property
  63. National acts and regulations
  64. Cultural Property Export and Import Act
  65. Cultural Property Export Regulations
  66. Canadian Cultural Property Export Control List
  67. Types of cultural property and it’s definition
  68. The Lieber Code
  69. Ancient monuments preservation act
  70. Indian treasury trove act
  71. Padmanabam swamy temple
  72. smuggling of India’s antiques
  73. India's_heritage_buildings:_Monumental_neglect
  74. ASI castigated
  75. National monuments authority
  76. Heritage by laws
  77. Grading and restoring of heritage buildings
  78. Rules on import and export of antiques
  79. Reasons for deeming Rama Setu as World Heritage Monument
  80. World_Heritage_monuments:_22_cultural_properties_and_5_natural_properties_in_India
  81. Marine Park in the Philippines
  82. Great Barrier Reef in Australia
  83. Digital_Preservation_of_Indian_Cultural_Heritage:_Issues_and_Challenges
  84. Preserving_India's_intangible_cultural_heritage:_Issues_and_challenges
  85. legal aspects of heritage in India
  86. common case laws for heritage laws
  87. conservation and renovation of temples in India
  88. Historic sites and monuments act
  89. federal historic preservation act
  90. antiquity laws
  91. Ancient coins as cultural property
  92. indian laws on antiques
  93. international heritage laws
  94. Natural_heritage:_natural_sites,_physical,_biological_or_geological_formations
  95. national laws currently in force related to the protection of the cultural heritage in general
  96. import/export certificates for cultural property (available on request)
  97. official or unofficial translations of national laws and certificate
  98. contact details for the national authorities responsible for the protection of the cultural heritage
  99. addresses of the official national websites dedicated to the protection of the cultural heritage
  100. UNESCO cultural heritage laws
  101. world heritage center
  102. Saving Cultural heritage