International Law and the Protection of Cultural Heritage

Craig Forrest

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781135224509
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The world's cultural heritage is under threat from war, illicit trafficking, social and economic upheaval, unregulated excavation and neglect. Over a period of almost fifty years, the United Nations Educational, Scientific and Cultural Organisation has adopted five international conventions that attempt to protect this cultural heritage. This book comprehensively and critically considers these five UNESCO cultural heritage conventions. The book looks at the conventions in the context of recent events that have exposed the dangers faced by cultural heritage, including the destruction of cultural heritage sites in Iraq and the looting of the Baghdad museum, the destruction the Buddhas of Bamiyan in Afghanistan, the salvage of artefacts from the RMS Titanic and the illicit excavation and trade in Chinese, Peruvian and Italian archaeological objects.

As the only existing work to consider all five of the cultural heritage conventions adopted by UNESCO, the book acts as an introduction to this growing area of international law. However, the book does not merely describe the conventional principles and rules, but, critically evaluates the extent to which these international law principles and rules provide an effective and coherent international law framework for the protection of cultural heritage. It is suitable not only for those schooled in the law, but also for those who work with cultural heritage in all its manifestations seeking a broad but critical consideration of this important area of international law.

1 Defining cultural heritage in international law

Introduction

We are surrounded by ‘cultural heritage’. It grows exponentially every day, where any common place item might attain cultural significance if only touched by a celebrity, reflects a prevailing fashion or features in a defining event.¹ Its ever expanding scope defies easy description or definition. The use of the term ‘cultural heritage’ itself, used to capture a vague, nebulous, and opaque idea or notion, is naturally subject to criticism from various quarters. Yet, as discussed in this chapter the term ‘cultural heritage’, as used in the title of this work, has been adopted as a conceptual net to capture this notion in international conventional law.

The ascendancy of the notion of cultural heritage owes much to the law. The defining of terms such as ‘cultural heritage’, ‘cultural property’, ‘patrimony’ or ‘antiquities’ in a legal sense, so as to elevate certain goods to a higher realm of ‘protection’ has occurred in national statutes over the past 200 years. Much more recently, this has occurred at an international level through international State practice and the emergence of international conventions addressing ‘cultural heritage’.²

The notion of cultural heritage

Much has been written about the difficulties in defining ‘cultural heritage’.³ It is a term liberally used but elusive of definition. The notions of ‘culture’ and ‘heritage’ are individually susceptible to various interpretations that are made no easier by their amalgamation. The terminological difficulties surrounding the use of the term ‘culture’ as a qualifier are extensive and, as an all-embracing term, applies to every aspect of contemporary society.⁴ In a sense culture is society: its values, beliefs and ideologies as expressed both in its language, practices and objects. While the term ‘heritage’ denotes that which is received from predecessors, it has been described as a nomadic and elastic term that attaches easily to anything considered cultural and does little to narrow the scope of the term ‘cultural heritage’.⁵ The concept itself is also constantly evolving. It is a product of contemporary society, to which new meaning and value is continuously being attributed to it for a range of different, overlapping and possibly conflicting purposes, be they economic, cultural, political or social.⁶

As such, attempts to describe what ‘cultural heritage’ is tend to use general terms understood intuitively as reflecting a culture which is inherited from a past. Prott and O’Keefe describe cultural heritage as consisting of ‘manifestations of human life which represent a particular view of life and witness the history and validity of that view’.⁷ Koboldt similarly described cultural heritage as ‘an expression or representation of the cultural identity of a society in a particular period’⁸ while Loulanski describes cultural heritage as ‘culture and landscape that are cared for by the community and passed on to the future to serve people’s need for a sense of identity and belonging’.⁹ And in an early UNESCO recommendation, cultural heritage has been described as ‘the product and witness of the different traditions and of the spiritual achievements of the past and thus is an essential element in the personality of the peoples of the world’.¹⁰ Cultural heritage therefore reflects value, and intuitively gives rise to notions of significance, reflected both in tangible and intangible manifestations of a culture.

The manifestations of cultural heritage include almost anything man made or given value by man.¹¹ Movable cultural heritage¹² could include almost any object of some cultural significance, from artistic masterpieces to traces of ancient daily utensils. As immovable places and sites, it might include archaeological sites which evidence fossils or early hominid culture,¹³ prehistoric caves,¹⁴ rock paintings,¹⁵ ancient cities,¹⁶ ancient buildings,¹⁷ gardens¹⁸ and monuments.¹⁹ Other immovable objects, which may be considered of cultural value, are natural sites that were, and may continue to be, of specific importance to a particular culture.²⁰ This may be ritual and ceremonial sites, or natural objects such as trees, rocks or waterfalls. Yet cultural heritage may also be embodied in the intangible as well as the tangible; in both the music of a people and the instrument on which it is played; in a landscape and a people’s belief in that landscape; and in their oral traditions.

All that we are is an expression of the culture that we inherited, and which we may, or may not, manipulate and pass on to future generations. It is this notion of inheritance, of receiving something from one generation and possibly passing it on to the next, which intuitively underpins the notion of cultural heritage. There are aspects of what we have inherited from our predecessors that we might not wish to manipulate, and which we may choose to pass on to future generations unaltered. The determination of what aspects of our cultural heritage we might wish to subject to such a scheme depends on the values we attribute to these aspects. Various schemes have therefore been based on definitions of ‘cultural heritage’ or ‘cultural property’ that, though not definitive of the terms, illustrates those aspects of the cultural heritage that may be selected for differential treatment. This differential treatment is ordinarily termed ‘protective’, a term susceptible to various interpretations depending on the values we recognise as attributable to the cultural heritage.

The values attributable to cultural heritage

Value underlies the notion of cultural heritage. Indeed, cultural heritage management is underpinned by the determination of value – or significance.²¹ Cultural heritage is value in the sense that it is neither the object nor the practice itself which is of some importance to a people, but the importance itself. It is embodied in an object, a landscape, a dance or all three in combination. And it is this which legal regimes aim to protect.

The way in which we conceive of, and give value to, cultural heritage determines the way in which we ‘protect’ that heritage. While it may appear axiomatic that cultural heritage should be ‘protected’, its scope, importance and the basis upon which ‘protection’ is sought, is a complex and emotive issue. As a body of contemporary material and practices, the process of attributing a value is a dynamic social process and, as such, is susceptible to continual alteration. It embodies a number of competing, evolving and relative values, which then dictate the form ‘protection’ will take. This requires some conception of the values that may be attributable to cultural heritage which make it worthy of ‘protection’. A range of values might exist, such as symbolic, informational, aesthetic, economic, historic, scientific, cultural, archaeological, ethnic, public, recreational, educational, technical, social or legal value.²² It is beyond the scope of this work to consider the concept of attributing value to the cultural heritage; nor is it possible to consider in detail all the various values that might be attributable to cultural heritage. There are, however, a number of attributable values, however generalised, which have played an important role in the construction and justification for the protective regimes that have emerged from UNESCO. Some brief consideration is required of these in order to explain the forms protection has ultimately taken in conventional international law. In any object or practice, three important, and often competing values, can be attributed: its expressive value, its archaeological and historic value and its economic value.

The expressive value of cultural heritage

Cultural heritage has an aesthetic value that expresses beauty in its form, colours, contrasts and context. It is this value that, in the form of tangible objects, appear to many of those who collect cultural heritage, and those who seek to view such heritage in museums and at heritage sites, monuments and natural landscapes.²³ The intangible cultural heritage might also have an aesthetic value in the movement, form and colours of dancers and other performers.

Cultural heritage may not only have aesthetic value, but each individual item of cultural heritage may embody a unique sum of inherent values.²⁴ It may embody and express religious or moral attitudes which give the cultural heritage a divine sanctity. Non-religious objects may invoke feelings of nostalgia for people, events and cultures and express values such as heroism, ingenuity and leadership. They are a link to the past, the only objects to survive from a past age. They reflect the common heritage of humankind and instil a sense of community and identity not only to individual cultures, but also to all humankind. They invoke emotions of pride, sorrow, pity, wonder and joy. The uniqueness of an item of cultural heritage lies not only in its physical attributes but also in the sum of emotions that only that particular item can engender.

Preservation of archaeological and historical evidence

‘Cultural objects embody and preserve information’.²⁵ In many cases, these physical objects are the only means by which we can reconstruct the past.²⁶ From these we can not only learn about the past, but also from the past.²⁷ Importantly, this heritage is finite and non-renewable. The extraction of this knowledge can be a time consuming and expensive process, and ordinarily must be conducted in situ. The learning process does not, however, end once the cultural heritage has been extracted from its archaeological context as continuing scholarly investigations may be necessary in relating its significance within a wider context and to reconsider associations with new discoveries. Of all the values embodied in the cultural heritage, it is the archaeological and historical evidence derived from the item that is mostly closely associated with the cultural heritage as an individual item. While a variety of cultural heritage items may give rise to similar expressive or economic values, at times only the one item of cultural heritage can uniquely reveal specific knowledge about the past.²⁸

Economic value

Economic considerations apply to cultural heritage. This includes the intrinsic value of a cultural heritage object and its attributed value as well as its part in the larger cultural heritage industry, particularly as a tourist resource.

Many cultural heritage objects are constructed from materials that in themselves are highly valuable, most obviously gold, silver and precious stones. As long as the material has an economic value, the cultural heritage object will have an economic value. The economic value does only not reflect its material value, but also reflects an attributed value. Thus, the material value of the cultural heritage is usually only a fraction of the item’s market value. This attributed value may be derived from the rarity of the object, its aesthetic qualities as well as its historical or archaeological importance. This, in itself, is a cultural expression of the importance of the cultural heritage. In economic terms the cultural heritage is therefore quite simply an economic good or commodity. A commodity can be defined as goods that have an exchange value, the extent of which is dependent on the social context in which it circulates. It may be possible to raise particular goods to a level above that of a commodity when those goods are considered of such importance that they are ‘priceless’ and not susceptible to exchange. Few public goods are, however raised to such a level. As King clearly illustrates, public resources are often made available to private individuals and corporations for profit-making ventures.²⁹ Such ventures contribute to the public good by producing wealth, and the extent of privatisation of public utilities in many countries illustrates the increasing utilisation of combinations of private and public uses. Fletcher-Tomenius and others point out that such a debate raises economic questions concerning the role of government intervention in the functioning of the market of commodities.³⁰ While ‘it is quite evident that we cannot and, in fact, do not rely entirely on traditional market transactions to generate the volume and quality of cultural heritage object desired’,³¹ uncertainty remains about the extent of intervention in the market or its abolition.³² A number of economists have argued for a combination...