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Cultural Heritage Ethics

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Constantine Sandis

IV. Management and Protection

13. Safeguarding Heritage: From Legal Rights over Objects to Legal Rights for Individuals and Communities?

Marie Cornu

Note de l’auteur

This chapter is based on a presentation given at the Oxford University colloquium on ‘The Future of the Past: Memory, History and Cultural Heritage in the Twenty-First Century’, organised by the Faculty of Classics of the University of Oxford in cooperation with the Maison Française d’Oxford (CNRS). This contribution has been translated by Marie Trape (CECOJI-CNRS) and revised by Catherine Heygate.

Texte intégral

1Heritage protection for the twenty-first century is clearly an issue that raises a number of questions – regarding the very concept of cultural heritage, and how the law embraces that concept and sets its boundaries; regarding the fundamental purpose – to preserve and pass on – implied by the word ‘heritage’; regarding the multiple legal environments at the regional, national and international levels in which heritage law stands. Legally, there are many different ways to organise the connection between memory, history and heritage and, in this respect, diversity rules.

  • 2 The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, h (...)
  • 3 The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export an (...)
  • 4 The 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, ht (...)

2Cultural heritage law is a large body of legislation which was developed relatively recently. National legislation was generally introduced during the nineteenth century, while international law on cultural heritage was developed at the end of the nineteenth century and in the second part of the twentieth century. The first important convention was enacted in 1954;2 a protection plan designed for war-time, it was the starting point in the construction of international law relating to the conservation of cultural heritage. Other major legal instruments would follow, such as the 1970 UNESCO Convention on illicit trafficking of cultural property3 and the 1972 Convention concerning the protection of world cultural heritage.4 While I do not intend to explore this complex legal architecture in detail in this brief essay, I will highlight a few particular aspects of it that, in my view, reflect a change in our thinking about the protection of cultural heritage over the past two decades. These aspects concern the issue of defining heritage, and the process by which heritage is legally identified.

3Regarding the concept of cultural heritage in its relation to memory and history, I will start with the example of French law, bearing in mind that other countries have a similar history, particularly in Europe where legal models evidently circulated across borders. Initially, when heritage protection was in its early days, the founding concept was that of the historic monument and not, in fact, the more inclusive term ‘heritage’, which came later (in the 1970s in France). This notion of a historic monument referred equally to buildings (such as castles or cathedrals) and to objects, the primary concern being for artistic and historic interest, concepts which can be found in most legislation on heritage.

  • 5 A. Auduc, Quand les monuments historiques construisaient la nation (Paris : La documentation frança (...)

4Building upon this concern for artistic and historic interest, the first legislative texts – especially France’s law of 31 December 1913 – developed an elitist approach. In France, this founding legislation introduced a public easement, a technique never previously used in the heritage field, whereby the owner of any building classified as a historical monument was placed under supervision and was forbidden from making any changes that might alter the physical integrity of the property without the permission of the ministry of culture. This approach to protection was founded on the exceptionality of the historical monuments in terms of their artistic or historic value. The buildings identified as historical monuments were artistic masterpieces. They were, according to Théodore Reinach, one of the architects of the 1913 law, stone books in which the memory of the nation had settled, and as such they could contribute to the construction of that memory.5 This protection scheme, a venture of national interest, thus only took into consideration exceptional things.

  • 6 F. Choay, L’Allégorie du patrimoine, coll. La couleur des idées (Paris : Seuil, 1992).

5In the course of the twentieth century, however, the heritage field underwent a double extension, at once typological and chronological, according to Françoise Choay’s analysis in L’allégorie du patrimoine.6 The extension was typological in that new items, which had not previously fallen within the purview of the legislation, began to be protected. This extension arose from the development of a more inclusive concept of heritage, which not only designates exceptional or rare items, but can also be applied to a trace or a memory. On this basis, modest, ordinary objects can become heritage because they carry the memory of various human activities, such as farming, industry, and technology. As a result, tools, habitats, workplaces and machines are now being protected. This ethnological approach began to be adopted in the field of heritage in the 1970s, at precisely the moment when the concept of cultural heritage was coming to the fore. The term ‘cultural heritage’ was not chosen by chance, and is indicative of the more global and inclusive vision that was then emerging.

  • 7 Ibid.

6The extension of the heritage field was also chronological. As Choay has pointed out, in the 1960s the chronological framework of heritage protection hardly went beyond the early nineteenth century, even though no such temporal limit was imposed by the legislation.7 Since the 1960s, however, ever more recent elements have been brought within the heritage framework, to the extent that twentieth-century heritage has now made its way into the categories of public policies on cultural heritage.

7Thus the boundary of what constitutes heritage has evolved. Indeed, the concept of heritage turns out to be a highly malleable framework which is constantly changing and developing. By contrast, the legal formulation of heritage, and hence the legal instruments of heritage protection, are still quite close to the earliest formulations of the concept. Heritage law defines the status of physical things; it identifies material wealth. Of course, the intangible dimension is not entirely absent, indeed it is at the heart of the idea of artistic and historic interest. However, when legislators develop a protection scheme, they design it to protect physical items, regardless of whether those items have an intrinsic value arising from their exceptionality or rareness, or whether they function as traces or memories. Inevitably, this physically-oriented approach to heritage shapes decision-making in relation to protection schemes and, therefore, their legal formulation.

8France’s 1913 law established a procedure for classifying properties whose conservation ‘presents a public interest from an artistic or a historical point of view’. As a result, the ensuing easement focused upon conservation, and the idea of conservation remains paramount in legislative texts, whether in terms of physical conservation (i. e. respect for a property’s physical integrity) or legal conservation, expressed in such provisions as the rules of indefeasibility and inalienability, or measures to prevent heritage objects leaving the country. I refer specifically to French law here, but this approach is common to a number of states, including Italy, Spain, Germany, Greece and Egypt, and it prevails in important international conventions. The 1972 World Heritage Convention, for example, protects physical heritage in the form of sites and monuments, and the objective of conservation is still at the centre of its protection mechanism.8

9This approach, whereby heritage protection law is organised on the basis of material realities, has changed dramatically in the past two decades. The new perspective, which is apparent in the way cultural heritage is legally identified and defined, has introduced a profound change in the very nature of heritage law. This evolution in the legal concept of heritage is reflected in two instruments, the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage,9 and the 2005 Council of Europe Framework Convention on the Value of Cultural Heritage for Society (the Faro Convention).10

10The UNESCO Convention introduces the concept of intangible heritage into international law for the first time. Strictly speaking, the concept of intangible heritage used here was not an ex nihilo creation, since some states, notably Japan and Korea, had already established protection for their intangible heritage before 2003. However, the concept is completely new in the field of international law, and at present it is not recognised in the legislation of most states. What does this concept refer to? According to the UNESCO Convention, intangible cultural heritage means ‘the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognise as part of their cultural heritage’.

11The most obvious innovation lies in the object of the Convention’s protection – it deals with intangible heritage, with practices and expressions of skills that were not previously in the legislator’s field of vision. Beyond the intangible character of the elements to be protected, however, there is a more fundamental change in the way heritage is designated. Intangible heritage consists of elements that communities, groups and individuals recognise as part of their heritage. As a result, heritage is defined by its relationship with a group, whereas in the standard protection system, this relationship and the associated identification of rights holders is more distant and diffuse, even though the idea of community does exist. The change embodied in the UNESCO Convention does not, therefore, only affect the substance of heritage and the distinction between the physical and the intangible. After all, the Convention also protects the ‘instruments, objects, artefacts and cultural spaces’ associated with intangible cultural heritage. The more profound evolution lies in the identification of support communities and the recognition of their power to designate an element of cultural heritage. It is this sense of belonging which produces cultural heritage. With this understanding, we are moving away from the usual systems of protection.

12A very similar approach was adopted with the Faro Convention, which was enacted shortly after, in 2005, and which states that ‘for the purposes of this Convention, cultural heritage is a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions. It includes all aspects of the environment resulting from the interaction between people and places through time’ (Art. 2). The text also provides a definition of a heritage community, which has the capacity to define heritage as follows: ‘a heritage community consists of people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations’ (Art. 2b).

13The clear similarities in the processes by which cultural heritage is defined in these two conventions reveal a change in both the legal construction of heritage protection, and in the very nature of that law. With the evocation of communities and groups, with the idea that heritage reveals itself in a sense of belonging, it seems that we are moving away from a property law founded on a public interest in protection, and towards a law granting individuals a right on this property. Under this new approach, the individual or the group is at the centre of the definition of cultural heritage, and so they are also at the centre of the protection system more generally. It is clear that human rights law has influenced these legislative texts (as is the case in most fields of law): the safeguarding of heritage is articulated in terms of the protection of the fundamental rights of communities and groups. This is particularly apparent in the Faro Convention, which, in its preamble, recognises ‘the need to put people and human values at the centre of an enlarged and cross-disciplinary concept of cultural heritage’, and in its first article defining the aims of the Convention, states that:

14‘The Parties to this Convention agree to:

  1. Recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the Universal Declaration of Human Rights;

  2. Recognise individual and collective responsibility towards cultural heritage;

  3. Emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal;

  4. Take the necessary steps to apply the provisions of this Convention concerning:

    • The role of cultural heritage in the construction of a peaceful and democratic society, and in the processes of sustainable development and the promotion of cultural diversity;

    • Greater synergy of competencies among all the public, institutional and private actors concerned’.

‘Emphasising the value and potential of cultural heritage wisely used as a resource for sustainable development and quality of life in a constantly evolving society; Recognising that every person has a right to engage with the cultural heritage of their choice, while respecting the rights and freedoms of others, as an aspect of the right freely to participate in cultural life enshrined in the United Nations Universal Declaration of Human Rights (1948) and guaranteed by the International Covenant on Economic, Social and Cultural Rights (1966)’.

  • 11 On this tendency, see: M. Cornu and M. -A. Renold, ‘Le renouveau des restitutions de biens culturel (...)

15This concern for heritage had already been defined in these terms in various legal texts relating to the protection of fundamental rights, especially in those texts dealing with the rights of minorities or indigenous communities. With the UNESCO and Faro Conventions, however, the same concern was extended to the instruments for the protection of cultural property. Worldwide, this understanding of heritage in terms of fundamental human rights is now beginning to have some bearing on the issue of international restitutions, for example in relation to objects possessing considerable symbolic meaning, or to human remains held in museums.11

16Another evolution in the field of heritage law, which is again apparent in the UNESCO and Faro Conventions, concerns the fact that heritage protection now includes the concepts of sustainable development and integration. The concept of sustainable development is particularly prominent, and is changing the very definition of heritage. Initially, heritage was defined as something to be preserved and passed on to future generations. Nowadays, it also has social, environmental and economic aims. In the light of this, heritage law, which had originally developed as an autonomous branch of law, is clearly being influenced by other legal disciplines such as environmental law and economic law. It is still too soon to say what will come from this. Certainly the outcome can be positive, but there is also a risk that the strength of heritage protection may decrease.

Notes

2 The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html

3 The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html

4 The 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, http://portal.unesco.org/en/ev.php-URL_ID=13055&URL_DO=DO_TOPIC&URL_SECTION=201.html

5 A. Auduc, Quand les monuments historiques construisaient la nation (Paris : La documentation française : Comité d’histoire du ministère de la culture, 2008).

6 F. Choay, L’Allégorie du patrimoine, coll. La couleur des idées (Paris : Seuil, 1992).

7 Ibid.

8 For the text of the 1972 Convention see http://portal.unesco.org/en/ev.php-URL_ID=13055&URL_DO=DO_TOPIC&URL_SECTION=201.html

9 http://portal.unesco.org/en/ev.php-URL_ID=17716&URL_DO=DO_TOPIC&URL_SECTION=201.html

10 http://conventions.coe.int/Treaty/EN/Treaties/Html/199.htm

11 On this tendency, see: M. Cornu and M. -A. Renold, ‘Le renouveau des restitutions de biens culturels: les modes alternatifs de règlement des litiges’, Journal du Droit International (Clunet), 2, 2009, pp. 493-533. This article was also published in English: M. Cornu and M. -A. Renold, ‘New Developments in the Restitution of Cultural Property: Alternative Means of Dispute Resolution’, International Journal of Cultural Property, 17, 2010, pp. 1-31.

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