The impact of uniform laws on the protection of cultural heritage and the preservation of cultural heritage in the 21st century 9781282951518, 1282951513, 9786612951510, 6612951516, 9789004189911, 9004189912

Table of contents :
Contents
General Report
Introduction / Prologue
Part I—International Legal Framework
1. Cultural Heritage Protection: A Story of Several Beginnings—or: The Pre-UNESCO Period
2. Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954)
3. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970)
4. Convention for the Protection of the World Cultural and Natural Heritage (1972)
5. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995)
6. Convention on the Protection of the Underwater Cultural Heritage (2001)
7. Convention for the Safeguarding of Intangible Cultural Heritage (2003)
8. Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)
9. Conclusion
Part II—National Legal Frameworks
1. General Issues
2. Tangible Cultural Heritage
3. Intangible Cultural Heritage
4. Epilogue
Table—Status of National Ratification/Acceptance of International Tools
Canada
1. General Issues
2. Tangible Cultural Heritage
3. Intangible Cultural Heritage
4. Beyond Preservation
Croatia
1. General Issues
2. Tangible Cultural Heritage
3. Intangible Cultural Heritage
4. Beyond Preservation
5. Abbreviations
Czech Republic
1. General Issues
2. Tangible Cultural Heritage
3. Intangible Cultural Heritage
4. Beyond Preservation
5. Miscellaneous
Denmark
1. Introduction
2. Protection and Preservation of the Danish Tangible Cultural Heritage
3. Safeguarding the Archaeological Heritage
4. Safeguarding Cultural Heritage in the Event of an Armed Conflict
5. Protection and Preservation of the Danish Intangible Cultural Heritage
6. Conclusion
France
1. General Issues
2. Tangible Cultural Heritage
3. Intangible Cultural Heritage
4. Beyond Preservation
5. Miscellaneous
6. Annexe
Germany
1. Cultural Matters in Germany: Legislative Power
2. Protection of Cultural Property: Sources
3. Cultural Property
4. Immovables
5. Movables
6. Intangible Cultural Property
7. Measures beyond Preservation?
8. Recent Trends
9. Summary
Italy
1. General Background
2. Categorization of Cultural Heritage in Italian Law
3. Rights over Cultural Heritage
4. Protection of Tangible Cultural Heritage
5. Protection of Intangible Cultural Heritage
6. Conclusion
7. Additional Information
Japan
1. Historical Development of the Protection of Cultural Heritage in Japan
2. The Current Protection Scheme under the Law for the Protection of Cultural Property
3. Tangible Cultural Heritage
4. Intangible Cultural Heritage
5. Beyond Preservation
6. Conclusion
Mexico
1. Introduction
2. The Mexican Legal Order Functionality
3. General Issues
4. The Mexican Institutions Charged with the Protection of Mexican Archaeological Sites
5. The Fatigue of the Nationalistic Cultural Heritage Model, The Emergence of the Multilateral Model
6. Conclusions
Netherlands
1. Introduction and Key Facts of the Legal System of the Netherlands
2. General Issues
3. Tangible Cultural Heritage
4. Intangible Cultural Heritage
5. Bibliography
New Zealand / Aotearoa
1. General Issues
2. Tangible Cultural Heritage
3. Intangible Cultural Heritage
4. Beyond Preservation
Spain
1. General Issues
2. Scope of LHHS and Categories of Cultural Heritage Conceptualized in It
3. Tangible Cultural Heritage
4. Intangible Cultural Heritage
Switzerland
1. General issues
2. The Protection of Tangible Cultural Heritage
3. The Protection of Intangible Cultural Heritage
4. Appendix: Legal sources
Taiwan
1. General Issues
2. Tangible Cultural Heritage
3. Intangible Cultural Heritage
4. Beyond Preservation
United States
1. General Issues
2. Tangible Cultural Heritage
3. Intangible Cultural Heritage
4. Miscellaneous Provisions
Index

Citation preview

The Impact of Uniform Laws on the Protection of Cultural Heritage and the Preservation of Cultural Heritage in the 21st Century

Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

The Impact of Uniform Laws on the Protection of Cultural Heritage and the Preservation of Cultural Heritage in the 21st Century Edited by

Toshiyuki Kono

LEIDEN • BOSTON 2010 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data The impact of uniform laws on the protection of cultural heritage and the preservation of cultural heritage in the 21st century / edited by Toshiyuki Kono. p. cm. Includes index. ISBN 978-90-04-18044-4 (hardback : alk. paper) 1. Cultural property—Protection (International law) 2. Cultural property—Protection—Law and legislation. I. Kono, Toshiyuki. K3791.I43 2010 344’.09—dc22 2010011393

ISBN 978 90 04 18044 4 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

CONTENTS General Report Toshiyuki Kono and Stefan Wrbka ........................................................

1

Introduction / Prologue ..........................................................................

4

Part I—International Legal Framework 1. Cultural Heritage Protection: A Story of Several Beginnings— or: The Pre-UNESCO Period ............................................................ 10 2. Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) ....................................................... 16 3. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) .......................................... 32 4. Convention for the Protection of the World Cultural and Natural Heritage (1972) ..................................................................... 43 5. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) ...................................................................... 59 6. Convention on the Protection of the Underwater Cultural Heritage (2001) .................................................................................... 70 7. Convention for the Safeguarding of Intangible Cultural Heritage (2003) .................................................................................... 82 8. Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) ......................................................... 96 9. Conclusion ........................................................................................... 108 Part II—National Legal Frameworks 1. 2. 3. 4.

General Issues ..................................................................................... Tangible Cultural Heritage ............................................................... Intangible Cultural Heritage ............................................................. Epilogue ................................................................................................

112 136 205 223

Table—Status of National Ratification/Acceptance of International Tools ................................................................................... 231

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Canada Robert K. Paterson 1. 2. 3. 4.

General Issues ...................................................................................... Tangible Cultural Heritage ................................................................ Intangible Cultural Heritage .............................................................. Beyond Preservation ...........................................................................

233 235 243 246

Croatia Igor Gliha and Tatjana Josipović 1. 2. 3. 4. 5.

General Issues ...................................................................................... Tangible Cultural Heritage ................................................................ Intangible Cultural Heritage ............................................................ Beyond Preservation ........................................................................... Abbreviations .......................................................................................

247 252 268 276 279

Czech Republic Pavel Šturma 1. 2. 3. 4. 5.

General Issues ...................................................................................... Tangible Cultural Heritage ................................................................ Intangible Cultural Heritage .............................................................. Beyond Preservation ........................................................................... Miscellaneous .......................................................................................

281 284 292 292 292

Denmark Ditlev Tamm and Anne Østrup 1. Introduction ......................................................................................... 2. Protection and Preservation of the Danish Tangible Cultural Heritage ................................................................................................. 3. Safeguarding the Archeological Heritage ........................................ 4. Safeguarding Cultural Heritage in the Event of an Armed Conflict .................................................................................................. 5. Protection and Preservation of the Danish Intangible Cultural Heritage ................................................................................................. 6. Conclusion ............................................................................................

297 301 325 330 333 335

France Marie Cornu 1. General Issues ...................................................................................... 341 2. Tangible Cultural Heritage ................................................................ 358 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

3. 4. 5. 6.

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Intangible Cultural Heritage ............................................................. Beyond Preservation ........................................................................... Miscellaneous ....................................................................................... Annexe ..................................................................................................

412 414 415 417

Germany Kurt Siehr 1. 2. 3. 4. 5. 6. 7. 8. 9.

Cultural Matters in Germany: Legislative Power .......................... Protection Cultural; Property: Sources ........................................... Cultural Property ................................................................................ Immovables .......................................................................................... Movables ............................................................................................... Intangible Cultural Property ............................................................. Measures Beyond Preservation? ....................................................... Recent Trends ...................................................................................... Summary ..............................................................................................

422 423 425 430 433 436 436 436 437

Italy Federico Lenzerini 1. 2. 3. 4. 5. 6. 7.

General Background ........................................................................... Categorization of Cultural Heritage in Italian Law ...................... Rights over Cultural Heritage ........................................................... Protection of Tangible Cultural Heritage ....................................... Protection of Intangible Cultural Heritage .................................... Conclusion ........................................................................................... Additional Information ......................................................................

439 441 444 450 462 463 464

Japan Toshiyuki Kono 1. Historical Development of the Protection of Cultural Heritage in Japan ................................................................................................. 2. The Current Protection Scheme Under the Law for the Protection of Cultural Property ....................................................... 3. Tangible Cultural Heritage ................................................................ 4. Intangible Cultural Heritage ............................................................. 5. Beyond Preservation ........................................................................... 6. Conclusion ...........................................................................................

469 474 478 487 492 493

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Mexico Jorge Sánchez Cordero 1. 2. 3. 4.

Introduction ......................................................................................... The Mexican Legal Order Functionality ......................................... General Issues ...................................................................................... The Mexican Institutions Charged with the Protection of Mexican Archeological Sites ............................................................. 5. The Fatigue of the Nationalistic Cultural Heritage Model, the Emergence of the Multilateral Model .............................................. 6. Conclusions ..........................................................................................

497 498 503 547 551 558

Netherlands Katja Lubina 1. Introduction and Key Facts of the Legal System of the Netherlands .......................................................................................... 2. General Issues ...................................................................................... 3. Tangible Cultural Heritage ................................................................ 4. Intangible Cultural Heritage ............................................................. 5. Bibliography .........................................................................................

563 565 574 624 634

New Zealand / Aotearoa Paul Myburgh 1. 2. 3. 4.

General Issues ...................................................................................... Tangible Cultural Heritage ................................................................ Intangible Cultural Heritage ............................................................. Beyond Preservation ...........................................................................

640 645 658 662

Spain Sofía de Salas 1. General Issues ...................................................................................... 2. Scope of LHHS and Categories of Cultural Heritage Conceptualized in It ........................................................................... 3. Tangible Cultural Heritage ................................................................ 4. Intangible Cultural Heritage .............................................................

664 667 673 684

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Switzerland Eva Maria Belser, Eva Rüegg and Eva Molinari 1. 2. 3. 4.

General Issues ...................................................................................... The Protection of Tangible Cultural Heritage ............................... The Protection of Intangible Cultural Heritage ............................. Appendix: Legal Sources ....................................................................

692 694 714 743

Taiwan Ming-Yan Shieh and Chung-Hsi Lee 1. 2. 3. 4.

General Issues ...................................................................................... Tangible Cultural Heritage ................................................................ Intangible Cultural Heritage ............................................................. Beyond Preservation ...........................................................................

745 748 754 756

United States James A.R. Nafziger 1. 2. 3. 4.

General Issues ...................................................................................... Tangible Cultural Heritage ................................................................ Intangible Cultural Heritage ............................................................. Miscellaneous Provisions ...................................................................

757 758 770 771

Index ................................................................................................................ 773

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GENERAL REPORT Toshiyuki Kono* and Stefan Wrbka** Introduction/Prologue .................................................................................

4

Part I—International Legal Framework 1. Cultural Heritage Protection: A Story of Several Beginnings—or: The Pre-UNESCO Period ....................................................................... 2. Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) ....................................................................... 2.1. The 1954 Convention: Facing the Threats of Armed Conflicts ............................................................................................ 2.1.1. Background of the 1954 Convention: Wartime Destruction ........................................................................... 2.1.2. Scope of Application of the 1954 Convention and the Term Cultural Property ..................................................... 2.1.3. Legal Framework of the 1954 Convention: Safeguarding and Respect .................................................. 2.2. First Protocol to the 1954 Convention: Dealing with the Threat of Exploitation .................................................................... 2.2.1. Background and Scope of Application of the First Protocol to the 1954 Convention: The Battle Against a Growing Black Market ....................................................... 2.2.2. Legal Framework of the First Protocol: Short But Better Than Nothing ........................................................... 2.3. Second Protocol to the 1954 Convention: An Answer to a Toothless Instrument ..................................................................... 2.3.1. Background of the Second Protocol: Dealing with the Shortcomings of the 1954 Convention ............................ 2.3.2. Important Cornerstones of the Second Protocol: Enhancing the 1954 Framework .......................................

10 16 16 16 17 21 23

23 25 26 26 27

* Professor of Law, Kyushu University; LL.B., LL.M. (University of Kyoto). ** Former Assistant Professor of Law, Kyushu University; Mag. iur., Dr. iur. (University of Vienna), LL.M. (Kyushu University). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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3. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) ................................................................... 3.1. Background of the 1970 Convention: Readjusting the Efforts in the Battle Against Illicit Trafficking ....................................... 3.2. Scope of Application of the 1970 Convention: In Wartime and Peacetime .................................................................................. 3.3. The Three Pillars of the 1970 Convention: Prevention, Restitution and International Cooperation ................................ 3.4. Excursus: Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation and the Fund of the International Committee ........................................................ 4. Convention for the Protection of the World Cultural and Natural Heritage (1972) ......................................................................... 4.1. Background of the 1972 Convention: Combining Treasures of Culture and Nature ................................................................... 4.2. Scope of Application of the 1972 Convention and the Concept of Outstanding Universal Value .................................. 4.3. Legal Framework and Mechanism of the 1972 Convention: The Creation of a Model Convention ......................................... 5. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) .......................................................................................... 5.1. Background of the 1995 UNIDROIT Convention: Private Law as the Key to Regulating the Black Market ....................... 5.2. Drafting of the 1995 UNIDROIT Convention: The Long and Winding Road ................................................................................. 5.3. Scope of Application of the 1995 UNIDROIT Convention: Focus on Recovery .......................................................................... 5.4. Legal Framework and basic principles of the 1995 UNIDROIT Convention: Acts of Balancing .............................. 6. Convention on the Protection of the Underwater Cultural Heritage (2001) ........................................................................................ 6.1. Excursus: The United Nations Convention on the Law of the Sea of 1982 or Mission Incomplete ............................................. 6.2. Background of the 2001 Convention: Fishing for a Solution ............................................................................................ 6.3. Scope of Application of the 2001 Convention: Underwater Richness ............................................................................................ 6.4. Legal Framework of the 2001 Convention: Preservation and Prohibition of Exploitation ........................................................... 7. Convention for the Safeguarding of Intangible Cultural Heritage (2003) .........................................................................................................

32 32 35 38

42 43 43 45 51 59 59 60 62 66 70 70 72 74 76 82

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general report 7.1. Brief Overview and the Drafting Process of the 2003 Convention: What about Intangibles? ......................................... 7.2. Scope of Application of the 2003 Convention: Safeguarding, Not Just Protecting ......................................................................... 7.3. Legal Framework and Mechanism of the 2003 Convention: Adopting and Adapting the 1972 Model .................................... 8. Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) .................................................................. 8.1. Background of the 2005 Convention: Cultural Diversity and the Threat of Globalization ............................................................ 8.2. Scope of Application and the terms Cultural Diversity and Cultural Expressions: Building the Third Pillar ......................... 8.3. Legal Framework and Mechanism of the 2005 Convention: How to Handle the Dual Nature of Cultural Goods and Services .............................................................................................. 9. Conclusion ................................................................................................

3

82 87 91 96 96 100

104 108

Part II—National Legal Frameworks 1. General Issues .......................................................................................... 1.1. National Legal Frameworks ........................................................... 1.1.1. The National Fundament: The Constitutional Pillar— Diversity on the Constitutional level ............................... 1.1.2. The National Legal Material Body or How to Bring Cultural Heritage Concepts to Life: Sub-Constitutional Law—Diversity on the Instrumental Level .............................................................. 1.2. Basic National Concepts of Cultural Heritage— The Underlying Rationale of Its Protection and Preservation ...................................................................................... 1.2.1. Basic Points of Interest ....................................................... 1.2.2. National Approaches .......................................................... 2. Tangible Cultural Heritage .................................................................... 2.1. Immovable Tangible Cultural Heritage ...................................... 2.1.1. General Issues ....................................................................... 2.1.2. General National Legal System with Regard to the Protection and Preservation of Immovable Tangible Cultural Heritage ................................................................. 2.1.3. Conclusion ............................................................................ 2.2. Movable Tangible Cultural Heritage ........................................... 2.2.1. General Issues ......................................................................

112 112 112

116

126 126 126 136 136 136

137 157 162 162

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2.2.2. General National Legal System with Regard to the Protection and Preservation of Movable Tangible Cultural Heritage ................................................................. 2.2.3. Conclusion ............................................................................ 2.3. Special National Regulations with Regard to the Protection and Preservation of Movable Tangible Cultural Heritage in Armed Conflicts .............................................................................. 2.3.1. General Issues ...................................................................... 2.3.2. National Protective Regimes for Tangible Cultural Heritage in Relation to Armed Conflicts ........................ 2.3.3. Conclusion ............................................................................ 2.4. Special National Regulations with Regard to the Protection and Preservation of Underwater Movable Tangible Cultural Heritage ............................................................................................. 2.4.1. General Issues ...................................................................... 2.4.2. National Protective Regimes for Underwater Tangible Cultural Heritage ................................................................. 2.4.3. Conclusion ............................................................................ 3. Intangible Cultural Heritage .................................................................. 3.1. General Issues .................................................................................. 3.2. National Approaches ...................................................................... 3.2.1. Countries with Special Regulations .................................. 3.2.2. Countries with Special Regulations (also) on a Regional Basis ...................................................................... 3.2.3. Countries without a (special) legal regime of intangible cultural heritage protection ............................ 3.2.4. The New Zealand Model .................................................... 3.3. Conclusion ........................................................................................ 4. Epilogue .....................................................................................................

214 219 220 223

Table—Status of National Ratification/Acceptance of International Tools ..................................................................................

231

163 184

190 190 191 195

197 197 198 203 205 205 205 206 209

Introduction / Prologue Cultural heritage has come to be viewed as a shared common interest of humanity, to be kept safe and protected under the auspices of international law. From the early interest of the international community in protecting cultural properties and masterpieces during periods of armed conflict, this interest has expanded and evolved to include the properties and tangible materials of peoples during peaceful times as well as the very people who embody, create and recreate these cultures—the living, breathing heritage, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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culminating in the latest point of interest of international cultural heritage protection and preservation: intangible cultural heritage. Safeguarding efforts have also extended to cultural heritage underwater and the campaign against the illicit trade of cultural objects. Moreover, other cultural values have come into play. These include the protection of natural heritage, closely linked to environmental issues, or the respect for human dignity and the human rights of individuals and communities, particularly those of indigenous peoples and minority groups. In general, the development of approaches to safeguarding cultural heritage at the international level has been quite slow and fragmented. Initially, there seemed to be little awareness about the safeguarding of cultural heritage. More recently, however, one can see that—though still fragmented—the trend in global thinking is moving towards a more comprehensive regime of cultural heritage protection and preservation, expressed through the various conventions established at the international level and grounded on the principles of cultural internationalism while reaffirming cultural nationalism. Cultural property internationalism is a rather new phenomenon whereby everyone has an interest in the preservation and enjoyment of cultural property wherever it is situated and from whatever cultural or geographic source it derives.1 Cultural property is viewed as the ‘collective cultural heritage of all people.’2 Thus, the international community considers the privileges of the common global interest and the right to intervene and ensure its protection as paramount over the rights of any particular nation. This view is, however, tempered by cultural nationalism, which is the view that ‘cultural property is a part of the cultural heritage of the nation in which it is found or the nation which contains the cultural descendants of its creator.’3 The principle of state sovereignty underlies this perspective. A state has the jurisdiction and the right to exercise control over matters within its territorial boundaries. This position is generally taken by source nations. Thus, the various international and supranational laws will continue to be influenced by domestic legislation and vice versa, and any level of uniformity of such national laws will shape the future international norms on cultural heritage protection and preservation in the 21st century. Combining both international and national cultural heritage protection into one study also means taking into account both movements, the concept of cultural property internationalism as well as the

1 J.H. Merryman, ‘Cultural Property Internationalism’, 12 International Journal of Cultural Property (2005) p. 11 at p. 11. 2 J. Warring, ‘Underground Debates: The Fundamental Differences of Opinion That Thwart UNESCO’s Progress in Fighting the Illicit Trade in Cultural Property’, 19 Emory International Law Review (2005) p. 227 at p. 247. 3 Warring, loc. cit. n. 2, at p. 247.

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concept of cultural nationalism, as both interact with each other and cannot be regarded as totally separate concepts. The idea of writing this report was born on the occasion of the 1st Intermediate Congress of the International Academy of Comparative Law in Mexico concerning ‘The Impact of Uniform Law on National Law. Limits and Possibilities’, which took place in November of 2008.4 Zweigert and Kötz define the term unification of law—deriving from the latin terms unus (‘one’) and facere (‘to make’)—, the fundamentals of uniform law deriving from the latin terms unus and forma (‘form’)—, as ‘a discipline of legal policy which aims at settling or removing differences of national legislation through a consensus in international legal principles within the limits of desirability and possibility.’5 They go on to define the international procedure used for the unification of national laws as ‘being of the kind that an Einheitsgesetz (loi uniforme, uniform law) will be drafted by experts in the field of comparative law and put into a collective treaty which mandates its states parties to implement and transform this uniform law into national law (note: as long as the international tool is not self-executing6).’7 Fox expressively refers to the work of the international community defining the term unification of laws as ‘efforts by a number of international organizations to make the municipal laws of the countries of a region or the entire world as uniform as possible, thus, eliminating conflicts of laws problems’,8 while Black’s Law Dictionary defines the term (note: United States) uniform law as a ‘. . . law proposed as legislation for all the states to adopt exactly as written, the purpose being to promote greater consistency among the states.’9 It should be noted that the concept of international and national cultural heritage protection and preservation is a very broad concept touching issues related to public law as well as private law, both on an international level as well as on a national level. Thus within the scope of this report, the term uniform law shall be understood in a broader and less strict meaning, leading to a kind of soft uniform law. In particular obligations arising from international public law tools cannot unify national laws completely. They can however express the concerns of the international community and provide a model which national legislation should follow. Hence, international cultural

4 Information about this congress can be found online at http://www.iuscomparatum. org/offres/gestion/menu_141_perso_141_1837/mexico-congress-2008.html (last visited on December 31, 2008). 5 K. Zweigert and H. Kötz, Einführung in die Rechtsvergleichung [Introduction to Comparative Law], 3rd edn. (Tübingen, J.C.B. Mohr 1996) at p. 23. 6 For the question of self-execution see infra I.5.3. 7 Zweigert and Kötz, op. cit. n. 5, at p. 23. 8 J.R. Fox, Dictionary of International and Comparative Law, 2nd edn. (Dobbs Ferry/New York, Oceana Publications Inc. 1997) at p. 325. 9 B.A. Garner et al., eds., Black’s Law Dictionary, 7th edn. (St. Paul/Minnesota, West Group 1999) at p. 1531).

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protection law cannot be regarded as being a typical exponent of uniform law, rather it is a genuine form of international uniform law. This report consists of two main parts: the first part will deal with seven major international conventions related to the issue of protection and preservation of cultural heritage.10 It will provide the reader with a comprehensive, up-to-date outline of the most important instruments, illustrating the drafting processes and ideas behind the conventions and summarizing the core regulations important both at the international level and also at the national level in terms of the implementation process. Thus, it will be a good addition to the framework of recently published specific literature on single areas.11 The second part of this report will be an analysis of 16 national legal frameworks in relation to cultural heritage, evaluating—among other things— national concepts in this field, specific national regimes and the impact of the discussed international tools on national laws. It will also point out convergences and divergences in the implementation process among the following countries: Canada, Croatia, the Czech Republic, Denmark, France, Germany, Italy, Japan, Mexico, the Netherlands, New Zealand, Spain, Switzerland, Taiwan, Tunisia and the United States. The 16 contributing countries reflect various, sometimes opposing national approaches. With the exception of Taiwan, which is not recognized as a politically independent country by UNESCO and UNIDROIT and thus is not a state party to any of the conventions outlined in Part I of this report, all contributing countries are involved in the international cultural safeguarding process, with their national legislation influenced by and influencing

10 See infra I.2.: 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict; infra I.3.: 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; infra I.4.: 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage; infra I.5.: 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects; infra I.6.: 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage; infra I.7.: 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage; infra I.8.; 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. I should refer to J. Nafziger and T. Scovazzi, eds., Le patrimoine culturel de l’humanité/ The Cultural Heritage of Mankind (Hague Academy of International Law, 2008) (Leiden/ Boston, Martinus Nijhoff 2008) as the most recent and comprehensive work, which covers these international instruments, relevant soft-laws and related issues. 11 F. Francioni and F. Lenzerini, eds., The 1972 World Heritage Convention—A Commentary (Oxford, Oxford University Press 2008); J. Blake, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage (Leiscester, Institute of Art and Law 2006); S. Dromgoole, ed., The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 2nd edn. (Leiden, Martinus Nijhoff Publishers 2006).

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the international framework. Some countries have been influenced more, others less. The contributing countries represent a balanced mixture of older and newer national cultural heritage legislation. Some are quite active at the international level while others are passive. They also represent various geographical, historic and cultural differences as well as differing overall national concepts and perceptions of cultural heritage protection and the balancing of state and private interests and questions related to indigenous group and community rights. The realization of this report would not have been possible without the help of a network of people: We would like to thank Steven van Uytsel, Marose Pereira, Margaret Uy and Paulius Jurčys for their research support in drafting this report, Ruben Pauwels, Oliver Galindo, Sean Michael McGinty, Brian Luke Goh and Concetta Frano Grimm for their language assistance, and Robert K. Paterson, Igor Gliha, Tatjana Josipović, Pavel Šturma, Ditlev Tamm, Anne Østrup, Marie Cornu, Kurt Siehr, Federico Lenzerini, Yoshiaki Ishida, Hideto Takagi, Jorge Sánchez Cordero, Ernesto Becerril, Katja Lubina, Paul Myburgh, Sofía de Salas, Eva Maria Belser, Eva Rüegg, Eva Molinari, Ming-Yan Shieh, Chung-Hsi Lee, Monia Ben Jémia, and James A.R. Nafziger for their commitment and invaluable contributions to this general report. We also would like to thank the International Academy of Comparative Law for supporting the idea behind this report. We hope that this report will support the understanding of international and national legal tools in the field of the protection and preservation of cultural heritage and foster its development for the sake of future generations and cultural enjoyment. Let us now take you on a journey through the history and development of national and international frameworks of cultural heritage protection and preservation law and their future. Fukuoka, Japan, January 2009

Toshiyuki Kono, Stefan Wrbka

Note: As far as possible, national and international developments in the field of cultural heritage protection and preservation up and until December 31, 2008 have been taken into account and were incorporated in this report. Moreover, the authors of the General Report have referred to an English translation of an unpublished French-language version of the Tunisian National Report (written by professor Monia Ben Jémia). However, this Tunisian National Report has not been included in the present volume. This means that the analysis of the national legal frameworks conducted in the General Report is based on 16 National Reports (including the Tunisian one), while the present volume contains the full versions of 15 National Reports.

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PART I—INTERNATIONAL LEGAL FRAMEWORK

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toshiyuki kono and stefan wrbka 1. Cultural Heritage Protection: A Story of Several Beginnings—or: The Pre-UNESCO Period

From the early ages of Roman conquest, victors would take for themselves the treasures and cultural works of conquered peoples as trophies to be displayed during triumphant homecoming parades and presented to the public at the Roman Forum, ‘the world’s first great outdoor museum.’12 These grandiose ornaments affirmed the glory of Roman military power. The tradition was continued throughout the medieval period, during the time of the Crusades and the Italian Renaissance.13 Cicero first wrote that ‘it is not contrary to nature to despoil him whom it is honourable to kill.’14 It was therefore ‘not strange that the law of nations has permitted the destruction and plunder of the property of enemies.’15 Grotius accepted this principle, but argued for moderation, proposing that ‘sacred or artistic works should not be destroyed where there is no military advantage in doing so,’16 and that ‘destruction that neither weakens the enemy nor helps the destroyer is immoderate and disproportionate.’17 True cultural property internationalism was first argued two centuries later by Vattel, who sought for the protection of cultural property in the interests of mankind and human society, and broadened the basis for protection to include ‘works of remarkable beauty.’18 Eventually, more concrete rules were developed to prevent the destruction and plunder of cultural property during war. In 1863 Francis Lieber proposed the Instructions for the Government of Armies of the United States in the Field (hereafter the ‘Lieber Code’),19 the first attempt at a comprehensive body of rules governing the conduct of belligerents in enemy territory.20 In particular Articles 34–36 of the Lieber Code aim at the protection of cultural property, including property belonging to ‘churches, to hospitals, or other

12

Merryman 2005, loc. cit. n. 1, at p. 13. Merryman 2005, loc. cit. n. 1, at p. 14. 14 H. Grotius, The Law of War and Peace (Indianapolis, Bobbs-Merrill 1925) at p. 658. 15 Grotius, op. cit. n. 14, at p. 658. 16 Merryman 2005, loc. cit. n. 1, at p. 14. 17 Merryman 2005, loc. cit. n. 1, at p. 14. 18 Merryman 2005, loc. cit. n. 1, at p. 14 referring to E. de Vattel, The Law of Nations—Book III: War at Paragraph 168—see E. de Vattel, The Law of Nations or the Principles of Natural Law, translated by Ch.G. Fenwick (New York, Oceana Publications Inc. 1964) at p. 293 et seq. 19 The text of the Lieber Code can be found in L. Friedman (ed.), The Law of War—A Documentary History, Volume I (New York, Random House 1972) at p. 158 et seq. or online at http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument (last visited on December 31, 2008). 20 J.H. Merryman, ‘Two Ways of Thinking About Cultural Property in the event of Armed Conflict’, 80 American Journal of International Law (1986) p. 831 at p. 834. 13

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establishments of an exclusively charitable character, to establishments of education or foundations for the promotion of knowledge,’21 as well as ‘classical works of art, libraries, scientific collections or precious instruments.’22 Under the regime of the Lieber Code, properties might only have been seized or removed by conquering nations if the properties could be removed without damage, with a reservation that final determination of ownership was to be made by the peace treaty at the end of hostilities.23 Inspired by the idea of the Lieber Code, Russia called for an international meeting of 15 states in Brussels in 1874 to discuss the possibility of regulating the laws, rights and duties of war. Article 8 of the drafted Declaration of Brussels Concerning the Laws and Customs of War (hereafter the ‘Declaration of Brussels’)24 directed that ‘property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences even when state property, shall be treated as private property’ and that ‘all seizure or destruction of, or willful damage to, institutions of this character, historic monuments, works of art and science should be made the subject of legal proceedings by the competent authorities,’ while its Article 13 (g) stipulated an exemption from liability by saying that ‘any destruction or seizure of the enemy’s property that is not imperatively demanded by the necessity of war’ is forbidden. The declaration of Brussels was, however, never adopted due to the objection of Great Britain.25 Six years later in 1880, the said provisions of the Declaration of Brussels were unfrozen by the Institute of International Law and incorporated in its Laws of War on Land (hereafter the ‘Oxford Manual’), ‘rendering a service to military men themselves.’26 In 1899, aiming at ‘the revision of the Declaration Concerning the Laws and Customs of War elaborated in 1874 by the Conference of Brussels, which [had] remained unratified’,27 the First Hague Peace Conference adopted the ‘first formal international treaty providing some protection for cultural property’:28 the 1899 Convention With Respect to the Laws and Customs of War on Land (hereafter the ‘1899 Hague II Convention’) and its annex Regulations Concerning the Laws and Customs of War on Land (hereafter

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Article 34 Lieber Code. Article 35 Lieber Code. 23 Article 36 Lieber Code. 24 The text of the Declaration of Brussels can be found in Friedman, op. cit. n. 21, at p. 194 et seq. 25 Merryman 1986, loc. cit. n. 20, at p. 834. 26 Preface (5) Oxford Manual. 27 W.I. Hull, The Two Hague Conferences and their Contributions to International Law (New York, Kraus Reprint 1970) at p. 213. 28 K. Chamberlain, War and Cultural Heritage: An Analysis of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Two Protocols (Leicester, Institute of Art and Law 2004) at p. 9. 22

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the ‘1899 Hague II Regulations’).29 Article 27 of the 1899 Hague II Regulations called for the taking of ‘all necessary steps . . . to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes’ in times ‘of sieges and belligerents’. Culturally related property was to be treated as private property.30 They were required to be respected and not subject to confiscation,31 destruction, or intentional damage.32 Occupying armies were allowed to take possession of state owned movable property only if it was used for military purposes.33 As to immovable properties such as ‘public buildings, real properties, forests, and agricultural works,’ the occupying state was regarded as ‘an administrator and usufructuary.’34 For cases not covered by the Hague II Regulations, the principles of international law based on the ‘usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience’ applied.35 Less than a decade later, at the initiatives of the Inter-Parliamentary Union (IPU)36 and—after the end of the Russo-Japanese War—Russia, Theodore Roosevelt convoked the Second Hague Peace Conference in 1907.37 Two conventions adopted at that conference had impacts on the treatment of property, including cultural property in wartime, with the purpose of trying to ‘complete and explain in certain particulars the work of the First [Hague] Peace Conference.’38 These were the 1907 Convention Respecting the Laws and Customs of War on Land (hereafter the ‘1907 Hague IV Convention’) 29 For the text of the 1899 Hague II Convention and the 1899 Hague II Regulations see e.g. Carnegie Endowment for International Law, J.B. Scott, ed., The Hague Conventions and Declarations of 1899 and 1907 (New York, Oxford University Press 1915) p. 100 et seq. or online at http://www.icrc.org/ihl.nsf/FULL/150?OpenDocument; last visited on December 31, 2008). 30 Article 56 1899 Hague II Regulations considers ‘the properties of the communes, those of religious, charitable, and educational institutions, as well as those of arts and science, even when owned by the State, as private property.’ 31 Article 46 1899 Hague II Regulations. 32 Article 56 1899 Hague II Regulations. 33 Article 53 1899 Hague II Regulations. 34 Article 55 1899 Hague II Regulations. 35 Preamble (9) 1899 Hague II Convention. 36 Established in 1889 with its current headquarters in Geneva, IPU as an ‘organization of Parliaments of sovereign States’ focuses at (1) fostering ‘contacts, coordination and the exchange of experience among Parliaments and parliamentarians of all countries;’ (2) considering ‘questions of international interest’ and expressing ‘its views on such issues with the aim of bringing about action by Parliaments and their members;’ (3) contributing ‘to the defence and promotion of human rights, which are universal in scope and respect for which is an essential factor of parliamentary democracy and development’ and (4) contributing to better knowledge of the working of representative institutions and to the strengthening and development of their means of action’ and by doing this ‘works in close cooperation’ with the United Nations. (Article 1 Statutes of the Inter-Parliamentary Union; the text is available online at http://www.ipu.org/strct-e/statutes-new.htm#1; last visited on December 31, 2008). 37 Hull, op. cit. n. 27, p. 4 et seq. 38 Preamble (4) 1907 Hague II Convention.

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supplemented by its annex Regulations Concerning the Laws and Customs of War on Land (hereafter the ‘1907 Hague IV Regulations’) and the 1907 Convention Concerning Bombardment by Naval Forces in Time of War (hereafter the ‘1907 Hague IX Convention’). The 1907 Hague IV Convention and the 1907 Hague IV Regulations were built on the framework of the 1899 Hague II Convention and the accompanying 1899 Hague II Regulations. This is reflected by the fact that many provisions were copied into the 1907 instruments, some of them in a slightly amended form.39 As far as the before-mentioned Article 27 of the 1899 Hague II Convention in relation to sieges and belligerents is concerned, R. O’Keefe states that its ‘only innovation was the inclusion of ‘historic monuments’ among several types of property to be spared’, clearly defining them as objects to be respected.40 Another innovation worth mentioning is the introduction of the obligation of ‘belligerent parties’ to pay compensation if violating the provisions of the 1907 Hague IV Regulation, making those parties liable ‘for all acts committed by persons forming part of its armed forces.’41 While the 1907 Hague IV Convention focused on land-based warfare, the 1907 Hague IX Convention dealt with its counterpart on the sea. With regard also to culturally related buildings its Article 5 stated that ‘all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected’ provided that they were not used for ‘military purposes’. Like the protective regime under Article 27 of the 1907 Hague IV Convention and 1899 Hague II Convention respectively, protective obligations have no absolute character and are limited by the vague and undefined exemption of military necessity.42

39 Among others, the following important provisions were basically preserved: (a) Article 23 on the prohibition of the destruction or seizure of the enemy’s property; (b) Article 25 on the prohibition of attacks or bombardments of undefended towns, villages, dwellings or buildings; (c) Article 27 on sparing non-military buildings devoted to religion, art, science, and charity during sieges and bombardments; (d) Articles 28 and 47 on the prohibition of pillage; (e) Article 46 on respecting private properties and exempting them from confiscation; (f) Article 53 on the possession by the occupying army of all movable properties for military purposes; (g) Article 55 on the role and duties of the occupying State as an administrator and usufructuary of the public buildings, real properties, forests, and agricultural works of the occupied State located within the occupied territory; and (h) Article 56 on the treatment of the properties of the municipalities, religious, charitable, and educational institutions, as well as those of arts and science, even when owned by the State, as private property; for details about the core framework of the 1907 Hague IV Convention see e.g. Hull, op. cit. n. 27, p. 213 et seq. or R. O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge, Cambridge University Press 2006) p. 22 et seq. 40 R. O’Keefe, op. cit. n. 39, at p. 27. 41 Article 3 1907 Hague IV Convention. 42 For a discussion of this term see e.g. R. O’Keefe, op. cit. n. 39, at p. 23.

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An important step was taken in 1935, when the United States and 20 Latin American countries signed the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, commonly referred to as the Roerich Pact.43 The main purpose of the Roerich Pact was the respecting of ‘treasures of culture’ in peacetime as well as in wartime.44 Under its regime ‘historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents.’45 The focus was primarily on immovable objects, whereas movable property was only protected insofar as it was located in a protected building.46 The Geneva Conventions of 1949, especially the Forth Geneva Convention of 1949, the Convention (IV) relative to the Protection of Civilian Persons in Time of War (hereinafter, GCIV), should also be mentioned as another important piece of the puzzle paving the way for the first UNESCO convention aimed at the protection of cultural heritage. More than eight decades after the creation of the first Geneva Convention under the auspices of the International Committee of the Red Cross in 1863 and affected by the cruelties of World War II, representatives of approximately 70 national governments met at a diplomatic conference in Geneva to set a new standard for international humanitarian law concerns. On August 12, 1949, after more than three months of intense discussion, the diplomatic conference adopted four new Geneva conventions, based on a revision of the existing Geneva law, a draft dated 1934—the Tokyo Draft—and the Hague Conventions of 1907. With the exception of common47 Article 3, which applies to non-international conflicts and which can be found in all four Geneva Conventions,

43 The text of the Roerich Pact is available online at http://www.icrc.org/ihl.nsf/ FULL/325?OpenDocument (last visited on December 31, 2008). The former Soviet Union signed the Roerich Pact in 1954, making it the only non American party. 44 Preamble of the Roerich Pact. 45 Article 1 Roerich Pact. 46 Merryman 1986, loc. cit. n. 20, at p. 835. The Roerich Pact also asked for identifying protected properties by the Banner of Peace bearing the Pax Cultura emblem. It was widely superseded by the distinctive marking as defined by the 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict and is currently only relevant for States Parties which are bound by the Washington Treaty of 1935 but not by the 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict, applying (as of December 31, 2008) to the United States and Chile. 47 E.g. Article 3 GCIV: ‘In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.To this end the following acts are

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the Geneva Conventions apply to conflicts with international characteristics. An important new feature of the 1949 Geneva Conventions is linked to the protection of civilians. Unlike the older Geneva Conventions the Geneva Conventions of 1949 expand their scope of application to comprise not only combatants but also the protection of civilians. In addition to the added regulations on the protection of civilians, the inclusion of property into the scope of application has to be accentuated. While major parts of the Geneva Conventions of 1949 were basically revised texts of the already existing Geneva law, the GCIV was a new instrument within the Geneva legal framework and partly linked to the Hague Convention IV Respecting the Laws and Customs of War on Land of 1907. The GCIV, which entered into force in 1950 and which has been ratified by nearly 200 States Parties so far,48 is targeted at the protection of civilians, defined by Article 4 GCIV as persons ‘who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.’49 The GCIV does however also include property in various forms in its protective regime. For example, Article 33 GCIV forbids ‘[r]eprisals against protected persons and their property’. Article 53 GCIV goes a step further and says that ‘[a]ny destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations’. Property related provisions can be found throughout this convention and the protected pillar ‘property’ is also included in Article 146 GCIV on penal sanctions and Article 147 GCIV on ‘grave breaches’ of the convention mandating States Parties to enact suitable legislation to support the protective regime of the GCIV on a local basis. Undoubtedly, the

and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’; The wording of Article 3 of the other three Geneva Conventions is exactly the same with the exception that Article 3 of the Second Geneva Convention adds the term shipwrecked to the term wounded and sick. 48 See http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P (last visited on December 31, 2008). 49 The term civilians should not be mixed with the personal scope of application of the Third Geneva Convention of 1949 (hereafter, GCIII), prisoners of war. For a detailed definition of the term prisoners of war see Article 4 GCIII. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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idea of protecting people and property in general from the threats of armed conflicts was given fresh impetus—and the time seemed ripe for a further instrument—a more detailed yet narrower regime of protection, the protection of cultural property.50 Although GCIV itself does little, Protocol 151 which it adopted in 1977 strengthened the protective regime applicable to cultural heritage. Article 53 of the Protocol prohibits “to commit any acts of hostility directed against historic monuments, works of art or places of worships which constitute the cultural or spiritual heritage of peoples”, the use of such objects for military effort, and direct reprisals against such objects. According to Article 85, paragraph 4 (d) and paragraph 5, to destroy “the clearly-recognized historic monuments, works of art or places of worship” constitutes a “grave breach” and shall be regarded as war crimes. 2. Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954)52 2.1. The 1954 Convention: Facing the Threats of Armed Conflicts 2.1.1. Background of the 1954 Convention: Wartime Destruction In the wake of the massive destruction of cultural heritage during the Second World War, it became obvious that there was a need to specially focus on protecting cultural heritage in wartime. It was also clear that the best way to accomplish that goal was the introduction of an international legal instrument, as previous attempts53 did not show the positive effects hoped for. Three years after its establishment, UNESCO—based on its constitutional presetting of ‘assuring the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions’54—initiated comprehensive studies related to wartime protec-

50

See e.g. UNESCO Doc. CLT/CIH/MCO/2008/PI/69/REV: UNESCO, Protect Cultural Property in the Event of Armed Conflict (Paris, UNESCO Publishing 2005) 14 et seq. (available online at http://unesdoc.unesco.org/images/0013/001386/138645e.pdf, last visited on December 31, 2008). 51 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted in 1977, entered into force in 1979) (the text is available at: http://www.unhchr.ch/html/menu3/b/93.htm, last visited on December 31, 2008). 52 If used without any determination, the term convention refers to the Convention for the Protection of Cultural Property in the Event of Armed Conflict in this chapter. 53 Supra I.1. Also Hélène Tigroudja, ‘Les règles du droit international général applicable à la protection du partimoine culturel en temps de conflict armé’, in Nafziger and Scovazzi, op. cit. n. 10, pp. 771–816. 54 Article I (2) (c) UNESCO Constitution. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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tion of cultural objects.55 Based on intensive discussions and taking into account various draft proposals and comments by the UNESCO Secretariat, the International Council of Museums (ICOM),56 UNESCO’s Member States and experts groups, UNESCO convened an intergovernmental conference in 1954 in order to transpose the deliberative results into a legally binding international framework.57 On May 14, 1954 the final draft of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter the ‘1954 Convention’),58 the first global treaty solely focusing on the protection of cultural heritage in the event of armed conflict,59 and the Regulations for the Execution of the Convention (hereafter the ‘Hague Regulations’) as an ‘integral part’60 of it were adopted. 2.1.2. Scope of Application of the 1954 Convention and the Term Cultural Property The main purposes of the 1954 Convention were the safeguarding and respect for both movable and immovable tangible cultural property during armed conflicts,61 attempting ‘to strike a balance between humanitarian and military requirements’.62 As R. O’Keefe points out that balance was also a ‘perennial one between maximizing participation in the convention and maximizing the protection it afforded,’63 meaning that the drafters of the 1954 Convention had to provide a basis acceptable to as large a number of states as possible, making it impossible to lace together a comprehensive and tight legal instrument for the protection of cultural property. For the sake of attracting as many states as possible concessions had to made, weakening the positive impact of the convention and—as will be shown below—this has led to heavy criticism among scholars and the international community.64 Still, it should

55 UNESCO Resolution 6.42. (text available online at http://unesdoc.unesco.org/images/ 0011/001145/114593e.pdf; last visited on December 31, 2008). 56 Established in 1946 as an international non-governmental organization and consultative body of UNESCO with the headquarters in Paris, the International Council of Museums (ICOM) focuses on ‘the conservation, continuation and communication to society of the world’s natural and cultural heritage, present and future, tangible and intangible’ (Article 2 (1) ICOM Statute; available online at http://icom.museum/statutes.html; last visited on December 31, 2008). 57 For details on the drafting process see e.g. Chamberlain, op. cit. n. 28, p. 22 et seq. 58 A full text version is available online at http://portal.unesco.org/en/ev.php-URL_ ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html (last visited on December 31, 2008). 59 Merryman 1986, loc. cit. n. 20, at p. 836. 60 Article 20 1954 Convention. 61 See Articles 2 and 3 1954 Convention. 62 Chamberlain, op. cit. n. 28, at p. 23. 63 R. O’Keefe, op. cit. n. 39, at p. 93. 64 Infra I.2.3.

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be noted that the 1954 Convention and its two supplementary protocols65 are the most comprehensive and ‘most important legal instruments for the protection of cultural property in time of armed conflicts’ and should be respected for having increased the ‘awareness of the significance of cultural property and developing the concept of common cultural property.’66 For a proper understanding of the legal framework of the 1954 Convention two fundamental terms have to be defined: the terms cultural property and armed conflict. With regard to the latter, the 1954 Convention states that its regulations are basically applicable ‘in the event of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one or more of them.’67 The term armed conflict has been described as ‘[a]ny difference arising between two [or more] States and leading to the intervention of members of the armed forces.’68 Another useful definition of the term armed conflict was made in 1995 by the International Criminal Tribunal for the former Yugoslavia (hereafter the ‘ICTY’).69 Basically it stated that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.’70 Such status continues ‘from the initiation of armed conflict and extends beyond the cessation of hostilities until a general conclusion of peace is reached,’ when it is international, or, should the armed conflict be non-international, until ‘a peaceful settlement is achieved.’71 Thus, the concept of armed conflicts under the regime of the 1954 Convention refers to a wider spectrum than just legal states of war. R. O’Keefe 65

Infra I.2.2. for the First Protocol and infra I.2.3. for the Second Protocol. S. Eagen, ‘Preserving Cultural Property: Our Public Duty: A Look at How and Why We Must Create International Laws that Support International Action’, 13 Pace International Law Review (2001) p. 407 at p. 426. Also Maurice K. Kamga, ‘La convention pour la protection des biens culturels en cas de conflit armé de 1954 et ses deux protocoles de 1954 et de 1999’, in Nafziger and Scovazzi, op. cit. n. 10, pp. 817–849. 67 Article 18 (1) 1954 Convention. 68 R. O’Keefe, op. cit. n. 39, at p. 96 citing J. Pictet, ed., Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Commentary (Geneva, ICRC Publishing 1958) at p. 20. 69 The International Criminal Tribunal for the Former Yugoslavia (ICTY) is a body of the United Nations (UN) established to prosecute serious crimes committed during the wars in ex-Yugoslavia and to try their alleged perpetrators. It is organized as an ad-hoc court and located in The Hague. For details refer to ICTY Statute available online at http://www.icls.de/ dokumente/icty_statut.pdf (last visited on December 31, 2008). 70 The Prosecutor v. Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal Jurisdiction), No. IT-94-1-AR72, Paragraph 70 (ICTY 1995), available online at http://www. un.org/icty/tadic/appeal/decision-e/51002.htm (last visited on December 31, 2008), cited by H. Abtahi, ‘The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the Former Yugoslavia’, 14 Harvard Human Rights Journal (2001) p. 1 at p. 3. 71 Abtahi, loc. cit. n. 70, at p. 3. 66

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states that ‘the machinery of control established by the [1954] Convention is applicable as much to belligerent occupation as they are to active hostilities,’72 while Chamberlain explains that the 1954 Convention also applies to other forms of armed disputes such as to ‘acts of self-defence, peacekeeping operations under the authority of the United Nations, or undeclared hostilities.’73 Article 18 (2) of the 1954 Convention clarifies that the Convention is also applicable ‘to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.’ R. O’Keefe states that the undefined term occupation ‘relies . . . on the accepted customary definition reflected in Article 42 of the Hague Rules [note: 1899 Hague II Convention and 1907 Hague IV Convention respectively], which states that the territory is considered occupied “when it is actually placed under the authority of the hostile army” and that the occupation “extends only to the territory where such authority is established and can be exercised” ’.74 With regard to the application in relation to non-signatory states Article 18 (3) of the 1954 Convention stipulates that the Convention should also be applicable if the non-signatory state declares ‘that it accepts the provisions thereof and so long as it applies them,’ a provision which was of practical importance for example in relation to the (Federal Republic of ) Germany before its ratification of the 1954 Convention.75 The 1954 Convention also sets the frame for a minimum standard of application in the case of mere internal conflicts in a State Party’s territory, as its Article 19 prescribes the application of at ‘a minimum, the provisions of the present Convention which relate to respect for cultural property.’ The outstanding element found in and introduced by the 1954 Convention for the first time is the ‘realization by the High Contracting Parties that cultural property is of the utmost importance to mankind and needs to be given the ultimate in protection measures.’76 Another step forward is the fact that the 1954 Convention tries to protect cultural property regardless of its origin, ownership or the territory it is situated in.77 The basic idea behind that principle is the conviction that every kind of damage to cultural

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R. O’Keefe, op. cit. n. 39, at p. 97. Chamberlain, op. cit. n. 28, at p. 66. As for non-traditional types of armed conflicts, see Rosario Domínguez-Matés, ‘The international protection of cultural heritage during nontraditional armed conflicts, including acts of terrorism’, in Nafziger and Scovazzi, op. cit. n. 10, pp. 851–882. 74 R. O’Keefe, op. cit. n. 39, at p. 97. 75 See R. O’Keefe, op. cit. n. 39, at p. 97 n. 21. 76 S.A. Williams, The International and National Protection of Movable Cultural Property (New York, Oceana Publications Inc. 1978) at p. 41. 77 B. Thorn, Internationaler Kulturgüterschutz nach der UNIDROIT-Konvention [International Protection of Cultural Property after the UNIDROIT Convention] (Berlin, De Gruyter Rechtswissenschaften Verlags-GmbH 2005) at p. 35. 73

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property constitutes harm to the cultural heritage of human mankind, as every nation contributes to the world’s culture, thus creating the need to protect the cultural heritage of all peoples by means of an international mechanism.78 That leads Merryman to the conclusion that the 1954 Convention is ‘a piece of international legislation that exemplifies an influential way of thinking about cultural property,’79 calling this concept a piece of ‘cultural internationalism.’80 When drafting the 1954 Convention it was believed that previous international agreements touching on the issue of cultural property included ‘overambitious definitions, which, by aiming too high, risked getting to little.’81 What was reached in the end was a single definition of the property falling within the scope of application of the 1954 Convention, giving it ‘a specific legal definition.’82 The respective term cultural property is defined in Article 1 of the 1954 Convention as follows: (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 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) centres containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as ‘centres containing monuments.’

R. O’Keefe notes that ‘the [note: exemplary] definition is strictly for the purposes of the 1954 Convention [note: and its two protocols83]. It is not crossreferable to the definitions found in subsequent UNESCO instruments.’84 As the definition shows, cultural property under the regime of the 1954 Convention can take the form of both movable as well as immovable tangible property. What makes the respective property a cultural property in terms of the 1954 Convention is the fact that it has to be ‘of great importance to the 78 Thorn, op. cit. n. 77, at. p. 35; Thorn also expresses that the convention has one of its origins in the idea put forward by Quatremere de Quincy who declared the national cultural property as common heritage of mankind and every state as being an escrow holder in relation to the cultural heritage in its territory—see Thorn, op. cit. n. 77, at p. 36. 79 Merryman 1986, loc. cit. n. 20, at p. 842. 80 Merryman 1986, loc. cit. n. 20, at p. 842. 81 R. O’Keefe, op. cit. n. 39, at p. 101 citing 7 C/PRG/7, Annex I, p. 7. 82 R. O’Keefe, op. cit. n. 39, at p. 101. 83 Infra I.2.2. and I.2.3. 84 R. O’Keefe, op. cit. n. 39, at p. 102.

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cultural heritage of every people’. The phrase ‘of every people’ is basically understood as leaving the discretion in determining whether or not a property is of great importance to the respective State Party in whose territory the property is found.85 It is also argued that this discretionary power has to be reflected in an active approach taken by the State Party in whose territory the property is located. The State Party should either notify other States Parties of its identification of a piece of property as cultural property prior to an armed conflict [note: as an expression of an ‘appropriate safeguarding measure in peacetime’ in terms of Article 3 1954 Convention]86 or mark the respective object with the ‘distinctive emblem’ introduced by Article 6 of the 1954 Convention to identify it as a cultural property in order to dispel doubts about its classification.87 2.1.3. Legal Framework of the 1954 Convention: Safeguarding and Respect The material core of the 1954 Convention, the protection of tangible cultural property, is founded on two pillars: mechanisms of safeguarding and respect. The first layer refers to an active role to be played by the States Parties with respect to cultural property in their territories. States Parties are asked to take preventive actions in peacetime with the aim of safeguarding cultural properties as defined by Article 1of the 1954 Convention ‘against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate.’88 This general obligation is not further defined by the 1954 Convention. Instead the discretion is left to the respective State Party to take any measure which it deems to have a positive impact on the preservation of the cultural property situated in its territory. The States Parties can go to any lengths including such measures as installing protective zones, setting up protective constructions, taking exposed movable objects to safer places or—as shown above89—informing other States Parties of identifications of objects as cultural property or marking such objects with the ‘distinctive emblem’ of Article 6 of the 1954 Convention. The second layer, referred to as respect for cultural property by the 1954 Convention, relates to the protection of cultural property during armed conflicts and is addressed at States Parties whose territories are struck by armed conflicts as well as at States Parties which take part in armed conflicts 85 Chamberlain, op. cit. n. 28, at p. 36; for a short analysis of this term see also R. O’Keefe, op. cit. n. 39, at p. 103. 86 See also Article 4 (5) 1954 Convention: ‘No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3.’ 87 R. O’Keefe, op. cit. n. 39, p. 110 et seq. 88 Article 3 1954 Convention. 89 Supra I.2.1.2.

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in foreign territories. The underlying obligations are to be found primarily in Article 4 of the 1954 Convention. As R. O’Keefe points out one can basically distinguish between four groups of obligations: ‘[firstly,] refraining from any use of cultural property and its immediate surroundings for purposes which are likely to expose it to destruction or damage in the event of armed conflict; [secondly,] refraining from any act of hostility directed against such property; [thirdly,] prohibiting, preventing and, if necessary, putting a stop to theft, pillaging, misappropriation and vandalism of such property, as well as refraining from requisitioning such property; and [fourthly] refraining from reprisals against such property.’90 One of the most critical aspects of the 1954 Convention refers to the first to groups of obligations and can be found in Article 4 (2) of the 1954 Convention which states that those obligations ‘may be waived only in cases where military necessity imperatively requires such a waiver’. Thus, both subcategories are not to be understood as being absolute obligations, but find their limitations in the undefined case of military necessity for waiving the obligations. The lack of definition of military necessity obviously creates complications and remained to be a hot topic in the drafting process of the supplementary Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, as it possibly can lead to an abuse of the waiver system.91 The basic protective mechanism of the 1954 Convention is supplemented by a regime of special protection aimed at providing a higher standard of protection.92 The regime of special protection applies to the first two of the above-mentioned obligations of Article 4: refraining from using cultural property and its surroundings for military purposes and refraining from directing acts of hostility against it. The possible objects of special protection, refuges to shelter cultural property, have to fulfill two requirements in order to qualify as specially protected cultural property. The first requirement is that the object has to be ‘situated at an adequate distance from any large industrial center or from any important military objective constituting a vulnerable point.’93 The second is that the object may not be used ‘for military purposes’.94 In order to be granted special protection, objects which meet both requirements have to be inscribed on the International Register of Cultural Property under Special Protection (hereafter the ‘Hague Register’) by UNESCO’s Director-General. Inscriptions in the Hague Register are based on applications of either the State Party on whose territory the respective

90 91 92 93 94

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property is situated or by the occupying State Party in the case of belligerent occupation and are subject to limited veto rights of other States Parties.95 The main, but in fact still ‘extraordinarily minor’96 difference between the regimes of general and special protection is expressed by the exemption clauses with regard to the waiver option in cases of military necessity, requiring an unavoidable military necessity under the regime of special protection.97 The vague term unavoidable as well as the undefined requirement of having to be located at an adequate distance and the complex inscription process made the special protective regime extremely unattractive for the States Parties with the result that only a handful of objects can be found in the Hague Register. The 1954 Convention also tries to strengthen international respect and cooperation, for example by asking occupying States Parties to ‘support the competent national authorities’ of the occupied States Parties in their protective measures,98 by encouraging States Parties to foster the awareness of the need for respecting cultural property ‘of all peoples’99 and by encouraging States Parties to conclude ‘special agreements’100 aimed at supporting the ideas of the 1954 Convention. 2.2. First Protocol to the 1954 Convention: Dealing with the Threat of Exploitation 2.2.1. Background and Scope of Application of the First Protocol to the 1954 Convention: The Battle Against a Growing Black Market World War II showed that destruction of cultural property was not the only threat which had to be averted. Especially the export of cultural property from occupied countries by the Nazi regime and its subsequent commercialization raised the awareness of the need for the regulation of a further area: the battle against the market of illegally exported and distributed cultural property. As the following decades have shown, this aspect has become the main danger to movable cultural property. Although the issue of illicit removal of cultural property could have been combined with the destruction of cultural property in the main text of the Convention, a different approach was chosen: together with the 1954 Convention a separate legal instrument, the Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter the

95 96 97 98 99 100

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‘First Protocol’) was introduced.101 The main reason for not incorporating provisions on the regulation of illicit removal into the 1954 Convention was its intended scope of application: the respective provisions of the original draft of the First Protocol also alluded to the topic of private law rights of ownership of goods, leading to ‘the insistence of some States on maintaining the separation between public and private law’,102 although, as Toman points out, ‘the text adopted retained only the aspects of public international law within the international competences of States, the private law aspects having been abandoned. The provisions adopted concerned only the safeguarding of each country’s cultural heritage’.103 Still, by creating a separate document, interference with the main text and possible difficulties for its signing were circumvented.104 Disagreements among scholars can be found with respect to the scope of application of the First Protocol. As far as the High Contracting Parties to the First Protocol are concerned, R. O’Keefe’s opinion should be followed: in contrast to older views105 the First Protocol is deeply linked to the 1954 Convention. Contracting Parties to the First Protocol must also be Contracting Parties to the latter one. Despite not having included an explicit regulation dealing with the relationship between the 1954 Convention and the First Protocol one can detect various cross references to the 1954 Convention.106 This fact leads to the result that High Contracting Parties to the First Protocol must also be High Contracting Parties to the 1954 Convention. However, R. O’Keefe’s view on the scope of application cannot be followed without restriction. Regarding the property protected under Section 1 of the First Protocol as outlined below (‘protected property’), the area of application goes beyond his assumption. As various scholars point out, the wording of Section 1 of the First Protocol illustrates that cultural property as a whole is protected regardless of its localization.107 Articles 1 and 4 (1) of the First Protocol stipulate the States Parties’ obligation ‘to prevent the

101 The text is available online at http://portal.unesco.org/en/ev.php-URL_ID=15391&URL_ DO=DO_TOPIC&URL_SECTION=201.html (last visited on December 31, 2008). 102 L.V. Prott, ‘UNESCO and UNIDROIT: A Partnership Against Trafficking in Cultural Objects’, in N. Palmer, ed., The Recovery of Stolen Art: Collection of Essays (London, Kluwer Law International 1998) p. 205 at p. 205. 103 J. Toman, The Protection of Cultural Property in the Event of Armed Conflict: Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, Signed on 14 May 1954 in The Hague and Other Instruments of International Law Concerning Such Protection (Aldershot, Vermont, Dartmouth Publishing Company Limited 1996) at p. 344. 104 R. O’Keefe, op. cit. n. 39, at p. 196. 105 R. O’Keefe, op. cit. n. 39, at p. 196 referring to P.J. O’Keefe, ‘The First Protocol to the Hague Convention Fifty Years on’, 9 Art Antiquity and Law (2004) p. 99 at p. 113. 106 E.g. Articles 1 and 10 (c) First Protocol—see R. O’Keefe, op. cit. n. 39, at p. 197 for details. 107 E.g. Toman 1996, op. cit. n. 103, at p. 344; Williams, op. cit. n. 76, at p. 41.

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exportation . . . from a territory occupied by it’, which does not state that that territory must be a State Party’s territory. Thus, not only property situated in territories belonging to States Parties, but also property in other territories falls within the regulatory framework of Section 1 of the First Protocol. Unlike the 1954 Convention, the First Protocol does not distinguish between internal and international armed conflicts; neither of them is mentioned in the text of the First Protocol. As illegal export of cultural properties can occur in both scenarios, Prott suggests it should be ‘consider[ed]’ that the First Protocol also applies to armed conflicts ‘not of an international character’.108 2.2.2. Legal Framework of the First Protocol: Short But Better Than Nothing The First Protocol regulates basically two types of movable cultural properties, namely: (1) properties illegally exported from occupied territories (Section 1 of the First Protocol); and (2) properties which—for the purpose of protecting against the dangers of an armed conflict—were deposited from one state to another state (Section 2 of the First Protocol ).109 As a basic rule and prime obligation, Paragraph110 1 of the First Protocol stresses that Occupying Parties have to ensure that no cultural property as defined in the 1954 Convention111 will be exported during the time of occupation. This applies not only to export by the occupying authorities, but also

108 L.V. Prott, ‘The Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention) 1954’, in M. Briat and J.A. Freedberg, eds., Legal Aspects of International Trade in Art (The Hague, Kluwer Law International 1996) p. 163 at p. 170. 109 Although section 3 on the final provision of the First Protocol offers the High Contracting Parties the chance to declare not to be bound by the provisions included either in Section 1 or Section 2 none of the Parties has given such a declaration yet. This can be seen as a sign for the general acceptation of the basic ideas behind the First Protocol. 110 Unlike the classification usually used by international hard law agreements the first Protocol does not use the term article for the enumeration of its provisions, a fact which to the usage of paragraphs in relevant illustrations of the First Protocol. 111 Article 1 1954 Convention: For the purposes of the present Convention, 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’.

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to exportation by private parties.112 As this preventive undertaking is very difficult to be accomplished in practice, the First Protocol also introduced further obligations: Illegally exported properties must be taken into custody, either directly or indirectly, by the receiving state.113 Confiscation may be done automatically, or at the request of the authorities in that territory. In order to accomplish the protection of the origins of the respective cultural property exported during war, each High Contracting State Party shall return illegally exported cultural properties which are in its territory at the close of hostilities to the competent authorities of the territory previously occupied. The appropriation of such cultural property as war reparation is expressly forbidden.114 The state responsible for preventing such illegal exports from occupied territories shall indemnify holders in good faith of any cultural property which has to be returned. This should be seen as a penalty clause addressed at the High Contracting State Party responsible for the protection pursuant to Paragraph 1 of the First Protocol. Section 2 of the First Protocol completes the restitution of exported cultural property. Whereas Section 1 refers to more or less aggressive export, Section 2 of the First Protocol, consisting of only one paragraph, refers to the return of cultural property which was transported from the territory of one High Contracting Party to the territory of a second High Contracting Party for protective reasons. 2.3. Second Protocol to the 1954 Convention: An Answer to a Toothless Instrument 2.3.1. Background of the Second Protocol: Dealing With the Shortcomings of the 1954 Convention Despite the ambitious approaches taken by the 1954 Convention and its First Protocol atrocious acts continued to be committed against cultural properties in the course of many conflicts, particularly during the Iraq-Iran War in 1980 and conflicts in the former Soviet Union and the former Yugoslavia, for which the ICTY was created.115 These conflicts that took place at the end of the 1980s and the beginning of the 1990s brought to fore the need to introduce a number of improvements for the implementation process of the 1954 Convention. Various parts of the 1954 Convention were considered to be a failure and toothless in their

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implementation.116 Criticized aspects of the 1954 Convention included especially its vague and abstract language,117 the almost unconvertible regime of special protection, the lack of unification of international and non-international armed conflicts, the complicated and thus weak international control and the rudimentary sanction system. The first attempts at improvement were taken in 1991 when the UNESCO Secretariat initiated a revision of the 1954 Convention. Discussions among the negotiating parties turned out to be more complex and difficult than expected. In the end it took eight years to adapt a compromise in the form of a supplementary agreement. In March 1999 the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (hereafter the ‘Second Protocol’) was implemented. The Second Protocol complements rather than replacing the 1954 Convention. Although it is basically supplementary to the 1954 Convention, it has been ‘generally applauded by cultural property protection advocates as an improvement of the 1954 Convention.’118 Pursuant to Article 40 in combination with Article 1 (d), the Second Protocol is open to High Contracting Parties, which means that as a prerequisite of joining the Protocol the respective party has to be a High Contracting Party to the 1954 Convention. This clarification was inserted in order to avoid discussions known from and in relation to the First Protocol.119 2.3.2. Important Cornerstones of the Second Protocol: Enhancing the 1954 Framework The Second Protocol tries to cope with the aforementioned problems by introducing new provisions and thus rounding off the 1954 Convention. The Second Protocol led among others to a number of improvements. Firstly, the Second Protocol revised the complicated institutional international control system of the 1954 Convention120 and installed a new mechanism: the introduction of the Committee for the Protection of Cultural Property in the Event of Armed Conflict (hereafter the ‘Armed Conflict Committee’) as a supervisory body with decisive competences regarding the granting, suspension and cancellation of enhanced property (which as

116 C. Brenner, ‘Cultural Property Law: Reflecting on the Bamiyan Buddhas’ Destruction’, 29 Suffolk Transnational Law Review (2006) p. 237 at p. 257; R. O’Keefe, op. cit. n. 39, p. 236 et seq. 117 E.A. Posner, ‘The International Protection of Cultural Property: Some Skeptical Observations’, 8 Chicago Journal of International Law (2007) p. 213 at p. 218. 118 J.C. Johnson, ‘Under New Management: The Obligation to Protect Cultural Property During Military Occupation’, 190–91 Military Law Review (2006/2007) p. 111 at p. 132; See infra I.2.3.2. for the major changes. 119 See supra I.2.1.1. 120 R. O’Keefe, op. cit. n. 39, at p. 288.

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outlined later was deemed to replace the weak regime of special protection), as well as supportive functions in the identification process of enhanced property and supervisory tasks for the implementation of the Second Protocol. The Armed Conflict Committee should cooperate with various national and international organizations which cover objectives similar to those of the 1954 Convention and its two subsequent protocols.121 It was also equipped with core functions in relation to the also newly established Fund for the Protection of Cultural Property in the Event of Armed Conflict, whose function is the provision of financial aid in various cases outlined in Article 29 (1) of the Second Protocol.122 Unlike under the regime of the Convention for the Protection of the World Cultural and Natural Heritage of 1972 Parties to the Second Protocol are not obliged to contribute to the fund.123 Secondly, Chapter 3 of the Second Protocol introduced a new category of protection: the body of enhanced protection with the aim at practically replacing the abortive system of special protection established by the 1954 Convention. The mechanism of the 1954 Convention showed a series of flaws and led to only a handful of entries in the International Register of Cultural Property under Special Protection maintained by UNESCO’s Director-General.124 In addition to the complicated institutional mechanism for inclusion on the list which required unanimity of all States Parties, the localization requirements were considered to be the main obstacle to a successful implementation of the special protection category.125 According to Article 8 (1) (a) of the 1954 Convention the cultural property had to be ‘situated at an adequate distance from any large industrial center or from any important military objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged upon work of national defense, a port or railway station of relative importance or a main

121 Art 27 (3) Second Protocol lists as examples the International Committee of the Blue Shield (ICBS), the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) and the International Committee of the Red Cross (ICRC). 122 Article 29 (1) Second Protocol: A Fund is hereby established for the following purposes: a. to provide financial or other assistance in support of preparatory or other measures to be taken in peacetime in accordance with, inter alia, Article 5, Article 10 subparagraph (b) and Article 30; and b. to provide financial or other assistance in relation to emergency, provisional or other measures to be taken in order to protect cultural property during periods of armed conflict or of immediate recovery after the end of hostilities in accordance with, inter alia, Article 8 sub-paragraph (a). 123 R. O’Keefe, op. cit. n. 39, at p. 293; see also infra I.4.3. 124 J. Hladik, ‘The Second Protocol to the 1954 Hague Convention and Progress in International Humanitarian Law’, 55 Museum International (2003) p. 44 at p. 46. 125 J. Toman, ‘The Hague Convention—A Decisive Step Taken By the International Community’, 57 Museum International (2005) p. 7 at p. 18; R. O’Keefe, op. cit. n. 39, at p. 144 with reference to points of criticism made by various Member States; Hladik mentions further possible obstacles—see Hladik, loc. cit. n. 124, at p. 46.

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line of communication’. The newly established enhanced protective category126 with its List of Cultural Property under Enhanced Protection (hereafter the ‘Enhanced Protection List’) tries to overcome the flaws of the special protective regime by renewing the system. In contrast to the ‘old’ regime and also in contrast to the inclusion on the World Heritage List established by the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage127 the Enhanced Protection List is basically open to immovable cultural property as well as to movable cultural property. The granting process was transformed into a more institutional one by the installation of the Armed Conflict Committee, a body endowed with the power to make final decisions on inclusion in the Enhanced Protection List. It should also be pointed out that respective decisions of the Armed Conflict Committee require a four-fifths majority instead of unanimity as under the regime of the 1954 Convention. The requirement of localization at an adequate distance from large industrial centers or important military objectives was dropped as well. Thirdly, in contrast to the 1954 Convention which for the most part (though not entirely) is only applicable in cases of international armed conflicts,128 the whole of the Second Protocol and not only its ‘provisions relating to the respect for cultural property’129 is applicable in cases of non-international conflicts as well. Thus, as a basic rule, the Second Protocol is equally applicable in both international and internal armed conflicts, an important step forward, as the threats imposed by internal armed conflicts have increased over the past decades.130 Fourthly, the rudimentary sanction system of the 1954 Convention was reconfigured. Article 28 of the 1954 Convention simply stated that ‘the High Contracting Parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal

126 Article 10 Second Protocol discusses the conditions for Enhanced Protection, namely that cultural property: (a) is cultural heritage of the greatest importance for humanity; (b) is protected by adequate domestic legal and administrative measures recognizing its exceptional cultural and historic value and ensuring the highest level of protection; (c) it is not used for military purposes or to shield military sites and a declaration has been made by the Party which has control over the cultural property, confirming that it will not be used. 127 See infra I.4.2. and I.4.3. 128 Article 19 (1) 1954 Convention. 129 See Article 19 (1) 1954 Convention: ‘In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as, a minimum, the provisions of the present Convention which relate to respect for cultural property.’ 130 A. Bos, ‘The Importance of the 1899, 1907 and 1999 Hague Conferences for the Legal Protection of Cultural Property in the Event of Armed Conflict’, 57 Museum International (2005) p. 32 at p. 37.

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or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present [note: 1954] Convention’. This provision was criticized for its very general wording,131 which did not give any examples of breaches and thus left the interpretation to the discretion of States Parties without providing a framework for its implementation.132 This led to ‘inconsistent decisions due to disparities between countries.’133 In order to strengthen the implementation of the Second Protocol, new penal aspects concerning the protection of cultural property were established by defining minor offences (other violations),134 integrating and introducing a group of more dangerous violations (serious violations)135 and dealing with procedural issues such as extradition136 and mutual legal assistance.137 Francioni calls the newly introduced penal provisions ‘the most and detailed provisions on individual criminal liability for serious violations of international norms on the protection of cultural heritage.’138 Fifthly, other parts of the 1954 Convention were considered to be formulated in too vague a way, leaving plenty of space for different interpretations by the States Parties. Among those areas the instrument for safeguarding cultural property in peacetime139 as well as the waiver option concerning general protection during armed conflicts140 can be pointed out. In relation

131

R. O’Keefe, op. cit. n. 39, at p. 274. C. Fox, ‘The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: An Answer to the World Problem of Illicit Trade in Cultural Property’, 9 The American University Journal of International Law & Policy (1993) p. 225 at p. 248. 133 J.N. Lehman, ‘The Continued Struggle with Stolen Cultural Property: The Hague Convention, the UNESCO Convention, and the UNIDROIT Draft Convention’, 14 Arizona Journal of International and Comparative Law (1997) p. 527 at p. 535. 134 Article 21 Second Protocol. 135 Article 15 Second Protocol defines the acts that are considered serious violations as: (a) Making cultural property under enhanced protection the object of an attack; (b) Using cultural property under enhanced protection or its immediate surroundings in support of military action; (c) Extensive destruction or appropriation of cultural property protected under the Convention and this Protocol; (d) Making cultural property protected under the Convention and this Protocol the object of attack; (e) Theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention. The aforesaid chapter also clarifies matters of jurisdiction and requisites of individual criminal responsibility. 136 Article 18 Second Protocol. 137 Article 19 Second Protocol. 138 F. Francioni, ‘Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity’, 25 Michigan Journal of International Law (2004) p. 1209 at p. 1216. 139 Article 3 1954 Convention. 140 Article 4 1954 Convention: (1) The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to 132

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to the first, the determination of safeguarding measures and the following implementation were left to the discretion of the States Parties. The Second Protocol tried to revive that aspect by giving examples of ‘merely indicative and not exhaustive’141 measures, namely the ‘preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property.’142 The latter vague formulation which was also heavily discussed in the drafting process of the Second Protocol concerned the waiver option in cases of military necessity regarding the protection of cultural property in armed conflicts.143 It was criticized that the wording could cause an abuse of the waiver system if States Parties by the means of interpreting the term military necessity in a free way use it ‘where it would be more truthful to speak of military convenience or even personal convenience,’144 a threat already known from Article 4 (2) of the 1954 Convention.145 The compromise which was reached tried to satisfy both the proponents and the opponents of the waiver system. Although the waiver instrument was not abandoned, the Second Protocol provided for a detailed set of requirements for the application of a waiver, trying to restrict and unify the use of that instrument.146

141 142 143 144 145 146

destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property. (2) The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver. R. O’Keefe, op. cit. n. 39, at p. 250 citing CLT/CH/94/608/2, p. 6. Article 5 Second Protocol. Article 4 (2) 1954 Convention. Eagen, loc. cit. n. 66, at p. 426. See supra I.2.1.3. Article 6 Second Protocol: With the goal of ensuring respect for cultural property in accordance with Article 4 of the Convention: a. a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to direct an act of hostility against cultural property when and for as long as: i. that cultural property has, by its function, been made into a military objective; and ii. there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective; b. a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage; c. the decision to invoke imperative military necessity shall only be taken by an officer commanding a force the equivalent of a battalion in size or larger, or a force smaller in size where circumstances do not permit otherwise; Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Although the Second Protocol has been widely considered to be an important improvement to the 1954 Convention,147 it has to be stressed that the acceptance of the Second Protocol is still rather weak compared to the 1954 Convention. The 1954 Convention currently has 122 States Parties.148 That number drops to 100 States Parties to the First Protocol149 and 51 States Parties to the Second Protocol150 (all numbers as of December 31, 2008). Posner blames the states’ attitude towards the protection of cultural property for this decrease. He notes that ‘states clearly do not want to take on strong obligations,’151 illustrating that, as Eagen puts it, the 1954 Convention [note: and its two Protocols] have ‘functioned more in a theoretical sense and [have] not rendered [themselves] easily to application when needed.’152 Still, the Second Protocol obviously increases the chances for a better implementation if it finds more states to join or as R. O’Keefe states, ‘a period of consolidation is needed now.’153 3. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970)154 3.1. Background of the 1970 Convention: Readjusting the Efforts in the Battle Against Illicit Trafficking Pillaging, theft and illicit export of cultural property have been serious problems for protecting cultural property throughout history, increasing in the colonial area and becoming more and more severe due to the appropriation of cultural property under the Nazi regime. By the 1980s the black-market for stolen or smuggled cultural property had become the ‘second [biggest] only to narcotics.’155 d. in case of an attack based on a decision taken in accordance with sub-paragraph (a), an effective advance warning shall be given whenever circumstances permit. 147 See e.g. Johnson, loc. cit. n. 118, at p. 132 or R. O’Keefe, op. cit. n. 39, at p. 241. 148 http://portal.unesco.org/la/convention.asp?KO=13637&language=E&order=alpha (last visited on December 31, 2008). 149 http://portal.unesco.org/la/convention.asp?KO=15391&language=E&order=alpha (last visited on December 31, 2008). 150 http://portal.unesco.org/la/convention.asp?KO=15207&language=E&order=alpha (last visited on December 31, 2008). 151 Posner, loc. cit. n. 117, at p. 421. 152 Eagen, loc. cit. n. 66, at p. 423. 153 R. O’Keefe, op. cit. n. 39, at p. 360. 154 If used without any determination, the term convention refers to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property in this chapter. 155 L.J. Harris, ‘From the Collector’s Perspective: The Legality of Importing Pre-Columbian Art and Artifacts’ in P.M. Messenger, ed., The Ethics of Collecting Cultural Property: Whose Culture? Whose Property? (Albuquerque, University of New Mexico Press 1999) p. 155 at Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Controlling the movement of cultural property has been a target for centuries. The first national legislative measures were taken in the nineteenth century mainly by European states.156 The first international movements on regulating this precarious and enormously complex area were started after World War I by the League of Nations, first alone and later in cooperation with the Office International des Musées.157 Negotiations and drafting came to a sudden end with the outbreak of World War II. Its course, however, made clear that the need for a legal framework was bigger than ever. Legislation of source states of cultural property alone turned out not to be the best approach, no matter how well-developed it was. International cooperation and codification was considered to be the key to solving the problem of illicit traffic of cultural property. As outlined above,158 the first, but limited provisions dealing with the problem of illicit trafficking of cultural property on an international basis were found in the 1954 Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (First Protocol ). The First Protocol covered to some extent the removal and illegal export of cultural property of occupied countries. However, it was very vague in its language and did not cover the problem of illicit trafficking of cultural property comprehensively. Above all it did not regulate the illicit export and import in peacetime, a phenomenon of raised concern. In 1960, Mexico and Peru, two countries severely hit by exploitation, pushed the discussions about an extensive regulation further within the framework of UNESCO. Two years later UNESCO’s Director-General presented a report to the General Conference stressing the importance of adopting an international instrument, leading to the appointment of an experts group for the drafting of preliminary recommendations for a convention in April 1964.159 Later in the same year the 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property160 was adopted by UNESCO. It was considered to be the first step towards drafting the desired convention.161 Supported by the

p. 155 citing J.A.R. Nafziger, ‘International Penal Aspects of Protecting Cultural Property’, 19 The International Lawyer (1985) p. 835; Warring, loc. cit. n. 2, at p. 234. 156 P.J. O’Keefe, Commentary on the UNESCO 1970 Convention on Illicit Traffic, 2nd edn. (Leicester, Institute of Art and Law 2007) p. 3. 157 P.J. O’Keefe 2007, op. cit. n. 156, at p. 3. 158 Supra I.2.1.2. 159 Williams, op. cit. n. 76, at p. 179 referring to UNESCO Doc. 13/PRG/17, Annex 1 (1964). 160 The text of the 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property is available online at http://unesdoc.unesco.org/images/0011/001145/114581e.pdf (last visited on December 31, 2008). 161 P.J. O’Keefe 2007, op. cit. n. 156, at p. 5. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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original initiators of the movement towards a binding international instrument, Mexico and Peru, and other victimized countries the drafting process of the Convention was further promoted. In 1968 a further experts group was installed, this time with the prime task of drafting a convention. The result was an already quite comprehensive draft in 1969,162 which in a revised version based on Member States’ comments163 was to become the basis for the adoption of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (hereafter, 1970 Convention)164 at the 16th General Conference on November 14, 1970.165 The 1970 Convention became the first international convention to deal with theft and illegal export comprehensively in peacetime and still is the most widely accepted convention covering this area comprehensively with 116 current Member States (as of December 31, 2008).166 The drafters of the 1970 Convention had to overcome grave difficulties as they had to merge two opposing interests. On the one hand they had to deal with the driving forces behind the 1970 Convention. These were comparatively poor countries which were rich in cultural property resources and asked for strict international obligations to protect their cultural property. On the other hand, nations with major art markets, such as the United States and several Western European Countries were concerned that licit international art exchange would severely be restrained if the obligations were too tight.167 As the fight against illicit traffic does not end at the border of the respective nation, but also needs the cooperation of the obtaining country, a compromise had to be found. Compared to the original draft the end product contained mainly obligations for the source nation, import restrictions were cut to an acceptable minimum.168

162 UNESCO Doc. SHC/MD/3 Annex; the text is available online at http://unesdoc.unesco. org/images/0006/000686/068688eo.pdf (last visited on December 31, 2008). 163 UNESCO Doc. SHC/MD/5 Annex 3; the text is available online at http://unesdoc. unesco.org/images/0006/000686/068690eo.pdf (last visited on December 31, 2008). 164 The text is available online at http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_ DO=DO_TOPIC&URL_SECTION=201.html (last visited on December 31, 2008) 165 Pursuant to Article 21 of the 1970 Convention the Convention entered into force on April 24, 1972. 166 See http://portal.unesco.org/la/convention.asp?KO=13039&language=E&order=alpha (last visited on December 31, 2008). 167 Williams, op. cit. n. 76, at p. 187. 168 S. Schorlemer, Internationaler Kulturgüterschutz: Ansätze zur Prävention im Frieden sowie im bewaffneten Konflikt [International Protection of Cultural Property: Attempt to Prevention in Peace Time as well as in Armed Conflict] (Berlin, Dunker & Humblot Gmbh 1992) p. 431.

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3.2. Scope of Application of the 1970 Convention: In Wartime and Peacetime Although pursuant to the preamble of the 1970 Convention the Convention focuses on protecting both national169 as well as international interests,170 the general perception is that the source nation’s interest in protecting and preserving its cultural property is the main target of the 1970 Convention with the cultural interchange being only a minor task.171 Merryman calls this a form of ‘cultural nationalism’ and contrasts it with the concept of the 1954 Convention which he calls a model of ‘cultural internationalism.’172 As far as the territorial-personal scope of the 1970 Convention is concerned, the provisions of the Convention apply exclusively to the relationship between States Parties. The States Parties, their authorities and their legislators are the sole addressees of the Convention. Private individuals are not direct addressees of the rights and obligations under the regime of the 1970 Convention.173 With regard to the period of applicability it should be noted that the 1970 Convention basically does not provide for a general timeframe.174 Thus, pursuant to Article 28 of the Vienna Convention on the Law of Treaties 1969 the principle of non-retroactivity comes into application.175 This means that the 1970 Convention binds the respective State Party only after the point of the respective ratification. This aspect caused criticism in the drafting process of the Convention as cultural property illegally exported or imported prior to the entry into force of the 1970 Convention is not protected. Some states, especially those which suffered the most by exploitation of their cultural property, asked for retroactive measures. This approach was, however,

169 E.g. Preamble (5) 1970 Convention: ‘Considering that it is incumbent upon every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export’. 170 E.g. Preamble (3) 1970 Convention: ‘Considering that the interchange of cultural property among nations for scientific, cultural and educational purposes increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations’. 171 Thorn, op. cit. n. 77, at p. 57. 172 Merryman 1986, loc. cit. n. 20, p. 842 et seq.; see also Brenner, loc. cit. n. 116, at p. 244 calling it a ‘nationalistic approach’. 173 Thorn, op. cit. n. 77, p. 62 et seq. 174 Single regulations can be found in Article 7 (a) of the 1970 Convention which refers to cultural property illegally exported or removed after entry into force of this Convention, Article 7 (b) (i) of the 1970 Convention which refers to cultural property stolen after entry into force and Article 7 (b) (ii) of the 1970 with regulations on the restitution of certain cultural property illegally imported after entry into force. 175 Article 28 Vienna Convention on the Law of Treaties 1969: ‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party’.

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opposed by major collecting countries as the introduction of retroactivity ‘would have caused international turmoil, as many collections in a large number of states have in the past been acquired by dubious means’.176 As shown later, UNESCO tried to cope with that issue by the installation of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation.177 The 1970 Convention recognizes that the ‘illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property and that international cooperation constitutes one of the most efficient means of protecting each country’s cultural property against all the dangers resulting therefrom.’178 The protected property (objective scope of application), the cultural property, is defined and outlined in Article 1 of the 1970 Convention. Unlike the exemplary definition for cultural property contained in Article 1 of the 1954 Convention179 the list of Article 1 of the 1970 Convention is exhaustive.180 As Prott and P.J. O’Keefe state, ‘there is good reason for this distinction. The 1954 definition was designed for general protection of cultural property [only] in times of armed conflict, a principle to which all negotiating parties agreed, and might sensibly be left open to elaboration. The 1970 Convention is dependent on a compromise between exporting and importing states, its definition therefore describes the ambit within which objects are to be selected for expert and import control, thus limiting the kinds of property for which States may be obliged to implement export, and more importantly, reciprocal import controls.’181 Williams, referring to Gordon, notes that an object must pass two qualification tests, a ‘definitional test’ and a ‘connection test’ to be classed as cultural property under the 1970 Convention.182 First, each state may and must designate the respective property as being—on religious or secular grounds—of importance for archaeology, prehistory, history, literature, art or science if it falls under one of the categories of Article 1 of the 1970 Convention.183 It

176

Williams, op. cit. n. 76, at p. 185. Infra I.3.4. 178 Article 2 1970 Convention. 179 See supra n. 111. 180 L.V. Prott and P.J. O’Keefe, Law and the Cultural Heritage, Volume 3—Movement (London, Butterworth 1989) at p. 729. 181 Prott and P.J. O’Keefe 1989, op. cit. n. 180, p. 729 et seq. 182 Williams, op. cit. n. 76, at p. 180 referring to J.B. Gordon, ‘The UNESCO Convention on the Illicit Movement of Art Treasures,’ 12 Harvard International Law Journal (1971) p. 537 at p. 542. 183 Article 1 1970 Convention: For the purposes of this Convention, the term ‘cultural property’ means property which, on religious or secular grounds, is specifically designated by each State as being 177

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is the general understanding that the term ‘specifically designated by each State’ (Article 1 of the 1970 Convention) means that it is left to the respective source nation’s discretion to decide whether or not a property is of importance in terms of Article 1 of the 1970 Convention184 (‘definitional test’). In addition, designated cultural properties must to some extent be connected to the source nation. In order to be attributable to a State Party, the cultural property must belong to a state’s cultural heritage in terms of Article 4 of the 1970 Convention.185 The categories of cultural property under Article 4 are

of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories: (a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest; (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artist and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; (f ) objects of ethnological interest; (g) property of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary art and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material; (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; (i) postage, revenue and similar stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic archives; (k) articles of furniture more than one hundred years old and old musical instruments. 184 P.J. O’Keefe 2007, op. cit. n. 156, at p. 37; See also Prott 1998 ‘UNESCO and UNIDROIT’, loc. cit. n. 102, at p. 207 for the issue of interdependence of a private owner with state action regarding the declaration of property as cultural property; Johnson citing Kote questions the effectiveness of the Convention with regard to poorer countries as ‘most of the cultural objects in developing countries are located not in museums but on sites and (are) still unexcavated’, thus hard to specifically designate as cultural property under Article 1 1970 Convention—see Johnson, loc. cit. n. 118, at p. 135; going into the same direction I.M. Goldrich, ‘Balancing the Need for Repatriation of Illegally Removed Cultural Property with the Interests of Bona Fide Purchasers: Applying the UNIDROIT Convention to the Case of the Gold Phiale’, 23 Fordham International Law Journal (1999) p. 118 at p. 138. 185 Article 4 1970 Convention: The States Parties to this Convention recognize that for the purpose of the Convention property which belongs to the following categories forms part of the cultural heritage of each State: (a) Cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory; (b) cultural property found within the national territory; Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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not necessarily determined by the ownership of the respective property, but rather by the creator’s residence or citizenship, its place of finding or by the fact of legal transfer of ownership to the respective state. Williams also points out that the broad and vague definition of the term cultural property could lead to ‘injustice, as it may be read to include any work of art that is in the country lawfully’,186 leaving it to a country’s discretion whether or not and to which extent it intends to protect property by classifying it as cultural property in the meaning of Article 1 of the 1970 Convention. P.J. O’Keefe, on the other hand, defends the chosen system for giving states which have been heavily victimized by exploitation the chance to protect their cultural property exhaustively.187 One should not forget one main rationale for the 1970 Convention: the fight against further unlawful export (and import) of cultural property and the need for a system which enables especially poorer countries with rich cultural resources to keep a certain standard of protection for their cultural property in times of globalization. 3.3. The Three Pillars of the 1970 Convention: Prevention, Restitution and International Cooperation The structural framework of the 1970 Convention is basically three-fold. Unlike the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995, the 1970 Convention is comprised of extensive provisions on preventive measures mainly addressed at source nations. It also covers restitution related issues and asks for international cooperation to strengthen the protective steps.188 Prevention of illicit export, import and transfer of ownership is one of the three pillars of the 1970 Convention. The term illicit with regard to export, import and transfer of ownership is defined by Article 3 of the 1970 Convention as means of ‘import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this convention by

186 187 188

(c) cultural property acquired by archaeological, ethnological or natural science missions, with the consent of the competent authorities of the country of origin of such property; (d) cultural property which has been the subject of a freely agreed exchange; (e) cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property. Williams, op. cit. n. 76, at p. 188. P.J. O’Keefe 2007, op. cit. n. 156, at p. 37. Article 15 1970 Convention: ‘Nothing in this Convention shall prevent States Parties thereto from concluding special agreements among themselves or from continuing to implement agreements already concluded regarding the restitution of cultural property removed, whatever the reason, from its territory of origin, before the entry into force of this Convention for the States concerned.’ Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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the States Parties thereto’. The decisive criteria for determining whether an import, export or transfer of ownership is illicit is thus the national implementation of the 1970 Convention within the territory of the respective State Party and the related national provisions.189 In addition, the term illicit also covers the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power.190 Most preventive obligations are addressed at the source state. They include several mechanisms. Each State Party has to introduce a ‘national service’ to safeguard its cultural heritage. Its tasks cover a wide range of responsibilities including the installation of national inventories of protected property and contributing to draft laws to secure cultural property.191 States Parties also have to introduce a special certificate for declaring the export of an authorized property and at the same time the State Parties must take measures to ensure that unauthorized property will not be exported.192 States Parties also have to introduce penal sanctions for cases of illicit export or import193 aimed at preventing cultural property from being exported/imported without regard to national export/import provisions. Preventive measures also affect importing States Parties. Under the regime of the 1970 Convention the prohibition of illicit imports is, however, limited as (only) museums and similar institutions of a State Party must be prevented from acquiring cultural property illegally exported from a source nation and—in addition—only so far as it is ‘consistent with national legislation’,194 a clause included at the request of the United States so that the section would be interpreted as ‘to confine the effect of this measure to museums whose acquisition policies are controlled by the State’.195 The exact scope of this provision, especially with regard to the question of what kind

189 P.J. O’Keefe 2007, op. cit. n. 156, at p. 43; A.F.G. Raschèr, et al., Cultural Property Transfer (Zürich, Schulthess Juristische Medien AG 2005) at p. 18. 190 Article 11 1970 Convention. 191 Article 5 1970 Convention. 192 Article 6 1970 Convention. 193 Article 8 1970 Convention. 194 Article 7 (a) 1970 Convention: The States Parties to this Convention undertake: (a) To take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention, in the States concerned. Whenever possible, to inform a State of origin Party to this Convention of an offer of such cultural property illegally removed from that State after the entry into force of this Convention in both States. 195 P.J. O’Keefe 2007, op. cit. n. 156, at p. 56.

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of museums and institutions are affected, has been subject to discussions and is still unresolved.196 Pursuant to Article 7 (b) (i) of the 1970 Convention States Parties also have to provide for the prohibition of ‘the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to this convention after the entry into force of this Convention for the States concerned, provided that such property is documented as appertaining to the inventory of that institution.’ This provision is a crucial one as it is the basis for an aspect within the second pillar of the 1970 Convention, that being the pillar of restitution of illicitly exported or imported cultural property. Pursuant to Article 7 (b) (ii) the obtaining State Party has ‘at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property.’ It has been noted that this important provision does not apply in the events of illicit excavations or property stolen from a private home. Moreover, only inventoried property is protected.197 The wording of Article 7 (b) (ii) with regard to compensation payments has been criticized for being too vague as it stipulates that the ‘requesting State shall pay just compensation to an innocent purchaser or to a person who has [a] valid title to that property.’ Attempts during the drafting process to define the term just compensation by giving examples, such as ‘payment of fair compensation corresponding to the purchase price’198 were not successful. According to P.J. O’Keefe, the reason for using a quite unspecified term instead of providing for a definition in the text of the convention was the fact that in various nations, the amount of compensation payments is more or less determined by the courts, not being restricted by the price originally paid.199 Williams argues that the rationale for not incorporating a precise definition might have been ‘due to the fact that many states would be unable to pay the compensation.’200 Still, complications remain as determining the amount of just compensation is subject to national legislation or court judg-

196

See e.g. P.J. O’Keefe 2007, op. cit. n. 156, at p. 57. R.H. Villanueva, ‘Free Trade and the Protection of Cultural Property: The Need for an Economic Incentive to Report Newly Discovered Antiquities’, 29 George Washington Journal of International Law & Economics (1995) p. 547 at p. 553 et seq. 198 Article 10 (d) of the 1969 draft (first draft) (the text is available online at http://unesdoc .unesco.org/images/0006/000686/068688eo.pdf) (last visited on December 31, 2008). 199 P.J. O’Keefe 2007, op. cit. n. 156, at p. 65 with reference to D.F. Cameron, An Introduction to the Cultural Property Export and Import Act (Ottawa, Department of the Secretary of State, Government of Canada 1980) at p. 22. 200 Williams, op. cit. n. 76, at p. 189. 197

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ments and thus could lead to unjustified divergence not intended by the drafters of the 1970 Convention. One more contentious issue of the 1970 Convention, especially with regard to the implementation of the restitution related provision of its Article 7 (b) (ii), is the question of legal security of a bona fide purchaser of cultural property. Pursuant to this provision a bona fide purchaser, or—in the wording of the 1970 Convention—an ‘innocent purchaser’ or a ‘person who has [a] valid title to that property’201—can be the addressee of restitution claims without any time limit. Not only the lack of a time limit, but also the unrestricted restitution obligation are said to interfere with national private laws of many countries.202 It will be interesting to see to which extent Article 7 (b) (ii) of the 1970 Convention will be transformed into national law especially by States Parties which in their national legislation strengthen the position of bona fide purchasers. In addition to the before-mentioned recovery provision contained in Article 7 (b) (ii) of the 1970 Convention, Article 13 of the 1970 Convention203 provides for further steps in relation to restitution, but only in a limited way, as the implementation of that article is subject to national legislation (arg. ‘the States Parties to this Convention also undertake, consistent with the laws of each State’). The third pillar of the 1970 Convention covers the aspects of international cooperation.204 It is hoped that through international cooperation, e.g. in the form of additional multilateral or bilateral treaties, the protection of cultural property can be fostered, as national regulations alone do not suffice to fight illicit export and import comprehensively. By the means of international

201 In the original draft of 1969 the term bona fide was used, but later on changed to the final wording; see Articles 7 (g) and 10 (d) 1969 draft and P.J. O’Keefe 2007, op. cit. n. 156, at p. 67 et seq. for further information. 202 E.g. Thorn, op. cit. n. 77, at p. 65 for Germany; Prott 1998 ‘UNESCO and UNIDROIT’, loc. cit. n. 102, at p. 212 for France and Italy. 203 Article 13 1970 Convention: The States Parties to this Convention also undertake, consistent with the laws of each State: (a) To prevent by all appropriate means transfers of ownership of cultural property likely to promote the illicit import or export of such property; (b) to ensure that their competent services co-operate in facilitating the earliest possible restitution of illicitly exported cultural property to its rightful owner; (c) to admit actions for recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners; (d) to recognize the indefeasible right of each State Party to this Convention to classify and declare certain cultural property as inalienable which should therefore ipso facto not be exported, and to facilitate recovery of such property by the State concerned in cases where it has been exported. 204 See esp. Articles 9 and 15 1970 Convention.

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collaboration delicate issues of recovery can be solved more effectively, as history has shown.205 3.4. Excursus: Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation and the Fund of the International Committee Not too long after the adoption of the 1970 Convention one of the shortcomings of the Convention, its lack of retroactivity, made UNESCO think about taking further steps in order to facilitate the return of cultural property lost either due to foreign or colonial occupation, or through illicit traffic before the entry into force of the 1970 Convention. In 1976, a committee of experts under the auspices of UNESCO discussed several options resulting in the recommendation to ‘set up an Intergovernmental Committee with the task of seeking ways and means of facilitating bilateral negotiations for the restitution of cultural property to the countries having lost such property as a result of colonial or foreign occupation.’206 In 1978, at the 20th Session of UNESCO’s General Conference the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (hereafter the ‘ICPRCP’) was introduced.207 Created as a permanent advisory intergovernmental body consisting of 22 members elected from UNESCO Member States, it was established primarily to promote the return of cultural property. One of its tasks is also to assist in the implementation process of the 1970 Convention by strengthening the awareness of the importance of restitution of cultural property to its original country.208 The ICPRCP is con-

205 See Williams, op. cit. n. 76, at p. 186 listing the United States—Mexico Treaty of 1970 as an example for a ‘concrete measure’; see also K. Pomian, ‘Cultural Property, National Treasures, Restitution’, 57 Museum International (2005) p. 71 at p. 73 referring to the United States—Peru Treaty of 1981. 206 J. Greenfield, The Return of Cultural Treasures (Cambridge, Cambridge University Press 1995) at p. 190. Also Maria Cerva Vallterra, ‘La lutte internationale contre le trafic illicite des biens culturels et la convention UNESCO de 1970; l’expérience trente-cinq ans après’, in Nafziger and Scovazzi, op. cit. n. 10 pp. 559–600, at p. 593. 207 UNESCO resolution 20 C4/7.6/5; the text is available online at http://unesdoc.unesco. org/images/0011/001140/114032e.pdf#page=92 (last visited on December 31, 2008). 208 Article 4 of the Statutes (the text is available online at http://unesdoc.unesco.org/ images/0014/001459/145960e.pdf—last visited on December 31, 2008): The Committee shall be responsible for: . . . 2. promoting multilateral and bilateral cooperation with a view to the restitution and return of cultural property to its countries of origin; . . . 4. fostering a public information campaign on the real nature, scale and scope of the problem of the restitution or return of cultural property to its countries of origin; 5. guiding the planning and implementation of UNESCO’s programme of activities with regard to the restitution or return of cultural property to its countries of origin; . . .

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sidered to be a helpful international support in the area of protection and restitution of cultural property.209 As an important step to facilitate the effective functioning of the ICPRCP, UNESCO’s General Conference at its 30th Session in 1999 set the frame for the Fund of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (hereafter the ‘Restitution Fund’).210 The main target of the Restitution Fund, which is fed by voluntary state payments and private donations, is supporting national projects aimed at the return or restitution of cultural property and the fight against illicit traffic in cultural property, especially by co-financing the necessary infrastructure. It can be expected that this will at least indirectly contribute to the poorer states’ attempts to successfully implement the 1970 Convention. 4. Convention for the Protection of the World Cultural and Natural Heritage (1972)211 4.1. Background of the 1972 Convention: Combining Treasures of Culture and Nature The two UNESCO Conventions on the protection of cultural heritage adopted so far, the 1954 Convention and the 1970 Convention, were limited in their effects as their scope of application covered only a small spectrum of threats for cultural heritage. The 1954 Convention referred solely to risks emerging from armed conflicts and the 1970 Convention covered only the issue of illicit trafficking of cultural property. The developments after World Wars I and II, however, displayed the need for further, more comprehensive international regulations as industrialization, economic and social advancements intensified the already existing natural causes for destruction of natural and cultural heritage. Two examples for the new international awareness of those threats often mentioned in connection with the Convention for the Protection of the World Cultural and Natural Heritage of 1972 are the construction of the

209 UNESCO, Promote the Return or the Restitution of Cultural Property (UNESCO information kit on the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation, available online at http://unesdoc.unesco.org/images/0013/001394/139407eb.pdf; last visited on December 31, 2008) at p. 9 with examples of successful restitution supervisions. 210 UNESCO General Conference Resolution 27 at its 30th Session, 1999 (the text is available online at http://unesdoc.unesco.org/images/0011/001185/118514e.pdf#page=68; last visited on December 31, 2008). 211 If used without any determination, the term convention refers to the Convention for the Protection of the World Cultural and Natural Heritage in this chapter.

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Aswan High Dam in Egypt in the late 1950s212 and the efforts of the world community to rescue Venice from floods in the middle of the 1960s.213 In both cases the international protection campaigns launched by UNESCO led to a quick and successful response by the world community which donated huge amounts of money for safeguarding the endangered objects. It became obvious that the protection of mankind’s heritage required strong international cooperation among states, preferable coordinated by a central authority. In 1965 the idea of a comprehensive regime of protection of world heritage combining two separate movements, the safeguarding of man-built cultural heritage and the preservation of natural heritage was for the first time expressed by the United States during a White House Conference. It asked for an international ‘trust for the world heritage that would be responsible to the world community for the stimulation of international cooperative efforts to identify, establish, develop and manage the world’s superb natural and scenic areas and historic sites for the present and future benefits of the entire world citizenry.’214 Around the same time various bodies started with the creation of drafts, covering only partial aspects, such as the protection of cultural property or the preservation of nature. The two most prominent drafts were UNESCO’s draft treaty entitled International Protection of Monuments, Groups of Buildings and Sites of Universal Value (hereafter the ‘Universal Value draft treaty’) dealing with cultural facets and a draft instrument based on nature aspects prepared by the International Union for Conservation of Nature (hereafter the ‘IUCN and IUCN draft respectively’).215 In 1971 both drafts were submitted to the Intergovernmental Working Group on Conservation (IWGC) installed by the United Nations General Assembly to carry out research in the area of human environment. It suggested combining both drafts into a unified instrument to cover the issue of world heritage protection comprehensively. Sent back to UNESCO, an intergovernmental experts group installed by UNESCO revised the Universal Value draft treaty, combining it with provisions of the IUCN draft and also taking into account 212

The construction of the Aswan High Dam in Egypt constituted a big threat for the world-renowned ‘Abu Simbel Temples.’ As the construction project could not be stopped, UNESCO initiated an unprecedented campaign to move and thus rescue the archaeological highly valuable objects. 213 F. Francioni, ‘The Preamble’, in F. Francioni and F. Lenzerini, eds., The 1972 World Heritage Convention—A Commentary (Oxford, Oxford University Press 2008) p. 11 at p. 12 et seq.; UNESCO World Heritage Centre, World Heritage Information Kit (Paris, UNESCO World Heritage Centre 2005) p. 7. As a concise overview of the Convention, Wahid Ferchichi, ‘La convention de l’UNESCO concernant la protection du patrimoine mondial culturel et naturel’, in Nafziger and Scovazzi, op. cit. n. 10, pp. 455–486. 214 Francioni 2008 ‘Preamble’, loc. cit. n. 213, p. 15 et seq. 215 Founded in 1948, the International Union for the Conservation of Nature and Natural Resources (IUCN; previously World Conservation Union) with its headquarters in Gland, Switzerland, is an international organization with the aim at natural resource conservation. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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the World Heritage Trust Convention draft, elaborated by the United States as an answer to the Universal Value draft treaty. The revision resulted in a combined, comprehensive draft which—supported by the Declaration of the United Nations Conference on the Human Environment (also known as 1972 Stockholm Declaration)216—was adopted by the UNESCO General Conference in a slightly altered version as the Convention for the Protection of the World Heritage and Natural Heritage (hereafter the ‘1972 Convention’) on November 16, 1972. The 1972 Convention is currently the most popular UNESCO convention on the protection of cultural (and natural ) heritage with 186 States Parties (as of December 31, 2008).217 4.2. Scope of Application of the 1972 Convention and the Concept of Outstanding Universal Value The 1972 Convention paved the way for a comprehensive protection movement for world heritage basically by two ideas. First it combined two areas which prima facie do not seem to have much in common—culture and nature, with the aim of protecting and safeguarding both by the means of a single document. Secondly, it took the issue of cultural property protection to a higher level, as it introduced a regime of world heritage. This term unifies cultural and natural aspects and demonstrates that both in their own magnitude should be protected for the sake of ‘mankind as a whole’218 on an international level, thus combining both in one legal instrument. With cultural and natural heritage reaching the international stage, Lenzerini calls the 1972 Convention a convention ‘founded on an eclectic approach . . . combining the co-existing interests of single States to the protection of their own national heritage and those of the international community as a whole to the safeguarding of cultural (and natural) treasures—irrespective of their origin and/or location—as irreplaceable expressions of the beauty and variety of the human genius and of the magnificence of the world.’219 What was in the beginning considered to be merely a matter of property from a legal perspective changed drastically with the help of the 1972 Convention. Francioni felicitously states that ‘heritage has become a part of an international movement that aims at transcending the narrow concept of cultural

216 The text of the 1972 Stockholm Declaration is available online at http://www.unep .org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503 (last visited on December 31, 2008). 217 The full list of States Parties is available online at http://portal.unesco.org/la/convention .asp?KO=13055&language=E&order=alpha (last visited on December 31, 2008). 218 See also Preamble (6) 1972 Convention. 219 F. Lenzerini, ‘The Relationship between the Convention on the Diversity of Cultural Expressions and the 1972 World Heritage Convention’, in T. Kono, J. Wouters, S. Van Uytsel, eds., The UNESCO Convention for the Promotion and Protection of Diversity of Cultural Expressions (Antwerp, Intersentia, forthcoming [2009]).

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property as the object of private rights of a predominantly economic nature. This movement emphasizes the collective and public character of heritage and its representative value of the totality of creative expressions, practices and spaces that a given community recognizes as part of its cultural tradition and identity.’220 Prott and P.J. O’Keefe also point out the new approach by stating that ‘the term heritage . . . also embodies the notion of inheritance and handing on,’221 whereas the term cultural property rather reflects mere legal ideas. Yusuf argues that the use of the term heritage instead of property has ‘a number of positive and forward-looking implications’222 which he classifies in three groups: firstly, it leads to an obligation to preserve the respective objects for future generations; secondly, it [note: basically] ‘widens the scope of the subject matter to be protected, opening it up to the possibility of encompassing not only physical elements of culture, but also to its intangible elements, as well as the relationship of humans to cultural objects;’223 finally, ‘as opposed to property, the word ‘heritage’ implies the existence of a value which potentially transcends national boundaries, may be of interest to humanity as a whole, and may thus deserve protection at the international level.’224 The central question which comes to mind is the question of defining the protected objects. What does the 1972 Convention understand under the terms cultural heritage and natural heritage, which together form the world heritage, the objective scope of application of the 1972 Convention? One might think that the answer is given by the explanations of its Articles 1 and 2. They go as follows: Article 1 1972 Convention: ‘for the purposes of this Convention, the following shall be considered as ‘cultural heritage’: monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science;

220 F. Francioni, ‘The 1972 World Heritage Convention: An Introduction’, in F. Francioni and F. Lenzerini, eds., The 1972 World Heritage Convention—A Commentary (Oxford, Oxford University Press 2008) p. 3 at p. 4. 221 L.V. Prott and P.J. O’Keefe, ‘‘Cultural Heritage’ or ‘Cultural Property’?’, 1 International Journal of Cultural Property (1992) p. 307 at p 307. 222 A.A. Yusuf, ‘Article 1– Definition of Cultural Heritage’, in F. Francioni and F. Lenzerini, eds., The 1972 World Heritage Convention—A Commentary (Oxford, Oxford University Press 2008) p. 23 at p. 27. 223 Yusuf 2008, loc. cit. n. 222, at p. 27. 224 Yusuf 2008, loc. cit. n. 222, at p. 27.

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groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view.’

Article 2 1972 Convention: ‘For the purposes of this Convention, the following shall be considered as ‘natural heritage’: natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.’

Especially with reference to the ‘definition’ of cultural heritage by Article 1 of the 1972 Convention one should be aware of the fact that this term is not exclusive in the sense that it covers every possible facet of what can be called cultural heritage in a broad sense. It does not refer to mere movable objects; neither does it refer to mere intangible heritage. In addition, taking a closer look at the cited provisions one can see that the terms cultural heritage and natural heritage are not exactly defined, but rather interact with another term first introduced by the 1972 Convention, namely the attribute of having an outstanding universal value to function as a further limitation to the scope of application. This term can also be found in other places of the Convention, above all in its Preamble, where it says that ‘it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value’225 and that ‘it is essential for this purpose to adopt new provisions in the form of a convention establishing an effective system of collective protection of the cultural and natural heritage of outstanding universal value.’226 Although being the core factor for determining whether a potential object falls under the protectoral regime of the 1972 Convention, the term outstanding universal value is left undefined by the Convention. The link which leads to a clarification of this impasse is to be found in Article 11 of the 1972 Convention. Its fifth Paragraph grants the decisive competences of defining the term to the World Heritage Committee227 by

225 226 227

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stipulating that it ‘shall define the criteria on the basis of which a property belonging to the cultural or natural heritage may be included in either of the lists mentioned in paragraphs 2 [note: the World Heritage List]228 and 4 [note: the List of World Heritage in Danger]229 of this article.’ Pursuant to this provision the World Heritage Committee230 has elaborated a complex set of criteria in the course of its WHC Operational Guidelines,231 which it revises and further develops periodically, and by doing this, also takes into account recent developments and possible balances. As a basic principle the World Heritage Committee defines outstanding universal value as being of ‘cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity.’232 To justify such a classification, a potential object must—first of all—meet at least one of ten criteria introduced by Chapter II.D of the WHC Operational Guidelines.233 Combined with the WHC Operational Guidelines of 2005 the ten criteria are now applicable to both groups, to cultural heritage as well as to natural

228 229 230 231 232 233

See infra I.4.3. for details. See infra I.4.3. for details. See infra I.4.3. for details. See infra I.4.3. for details. Paragraph 49 WHC Operational Guidelines. Paragraph 77 WHC Operational Guidelines: (i) represent a masterpiece of human creative genius; (ii) exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-planning or landscape design; (iii) bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared; (iv) be an outstanding example of a type of building, architectural or technological ensemble or landscape which illustrates (a) significant stage(s) in human history; (v) be an outstanding example of a traditional human settlement, land-use, or seause which is representative of a culture (or cultures), or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change; (vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance. (note: The Committee considers that this criterion should preferably be used in conjunction with other criteria); (vii) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; (viii) be outstanding examples representing major stages of earth’s history, including the record of life, significant on-going geological processes in the development of landforms, or significant geomorphic or physiographic features; (ix) be outstanding examples representing significant ongoing ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; (x) contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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heritage.234 Especially with regard to the first group, the set of criteria had to be as precise as possible in order to provide for an objective framework for its application. At the same time, however, it also had to be as diverse as possible in order to cope with an inherent issue: although heritage as defined by the 1972 Convention is an expression of mankind as a whole, the fact that every culture, influenced by various factors such as regional, epochal and developmental aspects, is different and unique must not be ignored, One can see that the meaning, scope and wording of the criteria has changed over the last 31 years since their first adoption by the WHC Operational Guidelines 1977. Thus—with regard to its wording—the unrevised constitutional framework of Articles 1 and 2 of the 1972 Convention has been given a new dimension in trying to adopt to the before-mentioned diversity and current needs and responding to imbalances which have arisen due to the implementation of the Convention.235 It has become an important tool for a flexible application of the fixed scaffolding provided by the Convention. In the early stages of its application the set of criteria clearly led to an overrepresentation of European sites, historic towns and Christian monuments.236 Ten years after the implementation of the set of criteria, the World Heritage Committee installed an experts group to find answers to the imbalance of inscriptions on the World Heritage List.237 As a result of the final report, the Global Strategy for a Representative, Balanced and Credible World Heritage List238 was adopted by the committee in 1994, its underlying idea further developed by the Budapest Declaration on World Heritage (also known as Budapest Declaration).239 The basic idea of the new movements was the wish to strengthen the credibility of the concept of World Heritage by adopting a better-balanced system of incorporation and encouraging less-represented States Parties to contribute to the inscription process by providing more—and above all more 234 A complete listing of the first two sets of criteria of the WHC Operational Guidelines of 1977 can be found in UNESCO, ‘The World Heritage Convention’ (Paris, UNESCO Publishing 1980) p. 22 or at http://whc.unesco.org/archive/out/opgu77.htm (last visited on December 31, 2008). 235 See e.g. Yusuf 2008, loc. cit. n. 222, p. 23 et seq., especially Table 1 at p. 38 et seq.; K. Whitby-Last, ‘Article 1—Cultural Landscapes’, in F. Francioni and F. Lenzerini, eds., The 1972 World Heritage Convention—A Commentary (Oxford, Oxford University Press 2008) p. 51 et seq.; C. Redgwell, ‘Article 2—Definition of Natural Heritage, in F. Francioni and F. Lenzerini, eds., The 1972 World Heritage Convention—A Commentary (Oxford, Oxford University Press 2008) p. 63 et seq., especially Table 2 at p. 69 et seq.’ 236 H. Cleere, ‘The Concept of ‘Outstanding Universal Value’ in the World Heritage Convention’, 1 Conservation and Management of Archaeological Sites (1996) p. 227, especially Table 1 at p. 229. 237 See infra I.4.3. 238 See Chapter II.B of the WHC Operational Guidelines and http://whc.unesco.org/en/ globalstrategy (last visited on December 31, 2008) with links to the experts group reports. 239 The text of the Budapest Declaration is available online at http://whc.unesco.org/en/ budapestdeclaration (last visited on December 31, 2008).

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promising—nominations. The scope of application of the criteria set was expanded and shifted to meet a wider spectrum of cultural and natural sites, according to Yusuf constituting ‘a clear move away from a purely monumental view of cultural heritage of humanity towards a more anthropological, comprehensive, and diversified conception of the wealth and diversity of human cultures,’240 or—in Pressouyre’s words—leading to a ‘significant change in our concept of heritage. By finally questioning the idea inherited from ancient times and firmly rooted in European culture of what a masterpiece is, the World Heritage Committee opened the way to a more balanced picture of humanity’s heritage.’241 Francioni comes to the conclusion that the implementation process by the World Heritage Committee is based on two ideas: firstly, ‘the ability of the property to exercise universal appeal by virtue of its exceptional qualities, including its authenticity, its resonance in terms of human experience, and its capacity to interpret in an exceptional manner one of the eternal themes of the human condition, such as the mystery of life, the struggle for survival, death, the search for beauty;’242 secondly, ‘the concept of universality must be linked to the capacity to represent the diversity of the cultures and traditions of the world, both in space and time dimensions. It requires a careful selection of heritage sites, so as to provide a truthful and complete picture of the works of humanity in the great variety of their expressions.’243 The World Heritage Committee also tried to further strengthen the interaction between the two cornerstones of the 1972 Convention, the two categories of cultural and natural heritage, by creating a new subcategory of the first one in 1992. This was the category of cultural landscapes,244 representing the ‘combined works of nature and man,’245 being the place ‘in which culture and nature inseparably come together’246 as it is ‘impossible to consider nature and culture as two separate entities.’247 Meeting the requirements set forth by the set of criteria and thus showing an outstanding universal value might be the most important, but yet not final step to qualify a prospective object as world heritage under the regime of the 1972 Convention. In addition, cultural objects also have to undergo an ‘authenticity test’, introduced by the International Charter for the Conserva-

240

Yusuf 2008, loc. cit. n. 222, at p. 37. L. Pressouyre, ‘The Past is not Just Made of Stone’, 53 The UNESCO Courier (December 2000) p. 18 at p. 19. 242 Francioni 2008 ‘Preamble’, loc. cit. n. 213, at p. 21. 243 Francioni 2008 ‘Preamble’, loc. cit. n. 213, at p. 21. 244 See Paragraph 47 WHC Operational Guidelines. 245 Paragraph 47 WHC Operational Guidelines; for a detailed analysis of this subgroup refer to Whitby-Last, loc. cit. n. 235, p. 51 et seq. 246 S.I. Dailoo and F. Pannekoek, ‘Nature and Culture: A New World Heritage Context’, 15 International Journal of Cultural Property (2008) p. 25 at p. 27. 247 Dailoo and Pannekoek, loc. cit. n. 246, at p. 27. 241

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tion and Restoration of Monuments and Sites (the Venice Charter—1964) adopted by the second International Congress of Architects and Technicians of Historic Monuments in 1965 and developed by the Nara Document on Authenticity248 in 1994, both categories an ‘integrity test’.249 While the first one is an important factor for determining whether or not a nominated cultural heritage site is genuine and thus not a replica or copy of the original, the latter one is ‘a measure of the wholeness and intactness of the natural and/or cultural heritage and its attributes.’250 Both are in so far complementary as ‘authenticity is related to heritage as a qualifier, while integrity is referred to the identification of the functional and historical condition.’251 4.3. Legal Framework and Mechanism of the 1972 Convention: The Creation of a Model Convention The 1972 Convention as shown above is very broad in its scope of application by combining for the first time two areas of protection which have so far been considered separate objects of interest: cultural heritage and natural heritage, forming together the world heritage. For the purposes of a comprehensive regulation with supervision and control of the implementation of its goals, the 1972 Convention introduced a sophisticated and complex mechanism of instruments. It is therefore referred to as being ‘essentially operational in character’252 and at the same time ‘designed to complement, to aid and to stimulate national efforts rather than compete with or replace them.’253 The 1972 Convention neither aims at unifying its States Parties’ national legal provisions nor does it introduce a framework which regulates matters of ownership of the respective objects. Thus, it should be noted that the 1972 Convention, though providing for an international framework of protection and safeguarding, nevertheless gives full respect to national sovereignty and for private property rights provided by state legislation over the objects protected under the regime of the 1972 Convention, thus striking ‘a delicate balance between national sovereignty and international intervention.’254

248 The text of the Venice Charter can be obtained at http://www.international.icomos.org/ charters/venice_e.htm (last visited on December 31, 2008). The text of the Nara Document on Authenticity is available online at http://whc.unesco.org/archive/nara94.htm (last visited on December 31, 2008); see also Paragraphs 79 et seq. WHC Operational Guidelines for details. 249 See Paragraphs 87 et seq. WHC Operational Guidelines for details. 250 See Paragraph 88 WHC Operational Guidelines for details. 251 J. Jokilehto, ‘World Heritage: Defining the Outstanding Universal Value’, 2 City & Time (2006) p. 1 at p. 3. 252 Ambio, ‘How the World Heritage Convention Works’, 12 Ambio (1983) p. 140 at p. 140. 253 Ambio, loc. cit. n. 252, at p. 140. 254 Ch. Cameron, ‘The Strengths and Weaknesses of the World Heritage Convention’, 28 Nature & Resources (1992) p. 18 at p. 18.

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The 1972 Convention also does not contain any provision dealing with the issue of illicit trafficking of cultural heritage. This might be primarily explained by the fact that it is aimed at the protection of immovable objects as described in its Article 1. It should, however, not be ignored that cultural heritage can be ‘de facto man-made,’255 making it a potential target for thefts and illicit trafficking in general. This shows the interdependence with other conventions in the area of cultural heritage protection, above all the 1970 Convention and the 1995 UNIDROIT Convention or how Carducci puts it: ‘this [note: the lack of the 1972 Convention of providing for a restitution mechanism] explains the crucial importance of other international instruments each time that preventive measures . . . fail to prevent theft and export of cultural objects and these objects are then identified abroad.’256 Key factors for the implementation of the 1972 Convention and indispensable bodies for the protection of the World Heritage are the States Parties. The Convention defines several rights and obligations of the States Parties. Obligations are basically twofold: firstly, States Parties have to take every necessary step to guarantee the protection of World Heritage situated in their territories and are encouraged to protect their national heritage in general on a national level.257 This obligation comprises various aspects, such as the

255

G. Carducci, ‘The 1972 World Heritage Convention in the Framework of Other UNESCO Conventions on Cultural Heritage’, in F. Francioni and F. Lenzerini, eds., The 1972 World Heritage Convention—A Commentary (Oxford, Oxford University Press 2008) p. 363 at p. 370. 256 Carducci 2008, loc. cit. n. 255, at p. 371. 257 See Article 4 1972 Convention: ‘Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.’ Article 5 1972 Convention: To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country: (a) to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; (b) to set up within its territories, where such services do not exist, one or more services for the protection, conservation, and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; (c) to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; (d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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implementation of a national legal framework, carrying out studies to identify possible dangers to the heritage located in the territory of the respective State Party or establishing practical services for the preservation of that heritage. Important obligations in this process are the duties of the States Parties to identify potential objects for the inscription on the World Heritage List258 and report obligations with regard to the measures taken for the protection of the heritage and in implementing the 1972 Convention.259 On the other hand, the 1972 Convention also recognizes that international cooperation is necessary for making the convention work. Thus, it incorporates several obligations for the States Parties on an international level. They include contributions to the Fund for the Protection of the World Cultural and Natural Heritage (hereafter the ‘World Heritage Fund’),260 the duty to refrain from taking ‘any deliberate measures which might damage directly or indirectly the cultural and natural heritage . . . situated on the territory of other States Parties,’261 as well as the obligation to offer ‘their help in the identification, protection, conservation and presentation of the cultural and natural heritage . . . if the States on whose territory it is situated so request.’262 The institutional heart of the 1972 Convention is formed by the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (commonly referred to as World Heritage Committee). The World Heritage Committee,263 which is comprised of 21 States Parties’ representatives

(e) to foster the establishment or development of national or regional centers for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field. 258 Article 11 (1) 1972 Convention: ‘Every State Party to this Convention shall, in so far as possible, submit to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion in the list provided for in paragraph 2 of this Article. This inventory, which shall not be considered exhaustive, shall include documentation about the location of the property in question and its significance.’ 259 Article 29 1972 Convention: (1) The States Parties to this Convention shall, in the reports which they submit to the General Conference of the United Nations Educational, Scientific and Cultural Organization on dates and in a manner to be determined by it, give information on the legislative and administrative provisions which they have adopted and other action which they have taken for the application of this Convention, together with details of the experience acquired in this field. (2) These reports shall be brought to the attention of the World Heritage Committee. 260 Article 15 1972 Convention: (1) A Fund for the Protection of the World Cultural and Natural Heritage of Outstanding Universal Value, called ‘the World Heritage Fund’, is hereby established. (3) The resources of the Fund shall consist of: (a) compulsory and voluntary contributions made by the States Parties to this Convention, 261 Article 6 (3) 1972 Convention. 262 Article 6 (2) 1972 Convention. 263 The text of its current Rules of Procedure can be found at http://whc.unesco.org/ pg.cfm?cid=223 (last visited on December 31, 2008). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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elected by the General Assembly of States Parties to the Convention264 for terms up to six years, is the central authority in the framework of the 1972 Convention. The main tasks of the World Heritage Committee include the implementation of the Convention, initiating and coordinating international cooperation in conservation matters with relation to cultural heritage265 and the definition of the use of the World Heritage Fund266 as well as the allocation of financial aid to States Parties on their request.267 The World Heritage Committee is also well-known for its strong competences in relation to the inscription and deletion of potential cultural and natural sites on the World Heritage List, being the basis for comprehensive protection under the regime of the 1972 Convention, and the List of World Heritage in Danger, ‘a list of the property appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under this Convention.’268 The World Heritage Committee has developed guidelines for the implementation of the 1972 Convention, providing certain criteria for the inscription of objects to the two lists as well as provisions for international assistance. This ‘bible of World Heritage’ entitled Operational Guidelines for the Implementation of the World Heritage Convention (hereafter the ‘WHC Operational Guidelines’) is revised on a regular basis.269 The process of inscription on the World Heritage List can be divided into four stages. Firstly, pursuant to Article 11 of the 1972 Convention States Parties shall create, update and submit inventories with the inclusion of potential heritage objects to the World Heritage Committee. Pursuant to Paragraph 65 WHC Operational Guidelines States Parties are requested to submit their respective list, also known as the tentative list,270 to the Secretariat to the World Heritage Committee (hereafter the World Heritage Centre)271 ‘at least one year prior 264 The General Assembly of States Parties to the Convention meets during the session of the General Conference of UNESCO. Its main functions are the election of members of the World Heritage Committee pursuant to Article 8 (1) 1972 Convention and the determination of the uniform percentage of contributions to the World Heritage Fund applicable to all States Parties pursuant to Article 16 (1) 1972 Convention. 265 In this area, the World Heritage Committee is supported by one of its three advisory bodies, the ‘International Centre for the Study of the Preservation and Restoration of Cultural Property’ (ICCROM) with its headquarters in Rome. 266 Article 15 (4) 1972 Convention. 267 Article 13 (6) 1972 Convention. 268 Article 11 (4) 1972 Convention. 269 The current version of the WHC Operational Guidelines dated January 2008 can be found at http://whc.unesco.org/archive/opguide08–en.pdf (last visited on December 31, 2008). 270 Chapter II.C WHC Operational Guidelines. 271 Established in 1992, the World Heritage Centre is the current body which functions as the Secretariat of the World Heritage Committee. It is the link between the States Parties, the advisory bodies and World Heritage Committee covering various tasks in the implementa-

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to the submission of any nomination’ and are also ‘encouraged to re-examine and re-submit their tentative list at least every ten years.’272 Creation and submission of tentative lists is important as—for the purpose of inscription on the World Heritage List—the World Heritage Committee only examines potential sites which are inscribed on the national tentative lists. Secondly, the States Parties can choose objects from their tentative lists and nominate them for inscription on the World Heritage List. Annex 3 to the WHC Operational Guidelines provides for an extensive guidance for the creation of the nomination documents. The respective document is submitted to the World Heritage Centre, which also offers assistance in the nomination process. Thirdly, after a formal control of the nomination document by the World Heritage Centre the respective nominated object will be independently evaluated by one of two advisory bodies of the World Heritage Committee: by the International Council on Monuments and Sites (hereafter ‘ICOMOS’)273 in the case of a cultural property274 or by IUCN275 in the case of a natural site.276 The respective advisory body submits its evaluation results in the form of recommendations to the World Heritage Centre. It can not only recommend the inscription or the rejection of a nominated property, but it can also recommend referring or deferring a decision to a point where the respective State Party adds more information about the object.277 Fourthly, the World Heritage Committee has the decisive power to declare whether or not a nominated property will be inscribed on the World Heritage List. The Committee is, however, not bound by the recommendation of its advisory bodies. Overruling by the World Heritage Committee is not rare278 and is due to the fact that the criteria for the selection and determination of outstanding universal value used by the World Heritage Committee and its advisory bodies, the ten selection criteria developed by the committee and outlined in Paragraph 77 WHC Operational Guidelines279 are applied and

tion process of the 1972 Convention and described in Chapter I.F of the WHC Operational Guidelines. 272 The complete tentative lists can be found at http://whc.unesco.org/en/tentativelists/ state=vu (last visited on December 31, 2008). 273 Established in 1965 and having its current headquarters in Paris, ICOMOS focuses on the conservation and protection of cultural heritage places around the world. 274 See Paragraph 144 WHC Operational Guidelines. 275 See supra n. 215. 276 See Paragraph 145 WHC Operational Guidelines. 277 See Paragraph 151 WHC Operational Guidelines. 278 One current example is the Iwami Ginzan Silver Mine and its Cultural Landscape, which was inscribed as forming a cultural heritage in 2007 against the recommendation by ICOMOS; see http://whc.unesco.org/archive/advisory_body_evaluation/1246.pdf for the recommendation (last visited on December 31, 2008). 279 See also supra I.4.2. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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interpreted by the relevant body in its own way.280 Recent parameters for the advisory bodies’ understanding of the term outstanding universal value were discussed during the UNESCO-initiated Special Expert Meeting of the World Heritage Convention: The Concept of Outstanding Universal Value in 2005. In relation to cultural heritage ICOMOS expressed its opinion that the selection of objects should be ‘based upon the enormous wealth and diversity of cultural heritage worldwide.’281 It points out that the addition of the term outstanding to universal value, meaning that ‘a monument, site or group of buildings has a value that rises above local or regional value to a value that may be considered universal’282 gives it a special meaning in the sense that an object must not only possess a universal value, but must also be considered ‘to be marked out by singularities that accentuate their value to a degree that they become of Outstanding Universal Value. In other words the site is so valuable that it ‘belongs’ to all humankind in that they believe it should be transmitted to future generations’.283 With respect to natural heritage IUCN, generally considered as being stricter in its approach,284 stresses that ‘maintaining the credibility of the World Heritage List is intrinsically linked to a proper understanding, and the strict and rigorous application, of the OUV [note: Outstanding Universal Value] concept’.285 It goes on to define the term outstanding universal value as follows: (1) Outstanding: For properties to be of OUV they should be exceptional. IUCN has noted in several expert meetings that the World Heritage Convention sets out to define the geography of the superlative—the most outstanding natural and cultural places on Earth, (2) Universal: The scope of the Convention is global in relation to the significance of the properties to be protected as well as its importance to all people of the world. By definition properties cannot be considered for OUV from a national or regional perspective; (3) Value: What makes a property outstanding and universal is its “value” which implies clearly defining the worth of a property, ranking its importance based on clear and consistent standards, and assessing its quality.286

280

For a discussion of the early approaches of the World Heritage Committee, ICOMOS and IUCN see Cleere, loc. cit. n. 236, p. 227 et seq. 281 ICOMOS, Special Expert Meeting of the World Heritage Convention: The Concept of Outstanding Universal Value—Background Paper (2005; available online at http://whc.unesco. org/temp/POL/ICOMOS%20OUV%20Paper%20final.doc; last visited on December 31, 2008) p. 6. 282 ICOMOS, op. cit. 278, at p. 10. 283 ICOMOS, op. cit. 278, at p. 10. 284 Cleere, loc. cit. n. 236, at p. 230. 285 IUCN, Special Expert Meeting of the World Heritage Convention: The Concept of Outstanding Universal Value—Background Paper (2005; available online at http://whc.unesco.org/ temp/POL/FINAL%20IUCN%20Background%20Document%20for%20Kazan%2004.04.05 .doc; last visited on December 31, 2008) at p. 1. 286 IUCN, op. cit. n. 285, at p. 3. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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As outlined above,287 the World Heritage Committee assesses nominated objects by the means of various legal criteria, the most prominent one being the set of ten criteria for determining whether or not a nomination has an outstanding universal value. Further decisive criteria for the inscription on the World Heritage List include the test of authenticity—applicable only in relation to cultural heritage nominations—, an integrity test and, also installed by the World Heritage Committee, the decision whether or not a buffer zone is required. The latter one was introduced by the first WHC Operational Guidelines in 1977288 with the aim of providing the best possible protection for an object ‘wherever necessary for the proper conservation.’289 Paragraphs 103 and 104 of the WHC Operational Guidelines define this area as an ‘adequate zone surrounding the nominated property which has complementary legal and/or customary restrictions placed on its use and development to give an added layer of protection to the property,’ thus leaving the further determination with regard to the exact size open for a case-by-case decision.290 Once inscribed on the World Heritage List, cultural and natural heritage is subject to a centralized protective regime. Although the protection and safeguarding obligations are addressed at the respective State Party, the World Heritage Committee can influence the protection process by various means. States Parties are obliged to report periodically about the implementation of the 1972 Convention and the state of protection and conservation of the cultural and natural properties located in their territories.291 In addition, the World Heritage Committee may also receive special reports by the World Heritage Centre, the advisory bodies or other sectors of UNESCO, based on national reports and including information on endangered cultural and natural properties inscribed on the World Heritage List with the aim of preventing endangered properties from deteriorating (‘monitoring process’).292 For these purposes the World Heritage Committee can ask the respective State Party to take all necessary measures to resolve problems, can suggest and coordinate international cooperation, may inscribe severely threatened properties on the List of World Heritage in Danger and allocate financial assistance by means of the Fund for the Protection of the World Cultural and Natural Heritage (hereafter the ‘World Heritage Fund’).

287

See supra I.4.2. See Paragraphs 103 to 107 WHC Operational Guidelines. 289 Paragraph 103 WHC Operational Guidelines. The concept of buffer zones has been clarified through revisions of the Operational Guidelines. 290 T. Kono, ‘The Significance of the Buffer Zone under the World Heritage Convention’, 5 Art Antiquity and Law (2000), pp. 177–184. 291 See Article 29 1972 Convention and Paragraphs 199 to 210 WHC Operational Guidelines. 292 See Chapter IV of the WHC Operational Guidelines. 288

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The List of World Heritage in Danger293 installed and updated by the World Heritage Committee pursuant to Article 11 (4) of the 1972 Convention294 and Chapter IV.B WHC Operational Guidelines contains cultural and natural heritage sites also inscribed on the World Heritage List. In contrast to inscription on the World Heritage List inscription on the List of World Heritage in Danger as exercised by the World Heritage Committee can be done without the consent of the respective State Party,295 as the inscription of the old city of Dubrovnik in 1991 shows.296 The World Heritage Committee by inscribing a site on that list can foster its recovery as an inscribed site is given priority regarding mechanisms of International Assistance,297 e.g. financial support, and is also subject to raised international awareness, alerting the international community to the need to respond to the threats and join in international efforts of protecting and safeguarding endangered sites. Protecting and safeguarding heritage sites is expensive. Especially poorer States Parties do not have enough financial resources to cover the arising costs. That is why the 1972 Convention installed a special funding and supporting system in the form of the World Heritage Fund. The World Heritage Fund,298 fed by compulsory national contributions as well as by voluntary contributions in total amounting to approximately US$ 4 million,299 aims at providing comprehensive financial support for the States Parties to the 1972 Convention in all stages of the protection and safeguarding process. Pursuant to Paragraph 241 of the WHC Operational Guidelines, States Parties

293 As of December 31, 2008, the List of World Heritage in Danger comprises 30 sites, mainly, but not exclusively, situated in regions of armed conflicts and/or developing countries (Full list available online at http://whc.unesco.org/en/danger; last visited on December 31, 2008). 294 Article 11 (4) 1972 Convention: ‘The Committee shall establish, keep up to date and publish, whenever circumstances shall so require, under the title of List of World Heritage in Danger, a list of the property appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under this Convention. This list shall contain an estimate of the cost of such operations. The list may include only such property forming part of the cultural and natural heritage as is threatened by serious and specific dangers, such as the threat of disappearance caused by accelerated deterioration, large-scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations due to unknown causes; abandonment for any reason whatsoever; the outbreak or the threat of an armed conflict; calamities and cataclysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods, and tidal waves. The Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicize such entry immediately.’ 295 Paragraph 183 WHC Operational Guidelines just states that ‘when considering the inscription of a property on the List of World Heritage in Danger, the Committee shall develop, and adopt, as far as possible, in consultation with the State Party concerned, a programme for corrective measures.’ 296 See N. Affolder, ‘Democratising or Demonising the World Heritage Convention’, 38 Victoria University of Wellington Law Review (2007) p. 341 at p. 354 et seq. for details. 297 See Chapter VII.C WHC Operational Guidelines. 298 See Chapter IV 1972 Convention. 299 See http://whc.unesco.org/en/funding/ (last visited on December 31, 2008).

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can ask for international assistance in three cases. Firstly, assistance might be granted to States Parties on a preparatory level, including the creation of tentative lists and the nomination process as well as the preparation for requests in relation to training and research activities. Secondly, in the phase of implementation, conservation and management assistance can be granted to States Parties, among others for the purposes of covering parts of the costs of protection and safeguarding projects, the training of experts or supplying equipment. Thirdly, the World Heritage Fund was also installed to provide immediate help in cases of emergency as an answer to imminent threats to cultural and natural sites inscribed on the World Heritage List. The third aspect is especially important for sites inscribed on the List of World Heritage in Danger, as most of those sites are located in areas with no or limited infrastructure for reacting to respective threats properly. A just balance has tried to be found through the introduction of a hierarchy of allocation by the World Heritage Committee.300 Thus, sites in danger are given the priority over ‘normal’ sites and States Parties with special needs due to a lack of sufficient national financial resources not only in terms of protecting sites, but also in terms of drafting tentative lists and nominating sites301 are given priority over richer countries. UNESCO stresses that although the World Heritage Fund is an important factor for the preservation of the World Heritage, its resources are limited. The World Heritage Concept based on the mechanism of its lists and the Fund is, however, ‘so well understood that sites on the [note: World Heritage] List are a magnet for international cooperation and may thus receive financial assistance for heritage conservation projects from a variety of sources.’302 5. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995)303 5.1. Background of the 1995 UNIDROIT Convention: Private Law as the Key to Regulating the Black Market For many years the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was the most prominent international instrument to deal with the complex issue of fighting the illegal international transfer of cultural

300

See Chapter VII.D 1972 Convention. See. L. Pressouyre, The World Heritage Convention, Twenty Years Later (Paris, UNESCO Publishing 1993/1996) at p. 34 for a comparison of developed and developing countries, showing the problems of the latter ones in the implementation process. 302 UNESCO World Heritage Centre 2005, op. cit. n. 213, at p. 10. 303 If used without any determination, the term convention refers to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects in this chapter. 301

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property. However, criticism concerning the 1970 Convention did not abate. In addition to its vague language, the shortcomings of the 1970 Convention concerned especially aspects related to private law.304 A solution was urgently needed, as a successful fight against the illicit trafficking of cultural property asked for more than just public law based provisions. The 1970 Convention—though being a tool of public international law—also raised questions in relation to private law but could not solve them. Especially the return of stolen property as laid down in Article 7 (b) (ii) had to be supplemented in order to work properly on an international level. It did not distinguish between issues related to public law aspects, such as export regulations, and questions in relation to private law, above all questions in connection with bona fide purchase, in a satisfactory way.305 Another big obstacle to a successful fight against illegal export and thefts of cultural property was the scope of Article 7 (b) (ii) of the 1970 Convention. It only covered ‘appropriate steps to recover and return’306 cultural property which—pursuant to Article 7 (b) (i) of the 1970 Convention was ‘stolen from a museum or a religious or secular public monument or similar institution in another State Party to (that) Convention . . . provided that such property is documented as appertaining to the inventory of that institution.’ The black-market for cultural property, however, comprised a much wider range of illegal import/export of cultural property. Threats to the protection of cultural property which had to be contained also included cultural objects stolen from museums or other institutions even if they were not inventoried,307 cultural property in the hand of private parties and also illegal excavations of cultural property. It was obvious that the question of return of illegally exported or stolen cultural property touched especially on the area of private law. What was needed was a codification and unification of private law provisions dealing exclusively with those issues. Such an international instrument had to meet the interests of as many nations as possible, not only on a regional level, in order to work properly. 5.2. Drafting of the 1995 UNIDROIT Convention: The Long and Winding Road The adoption of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995 (hereafter the ‘1995 UNIDROIT Convention’) was

304

See supra I.3.3. for some points of criticism. Thorn, op. cit. n. 77, at p. 81 et seq. 306 Article 7 (b) (ii) 1970 Convention. 307 A possible problem for the implementation of the 1970 Convention was the question whether poorer States Parties to that convention had the financial resources and infrastructure to introduce comprehensive inventories for the protection of cultural properties legally possessed by them. Toshiyuki Kono - 978-90-04-18991-1 305

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‘the end of a long process.’308 Already in the early 1980s UNESCO came to the conclusion that the protection of cultural property had to focus on a wider range and also should cover private law aspects more closely.309 As the desired international framework of private law had to be accepted by nations with diverse interests and national regulations on the protection of cultural property and property law, UNESCO finally mandated UNIDROIT310 to elaborate an international instrument to supplement the 1970 Convention.311 In 1988, UNIDROIT with its expertise in questions concerning the issue of good faith acquisition of movables in general312 established an experts group consisting of members with various legal backgrounds. Though profiting from UNIDROIT’s research results in relation to bona fide purchase of movables, it was clear that cultural property had to be dealt with in a separate form as it was recognized as a ‘special category of property.’313 The general understanding was that a separate instrument in contemplation to the 1970 Convention had to be drafted, as an annex to the 1970 Convention probably would have slowed down the ratification process of that Convention.314 The experts group had to face a similar problem as the drafters of the 1970 Convention: it had to merge opposing interests. On the one hand were the interests of negotiating states which strongly favored the principle of a strict and comprehensive protection of cultural property and on the other were the opposing interests of nations with important art markets, which

308

L.V. Prott, Commentary on the UNIDROIT Convention (Leicester, Institute of Art and Law 1997) at p. 12. 309 Prott 1997, op. loc. n. 308, at p. 12, referring to L.V. Prott and P.J. O’Keefe, National Legal Control of Illicit Traffic in Cultural Property ‘commissioned by UNESCO and discussed at a Consultation of Experts on Illicit Traffic’ in Paris March 1–4, 1983, UNESCO Doc. CLT/83/ WS/16 (available online at http://unesdoc.unesco.org/images/0005/000548/054854eo.pdf; last visited on December 31, 2008). 310 The UNIDROIT (International Institute for the Unification of Private Law), which has its seat in Rome, was set up in 1926 as an auxiliary organ of the League of Nations an reestablished in 1940 on the grounds of a multilateral agreement, the UNIDROIT Statute (available online at http://www.unidroit.org/english/presentation/statute.pdf; last visited on December 31, 2008). Its purposes are ‘to examine ways of harmonizing and coordinating the private law of States and of groups of States, and to prepare gradually for the adoption by the various States of uniform rules of private law’ (Art. 1 of the UNIDROIT Statute). Membership of UNIDROIT is restricted to States acceding to the UNIDROIT Statute. UNIDROIT’s 63 Member States (as of December 31, 2008, full list available online at http://www.unidroit. org/english/members/main.htm; last visited on December 31, 2008) are drawn from five continents, and represent a variety of different legal, economic, and political systems as well as different cultural backgrounds. 311 Thorn, op. cit. n. 77, at p. 88. 312 Already in 1974, UNIDROIT drafted the UNIFORM Law on the Acquisition in Good Faith of Corporeal Movables (LUAB), discussing the issue of acquisition of movables in general; see M. Schneider, ‘UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: Explanatory Report’, 6 Uniform Law Review (2001) p. 476 at p. 480. 313 M.E. Phelan, ‘The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects Confirms a Separate Property Status for Cultural Treasures’, 5 Villanova Sports and Entertainment Law Journal (1998) p. 31 chapter I. 314 Thorn, op. cit. n. 77, at p. 89.

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feared that strict rules would lead to problems for those markets. In addition, as the research work had to cover private law aspects of transfer of property, bona fide purchase and restitution of cultural property, the experts group also had to find a way to unify national legislation concerning those issues, national legislation with different approaches and regulations. The result of the negotiations was the Preliminary Draft Convention on the Restitution of Cultural Objects. This draft, which was a pragmatic compromise, included only minimum requirements for further studies and led to the drafting of the Final Draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects (hereafter the ‘final UNIDROIT draft’) in 1993. The final UNIDROIT Draft left some core parts of the instrument open for final discussions during the adoption phase in 1995, some of which had also been heavily disputed in the drafting process of the 1970 Convention. These included the question of retroactivity, issues of compensation payments to bona fide purchasers and termination to claims as well as transnational export limitations.315 Again, compromises had to be made in order to make the Convention acceptable to as a large number of different states as possible. The final compromise reached resulted in the adoption of the 1995 UNIDROIT Convention on June 24, 1995. The 1995 UNIDROIT Convention, which entered into force on July 1, 1998, currently has 29 States Parties (as of December 31, 2008).316 5.3. Scope of Application of the 1995 UNIDROIT Convention: Focus on Recovery In contrast to the 1970 Convention which created an international public law framework for both the prevention of illicit traffic and the question of recovery, the 1995 UNIDROIT Convention concentrates on the second aspect, the recovery phase, by introducing an instrument concerning private law, thus contemplating the 1970 Convention rather than replacing it.317 It focuses on two groups in relation to illicit trafficking of cultural property: restitutions claims concerning stolen cultural property318 and return claims concerning 315 Thorn, op. cit. n. 77, at p. 90 et seq. with reference to the Diplomatic Conference for the Adoption of the Draft UNIDOIRT Convention on the international Return of Stolen or Illegally Exported Cultural Objects, Rome, June 7 to 24, 1995, Acts and Proceedings. 316 See http://www.unidroit.org/english/implement/i-95.pdf (last visited on December 31, 2008). 317 Preamble (9) 1995 UNIDROIT Convention. 318 For the purpose of easier understanding the author uses the term cultural property instead of cultural objects used by the 1995 UNIDROIT Convention. It shall be noted that in the French version cultural property/cultural objects is referred to as biens culturels, a term already used in previous Conventions, especially the 1970 Convention. For an explanation why the 1995 UNIDROIT Convention uses the English expression cultural objects see e.g. Schneider, loc. cit. n. 312, at p. 488.

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illicitly exported cultural property.319 It thus attempts ‘to establish an unified private law code for resolving international claims demanding the restitution of stolen cultural objects and the return of illegally exported objects.’320 As far as the objective scope of application is concerned, the 1995 UNIDROIT Convention adopted verbatim the definition of Article 1 of the 1970 Convention.321 Still, the objective scope differs from the respective provision of the 1970 Convention and also varies within the scope of the 1995 UNIDROIT Convention depending on whether a cultural object was stolen or illegally exported. Unlike under the regime of the 1970 Convention322 neither inventories of the respective cultural properties nor their source location at ‘museums, religious or secular public monuments or similar institutions’ are prerequisites for the application of the 1995 UNIDROIT Convention in relation to stolen objects. The 1995 UNIDROIT Convention also regulates thefts of privately owned properties and/or not inventoried property. It also differentiates between the restitution of stolen cultural property and illicitly exported cultural property, as the general definition of Article 2 of the 1995 UNIDROIT Convention only applies to the first category, whereas claims for the return of illicitly exported property require in addition that the requesting state declares that the respective cultural property is of significant cultural importance or that its removal infringes interests set forth in Article 5 (3) (a) to (d) of the 1995 UNIDROIT Convention.323 Commentators on the 1995 UNIDROIT Convention state that the difference with respect to the two main categories of protected cultural property can be found in the underlying rationale of the two groups. The extensive term in relation to 319

Article 1 1995 UNIDROIT Convention: This Convention applies to claims of an international character for: (a) the restitution of stolen cultural objects; (b) the return of cultural objects removed from the territory of a Contracting State contrary to its law regulating the export of cultural objects for the purpose of protecting its cultural heritage (hereinafter, illegally exported cultural objects). 320 M. Olivier, ‘The UNIDROIT Convention: Attempting to Regulate the International Trade and Traffic of Cultural Property’, 26 Golden State University Law Review (1996) p. 627 at p. 655 referring to B.T. Hoffman, ‘How UNIDROIT Protects Cultural Property (pt. 1)’, 23 New York Law Journal (1995) p. 5 at p. 10. 321 Article 2 1995 UNIDROIT Convention; see also Article 1 1970 Convention. 322 Article 7 (b) (i) and (ii); see supra I.3.3. and I.5.1. 323 Article 5 (3) 1995 UNIDROIT Convention: The court or other competent authority of the State addressed shall order the return of an illegally exported cultural object if the requesting State establishes that the removal of the object from its territory significantly impairs one or more of the following interests: (a) the physical preservation of the object or of its context; (b) the integrity of a complex object; (c) the preservation of information of, for example, a scientific or historical character; (d) the traditional or ritual use of the object by a tribal or indigenous community, or establishers that the object is of significant cultural importance for the requesting State. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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stolen cultural objects is justified by the fact that ‘the theft of movables per se is considered illegal all over the world, irrespective of its classification.’324 The limitation with respect to the illegal export, on the other hand, is explained by the wish that States Parties should not be obliged to be bound by stricter export regulations of other states.325 In contrast to the original plans of the drafting experts group, which favored a comprehensive instrument of law by expanding the scope of application also to purely domestic cases of theft, the territorial scope of application is limited to ‘claims of an international character.’326 Here, once again, one can point out regulatory differences between the two main categories: theft of cultural property and illegal export of cultural property. Whereas the second category requires that the respective cultural property is illegally transported from one State Party and—at the time of the return request—is located in the territory of another State Party,327 it is argued that with respect to stolen cultural property the 1995 UNIDROIT Convention can also be applied to cases in which cultural property is stolen from non-contracting states, if the property is found in the territory of a State Party, provided that there must be a ‘certain connection between the source nation and the State Party.’328 The personal scope of application covers a much wider range than in the 1970 Convention. Not only the States Parties,329 but also the respective (original) owner of the concerning stolen cultural property is entitled to file a lawsuit for restitution purposes. Due to the fact that the 1995 UNIDROIT Convention provides direct access to the courts of a State Party by the (original) owner, it contemplates the public law provisions of Article 7 (b) (ii) of

324 Thorn, op. cit. n. 77, at p. 90 et seq. with reference to A.F.G. Raschèr, ‘Grundlagen, Entstehung und Inhalt der UNIDROIT-Konvention’ [Basic Principles, Emergence and Contents of the UNIDROIT Convention], in Schweizerische Akademie der Geistes- und Sozialwissenschaften, ed., Unidroit: Recht und Ethik im Handel mit Kulturgut. Tagung der Schweizerischen Akademie der Geistes- und Sozialwissenschaften gemeinsam mit der Schweizerischen Ethnologischen Gesellschaft Bern, den 27. Juni 1998 [Unidroit: Law and Ethics in Trade with Art Objects. Conference of the Swiss Academy of Humanities and Social Sciences and of the Swiss Ethnological Society, Berne June 27, 1998] (Bern, Schweizerische Akademie der Geistes- und Sozialwissenschaften 1998) p. 13 at p. 18; Schneider, loc. cit. n. 312, at p. 498; E. Sidorsky, ‘The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: The Role of International Arbitration’, 5 International Journal of Cultural Property (1996) p. 19 at p. 31. 325 Thorn, op. cit. n. 77, at p. 90 et seq. with reference to R. Streinz, Handbuch des Museumsrechts 4: Internationaler Schutz von Museumsgut [Handbook of Museum Law 4: International Protection for Museum Property]. 326 Article 1 1995 UNIDROIT Convention—see supra n. 310. The issue of definition of international character is not solved yet; for interpretive suggestions refer to Prott 1997, op. loc. n. 308, p. 22 et seq.; Thorn, op. cit. n. 77, at p. 93 et seq., Schneider, loc. cit. n. 312, p. 492 et seq. 327 Articles 1 (b) and 5 (1) 1995 UNIDROIT Convention. 328 Thorn, op. cit. n. 77, at p. 94 with reference to the wording of Article 10 (1) (b) 1995 UNIDROIT Convention. 329 Thorn, op. cit. n. 77, at p. 96 with reference to Article 5 (1) 1995 UNIDROIT Convention, supplementary to Article 3 1995 Convention.

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the 1970 Convention which deals with the problem of stolen cultural property by the means of States Parties’ action and administrative instruments (arg.: ‘at the request of the State Party of origin’). With regard to the second category of protected cultural property, the illegal export of such property, not the owner, but the respective State Party is entitled to make use of court action,330 as the originator of export regulations is the state itself and not the owner. The period of applicability was the object of similar discussions as already known from the drafting process of the 1970 Convention.331 The result of the discussions resembled its outcome as well: pursuant to Articles 10 (1) and (2) of the 1995 UNIDROIT Convention332 the principle of non-retroactivity was adopted. An interesting and important question raised by various scholars is the question whether or not the 1995 UNIDROIT Convention is directly applicable (self-executing) in its contracting states. In contrast to UNIDROIT commentaries on the draft version of the convention,333 the 1995 UNIDROIT Convention itself does not refer to this issue, neither in a negative nor in an affirmative way. The prevailing perception concerning the question of selfexecution is the understanding that the respective international agreement must be precise enough for direct application by national courts or other state authorities.334 In addition to the text of the instrument the intention of the signing parties has also to be taken into account.335 If, however, an international instrument just exclaims legal principles by setting a legal framework clearly envisaging national implementing legislation, no doubt can be left that a convention is not self-executing. As far as the 1995 UNIDROIT Convention is concerned, one has to distinguish between provisions on substantive law, including and supplementing the key provisions of Articles 3 (1) and 5 (1) of the 1995 UNIDROIT Convention 330 Article 10 (2) 1995 UNIDROIT Convention: ‘The provisions of Chapter III shall apply only in respect of a cultural object that is illegally exported after this Convention enters into force for the requesting State as well as the State where the request is brought.’ 331 See supra I.3.1. 332 Article 10 1995 UNIDROIT Convention: (1) The provisions of Chapter II shall apply only in respect of a cultural object that is stolen after this Convention enters into force in respect of the State where the claim is brought, . . . (2) The provisions of Chapter III shall apply only in respect of a cultural object that is illegally exported after this Convention enters into force for the requesting State as well as the State where the request is brought). 333 Thorn, op. cit. n. 77, at p. 97 with reference to UNIDROIT 1993, Etude LXX Doc. 36, 1 and 42, 3 which state that—in relation to its provisions on procedural law—‘the Convention is not self-executing.’ 334 A. Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press 2007) p. 183 et seq. with reference to various national perceptions; Thorn, op. cit. n. 77, at p. 99. 335 Aust, op. cit. n. 334, p. 183 et seq.

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and those of a procedural law character. Whereas the 1995 UNIDROIT Convention does not aim at creating standard rules in relation to procedural law, the wording and contents of the provisions on substantive law are well determined. In addition, the Preamble expresses in its fourth paragraph that by adopting the Convention the States Parties intend to introduce ‘common, minimal legal rules,’336 thus pointing out that the Convention does not just stipulate programmatic principles in the fight against theft and illicit export of cultural property, but that it—in contrast to the 1970 Convention337— should be directly applicable by the courts and authorities upon ratification by the respective State Party.338 5.4. Legal Framework and basic principles of the 1995 UNIDROIT Convention: Acts of Balancing The main purpose of the 1995 UNIDROIT Convention can be described as being an attempt to establish a unified private law code with minimum provisions339 for solving international claims concerning the restitution of stolen cultural property regardless of its origin, be it a private owner or not (Chapter II of the 1995 UNIDROIT Convention), and the return of illegally exported cultural property (Chapter III of the 1995 UNIDROIT Convention). Pursuant to Article 3 (2) of the 1995 UNIDROIT Convention the regulations on stolen property also apply to illegally excavated or illegally retained excavated cultural property. By providing provisions for as wide a range as possible, the issue of illicit trafficking of cultural property by means of an instrument concerning private law was addressed comprehensively for the first time. In order to make it acceptable especially to art market nations, the 1995 UNIDROIT Convention, however, had to introduce certain limitations to claims with regard to both categories, thus resulting in compromise results in various areas. In principle, stolen cultural property has to be restituted to its original owner. The drafters of the 1995 UNIDROIT Convention had to ‘balance’340 and ‘harmonize’341 opposing, but nevertheless equally legitimate interests: the interest of the owner whose property was stolen and, in the case of a bona fide purchase, the interest of the purchaser not to return the respective object. In addition, it also had to make concessions to the interests of those drafting parties which in accordance with their national laws asked for a time limitation to respective claims.

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Preamble (5) 1995 UNIDROIT Convention. A.F.G. Raschèr, Kulturgütertransfer und Globalisierung [Transfer of Cultural Property and Globalization] (Zürich, Schulthess Juristische Medien AG 2000) at p. 70. 338 Raschèr 2000, op. cit. n. 337, at p. 70; Thorn, op. cit. n. 77, at p. 102. 339 Preamble (4) 1995 UNIDROIT Convention. 340 C. Fox, loc. cit. n. 132, at p. 231. 341 Warring, loc. cit. n. 2, p. 252 et seq. Toshiyuki Kono - 978-90-04-18991-1 337

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The result was the following: both categories of possible claims, restitution claims concerning to stolen cultural property and return claims concerning illegally exported cultural property are subject to restrictions. Claims for restitution of stolen cultural property pursuant to Article 3 1995 of the UNIDROIT Convention are subject to time limitations, in most cases of application subject to shorter relative and longer absolute time limitations,342 with the exact limitation varying due to the nature of the respective cultural property343 and, to some extent, also overruled by national legislation.344 A similar system of relative and absolute time limitation, yet without distinction between various forms of cultural property applies in the cases of illegal export of cultural property.345 In addition, the finally adopted version of the 1995 UNIDROIT Convention sets the frame for compensation payments to bona fide purchasers, thus accommodating those nations which in their national laws provide for the transfer of ownership in the case of ‘good faith acquisition’ of property. Like the 1970 Convention, the 1995 UNIDROIT Convention uses a rather general termination by stipulating that ‘the possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that he exercised due diligence when acquiring the object,’346 leaving the determining discretion in relation to the amount of compensation to the courts and allowing for a ‘certain degree of flexibility.’347 An

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Article 3 1995 UNIDROIT Convention: . . . (3) Any claim for restitution shall be brought within a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor, and in any case within a period of fifty years from the time of the theft. (4) However, a claim for restitution of a cultural object forming an integral part of an identified monument or archaeological site, or belonging to a public collection, shall not be subject to time limitations other than a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor. (5) Notwithstanding the provisions of the preceding paragraph, any Contracting State may declare that a claim is subject to a time limitation of 75 years or such longer period as is provided in its law. A claim made in another Contracting State for restitution of a cultural object displaced from a monument, archaeological site or public collection in a Contracting State making such a declaration shall also be subject to that time limitation. . . . (8) In addition, a claim for restitution of a sacred or communally important cultural object belonging to and used by a tribal or indigenous community in a Contracting State as part of that community’s traditional or ritual use, shall be subject to the time limitation applicable to public collections. Article 3 (4) and (8) of the 1995 UNIDROIT Convention. Article 3 (5) 1995 UNIDROIT Convention. Article 5 (5) 1995 UNIDROIT Convention. Article 4 (1) 1995 UNIDROIT Convention. Raschèr 2000, op. cit. n. 337, at p. 85.

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important aspect and point of criticism in various countries is the fact that— compared to some national legal systems348—pursuant to Article 4 of the 1995 UNIDROIT Convention the burden of proof in relation to the two conditions for compensation claims is reversed. The purchaser has to prove both that he neither knew nor ought reasonably to have known that the respective property was stolen and that he exercised due diligence when acquiring the object. For the purpose of decision making by the respective court Article 4 (4) of the 1995 UNIDROIT Convention offers an explanatory outline of the term due diligence,349 a term which can also be found in newer versions of international applicative instruments, such as ICOM’s Code of Ethics.350 The active approach chosen by the 1995 UNIDROIT Convention is hoped to ‘impede the market in stolen works of art.’351 The second category of protected property covering the issue of illegal export of cultural property352 includes provisions for compensation payments to bona fide purchasers, as well. The basis for a compensation claim is, however, eased as Article 6 (1) of the 1995 UNIDROIT Convention differs from Article 4 (1) of the 1995 UNIDROIT Convention on two counts. Firstly, the purchaser does not need to prove that he acted ‘in due diligence’ when acquiring the illegally exported cultural property in dispute. Secondly, regarding the requirement that the purchaser did not know or did not ought to have known about the illegal export, the burden of proof is subject to the applicable domestic law.353

348 Thorn, op. cit. n. 77, at p. 106 with reference to J.A. Winter, ‘The Application of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects in Relations between Member States of the European Union’, in E. Denters and N. Schrijver, eds., Reflections on International Law from the Low Countries in Honour of Paul de Waart (Den Haag 1998) p. 347 at p. 362); A. Weidner, Kulturgueter als res extra commercium im internationalen Rechtsverkehr [Cultural Porperty as res extra commercium in international legal relations] (Berlin 2001) at p. 135. 349 Article 4 (4) 1995 UNIDROIT Convention: ‘In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances.’ 350 See e.g. chapter 2.3 of the newest version available online at http://icom.museum/ code2006_eng.pdf (last visited on December 31, 2008). 351 N.R. Lenzner, ‘The Illicit International Trade in Cultural Property: Does the UNIDROIT Convention Provide an Effective Remedy for the Shortcomings of the UNESCO Convention?’, 15 University of Pennsylvania Journal of International Business Law (1994) p. 469 at p. 497. 352 Pursuant Article 7 (1) 1995 UNIDROIT Convention chapter III is not applicable in cases in which ‘the export of a cultural object is no longer illegal at the time at which the return is requested’ or ‘the object was exported during the lifetime of the person who created it or within a period of fifty years following the death of that person.’ 353 Article 6 (1) 1995 UNIDROIT Convention: ‘The possessor of a cultural object who acquired the object after it was illegally exported shall be entitled, at the time of its return, to

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It should be stressed again that the 1995 UNIDROIT Convention attempts to introduce a least common denominator for return and restitution purposes in cases of theft and illegal export. It had to offer concessions to those states which opposed a too generous protection of cultural property, such as regulations on time limitations and compensations payments. In this context and as an answer to the concessions made, Article 9 (1) of the 1995 UNIDROIT Convention enables the supporters of a strict regime to implement/maintain restitution-/return-friendlier national provisions as it states that ‘nothing in this Convention shall prevent a Contracting State from applying any rules more favorable to the restitution or the return of stolen or illegally exported cultural objects than provided for by this Convention’. The application of such an option, of course, must not infringe the framework of the 1995 UNIDROIT Convention. In order to prevent the forum shopping which could result from choosing a jurisdiction in accordance with Article 8 (1) of the 1995 UNIDROIT Convention,354 the decision-making courts are bound by the respective rules of conflict of laws. A court can choose to apply a more favorable applicable law if such an application is provided for in the rules of conflict of laws. Despite the fact that the 1995 UNIDROIT Convention is currently (as of December 31, 2008) in force between less than 30 States Parties,355 it has to be considered an important international instrument for providing directly applicable standards for a worldwide fight against thefts and illegal exports of cultural property. As one can see by analyzing the contents of the Convention it ‘has not achieved uniform law, but it has (at least) achieved a minimum uniform rules’356 for restitution and return claims in relation to cultural property. Being a compromise of the before-mentioned antitheses of interests and different legal approaches towards the transfer of ownership and the issue of bona fide purchase, it is logical that the convention could not perfectly satisfy every single interest, leading to the result that the attitude among many states towards the Convention is still more than a reserved one. Nevertheless, the 1995 UNIDROIT Convention created an international, private-law framework which could give an answer to not all, but at least a large number of so far unsolved cases. It extends the scope of application to basically any kind of theft of cultural property, irrespective of private or payment by the requesting State of fair and reason compensation, provided that the possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported.’ 354 Article 8 (1) 1995 UNIDROIT Convention: ‘A claim under Chapter II and a request under Chapter III may be brought before the courts or other competent authorities of the Contracting State where the cultural object is located, in addition to the courts or other competent authorities otherwise having jurisdiction under the rules in force in Contracting States.’ 355 See supra I.5.2. 356 Prott 1997, op. loc. n. 308, at p. 87. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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public ownership including cases of illegal excavations and it tries to also take into account the interests of bona fide purchasers by stipulating the right to compensation payments and introducing an international standard of due diligence for the acquisition of cultural property based on objective criteria. Giving an explanatory outline for the interpretation of good faith using the active approach of due diligence, the Convention—under the premise that it will be subject to ratification by a growing number of art market influential nations—could be an effective instrument to prohibit the ‘cultural property laundering,’357 at least to a greater extent than now. The 1995 UNIDROIT Convention also addresses and tries to regulate the return of illegally exported cultural property. By doing so, it at the same time provides for moderation as its Article 5 (3)358 is aimed at preventing an ‘enforcement and acceptance of too excessive national export prohibitions.’359 The 1995 UNIDROIT Convention obviously still needs time to show grave effects. For this purpose it will be of extreme importance whether or not those countries which are still reluctant to ratify the convention for various reasons, be it an interference with existing national laws regarding the position of purchasers of property, questions concerning time limitations to claims, the issue of compensation payments or the wide scope of application of the Convention, will rethink their position and accept the instrument. 6. Convention on the Protection of the Underwater Cultural Heritage (2001)360 6.1. Excursus: The United Nations Convention on the Law of the Sea of 1982 or Mission Incomplete Before examining the Convention on the Protection of the Underwater Cultural Heritage of 2001 (hereafter the ‘2001 Convention’) we should take a short look back on another convention often discussed in relation to underwater cultural heritage and the 2001 Convention:361 the United Nations Con-

357

Thorn, op. cit. n. 77, at p. 194. Supra n. 323. 359 Raschèr 2000, op. cit. n. 337, at p. 99. 360 If used without any determination, the term convention refers to the Convention on the Protection of Underwater Cultural Heritage in this chapter. 361 E.g. T. Scovazzi, ‘Convention on the Protection of Underwater Cultural Heritage’, 32 Environmental Policy and Law (2002) p. 152 at p. 152 et seq.; A. Strati, The Protection of the Underwater Cultural Heritage: An emerging Objective of the Contemporary Law of the Sea (The Hague, Kluwer Law 1995) p. 327 et seq.; C.J.S. Forrest, ‘A New International Regime for the Protection of Underwater Cultural Heritage’, 51 International and Comparative Law Quarterly (2002) p. 511 at p. 513; T. Scovazzi, ‘A Contradictory and Counterproductive Regime’, in R. Garabello and T. Scovazzi, eds., The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Leiden, Martinus Nijhoff Publishers 358

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vention on the Law of the Sea of 1982362 (hereafter the ‘1982 Convention’). Adopted in 1982 with the purpose of defining the rights and responsibilities of nations in their use of the world’s oceans, it established guidelines for the management of marine natural resources, business and the environment. Two of its provisions, Articles 149 and 303, alluded to the topic of protection of the underwater cultural heritage. Whereas Article 149 of the 1982 Convention expresses programmatically that ‘[a]ll objects of an archaeological and historical nature found in the Area363 shall be preserved or disposed of for the benefit of mankind as a whole,’ Article 303 of the 1982 Convention introduces a general obligation of States Parties to protect and cooperate with regard to archaeological and historical objects irrespective of their location at sea. Although it is said that ‘theses general principles form the basis upon which the new Convention [note: 2001 Convention] is structured,’364 their contents and vague language were subject to criticism. P.J. O’Keefe states that ‘there are significant problems of interpretation’365 of Article 149 of the 1982 Convention with its limitation to objects in the ‘Area’, arguing that it causes more questions instead of giving answers. Scovazzi366and Strati367 criticize Article 303 of the 1982 Convention for various reasons, among others for the lack of a definition of the protected cultural property, the use of the term removal in connection with the coastal state’s control of traffic of the before-mentioned objects,368 giving no answer to the threat of destruction of objects in the very place, for not clarifying the rules of protection with reference to found objects on the continental shelf,369 the exclusive economic

2003) p. 3; Ya-juan Zhao, ‘The Relationship among the Three Multilateral Regimes concerning the Underwater Cultural Heritage’, in Nafziger and Scovazzi, op. cit. n. 10, pp. 601–642. 362 The text of the United Nations Convention on the Law of the Sea of 1982 is available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm (last visited on December 31, 2008). 363 Also referred to as the ‘International Deep Seabed’—see Strati, op. cit. n. 361, at p. 295; Article 1 (5) 2001 Convention defines it as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.’ 364 Forrest 2002 ‘New International Regime’, loc. cit. n. 361, at p. 514. 365 P.J. O’Keefe, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage (Leicester, Institute of Art and Law 2002) at p. 19 with further details. 366 Scovazzi 2002, loc. cit. n. 361, p. 152 et seq. 367 Strati, op. cit. n. 361, p. 330 et seq. 368 Article 303 (2) 1982 Convention: ‘In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article.’ 369 The continental zone of a coastal nation extends out to its continental margin, but at least to 200 nautical miles from the baselines of its territorial sea. Article 76 1982 Convention defines the Continental Shelf as comprising ‘the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the

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zone370 and the Area and the reservation of the Law of Salvage.371 The said provisions of the 1982 Convention left important questions in relation to the protection of underwater cultural heritage unanswered, but at the same time made an arrangement for further regulations by the stipulation in Article 303 (4) of the 1982 Convention that ‘this article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature’. 6.2. Background of the 2001 Convention: Fishing for a Solution The call for a comprehensive protection of underwater cultural heritage by an international binding tool did not emerge just a couple of years ago. The first international instrument to provide for some recognition of the need to preserve underwater cultural heritage is said to be the UNESCO Recommendation on International Principles Applicable to Archaeological Excavations372 of 1956.373 As shown above,374 the 1982 United Nations Convention on the Law of the Sea touched on the issue, but could not give a satisfying answer. The complex framework of the 1982 Convention was not suitable for the extensive regulation of underwater cultural heritage. It was a regional movement which finally initiated the promotion of a comprehensive international instrument on the protection of underwater cultural heritage. In 1985 the Council of Europe unsuccessfully tried to adopt the European Convention on Offences Relating to Cultural Property.375 The

continental margin does not extend up to that Distance;’ an illustration of the maritime zones established under the regime of the 1982 regime can be found in C. Lund, ‘The Making of the 2001 UNESCO Convention’, in L.V. Prott, ed., Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention on the Protection of the Underwater Cultural Heritage (Leicester, Institute of Art and Law 2006) p. 14 at p. 15. 370 In principle, the Exclusive Economic Zone extends to a distance of 200 nautical miles out from its coast. Article 57 of the 1982 Convention defines the breadth of the Exclusive Economic Zone as a zone which ‘shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured’. 371 Norris defines salvage as ‘the compensation allowed to persons by whose voluntary assistance, a ship at sea or her cargo, or both have been saved in whole or in part from impending sea peril; or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict or recapture’; see Forrest 2002 ‘New International Regime’, loc. cit. n. 361, at p. 534 with reference to M.J. Norris, The Law of Salvage (Mount Kisco, Baker Voorhis 1958) p. 157. 372 The text of the 1956 UNESCO Recommendation on International Principles Applicable to Archaeological Excavations is available online at http://portal.unesco.org/en/ev.php-URL_ ID=13062&URL_DO=DO_TOPIC&URL_SECTION=201.html (last visited on December 31, 2008). 373 C.J.S. Forrest, ‘Defining ‘Underwater Cultural Heritage’’, 31 The International Journal of Nautical Archaeology (2002) p. 3 at p. 6 et seq. 374 See supra I.6.1. 375 The text of the European Convention on Offences Relating to Cultural Property is available online at http://conventions.coe.int/Treaty/EN/Treaties/Html/119.htm (last visited on December 31, 2008).

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Council of Europe recommended that the drafters of that convention should provide for the following: the exclusion of the application of salvage law to underwater cultural heritage, an extension of national legislation to a 200– mile-distance into the sea and a definition of underwater cultural heritage by comprising all objects older than 100 years.376 Due to internal disputes among Member States to the European Council, not only were the recommendations to a certain extent omitted, but the mitigated draft version was also left unaccepted. Attempts to establish an international instrument were not scotched. Only a couple of years later the International Law Association377 (hereafter the ‘ILA’) began with the elaboration of a draft convention, based on some of the recommendations of the Council of Europe. Once again, one focus was put on the jurisdiction of the coastal state, extending its competences to a 200–mile-radius. In addition, salvage law should not be applicable and the draft also pointed out that the contained provisions should only apply to abandoned property ‘to avoid any problems related to private property rights.’378 In 1994 ILA adopted the Draft Convention on the Protection of the Underwater Cultural Heritage379 (hereafter the ‘ILA Draft’). Together with an annex including objective archaeological standards for the means of interpreting the ‘appropriateness of activities affecting the Underwater Cultural Heritage’380 drafted by the International Council for Monuments and Sites (ICOMOS),381 that draft was submitted to UNESCO in 1994 as UNESCO was considered the best choice for the adoption of a convention. Encouraged by the ILA Draft and its annex, UNESCO established an experts group which would further develop the drafting process. The first UNESCO draft was finished in 1998, but due to divergence in the approaches of maritime powers on the one hand and mere coastal states on the other hand it had to be revised several times. Heavily discussed issues concerned the scope of application, the definition of the protected property, questions

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Forrest 2002 ‘New International Regime’, loc. cit. n. 361, at p. 514. Founded in 1873 as a consultative, non-governmental organization with its current headquarters in London, the aims of the ILA are ‘the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law’ (Art. 3.1 of its current constitution, available online at http://www.ila-hq.org/en/about_us/index.cfm; last visited on December 31, 2008). 378 Forrest 2002 ‘New International Regime’, loc. cit. n. 361, at p. 515. 379 The text of the ILA Draft is available in P.J. O’Keefe and J.A.R. Nafziger, ‘The Draft Convention on the Protection of the Underwater Cultural Heritage’, 25 Ocean Development and International Law (1994) p. 391 at p. 404 et seq.; this article also comments the draft in detail. 380 S. Dromgoole, ‘2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage’, 18 The International Journal of Marine and Coastal Law (2003) p. 59 at p. 62. 381 See supra n. 273. Toshiyuki Kono - 978-90-04-18991-1 377

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in relation to salvage law and jurisdiction.382 The result of the negotiations was again a compromise solution, significantly differing from the ILA Draft and the UNSECO Drafts. It led to the adoption of the Convention on the Protection of the Underwater Cultural Heritage of 2001 on November 6, 2001. As of December 31, 2008 the 2001 Convention has 20 States Parties,383 but has not yet entered into force.384 6.3. Scope of Application of the 2001 Convention: Underwater Richness The main focus of the 2001 Convention, which like the other conventions discussed so far is not retroactively applicable, lies on the preservation and protection of underwater cultural heritage for the benefit of humanity.385 It tries to accomplish this by introducing a three-fold scheme: providing for basic principles and rules for the protection of underwater cultural heritage, establishing an international cooperation system and introducing a set of practical standards for dealing with such heritage. In this context the prime question is defining the objective scope of application. The answer can be found in Article 1 (a) of the 2001 Convention: Underwater cultural heritage means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally underwater, periodically or continuously, for at least 100 years. Article 1 (a) of the 2001 Convention gives some non-exclusive examples: (i) sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character. Compared to precedent drafts, the final definition of cultural heritage, though still wide in its meaning, shows both extensions of and limitations to the objective scope of application. The time limit of 100 years was obviously taken from the European Convention on Offences Relating to Cultural Property of 1985 and the ILA Draft and according to Forrest appears ‘as if the trend in both national and international protection measures tend to be inclusive in scope, covering objects that have been submerged for more than 100 years as objects of an archaeological and historical nature. The definition

382 For details on the negotiation process in general see e.g. R. Garabello, ‘The Negotiating History of the Provisions of the Convention on the Protection of the Underwater Cultural Heritage’, in R. Garabello and T. Scovazzi, eds., The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Leiden, Martinus Nijhoff Publishers 2003) p. 89. 383 See http://portal.unesco.org/la/convention.asp?KO=13520&language=E&order=alpha (last visited on December 31, 2008). 384 Pursuant to Article 27 the 2001 Convention will enter into force three months after the deposit of the twentieth instrument of ratification, acceptance or approval. 385 See Article 2 (1) and Preamble (1) et seq. 2001 Underwater Convention.

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of underwater cultural heritage has emerged from this trend.’386 It constitutes a limitation to the vague formulation used by the 1982 Convention and to proposals of early UNESCO drafts which intended to also include objects which have been underwater for less than 100 years if designated by a State Party.387 Another—but as Dromgoole points out,388 only prima facie—limitation is the insertion of the second qualifying criterion, the requirement of ‘having a cultural, historical or archaeological character’. This aspect was not found in previous drafts, but was finally introduced on demand of some common law countries. Dromgoole, however, doubts that this could be a further limitation to the scope of application, as ‘arguably anything over 100 years of age has a cultural, historical or archaeological character,’389 calling its insertion a ‘fudge.’390 It is indeed a vague term which could lead to problems in its interpretation. A further limitation of the scope of application can be seen in the term activities directed at underwater cultural heritage in connection with the regulation of such activities for the sake of protecting underwater cultural heritage as prime focus.391 The approach chosen by the drafters of the early UNESCO drafts was a different one: the scope of regulations compromised activities affecting underwater cultural heritage, which obviously has a wider meaning than the incorporated primary one affecting only activities ‘having underwater cultural heritage as their primary object and which may, directly or indirectly, physically disturb or otherwise damage underwater cultural heritage.’392 The adoption of the 2001 Convention also led to extensions of the objective scope of application. Whereas the ILA Draft and early UNESCO drafts focused on abandoned property to circumnavigate potential problems in the implementation of the Convention concerning questions of ownership of affected underwater cultural heritage, the 2001 Convention does not distinguish between abandoned and not abandoned objects and thus does not explicitly regulate the ownership of a cultural property between the respective

386

Forrest 2002 ‘Defining’, loc. cit. n. 373, at p. 7. Forrest 2002 ‘Defining’, loc. cit. n. 373, at p. 10. 388 Dromgoole, loc. cit. n. 380, at p. 64. 389 Dromgoole, loc. cit. n. 380, at p. 64. 390 Dromgoole, loc. cit. n. 380, at p. 64. 391 For the term activities directed at underwater cultural heritage see Preamble (7), Articles 1 (6), 1 (9), 2 (5), 7 (1), 7 (2), 8, 9 (1) (a), 11 (1), 12 (7), 13 2001 Convention; but see also Article 5 2001 Convention: ‘Each State Party shall use the best practicable means at its disposal to prevent or mitigate any adverse effects that might arise from activities under its jurisdiction incidentally affecting underwater cultural heritage.’ 392 Article 1 (6) 2001 Convention; see also Preamble (6), Articles 2 (5), 7 (1), 7 (2), 8, 9 (1) (a), 10 (1), 10 (2), 10 (3), 10 (7), 11 (1), 12 (1), 13, 15 and 16 2001 Convention. 387

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States Parties. In addition, unlike initial plans393 the 2001 Convention is also applicable to warships and other state-owned vessels.394 6.4. Legal Framework of the 2001 Convention: Preservation and Prohibition of Exploitation The 2001 Convention with its main text and Annex with its ‘Rules concerning activities directed at underwater cultural heritage’395 (hereafter the ‘2001 Annex’), forming an ‘integral part to the Convention’,396 provide for a complex framework of protection and preservation of underwater cultural heritage as outlined by Article 1, regardless of where the respective object is located in the world’s oceans. The location of such an object is, however, not unimportant to the implementation of the 2001 Convention, as the means of execution of the protective and preventive measures depend on the zone of location. Two basic principles can be found in Article 2 (5) and (7) of the 2001 Convention: the general means of preservation of underwater cultural heritage and the prohibition of economic exploitation of such objects. As far as the preservation is concerned, the Convention stipulates that in situ preservation shall be the first option.397 This approach was chosen in order to leave the respective object untouched, as—due to the underwater conditions—under normal circumstances it is a cheap, but nevertheless effective way of keeping underwater cultural heritage intact. This principle is said to be ‘in accordance with established archaeological principles, under which excavation should take place in two circumstances only: where a site is under threat, or for legitimate research purposes.’398 The principle as well as its exemptions are also reflected in the 2001 Annex, as its Rule 1 says that ‘activities directed at underwater cultural heritage shall be authorized in a manner consistent with the protection of that heritage, and subject to that requirement may be authorized for the purpose of making a significant contribution to protection or knowledge or enhancement of underwater cultural heritage.’ Rule 2 states that ‘professional archaeological services or necessary services incidental thereto whose nature and purpose are in full 393

Forrest 2002 ‘New International Regime’, loc. cit. n. 361, at p. 523. See Article 1 (1) (a) (ii) 2001 Convention which does not differentiate between various forms of ownership and purposes of vessels, aircrafts and other vehicles. 395 Subtitle of the Annex; despite the fact that the 2001 Convention has not entered into force yet, the Annex has already become important as an international reference document in the discipline of underwater archaeology providing for operation schemes for interventions underwater. 396 Article 33 2001 Convention. 397 Article 2 (5) 2001 Convention: ‘The preservation in situ of underwater cultural heritage shall be considered as the first option before allowing or engaging in any activities directed at this heritage.’ 398 Dromgoole, loc. cit. n. 380, at p. 65. 394

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conformity with this Convention and [which] are subject to the authorization of the competent authorities’ shall not be prevented. Rule 4 of the 2001 Annex finally states that excavations and/or recovery can under certain circumstances be possible under the Convention where they are ‘necessary for the purpose of scientific studies or for the ultimate protection of the underwater cultural heritage’. The second basic principle declares that the economic exploitation of underwater cultural heritage is not permissible.399 This rule is also important for the often criticized open approach of the 1982 Convention towards the laws of salvage and finds. Under the new regime of the 2001 Convention400 both are basically excluded, unless an activity relating to underwater cultural heritage ‘(a) is authorized by the competent authorities, (b) is in full conformity with this Convention, and (c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection.’401 In further combination with Rule 2 of the 2001 Annex402 the result is the ‘prevention of all the undesirable effects of the application of the law of salvage and finds. Freedom of fishing for archaeological and historical objects is banned.’403 Although the 2001 Convention neither explicitly touches upon the question of ownership of underwater cultural heritage nor provides for restitution claims in cases of illicit trafficking, it contains several regulations concerning the prevention of the illicit trafficking of cultural property recovered from the world’s oceans,404 comprising obligations for States Parties to prevent the engagement of its nationals or vessels under its flag in activities which could have a negative impact on underwater cultural heritage as well as an obligation addressed at States Parties to take appropriate measures to prevent the

399 Article 2 (7) 2001 Convention: ‘Underwater cultural heritage shall not be commercially exploited’; see also Rule 2 Annex: ‘The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods’. 400 For details about the new regime see G. Carducci, ‘The Crucial Compromise on Salvage Law and the Law of Finds’, in R. Garabello and T. Scovazzi, eds., The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Leiden, Martinus Nijhoff Publishers 2003) p. 193 et seq. or G. Carducci, ‘The UNESCO Convention 2001: A Crucial Compromise on Salvage Law and the Law of Finds’, in L.V. Prott, ed., Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention on the Protection of the Underwater Cultural Heritage (Leicester, Institute of Art and Law 2006) p. 27 et seq. 401 Article 4 2001 Convention. 402 Supra n. 395. 403 Scovazzi 2002, loc. cit. n. 361, at p. 154. 404 Articles 14 to 18 2001 Convention; see E. Clement, ‘The Convention Provisions on Illicit Traffic’, in L.V. Prott, ed., Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention on the Protection of the Underwater Cultural Heritage (Leicester, Institute of Art and Law 2006) p. 100 or P.J. O’Keefe 2002, op. cit. 365, p. 103 et seq., for details.

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entry into its territory and the trafficking of illicitly exported, recovered or excavated underwater cultural heritage. Such measures should be supported by the adoption of sanctions on a national level. It should be pointed out that the contained provisions have to be seen as complementary and in the context of other UNESCO or UNIDROIT Conventions dealing with this issue, namely the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995. An important question heavily discussed in the drafting process and solved by the 2001 Convention by establishing a graduated system of international cooperation concerned the issues of jurisdiction and means of cooperation between States Parties. From the beginning of the drafting process it was clear that international cooperation is the best way of assuring the comprehensive regime of protection of underwater cultural heritage. For this purpose, however, conflicts among the negotiating nations with regard to the best approach balancing national jurisdiction of coastal states and the interest of naval powers had to be resolved. Coastal states supported an extension of state jurisdiction which was also suggested by the ILA Draft in the form of a ‘Cultural Heritage Zone.’405 Maritime Powers, on the other hand, feared that an extension of jurisdiction could interfere with their own interests and called the plans ‘creeping jurisdiction.’406 In the end, comprehensive state cooperation was given the preference over an extension of national jurisdiction of coastal states beyond the already existing jurisdiction. The system introduced by the 2001 Convention differentiates between already well-known maritime zones as set forth in the 1982 Convention, but adopts a regime with the prime focus on protecting and preventing underwater cultural heritage.407 By doing this it basically classifies the zones in two groups: the first group with more or less exclusive rights of the coastal state

405

Article 1 (3) ILA Draft: ‘Cultural Heritage Zone means an area beyond the territorial sea of the State up to the outer limits of its continental shelf as defined in accordance with relevant rules and principles of international law;’ Article 5 (1) ILA Draft: ‘A State Party to this Convention may establish a cultural heritage zone and notify other State Party of its action. Within this zone, the State Party shall have jurisdiction over activities affecting the underwater cultural heritage;’ see also G. Carducci, ‘New Developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage’, 96 American Journal of International Law (2002) p. 419 at p. 428. 406 Forrest 2002 ‘New International Regime’, loc. cit. n. 361, at p. 542. 407 For the relationship of the 2001 Convention and the 1982 Convention see K. Lee, ‘An Inquiry into the Compatibility of the UNESCO Convention 2001 With UNCLOS 1982’, in L.V. Prott, ed., Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention on the Protection of the Underwater Cultural Heritage (Leicester, Institute of Art and Law 2006) p. 20 et seq. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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comprising internal waters, archipelagic waters, the territorial sea408 and—if implemented by the coastal state409—the contiguous zone410 and a second group consisting of the (remaining) economic exclusive zone,411 the continental shelf and the Area with the newly established complex regime of international cooperation between the States Parties, a system which Scovazzi felicitously calls an ‘exclusion of a ‘First Come, First Served’ Approach for the Heritage Found.’412 Especially the provisions regarding the contiguous zone are clearly an advancement in the right direction compared to the vague language of Article 303 (2) of the 1982 Convention.413 Whereas the latter was addressed merely at the removal of underwater cultural heritage, the coastal state now at large has the right to regulate and authorize activities directed at underwater cultural heritage, thus not only preventing its removal but also providing for comprehensive protection. In addition, while Article 303 (2) of the 1982 Convention did not give instructions of how to prevent unauthorized removal, the new regime with its obligation to follow the rules of the 2001 Annex might lead to a uniformed approach among the States Parties. With respect to the first group, coastal states generally speaking have the exclusive right to regulate activities directed at underwater cultural heritage localized in waters of the first group.414 However, in exercising their rights they are bound by the principles of the protective and preventive regime set forth in the 2001 Convention and ‘should inform the flag State Party to this Convention and, if applicable, other States with a verifiable link, especially

408

As outlined in the 1982 Convention the territorial sea comprises in principle a belt of coastal waters extending up to 12 nautical miles from the baseline of a coastal state. It is regarded as the sovereign territory of the state, though foreign ships are usually allowed to pass through it. 409 Carducci 2002, loc. cit. n. 405, at p. 428; see also Article 8 2001 Convention. 410 The contiguous zone usually extends from the outer edge of the territorial sea to up to 24 nautical miles from the baseline, a zone in which pursuant to Article 33 1982 Convention ‘prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea and punish infringement of the above laws and regulations committed within its territory or territorial sea.’ 411 Generally, the economic exclusive zone extends from the coast to up to 200 nautical miles. 412 Scovazzi 2002, loc. cit. n. 361, at p. 154. 413 See supra I.6.1. 414 Article 7 (1) 2001 Convention: ‘States Parties, in the exercise of their sovereignty, have the exclusive right to regulate and authorize activities directed at underwater cultural heritage in their internal waters, archipelagic waters and territorial sea.’ Article 8 2001 Convention: ‘Without prejudice to and in addition to Articles 9 and 10, and in accordance with Article 303, paragraph 2, of the United Nations Convention on the Law of the Sea, States Parties may regulate and authorize activities directed at underwater cultural heritage within their contiguous zone. In so doing, they shall require that the Rules be applied.’ Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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a cultural, historical or archaeological link, with respect to the discovery of such identifiable State vessels and aircraft’.415 In contrast to this, the jurisdictional structure concerning maritime zones beyond the contiguous zone relies on a unique system of reporting and consulting on the one hand and taking urgent and necessary steps without undergoing a consultation process focused on the protection of underwater cultural heritage on the other hand.416 In principle and as outlined before, each State Party has the obligation to prohibit its nationals and vessels from engaging in activities contradicting the 2001 Convention and harming Underwater Cultural Heritage. In cases in which its nationals and vessels discover or intend to engage in activities directed at underwater cultural heritage the respective State Party has to require them to report to it and—if located in the exclusive economic zone or on the continental shelf of another State Party—also to inform the concerned coastal state417 or require them to report to it and ‘ensure the rapid and effective transmission of such report to all other States Parties.’418 In a second step, usually a consultation process regarding the protection of the respective underwater cultural heritage has to be undertaken by the States Parties outlined in Articles 10 (3)419 and 12 (2)420 of the 2001 Convention. A Coordinating State as described in the same provisions has to ensure that the measures of protection which have been

415 Article 7 (3) 2001 Convention; see P.J. O’Keefe 2002, op. cit. 365, p. 76 et seq. for details. 416 Note that the procedures applicable for the exclusive economic zone and the continental shelf on the one hand and the Area on the other hand are not identical, but to a great extent similar. For the reason of better understanding and simplification, this report does not distinguish between the two regimes in this respect. For further information refer to e.g. Carducci 2002, loc. cit. n. 405, at p. 428 et seq. or P.J. O’Keefe 2002, op. cit. 365, p. 80 et seq. 417 Article 9 (1) (b) (i) 2001 Convention: ‘in the exclusive economic zone or on the continental shelf of another State Party: States Parties shall require the national or the master of the vessel to report such discovery or activity to them and to that other State Party.’ 418 Article 9 (1) (b) (ii) 2001 Convention: ‘alternatively, a State Party shall require the national or master of the vessel to report such discovery or activity to it and shall ensure the rapid and effective transmission of such reports to all other States Parties;’ in addition, pursuant Article 9 (4) and (5) 2001 Convention, the respective State Party shall also inform the Director-General of UNESCO, who shall promptly inform all States Parties. 419 Article 10 (3) 2001 Convention: ‘Where there is a discovery of underwater cultural heritage or it is intended that activity shall be directed at underwater cultural heritage in a State Party’s exclusive economic zone or on its continental shelf, that State Party shall: (a) consult all other States Parties which have declared an interest under Article 9, paragraph 5, on how best to protect the underwater cultural heritage; (b) coordinate such consultations as ‘Coordinating State’, unless it expressly declares that it does not wish to do so, in which case the States Parties which have declared an interest under Article 9, paragraph 5, shall appoint a Coordinating State.’ 420 Article 12 (2) 2001 Convention: ‘The Director-General shall invite all States Parties which have declared an interest under Article 11, paragraph 4, to consult on how best to protect the underwater cultural heritage, and to appoint a State Party to coordinate such consultations as the ‘Coordinating State’. The Director-General shall also invite the International Seabed Authority to participate in such consultations.’

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agreed to by the consulting States will be implemented with the competence of preliminary research on the underwater cultural heritage. The consultation process is subject to limitation in the case of urgent protection. The reporting and protective systems in relation to objects found in the Area resemble the regime introduced for the exclusive economic zone and the continental shelf with, as Carducci states, ‘the main difference . . . that the role played by the coastal state in the context of the EEZ [note: the exclusive economic zone] and the continental shelf is generally entrusted to the UNESCO DirectorGeneral for the notification and reporting regime and to an appointed state for the protective regime with respect to the Area’.421 As coordination and negotiation among States Parties usually take some time, a mechanism had to be found to react in cases of immediate threat to underwater cultural heritage. Thus, for the sake of effective protection the Coordinating State or—if located in the Area—all States Parties is/are allowed to take all necessary means to prevent the object under risk respecting the principles of the 2001 Convention.422 Supplementing the regime of international cooperation the 2001 Convention also encourages States Parties to conclude bilateral or multilateral agreements in order to ‘ensure better protection of underwater cultural heritage than those adopted in this [note the 2001] Convention.’423 It is obvious that the 2001 Convention could not fully address the interests of every single state. By installing this provision States Parties, especially when it comes to regional protection, may be encouraged to install further measures in order to protect underwater cultural heritage appropriately. The decisive factor for the functioning of the 2001 Convention is obviously the question of its international acceptance. Underwater Cultural Heritage can only be protected effectively if the ‘main players’ are willing to make concessions and accept the compromise of the 2001 Convention. Major maritime powers, however, have already shown their reluctance to do

421

Carducci 2002, loc. cit. n. 405, at p. 431. Article 10 (4) 2001 Convention: ‘Without prejudice to the duty of all States Parties to protect underwater cultural heritage by way of all practicable measures taken in accordance with international law to prevent immediate danger to the underwater cultural heritage, including looting, the Coordinating State may take all practicable measures, and/or issue any necessary authorizations in conformity with this Convention and, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting. In taking such measures assistance may be requested from other States Parties.’ Article 12 (3) 2001 Convention: ‘All States Parties may take all practicable measures in conformity with this Convention, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activity or any other cause including looting.’ 423 Article 6 (1) 2001 Convention. 422

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so.424 The 2001 Convention entered into force in January 2009. It will soon be put through a test stage. One has to see whether the results will influence the position taken by the opponents to the convention in a protective-friendly way or, how Nafziger puts it: ‘It . . . remains to be seen if and when compromise and domestic legal adjustments will triumph over lingering skepticism by some government toward the UNESCO Convention 2001.’425 7. Convention for the Safeguarding of Intangible Cultural Heritage (2003)426 7.1. Brief Overview and the Drafting Process of the 2003 Convention: What about Intangibles? UNESCO’s standard-setting instruments and the 1995 UNIDROIT Convention have widened the scope of protection of cultural heritage, comprised of movable and immovable tangible heritage. Yet, they have left an important part for a holistic campaign more or less unregulated: the aspect of safeguarding intangible heritage.427 Its addition to the international protectoral regime, however, this has been an issue for more than three decades, with the first attempts to raise it to an international level in the early 1970s.428 Already during the drafting of the 1972 Convention inclusion of intangible cultural heritage into the scope of application was debated.429 Although discussions were not successful, the influence of intangible cultural heritage on the 1972 Convention as adopted, especially with regard to its application, cannot be denied. As can be seen in the development of the set of

424 See e.g. Dromgoole, loc. cit. n. 380, at p. 74 and p. 77/78 for the position of the UK; Scovazzi 2002, loc. cit. n. 361, at p. 156 for the position of the United States. 425 J.A.R. Nafziger, ‘Foreword’, in S. Dromgoole, ed., The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 2nd edn. (Leiden, Martinus Nijhoff Publishers 2006) p. ix at p. xii. 426 If used without any determination, the term convention refers to the Convention for the Safeguarding of Intangible Cultural Heritage in this chapter. 427 See e.g. F. Francioni, ‘The Protection of Intangible Cultural Heritage: A New Challenge for UNESCO and International Law’, in Japan-Italy Association of World Heritage Studies, ed., Symposium: The Transmission and Present State of Cultural Heritage (Kyoto, Japan-Italy Association of World Heritage Studies 2002) p. 68 et seq. for stressing the need of an international instrument on the protection of intangible cultural heritage. 428 N. Aikawa, ‘An Historical Overview of the Preparation of the UNESCO International Convention for the Safeguarding of the Intangible Cultural Heritage’, 56 Museum International (2004) p. 137 at p. 138.; see also M.F. Brown, ‘Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property’, 12 International Journal of Cultural Property (2005) p. 40 pointing out the shift from mere tangible subjects of interest to also include intangible aspects of cultural heritage. Also see Angélica Sola, ‘Quelques réflexion à propos de la Convention pour la sauvegarde du patrimoine culturel immatériel’, in Nafziger and Scovazzi, op. cit. n. 10, pp. 487–528. 429 Blake 2006, op. cit. n. 11, at p. 5.

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criteria used by the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage for incorporating cultural objects on the World Heritage List430 the idea of intangible heritage has heavily influenced the decision-making process of the World Heritage Committee, as the relationship between objects on the World Heritage List and intangible values associated to those properties has been deepened.431 In 1971 UNESCO drafted the first independent document related to the protection of intangible cultural heritage, a draft dealing with the question of protecting folklore by applying copyright on an international basis, an approach which was called ‘unrealistic’.432 A couple of years later WIPO joined UNESCO in a further similar attempt producing various research documents and guidelines, such as the Tunis Model Law on Copyright for Developing Countries433 in 1976 or the 1982 Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit and Other Prejudicial Actions.434 All these approaches can be described as very ambitious, maybe overambitious for that time435 as can be judged from the fact that none of the elaborated drafts was adopted. The first major step towards the new convention was the 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, as it was the first international attempt to introduce regulations concentrating on intangible cultural heritage from a cultural perspective leaving the intellectual property aspects approach aside.436 It encouraged international cooperation in the fields of intangible cultural heritage protection, but was criticized by the international community not only for its lack of binding power, but, as Blake points out, also for ‘the heavy emphasis on the needs of

430

See supra I.4.2. and I.4.3. For the current set of criteria see supra n. 233. 432 S. Sherkin, ‘A Historical Study on the Preparation of the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore’, in P. Seitel, ed., Safeguarding Traditional Cultures: A Global Assessment of the 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore (Washington, Smithsonian Center for Folklife and Cultural Heritage 2001) p. 42 at p. 45. 433 The text of the Tunis Model Law on Copyright for Developing Countries is available online at http://portal.unesco.org/culture/en/files/31318/11866635053tunis_model_law_enweb.pdf/tunis_model_law_en-web.pdf (last visited on December 31, 2008). 434 Aikawa 2004, loc. cit. n. 428, at p. 138.; see also W. Wendland, ‘Intangible Heritage and Intellectual Property: Challenges and Future Prospects’, 56 Museum International (2004) p. 97 for the cooperation work between UNESCO and WIPO and WIPO’s further work in this area. 435 For a detailed analysis of the early relationship between Intellectual Property Rights and Intangible Heritage and its influence on the further proceedings see e.g. J. Blake, Developing a New Standard-setting Instrument for the Safeguarding of Intangible Cultural Heritage, rev. ed. (Paris, UNESCO Publishing 2002) p. 13 et seq. 436 Aikawa 2004, loc. cit. n. 428, at p. 138. 431

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the scientific community,’437 the too narrow definition of its scope and the fact that the recommendation ‘fails to safeguard folklore through the social and economic empowerment of its creators.’438 In 1993 UNESCO launched a program that fostered the focus on the protection of intangible cultural heritage on the operational side. The Living Human Treasures Program was designed to safeguard intangible cultural heritage by acknowledging the individual bearers of traditional knowledge and skills, and encouraging them to pass on such knowledge and skills to younger generations by encouraging the creation of national systems of ‘living cultural properties’,439 motivated by the fact that this aspect of cultural heritage has not been targeted by international instruments so far. These tradition bearers were sentimentally labeled as ‘Living Human Treasures’ and defined under the guidelines at that time as ‘. . . persons who embody, who have in the very highest degree, the skills and techniques necessary for the production of selected aspects of the cultural life of a people and the continued existence of their material cultural heritage.’440 The Living Human Treasures Program slowly raised the awareness of the needs to regulate the intangible aspects of cultural heritage and to get control of the grave threats thereto. Member States were mandated to submit their national lists of living human treasures ‘for inclusion in a future UNESCO World List.’441 Selection of living human treasures took into account ‘the danger of extinction of the associated knowledge and skills due to disuse or lack of recognition.’442 The program effectively acknowledged that the existence of intangible cultural heritage depended on the ‘social and economic well-being of its holders and their way of life.’443 This approach marked a significant departure from valuing the material products of human creativity to valuing the artists or craftsmen themselves. In 1998 UNESCO adopted a program entitled Masterpieces of the Oral and Intangible Heritage of Humanity (hereafter the ‘Masterpieces Program’),

437 J. Blake ‘Safeguarding Traditional Culture and Folklore—Existing International Law and Future Developments’, in P. Seitel, ed., Safeguarding Traditional Cultures: A Global Assessment of the 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore (Washington, Smithsonian Center for Folklife and Cultural Heritage 2001) p. 149 at p. 151 with further details. 438 Blake 2001, loc. cit. n. 437, at p. 151. 439 Blake 2001, loc. cit. n. 437, at p. 151. Also see Burra Srinvas, ‘The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage’, Nafziger and Scovazzi, op. cit. n. 10, pp. 529–558, at p. 532. 440 P. Kuruk, ‘Cultural Heritage, Traditional Knowledge and Indigenous Rights’, 1 Macquire Journal of International and Comparative Environmental Law (2004) p. 111 at p. 116 citing UNESCO, Operational Guidelines: Human Living Treasures, paragraph 9, undated publication. 441 Kuruk, loc. cit. n. 440, at p. 116. 442 Kuruk, loc. cit. n. 440, at p. 116. 443 Blake 2002, op. cit. 435, at p. 45.

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another program that encouraged governments, non-governmental organizations (NGOs) and local communities to identify, safeguard, revitalize and promote their oral intangible cultural heritage.444 Although not constructed as a binding international instrument, but rather being based on a voluntary concept, it was an important step forward, as it was highly accepted by more than 100 countries and already designed in a way that should ease the further works for creating a standard-setting instrument. By installing a list comprising two groups of intangible heritage: (1) forms of popular or traditional expressions and (2) cultural spaces with the meaning of ‘places in which popular and traditional activities are concentrated,’445 this program became the foundation of more global attention to the urgency of safeguarding living heritage. Its close relationship to the 1972 Convention is striking, as can be seen from the introduction of the ‘Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity—Guide for the presentation of candidature files.’446 It also introduced a set of criteria447 for the incorporation of 444 According to Paragraph 4 Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity—Guide for the presentation of candidature files (hereafter, Proclamation of Masterpieces Guide; available online at http://unesdoc.unesco.org/images/0012/001246/124628eo .pdf; last visited on December 31, 2008) the main purposes were: (a) to sensitize and mobilize opinion in favour of the recognition of the value of oral and intangible heritage and of the need to safeguard and revitalize it; (b) to evaluate and list the oral and intangible heritage sites in the world; (c) to encourage countries to establish national inventories of the oral and intangible heritage and to take legal and administrative measures to protect it; (d) to promote the participation of traditional artists and local practitioners in the identification and renewal of the intangible heritage. 445 Paragraph 1 (c) Annex I Proclamation of Masterpieces Guide; see also F. Lenzerini, ‘Intangible Cultural Heritage in Danger: A Part of the Human Memory that Is Disappearing’, in Japan-Italy Association of World Heritage Studies, ed., Symposium : The Transmission and Present State of Cultural Heritage (Kyoto, Japan-Italy Association of World Heritage Studies 2002) p. 75. 446 Paragraph 1 Proclamation of Masterpieces Guide: ‘The 1972 Convention on World Cultural and Natural Heritage identified monuments, sites and landscapes of outstanding value for the whole of humanity by inscribing them in the World Heritage List. However, that Convention is not applicable to intangible cultural heritage.’ Paragraph 2 Proclamation of Masterpieces Guide: ‘The oral and intangible heritage has become internationally recognized as a vital factor for cultural identity, the promotion of creativity and the preservation of cultural diversity. It plays a crucial role in national and international development, in tolerance and harmonious interaction between cultures. With present-day globalization, numerous forms of cultural heritage are in danger of disappearing, threatened by cultural standardization, armed conflicts, tourism, industrialization, the rural exodus, migrations and the degradation of the environment.’ Paragraph 3 Proclamation of Masterpieces Guide: ‘In order to respond to the emergency of the disappearance of the intangible cultural heritage, the General Conference, at its 29th session in November 1997, adopted resolution 23 which created this distinction.’ 447 Prospective objects have to ‘(i) possess outstanding value as a Masterpiece of the human creative genius, (ii) are rooted in the cultural tradition or cultural history of the community concerned, (iii) play a role as a means of affirming the cultural identity of the community concerned, (iv) are distinguished by excellence in the application of skills and technical qualities displayed, (v) constitute a unique testimony of a living cultural tradition, and (vi) are threatened with disappearance due to insufficient means for safeguarding or to processes of

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prospective objects, stipulating as a main requirement outstanding value with the meaning of ‘demonstrating either a high concentration of outstanding intangible cultural heritage or a popular and traditional cultural expression with outstanding value from a historical, artistic, ethnological, sociological, anthropological, linguistic or literary point of view.’448 Blake states that this set of criteria will be ‘a useful basis for the development of criteria for listing under the new international Convention [note: the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage].’ However, one should keep clearly in mind that the approach of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage towards inscription of intangible cultural heritage differs from the approach chosen by the Masterpieces Program. Having outstanding universal value will not be a prerequisite for inscription under the auspices of the 2003 Convention.449 During its time of operation the Masterpieces Program led to the inscription of in total 90 masterpieces from 2001 to 2005. As shown later,450 these objects are also influential for the implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage whose coming into force also led to the end of the Masterpieces Program.451 In 1999, based on the latest developments, the UNESCO General Conference in its 30th session furthered the pursuit of a new standard-setting instrument regulating intangible cultural heritage protection on an international level by initiating preliminary studies on the development of an according instrument. Studies were carried out by a group of legal experts in Turin in 2001, shaping the perspectives of the drafting process which was officially initiated later in 2001 during the 31st session of the UNESCO General Conference452 and the follow-up 2002 Istanbul Declaration.453 Out of three possible options, drafting a convention based on the successful model of the 1972 Convention was given preference over two other approaches: one inspired by intellectual property rules and the other one a sui generis model with an outline based on general cultural heritage rules. The intellectual property approach was dropped as it was said to be ‘too limited in its

rapid change’—see UNESCO Doc. CLT/CH/ITH/PROC/BR3 ‘Masterpieces of the Oral and Intangible Heritage of Humanity’ p. 4 and Paragraph 22 Proclamation of Masterpieces Guide; for a discussion of the conceptual development of this set of criteria see N. Aikawa, ‘Conceptual Development of UNESCO’s Programme on ICH’, in J. Blake, ed., Safeguarding Intangible Cultural Heritage: Challenges and Approaches (Crickadarn, Institute of Art and Law and contributors 2007) p. 43 at p. 59. 448 Paragraph 21 Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity—Guide for the presentation of candidature files. 449 For details see infra I.7.3. 450 Infra I.7.2. 451 Infra I.7.2. 452 Aikawa 2004, loc. cit. n. 428, at p. 143. 453 Blake 2006, op. cit. n. 11, at p. 12. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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aims and generally inappropriate to this [note: intangible cultural] heritage.’454 In addition, any interference with the work of WIPO as well as cooperation with WIPO were avoided, as it was intended to let UNESCO work more or less independently. The other dropped option did not gain much attention to avoid unnecessary and time-consuming research work for a totally new structure—the model of the 1972 Convention worked too well. However, it was clear that it needed some adaptation in order to make it applicable for the field of intangible cultural heritage protection.455 It was the task of three Intergovernmental Meetings of Experts in late 2002 and early 2003 and a meeting of a subgroup to put the research results of the Turin roundtable, the outcome of a further study group consisting mainly of anthropologists and earlier attempts into one draft and at the same time elaborate and define delicate areas such as the scope of application or the working mechanism of the planned convention.456 The final draft presented to UNESCO’s General Conference was based on the following important characteristics: as outlined below,457 the term intangible cultural heritage was given an inclusive, but still applicable meaning; the important role of the States Parties in relation to the protection of intangible cultural heritage was stressed as well as the principle of international cooperation; a listing system was also incorporated as well as a comprehensive means of financial assistance and a institutional framework. The final version was adopted by the General Conference on October 17, 2003 as the Convention for the Safeguarding of the Intangible Cultural Heritage (hereafter the ‘2003 Convention’) which entered into force on April 20, 2006. Currently (as of December 31, 2008) the 2003 Convention has 107 States Parties.458 7.2. Scope of Application of the 2003 Convention: Safeguarding, Not Just Protecting Article 1 of the 2003 Convention describes in brief the main focuses of the convention as it says: The purposes of this Convention are: (a) to safeguard the intangible cultural heritage; (b) to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned;

454

Blake 2006, op. cit. n. 11, at p. 13. J. Blake, ‘Introduction’, in J. Blake, ed., Safeguarding Intangible Cultural Heritage: Challenges and Approaches (Crickadarn, Institute of Art and Law and contributors 2007) p. 1 at p. 4. 456 For a detailed analysis refer to Blake 2006, op. cit. n. 11, p. 15 et seq. 457 See infra I.7.2. and I.7.3. 458 A full list of States Parties is available online at http://portal.unesco.org/la/convention.a sp?language=E&KO=17116&order=alpha (last visited on December 31, 2008). 455

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toshiyuki kono and stefan wrbka (c) to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; (d) to provide for international cooperation and assistance.

Bedjaoui sums those four layers up to felicitously state that ‘the main objective of the [note: 2003] Convention was to prevent humankind’s intangible heritage from disappearing,’459 especially in times of globalization which ‘could only undermine cultural diversity in all its forms.’460 One can point out two characteristics: firstly, the 2003 Convention clearly refrains from using the term protecting in combination with intangible cultural heritage; secondly, the term intangible cultural heritage forms the cornerstone of the objective scope of application and thus has to be defined. With regard to the first point, the 2003 Convention gives up on using the term protecting commonly used in other conventions concerning cultural heritage so far, as it was said that safeguarding goes beyond mere protection and was also used in the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore.461 According to Blake safeguarding ‘suggests a broader approach than ‘protection’, whereby not only is intangible cultural heritage protected from direct threats to it but positive actions that contribute to its continuance are also taken.’462 Indeed, the 2003 Convention gives it a more comprehensive range than the literal meaning of protection could allow for. As defined in Article 2 (3) of the 2003 Convention, the term also refers to all necessary means of ‘identification, documentation, research, preservation, . . . promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such [note intangible cultural] heritage’ and should not have an exhaustive meaning, but rather ensure the viability of the intangible cultural heritage.’463 The other and much more difficult question in the drafting process was related to the terminology used for the subject matter. In the end the single term intangible cultural heritage was chosen, a term which obviously goes beyond the scope of other possible terms, such as folklore used in the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore. The latter was heavily criticized for its narrow application, for not taking

459 M. Bedjaoui, ‘The Convention for the Safeguarding of the Intangible Cultural Heritage: the Legal Framework and Universally Recognized Principles’, 56 Museum International (2004) p. 150 at p. 153. 460 Bedjaoui, loc. cit. n. 459, at p. 153. 461 The text of this recommendation is available online at http://portal.unesco.org/en/ ev.php-URL_ID=13141&URL_DO=DO_PRINTPAGE&URL_SECTION=201.html (last visited on December 31, 2008). 462 Blake 2006, op. cit. n. 11, at p. 23. 463 Article 2 (3) 2003 Convention.

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into account ‘the social, cultural and intellectual context of the creation and maintenance of folklore’464 and for its ‘limited reference . . . to traditional knowledge and indigenous cultural heritage.’465 The drafters of the 2003 Convention were convinced that it would be better to use and further develop the term intangible cultural heritage successfully used for 1998 Masterpieces Program, as it already put the emphasis on a comprehensive part of cultural heritage. Prott also notes that the terminology used in the 2003 Convention reflects a change in the attitude towards the nature of cultural heritage in the late 1980s, as it puts a clear normative, but modern, sign to the subject matter of the Convention.466 The 2003 Convention itself provides for a definition of the term intangible cultural heritage stating that: The ‘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 recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.467

As this definition shows, intangible cultural heritage refers to a great number of various forms and methods of cultural identity. It is also linked to its origin, mostly local, but not bound to the territory of a single State Party as it assigns the respective object ‘to communities, groups and, in some cases, individuals,’ thus giving them a central role in the process of safeguarding intangible cultural heritage. The Convention’s explanation describes the term further by pointing out its important place at the interface of the past, present and future, as expression of a diversity which has to be retained in order to guarantee the evolvement of the respective bearer being a dynamic process also described as preserving ‘living traditions that are constantly evolving in response to new circumstances.’468 Thus—in contrast to the protection of tangible heritage in its status quo—not a fixed status of intangible culture, but, according to Kurin, rather the intangible cultural heritage itself in the form of a ‘dynamic social process of creativity, of identity-making,

464

Blake 2006, op. cit. n. 11, at p. 32. Blake 2006, op. cit. n. 11, at p. 32. 466 L.V. Prott, ‘International Standards for Cultural Heritage’, in UNESCO World Cultural Report (Paris, UNESCO Publishing 1998) p. 222 at p. 224 et seq. 467 Article 2 (1) 2003 Convention. 468 Blake 2006, op. cit. n. 11, at p. 35. 465

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of taking and respecting the historically received and remaking it as one’s own’469 is to be safeguarded. Francioni goes in a similar direction by stating that intangible cultural heritage covers a ‘variety of manifestations of a living culture’470 which have to be distinguished from ‘material products—movable or immovable—that have been the object of international protection in the past.’471 At the same time, the 2003 Convention clarifies that its scope is limited. Its borders are set to conform and be compatible with human rights instruments and to avoid any infringement of international standards of human rights.472 It is also limited by the need to balance mutual interrelationships between communities, groups and individuals as well as by the requirements of sustainable development, defined by the 1987 Our Common Future Report of the World Commission on Environment and Development (usually referred to as Brundtland Report) as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concept; the concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organizations on the environment’s ability to meet present and the future needs.’473 Article 2 (2) of the 2003 Convention refers to intangible cultural heritage more closely by giving examples of its most important domains comprised of the following: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;474 (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.

469 R. Kurin, ‘Safeguarding Intangible Cultural Heritage: Key Factors in Implementing the 2003 Convention’, 2 International Journal of Intangible Heritage (2007) p. 10 at p. 13. 470 Francioni 2004, loc. cit. n. 138, at p. 1222. 471 Francioni 2004, loc. cit. n. 138, at p. 1222. 472 For a detailed analysis of the relationship between the 2003 Convention and human rights see T. Kono and J. Cornett, ‘An Analysis of the 2003 Convention and the Requirement of Compatibility with Human Rights’, in J. Blake, ed., Safeguarding Intangible Cultural Heritage: Challenges and Approaches (Crickadarn, Institute of Art and Law and contributors 2007) pp. 143–174. 473 World Commission on Environment and Development, Our Common Future (New York 1987); for an analysis of the 2003 Convention in relation to sustainable development see T. Kono, ‘UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development’, in A.A. Yusuf, ed., Standard-Setting in UNESCO Vol.1 (Paris, UNESCO Publishing and Martinus Nijhoff Publishers 2007) p. 237. at p. 251 et seq. 474 For an analysis of this term and its meaning see e.g. R. Smeets, ‘Language as a Vehicle of the Intangible Cultural Heritage’, 56 Museum International (2004) p. 156.

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This provision supplements the definition clause of Article 2 (1) of the 2003 Convention as it clarifies the practical fields of application, characterizing and categorizing the term intangible cultural heritage more closely. In combination with Article 2 (1) of the 2003 Convention it goes far beyond the possible scope of mere IP related protection as it emphasizes the cultural aspect of intangible manifestations as well as the objective personal scope by including not only individuals, a group with a fixed number of members or a legal entity [note: depending on the respective IP area the addressees of IP rights], but also—and primarily—communities and groups as such. This is an important step forward as intangible cultural heritage is usually not the ‘unique creation of an individual.’475 At the same time, Article 3 of the 2003 Convention clarifies that the status or level of protection provided for by the 1972 Convention should not be diminished, nor should the 2003 Convention infringe or interfere with the States Parties’ rights and obligations deriving from other instruments in the fields of intellectual property or the use of biological and ecological resources. 7.3. Legal Framework and Mechanism of the 2003 Convention: Adopting and Adapting the 1972 Model As pointed out before, the 2003 Convention was built on the model of the successful and highly accepted 1972 Convention. This becomes obvious when it comes to the framework and operational mechanism of the 2003 Convention. The model was, however, adapted to fit the needs of safeguarding intangible cultural heritage.476 Addressees of the 2003 Convention are its States Parties. The primary task of the respective State Party is to guarantee ‘the safeguarding of the intangible cultural heritage present in its territory.’477 Safeguarding intangible cultural heritage on a national level shall be understood as a comprehensive 475 B. Kirshenblatt-Gimblett, ‘Intangible Heritage as Metacultural Production’, 56 Museum International (2004) p. 52 at p. 53.; see also E.K. Slattery, ‘Preserving the United States’ Intangible Cultural Heritage: An Evaluation of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage as a Means to Overcome the Problems Posed by Intellectual Property Law’, 16 DePaul University Journal of Art and Entertainment Law (2006) p. 201 at p. 231 who stresses that ‘the (note: IP laws’) requirements of individual authorship, originality, and fixation pose potential problems to members of cultures seeking to preserve their intangible cultural heritage’; see also W. Wendland, ‘Intellectual Property Implications of Inventory Making’, in J. Blake, ed., Safeguarding Intangible Cultural Heritage: Challenges and Approaches (Crickadarn, Institute of Art and Law and contributors 2007) p. 129 et seq. who nevertheless stresses that safeguarding programmes have also to take IP issues into account in order to work effectively. 476 In this respect it should also be noted that the implementation process has just started roughly two years ago when the convention entered into force. The heart of this process, the operational guidelines, is still in drafting and not adopted yet. 477 Article 11 (a) 2003 Convention.

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project, not limited to safeguarding measures related to heritage inscribed on the Representative List of Intangible Cultural Heritage of Humanity, and should be carried out in close cooperation with local communities, groups and individuals as bearers of such heritage.478 To facilitate the safeguarding work, States Parties are asked to install and update national inventories of the intangible cultural heritage present in their territories,479 an idea also supported by the general ‘shall endeavor’ obligation of Article 15 of the 2003 Convention stipulating that the States Parties ‘[w]ithin the framework of its safeguarding activities of the intangible cultural heritage . . . shall endeavor to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management’. The mechanism of collaboration is further defined in the Operational Directives adopted at the 2nd ordinary session of the General Assembly in June 2008.480 The function of the national inventories differs from the ‘tentative lists’ of the regime of the 1972 Convention,481 as inscription on the latter one is a pre-

478

Article 11 (b) 2003 Convention. Article 12 (1) 2003 Convention. 480 See ‘3.1 Participation of communities, groups and, where applicable, individuals, as well as experts, centres of expertise and research institutes’ of the Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (June 2008) available online at http://www.unesco.org/culture/ich/index.php?pg=00026 (last visited on December 31, 2008). For, as its basis, the recommendation on the issue of involvement of communities and their representatives, practitioners, experts, centres of expertise and research institutes in the implementation of the 2003 Convention refer to the report UNESCO Doc. H/08/2.EXT.COM/CONF.201/6 elaborated by a subordinate body to the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, the Subsidiary Body on Possible Modalities for the Participation of Communities and Others (available online at http://www.unesco.org/culture/ich/doc/src/00289–EN-WORD.doc; last visited on December 31, 2008); during a meeting in March 2007, the UNESCO-ACCU Expert Meeting on Community Involvement in Safeguarding Intangible Cultural Heritage, the experts group also dealt with defining the terms communities, groups and individuals under the regime of the 2003 Convention. It came to the following definitions: Communities are networks of people whose sense of identity or connectedness emerges from a shared historical relationship that is rooted in the practice and transmission of, or engagement with, their ICH; Groups comprise people within or across communities who share characteristics such as skills, experience and special knowledge, and thus perform specific roles in the present and future practice, re-creation and/or transmission of their intangible cultural heritage as, for example, cultural custodians, practitioners or apprentices. Individuals are those within or across communities who have distinct skills, knowledge, experience or other characteristics, and thus perform specific roles in the present and future practice, re-creation and/or transmission of their intangible cultural heritage as, for example, cultural custodians, practitioners and, where appropriate, apprentices;’ see UNESCO and ACCU, Expert Meeting on Community Involvement in Safeguarding Intangible Cultural Heritage: Towards the Implementation of the 2003 Convention (UNESCO doc. CLT/CH/ITH/DOCEM0306 REV.1; online publication at http://unesdoc.unesco.org/images/0014/001459/145919e.pdf; last visited on December 31, 2008) at p. 9. 481 See supra I.4.3. 479

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requisite for the incorporation on the international list, whereas the inventories under the regime of the 2003 Convention regime are rather aimed at identifying intangible cultural heritage in a State Party’s territory regardless of whether or not it is intended to promote the respective object to an international level. The 2003 Convention also establishes two new bodies, the General Assembly of States Parties (hereafter the ‘ICH General Assembly’) as the ‘sovereign body of the convention’482 and the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (hereafter the ‘ICH Committee’) as the core institution equipped with various competences and mandated with various tasks such as the promotion and guiding functions for the implementation of the Convention, decisive power with regard to the inscription on the two lists introduced by the Convention and the allocation of international financial aid.483 The ICH Committee, like its counterpart under the regime of the 1972 Convention, the World Heritage Committee, can be assisted by non-governmental organizations.484 The 2003 Convention, however, does not recommend certain advisory bodies itself, but leaves the decision to the ICH Committee. The NGOs accredited by the ICH Committee in accordance with the Operational Directives shall have advisory functions.485 The 2003 Convention also installed two lists of intangible cultural heritage, a system taken from the 1972 Convention, but altered to some extent. With the aim of raising the awareness of the significance of intangible cultural

482

Article 4 (1) 2003 Convention. Article 7 2003 Convention: Without prejudice to other prerogatives granted to it by this Convention, the functions of the Committee shall be to: (a) promote the objectives of the Convention, and to encourage and monitor the implementation thereof; (b) provide guidance on best practices and make recommendations on measures for the safeguarding of the intangible cultural heritage; (c) prepare and submit to the General Assembly for approval a draft plan for the use of the resources of the Fund, in accordance with Article 25; (d) seek means of increasing its resources, and to take the necessary measures to this end, in accordance with Article 25; (e) prepare and submit to the General Assembly for approval operational directives for the implementation of this Convention; (f ) examine, in accordance with Article 29, the reports submitted by States Parties, and to summarize them for the General Assembly; (g) examine requests submitted by States Parties, and to decide thereon, in accordance with objective selection criteria to be established by the Committee and approved by the General Assembly for: (i) inscription on the lists and proposals mentioned under Articles 16, 17 and 18; (ii) the granting of international assistance in accordance with Article 22. 484 See supra I.4.3 for details. 485 See 93 of the Operational Directive, available online at http://www.unesco.org/culture/ ich/index.php?pg=00026 (last visited on December 31, 2008) 483

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heritage, the ICH Committee creates, updates and maintains a list of representative pieces of intangible cultural heritage, the Representative List of the Intangible Cultural Heritage of Humanity (hereafter the ‘Representative ICH List’). Potential candidates to the Representative ICH List are nominated by the ‘States Parties concerned’,486 which can also apply in cases of trans-border intangible cultural heritage and could possibly also be interpreted in a way which allows for the proposals of a single State Party in trans-border cases. In contrast to the 1972 Convention inscription on a tentative list prior to the proposal for inscription on the Representative ICH List is not required. A remarkable difference to the 1972 Convention is also the fact that the 2003 Convention does not use the term outstanding, but instead puts the emphasis on the character of representation. This term, however, needs clarification as it was feared that it could cause some misunderstanding and lead to some unwanted hierarchy within the group of intangible cultural heritage and thus would replace the term outstanding value of the 1972 Convention which means ‘exceptional’487 or to some extent being of higher value than the others. This concept was also used by the 1998 Masterpieces Program as the first of its six criteria for selecting masterpieces referred to as ‘outstanding value as a masterpiece of the human creative genius.’488 The drafters of the 2003 Convention, however, wanted to avoid a ranking system489 and instead intended to show the richness of cultural diversity and the importance and significance of intangible cultural heritage for its bearers—the communities, groups or individuals—an idea which is also reflected by the draft criteria for the inscription of intangible cultural heritage on the Representative ICH List.490 Thus, representative should be rather understood as illustrating a wide range of creativity of humankind. One of the five criteria for the inscription in the Representative ICH List in the Operational Directive (R2) states ‘Inscription of the element will contribute to ensuring visibility and awareness of the significance of the intangible heritage and to encouraging dialogue, thus reflecting cultural diversity worldwide and testifying to human creativity.’491 Another important question was the question of whether the inscription on the Representative ICH List should be subject to a time limit or not,492 but the inscription subject to time limit was not adopted in the Operational Directive. 486

Article 16 (1) 2003 Convention. Supra I.4.2. 488 See supra n. 447. 489 Blake 2006, op. cit. n. 11, p. 80 et seq. 490 UNESCO Doc. H/07/1.EXT.COM/CONF.207/6 (available online at http://www.unesco. org/culture/ich/doc/src/00134–EN-DOC.doc; last visited on December 31, 2008). 491 See 19 of the Operational Directives, available online at http://www.unesco.org/culture/ ich/index.php?pg=00026 (last visited on December 31, 2008). 492 See R. Smeets, ‘Living Heritage: To Be Listed Forever?’, in J. Blake, ed., Safeguarding Intangible Cultural Heritage: Challenges and Approaches (Crickadarn, Institute of Art 487

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The second list, the List of Intangible Cultural Heritage in Need of Urgent Safeguarding (hereafter the ‘Endangered ICH List’) is also to be established and maintained by the ICH Committee. The 2003 Convention does not explicitly stipulate that inscription on the Representative ICH List is a prerequisite for inscription on the Endangered ICH List, thus providing for faster reaction by the ICH Committee, which—with the exception of ‘extreme urgency’493—inscribes objects ‘at the request of the State Party concerned.’494 The Operational Directives make it clear that the same ICH may not be inscribed in the Representative ICH List and the Endangered ICH List at the same time.495 Inscription on the Endangered ICH List should foster the awareness of the need for safeguarding, thus facilitating national measures as well as international cooperation and providing for financial aid. In order to support the implementation process and functioning of the 2003 Convention the Fund for the Safeguarding of the Intangible Cultural Heritage (hereafter the ‘ICH Fund’), an international fund with various sources ranging from obligatory national contributions to voluntary payments,496 was introduced. Once defined by the ICH Committee and approved by the ICH General Assembly, the main tasks of the ICH Fund will primarily comprise financial assistance for the creation of national inventories and support of safeguarding projects on national and international levels based on a priority system taking the special needs of urgent safeguarding into account. Closely related to the funding mechanism is the feature of international cooperation and safeguarding of intangible cultural heritage (international assistance). In addition to allocating financial aid on an international basis, international assistance497 also includes infrastructural and capacity-building instruments giving support to States Parties with limited practical and technical knowledge. The 2003 Convention also had to clarify its relationship to the 1998 Masterpieces Program.498 This was done by the transitional clause contained in

and Law and contributors 2007) p. 137.; for the latest discussion within the ICH Committee see UNESCO Docs. ITH/07/1.EXT.COM/CONF.207/5 (available online at http://www. unesco.org/culture/ich/doc/src/00133–EN-DOC.doc; last visited on December 31, 2008) and ITH/07/2.COM/CONF.208/6 Rev (available online at http://www.unesco.org/culture/ich/doc/ src/00225–EN-WORD-Rev.doc; last visited on December 31, 2008). 493 Article 17 (3) 2003 Convention; a set of criteria for determining whether or not such a case exists will be elaborated by the ICH Committee and needs approval of the General Assembly. 494 Article 17 (1) 2003 Convention; pursuant to Article 17 (3) 2003 Convention, in cases of extreme emergency the inscription should be done ‘in consultation with the State Party concerned’; see also Blake 2006, op. cit. n. 11, p. 83 et seq. for further explanation. 495 See 14 and 30 of the Operational Guidelines, available online at http://www.unesco.org/ culture/ich/index.php?pg=00026 (last visited on December 31, 2008). 496 Article 25 (3) 2003 Convention. 497 See Articles 19 to 24 2003 Convention for details. 498 See supra I.7.1. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Article 31 of the 2003 Convention which stipulates that the ICH Committee ‘shall incorporate in the Representative List of the Intangible Cultural Heritage of Humanity the items proclaimed ‘Masterpieces of the Oral and Intangible Heritage of Humanity’ (hereafter the ‘masterpieces’) before the entry into force of this Convention’, making the Masterpieces Program a ‘purveyor’499 to the 2003 Convention.500 It also clarifies that no further proclamation under the regime of the Masterpieces Program will be made after the entry into force of the 2003 Convention501 and that the incorporation of the masterpieces on the Representative ICH List shall in no way be a prejudgment for further inscriptions on the Representative ICH List.502 This is an important provision as the set of criteria for the incorporation decision will not be the same as under the regime of the Masterpieces Program due to the fact that the characterization of having an outstanding value will be avoided under the new regime. 8. Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)503 8.1. Background of the 2005 Convention:504 Cultural Diversity and the Threat of Globalization UNESCO’s mandate on the cultural sector includes a large variety of different aspects. As has been shown so far, UNESCO has dealt with the protection and/or safeguarding of cultural heritage in various forms, beginning with movable and immovable tangible objects in the early stages and from there progressing to intangible forms of cultural heritage as shown in the 2003 Convention. The latter one also illustrates the awareness of the importance of safeguarding cultural diversity in times of globalization and unification,505 an 499 D. Munjeri, ‘Tangible and Intangible Heritage: From Difference to Convergence’, 56 Museum International (2004) p. 12 at p. 18. 500 For how to implement this transfer, see 1.3: Incorporation of items proclaimed “Masterpieces of the Oral and Intangible Heritage of Humanity” in the Representative List, in the Operational Directives, available online at http://www.unesco.org/culture/ich/index. php?pg=00026 (last visited on December 31, 2008). 501 Article 31 (3) 2003 Convention. 502 Article 31 (2) 2003 Convention. 503 If used without any determination, the term convention refers to the Convention on the Protection and Promotion of the Diversity of Cultural Expressions in this chapter. 504 For the history since the beginning of the 20th century, see T. Kono, ‘The UNESCO Convention for the Protection and Promotion of the Diversity of Cultural Expressions”, in K. Alexander and M. Andenas, The World Trade Organization and Trade in Services (Leiden, Martinus Nijhoff Publishers, 2008), pp. 845–902. 505 E.g. Preamble (2) 2003 Convention: ‘Considering the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development, . . .’; Preamble (6) 2003 Convention: ‘Recognizing that communities, in particular indigenous communities, groups and, in some cases, individuals, play an important role in

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idea which dates back to the early beginnings of UNESCO’s work. Already UNESCO’s Constitution of 1946 alludes to the richness and worth of culture as its Article 1 (3) refers to the ‘fruitful diversity of culture’,506 constituting a central issue in UNESCO’s work. As UNESCO’s initiated 1994 in-depth analysis of the development of the cultural diversity concept507 shows, the developing process can be divided into four stages. In the beginning during the 1950s and early 1960s, during the period of decolonization, it was primarily considered as reflecting ‘artistic production and external practices (rather) than (being understood) as deeply internalized and identity-creating ways of thinking, feeling, perceiving, and being in the world.’508 Once decolonized the cultural pluralism of the nations was seen as a sign of ‘justification of their independence and their international existence.’509 Cultural pluralism then became a synonym for combining and explaining the interdependence of culture and ‘development generated arguments for financial and administrative support to developing countries’510 by attaching the notion of culture to ‘the idea of endogenous development.’511 The fourth period is marked by the interaction of culture, democracy and tolerance in a broader and holistic perspective, taking various international, intra-national, regional and local forms of culture into account. The first result of this process was the foundation of the World Commission on Culture and Development in 1991 with the main task of ‘preparing a world report on culture and development and proposals for both urgent and long-term action to meet cultural needs in the context of development.’512 The outcome of the research was the elaboration of the

the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity’ or Article 2 (1) 2003 Convention: ‘This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity’. 506 Article 1 (3) UNESCO Constitution: ‘With a view to preserving the independence, integrity and fruitful diversity of the cultures and educational systems of the States Members of the Organization, the Organization is prohibited from intervening in matters which are essentially within their domestic jurisdiction.’ 507 K. Stenou, UNESCO and the Issue of Cultural Diversity—Review and Strategy, 1946— 2007, revised edition (Paris, UNESCO Publishing 2007; available online at http://portal.unesco. org/culture/en/ev.php-URL_ID=36955&URL_DO=DO_PRINTPAGE&URL_SECTION=201 .html; last visited on December 31, 2008). 508 Stenou, op. cit. 507, at p. 3. 509 Stenou, op. cit. 507, at p. 3. 510 Stenou, op. cit. 507, at p. 4. 511 Stenou, op. cit. 507, at p. 4. 512 Paragraph 2 (a) Resolution A/RES/46/158 adopted by the General Assembly of the United Nations (the text is available online at http://www.un.org/documents/ga/res/46/ a46r158.htm; last visited on December 31, 2008). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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report Our Creative Diversity513 in 1995, which is said to be a key factor in the creation of the new convention as it concentrated on two aspects closely related to the concept of cultural pluralism: cultural diversity as a foundation for the well-functioning of democratic societies and the threat globalization poses to the existence of cultural diversity.514 In 1998, based on and motivated by that report, UNESCO convoked the Intergovernmental Conference on Cultural Policies for Development, better known as Stockholm Conference, which aimed at transforming the ideas presented by the 1995 report into practice. The outcome of the Stockholm Conference was the Action Plan on Cultural Policies for Development515 addressed at UNESCO’s Member States516 as well as at UNESCO’s DirectorGeneral517 in order to promote the basic ideas of cultural diversity and to facilitate future programs in the area of cultural development. Three years later, in 2001, following various international statements,518 UNESCO’s Universal Declaration on Cultural Diversity519 and its Action Plan520 with provisions on the Declaration’s implementation set the next important benchmark. The Declaration stresses the interrelationship between cultural diversity and human rights and further discusses the impact of globalization on diversity and development, calling the preservation and promotion of cultural diversity the ‘key to sustainable human development.’521 It also links cultural diversity to the term heritage as its Article 1 states that ‘culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In 513

The text of Our Creative Diversity is available online at http://unesdoc.unesco.org/ images/0010/001016/101651e.pdf (last visited on December 31, 2008). 514 C.B. Graber, ‘The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO?’, 9 Journal of International Economic Law (2006) p. 553 at p. 557. 515 The text of the Action Plan on Cultural Policies for Development is available online at http://unesdoc.unesco.org/images/0011/001130/113036e.pdf (last visited on December 31, 2008); see also N. Obuljen, ‘From Our Creative Diversity to the Convention on Cultural Diversity: Introduction to the Debate’, in N. Obuljen and J. Smiers, eds., UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Croatia, Institute for International Relations 2006). 516 Chapter I Action Plan on Cultural Policies for Development. 517 Chapter II Action Plan on Cultural Policies for Development. 518 E.g. several UNESCO initiated experts’ compositions in 1999 and 2000, UN’s General Assembly Resolution 54/160 in 2000 or the Council of Europe’s Declaration on Cultural Diversity in 2000—for details see Obuljen, loc. cit. n. 515, p. 26 et seq. 519 The text of UNESCO’s Universal Declaration on Cultural Diversity is available online at http://unesdoc.unesco.org/images/0012/001271/127160m.pdf (last visited on December 31, 2008). 520 The text of this Action Plan is available online at http://www.sdnpbd.org/sdi/international_days/literacy/2005/document/leg_t_gats_unesco_decl_cultural_diversity_021101_ tcm6–4303.pdf (last visited on December 31, 2008). 521 Article 11 Universal Declaration on Cultural Diversity. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations.’ According to Matsuura the declaration aimed primarily at ‘preserving cultural diversity as a living, and thus renewable treasure that must not be perceived as being unchanging heritage but as a process guaranteeing the survival of humanity and preventing segregation and fundamentalism.’522 Together with its Action Plan the Universal Declaration on Cultural Diversity supported the idea of creating a legally binding international instrument on cultural diversity as it is expressed by Article 1 of the Action Plan523 to achieve these goals. Parallel to these international developments several national and regional movements524 also deepened the discussions in this area pushing the international community to take appropriate steps to protect cultural diversity extensively on the international level by means of a standard-setting instrument. Smith points out four main objectives of the countries supporting the creation of a new convention525: (1) promoting and protecting cultural diversity as an ‘overarching objective’; (2) identifying measures to reach that goal; (3) ensuring ‘as far as possible that international trade rules do not prevent such intervention’ [note: safeguarding cultural diversity]; and (4) this all be accomplished ‘through a process of international cooperation, to assist developing countries, as well as smaller cultural and linguistic regions, to preserve and fully exploit their cultural heritage.’ These national and international initiatives resulted in the adoption of Resolution 32C/34 of UNESCO’s General Assembly in 2003526 mandating the Director-General with the elaboration of a preliminary draft convention on the protection of cultural diversity. The Director-General in return invited a group of independent experts to elaborate a suitable instrument. Discussions concentrated on the scope of the draft convention stating that the

522 K. Matsuura, Introduction to the Universal Declaration on Cultural Diversity (available online at http://unesdoc.unesco.org/images/0012/001271/127160m.pdf; last visited on December 31, 2008) at p. 11. 523 Article 1 Action Plan: ‘Deepening the international debate on questions relating to cultural diversity, particularly in respect of its links with development and its impact on policymaking, at both national and international level; taking forward notably consideration of the opportunity of an international legal instrument on cultural diversity.’ 524 Obuljen summarizes fruitful elaborations of numerous bodies including the International Network on Cultural Policy, the International Network for Cultural Diversity, the Valencia Forum on Globalisation and Cultural Diversity and the World Social Forum—see Obuljen, loc. cit. n. 515, p. 26 et seq.; see also K. Acheson and C. Maule, ‘Convention on Cultural Diversity’, 28 Journal of Cultural Economics (2004) p. 243 et seq. for information on the works of the International Network on Cultural Policy and the International Network for Cultural Diversity. 525 R.C. Smith, ‘The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Building a New World Information and Communication Order?’, 1 International Journal of Communication (2007) p. 24 at p. 27. 526 The text of UNESCO’s Resolution 32C/34 is available online at http://unesdoc.unesco. org/images/0013/001321/132141e.pdf (last visited on December 31, 2008).

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new instrument should not only protect, but also promote cultural diversity and thus should not only take a passive but also an active role. The debate also related to the possible obligations and supportive mechanisms and to a large extent to the relationship between the future instrument and other international legally binding instruments, primarily trade related treaties, as the ‘dual nature of cultural goods and services’527 was pointed out, including both economic and cultural values. The experts group’s draft, the [note: first] Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions,528 was presented by the Director-General in 2004 and after consultations with the WTO, WIPO and UNCTAD the drafting process reached its final stages at three intergovernmental meetings in late 2004 and 2005. The outcome of these meetings, the revised draft of the experts group, the [note: second] Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions,529 was adopted by UNESCO’s General Conference on October 20, 2005 as the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.530 The convention entered into force on March 17, 2008 and currently has (as of December 31, 2008) 94 Parties.531 8.2. Scope of Application and the Terms Cultural Diversity and Cultural Expressions: Building the Third Pillar The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (hereafter the ‘2005 Convention’) is the first ever legally binding international instrument ‘recognizing the pursuit of the diversity of cultural expressions as a legitimate goal of governmental policy.’532 Accord527 Obuljen, loc. cit. n. 515, p. 30 et seq.; for an analysis of the dual nature of cultural activities, goods and services see O. G. Hansen, ‘Co-operation for Development: Building Cultural Capacity’, in N. Obuljen and J. Smiers, eds., UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Croatia, Institute for International Relations 2006) p. 111 at p. 116 et seq. 528 The text of this first Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions is available online at http://unesdoc.unesco.org/ images/0013/001356/135649e.pdf (last visited on December 31, 2008). 529 The text of this second Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions is available online at http://unesdoc.unesco.org/ images/0014/001416/141610e.pdf (last visited on December 31, 2008). 530 The text is available online at http://portal.unesco.org/en/ev.php-URL_ID=31038&URL_ DO=DO_TOPIC&URL_SECTION=201.html (last visited on December 31, 2008). 531 The term Parties is used by the authors instead of States Parties as pursuant to Article 27 2005 Convention, the convention is not limited to the accession of states; a list of Parties is available online at http://portal.unesco.org/la/convention.asp?KO=31038&language=E&or der=alpha (last visited on December 31, 2008). In addition to 94 States Parties the European Community joined as a regional economic integration organization according to Article 27 (3) (a) 2005 Convention. 532 Graber, loc. cit. n. 514, at p. 559.

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ing to UNESCO it forms the third pillar of preserving and promoting creative diversity, the other two being the 1972 Convention533 concentrating on the (mainly tangible) world cultural and natural heritage and the 2003 Convention534 focusing on intangible cultural heritage. In doing so it creates an eco-cultural framework that aims to ‘strengthen the five inseparable links of the same chain: creation, production, distribution/dissemination, access and enjoyment of cultural expressions, as conveyed by cultural activities, goods and services.’535 With regard to the 2003 Convention, Lenzerini states that the 2005 Convention complemented it, as ‘the richness and worth of living-culture is particularly appreciable through understanding the value of diversity as a tool of mutual enrichment among peoples.’536 Obuljen sums the purposes of the 2005 Convention up by stating that it is ‘concerned equally with the need to promote diversity within nations, to act collectively to protect forms of cultural expression that are threatened with extinction and to develop creative capacity and cultural industries in the developing world, as well as the need to find ways to encourage balanced exchanges between cultures and to preserve and promote their own artists, cultural industries and cultural expressions.’537 The 2005 Convention itself describes as its scope of application the ‘policies and measures538 adopted by the Parties related to the protection and promotion of the diversity of cultural expressions.’539 It also provides for definitions of the terms cultural diversity and cultural expressions, playing an imminent role in the scope of application of the Convention. The first one in the understanding of the 2005 Convention refers to the ‘manifold ways in which the cultures of groups and societies find expression . . . passed on within and among groups and societies and made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used,’540 whereas cultural expressions under the regime of the 2005 Convention are 533

See supra I.4. See supra I.7. 535 UNESCO at http://portal.unesco.org/culture/en/ev.php-URL_ID=11281&URL_DO= DO_TOPIC&URL_SECTION=201.html (last visited December 31, 2008). 536 Lenzerini forthcoming [2009], loc. cit. n. 219. 537 Obuljen, loc. cit. n. 515, at p. 23. 538 Pursuant to Article 4 (6) 2005 Convention ‘Cultural policies and measures’ refers to those policies and measures relating to culture, whether at the local, national, regional or international level that are either focused on culture as such or are designed to have a direct effect on cultural expressions of individuals, groups or societies, including on the creation, production, dissemination, distribution of and access to cultural activities, goods and services.’ 539 Article 3 2005 Convention. 540 Article 4 (1) 2005 Convention. 534

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‘expressions that result from the creativity of individuals, groups and societies, and that have cultural content.’541 According to Neil the definitions set forth by the 2005 Convention ‘draw an effective perimeter around the [note: 2005] Convention and confirm that it is dealing with a portion of the intellectual output of a society.’542 The before-mentioned scope of application is also reflected by the objectives set forth by Article 1 of the 2005 Convention543 which makes clear that the main aim of the Convention is protecting and promoting the diversity and richness of cultural expressions embodied especially in cultural activities, goods and services, a predominant term found throughout the Convention,544 on a national and international level in times of globalization and unification. It also clarifies that the 2005 Convention is not aimed at dealing with cultural diversity as a whole through a holistic approach, but rather it focuses on cultural expressions as a means of cultural language and identity dis-

541 Article 4 (3) 2005 Convention; Article 4 (2) describes the term cultural content as referring to ‘symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities.’ 542 G. Neil, ‘The Convention as a Response to the Cultural Challenges of Economic Globalisation’, in N. Obuljen and J. Smiers, eds., UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Croatia, Institute for International Relations 2006) p. 41 at p. 54. 543 Article 1 2005 Convention: (a) to protect and promote the diversity of cultural expressions; (b) to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner; (c) to encourage dialogue among cultures with a view to ensuring wider and balanced cultural exchanges in the world in favour of intercultural respect and a culture of peace; (d) to foster interculturality in order to develop cultural interaction in the spirit of building bridges among peoples; (e) to promote respect for the diversity of cultural expressions and raise awareness of its value at the local, national and international levels; (f ) to reaffirm the importance of the link between culture and development for all countries, particularly for developing countries, and to support actions undertaken nationally and internationally to secure recognition of the true value of this link; (g) to give recognition to the distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning; (h) to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory; (i) to strengthen international cooperation and solidarity in a spirit of partnership with a view, in particular, to enhancing the capacities of developing countries in order to protect and promote the diversity of cultural expressions. 544 See Preamble (18) and Articles 1 (g), 6 (2) (b), 6 (2) (c), 6 (2) (e), 14 (a) (ii), 14 (a) (iv), 15 and 16 2005 Convention; Article 4 (4) 2005 Convention defines this term as ‘those activities, goods and services, which at the time they are considered as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have. Cultural activities may be an end in themselves, or they may contribute to the production of cultural goods and services’.

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seminated by the said forms, namely through cultural activities, goods and services. The 2005 Convention also makes clear that the protection and promotion of the diversity of cultural expressions has to follow certain rules and limitations, basic principles which are more closely described by Article 2.545 One important aspect of the Convention is that the sovereignty of States Parties in relation to the adoption of cultural policies and measures is stressed and reaffirmed, a sovereignty which nevertheless should be exercised in accordance with the purposes and goals set forth by the 2005 Convention and ‘in conformity with the Charter of the United Nations, the principles of international law and universally recognized human rights instruments.’546 Fabri

545

Article 2 2005 Convention: 1. Principle of respect for human rights and fundamental freedoms: Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof. 2. Principle of sovereignty: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory. 3. Principle of equal dignity of and respect for all cultures: The protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples. 4. Principle of international solidarity and cooperation: International cooperation and solidarity should be aimed at enabling countries, especially developing countries, to create and strengthen their means of cultural expression, including their cultural industries, whether nascent or established, at the local, national and international levels. 5. Principle of the complementarity of economic and cultural aspects of development: Since culture is one of the mainsprings of development, the cultural aspects of development are as important as its economic aspects, which individuals and peoples have the fundamental right to participate in and enjoy. 6. Principle of sustainable development: Cultural diversity is a rich asset for individuals and societies. The protection, promotion and maintenance of cultural diversity are an essential requirement for sustainable development for the benefit of present and future generations. 7. Principle of equitable access: Equitable access to a rich and diversified range of cultural expressions from all over the world and access of cultures to the means of expressions and dissemination constitute important elements for enhancing cultural diversity and encouraging mutual understanding. 8. Principle of openness and balance: When States adopt measures to support the diversity of cultural expressions, they should seek to promote, in an appropriate manner, openness to other cultures of the world and to ensure that these measures are geared to the objectives pursued under the present Convention. 546 Article 5 (1) 2005 Convention; see also R.J. Neuwirth, ‘United in Divergency: A Commentary on the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions’, 66 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law (2006) p. 819 at p. 839. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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comments on this relationship between basic party sovereignty and the regulatory framework of the 2005 Convention by stating that ‘the [note: 2005] Convention seeks to control the exercise of the sovereign right of States to take the measures that they consider necessary to protect and promote the diversity of cultural expressions, so as to ensure that the corresponding policies are consistent with the objective of diversity as conceived in the text.’547 Although, as will be shown later, the 2005 Convention provides for a kind of operational guidance, it does not intend to unify or prescribe certain regulations which have to be transformed into national law. It rather focuses on the goal itself leaving the question of how to reach it to the States Parties’ discretion and best efforts. The sovereignty of States Parties forms one pillar of the 2005 Convention, but it does not stand alone. It is joined by an international aspect, the principle of international cooperation and solidarity aimed at the awareness-raising for the need of an environment in which the diversity of expression can flourish, develop and pertain. 8.3. Legal Framework and Mechanism of the 2005 Convention: How to Handle the Dual Nature of Cultural Goods and Services As mentioned earlier,548 the 2005 Convention is considered to be the third pillar of the preservation and promotion of creative diversity. Like the other two pillars, the 1972 and 2003 Conventions, it introduces an institutional mechanism, establishes a funding system and asks for international cooperation. Taking a closer look at the 2005 Convention though, it becomes obvious that the set-up differs from the other two conventions due to the different approach taken by the 2005 Convention. It aims specifically and directly at the issue of ‘diversity of cultural expressions disseminated and made accessible largely through cultural activities, goods and services.’549 In this area it takes a holistic approach, not trying to raise the international awareness of the necessity to protect and promote the diversity of cultural expressions by creating representative lists of single examples, but by providing for an extensive catalogue of rights and obligations of Parties550 and emphasizing the sovereignty of Parties in the implementation process.

547 H.R. Fabri, ‘Reflections on Possible Future Legal Implications of the Convention’, in N. Obuljen and J. Smiers, eds., UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Croatia, Institute for International Relations 2006) p. 73 at p. 79. 548 See supra I.8.2. 549 UNESCO, 30 Frequently Asked Questions Concerning the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (online publication; available online at http://unesdoc.unesco.org/images/0014/001495/149502E.pdf; last visited on December 31, 2008) p. 4. 550 Chapter IV 2005 Convention.

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Taking the ICH General Assembly of the 2003 Convention551 as a model the 2005 Convention introduces the Conference of Parties as the supreme body of the Convention. In addition to electing the members of the central body of the 2005 Convention, the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, and approving the operational guidelines elaborated by the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, it mainly functions as the supreme decision making body with the power to ‘take whatever measure it may consider necessary to further the objectives of the [note: 2005] Convention.’552 At the heart of the institutional framework of the 2005 Convention stands the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions (hereafter the ‘Diversity Committee’) with important functions in relation to the promotion of the objectives of the Convention, encouraging and monitoring its implementation.553 For this purpose, not only the future Operational Guidelines for the Implementation and Application of the Provisions of the Convention,554 but also the competence of commenting on the periodic reports on national implementation submitted by the Parties555 will play a decisive role. This becomes obvious when one takes into account that—although the Parties’ Sovereignty in adopting necessary measures and policies to protect and promote the diversity of cultural expressions within their territories is stressed—the rights and obligations set forth by the 2005 Convention are not to be implemented in any manner the respective Party pleases.556 The implementation of rights and obligations has to be done in accordance with the principles and goals of the convention.557 The Diversity Committee will support and control this process. The 2005 Convention also provides for financial aid for its implementation and protecting and promoting measures by establishing the International Fund for Cultural Diversity (hereafter the ‘Cultural Diversity Fund’).

551

See supra I.7.3. Article 22 (4) (d) 2005 Convention. 553 Article 23 (6) (a) 2005 Convention. 554 Article 23 (6) (b) 2005 Convention. The Intergovernmental Committee has not completed its drafting of the Operational Guidelines. See http://portal.unesco.org/culture/en/ ev.php-URL_ID=38216&URL_DO=DO_TOPIC&URL_SECTION=201.html#8 (last visited on December 31, 2008). 555 Article 9 (a) 2005 Convention. 556 See Article 5 (2) 2005 Convention: ‘When a Party implements policies and takes measures to protect and promote the diversity of cultural expressions within its territory, its policies and measures shall be consistent with the provisions of this Convention.’ 557 For the relationship between Parties’ Sovereignty and the role of the Intergovernmental Committee see e.g. I. Bernier and H.R. Fabri, ‘Implementing the Convention’, in N. Obuljen and J. Smiers, eds., UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Croatia, Institute for International Relations 2006) p. 161 at p. 166 et seq. 552

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Unlike the funds under the regimes of the 1972 and 2003 Conventions the Cultural Diversity Fund will only receive contribution on a voluntary basis; Parties to the 2005 Convention are not obliged to feed the fund.558 The use of its resources will be determined by the Diversity Committee.559 Chapter IV of the 2005 Convention contains a catalogue of rights and obligations of the Parties comprising 15 articles based on the ideas of States Parties’ sovereignty and international cooperation united under the roof of the common goal of protecting and promoting the diversity of cultural expressions. The rights to be found in Article 6 of the 2005 Convention560 refer to various measures which may be taken by the Parties in order to accomplish their obligations under the regime of the 2005 Convention. In this respect the catalogue of Article 6 contains recommendations rather than pure rights, giving advice on which measures might be suitable for national adoption. Directly addressed at protection and promotion, but packed into a very ‘soft’ wording, the 2005 Convention prescribes a large number of obligations. A striking aspect is the use of the term shall endeavor in many core provisions561 diluting the commitments to be made by the Parties. Nevertheless, the requirements can work as a rough guideline for the implementation

558 559 560

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Article 18 (3) 2005 Convention. Article 18 (4) 2005 Convention. Article 6 2005 Convention: 1. Within the framework of its cultural policies and measures as defined in Article 4.6 and taking into account its own particular circumstances and needs, each Party may adopt measures aimed at protecting and promoting the diversity of cultural expressions within its territory. 2. Such measures may include the following: (a) regulatory measures aimed at protecting and promoting diversity of cultural expressions; (b) measures that, in an appropriate manner, provide opportunities for domestic cultural activities, goods and services among all those available within the national territory for the creation, production, dissemination, distribution and enjoyment of such domestic cultural activities, goods and services, including provisions relating to the language used for such activities, goods and services; (c) measures aimed at providing domestic independent cultural industries and activities in the informal sector effective access to the means of production, dissemination and distribution of cultural activities, goods and services; (d) measures aimed at providing public financial assistance; (e) measures aimed at encouraging non-profit organizations, as well as public and private institutions and artists and other cultural professionals, to develop and promote the free exchange and circulation of ideas, cultural expressions and cultural activities, goods and services, and to stimulate both the creative and entrepreneurial spirit in their activities; (f ) measures aimed at establishing and supporting public institutions, as appropriate; (g) measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions; (h) measures aimed at enhancing diversity of the media, including through public service broadcasting. Articles 7 (1), 7 (2), 10 (c), 12, 13 and 14 2005 Convention. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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process putting its emphasis on the importance of preserving the pluralism of cultural expressions as it is a vital characteristic of humankind. The most heavily discussed issue in the drafting process was the question of how this convention deals with rights and obligations deriving from other international legal instruments in cases of interaction. Dealing with the dual nature of cultural goods and services posed a big challenge, due to the fact that under the 2005 Convention cultural and economic aspects had to be recognized.562 The 2005 Convention tries to find a compromise, neither providing for total subordination under other international legal instruments nor for exclusive treatment under the new instrument. It introduces a quite innovative, but still heavily discussed and unclear approach563 based on—to use the wording of the Convention—‘mutual supportiveness, complementarity and non-subordination.’564 While the 2005 Convention should not lead to a modification or alteration of rights and obligations under other treaties,565 Article 20 states at the same time that the Convention is not subordinated to other instruments and—included for the first time in a convention566—that it

562 The interaction and relationship between the 2005 Convention and international trade law as well as between UNESCO and WTO in this area has been a very controversial question, issue of numerous articles. It is, however, not the purpose of this report to comment on past and still ongoing discussions concerning this public international law questions, as this report primarily deals with the question of how national legislation has implemented and reacted to ‘unification’ law in the area of cultural heritage, showing divergence and convergence in this field. For information on the discussions refer to e.g. J. Wouters and B. De Meester, Cultural Diversity and the WTO: David versus Goliath? (Institute for International Law at Katholieke Universiteit Leuven, Working Paper No. 114, 2007; online publication available online at and http://ghumweb2.ghum.kuleuven.ac.be/ggs/publications/workingpapers/WP%205%20–%20J. %20Wouters%20–%20B.%20De%20Meester%201007.pdf, last visited on December 31, 2008); J. Wouters and B. De Meester, UNESCO’s Convention on Cultural Diversity and WTO Law: Complementary or Contradictory? (Institute for International Law at Katholieke Universiteit Leuven, Working Paper No. 73, updated 2007; online publication available online at http:// www.law.kuleuven.ac.be/iir/nl/wp/WP/WP73ed2e.pdf, last visited on December 31, 2008); M. Hahn, ‘A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law’, 9 Journal of International Economic Law (2006) p. 515; A. Khachaturian, ‘The New Cultural Diversity Convention and Its Implications on the WTO International Trade Regime: A Critical Comparative Analysis’, 42 Texas International Law Journal (2006) p. 191; T. Voon, ‘UNESCO and WTO: A Clash of Cultures?’, 55 International and Comparative Law Quarterly (2006) p. 635; J. Pauwelyn, The UNESCO Convention on Cultural Diversity, and the WTO: Diversity in International Law-Making? (American Society of International Law, 2005; online publication available online at http://www.asil.org/insights/2005/11/insights051115.html; last visited on December 31, 2008). 563 For the discussion see e.g. Fabri, loc. cit. n. 547, p. 83 et seq.; Neuwirth, loc. cit. n. 546, p. 844 et seq. 564 See title of Article 20 2005 Convention. 565 Article 20 (2) 2005 Convention: ‘Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.’ 566 Neil, loc. cit. n. 542, at p. 57.

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should be used as an interpretive means when applying other international instruments.567 There is no provision in the 2005 Convention that denies its applicability to the cultural heritage. Thus the relationship between the 2005 Convention and other UNESCO instruments, which aim at protecting or safeguarding the cultural heritage, should be dealt with by Article 20. The partly drafted Draft Operational Guidelines do not clarify this issue yet. However Article 7, Principle 1.3 states that cultural ‘policies and measures developed by Parties to promote the diversity of cultural expressions should foster the full participation and engagement . . . particularly persons to minorities, indigenous peoples …’.568 This language may imply the applicability of the 2005 Convention to certain types of the cultural heritage. 9. Conclusion We traced so far the development of international instruments in the field of cultural heritage. This development can be analyzed from various viewpoints such as the notion of cultural property/heritage, the scope of each instrument, and the mechanism of each instrument, reflecting the different underlying philosophy of each instrument. Those instruments, which were enacted prior to the establishment of UNESCO, did not know the concept of cultural heritage yet. Instead the concept of cultural property was used in the context of property rights. As a natural outcome, cultural property includes both movable and immovable objects. Articles 34 to 35 of the Lieber Code (1863), which cover churches, hospitals, establishments of education, classical works of art, and precious instruments are a good example. Such a basic standpoint was maintained also in the 1954 Hague Convention (Art. 1: movable or immovable property of great importance to the cultural heritage of every people) and its two Protocols. However the instruments enacted after the 1954 Convention target only specific types of cultural heritage, i.e. movables (the 1970 Convention), immovable (the 1972 Convention), underwater heritage (the 2001 Convention) or intangible heritage (the 2003 Convention). This trend must be closely linked to the following circumstances.

567

Article 20 (1) 2005 Convention: Parties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties. Accordingly, without subordinating this Convention to any other treaty, (a) they shall foster mutual supportiveness between this Convention and the other treaties to which they are parties; and (b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention. 568 See http://unesdoc.unesco.org/images/0016/001611/161119e.pdf#page=3 (last visited on December 31, 2008). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The pre-UNESCO instruments were needed to protect cultural property during war time. In war time, all properties that have artistic, academic or humanitarian value should be qualified as cultural property and protected from destructive actions. It is impossible and inappropriate to make detailed categorization of those properties in war time. However when armed conflicts in large scale were settled, other types of events than war/armed conflicts were recognized as danger for cultural property. After the international economic order was reorganized, normalized economy and various developments projects emerged as threats against cultural property. To tackle these threats, international instruments needed to focus on certain types of economic activities, i.e. either commercial transactions (the 1970 Convention and the 1995 UNIDROIT Convention) or development projects (the 1972 Convention). Compared to the pre-UNESCO instruments, the 1954 Convention clearly states in Art. 1 “movable or immovable property of great importance to the cultural heritage of every people”. Hereby it is recognized and declared that cultural property is to be transmitted to next generations. Not only its humanitarian value, but also its significance as what embodies historic, cultural and/or ethnological identity of people/community are recognized. Also the background of the 1970 Convention shows us that cultural property is understood as something to be transmitted to next generations. Thus the loss of an artefact cannot simply be understood as the loss of economic value. It may be considered as the loss of identity. A difference between the 1954 Convention and the 1970 Convention is what Merryman described as cultural internationalism and nationalism. The 1970 Conventions target in principle the interests of member States. The heritage in the sense of the 1954 Convention is that of the international community, while the heritage in the 1970 Convention is that of each Member State. The 1972 Convention has a dual nature in this sense, since it applies “outstanding universal value” as the key-criterion, while the key players under this Convention are States. However, after the meaning of “universal” in the criterion for the inscription into the World Heritage List was relativized under the Global Strategy, the difference between the two Conventions became less clear than before. Also the 2001 Convention bears the nature of a peace-time law. Establishing the order of the sea became possible only after the wars in large scale were settled. The concept of underwater heritage represents the philosophy of cultural internationalism, as article 149 of the UNCLOS569 and article 2,

569 Article 149 states ‘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.’

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paragraph 3 of the 2001 Convention570 shows. The 2001 Convention however tries to strike a balance between cultural internationalism and nationalism. We should carefully observe the practice of this Convention to see if and how this philosophy would be modified by cultural nationalism. In contrast to the previous instruments, the 2003 Convention added a new aspect to the cultural heritage law. First, this Convention aims at safeguarding intangible cultural heritage in the context of cultural diversity. In other words, this Convention sets cultural diversity as a new objective of cultural internationalism. Second, this Convention focuses on human activities as cultural heritage and its transmissibility. Thus the key player under this Convention is not the State, but the community as the bearer of intangible cultural heritage. If the community’s interest is not well represented or the state’s interest is too much emphasized in its practice, it should be described as “biased cultural nationalism”. The cultural-internationalism-nationalismdichotomy, which Merryman proposed, may need theoretical modification under the regime of the 2003 and 2005 Conventions.

570 Article 2, paragraph 3 states ‘States Parties shall preserve underwater cultural heritage for the benefit of humanity in conformity with the provisions of this Convention.’

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PART II—NATIONAL LEGAL FRAMEWORKS

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toshiyuki kono and stefan wrbka 1. General Issues

This chapter shall serve as a bridge between Part I of this report on the international framework for the protection and preservation of cultural heritage and its national counterparts outlined in the following chapters of Part II. It will focus first on explaining the fundamental national legal structure(s) in the field of cultural heritage protection and preservation, followed by basic national ideas on cultural heritage and measures for its protection and preservation. 1.1. National Legal Frameworks Talking about national legal frameworks one has to distinguish basically between two sets: the countries’ constitutions as foundation and sub-constitutional571 legal tools as means of regulating the topic in detail. Hence, the following subchapters will explain the various concepts used by the legislators in the countries which have taken part in the underlying study to this report. Details about the respective legal mechanisms and concepts used by the national legislation can be found in the chapters discussing the material contents of the national legal frameworks.572 1.1.1. The National Fundament: The Constitutional Pillar—Diversity on the Constitutional level Basic cultural ideas can be found in the constitutions of most, but not all countries—as we can see, for example, in the United States or Japan, whose constitutions remain silent in this area573—, sometimes directly linked to the issue of protection and preservation of cultural heritage, sometimes indirectly by emphasizing the important role culture plays in the respective society. What most of those constitutional frameworks have in common is the fact that the detailed embodiment of the established principles is subject to—speaking in terms of legal hierarchy—weaker laws. A good example of an explicit mandate can be found in Article 46 of the Spanish Constitution which reads: ‘Public Authorities guarantee the conservation of and will promote the enrichment of the historic, cultural and artistic heritage of the people of Spain and the assets which it includes, whatever their legal status or ownership. The Criminal Legal System will sanction attacks on this

571

In the context of this report, the term sub-constitutional refers to law which according to Kelsen’s hierarchy of norms is “weaker” than constitutional law. Usually, it is based on the respective national constitutional framework, has to respect its provisions and thus must not violate them. 572 See infra II.2. et seq. 573 See United States report, section 1 and Japanese report, section 1.2.1. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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heritage.’574 This provision also expresses the idea of not only conserving the status quo of cultural heritage, but also of promoting the important role it plays in society. When it comes to the question of which role international legal tools can play in the context of protecting and preserving cultural heritage on a national level, it has to be noted that constitutions usually link international law to the national legal framework: Article 1 (2) of the Czech Constitution, for example, stresses compliance with obligations arising from international law, further described by Article 10 of the Czech Constitution in the way that ‘promulgated international treaties, whose ratification was approved by the Parliament, and are binding on the Czech Republic shall be part of the legal order; if an international treaty contravenes local law, the international treaty shall be applied.’575 Articles 93 and 94 of the Dutch Constitution, another instance of explaining the interrelation between national and international law, declare international treaties to become binding law once ‘published’576 and solve a possible conflict of international and (sub-constitutional ) national legal norms in favor of the former. Self-executing international treaties, or at least self-executing parts of such treaties, do not need to be converted into national law. This, of course, is only possible, if—as pointed out above in Part I577—the respective international agreement is precise enough to be directly applied by national courts or other state authorities and the signatory states intend to be bound by it. With the exception of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,578 an international private uniform law, the major conventions dealing with the protection and preservation of cultural heritage as discussed in Part I of this report cannot be categorized as generally self-executing treaties, as they basically ask the States Parties to implement the often vaguely formulated provisions into national law.579 They nevertheless set the direction which should be followed by the respective national legislation. Some constitutions stress the national character of cultural heritage. For example, according to the Croatian constitutional framework cultural heritage is a dominant factor in the legislation, as its layers are seen ‘as goods representing the national spiritual values which are entitled to special protection by the State’.580 Article 9 of the Italian Constitution sets the framework for the protection, preservation and promotion of cultural heritage also by

574

Spanish report, section 1.1. Czech report, section 1. 576 Dutch report, section 1. 577 See supra I.5.3. 578 See supra I.5.3. for further details. 579 See e.g. Raschèr 2000, op. cit. n. 337, at p. 70 for the 1970 Convention; see also supra I.5.3. for further details. 580 Croatian report, section 1. 575

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pointing out its national character, stating that ‘the Republic promotes the development of culture and scientific and technical research. It protects the landscape and the historical and artistic heritage of the Nation.’581 Lenzerini explains that the usage of the term nation implies that Italian cultural heritage has to be protected for ‘belonging primarily to the community (note: according to Lenzerini to be understood as the entire ‘community of national people’)’. Other constitutions strengthen the position of groups and communities more directly. For example, Section 35 (1) of the Canadian Constitution Act 1982582 stipulates that ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed’, while Section 35 (2) of the Canadian Constitution Act clarifies that the term aboriginal peoples of Canada includes Indian, Inuit and Métis groups. The most important aspect of this provision is that this should guarantee that ‘laws that have the effect of extinguishing the rights of aboriginals protected under the section’,583 including cultural rights, can no longer be enacted and should act as a means of balancing between the interests of aboriginal groups and states/provinces.584 Similar constitutional guarantees can be found in the Mexican constitutional framework which—based on the recognition of the ‘multi-cultural nature of Mexico’585—tries to protect ‘all those elements that constitute [the] culture and identity’586 of indigenous people. By doing this, the respective legislator is asked to respect and protect the interests of indigenous people when drafting laws which could interfere with them. Māori cultural heritage is protected as a constitutional principle under New Zealand law by Article II of the Treaty of Waitangi which guarantees Māori ‘the unqualified exercise of their chieftainship over their lands, villages and all their treasures’,587 a provision which, according to Myburgh, is considered to be part of ‘the founding document of New Zealand statehood’588 for Māori and Pakeha groups. The recently amended Taiwanese Constitution includes quite extensive provisions on the protection of indigenous communities’ culture stressing the importance of cultural pluralism and stipulating that ‘the State affirms cultural pluralism and shall actively preserve and foster the development of aboriginal languages and cultures. The State shall, in accordance with the will of the ethnic groups, safeguard the status and political participation of

581

Italian report, section 1. A full text version is online available online at http://laws.justice.gc.ca/en/const/index .html (last visited on December 31, 2008). 583 Canadian report, section 2.1.3. 584 Canadian report, section 2.1.3. 585 Mexican report, section 3.2.2. 586 Mexican report, note 13. 587 New Zealand report, section 1.3. 588 New Zealand report, section 1.3. 582

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the aborigines. The State shall also guarantee and provide assistance and encouragement for aboriginal . . . culture, . . . , measures for which shall be established by law.’589 This, as we will see later,590 led to the enactment of a progressive legal statute, strengthening the voice of the local communities. Although most European constitutions do not include provisions which are directly aimed at an extensive protection of cultural rights of indigenous groups and communities, the Preamble of the Swiss constitution emphasizes the importance of preserving the national cultural pluralism saying that ‘the Swiss people and cantons are conscious of their common achievements and determined to live their diversity in unity’.591 This principle is also reflected by the comparatively strong local activities in the safeguarding process of the local, mainly intangible cultural heritage, finding its own foundation in the constitutions of the respective cantons.592 Constitutional frameworks, however, not only address the protection of cultural heritage or the role of groups/communities, but also try to protect the status of private holders of cultural heritage rights. This is so even where constitutional frameworks are not directly aimed at protecting their interests. For example constitutional compensation guarantees in cases of expropriation593 play an important role in the context of cultural heritage, cultural property and its private ownership.594 Lacking a constitutional framework for the direct protection and preservation of cultural heritage, the Preamble of the French constitution chose an exclamatory approach asking for a guarantee to public cultural heritage access. Although it is said that this proclamation—due to the impossibility of filing individual claims—does not have any direct effect,595 it can be understood as a mandate addressed at the competent authorities to install a proper legal framework capable of protecting the French cultural heritage. The very recently amended Mexican Constitution assures all citizens access rights to culture and also to the service provided by the National State. The National State ‘is obliged to provide the means to render these rights effective and it is responsible for the promotion and development of cultural diversity in all its forms and with respect to creative freedom’.596

589

Taiwanese report, section 1. See infra II.3.2.1. 591 Swiss report, section 1. 592 For details see infra II.3.2.2. 593 E.g. Croatian report, section 2.1. with reference to Article 50 (1) Croatian Constitution; Danish report, section 2.1.1.1.4. with reference to Section 73 Danish Constitution; German report, section 3.1.2. with reference to Article 14 German Constitution. 594 See infra II.2.1.2. and II.2.2.2. 595 See French report, section 1.1. 596 See Mexican report, section 1.2. 590

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1.1.2. The National Legal Material Body or How to Bring Cultural Heritage Concepts to Life: Sub-Constitutional Law—Diversity on the Instrumental Level As explained in the preceding chapter national constitutions and international treaties can be seen as constituting the frameworks for the protection and preservation of cultural heritage. In order to work properly, those frameworks need material filling which is on a national basis provided by sub-constitutional law. In Part I of this report it was pointed out that the latest trends in the field of international cultural heritage protection go toward the safeguarding of the rich diversity of culture. The concept of diversity is, however, not only to be found in the material way of protecting, but also in relation to the question of how national laws formally approach the topic of cultural heritage protection, ranging from all-embracing legal concepts to patchwork style legislation based on a wide range of different laws. It could be referred to as diversity on the instrumental level. In the international legal context as described in detail in Part I of this report, methods for protecting cultural heritage are usually categorised according to at least one of the following four criteria, reflected and—with reference to the respective scope of application—gradually extended by international conventions: (a) the form in which the cultural heritage presents itself (tangible or intangible; movable or immovable); (b) the geo-political circumstances surrounding it (peace or wartime); (c) the place where it is located (on land or underwater); or (d) the status of its possession (legal or illegal). In this context an aspect worth taking a look at is the question of how national sub-constitutional legal concepts deal with these categories. Do they follow the said categorizations? Do they adopt an extensive integrative approach which unites the protection and safeguarding of tangible and intangible cultural heritage as well as movable and immovable cultural heritage or do they rather favour handling tangible and intangible cultural heritage as well as movable and immovable cultural heritage separately? Not only the national perception theories of the best suitable protective mechanism for the respective category of cultural heritage, but also the evolutionary history of cultural heritage law is reflected in the national legal systems. In the following, the legislative systems of the countries which took part in the underlying study in the area of cultural heritage protection will be grouped into four main categories. The classification will focus on the national legislative systems of cultural heritage protection and will reflect how the contributing countries basically deal with various forms of cultural heritage, be it tangible or intangible, movable or immovable. It will also discuss if—and if yes, to what extent—those cultural pillars are covered by single major national statutes. Thus, the question of comprehensiveness will be the main criterion used in the following subchapters, supplemented by Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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the constitutionally allocated legislative competences. Although one will see smooth transitions between the categories, one will also notice that due to different reasons, including the just mentioned distribution of legal competences, the understanding of cultural concepts and the development of cultural categories used in this report, national approaches are as diverse and complex as culture itself. 1.1.2.1. The Unified Approach in Sub-Constitutional Law If one understands the term integrative as combining the protection and preservation of tangible and pure intangible cultural heritage comprehensively in a single legal document, then only a very few legal frameworks included in the underlying study to this report can be classified as being integrative. Among them, the Japanese Law for the Protection of Cultural Properties597 (hereafter the ‘LPCP’) of 1950 is the oldest example of such a comprehensive national legislation still in use. Article 2 of the LPCP divides the protected material scope of application, ‘cultural properties’, into the following six groups: (1) tangible cultural property, comprising both major groups movables and immovables; (2) intangible cultural property; (3) folk cultural property; (4) monuments; (5) cultural landscapes; and (6) groups of traditional buildings.598 In comparison to the international tools outlined in Part I of this report, groups (1)—movable and immovable tangible cultural property—and (2)—intangible cultural property—of Article 2 of the LPCP cannot be understood as covering exactly the same items. The five groups contained in Article 2 of the LPCP should rather be understood as overlapping to some extent. This is the case because intangible cultural heritage in terms of the pertinent UNESCO conventions dealing with intangible cultural heritage also comprises group (3), whereas (parts) of groups (3), (4) and (5) also fall within the international notion of tangible cultural heritage. Heavily influenced by the Japanese legislation, Taiwan adopted its Cultural Heritage Preservation Act599 (hereafter the ‘TCHPA’) in 1982. Although not being recognized as a politically independent country by UNESCO and UNIDROIT and thus not being a state party to any of the conventions outlined in Part I of this report,600 Taiwan still tries to follow the latest trends in the area of cultural heritage law. Paragraph 3 of the TCHPA divides the

文化財保護法. See Japanese report, section 2.1. 599 ֮֏ᇷขঅ‫ژ‬ऄ, recently amended in 2005. 600 An up-to-date list of Member States of UNESCO is available online at http://erc.unesco .org/cp/MSList_alpha.asp?lg=E (last visited on December 31, 2008); a list of Member States of UNIDROIT is available online at http://www.unidroit.org/english/members/main.htm (last visited on December 31, 2008). 597 598

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protected cultural heritage into seven groups comprising intangibles and tangibles, movables and immovables and again there is an overlapping of categories: (1) historic sites, buildings and gathering habitations which were built for the human being’s demand of daily life with historic and cultural value; (2) archaeological sites; (3) cultural vistas which form the place and coherent environment of fairy tale, legend, event, historic happenings, gathering life or ceremony; (4) traditional arts; (5) folk customs and related cultural artifacts; (6) antiquities; and (7) natural vistas.601 In addition to the TCHPA, Taiwan is—from the mere legal perspective—also one of the most progressive countries with respect to the involvement of communities and groups, as—in addition to the TCHPA—Taiwan enacted the Protection Act of Traditional Intellectual Creation of Indigenous People602 (hereafter the ‘PATIC’) in 2007, a law which is believed will lead to major changes in the national protection of indigenous groups’ intangible cultural rights.603 The third example of a comprehensive integrative framework is set by Croatia, one of only two countries contributing to this study (with the other one being Spain) which has signed all seven major conventions (including the two protocols to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict) outlined in Part I of this report. The Croatian Cultural Heritage Act604 (hereafter the ‘CHA’) of 1999 replaced two older laws605 and introduced also the category of intangible cultural heritage to Croatian cultural heritage law.606 Gliha and Josipović state that the reason for including intangible cultural items into the scope of application can be found in the new awareness for culture in Croatia, as ‘cultural heritage was given a significant place in the Croatian general development and economic strategies. Also the cultural heritage role and position in the field of science, education, community’s civilisation level is very important as well as for national and native awareness of individuals and nations. In realising the stated strategies, also the role of intangibles as cultural heritage has been recognised, so they have been included in the protected cultural heritage under a separate category’.607 1.1.2.2. The Semi-Unified Approach in Sub-Constitutional Law New Zealand is among those countries which—despite not including the concept of intangible cultural heritage as an independent category in the pertinent

601

See Taiwanese report, section 1. ଺۰‫ا‬ගႚอཕᐝ໌‫܂‬অᥨයࠏ. 603 For details see infra II.3.2.1. 604 Zakon o zaštiti i očuvanju kulturnih dobara. 605 Protection of Cultural Monuments Act of 1965 and the Basic Act on the Protection of Cultural Monuments of 1971—see Croatian report, note 4. 606 See Croatian report, note 15. 607 Croatian report, note 15. 602

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laws on the protection and preservation of cultural heritage—recognizes and protects intangible cultural heritage to some materialized extent and thus finds its place between the integrative and non-integrative approaches. The main aim of the New Zealand Historic Places Act 1993 (hereafter the ‘HPA’) is to ‘promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand’.608 While—with regard to tangible cultural heritage—the HPA basically focuses on immovables and includes movables only to the extent that they are located on an ‘identifiable place or site’,609 Māori intangible cultural heritage plays an important role in the framework of the HPA. In addition to archaeological sites, historic places and historic areas the HPA also protects wāhi tapu (defined by Myburgh as ‘sites sacred to Māori’610) and wāhi tapu areas. The underlying rationale can be found in the intangible spiritual dimension associated with the respective site or area, as the HPA ‘also protects places where no visible feature or evidence is present but where a significant event or traditional activity took place.’611 Italy is an example of a country which combines the protection of movable and immovable tangible cultural heritage in a single law, the Code of Cultural Properties and Landscape612 (hereafter the ‘CCPL’). This statute was amended just recently in 2008 in reaction to the Italian ratification of the 2003 Convention and the 2005 Convention in 2007. Although—in contrast to e.g. the Croatian Cultural Heritage Act—the CCPL still does not regulate the protection and preservation of intangible cultural heritage extensively, it can also be considered to take a position in the middle of two opposing concepts, the total inclusion and the exclusion of intangible cultural heritage in the main text(s) of cultural heritage protection. The newly inserted Article 7 bis of the CCPL stresses that ‘the expressions of collective cultural identity contemplated by (note, according to Lenzerini: the 2003 and 2005 Conventions) are subjected to the provisions of the present code in the event that they are embodied into material manifestations and the premises and conditions for the applicability of Article 10 [of the CCPL] exist (note, according to Lenzerini: ‘i.e. that these expressions may be included within the concept of cultural properties’).613 In other words, intangible cultural heritage is not per se protected under the CCPL, but only to the extent that its traces are materialized into ‘a tangible expression of cultural heritage’.614

608

New Zealand report, section 1.3.1. with reference to Preamble (a) NZHPA. New Zealand report, section 2.2.1.; see also infra II.2.2.2. 610 New Zealand report, section 1.1. 611 New Zealand report, section 3.1.1. with examples of influential intangible cultural heritage. 612 Codice dei beni culturali e del paesaggio. 613 Italian report, section 2. 614 Italian report, section 2. 609

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1.1.2.3. The Semi-Diverse Approach in Sub-Constitutional Law Many countries having participated in this study do, however, still and for various reasons to be explained later in the context of intangible cultural heritage,615 take a non-integrative approach, providing only for measures on the protection and preservation of tangible cultural heritage or regulating tangible cultural heritage and intangible cultural heritage in separate laws. Within this big group of non-community oriented legal frameworks one can further distinguish between an array of totally scattered legal concepts those which subdivide tangible cultural heritage protection into legal statutes solely dealing with immovables and others only with movables on the one hand and mere tangible/intangible separations on the other hand. Nevertheless, it has to be said that no national legal framework dealing with cultural heritage stands alone in terms that it would not refer to general legal statutes. For example, when it comes to questions of ownership of cultural property and its transfer, one can see that there exist connections between general norms and special provisions for cultural properties. National examples of legal frameworks combining norms on immovable and movable cultural heritage in a single major law can be found e.g. in the Czech Republic, Spain, Mexico, Tunisia or France. The Czech Republic combines concepts of immovable and movable cultural heritage in the Law on the State Care of Cultural Heritage616 (hereafter the ‘LSCCH’), being the only national law dealing comprehensively with the protection of cultural heritage in the Czech Republic.617 Spain chooses a similar approach with its Law on the Historical Heritage of Spain618 (LHHS) concentrating on tangible cultural heritage. De Salas notes that Article 1 of the LHHS which deals with the material scope of application also includes objects of ethnographical interest.619 In combination with Article 47 (3) of the LHHS which reads: ‘It is considered that all knowledge and activities stemming from traditional techniques or models used by a specific community have ethnographical value and will enjoy the protection of the administration. When this knowledge or these activities are in danger of disappearing, the competent Administration will adopt the necessary measures for the research and scientific documentation of these assets’620 it could be argued that the LHHS also deals with the protection of intangible cultural heritage to some extent. However, according to de Salas, Article 47 (3) of the LHHS has so far never been of practical relevance which

615 616 617 618 619 620

See infra II.3.2.3. Zákon č. 20/1987 Sb., o státní památkové péči; see Czech report, note 5. See Czech report, section 1. Ley 16/1985, de 25 de junio, del Patrimonio Histórico Español. See Spanish report, section 2. Spanish report, section 4.1.1. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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can lead to the assumption that Spanish (federal ) legislation so far only deals with the protection and preservations of tangible cultural heritage. The classification of national Spanish legislation with respect to cultural heritage yet remains difficult, as intangible cultural heritage might not be centrally regulated on a national basis, but it may nonetheless be of interest to the local laws of the autonomous communities, as we will see later in the chapter on the protection of intangible cultural heritage.621 In addition, tangible cultural heritage is to some extent regulated on a decentralized basis, as due to the distribution of legislative competences several areas are regulated (also) on a regional basis, leading to e.g. 18 major laws, 17 regional and one federal law, applicable to the protection of immovable cultural heritage.622 The Mexican 1972 Federal Law on Archaeological, Historic and Artistic Monuments and Zones (hereafter the ‘LAHA’) is the pertinent central legal statute covering issues related to tangible cultural heritage protection, comprising both movables as well as immovables. This law, supplemented by the Mexican General National Ownership Act (hereafter the ‘MGNOA’) again, however, only focuses on tangible cultural heritage, while intangible cultural heritage is currently not regulated by federal laws in Mexico. Nevertheless, related issues can be found on a decentralized basis, regulated by several provincial state laws.623 Tunisia also combines the protection of movable and immovable tangible cultural heritage in the law of May 19, 1988 on cultural goods,624 completed and partly revised by the Code of Archaeological and Historical Heritage and Traditional Arts625 (hereafter the ‘CAHH’) in 1994 and the Law of February 22, 1989 on Maritime Wrecks, applicable to underwater cultural heritage.626 Unlike the two before-mentioned Czech and Spanish national legal frameworks, Tunisia regulates intangible cultural heritage protection on a centralized basis in the Law on Literary and Artistic Heritage (hereafter the ‘LLAH’)627 enacted at the same time as the CAHH. In 2004, the French legal framework in the area of cultural heritage protection shifted from a totally scattered system towards a more integrative one when the Code of Cultural Heritage628 (hereafter the ‘CCH’) was adopted. It unifies and regroups several older laws dealing with tangible cultural heritage in both forms, movable and immovable, and divides them into the

621

Infra II.3.2.2.; see also Spanish report, section 4.1.1. See e.g. infra II.2.1.2. 623 See infra II.3.2.2. 624 Loi n° 88–44 du 19 mai 1988 relative aux biens culturels. 625 Loi n° 94–35 du 24 février 1994 relative au code du patrimoine archéologique, historique. et des arts traditionnels. 626 See infra II.3.2.1. 627 Loi n° 94–36 du 24 février 1994 relative à la propriété littéraire et artistique. 628 Code du patrimoine; see French report, section 1.1. 622

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following six books: general provisions on cultural heritage (Book I), archives (Book II), libraries (Book III), “Musées de France” (Book IV—label granted under specific conditions), archaeology (Book V) and historic monuments/ buildings and sites (Book VI).629 The provisions on movable tangible heritage must—as far as movable tangible cultural heritage belonging to the public domain is concerned—however be read in connection with Article L. 2112–1 of the General Code Regarding the Property of Public Persons630 (hereafter the ‘CGPPP’) which was inserted in 2006 and which contemplates the regulations concerning the legal status of movable cultural property belonging to the public domain.631 Although France ratified both the 2003 Convention as well as the 2005 Convention, the protection and preservation of intangible cultural heritage still plays a minor role in the French legislation.632 1.1.2.4. The Diverse Approach in Sub-Constitutional Law Another big group of legal frameworks in the field of national cultural heritage protection and preservation is formed by Denmark, the Netherlands, Switzerland, Canada and the United States. These provide examples of scattered legislation in the area of tangible, and as it is the case in Switzerland, also intangible cultural heritage protection and preservation. The Danish legal Framework in the area of cultural heritage protection and preservation focuses solely on tangible forms of cultural heritage. In addition, Danish law also distinguishes between the two material forms of tangible cultural heritage: movables and immovables. With respect to immovable tangible cultural heritage the main law is the Consolidated Act No. 1088 of August 29, 2007 on Listed Buildings and Preservation of Buildings and Urban Environments633 (hereafter the ‘LBA’), with additional special regulations in various sets of special regulations of law, such as the Consolidated Act No. 1505 of December 14, 2006 on Museum634 (hereafter the ‘DaMuA’) regulating—among other matters—the ‘safeguarding of walls of stone and earth’635 in the form of ancient monuments and numerous executive orders.636 Movable tangible cultural heritage, on the other hand, is mainly regulated first by the Act on the Protection of Cultural Assets in Denmark 1987637 (hereafter the ‘CAA’) and its supporting executive order No. 404 of June, 11 1987 on Protection of Cultural Assets in Denmark, both of which primarily 629

See French report, section 1.1. Code général de la propriété des personnes publiques; see French report, section 2.2.1.1. 631 See infra II.2.2.2. for details. 632 See infra II.3.2.3. for details. 633 Lov om bygningsfredning og bevaring af bygninger og bymiljøer; see Danish report, section 2.1.1.1. 634 Museumslov; see Danish report, section 2.1.2. 635 Danish report, section 2.1.2. 636 See Danish report, section 2.1.1.1. 637 Lov nr. 332 af 4. juni 1986 om sikring af kulturværdier i Danmark. 630

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aimed at export controls over ‘rare works of art, objects of importance to cultural history, books, manuscripts, documents and the like.’ In addition and secondly, the DaMuA provides for important regulations, mainly in relation to safeguarding issues.638 The Netherlands take a similar approach and distinguishes strictly between tangible and intangible forms of cultural heritage. While the first group is regulated by various legal statutes, Lubina stresses that ‘the protection of intangible cultural heritage is not law-based’.639 Dutch law also distinguishes between movable and immovable forms of tangible cultural heritage when it comes to the regulation by legal statutes. The regime of immovable tangible cultural heritage is regulated by the Monuments Act640 (hereafter the ‘DuMoA’) of 1988. Its counterpart for the protection and preservation of movable tangible cultural heritage—with the exception of underwater movables, which also fall under the legal regime of the DuMoA641—is the Cultural Heritage Preservation Act642 (hereafter the ‘CHPA’) of 1984 with the major contemplating Act on the Return of Cultural Objects Removed From Occupied Territories643 of 2007 and the Sanction Order Iraq644 of 2004, both aimed at regulating repatriation issues of movable tangible cultural objects. Switzerland also distinguishes between tangible and intangible cultural heritage protection and further divides the first group into movable and immovable objects. This is further complicated due to the strong positions of the cantons.645 On a centralized federal level movable cultural heritage is mainly protected by the Act on the International Transfer of Cultural Property646 (hereafter the ‘CPTA’) of 2003 which implemented the 1970 Convention, regulating the ‘import of cultural property into Switzerland, and its transit, export and repatriation from Switzerland’.647 Immovable cultural heritage protection is mainly a cantonal matter648 and therefore regulated only in a limited way on a federal basis. While the Federal Nature and Cultural

638

See Danish report, section 2.2.1. See also infra II.2.2.2. Dutch report, section 2.1.; for details see infra II.3.2.3. 640 Monumentenwet, latest amendment in 2008; see Dutch report, section 2.5. 641 See Dutch report, section 2.1., section 3.2.7. and infra II.2.4.2.1. 642 Wet tot behoud van cultuurbezit; see Dutch report, section 2.2.5.2. 643 Wet van 8 maart 2007, houdende regels over inbewaringneming en instelling van een vordering tot teruggave van cultuurgoederen afkomstig uit een tijdens een gewapend conflict bezet gebied (Wet tot teruggave cultuurgoederen afkomstig uit bezet gebied); see Dutch report, section 2.2.5.2. 644 Sanctieregeling Irak 2004 II; see Dutch report, section 2.2.5.2. 645 See Swiss report, section 1. and infra II.2.1.2., II.2.2.2. and II.3.2.2. for details. 646 Bundesgesetz vom 20. Juni 2003 über den internationalen Kulturgütertransfer (KGTG) (SR 444.1). 647 Swiss report, section 2.1.1. 648 See Swiss report, section 2.1.2. with reference to J.-F. Aubert and P. Mahon, Petit Commentaire de la Constitution fédérale de la Confédération suisse, (Zurich, Schulthess 2003) Art. 78, para. 3. 639

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Heritage Protection Act649 (hereafter the ‘NCHPA’) of 1966 sets the framework for the protection of Swiss national immovable cultural heritage, cantonal law provides for further regulations on the protection of immovable tangible cultural heritage on a regional level. Although cantonal law primarily aims at the protection of immovables, the latest trend goes into a more extensive direction, also including movable tangible cultural heritage in cantonal legislation. Intangible cultural heritage—although the term is not commonly used in Swiss legislation—finds its expression also in federal and cantonal laws providing for a wide diversity of regulations, as will be shown later in this report.650 Canada also has a quite complicated, and above all, scattered legal framework for the protection of cultural heritage. This might be due to the fact that Canada, according to Paterson ‘has never accorded cultural heritage its own separate legal category, except for the purposes of specific statutes and the implementation of international agreements into domestic law (also by statute). This is largely because, as a mostly common law jurisdiction, Canada has no basis in its legal history for the separate recognition of a cultural heritage category.’651 The legal competences are divided between the central parliament and the provinces. While the first one has e.g. the legislative competence in the area of international trade and for that reason implemented the 1970 Convention in Section 37 of the Canadian Cultural Property Export and Import Act of 1977, the regulation of ownership falls under the competences of the provinces, causing complications as both civil law (note: in Quebec) and common law systems (note: in the other provinces) are represented in Canada.652 The protection and preservation of immovable cultural heritage is subject to parallel legislation, as legal statutes can be found on provincial levels, such as the British Columbian Heritage Conservation Act, as well as on a federal centralized basis, expressed mainly in the Historic Sites and Monuments Act and the Canada National Park Act which both were enacted to implement the 1972 Convention. It should further be added that Canada also belongs to the group of countries which have not enacted any legal statutes dealing extensively and expressively with the protection and preservation of intangible cultural heritage.653 In the United States, although Nafziger notes that ‘[f]ederal measures to protect immovables, as discussed above, normally apply as well to movables and their transferability,’654 core regulations on the protection of immovable

649 650 651 652 653 654

Bundesgesetzes vom 1. Juli 1966 uber den Natur- und Heimatschutz (NHG) (SR 451). See infra II.3.2.2. Canadian report, section 1. See Canadian report, section 1. For details see infra II.3.2.3. United States report, section 2.2.1.1. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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and movable tangible cultural heritage can be found in a patchwork of statutes of special regulations of law, while the category of intangible cultural heritage falls basically under the regime of Intellectual Property law.655 In addition, several national laws also provide indigenous groups, mainly American Indian and Native Hawaiian groups, with comparatively extensive rights, leading the way in respecting and incorporating the interests of groups and communities.656 Modern legal protection of cultural heritage in the United States dates back to the beginning of the 20th century and since then has been steadily evolving in most of cultural categories, movables and immovables as on land and underwater cultural heritage. General core laws in the area of immovable cultural heritage protection are the National Historic Preservation Act of 1966 (hereafter the ‘NHPA’) and the Archaeological Resources Protection Act of 1979 (hereafter the ‘ARPA’), the latter dealing with ‘archaeological resources’657 in general, combining the regimes of immovables and movables. The National Stolen Property Act (hereafter the ‘NSPA’) and the Cultural Property Implementation Act (hereafter the ‘CPIA’), which implements the 1970 Convention, are the general main laws in the area of movable tangible cultural heritage protection. In addition, tools of special regulations of law have been enacted in relation to underwater cultural heritage658 and the role of groups and communities. With regard to the latter one ‘the world’s most comprehensive and effective national law to protect indigenous cultural material’,659 the Native American Graves Protection and Repatriation Act (hereafter the ‘NAGPRA’) has to be mentioned.660 1.1.2.5. Germany as an Example of a Mixed-Diverse Approach in Sub-Constitutional Law Germany falls under neither of the two categories mentioned in chapters II.1.1.2.3 and II.1.1.2.4. Due to its complex system of competence distribution between federal and (note: local) state authorities, the systems of combining movable and immovable cultural heritage issues in single laws and using separate laws can both be found. The declaration of (note: tangible) objects to form part of the national cultural heritage falls within the competence of the German states, as does the protection of immovable tangible cultural heritage. Each German state has its own act on the preservation of monuments, comprising immovables as well as movables.661 In addition, however, one can find centralized federal legal 655 656 657 658 659 660 661

See United States report, section 3.1. and infra II.3.2.3. See infra II.2.1.2. and II.3.2.3. United States report, section 2.1.1.1. See infra II.2.4.2.1. United States report, section 2.1.1.2. For details see infra II.1.2.2., II.2.1.2. and II.2.2.2. Gesetz zum Denkmalschutz; see German report, section 2.4. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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statutes dealing with questions of movable tangible cultural heritage protection focusing on the prohibition of illegal export of cultural property and measures to prevent illegal import and regulate repatriation. In this regard two just recently enacted laws should be mentioned: the Law on the Return of Cultural Goods662 (hereafter the ‘LRCG’) implementing the 1970 Convention and the European Council Directive 93/7/EEC of March 15, 1993 and the Act implementing the Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict663 (hereafter the ‘AHC’), both enacted in 2007. 1.2. Basic National Concepts of Cultural Heritage—The Underlying Rationale of Its Protection and Preservation 1.2.1. Basic Points of Interest The terms cultural heritage and cultural property, the latter placing a greater emphasis on the ownership aspects of culture, are rather vague expressions and subject to different, more or less comprehensive definitions to be found in national legislation. This phenomenon is influenced by various factors, leading to a broad array of national concepts of cultural heritage. Major points of interest in this regard are possible impacts on those national concepts and the question of how they are expressed in the respective legal systems. The following will take a brief look at different national approaches and by doing this will shortly touch upon the influences made by the following wide range of factors: historic origins of cultural heritage protection, the relationship between culture and private property, the role of communities and groups including the Christian church and the link between past and future. 1.2.2. National Approaches The Oxford English Dictionary defines the term heritage—inter alia—as ‘[t]hat which has been or may be inherited.’664 Other dictionaries use definitions such as ‘anything transmitted from ancestors or past ages’665 or ‘anything that has been transmitted from the past’.666 The Oxford Dictionary of Phrase

662

Kulturgüterrückgabegesetz; see German report, section 2.3. Gesetz zur Ausführung der Konvention vom 14. Mai 1954 zum Schutz von Kulturgut bei bewaffneten Konflikten; see German report, section 2.3. 664 J.A. Simpson and E.S.C. Weiner, eds., The Oxford English Dictionary, Vol. 7, 2nd edn. (Oxford, Oxford University Press 1989). 665 C. Schwartz et al., eds., The Chambers English Dictionary, 7th edn. (Cambridge, W & R Chambers Ltd and Cambridge University Press 1988). 666 P. Hanks et al., eds., Collins Dictionary of the English Language (Glasgow, Williams Collins Sons & Co. Ltd. 1979); connatural definitions can be found in many other dictionaries as well, including The American Heritage Dictionary of the English Language, 4th edn. (Boston, 663

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and Fable links heritage to the term culture by defining it as ‘valued objects and qualities such as historic buildings, unspoilt countryside, and cultural traditions that have been passed down from previous generations’,667 stressing again the aspect of transfer from generation to generation and implicating the necessity to protect and preserve it for the sake of enjoyment by the respectively following generation. This idea is more or less directly reflected in a number of national legal frameworks. For example, Lenzerini notes that the Italian regime is ‘founded on—and permeated by—the philosophical rationale according to which it represents heritage belonging primarily to the community. Therefore, the first purpose of the relevant legislation consists in making fruition of cultural heritage available for the entire community’668 and explains with reference to Bottari and Pizzicanella that the term heritage finds its Italian expression in the Italian equivalent patrimonio, deriving ‘from the Latin term patrimonium, indicating the inheritance left by the father (pater) to his descendants, inheritance that they must preserve, valorize and transmit in their turn to future generations’.669 As pointed out above670 in the context of the constitutional frameworks, the Italian Constitution in its Article 9 tries to anchor this idea by saying that ‘the Republic promotes the development of culture and scientific and technical research. It protects the landscape and the historical and artistic heritage of the Nation,’671 with the term nation to be understood as ‘the community of national people,672 including all regional and local communities.’673 Italy plays an active role in the area of cultural heritage protection and possesses the highest number of entries in the World Heritage List under the regime of the 1972 Convention with 42 inscribed cultural objects (as of December 31, 2008).674 Italy might also be the country with the highest percentage of

Houghton Mifflin Company 2000) or P.B. Gove et al., eds., Webster’s Third New International Dictionary of the English Language (Springfield, G. & C. Merriam Company 1976). 667 E. Knowles, ed., The Oxford Dictionary of Phrase and Fable (Oxford, Oxford University Press 2000). 668 Italian report, section 1. 669 Italian report section 1 with reference to F. Bottari and F. Pizzicanella, I beni culturali e il paesaggio [Cultural goods and the landscape] (Bologna, Zanichelli 2007), p. 3. 670 See supra II.1.1.1. 671 Italian report, section 1. 672 Italian report, section 1. with reference to N. Assini and G. Cordini, I beni culturali e paesaggistici. Diritto interno, comunitario, comparato e internazionale [Cultural and Landscape Properties. Domestic, European Community, Comparative and International Law] (Padova, Cedam 2006), p. 22. 673 Italian report, section 1. with reference to V. Piergigli, ‘I “beni culturali”: interpretazione evolutiva di una nozione giuridica consolidata’ [“Cultural Properties”: Evolutionary Interpretation of a Consolidated Legal Notion], in V. Piergigli and A.L. Maccari, eds., Il Codice dei beni culturali e del paesaggio tra teoria e prassi [Code of Cultural Properties and Landscape between Theory and Practice] (Milano, Giuffrè 2006) p. 17 at p. 37. 674 A complete list of inscribed Italian cultural properties is available online at http://whc .unesco.org/en/statesparties/it (last visited on December 31, 2008). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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church owned cultural property. In 2006 Assini and Cordini estimated that roughly 70% of Italian cultural heritage as defined under its legal framework belongs to the Catholic Church.675 The strong position of the church in Italy is reflected by Article 9 (1) of the CCPL, pursuant to which in Lenzerini’s words ‘modalities of their preservation and fruition are established by means of an agreement between the Ministry (or, whether and to the extent that they are competent in the instant case, the regions) and the relevant religious institution(s). The purpose of these agreements is to conciliate the different demands attached to religious heritage, so as to make possible both their use for the spiritual needs to which they are devoted and, at the same time, their public fruition as cultural heritage.’676 Lenzerini also expresses that the main principle in the area of general cultural heritage protection is based on the ‘recognition of the supremacy of the public interest over any kind of proprietary rights over the properties concerned. These rights—when incompatible with the primary purpose of the national action concerning cultural heritage, i.e. ensuring its proper preservation, valorization and adequate fruition by the community—are destined to surrender to the supreme requirement to properly realize the interests of the collectivity.’677 Denmark is another country which enshrines the principle of generation transfer in its legal framework. According to Tamm and Østrup Section 23 (1) of the Danish Museum Act678 (hereafter the ‘DaMuA’) the Danish ‘Minister of Culture and the state-owned and state-subsidised museums are to co-operate with the local authorities in order to ensure that significant cultural heritage is safeguarded for posterity.’679 Furthermore, as is the case in Italy, the church, in the case of Denmark the Danish National Evangelical Lutheran Church, also plays an important role with regard to cultural heritage protection in Denmark. Again, Danish law tries to strike a balance between the protection and preservation of cultural heritage and the needs of the church. In order to accomplish this, matters related to church buildings and church areas are exempted from the scope of application of the Danish Listed Buildings Act and regulated by a separate law, the Act No. 7 of January 3, 2007 on Church Buildings and Church Yards Belonging to the Danish National Evangelical Lutheran Church.680 It should, however, also be noted that the Danish legislation with its long tradition of cultural heritage protection in its provinces reaching back to the 13th century681 is to some extent

675

See Italian report, section 3. with reference to Assini and Cordini, op. cit. n. 672, at p. 79. Italian report, section 3. 677 Italian report, section 6. 678 Museumslov, Lov nr. 473 af 7. juni 2001. 679 Danish report, section 3. 680 Lov om folkekirkens kirkebygninger og kirkegårde; for details see Danish report, section 2.1.1.2. 681 See Danish report, section 1.1. referring to the Law of Jutland [ Jyske Lov] of 1241. 676

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rather conservative, as it neither provides for the granting of (note: direct) rights over cultural property to groups and communities nor for the protection of intangible cultural heritage by the means of legal statutes.682 When it comes to the protection of cultural heritage rights and interests of groups and communities, one cannot see a general trend in the national legal frameworks towards the strengthening of the position of groups and communities. Although for example the language of minorities, understood as part of intangible cultural heritage,683 is protected in the legal systems of most countries, this might not be the case in relation to cultural heritage rights of groups and communities in general, especially not in relation to tangible cultural heritage. The main obstacles to granting (ownership) rights and protective means to communities can primarily be explained with the basic principle of private law applicable in various national legislations: generally speaking, (property) rights might only be granted to individuals or to groups if they are considered to be legal entities. A community per se, however is usually not classified as a legal entity and thus cannot be capable of holding (ownership) rights. Nevertheless, there exist several national legal concepts which—in one form or another—respect community or group rights. In this context the Native American Graves Protection and Repatriation Act (NAGPRA) has to be pointed out as it grants comprehensive rights to indigenous groups and communities in the area of cultural heritage, its protection and preservation. Comprising both basic forms of intangible cultural heritage immovables as well as movables the NAGPRA ‘grants autonomy to recognized Native American and Native Hawaiian groups in the use and disposition of stipulated cultural material on their lands or otherwise within their authority.’684 In contrast to many other, especially European, countries indigenous groups and communities are actively involved in the national cultural heritage regime based on the ideas of repatriation, mediation, community ownership, balancing of community and state interests and special jurisdiction. With regard to the latter one, the Review Committee established under the NAGPRA should be mentioned. When it comes to issues related to the interests of indigenous groups and communities this institution functions as an alternative jurisdictional authority in addition to the general Federal Court jurisdiction. Composed of seven members, it ‘meets twice a year to mediate disputes and to make policy recommendations to the Secretary

682 For details on the Danish position towards the protection of intangible cultural heritage see infra II.3.2.3. 683 See Article 2 (2) (a) 2003 Convention and supra I.7.2. 684 United States report, section 2.1.1.2.

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of the Interior’685 being ‘far more active and effective in resolving disputes than the federal courts.’686 Canadian law does not generally define the terms cultural heritage or cultural property and, so Paterson ‘does not generally recognize cultural heritage as a separate legal category’687 ‘except for the purposes of specific statutes (note: dealing only with limited questions of cultural heritage protection) and the implementation of international agreements into domestic law’.688 Canadian law does however strengthen the position of indigenous groups— also referred to as aboriginals, Native people or First Nations689—in the field of cultural heritage rights. Section 35 (1) of the Canadian Constitution Act 1982,690 stipulates that ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed’, while Section 35 (2) of the Canadian Constitution Act 1982 clarifies that the term aboriginal peoples of Canada includes Indian, Inuit and Métis groups. Although no federal sub-constitutional law relating to indigenous group (immovable) cultural heritage rights has been enacted so far, this constitutional provision plays an important role as a balancing mechanism with regard to provincial law in Canada, trying to protect the interests of indigenous groups. What started in the area of immovable cultural heritage rights on a provincial basis, extended to touch indigenous group rights in relation to movable cultural heritage also on a federal basis. The—so far only—federal law addressing this issue is the Indian Act (hereafter the ‘IA’) of 1876.691 Section 91 IA reads: (1) Certain property on reserve may not be acquired—No person may, without the written consent of the Minister, acquire title to any of the following property situated on a reserve, namely, (a) an Indian grave house; (b) a carved grave pole; (c) a totem pole; (d) a carved house post; or (e) a rock embellished with paintings or carvings. (2) Saving—Subsection (1) does not apply to chattels referred to therein that are manufactured for sale by Indians. (3) Removal, destruction, etc.—No person shall remove, take away, mutilate, disfigure, deface or destroy any chattel referred to in subsection (1) without the written consent of the Minister.

685

United States report, section 2.2.1.2. United States report, section 2.2.1.2. 687 Canadian report, section 1. 688 Canadian report, section 1. 689 See e.g. Canadian report, section 1. 690 The text of the Canadian Constitution Act is available online at e.g. http://laws.justice .gc.ca/en/const/index.html (last visited on December 31, 2008). 691 As Paterson notes the term Indians is ‘a now dated term for Aboriginal or First Nations people’—see Canadian report, section 2.2.2. 686

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On a provincial basis, the Alberta First Nations Sacred Ceremonial Objects Repatriation Act of 2000 should be mentioned. This is—so far—the only provincial law dealing with the question of repatriation of movable cultural property to indigenous groups, making it ‘the only one of its kind in Canada and the only Canadian law resembling the [United States] Native American Graves Protection and Repatriation Act.’692 Despite the lack of a comprehensive centralized legislation in this field, indigenous groups’ cultural heritage rights are nevertheless respected: Canadian museums often respond positively to requests for the return of cultural objects to indigenous communities. New Zealand is another example for the involvement of indigenous group rights and their cultural interests in national legislation. Myburgh with reference to Quince, Ruru and Stephenson explains that wāhi tapu693 and wāhi tapu areas are expressly recognized and protected under the Historic Places Act 1993, and the kaitiakitanga (the ethic of stewardship) of Māori hapu or iwi (note: defined by Myburgh as ‘Māori subtribes and tribes’694) of such places or areas is recognised under the Resource Management Act 1991.695 With regard to the question of ownership of Māori land, it should be stressed that it ‘is owned communally by hapu and iwi, so Māori cultural heritage sites on Māori land will, by definition, be owned communally by the relevant hapu or iwi’.696 Also movable tangible cultural heritage can be owned by such groups, which—with regard to found Māori artifacts—finds its reflection in the fact that ‘found Māori artefacts are prima facie owned by the Crown until ownership is determined, in which case the artefact passes into the communal ownership (or more correctly kaitiakitanga)697 of the relevant hapu or iwi’.698 In addition, materialized Māori intangible cultural heritage is of legal significance as well, as it forms one part of the extensive Māori taonga (to be understood as ‘treasure’) joining tangible cultural heritage as the second pillar. Over the last decades Māori intangible cultural heritage has been the subject of various court cases, with the result of strengthening the position

692

Canadian report, section 2.2.6. For a definition see supra II.1.1.2.2. 694 New Zealand report, section 1.1. 695 See New Zealand report, section 1.2. with reference to K. Quince, When Uncle Ron and the Monster Took On The Crown, Working draft of paper presented to the Federalism and Indigenous Peoples Conference at the University of Hawaii Law School, 7 January 2007 (forthcoming 2008) and J. Ruru and J. Stephenson, ‘Wāhi Tapu and the Law’ [2004] New Zealand Law Journal 57. 696 New Zealand report, section 2.1.4. 697 Myburgh explains that ‘Kaitiakitanga is defined in s. 2 of the Resource Management Act 1991 as: “the exercise of guardianship by the tangata whenua [people of the land] of an area in accordance with tikanga Māori [Māori custom] in relation to natural and physical resources; and includes the ethic of stewardship”.’—see New Zealand report, section 2.1.2. 698 New Zealand report, section 2.2.1. 693

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of indigenous groups in this respect.699 As already explained700 the strong position of Māori in the field of cultural heritage protection and preservation is also expressed on a constitutional basis as Article II Treaty of Waitangi aims at safeguarding ‘the unqualified exercise of their chieftainship over their lands, villages and all their treasures’. Taiwanese cultural heritage law is comparatively modern in its underlying principles. Firstly, deriving from Japanese cultural heritage models, the cultural heritage concept in Taiwan is based on integrative ideas, protecting various forms of culture be it tangible or intangible and thus taking a holistic view. Secondly, the Taiwanese position with respect to cultural heritage rights of indigenous people recently changed to strengthen their role. Based on a constitutional amendment in 2005 which stressed the importance of cultural pluralism and the safeguarding of the participation of ethnic people,701 Taiwan enacted the new Protection Act of Traditional Intellectual Creation of Indigenous People (PATIC) in 2007. Pursuant to the PATIC and in difference to the older, but nevertheless still parallel applicable Cultural Heritage Preservation Act (TCHPA) not only individuals, but also indigenous groups and communities can be hold rights to intangible cultural heritage, empowering tribes to have their traditional intellectual creation registered and protected.702 Tunisia is another example of a country which tries to protect cultural heritage expressed materially and/or immaterially. The legal framework in Tunisia with regard to cultural heritage protected was just created in the late 1980s based on a mere tangible cultural heritage concept, but was soon adapted in the mid-1990s, complemented by specific regulations on the protection of intangible cultural heritage leading to a comprehensive safeguarding system for various forms of cultural heritage. Although Tunisia seems to have an all-embracing legislative foundation, the cultural heritage debate has been relatively modest, as—according to Ben Jémia—there has not been a single lawsuit with respect to cultural heritage in Tunisia so far. Also the position of communities is not yet clear, as e.g. the role of indigenous people with respect to intangible cultural heritage is to turn it (note: intangible cultural heritage) ‘into practical use’ without further definitions by legal statutes.703 Contrary to the Taiwanese and Tunisian legal frameworks the protection of cultural heritage has a long legal history in Japan. The latest comprehen-

699

See infra II.3.2.4. and New Zealand report, section 3.2. See supra II.1.1.1. 701 See supra II.1.1.1. for details. 702 See infra II.3.2.1.; the relationship of the PATIC and the TCHPA is still not clear—see Taiwanese report, section 1. 703 See Tunisian report, section 3. 700

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sive Japanese law, the Japanese Law for the Protection of Cultural Properties (LPCP) was enacted in 1950 and includes several provisions deriving from older laws on the protection and preservation of cultural heritage. The Japanese legal system is also based on an extensive cultural heritage concept integrating tangible and intangible forms in its legislative regime. It also plays an important role on an international level, for having influenced foreign national legislations, as the Taiwanese system shows. Like in the two beforementioned systems, the Taiwanese and the Tunisian, group (“ownership”) rights are, however, limited to forms of intangible cultural heritage, defining those groups and communities as holders of intangible cultural heritage.704 The position of most European countries in relation to granting cultural heritage rights to communities and groups is more reserved. Although national cultural heritage concepts are often based on the idea of ancestry and passing on culture from generation to generation, it is usually not a defined group or community which possesses (ownership) rights. Also the position towards regulating the protection of intangible cultural heritage by statutes containing special regulations of law is not a welcoming one in many parts of Europe. Croatia might be the most progressive European country having contributed to this study in relation to an integrative cultural heritage concept. The rather new core legal statute aimed at the protection and preservation of cultural heritage dates from 1999 and embraces tangible as well as intangible forms of cultural heritage. Also the fact that Croatia is very active in the field of international cultural heritage protection, having signed all major treaties in this area705 indicates that Croatia is proud of its national cultural heritage which dates back to the 7th century706 and is willing to protect it nationally as well as on an international level. Although community rights are again very limited, some influences can be found in relation to intangible cultural heritage, as, according to Gliha and Josipović, ‘the respective community is also involved in the proceedings to establish the cultural heritage status since it has to give its approval and is involved in all the stages of drafting a proposal—from identification, definition, documentation to its submission.’ Germany is a good example of a country which generally neither grants extensive cultural heritage rights to communities and groups nor protects mere intangible cultural heritage by the means of special cultural heritage laws. Siehr explains the reluctance towards community rights with the fact that ‘There are hardly any ethnic, tribal or minority groups in Germany to which cultural objects are assigned as “their” cultural assets.’707 The only

704 705 706 707

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major, though regional legislation which has a link to the preservation of a community’s intangible culture is to be found in the states of Brandenburg and Saxony with legal statues aimed at ‘guaranteeing the “national identity” of the Sorbs’708 including their language, traditions and costumes. Nevertheless, the position of communities and groups is quite weak with practically no influence in the field of tangible cultural heritage, its protection and preservation. In general, the German legal framework focuses on tangible forms of cultural heritage and protects intangible cultural heritage not in a special way, but only by intellectual property laws, if the expressions fulfill the necessary criteria determined by those rules. The Czech Republic takes a similar approach as Germany. In its concept of cultural heritage protection, neither groups/communities nor intangible forms of cultural heritage play a decisive factor. The Czech Republic has neither ratified the 2003 Convention nor the 2005 Convention and generally speaking, according to Šturma, ‘does not recognize the concept of intangible cultural heritage’.709 It also does not grant any cultural heritage rights to communities or groups, unless a group is classified as a legal entity—a basic rule which is applicable at least with regard to tangible cultural heritage throughout most European countries. In addition, the idea of cultural heritage and its protection finds only limited reflectance in the national constitutional system, as the pertinent provision, Article 7 of the Czech Constitution protects only natural resources and natural heritage and also Articles 11 and 34 of the Czech Charter of Fundamental Rights and Freedoms, which is of constitutional character, only indirectly address the protection and preservation of cultural heritage as on the one hand it is stipulated that the right to property can be subject to certain exceptions and limitations and on the other hand everyone should have ‘the right of access to cultural heritage under conditions set up by law’.710 The position of private owner of cultural properties is also quite strong as the Czech legal framework seeks a balance of individual interests and the protection of cultural heritage, making a designation of cultural property only possible if the rights and interests of the individual are sufficiently respected.711 Like its Czech counterpart and as already outlined above712 the French constitution does not directly refer to the protection of cultural heritage. Also community and group cultural heritage rights cannot be found in the French legislation. Extensive regulations on the protection of intangible cultural heritage are also absent. Especially the latter might come as a surprise,

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as France is among those countries which have ratified the 2003 Convention. Under the current framework of special regulations of law for the protection of cultural heritage, intangible cultural heritage per se is not reflected. It can, however, be of interest if it is materialized in a tangible form, leading to an indirect protection.713 The concept of tangible cultural heritage protection is, according to Cornu, ‘flexible and synthetic’,714 as pursuant to Article L.1. of the Code of Cultural Heritage a cultural object, in order to be protected under that law, ‘must represent public interest from the point of view of art, history, archaeology, science or technology’,715 with a shift from protecting ‘remarkable movables and immovables’716 towards encompassing ‘new forms of heritage, for example ethnological heritage’.717 The Dutch legal framework for the protection and preservation of cultural heritage is one of the youngest European systems. The first ever national legal statute dates to the 1960s and only focused on immovable tangible cultural heritage. The protection of movable tangible cultural heritage was not regulated before 1984 by the Dutch Cultural Heritage Preservation Act (CHPA). Pure intangible cultural heritage is still not subject to a legislative regime, neither on a national nor on an international basis, as the Netherlands has neither signed the 2003 nor the 2005 Convention. Lubina stresses that the Dutch concept of cultural heritage is based on the principle of property rights,718 which leads to the result that—e.g. in contrast to the Italian understanding—‘tangible cultural heritage is primarily considered someone’s property and only in second instance as cultural heritage.’719 The importance of property rights is also expressed by the fact that communities or groups can only play an active role in the protection of cultural heritage, if they are classified as legal entities. The idea of being a holder of cultural rights is not transferred into national law. The constitutional expression of the Swiss concept of cultural heritage can be found in its constitutional Preamble reading: ‘Swiss people and cantons are conscious of their common achievements and determined to live their diversity in unity.’720 Beside various federal and cantonal legal statutes on the protection of tangible cultural heritage, one can find also special regulations on the protection of intangible cultural heritage including respective rights of groups and communities who are considered to be ‘one of the main

713 714 715 716 717 718 719 720

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holders of intangible cultural heritage.’721 On a cantonal basis one can often find state support for groups and communities for the protection, preservation and promotion of local intangible cultural heritage.722 It should however be stressed that the important role of communities and groups is limited to intangible forms of cultural heritage. Cultural heritage protection in Spain is based on the concept of representing history rather than being an expression of culture, as reflected by the first core legal statute, the federal Law on the Historical Heritage of Spain (LHHS).723 With respect to community or group rights and intangible cultural heritage, both originally played a minor role. Just recently and only on the level of regional legislation by the Autonomous Communities the concept of cultural heritage and its protection has been gradually expanded, in some areas of Spain also including intangible cultural heritage724 and the emphasis on the ‘fundamental role’725 of communities and groups with regard to its protection. 2. Tangible Cultural Heritage 2.1. Immovable Tangible Cultural Heritage 2.1.1. General Issues With currently 186 States Parties (as of December 31, 2008)726 the 1972 Convention is the most highly accepted and comprehensive among the international tools outlined in Part I of this report dealing with the protection of cultural heritage. While the 1954 Convention and the 2001 Convention also cover forms of movable cultural heritage, but both immovables and movables only to a certain extent—either in the context of armed conflicts or located underwater—, the 1972 Convention is solely applicable to immovable cultural heritage, but at the same time covers a large area neither distinguishing between states of armed conflicts and freedom nor practically affecting mainly coastal states, but also land-locked countries. As pointed out above the application of the 1972 Convention has developed over the past decades, introducing new forms, such as the concept of cultural landscapes and combining the decisive two sets of criteria applicable to cultural and natural heritage into a single set supplemented by further

721 722 723 724 725 726

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factors: authenticity and integrity. Discussions on an international level were also led with regard to the concept of outstanding universal value and the balancing of represented objects on the World Heritage List. Also, while the 1972 Convention can primarily provide for financial assistance, it still depends on the collaboration of its States Parties in order to guarantee a well-functioning system for the practical protection of the World Heritage. When it comes to the national frameworks of immovable cultural heritage protection, the just mentioned points are surely of interest, as one might detect differences among the national concepts in relation to e.g. the scopes of application or decisive criteria for the designation of immovable cultural heritage. However, from a legal perspective national legal systems also show additional interesting features. This begins with the question of how national legislation deals with the subject of immovable cultural heritage protection, an issue which is closely linked to the question of distribution of legal competences. This also touches on issues related to the involvement of and respect for indigenous groups and communities and leads to the interesting question of how private property rights with regard to protected objects are possibly limited, be it already in the process of designating a potential immovable cultural heritage object, as a consequence of its designation or in terms of possible selling restrictions. The following subchapter will focus on the national answers to those questions and give a general idea of how several countries incorporate their respective perceptions in relation to immovable cultural heritage protection and preservation in national frameworks, striking balances between the above-mentioned, sometimes opposing interests. 2.1.2. General National Legal System with Regard to the Protection and Preservation of Immovable Tangible Cultural Heritage Croatia belongs to those countries which combine core regulations on the protection and preservation of immovable and movable tangible cultural heritage in one fundamental legal statute, the Cultural Heritage Act (CHA) of 1999 which replaced older national laws in this field727 and also implemented the 1972 Convention. When it comes to the protection of immovable cultural heritage one has also to mention a set of special regulations of law, the Restoration of the Threatened Monument Entirety of Dubrovnik Act,728 which provides for special protective measures for the City of Dubrovnik, an object on the World Heritage List which was also inscribed on the Endangered World Heritage List from 1991 to 1998.729 The CHA is applicable in 727

For details see Croatian report, note 5. Zakon o obnovi ugrožene spomeničke cjeline Dubrovnika, OG 21/86, 26/93, 33/89, and 128/99. 729 See supra I.4.3. and http://whc.unesco.org/en/news/147 (last visited on December 31, 2008). 728

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relation to a large number of various immovables on a federal level reaching from single buildings—sometimes including their surroundings—and sites containing buildings to whole villages, towns and also comprising archeological sites, zones, as well as gardens, parks and culturally significant technical facilities regarded as immovable.730 The Ministry of Culture as the competent authority with regard to immovable cultural heritage on a federal level determines and grants the status of cultural heritage to objects falling under one of those categories by the means of an assessment based on a materially rather undefined set of criteria. In order to be declared to be part of the nation’s cultural heritage an object must be of ‘artistic, historical, palaeontological, archaeological, anthropological or scientific importance’731 or—in the case of archaeological sites and zones—must show ‘man’s presence in the area and have artistic, historical and anthropological value’.732 This basic concept comprises some kind of ranking system with a special category of ‘national importance’733 applied to objects if a specially designed evaluation committee comes to the conclusion that an object is ‘of highest national importance’, which can lead to stricter preservation measures. All objects forming the immovable cultural heritage of Croatia on a federal basis are inscribed on the Register of the Cultural Heritage of the Republic of Croatia.734 The set of criteria for the determination of whether or not a potential object can be granted the status of immovable cultural heritage is not more precisely defined, facilitating flexible decisions on a case-by-case basis. In addition to the before-mentioned federal immovable cultural heritage and if not categorized as such, it is also possible to have objects declared as unregistered local immovable cultural heritage, which is decided on a local level in cooperation with either the Conservation Department of the Ministry of Culture on whose territory the object is situated or the City Bureau for the Protection of Cultural and Natural Monuments of the City of Zagreb in case the location is Zagreb.735 Croatian tangible cultural heritage in general can be either public or privately owned. In the latter case the owner does not have to give his consent to the minister’s decision, but has the right to appeal against a decision on the designation of his object to form part of Croatia’s cultural heritage. Once granted the status of immovable tangible cultural property the owner is not deprived of his ownership rights per se. However, classification leads to a couple of restrictions of his property rights. Beside national duties and rights with respect to the protection and preservation of immovable cul730 For a list of protected immovables see e.g. Croatian report, section 2.1. or Article 7 CHA. 731 Article 2 (2) lit. 1 CHA. 732 Article 2 (2) lit. 2 CHA. 733 Article 13 (1) CHA. 734 Registar kulturnih dobara Republike Hrvatske. 735 Article 17 (3) CHA.

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tural heritage, especially comprising means of documenting and monitoring the status or condition of the respective object, it is primarily the owner who has to care for the protection of cultural property owned by him, providing him however with several financial and practical benefits, including tax exemptions or experts’ help. He also is restricted in several ways directly linked to the issue of ownership, e.g. with regard to planned modifications of his property or cases of sale of his property, enabling the authorities to safeguard the national interest of protecting cultural heritage by issuing permits or exercising pre-emption and expropriation rights, the latter subject to compensation and only possible if it is in the national interest of Croatia, which is in detail defined by Article 41 (1) of the CHA, as well as carrying out protective measures at the owner’s expense if he does not comply with his duties.736 Under the Croatian legal framework the role of communities and groups with regard to the protection and preservation of immovable cultural heritage is limited, as they are not considered as potential owners due to the fact that they are usually not legal entities.737 As they are neither ‘owners [n]or [other] right-holders of the immovable, [they also] do not have [a] party status in the administrative proceedings for the declaration of the cultural heritage status’.738 The role of e.g. non-governmental organizations is restricted to the possibility ‘to report to the competent body any immovable which they suppose might belong to the cultural heritage.’739 The Czech Republic takes a similar approach to Croatia with regard to the protection and preservation of tangible cultural heritage, as its core law, the Law on the State Care of Cultural Heritage (LSCCH) of 1987 covers both immovable and movable tangible cultural heritage. Immovable cultural heritage, which comprises also archaeological sites740 and which can be subdivided into the main categories of cultural monuments (being either of

736 For details with regard to the owner’s restrictions see Croatian report, section 2.1. Pursuant to Article 41 (1) CHA national interest is defined as cases of (1) danger of damage or destruction of the immovable cultural heritage, when its owner is not able to or interested in implementing all the necessary measures of protection and preservation, (2) if this is the only way to ensure archaeological research and excavation or the implementation of measures for the technical protection of the culturally significant immovable; or (3) if this is the only way to ensure public access to the immovable heritage. Gliha and Josipović add that pursuant to Article 42 (2) CHA ‘the Croatian Government may exceptionally pass a decision on the interest of the Republic of Croatia in the expropriation of a heritage immovable in some other case as well.’ 737 Under Croatian law only individuals or legal persons/entities can be owners of privately owned cultural property. 738 Croatian report, section 2.1. 739 Croatian report, section 2.1. and Art. 4 (3) CHA. 740 See Czech report, section 2.1.

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“normal” or national significance), reservations741 and zones,742 is designated as such by the Ministry of Culture, which usually consults various regional authorities as well as private owners, whose consent however is not necessary for the final designation. The set of criteria used for the determination seems to be well defined as it consists of the following two groups: ‘(a) objects which show significant evidences of historical development, style of life and environment of the society from the early times to the present, being expressions of creativity and work in various branches of human activities because of their revolutionary, historical, artistic, scientific and technical values, or (b) objects which have a direct relation to important personalities and historical events. Groups (collections) of objects may be declared as cultural heritage even if some objects therein do not belong to cultural heritage.’743 Like Croatia the Czech legal framework distinguishes between “normal” cultural immovables and national cultural immovables, the latter one being ‘most important’744 examples of the national cultural heritage and designated by the Czech Government, not the Ministry of Culture. The twoclass categorization has various practical consequences, including a stricter protective regime for the national cultural heritage as well as the impossibility to remove objects belonging to that group from the national register, on which all immovable tangible cultural heritage protected under the LSCCH are enlisted. This national register, the Centralized List of Cultural Heritage of the Czech Republic, is maintained and regularly updated by a special national administrative body, the National Institute of Cultural Heritage.745 Also under the Czech legal framework, the respective owner of the cultural object, be it public or privately owned, is the main addressee for carrying out protective and preserving measures at his or her own expense. Like in most countries, private owners do however get financial benefits in the form of tax remunerations/exemptions in return and are under certain circumstances entitled to public funding if the preservation costs are extraordinarily high. Private owners are also restricted when it comes to intended modifications or a sale of the object. In the first case the respective owner needs a permission of the competent authority; in the second case the public authority might exercise pre-emption rights.746 Failures in fulfilling protective and preserving tasks can lead to the imposition of safeguarding means on the costs of the

741 Šturma defines the term reservation as ‘group(s) (collection) of immovable cultural objects or archeological sites’—see Czech report, section 2.1. 742 Šturma defines term zone as ‘a territory or a part of habitation which includes a lesser share of cultural monuments, a historical environment or a part of landscape which present significant cultural values’—see Czech report, section 2.1. 743 Czech report, section 2.1. 744 Czech report, section 2.1. 745 Národní památkový ústav. 746 See Czech report, section 2.1. for details on exercising the pre-emptive right.

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private owner and can eventually lead to compensated expropriation. The public authorities may also react in cases of imminent danger and may order the necessary steps directly, if privately initiated protective attempts would be too late. Although French law recently transferred some competences in the field of immovable tangible cultural heritage protection to local authorities, it nevertheless is characterized by a strong centralized system. One can basically distinguish between two different concepts of protection forming some kind of ranking system: the stronger protective regime in relation to classified monuments (monuments classés au titre des monuments historiques) and the more owner friendly regime of registered monuments (monuments inscrits au titre des monuments historiques), both regulated by the Code of Cultural Heritage (CCH). Originating from the protection of monuments of mere historic value, the concepts were widened to also include other cultural aspects. The scope of application with regard to the first group, the group of classified monuments, is however still comparatively narrow, as pursuant to Article L. 621–1 of the CCH classified monuments are defined as ‘immovables whose preservation is, regarding history or art, of public interest, . . . [to be] classified as historic monuments as a whole or in part by the administrative authority.’747 The Minister of Culture as competent authority for the designation of respective objects can list an object showing one of the two alternative criteria—public interest with regard to history or art—in a national register for classified and registered monuments. The decision is made in consultation with the National Commission of Historic Monuments and either with the consent of the owner, be it a public or private one, or against his will, in the second case subject to compensation payments.748 According to Cornu the set of criteria is very demanding leading to the fact that ‘only the most significant and rare elements are protected,’749 reflected by ‘a reluctance in classifying the heritage of the twentieth century.’750 The second group of protected immovable cultural heritage comprises registered monuments, a group which does not limit the owner’s rights as much as the regime of classified monuments does. Article L. 621–25 of the CCH defines registered monuments as ‘buildings or parts of buildings, public or private, which, without justifying an immediate classification as a historic monument, demonstrate a sufficient interest in art or history as to make their preservation desirable [which] may, at any time, be registered by decision of the administrative authority, as a historic monument.’751 In contrast to classified monuments,

747 748 749 750 751

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the owner of a registered monument does only have to inform the Ministry of Culture of planned changes, such as modifications or renovations, of his property. No permission for such an undertaking is needed. The authority can only react by classifying an already registered monument if the set of criteria for the group of classified monuments is fulfilled. Also, no obligation of conservation is imposed on the private owner, a further easement in contrast to classified monuments in relation to which the respective owner is responsible for their preservation. With regard to the protection and conservation of privately owned immovable cultural heritage, the owner has the right to tax exemption as well as to further financial aid and assistance by public authorities. Also under French law, the authorities’ position in the protective regime is quite strong, as the state is entitled to expropriate from the owner if it ‘is necessary for a cause of public utility’,752 including historical or artistic interest. This for example might be the case if the owner does not want to or cannot fulfill his obligations to protect and preserve classified monuments. The State has also certain pre-emptive rights which are in detail described by special statutes.753 In addition to classified and registered monuments, which are both protected by the core text in the field of immovable cultural heritage, the CCH, other—more or less typical—forms of cultural heritage are protected under supplementary legal statutes, covering culturally significant natural monuments/sites, landscapes, coastal sites/zones, parks, urban ensembles and surrounding zones, some of them being of rather new date and standing for a more decentralized system.754 Throughout the Canadian system with its competences in the field of immovable cultural heritage protection divided between sometimes overlapping provincial and federal legislation indigenous groups play an important role. Provincial legislation covers various buildings and sites being of cultural significance. For example, culturally significant sites to be registered as cultural heritage under the British Columbia Heritage Conservation Act have to be of importance for the province of ‘British Columbia, a particular community or Aboriginal People.’755 Designations of cultural heritage objects can usually also be done on a municipal level, as is the case for British Columbia under its Local Government Act. One of the main consequences for the public or private owner is the necessity to ask for permission if he or she intends to conduct changes of the object or if excavations should be carried out. The federal legislation in response to the 1972 Convention is based on

752

French report, section 2.1.2. See French report, section 2.1.2. 754 For details see French report, section 2.1.1.2. (Natural monuments/sites), section 2.1.1.3. (Landscapes), section 2.1.1.4. (Coastal sites/zones), section 2.1.1.5. (Parks), section 2.1.1.6. (Urban ensembles) and section 2.1.1.7. (Surrounding zones). 755 See Canadian report, section 2.1.1. 753

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the Canada National Parks Act covering federal Crown land and national historic parks as well as on the Historic Sites and Monuments Act aiming at the designation and protection of nationally significant historic sites. Paterson points out that ‘[o]nce designated as an historic site, however, the place receives no other special protection . . . and its owner cannot be prosecuted for destroying it,’756 revealing a lack of penal provisions, which however can be usually found on a provincial level. Another difference between federal and provincial legislation can be found in relation to archaeological cultural heritage which is only protected by provincial laws, as heavy opposition from aboriginal groups concerning ownership issues and jurisdiction over Aboriginal archaeological resources is said to be the main reason for this development.757 Means of further strengthening the position of indigenous groups can be linked to the constitutional amendment of 1982, which—expressed in Section 35 (1) of the Canadian Constitution Act 1982—affirmed the recognition of ‘existing aboriginal and treaty rights’. This has led to various claims by aboriginal groups with respect to provincial legislation on immovable cultural heritage and might possibly contribute to a well-balanced system of protection and preservation in this field. The United States is another country with an important legislative framework on the involvement of indigenous groups and communities. The pertinent law, the Native American Graves Protection and Repatriation Act (NAGPRA) strengthens the position of indigenous groups and communities, who can also be owners of immovable cultural heritage, by granting ‘autonomy to recognized Native American and Native Hawaiian groups in the use and disposition of stipulated cultural material on their lands or otherwise within their authority.’758 The rules of the NAGPRA are to some extent supplemented by the practically rather weak American Indian Religious Freedom Act of 1978 (hereafter the ‘AIRFA’) which aims at inter alia protecting sites sacred to indigenous groups and communities.759 Generally, two of the most important national legal statutes are the National Historic Preservation Act (NHPA) and the Archaeological Resources Protection Act (ARPA). The first one introduces a well-known system including features such a national list of immovable cultural heritage, the National Register of Historic Places and financial aid in the form of tax benefits in order to partly recompense the private owner of immovable cultural heritage. The ARPA on the other hand can be considered as a practical advancement of the 1906 Antiquities Act, the oldest national legal statute regulating cultural heritage in the United States. It deals with the issue of archaeological resources and

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archeological excavations and thus combines the regimes of immovables and movables. The ARPA also introduces a special set of criteria for determining whether or not an object falls within its scope of application as it defines the term archaeological resources as ‘any material remains of past human life or activities which are of archaeological interest and are at least one-hundred years old.’760 The protection and preservation of immovable cultural heritage in Denmark is subject to a patchwork of legal statutes, which comprises national as well as local legislation. One of the pertinent main acts, the Act on Listed Buildings and Preservation of Buildings and Urban Environments761 (LBA) was enforced in 1979 and recently amended in 2007. The material scope of its application is relatively narrow as it only covers the protection and preservation of ‘buildings, building structures, parts of buildings and similar’, as well as ‘the immediate surroundings of buildings’762 under the basic idea that the buildings are ‘of special architectural, cultural heritage or environmental value’,763 including ‘buildings which illustrate housing, working, and production conditions and other significant characteristics of social development’.764 The decision whether or not an object falls under the application of the LBA is made by the Danish Heritage Agency based on a delegation order by the Minister of Culture. The owner of a respective object may comment on the intended declaration; the decision, however, does not need the owner’s consent and is made by the Heritage Agency in consultation with the Historic Building Council based on a set of precise, but still flexible, criteria which takes into account the age of the respective object as well as its importance for the Danish community. It distinguishes between three major groups: (1) automatic listing of buildings erected before 1536;765 (2) optional listing of buildings which are more than 50 years old and which are of special architectural, cultural heritage or environmental value;766 and (3) optional listing of buildings irrespective of their age on grounds of their outstanding value or other special circumstances.767 The criteria used in the second and third categories are not defined in detail, but open to a case-by-case decision process which may also take into account questions of authenticity and integrity known under the 1972 Convention regime. Classification under one of the three categories leads to an entry in a national register and causes various

760

United States report, section 2.1.1.1. Lov om bygningsfredning og bevaring af bygninger og bymiljøer. 762 Sections 2 and 3 (2) LBA; see also Danish report, section 2.1.1.1.1. 763 Section 1 (1) LBA; see also Danish report, section 2.1.1.1.1. 764 Section 1 (1) LBA; see also Danish report, section 2.1.1.1.1. 765 Section 4 (1) LBA. 766 Section 3 (1) LBA; Tamm and Østrup explain that until the amendment of 1997 ‘only buildings older than 100 years could be listed.’—see Danish report, note 34. 767 Section 3 (1) LBA. 761

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consequences for the owner, be it a public or private owner. The most drastic ones include the obligations to maintain the object in good condition and to ask for permissions in case he wants to modify or demolish the building. In exchange for the maintenance work, the owner has the right to tax exceptions. In order to guarantee the good maintenance the Heritage Agency might in extreme cases and subject to compensation payments expropriate the building from the owner. Danish legislation is however at the same time relatively owner-friendly, as, according to Tamm and Østrup, it does not include pre-emptive rights of the State if the owner wants to sell his property. In addition to the group of listed buildings which represent ‘the best or most characteristic of their type and period’768 being ‘of national, or in some cases international, significance’769 culturally interesting buildings might also just be declared as worth being preserved either on a municipal or—since 2001—also on a national level. The category of preservation-worthy, not listed objects can also include cultural/urban environments of buildings which individually may not qualify for being listed, but ‘as a whole possess . . . architectural quality.’770 Both groups, listed and not listed, yet preservation-worthy cultural objects, are subject to a protection and preservation regime which is stricter with regard to the first group due to the fact that it includes ‘the best or most characteristic of their type and period.’771 Churches—if still in use— are exempted from the scope of the LBA and are regulated by a set of special regulations of law, the Act on Church Buildings which asks for a strong involvement of the Church, via its Board of the Diocese in issues of protection and preservation of immovable cultural (Church) heritage and which can be seen as traces of granting rights to communities. Except for this, communities do not possess rights with respect to immovable cultural heritage. The scattered legal framework is further enriched by the Danish Museum Act (DaMuA). A part of Danish immovable (archaeological ) cultural heritage is formed by walls of stone and earth being the ‘witnesses of an earlier time’s use of land, propriety rights and administrative structures’772 which may be protected as ancient monuments under the DaMuA and in this case be subject to a protective regime including permissions for changes. Immovable archaeological items in general are protected and preserved by the DaMuA and supplemented by the Act on Protection of the Natural Environment, covering also the surroundings of archaeologically significant objects. Protected monuments and archaeological sites under the DaMuA are registered in the Register of Archaeological Heritage maintained by the Heritage Agency. The

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DaMuA covers various kinds of archaeological heritage including ‘traces of human activity, which has been left in older times, i.e., structures, constructions, groups of buildings, developed sites, moveable objects, monuments as well as their context.’773 Tamm and Østrup with reference to Christiansen and Koester stress that ‘it follows from tradition and practice that a site or monument must be at least 100 years old to be protected.’774 The main rationale of the protection is ‘to ensure that significant cultural heritage is safeguarded for posterity.’775 Finally, the Spatial Planning Act accomplishes the legal framework of immovable cultural heritage protection in Denmark, as it shows the importance of cultural heritage in relation to construction works, ranging from road planning to the creation of houses and other buildings. ‘Valuable buildings, urban environments and landscapes’776 must be taken into account when such a construction is planned, in order not to interfere with the protective and preserving tasks in relation to cultural heritage. The core of the modern Italian legislative framework for the protection of immovable cultural heritage, which dates back to 1861,777 is the Italian Code of Cultural Properties and Landscape (CCPL) which takes a similar integrative approach to the 1972 Convention. With regard to immovable cultural objects the CCPL does not only cover mere cultural objects, but also landscape-related properties of cultural significance, something which, according to Lenzerini, resembles to some extent the cultural landscapes under the 1972 Convention. Although immovable cultural heritage can be basically also owned by private parties, some categories (‘public goods’)778 including inter alia ‘immovables and areas of archaeological interest’779 or ‘immovables declared as national monuments’780 are only subject to state ownership, making it part of the cultural domain and making them res extra commercium.781 While those public goods are considered as immovable cultural heritage ex lege privately owned objects need to be designated by the Ministry for Cultural Goods and Cultural Activities on the initiative of the local Soprintendente (‘Superintendent’). Authenticity and integrity as known from the 1972 Convention may—and usually do—play an important role in the designation

773

Section 27 DMA; for further groups see Danish report, section 3. Danish report, section 3.1. with reference to O. Christiansen and V. Koester, ‘Beskyttelse af kulturmiljøet’ [Safeguarding of the Cultural Environment], in E.M. Basse, ed., Miljøretten. Bind 2—Arealanvendelse, natur- og kulturbeskyttelse [Environmental Law. Volume 2—Land Use and the Safeguarding of Nature and Culture], 2nd edn. (Copenhagen, Jurist- og Økonomforbundet 2006), pp. 463 et seq., at p. 518. 775 Danish report, section 3. 776 Sections 1 (2) and 1 (4) Danish Spatial Planning Act. 777 See Italian report, note 6. 778 Italian report, section 3. 779 Italian report, section 3. 780 Italian report, section 3. 781 For details see Italian report, section 3. or Article 54 CCPL. 774

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process, but are not absolutely necessary factors.782 In case a private property is classified as immovable cultural heritage, the owner’s rights are drastically cut and the owner’s role changes to the role of a ‘custodian,’783 being responsible for the protection of his property—supported by a well-structured system of ‘cultural sponsorship’,784 with further common limitations including authorization of changes, pre-emptive rights of the state as well as the state’s power to expropriate the property from the owner if this is ‘the only reliable measure for ensuring the proper safeguarding and public fruition of the relevant heritage’.785 Like in Denmark, the Church has a special status with regard to its cultural property. Its special rights are directly regulated within the framework of the CCPL which asks for conciliation agreements with respect to religious cultural heritage.786 The term immovable itself is not defined by the CCPL, but the general definition used in the Italian Civil Code is applied.787 The set of criteria used for the determination of an object’s cultural character is comparatively extensive, ensuring that a large number of possible objects can find protection under the CCPL.788 Italian law does not only distinguish between public goods and privately owned immovable cultural heritage and declare the first category to be ‘res extra commercium’, but it also expressively further declares the objects enlisted on the World Heritage List are in a special category of privileged protection.789 Due to its complicated distribution of competences the protection and preservation of immovable cultural heritage in Germany is regulated by decentralized legal statutes in the German states. In contrast to the other countries which have taken part in this study there is no federal authority with competences in relation to national immovable cultural heritage protection.790 Although the German states regulate this matter independently, one can see certain trends. Generally speaking one can distinguish between three big groups of immovables: (1) buildings, (2) (archaeological ) sites, and 782

See Italian report, section 3. Italian report, section 3. 784 Italian report, section 4.1. 785 Italian report, section 3. with reference to Assini and Cordini, op. cit. n. 672, at p. 125 et seq. 786 For details see Italian report, section 3. 787 According to Article 812 Italian Civil Code ‘the soil, springs, watercourses, trees, edifices and other buildings, even if linked to the soil on a transitory basis, as well as any other thing which—naturally or artificially—is anchored to the soil are immovable goods’—see Italian report, section 4.2. 788 For a listing of the criteria see Article 10 CCPL or Italian report, section 4.2. 789 See Italian report, section 4.2. and note 25 with reference to Article 1 Law 20 February 2006, No. 77 (Legge 20 febbraio 2006, n. 77—‘Misure speciali di tutela e fruizione dei siti italiani di interesse culturale, paesaggistico e ambientale, inseriti nella “lista del patrimonio mondiale”, posti sotto la tutela dell’UNESCO; Special Measures of Protection and Fruition of Italian Sites of Cultural, Landscape-Related and Environmental Interest, Inscribed on the “World Heritage List”, Placed under UNESCO Protection). 790 See German report, section 4.1. 783

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(3) landscapes (including cultural landscapes, but also including traces of natural heritage, thus taking an integrative approach as known from the 1972 Convention). The set of criteria used for the designation of prospective sites differs from state to state. Principles of uniqueness or authenticity are however to be found in several state statutes.791 With the exception of its patchwork of state legislation Germany’s legal framework does not depart from the ordinary legal protection system used in many other countries. The respective objects can be privately owned and are subject to various types of permission in cases of changes, to a notification and pre-emption system in cases of intended sale or expropriation rights subject to compensation payments. The owner, who is responsible for the protection of the immovable cultural property owned by him, has also the right to tax exemptions. As it is the normal case in European countries, there are no collective group rights or rights of communities with respect to immovable cultural heritage. It is however worth mentioning that Germany has a strong system consisting of three public and regional non-governmental protective institutions, which is reflected e.g. in the German state of Schleswig-Holstein with 61 private bodies (as of December 31, 2008) engaging and assisting in the process of immovable cultural heritage protection.792 Another interesting aspect, according to Siehr, is the fact that despite being a State Party to the 1972 Convention, Germany has not (yet) implemented that convention comprehensively, leading to various problems, especially with regard to Germany’s obligation to prevent German objects enlisted on the World Heritage List from threats to their protection.793 Like in Germany the protection and preservation of immovable cultural heritage is basically a decentralized matter in Switzerland and falls under the legal competences of the Swiss cantons. In contrast to Germany, Switzerland also has a (limited) legal framework on a federal basis, built on the 1966 Federal Nature and Cultural Heritage Protection Act (NCHPA) and supplemented by the Swiss Zoning Act and the Swiss Federal Act on Expropriation.794 The NCHPA, which was enacted six years before the 1972 Convention, shows a similarity to that convention as it includes both natural and cultural heritage, the latter one comprising monuments, heritage sites and archaeological sites. The NCHPA itself does not clearly define the term

791 Siehr refers to the state legislation of Sachsen-Anhalt to explain that e.g. the category of buildings is made up by buildings ‘if they qualify as unique, of artistic or craftsmanship quality, as exemplary, original, or as to be integrally preserved’—see German report, section 4.2. 792 For details see German report, section 3.1.3. 793 For details and the example of the Waldschlösschen-Brücke and the Elbe Valley in Dresden see German report, section 3.1.3. and note 27. 794 See Swiss report, section 2.1.2.1., section 2.1.2.1.1., section 2.1.2.1.2. and section 2.1.2.2.; Bundesgesetz vom 22. Juni 1979 über die Raumplanung (Raumplanungsgesetz, RPG) (SR 700) and Bundesgesetz vom 20. Juni 1930 über die Enteignung (EntG) (SR 711).

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cultural heritage and does not provide for a general set of criteria applicable to the designation of immovable cultural heritage, which can be either publicly or privately owned. It also does only cover the protection and preservation of a limited amount of immovable cultural heritage, as it regulates only objects of national importance to be registered in a Federal Inventory, whereas regionally or locally significant immovable cultural heritage is subject to cantonal legislation which provides for the registration on a cantonal basis. Although the term national importance is not explicitly defined by the NCHPA, Belser, Rüegg and Molinari with reference to Keller explain that a basic definition can be found in the explanatory report to the Swiss Inventory for Landscape and Natural Monuments of National Importance. According to that report a prospective object has to be ‘unique for Switzerland or typical for a part of the country.’795 The owner of a designated object has to care for its preservation, but is assisted by the competent authority and has the right to subsidies, as Articles 13 et seq. of the NCHPA stress the supportive federal role in relation to the protection and preservation of Swiss heritage. Immovable cultural heritage is comprehensively protected on a cantonal level and cantonal laws stipulate various limitations on property rights. Cantonal laws as well as the Federal Act on Expropriation include the possibility to expropriate property from private owners with full compensation in cases ‘in which the protection of immovable cultural heritage cannot be achieved by other means.’796 Private owners’ property rights are however not as restricted as under many other national frameworks, as neither the NCHPA nor the majority of cantonal laws know pre-emptive rights with regard to immovable cultural heritage. Rights and obligations connected to a designated immovable cultural object pass on to the purchaser of the object. Swiss law also tries to protect immovable cultural heritage by the means of spatial restrictions, as within the framework of the Swiss Zoning Act special protective zones may be designated around a protected object. It provides for various measures such as building bans and restrictions and allows cantons to introduce further protective regulations.797 The Spanish regime of immovable cultural heritage protection is even more complex. Due to a complicated distribution of competences between federal and provincial legislation and supported by a decision of the Spanish Constitutional Court dating from 1991798 the protection of immovable cultural heritage is regulated by not less than 18 major laws, 17 regional 795 Swiss report, section 2.1.2.1.1. with reference to Keller, et al., Kommentar NHG [Commentary on the Federal Act on Protection of Nature and Cultural Heritage], (Zurich, Schulthess 1997) at p. 194, para. 2. 796 Swiss report, section 2.2.3.; see also Swiss report, section 2.1.2.1.1. for the Federal Act on Expropriation. 797 See Swiss report, section 2.1.2.2. 798 See Spanish report, section 1.1.

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legal statutes and one state law, the Spanish Law on the Historical Heritage of Spain (LHHS).799 Although regulating the issue independently on a local level, the Spanish provinces, according to de Salas, are heavily influenced by the LHHS and do no not include ‘real innovations.’800 With regard to immovables, a group which is subdivided by the LHHS into the five categories of (1) monuments, (2) historic gardens, (3) historic agglomerations, (4) historic sites and (5) archaeological zones,801 the designation and registration in the General Register of Assets of Cultural Interest are usually carried out by a royal decree following recommendations of various advisory bodies802 and only in some minor cases allocated by law (‘ministerio legis’803). This system is however complicated by the fact that with the 1991 Spanish Constitutional Court decision804 the designation competences for a large number of (especially privately owned) immovable cultural heritage were practically transferred to the provinces which each apply individual sets of criteria in regard to both the subcategory of the prospective object as well as the pertinent provincial law itself.805 The LHHS as well as the provincial laws stipulate extensive obligations of the owner and limitations on his property rights once it is declared to be an immovable cultural object. The obligation to preserve the object (note: with the support of public financial aid) can also be found in the Spanish legal framework on a national and provincial basis as well as limitations by obligatory modification permits and pre-emptive rights of the state.806 It should also be noted that the LHHS provides the competent administrative body with expropriation rights applicable in cases where the private owner does not fulfill his maintenance tasks if expropriation is necessary due to social interest.807 Further expropriation options can be found in special regulations of the 1954 Law about Compulsory Expropriation (hereafter the ‘SLCE’).808 As mentioned before, Japan takes a integrative approach by combining the protection of various forms of cultural heritage, immovables and movables, tangibles and intangibles in a single legal statute, the Japanese Law for the Protection of Cultural Properties of 1950 (LPCP).809 Immovable cultural her-

799

See Spanish report, section 1.1. Spanish report, section 1.1. 801 Article 15 LHHS. 802 See Spanish report, section 3.1.1. 803 Spanish report, section 2.1.1. and section 3.1.1. 804 See supra note 798. 805 For the example of special provisions of law and their sets of criteria for the designation of immovable cultural heritage in the Spanish province Aragon see Spanish report, section 3.1.1. 806 See Spanish report, section 3.1.4. 807 See Article 36 (4) LHHS and Spanish report, section 3.1.3.1. 808 Articles 76 to 84 SLCE—see Spanish report, section 3.1.3.1. 809 See supra II.1.1.2.1. 800

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itage is regulated extensively in that law, comprising the major classifications later used in the 1972 Convention,810 also—and already in 1950—including the integrative group of cultural landscapes and giving rich examples for each of the groups.811 Within the various groups one can basically find two special levels of value, important (with the further subcategory of national treasures) and registered812 tangible cultural properties, granting prime protection to the first one. While pursuant to Article 37 of the LPCP the competent authority, the Commissioner of the Agency for Cultural Affairs, can for example issue a repair order addressed at the private owner of cultural objects belonging to the subgroup of national treasures, owners of other cultural objects are—at most—only potential addressees of mere recommendations. With regard to the 1972 Convention it should be stressed that in order to find its way to the tentative list and subsequently to the World Heritage List, the respective object also needs to be designated as immovable cultural heritage on a national level.813 Like in most other countries the Minster of Culture, who—in the case of Japan—is also responsible for matters related to education, sports, science and technology, is the competent authority for declaring that an object, be it public or privately owned, forms part of the national immovable cultural heritage. He is also assisted by a consultation body, the Council for Cultural Affairs, whose recommendations—though not binding—form the basis for the Minister’s decision.814 As a particularity of the Japanese designation process the owner’s consent to a prospective designation is—though not mandatory by law—always obtained by the decision-making authority. The set of criteria used for the designation differs from category to category, is usually broad and includes several aspects of value related to e.g. history, art, technology or representation of characteristic importance.815 The consequences of designation for the owner include several property rights restrictions, such as various preservation obligations as well as limitations due to the need to ask for permissions of intended modifications of privately-owned cultural property or pre-emptive rights regarding important cultural objects. The LPCP itself does not provide for protective zones around designated objects which could be compared to the buffer zones under the 1972 Convention. Such protective zones can nevertheless be found in the Japanese framework, regulated by various other laws.816 It should also be noted that—although no extensive rights in relation to immovable cultural heritage are granted to

810

See supra I.4.2. See Article 2 LPCP and Japanese report, section 2.1. 812 See e.g. Chapter III of the English translation of the LPCP available online at http:// www.wipo.int/tk/en//laws/pdf/japan_cultural.pdf (last visited on December 31, 2008). 813 See Japanese report, section 3.1.1. 814 See Japanese report, section 3.1.1. 815 For details on the various sets of criteria see Japanese report, section 3.1.2.2.1. 816 See Japanese report, section 5. 811

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communities or groups under Japanese law—protective rights and obligations can be granted to ‘associations’817 if the ‘owner (note: of the respective object) is unknown’818 Like the Japanese framework the Taiwanese legal system chose an integrative approach, regulating various forms of cultural heritage in one major legal statute, the Cultural Heritage Preservation Act of 1982 (TCHPA). Three of seven groups of cultural heritage listed in Paragraph 3 of the TCHPA fall under the category of immovable cultural heritage: (1) historic sites, buildings and gathering habitations which were built for the human being’s demand of daily life with historic and cultural value; (2) archaeological sites which contain historic objects, sites and places of the human being’s former life with historic and cultural significance; and (3) cultural vistas which form the place and coherent environment of fairy tale, legend, event, historic happenings, gathering life or ceremony.819 Designation of a prospective object, be it publicly or privately owned, falls under the competences of the Council for Cultural Affairs, which makes its decision—not necessarily with the consent of the object’s owner—based on a comprehensive set of criteria set forth by Article 2 of the Rule for Designation of Cultural Heritage and Abolishment of Review, supplementary to the TCHPA and—though not binding—practically functioning as a guideline in the designation process. Unlike some European systems outlined above it does not stipulate a certain time limit, but encompasses various alternative aspects such as historic or artistic values, rarity, technology or significance.820 In addition to this centralized process, local and municipal governments can also declare objects to be immovable cultural heritage, under condition of its local or municipal importance.821 Once designated, immovable cultural heritage is registered and subject to extensive protection means outlined by Paragraph 20 of the TCHPA. The owner of the respective immovable cultural object, who is basically responsible for its protection and preservation, can get financial support and tax benefits. Costs for the protection and preservation can however also be imposed on him if he is not willing to care for the immovable cultural property owned by him. The owner is further restricted in his property rights as he cannot freely sell a designated object, but has to inform the competent authority in case of an intended sale providing for a pre-emptive right of the authority.822 The Mexican legal framework for the protection and preservation of immovable cultural heritage is based on its core law, the 1972 Federal Law

817 818 819 820 821 822

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on Archaeological, Historic and Artistic Monuments and Zones (LAHA), supplemented by the General National Ownership Act (MGNOA) providing for provisions on state owned objects, including cultural heritage objects. It should be pointed out that the LAHA only regulates the protection and preservation of national cultural heritage, with local forms of cultural heritage protected by decentralized legal statutes on a state level.823 The LAHA distinguishes between three groups of cultural heritage, all of them including immovables as well as movables: (1) archaeological monuments and zones, (2) historic monuments and zones, and (3) artistic monuments and zones, and provides for examples which also function as applicable criteria for the determination of cultural heritage.824 The date of the establishment of Hispanic culture in Mexico is not only important for the differentiation between archaeological and historic monuments and zones with objects created before the establishment of the Hispanic culture in Mexico falling under the first category of archaeological monuments and zones and post-establishment objects belonging to the second category,825 but also for the question of who might possibly be the owner of a respective immovable cultural object. Archaeological monuments and zones, according to Sánchez Cordero, ‘are considered to be under national ownership and this situation can not be challenged in court,’826 whereas e.g. historic monuments and zones are state owned if decided by the LAHA, but in other cases also subject to possible private ownership.827 Depending on the classification of the respective immovable cultural object it is either recognized as being part of the Mexican cultural heritage ex lege, as it is the case with archaeological monuments or some certain historic monuments,828 or designated by the either the Mexican President, in cases of public, not ex lege recognized objects, or the Ministry of Public Education, in cases of private artistic or historic, not ex lege recognized objects. The competent authority is supported by one of its two assisting special institutions, the National Institute of Anthropology and History (hereafter the ‘INAH’), which makes proposals for the declaration of archaeological zones and historic monuments or zones, and the National

823 See e.g. Mexican report, section 3.3.2.5.1. and section 3.3.2.5.5., mentioning national (cultural) heritage. 824 The concepts of authenticity and integrity as known from the framework of the 1972 Convention (still ) do not play a role in the national designation process—see Mexican report, section 3.3.2.5.6. 825 See also Mexican report, section 4., where Sánchez Cordero indirectly stresses the importance of pre- and-post Columbian establishment periods for the classification of cultural heritage. 826 Mexican report, section 3.3.2.5.4. 827 See Mexican report, section 3.3.2.5.4. 828 See Article 36 LAHA, pursuant to which historic monuments created after the 16th up to the 19th century are ex lege recognized as immovable cultural heritage if they are dedicated to religious, educational, military, civil or governmental activities.

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Institute of Fine Arts (hereafter the ‘INBA’), which is responsible for artistic monuments and zones. Once designated as immovable cultural heritage or recognized ex lege by the LAHA, immovable cultural heritage objects are usually enlisted on (at least) one of three registers: the Public Federal Register under the regime of the MGNOA, the Public Register of Archeological and Historical Monuments and Zones or the Public Register of Artistic Monuments and Zones, both under the regime of the LAHA. Although the Mexican legislation imposes various restrictions and obligations on the owner of an immovable cultural object, especially with regard to the protection and preservation of an object such as the obligation to obtain a permit for modifications of the object, the LAHA provides for neither (direct) expropriation829 nor pre-emptive rights. No special features can be found in the Tunisian legal framework with relation to the protection and preservation of immovable cultural heritage except for the fact that some categories of immovable cultural heritage need a consensus of two different ministries for the designation. The categories of cultural sites—which also include archaeological sites—and traditional historic ensembles—also comprising whole towns and villages—are designated by the Ministry of Culture and Safeguarding of Heritage and the Ministry of Urbanization in a joint decision if the respective object is of either national or universal value, assessed by the alternative criteria of history, aesthetics, art and tradition.830 The third category of immovable cultural heritage covered by the 1994 Code of Archaeological and Historical Heritage and Traditional Arts (CAHH), the group of historical monuments, is designated only by the Ministry of Culture and Safeguarding of Heritage based on the same set of criteria. Once designated the public or private owner of the object faces severe limitations, similar to those already mentioned in the context of other national frameworks: in addition to financially subsidized protective obligations he needs authorization for modifications of his immovable cultural property. Also the sale of such a property is restricted as the state may make use of its pre-emptive rights. Groups and communities are principally not granted direct property rights in relation to an immovable cultural object, but may ‘contribute to its safeguarding’.831 In comparison to many of the national legal frameworks in the field of immovable cultural heritage protection discussed above the Dutch system shows a couple of differences with regard to the position of the owner of an immovable cultural object which can be explained by the underlying rationale of the cultural heritage concept in the Netherlands.832 The minister of Edu-

829 830 831 832

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cation, Culture and Science as competent authority designates prospective immovable objects as forming part of the Dutch cultural heritage based on the regulations of the core law, the Dutch Monuments Act of 1988 (DuMoA). Protected immovables are subdivided into various groups: monuments, sites holding archaeological monuments and city and village views, each of them containing one level of value, not distinguishing between “important” and “very important”, a concept which is used by many other countries. The second group, archaeological monuments, also comprises movables as long as they are ‘in the ground’.833 Unlike under the 1972 Convention the DuMoA does not know the concept of cultural landscapes, but takes a rather nonintegrative approach. Lubina, however,—with reference to the Dutch National Service for Archaeology, Cultural Landscape and Built Heritage (RACM), an authority to which the competent Minister mandated various tasks in relation to the protection of immovable cultural heritage—points out that the ‘protection of cultural landscapes is currently in development.’834 Designated objects are enlisted on the Dutch “Monuments Register”835 and the owner’s consent is as usual not necessary for the decision. He has however the right to appeal against the designation of his property. Each of the three categories of immovable cultural heritage is subject to a different set of criteria. The basic set of criteria with reference to the predominant group, the category of monuments, is outlined in Article 1 (b) sub 1 of the DuMoA: Monuments are ‘objects that have been created at least fifty years ago and that are of public interest due to their beauty, their scientific/academic relevance or to their cultural-historical value’. In contrast to Denmark the Netherlands follows a strict age limit which is, however, half of its Danish pendant with 50 compared to 100 years. The vague qualitative factors are further defined on a case law level which has led to a large number of individual characteristics.836 The designation process is to some extent influenced by the framework of the 1972 Convention, as the criterion of authenticity—in contrast to integrity—has gained importance on a case law level. Sites holding archaeological monuments as well as city and village views are subject to the application of different sets of criteria,837 but both have in common the fact that ‘they are granted protection by virtue of containing at least one monument’.838 While city and village views must contain at least one protected monument, sites holding archaeological monuments must potentially contain a respective monument, which has yet to be excavated. When it comes to the rights

833 834 835 836 837 838

Dutch report, section 2.5. Dutch report, section 3.1.1. Monumentenregister; see Dutch report, section 3.1.1. See Dutch report, section 3.1.2. See Dutch report, section 3.1.2. Dutch report, section 3.1.2. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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and obligations of private owners of immovable cultural property one can see various particularities. What the Dutch system has in common with the majority of other national systems is the fact that the owner basically needs permission for modifications of his privately owned immovable cultural property. The Dutch System does not, however, provide the state with any pre-emptive or expropriation rights nor does it stipulate a ‘positive duty on the owner to maintain a designated monument.’839 Those differences may be explained with the fact that ownership is declared by Article 5:1 of the Dutch Civil Code to be the ‘most comprehensive right which a person can have in a thing’, and that its limitations are subject to a strict system of balancing private and public interests and demonstrating high respect for private ownership. The strong position is further reflected in the fact that the owner is entitled to compensation payments if his application request for demolishing a declared monument owned by him is denied. If the owner is willing to maintain the status quo of a designated monument owned by him he has the right to financial support. With respect to group and community rights one can say that the Netherlands follows the trend to be found also throughout other European national systems not to grant extensive rights to communities and groups. Only groups which are legal entities have rights to some extent, as they may appeal against a designation decision if they either have a right in rem or due to a possible ‘general and collective interests which they particularly represent in accordance with their objects and as evidenced by their actual activities.’840 New Zealand is another example of a country which in comparison with most of the above-discussed countries shows some special features in the field of immovable cultural heritage protection. The core main law, the Historic Places Act 1993 (hereafter the ‘HPA’) which is supplemented by the Resource Management Act 1991 regulating ‘the use of land, air and water resources’841 and including ‘explicit protection for historic heritage’,842 divides immovable cultural heritage into the groups of archaeological sites, historic places (note: also covering single monuments), historic areas, wāhi tapu843 and wāhi tapu areas. Whereas the first three categories are to be found in most other national systems as well, the last two categories were specifically created under New Zealand law to protect sites sacred to Māori. By doing this the New Zealand legal framework not only respects the rights of Māori as Māori land is ‘owned communally [. . .] by definition’,844 but it also

839 840 841 842 843 844

Dutch report, section 3.1.3. Dutch report, section 3.1.5. New Zealand report, section 1.3.2. New Zealand report, section 1.3.2. For a definition see supra II.1.1.2.2. New Zealand report, section 2.1.4. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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chooses a very integrative approach as the intangible spiritual dimension plays a decisive role in the designation of Māori owned objects as protected immovable cultural property under the HPA.845 New Zealand law knows different forms of protecting objects as immovable cultural heritage. It can be done automatically by the means of registration in the Rarangi Taonga, a register maintained by the Historic Places Trust, the competent authority in the area of immovable cultural heritage protection and preservation. It can also be done by the imposition of heritage orders or by heritage covenants negotiated by the Historic Places Trust and the owner of the respective object. In general the designation system and the following protective regime are quite diverse depending on the category under which a prospective object falls. With respect to archaeological sites an age limit is applied as additional requirement to criteria related to expressions of human activity or history, whereas the other categories are subject to a large number of alternative criteria also including various ranks and expressions of intangible factors.846 Yet, according to Myburgh, including factors of authenticity and integrity do not play a decisive role in the designation process.847 The owner of an immovable cultural property, be it a public, private or communitybased owner, is basically responsible for the protection of the object. He gets financial and practical support by e.g. Lotteries Board funding and Historic Places Trust experts.848 Depending on the classification of the object used modifications of the object can, but do not necessarily have to be, subject to the obtaining of permission.849 New Zealand law also prescribes for the possibility of expropriation under the conditions of a set of special regulations of law, the Public Works Act 1981.850 At the same time New Zealand law also protects the interests of private owners as immovable cultural heritage—if not prohibited by heritage orders or heritage covenants—may be freely sold. The new owner is, however, bound by the same restrictions and conditions as the former owner. It should also be noted that New Zealand adopted a ranking system dividing registered immovable cultural heritage into two categories. However, categorization does not cause any special obligations, but only leads to higher penal fines under the HPA. 2.1.3. Conclusion As of December 31, 2008 roughly 900 immovable properties, including approximately 700 cultural and 25 properties of mixed cultural and natural

845 846 847 848 849 850

For details see supra II.1.2.2. or New Zealand report, section 3.1.1. See New Zealand report, section 2.1.2. See New Zealand report, section 2.1.2. See New Zealand report, section 2.1.4. For details see New Zealand report, section 2.1.5. For details see New Zealand report, section 2.1.5. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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character are inscribed on the World Heritage List under the 1972 Convention.851 The total number of immovable cultural heritage on a national basis (including regional and local forms) surely reaches many times that number. While the States Parties to the 1972 Convention are obliged to report on their respective implementation steps with regard to the 1972 Convention on a periodic basis,852 it is also interesting to see how various countries regulate the protection of immovable cultural heritage located on their territory on a more comprehensive level, including not only objects on the World Heritage List, but also other forms of immovable cultural heritage. Parallels and reciprocal influences between national legislations and the 1972 Convention can be found. As far as the practical implementation of the 1972 Convention is concerned, Francioni points out that the combined system of national and international legal tools must strike a balance as the 1972 Convention ‘restates full respect for state sovereignty and for private property rights provided by national legislation over the sites and objects to be protected under the [1972] Convention. This is understandable, since the commitment to a system of cooperation to safeguard heritage of international significance does not detract from the fact that such heritage consists normally of immovable objects placed under the sovereignty of the territorial state and under the ownership title of a private or public person.’853 Striking balances between various, sometimes opposing, interests and legal competences is however not only of importance for the protection of cultural heritage on an international basis, but also in cases without international points of contact, be it with regard to the relationship between centralized and local legislation, the relationship between the state and the private owner or the issue of involving groups and communities in the concept of cultural heritage protection. Conclusions of how national systems solve those issues, sometimes influenced by international tools, sometimes as result of an internal evolution, can be drawn from the outline given above as well as from the respective national reports. Like under the 1972 Convention with its World Heritage List, immovable cultural objects are usually also inscribed on national, regional or local lists. Entries on the latter lists depend on the one hand on the distribution

851 For the exact numbers and the complete list see http://whc.unesco.org/en/list/ (last visited on December 31, 2008); for details on the 1972 Convention see supra I.4 or F. Francioni and F. Lenzerini, eds., The 1972 World Heritage Convention—A Commentary (Oxford, Oxford University Press 2008). 852 See Article 29 1972 Convention and Paragraphs 199 to 210 WHC Operational Guidelines; the reports can be found online at http://whc.unesco.org/en/periodicreporting/ (last visited on December 31, 2008). 853 Francioni 2008 ‘Preamble’, loc. cit. n. 213, at p. 5.

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of competences in the field of immovable cultural heritage protection,854 and on the other hand (also) on the importance of the respective object for the whole nation or just a part of it.855 With the exception of a few countries, such as the Netherlands,856 those internal lists form the basis for the national selection of cultural objects to be put on the national tentative lists and to be recommended for inclusion on the Word Heritage List. Many countries with a strong position of the central state legislation, such as e.g. Croatia, France or the Czech Republic, distinguish between various, usually two, levels of protected immovable cultural objects, allowing for privileged, stricter protective means of the higher ranked objects. Within the groups of nationally listed objects some countries also explicitly focus on the protection of immovable cultural objects also inscribed on the World Heritage List. Italy, for example, based on Article 2 Law No. 77 of 20 February 2006857 recognizes that any project which has the purpose of protecting and restoring the national properties inscribed on the World Heritage List will be considered as more important than any other similar project concerning other cultural or natural heritage and thus enjoy prime treatment.858 This national regulation is an example of a national implementation step, as Article 4 of the 1972 Convention, which stipulates that a state has an obligation to provide for the safeguarding of protected objects, had not been comprehensively implemented before.859 The integrative approach of the 1972 Convention, which combines cultural and natural aspects in the concept of cultural landscapes representing the ‘combined works of nature and man,’860 has, since 1992, been followed by several countries. These include, for example, the recent amendment in 2005 of the Japanese Law for the Protection of Cultural Properties of 1950. The concepts introduced by the Swiss Federal Nature and Cultural Heritage Protection Act of 1966, such as natural sceneries (heimatliches Landschaftsbild) or heritage sites (heimatliche Ortsbilder) seem to be similar to this new concept.

854 See e.g. the German system with its lists primarily on a decentralized state level due to the state competences in this area—supra II.2.1.2. and German report, section 3.1.3. 855 See e.g. the Swiss system which distinguishes between national importance and local/ cantonal importance—supra II.2.1.2. and Swiss report, section 2.1.2.1.1. 856 See Dutch periodic report of 2005 on the implementation status of the 1972 Convention submitted to the World Heritage Center (summary), p. 1—available online at http://whc .unesco.org/archive/periodicreporting/EUR/cycle01/section1/nl-summary-en.pdf (last visited on December 31, 2008). 857 See supra note 789. 858 F. Lenzerini, Law No. 77 of 20 February 2006 (GU No. 58 of 10 March 2006). Special measures for the protection and fruition of Italian sites of cultural, landscape-related and natural interest, inscribed in the World Heritage List, placed under UNESCO’s protection’, 16 Italian Yearbook of International Law (2006) p. 395 at p. 395. 859 See Lenzerini 2006, loc. cit. n. 858, at p. 396. 860 Paragraph 47 WHC Operational Guidelines and supra I.4.2.

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Immovable cultural heritage can be usually subdivided into various categories. The three big groups of the 1972 Convention: monuments, groups of buildings and sites, are however the least common denominator and can be found in most countries. Prospective immovable cultural objects, which can principally, but not under every national legislation to the full extent,861 also be privately owned, are usually subject to a designation process carried out by the responsible authority, be it a centralized or local one, with the assistance of one or more advisory bodies. The sets of criteria used by the respective authority differ from country to country, but include in principle as a minimum the factors of history and art862 with other national sets of criteria being more progressive and including other factors as well, such as e.g. scientific value863 or intangible and/or community related issues.864 As far as the designation itself is concerned, the private owner of an object has only limited rights, usually the right to appeal against the decision of the authority.865 With the exception of Japan, which in practice requires the consent of the private owner, national designations can be done against the owner’s will. Striking a balance between the owner’s interest and the interest of the state and/or the public is a delicate issue in all national systems. Some national concepts strongly favor the interests of latter while others try to leave the private owner’s position as untouched as possible. The basic model to be found in the majority of the countries which took part in the underlying study imposes far reaching restrictions on the owner’s property rights, including the obligation to maintain the status quo of the owner’s property and to ask for permission in case of planned modifications. The supervising state position is further usually guaranteed by pre-emption and expropriation rights. Both of these give the state the chance to ensure the protected status quo by acquiring an immovable cultural object, either due to national/regional interest or—with regard to expropriation rights—if it is the only way to guarantee its protection. While expropriation rights are common in most jurisdictions, some major cultural heritage jurisdictions, such as Switzerland, New Zealand or Denmark, oppose the idea of installing pre-emption rights and instead stipulate that the rights and obligations pass on to the new owner.866 On the other hand, the Netherlands installed a much more owner-friendly 861 See e.g. Mexican report, section 3.3.2.5.4., referring to archaeological monuments under the 1972 Federal Law on Archaeological, Historic and Artistic Monuments and Zones (LAHA). 862 See e.g. French report, section 2.1.1.1.1. with reference to Article L. 621–1 CCH; see also supra II.2.1.2. 863 See e.g. Article 2 (2) lit 1 CHA or Article 1 (b) sub 1 DMoA and supra II.2.1.2. 864 See e.g. the New Zealand concept with its protection of wāhi tapu and wāhi tapu areas and the respect of Māori related issues—see e.g. supra II.2.1.2. 865 See e.g. Danish report, section 2.1.1.1.2. or Croatian report, section 2.1. 866 See supra II.2.1.2.

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system. Neither does it provide the state with pre-emption or expropriation rights nor does it mandate the private owner to actively protect the immovable cultural object owned by him.867 It does however—and this can be found elsewhere in most other national legislations, too—financially support the private owner in case he carries out protective tasks. Financial support on a national basis can take various forms, usually as a right to tax exemption, but in various cases also in a more active way by state funding.868 Not only the rights of the immediate owner, but also the rights of (potential) owners in the neighborhood can be affected by the designation of an immovable cultural object due to possible building restriction. It should however be noted that buffer zones in terms of Paragraphs 103 and 104 of the WHC Operational Guidelines869 are not a common concept within the framework of several national cultural heritage laws. In various countries, such as Japan, Denmark or Germany comparable effects are caused by construction laws. Although Article 45 of the CCPL ‘does not constitute a measure of implementation [of the buffer zone]’,870 Lenzerini points out that its concept, ‘prescriptions of indirect protection’,871 ‘may be compared to the ‘buffer zones’ as known in the practice of the 1972 World Heritage’,872 installing a flexible system, allowing for the imposition of building restrictions on a case-by-case basis. Public awareness-raising according to Article 27 (1) of the 1972 Convention873 can also take various forms. Japan is an example of a very active country, having launched various campaigns, including television documentary programs, publications of annual information by national UNESCO groups or the printing of various postage stamps.874 Italy, again in its Law No. 77 of 20 February 2006, this time however in Article 4, implements the state duty by for example providing for governmental support for visiting trips of school classes to cultural properties and cultural activities in schools.875 When it comes to the question of group and/or community involvement in the field of immovable tangible heritage it must be noted that in most

867

See supra II.2.1.2. E.g. in the Czech Republic or in Canada—see supra II.2.1.2. 869 For details see supra I.4.3. 870 Italian report, section 4.1. 871 Italian report, section 4.1. with reference to Article 45 CCPL. 872 Italian report, section 4.1. 873 Article 27 (1) 1972 Convention: ‘The States Parties to this Convention shall endeavour by all appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect by their peoples of the cultural and natural heritage defined in Article 1 and 2 of the Convention’. 874 See Japanese periodic report of 2005 on the implementation status of the 1972 Convention submitted to the World Heritage Center (summary), p. 2—available online at http://whc .unesco.org/archive/periodicreporting/APA/cycle01/section1/jp.pdf (last visited on December 31, 2008). 875 See Lenzerini 2006, loc. cit. n. 858, at p. 396. 868

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countries the position of (indigenous) groups and communities are very limited, as due to their lack of legal capacity in relation to property rights they are not actively involved, neither as holders of property rights nor as addressee of protective measures. Exceptions can be found e.g. in New Zealand, where two important groups of protected immovable heritage can also be community owned: wāhi tapu and wāhi tapu areas, thus leading to a communityintegrative approach even in relation to tangible cultural heritage.876 Also the United States provides for a comprehensive integration of indigenous groups and communities in the area of immovable cultural heritage protection, as the core law, the Native American Graves Protection and Repatriation Act grants extensive and exclusive rights to native groups, including communal property and administrative rights.877 2.2. Movable Tangible Cultural Heritage 2.2.1. General Issues With the exception of underwater cultural heritage protected by the 2001 Convention and tangible cultural heritage protected by the 1954 Convention and its Second Protocol the international legal framework for the protection of movable tangible cultural heritage differs considerably from the international regime for immovable cultural heritage built upon the 1972 Convention. As far as movable tangible cultural heritage is concerned, one will look for an international list of World Heritage comparable the 1972 World Heritage List in vain. The main international interest in protecting movable forms is not put on the safeguarding of exceptional items of outstanding universal value, but rather on the fight against illicit import, export and transfer of ownership of cultural property as one ‘of the main causes of the impoverishment of the cultural heritage of the countries of origin’878 including questions related to its return,879 supplemented by a framework for the ‘restitution of stolen cultural objects.’880 These issues, or at least some of their aspects are covered by various international legal tools outlined in Part I of this report: the First Protocol to the 1954 Convention,881 the 1970 Convention882 and the 1995 UNIDROIT Convention.883

876 See supra II.2.1.2. for details; for the relation to intangible cultural heritage see infra II.3.2.4. 877 See supra II.2.1.2. and United States report, section 2.1.1.2. 878 Article 2 (1) 1970 Convention. 879 See Article 7 (b) (ii) 1970 Convention and Article 1 (b) 1995 UNIDROIT Convention. 880 Article 1 (a) 1995 UNIDROIT Convention. 881 For details see supra I.2.2. 882 For details see supra I.3. 883 For details see supra I.5.

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National legislative frameworks for the protection of movable tangible cultural heritage do also address the just mentioned issues, sometimes in conformity and with rather close links to the international specifications, in other cases independently. It has to be noted that in this context the issue of private property rights plays an important role, as the national systems have to give their preferences to either strict protective regimes in accordance with the international agreements or to refraining from limiting private property rights too much. Different approaches taken by the countries outlined in the following subchapter will explain this interrelationship. On the other hand, national legal concepts go beyond the international framework and in various cases also deal with other important questions, including the issues of general protection of movable tangible cultural heritage, rules also applicable to national cases of transfer of ownership without international points of contact, the law of finds or the role of groups and communities. The following will shortly reflect the national concepts. 2.2.2. General National Legal System with Regard to the Protection and Preservation of Movable Tangible Cultural Heritage The protection and preservation of movable tangible cultural heritage under Croatian law is basically regulated by one of the most comprehensive national legal statutes in the field of cultural heritage,884 the 1999 Croatian Cultural Heritage Act (CHA). Article 8 of the CHA defines the term movable tangible cultural heritage by giving various examples of respective objects ranging inter alia from museum collections to church objects, from archaeological finds to pieces of art.885 The designation process of movable tangible cultural heritage leading to its registration in the Register of the Cultural Heritage of the Republic of Croatia886 is the same as with regard to immovable cultural heritage and is also based on the same set of criteria.887 A statute of special regulations of law dealing with one category of movable tangible cultural heritage is the Croatian Museums Act of 1998888 regulating ‘museum activities and keeping museum material.’889 In this context it should also be noted that, according to Gliha and Josipović, Croatian museums also apply the ICOM Code of Ethics.890 Special norms are to be found in the Croatian Ownership Act with regard to treasure troves. Found treasure must be handed over to the Republic of Croatia which becomes the owner of such an object,

884 885 886 887 888 889 890

See supra II.1.1.2.1. For the complete list see either Article 8 CHA or Croatian report, section 2.2. See Croatian report, section 1. For details see supra II.2.1.2. or Croatian report, section 2.2. Zakon o muzejima. For details see Croatian report, section 2.2. See Croatian report, note 57. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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but in return has to pay an award up to 10% of the market value to the finder as well as to the owner of the land where the object is found. The finder and the land owner can however—subject to a state option—become co-owners instead of the Croatian Republic. With regard to privately owned movable tangible cultural heritage restrictions go beyond the also applicable restrictions immovable cultural heritage and include the obligation to make the object available for exhibiting purposes or limitations of export. Basically, movable tangible cultural heritage cannot be exported. There are only exceptions for temporary exports in certain cases, such as exhibitions, but then again only with the prior approval of the state,891 while permanent exports are basically prohibited. The purchase of stolen movable tangible cultural objects is—under the general regime of the Croatian Ownership Act applicable to movables—not possible, if the claimant can prove both that the object was stolen and that the purchaser was not bona fide, meaning that the purchaser knew or could have known that he/she was acquiring possession of a (stolen) movable from a person who was not its owner. The filing of claims is facilitated due to the fact that they are not subject to time limitations.892 In addition to the direct applicability of the 1995 UNIDROIT Convention and the possibility to conclude further bi- or multilateral agreements, other legal regulations can be found which are aimed at the return of stolen or illegally imported/exported movable tangible cultural objects. These include Articles 70a et seq. of the CHA transforming the European Council Directive 93/7/ EEC into national law, applicable in relation to other EU Member States or states belonging to the European Economic Area.893 Parallel regulations to the Croatian legal system on movable tangible cultural heritage can be found in the Czech Republic which also combines regulations on immovable and movable tangible cultural heritage in a single major law, the Law on the State Care of Cultural Heritage (LSCCH) of 1987. The designation process and listing of movable tangible cultural heritage in the Centralized List of Cultural Heritage of the Czech Republic is the same as in the case of immovable cultural heritage, also using the same set of criteria. Resemblance can also—to some extent—be found with regard to the law of finds of archaeological movable cultural heritage, whose regulations are however included in the LSCCH itself. The finder does not become owner, but has the right to an award up to 10% of the market value. In contrast to Croatia, the region in which the object was found, not the state, acquires automatic ownership. However, the Ministry of Culture may intervene and declare the object as being part of the national cultural heritage, transferring

891 892 893

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the ownership rights to the state.894 In addition to the LSCCH, the Czech system complements its protection and preservation regime by various special regulations of law. For example, the Law on the Protection of Museum Collections stipulates further rules and introduces a list of museum collections, the Central List of Collections (Centrální evidence sbírek), maintained centrally by the Ministry of Culture.895 Further restrictions of privately owned movable tangible cultural property can be found in the LSCCH, e.g. the obligation ‘to lend it temporarily to a specialized organization for the purpose of research or exhibition’896 or limitations with regard to the—limited—export which requires the prior approval by the Ministry of Culture pursuant to Section 20 of the LSCCH.897 For the export of objects on the list of museum collections (note: which is only possible on a temporary basis under the pertinent set of special regulations of law), the Law on the Protection of Museum Collections stipulates the requirement of an export license (note: again to be published by the Ministry of Culture) which is only granted if ‘there are sufficient legal guarantees of its return to the Czech Republic’.898 Like Croatia the Czech Republic as member of the EU implemented the European Council Directive 93/7/EEC by its Law on the Sale and Export of Objects of Cultural Value (hereafter the ‘LSEOCV’), which also contains special rules applicable in relation to non-EU Member States. As the Czech Republic is not (yet) a Member State to the 1995 UNIDROIT Convention, the LSEOCV is of high importance in the field of restitution. Like Croatia and the Czech Republic, Italy combines both main forms of tangible cultural heritage, movables and immovables, in a single law, the Code of Cultural Properties and Landscape (CCPL). Being a Member State to most of the pertinent Conventions outlined in Part I of this report899 the CCPL provides for a quite comprehensive and strict—but as we will see later, in relation to the 1970 Convention not perfect—protection and preservation regime also with regard to movable cultural heritage. The basic system of cultural heritage already touched upon in the context of immovable cultural heritage900 with its division into public and privately owned heritage and the declaration system with regard to the latter one is also applicable to movable tangible cultural heritage. In addition to that one can find several special rules applicable to movables, including rules on matters of export, bona fide purchase and restitution. The strict approach taken by Italy, also comprising pre-emption and expropriation rights, reflects, according to Lenzerini, 894 895 896 897 898 899 900

For details see Czech report, section 2.2. See Czech report, section 2.2. Czech report, section 2.2. See also Czech report, section 2.2. Czech report, section 2.2. See infra table for details. See supra II.2.1.2. and Italian report, section 3. and section 4.3. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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‘the will of preserving the integrity and cohesion of national heritage, as its loss is considered to be a harmful impoverishment of the national identity.’901 Definitive export of public movable cultural heritage or privately owned declared902 movable cultural properties is absolutely forbidden pursuant to Article 65 of the CCPL. Other categories of movable tangible cultural heritage need authorization by the competent authority, the export offices under the authority of the Ministry for Cultural Goods and Cultural Activities, in order to be exported from Italy. Pursuant to Article 66 of the CCPL authorization is also needed for the temporary export of objects listed under Article 65 of the CCPL. Various cases of absolute export prohibition are also stipulated.903 The issue of restitution is closely linked to the question of bona fide purchase and under Italian law subject to a diverse system of legislation that is also comprised of international self-executing tools. As a basic principle and with regard to restitution the implementation of 1995 UNIDROIT Convention and the European Council Directive 93/7/EEC, the first one applicable to non-EU Member States or states not a member of the European Economic Area which are members of the 1995 UNIDROIT Convention, the latter one in relation to EU Member States and Member States of the European Economic Area irrespective of their membership to the 1995 UNIDROIT Convention, the position of the original owner of the illegally transferred movable cultural property is safeguarded. The respective provisions found in Article 87 of the CCPL and Articles 75 et seq. of the CCPL, however, give a bona fide purchaser the right to compensation if he can prove that he used ‘the necessary diligence as required by the specific circumstances of the case’904 at the time of purchase. While these two international instruments seem to be implemented sufficiently, the success of the implementation of the 1970 Convention can be questioned. Lenzerini explains that although the just recently inserted Article 64 bis of the CCPL, which states that ‘control over international circulation of cultural property is to be exercised consistently with international obligations in force for Italy’905 and Article 87 bis of the CCPL which states that ‘the properties included within the scope of application of the 1970 UNESCO Convention are regulated pursuant to the provisions of that Convention’906 refer more or less directly to the 1970 Convention, the material contents of the 1970 Convention have not yet been implemented by national legislation. This makes application difficult ‘as its [note: the 1970 Convention’s] self-executing nature is certainly debatable.’907 901 902 903 904 905 906 907

Italian report, section 4.3. For a definition see Italian report, section 4.3. See Italian report, section 4.3. Italian report, section 4.3. Italian report, section 4.3. Italian report, section 4.3. Italian report, section 4.3., where further details can be found. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Japan is another example of a country which basically takes an integrative approach as it combines the protection and preservation of both movable and immovable cultural heritage in a single law, the 1950 Law for the Protection of Cultural Properties (LPCP). This law is, however, complemented by the Act on Controls on the Illicit Export and Import and Other Matters of Cultural Property (ACIEI) of 2002908 in order to implement the 1970 Convention, which was ratified by Japan also in 2002. The designation process of movable cultural heritage, which can be divided into the three subcategories of (1) important movable tangible cultural property (2) national treasure and (3) important movable tangible folk cultural property,909 follows the general rules already outlined in the context of immovable cultural heritage protection.910 The regime of important movable tangible cultural heritage also grants the same pre-emptive rights to the state as the counterpart for immovables does.911 When it comes to the question of exporting designated movable cultural objects, Japan also tries to control the export through a system of mandatory export permission requests. Permission is only granted in limited cases, mainly in cases of temporary museum exhibitions abroad. Found un-owned objects have to be reported to the police. This gives the competent authority the opportunity to designate the respective object as a cultural object and to grant ownership rights of designated cultural objects to the municipality or (alternatively) to leave it to the general regime of the law of finds under the Japanese Civil Code. The 1970 Convention was implemented on a national level by the ACIEI which provides for a detailed restitution system. An important feature of that law is that it extends the time limitation of claims against bona fide purchasers from the normal two years under the Japanese Civil Code to ten years. By doing this Japan struck a balance between the limitation system of the Japanese Civil Code and Article 7 (b) (ii) of the 1970 Convention which does not stipulate a time limit.912 It should also be noted that the bona fide purchaser carries the burden of proof with regard to the question of whether he was acting in good faith at the time of the purchase. Also Taiwan incorporates the protection and preservation of immovable and movable tangible cultural heritage in a major single statute, the Cultural Heritage Preservation Act of 1982 (TCHPA). The TCHPA distinguishes between three different protective levels ‘in accordance with the value of rarity’:913 national treasures, significant antiquities and general antiquities.

908 909 910 911 912 913

文化財の不法な輸出入等の規制等に関する法律. See Japanese report, section 3.2.1. See supra II.2.1.2. Article 56–14 LPCP with reference to Article 46 LPCP. See supra I.3.3. for details. Taiwanese report, section 2.4. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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This categorization is especially important in relation to various kinds of property restrictions of privately owned movable cultural heritage. The set of criteria applicable for the designation of a prospective object is set forth by a supplementary legal tool, the Rule for Designation of Cultural Heritage and Abolishment of Review, which also includes criteria applicable to immovables. Although the two sets are quite similar, the material form, movable or immovable, is taken into account.914 The Taiwanese collaborative framework of various competent authorities915 is responsible for various tasks in relation to maintenance work and also supports private owners of movable tangible cultural heritage, which can include all three before-mentioned categories. However, only with regard to the two higher groups of national treasures and significant antiquities can one find a detailed system of safeguarding the movable tangible cultural heritage. The TCHPA installs a comprehensive regime of ownership and export control applicable to those two groups. In addition to a notification obligation in the case of a planned transfer of ownership, the state also possesses a pre-emptive right in order to purchase the respective cultural object. Both groups are also subject to the need to obtain export permission, which is only granted if strict requirements are met.916 Although the TCHPA includes special provisions on the transfer and export of cultural property per se, there are no special rules limiting bona fide purchase, which in fact strengthens the position of a good faith acquirer, as return claims of stolen objects are subject to a two-year-time limitation and are in several cases also complicated due to the original owner’s obligation to compensate the bona fide purchaser.917 Unlike under e.g. the Croatian or Czech legal frameworks movable tangible cultural heritage in Denmark is not comprehensively protected by a single core legal statute. Instead, two legal statutes, the Danish Museum Act (DaMuA) and the Act on the Protection of Cultural Assets in Denmark (CAA) are applicable for certain limited aspects related to the protection and preservation of movable tangible cultural heritage. Pursuant to Section 1 of the CAA the scope of the CAA is the protection of ‘Danish cultural heritage through preservation of cultural assets in Denmark.’918 It does this by stipulating export permissions for the export of movable cultural property, be it a temporary or permanent export, as defined in Section 2 of the

914 The set for movables comprises the following six categories: (1) historic significance or presentation of tradition, groups and local cultural characteristics; (2) historic origin; (3) certain characteristics, technology and groups of epoch; (4) artistic or scientific success; (5) valuable and rare characteristics; or (6) historic, cultural, artistic or scientific value; see Taiwanese report, section 2.4. 915 For details see Taiwanese report, section 2.4. 916 See Taiwanese report, section 2.4. 917 For details see Taiwanese report, section 2.4. 918 Danish report, section 2.2.1.1.

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CAA.919 The two major factors for the decision of the competent authority, the Commission on Export of Cultural Assets (hereafter the ‘CECA’), as to whether an object to be exported belongs to the Danish movable tangible cultural heritage are its age and its financial value, a concept which however is not exclusive as it is subject to certain exceptions.920 The underlying principle is that both temporary and permanent exports—the latter one in e.g. in the case of transfer of ownership—is only possible with the approval of the CECA, which is given if the export does not impair the unique value921 the object has for the Danish cultural heritage. In order to accomplish a safeguarding system, the CECA concluded agreements with several auction houses, which have to pass on information about planned auctions.922 It should also be noted that pursuant to Section 11 (1) of the CAA a refusal to issue an export license leads to the state’s obligation to purchase the object at market price.923 While international sale and national sale with subsequent export are subject to the before-mentioned license restrictions, national sale (of privately owned objects) is basically not restricted in Denmark. Tamm and Østrup explain that (also on a national level ), pursuant to Section 11 (2) of the DaMuA, state-owned or state-subsidized museums in general however ‘may not part with moveable cultural property from the museum collections without approval from the Ministry of Culture.’924 Another important aspect, the regime of return of illegally removed and illicitly exported or imported movable cultural heritage, is regulated by a scattered legal framework comprising the DaMuA and various special regulations of law, including the Act on Unlawfully Removed Cultural Objects as an implementation tool of the European Council Directive 93/7/EEC. The DaMuA was amended in 2001 in order to provide for an implementation of the 1970 Convention and the 1995 UNIDROIT Convention, of which only the first one has been ratified by Denmark so far—in 2003, two years after the preparatory amendment of the DaMuA. Especially the new Section 33 (1) of the DaMuA is of relevance, according to which ‘no museum may acquire a cultural object if the object has been exported from another country contrary to the legislation of that country and the matter is subject to an international agreement which has been signed by the country in question and Denmark. Further, subsection (2) of the provision sets out that, if an acquisition has been made contrary to subsection (1), the object shall be returned in accordance with the international

919 See also Danish report, section 2.2.1.4. for details on the European Council Regulation 3911/92/EEC applicable to the export of cultural goods to countries which are not members of the EU. 920 For details on the set of criteria see Danish report, section 2.2.1.1. or Section 2 CAA. 921 See Danish report, section 2.2.1.1. 922 See Danish report, section 2.2.1.2. 923 For details see Danish report, section 2.2.1.3. 924 Danish report, section 2.2.

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agreement in question.’925 It should be stressed that this is only applicable in relation to state-owned and state-subsidized museums, whereas private museums are only bound by the ICOM Code of Ethics and only if they are members of the Danish National Committee of ICOM.926 The DaMuA also regulates the area of treasure and fossil trove. In any case, treasures or fossils as defined under the DaMuA927 fall under the state’s ownership. Finders of such objects can only be granted a ‘discretionary award’.928 As mentioned earlier,929 the German legal system in the field of cultural heritage protection and preservation consists of a patchwork of legal statutes, which is the case especially in the area of movable tangible cultural objects. On a federal basis one can find several important statutes, some of them explicitly implementing the regulations of international treaties and legal statutes: the 2007 Law on the Return of Cultural Goods (LRCG) implements the provisions of the 1970 Convention and the European Council Directive 93/7/EEC, the Act implementing the Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict the 1954 Convention. In addition, the 1955 Act on the Protection of German Cultural Property Against Expatriation930 sets an important framework for the regulation of the export of ‘German national treasures’ to be enlisted by the German states in the Central Register of Nationally Valuable Cultural Property.931 Complementing the federal rules the state laws on the protection of monuments also cover the regime of movable tangible cultural property using various definitions of that term and applying independent sets of criteria for the determination of movable tangible cultural property, which—as a general rule—can also be privately owned. Common criteria used for the determination comprise public importance in relation to history, art, science and ethnology.932 The basic German concept is to protect movable tangible cultural heritage by limiting its export, more precisely the export of movable cultural objects enlisted on the Register of Nationally Valuable Cultural Property.933 They may only be exported with governmental permission expressed by an export license. With respect to property right related aspects it can be noted that the German system basically does not provide for extensive special regulations in relation to movable cultural heritage. The German Civil Code, for

925 Danish report, section 2.2.2.; see also Danish report, section 2.2.2. for details on the regulatory framework and its practical meaning. 926 See Danish report, section 2.2.3. 927 Sections 30 et seq. DaMuA. 928 Danish report, section 3.2.1. 929 See supra II.1.1.2.5. 930 Gesetz vom 6. August 1955/8. Juli 1999 zum Schutz deutschen Kulturguts gegen Abwanderung. 931 Gesamtverzeichnis national wertvollen Kulturgutes. 932 See German report, section 5.1. 933 See German report, section 5.1.

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example, does not differentiate between “normal” and “cultural” property when it comes to the question of bona fide purchase, which with regard to stolen objects is only possible in very limited cases.934 Only due to the strict German jurisdiction bona fide purchase of movable cultural properties is more difficult because the concept of good faith is interpreted restrictively. The law of finds and treasure trove regulates the ownership of found objects like in most other countries, as not the finder, but the state acquires ownership automatically. One more aspect worth mentioning is that Germany is quite active in the return of cultural objects illegally taken during the Naziera, expressed by various soft law instruments, having led to various cases of restitution even if respective claims would have already been time-barred.935 France adopted a comparatively detailed and comprehensive legal framework for the protection and preservation of movable tangible cultural heritage based on its 2004 Code of Cultural Heritage (CCH) and the 2006 General Code Regarding the Property of Public Persons936 (hereafter, CGPPP) dividing the movable tangible cultural heritage into various classes and providing for several differences compared to the groups of immovable cultural heritage. Firstly and based on the assumption that ‘the public owner is in France considered the best guardian for cultural heritage’,937 Article L. 2112–1 of the CGPPP declares several movable cultural objects as public property saying that they ‘are part of the movable public domain of the public entity owning property with a public interest from the perspective of history, art, archaeology, science or technology’.938 The main consequence of this classification is the fact that those objects are ‘inalienable, imprescriptible, and cannot be seized.’939 With regard to privately owned movable cultural property the state has the opportunity to enrich the French public-owned movable heritage by several means including a pre-emption right which, however, is relatively narrow in its application as it is limited to certain objects at public auctions.940 Designation of movable tangible cultural heritage under the CCH basically follows the system already outlined in the context of immovable cultural heritage above941 including its differentiation between classified and registered properties and also imposing special rules and widening the concept by the category of Musées de France collections. Lists exist both for the categories of

934

See German report, section 3.1.2. (2), section 5.4. and section 5.5. For details see German report, section 5.5. 936 Code général de la propriété des personnes publiques. 937 French report, section 2.2. 938 For the list of those movables see Article L. 2112–1 CGPPP or French report, section 2.2.1.1. 939 French report, section 2.2.1.1. 940 For details see French report, section 2.2.1.2.1.2.; see also French report, section 2.2.1.2.2. for other forms of national enrichment including the interesting category of voluntary enrichment. 941 See supra II.2.1.2. 935

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classified and registered objects as well as for museum collections. Although there are several restrictions and obligations imposed on the private owner of movable tangible cultural heritage, they are less drastic than the respective restrictions and obligations with regard to immovable cultural heritage, which according to Cornu is explained by the argument that ‘the public interest is less significant as it regards movables’.942 While expropriation of immovables is possible if ‘their preservation is compromised’,943 a similar rule is missing in relation to movables. Automatic state intervention in cases of urgent protection measures is also limited to the category of classified movables, whereas there is no such possibility with regard to registered movable tangible cultural heritage. Among other particularities it might also be noted that the registration of privately owned movable cultural heritage is in practice subject to the owner’s consent, a further ownership friendly difference to immovable cultural heritage.944 In addition to the categories of classified and registered movable cultural objects, the CCH regulates a further category, the category of Musées de France collections, defined by Article L.410–1 of the CCH as ‘any permanent collection[s] . . . of property [whose] preservation and presentation are of public interest and [which are] organized for the knowledge, education and delectation of the public’.945 Musées de France collections and parts of it are considered to be national treasures and thus subject to a special regime of protection, which for example only allows the export in special cases and only on a temporary basis and also exempts return claims from any time limitation—differences which apply to every category of national treasures which include classified movable objects, classified archives, public collections and Musées de France collections. Particularities can also be found in relation to treasure trove and the law of finds. The state does not become owner of excavated objects automatically, but ‘may in the sole interest of public collections, claim the ownership of the resources excavated or fortuitously discovered with compensation paid to the owner of the object. Takings are allowed in the sole interest of public collections.’946 Also the legal regime for fortuitous finds is regulated differently in comparison to most other national regimes discussed in this report, as the ownership is basically decided by the general Civil Law rules, leading to a shared ownership between the finder an the landowner.947 A diverse sys-

942

French report, section 2.2.3.1.2. French report, section 2.2.3.1.2. 944 See French report, section 2.2.3.1.2. for further details and differences between the protection and preservation of immovable and movable tangible cultural heritage under the French national system, and French report, section 2.2.3.6. for an analysis of the balancing of private and public interests in relation to movable tangible cultural heritage. 945 See French report, section 2.2.3.2. for details and examples of such objects. 946 French report, section 2.2.1.2.2.1. 947 See French report, section 2.2.3.3.2.4. for details. 943

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tem with regard to transaction and ownership questions is based on general civil rules and on special regulations, mainly focusing on national treasures and objects falling under the scope of the CGPPP.948 While—as a general rule—the position of a bone fide purchaser is relatively strong, putting the burden of proof for having been of bad faith (note: in the meaning of ‘should have doubted’ the legal correctness of his acquisition949) on the claimant and restricting a potential claim by a basic three-year-time limitation, extensive exceptions are made for national treasures under the regime of the CCH and objects under the CGPPP. For those movable cultural properties, there basically exists no time limitation for respective claims. Also regarding the export of movable cultural heritage, the division into various categories is important. These are briefly summarized by Cornu as: (1) national treasures subject to strict export prohibitions making exceptions only for special temporary exports under the control of the Ministry of Culture; (2) other movable cultural properties subject to various licenses with different system for exports to EU Member States and non-EU Member States; and (3) movable cultural objects, which due to their minor value may be exported freely.950 One more interesting aspect worth mentioning is the fact that under French law there does not exist an extensive obligation of Museums to return movable cultural property as the ratification of the 1970 Convention did not lead to the modification of French law.951 Yet it should be noted that French public museums are obliged to due diligence in acquiring objects, as they are bound by the principles of the ICOM Code of Ethics.952 The Mexican legal framework for the protection and preservation of tangible cultural heritage basically does not differentiate between movables and immovables, as it regulates both forms in the same law, the 1972 Federal Law on Archaeological, Historic and Artistic Monuments and Zones (LAHA), using the same designation process, the same set of criteria for both categories and dividing them into the same three groups: archaeological, historic and artistic cultural heritage.953 Mexico tries to protect its national movable tangible heritage primarily through a complex system of regulations and restrictions on transfer of property and export of movable cultural heritage. One has to distinguish between firstly domestic and international transfer of property and secondly between the three before-mentioned categories of national cultural heritage. As far as the transfer of property within Mexico

948

For a detailed analysis see French report, section 2.2.4.1.2. See French report, section 2.2.4.1.3. 950 See French report, section 2.2.4.4.2.1. (National treasures), section 2.2.4.4.2.2. (Cultural property subject to a certificate) and section 2.2.4.4.2.3. (Cultural property subject to no export control ) for details. 951 See French report, section 2.3.1. 952 See French report, section 2.2.4.4.2.3. 953 See supra II.2.1.2. and also Mexican report, section 1.1. 949

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is concerned, privately owned movable cultural properties can be traded freely.954 International transfer of privately owned movable cultural properties is only allowed subject to special permission, as is also the case for temporary exports, which is under certain circumstances possible for exhibitions. International sale of privately owned archaeological movable cultural heritage is basically prohibited. The only cases of export of such property are to be found with regard to temporary exports subject to special permission. In this context it should be stressed that private ownership of archaeological heritage is only possible in very limited cases, namely only in relation to archaeological heritage privately owned prior to 1972, as under the nonretroactive LAHA archaeological movables are declared to be owned by the Mexican nation. For the further protection of movable archaeological cultural heritage the LAHA also strictly prohibits archaeological excavations without the permission of the competent authority, the National Institute of Anthropology and History (INAH). This prohibition is subject to severe penal sanctions. In any case, discovered or found archaeological objects have to be reported to the INAH within 24 hours, leading to state ownership.955 Another feature of the inalienability of archaeological cultural heritage is that possible claims for its restitution (to the state as owner of the property) are not subject to any time limitations, which can be seen as an additional means to protect (at least a part) of the Mexican national cultural heritage. New Zealand is an interesting example of a country with recent changes in the field of national movable tangible cultural heritage protection and preservation. As Myburgh points out it is the second Common Law jurisdiction after Nigeria which ratified both the 1970 Convention and the 1995 UNIDROIT Convention ‘and the first Common Law jurisdiction to give domestic effect to both conventions in a single domestic statute.’956 The Protected Objects Act 1975 (hereafter the ‘POA’), which was—despite its title—enacted in 2006, is the core law for the protection and preservation of movable tangible cultural heritage in New Zealand, implementing the two international treaties. The Historic Places Act 1993 (HPA)957 by comparison concentrates rather on the protection of immovables and covers movables only if they are still on a protected site or place.958 The POA provides for an extensive definition of the term movable tangible cultural heritage, following the basic definitions of the 1970 Convention and the 1995 UNIDROIT Convention. The Ministry of Culture and Heritage as the competent authority designates prospec954

See Mexican report, section 3.3.2.5.2.2. and section 3.3.2.5.5. See Mexican report, section 3.3.3.2.3.2. 956 New Zealand report, section 1.3.3. with reference to the detailed analysis in P. Davies and P. Myburgh, ‘The Protected Objects Act in New Zealand: Too Little, Too Late?’, 15 International Journal of Cultural Property (2008) pp. 321–345. 957 See supra II.2.1.2. 958 See New Zealand report, section 2.2.1. 955

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tive objects if they meet one of the extensive criteria and fall within one of the detailed categories of the POA.959 It should be noted that the POA also recognizes the role of Māori, as one of the categories comprises ngā taonga tūturu, ‘objects more than 50 years old that relate to Māori culture, history and society and that were, or appear to have been, imported into New Zealand by Māori, manufactured or modified in New Zealand by Māori, or used by Māori’.960 Unlike most other national legislation the New Zealand legal framework grants direct (property) rights to indigenous people, which is for example reflected in the regulations on treasure trove and the law of finds: although found Māori objects are initially under national ownership, ownership is transferred to Māori themselves once ‘ownership is determined.’961 Once designated as a movable cultural object under the POA the respective property can only on application of its owner or due to the refusal of export permission enlist the respective object in the Nationally Significant Objects Register (NSO Register).962 The registration in the NSO Register has some practical consequences, as it leads to automatic export restrictions. While national transfer of ownership is basically unrestricted, registered movable cultural objects as defined by the POA are subject to export permissions to be issued by the Ministry of Culture and Heritage. It should be noted that the permanent export of enlisted objects is automatically prohibited. In comparison to its predecessor, the Antiquities Act 1975, the new POA introduces several new regulations, which are, due to the lack of retroactivity, only applicable to movable cultural properties stolen or illegally imported/ exported after May 1, 2007.963 Although the new regulations are expected to bring the national New Zealand legislation in conformity with the 1970 Convention and the 1995 UNIDROIT Convention, some points, including the determination of the burden of proof, still remain unclear, as there has not been any ‘detailed guidance’964 issued yet.965 Not only the state itself but also New Zealand museums try to cooperate with Māori and help preserving their cultural heritage. There is also a willingness of New Zealand museums to restitute and return cultural objects to the Māori as the original owners, a trend which however is not reflected in relation to indigenous groups outside New Zealand.966 Unlike some other above-mentioned countries, the Netherlands adopted a non-integrative approach in relation to the protection and preservation of

959 960 961 962 963 964 965 966

For a listing of both see e.g. New Zealand report, section 2.2.1. New Zealand report, section 2.2.1. New Zealand report, section 2.2.1. See New Zealand report, section 2.2.2. See New Zealand report, section 2.2.4. See New Zealand report, section 2.2.4. See New Zealand report, section 2.2.4. See New Zealand report, section 2.2.5. for details. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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tangible cultural heritage, as it deals with its movable forms in a separate law, the 1984 Cultural Heritage Preservation Act (CHPA).967 Pursuant to Article 7 of the CHPA its ‘main goal . . . is prevention of the loss of objects that are significant to Dutch cultural history, and it is specifically concerned with the loss of access to the objects through export.’968 One of the particularities of the listing system under the CHPA is the relatively small number of enlisted objects on the Cultural Heritage Protection List (hereafter the ‘CHPL’), not differentiating between various levels of protection, designated by the Minister of Culture with the assistance of the Council for Culture, its advisory body.969 The reason therefore is the fact that only privately owned objects are enlisted on the CHPL, whereas public owned movable cultural objects cannot be found in the CHPL, but in special ‘inventories of the respective institutions. State owned collections are supervised by the State Inspectorate for Cultural Heritage. The foundation for Ecclesiastical cultural objects has made an inventory of ecclesiastical objects in the Netherlands.’970 For the determination of a movable cultural object, the Minster of Culture assesses the status based on a two-tiered system built on the factors of irreplaceability and indispensability for the Dutch cultural heritage.971 Movable cultural property protected under the CHPA is subject to a notification and permission system with respect to transfer of ownership and/or export. Every change of ownership, even within the boundaries of the Netherlands, must be reported to the Minister of Culture as the competent authority. If the respective object is to be sold internationally or exported even on a temporary basis, the owner also needs permission issued by the Minister of Culture. The CHPA declares the minister’s refusal to grant permission for an international sale as an automatic state offer to purchase the cultural object, with the price to be negotiated by the owner and the state or determined by a court decision.972 The public interest in safeguarding the movable cultural heritage listed on the CHPL is also expressed in the public funding an owner can get for the restoration of the protected object. However, under the CHPA restoration is to be done on a voluntary basis, as there does not exist any legal obligation to preserve the object.973 The rather strong position of the private owner is also reflected in the application of property law. While the sale and export

967 For the relation to the framework on immovables, especially for the question why the regime of movables had not been dealt until the 1980s see Dutch report, section 3.2.1. 968 See also Dutch report, section 3.2.1. 969 As of December 31, 2008 the CHPL contains only roughly 300 objects and collections, while ‘[t]he Dutch State Inspectorate for Cultural Heritage estimates that the total number of objects (single objects plus objects from the designated collections) ranges from 60,000 to 70,000 objects’—see Dutch report, section 3.2.1. 970 Dutch report, section 3.2.1. 971 For a definition of the two terms see Dutch report, section 3.2.1. 972 See Dutch report, section 3.2.1. 973 See Dutch report, section 3.2.1.

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of movable cultural objects are subject to special norms under the CHPA, general property law rules of the Dutch Civil Code are applicable in other areas, such as treasure trove and the law of finds. With the exception of finds in an area protected as immovable cultural heritage under the DuMoA, the ownership of found treasure is shared by the finder and the landowner; the state does not receive special rights. The application of Dutch Civil Code is currently—until the implementation of the 1970 Convention which is now on its way974—of further importance for the return of stolen objects, in relation to which the national provisions enacted to implement European Council Directive 93/7/EEC are not applicable. Thus, according to Lubina, the general regime of the Dutch Civil Code ‘applies to cultural objects stolen from private Dutch collections (not listed under the CHPA), as well as to objects stolen in foreign countries that are not EU Member States [or do not belong to the European Economic Area]).’975 Pursuant to the general system, which does not distinguish between “normal” movables and movables belonging to the Dutch cultural heritage, stolen objects can be acquired lawfully by a bona fide purchaser in several cases outlined in Article 3:86 (3) of the Dutch Civil Code.976 The original owner’s only chance is to prove the purchaser’s bad faith, which is only possible within 20 years after the purchaser’s acquisition of the object. This strong position of bona fide purchase is only broken in relation to cultural objects as defined by European Council Directive 93/7/ EEC and only in relation to other EU Member States or parties to the European Economic Area. In this context, recent amendments of the Dutch Civil Code implemented the before-mentioned European Council Directive and strengthened the position of the original owner.977 The return of movable cultural objects is also an issue touching on the status of movable cultural heritage exhibited in museums and galleries. Like in many other countries, a search for binding legal statutes in the Netherlands will also be in vain. The applicable ICOM Code of Ethics is the only written tool which could have an impact, as it can put ‘moral pressure’978 on the said institutions. Although not having had extensive practical impacts yet, it can be expected to open new ways to restitution of (foreign) cultural heritage.979 Due to its complex competence system, Switzerland, which ratified the 1970 Convention in 2003, but still has not ratified the 1995 UNIDROIT Convention, regulates the protection and preservation of movable tangible cultural heritage on a mixed basis of federal and local cantonal law. On a 974

For details see Dutch report, section 3.2.4.2. Dutch report, section 3.2.4.1. 976 See Dutch report, section 3.2.4.1. for details. 977 For details on the European Council Directive 93/7/EEC and the Dutch implementation see the in-depth analysis in the Dutch report, section 3.2.4.2. 978 Dutch report, section 3.2.5. 979 See Dutch report, section 3.2.5. for details. 975

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federal basis the main law is the Act on the International Transfer of Cultural Property (CPTA) which entered into force in 2005 and ‘regulates the import of cultural property into Switzerland, and its transit (note: as far as objects of national interest are concerned, also the), export and repatriation from Switzerland.’980 The CPTA is a good example of a national legal statute which was enacted to implement a major international treaty in the field of cultural heritage protection: the 1970 Convention. This fact is reflected throughout the CPTA and starts already with the definition used for describing the material scope of application. The term cultural property comprises objects which due to religious or universal reasons are valuable expressions of archaeology, prehistory, history, literature, arts or sciences falling under one of the categories of Article 1 of the 1970 Convention.981 The CPTA introduces an extensive protective regime for movables of national interest and even goes further than the 1970 Convention as Articles 10 et seq. of the CPTA provide for a ‘return guarantee’ for exhibited foreign movables in Switzerland, protecting exhibited objects from being subject to return claims during the time of exhibition and at the same time guaranteeing that those objects will be returned once the exhibition is finished.982 The Swiss legal framework differentiates between various forms of movable tangible cultural heritage, both in relation to the form of ownership—private or public—and the “area”—federal or cantonal. Only publicly owned federal movables—meaning that they are ‘of significant importance for the cultural heritage of Switzerland’983—can be enlisted by the Fachstelle984 in the future985 Swiss Federal Register of Cultural Heritage.986 Registration has the effect that the listed objects become res extra commercium, having inter alia the effect that potential return claims are not subject to time limitations. Non-registered cultural objects are not extra commercium and can be acquired in good faith or by adverse possession. The time limitation was however extended to thirty years from five.987 For application on an international level the CPTA introduces several regulations in relation to the import of foreign cultural movables and the export of federally listed Swiss movable cultural heritage, which is only possible on a temporary basis and under the condition of receiving special permission. It also asks for the due diligence of federal institutions when acquiring cultural movable property, an obligation which is also expressed by the national ICOM Code 980

Swiss report, section 2.1.1. Article 2 (1) SCPTA; Article 2 (2) SCPTA goes on and defines cultural heritage with a reference to Article 4 1970 Convention. 982 For details see also Swiss report, section 2.1.1. 983 Swiss report, section 2.1.1.1. 984 To be translated as ‘Specialized Body’—see Swiss report, section 2.1.1.1. 985 At the time of writing this report, the Swiss Federal Register of Cultural Heritage was not created yet. 986 Article 3 SCPTA. 987 Swiss report, section 2.1.1.1. 981

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of Ethics, applicable also in relation to ‘individual’ members.988 With regard to import and connected repatriation provisions it should be noted that the CPTA asks for the conclusion of (bilateral) treaties which guarantee the reciprocity of repatriation norms, following the US-model for implementation.989 Conclusion of the respective treaties leads to the applicability of the pertinent regulations of the treaty and the CPTA. In other cases—cases in which no agreements exist—claims are subject to “normal” private international law. As already mentioned, movable tangible cultural heritage can also be privately owned if the owner is a natural person or a legal entity. Those objects are however not listed on the Swiss Federal Register of Cultural Heritage, which means that the special provisions of the CPTA are not applicable. Privately owned movables, however, can be—and in reality often are—regulated by cantonal laws, which sometimes put strict restrictions to the respective private property rights, as the legislation of most Cantons provide for cantonal pre-emptive and expropriation rights in relation to movable cultural properties.990 The positions of the cantons are usually quite strong, making them also automatically the owner of discovered archaeological objects.991 It should also, however, be pointed out that the cantonal legal statutes and legal practice in the field of movable tangible cultural heritage shows some shortcomings, which is for example reflected by the fact that although cantons installed inventories for cantonal cultural heritage, privately owned objects are usually not listed992 and are not subject to cantonal export restrictions. On the other hand, cantonal and federal assistance and financial support foster the protection, preservation and promotion of movable cultural heritage, including that which is privately owned. The Canadian legal system on the protection and preservation of movable tangible cultural heritage also differs very much from the Croatian and Czech legal frameworks mentioned at the beginning of this chapter, as there does not exist any comprehensive federal law in this area. Thus, movable tangible cultural heritage is not generally defined and neither is there a basic set of criteria or a centralized list of movable tangible cultural objects in Canada. Canada does however—and this is another interesting difference to most other, especially European countries—provide for some sets of special regulations of law and practice regulating and dealing with the rights of indigenous groups in relation to (also) movable tangible cultural heritage. As Paterson points out the ‘only federal law specifically addressing Aboriginal 988

Swiss report, section 2.1.1.4. For details see Article 7 SCPTA and Swiss report, section 2.1.1.2. noting that (as of December 31, 2008) Switzerland has concluded three such treaties with Italy, Peru and Greece of which only the first one has entered into force. 990 See Swiss report, section 2.1.1.4. and section 2.2.3. 991 See Swiss report, section 2.2.4. 992 See Swiss report, section 2.2.1. 989

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cultural property in the form of . . . movables . . . is section 91 . . . Indian Act’993 exempting various objects on reserve from being acquired, guaranteeing the property rights of the respective aboriginal people.994 In addition, while many provincial laws provide for the transfer of aboriginal cultural objects to the government, respective objects are, based on unwritten law, handed over or returned to aboriginal people. Repatriation might also be of importance with regard to museum-located indigenous movable cultural objects. Only one Canadian province, the province of Alberta, covers that issue in its First Nations Sacred Ceremonial Objects Repatriation Act which generally deals with the ‘return of sacred ceremonial objects whose return is requested by an Alberta First Nation from the Alberta government (including the two major provincial museum collections),’995 while there is no comparable law to be found on a federal basis or in the other Canadian provinces. Nevertheless repatriation of indigenous movable cultural heritage to aboriginal people is not seldom carried out on a voluntary basis, also leading to further cooperation between museum and indigenous groups in the field of movable cultural heritage protection and preservation.996 The role of museums in relation to movable tangible cultural heritage protection in general is regulated by a legal patchwork of federal and provincial laws. Canadian museum collections are nevertheless documented and inventoried centrally in a national inventory of Canadian museum collections, the Canadian Heritage Information Network (hereafter the ‘CHIN’). With regard to (temporarily) imported cultural objects exhibited at Canadian museums, several provincial laws try to prohibit possible court cases concerning property rights for the time of the exhibition, such as the British Columbian Law and Equity Act.997 On a federal basis one can however find a comprehensive legal statute regulating questions related to import and export of movable cultural objects as well as their return: the Cultural Property Export and Import Act which was enacted as implementation tool of the 1970 Convention. In comparison to the United States, Canadian law allows for the recognition and enforcement of the cultural property export controls of all 1970 Convention parties.998 The issue of bona fide purchase is not regulated on a federal, but only provincial basis by the provincial Civil Codes which can lead to some divergences and complications as Quebec adopted a civil law concept, whereas all other Canadian provinces follow common law approaches which do not provide for a special system of bona fide purchase. Thus, in the common law provinces, the bona

993 994 995 996 997 998

Canadian report, section 2.2.2. For details see Canadian report, section 2.2.2. Canadian report, section 2.2.6. For details see Canadian report, section 2.2.6. See Canadian report, section 2.2.5. See Canadian report, section 2.2.3. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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fide purchaser per se is not protected. Possible claims are however subject to time limitations. In contrast to this, under the provincial law of Quebec a bona fide purchaser can under certain conditions become the owner even if the respective object was stolen. It has to be noted that neither of the two Canadian concepts distinguishes between movable objects and movable cultural objects. Unlike Canada the United States has introduced a comprehensive federal legal statute granting rights to indigenous groups and communities: the Native American Graves Protection and Repatriation Act (NAGPRA).999 The NAGPRA strengthens the role of indigenous groups and communities, who can also be owners of movable tangible cultural property, as it provides for ‘a scheme for repatriation of Native American human remains and other cultural items from museums, very broadly defined, and federal agencies,’1000 both of them ‘required to compile inventories or provide summaries of Native American remains and cultural items in their possession.’1001 In various cases repatriation issues are very delicate and difficult to be solved. The earlier mentioned Review Committee1002 tries to handle arising disputes by applying and assessing ‘four statutory qualifications on the requirement of expeditious return of material.’1003 The qualification system is quite complex and tries to take into account several aspects related to ownership questions and the cultural character of the respective object, including a determining set of criteria comprising ‘geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical or other relevant information or expert opinion’1004 and basic rules for the legal argumentation.1005 The general protective regime of movable tangible cultural heritage is based on a legal framework formed primarily by the Cultural Property Implementation Act (CPIA), implementing the 1970 Convention on a national level, the National Stolen Property Act (hereafter, NSPA), which however is applicable to any object with a value of at least US$ 5,000—regardless of its possible qualification as cultural object—and the earlier mentioned Archaeological Resources Protection Act (ARPA).1006 Both the CPIA and the NSPA were enacted to fight illegal transfers of ownership, with the NSPA also applicable on a national, interstate level.1007 Having been, according to Nafziger, ‘the first “art market” state to ratify the [1970] Convention’1008 the United 999 1000 1001 1002 1003 1004 1005 1006 1007 1008

See United States report, section 2.1.1.2. and section 2.2.1.2. United States report, section 2.2.1.2. United States report, section 2.2.1.2. See supra II.1.2.2. United States report, section 2.2.1.2. United States report, section 2.2.1.2. For details see United States report, section 2.2.1.2. See supra II.2.1.2. See United States report, section 2.2.1.1. United States report, section 2.2.1.1. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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State takes a relatively active approach by having concluded several bilateral treaties in accordance with Article 9 of the 1970 Convention1009 in order to facilitate international cooperation and the return of illegally imported/ exported movable cultural objects. A Cultural Property Advisory Committee in the Cultural Heritage Center within the Bureau of Educational and Cultural Affairs of the Department of State plays an important role through its activities. These activities include advising the US President to conclude executive agreements to restrict importation from countries where pillage is a threat. The conclusion of bilateral treaties is especially of importance as the United States at the time of ratification of the 1970 Convention declared a reservation according to which ‘United States reserves the right to determine whether or not to impose export controls over cultural property.’1010 With regard to excavations and archaeological objects, the ARPA provides for a comprehensive legal regime stipulating a control system including mandatory excavation permits, strict penalties and the possibility of ‘seizure and forfeiture of illegally obtained material, including material imported from foreign sites.’1011 On a federal legal level, regulations on the protection and preservation of Spanish movable cultural heritage can be found in the Law on the Historical Heritage of Spain (LHHS), which also covers immovable cultural heritage. The Spanish system is quite interesting as it restricts the owner’s property rights comparatively severely. The classification of movable objects resembles the designation process for immovables.1012 However, Article 26 of the LHHS introduces a further level of protection for movables, movable tangible cultural heritage which are ‘given a lower level of protection [and which] are those [that are] included in the General Inventory of Objects . . . [due to their] notable historic, archaeological, scientific, artistic, technical or cultural value and which have not been declared as being of cultural interest (Article 26 LHHS).’1013 Such objects are enlisted on a different register, the General

1009

Article 9 1970 Convention: ‘Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned. Pending agreement each State concerned shall take provisional measures to the extent feasible to prevent irremediable injury to the cultural heritage of the requesting State’; see also United States report, section 2.2.1.1. for details on the CPIA and the bilateral treaties. 1010 See e.g. http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC &URL_SECTION=201.html (last visited on December 31, 2008). 1011 United States report, section 2.1.1.1. 1012 See supra II.2.1.2. 1013 Spanish report, section 2.1.2. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Inventory of Movable Assets (hereafter the ‘GIMA’).1014 Under the strict Spanish concept the sale of movable cultural objects enlisted in the General Register of Assets of Cultural Interest (hereafter the ‘ACI Register’), representing objects of highest value, is generally prohibited, both nationally and internationally, which thus includes the prohibition of permanent export. Temporary export is only allowed if authorized by the competent authority.1015 The ownership of objects recorded in the GIMA is less limited, as permanent export is also possible though it is subject to previous authorization. The competent authority can refuse the issuing of a permit and can also exercise a pre-emption-right within a period of six months.1016 The strong position of the state is also expressed in the provisions on treasure trove and the law of finds of movable tangible cultural heritage, as those objects which are covered by the LHHS fall under the public domain, making them state owned property.1017 The Tunisian concept of movable tangible cultural heritage protection and preservation is another example of a comparatively strict regime. The term movable tangible cultural heritage is defined by the Code of Archaeological and Historical Heritage and Traditional Arts (CAHH) and its predecessor, the law of May 19, 1988 on cultural goods extensively by giving several examples.1018 The Ministry of Culture as the competent authority designates respective objects by using the same set of criteria as for the designation of immovable cultural heritage, the four alternative factors of history, aesthetics, art or tradition. Although the consent of a private owner is basically required for declaring an object owned by him as movable cultural property, the Minister with the help of a court’s decision can substitute the owner’s consent. Once an object is granted the status of a protected movable object under the CAHH, numerous restrictions limit the owner’s property rights. Any kind of intended transfer of ownership has to be approved by the authorities, providing the state with a pre-emptive right. In addition, while temporary export is under certain circumstances possible subject to prior approval, permanent export of designated movable cultural property is ‘strictly prohibited.’1019 There also exist difficulties for the owner to regain his property, as according to the generally applicable norms of the Tunisian Code of Real Rights1020 he carries the burden of proof that an acquirer was not bona fide at the time of taking possession over the respective object, meaning that he ‘knew or

1014 For the main obligations with regard to the objects registered in the GIMA see Spanish report, section 3.2.1. 1015 See Spanish report, section 3.2.3. 1016 See Spanish report, section 3.2.3. 1017 See Spanish report, section 3.2.4. 1018 See Tunisian report, section 2.2. for details. 1019 Tunisian report, section 2.2. 1020 For details see Tunisian report, section 2.2.

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should have known . . . that the one from whom he received the good had no right to dispose of it.’1021 The claim is subject to a three-year-time limit and the successful claimant does under certain circumstances have to reimburse the bona fide purchaser for the paid price, but even if the purchaser was mala fide at least reimburse the purchaser for a considerable increase of value.1022 As far as discovered movable cultural objects are concerned, the finder has the obligation to inform the authorities within five days of the discovery.1023 2.2.3. Conclusion If one understands protecting movable tangible cultural heritage in terms of the 1970 Convention and the 1995 UNIDROIT Convention, mainly as the fight against the illegal transfer of movable cultural property from one country to another, one can see that most countries set up a framework of export—and to some extent also import—controls, restitution and return issues and rules concerning bona fide acquisition. In these areas national regulations however differ due to various reasons, including the status of ratification of the pertinent international tools, as e.g. the 1995 UNIDROIT Convention is basically directly applicable. The willingness to implement the non-self-executing specifications of the 1970 Convention and the balancing of the interests of the state and the private owner are also influential in the context of national legislation and are further reflected by national perceptions of the role which movable cultural heritage plays in the respective country. In addition to this narrow understanding, general issues related to the safeguarding of movable tangible heritage, including questions of ownership, designation, registration, obligations and rights of the private owner and possible national means of control have also to be included in national legislation, although international frameworks cover these areas only rudimentarily and indirectly.1024 In this context, national concepts are quite diverse, as the pertinent international tools in the area of movable cultural heritage protection leave the regulation of these aspects to the discretion of the national legislators. Also the issue of group and community rights, especially in rem rights, in relation to movable tangible cultural heritage is of interest, as one can see regional differences when it comes to their national regulation.

1021

Tunisian report, section 2.2. See Tunisian report, section 2.2. 1023 See Tunisian report, section 2.2. 1024 See e.g. the definition of the term cultural property by Article 1 1970 Convention or the indirectly declared possibility of private ownership of cultural property by Article 3 1995 UNIDROIT Convention which does not distinguish between privately and public owned objects. 1022

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In some countries, such as Croatia, the Czech Republic, Japan or Mexico, the designation of movable tangible cultural heritage shows similarities to the concept used for the designation of immovable cultural heritage when it comes to the criteria used, the competent authorities or the registration. While it might be logical that also in these countries special rules—most commonly in the form of special supplementary legal statutes1025—are needed for areas solely to be found in relation to movable tangible cultural heritage, such as questions linked to the return of illegally imported or stolen objects or to the law of finds, there are however a couple of countries which generally regulate movables separately from immovable forms. Denmark, for example, uses different criteria for the designation of movable tangible cultural objects. In addition to an age factor, also to be found in relation to immovables, financial value plays an important role when it comes to the designation of movables.1026 Several newer national special regulations of law link their concepts more directly to the pertinent international tools, such as the Swiss Act on the International Transfer of Cultural Property (CPTA) of 2005, defining the material scope in accordance with the 1970 Convention1027 or the New Zealand definition of the term protected foreign object under Section 2 (1) of the POA, which uses exactly the same terminology as Article 1 of the 1970 Convention.1028 In various cases one can also find differences between movables and immovables in relation to their national registration. In contrast to immovable cultural heritage, registration of movables in accordance with Article 5 (b) of the 1970 Convention, sometimes causes “incomplete” registration. In the Netherlands only privately owned movables can be registered under its core law, the Cultural Heritage Preservation Act,1029 whereas it is the opposite way on a federal level in Switzerland, where only public owned movables can be listed on the Swiss Federal Register of Cultural Heritage and in some, yet not all, cantons with their the cantonal registers.1030 In addition, many countries also installed lists for movable tangible cultural heritage held by museums in accordance with Article 7 (b) (i) of the 1970 Convention. This is, however, mostly done on a centralized basis, such as the Czech Republic with its Czech Central List of Collections or Canada with its Canadian Heritage Information Network.

1025

See supra II.2.2.2. See Danish report, section 2.2.1.1. 1027 See supra II.2.2.2. and supra note 981. 1028 For a detailed analysis of the New Zealand implementation of the 1970 Convention and the 1995 UNIDROIT Convention in the New Zealand Protected Objects Act see Davies and Myburgh, loc. cit. n. 956. 1029 See Dutch report, section 3.2.1. 1030 See Swiss report, section 2.1.1.1., section 2.2.1. and section 2.2.7.; however, in the canton Berne, for example, privately owned movable cultural property can be registered with the consent of the owner (see Articles 20 and 21 Berne Cantonal Act on the Protection of Historical Monuments [Gesetz über die Denkmalpflege]. 1026

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As it is the case in relation to immovable cultural heritage, the national and/or local interests in containing and preserving the movable tangible cultural heritage is oftentimes also guaranteed by national and/or regional pre-emptive and expropriation rights. Some countries however differentiate between movable and immovable forms. Some have introduced stricter while others more owner-friendly concepts applicable to movable cultural heritage. While only a very few Swiss cantons include pre-emptive and expropriation rights in relation to immovable cultural heritage, both are more common with regard to movables.1031 France on the other hand provides the state with expropriation rights applicable to immovables, whereas this option basically cannot be found in relation to movable cultural heritage.1032 As far as the issue of controlling the export of movable tangible cultural heritage in conformity with Article 5 of the 1970 Convention is concerned, the vast majority of countries adopted a relatively strict system, installing a licence system applicable to temporary—and in cases where permanent exports are possible—also to permanent exports. One can distinguish between three major concepts. The first is a mixture of control and prohibition while the second is a more owner-friendly group that basically allows both temporary and permanent export. Both of these are subject only to state permission. The third concept is a combination of the first two systems. The first group comprises countries such as e.g. Croatia and Tunisia basically prohibiting definite exports and allowing temporary exports only subject to prior state authorization. A second group, including e.g. Denmark, Germany and the Netherlands—the last one not a State Party to the 1970 Convention—, declare both temporary and permanent export possible, but again both only with prior state approval. The third group, again with obligatory licenses for temporary exports, combines the other two regimes when it comes to the definite export of movable tangible cultural heritage: countries such as Italy, France, Mexico, Spain or New Zealand distinguish between various levels of protected movables or—in the case of New Zealand—between registered and unregistered movable cultural heritage and prohibit only the definite export of a part of its movable cultural heritage while allowing other movables to be exported also permanently with state approval. When it comes to the fight against the illicit import of movable tangible cultural objects, a core issue in both the 1970 Convention and the 1995 UNIDROIT Convention, several countries already try to control the import itself. New Zealand, in addition to Canada, might be one of only a few countries which declare the import of unlawfully exported movable cultural heritage to be explicitly illegal, as Section 10A of the POA says that ‘a person

1031 1032

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may not import into New Zealand an unlawfully exported protected foreign object’. Countries such as Croatia or the Czech Republic try to control the import of movable cultural objects by asking the importer to report the import to the responsible national authorities and prove that the exporting state licensed the respective export/import.1033 Other countries such as Spain, with only optional import declarations, or Mexico rather rely on collaboration between various authorities, in the case of Mexico e.g. of INTERPOL and the National Institute of Anthropology and History (hereafter the ‘NIAH’).1034 Still not unified are the national regimes especially in the field of litigation in relation to bona fide purchase and return claims. With the 1995 UNIDROIT Convention still not being ratified by many major art markets and the 1970 Convention having a vague framework, unification remains a problem, although several countries, including Germany, Canada, Japan or Switzerland, have enacted special regulations of law implementing (at least) the 1970 Convention. Concerns with various issues are raised by this. These include the question of the general possibility to purchase movable objects bona fide, possible differentiations between normal movable objects and movable cultural objects, the distribution of the burden of proof or time limitations for claims. While some countries, such as Croatia or Tunisia put the burden of proof with regard to the question whether the purchaser was at the time of the acquisition bona fide or not basically on the claimant, others such as Italy choose the opposite way. In New Zealand, for example, the legal situation is not yet clear, as the new POA does not answer the question of distributing the burden of proof sufficiently.1035 The regulation of time limitations is also diverse and differs with respect to the question of applicability of various international tools, including the 1995 UNIDROIT Convention, or—on a practically limited area—the European Council Directive 93/7/EEC. The possibilities range from claimant-friendly systems with no time limitations, like under the Croatian Ownership Act1036 to two years

1033 UNESCO, Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970): Reports by Member States and Other States Parties on the Action They Have Taken to Implement the Convention (UNESCO Doc. 32 C/24 of July 31, 2003) p. 5 et seq.—available online at http://unesdoc.unesco.org/images/0013/001309/130905E.pdf (last visited on December 31, 2008). 1034 UNESCO, Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970): Reports by Member States and Other States Parties on the Action They Have Taken to Implement the Convention (UNESCO Doc. 32 C/24 of July 31, 2003) p. 11 and p. 15.—available online at http://unesdoc.unesco.org/images/0013/001309/130905E.pdf (last visited on December 31, 2008). 1035 Davies and Myburgh, loc. cit. n. 956, p. 15 et seq. 1036 See Croatian report, section 2.2. and Articles 118 et seq. COA and supra II.2.2.2. for details.

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under the Taiwanese system, a regulation which—in contrast to many other Taiwanese areas related to cultural heritage protection—was not influenced by the recent development of Japanese law. The Japanese Act on Controls on the Illicit Export and Import and other matters of Cultural Property, which was enacted in 2002 as a national implementation of the 1970 Convention, provides an example of a country which, influenced by international trends, extended its normal time limitation for return rights to ten years, improving the position of a (former) owner of a movable cultural object in comparison to an owner of a normal movable object by eight years. Inspired and in conformity with Article 5 (d) of the 1970 Convention most countries installed supervising controls over excavations. Trying to prevent illicit excavations, excavations basically may only be carried out with further approval of the responsible authority. Depending on the national distribution of competences this can be a central authority, like the Mexican NIAH,1037 or regional authorities like Spanish authorities on the level of the autonomous communities.1038 Not infrequently efforts are made on a national basis to strengthen the system of excavation permits through the introduction of penal sanctions in cases of unauthorized excavations. The national or regional interest in the protection of still undiscovered movable cultural objects is also expressed by national rules with respect to the law of finds. The majority of countries declare found movable cultural objects automatically state owned or in several cases, such as in the Czech Republic or Switzerland, owned by the province/canton the object was found in. In general, finders are obliged to report finds to the responsible authority and in several countries receive a monetary reward in return. Some national systems introduce state options instead of automatic declaration as state/regional property. According systems can be found e.g. in France or in the Czech Republic, where the state authority can choose between becoming the owner or leaving the object to the finder. There are however also exceptions of the basic principle of (possible) state/regional ownership. Movable cultural objects found on sites not protected by the Dutch Monuments Act fall under the general law of finds regime of the Dutch Civil Code. According to the pertinent rules ownership is divided between the finder and the landowner by even shares, even if the found object itself would qualify as a movable tangible cultural object under 1037 UNESCO, Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970): Reports by Member States and Other States Parties on the Action They Have Taken to Implement the Convention (UNESCO Doc. 32 C/24 of July 31, 2003) p. 11.—available online at http:// unesdoc.unesco.org/images/0013/001309/130905E.pdf (last visited on December 31, 2008). 1038 UNESCO, Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970): Reports by Member States and Other States Parties on the Action They Have Taken to Implement the Convention (UNESCO Doc. 32 C/24 of July 31, 2003) p. 14.—available online at http:// unesdoc.unesco.org/images/0013/001309/130905E.pdf (last visited on December 31, 2008).

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the Dutch legislation.1039 Also New Zealand with its comparatively strong protection of indigenous groups’ rights in the field of cultural heritage introduced a different regime as far as Māori artifacts are concerned. As Myburgh explains ‘found Māori artefacts are prima facie owned by the Crown until ownership is determined, in which case the artefact passes into the communal ownership’.1040 The issue of granting rights to groups and communities or involving them actively in the legislative policy is also an interesting topic in relation to movable tangible cultural heritage, showing similarities to the concept already outlined in the context of immovable cultural heritage.1041 Among the 16 countries which have contributed to the underlying study, New Zealand and the United States provide for the most extensive national systems respecting the interests of groups and communities. This is reflected by the fact that also in relation to movables Māori groups can be owners and thus can have a right in rem, something which distinguishes the New Zealand system from most other national concepts. Recently, the position of Māori has been further improved, not only on paper, but also in practice, as many museums have started to closely work together with indigenous groups in the field of cultural heritage protection and have even returned objects to them.1042 In the United States the above-mentioned Native American Graves Protection and Repatriation Act (NAGPRA)1043 provides for a comprehensive involvement of indigenous groups and communities also in the area of movable tangible cultural heritage. The integration of such groups and communities is guaranteed by a framework built on the granting of extensive rights—also including property rights—, repatriation provisions for the return of indigenous tangible cultural objects and a specialized dispute-resolution body inter alia applying a detailed statutory regime of repatriation related questions.1044 While European countries basically do not grant property rights to indigenous groups due to their lack of legal capacity, Canada is another country with (limited) respect for aboriginal groups’ rights. While most Canadian legal statutes in this field deal with immovable cultural heritage, the Indian Act of 1876 protects the interests of aboriginal groups to some extent as its Section 91 prohibits the acquisition of certain defined objects related to aboriginal people.1045

1039 1040 1041 1042 1043 1044 1045

See Dutch report, section 3.2.3. for details. New Zealand report, section 2.2.1. See supra II.2.1.2. and II.2.1.3. See New Zealand report, section 2.2.5. See supra II.2.1.2. and II.2.2.2. See supra II.2.2.2. and United States report, section 2.2.1.2. for details. For details see Canadian report, section 2.2.2. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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2.3. Special National Regulations with Regard to the Protection and Preservation of Movable Tangible Cultural Heritage in Armed Conflicts 2.3.1. General Issues As outlined in Part I of this report, modern concepts of cultural heritage protection and preservation derived from the idea of protecting cultural heritage against its destruction and exploitation during and resulting from armed conflicts.1046 The 1954 Convention1047—which was later supplemented by its Second Protocol in 19991048—and its accompanying First Protocol1049 were the first comprehensive UNESCO tools dealing solely with issues related to tangible cultural heritage protection on a non-regional level. With the exclusion of Taiwan which is not a State Party to any convention discussed in Part I, 13 out of the 16 countries which took part in this study are States Parties to the 1954 Convention and its First Protocol, eight countries have joined the Second Protocol. In addition, as of the end of 2008, the United States is completing the process of ratifying the 1954 Convention and its two Protocols.1050 As the 1954 Convention and its two protocols provide for several special regulations in relation to armed conflicts, we should take a short look at if—and if yes, how—various countries reacted and introduced special measures with regard to tangible cultural heritage on a national level. As we will see in the following, quite surprisingly not all States Parties to the 1954 Convention and its First Protocol have introduced special regulations for the protection of tangible cultural heritage against destruction and exploitation in the course of armed conflicts, as—according to the respective national reporter(s)—only nine out of 13 countries, which are States Parties to those two instruments, provide for a—in some cases quite extensive, in other cases only rudimentary—national legal framework: the Czech Republic,1051 France,1052 Mexico1053 and Tunisia1054 refrained from doing so. On the other hand, the United States, New Zealand and Taiwan, all three not States Parties to either the 1954 Convention or one of its two protocols,1055 include some special provisions in their national legislation.

1046

See supra I.2. For details see supra I.2.1. 1048 For details see supra I.2.3. 1049 For details see supra I.2.2. 1050 See United States report, section 2.1.1.3. 1051 See Czech report, section 2.2. 1052 See French report, section 2.2.4.4.2.3., where Cornu notes that France ‘only implements recommendations regarding the identification of goods provided by the 1954 Convention’, but has not enacted any national law. 1053 See Mexican report, section 2.2. and section 3.1.1. 1054 See Tunisian report, section 2.1. and section 2.2. 1055 See infra table. 1047

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2.3.2. National Protective Regimes for Tangible Cultural Heritage in Relation to Armed Conflicts Switzerland, a State Party to the 1954 Convention and both protocols, belongs to the group of those countries which implemented the international tools by the enactment of a special national law, the Federal Act on the Protection of Cultural Property in the Event of Armed Conflict1056 (APCPAC) of 1968. Not only does the APCPAC implement the 1954 Convention extensively, but it also adapts its terminology as can be seen e.g. by the definition of the term cultural property. Article 3 of the APCPAC1057 defines it as ‘declared wars, other armed conflicts between two or more states and armed conflicts that are not international in nature,’ adding that it ‘also includes violations of neutrality and resisting these with violence.’ The national regulations resemble its model laws, the 1954 Convention and its First Protocol, basing the legal concept on two ideas: safeguarding and respecting cultural property. While the first applies to precautionary measures to be taken in order to avoid damage in the course of armed conflicts, the second one has to be understood in a broad way also comprising the prohibition of illegally removing and taking cultural properties.1058 Competences and obligations under the APCPAC are divided between the federation, the Swiss cantons and municipalities. Also property owners and the army are involved in the complex system of safeguarding and respecting cultural objects.1059 Generally speaking, the APCPAC introduces a comprehensive system of tangible cultural heritage protection and regulates various key provisions of the 1954 Convention on a national level, including the concept of the waiver system in cases of military necessity, the establishment of shelters and refuges, the designation with the distinctive emblem of Article 6 of the 1954 Convention, the creation of inventories on federal, cantonal and municipal levels as well as the training of specialized staff. By doing this it can be said that the APCPAC is one of the most detailed national laws having implemented the 1954 Convention. Canada, a State Party to the 1954 Convention and its two protocols, mainly implemented these international tools by installing new and stricter penal rules with regard to ‘the theft and destruction of cultural property’1060 in various laws: the federal Crimes Against Humanity and War Crimes Act (hereafter the ‘AHWCA’), the Cultural Property Export and Import Act and the Criminal Code. As war crimes against or crimes against humanity are

1056

Bundesgesetz über den Schutz der Kulturgüter bei bewaffneten Konflikten. See Articles 18 (1) and 19 (1) 1954 Convention and see also supra I.2.1.2. 1058 For details on safeguarding and respecting measures see Swiss report, section 2.1.1.2. 1059 For details on the involvement of the federation, the cantons and municipalities, as well as owners of cultural property and the army see Swiss report, section 2.1.1.2. 1060 Canadian report, section 2.2.7. 1057

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further not subject to a time limitation under Canadian law, repatriation claims under the AHWCA and recently also under the Canadian Criminal Code are facilitated.1061 Croatia is another example of a country which introduced new penal provisions subsequent to the ratification of the 1954 Convention.1062 Unlike Canada with its AHWCA, it did not, however, install a separate law dealing with issues in relation to the scope of the 1954 Convention and its two protocols. Pertinent national regulations can be found in the Croatian Cultural Heritage Act (CHA) in the framework of ‘protection of . . . cultural heritage under extraordinary circumstances.’1063 While not defining the term armed conflict by itself—instead Croatian case law applies common international definitions—the CHA especially stipulates preventive measures to be carried out in peacetime.1064 Germany, a State Party to the 1954 Convention and its First Protocol, enacted a set of special regulations of law just recently in 2007, the federal Act Implementing the Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict1065 (AHC). This act is supported by various older laws1066 and the further above-mentioned state acts on the preservation of monuments,1067 which all together transform the international framework of the 1954 Convention extensively into national law. The marking of respective objects with the distinctive emblem of Article 6 of the 1954 Convention1068 is made in many cases which also applies to the installation of refuges.1069 Germany also installed several authorities responsible for carrying out the tasks related to the 1954 Convention and its national implementation. This applies to both protected immovable and movable tangible cultural heritage.1070 Like Germany, Japan also enacted a set of special regulations of law dealing with the implementation of the 1954 Convention in 2007 when it became a State Party to the 1954 Convention: the Law for the Protection of Cultural Properties in the Event of Armed Conflict1071 (hereafter LPCPAC), supplementing the Japanese Law for the Protection of Cultural Properties which does not provide for any special rules. In addition to the introduction of new

1061

See Canadian report, section 2.2.7. See Article 167 Croatian Penal Code and Croatian report, section 2.1. 1063 Articles 75 et seq. CHA and Croatian report, section 2.1. 1064 See Croatian report, section 2.1. 1065 Gesetz zur Ausführung der Konvention vom 14. Mai 1954 zum Schutz von Kulturgut bei bewaffneten Konflikten. 1066 See German report, section 5.6. 1067 See supra II.1.1.2.5. and II.2.1.2. 1068 See supra I.2.1.3. 1069 See supra I.2.1.3. 1070 For details see German report, section 5.6. 1071 武力紛争の際の文化財の保護に関する法律. 1062

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penal sanctions, the LPCPAC also provides for certain precautionary measures, including proper information for the Japanese Self-Defence Forces. The Netherlands, a State Party to the 1954 Convention and its First Protocol since 1958, has only enacted a special national legal statute for implementing the First Protocol, not also in relation to the 1954 Convention itself, as, according to Lubina, it is believed that ‘only the First Protocol needed to be concerted into national law as its provisions left a certain margin of appreciation to state authorities and affected the rights and duties of the Dutch citizen.’1072 Nevertheless, certain national regulations directly linked to the 1954 Convention can be found in various national laws.1073 In addition to legislation aimed at cultural heritage respect and protection awareness training of groups possibly highly affected in armed conflicts, especially of members of the Dutch army, obligations to take precautionary measures can be found in the context of the Act on the Improvement of Disaster Relief. It should also be noted that there are several non-governmental initiatives focusing on the protection of Dutch cultural heritage from the threats of armed conflicts.1074 In contrast to the parameters of the 1954 Convention, the First Protocol was implemented by a set of special regulations of law, the 2007 Act on the Return of Cultural Objects Removed from Occupied Territories1075 (hereafter the ‘ARCOROT’), ten years after the culmination of an eye-opening restitution case involving the Greek Orthodox Church of Cyprus, which proved the necessity of implementing the pertinent provisions into national law.1076 In contrast to Denmark, where it is argued that the First Protocol only applies to cases of removal from an occupied country which is a State Party to the First Protocol,1077 the basic Dutch understanding follows a broader view, which was already outlined in the Part I of this report, namely that not only property situated in territories belonging to States Parties, but also property in other territories falls within the regulatory framework of Section 1 First Protocol.1078 The ARCOROT led to several practical changes within the Dutch legal framework, as respective recovery claims are not subject to a time limitation and are based on a special regime of litigation involving the Minister of Culture.1079

1072

Dutch report, section 3.1.6. See Dutch report, section 3.1.6. for details. 1074 See Dutch report, section 3.1.6. 1075 Wet van 8 maart 2007, houdende regels over inbewaringneming en instelling van een vordering tot teruggave van cultuurgoederen afkomstig uit een tijdens een gewapend conflict bezet gebied (Wet tot teruggave cultuurgoederen afkomstig uit bezet gebied). 1076 For details on the case see Dutch report, section 3.2.6. 1077 See Danish report, section 4.3. 1078 See supra I.2.2.1. and Dutch report, section 3.2.6. 1079 For details on the system, including questions about the temporal scope of application, the burden of proof minor role of bona fide see Dutch report, section 3.2.6. 1073

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Unlike the above-mentioned countries, Spain just covers the penal aspects in the field of cultural heritage protection in armed conflicts, whereas one will look for the implementation of other regulations of the 1954 Convention and its two protocols in vain. Articles 608 to 614 bis of the Spanish Penal Code also list various crimes committed in the course of armed conflicts in relation to cultural objects and basically take a similar approach as comparable legal statutes in most other countries, raising the possible penalties for the destruction of tangible cultural objects.1080 Denmark, which signed the 1954 Convention and its First Protocol in 1954, but did not ratify them until 2003, is another example of a country with no special single law implementing the international parameters. Instead, various relating issues are covered by a patchwork of laws which already existed prior to the ratifications. Although, according to Tamm and Østrup, the Danish Ministry of Culture is of the opinion that the current Danish legal framework is sufficient to deal with the international obligations,1081 it is currently (as of December 31, 2008) in the course of ‘preparing the establishment of an advisory committee of representatives from the pertinent authorities and organs, which is to supervise the implementation of and compliance with the 1954 Convention and the First Protocol.’1082 Like most other countries, Denmark also does not define the term armed conflict, but relies on internationally used definitions such as the definition used by the International Criminal Tribunal for the Former Yugoslavia in its case The Prosecutor v. Dusko Tadic expressing that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.’1083 Regulations concerning the installation of precautionary measures in terms of the 1954 Convention and restitution matters in relation to illegally imported cultural objects in the course of armed conflicts can also be found in Italian national law, mainly copying the respective texts into national legal statutes.1084 Although New Zealand and Taiwan are not States Parties to the 1954 Convention or either of its Protocols, both countries also introduced some regulations (partly) dealing with issues covered by those instruments. While the New Zealand Defence Forces respect cultural heritage ‘while overseas through Defence regulations’,1085 Taiwan touches on the issue of cultural

1080 1081 1082 1083 1084 1085

See Articles 608 to 614 bis Spanish Penal Code and Spanish report, section 3.1.6. See Danish report, section 4.2. Danish report, section 4.2. See also supra I.2.1.2. See Italian report, section 4.2. New Zealand report, section 1.1. and section 2.2.6. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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heritage protection during armed conflicts with regard to movables as it allows their export ‘for avoidance of damage’.1086 The United States take an approach similar to the New Zealand system, as despite being a non-State Party to the 1954 Convention the national system focuses on the awareness raising of military personnel in relation to cultural heritage to be found on foreign territories and the respect for it.1087 In addition, the United States also follows a strict policy when it comes to questions of ‘importation and acquisition of looted material in the circumstances of armed conflict or occupation.’1088 2.3.3. Conclusion The 1954 Convention—supplemented by its Second Protocol in 1999—and the accompanying First Protocol are the oldest major international tools discussed in Part I of this report. Although the international acceptance of these tools is not too low, practical complications can still be found, as major military powers such as the United States or United Kingdom have not ratified those international instruments yet. During the seventh meeting of the High Contracting Parties to the 1954 Convention in December 2007, both countries have however signalized that they might do so in the near future.1089 In fact, at the Conference in Mexico City in November 2008 James Nafziger, the national reporter of the United States, discussed the progress of its preparation to ratify the 1954 Convention and the two Protocols. One has to wait and see for practical results. On the other hand, some countries which have already ratified the 1954 Convention still do not show any signs of taking steps to implement the tools on a national basis. In the case of Mexico, for example, Sánchez Cordero explains this by saying that the Mexican ‘participation [in military conflicts] has been purely symbolic . . . [and] the ratification of the Hague Convention to date has been merely a good will gesture of compliance.’1090 This does not however mean that the other members of the international community are passive as well and take a reluctant approach. Various examples prove the opposite: several countries provide for comprehensive military measures, especially expressed in the education of military staff. Already in 1964 the German Federal Minister of Defence issued military guidelines, the ‘International Law of War—Classroom Guidelines (Part 6)—The Protection

1086

See Taiwanese report, section 2.3. See United States report, section 2.1.1.3. and section 2.2.1.3. for details. 1088 United States report, section 2.2.1.3. 1089 See UNESCO, Final Report of the Seventh Meeting of the High Contracting Parties to the 1954 Hague Convention (Paris, UNESCO 2008) at p. 2.; available online at http://unesdoc .unesco.org/images/0016/001603/160373E.pdf (last visited on December 31, 2008). 1090 Mexican report, section 3.1.1. 1087

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of Cultural Property in the Event of Armed Conflict’,1091 followed by several supplementary documents. German military district commands also keep cultural property lists, marking those objects on military maps.1092 The approach of special cultural heritage education for army members is also taken by numerous other countries, including e.g. Italy, Mexico, the Netherlands and Spain. Several national armies also installed special sections covering issues related to the compliance with the rules set forth by the 1954 Convention and the respective national legal framework.1093 Awareness raising is however not only carried out with respect to armed forces; several countries in accordance with Article 25 of the 1954 Convention (keyword: dissemination)1094 also try to involve ‘concerned civilian parties’1095 or museums to take necessary precautionary steps.1096 As one can also conclude from the previous subchapter and the respective national reports, national legislation in accordance with Article 28 of the 1954 Convention usually complete their implementation frameworks by also installing comparatively severe penal sanctions to be imposed in cases of breaches against the applicable regime for cultural heritage protection in the context of armed conflicts. Opinions of States Parties to the 1954 Convention are divided when it comes to the question of marking objects with the distinctive emblem of Article 6 of the 1954 Convention. While e.g. Germany has marked more than ten thousand objects already, other States Parties are more reluctant in doing so or totally refrain from it, basically arguing that ‘marking may unnecessarily alarm the civilian population’1097 or marking ‘would be a mistake to make a large number of items of cultural property visible by marking them with the shield.’1098

1091 Kriegsvölkerrecht—Leitfaden für den Unterricht (Teil 6)—Der Schutz von Kulturgut bei bewaffneten Konflikten (Lehrschrift)—see UNESCO, Report on the Implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and Its Two 1954 and 1999 Protocols: Report on the Activities from 1995 to 2004, (Paris, UNESCO 2005) at p. 10; available online at http://unesdoc.unesco.org/images/0014/001407/140792e.pdf (last visited on December 31, 2008). 1092 UNESCO report 2005, loc. cit. 1091, at p. 11. 1093 For details see UNESCO report 2005, loc. cit. 1091, p. 11 et seq. 1094 Article 25 1954 Convention: ‘The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the text of the present Convention and the Regulations for its execution as widely as possible in their respective countries. They undertake, in particular, to include the study thereof in their programmes of military and, if possible, civilian training, so that its principles are made known to the whole population, especially the armed forces and personnel engaged in the protection of cultural property.’ 1095 For details see UNESCO report 2005, loc. cit. 1091, at p. 19. 1096 For details see or details see UNESCO report 2005, loc. cit. 1091, p. 16 et seq. 1097 Spanish view—for details see UNESCO report 2005, loc. cit. 1091, at p. 15. 1098 Swiss view—for details see UNESCO report 2005, loc. cit. 1091, p. 15 et seq.

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As already explained in Part I of this report,1099 over the years the 1954 Convention has also been subject to criticism. One of the issues refers to the refuges in relation to the special protection under Article 8 of the 1954 Convention.1100 Respective refuges cannot be found in many countries. Switzerland, which generally plays an active role with regard to its national implementation of the 1954 Convention, expressed its reluctance to install Article 8 refuges by pointing out the main obstacles to a national compliance with Article 8 of the 1954 Convention, including especially the criteria of sufficient space around a designated refuge stipulated by Article 8 (1) (a) of the 1954 Convention.1101 Time will tell if the Second Protocol with its enhancements also in this area1102 finds an appropriate national acceptance and can lead to practical improvements on a national basis. 2.4. Special National Regulations with Regard to the Protection and Preservation of Underwater Movable Tangible Cultural Heritage 2.4.1. General Issues The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage entered into force in January 2009, as 20 countries have accepted or ratified it1103 pursuant to Article 27. With regard to the present study and as of December 31, 2008 only three out of 16 countries have become States Parties to the 2001 Convention: Croatia, Mexico and Spain. Nevertheless, as cultural heritage is not only to be found on land, but can also be located underwater, it is worth taking a look at the question if—and if yes, how—various national legal systems deal with underwater cultural heritage. Are there national concepts of underwater cultural heritage? If yes, what forms do they comprise? Do they differentiate between on land and underwater cultural heritage or do they apply the same legal regime? Is there already any reference made to the 2001 Convention on a national basis? The following subchapter will take a short look at these questions.

1099

See supra I.2.1.2., I.2.1.3., I.2.3.1. and I.2.3.2. For details see supra I.2.3.2. 1101 See UNESCO report 2005, loc. cit. 1091, at p. 14. 1102 For details see supra I.2.3. 1103 See http://portal.unesco.org/la/convention.asp?KO=13520&language=E&order=alpha (last visited on December 31, 2008). 1100

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2.4.2. National Protective Regimes for Underwater Tangible Cultural Heritage 2.4.2.1. Countries with (Certain) Special Regulations Canada, a coastal state which has not ratified the 2001 Convention yet, provides only for limited provisions related to the protection and preservation of underwater cultural heritage. The only legal statute partly dealing with this issue is the federal 2001 Canada Shipping Act (hereafter the ‘SA’).1104 Part 7 of the SA covers the group of wrecks defined by Article 153 of the SA, not distinguishing between wrecks of cultural value and normal wrecks, and especially deals with the law of finds regarding such wrecks if a person ‘finds and takes possession of [a] wreck in Canada, or . . . brings [a] wreck into Canada.’1105 Denmark, a coastal state not yet State Party to the 2001 Convention, regulates its maritime zones in various sets of special regulations of law.1106 Although there is no general definition of the terms submarine and underwater to be found in Danish legislation, it introduces special provisions for the protection and preservation of underwater cultural heritage by the means of two different legislative sets: ‘one for the archaeological heritage underwater within Danish jurisdiction and one for the archaeological heritage in the deep seabed area, i.e., outside Danish jurisdiction,’1107 both regulated by the Danish Museum Act (DaMuA). Archaeological underwater cultural heritage as defined under Articles 28 et seq. of the DaMuA found in maritime zones subject to Danish jurisdiction is declared to be state property, imposing special notification obligations on the finder.1108 The new Article 28 (a) of the DaMuA, on the other hand, deals with archaeological underwater cultural heritage to be found in maritime areas outside the Danish jurisdiction. Tamm and Østrup explain that this provision was inserted in order to be able to ratify the United Nations Convention on the Law of the Sea of 1982,1109 while the 2001 Convention has not been of any influence yet.1110 They also note that ‘[s]uch submarine archaeological heritage belongs

1104

See Canadian report, section 2.2.8. Article 155 (1) SA; for the Canadian definition of the various maritime zones see Part I of the federal Oceans Act 1996 which can be found online at http://laws.justice.gc.ca/en/O2.4/index.html (last visited on December 31, 2008). 1106 See e.g. http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/ DNK.htm (last visited on December 31, 2008). 1107 See Danish report, section 3.3. for further references. 1108 See Danish report, section 3.3.2. for details. 1109 For details on pertinent provisions of the United Nations Convention on the Law of the Sea of 1982 see supra I.6.1. 1110 See Danish report, section 3.3.2. 1105

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to the Danish State unless other states or private individuals are able to prove their . . . [property] rights.’1111 Despite not being a State Party to the 2001 Convention, the French legislation covers the issue of underwater cultural heritage protection and preservation quite extensively within the framework of the French Code of Cultural Heritage (CCH), using a comprehensive definition of the term underwater cultural property in Article L. 532–1 of the CCH. This definition comprises movable and immovable forms such as ‘deposits, shipwrecks, remains or more generally any property of prehistoric, archaeological or historical interest, which are located in the maritime public domain or on the seabed in the contiguous zone.’1112 The French system adopts the concept of in situ protection, obliges a finder to report the discovery to the competent authority and sanctions breaches, such as unauthorized exploration activities,1113 introducing a couple of special provisions to be applicable in addition to the general regulations of the CCH. Found objects usually fall under state ownership, which is only overturned by private ownership if the respective owner can be determined through a special process of making the discovery public.1114 Like in most other countries, definitions of maritime zones are not included in the legal framework of underwater cultural heritage protection, but subject to sets of special regulations of law. In the case of France, there exists a patchwork of legal statutes, most of them comparatively old, with the first one dating back to 1967.1115 The national regulation of underwater cultural heritage protection and preservation in Italy, which has not yet ratified the 2001 Convention, might come as a surprise. While there are some similarities to France, such as defining various maritime zones in various sets of special regulations of law1116 or regulating the issue of underwater cultural heritage in the framework of its core law related to cultural heritage protection, the Code of Cultural Properties and Landscape (CCPL), the way in which underwater cultural heritage protection is addressed differs and can be seen as a unique way for a country which—at the time of writing this report—is not a State Party to the 2001 Convention. Article 94 of the CCPL, the only provision of the CCPL directly linked to underwater cultural heritage,1117 directly refers to the 2001 Convention

1111

Danish report, section 3.3.2. French report, section 2.1.3.2.2. 1113 See French report, section 2.1.3.2.2; see also French report, section 2.2.4.4.2.3., stating that basically the same provisions are applicable to immovable and movable underwater cultural heritage. 1114 See French report, section 2.1.3.2.2. 1115 A list of French legal statutes can be found online at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/FRA.htm (last visited on December 31, 2008). 1116 A list of respective legal statutes can be found online at http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/STATEFILES/ITA.htm (last visited on December 31, 2008). 1117 See Italian report, section 4. 1112

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as it stipulates that ‘archaeological and historical objects found in the seabed of the maritime area extended 12 miles departing from the external border of the territorial sea are safeguarded pursuant to the ‘Rules concerning activities directed at underwater cultural heritage’ attached to the [2001] UNESCO Convention on the protection of underwater cultural heritage.’1118 Taking this approach, Italy is even more “progressive” than many countries which are already States Parties to the 2001 Convention, as some of them have not introduced links between the respective national legislation and the 2001 Convention yet. Tunisia, defining its maritime zones basically by two laws, one enacted in 1973, the other one in 2005,1119 strictly distinguishes between on land and underwater cultural heritage. With regard to the latter one which is regulated by the Code of Archaeological and Historical Heritage and Traditional Arts (CAHH) and the 1989 Law on Maritime Wrecks (hereafter the ‘LMW’), Article 73 of the CAHH introduces a special regulation and declares all discovered archaeological objects ‘discovered in internal waters or territorial waters property of the state.’1120 This, according to Ben Jémia, is the main difference between the two concepts, as on land cultural heritage can also be privately owned.1121 The regulations in the CAHH are supplemented by the definitions of the term maritime wrecks in Article 1 of the LMW, which defines the culturally significant ones as ‘all the objects without owner including the objects of archaeological or historical character which are: run ashore or washed up by the sea on the shores or the riverbanks; drifted from the bottom of the sea into the internal waters, territorial sea or the contiguous zone; found floating in the internal waters or in the territorial sea; found floating in the exclusive economic zone or drifted from this zone but beyond the contiguous zone and drifted back to the territorial sea, to internal waters or to riverbanks.’1122 The United States, one of the most powerful coastal states, is not a State Party to the 2001 Convention. However, over the past 20 years it has established a quite comprehensive national legal framework applicable to underwater cultural heritage. What started with the application of general rules of the law of salvage and finds has shifted its focus to special rules in relation to wrecks and underwater cultural artifacts.1123 In addition to a patchy definition

1118

Italian report, section 4. with further details. Act No. 73–49 delimiting the territorial waters and Act No. 50/2005 concerning the exclusive economic zone off the Tunisian coasts—see http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/TUN.htm (last visited on December 31, 2008). 1120 Tunisian report, section 2.1. 1121 See Tunisian report, section 2.1. 1122 Tunisian report, section 2.1. 1123 For a historic overview see United States report, section 2.1.1.4. 1119

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of maritime zones1124 the United States introduced the Abandoned Shipwreck Act in 1987, transferring the ‘authority over coastal wreck from the federal admiralty courts to the President for retransfer to coastal states’1125 and also transferring ‘title to the wrecks to the states in which they are located.’1126 On an international level the United States is quite active in the conclusion of bilateral treaties and the recognition of other international legal tools, complemented by various pertinent underwater cultural heritage related court cases.1127 Nafziger notes that the recent trends in this area contain three key features: ‘to fashion a constructive in rem basis of adjudicatory jurisdiction; to apply the jus gentium and conventional international law more credibly and responsibly; and to redefine the general maritime law in terms of comparative insights and law-of-the-sea norms.’1128 Croatia, a further coastal state, is one of the three countries contributing to the underlying study which has already become a State Party to the 2001 Convention, ratifying it in 2004. It defines its maritime zones in Part II of its massive Maritime Code 1994, which comprises more than 1000 Articles recently revised in 2004.1129 With regard to underwater cultural heritage the integrative Croatian Cultural Heritage Act (CHA) puts it under a similar regime as on land cultural heritage, with Article 49 (1) of the CHA stipulating that basically the same rules on archaeological excavations and research apply to underwater cultural heritage. Article 50 of the CHA, however, introduces a special permit procedure of the ‘competent port authority’1130 in relation to the removal of ‘submerged objects that are or that are thought to be part of the cultural heritage.’1131 2.4.2.2. Countries without Special Regulations There are however a couple of countries, coastal states as well as land-locked countries, which do not contain regimes of special regulations of law for the protection and preservation of underwater cultural heritage.

1124 See the list available online at http://www.un.org/Depts/los/LEGISLATIONAND TREATIES/STATEFILES/USA.htm (last visited on December 31, 2008). 1125 United States report, section 2.1.1.4. 1126 United States report, section 2.2.1.4. 1127 See United States report, section 2.1.1.4. 1128 United States report, section 2.1.1.4. 1129 See e.g. B. Vukas, ‘Pomorski Zakonik Republike Hrvatske i Međunarodno Pravo Mora’ [The Maritime Code of The Republic of Croatia and the Law of the Sea], 58 Zbornik Pravnog fakulteta u Zagrebu (2008) p. 181 at p. 181; an English summary is available online at http:// hrcak.srce.hr/index.php?show=clanak&id_clanak_jezik=32061 (last visited on December 31, 2008). 1130 Croatian report, section 2.1. 1131 Croatian report, section 2.1.

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No special provisions on underwater cultural heritage can be for example found in the legal frameworks of the Czech Republic1132 and Switzerland, both land-locked countries. Also Japan, though completely surrounded by water, does not distinguish between on land and underwater cultural heritage.1133 It does however define its maritime zones in two separate legal statutes: the 1977 Law on the Territorial Sea and the Contiguous Zone,1134 amended in 1996, and the 1996 Law on the Exclusive Economic Zone and the Continental Shelf.1135 The same applies to the Taiwanese legal system of underwater cultural heritage protection. Like its Japanese model law, it does not distinguish between protective measures for cultural properties on land and underwater. The same rules are applicable to both forms.1136 Germany and the Netherlands are some other examples of countries without special regulations for underwater cultural heritage. Although being coastal states and having defined various maritime zones in tools of special regulations of law,1137 they do not distinguish between cultural heritage being found on land or underwater. Protective regulations conceptualized for the first category applicable to archaeological objects and the regime of treasure trove are also applicable to forms of underwater cultural heritage.1138 New Zealand, defining its maritime zones in accordance with the 1982 United Nations Convention on the Law of the Sea,1139 has not introduced a special protective regime for its underwater cultural heritage so far, but includes underwater forms of cultural heritage in the general framework of the Historic Places Act 1993 (HPA) as pursuant to Section 2 (a) (ii) of the HPA the protected group of archaeological sites also includes ‘site[s] of the wreck of any vessel where that wreck occurred before 1900,’ which as

1132

See Czech report, section 2.2. See Japanese report, section 2.3., section 2.5., section 3.1.7 and section 3.2.7. 1134 領海及び接続水域に関する法律; an English translation of this law can be found online at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/JPN_1996_Law .pdf (last visited on December 31, 2008). 1135 排他的経済水域及び大陸棚に関する法律; an English translation of this law can be found online at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ JPN_1996_Law74.pdf (last visited on December 31, 2008). 1136 See Taiwanese report, section 2.3. and section 2.4. 1137 A list of the German legislation can be found online at http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/STATEFILES/DEU.htm (last visited on December 31, 2008); a list of the Dutch legislation is available online at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/NLD.htm (last visited on December 31, 2008); in addition there is also the Act Establishing a Contiguous Zone for the Kingdom—see Dutch report, section 3.1.7. 1138 See German report, section 3.1., section 3.1.4., section 4.7. and section 5.7., and Dutch report, section 3.1.7. 1139 See New Zealand report, section 1.1., and Territorial Sea and Exclusive Economic Zone Act 1977, the latter one available online at http://www.un.org/Depts/los/LEGISLATION ANDTREATIES/PDFFILES/NZL_1980_Act.pdf (last visited on December 31, 2008). 1133

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Myburgh notes, ‘are found within the territorial limits of New Zealand.’1140 He further points out that various forms of underwater Māori cultural heritage also fall under the general framework of the HPA, be it within the concept of archaeological sites or historic places.1141 Aside from the expressive mentioning of this form of underwater cultural heritage no special regulations on its protection and preservation can be found in the HPA, as the HPA ‘draws no distinction between land-based and underwater cultural heritage.’1142 Not only land-locked countries or coastal states which have not ratified the 2001 Convention, but even not all States Parties to the 2001 Convention have enacted national sets of special regulations of law in the fields of underwater cultural heritage. This is, according to Sánchez Cordero, the case in, for example, Mexico which ratified the 2001 Convention in 2006, but has not introduced any national legislation in this respect.1143 Spain, also a State Party to the 2001 Convention, does not deal with underwater cultural heritage as special category in its national legal framework either. Spain, defining maritime zones in various legal tools of which some go back to the 1970s,1144 has not dealt with the issue of underwater cultural heritage protection on a national level so far, but, according to de Salas, might be on the way, as the legislature discussed the creation of a respective preliminary draft in the first half of 2008.1145 She also points out that the protection of underwater cultural heritage would be dealt with differently compared to on land cultural heritage, as the first one falls under the exclusive competence of centralized legislation.1146 The only regulation which is said to be already applicable to underwater cultural heritage can be found in the federal Law on the Historical Heritage of Spain (LHHS), as ‘excavation, prospecting, archaeology and discoveries’1147 of archaeological cultural properties also comprise those to be found underwater. 2.4.3. Conclusion The form of underwater cultural heritage has been neglected for a long time. As shown above, the rudimentary regulations contained in the United Nations Convention on the Law of the Sea of 1982 have been subject to heavy 1140

New Zealand report, section 2.1.7. See New Zealand report, section 2.1.7. 1142 New Zealand report, section 2.1.7. 1143 See Mexican report, section 3.1.2.; for a list of national laws in relation to Mexican maritime zone see e.g. http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ STATEFILES/MEX.htm (last visited on December 31, 2008). 1144 For a list of the respective Spanish legal mechanisms see e.g. http://www.un.org/Depts/ los/LEGISLATIONANDTREATIES/STATEFILES/ESP.htm (last visited on December 31, 2008). 1145 See Spanish report, section 1.1. 1146 See Spanish report, section 1.1. 1147 Spanish report, section 3.1.7. 1141

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criticism.1148 Less than ten years ago, the international community could find a compromise and installed the 2001 Convention which can possibly lead to a more effective and comprehensive protective regime for underwater cultural heritage. At the same time it must be noted that progress on a national basis is also being made, albeit slowly. Since the 2001 Convention has just entered into force, one might look for massive changes of national legislation in vain. Exceptions however prove the rule: while some countries which signed or have ratified the 2001 Convention still lack any national implementation steps, Italy—despite not yet being a State Party to the 2001 Convention— has shown some first signals as its core law, the Code of Cultural Properties and Landscape (CCPL), already expressly refers to that convention asking for taking safeguarding measures up to and including its contiguous zone in accordance with the 2001 Convention.1149 It will also be interesting to see how Spain will react to the input of the 2001 Convention which it ratified in 2005; interesting also due to the fact that the Spanish competence distribution between national and regional legislation for on land and underwater located cultural heritage differ.1150 Although neither being a State Party to the 2001 Convention nor being influenced by that convention, the United States represents also the international trend in the protection of underwater cultural heritage, as over the past 20 years its legislative framework has shifted from keeping silent on underwater forms of cultural heritage to actively addressing related issues on a national level as well as on an international level.1151 At present, the majority of countries however do not distinguish between on land and underwater located cultural heritage (to a large extent). Many national legal systems include the latter one in their general concepts or declare general rules applicable also to underwater cultural heritage and by doing this concentrate on mere national aspects. However, one cannot deny that especially underwater cultural heritage—due to its location—also heavily depends on international cooperation and conciliation. What Myburgh expressed in relation to New Zealand, being neither a State Party to the 2001 Convention yet nor having any of its domestic laws influenced by that convention—is also the case with regard to other countries: ‘[O]ne can only hope’1152 for further ratifications of the 2001 Convention and influences on national legislation. As the Italian example shows the 2001 Convention at least raised the awareness of the need for a more comprehensive approach to some extent; time will tell if this could lead the way.

1148 1149 1150 1151 1152

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3. Intangible Cultural Heritage 3.1. General Issues In the last twenty years, international cultural heritage law has shifted its focus from focusing solely on tangible cultural heritage to comprising also intangible cultural heritage. The WHC Operational Guidelines have been amended to include certain aspects of intangible cultural heritage. In 2003, the Convention for the Safeguarding of the Intangible Cultural Heritage was adopted in order to provide a legal framework for safeguarding intangible cultural heritage. Two years later, in 2005, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted. This rounded off the international framework in the field of intangible cultural heritage protection, which had been initiated by the latest trends within the concept of the 1972 Convention and widened by the 2003 Convention, by focusing on the preservation of cultural diversity as enrichment for mankind.1153 In addition, recently, more and more certain traditional cultural products have become commercially valuable and have even led to the creation of new branches of industry. This has created tension between the communities who preserved these traditions for generations and the companies who want to exploit them commercially. In the following subchapters we will take a short look at how various countries deal with non-materialized forms of intangible cultural heritage. We will touch on several aspects, including the following questions: Do the countries include the regulation of intangible cultural heritage in their legal frameworks? Do they introduce special rules? Are there differences in comparison to tangible forms of cultural heritage? And what can be said about the role of groups and communities—how are they involved in national issues related to intangible cultural heritage? 3.2. National Approaches One has basically to distinguish between two opposite systems: on the one hand one can find a group of countries which address the issue of intangible cultural heritage protection by special heritage laws, be it in connection with laws also regulating tangible cultural heritage or in separate laws, be it on a federal or (also) on a regional level. On the other hand there is also a group of countries which (so far) have not installed a special regime, but instead—in the best case—touch on the issue in laws not primarily focusing

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on cultural heritage and its protection, but mainly in the framework of intellectual property law. In the following we will outline these two basic concepts showing how different countries deal with the same issue in different ways, some of them rather comprehensively, others only to some extent—if any. 3.2.1. Countries with Special Regulations When it comes to the protection of intangible cultural heritage, Croatia is among the most progressive countries as it installed a special regime covering this form of cultural heritage in addition to already existing safeguarding measures ‘not directly related to the protection of intangible cultural heritage.’1154 Intangible cultural heritage protection forms one pillar of the 1999 Croatian Cultural Heritage Act (CHA) and—though not being regulated in as much detail as its tangible counterpart—is subject to the protective regime of the CHA. The CHA defines the term intangible cultural heritage as ‘different forms and manifestations of human spiritual creativity in the past’1155 with ‘traditional and cultural expressions . . . enlisted as particular forms of intangible cultural heritage.’1156 While the CHA itself does not provide for a set of criteria applicable in the designation process, the Committee for Intangible Cultural Heritage as the main advisory body to the Ministry of Culture uses a detailed internal ‘control list’1157 for its recommendations, also stressing the position of related groups and communities as right holders.1158 The involvement of groups and communities must however not be understood in a way which grants the respective group or community the right to prohibit the use of its intangible cultural heritage and thus does not give them an absolute position comparable to ownership rights. Instead, if a certain form of intangible cultural heritage is recognized to “belong” to a group or community, it will lead to financial remuneration for its use, funds form the ‘monument annuity’ under Articles 112 and 113 of the CHA.1159 Safeguarding measures in relation to intangible cultural heritage resemble those used also for tangible forms of cultural heritage, including inter alia documentation and listing in the Register of the Cultural Heritage of the

1154

Croatian report, section 3.1. Article 9 CHA; see also Croatian report, section 3.1.; intangible cultural heritage comprises especially ‘language, dialects, speeches, toponyms and oral traditions and expressions; folklore creativity in the field of music, dance, performing arts, rituals, social practices and other traditional national values; traditional skills and craftsmanship’—see Croatian report, note 61 and Article 9 CHA. 1156 Article 9 CHA, see also Croatian report, section 3.1. 1157 Croatian report, section 3.1. 1158 For the list and details refer e.g. to Croatian report, section 3.1. 1159 For details see Croatian report, section 3.1. 1155

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Republic of Croatia, research and promotion.1160 Listing of intangible cultural heritage is important, as only listed forms will be covered by the safeguarding regime of the CHA.1161 If intangible cultural heritage is not at the same time protected by intellectual property laws—which it can be subject to fulfilling the pertinent intellectual property law requirements—its use is basically not prohibited under the CHA. When it comes to the question of misappropriation one has therefore to distinguish between three possible scenarios: unlisted forms of intangible cultural heritage to which intellectual property laws are not applicable are not protected, neither by the CHA nor by intellectual property laws. Designated and enlisted forms, not at the same time falling under the intellectual property law regime are subject to the remuneration concept of ‘monument annuity’, but their use is not prohibited. Forms (also) protected by intellectual property law cannot be used freely, as they underlie (also) the control of the intellectual property law regime. Gliha and Josipović however note that the CHA system does not work properly yet by saying that ‘the measures envisaged in the CHA are not yet applied to their full extent. In fact, except for registration of intangible cultural heritage other measures do not yet function. The system is yet to be established. At this moment, therefore, we cannot speak about particular measures for the protection of intangible cultural heritage.’1162 Like Croatia, but with a longer legal tradition, the Japanese legal framework includes the form of intangible cultural heritage in its main law on cultural heritage protection, the 1950 Japanese Law for the Protection of Cultural Properties (LPCP). Article 2 of the LPCP includes two groups of intangible cultural heritage—intangible cultural heritage in a narrow sense and intangible folk cultural heritage—defining them as: (1) ‘Plays, music, artistic techniques and other intangible cultural products which have for Japan high historical or artistic value’1163 and (2) ‘Manners, customs, folk performing arts . . . related to housing, food and clothing, trades, faith, annual festivals, etc. . . . which are indispensable for the understanding of the transitions in the lives of the Japanese people.’1164 Designation, listing and division into two levels are basically similar to the group of tangible cultural heritage.1165 The sets of criteria elaborated on an administrative level do however differ from their counterparts applicable to tangible cultural heritage and were drafted for exclusive application in relation to the various subgroups of intangible

1160

For details see Croatian report, section 3.1. See Croatian report, section 3.1. 1162 Croatian report, section 3.1. 1163 Article 2 lit 2 LPCP and Japanese report, section 2.1. 1164 Article 2 lit 3 LPCP and Japanese report, section 2.1. 1165 See Japanese report, section 4.1.1., section 4.1.2., section 4.1.2.1., section 4.1.2.2. and section 4.1.3. and supra II.2.1.2. and II.2.2.2. 1161

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cultural heritage.1166 In contrast to the group of tangible cultural heritage, groups and communities can be accredited as holders of intangible cultural heritage under the Japanese legal framework. Once designated as intangible cultural heritage, it is to be promoted, protected and passed on to the next generation by the respective holder. As far as the question of misappropriation of intangible cultural heritage is concerned, the Japanese legal system has no particular mechanism to deal with this. Though regulating the groups and designation process of intangible cultural heritage in detail, definitions and special regulation of intangible cultural heritage misappropriation are missing.1167 One might argue that e.g. Article 76 of the LPCP (‘Order or Advice on Custody’ of historic sites, places of scenic beauty and/or natural monuments) could therefore somehow be subject to conclusions by analogy, empowering the Commissioner of the Agency for Cultural Affairs to give only the necessary advice and/or recommendations and only ‘in cases where misappropriation of traditional knowledge or traditional cultural expression brings about changes in the substance of intangible cultural property and have a grave impact on the cultural property’s value.’1168 Aside from that, general intellectual property law rules come to application if its conditions and requirements are met.1169 Taiwan is another country taking an integrative approach by including the protection of intangible cultural heritage in its main law on cultural heritage, the 1982 Cultural Heritage Preservation Act (TCHPA). The Taiwanese approach nevertheless differs from the before-mentioned Croatian and Japanese systems, as the regulation on intangible cultural heritage is also based on a second important law, the new Protection Act for Traditional Intellectual Creation of Indigenous People (PATIC), enacted in 2007. The PATIC is a comparatively progressive law, as it grants extensive rights to groups and communities as holders of intangible cultural heritage. As far as the protection under the TCHPA is concerned one can say that two of seven cultural heritage groups1170 of Article 3 of the TCHPA comprise intangible forms: traditional arts and folklore. Designation and registration of intangible cultural heritage under the TCHPA primarily leads to a governmental ‘preservation plan including recording, inventory and teaching’1171 with preservation and promotion guided by the National Center for Traditional Arts. The PATIC, on the other hand, introduces an innovative concept of respecting and protecting intangible cultural heritage forms related to groups and communities. 1166 For a list of the sets of criteria see also Japanese report, section 4.1.2., section 4.1.2.1. and section 4.1.2.2. 1167 See Japanese report, section 4.2.1. and section 4.2.2. 1168 Japanese report, section 4.2.1. 1169 See Japanese report, section 4.2.2. 1170 For a complete listing see supra II.1.1.2.1. 1171 Taiwanese report, section 3.1.; see also Articles 60 and 61 TCHPA.

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Under the PATIC ‘indigenous people or tribes may apply for the protection of their traditional intellectual creation.’1172 Once designated and registered by the Council of Indigenous People under the protectorate of the Taiwanese cabinet, the respective group or community is regarded as the exclusive right holder. In the case of commercial exploitation of cultural intangible heritage protected under the PATIC the holding group or community is entitled to claim for damages.1173 The classification of the Tunisian system in relation to intangible cultural heritage protection is difficult, as it does not provide for a comprehensive regime comparable to the above-mentioned ones. That leads Ben Jémia to the statement that ‘there exists no special text’1174 for the safeguarding of intangible cultural heritage. It is true that there is no comprehensive law in this field. However, Tunisia—being a State Party to the 2003 Convention— enacted a legal tool aiming at controlling the use of folklore, an important pillar of intangible cultural heritage: the 1994 Law on Literary and Artistic Heritage1175 (LLAH). The LLAH introduces an authorization system for the extensive use of folklore under the control of the Ministry of Culture and Protection of Heritage. According to Ben Jémia, folklore, defined by Article 7 of the LLAH as ‘any artistic heritage inherited from the previous generations and connected to the customs and to the traditions and to any appearance of popular creation, such as popular stories, literature, music and dance,’1176 finds its protection if being ‘qualified as cultural when it has a national value from the historical, aesthetic or artisanal viewpoint.’1177 The protective system takes also copyright issues into account, protecting folklore against ‘any deformation or alteration.’1178 Promotion of intangible cultural heritage is also of importance in Tunisia which established a system of respective financial state subsidies.1179 3.2.2. Countries with Special Regulations (also) on a Regional Basis Due to its constitutional distribution of legislative competences in the field of cultural heritage with the main competences given to the cantons Switzerland is a prime example of a country with (also) regional tools of special regulations of law for intangible cultural heritage protection.1180 In addition, communities and groups play an important role in this context, as they are 1172 1173 1174 1175 1176 1177 1178 1179 1180

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‘one of the main holders of intangible cultural heritage.’1181 Private holders of intangible cultural heritage rights, be it an individual, a group or a community, are expressively considered to be the core addressees of protective measures, assisted by various institutional bodies and subsidized with financial aid, either on a federal or on a cantonal level—or even both—, depending on the importance of the respective form of intangible cultural heritage for the canton or the whole federation.1182 Various (cantonal ) intangible cultural heritage forms are summarized and voluntarily enlisted on the Swiss Directory of Intangible Cultural Heritage (hereafter the ‘DICH’) under the auspices of the Federal Office of Cultural (hereafter the ‘FOC’), responsible for cultural heritage issues on a federal basis.1183 The DICH distinguishes between the nine main groups of music, singing, dance, custom, theater, regional language, handicraft, local cooking and traditional costume listed in the five grids of (1) music, singing, dance; (2) yodel, alphorn, flag thrower, other; (3) costume, customs, ritual, traditional game; (4) theater, tale and legend, regional dialect, patois; and (5) know-how of handicraft, trades and local cooking.1184 While, as pointed out further below, the cantons are the main holders of legislative competences in the field of cultural heritage protection, there are also several important regulations on a federal basis, mainly focused on coordinating various tasks related to the ‘cultural producing and the cultural diversity’,1185 covering tasks attributable to purely intangible forms and the ‘preservation and impartation of culture,’1186 applicable to mostly tangible, or also materialized intangible cultural heritage forms. In this context it should also be noted that the FOC is not the only Swiss

1181

Swiss report, section 3.2. See e.g. Swiss report, section 3.2., with reference to Article 2 (1) Cantonal Act on Cultural Affairs of the Canton of Fribourg defining ‘that cultural activities and the protection of the cultural heritage are mainly the concern of private persons;’ or Swiss report, section 3.2. with reference to Article 2 (1) Cantonal Act on the Promotion of Culture of the Canton Grisons providing ‘for state support for private persons, groups and communities,’ and Article 11 of the same cantonal law listing the following criteria for the determination of whether an expression is worth being subsidized: ‘the quality of the project, its importance for the Canton of Grisons, the accessibility for different sections of the population and the partial self-financing.’ 1183 The Swiss Directory of Intangible Cultural Heritage and further details is available online under http://www.culturaldiversity.cioff.ch/swissRepertoire/en/Intro.html (last visited on December 31, 2008). 1184 See http://www.culturaldiversity.cioff.ch/swissRepertoire/en/structure.html for details (last visited on December 31, 2008). 1185 Defined by Belser, Rüegg and Molinari as comprising ‘the protection and promotion of the fields of film, visual arts, and design, the protection of language minorities and travelling communities as well as cultural education for adults and the sponsorship of Swiss schools abroad’—see Swiss report, section 3.2.1.1. for further details. 1186 Defined by Belser, Rüegg and Molinari as comprising ‘the fields of monument protection, the support of archives and the Confederation’s collections, the international transfer of cultural heritage and the contact point for stolen art’—see Swiss report, section 3.2.1.1. for further details. 1182

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institution with federal tasks with regard to intangible cultural heritage. The independent Pro Helvetia Foundation (hereafter the ‘PHF’) is another very important institution, mainly involved in cultural sponsoring and practical assistance in culture-related projects.1187 Federal tasks, which are based on a fragmentized legal framework based on the Swiss Constitution, federal laws and international tools, cover ‘activities of national interest [that] exclude in principle activities and efforts of a purely regional or local character,’1188 with a definition of the term national interest provided by the FOC as: ‘an activity is of national interest when it refers to the constitutional safeguard of existing institutions and activities (e.g. the Foundation “Pro Helvetia”) or when it refers to the establishment of an appropriate framework for cultural activities.’1189 As already mentioned and stressed by Belser, Rüegg and Molinari ‘the primary competence in cultural matters rests . . . with the [26] Cantons.’1190 Sets of criteria for designation of an expression of regional intangible cultural heritage, the extent of specific legal regulations and the means of safeguarding and promotion taken on a regional level differ from canton to canton. Several parameters can be found in the majority of cantonal legislation, including the involvement of groups and communities— also reflected by the information about the holders of the various cantonal forms of intangible cultural heritage registered in the DICH—, regional funding, research and awareness-raising measures as well as the protection of languages.1191 As far as the national implementation of the 2003 Convention is concerned, Switzerland, which ratified it in July 2008, argues that its active policy has already realized most of the international regulatory framework.1192 Belser, Rüegg and Molinari however also note that—in relation to the 2003 Convention1193—there are still open tasks, including a

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See Swiss report, section 3.2.1.1., section 3.2.1.2.1. and section 3.2.1.2.2.1. for details. Swiss report, section 3.2.1.2.1. 1189 Swiss report, section 3.2.1.2.1. 1190 Swiss report, section 3.2.2. 1191 The Swiss report offers a detailed overview of various selected cantonal systems, comprising the cantons of Grisons, Appenzell Ausser Rhoden, Bern, Fribourg and Ticino—see Swiss report, section 3.2.2.1. (Grisons), section 3.2.2.2. (Appenzell Ausser Rhoden), section 3.2.2.3. (Bern), section 3.2.2.4. (Fribourg) and section 3.2.2.5. (Ticino). 1192 See Swiss report, section 3.3. for details. 1193 In contrast to the 2003 Convention which needs some more national implementation, the 2005 Convention is considered as being totally realized, which is reflected by the view that due to the already active national approach ‘Rather, the [2005] Convention serves to strengthen the already existing legal framework by legitimating the maintenance and development of measures for the protection and promotion of the diversity of cultural expressions’— see Swiss report, section 3.4. with reference to Eidgenössisches Departement des Inneren, Ratifikation der UNESCO-Konvention zum Schutz und zur Förderung der Vielfalt kultureller Ausdrucksformen—Erläuternder Bericht [Report on the Ratification of the UNESCO Convention on the Protection and Promotion of the Diversity of Culture] (2006; online report, available at http://www.admin.ch/ch/d/gg/pc/documents/1402/Bericht_d.pdf 2000; last visited on December 31, 2008) p. 14. 1188

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comprehensive, not only voluntary, inventorying of the Swiss intangible cultural heritage.1194 As the cantonal competences are relatively strong, the Swiss national regime has also to rely on cooperation with and among the cantons. The national protection of intangible cultural heritage is supplemented by rules applicable in cases of misappropriation, rules which are however not constructed as special rules. Instead, intangible cultural heritage is often protected by the framework of intellectual property law, limited to the extent of its relevance to intellectual property law.1195 Spain is another example of a country with detailed regulations on intangible cultural heritage on a regional basis—‘although results up to now have not been very practical.’1196 The only, but practically dead, provision related to intangible cultural heritage protection on a centralized basis it to be found in Article 47.3 of the LHHS which reads: ‘It is considered that all knowledge and activities stemming from traditional techniques or models used by a specific community have ethnographical value and will enjoy the protection of the administration. When this knowledge or these activities are in danger of disappearing, the competent Administration will adopt the necessary measures for the research and scientific documentation of these assets.’1197 De Salas explains that there however exists a quite extensive framework covering intangible cultural heritage issues on a decentralized basis. Regional regimes of intangible cultural heritage show big differences, with some regional laws dealing with the issue extensively, others only peripherally. A comprehensive definition of the term intangible cultural heritage can e.g. be found in Article 1.3 of the Law of the Autonomous Community of Valencia on Cultural Heritage which states that ‘[t]he most significant creations, knowledge, techniques, practices and uses, of the Valencian lifestyle and traditional culture, are part of the Valencian cultural heritage. As do intangible assets such as the expressions of the traditions of the Valencian people in their music, art, gastronomy and recreation, and especially those which are transmitted orally and those which support or increase the use of the Valencian language,’1198 a concept which is further extended to ‘relevant manifestations or events in the evolution of technology in the Community of Valencia as well as elements making up the Cultural Heritage of Valencia.’1199 Other regional concepts are narrower, including especially minority languages.1200 Depending on

1194

See Swiss report, section 3.3. See Swiss report, section 3.2.1.2.2.1. for details. 1196 Spanish report, section 4.1.1. 1197 Spanish report, section 4.1.1. 1198 Spanish report, section 4.1.2. 1199 Article 1.4 Law of the Autonomous Community of Valencia on Cultural Heritage and Spanish report, section 4.1.2. 1200 See Spanish report, section 4.1.1. for details. 1195

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the region intangible cultural heritage can be subject to local inventorying1201 and various protective means, including research, teaching and promotion.1202 It must however be noted that the regional concepts are of comparatively recent origin, which is the reason why in some cases the practical realization is still pending and the interrelationship between and inclusion of various groups and communities is not yet very clear.1203 The Mexican Constitution was subject to two important amendments in 1992 and 2001 recognizing and stressing the importance of ‘Mexico’s polycultural nature, initially sustained by its Indigenous people.’1204 The amended Article 2 of the Mexican Constitution now addresses also cultural rights of indigenous people, including inter alia their languages or knowledge.1205 On a federal basis intangible cultural heritage issues are however not yet protected comprehensively. Although indigenous languages are protected to some extent as they might be used as official court languages, no extensive federal legislation has been enacted so far for the implementation of the 2003 Convention and the 2005 UNESCO Conventions, and the only traces of protective measures can be found on an institutional basis, in the form of e.g. the National Institute of Anthropology and History1206 or the National Agency for the Development of Indigenous Populations,1207 covering only certain areas. Under the Mexican system, the protection of intangible cultural heritage, especially in relation to indigenous groups and communities is rather a matter of regional legislation. As Sánchez Cordero explains there are so far (as of December 31, 2008) five Mexican states—the states with the 1201

For details on the question of inventorying see Spanish report, section 4.1.4. For details see Spanish report, section 4.1.3. 1203 See Spanish report, section 4.1.3. 1204 Mexican report, section 5.3. 1205 In the Mexican report, note 13, Sánchez Cordero gives the following translation of the relevant parts of the extensive Article 2 of the Mexican Constitution: ‘The Mexican Nation is one and indivisible. The national State has a multicultural composition, originally sustained on its indigenous peoples, who are those regarded as indigenous on account of their descent from the population that originally inhabited the Country’s current territory at the time of colonization, who retain some or all of their own social, economic, cultural and political institutions . . . This constitution recognizes and protects the right to self-determination of indigenous peoples and communities and, consequently, their right to autonomy, so that they may: . . . —Decide the ways of their community life as well as their social, economic, political and cultural organization . . . Preserve and promote their languages, knowledge and all those elements that constitute their culture and identity . . . To protect this right, in all trials and procedures to which they are party, individually or collectively, the particularities of their customs and culture must be taken into account, respecting the provisions of this Constitution . . . Guarantee and increase educational levels, favoring bilingual and cross-cultural education, literacy, the conclusion of elementary education by students, technical training and medium and higher education . . . To define and develop educational programs of regional content which recognize the cultural heritage of their peoples in accordance with the laws on the matter and consulting it with indigenous communities. To promote respect for and knowledge of, the diverse cultures in the Nation.’ 1206 See Mexican report, section 4. 1207 See Mexican report, section 4. 1202

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highest percentage of indigenous population—which have enacted regional laws aimed at the protection of intangible cultural heritage, in order to protect the particularities of the indigenous identity and culture. 3.2.3. Countries Without a (Special) Legal Regime of Intangible Cultural Heritage Protection France has ratified the 2003 Convention. On a national level however, one will look for a comprehensive implementation of the international tools in vain, as ‘French law does not provide any specific dispositions for its preservation.’1208 The main national legal statute covering cultural heritage protection, the French Code of Cultural Heritage, deals exclusively with tangible forms. Two aspects more or less directly related to intangible cultural heritage also of interest in other national frameworks outlined below can be found in legal tools. Firstly, the comparatively old Statute on Registration of 15371209 aims at also documenting forms of intangible cultural heritage (but only) if materially expressed in ‘any document passed on to the public, whatever its nature [is].’1210 This task, carried out by various institutions, shall inter alia facilitate the work of researchers in this field. Secondly, the Statute Regarding the Use of the French Language1211 deals with language issues, however, as Cornu points out, not in full conformity with the European Charter for Regional or Minority Languages.1212 Misappropriation of traditions is only regulated indirectly and only on the condition that it falls under the regime of intellectual property law. In this context it should be said that the protection under intellectual property law is however ‘not very useful’,1213 as not only does it not grant specific rights to groups and communities, but also because of the limited period of time with regard to the legal protection.1214 On the other hand, the French legal system provides for several promotion tools covering also issues of intangible cultural heritage, e.g. based on financially subsidized ‘quotas for film and radio broadcasting’1215 of French productions. Italy has also ratified the 2003 Convention and has recently added one provision related to the issue of intangible cultural heritage protection into its Code of Cultural Properties and Landscape (CCPL). Article 7 bis of the CCPL, inserted in 2008, says that ‘the expressions of collective cultural iden-

1208 1209 1210 1211 1212 1213 1214 1215

French report, section 3. Ordonnance de Montpellier du 28 décembre 1537. French report, section 3. Loi n° 94–665 du 4 août 1994 relative à l’emploi de la langue française. See French report, section 3. French report, section 3. See French report, section 3. for details. French report, section 4.1. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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tity contemplated by [the 2003 and 2005 UNESCO conventions] are subjected to the provisions of the present code in the event that they are embodied into material manifestations and the premises and conditions for the applicability of Article 10 exist [i.e. that these expressions may be included within the concept of cultural properties].’1216 At present, there is however no national legislation addressing specifically non-materialized intangible cultural heritage, a fact which leads to two conclusions: on the one hand, as there is no national implementation of the 2003 Convention, the non-self-executing provisions of this convention at present may not be practically implemented. On the other hand, however, intangible cultural heritage plays a role in combination with tangible cultural heritage, as it can be of importance, if ‘embodied into material manifestations.’1217 Canada is another good example of a country with no special comprehensive legal framework aimed at protecting intangible cultural heritage. The Canadian approach so far is rather conservative and attempts to cover issues related to intangible cultural heritage protection by its intellectual property regime.1218 Paterson points out that a pillar of the Canadian intellectual property regime is formed by the group of moral rights, having ‘been acknowledged in Canada since 1931, in anticipation of Canadian accession to the 1928 revision of the Berne Convention. The Berne Convention established specific protection for attribution . . . and integrity’,1219 the latter one facilitating the authors chances to ‘prevent distortion, mutilation, modification or other treatment of his or her work that is prejudicial to the author’s honour or reputation.’1220 Although the protection of moral rights ‘has been seen as sympathetic to the concerns of indigenous peoples,’1221 it has to be stressed that the individual (author), not a group or community is the addressee of this concept. Thus, moral rights law does not aim at protecting intangible cultural heritage of a group or community itself. Issues related to the protection of intangible cultural heritage might be also found partly covered by various other laws, however, none of them is specially designed to protect intangible cultural heritage comprehensively.1222 When it comes to the issue of misappropriations of traditions, one must again say that—although it is a hot topic in the scholastic world, heavily supplemented by reports of and discussions between UNESCO and WIPO—legal tools in this area are limited. Potentially leading the way towards a change of mindset is a local agreement also including indigenous intangible cultural heritage issues of 1216 1217 1218 1219 1220 1221 1222

Italian report, section 2. Article 7 bis CCPL and Italian report, section 2. See Canadian report, section 3.1. Canadian report, section 3.1. Canadian report, section 3.1. Canadian report, section 3.1. See Canadian report, section 3.1. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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aboriginal groups: the agreement between the Nisga’a First Nation of British Columbia and the governments of Canada and British Columbia, which is a first, yet still limited attempt at dealing with this issue in more detail.1223 Intellectual property laws are also of importance in the United States, which has not yet ratified the 2003 Convention. On a federal level no set of special regulations of law aimed at the safeguarding of intangible cultural heritage can be found; ‘[i]nstead, the United States relies on federal copyright and other intellectual property laws.’1224 This is supplemented by limited federal statutes dealing with rights of indigenous groups: the American Indian Religious Freedom Act (hereafter the ‘AIRFA’) and the Indian Arts and Crafts Act (hereafter the ‘IACA’). While the AIRFA ‘seeks indirectly to protect the practice of sacred ceremonies and rites of indigenous people by safeguarding traditional sites’,1225 the IACA rather only indirectly covers issues related to the fight against misappropriation of traditions, as one of its main aims is ‘to establish a procedure for certification of authentic work created by an enrolled member of a recognized tribe.’1226 In addition, and like the case in Canada, some United States state laws and the federal Visual Artists Rights Act of 1999 address also moral rights of artists, the latter one—without the requirement of copyright registration—according to the leading judgment in the court case Carter v. Helmsley-Spear Inc. basically granting three rights: ‘the right of attribution, the right of integrity and, in the case of works of visual art of “recognized statute,” the right to prevent destruction’.1227 The attitude of other countries is even more reserved. According to Šturma, the Czech Republic ‘does not recognize the concept of intangible cultural heritage.’1228 It covers issues related to the protection of intangible cultural heritage and misappropriation of traditions only—and only as far as it is subsumable—under the regime of its intellectual property law. This may be due to the fact that the protection of cultural heritage in the Czech Republic is based on the only partially amended Law on the State Care of Cultural Heritage which does not include the concept of intangible cultural heritage (yet). However the concept of intangible cultural heritage is lacking only in national legislation. Recently, the Czech Republic has entered into some bilateral international cultural agreements (with e.g. Mexico, Argentina, Peru, Poland, Slovakia and Romania) which also aim at cooperating in issues related to the protection of intangible cultural heritage. The Ministry of Culture has recently started to deal with intangible cultural heritage, and 1223

See Canadian report, section 3.2. United States report, section 3.1. 1225 United States report, section 3.1. 1226 United States report, section 3.2. 1227 United States report, note 28; see United States report, section 3.1. and note 28 for details. 1228 Czech report, section 3. 1224

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the Government of the Czech Republic adopted its resolution on the Plan for more effective care of traditional popular culture.1229 The same is the case in Germany, where additionally ‘intangible cultural property is protected and safeguarded [only] by the law of intellectual property if it is part of any intellectual property right (e.g. copyright, design) and by general private and criminal law.’1230 Denmark is another country which shows no ambitions in ratifying the 2003 Convention. Tamm and Østrup, who note that Denmark gives its preference to institutional promotion, documentation, research and education of and with respect to intangible cultural heritage rather than to its protection by legal regulations, express the Danish view by saying that ‘if, however, Demark was to ratify the [2003] Convention, it is most likely that this would be only as a token of Danish solidarity with other countries, which have issues as regards the safeguarding of their intangible cultural heritage, and that it would not entail any implementation of new Danish legislation.’1231 In the context of institutional safeguarding of Danish intangible cultural heritage two core institutions should be mentioned: the Danish Folklore Archives and the Danish Language Council. The first with its long history of more than 100 years of state research is mainly responsible for archiving various forms of intangible cultural heritage and carrying out respective research under the auspices of the Ministry of Culture.1232 Also under the patronage of the Ministry of Culture, the Danish Language Council on the other hand focuses solely on research related to the Danish language, its development and supervision and reflects the important role of language as central piece of intangible cultural heritage.1233 As far as the question of misappropriation of traditions is concerned Denmark takes a similar approach as most other countries, as it does not provide for any set of special regulations of law, but instead puts its control under the framework of intellectual property law.1234 However, even in cases where the pertinent intellectual property law rules find their application, one must bear in mind that groups and communities are not addressed as right holders under that concept due to the fact that they are not considered to be legal entities. Reluctant to regulate the protection of intangible cultural heritage comprehensively by legal statutes, the Netherlands takes a similar position to Denmark. Lubina reflects the Dutch view with references to the Dutch Ministry of Culture and the Meertens Institute KNWA, an important Dutch research 1229

Czech report, section 3. German report, section 6.1. 1231 Danish report, section 5.1. 1232 For details see Danish report, section 5.1.1.1. (Danish Folklore Archives) and section 5.1.1.2. (Danish Language Council ). 1233 For details see Danish report, section 5.1.1.2. 1234 See Danish report, section 5.2. 1230

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institute in the area of language and culture. With reference to the last one she says that ‘there exist academic, ethical, and discipline-internal problems with the [2003] Convention.’1235 The Netherlands emphasizes the evolving character of intangible cultural heritage1236 arguing that this form of cultural heritage is ‘a living phenomenon with change being an inevitable characteristic’1237 and strictly opposes the idea of containing the status quo of intangible cultural heritage and its inventorying1238 as ‘undesirable’1239 and ‘meaningless’.1240 With the exception of minority languages, which are actually subject to protection by special regulations of law1241 and which are the only forms of certain rights given to groups and communities in the field of intangible cultural heritage, safeguarding of intangible cultural heritage is—like e.g. also in Denmark—rather realized on an institutional basis, resting ‘upon the shoulders of museums and scientific and policy making institutions.’1242 Institutes such as the before-mentioned Meertens Institute KNAW or the Dutch Centre for Folk Culture and also Universities and volunteer groups build a network for the research and promotion of intangible cultural heritage in the Netherlands.1243 When it comes to the question of fighting misappropriations of traditions and other forms of intangible cultural heritage, the Netherlands provides for the same legal framework as most other countries:

1235

Dutch report, section 4.1.1. For a Dutch definition of the term intangible cultural heritage Lubina refers to Frijhoff who says that it exists of basically three components: ‘firstly, it is something transmittable, ranging from a past performance via an experience, idea, custom, spatial element, building or artefact, to a set of these. Secondly, one can only speak of intangible cultural heritage provided that a human group exists that is able and ready to recognize these objects as a coherent unit, and to transmit and receive them. Thirdly, there must be a set of values linking the object inherited from the past to a future use, in a sense of meaningful continuity or equally meaningful change’—see Dutch report, section 4.1.2. with reference to W. Frijhoff, ‘Cultural Heritage in the Making: Europe’s Past and its future Identity’, in J. van der Vos, ed., The Humanities in the European Research Area—International Conference Amsterdam, The Netherlands 2 September 2004 (Den Haag, Netherlands Organisation for Scientific Research, Humanities 2005). 1237 Dutch report, section 4.1.1. with reference to G. Muskens, Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, 2005, [Intangible Cultural Heritage in the Netherlands: Report Based on Interviews with 33 Experts, by Order of the Ministry of Education, Culture and Science] (Lepelstraat, DOCA Bureaus 2005) at p. 7. 1238 Although there are no Dutch inventories comparable to the inventories under the 2003 Convention, certain databases and other forms of lists can be found in the Netherlands—see Dutch report, section 4.1.5. for details. 1239 Dutch report, section 4.1.3. 1240 Dutch report, section 4.1.3.; for details on the Dutch understanding see Dutch report, section 4.1.1., section 4.1.2. and section 4.1.3. 1241 See Dutch report, section 4.1.1. and section 4.1.4. for details. 1242 Dutch report, section 4.1.1. 1243 For details see Dutch report, section 4.1.4. 1236

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the major instruments—as far as applicable—are provided by the framework of intellectual property law.1244 3.2.4. The New Zealand Model Although New Zealand legislation does not protect non-materialized forms of cultural heritage as defined under the 2003 Convention and would thus fall under the group of the previous subchapter, the New Zealand model should be dealt with separately due to the important position of Māori also in the field of intangible cultural heritage. As Myburgh points out ‘the concept of taonga,1245 recognised under the Treaty of Waitangi, is very broad, encompassing Māori tangible and intangible cultural heritage and traditional knowledge.’1246 For example, intangible cultural heritage functions as an important factor in the designation of wāhi tapu and wāhi tapu areas as tangible cultural heritage.1247 In addition based on the Treaty of Waitangi Māori groups have filed various claims resulting in the enactment of legal statutes also dealing with issues related to intangible cultural heritage protection and fruition by Māori, such as sets of special regulations of law protecting and promoting inter alia Māori language or Māori participation in (television) broadcasting.1248 The involvement of Māori and their intangible cultural heritage in the national (intangible) cultural heritage protection are still in flux. In this context Myburgh refers to one of the latest claims—at the time of writing this report still pending—in relation to Māori participation in the field of intangible cultural heritage: claim Wai 262 before the Waitangi Tribunal.1249 One of its subjects covers Mātauranga Māori (traditional Māori knowledge) and the question of its ‘retention and protection,’1250 an area which has not been of interest for legal protection so far. One has to wait for the outcome of this claim and the government’s reaction to the tribunal’s recommendations. The question of misappropriation of intangible cultural heritage has quite recently been subject to increased interest, especially when it comes to Māori cultural heritage. The basic legal framework dealing with the issue of intangible cultural heritage and its exploitation, the intellectual property regime, 1244

See Dutch report, section 4.2.1. See supra II.1.2.2. for a definition. 1246 New Zealand report, section 3.1.1. 1247 See supra II.1.1.2.2. for a definition of the two terms and details. 1248 For details see New Zealand report, section 3.1.1. and section 4. 1249 According to the official website of the 1975 established Waitangi Tribunal the tribunal ‘is a permanent commission of inquiry charged with making recommendations on claims brought by Māori relating to actions or omissions of the Crown, which breach the promises made in the Treaty of Waitangi’—see http://www.waitangi-tribunal.govt.nz/about/about.asp and http://www.waitangi-tribunal.govt.nz/ for further details (last visited on December 31, 2008). 1250 See New Zealand report, section 3.1.1. for details. 1245

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was amended in 2005 to include Māori matters and now especially also comprises regulations on Māori related trade mark registration and the installation of a specialized advisory body in this area.1251 3.3. Conclusion On April 20, 2006, the 2003 Convention entered into force.1252 Pursuant to its Article 1 its main objectives are inter alia . . . ‘to safeguard the intangible cultural heritage’ . . . ‘to ensure respect for the intangible cultural heritage1253 of the communities, groups and individuals concerned, [and] . . . to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof ’. Roughly one year later, on March 18, 2007, the 2005 Convention followed.1254 Its Article 1 expresses that its main objectives are inter alia . . . ‘to protect and promote the diversity of cultural expressions, . . . to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner, . . . to promote respect for the diversity of cultural expressions and raise awareness of its value at the local, national and international levels, [and] . . . to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory.’1255 As we could see in the preceding subchapters national concepts in the field of intangible cultural heritage protection differ in their approaches as well as in relation to the extent of legal regulation. Three countries, Croatia, Japan and Taiwan, incorporated the regime of intangible cultural heritage—to be understood in a comparatively comprehensive way—into the respective national cultural core law; all three of them did this already prior to the adoption of the two UNESCO conventions. In addition, all three of them grant specific rights to groups and communities according to Article 1 (b) of the 2003 Convention declaring them as holders of intangible cultural 1251

See New Zealand report, section 3.2. for details. Seehttp://portal.unesco.org/en/ev.php-URL_ID=17716&URL_DO=DO_TOPIC&URL_ SECTION=201.html#ENTRY (last visited on December 31, 2008). 1253 Article 2 (1) 2003 Convention defines the term intangible cultural heritage as ‘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 recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.’—see also supra I.7.2. 1254 See http://portal.unesco.org/en/ev.php-URL_ID=31038&URL_DO=DO_TOPIC&URL_ SECTION=201.html#ENTRY (last visited on December 31, 2008). 1255 See also supra note 543. 1252

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heritage, though in different ways.1256 While Taiwan, the only contributing country beside the Netherlands the Czech Republic and the United States which is neither a State Party to the 2003 Convention nor to the 2005 Convention, grants extensive compensation claim rights to the holding group or community through PATIC, one of the two major national laws dealing with intangible cultural heritage in Taiwan, Croatia and Japan which are less restrictive in the use of group or community related intangible cultural heritage. The Japanese law does not stipulate interdiction rights or reward rights in the pertinent cultural heritage laws—making possible breaches only punishable by intellectual property laws as far as they are applicable. Croatia takes a position somewhere in the middle, as it does not provide holding groups and communities with interdiction rights, but at least grants them a right to funded rewards in case their intangible cultural heritage is used. Croatia is also a good example of a country with an inventory of intangible cultural heritage in accordance with Article 12 (1) of the 2003 Convention: designated forms of intangible cultural heritage are enlisted in the Register of the Cultural Heritage of the Republic of Croatia. Registration of intangible cultural heritage and the protection of the role of groups and communities in relation to intangible cultural heritage can also be found in other countries, which in accordance with Article 1 (h) of the 2005 Convention make to some extent also use of their sovereignty ‘to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory’, a sovereignty which is, due to the national system of legislative competence distribution, mostly exercised on a local or regional level. Switzerland, Spain and Mexico belong to the group of countries of rich cultural diversity, be it in relation to languages, local customs or traditions. And all three of them put the emphasis on regional legislation. The—in terms of cultural diversity—richest Mexican states set up local legal systems of safeguarding various forms of intangible cultural heritage forms associated with groups and communities. The same is the case in various Spanish autonomous communities with their relatively young intangible cultural heritage legislation. One can see that some of those regional laws reflect the ideas of the UNESCO Convention, as e.g. Article 1.3 of the Law of the Autonomous Community of Valencia on Cultural Heritage refers more or less directly to the definition used in Article 2 (1) of the 2003 Convention by stating that ‘[t]he most significant creations, knowledge, techniques, practices and uses, of the Valencian lifestyle and traditional culture, are part of the Valencian cultural heritage. As do intangible assets such as the expressions of the

1256 For group and community involvement within the framework of the 2003 Convention see e.g. T. Kono, ed., Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development (Antwerp, Intersentia 2009) pp. 1–415.

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traditions of the Valencian people in their music, art, gastronomy and recreation, and especially those which are transmitted orally and those which support or increase the use of the Valencian language.’1257 Switzerland, as illustrated in detail by Belser, Rüegg and Molinari builds its intangible cultural heritage concept on an interrelationship of federal and cantonal legislation, with the main competences again being on a regional level.1258 The Swiss system characterized by its strong protection of local forms and group and community rights in the field of intangible cultural heritage represents many ideas conceptualized in the 2003 and 2005 Conventions, especially when it comes to safeguarding and promoting local forms of intangible cultural heritage and cultural diversity. However, there are still some national shortcomings in the implementation of the two UNESCO conventions, as the Swiss Directory of Intangible Cultural Heritage does not cover the whole Swiss territory yet and moreover is only subject to voluntary inscriptions.1259 Although the approaches taken by those countries show that the issue of intangible cultural heritage protection by legislative means is of growing interest, it cannot be said that this is a universal trend. There is also a big group of countries not providing for special regulations of law in the field of intangible cultural heritage. With the exception of language related issues, countries such as Germany, France, Italy or Canada do not (yet) protect non-materialized intangible heritage by sets of special regulations of law, regulating—at the best—only questions related to misappropriation and only within the framework of intellectual property laws. According to Šturma ‘[t]he Czech legal order does not [even] recognize the concept of intangible cultural heritage’,1260 and countries such as Denmark and the Netherlands strongly oppose the idea of regulating intangible cultural heritage by legal statutes. This however does not mean that intangible forms of cultural heritage are not safeguarded in those countries. Understanding safeguarding in a broad way, also including its promotion and natural development, even the Danish and Dutch concepts are not too far away from the national concepts implementing the 2003 Convention by extensive legal frameworks. Promotion and the safeguarding of intangible cultural development, not the protection of its status quo, in these two and other just mentioned countries is rather done on an institutional basis, involving research institutes and archives as well as institutions raising the awareness in relation to various forms of intangible cultural heritage. If one understands the main goals of the 2003 Convention as fostering the viability of intangible culture, then one will see that this is accomplished in more countries than only in those with

1257 1258 1259 1260

See supra II.3.2.2. and Spanish report, section 4.1.2. See Swiss report, section 3.2. and supra II.3.2.2. See Swiss report, section 3.3. and supra II.3.2.2. Czech report, section 3. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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broad legal concepts, however in diverse forms—nearly as diverse as culture can be. 4. Epilogue We come to the end of the journey through cultural heritage protection and preservation which started with modern international efforts emerging from the need to protect cultural heritage against the threats of destruction in the course of armed conflicts, expanded its point of interest to international awareness raising in relation to various tangible forms of cultural heritage and—for the time being—finds its culmination in the area of intangible cultural heritage. In Part II of this report we took a look at various national concepts of cultural heritage protection and preservation, sometimes with opposing national views, sometimes in accordance with each other and the international frameworks. Coming back to the initial question also reflected by the title of this report, the impact of uniform laws on the protection of cultural heritage and the preservation of cultural heritage in the 21st century, we should distinguish between two levels, which however show various points of contact: firstly, a legal one and secondly, a cultural one. Both levels can be found on the international as well as on national levels. While the first group comprises legal frameworks laying the foundations for the practical protection and preservation of cultural heritage internationally as well as nationally, the second group rather represents the practical implications of the first group. Taking a look at the impact of uniform laws should be understood in a wide way, also covering the second group and not limiting itself to discussing only the legal parameters. As this report illustrates, various countries have been influenced by international law on a national legal basis. This is mainly due to the national implementation of the pertinent international tools. Good examples of the national implementation of e.g. the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 Convention), in some cases prior, in other cases after the respective national ratification, are the Japanese Act on Controls on the Illicit Export and Import and Other Matters of Cultural Property (ACIEI) of 2002,1261 the amendments of the Danish Museum Act (DaMuA) in 2001,1262 the Swiss Act on the International Transfer of Cultural Property (CPTA) enacted in 2005,1263 the German Law on the Return

1261 1262 1263

See supra II.2.2.2. See supra II.2.2.2. See supra II.2.2.2. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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of Cultural Goods (LRCG) enacted just recently in 20071264 or the New Zealand Protected Objects Act 1975 (POA) which also implements the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995 UNIDROIT Convention) and which was—despite its title—enacted in 2006.1265 Some of these national tools of implementation, such as the CPTA or the POA, refer to the 1970 Convention quite directly for example by adopting the same definition of the protected goods, cultural objects. It should be stressed that the 1970 Convention does not and cannot provide for the ultimate solution in the fight against stolen or illegally exported cultural objects. As it is an international legal tool primarily based on public international law1266 and as its vague language leaves the detailed regulation to its States Parties, various important aspects have to be solved on a national level. For example, core questions related to the burden of proof or time limitations of claims are answered by the national frameworks independently. This leads to differences among national substantive laws which are solved by the tools of conflict of law rules. This exemplifies what was already said in the introduction to this report: classifying international legal tools in the field of cultural heritage protection and preservation as uniform laws must not forget its limitations. For the better understanding of its practical functions it is thus better to refer to this group as representatives of soft uniform laws. It can—as long as it not self-executing—only instruct the respective States Parties to adopt certain measures by implementing its relevant provisions and thus guides them to a goal agreed to internationally. The practical realization of the international provisions has however to be achieved on a national level. In addition, we explained that the international tools of cultural heritage protection and preservation are the results of compromises, often vaguely formulated. In this respect the conventions are also subject to national interpretations as means of practical implementation, another reason why in various cases national implementation differs from country to country. Talking about the fight against illicit trafficking one however has also to include the already mentioned 1995 UNIDROIT Convention. This convention differs from all other international tools outlined in Part I of this report primarily in two regards: first of all it is the only international instrument in the field of private law in the context of cultural heritage protection and preservation to be understood in a comprehensive way. Secondly and in addition, it is widely regarded as being self-applicable, thus potentially showing direct practical impacts. Although this fact is basically a desirable one, unifying the national pillars in the international fight against illicit trafficking, it is also still one of the main obstacles to its large-scale success: in order to 1264 1265 1266

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work effectively and show far-reaching positive results the 1995 UNIDROIT Convention needs a rate of high acceptance by the World Community. With only 29 States Parties (as of December 31, 2008) and a still hesitant attitude of many major art markets, it is still not as effective as it could—and should—be. In contrast to the 1995 UNIDROIT Convention, two newer conventions, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (2003 Convention) already in the triple-digit zone and the 2005 Convention on the Protection and Promotion of the Diversity of Expressions (2005 Convention) rapidly approaching the ratification of its 100th State Party, are more “popular” within the international community. Reasons therefore might be varicolored and include the lack of a comprehensive self-executing character or less interference of the two with private property rights, which are a core, but also a delicate, issue in national legislation. The issue of intangible cultural heritage protection is also a very interesting one in terms of mutual influences of national and international concepts. As we explained in Part I, international attempts aimed at safeguarding intangible forms of cultural heritage had already been launched a couple of decades before the actual enactment of the 2003 Convention.1267 After nearly 20 years of stagnancy the first practical results were reflected by the Living Human Treasures Program in 1993 and the Masterpieces of the Oral and Intangible Heritage of Humanity in 1998. Enhancements of the latter one led to the adoption of the 2003 Convention. Influences of and inspirations by the 2003 Convention can be found in several national and regional legislative frameworks, including inter alia newer provincial laws in Spain, such as the Law on the Cultural Heritage of Navarra of 2005, the Law on the Cultural Heritage of Murcia in 2007,1268 or in Switzerland which despite its longer history of intangible cultural heritage protection and promotion has revised the pertinent national laws such as the General Law on the Promotion of Culture1269 and the Federal Act Concerning the Pro Helvetia Foundation1270 due to the implementation of the recently ratified 2003 Convention and the 2005 Convention. There are however several national laws with core regulations

1267

For details see supra I.7.1. See Spanish report, section 4.1.1. 1269 Kulturförderungsgesetz; for details see Swiss report, section 3.3. and the explanation of the Swiss Federal Office of Culture (Bundesamt für Kultur BAK) available online at http:// www.bak.admin.ch/bak/themen/kulturpolitik/00450/index.html?lang=de and http://www .bak.admin.ch/bak/themen/kulturpolitik/00450/01662/index.html?lang=de (last visited on December 31, 2008). 1270 Bundesgesetz über die Stiftung Pro Helvetia; for details see Swiss report, section 3.3. and the explanation of the Swiss Federal Office of Culture (Bundesamt für Kultur BAK) available online at http://www.bak.admin.ch/bak/themen/kulturpolitik/00450/index.html?lang=de and http://www.bak.admin.ch/bak/themen/kulturpolitik/00450/01662/index.html?lang=de (last visited on December 31, 2008). 1268

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of intangible cultural heritage which were already enacted prior to the adoption of the 2003 Convention. The Croatian Cultural Heritage Act introduced the category of intangible cultural heritage comprehensively in 1999; the Japanese Law for the Protection of Cultural Properties included that category as early as 1950, roughly two decades before the issue of intangible cultural heritage was first discussed during the drafting of the 1972 Convention for the Protection of the World Cultural and Natural Heritage (1972 Convention). This interrelationship of national and international legislation exemplifies that certain ideas which are linked to the broad concept of cultural heritage protection and preservation find their origins in national concepts, but are at the same time promoted by the means of major international tools on national levels in other parts of the world. We touched on the issue of the interaction between intangible cultural heritage and intellectual property law only very briefly, as a detailed analysis would have gone beyond the scope of this report. Nevertheless we saw that this issue is currently a hot topic within the international community.1271 Some countries refrain from installing special legal frameworks for the protection and preservation of intangible cultural heritage and instead declare intellectual property laws applicable, limited to the extent of the relevance of intangible cultural heritage forms to intellectual property law. Group and community rights in general are another big issue in the context of cultural heritage protection and preservation. The multifaceted concept of group and community rights is interesting primarily because of two reasons: firstly, it reflects regional differences of national approaches and secondly, it also stands for different levels of relevance in relation to the various forms of cultural heritage. While in many European countries one might look for group or community rights more or less in vain—with the particular exceptions of Croatia with groups and communities as potential holders of intangible cultural heritage rights—indigenous groups and communities often play a more important role in other parts of the world, e.g. in New Zealand, the United States or Canada. The extent to which indigenous groups and communities are involved in the relevant national legislation also differs within the group of the last named countries and sometimes includes major national laws or at least parts of them such as Article II of the New Zealand Treaty of Waitangi aiming at safeguarding ‘the unqualified exercise of their chieftainship over their lands, villages and all their treasures’1272 expressed by the concept of Māori taonga (Māori treasures).1273 or the United States Native American

1271 For details about the relationship and some national perspectives see e.g. supra I.7.1., I.7.2., II.3.2.3. and the references mentioned there. 1272 New Zealand report, section 1.3.; see also supra II.1.1.1. 1273 See e.g. supra II.1.1.2.

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Graves Protection and Repatriation Act granting ‘autonomy to recognized Native American and Native Hawaiian groups in the use and disposition of stipulated cultural material on their lands or otherwise within their authority’1274 Also in Canada—though on a less extensive level—cultural rights related to indigenous groups and communities can be found, such as in Section 91 of the Indian Act or—on a provincial basis—in the Alberta First Nations Sacred Ceremonial Objects Repatriation Act of 2000, being ‘the only one of its kind in Canada and the only Canadian law resembling the [United States] Native American Graves Protection and Repatriation Act.’1275 On an international level the participation and involvement of groups and communities is currently of prime interest in the context of intangible cultural heritage protection. The 2003 Convention and the 2005 Convention both reflect the importance that they play in this respect. In many countries which include groups and communities to a certain extent in the regime of cultural heritage protection and preservation the field of intangible cultural heritage is so far also the only national area for group and community involvement. According examples are set by various countries, including inter alia Japan, Taiwan, Switzerland and Croatia. Most of those countries already have a comparatively long tradition of group and community involvement in the field of intangible cultural heritage which dates back to the pre-2003 and/ or pre-2005 times. Here again, taking a closer look at the relevant national regulations one will find differences when it comes to the extent of group and community involvement. In this respect Taiwan, neither a State Party to the 2003 Convention nor to the 2005 Convention, chose a quite progressive way by enacting its Protection Act of Traditional Intellectual Creation of Indigenous People which grants extensive rights to groups and communities including the right to claim damages in case of exploitation of intangible cultural creations. While it is too early to give statements on the impact of the 2001 Convention on the Protection of the Underwater Cultural Heritage (2001 Convention), which has just entered into force,1276 two other conventions have been widely accepted by the international community: the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflicts (1954 Convention) together with its two protocols (First Protocol and Second Protocol) and the 1972 Convention for the Protection of the World Cultural and Natural Heritage.

1274

United States report, section 2.1.1.2.; see also supra II.2.1.2. Canadian report, section 2.2.6.; see also supra II.1.2.2. 1276 But see the interesting Italian insertion of a direct reference to the 2001 Convention into Article 94 CCPL without even being a State Party to the 2001 Convention yet—for details see supra II.2.4.2.1. 1275

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The 1954 Convention has to be respected for being UNESCO’s first successful attempt of regulating issues related to the protection and preservation of cultural heritage comprehensively on an international level, followed by supportive national implementations. While the modality and extent of national implementation might differ from country to country most States Parties—encouraged by the 1954 Convention—engage in national awareness raising on the possible dangers of destruction and exploitation of cultural heritage caused by and in the course of armed conflicts. In addition to special education of armed forces, several countries have also introduced extensive laws implementing the pertinent provisions of the 1954 Convention, including inter alia Switzerland with its 1968 Federal Act on the Protection of Cultural Property in the Event of Armed Conflict, Germany with its Act Implementing the Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict and Japan with its Law for the Protection of Cultural Properties in the Event of Armed Conflict, the latter two enacted just recently in 2007.1277 It should however also be noted that not all ideas of the 1954 Convention are widely accepted by its States Parties. The distinctive marking according to Article 6 of the 1954 Convention or the regime of special protection stipulated by Chapter II of the 1954 Convention have been subject to international criticism.1278 The Second Protocol of 1999 tries to resolve certain shortcomings of the 1954 Convention, e.g. by its Chapter III on enhanced protection as an advancement of the rather unpopular special protection regime. One has to wait and see whether this will lead to a wider acceptance by the international community. The 1972 Convention still is the most popular international tool in the field of cultural heritage protection and preservation with currently 186 States Parties (as of December 31, 2008). It is the prime example of a convention which shows positive effects on an international level supported by national legislation. Most States Parties argue that high international prestige and increased funding were pivotal reasons for ratifying the 1972 Convention.1279 Due to the increasing number of enlisted objects on the World Heritage List and the high percentage of enlisted objects situated in Western countries the World Heritage Committee has been trying to balance also the geographical inscriptions on the World Heritage List. The category of cultural landscapes was introduced in 1992, representing the ‘combined works of nature and man’.1280 On a national level, States Parties try to fulfill their obligations to protect

1277

For details see supra II.2.3.2. and II.2.3.3. See supra I.2.3.1. and II.2.3.3. 1279 See the national periodic reports available online at http://whc.unesco.org/en/statesparties/hr/documents/ (last visited on December 31, 2008). 1280 Paragraph 47 WHC Operational Guidelines and supra I.4.2. 1278

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their national cultural heritage stipulated by Articles 4 and 5 of the 1972 Convention by various means. It has however to be stressed that national concepts of immovable cultural heritage are much broader than the concept of the 1972 Convention based on the outstanding universal value of enlisted objects. While the 1972 Convention tries to comprise only prime objects by the application of a demanding selection process, leading to comparatively low numbers of enlisted national objects, most countries try to protect a larger number of objects on national and regional levels. As far as cultural heritage protection is concerned, most countries mandate the private owners of declared immovable cultural objects to maintain their unchanged status and to care for their good condition under national and/or regional guidance and with the help of public financial support. Obligatory building and modification permits, pre-emption rights and the opportunity to expropriate the property from its private owner in case he does not fulfill his tasks are popular national and/or regional means of safeguarding the national cultural heritage. In various countries cultural objects which are enlisted on the World Heritage List are further subject to privileged protection, as the example of Italy and its Article 2 Law No. 77 of 20 February 2006 show.1281 As pointed out in this report, the detailed implementation of the discussed international tools is more or less left to the discretion of the respective States Parties. We also saw that—due to the national perceptions of cultural heritage and diverse legal systems—the national acts of implementation oftentimes differ in terms of comprehensiveness and strictness. In this context, balancing the interests of the state and the private owner also plays an important role. In many cases a similar diversity can also be found on a national level. Several constitutional systems divide the competences in the field of cultural heritage protection, granting certain legislative powers to the centralized government, others to the regional legislator, which in various cases causes practical differences of legal protection also within a single country. For example, the concept of intangible cultural heritage is a common concept in only five Mexican states, while the other 26 Mexican states remain more or less silent on that form of cultural heritage.1282 Thus, unification of national and regional legislation on cultural heritage protection and preservation is also limited by the national constitutional frameworks. Nevertheless “uniform” law plays an important role in the field of cultural heritage protection and preservation. In addition to the mutual influences of national and international legal tools and the national implementation, it cannot be denied that international law also has wide influence on the abovementioned second level of cultural heritage protection and preservation: 1281 1282

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the cultural level. This refers to the more practical aspects in contrast to the legal level which rather comprises the protective framework and creates an environment in which cultural safeguarding can take place. Parallel to the extension of the international legal framework national and international awareness of the necessity to safeguard cultural heritage for the sake of future generations has been raised over the last decades. This is reflected in the increasing number of independent institutions involved in cultural heritage protection, e.g. by 61 non-governmental bodies in the German state of Schleswig-Holstein1283 or the very active Swiss Pro Helvetia Foundation.1284 The recent developments give reason to expect further enhancements of cultural heritage protection both on an international level as well as on a national one. With two important conventions related to aspects of intangible cultural heritage and cultural diversity having entered into force recently—the 2003 Convention in 2006 and the 2005 Convention in 2007— and the 2001 Convention covering underwater forms of tangible heritage, the already existing international system is able to conquer a new “market”. It however largely depends on the willingness of the international community to implement the concepts outlined on an international level. Over the last couple of years various countries have enacted new or reconditioned laws aimed at better protection and preservation of cultural heritage; some of them even already including the “new” concept of intangible cultural heritage. Other countries, e.g. the Netherlands or Denmark with their framework of research institutes for various forms of intangible heritage have initiated safeguarding campaigns on a more institutional-based level and are reluctant to adopt comprehensive regulations on the protection and preservation of intangible cultural heritage.1285 Generally speaking one can however detect a global trend towards the creation of more comprehensive concept of cultural heritage protection and preservation. One must hope that those efforts will fructify, so that cultural heritage cannot only be enjoyed at the moment, but also by future generations.

1283 1284 1285

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Table—Status of National Ratification/Acceptance of International Tools Outlined in Part I of this Paper Country

19541

Canada Croatia Czech Republic Denmark France Germany Italy Japan Mexico Netherlands New Zealand Spain Switzerland Taiwan Tunisia USA

1998 1992 1993 2003 1957 1967 1958 2007 1956 1958 2008 1960 1962 — 1981 —

1 2 3 4 5 6 7 8 9

1st 2nd 19704 19725 Protocol2 Protocol3 2005 1992 1993 2003 1957 1967 1958 2007 1956 1958 — 1992 1962 — 1981 —

2005 2006 2007 — — — — 2007 2003 2007 — 2001 2004 — — —

1978 1992 1993 2003 1997 2007 1978 2002 1972 — 2007 1986 2003 — 1975 1983

1976 1992 1993 1979 1975 1976 1978 1992 1984 1992 1984 1982 1975 — 1975 1973

19956 20017 20038 20059 — 2000 — — — — 1999 — — — 2006 2002 — — — —

— 2004 — — — — — — 2006 — — 2005 — — 2009 —

— 2005 — — 2006 — 2007 2004 2005 — — 2006 2008 — 2006 —

2005 2006 — 2006 2006 2007 2007 — 2006 — 2007 2006 2008 — 2007 —

See supra I.2.1. See supra I.2.2. See supra I.2.3. See supra I.3. See supra I.4. See supra I.5. See supra I.6. See supra I.7. See supra I.8. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

CANADA Robert K. Paterson*

1. General Issues .......................................................................................... 2. Tangible Cultural Heritage .................................................................... 2.1. Immovables ...................................................................................... 2.1.1. Provincial Legislation ........................................................ 2.1.2. Federal Legislation ............................................................. 2.1.3. Aboriginal Immovable Culture ........................................ 2.2. Movables ........................................................................................... 2.2.1. Generally .............................................................................. 2.2.2. Aboriginal Cultural Heritage ............................................ 2.2.3. Movable Cultural Property Export Controls ................. 2.2.4. Religious Law and Movables ............................................ 2.2.5. Museums .............................................................................. 2.2.6. Repatriation of Aboriginal Cultural Property from Museums .............................................................................. 2.2.7. Cultural Heritage and Armed Conflict ........................... 2.2.8. Underwater Cultural Heritage ......................................... 3. Intangible Cultural Heritage .................................................................. 3.1. Safeguarding Intangible Cultural Heritage ................................. 3.2. Misappropriation of Traditions .................................................... 4. Beyond Preservation ...............................................................................

233 235 235 235 236 238 239 239 239 240 241 241 241 242 243 243 243 245 246

1. General Issues The Canadian legal system has never accorded cultural heritage its own separate legal category, except for the purposes of specific statutes and the implementation of international agreements into domestic law (also by statute). This is largely because, as a mostly common law jurisdiction, Canada has no basis in its legal history for the separate recognition of a cultural heritage category. There is thus no general definition of what is either “cultural heritage” or “cultural property” in Canadian law. Canada is a federal state, whose constitution divides statute-making authority on different topics between the federal Parliament and the provincial legislatures. The topic of property is allocated to the provinces, so they * Professor at the Faculty of Law, University of British Columbia, Vancouver, Canada. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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control matters relating to the ordinary transfer of title as between transferors and transferees of personal property (immovables). Canadian federalism is further complicated by the presence of one major province, Quebec, that has a civil law system. This means that while laws in common law provinces strongly resemble one another, this similarity is generally absent as between those provinces and Quebec. Canada is a relatively young nation with a relatively small population (almost 34 million) given its immense size. Historically, Canada’s legal systems have reflected links to the United Kingdom and France, but in recent years Canada’s physical proximity and economic relationship with the United States has led to Canada becoming party, along with Mexico, to the North American Free Trade Agreement. Since the Second World War, Canada has also seen itself become a multicultural society with the influx of immigrants from dozens of different countries. Simultaneously, Canada’s native indigenous peoples (usually now called First Nations or Aboriginals) have asserted their position as the country’s original inhabitants. This has reflected itself in changes to Canadian laws and policies affecting First Nations. Another significant aspect of Canadian law regards the status in domestic (or municipal) law of international treaties, conventions and other agreements to which Canada is party. Such agreements, while binding under international law on Canada, are not part of Canadian domestic law unless they are implemented in the form of legislation. Because Canada is a federal state, with statue-making authority divided, as just mentioned, between Parliament and the provinces, an international agreement can only be enacted into legislative form by the appropriate statute-making body: Parliament or a provincial legislature. For example, since Parliament has statute-making authority in the area of international trade, it was able to enact a version of the 1970 UNESCO Convention of the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, in the form of section 37 of the Cultural Property Export and Import Act.1 Since Canadian law does not generally recognize cultural heritage as a separate legal category, the laws that affect immovables and movables generally apply uniformly. For instance, if someone purchases a stolen painting and sells it to an innocent purchaser, the original owner can recover it (unless the civil law governs, as in Quebec) in a tort action for detinue or conversion. In other words, it is not so much how does the Canadian legal system categorize cultural heritage but when does it create special rules, by way of exception, that accord some form of special recognition of rights in relation

1 R.S.C. 1985, c. 51. The text of this and all other Canadian legislation is available online at: Canadian Legal Information Institute: and .

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to what international (and some national) lawyers would describe as cultural heritage. In the example just mentioned the same rules apply, whether the property is cultural (a painting) or prosaic (an automobile). The rest of this report outlines the main instances where Canadian law addresses cultural heritage in some specific manner. 2. Tangible Cultural Heritage 2.1. Immovables 2.1.1. Provincial Legislation Most Canadian provinces have enacted heritage resource legislation. These laws usually establish heritage protection for various buildings and sites on a selective basis. For example, the British Columbia Heritage Conservation Act2 allows the province’s government to register sites and objects as possessing heritage status. This is accomplished through a designation process that protects such designated heritage property from being destroyed, altered or removed unless a permit is first obtained. Provincial heritage laws also protect archaeological resources through permit requirements for excavations. Under the British Columbia Heritage Conservation Act a “heritage site” is defined as land (including land covered by water) that has heritage significance to British Columbia, a particular community or Aboriginal people. Violations of the Act are punishable by fine or imprisonment. Usually in response to pressure from groups in the community, the provincial government can order that any site, public or private, be investigated for potential heritage designation under the Act. If subsequent designation of land as a provincial heritage site decreases its economic value, the provincial government must compensate the landowner for his or her loss. There is a provincial heritage register established under the Act. Sometimes the province buys privately owned land outright to better protect its heritage value. At the municipal level in British Columbia, heritage designation can also be made under the Local Government Act.3 There are several hundred municipally designated heritage properties in British Columbia (usually commercial or residential buildings of historical interest). Sometimes private owners wish such designation themselves. Designation is also possible without the owners consent but it could lead to a claim for compensation. Once designation occurs (by municipal bylaw) permits must be obtained for alterations. Heritage designation is entered on the title to the land so

2 3

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that prospective buyers are aware of it. The Local Government Act, and those resembling it in other Canadian provinces, now face new challenges, including scientific and technological changes affecting the preservation of built heritage and concern about the special needs of Aboriginal communities respecting both past and present treatment of their heritage. Provincial parks are also established by provincial legislation across Canada. Such laws allow for the establishment of parks and historic sites. Once established, ownership of such parklands is vested in the government of the province concerned. 2.1.2. Federal Legislation The Canadian Parliament has also passed laws concerning the establishment and protection of parks and heritage sites on federal Crown land. Thus, the Canada National Parks Act4 which is administered by Parks Canada, largely mirrors the provincial legislation just mentioned, and is used to designate federal Crown land as national historic parks. The Historic Sites and Monuments Act5 which is administered by the Historic Sites and Monuments Board of Canada, facilitates the designation and protection of historic sites that are regarded as nationally significant. Once designated as an historic site, however, the place receives no other special protection under the Act and its owner cannot be prosecuted for destroying it. Canada established the Canadian Register of Historic Places in 1999, as a collaboration between the federal, provincial and territorial governments. The Register is a searchable database containing information about recognized historic places: see . Canada accepted the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage in 1976 and the above laws have been used to designate sites as world heritage sites under the convention. Thirteen Canadian sites have been recognized as significant by the World Heritage Committee struck under the Convention (eight being parks and natural areas). Other federal legislation relating to heritage conservation includes the Canada Shipping Act6 (archaeological wrecks) and the Department of the Environment Act.7 The focus of federal legislation is mostly on the preservation of historic sites, while the protection of heritage property has largely been left to the provinces. However, neither term is precisely defined for the purpose of applicable legislation.

4 5 6 7

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Unlike the provinces, the Canadian Parliament has not enacted any comprehensive legislation concerning the protection of archaeological heritage on federal Crown lands. A draft federal law was tabled in 1991 (the Archaeological Heritage Protection Act) which would have established such a system but it was not pursued. The draft law would have applied to wrecks, burial sites and the export of archaeological objects. A Discussion Paper prepared by the Canadian Department of Communications by way of background to the proposed 1991 Archaeological Heritage Protection Act cited the following as perceived weaknesses in relation to Canada’s archaeological heritage under federal jurisdiction (at p. 66): The full extent and nature of archaeological resources under federal jurisdiction is unknown. This is true of archaeological resources in the territories as well as of federal lands within the provinces. There is inconsistent implementation of impact assessments among government entities. Assessment criteria are not prescribed and the processes are not perceived to be effective. Some resources are more threatened than others. The most endangered resources are historic wrecks and surface artifacts on Crown land, particularly in some Arctic regions. There are inconsistencies with respect to when archaeologists have to apply for permits. They are only required for work on some federal Crown lands. Provincial measures to protect archaeological heritage are frustrated by lack of a remedy when an artifact has crossed the provincial boundaries.

The main reason the law, which was seen as being a remedy for these concerns, was not proceeded with appears to have been opposition to it from Aboriginal peoples. This opposition reflects the increasingly central role that indigenous concerns play in relation to the development of cultural heritage law in Canada. A major concern of Aboriginals in connection to the 1991 proposal was the issue of ownership and jurisdiction over Aboriginal archaeological resources. In 1996 the Canadian Archaeological Association prepared a Statement of Principles for Ethical Conduct Pertaining to Aboriginal Peoples. These Principles acknowledge the interest of Aboriginal peoples in the interpretation and management of the archaeological record and encourage partnerships between them and archaeologists. The Principles are supplemented in practice by the existence of many individual memoranda of understanding between Aboriginal Peoples, governments and industry. One other significant federal statute affecting archaeological sites is the Territorial Lands Act8 which applies to Crown (government) land in the Yukon, Northwest Territories and Nunavut. This law requires the authorities

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be notified of the discovery of archaeological resources on territorial Crown land and such material is forfeit to the Crown if seized or removed. 2.1.3. Aboriginal Immovable Culture The Canadian constitution was amended in 1982 to entrench the recognition and affirmation of the “existing aboriginal and treaty rights” of the Aboriginal peoples of Canada. The effect of this provision9 is that the provinces can no longer pass laws that have the effect of extinguishing the rights of Aboriginals protected under the section. In a 2002 decision (Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture))10 the Supreme Court of Canada dealt with an argument that the British Columbia Heritage Conservation Act was unconstitutional insofar as it applied to native culturally modified trees. The Court commented on the cultural heritage of British Columbia as follows: The history of the province means that its cultural heritage is in the vast majority of cases an aboriginal one, often going back to pre-contract times and prior to the establishment of the first non-native settlements and the creation of the British colonies on Vancouver Island and on the mainland. The [Heritage Conservation] Act was adopted to conserve and protect all forms of cultural property, objects and artifacts as well as sites in British Columbia which have heritage value to the province as a whole, to a community or to an aboriginal people.

The Supreme Court of Canada went on to uphold the constitutionality of the provincial law on the ground that it struck an appropriate balance between the preservation of Aboriginal heritage and the justifiable need to exploit provincial natural resources for economic reasons. Other recent Supreme Court of Canada decisions have upheld the constitutional duty of Canadian governments, in making decisions that might adversely affect as yet unproven Aboriginal rights and title claims, to consult with and accommodate native peoples. Whether such a duty has been adequately fulfilled will be decided on a case-by-case basis (see, for example, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)11 and Haida Nation v. British Columbia (Minister of Forests)).12 Given the protracted nature of litigation, it may be many years before it becomes clear which Aboriginal cultural rights qualify for constitutional protection. For a more detailed discussion of this process, see Catherine Bell and Robert K.

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Paterson, “Aboriginal Rights to Cultural Property in Canada” (1999) 8 Int’l. J. of Cultural Property, 167. In the absence of modern comprehensive federal legislation relating to the cultural heritage of the Aboriginal peoples of Canada, provincial laws play a somewhat exaggerated role in relation to contemporary indigenous cultural heritage concerns in Canadian society. Once the Canadian Parliament enacts comprehensive laws dealing with Aboriginal cultural heritage issues, any inconsistent provincial laws will be overridden. At present there appear to be no plans to develop a federal law. 2.2. Movables 2.2.1. Generally Under Canadian common law a bona fide purchaser of stolen property cannot get good title to such property in any circumstances. This rule does not apply in Quebec where a bona fide purchaser of stolen property can sometimes acquire good title. In the common law provinces, as in most of the United States, the problem for an original owner may be the application of statutes of limitations. In Canada a “due diligence” standard applies in such cases and an original owner’s claim will sometimes be statute-barred unless, by due diligence, that person should not have reasonably been expected to have discovered the property’s whereabouts earlier than he or she did. Therefore, if the victim of theft fails to undertake, what are later seen as proper steps to discover the whereabouts of his property, he may be held to be barred from enforcing his existing right to recover it. 2.2.2. Aboriginal Cultural Heritage As stated above, there is no separate recognition of a category of movable cultural heritage in Canadian common law. The main exception to this is in relation to the developing constitutional rights of Aboriginal or First Nations peoples. For the most part, however, such rights have related to immovables. Many provincial heritage statutes require that newly-found Aboriginal artifacts be handed over to government representatives as being Crown property (in practice, however, they are usually returned to First Nations communities in the vicinity). The only federal law specifically addressing Aboriginal cultural property in the form of chattels (movables) is section 91 of the Indian Act13 which is as follows:

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robert k. paterson (1) Certain property on reserve may not be acquired—No person may, without the written consent of the Minister, acquire title to any of the following property situated on a reserve, namely, (f) (g) (h) (i) (j)

an Indian grave house; a carved grave pole; a totem pole; a carved house post; or a rock embellished with paintings or carvings.

(2) Saving—Subsection (1) does not apply to chattels referred to therein that are manufactured for sale by Indians. (3) Removal, destruction, etc.—No person shall remove, take away, mutilate, disfigure, deface or destroy any chattel referred to in subsection (1) without the written consent of the Minister.

This provision is based on Parliament’s jurisdiction over Indians (a now dated term for Aboriginal or First Nations people). 2.2.3. Movable Cultural Property Export Controls The removal of Aboriginal heritage objects from Canada is also controlled under the provisions of the Cultural Property Export and Import Act14 which governs the export of cultural objects from Canada in general. This law includes provision for the implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The law also furnishes means for the return to the source state (so long as it is a party to the 1970 UNESCO Convention) of stolen or illegally exported cultural property that has been brought to Canada. Such actions are brought, at the request of the source state, by the Attorney General of Canada. In comparison to the United States, which entered certain reservations to the 1970 UNESCO Convention and thus only recognizes foreign export controls on a very limited basis, Canadian law allows for the recognition and enforcement of the cultural property export controls of all 1970 UNESCO Convention parties. For a discussion of a prosecution under the statute see, Robert K. Paterson, “Bolivian Textiles in Canada” (1993) 2 Int’l. J. of Cultural Property 359. Canada has not shown any indication that it intends to sign the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. The only Canadian province with a specific law governing the removal of cultural property from its territory is Quebec. Under the Cultural Property Act (R.S.Q.c.B-4) cultural property that is recognized by the Quebec minister may not be removed from the province without consent and a right of preemption exists for property that is offered for sale.

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2.2.4. Religious Law and Movables A unique Quebec case supports the idea that (at least in that province) courts will sometimes recognize the special character of religious movables (res sacrae). In the case of L’Ange Gardien, (see Benoit Pelletier, “The Case of the treasures of L’Ange Gardien: An Overview” (1993) 2 Int. J. of Cultural Property 371) the Quebec courts upheld the inalienability of Roman Catholic liturgical objects and, thus, their inability to be sold in commercial transactions. This case stands alone in Canada and it is unclear how widely its principle is likely to be applied, if at all, outside Quebec. 2.2.5. Museums There are several federal and provincial laws dealing with various aspects of museums in Canada and the collections of such institutions. Some of these provide for the creation of museums as non-profit corporations, others as Crown corporations. For example, the federal Museums Act15 establishes two of Canada’s most important museums: the National Gallery of Canada (Ottawa) and the Canadian Museum of Civilization (Gatineau, Quebec). The Canada Travelling Exhibitions Indemnification Act16 establishes a program of government sponsorship for grants of indemnification in respect of both international and domestic exhibitions. Indemnity is limited to a maximum of $450 million per exhibition: see . Several Canadian provinces have legislation that seeks to protect loan exhibitions from civil proceedings in Canadian courts that might recognize claims by third parties. For example, in British Columbia the Law and Equity Act, provides that no proceeding for possession or for a property interest may be brought in respect of artworks or cultural objects brought into the province for temporary exhibition.17 The Canadian Heritage Information Network (CHIN), an agency of the federal Department of Canadian Heritage, was established in 1972 to, among other things, establish a national inventory of Canadian museum collections. The CHIN database has over three million records and images: see . 2.2.6. Repatriation of Aboriginal Cultural Property from Museums Unlike the United States, Canada does not have a federal law setting out the circumstances when material in museum collections must be returned to original indigenous owners.

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Alberta is the only Canadian province to have enacted legislation in respect of Aboriginal cultural property in the form of personalty. The First Nations Sacred Ceremonial Objects Repatriation Act18 provides a mechanism for the return of “sacred ceremonial objects” whose return is requested by an Alberta First Nation from the Alberta government (including the two major provincial museum collections). Returns are not based on ownership rights but on the nature of the object and the status of the requesting group. The law limits repatriation entitlement to Alberta First Nations, such as the Blackfoot First Nation. Under this law a repatriation request can be refused on the basis that it is considered “inappropriate” (section 2(2)). While of limited scope, the new Alberta repatriation law is the only one of its kind in Canada and the only Canadian law resembling the Native American Graves Protection and Repatriation Act (U.S.). Canadian museums, for the most part, adhere to voluntary standards established in 1991 by the Task Force on Museums and First Peoples in its report; Turning the Page: forging New Partnerships Between Museums and First Peoples. Following the failure of efforts to obtain government funding to establish a Council for Museums and First Peoples, the implementation of the report was left to individual museums and the Canadian Museums Association, working with Aboriginal groups. In contrast to the United States, Canada lacks a centralized system to administer and monitor the recommendations of the Task Force. These recommendations lack legal force and their observance and implementation depend on the discretion of individual museums and museum associations. Under the Task Force criteria Aboriginal ancestral remains and sacred objects are usually returned unconditionally upon requests from appropriate First Nation source communities. Many Canadian museums with significant collections of First Nations material have developed ongoing relationships with indigenous communities in their vicinity. These have gone beyond repatriation to include training of indigenous people as conservators and curators, partnered exhibitions and the appointment of First Nations individuals to museum boards and committees. 2.2.7. Cultural Heritage and Armed Conflict Canada is a party to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two protocols. These have been implemented into Canadian federal law by the Crimes Against Humanity and War Crimes Act19 and by amendments to the Cultural Prop-

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erty Export and Import Act and the Criminal Code.20 Under these statutory provisions various criminal offences have been created under Canadian law in the case of persons violating provisions of the Convention and the protocols. These crimes include those relating to the theft and destruction of cultural property. Furthermore, there are no limitation periods applicable under Canadian law for war crimes or crimes against humanity. The Crimes Against Humanity and War Crimes Act also allows for the seizure in Canada of cultural property obtained outside Canada through the commission of what was a crime against humanity (these crimes are defined in the Act in the same way as in the Rome Statute of the International Criminal Court). There is now provision in the Criminal Code for the return of such property to the persons lawfully entitled to it. While Canada has been a leader in developing international law in this area, the actual enforcement of these measures against individuals through prosecutions in Canada may be fraught with difficulty. Nevertheless, Canadian law is such that, for example, artworks appropriated during the Nazi-era could be returned to rightful claimants pursuant to the prosecution of individuals in Canada for crimes against humanity committed outside Canada that were connected with the way in which the property was originally appropriated. 2.2.8. Underwater Cultural Heritage The Canada Shipping Act21 protects heritage wrecks in all navigable waters (including those on provincial land). Canada has not yet decided whether to ratify the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Submerged archaeological sites that are not wrecks are not protected by federal laws at the present time. 3. Intangible Cultural Heritage 3.1. Safeguarding Intangible Cultural Heritage Like most developed industrialized countries, Canada has a well-established system of intellectual property laws designed to balance the interests of the creators of original works against the freedom of others to utilize such works, once they are in the public domain. In Canada, based on the constitutional allocation of legislature capacity, most of these laws are federal. Examples

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include the Copyright Act,22 the Trade-marks Act23 and the Industrial Design Act.24 One component of these laws are moral rights which are recognized in Canadian law as separate rights apart from copyright. Moral rights have been acknowledged in Canada since 1931, in anticipation of Canadian accession to the 1928 revision of the Berne Convention. The Berne Convention established specific protection for attribution (droit de paternité) and integrity (droit de respect l’oeuvre). The right of attribution allows an author to claim authorship and prevents others from making competing claims. The right of integrity lets an author prevent distortion, mutilation, modification or other treatment of his or her work that is prejudicial to the author’s honour or reputation. A well-known Canadian case illustrates the sort of protection afforded by moral rights. In Snow v. Eaton Centre Ltd.25 the sculptor of some forty Canada geese on display at a shopping mall obtained an injunction to stop the mall operators from adding red Christmas ribbon to decorate his work. The remedy was granted on the ground that the modification of the work would harm the professional and artistic reputation of the artist, in violation of his right to the preservation of the integrity of his work. Canada has laws influenced by the civil law of Quebec. Members of the Supreme Court of Canada come from both civil law and common law backgrounds and have looked to the civil law jurisdictions in considering moral rights issues. Under civil law an emphasis is placed on principles of natural justice. Rights in a work are viewed as arising from an act of personal creation and being part of the personality of the author. As such, the work remains linked to the author throughout its life. With its focus on the rights of creators, moral rights law has been seen as sympathetic to the concerns of indigenous peoples. Indigenous peoples may think that the right to integrity may offer protection against distortion through inaccurate or unauthorized use of their cultural symbols. The right of attribution may also be capable of affording protection against claims by non-indigenous persons to original authorship. Despite its potential advantage for indigenous persons, however, moral rights law remains focused on the individual author and not the community as a whole. Canada has no coherent policy framework to deal with the intangible cultural heritage—including traditional knowledge. Rather, the approach has been piecemeal. Canada has adopted a few laws to deal with intangible cul-

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tural heritage issues such as consumer protection and customs legislation. This reflects that there are more recently emerging problems concerning intangible cultural expression (such as its misrepresentation, outright theft or the need for consumer protection) that traditional intellectual property laws sometimes do not adequately address. Specifically, in regard to its indigenous population, Canada has a system to systematize the labeling and attribution of Inuit arts and crafts and First Nations have also sometimes used pre-existing intellectual property laws (such as the Trade-marks Act) to protect tribal images and rock carvings (pretroglyphs). A 1999 Canadian Department of Indian and Northern Affairs working paper entitled Intellectual Property and Aboriginal People (intpro_e.pdf http://www.ainc-inac.gc.ca/pr/ra/intpro/intpro_e.pdf) reports widespread use of traditional intellectual property rights (such as copyright and trade-marks) by First Nations. Overall, however, there has been no comprehensive federal effort to address First Nations concerns about protecting their intangible cultural heritage. Canada has accepted the provisions of the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, but (along with Australia, New Zealand and the United States) it controversially voted against the adoption of the 2007 UN Declaration on the Rights of Indigenous Peoples. Canada and these countries did so on the basis that they thought the rights set out in the Declaration were unrealistically stated in light of the present level of legal protection afforded indigenous populations in their respective countries. For example, Canada claimed that the non-binding Declaration in requiring that First Nations consent to certain matters of general public policy was incompatible with the current state of Canadian law. 3.2. Misappropriation of Traditions There have been energized debates in the so-called “settler countries”—Canada, Australia, New Zealand and the United States in recent years, about the need to protect the vulnerable aspects of the intangible cultures of indigenous populations. The consensus that has emerged is that traditional Western intellectual property laws, which all of these countries have in place, do not adequately address the concerns which are widespread. At the present time there remain few concrete measures in place in Canada that address the specific concerns of its indigenous populations concerning their intangible cultural heritage. This is despite the voluminous scholarly literature on the topic and the development of several international instruments and reports by such institutions as WIPO and UNESCO that focus on such issues.

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One exception is a recent agreement between the Nisga’a First Nation of British Columbia and the governments of Canada and British Columbia which includes measures to protect certain forms of indigenous intangible cultural heritage. Chapter 17 of the Nisga’a Agreement deals mainly with the return of artifacts but it is the first treaty to extensively address Aboriginal cultural heritage issues. 4. Beyond Preservation Canada, along with countries such as France and Brazil, has been a protagonist for the protection of its so-called “cultural industries” on the international scene, in the context of negotiating or re-negotiating trade agreements. Thus, the North American Free Trade Agreement (“NAFTA”) includes a “cultural industries” exception (Article 2106) based on the perceived need for the economic advantages of trade liberalization to be compromised to protect certain activities—such as movie production and book publishing. Such a provision, however, does not yet exist at the multilateral level.

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CROATIA Igor Gliha* and Tatjana Josipović** 1. General Issues .......................................................................................... 2. Tangible Cultural Heritage .................................................................... 2.1. Immovables ...................................................................................... 2.2. Movables .......................................................................................... 3. Intangible Cultural Heritage .................................................................. 3.1. Safeguarding of Intangible Cultural Heritage ............................ 3.2. Misappropriation of Traditions .................................................... 4. Beyond Preservation ............................................................................... 5. Abbreviations ...........................................................................................

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1. General Issues Croatia is a small country1 but with a long tradition of the Mediterranean and Middle-European cultural and civilisation circle. For such a small country, Croatia enjoys a rich cultural heritage, with six Croatian cities inscripted on the UNESCO World Heritage List.2 Consequently, cultural heritage has a significant place in the Croatian legal order and has been included in the Constitution as goods representing national spiritual values which are entitled to special protection by the State.3 The protection of cultural heritage via constitutional channels, has been regulated in numerous acts, by-laws and international treaties. The fundamental regulation on cultural heritage protection is the Protection and Preservation

* Professor of Law, University of Zagreb School of law (Croatia). ** Professor of Law, University of Zagreb School of law (Croatia). 1 Croatia has around 4,5 million inhabitants and around 56,600 km2 land state area. 2 Five cities are listed as the UNESCO world cultural heritage: Episcopal complex of the Euphrasy Basilica in the historic centre of Poreč, the Cathedral of St. James in Šibenik, historic city of Trogir, historical complex of Split with the Palace of Diocletian, Old city of Dubrovnik and one as the natural heritage—Plitvice Lakes. 3 The Constitution of the Republic of Croatia [Ustav Republike Hrvatske], OG 41/01— consolidated text, 55/01—correction, includes the provisions on the cultural heritage protection (Article 68/3) in the part on the protection of the human rights and fundamental freedoms. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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of the Cultural Heritage Act (CHA) of 19994,5 This special act provides for the protection of the Old City of Dubrovnik, which as mentioned earlier, has been inscripted in the World Heritage List.6 There are a substantive number of by-laws7 for the implementation of these acts, such as the Ordinance on the Register of the Cultural Heritage of the Republic of Croatia,8 the Ordinance on Marking the Immovable Cultural Heritage and Structures in which Heritage Collections are Kept,9 the Ordinance on Conditions for Obtaining the Permission to Export of Cultural Heritage from the Republic of Croatia,10 the Ordinance on Archaeological

4 Protection and Preservation of the Cultural Heritage Act [Zakon o zaštiti i očuvanju kulturnih dobara]—CHA, Official Gazette (OG), 69/99, 151/03, 157/03. (For the basic text of the CHA see: http://www.nn.hr/clanci/sluzbeno/1999/1284.htm, and for the 2003 Amendments see: http://www.nn.hr/clanci/sluzbeno/2003/2180.htm and http://www.nn.hr/clanci/ sluzbeno/2003/2256.htm). CHA replaced the Protection of Cultural Monuments Act of 1965 and the Basic Act on the Protection of Cultural Monuments of 1971, which both regulated cultural heritage issues until the CHA was passed. 5 CHA is grounded not only on the principles of the cultural heritage protection established in the norms of international law but also on the experiences of its predecessors, the Protection of Cultural Monuments Act of 1965 and the Basic Act on the Protection of Cultural Monuments of 1971. Furthermore, CHA was also influenced by all international conventions Croatia was party to at the time of its passing, i.e. of its amending (Croatia is a party to the 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict plus 1954 and 1999 Protocols; the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage pursuant to the notification on succession, OG-IT 12/93, but the 1999 Protocol was ratified by the Act on the Ratification of the Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict OG-IT 11/05; the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was ratified by the Act on the Ratification of the Convention on Stolen or Illegally Exported Cultural Objects, OG-IT 5/00; the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage was ratified by the Act on the Ratification of the Convention on the Protection of the Underwater Cultural Heritage, OG-IT 10/04; the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage was ratified by the Act on the Ratification of the Convention for the Safeguarding of the Intangible Cultural Heritage OG-IT 5/05). The above international conventions have not completely been implemented in CHA since in Croatia it is not necessary to separately implement international conventions that are in force when they have been ratified by the Croatian Parliament (Hrvatski sabor) and published in the OG, because they are directly applied in the Croatian legal system. The above conventions have double impact on the Croatian legal system—CHA is grounded on the principles enshrined in these conventions, but their separate implementation is not required since they are applied directly. 6 The Restoration of the Threatened Monument Entirety of Dubrovnik Act [Zakon o obnovi ugrožene spomeničke cjeline Dubrovnika], OG 21/86, 26/93, 33/89, and 128/99. 7 The complete list of by-laws is available on: http://www.min-kulture.hr/default. aspx?id=81. 8 [Pravilnik o registru kulturnih dobara Republike Hrvatske], OG 37/01 and 4/08. 9 [Pravilnik o označavanju nepokretnih kulturnih dobara i objekata u kojima su smještene zbirke kulturnih dobara], OG 12/06. 10 [Pravilnik o uvjetima za davanje odobrenja radi izvoza i iznošenja kulturnih dobara iz Republike Hrvatske], OG 141/06.

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Research,11 the Ordinance on the Manner of Issuing Permission to Perform Underwater Activities in the Internal Maritime Waters and the Territorial Sea of the Republic of Croatia that are Protected as the Cultural Heritage,12 the Ordinance on Determining the Cultural Goods that are Considered the National Treasure of the EU Member States.13 These ordinances are, in terms of legal effect, below laws. They are issued for the implementation of the specific act by the minister, who is empowered to do so by the legal norm stipulating that certain ordinance be issued for the implementation of the law. The above ordinances are published in the Official Gazette and the majority of them are issued by the Minister of Culture in accordance with the authority provided for in the respective acts. Croatia has been a party to a substantial number of international treaties on the protection of cultural heritage at global, regional and bilateral levels. International treaties which are in force are part of the Croatian internal legal order with direct effect, thus their legal implementation is not required.14 International treaties are above laws in terms of legal effect. Therefore, international treaties on cultural heritage protection can be applied directly in the Croatian legal order. The treaties are as follows: the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention and the Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague, 1954); the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (Hague, 1999); the Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 2003); the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 1970); the Convention concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972); the Convention on the Protection of the Underwater Cultural Heritage (Paris, 2001); the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995); the Council of Europe Convention for the Protection of the Architectural Heritage of Europe (Granada, 1985), the European Convention on the Protection of the Archaeological Heritage (revised), (Veletta, 1992); the European Convention for the Protection of the Audiovisual Heritage (Strasbourg, 2001); the Council of Europe Framework Convention on the Value of Cultural Heritage for

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[Pravilnik o arheološkim istraživanjima], OG 30/05. [Pravilnik o postupku i načinu izdavanja dopuštenja za obavljanje podvodnih aktivnosti u unutarnjim morskim vodama i teritorijalnom moru Republike Hrvatske koji su zaštićeni kao kulturno dobro], OG 56/03, 62/03 and 12/05. 13 [Pravilnik o određivanju kulturnih predmeta koji se smatraju nacionalnim blagom država članica Europske unije], OG 38/04. 14 The position and the role of international treaties in the Croatian legal order are regulated in Art. 140 of the Constitution of the Republic of Croatia. 12

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Society (Faro, 2005), the Agreement between the Government of the Republic of Croatia and the USA Government on the Protection and Preservation of Certain Cultural Properties (Washington, 2005). Under the CHA cultural heritage has been classified as follows: 1) movable and immovable goods of special artistic, historical, archaeological, anthropological and scientific importance; 2) archaeological sites and zones, landscape or its part that contain historically characteristic structures evidencing man’s presence in that area, and have artistic, historical and anthropological significance; 3) intangible cultural goods and man’s spiritual creativity in the past as well as documentation and bibliographical heritage;15 4) facilities or spaces used to permanently keep or exhibit cultural heritage and documentation about it.16 The importance of this classification is primarily in determination of what is understood as cultural heritage, because the law does not provide a general definition of cultural heritage. Such categorisation and definition covers cultural heritage in all its traditional forms. This classification is not of great importance for the protection itself, since the CHA conceptually provides for the integral protection of cultural heritage, and applies unique rules for all the stated cultural heritage forms and thus could be said to accept the communityoriented integrated approach that unites the protection and safeguarding of tangible and intangible cultural heritage. However, this categorisation is still necessary for practical reasons. Namely, although the Act provides for the integral protection of all cultural heritage forms, it also includes special provisions which refer only to the particular form of cultural goods that, in compliance with their nature, cannot relate to other cultural heritage forms. Certain provisions cannot be applied to immaterial cultural heritage, such as the provisions on the particular restrictions imposed on the owner of the heritage-status property concerning the use, possession and legal disposal of the cultural heritage; the provisions on exporting cultural heritage from the country can only, in accordance with their nature, refer only to movable

15 Intangibles as cultural heritage have for the first time been introduced as cultural heritage in the 1999 CHA. In accordance with the Explanation of the reasons for introducing the new CHA, cultural heritage was given a significant place in the Croatian general development and economic strategies. Also the cultural heritage role and position in the field of science, education, community’s civilisation level is very important as well as for national and native awareness of individuals and nations. In realising the stated strategies, also the role of intangibles as cultural heritage has been recognised, so they have been included in the protected cultural heritage under a separate category. 16 Facilities for permanent keeping or exibiting cultural heritage and the documentation thereof are recognised as the special cultural heritage that is separately registered in the Register of the Cultural Heritage (CHA, Art. 2).

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cultural heritage and so on. To be able to determine to which particular type of cultural heritage these special provisions apply, it is necessary to define them more precisely. The Register of the Cultural Heritage of the Republic of Croatia is maintained mainly for the benefit of all forms of cultural heritage, but it also includes separate lists for immovable cultural heritage, underwater archaeological sites, movable cultural heritage and intangible cultural heritage. The purpose of these separate lists is to enable easy reference of the Register. There are integral rules for the registration of entries in all categories of the cultural heritage regardless of which list they are entered in (Article 15 of the Ordinance on the Register of the Cultural Heritage of the Republic of Croatia). This also reflects the community-oriented integrated approach to cultural heritage protection in the Croatian CHA. Cultural heritage status is granted by the Ministry of Culture.17 Status is granted either by a decision issued by the Ministry in its official capacity, or against the notification of an institution holding the cultural heritage. The Ministry may also act against the notification of any person who deems that some property might fall under the category of cultural heritage.18 Once a good is acknowledged as cultural heritage the individuals or communities in possession of it acquire no particular subjective right, however the cultural heritage status imposes an obligation to respect this status including the obligation for users to pay special remuneration for commercial use of the cultural heritage (‘monument annuity’).19 On the grounds of this obligation the state and units of local administration receive remuneration for cultural heritage located in their territory. The remuneration collected is then used exclusively for the protection and preservation of the cultural heritage.20 Declaring a property part of the cultural heritage brings its owner certain rights. Namely, the right to compensation of extraordinary expenditures incurred in the maintenance or repair of the cultural heritage, conservation

17

On establishing of cultural heritage status see more infra (A) Immovables, Section 1. See Articles 4 and 94 of the Protection and Preservation of the CHA. 19 The obligation to pay remuneration is imposed, in accordance with the provisions of Art. 114 CHA on any individual who performs certain economic activities (Art. 114 CHA entails a list of activities the performance of which implies payment of the ‘monument annuity’) on the immovable cultural heritage or on the area of cultural-historical heritage entirety. Even the owners of the immovable cultural heritage who perform activities that are subject to payment of the ‘monument annuity’ are not exempted from this obligation, regardless of the fact that the cultural heritage status for this property can be acquired even without the owner’s will. The performance of activities on the immovable cultural heritage in the public ownership (owned by the state or by local units) is subject to concession that can be acquired pursuant the public tender. Therefore the concession holders pay the ‘monument annuity’ not as a separate remuneration but rather as remuneration included in the concession (Art. 43c and 114/9 CHA). 20 The collection of remuneration for use of the cultural heritage is regulated in the special Title—‘Financing of the Protection and Preservation of the Cultural Heritage’. 18

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and implementation of technical protection measures that exceed regular maintenance, or the owner’s income or other benefits connected to the cultural heritage. Along this right the owner is also entitled to expert help from a competent body for the proper protection and preservation of the cultural heritage and the right to compensation for the restrictions of the owner’s proprietary rights21 over the cultural heritage.22 2. Tangible Cultural Heritage 2.1. Immovables Under the Croatian CHA, Article 7, the following may be declared as culturally significant immovables: – – – –

a town, village, settlement or their parts, a building or its parts, and a building with its surroundings, elements that are the historical accessories of a settlement, an area, place, monument and memorial connected to historical events and persons, – an archaeological site and archaeological zone, including underwater sites and zones,23 – an area and place with ethnological and toponymical contents,

21 In accordance with the provisions of Art. 24 and 25 CHA the owner is entitled to “the right to compensation for the restrictions on the cultural heritage” and “the right to tax and customs benefits in accordance with the separate act”. The customs benefits refer to the exemption from customs duties for goods imported and used for renovation, maintenance and restoration of the cultural heritage (Art. 187/14 Customs Act, OG 78/99, 73/00, 92/01, 47/03,140/05 138/06 and 60/08) and Art. 23 of the Decree on the Conditions and Proceedings for Acquiring Relief from Customs Duties, OG 5/07). Tax benefits refer to the exemption from VAT for services and deliveries of goods of institutions involved in the cultural heritage protection (Art. 11/1/10 Value Added Tax Act OG 47/95, 106/96, 164/98, 105/99, 54/00, 73/00, 48/04, 82/04, 90/05, 76/07). The basis for calculation of the compensation for the restriction of ownership is not regulated in CHA. However, the basis for calculation has to be the market value of the immovable, because the Constitution of the Republic of Croatia expressly states that ownership can be restricted only against market value compensation (Art. 50/1 Constitution). 22 These rights are recognised also to persons entitled to some other respective right over the cultural heritage (such as copyright), i.e. persons who in fact realise the respective right over the cultural heritage, see Articles 22, 23 and 110 of the Protection and Preservation of the CHA. 23 Under the Croatian CHA, Article 7, archaeological sites are to be understood as immovable cultural heritage. Spacial boundaries i.e. the size of an archaeological site is determined by the decision which determines the status of the immovable cultural heritage (Art. 12/2 CHA).

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– a landscape or its part that contains historically characteristic structures evidencing man’s presence in that area,24 – gardens and parks,25 – technical facilities with equipment and other similar structures.26 The Ministry of Culture establishes cultural heritage status on the grounds of its professional evaluation by issuing a decision (Art. 12/1 CHA). The cultural heritage status is determined by the Ministry of Culture ex officio after it finds out about the existence of property which is presumed to have cultural heritage status. These acts of the Ministry of Culture follow from its duty to determine, grant and ensure protection and preservation of cultural heritage (Art. 4/2 CHA). The Ministry of Culture can gain access to information regarding the existence of such property in different ways. This can be reported by the owner or a holder of some right on this property (Art. 4/1 CHA). Also, all third parties have a duty to report the existence of property which is presumed to have cultural heritage status.27 Cultural heritage status is declared notwithstanding the will of the owner. The owner, however, being a party in the administrative proceedings, has the right of appeal through which it can contest the validity of the decision determining the cultural heritage status. The decision establishes the spatial boundaries of the culturally significant immovable that is being protected. It also determines the system of protective measures of the immovable and its entry in the Register of the Cultural Heritage of the Republic of Croatia (hereinafter: Register),28 in the List of the Protected Cultural Heritage (Art. 12/4 CHA). The Ministry of Culture issues the decision in administrative proceedings regulated by the General Administrative Procedure Act. An administrative complaint to the Administrative Court of the Republic of Croatia is permitted against the decision of the Ministry.

24 This kind of immovable cultural heritage can be deemed as cultural heritage within the scope of the 1972 Convention. 25 This kind of immovable cultural heritage can be deemed as cultural heritage within the scope of the 1972 Convention. 26 For this kind of immovable property CHA expressly provides it is to be deemed as immovable cultural heritage. 27 Failure to report the existence of property which is presumed to have cultural heritage status is considered a minor offence (Art. 116/1/1 CHA). 28 The form, contents and manner of keeping the Register of the Cultural Heritage of the Republic of Croatia is regulated by the Register of the Cultural Heritage of the Republic of Croatia Ordinance. The Register is kept in electronic form at the Ministry of Culture. The Register is public, and every entry into the Register is published in the Official Gazette of the Republic of Croatia—Narodne novine.

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The Ministry of Culture also declares, in a decision, special status for cultural heritage of the highest national importance (Art. 13/1 CHA). In cases of this kind the Act explicitly provides that a special expert commission shall make the evaluation, consisting of five members appointed by the Ministry of Culture from among prominent cultural-heritage experts (Art. 13/2). On the grounds of their expert finding, the Minister of Culture issues a decision containing the system of measures for the protection of the culturally significant heritage. The cultural heritage of national importance is entered, on the grounds of a decision, in a special part of the Register—the List of the Cultural Heritage of National Importance.29 Being granted the special status for cultural heritage of the highest national importance does not mean that such heritage is automatically included in the tentative list under the 1972 Convention regime.30 Determining a piece of cultural heritage as being of the highest national importance results in the application of special protective measures which ensure its systematic and thorough protection in accordance with its national importance. The heritage not placed under protection by the Ministry of Culture may be declared protected by the representative body of the county, the City of Zagreb, the town or the municipality on whose territory it is located (Art. 17 CHA). Its protection is declared subject to the prior approval of the Conservation Department of the Ministry of Culture on whose territory it is located or subject to the prior approval of the City Bureau for the Protection of Cultural and Natural Monuments of the City of Zagreb (Art. 17/3 CHA). Local cultural properties are not subject to special registration. Before an immovable is given heritage status, the Conservation Department of the Ministry of Culture on whose territory it is located, or the City Bureau for the Protection of Cultural and Natural Monuments of the City of Zagreb, may pass a decision on its preventive protection (Art. 10 CHA). Preventive protection may not exceed 3 years except for archaeological sites and underwater archaeological sites, when the term may not exceed a period of 6 years from the passing of the preventive protection decision. The preventively protected heritage falls under all the regulations applied to immovables that enjoy heritage status under Art. 12 or 13 CHA. The immovable cultural heritage enjoys the same protection regardless of who it belongs to. The owner of immovable cultural heritage may be any natural or legal person, Croatian or foreign legal person. The CHA explic29 The decision to declare cultural heritage status is delivered to the court in charge of the land book in which the immovable is registered for the purpose of updating their records. If cultural heritage status is declared for an underwater archaeological site then the competent port authority is also informed. 30 The tentative list of the Republic of Croatia is published at http://www.min-kulture.hr/ userdocsimages/dokumenti/CROATIA%20%20Tentative%20List%2029%2001%202007%20 %20(2).doc or at http://whc.unesco.org/en/tentativelists/state=hr.

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itly provides that every immovable that enjoys heritage status must have an owner. If cultural heritage has no owner or no owner can be established or if the immovable loses its owner, then the Republic of Croatia becomes the owner (Art. 18 CHA). Establishing cultural heritage status for an immovable does not change the status of its ownership rights. It remains the property of the person who owned it before it attained cultural heritage status. Declaring an immovable part of the cultural heritage brings its owner special obligations and restrictions in its possession, use and in legally disposing of it (Art. 18–40 CHA). On the other hand, the owner also gets certain rights such as the right to compensation for the restrictions, the right to tax and customs benefits, and the right to expert help for the proper protection and preservation of the special-status immovable (Art. 24–26 CHA). The only case when immovable cultural heritage may be expropriated after it has been given cultural heritage status is expropriation in the interest of the Republic of Croatia. Under Art. 41/1 CHA this interest is considered to exist in the following cases: – danger of damage or destruction of the immovable cultural heritage, when its owner is not able to or interested in implementing all the necessary measures of protection and preservation, – if this is the only way to ensure archaeological research and excavation or the implementation of measures for the technical protection of the culturally significant immovable, – if this is the only way to ensure public access to the immovable heritage.31 Expropriation proceedings are instituted on the proposal of the Conservation Department of the Ministry of Culture on whose territory the immovable is located, or of the City Bureau for the Protection of Cultural and Natural Monuments of the City of Zagreb. Expropriation is executed under the Expropriation Act (EA).32 Expropriation proceedings are in the first instance executed by the state administration office competent for property rights relations in the county, or the office of the City of Zagreb competent for property rights relations. The Ministry of Justice of the Republic of Croatia decides on appeals (Art. 21a EA). Judicial protection against the secondinstance decision is allowed before county courts (Art. 42a etc. EA). The CHA explicitly provides that the cultural heritage is of interest to the Republic of Croatia and that it enjoys its special protection (Art. 2/1 CHA).

31 Exceptionally the Croatian Government may pass a decision on the interest of the Republic of Croatia in the expropriation of a heritage immovable in some other case as well (Art. 42/2. CHA). 32 Expropriation Act (EA) [Zakonu o izvlaštenju], OG 9/94, 35/94, 112/00, 114/01, 79/06.

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This provision is grounded on Art. 52 of the Constitution of the Republic of Croatia which, among other things, specifically defines that immovables and things of special cultural, historical, economic and ecological importance, which are specified by law to be of interest to the Republic of Croatia, shall enjoy its special protection. The CHA specifies the criteria for declaring an immovable part of the cultural heritage. For an immovable to be declared part of the cultural heritage it must have artistic, historical, palaeontological, archaeological, anthropological or scientific importance (Art. 2/2/1 CHA). Archaeological sites and archaeological zones, landscapes and their parts are declared cultural heritage if they testify to man’s presence in the area and have artistic, historical and anthropological value (Art. 2/2/2 CHA). Special criteria are used when buildings and spaces in which cultural heritage is exhibited are given special heritage status. Such immovables are declared part of the cultural heritage if they are used to permanently keep or exhibit cultural heritage and documentation about it (Art. 2/2/3 CHA). A special category of immovable cultural heritage is that of national importance (Art. 13 CHA). The criteria for declaring this status is that it should be of the greatest national importance for the Republic of Croatia. Buildings and spaces which are used for keeping or displaying cultural heritage and its documentation are considered special cultural heritage which is subject to special registration in the cultural heritage register. Besides the criteria given above, the CHA does not specify in more detail when an immovable will be considered to have special artistic, historical and anthropological importance. In each specific case, experts in a certain field or those appointed by the Ministry of Culture, make a finding and give an opinion. This finding and opinion i.e. expert assessment, is grounds for deciding to declare that an immovable has cultural heritage status (Art. 12, 13 CHA). The experts are prominent figures in the field of cultural heritage appointed by the Minister of Culture. The CHA determines what is understood as protection and preservation in general, for the entire cultural heritage. Protection focuses extensively on the implementation of legal and professional protection measures under the provisions of the CHA in accordance with the rules of conservation. Preservation is the implementation of protection and preservation measures that will prolong the duration of the immovable’s heritage characteristics. These consist of systematically monitoring the condition of the immovable heritage and protecting it and its heritage characteristics, and preventing all illegal and unauthorised use. Protection measures also deal with all the measures and work necessary to preserve the heritage characteristics, the entirety and the purpose of the culturally significant immovable. Measures for the protection and preservation of the culturally significant heritage consist of researching it (Art. 44–50 CHA), documenting and moniToshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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toring its condition (Art. 51–53 CHA), marking it (Art. 54 CHA), establishing a system of measures for its protection (Art. 55, 56 CHA), establishing special conditions for heritage protection in the procedure of issuing building permits (Art. 60, 61 CHA), issuing prior permission for works on the cultural heritage (Art. 62, 64 CHA), issuing prior permission for working in the cultural heritage (Art. 65 CHA), undertaking measures for the protection and preservation of the threatened cultural heritage (Art. 71 CHA),33 undertaking urgent measures for the protection and preservation of the cultural heritage (Art. 73, 74 CHA), and protection of the cultural heritage under extraordinary circumstances (Art. 75, 76 CHA).34 Research into the cultural heritage may only be performed by legal and natural persons who comply with special conditions and have the permission of the competent body (Art. 44/4 CHA). Archaeological excavations and research may only be performed on the grounds of special permission which determines the area on which works can be carried out, their scope and type (Art. 47 CHA). Protection and preservation documents are compiled for every culturally significant immovable. These documents may be used for official purposes, for scientific research and publication, for the needs of teaching and lecturing, and for other justified reasons (Art. 52/1 CHA). The condition of the heritage-status immovable is constantly monitored by the competent conservation department of the Ministry of Culture, and its condition is established once in five years (Art. 53 CHA). The immovable cultural heritage is marked by special marks whose contents are determined by special rules.35 Business activities are permitted in heritage-status immovables only with the prior approval of the competent conservation department (Art. 65 CHA). After an immovable property has been declared as cultural heritage, special rights and obligations begin for its owner concerning his proprietary rights. The owner of the culturally significant immovable has the following obligations: to treat the immovable with due care and especially to protect and regularly maintain it; to implement the protection measures established

33 Threatened cultural heritage are immovables entered in the World Heritage List or the Threatened World Heritage List and immovables entered in the Croatian Register of the National Heritage, which the Minister of Culture has declared threatened (Art. 71/1 CHA). 34 The Minister of Culture issues special ordinances elaborating protection and preservation measures in more detail (e.g. Archaeological Research Ordinance, Conditions for Natural and Legal Persons to Obtain Permission to Carry out Work on the Protection and Preservation of the Cultural Heritage Ordinance, Manner of Issuing Permission to Perform Underwater Activities in the Internal Maritime Waters and the Territorial Sea of the Republic of Croatia that are Protected as the Cultural Heritage Ordinance etc.). 35 The immovable cultural heritage is marked with the letter “L” in angular Glagolitic script and along the edge the printed text Baština Heritage Ministarstvo kulture RH (Marking the Immovable Cultural Heritage and Structures in which Heritage Collections are Kept Ordinance, OG 12/06).

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in this Act and other regulations and to inform the competent conservation body about all the changes on, damage to or destruction of the heritagestatus immovable, to permit professional and scientific research, technical and other measurements, and to implement technical protection measures, to provide public access to the immovable (Art. 20 CHA). If the owner does not implement the measures prescribed for the protection of his heritagestatus immovable, the competent conservation department shall implement these measures at the owner’s expense. The CHA imposes certain restrictions on the owner’s proprietary rights over the immovable heritage for its protection and preservation. These restrictions consist of restrictions in possessing, use and legal transactions with the heritage-status immovable (Art. 27–43 CHA). The immovable may be expropriated if this is in the interest of the Republic of Croatia, and mortgaged in accordance with the law. For the restrictions he is placed under the owner has the right to compensation, the right to tax and custom benefits and the right to expert help for the proper protection and preservation of the immovable cultural heritage, but only if he acts in accordance with the provisions of the CHA (Art. 24, 25 CHA). The basis for compensation calculation is the market value of the immovable, because the Constitution of the Republic of Croatia expressly states that ownership can be expropriated or restricted only against market value compensation (Art. 50/1 Constitution). Possession of the immovable heritage may be restricted for documenting and researching the immovable, implementing measures for its protection and preservation, and enabling public access to it. The use of the immovable heritage may be restricted to prevent changes of its purpose36 that directly endanger it. Restrictions in legal transactions with immovable heritage are: special obligations on the seller of the immovable,37 on the mediator in the sale and purchase of the immovable and on the buyer, pre-emption rights, the obligation to return budgetary funds invested in the protection and preservation of the immovable heritage before its sale (Art. 28 CHA). When selling the immovable cultural heritage, the owner must first offer it to the town on whose territory the immovable is located, or to the county, or to the

36 The purpose and manner of using the heritage-status immovable is established in a decision issued by the competent conservation department. If the owner wants to change the use of the heritage-status immovable, he must first secure the permission of the competent conservation department. If the owner uses the heritage-status immovable contrary to its intended use, and this leads to its damage, the competent conservation department may order the owner to remove the damage by returning the immovable to its former condition, if this is possible (Art. 34, 35 CHA). 37 The seller of the heritage-status immovable, and the mediator in the purchase and sale of the heritage-status immovable, have the obligation to inform the buyer that the object of sale is part of the cultural heritage protected under the provisions of this Act, to show proof of ownership of the heritage-status immovable, and to show documents waiving the right of pre-emption (Art. 36 CHA).

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Republic of Croatia (pre-emption rights, Art. 37 CHA). The owner of the immovable has the duty to repair damage to it caused by activities contrary to the provisions of the CHA (Art. 43 CHA). To ensure the expenses of removing damage, and the collection of other funds invested in protecting and preserving the immovable by the competent conservation department, the immovable can be mortgaged in favour of the state or of the town budget (Art. 42, 43 CHA). Registration of rights in immovable property in the Republic of Croatia is modeled upon Austrian law. Land registers are operated by courts and they contain all rights in immovable property and all facts relevant for the legal status of the immovable. Land registers provide special protection in cases of bona fide acquisition. This kind of acquisition will be protected in cases where the state of the land register was either incomplete or faulty. On the basis of a decision declaring an immovable part of the cultural heritage, this fact is registered as a remark in the land register (Art. 12/2 CHA). After such a remark has been registered, no person can claim that he did not know or could not have known that the immovable enjoyed such a status. The cultural heritage remark, however, does not exclude further dispositions with the immovable. The owner of the immovable is only obliged to act in accordance with the rules on pre-emption rights. When selling the immovable cultural heritage, the owner must first offer it to the city on the territory of which the immovable is located, or to the county, or to the Republic of Croatia (preemption rights, Art. 37 CHA). The city on the territory of which the immovable is located, the county or the Republic of Croatia are required to state their position regarding the offer within 60 days of the delivery of a written offer. After this term expires, the owner may sell the immovable to another person at a price which cannot be lower than the price named in the offer. If the owner sells the immovable contrary to the provisions on pre-emption rights, the city, county or the Republic can file an action to rescind the sales contract. The action should be brought within 90 days of the discovery of the contract, and no later than 5 years from the day the contract was made (Art. 39 CHA). When the competent conservation department finds that the owner is not treating the immovable heritage with due care and that there is danger of it being damaged or destroyed, the competent body on the territory of which the immovable is located can appoint a temporary guardian who has the duty to undertake measures, at the owner’s expense, for the immovable’s protection and preservation (Art. 31, 32 CHA). A temporary guardian is also appointed when the owner temporarily leaves the heritage-status immovable.38 When 38 The owner shall be deemed to have temporarily left the immovable cultural heritage if his residence is unknown and he has no authorised representative, and the competent conservation department has not been able to inform him about his obligations within six

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the owner permanently leaves the heritage-status immovable, it becomes the property of the Republic of Croatia (Art. 32/3 CHA).39 Declaring an immovable part of the cultural heritage affects both making physical plans and carrying out individual construction work on the heritage-status immovable. All planning documents (physical plans etc.) concerning the area in which the immovable that has been declared part of the cultural heritage is located must include data from the conservation foundation which is established by the competent conservation department of the Ministry of Culture (Art. 56 CHA). The conservation foundation sets up special conditions for the protection and preservation of the immovable cultural heritage in the area covered by the physical plan. Accordingly, physical planning documents may only be passed subject to the prior approval of the conservation department which confirms that they comply with the conservation foundation or the system of measures established for the protection of the immovable heritage that is located in the area covered by the plan (Art. 56/3 CHA). In order to conduct any activities on the territory within the spatial boundaries of the cultural heritage in the proceedings for obtaining building permits, it is necessary to acquire special conditions for the protection of the cultural heritage (Art. 60/1 CHA). Special conditions are issued by the body competent for the protection of cultural monuments. Activities which are conducted in the immediate proximity of the cultural heritage, and which could lead to changes on the cultural heritage or damage its integrity can be conducted on the basis of a special building permit which is only issued with the prior consent of the body competent for the protection of cultural monuments (Art. 62, 63 CHA). Each particular instance of construction work on the heritage-status immovable, in activities that could lead to changes on the immovable or in its immediate proximity or that could impair the entirety of the immovable, must obtain prior approval from the competent conservation department of the Ministry of Culture (Art. 62 CHA).40 This approval is also necessary for construction in the area of a protected cultural-historic whole. Obtaining the conservation department’s prior approval is a condition for obtaining a building permit (Art. 63 CHA). months from the day when it first attempted to deliver the written communication (Art. 32/2 CHA). 39 The owner shall be deemed to have permanently left the immovable cultural heritage if his residence is unknown and he has no authorised representative, and he has not performed his obligations for ten years from the day when the guardian was appointed (Art. 32/4 CHA). 40 Activities that might cause changes include especially: conservation, restoration, relocating the heritage object and other similar work, the work of industrial and other plants and work sites, and the repair and adaptation of the immovable heritage in the sense of construction regulations (Art. 62/2 CHA). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Cultural heritage has been declared to be in the interest of the Republic of Croatia and therefore on the grounds of the Constitution of the Republic of Croatia, it enjoys special protection (Art. 52 of the Constitution of the Republic of Croatia). Thus the owners of, and the bearers of rights to, a heritage-status immovable, and other possessors of a heritage-status immovable, are responsible for its protection and preservation under the provisions of this Act. The CHA imposes special obligations and restrictions on them concerning the use, possession and legal disposal of the cultural heritage (Art. 4/1 CHA). These rules are also applied to situations where sacral buildings or their parts are declared part of the cultural heritage. As part of their competence, governmental bodies and bodies of local and regional self-government care for and are responsible for the protection and preservation of cultural heritage, for determining measures of protection and supervision over their implementation, in the fields of culture, physical planning and zoning, environmental protection, housing and public utilities, tourism, finance, internal affairs and justice in accordance with the law and other regulations (Art. 4/2 CHA). The CHA also explicitly provides that all citizens have the duty to care for the protection and preservation of the cultural heritage and to report to the competent body any immovable which they suppose might belong to the cultural heritage (Art. 4/3 CHA). In this sense the entire community, including also non-governmental organisations, is involved in the protection and preservation of cultural heritage. The CHA does not, however, regulate the special position of non-governmental organisations in declaring and protecting immovable cultural heritage. These organizations, not being owners or right-holders of the immovable, do not have party status in the administrative proceedings for the declaration of cultural heritage status. The CHA in Art. 75 regulates the protection of cultural heritage under extraordinary circumstances such as armed conflict, earthquake, flood, fire, ecological incident and catastrophe and other extraordinary circumstances. The institutions that are in charge of the protection and preservation of immovable cultural heritage and the owners of the immovables have the obligation to ensure, during peacetime and in cooperation with the competent conservation department, conditions for the protection and preservation of cultural goods in the event of extraordinary circumstances.41 The Minister of Culture may in the event of, or the declaration of, extraordinary circumstances order special measures of protection for the cultural heritage (Art. 76/1 CHA), which will be funded by the territorial unit on whose area

41 The same rules apply to taking measures to prevent theft, plunder, illegal seizure of cultural-heritage objects in any way, and all activities whose purpose is to destroy and damage the cultural heritage.

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the immovable is located. CHA does not expressly define what is considered as armed conflict, nor does a definition of armed conflict exist in other legislation. For the definition of armed conflict, Croatian case law applies interpretations stemming from international humanitarian law treaties. The Republic of Croatia is a member of the Convention for the Protection of Cultural Property in the Event of Armed Conflict and the Protocols Thereto (OG—International Treaties, 12/93, 6/02). Croatia is a party to the Convention and Protocol I of October 8, 199142 by way of succession notification. The II Protocol has been ratified by means of the Act ratifying the II Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (OG—International Treaties 6/02). According to Art. 140 of the Constitution of the Republic of Croatia, the Convention and the Protocols, after they have been ratified in accordance with the Constitution and made public, make part of the internal legal order of the Republic of Croatia, and are in terms of legal force above laws. Following the Convention, Croatia has for example in the Penal Code (Art. 167) introduced the felony of “Destruction of cultural heritage and buildings in which cultural heritage is placed”.43 In principle, the rules that apply to the protection and preservation of cultural heritage also apply to the protection of underwater sites. The rules that apply to archaeological excavations and research also apply to underwater archaeological research (Art. 49/1 CHA). A special permit of the competent port authority is necessary to remove submerged objects that are or that are thought to be part of the cultural heritage (Art. 50 CHA). Underwater archaeological research may only be carried out with the prior approval of the conservation department of the Ministry of Culture, and this approval may only be issued to persons who possess the professional skills necessary for performing such work (Art. 50, 47 CHA).44 The Republic of Croatia is a member of the Convention on the Protection of the Underwater Cultural Heritage (OG 17/04).

42 The Republic of Croatia broke, as of 8 October 1991, all state and legal relations upon which it had, together with other republics and territories formed the former SFRY (the Decision of the Parliament of the Republic of Croatia of 8 October 1991, NN 53/91). 43 Who destroys cultural heritage or buildings that have a scientific, artistic, educational or humanitarian purpose, breaching the rules of international law in the time of war or armed conflict, shall be punished by a prison sentence of a minimum of one year. If the felony in par. 1 has resulted in the destruction of a clearly recognizable building which is under special protection of international law as the cultural and spiritual heritage, shall be punished by a prison sentence of a minimum of 5 years. 44 The Minister of Culture issues special rules defining the procedure and manner of issuing permits for underwater activities in the internal maritime waters and territorial sea of the Republic of Croatia which are protected as part of the cultural heritage.

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2.2. Movables Under Article 8 of the CHA movable cultural heritage includes: – collections of objects in museums, galleries, libraries and other institutions, in the possession of other legal persons and state and administrative bodies, and also in the possession of natural persons, – church inventory and objects, – archive material, records, documents, letters and manuscripts, – films, – archaeological finds, – anthological works of the fine arts, applied arts and design, – ethnographic objects, – old and rare books, money, securities, postage stamps and other printed material, – documentation on the cultural heritage, – theatre props, sketches, costumes and the like, – items of use (furniture, clothes, weapons etc.), communication and means of – transport and facilities, – objects that are important evidence of the development of science and technology. The procedure for establishing protection over movable cultural heritage is the same as in establishing protection over immovable cultural heritage (Art. 10–17 CHA). See more under (A) Immovables, Section 1. Movables are declared a part of the cultural heritage if they possess artistic, historical, paleontological, archeological, anthropological and scientific value. Under the CHA, the rules that apply to the participation of communities, groups or relevant non-governmental organizations in the process of declaring movable property as cultural heritage and in its management, preservation and possession are the same as in the case of immovables. See more under (A) Immovables, Section 5. The procedure for determining cultural heritage status is the same as for the immovables. A movable can be declared cultural heritage without the will of the owner. See more under (A) Immovables, Section 1. Movable cultural heritage may be owned by any natural or legal person, the state and other local self-government units. The CHA explicitly provides that all movable cultural heritage must have an owner (Art. 18/1). If cultural heritage has no owner or no owner can be established or if it loses its owner, then the Republic of Croatia becomes the owner (Art. 18.2 CHA). A precious artefact that may be assumed to be cultural heritage, and which is located or is found in the land, sea or water, is the property of the Republic

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of Croatia (Art. 19.1 CHA). However, anyone who deems himself the rightful owner of such an artefact may file a lawsuit to be declared the owner (Art. 19/1 CHA). The artefact found falls under the regulations on treasure trove45 in the Ownership Act46 (OA, Art. 140). The finder has the obligation to take possession of the treasure for the Republic of Croatia, to inform without delay the closest accessible finding office about the treasure trove and on its order to hand the treasure over. Until handing it over, the finder must take the necessary measures to ensure that the treasure trove is not destroyed, damaged or misappropriated. The finding office must immediately inform the competent state body for the preservation of cultural heritage or the archive about the treasure trove or archive material of general cultural interest, who are authorised to take possession of these objects for safekeeping. The finder and the owner of the immovable where the treasure was found have the right to an appropriate reward from the Republic of Croatia.47 The Republic of Croatia may, however, free itself of the obligation of granting a finder’s reward and compensation for expenses entailed in finding the treasure by renouncing the object and making the finder and the owner of the immovable its copossessors. After that the provisions of the ZV on acquiring ownership over a found object will be applied (Art. 134–139 OA).48 The finder has the right to a reward amounting to 10% of the market value of the object, and the right to compensation for necessary costs suffered in respect with the object found. Besides the restrictions that the CHA places over every cultural-heritage owner, regardless of whether the heritage is movable or immovable (see more under (A) Immovables), Section 4 CHA also places special restrictions over the owners of movable cultural heritage. The owner has the duty to ensure public access to the movable cultural heritage (Art. 20/5) and to temporarily yield possession of it for exhibiting purposes (Art. 33/1).49 The owner must

45 Under the OA, treasure trove is money, precious items and other valuables that were hidden so long ago that their owner can no longer be established. 46 Ownership Act [Zakon o vlasništvu i drugim stvarnim pravima], OG 91/96, 68/98, 137/99, 22/00, 73/00, 114/01, 79/06, 141/06. 47 The reward may not be less than the reward for finding someone else’s property nor more than the value of the treasure trove, and they also have the right to compensation for any necessary expenses. 48 A finder may become the owner of a found object under the rules for acquiring ownership of movables by prescription. 49 At the proposal of the organiser of an exhibition or a visit, the Conservation Department of the Ministry of Culture or the conservation body of the City of Zagreb may pass a decision ordering the owner to temporarily yield possession of cultural heritage (Art. 33/2 CHA). The owner and the exhibition organiser make a contract about how the cultural heritage will be handled, giving guarantees in case of damage, destruction, theft or disappearance of the cultural heritage, and including the obligation to insure the cultural heritage with an insurance company.

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preserve the entirety of a protected collection of movable cultural heritage objects (Art. 20/6). If movable cultural heritage is sold the Republic of Croatia, i.e. local self-government communities, have pre-emption rights (Art. 37 CHA). Pre-emption rights are also applied when movable cultural heritage is sold at auction (Art. 37a CHA). The auction organiser has the duty to inform the persons with pre-emption rights about the starting conditions of the auction sale of cultural heritage. Movable cultural heritage and objects under preventive protection cannot be taken abroad (Art. 67 CHA). Exceptionally, movable cultural heritage may be taken abroad for exhibiting, expertise, and work on its protection and preservation, but only with the approval of the Conservation Department of the Ministry of Culture (Art. 68/1 CHA).50 The provisions under which a permit may be requested to temporarily take heritage abroad are also applied to the listed movables of special cultural value which have not yet been declared cultural heritage (Art. 69a CHA).51 Croatian regulations protect the acquisition of movables from a nonowner when property is acquired by a bona fide third party. These rules also apply when the bona fide third party acquires movable cultural heritage from a person who is not the owner. Under Art. 118 of the OA the bona fide third party, i.e. the person who did not know or could not have known that he/she was acquiring ownership of a movable from a person who is not its owner, becomes the owner of the movable if the acquisition is against payment and if the bona fide party gained possession of the movable. In the case where the bona fide party acquires ownership, the former owner has no remedy

50 The Minister of Culture passes special rules for temporarily taking cultural heritage abroad—Ordinance on the Conditions for Granting Permission to Export and Remove Cultural Heritage from the Republic of Croatia. 51 Art. 69a CHA lists the objects which may be taken out of the country only with prior approval of the Conservation Department of the Ministry of Culture. These are: 1. archaeological objects more than 100 years old, archaeological sites and archaeological collections; 2. elements forming an integral part of artistic, historical or religious monuments more than 100 years old; 3. pictures and paintings executed entirely by hand, on any medium and in any material; 4. watercolours, gouaches and pastels executed by hand on any material; 5. mosaics executed by hand in any material; 6. original engravings, prints, serigraphs and lithographs with their respective plates and original posters; 7. original sculptures or statuary and copies produced by the same process as the original; 8. photographs, films and negatives thereof; 9. incunabula and manuscripts, including maps and musical scores, singly or in collections; 10. books more than 100 years old, singly or in collections; 11. printed maps more than 200 years old; 12. archives, and any elements thereof, of any kind or any medium which are more than 50 years old; 13. collections and specimens from zoological, botanical, mineralogical or anatomical collections; 14. collections of historical, palaeontological, ethnographic or numismatic interest; 15. means of transport more than 75 years old; 16. any other antique items not included in categories 1 to 15 that are between 50 and 100 years old (toys, games, glassware, articles of goldsmiths’ or silversmiths’ wares, furniture, optical, photographic or cinematographic apparatus, musical instruments, clocks and watches and parts thereof, articles of wood, pottery, tapestries, carpets, wallpaper, arms), and other elements forming an integral part of artistic, historical and religious monuments that are more than 100 years old.

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against the bona fide party and can only seek compensation against the person who has disposed of the object following the rules of unjust enrichment. The former owner would then be entitled to the market value of the object. However, the OA explicitly provides that the bona fide third party cannot in this way become the owner of a stolen, lost or mislaid movable. If the movable was stolen, its owner is protected and may demand that the bona fide third party, who bought the movable without knowing that it was stolen, return the movable to the owner. In other words, the bona fide party is not protected if he has acquired ownership of a stolen object. The burden of proof that the object was stolen lies with the owner who demands the return of possession. This claim of the owner is not subject to a statute of limitations, because in Croatian law, actions which protect ownership are not time dependant. On the other hand, the bona fide status is always presumed, so the other party has the burden of proof that the acquirer was not bona fide.52 Therefore, the bona fide third party cannot, by a legal transaction against payment, become the owner of stolen movable cultural heritage although he did not know or could not have known that it was stolen. In the process of adapting its legislation to the European acquis communautaire the Republic of Croatia introduced provisions into its CHA implementing European Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State. Art. 70a-70e (Return of cultural objects unlawfully removed from the territory of other countries) regulate the obligations of the Republic of Croatia with regards to the return of cultural objects unlawfully removed from the territory of an EU Member State.53 For matters concerning ownership of cultural heritage that was handed over to an EU Member State, the regulations of this member state are applied (Art. 70d/5 CHA). Concerning cross-border purchases for non-EU members, general rules of Croatian PIL are applied. According to these rules, the applicable law for ownership is the law of the location of the object (lex rei sitae). The provisions of the CHA implementing Directive 93/7/EEC do not exclude non-EU Member States from the right to the return of cultural objects in accordance with multilateral or bilateral international agreements signed by the Republic of Croatia.54 52 A bona fide party could aquire ownership by way of acquisitive prescription if he were in possession of the movable for at least three years. 53 The Minister of Culture, in a special ordinance, defined the groups of objects that are deemed national treasures and which must be returned—Ordinance on Determining the Cultural Objects Deemed the National Treasures of EU Member States. 54 Thus, for example, the Republic of Croatia is a signatory of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 24 June 1995), OG—International Contracts, 5/00, 6/02. Croatia is also a signatory of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1974, OG—International Contracts, 12/93.

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Under applicable Croatian criminal law the damaging, destruction and illicit export of cultural or natural objects, and illicit research and appropriation of cultural objects is a crime (Art. 325, 326 of the Criminal Act)55 which may even be punished by imprisonment.56 A special Museums Act (MA) regulates museum activities and keeping museum material.57 Under this act museum material, consisting of civilisation, cultural and natural objects as part of the national and human heritage, is protected as cultural heritage to which the regulations on the protection of cultural heritage are applied (Art. 7/3 of the MA). The Museums Act explicitly provides that natural and legal persons who gather museum material during field research have to deliver material finds and documents on their research to the museum in the region in which the field research was carried out (Art. 11/2). If there is no museum in this region or if the museum does not satisfy the conditions for keeping and exhibiting the cultural treasure found, the body competent for cultural heritage protection decides where the material found and documentation shall be placed (Art. 11/3 of the MA). If a dispute arises about the placement of the museum material and museum documentation, the decision about the placement is made by the Ministry of Culture (Cultural Heritage Council) after securing the prior opinion of the Museum Council of the Ministry of Culture (Art. 13 of the MA). However, the Museums Act does not define the criteria that the competent bodies should use in deciding where to place the discovered cultural object for safekeeping and exhibiting in case of a dispute about its placement. In practice the view prevails that a discovered cultural object should be placed and kept in a museum that is in the region in which it was found or in a location closest to where it was found provided that this location satisfies the necessary conditions. The newest example for such a decision of the Museum Council was the case of finding the ancient statue Apoxyomenos (the so-called Croatian Apoxyomenos Statue). The ancient bronze statue Apoxyomenos (1st century BC and the 2nd century AD) showing the figure of a young athlete (h. 192 cm) was found in 1996 in the sea off the little island of Vele Orjule near the island of Lošinj in Croatia. The statue was raised from the seabed in 1999.58 The

55 Criminal Act [Kazneni zakon], OG 110/97, 27/98, 50/00, 129/00, 51/01, 105/04, 84/05, 71/06, 110/07. 56 According to data of the Ministry of Internal Affairs of the Republic of Croatia, 1,916 criminal acts of various kinds were recorded in the period from 1991 to 2005 (theft, damage, destruction and illicit export, smuggling, forgery and the like) involving about 4,800 artworks of various kinds. Most of these objects (paintings, religious objects, amphoras etc.) had the character of cultural heritage. See more on the web page of the Ministry of Internal Affairs (http://www.mup.hr//62.aspx). 57 Museums Act [Zakon o muzejima], OG 142/98. Croatian museums apply the ICOM Code of Ethics for Museums. 58 See more about the Croatian Apoxyomenos on the web site of the Croatian Conservation Institute (www.h-r-z.hr).

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Museum Council of the Ministry of Culture decided in October 2007 that Apoxyomenos should be placed in the Kvarner Palace in Mali Lošinju. Art. 19 CHA expressly states that property which is assumed to have cultural heritage status, and which is located or is found in the earth, water or sea, belongs to the Republic of Croatia. However, a person with reason to believe he has an ownership claim on such property can file a lawsuit in order to declare the ownership. CHA expressly states that found property is subject to the provisions on treasure trove. Storing of such property depends on the decision of the body competent for the protection of cultural monuments, which must be notified upon the discovery. This body is authorized to take the object into possession and keep it unless the special legislation provides otherwise (Art. 140/4 OA). The protection of movable cultural heritage in the event of an armed conflict falls, respectively, under the same provisions of the CHA (Art. 75 and elsewhere) as the protection of cultural heritage under extraordinary circumstances (see more under (A) Immovables Section 6). Legal relations concerning movable cultural heritage brought into national territory from the areas of other countries engaged in an armed conflict are solved in accordance with applicable regulations on returning movable cultural heritage, international conventions signed by the Republic of Croatia and on the grounds of bilateral agreements with particular states signed by the Republic of Croatia. 3. Intangible Cultural Heritage 3.1. Safeguarding of Intangible Cultural Heritage Croatia has rather a rich cultural heritage including also that of the intangible nature. This can be observed from the rather long tradition of the Croatian nation and from existing evidence. The Croatian tradition dates back to the 7th century when the Croats inhabited the territory where they live even today.59 Some old Croatian customs were spread far beyond Croatian borders—for example, the necktie (cravat)—an article of clothing it is hard to imagine contemporary men’s fashion without. During the reign of Louis XIII of France, Croatian mercenaries supported the King and their traditional outfit aroused curiosity in Paris on account of the unusual and

59 There are numerous traces of the Croatian culture, for example in the 15th century Croatia had at least three printing-houses and numerous books were printed at that time (so-called incunabula); the first university institution in Croatia was founded by the Dominicans in Zadar in 1396 as the ‘studium generale’ for theology with the privilege of conferring doctorates of theology. It operated until 1806, when it was closed during the French (Napoleon’s) occupation. The largest Croatian University, the University of Zagreb was established in 1669. The Croatian Academy of Sciences and Arts was founded in 1866 by the Bishop Josip Juraj Strossmayer.

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picturesque scarves distinctively tied around their necks. The scarves were made of various cloths, ranging from coarse material for common soldiers, to fine linen and silk for officers. This part of the outfit was called ‘cravate’ after the Croats. Croatia expresses a high regard for the safeguarding of cultural heritage, namely by creating a legal framework for its protection. The basic regulation for the protection of cultural heritage is the Protection and Preservation of Cultural Heritage Act of 1999 and the Ordinance on the Register of the Cultural Heritage of the Republic of Croatia that was passed pursuant to this Act. Both regulations relate to the protection of tangible and intangible cultural heritage. Croatia was among one of the first countries to ratify the Convention for the Safeguarding of the Intangible Cultural Heritage (the Croatian Parliament, Sabor, ratified it on 20 May 2005, and the instrument of ratification was deposited on 28 June 2005). However, the existing legal framework shows some shortcomings concerning the protection of intangible cultural heritage and does not adequately meet the requirements for its efficient and complete protection. Namely, although the Protection and Preservation of Cultural Heritage Act as well as the Ordinance on the Register of the Cultural Heritage of the Republic of Croatia aim at safeguarding both forms of cultural heritage, they are primarily oriented to safeguarding tangible cultural heritage. Intangible cultural heritage is defined as different forms and manifestations of human spiritual creativity in the past. Traditional and cultural expressions are enlisted as particular forms of intangible cultural heritage (Article 9 CHA). The Croatian legal order recognises no additional special criteria for defining traditional knowledge and cultural expressions. When a proposal is made for an intangible cultural good to be included in the Register of the Cultural Heritage of the Republic of Croatia, the Committee for Intangible Cultural Heritage follows a ‘control list’ of requirements that have to be met in order for the good proposed to be considered for entry. ‘Control list’ are rules pursuant to which the Committee for Intangible Cultural Heritage operates. This list in fact stems from internal enactment rather than the regulation.60 When deciding on a proposal for some intangible cultural good to be declared cultural heritage, the Committee for Intangible Cultural Heritage verifies whether all criteria in the list have been met. A ‘control list’ should not include additional requirements, but should assist the Committee for Intangible Cultural Heritage in the implementation of the CHA provisions.

60 A ‘Control list’ is not published in the official gazette, but only released on the web Internet pages of the Ministry of Culture, http://www.min-kulture.hr/default.aspx?id=3642#.

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In compliance with this control list an intangible good can be declared cultural heritage if: – it belongs to one or more intangible heritage forms enlisted in Article 9 CHA;61 – it complies with existing international human rights instruments, as well as with the requirements of mutual respect among communities and sustainable development; – the community has recognised it as a part of its cultural heritage;62 – it provides the community and individuals with a sense of identity and continuity based on sharing experience and on common memory; – it is entrenched in the community and transmitted and recreated; – it contributes to the diversity of the cultural heritage entered in the Register of the Cultural Heritage of the Republic of Croatia, thereby confirming the cultural diversity and human creativity; – the proposal is submitted with the prior consent of the respective community and with its participation in all the stages of drafting the proposal— from identification, definition to its submission; – the proposal is accompanied with the required documentation (in accordance with the prescribed Registration form concerning the proposal for the protection of intangible cultural heritage) and if it contains substantiated and achievable protection measures.63

61 Article 9 CHA defines the intangible heritage form as different forms and manifestations of spiritual creativity transmitted from generation to generation or likewise, and in particular the following: – language, dialects, speeches, toponyms and oral traditions and expressions; – folklore creativity in the field of music, dance, performing arts, rituals, social practices and other traditional national values; – traditional skills and craftsmanship. 62 The community rights in CHA are not comparable with ownership since the community has no authority to either prohibit the use of the intangible good, or protect its right, transfer it or dispose of this right in any way. “The right” of the community comes only to the recognition of the community that some intangible cultural heritage is in fact part of its cultural heritage and to the right to a part of the remuneration (“monument annuity”). CHA entails no separate definition of the community. Usually, the community stands for the environment from which the intangible cultural heritage either originates or is connected to. Therefore, when speaking of the community will, it is to be noted that this will is primarily expressed through the representative bodies of the community i.e. through the local authority. However, this does not exclude the possibility of expressing this will also through particular associations that are involved in the protection of certain cultural heritage, or some group or cultural heritage entirety of some community if these associations are recognised by the community as the one taking care of the cultural heritage of the respective community. The community that the cultural heritage originates from is entitled to remuneration (“monument annuity”) for use of this cultural heritage (see infra A 4), which remuneration is further allocated to those who care for the cultural heritage. 63 http://www.min-kulture.hr/default.aspx?id=3642, 15 April 2008.

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The Croatian Protection and Preservation of Cultural Heritage Act includes numerous provisions on safeguarding the cultural heritage in respect with the overall cultural heritage. However, the measures relating to safeguarding cultural heritage primarily relate to tangible cultural heritage (see supra B. Tangible Cultural Heritage) and are therefore hardly applicable to intangible cultural heritage. Nevertheless, some can also be applied to intangible cultural heritage, namely the measures related to cultural heritage documentation and its use. The competent ministry, the Ministry of Culture, prepares the documentation on the cultural heritage, and this documentation can be used for the purposes justifying protection, safeguarding and maintenance of the cultural heritage. There are no particular measures related only to intangible cultural heritage in the Croatian legal system. Regarding measures for the protection of cultural heritage it is necessary to note that Articles 12.4 and 13.3 of the CHA provide that each individual decision declaring cultural heritage status shall define the system of measures for the protection of the cultural heritage in question. In accordance with the present practice these measures are:64 – to ensure public access to a cultural good;65 – to encourage transmission and care for the cultural heritage in authentic and other environments; – to promote the function and importance of heritage in society and to integrate its safeguarding in planning programmes; – to ensure the viability of the cultural heritage by means of education, identification, documentation, scientific research, preservation, protection, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalisation of the abandoned segments of the heritage; – to continue with research of the cultural heritage by appropriate documenting using all means and forms of modern registering, and expert and scientific evaluation;

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http://www.min-kulture.hr/default.aspx?id=3644, 15 April 2008. In accordance with the provisions 112–114 CHA everyone is entitled to use the intangible heritage, but against remuneration (‘monument annuity’). Therefore we could say that the intangible heritage is just subject to ‘monument annuity’ payments. This is not so, however, if the intangible heritage is at the same time a copyrighted work protected by the copyright. In that case, the holder of the copyright will have the control over the copyrighted work which cannot be used without his authorisation. On the other hand, this right stems not from the fact that the work belongs to intangible heritage but exclusively because the matter is about the copyrighted work which is the subject matter of copyright. The Croatian Copyright Act contains special provisions on collecting remuneration for communication to the public of the intangible cultural heritage which in its original form belongs to folk literature and art is subject to the payment of remuneration, the same as for the communication to the public of protected copyright works (see infra D 1). 65

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– to foster participation of communities and groups that recognised the cultural heritage in its identification, definition, performance and transmission; – to promote and develop the cultural heritage by means of exhibitions, expert gatherings, folklore festivals, concerts, electronic media, audio and video recordings and the like; – to educate specialists who will share their knowledge through seminars, workshops, formal and non-formal education; – to raise public awareness and foster protection and preservation of the cultural heritage by identifying the process of globalisation and social transformation in order to avoid the threats of disappearance, destruction and commercialisation of the cultural heritage, and instead bring human beings together and ensure understanding among them. All citizens have the duty, and are even obliged to care for the protection and preservation of cultural heritage. They are also authorized to report a good which they have reason to believe might belong to the cultural heritage (Article 4.3 CHA). The Ministry of Culture ex officio establishes cultural heritage status if it deems that there are sufficient indicators that some heritage really belongs to the cultural heritage. Such conduct of the Ministry stems from its obligation to determine, protect and preserve the cultural heritage (Art. 4.2 CHA). The Ministry obtains information on the existence of heritage that could belong to the cultural heritage in different ways. Thus, not only owners or bearers of some other rights on the good (Art. 4.1 CHA), but also any other person who has cognition that some good might belong to the cultural heritage can report to the Ministry. Along with the initiative for some good to be declared a part of the cultural heritage, the respective community is also involved in the proceedings to establish the cultural heritage status since it has to give its approval66 and is involved in all the stages of drafting a proposal—from identification, definition, documentation to its submission. Also the community is entitled to funds from the ‘monument annuity’67 related to their cultural heritage, although the system for intangible cultural heritage is still missing. The community is entitled to 60% of the monument annuity related to its heritage, but given that the collecting system of this annuity is not yet developed, in practice this is not realised. Individuals who take care of particular intangible 66 Community has been involved in the proceedings to establish cultural heritage status in a way that it assists the Committee for Intangible Cultural Heritage in declaring the cultural heritage status. “Approval” does not stand for some special consent to give some intangible cultural good the cultural heritage status, but rather its purpose is to point out that the community that the intangible cultural good is related to has recognised it as part of its cultural heritage. 67 See more infra Misappropriation of Traditions, Section 4.

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cultural heritage are also entitled to compensation for their investment in the protection and preservation of intangible cultural heritage. In the Republic of Croatia there is a public register (the Register of the Cultural Heritage of the Republic of Croatia) for all forms of cultural heritage, and therefore also for intangible cultural heritage. The purpose of entrance into the Register is to acquire cultural heritage status which enjoys protection pursuant to the provisions of CHA. Therefore, intangible cultural heritage that is not registered enjoys no particular protection. Entry in the Register also means publication of the cultural heritage status, which is rather important given the obligation of third parties to pay remuneration for the use of the listed cultural heritage (‘monument annuity’68 in Articles 112 and 113 CHA). This obligation exists only regarding cultural heritage entered in the Register. The Ministry of Culture keeps the Register and every entry is published in the Official Gazette. According to the state on 15 April 2008 there are 60 intangible cultural heritage items and 9 preventively protected intangible cultural heritage items entered in the Register. Cultural heritage status is acquired by entry in the Register which brings the right to legal protection. The registration is carried out pursuant to a decision declaring cultural heritage status. The decision is issued by the Assistant Minister of Culture (Article 9 of the Ordinance),69 at the proposal of the Expert Commission of the Ministry of Culture. Along with the cultural heritage that acquired cultural heritage status by registration, preventively protected cultural heritage is also entered in the Register. These are goods that have not yet been declared cultural heritage, but are only presumed to belong to the cultural heritage (Article 10.1). Given that registration is sometimes a very long process and occasionally requires substantial funding from the applicant, the Ministry of Culture, if it deems that there are sufficient indicators that some heritage really belongs to the cultural heritage, may pass a decision on its preventive protection and set a term for its protection. Preventive protection may not exceed three years from passing the preventive protection decision (Article 10.3). If the decision is not passed within that term the preventive protection terminates. Preventive protection is a preventive and emergency protection measure, but also a special phase in the protection procedure. Provided that the protection procedure ends positively, the preventive protection becomes permanent. Otherwise, it terminates in the stipulated term. There is no difference in content

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See more infra Misappropriation of Traditions, Section 4. The Assistant Minister is only not empowered to issue a decision declaring cultural heritage status with respect to cultural heritage of the highest national importance. In cases of this kind the decision is issued by the Minister of Culture on a proposal of the special expert commission (Article 9.3). 69

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of the preventive phase in relation to the permanent one. The preventive protection is instituted in the decision of the Ministry of Culture, who needs no special authorisation to issue such a decision. Croatia is still developing the system for the protection of intangible cultural heritage. The measures envisaged in the CHA are not yet applied to their full extent. In fact, except for registration of intangible cultural heritage other measures do not yet function. The system is yet to be established. At this moment, therefore, we cannot speak about particular measures for the protection of intangible cultural heritage. However, some measures that are not directly related to the protection of intangible cultural heritage nevertheless have some effect on its safeguarding. Namely, the National Programme of Digitalising Archive, Library and Museum Holdings introduces grounds for developing the programme and projects of digitalising archive, library and museum holdings as part of the national cultural heritage, and for the creation and improvement of information services and society in these areas. The main goal of this programme is to build a framework that will enable and encourage wide accessibility, use and exchange of cultural contents, facilitate the approach to and promotion of contents of national cultural heritage.70 3.2. Misappropriation of Traditions A system that would prevent the misappropriation of intangible heritage for commercial purposes does not in fact exist. Namely, it is not possible to ban the use of intangible cultural heritage—everyone can use it without special permission, which leads to its comprehensive and excessive use. The users of the intangible heritage have only one duty—that is to pay remuneration for use (‘monument annuity’) provided for in Articles 112 and 113 of the CHA. If the cultural heritage is used in some product, the remuneration for its use amounts to 10% of the selling price of the respective product. A person who places a product containing cultural heritage on the market is obliged to pay, within 8 days from placing it on the market, ‘monument annuity’ to the state budget or to the budget of the unit of local administration in whose territory the remuneration is collected.71 If, on the other hand, the cultural heritage is used only for promotional purposes, the payment of ‘monument annuity’ is due for every form of promotional material. This remuneration is paid for every form of promotional material (regardless of the number of copies) and it is disproportionately small compared to the remuneration for the use

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More on this Programme see: http://daz.hr/bastina/. A unit of local administration connected to the cultural heritage is entitled to 60% of the collected remuneration, and 40% is allocated to the state budget, see Article 114b of the CHA. 71

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of the cultural heritage in products—it is fixed and it amounts to 1,000 HrK (around 220 USD). The remuneration (‘monument annuity’) has to be paid with no call and regardless of whether the product has been sold or not, and the person who places the product containing cultural heritage on market takes all the risk. Although remuneration avoidance is considered a misdemeanour and is punishable by fine amounting from 20,000 up to 200,000 HrK (around 4,400 to 44,000 USD), it is in certain cases very difficult to control all products on the market that include the cultural heritage. Therefore, the implementation of the provisions on ‘monument annuity’ cannot be considered flawless. The Croatian legal system provides no particular subjective right to legal persons whose object is a part of the cultural heritage. There is merely a general obligation for users to pay remuneration (monument annuity) for acknowledged cultural heritage. This remuneration is paid to the state budget or to the budget of the state administration unit in whose territory the remuneration is collected.72 The remuneration collected is used exclusively for the protection and preservation of the cultural heritage. The individuals and communities that care for the preservation and protection of the cultural heritage have the right to funds for these activities from the remuneration collected (‘monument annuity’). This right is no particular right, but rather the right of persons taking care of certain intangible cultural heritage to be compensated for their investment in the preservation and protection of the heritage in question. As this ‘monument annuity’ is paid to the state budget exclusively for the protection and preservation of the cultural heritage, it is distributed to those who are involved in this process. In Croatia, the intangible cultural heritage management system is still developing and there is still no appropriate regulation for the efficient prevention of its misappropriation. The current provisions are contained in the CHA, and they are legally binding by their nature. In accordance with these provisions, as already mentioned, the use of intangible cultural heritage cannot be banned but remuneration should be paid to the state budget—the so called ‘monument annuity’. A system of domaine public payant has thereby been legally introduced that does not prevent the misappropriation of the intangible heritage but does prevent its misappropriation by prohibiting its commercial exploitation without payment of remuneration to the community (state). However, it seems that the remuneration system for the use of the intangible cultural heritage is still not functioning properly, since the Ministry of Culture’s data on the ‘monument annuity’ collected provides no

72 40% of the collected remuneration is allocated to the State Budget, and 60 % to the unit of local administration connected to the cultural heritage (Article 114b of the CHA).

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information on the remuneration collected for the use of intangible cultural heritage.73 In the Croatian legal order the commercial use of cultural heritage is exclusively regulated in the CHA, in the provisions on remuneration for commercial use (the so called ‘monument annuity’).74 These provisions apply to both tangible and intangible cultural heritage and the provision on remuneration (the so called ‘monument annuity’) also relates to the latter. Monument annuity is paid for any commercial exploitation of protected cultural heritage contained in products. Consequently, by applying this provision to intangible cultural heritage, the obligation to pay monument annuity also exists for recording and collecting the cultural heritage for the purpose of placing it on the market as well as for the application of intangible cultural heritage in products. The forms of commercial exploitation are listed in Article 112 of the CHA as: application of the identifiable cultural heritage or a part thereof on a photograph, sticker, badge, souvenir, publication, clothing or on another object. Article 113 of the CHA includes special provisions on the use of the cultural heritage for promotional purposes. Namely, it lays down the obligation of every person who uses the identifiable cultural heritage or an identifiable part thereof for promoting a film, in a commercial, on a placard, photograph or other object to pay special remuneration. In the Croatian legal system there is no special regulation regarding the protection of sensitive traditional cultural expressions, such as religious rituals, sacred signs, places and monuments, against their abuse or commercial use by non-members of affected communities. 4. Beyond Preservation Cultural property might have an important meaning for your country or a community within your country, be it economically, philosophically or ideologically. In this respect, your legal system might have specific rules that go beyond the preservation of cultural property. Such measures might

73 The data on the monument annuity collected is presented on the web site of the Ministry of Culture http://www.min-kulture.hr/default.aspx?id=2795, 15 April 2008. 74 The CHA of 1999 introduced the payment of monument annuity for the entire protected cultural heritage. Prior to its entering into force this general obligation did not exist, but it was introduced following the Dubrovnik example—the annuity had to be paid only for a single cultural heritage item, the heritage entirety of Dubrovnik. This remuneration was introduced in Article 51 of the Restoration of the Threatened Monument Entirety of Dubrovnik Act. This Article provided for remuneration to be paid for every use of the Dubrovnik coat of arms or its symbol, and for the use of any part of the heritage in its entirety and its particular objects on photographs, stickers, badges, souvenirs or the like and on clothing. The remuneration was paid for the benefit of the restoration of Dubrovnik. After the CHA was passed this special provision ceased to exist and it was replaced by the general provision on the payment of the monument annuity.

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include, for example, a quota system for cinema, television, radio broadcasting, newspapers or other publications, or any other preferential treatment mechanisms. Along the special provisions on cultural heritage protection in the CHA, the Copyright and Related Rights Act also contains provisions on the exploitation of intangible cultural heritage.75 This Act stipulates that the communication to the public of intangible cultural heritage which in its original form belongs to folk literature and art is subject to the payment of remuneration, the same as for the communication to the public of protected copyright works.76 Under the Copyright and Related Rights Act the obligation of remuneration always exists if the creations are recognised as cultural heritage, i.e. remuneration is to be paid with respect to all folk literary and artistic creations that are communicated to the public, not only those entered in the Register of the Cultural Heritage of the Republic of Croatia. This remuneration is collected by the collective management societies (CMS) that already collect remuneration for communicating copyright works to the public. Unlike the CHA, the Copyright and Related Rights Act precisely defines the purpose of the remuneration—to be used for encouraging the respective artistic and cultural, mainly non-commercial, creativity and cultural diversity in the corresponding artistic and cultural area. Furthermore, the legislation regulating public media activities also contains provisions aimed at protecting cultural heritage. These provisions are designed to encourage programs related to the preservation of Croatian national and cultural identity77 as well as the promotion of creativity in the Croatian language and its dialects78 and to a certain extent to encourage programs related to the cultural heritage circle to which Croatia belongs. In accordance with the so-called “cultural exception” policy there are also rules on the minimal share of program content related to the preservation of cultural diversity and cultural heritage. Thus, pursuant to the provisions of Article 25 of the Electronic Media Act, the daily music program of radio stations should include a minimum of 20% of Croatian music. Furthermore, Article 29 of this Act stipulates that television broadcasters have to ensure

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OG 167/03 and 79/07. This refers to folk literature and art that could be considered copyright works because of their intellectual creation features. But, since they were created over time as the reflection of national tradition and cannot be connected to an author, they are not considered the subject matter of copyright. However, legislation regulating copyright (Article 8.3) stipulates that although their communication to the public cannot be prohibited it is subject to the payment of remuneration (domaine public payant system). 77 These provisions are contained in Article 5 of the Media Act [Zakon o medijima], OG 59/04. 78 The Electronic Media Act [Zakon o elektroničkim medijima], OG 112/03, 79/07 and 32/08, Art. 4.2. 76

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that their annual broadcast at the national level contains a minimum of 51% of European audiovisual material.79 The issue of the return of cultural heritage is still very important in Croatia, since the question of the return of cultural heritage unlawfully removed during the imposed Homeland War in the nineties of the 20th century has not yet been resolved.80 Therefore the implementation of international treaties regulating this issue is of utmost importance. In Croatia the 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict with the 1954 and 1999 Protocols; 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects are applied directly. The CHA entails rules on the taking in and out of cultural heritage only with the consent of the country of origin and also rules on the return of cultural heritage unlawfully removed from other countries which are harmonised with the EU Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State (OJ L 74/93).

79 European audiovisual material is defined in Art. 28 of the Electronic Media Act which has been harmonised with the EU Television Without Frontiers Directive (Directive 89/552/ EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, amended with the Directive 97/36/EC and the Directive 2007/65/EC). This audiovisual material includes the material originating from EU member states, or from the states signatories to the European Convention on Transfrontier Television or from the states connected to these states either through the fact that in the creation of the material citizens of these states were somehow involved, or through co-production or financing. The concept of European audiovisual material is very precisely defined. 80 From 2001 to 2007 Croatia managed to return to its museums, galleries and churches more than 25.000 movable cultural heritage taken by Serbia. But further 25.000 items are still claimed, http://www.min-kulture.hr/novost/default.aspx?id=2935.

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Abbreviations Art. CHA EA MA OA OG OG-IT

Article Protection and Preservation of the Cultural Heritage Act Expropriation Act Museums Act Ownership Act Official Gazette Official Gazette—International Treaties

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CZECH REPUBLIC Pavel Šturma* 1. General Issues .......................................................................................... 2. Tangible Cultural Heritage .................................................................... 2.1. General and Immovable Cultural Heritage ................................ 2.2. Special Provisions on Movable Cultural Heritage ..................... 3. Intangible Cultural Heritage .................................................................. 4. Beyond Preservation ............................................................................... 5. Miscellaneous ...........................................................................................

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1. General Issues The Czech Republic, a successor of the former Czechoslovakia, is a sovereign, uniform state, based on the rule of law and respect for the rights and freedoms of man and citizen (Article 1, para. 1, Constitution of the Czech Republic of 16 December 1992). In accordance with Article 1, para. 2, the Czech Republic is required to comply with its obligations arising from international law. Moreover, under Article 10 of the Constitution, promulgated international treaties, whose ratification was approved by the Parliament, and are binding on the Czech Republic shall be part of the legal order; if an international treaty contravenes a law (an act of Parliament), the international treaty shall be applied. This is a clear rule on incorporation of most international treaties into the domestic legal order. In other words, such treaties, being self-executing, enjoy direct effect and priority in Czech law. The protection and preservation of cultural heritage in the Czech Republic thus has its legal foundation in the Constitution and the Charter of Fundamental Rights and Freedoms being constitutional in nature,1 as well as in statutory law and international treaties ratified by the Czech Republic. The Preamble of the Constitution declares, inter alia, a determination to protect and develop natural and cultural, tangible and intangible heritage. This determination has been specified in a normative manner in Article 7 of the Constitution as well as in Articles 11 (para. 2 and 3), 34 and 35 of the Charter.

* Professor of International Law, Charles University in Prague (Czech Republic). 1 See resolution of the Czech National Council No. 2/1993, promulgating the Charter of Fundamental Rights and Freedoms as a part of the constitutional order of the Czech Republic. The Charter was first adopted in the form of the federal (Czechoslovak) Constitutional Law No. 23/1991. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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It must be pointed out that, at the constitutional level, the protection of cultural heritage has been mostly linked to the protection of natural heritage or environment. As such, Article 7 of the Constitution protects only natural resources and natural heritage. This concept does not include the artificial (man-made) environment, which might also include cultural heritage. However, some provisions of the Charter seem to be broader and include also certain aspects of the protection of cultural property. First of all, Article 11, which guarantees a right to property, includes certain exceptions and limitations. Paragraph 2 delegates to a law to provide what kind of property is necessary in order to ensure that the needs of society and public interests are met and, therefore, may only exist in the ownership of the State, communities or specific legal entities. Similarly, the law may set out certain objects which may be owned only by Czech citizens or legal persons incorporated in the Czech Republic. Paragraph 3, which deals with ownership rights, stipulates that the ownership entails obligations and the property right must not be abused to the detriment of rights of other persons or contrary to general interests protected by law. The enjoyment of this right must not damage human health, nature and environment beyond the limit set up by the law. Even more specifically, the Charter guarantees in Article 34 the right of access to cultural heritage under conditions set up by law. Article 35, which guarantees mainly the right to environment, includes also paragraph 3, according to which no one may endanger or damage the environment, natural resources, biodiversity and cultural heritage beyond the limit set up by law. The Czech Constitutional Court distinguished between the concept of fundamental rights and freedoms and that of public goods. The difference between them rests in the distributiveness. Public goods are characterised by virtue of the benefit thereof being indivisible and that people cannot be excluded from its enjoyment. Examples of public goods include national security, public order, environment, etc. An aspect of human existence may become a public good if it is not possible to distribute it in parts and attribute these parts to individuals. On the contrary, distributiveness is the typical characteristic of fundamental rights and freedoms. Aspects of human existence, such as personal freedom, freedom of expression, participation in public life, freedom of association, etc. may be materially and legally attributed to individuals.2 The Constitutional Court is aware of the constitutional protection of cultural heritage in the sense of the protection of public goods. In its case law, it has repeatedly declared that, at the constitutional level, there may be a

2 Constitutional Court, decision, 9 October 1996, Pl 15/96, published under No. 99/1996 Coll. CC or No. 280/1996 Coll. of Laws.

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conflict between fundamental rights and freedoms and other constitutionally protected values such as public goods. The assessment of this conflict is a result of the application of the principle of proportionality.3 The Czech Republic is a party to the Convention concerning the Protection of the World Cultural and Natural Heritage (1972), the Protocol I to the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1977), the Convention for the Protection of Cultural Property in the Event of Armed Conflicts (1954), the Second Protocol to the 1954 Convention (1999), the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), the Convention for the Protection of the Archeological Heritage of Europe (ETS No. 122, 1985), and the European Convention on the Protection of the Archeological Heritage (Revised, ETS No. 143, 1992). On the contrary, the Czech Republic is not yet a party to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995), the Convention on the Protection of the Underwater Cultural Heritage (2001) and the Convention for the Safeguarding of the Intangible Cultural Heritage (2003). As far as the last Convention is concerned, the Ministry of Culture has initiated the process of accession. In general, the Czech legal system does not favour a community-oriented approach. However, there are certain exceptions, such as the Framework Convention on the Protection and Sustainable Development of the Carpathians (2003).4 This is a sub-regional cooperation instrument which aims at the protection and sustainable development of the Carpathians with a view to inter alia improving quality of life, strengthening local economies and communities, and conservation of natural values and cultural heritage. The Carpathian Convention is a good example of a community-oriented integrated approach unites the protection of nature and cultural landscape, including tangible and intangible cultural heritage. The main legislative act in the field of cultural heritage is Law No. 20/1987, on the State Care of Cultural Heritage, as amended by later laws.5 This act does not expressly favour handling tangible and intangible cultural heritage separately, but it may have this effect, as it focuses only on tangible cultural heritage. It aims at protecting cultural monuments, both immovables and movables, which form part of the national cultural heritage. This is

3 Constitutional Court, decision, 26 April 2005, published under No. 240/2005 Coll. of Laws. 4 The Convention was ratified by the Czech Republic on 28 July 2005 and promulgated by notice of the MFA No. 47/2006. 5 Zákon č. 20/1987 Sb., o státní památkové péči [Law No. 20/1987, on the State Care of Cultural Heritage]. The up-to date Czech (and only authentic) version is available in the Collection of Laws (Official Gazette) of the Czech Republic and also at the web site of the Czech Ministry of Culture (www.mkcr.cz/assets/kulturni-dedictvi/pamatky).

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the only comprehensive national law dealing with the protection of cultural heritage. This law may be influenced mainly by the 1972 Convention. The 1970 Convention influenced other laws, in particular Law No. 71/1994, on Sale and Export of Objects of Cultural Value, as amended by laws No. 122/2000 and 80/2004. Currently, the Ministry of Culture has presented a project of a new law for a cultural heritage fund. Within the framework of the above mentioned protection of cultural heritage, it is possible to distinguish cultural monuments, national cultural monuments, reservations, zones (sites) and archeological excavations. These categories will be explained bellow, under the section of Tangible Cultural Heritage, as all the above mentioned groups belong to tangibles. The Czech legal system is conceptually based on the State care and protection of cultural heritage. The national cultural monuments are declared by the Government as a whole, but the main national authority dealing with the filed monuments is the Ministry of Culture. Certain functions are implemented by Regions (self-governing administrative units) and municipalities, as well as by the Archeological Institute of the Czech Academy of Sciences. Groups or individuals may be involved as subjects of legal obligations and rights, in particular where they are owners of the objects declared as a part of cultural heritage. However, Czech law does not consider communities as holders of cultural heritage. It refers to individuals only or to them and groups of individuals forming legal persons (companies, cooperatives, nonprofit organizations, trade unions, etc.). 2. Tangible Cultural Heritage 2.1. General and Immovable Cultural Heritage Czech legislation covers both categories of cultural heritage, immovables and movables. The basic categorization is provided by Law No. 20/1987. The law achieves the protection of culturally significant immovables and movables or their groups by declaring them to be cultural heritage. The declaration is done by the Ministry of Culture. The declaration is based on the following criteria: (a) the objects are significant evidences of historical development, style of life and environment of the society from the early times to the present, being expression of creativity and work in various branches of human activities because of their revolutionary, historical, artistic, scientific and technical values, or (b) they have a direct relation to important personalities and historical events. Groups (collections) of objects may be declared as cultural heritage even if some objects therein do not belong to cultural heritage. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Unless expressly provided otherwise, the Law sets the same criteria and refers to both immovables and movables in the same way. According to sec. 2 of the Law, the Ministry of Culture declares, under this Law, as cultural heritage immovable and movable objects or their groups. Before declaring an object to be cultural heritage, the Ministry of Culture shall request an opinion from the regional authority and the municipal authority with enlarged competences. Archeological excavations may be declared as cultural heritage following a proposal by the Czech Academy of Sciences. The Ministry shall inform in writing, the owner of the object and allow him to comment on the proposal to declare it cultural heritage. Pending the procedure of declaration, the owner is obliged to protect the object from damage, destruction or stealing and to notify the Ministry of any envisaged change of ownership, management or exploitation. The Ministry shall inform in writing, the owner, the regional authority, the municipality and the specialized authority of the State care of cultural heritage about the declaration. Anybody may request the granting of the cultural object status because the procedure opened ex officio by the competent national authorities. The status of cultural property can be granted even against the will of the owner. Being involved in the procedure, the owner may present his or her objections but does not have a “veto”. Monuments that form the most important of the national cultural heritage are declared to be national cultural monuments by a decree of the Government which provides for conditions of their protection. The Government may declare by its decree a part of territory which nature is determined by a group (collection) of immovable cultural objects or archeological sites to be a cultural heritage reservation. The Government sets up the conditions of its protection, which may extend, as appropriate, also to the immovables on the territory of the reservation that are not cultural monuments as such. Another kind of protection is a declaration of a cultural heritage zone. This kind of protection is suitable for a territory or a part of habitation which includes a lesser share of cultural monuments, a historical environment or a part of landscape which present significant cultural values. The Ministry of Culture may declare a zone after consultation with the regional authority and may set up the conditions of its protection. Both cultural heritage reservation and zone are the forms of protection of tangible immovable cultural heritage (incl. archeological excavations), the difference is only in stricter (reservation) or less strict protection (zone). This is something different from “buffer zones” under sec. 17 of the law, which may be set up around a cultural monument if the situations so requires. The sizes of zones are determined according to the needs of protection in the particular situation. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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All objects of cultural heritage have to be put on the Central list of cultural heritage of the Czech Republic. The Central list is administrated by a specialized organization of the State Care of cultural heritage. Regional authorities and municipal authorities with enlarged competences keep lists of cultural heritage within their districts. The owner of the object is obliged to notify the specialized organization of State Care of Cultural Heritage of any change in its ownership (management or exploitation) or of its removal. The list also includes movable tangible heritage. The Central list of cultural heritage is a national list which may include more monuments than the tentative lists under Art. 11 of the 1972 Convention. The national list is not limited to the cultural heritage of world-wide importance. It is only the project of a new law which should single out the category of “monuments with international status” which would reflect Art. 11 of the 1972 Convention. National cultural monuments are the most important parts of cultural heritage and are declared as such by the Government. The declaration of other cultural monuments is done by the Ministry. Also other decisions relevant to the regime of national monuments are made at a higher level. Both national and “normal” cultural monuments can comprise immovables and movables. The Ministry of Culture is also competent to decide on the withdrawal of objects from the list of cultural heritage, on exceptionally serious grounds. This is not possible in the case of national cultural monuments. The Ministry decides upon request from the owner of the object or an entity which proves to have a legal interest (standing) in the cancellation of the declaration or proprio motu. The declaration of an object as cultural heritage affects the owner’s proprietary rights. First of all, the owner of the object is obliged, at own costs, to care of its preservation, to maintain it in a good condition and to protect it from danger, damage or stealing. He or she is obliged to use the object only in a manner which corresponds to its cultural significance, heritage value and technical condition. The owner gets benefits mainly in the form of tax remunerations (tax exemptions). The owner may apply for and be granted a direct subsidy from public funds for restoration of cultural property. He or she may also receive compensation for loss or damages suffered, for example in case of archeological research. If an owner does not comply with his obligations, the municipal authority with enlarged competences, after obtaining an opinion from the specialized organization of State Care of Cultural Heritage, shall decide on measures and a time limit for their implementation and impose them on the owner. In the case of a national cultural monument, the decision will be adopted by a regional authority. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The owner is also obliged to notify, without delay, the municipal authority of any danger or damage to an object of cultural heritage and to request its decision with regards to reparation. Where immovable cultural heritage is involved, a building authority must also be notified. The owner is also obliged to inform the municipal authority in advance of any envisaged change in exploitation of the object of cultural heritage. The owner requires the consent (in form of a “binding opinion”) of the municipal authority or the regional authority (in case of a national cultural monument). In the case of sale of a movable cultural heritage or a national cultural monument the State possesses a pre-emption right. The owner is obliged to offer an object to the Ministry of Culture which may use its pre-emption right within the delay of three months in the case of movable cultural heritage or within six months in the case of movable national cultural monument. If the owner does not comply with his obligation, a transfer of proprietary rights will be invalid, provided that the Ministry of Culture invokes the invalidity. The price in case of pre-emption is not based on another (concurrent) offer but it is determined under a special law on price regulation or according to the usual (common) price corresponding to the nature of object in question. If the owner envisages doing maintenance, reparation, reconstruction, restoration or other modification of the object of cultural heritage or its environment, he or she is obliged to request in advance a binding opinion of the municipal authority with enlarged competences or a binding opinion of the regional authority in case of a national cultural monument. Even the owner (or manager) of an immovable that is not cultural heritage, but is situated in a cultural heritage reservation, a cultural heritage zone, a protective zone of an immovable cultural monument, an immovable national cultural monument, a cultural heritage reservation or a cultural heritage zone, is also obliged to request a binding opinion to any envisaged building, change in construction or maintenance works of such immovables. The opinion has to express whether such works are admissible from the point of view of interests of the State care of cultural heritage and to provide conditions for the works. The Czech public authorities also have at their disposal some stronger measures for protection of cultural heritage. According to Law No. 20/1987, the municipal authority or Ministry of Culture (in case of a national cultural monument) is entitled, in the case where the owner does not implement the imposed measure with due delay, to execute necessary measures for preservation of cultural heritage at cost to the owner. If an urgent public interest warrants so, the regional authority may, proprio motu or on proposal from a municipal authority or from the Ministry of Culture, decide that the owner shall give a movable national cultural monument to the custody of a specialized organization appointed by the Ministry of Culture. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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In the case where the owner of an immovable cultural heritage fails permanently to comply with his or her obligations and puts in danger its preservation or the owner uses it contrary to its cultural significance, heritage value or technical condition, and if an agreement on its sale to the State has not been achieved, the state construction authority may exceptionally expropriate the object of cultural heritage on proposal from a municipal authority or a regional authority. This compulsory sale or expropriation is not a pre-emption right, as the State may exceptionally use it even if the owner does not intend to sale. The rules of administrative procedure apply, which means that the decision of administrative bodies may be eventually challenged before administrative courts. If an object of cultural heritage is in immediate danger, the municipality shall carry out, with the consent of the municipal authority with enlarged competences, measures necessary to its rescue. However, the Czech legal system aims at striking a balance between the protection of cultural heritage and other interests, such as property rights and other rights of individuals. The Constitutional Court has reiterated that the assessment of this conflict is a result of the application of the principle of proportionality.6 In the case in which this principle was held, the applicant challenged the fact that the declaration of an object to be cultural heritage under Sec. 3 of Law No. 20/1987 was excluded, by virtue of Sec. 44 of the same Law, from the applicability of general laws on administrative procedure. Consequently, the owner was deprived of the possibility to have the act of declaration reviewed in administrative appeal and then in judicial review before an independent tribunal. The Constitutional Court subsequently decided to cancel a part of Sec. 44 as far as Sec. 3 (declaration of cultural heritage) is concerned. Moreover, in well founded cases, the owner of cultural heritage may apply for and be granted an allowance (subsidy) from the budget of a municipality or a region in order to cover higher costs related to preservation or restoration of cultural heritage. Most payments are funded on a local or regional level as a result of a decentralization and transfer of competences in the Czech Republic. However, both municipalities and regions have certain portion of tax incomes of the State.

6 Constitutional Court, decision, 26 April 2005, published under No. 240/2005 Coll. of Laws.

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2.2. Special Provisions on Movable Cultural Heritage In general, the criteria to be fulfilled in order to declare movable property as cultural heritage are the same as described in the case of immovable cultural heritage (above). The Czech legal order imposes however some special duties with regard to movables which are culturally significant. An object of movable cultural heritage may be permanently removed from a place accessible to the public only with the prior consent of a regional authority. The Czech Republic is divided into 14 self-governing Regions and municipalities. The capital (Prague) has a double position (as both Region and municipality). The “unitary” system of public administration in the Czech Republic means a combination of local and regional self-government (the exercise of own competences) with the exercise of State administration (Regions and municipalities acting in transferred competences). This means that the Office of the Region or the Office of the municipality (executive body of the regional or local self-government) is involved in the protection of cultural heritage. On the central level, the competent authority is the Ministry of Culture. The owner is also obliged to enable persons entrusted by the Specialized Organization of State Care of Cultural Heritage to carry out scientific research or documentation of the cultural monument. If it is important to the public interest, the owner of a movable cultural heritage is also obliged to lend it temporarily to a specialized organization for the purpose of research or exhibition. The law does not provide for compensation. However, according to the methodical instruction of the Ministry of Culture, lending is based on a contract that may provide for compensation to be paid to the owner. The law includes special provisions on archeological research and discovery. In principle, archeological research may be carried out by the Archeological Institute of the Czech Academy of Sciences. The Ministry of Culture may allow, where appropriate, the carrying out of archeological research by universities, museums or other entities or natural persons that possess the required qualifications for archeological research. The entitled entity is obliged to notify the Archeological Institute of the opening of archeological research and to report their results. The Ministry of Culture may withdraw the license to archeological research from an entity which has breached the conditions of the license. Archeological discovery is defined in Sec. 23 of Law No. 20/1987 as an object or group of objects which are documents or remnants of human life and activities from the beginning of development till modern times and, as a rule, are preserved underground. Since the Czech Republic is a land-locked state, its legal order does not regulate movable cultural heritage and archeological discoveries located underwater. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Anybody who makes an archeological discovery or is responsible for works during which a discovery is made, is obliged to report it to the Archeological Institute or to the nearest museum, either directly or through the locally competent municipality. The finder of an archeological discovery has a right to a reward payable by the regional authority in the amount of the price of precious metal or other material or up to 10% of its value according to an expert opinion. The cultural historical value is determined by the Archeological Institute or the National Museum. The archeological discovery and site must be left intact until an examination by the Archeological Institute or by a museum which may take at least five working days. Movable archeological discoveries became property of the region, unless they are property of the State or the municipality. This may be the case if the archeological discoveries is made during research carried out by an entity of the municipality or the State, respectively. Archeological discoveries shall be deposited in museums (regional, municipal or state). The region and/or municipality is obliged to transfer the archeological discovery to the property of the Czech Republic if the Ministry of Culture requires so, in writing within 3 years from the day of the discovery. Unless the Ministry of Culture specifically requests the found object, the region usually becomes the owner of the found object. Concerning obligations of museums, the special Law No. 122/2000, on Protection of Museum Collections, provides additional obligations of museums. Owners of collections are obliged to ensure their protection. The Ministry of Culture keeps the central list of collections and monitors and regulates compliance with the obligations under this law. Czech law also protects movable cultural heritage against illicit import, export or transfer. The Czech Republic is a party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970). According to Sec. 20 of the Law No. 20/1987, objects of cultural heritage may be exhibited abroad, lent abroad or exported for other purposes only with the prior consent of the Ministry of Culture or with the prior consent of the Government in the case of national cultural monuments. Such objects may be permanently removed from abroad to the Czech Republic only with the prior consent of the competent authority of the other state, where the reciprocity is guaranteed. Similarly, according to Sec. 11 of Law No. 122/2000, a collection or single collection objects registered in the central list of collections may be exported from the Czech Republic only for the purpose of exhibition, preparation, conservation, restoration or research, on a limited period and with a license. The Ministry of Culture issues a license at the request of the owner of the collection, only where the export does not endanger the physical substance Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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of the collection and there are sufficient legal guarantees of its return to the Czech Republic. Moreover, Law No. 101/2001, on Restitution of Illegally Exported Cultural Heritage, provides procedures for the restitution of objects of cultural heritage, which have been illegally imported to the Czech Republic from the territory of another Member State of the European Union, or exported from the Czech Republic to the territory of another Member State after December 31, 1992. This Law implements directive 93/7/EEC, as amended by the directive 96/100/EC and the directive of the European Parliament and Council 2001/38/EC. Prevention is governed by Law No. 71/1994, on Sale and Export of Objects of Cultural Value, as amended by laws No. 122/2000 and 80/2004, which regulates the export with regard to both EU and non-EU members. Restitution is made possible on the basis of bilateral or multilateral agreements. All these legislative acts provide for administrative sanctions, including dissuasive financial penalties. Law No. 101/2001 also includes provisions on interim measures and civil proceedings for restitution of illegally exported cultural heritage. In fact, this is a good example of uniform laws in the field of protection of cultural heritage. Criminal sanctions also exist, although they play only a subsidiary role in the field. Sec. 124 of the Penal Code7 criminalizes the violation of the ban or limitation on import, export and transfer of goods (not only cultural heritage) if such activity significantly endangers a general interest. Similarly, sec. 258 of the Penal Code criminalizes acts of abuse of property. According to this provision, anybody who affects important cultural or other important general interest by destroying or causing damage to property in his or her ownership which enjoys protection under special legislation shall be liable to imprisonment up to 2 years or to financial penalty or the confiscation of the property in question. This provision was interpreted by the decision of the Supreme Court of the Czech Republic in 2005.8 As far as the event of armed conflict is concerned, the Czech Republic is a party to the Protocol I to the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1977), the Convention for the Protection of Cultural Property in the Event of Armed Conflicts (1954) and the Second Protocol to the 1954 Convention (1999). However, there is no special internal legislation to this effect.

7 Zákon č. 140/1961 Sb., trestní zákon, ve znění pozdějších předpisů [Law No. 140/1961, Penal Code, as amended by later laws]. 8 Usnesení NS ČR z 18.5.2005, sp.zn. 8 Tdo 503/2005, Soubor rozhodnutí Nejvyššího soudu ČR č. 814/2005 [Decision of the Supreme Ct. Czech Rep., 18.5.2005, Collection of decisions No. 814/2005].

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The term armed conflicts has not yet been defined under Czech law. However, in virtue of the Constitution, the Czech Republic is bound to respect the definition under international law. The project of a new law should ensure the full national implementation of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and Protocols thereto. 3. Intangible Cultural Heritage The Czech legal order does not recognize the concept of intangible cultural heritage. The Czech Republic is not yet a party to the Convention for the Safeguarding of the Intangible Cultural Heritage (2003), but the Ministry of Culture has initiated the process of accession. Up to now, the concept of intangibles has had almost no influence on Czech cultural heritage protection, at least on the legislative level. However, the Ministry of Culture has started to deal also with intangibles. The Government of the Czech Republic adopted its resolution No. 571 of 11 June 2003 on the Plan of more effective care of traditional popular culture. 4. Beyond Preservation Only recently, after the entry of the Czech Republic into the European Union, have some legislative acts aimed at the promotion of culture at large been adopted. One example is Law No. 203/2006, on Certain Kinds of Subsidy to Culture, which deals with State subsidies to culture and public cultural services, promoting thus both professional and non-professional cultural activities and diversity. Another example of this promotion is Law No. 239/1992, on the State Fund of Culture of the Czech Republic. Law No. 231/2001, on Radio and Television Broadcasting, includes a section concerning the promotion of European production and European independent and contemporary production. According to this law, the operator of TV broadcasting is obliged to include, where appropriate, at least 50% of the program time for European works of art. 5. Miscellaneous As far as the relationship and regulation of bona fide acquisition and stolen or illegally exported and imported cultural property, Czech law regulates it partly in Law No. 101/2001, on Restitution of Illegally Exported Cultural Heritage, for example, subjective and objective time limitations for claims, being 1 year and 30 years respectively. This complex solution is to be set out in a new legislation proposed by the Ministry of Culture. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The 1970 Convention has been implemented in particular by Law No. 71/1994, on Sale and Export of Objects of Cultural Value, as amended by laws No. 122/2000 and 80/2004. The 1972 Convention has been reflected in Law No. 20/1987, as amended. It is possible to conclude that the Czech Republic respects its international obligation in the field of the protection of cultural heritage. It is a State Party to the most international conventions in this area. However, they do not always have the nature of uniform laws. In other words, they provide only for a harmonization and not a complete unification of national laws, leaving thus a certain margin of appreciation for States when adopting implementation measures. The most important shortcomings that should be resolved by a new legislation concern, on the one hand, the definition of armed conflicts and, on the other hand, the protection of the intangible cultural heritage. Clearly, such reflection of new concepts and trends in the protection of cultural heritage is needed. It is also very likely that a new law might reflect fundamental economic and social changes in the Czech Republic after 1990, in particular in a search for a balance between the protection of public goods (such as cultural heritage) and the individual rights and freedoms of the owners. At the same time, one can only hope that a new legislation will not cause the lowering of the existing, relatively high standards of the protection of cultural heritage in the Czech Republic.

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DENMARK Ditlev Tamm* and Anne Østrup** 1. Introduction ............................................................................................. 1.1. A Short History of the Legal Framework for Safeguarding Cultural Heritage in Denmark ...................................................... 1.2. The Legal Framework for Safeguarding Cultural Heritage in Denmark ........................................................................................... 1.2.1. The Legal Nature of Danish Cultural Heritage Legislation ............................................................................ 1.2.2. The Administration of Danish Cultural Heritage Legislation ............................................................................ 1.2.3. Principles of Danish Cultural Heritage Legislation ...... 1.2.4. Denmark’s International Obligations in Safeguarding the Cultural Heritage ......................................................... 2. Protection and Preservation of the Danish Tangible Cultural Heritage ..................................................................................... 2.1. Safeguarding the Immoveable Cultural Heritage ...................... 2.1.1. Safeguarding of Historic Buildings .................................. 2.1.1.1. Listed Buildings .................................................... 2.1.1.1.1. Purpose and Scope of the Listed Buildings Act ...................................... 2.1.1.1.2. The Legal Procedure of Listing a Building ................................................ 2.1.1.1.3. The Legal Criteria for Listing a Building ................................................ 2.1.1.1.4. The Legal Effects of Listings ............. 2.1.1.1.5. Change of Scope and Cancelling of a Listing ........................................... 2.1.1.2. Churches and Church Surroundings ................ 2.1.1.3. Preservation of Buildings and Urban Environments ........................................................ 2.1.2. Safeguarding Walls of Stone and Earth and the Like .... 2.1.3. Safeguarding the Cultural Environment ......................... 2.1.3.1. Cultural Heritage Atlases ....................................

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* Dr. jur. et Dr. phil.; Professor at the Faculty of Law, University of Copenhagen. ** Cand.jur. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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2.2. Safeguarding the Moveable Cultural Heritage ........................... 2.2.1. Cultural Assets .................................................................. 2.2.1.1. The Purpose and Scope of the Cultural Assets Act .............................................................. 2.2.1.1.1. The Protection of Cultural Assets Comprised by the Act ....................... 2.2.1.2. Advance Valuation of Cultural Objects Sold at Auctions ................................................... 2.1.1.3. The Legal Effects of an Export Prohibition ..... 2.1.1.4. Export of Cultural Assets to Countries outside the EU ...................................................... 2.2.2. Moveable Cultural Heritage That Has Been Illegally Removed and is Subject to Illicit Import, Export or Transfer of Ownership ....................................................... 2.2.2.1. EC Council Directive 93/7/EEC ........................ 2.2.2.2. The 1970 Convention .......................................... 2.2.2.3. The 1995 UNIDROIT Convention ................... 2.2.2.4. Case Studies Concerning Unlawfully Removed Cultural Objects That Have Been Subject to Illicit Import or Export .................... 2.2.2.4.1. Case Study 1: The Ny Calsberg Glyptotek ............................................. 2.2.2.4.2. Case Study 2: The Private Art Dealer from Lyngby ........................... 2.2.2.4.3. Case Study 3: The Danish Coin Treasure ............................................... 2.2.2.4.4. Case Study 4: ‘The Grand Theft from the Royal Library’ ..................... 2.2.3. Regulation of Museums, Galleries and Other Institutions ............................................................................ 3. Safeguarding the Archaeological Heritage .......................................... 3.1. In Situ Protection of the Cultural Heritage ............................... 3.2. Archaeological Heritage Covered With Earth ........................... 3.2.1. Treasure Trove and Fossil Trove ..................................... 3.2.2. Archaeological Heritage and Construction Work ........ 3.3. Submarine Archaeological Heritage ............................................ 3.3.1. Archaeological Heritage under Water ............................. 3.3.2. Archaeological Heritage in the Deep Seabed Area ....... 3.4. Register of Archaeological Heritage ............................................ 4. Safeguarding Cultural Heritage in the Event of an Armed Conflict ...................................................................................................... 4.1. The Term ‘Armed Conflict’ ...........................................................

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4.2. Safeguarding and Respecting Cultural Property during an Armed Conflict ............................................................................... 4.3. Export of Cultural Property during an Armed Conflict .......... 5. Protection and Preservation of the Danish Intangible Cultural Heritage ..................................................................................... 5.1. Safeguarding the Intangible Cultural Heritage of Denmark ... 5.1.1. Central Institutions ............................................................. 5.1.1.1. The Danish Folklore Archives ............................ 5.1.1.2. The Danish Language Council ........................... 5.2. Misappropriation of Traditions .................................................... 6. Conclusion ................................................................................................

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1. Introduction 1.1. A Short History of the Legal Framework for Safeguarding Cultural Heritage in Denmark The Danish legal system has long included legislation regulating the finding of certain objects including objects of archaeological heritage classified as treasure trove [danefæ]. These provisions date back to the Danish provincial laws; e.g., the Law of Jutland [ Jyske Lov] of 1241 and were also included in King Christian V’s Law of the Dane’s Realm [Danske Lov] of 1683. However, it was not until the beginning of the 20th century that the safeguarding of cultural heritage took legislative form. In 1917, the first Act on Protection of the Natural Environment was adopted and this included provisions on the protection of ancient relics and monuments. In 1919, the first Act on Listed Buildings followed and in 1922 the parochial church councils were made responsible for the churches and church buildings. The first Urban Planning Act was adopted in 1939, and this Act is the historic point of departure for the overall spatial planning including the local planning that includes preservation of buildings.1 1.2. The Legal Framework for Safeguarding Cultural Heritage in Denmark 1.2.1. The Legal Nature of Danish Cultural Heritage Legislation The Danish legal framework for the safeguarding of cultural heritage is primarily based on legislation administered by the Danish Ministry of Culture

1 O. Christiansen and V. Koester, ’Beskyttelse af kulturmiljøet’ [Safeguarding of the Cultural Environment], in E.M. Basse, ed., Miljøretten. Bind 2—Arealanvendelse, natur- og kulturbeskyttelse [Environmental Law. Volume 2—Land Use and the Safeguarding of Nature and Culture], 2nd edn. (Copenhagen, Jurist- og Økonomforbundet 2006), pp. 463 ff., at p. 464.

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[Kulturministeriet], although some aspects of the protection fall under the jurisdiction of the Ministry of the Environment. Much of the cultural heritage legislation authorizes further regulation to be provided in executive orders issued by the Ministry of Culture. Among the regulatory responsibilities of the Ministry of Culture is the making of administrative decisions in specific cases relating to matters such as the listing of buildings owned by private individuals and private funding of archaeological investigations. These administrative decisions often relate to the property rights of individual persons and may therefore be seen as quite intrusive. However, not many of these administrative decisions are brought before the Danish courts. This means that the area of cultural heritage legislation is mostly marked by administrative decisions and only to a lesser extent court judgements. Administrative decisions include decisions of administrative public bodies organised within the executive power of the Ministries. Decisions of the Judiciary are not included in this term. 1.2.2. The Administration of Danish Cultural Heritage Legislation As already mentioned, the Danish Ministry of Culture is the national institution responsible for preparing, administering and supervising Danish cultural heritage legislation.2 Thus, the cultural heritage legislation designates the Minister of Culture as the competent authority in relation to the act in question. However, in many cases the Minister’s specific tasks and powers have been delegated to the Heritage Agency of Denmark [Kulturarvsstyrelsen] (hereafter, the Heritage Agency) an executive body under the Ministry.3 The Heritage Agency was established on 1 January 2002 and it employs approximately 85 people including archaeologists, ethnologists, historians, art historians, architects, surveyors, economists and lawyers. It effectively has regulatory responsibility for sites and monuments, listed buildings and stateowned and state-subsidised museums. Further, it provides assistance to the Ministry of Culture. The Heritage Agency is counselled by several councils and committees with special professional expertise. Most important in the present context is the Historic Buildings Council [Det Særlige Bygningssyn] and the Danish Commission on the Export of Cultural Assets [Kulturværdiudvalget] (hereafter, CECA). The Historic Buildings Council is an advisory council with special expertise in the preservation of historic buildings. It consists of 12 members appointed by the Minister of Culture upon recommendation from institu2

In 2001, the authority in several areas concerning the safeguarding of the immovable cultural heritage was transferred from the Ministry of the Environment to the Ministry of Culture by Royal Resolution of 17 November 2001. 3 Executive Order No. 1513 of 14 December 2006 on Delegation of Tasks and Powers to the Heritage Agency of Denmark [Bekendtgørelse om henlæggelse af opgaver og beføjelser til Kulturarvsstyrelsen] (hereafter, the Delegation Order).

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tions and organizations with expertise in historic buildings. The Council is set up by law under chapter 7 of the Listed Buildings Act4 and its activity is further regulated by executive order.5 The Historic Buildings Council is a highly influential body as its recommendation is in some circumstances necessary for the Heritage Agency to make legal decisions.6 CECA is a regulatory body set up by law under the Act on Cultural Assets and its activity is also further regulated by executive order.7 CECA consists of five members, of whom four sit ex officio as directors of the four national institutions in the area, i.e. the Danish National Gallery [Statens Museum for Kunst], the National Museum of Denmark [Nationalmuseet], the Danish National Archives [Rigsarkivet] and the Royal Library [Det Kongelige Bibliotek]. The fifth member is appointed among the leaders of non-state-owned museums in Denmark by the Minister for Culture. However, cultural heritage legislation is not only administered and executed at a national level. Some of the legislation is addressed to the Danish municipal authorities and leaves the administering competence to bodies such as the municipal councils which may establish a local Cultural Environment Council [Kulturmiljøråd] to advise the public authorities with a view to promote cultural and building heritage.8 Further, since 1922 the 2.200 parochial church councils [menighedsråd]9 and the 10 Boards of the Dioceses [stiftsøvrigheder]10 have been responsible for the maintenance of churches and church yards within their area. 1.2.3. Principles of Danish Cultural Heritage Legislation The Danish cultural heritage is the object of state regulation for the benefit of the public and at the expense of the party, to whom the cultural heritage object belongs. However, although densely legislating for these objects, the Danish State does not generally aim to bring cultural heritage assets into public possession or ownership. Rather, it generally places a responsibility with the owner to secure proper protection.

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Infra. Executive Order No. 707 of 12 August 2003 on the Historic Buildings Council [Bekendtgørelse om Det Særlige Bygningssyn] (hereafter, the Executive Order on the Historic Buildings Council). 6 See infra. 7 Executive Order No. 404 of 11 June 1987 on Protection of Cultural Assets in Denmark [Bekendtgørelse om sikring af kulturværdier i Danmark] (hereafter, Order on Cultural Assets). 8 Section 23 a (1) and (2) of the Museum Act. 9 The parochial church councils are councils that administer the clerical work in the parishes of the Danish National Evangelical Lutheran Church. They consist of the priests of the parish and a number of persons elected by the congregation. 10 The Boards of the Dioceses are the highest authorities in the diocese in questions of administration and economy. 5

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The present day Danish cultural heritage legislation may be said to follow the classical categorization of cultural heritage according to the following criteria: (a) the form in which the cultural heritage presents itself (tangible or intangible); (b) the geo-political circumstances surrounding it (peace or wartime); (c) the place where it is located (on land or underwater); and (d) the status of its possession (legal or illegal). However, the distinction between tangible and intangible cultural heritage is not applied explicitly in the legal context; Danish legislation only encompasses tangible cultural heritage whereas intangible cultural heritage is mainly protected by non-legal measures, i.e., institutionally through the Danish Folklore Archives which functions both as an archive and as a research institution.11 Consequently, the Danish legal system cannot be said to adopt a community oriented approach to the safeguarding of cultural heritage. The intangible cultural heritage is mainly protected institutionally and not by specific legal regulation.12 Further, the Danish legal system does not include a regime for granting rights over elements of cultural property or heritage to communities, groups and individuals.13 1.2.4. Denmark’s International Obligations in Safeguarding the Cultural Heritage The Danish cultural heritage legislation is highly influenced by Denmark’s international obligations relating to the safeguarding of cultural heritage. In 1954 Denmark signed the European Cultural Convention (Paris, 19 December 1954), which entered into force on 7 May 1955.14 Denmark also signed the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention (The Hague, 14 May 1954) and the First Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 14 May 1954) in 1954, however it was not until 26 March 2003 that Denmark finally ratified the Convention and its First Protocol, which both entered into force immediately upon ratification.15 Also on 26 March 2003 Denmark ratified UNESCO’s Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970). The Convention Concerning the Protection of

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See infra. See infra. 13 Infra. 14 Decree No. 32 of 28 June 1957 on Denmark’s Ratification of the European Cultural Convention [Bekendtgørelse om Danmarks ratification af den europæiske kulturkonvention]. 15 Decree No. 32 of 23 October 2003 on the UNESCO Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict with the appurtenant protocol [Bekendtgørelse om UNESCO-konvention af 14 maj 1954 om beskyttelse af kulturværdier I tilfælde af væbnet konflikt med tilhørende protocol]. 12

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the World Cultural and Natural Heritage (Paris, 16 November 1972) was ratified on 25 July 1979, while the UN Convention on the Law of the Sea (10 December 1982) was ratified on 2 September 2004.16 On 6 July 1989 Denmark ratified the Convention for the Protection of the Architectural Heritage of Europe (Granada, 3 October 1985).17 The European Convention on the Protection of the Archaeological Heritage (Valetta (Malta), 16 January 1992) which revokes the previous European Convention on the Protection of the Archaeological heritage (1969) was ratified on 16 November 2005. It entered into force in relation to Denmark on 17 May 2006.18 The European Landscape Convention (Florence, 20 October 2000) was ratified by Denmark on 20 March 2003 and it entered into force in relation to Denmark on 1 March 2004.19 Co-operation on a Nordic level has taken place in the Nordic Council of Ministers, which in 1996 presented a ‘Plan of Action for the Third Dimension of the Nordic Environmental Co-operation: the Cultural Environment in the Landscape’. As of April 2008, Denmark has not yet ratified the following four international conventions: the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 24 June 1995); the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 26 March 1999), the Convention for the Protection of the Underwater Cultural Heritage (Paris, 2 November 2001) and the Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 17 October 2003). 2. Protection and Preservation of the Danish Tangible Cultural Heritage 2.1. Safeguarding the Immoveable Cultural Heritage The Danish legal system includes an extensive scheme for the safeguarding of immovable cultural heritage. Protection and preservation of culturally

16 Decree No. 17 of 21 July 2005 of the United Nations Convention on the Law of the Sea of 10 December 1982 with the appurtenant agreement of 28 July 1994 on the application of Chapter XI of the Convention [Bekendtgørelse om de Forenede Nationers Havretskonvention af 10. December 1982 tillige med den dertil knyttede aftale af 28. juli 1994 om anvendelse af konventionens kapitel XI]. 17 Decree No. 20 of 15 March 1989 on the Convention 3 October 1985 on the Protection of the Architectural Heritage of Europe [Bekendtgørelse om konventionen af 3 oktober 1985 om bevaring af Europas kulturarv]. 18 Decree No. 28 of 4 October 2007 in the European Convention of 16 January 1992 on the Protection of the Archaeological Heritage [Bekendtgørelse om den europæiske konvention af 16 januar 1992 om beskyttelse af den ærkologiske arv]. 19 Decree No. 12 of 29 April 2004 on the European Landscape Convention of 20 October 2000 [Bekendtgørelse af den europæiske landskabskonvention af 20. oktober 2000].

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significant immovables is achieved by declaring them to be cultural heritage as listed, preservation-worthy buildings, preservation-worthy urban environments or protected walls of stone or earth, or by this status—in some cases— being attributed to them ex lege. 2.1.1. Safeguarding of Historic Buildings Historic buildings give both architectural and cultural insights into various periods in the history of Denmark. The most valuable of these buildings are listed [ fredning] to ensure that they are changed as little as possible. Listed buildings are not only grand castles and manors, but also farms, burghers’ and merchants’ houses, warehouses, villas, town halls, schools, swimming baths, jails, railway stations, factories, and even very small buildings such as telephone booths and pavilions.20 The buildings which are listed are among the best or most characteristic of their type and period, and they are of national, or in some cases international, significance. In total there are approximately 9,700 listed buildings in Denmark.21 Relevant legislation on listed buildings and preservation of buildings and urban environments is as follows: Consolidated Act No. 1088 of 29 August 2007 on Listed Buildings and Preservation of Buildings and Urban Environments. Executive Order No. 1513 of 14 December 2006 on delegation of tasks and powers to the Heritage Agency of Denmark. Executive Order No. 838 of 3 October 2006 on the designation of buildings worthy of preservation in the local plan. Executive Order No. 707 of 12 August 2003 on the Historic Buildings Council. Executive Order No. 1125 of 17 December 1997 on the notification of the Forest and Nature Agency prior to the demolition or sale to private owners of certain unlisted buildings, etc. owned by the state or local authorities. Executive Order No. 589 of 27 June 1994 on the procedure for withholding part of the salary, etc. in connection with non-performing loans granted by the National Building Preservation Foundation. Executive Order No. 499 of 12 December 1979 on registration of special provisions for listed buildings owned by the state of local authorities.

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Heritage Agency, ‘Historic Buildings’, available at www.kulturarv.dk. Annual Report of the Heritage Agency 2006, available at www.kulturarv.dk. The Heritage Agency maintains a register of buildings in Denmark, including the listed buildings. The register is available at www.kulturarv.dk/fbb (in Danish only). 21

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The Heritage Agency is responsible for the listed buildings, while the local authorities are responsible for the buildings worthy of preservation. Another legal tool in the safeguarding of historic buildings is to declare a building worthy of preservation [bevaringsværdig]. Both the Heritage Agency and the local authorities may designate buildings as being worthy of preservation. This opportunity is used in connection with local planning in order to protect buildings of major regional or local significance. Approximately 300,000 buildings in Denmark have been declared worthy of preservation. Most of both the listed and preserved buildings are privately owned. When a building is designated as worthy of preservation, only its exterior is protected, whereas listing protects the entire building. The Heritage Agency administers the legislation concerning listed buildings, while legislation concerning buildings worthy of preservation is administered primarily by the municipal authorities.22 2.1.1.1. Listed Buildings The listing of a building takes place within the framework of the Consolidated Act No. 1088 of 29 August 2007 on Listed Buildings and Preservation of Buildings and Urban Environments [Lov om bygningsfredning og bevaring af bygninger og bymiljøer] (hereafter, the Listed Buildings Act) and a number of executive orders issued under the Act.23 Most of the specific tasks and powers the Minister of Culture have been delegated to the Heritage Agency under the Delegation Order.24 2.1.1.1.1. Purpose and Scope of the Listed Buildings Act The object of the Listed Buildings Act is to safeguard Denmark’s old buildings ‘[. . .]of special architectural, cultural heritage or environmental value, including buildings which illustrate housing, working, and production

22 In September 2007 the Minister of Culture appointed a commission to describe the current legal situation concerning the preservation of buildings and to discuss different long term strategies of preservation. The Commission is expected to deliver its report in the summer of 2008. 23 Additional administrative regulation issued on basis of the Listed Buildings Act is: Executive Order No. 499 of 12 December 1979 on Registration of Special Provisions for Listed Buildings Owned by the State of Local Authorities [Bekendtgørelse om tinglysning af særlige bestemmelser for fredede bygninger i offentlig eje]; Executive Order No. 589 of 27 June 1994 on the Procedure for Withholding Part of the Salary, etc. in Connection With Non-performing Loans Granted by the National Building Preservation Foundation [Bekendtgørelse om fremgangsmåden ved indeholdelse i løn m.v. for misligholdte lån ydet af Statens Bygningsfrednings Fond] and Executive Order No. 1125 of 17 December 1997 on the Notification of the Forest and Nature Agency Prior to the Demolition or Sale to Private Owners of Certain Unlisted Buildings, etc. Owned by the State or Local Authorities [Bekendtgørelse om orienteering af Skov- og naturstyrelsen forinden nedrivning eller salg til private af visse ikke fredede bygninger m.v. i offentlig eje]. 24 Section 9 of the Delegation Order.

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conditions and other significant characteristics of social development.’25 Thus its purpose is to safeguard a broad segment of historic buildings, which is representative of as many aspects of society in different periods of time as possible. The Act is applicable to ‘buildings, building structures, parts of buildings and similar’, as well as ‘the immediate surroundings of buildings’.26 As an example of application of the Act to ‘similar’ constructions, one may refer to a case from 2004 in which a statue of a famous Danish admiral, Niels Juel, was listed in its immediate surroundings in central Copenhagen.27 Generally, the Listed Buildings Act focuses only on the building or buildings, not the area surrounding it. The provision relating to immediate surroundings only provides a possibility to list the immediate surroundings of a building if the aim is to secure an historic or architectural entity. Protection of spaces and other areas is generally provided for in the legislation relating to town and spatial planning. 2.1.1.1.2. The Legal Procedure of Listing a Building The decision on listing is made by the Heritage Agency in collaboration with the Historic Buildings Council according to a procedure set out in the Act on Listed Buildings. Any citizen or private organization may call attention to certain buildings with a view to listing, but only the Heritage Agency and The National Association for Building and Landscape Architecture [Landsforeningen for Bygnings- og Landskabsarkitektur] are entitled to submit listing proposals to the Historic Buildings Council.28 All listing proposals must be submitted to the Historic Buildings Council for evaluation and the support of the Council is needed in order for the Heritage Agency to make a decision to list a building.29 If the Council recommends listing, the case must be submitted for public consultation for a period of three months.30 Any private individual, association or authority may comment on the proposal.31 After having received pos-

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Section 1 (1) of the Listed Buildings Act. Section 2 cf. section 3 (2) of the Listed Buildings Act. 27 Ministry of Culture, Case No. 2004.204-14 of 14 April 2004—Niels Juel-statuen [The Niels Juel Statute]. 28 Section 24 (3) of the Museum Act. 29 Section 23 (1) of the Museum Act. 30 Section 6 of the Museum Act. 31 There are a number of private and public institutions and organizations which have requested to be notified of listings: the Museum Councils [Museumsrådene]; the municipal Cultural Environment Councils [Kulturmiljørådene] (see supra section 1.2.2.); The National Association for Building and Landscape Architecture [Landsforeningen for Bygnings- og Landskabsarkitektur]; Building Heritage Denmark [Bygningskultur Danmark], Europa Nostra and the Association for Owners of Listed Buildings [Bygnings Frednings Foreningen]. Further, the Academy Council of the Royal Academy of Fine Arts [Akademiraadet], which is an independent state institution, whose task it is to advise the state in questions of art and The Association for the Beautification of the Capital [Foreningen til Hovedstadens Forskønnelse], which is a 26

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sible hearing statements the Heritage Agency makes its decision,32 which may be appealed to the Minister for Culture for final decision.33 2.1.1.1.3. The Legal Criteria for Listing a Building Sections 3–5 of the Listed Buildings Act establish which circumstances must be present for a building to be listed. Pursuant to section 4 (1) of the Act, all buildings erected before the year 1536 are automatically listed. The Heritage Agency may list buildings which are more than 50 years old and which are of special architectural, cultural heritage or environmental value.34 Further, the Heritage Agency may list buildings irrespective of their age on grounds of their outstanding value or other special circumstances.35 Thus as a starting point a building must be more than 50 years old in order to become listed, but in special cases younger buildings of exceptional quality may also be listed. The most recent listed building is from 1974. According to section 2 of the Listed Buildings Act, the competent authorities must in administering the Act take into consideration that the protected buildings are given a function which is appropriate to the special character of such buildings and which serves their long term maintenance. The application of the relevant legal criteria in decisions on listings may be illustrated by two recent cases, both from 2004. In one case, the Heritage Agency decided to list Vesterport Station, which is one of the main train stations in central Copenhagen.36 The owner of the station, DSB, objected to the listing. The Ministry of Culture reversed the decision on the grounds that the architectural and cultural heritage values that give grounds for a listing must be weighed against the significant societal interest in securing a future use of the station which is both expedient and in keeping with the times. In another case, the Municipality of Gentofte had sought permit to commence a modernization of a Municipality school build by the famous Danish architect, Arne Jacobsen, which was listed.37 Alternatively, the Municipality wanted the listing cancelled. The Heritage Agency neither permitted the modernization nor cancelled the listing of the school on the grounds of its status as a major work of modernity in both a national and an international context. The Ministry of Culture upheld the decision on the grounds given by the Heritage

private association whose main mission is to safeguard the valuable historic buildings of the capital, often submit hearing statements. 32 Section 7 (1) of the Museum Act. 33 Section 12 (1), cf. section 12 (4) of the Delegation Order. 34 Section 3 (1) of the Museum Act. Until 1997, only buildings older than 100 years could be listed. 35 Section 3 (1) of the Museum Act. 36 Ministry of Culture, Case No. 2004-6504 of 16 November 2004 (Vesterport Station) [Vesterport Station]. 37 Ministry of Culture, Case No. 2004-4665 of 25 August 2004 (Munkegårdsskolen) [Munkegård School]. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Agency, noting that the Municipality of Gentofte had options of modernizations which did not encroach on the cultural values of the building. 2.1.1.1.4. The Legal Effects of Listings The listing of a building has considerable legal effects for the owner and occupant. The owners and occupants of listed buildings have an obligation to ensure the buildings are kept in good condition.38 Except for routine maintenance,39 owners must obtain permission from the Heritage Agency before any changes can be made to the buildings. Further, demolition of a listed building requires a permit from the Heritage Agency.40 The Heritage Agency advises owners on maintenance and restoration matters and may also grant funding for restoration work.41 If a listed building has been changed without the permission of the Heritage Agency, the Heritage Agency may order the owner to rectify the change.42 In addition, the Heritage Agency may order the owner of a listed building to carry out necessary maintenance work.43 Contravention of certain sections of the Act is punishable by fine or in grave cases by imprisonment of up to 1 year.44 The listing of a building is not considered to be expropriation and does thus does not involve financial compensation for the owner of the building. However, the owner has several opportunities for tax exception as compensation for their higher maintenance expenses. In special cases, the Heritage Agency may decide to compulsorily take over a privately owned listed building if such compulsory acquisition is necessary to prevent the loss of significant preservation values.45 The decision may be appealed to the Minister of Culture which is responsible for the final decision.46 Consequently, the Heritage Agency owns a small number of buildings, all of which are being restored. If possible, they are sold again when the restoration has been completed. Normally, the listing of a building does not have legal effect for third parties. However, one special case from 1991 bears mentioning.47 Around 1868 a painting was hung in a privately owned building as part of its decoration. In 1948 the building was sold and the former owner rented out part of the building including the living quarters. In the lease it was noted that the for38

Section 9 of the Museum Act. Section 10 (1) of the Museum Act. 40 Section 11 (1) of the Museum Act. If a demolition permit is refused, the owner may in certain cases demand that the property be taken over by the state, with appropriate compensation; sections 12 and 13 of the Museum Act. 41 Sections 25 and 16 of the Museum act. 42 Section 33 of the Museum Act. 43 Section 33 of the Museum Act. 44 Section 34 of the Museum Act. 45 Section 33 a of the Museum Act. 46 Section 12 (1) cf. section 12 (4) of the Delegation Order. 47 UfR.1991.370 Ø. 39

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mer owner of the building was the owner of the noted painting. In 1979 the building was listed. In 1984 the heirs of the former owner of the building wanted to remove the painting from the building and the question arose whether the painting was included in the listing and could consequently not be removed from the building. The Eastern High Court found that the listing included the painting, which was an integrated part of the wall at the time the listing was effectuated. However, as the listing entailed a termination of the property rights over the painting, the owner was entitled to compensation under section 73 of Act No. 169 of 5 June 1953 on the Danish Constitution [Grundloven], which concerns property rights and expropriation. 2.1.1.1.5. Change of Scope and Cancelling of a Listing The scope of the listing of a building may be changed or the listing may be cancelled if the preservation value of the building is list or may no longer be maintained.48 This may be the case if the building has burnt down to the ground or has been rebuilt to such a degree that it has lost its architectural and cultural heritage value. The Heritage Agency may cancel the listing of a building even if the Historic Buildings Council is against it; however, the recommendation of the Council is required in order for the scope of a listing to be amended.49 Before the Heritage Agency may change the scope of a listing or cancel a listing, the case must be submitted for public consultation.50 Within a period of three months, any private individual, association or authority may comment on the proposal, after which the Heritage Agency makes a decision. This decision may be appealed to the Minister for Culture for final decision.51 2.1.1.2. Churches and Church Surroundings Today Denmark has around 2,300 churches with church yards. Approximately 1,750 of these are village churches date back to the Middle Ages and are highly characteristic of the Danish cultural landscape.52 Section 4 of the Listed Buildings Act exempts church buildings from the scope of the Act’s provisions on listing if they are subject to legislation relating to the Danish National Evangelical Lutheran Church and they are used for service. This means that other buildings associated with the Danish National Evangelical Lutheran Church such as mortuaries, rectories and churches which are attached to another building, e.g., chapels are not exempt from listing

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Section 8 (1) and (2) of the Museum Act. Section 23 (1) of the Museum Act. 50 Section 8 (3) of the Museum Act, cf., section 6 (1), (2) and (4) and section 7 of the Museum Act. 51 Section 12 (1) cf. section 12 (4) of the Delegation Order. 52 O. Christiansen and V. Koester, op. cit. n. 1, at p., at p. 501. 49

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according to the Listed Buildings Act.53 If a church is no longer used for service it comes within the scope of the Listed Buildings Act and churches dating prior to 1536 are automatically listed pursuant to section 4 (1) of the Act.54 The safeguarding of churches and church yards is governed primarily by Act No. 7 of 3 January 2007 on Church Buildings and Church Yards Belonging to the Danish National Evangelical Lutheran Church [Lov om folkekirkens kirkebygninger og kirkegårde] (hereafter, Act on Church Buildings), which is administered by the Ministry of Church Affairs.55 The purpose of the Act is, i.a., to ensure that there will be no impairment of the cultural assets associated with church buildings and church yards.56 While the Act is administered by the Minister of Church Affairs, many of the specific tasks are assigned to the local parish authorities. Pursuant to section 3 of the Act on Church Buildings, the parochial church councils are responsible for the maintenance of church buildings and their inventory as well as for their decoration. Further, when it comes to church buildings that are more than 100 years old, the councils must not take any measures of restoration without the approval of the Board of the Diocese.57 According to section 2 (1) of the Act on Church Buildings the demolition of a church may only take place with the approval of the Ministry of Church Affairs. As regards reconstruction or other alteration of a church building, the approval of the Board of the Diocese is required under section 2 (2) of the Act. Additionally, the surroundings of a church building are safeguarded, i.a., by the so-called church building line which is set out in section 19 of the Consolidated Act No. 749 of 21 June 2007 on Protection of the Natural Environment [Lovbekendtgørelse om naturbeskyttelse] (hereafter, the Act on Protection of the Natural Environment), which prohibits buildings taller than 8.5 meters in a radius of 300 meters from the church building, if the church building is situated in the open landscape. In a pending case the Historic Buildings Council has recommended the listing of the sepulchral chapel of Holmens Kirke58 along with the church

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Ibid. at p. 491. Ibid. at p. 502. 55 Churches and their surroundings are also safeguarded in the legislation on land use and spatial planning. 56 Section 1 (3) of the Act on Church Buildings. The Act also provides rules concerning the safeguarding of church yards (chapter III) and of certain preservation-worthy sepulchral monuments (chapter IV). 57 Section 2 of the Executive Order No. 1238 of 22 October 2007 on Church Buildings and Church Yards Belonging to the Danish National Evangelical Lutheran Church [Bekendtgørelse om folkekirkens kirkebygninger og kirkegårde] (hereafter, the Order on Church Buildings). 58 The chapel serving the Royal Danish Navy. 54

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square and its surrounding fence and two gates.59 The decision is based on the architectural and cultural heritage values of the buildings. However, in a dissenting opinion one member of the Council found that the Act on Listed Buildings was not applicable to a church yard which is situated in connection to a functioning church. The member stressed the point that such church buildings had not previously been listed and that the listing may raise issues of administrative law in relation to the Act on Church Buildings.60 The listing proposal is currently in public hearing for three months whereupon the Heritage Agency will make a decision on listing. 2.1.1.3. Preservation of Buildings and Urban Environments The preservation of buildings and urban environments is governed by various legal instruments and is carried out at both a municipal and a national level. The following is a summary account of the main rules and principles of the preservation of buildings and urban environments. The preservation of buildings and urban environments is mainly carried out by the municipal authorities, i.e., the Municipal Councils. Section 17 of the Act on Listed Buildings provides that a building is worthy of preservation when it is (1) included in a municipality plan as worthy of preservation or (2) subject to an injunction against demolition in a district plan or urban plan by-law, cf. section 15 (2) (xiv) of Consolidated Act No. 813 of 21 June 2007 on Spatial Planning [Lovbekendtgørelse om planlægning] (hereafter, the Spatial Planning Act). The main legal effect of the designation of a building as worthy of preservation in a municipality plan is that the building must not be demolished until there has been public consultation and the Municipality Council has decided whether it will impose an injunction against demolition under section 14 of the Spatial Planning Act.61 The main legal effect of an injunction against demolition in a district plan or urban plan by-law is that the building must not be demolished nor—in some cases—converted or in any other way altered without the consent of the Municipality Council.62 Further, in 2001 an amendment to the Act on Listed Buildings created the legal basis for decisions on preservation at a national level. According to section 19 of the Act, the Heritage Agency may decide that a building not covered under section 17 is worthy of preservation.63 The provision does not provide the criteria for the decision, but in practice the decision on

59 Heritage Agency Case No. 2003-112/121-0110) (Holmens Kirke) [Holmens Church]. Report of the Historic Buildings Council’s meeting on 5 February 2008, available at www .kulturarv.dk. 60 Ibid. 61 Section 18 (1) of the Museum Act. 62 See section 15 (2) (14) of the Spatial Planning Act. 63 The Minister of Culture has delegated the power to the Heritage Agency by section 9 (1) (xxiiii) of the Delegation Order.

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preservation will be based upon a recommendation of the Historic Buildings Council or from the local Cultural Environment Council. The main legal effect of the Heritage Agency’s decisions on preservation is the same a when a building is designated as preservation worthy in a municipality plan.64 However, in special cases the Heritage Agency may decide that the owner of a building worthy of preservation must not demolish or convert the building or in any other way alter the appearance of the building without the consent of the Municipality Council.65 Contravention of certain sections of the Act is punishable by fine or in grave cases by imprisonment of up to 1 year.66 2.1.2. Safeguarding Walls of Stone and Earth and the Like The Danish landscape is marked by a plenitude of walls of stone and earth. They divide the landscape and are the hedges and property lines of older times and further they are witnesses of an earlier time’s use of land, propriety rights and administrative structures. Finally, the walls function as important ‘green corridors’ for animals and plants in the landscape.67 The legal safeguarding of walls of stone and earth was introduced in 1992. At this time it was estimated that 70% of the walls that existed in the late 19th century were destroyed because of structural changes in agriculture.68 Since 2004 when the area was transferred from the jurisdiction of the Ministry of the Environment to the Ministry of Culture, the safeguarding of walls of stone and earth has been regulated by Consolidated Act No. 1505 of 14 December 2006 on Museums [Museumslov] (hereafter, Museum Act).69 Stone and earth walls may also be protected as ancient monuments under the Museum Act.70 If this is the case only these rules apply.71 Under section 29 a (1) of the Museum Act, walls of stone and earth and the like may not be changed unless dispensation is granted.72 Contravention of the protective provisions is punishable by fine.73 The specific types of walls that are automatically protected under section 29 a (1) are listed in Executive Order No. 1511 of 14 December 2006 on Protected Walls of Stone and Earth and the Like [Bekendtgørelse om beskyttede sten- og jorddiger og ligende] (hereafter, Order on Protected Walls of Stone and Earth). This protection is

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Section 19 a of the Museum Act. Section 19 a of the Museum Act. 66 Section 34 of the Museum Act. 67 Ministry of Culture, Facts: Ancient Monuments, Listed and Preservation-Worthy Buildings, available at www.kum.dk. 68 O. Christiansen and V. Koester, op. cit. n. 1, at p. 532. 69 Sections 29 a-d of the Museum Act. 70 Section 29 a (2) of the Museum Act. 71 Ibid. 72 Section 29 j (1) of the Museum Act. 73 Section 40 (1) of the Museum Act. 65

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supplemented by specific designations made by the municipal councils. With basis in section 29 d of the Museum Act, the Order sets out a procedure for the registering of walls by the municipal councils. The Order includes specific rules on the hearing of, i.a., the owner of the property which the decision concerns and to relevant local and national associations.74 Additionally, the Order includes rules on notification and publication of the decision.75 The Heritage Agency is the body with the overall regulatory responsibility for the supervision of walls of stone and earth.76 2.1.3. Safeguarding the Cultural Environment In recent years the relevant authorities have become increasingly aware that cultural heritage is not just the individual building, monument or object. Cultural heritage can also be a combined group of elements in a given context—a cultural environment. A cultural environment is defined as ‘a geographically delimited area that reflects significant features of our society’s historical development’.77 A cultural environment is often centred around and forms a whole with individual cultural heritage elements such as the approximately 30,000 protected ancient monuments, the approximately 180,000 non-protected ancient monuments, the approximately 9,700 listed buildings, the approximately 300,000 buildings worthy of preservation and the 1,750 medieval churches.78 The story of life on a manor can only be told properly if we have also preserved the immediate surroundings of the manor—its avenues, park, labourer’s cottages, fields, woods, meadows and stone walls. Likewise, the story of fishing can be told by a fishing vessel, but it becomes even better if we can present an entire fishing hamlet with drying grounds, tar cauldrons, harbour/piers, sheds, etc. The same applies to agriculture with farms, fields and hedgerows; the squares of market towns; ports; industrial environments and other environments that tell a story and that have been selected and found valuable.79 2.1.3.1. Cultural Heritage Atlases The Heritage Agency primarily supports local protection work by preparing atlases of cultural heritage in selected local authority areas. The first atlas was

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Sections 2–9 of the Order on Protected Walls of Stone and Earth. Sections 9–11 of the Order on Protected Walls of Stone and Earth. 76 However, the Heritage Agency may enter into agreements with state-subsidised museums to the effect that they are to be in charge of the supervision on part of the Agency, cf. section 1 of Executive Order No. 729 of 27 June 2006 on Supervision of Walls of Stone and Earth and Ancient Relics or Monuments [Bekendtgørelse om tilsyn med sten- og jorddiger og fortidsminder] (hereafter, the Supervision Order). 77 Danish Heritage Agency, ‘Cultural Environment’, available at www.kulturarv.dk. 78 Ibid. 79 Ibid. 75

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published in 1990, and the series now numbers more than 70 titles.80 The cultural heritage atlases are made in collaboration between local authorities, museums and the Heritage Agency, assisted by groups of interested citizens, protection associations and other locals. The atlases comprise descriptions of cultural environments, as well as the registration of all local buildings constructed before 1940. A cultural heritage atlas serves not only as a tool that the local authority's employees and politicians can use to secure the local cultural heritage, but also a popular work of reference for anyone interested in local history.81 2.2. Safeguarding the Moveable Cultural Heritage The moveable, Danish cultural heritage is primarily protected by two sets of rules: the Museum Act and Act No. 332 of 4 June 1986 on Protection of Cultural Assets in Denmark [Lov om sikring af kulturværdier i Danmark] (hereafter, Cultural Assets Act). However, it must be noted that in addition to the specific provisions on moveables set out in the Museum Act which shall be accounted for below, the purpose of the Museum Act in general is to safeguard Danish cultural heritage by means of commissioning the Danish museums with various tasks.82 One of the main objects of the state-owned and state-subsidised museums is to work for the safeguarding of Denmark’s cultural heritage through collection, registration, research and dissemination.83 This entails that the state-owned museums, and in practice also the state-subsidised museums, may not part with moveable cultural property from the museum collections without approval from the Ministry of Culture.84 This provision is construed very narrowly in practise. The specific provisions on moveables in the Museum Act and the Cultural Assets Act are supplementary to this general regulation. 2.2.1. Cultural Assets Rare works of art, objects of importance to cultural history, books, manuscripts, documents and the like may not be taken out of Denmark without permission. This is provided by the Cultural Assets Act which came into

80 Danish Heritage Agency, ‘Cultural Environment—Mapping the Heritage’, available at www.kulturarv.dk. 81 Ibid. 82 L. Banke, ‘Beskyttelse af kulturværdier i Danmark’ [The Safeguarding of Cultural Assets in Denmark], 3 Fortid og Nutid (1996) pp. 181–214, at 183. See also L. Banke, Museumsloven og anden antikvarisk lovgivning [The Museum Act and Other Legislation on the Safeguarding of Cultural Heritage] (Copenhagen, Det Kongelige Danske Kunstakademi, Konservatorskolen 1992), at p. 110 et seq. 83 Section 2, no. 1 of the Museum Act. 84 Section 11 (2) of the Museum Act.

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force on 1 January 1987.85 The Act is supplemented by Executive Order No. 404 of 11 June 1987 on Protection of Cultural Assets in Denmark [Bekendtgørelse om sikring af kulturværdier i Danmark] (hereafter, Order on Cultural Assets). Further the export of certain cultural assets to countries outside the EU is regulated by Council Regulation 3911/92 of 9 December 1992 on export of cultural goods.86 The passing of the Cultural Assets Act was prompted by an auction in London in 1976 where a number of unique paintings from the Danish Manor Gavnø were sold, among these a very famous painting by the Danish painter Reinhold Thim which shows King Christian IV’s royal musicians. The painting which dates to 1622 is considered a priceless piece of Danish cultural history and the Danish government attempted to acquire the painting, but too late.87 The Cultural Assets Act was subsequently enacted is to ensure that objects of special cultural value remain within the borders of Denmark. 2.2.1.1. The Purpose and Scope of the Cultural Assets Act Pursuant to section 1 of the Act, the objective of the Act is to protect Danish cultural heritage through preservation of cultural assets in Denmark. A cultural object may be defined as objects of such unique value that the Danish cultural heritage would be significantly impaired if these objects were to be exported.88 However, the scope of the Cultural Assets Act is more narrowly defined as the main criteria of the applicability of the Act are related to the age and value of the object. Pursuant to section 2 of the Act permission must be obtained in order to export 1) cultural objects from the period before 1660 (section 2 (1) (1));89 2) cultural objects older than 100 years and valued at DKK 100,000 or more (section 2 (1) (2)); and 3) photographs (regardless of age) of a value of DKK 30,000 or more (section 2 (2)).90 Section 2 (4) of the Cultural Assets Act further provides that in exceptional cases the Minister

85 Regarding export of cultural assets to non-EU Member States, the Cultural Assets Act is supplemented by EC Council regulation 92/3911/EEC of 9 December 1992 on the export of cultural goods as amended by Council Regulations 2469/96, 974/2001 and 806/2003, cf. Act. No. 1104 of 22 December 1993 on the return of cultural objects unlawfully removed from the territory of a Member State of the European Union [Lov om tilbagelevering af kulturgoder, som er fjernet ulovligt fra et EU-medlemslands område m.v.] (hereafter, the Act on Unlawfully Removed Cultural Objects). 86 As amended by Council Regulation 2469/96, Council Regulation 974/2001 and Council Regulation 806/2003. Infra. 87 Kulturværdier, Betænkning fra udvalget om beskyttelse af Kulturværdier i Danmark. Betænkning nr. 1040 [Cultural Assets, Report by the Commission on Protection of Cultural Assets in Denmark. Report No. 1040], Copenhagen 1985 at pp. 7 and 72 et seq. 88 Preparatory work to the Cultural Assets Act, LFF1985-1986.1.167, at p. 3. 89 The year 1660 marks the introduction of the absolute monarchy in Denmark. 90 Cultural assets in public possession are outside the scope of the Act, cf. section 2, as the protection of these assets lies in them being owned by the Danish State. Preparatory work to the Cultural Assets Act, LFF1985-1986.1.167, at p. 3.

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for Culture may decide that the Act is also applicable to other objects of cultural interest. Coins and medals are the only cultural objects explicitly exempted from the regulations of the Act.91 Examples of cultural objects within the scope of section 2 (1) (1) of the Act are antiquities, tools and weapons of flint, stone and metal, ceramics and jewellery or ornamental pieces made of bone, hartshorne, amber or metal, church inventory such as altarpieces, crucifixes, pulpits and chalices, books, incunabula and documents. Examples of cultural objects within the scope of section 2 (1) (2) of the Act are manuscripts, diaries, maps, pieces of visual art such as paintings and sculptures as well as furniture, musical instruments etc. 2.2.1.1.1. The Protection of Cultural Assets Comprised by the Act According to section 3 (1) of the Cultural Assets Act objects comprised by the Act are prohibited from being exported, permanently or temporarily,92 to other countries or to the Faroe Islands and Greenland93 without special licence. The decision on whether such an export licence is to be granted is made by CECA,94 which is the primary competent authority administering the Act.95 As to the decision on granting an export licence, section 3 (2) of the Order on Cultural Assets provides that the basis of the assessment should be an ‘overall quality evaluation’ of the cultural object and that an important element of CECA’s considerations must thus be whether the export will entail a ‘substantial deterioration of the national cultural heritage’. According to the preparatory work a number of criteria may be involved in this assessment of the object, including the national or regional historic significance, the aesthetic significance, the rarity and the documentary importance.96 However, in this connection regard must be given to the Danish national interest in having Danish cultural objects represented in foreign collections and special weight should be given to the interest in having Danish pieces of art in publicly accessible collections abroad.97 In assessing the object no distinction is to be made between Danish and foreign originators, or where the originator is unknown, between Denmark and other countries as countries of origin.98 However, licence must

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Section 2 (3). Banke, loc. cit., at p. 186. 93 The Cultural Assets Act does not extent to the Faroe Islands and Greenland, cf. section 16 of the Act. 94 Supra. 95 Section 5 (1) of the Cultural Assets Act and sections 2–5 of the Order on Cultural Assets. The web-site of the Commission on Export of Cultural Assets may be found at www .cultural-assets.dk. 96 Preparatory work to the Cultural Assets Act, LFF1985–1986.1.167, at p. 5. 97 Ibid. 98 Section 3 (3) of the Order on Cultural Assets. 92

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be granted in accordance with section 7 (1) of the Act if the owner of the asset attests that the object in question has been created outside Denmark and was imported to Denmark within the last 100 years. Another exception which entails that the owner of the object has a legal claim to be granted an export licence is set out in section 7 (2) of the Act which relates to situations where the owner of an object attests his wish to export the objects as part of his household effects in connection with the establishment of a permanent residence outside Denmark. In 2006, CECA considered 27 individual applications for the authorization of export of 59 cultural objects and 24 collections of antiquities. All applications were accommodated.99 2.2.1.2. Advance Valuation of Cultural Objects Sold at Auctions To ensure an efficient administration of the Cultural Assets Act, the CECA has made agreements with certain auction houses about a special procedure on advance valuation of cultural objects sold at auctions.100 Prior to the auction CECA will go through the auction catalogues and if necessary inspect relevant items. On the basis of this inspection CECA then advises the auctioneer in writing as to which items will require CECA’s permission in the event of the buyer wishing to take them out of Denmark after the auction. In such cases the auctioneer will be under an obligation to keep the relevant items in custody until an export licence has been granted. In 2006, CECA had agreements concerning advance valuations with five Danish auction houses and it carried out advance valuations of 31 auction catalogues containing 21,369 listings of antiques, paintings, books, letters manuscripts etc.101 2.2.1.3. The Legal Effects of an Export Prohibition If an application for an export licence is refused, it follows from section 11 (1) of the Cultural Assets Act that the Danish State must offer to buy the object at market price, though without having any right of pre-emption on this account.102 The decision of the CECA is final and may not be appealed to any other administrative body.103 The owner may decline the offer, but in this case the object may only be sold within Denmark104 and export of a cultural asset in contravention of section 3 (1) of the Act is punishable by fine.105

99 CECA Annual Report 2006. It has not been possible to obtain the most recent numbers as the Annual Report of the CECA for the year 2007 has not yet been published. 100 Section 9 of the Order on Cultural Assets. 101 CECA Annual Report 2006. 102 Preparatory work to the Cultural Assets Act, LFF1985-1986.1.167, at p. 6. 103 Section 3 (1) of the Order on Cultural Assets. 104 Ibid. 105 Section 13 of the Cultural Assets Act.

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As regards export prohibitions, the status at the end of 2006 was that all in all four cultural objects in Denmark owned by private foreign collectors and two cultural objects owned by Danish private collectors were subjected to an export prohibition.106 2.2.1.4. Export of Cultural Assets to Countries outside the EU Following the creation of the Common Market the national laws in the individual Member States concerning the protection of cultural assets continues to apply. However, the export of certain cultural assets to countries outside the EU is governed by the above-mentioned Council Regulation 3911/92 of 9 December 1992 on export of cultural goods which came into force on 1 April 1993.107 According to the Regulation an export licence must be obtained for certain objects of cultural value when exporting these to countries outside the EU. Like the Act on Cultural Assets the Regulation is administered by CECA. However, the scope of application of the Cultural Assets Act and the Regulation 92/3911 are not the same.108 Different categories of assets and value limits apply and the EU scheme requires that an export licence must be applied for in a number of instances in which such a licence would not be required under the Cultural Assets Act. Contravention of the Regulation is punishable by fine.109 In 2006, CECA received 23 applications regarding export of 177 individual objects under the EU regulation. All 23 applications were submitted by museums and private individuals who wished to remove works from Denmark temporarily for exhibition or examination abroad.110 2.2.2. Moveable Cultural Heritage That Has Been Illegally Removed and is Subject to Illicit Import, Export or Transfer of Ownership In recent years there has been much public focus on Denmark’s role in the international illegal trade of cultural objects. Several high-profile cases concerning both illicit import and export of stolen cultural property have raised questions of the efficiency of the Danish, legal protective scheme.111 The Danish legal system provides several different sets of rules with the purpose of protecting movable cultural heritage that has been illegally removed and is subject to illicit import, export or transfer of ownership. 106

CECA Annual Report 2006. Supra n. 85. 108 Banke, loc. cit., at pp. 202–204. 109 Section 4 (2) of the Act on Unlawfully Removed Cultural Objects. 110 CECA Annual Report 2006. 111 In March 2007 a conference was held in Copenhagen on Denmark’s role in the international trade with stolen cultural objects. The conference was arranged in co-operation between UNESCO, ICOM, the Danish Ministry of Culture, the Royal Library and the National Museum of Denmark. 107

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Apart from the relevant EU regulation, Denmark has recently ratified the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970) (hereafter, the 1970 Convention). If cultural property is stolen the situation is regulated by the provisions on theft (section 276) and receiving stolen goods (section 290) set out in Consolidated Act No. 1260 of 23 October 2007, the Criminal Code [Straffelov] (hereafter, the Criminal Code).112 In order for a person to be convicted of receiving stolen goods the prosecution must prove that the proceeds stem from a criminal enterprise. This has proved difficult in cases concerning cultural property which has been illegally exported from a state seeing that these objects often have been illegally excavated and thus not registered before being exported.113 Another circumstance barring prosecution is the statute of limitation which is 10 years for receiving stolen goods.114 Pursuant to the new section 33 (1) of the Museum Act no museum may acquire a cultural object if the object has been exported from another country contrary to the legislation of that country and the matter is subject to an international agreement which has been signed by the country in question and Denmark. Further, subsection (2) of the provision sets out that, if an acquisition has been made contrary to subsection (1), the object shall be returned in accordance with the international agreement in question. This provision was added to the Museum Act in 2001 with a view to preparing for the ratification of both the 1970 Convention and the 1995 UNIDROIT Convention.115 However, the provision only applies when both the import and the export state is party to an international convention. Further, the provision only applies to state-owned or state-subsidised museums, which

112 The wording of section 290 of the Danish Criminal Code is as follows: (l) Any person who unlawfully accepts or acquires for himself or others a share in profits, which are obtained by a punishable violation of the law, and any person who unlawfully by concealing, keeping, transporting, assisting in disposal or in a similar manner subsequently serves to ensure, for the benefit of another person, the profits of a punishable violation of the law, shall be guilty of receiving of stolen goods and liable to a fine or imprisonment for any term not exceeding one year and six months. (2) When the receiving of stolen goods is of a particularly aggravated nature, especially because of the commercial character of the offence, or in consequence of the amount of the gain obtained or intended to be obtained, or where a large number of offences have been committed, the penalty may be increased to imprisonment for any term not exceeding six years. (3) Punishment pursuant to this provision can not be imposed on a person, who accepts profits as an ordinary subsistence from family members or cohabiter, or any person who accepts profits as a normal payment for ordinary consumer goods, articles for everyday use, or services. 113 See case study 2, infra. 114 Section 93 of the Criminal Code. 115 Infra.

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means that private museums are not under such an obligation.116 Contravention of the provision by a museum is punishable by fine.117 The Ministry of Culture has emphasised that state-owned and state-subsidised museums are expected to be aware of the Code of Ethics for Museums adopted by the International Council of Museums (ICOM), which sets minimum standards of conduct for museum professionals.118 The ICOM Code of Ethics (2006), i.a., sets standards as regards valid title of objects acquired including a duty to make every effort to ensure that no object acquired has been illegally obtained in or exported from its country of origin or any intermediate country in which it might have been owned legally.119 The Ministry of Culture further presupposes that other cultural institutions such as libraries will exert great vigilance as regards acquisition of cultural objects.120 As regards the acquisition of cultural objects by non-state owned museums and other similar institutions, the Ministry of Culture will continue to impress on these institutions the ICOM Code of Ethics.121 2.2.2.1. EC Council Directive 93/7/EEC EC Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State was implemented in Danish law by the Act on Unlawfully Removed Cultural Objects, which is applicable to requests for the return of cultural objects referred to in the annex to the Directive and in Article 1 of the Directive.122 Temporarily, the Act only applies to requests concerning cultural objects unlawfully removed from the territory of another member state on or after 1 January 1993.123 The Act des-

116

See section 1 (3) of the Museum Act. Section 40 (1) of the Museum Act. 118 Preparatory work to the amendment of the Museum Act, LFF No. 152 of 31 January 2001 and Memorandum on the 1970 Convention, at p. 13. 119 Section 2.2 and 2.3 of the 2006 ICOM Code of Ethics. 120 Memorandum of 27 November 2007 on the ratification the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970), Ministry of Culture, case no. 2002.200-5 (hereafter, Memorandum on the 1970 Convention), at p. 13. 121 Ibid. at p. 13. 122 Section 3 (1) of the Act on Unlawfully Removed Cultural Objects. See also Executive Order No. 1064 of 18 December 1997 on the amendment to the annex to the act on the return of cultural objects unlawfully removed from the territory of a Member State of the European Union [Bekendtgørelse om ændring af bilag til lov om tilbagelevering af kulturgoder, som ulovligt er fjernet fra et EU-medlemslands område m.v.] and Executive Order No. 1956 of 28 November 2002 on the amendment of the annex to the act on the return of cultural objects unlawfully removed from the territory of a Member State of the European Union [Bekendtgørelse om ændring af bilag til lov om tilbagelevering af kulturgoder, som ulovligt er fjernet fra et EU-medlemslands område m.v.]. 123 Thus Denmark has not extended its obligation materially or temporally under article 14 of the Directive. 117

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ignates CECA as the Danish central authority which is competent to carry out the tasks under the Act.124 The scheme for administrative cooperation provided in the Directive was first employed by Denmark in 2004 in relation to a case concerning the theft and illegal export of numerous books belonging to the Danish Royal Library.125 2.2.2.2. The 1970 Convention The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970) was ratified by Denmark on 26 March 2003 and it entered into force in relation to Denmark on 26 June 2003.126 A temporary reservation on the territorial application of the Convention was taken under article 22 with regard to Greenland. The reservation was withdrawn on 14 October 2004 after which the Convention became applicable to the entire Danish territory.127 In a memorandum prepared by the Ministry of Culture in connection with the ratification it was emphasised that the ratification did not call for any amendments to Danish Law.128 The obligations of the Convention were seen as implemented, i.a., by the Cultural Assets Act, the Act on Unlawfully Removed Cultural Objects and section 33 of the Museum Act. However, the Ministry of Culture pointed out that Denmark, because of the uncertainty regarding the interpretation and scope of some of the provisions of the Convention, had informed the UNESCO Secretariat of the Danish understanding and application of articles 3, 5, 6, 7 and 13.129 Further, in connection with the ratification, Denmark has submitted a declaration regarding the scope of application of article 1 of the Convention. According to this declaration property designated as ‘of importance for archaeology, prehistory, history,

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Section 2 of the Act on Unlawfully Removed Cultural Objects. CECA Annual Report 2004. Infra case study 4. 126 Decree No. 32 of 14 October 2003 of the UNESCO Convention of 14 November 1979 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property [Bekendtgørelse UNESCO-konvention af 14. November 1970 om midlerne til at forbyde og forhindre ulovlig import, eksport og ejendomsoverdragelse af kulturgenstande]. 127 Decree No. 32 of 14 October 2004 on the Danish withdrawal of the territorial reservation concerning the application in Greenland of the UNESCO Convention of 14 November 1979 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property [Bekendtgørelse om Danmarks tilbagetrækning af territorial erklæring vedrørende anveldelse i Grønland af UNESCO-konvention af 14. November 1970 om midlerne til at forbyde og forhindre ulovlig import, eksport og ejendomsoverdragelse af kulturgenstande]. 128 Memorandum on the 1970 Convention, at p. 5. 129 Ibid. p. 5. 125

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literature, art or science’, in accordance with article 1 of the Convention, are the properties covered by the Danish legislation concerning protection of cultural assets (the Cultural Assets Act) and articles 28, 30 and 31 of the Danish Museum Act.130 Additionally, the Ministry of Culture has expressed the opinion that article 7 (a) of the Convention, which concerns the acquisition of illegally exported cultural property by museums and similar institution, only obligates the State Parties to legally regulate the acquisitions of state-owned museums and similar institutions and not to take such legal steps with regard to private institutions. As regards the import prohibition set out in article 7 (b) of the Convention, it is the view of the Ministry of Culture that this does not include an obligation to border control and that the effect of the prohibition is assistance in returning the object, cf. article 7 (b) (ii) and sanctions under article 8 of the Convention. The relevant provisions under Danish law will be section 290 of the Criminal Code on receiving stolen goods. 2.2.2.3. The 1995 UNIDROIT Convention Denmark has not as of yet ratified the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 24 June 1995) (hereafter, 1995 UNIDROIT Convention) which concerns matters of private and procedural law concerning the same range of objects as the 1970 Convention. The Convention ensures, i.a., that the owner (in the case of stolen cultural property) or the requesting state (in the case of illicitly exported cultural property) is able to bring a case concerning the return of the cultural property before a court of another competent authority in the state which holds the cultural property. The State Parties are therefore obligated to ensure that proceedings may be brought before a court or other competent authority. Further, the Convention calls for the State Parties to implement certain provisions concerning private and procedural law.131 In 2001, section 33 (2) of the Museum Act on the return of cultural property in accordance with the international agreement mentioned in question132 was added to the Museum Act with a view to the Danish ratification of the 1995 UNIDROIT Convention, but as the Convention also calls for other changes in Danish private and procedural law, the Ministry of Culture has set up an interdepartmental committee consisting, i.a., of representatives from the Ministry of Culture, the Ministry of Foreign Affairs and the Ministry of Justice, which is currently preparing the ratification of the Convention.

130 131 132

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2.2.2.4. Case Studies Concerning Unlawfully Removed Cultural Objects That Have Been Subject to Illicit Import or Export There are two cases which may illustrate the Danish legal situation with regard to unlawfully removed cultural objects that have been subject to illicit import: 2.2.2.4.1. Case Study 1: The Ny Calsberg Glyptotek In 2001, the Italian authorities requested the assistance of the Danish Ministry of Justice in executing a letter rogatory relating to the investigation of a criminal case concerning, i.a., receiving stolen property, failure to report archaeological findings and illicit export of archaeological objects from Italy to Denmark. The objects in question were grave finds of Etruscan origin. It turned out that some of the archaeological objects in question were acquired by the state-subsidised museum, the Ny Carlsberg Glyptotek, up until the late 1970s and now part of the museum’s collection. The Danish authorities have concluded that there is no basis for criminal prosecution against the Ny Carlsberg Glyptotek in connection with the acquisitions.133 The Ny Carlsberg Glyptotek has informed the Danish Ministry of Culture that it does not find that the objects in question should be returned to the Italian authorities, but that since the early 1980s when the museum started to suspect the illicit origin of the objects, Italian museum professionals have had full access to the objects and that the Ny Carlsberg Glyptotek continues to cooperate with the Italian museum professionals.134 The Ny Carlsberg Glyptotek has further informed the Ministry of Culture that since 1978 it has acted on the basis of a declaration of intent according to which no archaeological objects will be acquired unless the origin of the objects is completely clarified.135 The Ministry of Culture has noted that the Ny Carlsberg Glytptotek has declared to be observing the existing guidelines on acquisition of objects by museums.136 2.2.2.4.2. Case Study 2: The Private Art Dealer from Lyngby In 2006, the Danish police seized a large collection of pre-Columbian objects from the underground show room of a private residence of an art dealer in Lyngby, north of Copenhagen. The collection numbered more than 1,000 objects from Mexico, Columbia, Ecuador, Peru, Costa Rica and China. The objects were registered and identified with the assistance of the National

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Museum of Denmark and the Danish police informed the relevant countries of the findings. In the spring of 2007, the Danish police charged the art dealer with receiving stolen property, cf. section 290 of the Criminal Code. However, on 10 April 2007, the Danish police decided to drop the charges on the grounds that criminal prosecution could not be expected to lead to a conviction seeing that there was insufficient proof that the objects stemmed from a criminal enterprise. This decision was upheld by the Regional Public Prosecutor. A case concerning the question of possession of the seized objects is currently pending before the City Court of Lyngby. Additionally, there are two cases which may illustrate the Danish legal situation with regard to unlawfully removed cultural objects that have been subject to illicit export: 2.2.2.4.3. Case Study 3: The Danish Coin Treasure In 1997, a number of Danish coins, presumably from a Danish find of antique coins from Zealand dating from the 11th century, appeared at coin exchanges and similar coin markets, both in Denmark and in a number of EU countries.137 According to the Danish Museum Act, objects of the past found in the earth, including coins to which no one can prove ownership, are considered a treasure trove belonging to the Danish state and such finds must be surrendered to the National Museum of Denmark.138 The presumption as regards the origin of the coins led the Danish police to contact a Danish coin seller. Further, as there was information to the effect that a large number of coins from this find had come into the possession of a specified German coin seller, the German police, together with Danish colleagues, conducted a search of the German coin seller’s premises in the spring of 1998.139 The visit resulted in confiscation of this person’s stock of Danish coins. In 1997, Germany had not yet implemented Directive 93/7 and as a result the Danish authorities attempted to have the coins returned from Germany through international police co-operation. The coins were returned to Denmark as a loan to be used in the police investigations, which subsequently provided strong circumstantial evidence that the coins came from the same Danish treasure, and that the coins had been illegally withheld from the Danish system for a treasure trove belonging to the Danish state and taken out of Denmark illegally. However, in the autumn of 2003, the German authorities made a demand for the coins to be returned to the German citizen.

137 138 139

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The CECA considered instituting proceedings against the German citizen pursuant to article 5 of Directive 93/7; however due to the 1-year limitation rule in set out in article 7, it was considered impossible to institute proceedings in the German courts.140 Consequently, it was entrusted to the National Museum of Denmark, in its capacity as the authority under the provisions on treasure trove belonging to the Danish state, to negotiate a possible acquisition of the coins. The case was concluded in 2004, when the National Museum acquired the coins.141 2.2.2.4.4. Case Study 4: ‘The Grand Theft from the Royal Library’ Between the late 1960’s and 1977–1978 a large number of valuable works from the collection of the Royal Library disappeared from its storage. Among the missing books were first editions from the 16th, 17th and 18th century, including works by the astronomers Tycho Brahe and Johan Kepler, the writers Thomas More and John Milton, the philosopher Immanuel Kant and no less than several hundred original prints by the reformer, Martin Luther. Further, a large number of atlases by among others the Dutchman Willem Blaeu dating from the 17th century were missing. In total the value of the missing works amounted to no less than DKK 150 mio. in today’s prices on the open market. For more than 25 years neither the Royal Library nor the Copenhagen Police had any clues in the case. However, on 11 September 2003 the Royal Library received a call from the auction house Christie’s in London, which had got possession of a number of extremely rare works including a Spanish novel dating from 1517 of which only two copies were known: one defective at the National Library in Madrid and one intact at the Royal Library in Copenhagen. The Danish Royal Library was able to prove that all the works unquestionably originated from the Royal Library and that they had been missing since the 1970s. As a result the Royal Library once again filed a report to the Copenhagen Police, which instigated an investigation into whether the Danish penal provision on receiving stolen property and the Cultural Assets Act had been breached. In the course of the investigation it became clear that during the years 1998–2001 more than 32 valuable works had been sold through Christie’s in London while 44 had been sold through Swann Galleries in New York. The theft turned out to have been committed by a now deceased research librarian at the Royal Library and the selling of the books to have been initiated by his family after his death. In the ensuing criminal trial which took place

140 141

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in 2003, four of the five defendants were found guilty of receiving stolen property, section 290 (2) of the Criminal Code. The stolen books that had remained in Denmark were soon returned to the Royal Library. As for the 76 books that had been exported, the Danish authorities investigated the possibility of restoring the loss. Application of EC Directive 93/7 as implemented by Act on Unlawfully Removed Cultural Objects to vindicate the stolen books from other EU Member States would involve paying full compensation to the purchasers of the books on basis of the estimated value in present day prices. The amount of this compensation would in case of dispute have to be settled by the national courts of the country involved. As the legal costs for vindicating the books were assessed to be significant, and as the experts of Royal Library found that the works were of significant cultural value, but all but one not of special Danish interest, the Danish authorities decided not to apply Directive 93/7 in order to make restitution of the stolen books. The same decision was made in relation to the stolen books exported outside the EU as these were considered even more difficult to vindicate.142 2.2.3. Regulation of Museums, Galleries and Other Institutions Danish law distinguishes between state-owned museums, state-subsidised museums and non-state owned museums.143 As regards the state-owned museums, including the principal museums, i.e., the National Museum of Denmark, the National Gallery of Denmark, the Danish Museum of Natural History, and the state-subsidised museums the primary regulation is the Museum Act and a number of executive orders issued under this Act.144 Non-state owned museums are not covered by the Museum Act. Further, the use of the designation as ‘museum’ does not necessitate any public authorization. Neither the state-owned, state-subsidised nor non-state owned museums are under any legal obligations, to return cultural property or heritage in their possession to the community that has the closest cultural link to such objects. State-owned museums, state-subsidised museums and private museums may be members of the Danish National Committee of ICOM and thus are bound by the code of ethics of the organization.145 As regards private art galleries and art dealers, the Danish legal system does not regulate the establishment or operation of such businesses. On the other hand, the establishment of auction houses is regulated by law as a trad142 Memorandum of 24 June 2005 on restitution of books stolen from the Royal Library, Ministry of Culture. 143 Chapters 1–6 of the Museum Act. 144 See section 1 of the Museum Act. 145 Supra.

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ing licence is required for auctioneers under Chapter 5 of the Act No. 185 of 25 March 1988 on Trade [Næringslov]. Further, according to Consolidated Act No. 191 of 9 April 1986 on Public Auction by Auctioneers [Lovbekendtgørelse om offentlig auction ved auktionsledere] the position of auctioneer is dependant on appointment by the Danish Ministry of Culture. However, there is no special regulation of the businesses in question as regards its responsibilities in relation to the safeguarding of cultural heritage. 3. Safeguarding the Archaeological Heritage Denmark is a small, flat and fertile country, and most regions have easy access to water. Through the ages the country has therefore been populated by generations of people, from the first hunters and gatherers to modern civilisation, all of whom have left various traces of their existence. This makes Denmark very rich in ancient sites and monuments, which are found all over the country: burial mounds, rock carvings, runic stones, road tracks, castle mounds, castle ruins, military fortifications, etc.146 Further, it makes Denmark rich in underground archaeological heritage which may surface as a result of construction, agricultural work or other activities. Pursuant to section 23 (1) of the Museum Act, the Minister of Culture and the state-owned and state-subsidised museums are to cooperate with the local authorities in order to ensure that significant cultural heritage is safeguarded for posterity. The Heritage Agency is the body with the overall regulatory responsibility for the supervision of ancient sites, monuments and relics.147 The main legal framework for the safeguarding of archaeological heritage is the Museum Act. However, in some cases protection of landscapes of cultural historic significance may also take place under the Act on Protection of the Natural Environment,148 which also comprises the provisions on the protective lines surrounding archaeological heritage such as ancient monuments.149 Section 27 of the Museum Act defines ‘archaeological heritage’ as including traces of human activity, which has been left in older times, i.e., structures, constructions, groups of buildings, developed sites, moveable objects, monuments as well as their context. The provision was included in the Museum Act in preparation for the Danish ratification of the European

146

Heritage Agency, ‘Sites and Monuments’, available at www.kulturav.dk. The Minister of Culture has delegated most of his authority under the Act to the Heritage Agency, see sections 10 and 11 of the Delegation Order. The Heritage Agency may enter into agreements with state-subsidised museums to the effect that they are to be in charge of the supervision on part of the Agency, cf. section 1 of the Supervision Order. 148 Chapter 6 of the Act on Protection of the Natural Environment, cf. section 1 of the Act. 149 See section 18 of the Act on Protection of the Natural Environment. 147

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Convention on the Protection of the Archaeological Heritage (Valetta (Malta), 16 January 1992).150 3.1. In Situ Protection of the Cultural Heritage Although the Museum Act does not so stipulate, it follows from tradition and practice that a site or monument must be at least 100 years old to be protected.151 The Museum Act sets out two schemes of in situ protection of ancient sites and monuments. First, pursuant to section 29 e (1) of the Museum Act certain ancient sites and monuments are protected ex lege if they are visible in the terrain. Thus these are automatically subject to permanent protection.152 The types of ancient sites and monuments included by this protection are listed in annex one to the Act.153 These include burial mounds, passage graves, and megalithic tombs. Under section 29 e (3) of the Museum Act other types of ancient sites and monuments may also be protected if the Heritage Agency so decides and informs the owner. These types of ancient sites and monuments are listed in annex two to the Act and they include prehistoric settlements and old roads. The legal effect of the protection under section 29 e of the Act is that the ancient site or monument may not be damaged or otherwise altered.154 The surrounding area is also protected to the effect that within a distance of 2 metres from the site or monument the soil may not be cultivated and metal detection may not take place.155 Further, it is prohibited to build, put up fences, park caravans or otherwise alter the condition of the area within 100 metres from a visible site or monument.156 In exceptional cases, the Heritage Agency may exempt an owner from the prohibition on altering protected sites and monuments.157 Contravention of section 29 e of the Museum Act is punishable by fine.158 3.2. Archaeological Heritage Covered With Earth Only a small part of the archaeological heritage is protected and must remain unchanged according to the rules accounted for above. Most ancient relics from Denmark’s past are ‘archaeological heritage’ that is buried underground, such as prehistoric settlements, graves and burial places, monuments,

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Preparatory work to the Museum Act, LFF2000-2001.1.152. O. Christiansen and V. Koester, op. cit. n. 1, at p. 518. 152 Approximately 30,000 of Denmark’s sites and monuments are subject to permanent protection under the Museum Act. 153 Section 29 e (2) of the Museum Act. 154 Section 29 e (1) of the Museum Act. 155 Section 29 f of the Museum Act. 156 Section 18 of the Act on Protection of the Natural Environment. 157 Section 29 j of the Museum Act. 158 Section 40 a of the Museum Act. 151

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chattels, production equipment and structures whose functions we do not know.159 The objective of the Museum Act is to preserve as much archaeological heritage as possible underground. This helps to secure valuable material for future archaeologists, enabling them to gain new knowledge about the past. All citizens have an obligation to notify their local museum or the Heritage Agency if they discover archaeological heritage.160 3.2.1. Treasure Trove and Fossil Trove According to section 30 of the Museum Act objects of the past, including coins found in Denmark, of which no one can be proven to be the rightful owner, shall be treasure trove [danefæ] if made of valuable material such as gold, silver and in some instances also other metals and organic materials, or being of a special cultural heritage value.161 Legislation on treasure trove dates back to Jyske Lov of 1241, but in 1989 a similar provision was introduced regarding natural objects. Pursuant to section 31 of the Museum Act a geological object or a botanical or zoological object of a fossil or subfossil nature or a meteorite found in Denmark is fossil trove [danekræ] if the object is of unique scientific or exhibitional value. Both treasure trove and fossil trove shall belong to the state and any person who gains possession of such an object is to deliver it immediately to the National Museum of Denmark in case of treasure trove or to the Danish Museum of Natural History in case of fossil trove.162 In most cases the handing-over of treasure trove and fossil trove entails legal claim to a reward.163 The finder may be granted a discretionary award. Treasure hunting is thus not a trade within the Danish jurisdiction. 3.2.2. Archaeological Heritage and Construction Work Before a building or construction project or a demolition is commenced, the local museum must be notified.164 At the request of the developer, the museum may screen the area for archaeological heritage.165 If significant finds are made, the developer may either pay for an archaeological investigation, or relocate the construction work so that the site is not touched. If the museum has not screened the area beforehand and archaeological heritage is discovered, the work must be suspended.166 The expenses for the required

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The Heritage Agency, ‘Archaeology’, available at www.kulturarv.dk. See sections 27 (2), 30 and 31 of the Museum Act. 161 A catalogue of Danish treasure trove is accessible at the web-site of the Danish National Museum (www.natmus.dk). 162 Sections 30 (2) and 31 (2) of the Museum Act. 163 Sections 30 (3) and 31 (3) of the Museum Act. 164 Sections 24 (1) and (2) of the Museum Act. 165 Section 25 (1) of the Museum Act. 166 Section 27 (2) of the Museum Act. 160

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examination of the archaeological heritage are in most cases to be borne by the developer.167 However, if archaeological heritage is discovered in connection with ordinary agricultural and forestry activities, the Heritage Agency covers the expenses of any archaeological investigation.168 The Heritage Agency may grant funding if a developer incurs exceptionally high expenses for archaeological investigations.169 Further, in special cases, the Danish state may opt to purchase a site or monument with a view to its permanent protection in the appropriate surroundings.170 In this situation the purchase may take the form of expropriation in accordance with the procedure concerning expropriation (with compensation) of real property.171 3.3. Submarine Archaeological Heritage Denmark comprises many islands of different sizes and it therefore has a long coastline, which makes it particularly rich in submarine cultural heritage. In the sea bed there are Stone Age settlements that were flooded when the sea rose in later times, shipwrecks that are proof of intensive navigation for thousands of years, and structures from old ports and sea fortifications.172 There is no general definition of the term ‘submarine’ or ‘underwater’ in Danish law. Two sets of rules apply for archaeological heritage located underwater: one for the archaeological heritage underwater within Danish jurisdiction and one for the archaeological heritage in the deep seabed area, i.e., outside Danish jurisdiction.173 3.3.1. Archaeological Heritage under Water Archaeological heritage such as ship wrecks, shiploads and parts of such located in creeks, lakes, in territorial waters or on the continental shelf within Danish jurisdiction is protected under section 28 of the Museum Act if it is more than 100 years old. In special cases, the Heritage Agency may decide that wrecks of aeroplanes and ships from, e.g., the First or Second World War are also to be protected by the Act although they have not yet reached that age.174 Disturbance or alteration of the protected submarine archaeological heritage is prohibited.175 Such objects are state property and anyone who becomes aware of them while diving, fishing, etc., must notify the Her-

167 168 169 170 171 172 173 174 175

Section 27 (4) of the Museum Act. Section 27 (5) of the Museum Act. Section 27 (6) of the Museum Act. Section 27 (8) of the Museum Act. Ibid. The Heritage Agency, ’Submarine Heritage’, available at www.kulturarv.dk. Preparatory work to the Museum Act, LFF2002–2003.1.172, at p. 4. Section 29 g (3) of the Museum Act. Section 29 g (1) of the Museum Act. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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itage Agency or the local museum and hand them over.176 As is the case with archaeological heritage on the ground, rules concerning archaeological investigations in relation to submarine construction work apply.177 3.3.2. Archaeological Heritage in the Deep Seabed Area Section 28 was added to the Museum Act in 2003 in order for Denmark to be able to ratify articles 149 and 303 of the UN’s Convention on the Law of the Sea (10 December 1982).178 The provision defines the deep sea bed as the seabed and the underground of the seabed which is outside the scope of national jurisdiction.179 Disturbance or alteration of archaeological heritage including ship wrecks, ship loads and parts of such which must be assumed to have been lost more than 100 years ago and which are encountered in the deep sea bed, is prohibited if it is owned by the Danish State or Danish nationals.180 In special cases, the Heritage Agency may decide that archaeological heritage which has been lost less than 100 years ago is also protected by the Act.181 Such submarine archaeological heritage belongs to the Danish State unless other states or private individuals are able to prove their propriety rights. If a finding is made by a Danish national or a ship registered in Denmark, the finding must be reported to the Heritage Agency and the object handed over to the Danish authorities.182 The 2001 Convention on the Protection of the Underwater Cultural Heritage has not been ratified by Denmark, and not been of any influence yet on Danish law. 3.4. Register of Archaeological Heritage In Denmark there is a long-standing tradition for registration of ancient sites and monuments. In 1873, the National Museum of Denmark launched a nationwide project to map burial mounds, megalithic tombs, runic stones and other archaeological sites.183 This mapping is the basis of the current national digital register which is kept by the Heritage Agency.184 The register holds information on all known ancient sites, monuments and archaeological

176 177 178 179 180 181 182 183 184

Section 28 (1), (2) and (5) of the Museum Act. Section 29 h of the Museum Act. Preparatory work to the Museum Act, LFF2002–2003.1.172, at p. 4. Section 28 a (2) of the Museum Act. Section 29 a (4) of the Museum Act. Section 29 a (6) of the Museum Act. Section 28 a (3) and (5) of the Museum Act. The Heritage Agency, ‘Register’, available at www.kulturarv.dk. The register can be accessed at www.dkconline.dk (in Danish only). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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finds, comprising more than 165,000 finding places, of which approximately 7,000 are shipwrecks and submarine Stone Age settlements.185 4. Safeguarding Cultural Heritage in the Event of an Armed Conflict The Danish legal system takes certain precautionary measures for the protection of both immovable and moveable cultural heritage in the event of an armed conflict involving Denmark. On 18 October 1954, Denmark signed the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention (The Hague, 14 May 1954) (hereafter, the 1954 Convention) and the First Protocol to the 1954 Convention (The Hague, 14 May 1954) (hereafter, the First Protocol to the 1954 Convention), but it was not until 26 March 2003 that Denmark finally ratified the Convention and its First Protocol. The Convention and its First Protocol came into force immediately upon ratification as Denmark was at the time of the ratification participating in the armed conflict in Iraq.186 The home rule governments of Greenland and the Faroe Islands have declared that the Danish ratification extends to Greenland and the Faroe Islands.187 Denmark has not yet ratified the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 26 March 1999), but the Ministry of Culture is currently evaluating the consequences of ratification on Danish law. 4.1. The Term ‘Armed Conflict’ The main part of the provisions in the 1954 Convention and in the First Protocol applies to situations of armed conflict. However, Danish law contains no definition of the term ‘armed conflict’, nor do any international legal instruments. In the case The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-A, 2 October 1995, at para. 70, the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of Former Yugoslavia held that ‘[. . .] an armed conflict exists whenever there is a resort to armed force between governmental authorities and organized armed groups or between such groups within a State [. . .]’. Presumably, Denmark will adhere to this

185

The Heritage Agency, ‘Register’, available at www.kulturarv.dk. See articles 18 and 35 of the 1954 Convention. 187 Letters of 18 September 1996 and 15 June 1999 from the Home Rule Governments of Greenland and the Faroe Islands. 186

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definition which expresses the prevailing legal opinion on the definition of the term under International Humanitarian Law. 4.2. Safeguarding and Respecting Cultural Property during an Armed Conflict Pursuant to article 1 of the 1954 Convention, the Convention applies to cultural property of both moveable and immovable character. In a memorandum prepared by the Ministry of Culture in connection with the ratification it was emphasised that the ratification of the Convention did not call for any amendments to Danish law.188 As regards time of peace, the 1954 Convention obligates Denmark, i.a., to prepare before the outbreak of an armed conflict for the safeguarding of cultural property situated within its own territory against the foreseeable effects of an armed conflict.189 According to the Ministry of Culture, this obligation is fulfilled by the Ministry of Culture’s establishment of a Committee for the Administration of Shelters for Cultural Assets.190 Further, Section 24 of Act No. 137 of 1 March 2004 on Contingency Planning [Beredskabsloven] obligates all Danish ministries to prepare and make arrangements for the carrying out of civil contingency plans within their area. Further, Denmark is obligated to safeguard and respect cultural property both within its own territory and within the territory of another state party in the event of armed conflict191 and to take all necessary steps within the ordinary criminal jurisdiction to prosecute and impose penal or disciplinary sanctions upon persons, of whatever nationality, who commit or order to be committed a breach of the Convention.192 The Convention does not describe which situations constitute a breach of the Convention. As regards prosecution and sanctions, Act No. 530 of 24 June 2005 on the Military Criminal Code [Militær Straffelov] (hereafter, Military Criminal Code) provides legal basis for prosecuting military personnel for breaches of the Convention.193 Pursuant to section 6, no. 3 of the aforementioned Code, it also applies to civilians in times of war. In the case that a situation is not covered by the Military Criminal Code, it must be considered to fall under the general

188 Memorandum of 27 November 2007 on the ratification of the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention (The Hague, 14 May 1954), Ministry of Culture, (hereafter, Memorandum on the 1954 Convention), at p. 2. 189 Article 3 of the 1954 Convention. See further article 7 of the Convention. 190 Memorandum on the 1954 Convention, at p. 9. However, on grounds of national security the Ministry of Culture cannot provide information as to whether such a committee has or has not been established. 191 Mainly articles 4 and 9 of the 1954 Convention. 192 Article 28 of the 1954 Convention. 193 Memorandum on the 1954 Convention, at p. 13.

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provisions of the Criminal Code on theft, malicious damage etc.194 The question of jurisdiction to prosecute falls under the general provisions of the Criminal Code.195 The Ministry of Culture is currently preparing the establishment of an advisory committee of representatives from the pertinent authorities and organs, which is to supervise the implementation of and compliance with the 1954 Convention and the First Protocol. 4.3. Export of Cultural Property during an Armed Conflict As the 1954 Convention, the First Protocol applies to both immoveable and moveable cultural heritage.196 When preparing the ratification of the Protocol it was the assessment of the Ministry of Culture that ratification of the Protocol did not call for any amendments to Danish law.197 One of the main obligations under the First Protocol is for Denmark to prevent export of cultural property from a territory occupied by it during an armed conflict.198 Further, Denmark undertakes to take into custody cultural property imported into its territory from any occupied territory199 and to return such cultural property on its territory if it has been exported in contravention of the First Protocol.200 However, the Ministry of Culture has expressed the opinion that the First Protocol only applies when a state party occupies another state party by way of armed force.201 On this basis the Ministry of Culture does not consider the Protocol to apply to those situations in which Denmark as a participant in UN missions or as part of a peace peace-keeping force carries out military operations within the meaning of the Protocol.202 This limits the scope of application of the First Protocol in a Danish context considerably. During the Danish military involvement in Iraq the Minister of Culture enjoined on the relevant authorities to be especially vigilant with regard to cultural objects illicitly exported from Iraq. The Heritage Agency established a 24-hour stand-by arrangement to respond in case of suspicion that an object is illegally imported from Iraq. Further, an e-mail service was set up to allow citizens to make inquiries about suspicious cultural objects.203

194 195 196 197 198 199 200 201 202 203

Ibid. See sections 276 and 291 of the Criminal Code. Ibid. See sections 6–9 of the Criminal Code. Section 1 of the First Protocol; cf. Section 1 of the 1954 Convention. Memorandum on the 1954 Convention, at p. 14. Section 1 of the First Protocol. Section 2 of the First Protocol. Section 3 of the First Protocol. Memorandum on the 1954 Convention, at p. 14. Ibid. The Danish Heritage Agency’s Newsletter, April 2003. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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5. Protection and Preservation of the Danish Intangible Cultural Heritage 5.1. Safeguarding the Intangible Cultural Heritage of Denmark While Denmark has—as will be evident from the account above—an integrated legal tradition for the safeguarding of the tangible cultural heritage, there is no tradition in the Danish legal system, for regulating the safeguarding of the Danish intangible cultural heritage. There is no Danish legislation on the matter and Denmark has not presently ratified the Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 17 October 2003) nor taken any such steps. The Ministry of Culture is currently following the work of the Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, but there are no immediate plans for Denmark to become a party to the 2003 Convention. In December 2006, the Research Committee of the Ministry of Culture held a conference on the concept of intangible cultural heritage, which resulted in a report discussing the merits of the concept of intangible cultural heritage and the effect of a ratification of the Convention.204 The Committee largely remained critical of the Convention in a Danish context.205 If, however, Demark was to ratify the Convention, it is most likely that this would be only as a token of Danish solidarity with other countries, which have issues as regards the safeguarding of their intangible cultural heritage, and that it would not entail any implementation of new Danish legislation. The Danish Ministry of Culture seems to be of the opinion that Danish intangible cultural heritage is best protected institutionally and not through specific legislation. As regards Greenland and the Faroe Islands, the safeguarding of intangible cultural heritage is a matter under home rule. Though not legally regulated as such, the intangible cultural heritage of Denmark is not left in a void. It is mainly safeguarded by state institutions set up to document and describe various aspects of the Danish intangible cultural heritage. Further, it is safeguarded through the research and education taking place at the departments of anthropology, ethnology and folkloristic studies at the Danish universities.

204 Report fra Kulturministeriets Forskningsudvalg om begrebet immateriel kulturarv, Kulturministeriet [Report by the Research Committee of the Ministry of Culture on the Concept of Intangible Cultural Heritage], May 2006. 205 Ibid. at pp. 7–14.

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5.1.1. Central Institutions 5.1.1.1. The Danish Folklore Archives The Danish Folklore Archives is a state research institution founded in 1904 and functioning under the Ministry of Culture.206 It functions both as a national archive and as a research institution and is covered by Act No. 224 of 24 March 1996 on Research at Archives, Libraries and Museums etc. [Lov om forskning ved arkiver, biblioteker og museer].207 It is the mission of the Danish Folklore Archives to ‘[…] promote exploration into and documentation of the intangible culture of every day life from the renaissance to the present.’208 The extensive archive preserves and documents ordinary people’s views on life, traditions, memories, myths, histories, songs and music for posterity and it now contains several hundred years of documentation of the people and society which are the root of present day Denmark. Further, The Danish Folklore Archives carries our research concerning all groups of society. 5.1.1.2. The Danish Language Council The Danish Language Council is a Danish research institution founded in 1955 and functioning under the Ministry of Culture.209 Pursuant to section 1 (1) of Act No. 320 of 14 May 1997 on The Danish Language Council [Lov om Dansk Sprognævn] one of the main duties of The Danish Language Council is to supervise the evolution of the Danish language including the collection of new words, connections of words and uses of words. Further, in the carrying out of its tasks The Danish Language Council is obliged to consider ‘[. . .] the function of the language as bearer of tradition and cultural continuity and as a mirror of contemporary society’s culture and social conditions.’ 5.2. Misappropriation of Traditions Due to the character of the Danish cultural history and the Danish demography legal questions concerning the misappropriation of traditions are not relevant in Danish law. The basic regulation in this is the legislation on intellectual property rights and marketing. Thus, the Danish legal system does not provide a special framework for the protection of traditional knowledge 206 P.O. Christiansen, ‘En kulturinstitutions plads i samfundet’ [The Danish Folklore Archives: The Position in Society of a Cultural Institution] 4 Fortid og Nutid (2004) pp. 21–41, at p. 21. The Danish Folklore Archives may be visited on the web-site www.dafors.dk. 207 Section 1 of the Executive Order No. 586 on Institutions comprised by the Act on Research at Archives, Libraries and Museums etc. [Bekendtgørelse om institutioner omfattet af lov om forskning ved arkiver, biblioteker, museer m.v.]. 208 Agreement between the Danish Folklore Archives and the Ministry of Culture 2004— 2007, available at www.dafors.dk/media/resultatkontrakt.pdf. 209 The Danish language Council may be visited at the web-site www.dsn.dk.

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or traditional cultural expressions against their misappropriation for commercial purposes. It does not grant or recognize any proprietary rights to communities or their members over traditional knowledge or traditional cultural expressions. Further, the Danish legal system does not provide any regulations or codes of conduct relating to recording, collecting, archiving or commercially exploiting traditional cultural expressions, nor is there any protection of sensitive traditional cultural expressions against their abuse or commercial use by non-members of affected communities. 6. Conclusion As will be evident from the account given above, Danish cultural heritage legislation has traditionally focused on the safeguarding of tangible cultural heritage. The protection and preservation of the archaeological heritage, historic buildings and churches has a long history as an object for legislation and administrative decisions. Further, there is a long tradition of safeguarding the intangible cultural heritage; however, the protective measures relating to intangible cultural heritage are of an institutional character rather than being specific legal regulation. As for recent trends and developments in Danish cultural heritage legislation three topics may be pointed out. First, there is a trend of Danish ratification of international conventions in a number of areas relating to the safeguarding of cultural heritage. In later years, Denmark has ratified a vast number of international conventions, and the ratification of the 1995 UNIDROIT Convention seems to be well on its way. One area in which an expansion of the Danish international obligations is uncertain, however, is the intangible cultural heritage and Danish ratification of the 2003 Convention does not seem likely in the near future. Second, another development in Danish cultural heritage legislation is the trend towards a more integrated approach to preservation and protection. The concepts of ‘cultural environment’ and ‘urban environment’ in relation to cultural heritage are manifestations of a more comprehensive conception of built environments, whose most interesting elements may be the bulk of more common buildings, the street pattern or the interaction between buildings and landscape. This development is also influenced by international conventions. Third, one might point to the trend towards digitalisation of the cultural heritage, which involves both online access to certain kinds of cultural heritage and digital preservation. Digitalisation of certain parts of the cultural heritage with a view to preservation, dissemination and accessibility is presently a focus area for the Ministry of Culture, which in 2006 established a working group on the matter. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

FRANCE Marie Cornu* 1. General Issues .......................................................................................... 1.1. Cultural Heritage Law Sources—General Issues ....................... 1.2. Cultural Heritage Modes of Categorization with Regard to the Classical Criteria .............................................................................. 1.2.1. Cultural Heritage Forms: Tangible, Intangible ............... 1.2.2. The Geo-political Circumstances: Peace or Wartime .... 1.2.3. Cultural Heritage Location: On Land or Underwater ... 1.2.4. Status of Cultural Heritage’s Possession: Legal or Illegal ...................................................................................... 1.3. The Community-oriented Integrated Approach Combining Intangible and Tangible Cultural Heritage ................................. 1.3.1. Collective Rights Not Taken into Account ..................... 1.3.2. Evidence of Interest in Collective Rights ......................... 1.3.2.1. Agreements and Political Declarations .............. 1.3.2.2. A Local Initiative, the Maori Head and Rouen Museum Case ............................................ 1.3.2.3. Museums Facing Indigenous Claims ................. 1.3.2.4. Concern for Collective Rights within Territorial Policies ..................................................................... 1.4. Modes of Conceptualizing the Different Categories of Cultural Heritage in French Law ................................................................. 1.4.1. The Generic Concept of Cultural Heritage ..................... 1.4.2. Precisions Regarding the Distinguishing Criterion of Historic and Artistic Interest ............................................. 1.4.2.1. The Criterion’s Evolution, its Widening to New Kinds of Cultural Heritage ................................... 1.4.2.2. The Universal Approach of Cultural Heritage ... 1.4.2.3. Impact of Decentralization on the Assessment of the Interest in Historic Monuments and Art ... 1.4.3. Lack of Synthetic Concept of Cultural Property— Dispersal of Categories ....................................................... 2. Tangible Cultural Heritage ....................................................................

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2.1. Protection Regimes Applicable to Immovable Cultural Heritage ............................................................................................. 2.1.1. Main Conservation Easements Provided in the Code of Cultural Heritage and their Effect on the Owner’s Rights ..................................................................................... 2.1.1.1. Protection as Historic Monuments .................... 2.1.1.1.1. Classification as a Historic Monument ............................................ 2.1.1.1.2. Registration as a Historic Monument ............................................ 2.1.1.1.3. Easements on Immovables Located within the Vision Field of Classified or Registered Historic Monuments ... 2.1.1.2. Protection as Natural Monuments and Sites .... 2.1.1.3. Protection of Landscapes ..................................... 2.1.1.4. Coastal Protection ................................................. 2.1.1.5. Protection of Natural Parks ................................. 2.1.1.5.1. National Parks ...................................... 2.1.1.5.2. Regional Parks ...................................... 2.1.1.5.3. Natural Marine Parks .......................... 2.1.1.6. Protection as Safeguarded Sectors (“secteurs sauveguardes”) ........................................................ 2.1.1.7. Protection Zones for Architectural, Urban and Landscape Heritage Sites (ZPPAUP) ................. 2.1.2. Other Property Rights Restrictions ................................... 2.1.3. Balance of Interests between Property Rights ................. 2.1.3.1. Constitutional Value of Property Rights— Overview—Limits .................................................. 2.1.3.2. Compensation to the Owner ............................... 2.1.3.2.1. Conservation Easements and Compensation to the Owner ............. 2.1.3.2.2. Takings of Property and Compensation to the Owner ............. 2.2. Protection Regimes Applicable to Movable Cultural Heritage ... 2.2.1. Public Property as the Major Mode of Protection for Movable Cultural Heritage ................................................. 2.2.1.1. Importance of the Movable Public Domain Concept for the Protection of Cultural Heritage 2.2.1.2. Facilitated Modes of Enriching Public Cultural Heritage ................................................................... 2.2.1.2.1. The Authoritarian Modes ................... 2.2.1.2.1.1. Taking of Property ..........

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2.2.1.2.1.2. Pre-emption Right at Public Auctions ............... 2.2.1.2.2. Voluntary Modes ................................. 2.2.2. Administrative Servitudes—Generalities ......................... 2.2.2.1. Protection Modes Applicable to Movables and Immovables ............................................................. 2.2.2.1.1. Protection as a Historic Monument .... 2.2.2.1.2. “Musées de France” ............................. 2.2.2.2. Protections Specific to Movable Property ......... 2.2.3. Legal Framework for the Protection of Movable Cultural Heritage ................................................................................. 2.2.3.1. Protection as Historic Monuments .................... 2.2.3.1.1. Main Common Provisions Regarding the Classification of Movables and Immovables as Historic Monuments ........................................... 2.2.3.1.2. Main Differences and Specificities Regarding Classification as Historic Monuments ........................................... 2.2.3.1.3. Registration as Historic Monuments ........................................... 2.2.3.2. Status of the “Musées de France” Collections .... 2.2.3.2.1. Main Provisions Applicable to Private and Public Collections ........................ 2.2.3.2.2. Main Specific Provisions Applicable to Private Collections ............................... 2.2.3.2.3. Main Specific Provisions Applicable to Public Collections ........................... 2.2.3.2.3.1. Possible Transfers of Cultural Property Belonging to the Public Domain ............................. 2.2.3.2.3.2. Additional Guarantees ... 2.2.3.3. Status of Archaeological Resources On Land ... 2.2.3.3.1. Excavation Controls ............................ 2.2.3.3.2. Study and Ownership of Archaeological Resources ................... 2.2.3.3.2.1. Preventive Excavations ... 2.2.3.3.2.2. Excavations Authorized by the State ......................

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2.2.3.4. 2.2.3.5.

2.2.3.6.

2.2.4.1.

2.2.4.2. 2.2.4.3.

2.2.4.4.

2.2.3.3.2.3. Excavations Carried Out by the State ...................... 2.2.3.3.2.4. Fortuitous Finds .............. Status of Underwater Cultural Property ............ The Status of Archives .......................................... 2.2.3.5.1. Public Archives .................................... 2.2.3.5.2. Private Archives ................................... Balance of Interests Between Ownership and the Need for Heritage Protection .............................. 2.2.3.6.1. Compensation as a Result of Classification Easement as a Historic Monument ............................................ 2.2.3.6.2. Price Determination Regarding Purchase Offers of Cultural Property Immobilized on the State Territory under Article L 121–1 of the Code of Cultural Heritage ............................ 2.2.3.6.3. Implementation of the Pre-emption Right Regarding Export Controls ..... Civil Law Rules Applicable to Transactions ..... 2.2.4.1.1. General Law Rules ............................... 2.2.4.1.2. Isolation of Prescription Rules .......... 2.2.4.1.3. The Compensation Issue .................... Private International Law and the Ownership of Works of Art .......................................................... Criminal Law .......................................................... 2.2.4.3.1. General Law .......................................... 2.2.4.3.2. Rules Specifically Applicable to Cultural Property ................................. 2.2.4.3.2.1. Criminal Law ................... 2.2.4.3.2.2. In the Code of Cultural Heritage ............................ 2.2.4.3.3. Draft of Specific Incriminations ........ Export Controls ..................................................... 2.2.4.4.1. European Union Law .......................... 2.2.4.4.1.1. The Exception of National Treasures .......................... 2.2.4.4.1.2. Movement of Cultural Property ............................ 2.2.4.4.2. Export Controls in French Law ........ 2.2.4.4.2.1. National Treasures ..........

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2.2.4.4.2.2. Cultural Property Subject to a Certificate ................. 2.2.4.4.2.3. Cultural Property Subject to No Export Control ..... 2.3. French Law and the International Legal Tools in the Fight against Illicit Trafficking ................................................................ 2.3.1. The Absence of Modification of Domestic Law ............. 2.3.2. Reinforcement of the Penal Arsenal ................................. 2.3.3. Precedents and the 1970 Convention ............................... 3. Intangible Cultural Heritage .................................................................. 4. Beyond Preservation ............................................................................... 4.1 Broadcasting Quotas ....................................................................... 4.2. Support to the Film Industry ........................................................ 5. Miscellaneous ............................................................................................ 6. Annexe .......................................................................................................

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1. General Issues 1.1. Cultural Heritage Law Sources—General Issues There is no explicit reference to cultural heritage protection in the French Constitution. Only equal access to culture is asserted in the preamble of the 1946 Constitution. This can be linked to one of the most important functions of cultural protection policies: the disposal of works of art and of elements of our heritage. One of the functions of the right to heritage is access, notably designed for the public community to make the elements of the heritage accessible to the public. Therefore, one can say that the mentioning of a right to culture in the constitution refers in a certain way to this access function. However, this reference has no real legal impact. A user would not be able to claim a right of access to heritage based on the constitution. The main cultural heritage law pertinent sources are statutes or regulations. Most of the important statutes have been codified. The Code of Cultural Heritage was adopted in 2004 and only codified statutes. Regulations, which are a substantial part of cultural heritage law, should be added shortly. The Code is divided into 6 Books each dedicated respectively to: the common provisions to all the elements composing cultural heritage (Book I), archives (Book II), libraries (Book III), “Musées de France” (Book IV—label granted under specific conditions), archaeology (Book V), historic monuments/buildings and sites (Book VI). The French title is: Code du patrimoine [Code of Cultural Heritage], and it was adopted in 2004. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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In the former system, there existed numerous texts on the protection of cultural property, notably: – the law of 31 December 19131 on historic monuments, which established a system of classification and registration of immovable and movable heritage; – the law of 31 December 19212 (for the exercise of the right of pre-emption of art objects in public auctions); – the law of 27 September 19413 on the regulation of archaeological excavations; – the law of 3 January 19794 on archives. – the law of 1 December 19895 on maritime cultural property; – the law of 20 January 19926 on legal deposit; – the law of 31 December 19927 on products subject to certain restrictions of circulation and to the complementarity between police services, gendarmerie services and the customs; The Code of Cultural Heritage today groups together the whole body of regulations. Today it only assembles the legislative regulations and should shortly integrate the statutory texts. There are very few national deontological sources. French law is mostly inspired by international codes (ICOM Code of ethics for museums and International code of archives). Nevertheless, a deeper interest is taken by the Ministry of Culture into deontological sources even though they are still

1 Revised law of 31 December 1913 on historic monuments [French: Loi du 31 décembre 1913 relative aux monuments historiques modifiée]. 2 Law of 31 December 1921 (for the exercise of the right of pre-emption), general budget of 1922 [French: Loi du 31 décembre 1921 (pour l’exercice du droit de preemption), budget general de 1922], JO of 1 January 1922, p. 2. 3 Revised law of 27 December 1941 on the regulation of archaeological excavations [French: Loi du 27 septembre 1941 portant réglementation des fouilles archéologiques modifiée]. 4 Law no. 79–18 of 3 January 1979 on archives [French: Loi n° 79–18 du 3 janvier 1979 sur les archives], JO of 5 January 1979, p. 43. 5 Law of 1 December 1989 on maritime cultural goods [French: Loi du 1er décembre 1989 relative aux biens culturels maritimes], OJ of 5 December 1989, p. 15033. 6 Law of 20 January 1992 on legal deposit, law no. 92–546 [French: Loi du 20 janvier 1992 relative au dépôt légal, loi n° 92–546], JO of 23 June 1992, p. 8167. 7 Law no. 92–1477 of 31 December 1992 on products subject to certain restrictions of circulation and to the complementarity between police services, gendarmerie services and the customs [French: Loi n° 92–1477 du 31 décembre 1992 relative aux produits soumis à certaines restrictions de circulation et à la complémentarité entre les services de police, de gendarmerie et de douane], JO of 5 January 1993, p. 198. Amended by law no. 94–679 of 8 August 1994, JO of 10 August 1994, p. 11668; by law no. 2000–643 of 10 July 2000 on the protection of national treasures [French: Loi n° 2000–643 du 10 juillet 2000 relative à la protection des trésors nationaux], JO of 11 July 2000, p. 10481; and by law no. 2002–5 of 4 January 2002 on the museums of France [French: Loi n° 2002–5 du 4 janvier 2002 relative aux musées de France], JO of 5 January 2002, p. 305.

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a subsidiary source of the law. This is attested by the adoption in 2007 of a charter on the curator’s deontological obligations, especially within the museum sphere. This charter was enacted as a “circulaire” which is a non binding legal document. 1.2. Cultural Heritage Modes of Categorization with Regard to the Classical Criteria French law takes into account most of the above-mentioned methods of categorization, yet in slightly different ways. 1.2.1. Cultural Heritage Forms: Tangible, Intangible Even though France has ratified the 2003 Convention for the Safeguarding of the intangible cultural heritage, the concept of intangible heritage is not really explicitly mentioned by our legal texts. There is a reflection on this issue within the Ministry of Culture (see below on the protection of intangible heritage). From this perspective, our new Code of Cultural Heritage (Code du patrimoine), adopted in 2004, gives a definition of cultural heritage which refers first and foremost to tangible heritage (for an analysis of this definition see below on the methods of conceptualizing cultural heritage). It is interesting to note that concern for intangible cultural heritage is conveyed by the 2007 charter dealing with the curator’s deontological obligations. Indeed, one of its developments is entitled “Safeguarding Intangible Cultural Heritage”. Regarding intangible cultural heritage, curators usually refer to the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions signed the 20 of October 2005 and ratified by France on the 18th of December 2006. “The acquisition, production and diffusion of oral collections requires precautions which consist in respecting the witness, his voice and his image and also sometimes his authorization”. Article 12 of the Convention for the Safeguarding of the Intangible Cultural Heritage imposes the development of inventories, which is the first basic function in the search for protection, on its State Parties. Therefore, the Mission Ethnology [French: mission ethnologie] of the Ministry of Culture started to draw up two types of inventories. The first one, which started in 2007, is an inventory of existing inventories, while the second one, which has been running since 2008, “closer to the spirit of the Convention, aims at drawing up a list of living practices in collaboration with the communities, groups and individuals” (See S. Grenet Mission ethnologie, Les inventaires en France, Dossier). The main part of the French plan of action is focusing on this task of drawing up inventories.

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1.2.2. The Geo-political Circumstances: Peace or Wartime France has ratified the 1954 Hague Convention but there is no specific national text which makes a distinction between the status of cultural property during peace or wartime. The legal notion “armed conflict” is not specified in French law. Neither is the notion “war” which can be defined as: «armed conflict between two or more states, in which each (. . .) is trying to impose on its adversary or its adversaries its will by force» G. Cornu, Vocabulaire juridique [Legal vocabulary], PUF, coll. Quadrige, 2007. 1.2.3. Cultural Heritage Location: On Land or Underwater The law of archaeology distinguishes terrestrial archaeology from maritime archaeology. The statute providing regulations for excavations on land and for the status of terrestrial archaeological resources has been codified under Book V of the Code of Cultural Heritage (Code du patrimoine). It considers programmed excavations, preventive archaeology and fortuitous finds. The statute on underwater cultural property is more recent (the first statute was adopted in 1989) and is also codified under Book V, but under a different chapter. Some of its provisions are inspired by the oldest provisions on terrestrial archaeology (for instance the requirement of excavation permits, and takings of property which is of interest for collection on behalf of public utility). Moreover, there are common criminal provisions regarding terrestrial and underwater archaeology. 1.2.4. Status of Cultural Heritage’s Possession: Legal or Illegal The issue is governed by the “droit commun” (equivalent to default rules for contract law; hereinafter referred as “general law”), i.e. civil and public law, and cultural heritage law. Regarding general law, some provisions deal with possession. Civil law distinguishes the rules applicable to movables and immovables. As for movables, French law favors the good faith possessor (Article 2276 of the Civil code). The good faith possessor is presumed to be the owner if he acted in good faith at the time he became possessor (meaning if he believes he holds the property from the rightful owner). Public law must also be taken into account as specific rules apply to property which is part of the public domain and is as such declared imprescriptible. Finally, cultural heritage law concedes imprescriptibility to several categories of protected property (see below on this issue).

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1.3. The Community-oriented Integrated Approach Combining Intangible and Tangible Cultural Heritage 1.3.1. Collective Rights Not Taken into Account Generally, our system is hostile to community-oriented approaches, given its conception of the State in general and more precisely its role in regard to the preservation of cultural heritage. There is thus, as a principle, no cultural property rights granted to communities or groups. This reluctance was expressed on several occasions, for instance during the debates on the European Charter for Regional or Minority Languages, which recognizes an imprescriptible right in the use and practice of these languages. The position of the Conseil Constitionnel on the negation of any collective rights has been made very clear in a decision which affirmed: “Considering that on one hand, as proclaimed by Article 1 of the Constitution: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs; considering that the principle of the unicity of the French people, which no section shall arrogate to itself, or to himself, the exercise of national sovereignty, which also has a constitutional value; considering that the fundamental principles (of the French Republic) are opposed to the recognition of collective rights in any group defined by community of origin, culture, language or belief.” 1.3.2. Evidence of Interest in Collective Rights There is an emerging interest in the indigenous people and collective rights issue, as revealed in politics, whether at the State level or at the level of the local authorities/ collectivities. The latter are becoming more committed to cultural heritage policies. Several museums are also confronted with indigenous claims asking for the restitution of human remains or sacred cult or ritual objects 1.3.2.1. Agreements and Political Declarations There are some significant political events on this issue even though no legal action has followed. There have been no returns as a result of these events. On the one hand, the Noumea agreement signed in 1998 between France and New Caledonia provides some dispositions on cultural heritage. Its preamble refers to the colonisation of New Caledonia and to the denial of the Kanak identity. The parties agree to set a new basis for the relationships with the indigenous populations: “The full recognition of the Kanak identity requires the customary law status and its links with the civil law status of persons governed by ordinary law to be defined, and provision to be made for the place of customary bodies in the institutions, particularly through the Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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establishment of a Customary Senate; it requires the Kanak cultural heritage to be protected and enhanced and new legal and financial mechanisms to be introduced in response to representations based on the link with land, while facilitating land development, and identity symbols conveying the essential place of the Kanak identity in the accepted common destiny to be adopted. The institutions of New Caledonia will reflect further progress towards sovereignty: some Congress Resolutions will be deemed to be laws and an elected Executive will prepare and implement them.” A certain number of articles relate to the cultural issue not only regarding the exercised competences but also regarding possible restitutions. Noumea agreement excerpts: 1.3. Cultural Heritage 1.3.1. Place names Kanak place names will be compiled and reinstated. Sites that are sacred in the Kanak tradition will be identified and legally protected, in accordance with the rules applying to historic monuments. 1.3.2. Cultural material The State will facilitate the return to New Caledonia of Kanak cultural material located in museums and collections in metropolitan France or other countries. The legal means at the State’s disposal for the protection of the national heritage will be brought into play for this purpose. Agreements will be drawn up with the relevant institutions for the return of these items or their use in positive ways. 1.3.3. Languages The Kanak languages, together with French, are languages of education and culture in New Caledonia. Their place in the school curriculum and in the media should therefore be increased and extensive consideration should be given to how to achieve this. Scientific research and university courses on Kanak languages should be organized in New Caledonia. The Institut national des langues et civilisations orientales (Institute for Oriental Languages and Civilizations) will play a pivotal role in this regard. For these languages to gain their rightful place in primary and secondary schooling, a substantial effort will be put into training of trainers. An Academy of Kanak Languages will be set up as a local institution whose Board of Governors will consist of speakers of Kanak languages, appointed by agreement with the customary authorities. The Academy will set rules for usage and development of the Kanak languages. 1.3.4. Cultural development Kanak culture must be developed and enhanced through artistic training courses and in the media. Copyright must be effectively protected. 1.3.5. Tjibaou Cultural Centre The State undertakes to provide, on a long-term basis, the technical assistance and funds required for the Tjibaou Cultural Centre to be able to fully play its part as a centre for outreach by Kanak culture. On all these matters pertaining to the cultural heritage, the State will propose that a specific agreement be entered into with New Caledonia.

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1.4. Land Every Kanak’s identity is defined primarily with reference to an area of land. The task and operations of the Agence de développement rural et d’aménagement foncier—A.D.R.A.F. (Rural Development and Land Management Board) will have to be thoroughly reassessed. It will require sufficient resources for taking action in suburban areas. Measures accompanying land grants will need to be strengthened so as to facilitate the beneficiaries’ establishment and development of the land. Customary Land must be surveyed and registered so that customary rights over any piece of land can be clearly identified. New legal and financial instruments will be introduced to promote development on Customary Land, whose status must not act as an obstacle to economic development. Land reform will be continued. Customary Land will consist of Reserve Land, the land assigned to groupements de droit particulier local—G.D.P.L. (groups governed by special local law provisions) and the land that will be assigned by A.D.R.A.F. in response to representations based on the link to land. Thus, all land will henceforth be either Customary Land or land held under ordinary civil law. Lease arrangements specifying relations between the customary owner and the developer of custom land will be defined by the Congress, in consultation with the Customary Senate. Any disputes will be dealt with by the ordinary law courts, with the assistance of customary assessors. A survey of State land and land held by the Territory will be undertaken with a view of assigning these land areas to other local government entities or to customary owners or private owners, either in order to restore land rights or to enable developments of common interest to be carried out. The issue of the maritime zone will be considered in a similar spirit. 1.5. The Symbols The country’s identity signs—name, flag, anthem, currency, design of bank notes—will need to be devised in common to express both the Kanak identity and the future in which all will share. The Constitution Act on New Caledonia will provide for the possibility of changing this name by means of a “law of the country” adopted with a qualified majority (see below). The country’s name may be printed on identity papers as a sign of citizenship.

As for now, to our knowledge, there has been no claim of restitution based on this text. The process of autonomy engaged should further be appreciated as it is not yet being applied. The Noumea agreement has set “for twenty years the political organization of New Caledonia and the modalities of its emancipation”. On the other hand, France has recently voted for the recent Declaration on the Rights of Indigenous Peoples as adopted by the United Nations General Assembly on 14 September 2007. 1.3.2.2. A Local Initiative, the Maori Head and Rouen Museum Case Recently, the mayor of Rouen decided to arrange the restitution of a Maori head which had entered the collections of the local museum as a result of a Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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donation. The Maori head has not been returned since it was in contradiction with French law. The Ministry of Culture was opposed to this restitution and challenged this decision. The administrative court of Rouen suspended the town council’s decision to return the head to the Te Papa museum. The court’s ruling was based on a procedural issue. In this case, the Rouen Museum had received the “Musée de France” label. According to the law, “Musée de France” collections are part of the public domain and are, as a consequence, “inalienable”, meaning that, as a rule, in order for a procedure of return to be undertaken, these objects must be “déclassés” (declassified) that is to say they must be withdrawn (disqualified) from the public domain. It is, however, necessary to specify that this rule of withdrawal is not possible anymore since the law of 2002 for two categories of property that are considered as “unwithdrawable”. These two categories are donated and bequeathed property, and property of territorial collectivities that have been acquired with the help of public financing. In this particular case the Maori head was donated to the Rouen Museum by a collector in the end of the 19th century, which is a circumstance of acquisition that excludes any possibility of removal from the public domain. This judgment has been confirmed by the Administrative Court of Appeal of Douai on 24 July 2008, AJDA, 13 October 2008, no. 34, p. 1896, conclusions of Jacques Lepers, Government Delegate. The municipality intended to follow an ethical approach, stating in its decision that “this head is also sacred in the eyes of Maori tribes: it shall return to his land of origin and shall receive a burial consistent with ancestral rites.” A symbolic ceremony attended by dignitaries and by the Maori Ambassador of New Zealand was scheduled. For the Senate, this approach had received the support of the interparliamentary group of friendship between France and New Zealand. A press release was issued and stated that it “fully agreed on the merits with the approach of the Rouen Museum” and hoped that this problem would result in “a rapid solution in accordance with the humanistic values of France”. A bill brought by the deputy mayor of Rouen, was announced regarding the return of human remains. It can be argued that these claims are subject to a more favourable echo in the presence of mortal remains, as it regards the law of respect for the dead and the principle of dignity. The hypothesis of restitution would certainly not have been welcome if it dealt, for instance, with a cultural museum object. France had already experienced a precedent with a law passed in 2001 authorizing the return of the mortal remains of a person from the Hottentot community (South Africa). The body was part of “Museum” collections and was claimed by the South African State. This case has raised much debate and was subject to very strong reservations, particularly by museum curators, very committed to the rule of inalienability and worried that this disqualification might create a precedent. That is one of the reasons why a law was adopted. An administrative decision to disqualify the remains from the Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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public domain would have allowed the restitution. But given the context and the difficulty for the administration to take this position, legislation was privileged. The statute includes a unique article: “As from the date of entry into force of this Act, the remains of the person known as Saartjie Baartman cease to be part of the collections of the public institution National Museum of Natural History. The administrative authority has, from the same date, two months to return it to the Republic of South Africa.” Even if the primary issue is the principle of dignity and the specific status of human remains, they are mingled with memorial reasons. The introduction of the report of the National Assembly by Jean Le Garrec shows how the two registers are closely associated. “Since several years ago, South Africa wishes to obtain the repatriation of the remains of Saartjie Baartman so that she can receive the honors of her people. France has no reason to be opposed to this restitution, which is in reality of great symbolic and political force for South Africa as for our country. Saartjie Baartman has lived an unworthy life and her death was indecent. It is high time to bring her remains to her people so that she finally rests in peace on the land of her ancestors. Our country must fulfill its duty of memory particularly in relation to colonization and recognize, despite difficulties, the errors which blemish this period of history, particularly in regard to slavery which constituted a crime against Humanity. In this regard, this bill allows without doubt the work of memory to progress in entire serenity.” The memorial concern is also present in the Maori head case. 1.3.2.3. Museums Facing Indigenous Claims Generally the emergence of collective rights in international law as well as in some national legislations (such as NAGPRA in the US) induced a change in the behaviour of the heads of museums. Restitution is still the tricky issue in our system which is strongly attached to the principle of inalienability of public collections. But other alternative or compromise solutions taking into account the indigenous people’s claims are beginning to be implemented. Some cultural objects might, for instance, be withdrawn from the public view. Their preservation is still ensured by the museum, but they are not exhibited. 1.3.2.4. Concern for Collective Rights within Territorial Policies The recognition of collective rights is sometimes perceptible through local cultural policies, either directly or indirectly. From this point of view we can quote the protective provisions of the Amazonian park of French Guiana which explicitly admit the existence of collective use rights and provide that Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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the customary authorities will be part of the board of directors of the pubic establishment of the park. According to Article L 331–15–3 of the Environmental Code: Without prejudice to the objectives of protecting the heart of the park, and especially given the specificities of French Guiana, the regulations mentioned in Article L 331–4–1 and the charter may provide favourable dispositions towards: 1° local communities who traditionally derive their means of subsistence from the forest, for which collective use rights are granted for hunting, fishing and any activity necessary for their subsistence; 2° permanent residents in the heart(s) of the park; 3° private individuals or legal entities residing in the park and engaged in permanent farming, forestry or in a permanent pastoral activity within the heart(s) of the park or deriving, occasionally, their personal their means of subsistence in these areas.

This concern filters into the statement of the missions in the park. Under Article L 331–15–5, “The public establishment of the national park shall preserve, manage, develop and ensure a national and international outreach of the biodiversity of Guyana, contribute to the development of communities of people who traditionally derive their means of subsistence from the forest, taking into account their traditional lifestyles and participate in a series of achievements and improvements in the social, economic and cultural development under the sustainable development project defined by the Charter of the national park.” The concern for collective rights has more of a presence within environmental law tools than within those developed by cultural heritage law. 1.4. Modes of Conceptualizing the Different Categories of Cultural Heritage in French Law The fist step consists in analysing the concepts developed in the Code of Cultural Heritage which are the main categories of cultural objects subject to protection. Article 1 defines cultural heritage and gives a first impression of the property which is protected and its identification criteria. The Code of Cultural Heritage also provides a set of special mechanisms according to the nature of the property at stake and the type of protection considered. The French system develops a highly sectorial conception of the different arrays of protection, which are successively considered in the Code of Cultural Heritage. This sectorial conception finds its origin in the institutional structure of the services in charge of cultural heritage and in the specificity of certain categories of property requiring special rules (e.g. archives, archaeology or museum collections).

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1.4.1. The Generic Concept of Cultural Heritage Article L 1 of the Code of Cultural Heritage (Code du patrimoine) states: “Cultural heritage is defined, within the meaning of this code, as all property, movable or immovable, public or private, which is of historical, artistic, archaeological, aesthetic, scientific or technical interest.” Common criteria can be drawn from this definition: 1° The reference to movables or immovables underlines the importance of this distinction in the emergence of cultural heritage law. Even though both are close concepts (some provisions are similar or common, whatever the nature of the property), two distinct set of rules have developed in parallel: movable cultural heritage law and immovable cultural heritage law. This phenomenon has several explanations. On the one hand, protection initially concerned immovable historic monuments (especially during the nineteenth century). Movables were protected as historic monuments from the twentieth century. On the other hand, the establishment of protection/ conservation easements and the controls they generate are more difficult to impose on the owner of movable property. The intrusion in the private sphere is clearer. Moreover these easements hinder more seriously the free movement of property both materially and legally, especially if the protected property can not be exported. Then, protective dispositions are not part of the same legal environment. The preservation of immovables must be thought of in coherence with environmental law, urban planning law and urban development policies. With regard to movables, a balance must be achieved between the owner’s rights, the need for preservation and the interests of the art market. Finally, the risks to prevent do not have the same nature. This justifies that specific measures be taken, as for instance regarding stolen or illicitly exported cultural objects and works of art or regarding their inventory or recolment. Even though Article 1 doesn’t explicitly state it, the reference to the movable or immovable nature of property pertains first and foremost to material cultural heritage from the classical perspective, which is slightly surprising as France has ratified the Convention on intangible heritage. If the Ministry of Culture is now concerned with intangible cultural heritage within the framework of preservation and enhancement policies, this interest does not have any legal support (see below on this point the section dedicated to intangible heritage). The dimension of the immaterial heritage can, indeed, answer to the criteria of protection, for example when it is a matter of protecting testimonies of know-how or places of memory. Industrial heritage, for example is being Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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protected to preserve the material traces of these places of activity. However, there is no preoccupation in the Code of Cultural Heritage to protect these forms of know-how. It is the movable or immovable material testimonies which are being protected. 2° Cultural property is necessarily owned. It can be owned by either a private or a public person. The majority of cultural property is publicly owned, especially collections of objects and works of art. In the French system, public property and more specifically the public domain is considered to be the most efficient protection. 3° The distinguishing criterion is that of historical, artistic, archaeological, aesthetic, scientific or technical interest. This concept bears various meanings. The assessment of this flexible notion is dedicated to the cultural administration in charge of taking protective decisions. This decision is often preceded by a consultation with specific authorities being asked to issue a scientific opinion regarding the artistic and historic values of the property to protect. The authority that is in charge of determining which cultural property must be protected is above all the Ministry of Culture, which is backed by the judgments of specialized commissions. Two examples follow. In the case of historic monuments, decisions to protect them can be taken at the level of the state, of the region (for the registration of immovables) or the department (for the registration of movables) after consulting various committees. For historic monuments, the process of decision-making differs depending on whether the property is classified or just registered (a form of protection which is much less restrictive for the owner): Classified property: The Minister decides about the classification after having consulted the National Commission for Historic Monuments for advice. Registered property: – Immovables: the prefect of the region decides about the registration after having consulted for advice the Regional Commission for Heritage and Sites. – Movables: the prefect of the department decides about the registration after having consulted for advice the Departmental Commission for Works of Art. In the case of museums, other authorities have to be consulted, i.e. the High Council for “Musées de France” as well as national and regional scientific commissions which give advice concerning acquisitions of museums, their restoration works, the awarding of the label, etc. The recognition of the label “Musée de France” is taken by the Ministry after the judgment of the High Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Council for the “Musées de France”. The process of decision-making is more centralized here than in the case of historic monuments. 1.4.2. Precisions Regarding the Distinguishing Criterion of Historic and Artistic Interest The notion “cultural property” [French: propriété culturelle] is not really used in French law. One rather talks about “cultural heritage” [French: patrimoine culturel], a notion which is defined in Article L 1 of the Code of Cultural Heritage. The property which makes part of it, whether it is public or private property, must represent public interest from the point of view of art, history, archaeology, science or technology. This flexible and synthetic notion of public interest allows the protection of a fairly broad body of cultural property. The notion cultural heritage was originally designed to protect remarkable movables and immovables. Today it encompasses new forms of heritage, for example ethnological heritage. The most important forms of protection involve only property which is considered as representing a major interest. Several criteria are being used: aesthetic qualities, rareness, exceptional sample, unique specimen which is conserved and which witnesses of such and such know-how or activity, connection with national or regional history, importance for the history of science, technology, etc. 1.4.2.1. The Criterion’s Evolution, its Widening to New Kinds of Cultural Heritage Initially the legislator intended to protect remarkable monuments and buildings, and as for movables, the masterpieces of fine arts, paintings, sculptures, tapestries and precious objects. The reference to a historical or artistic interest meant that concern was taken in works of great aesthetic value or prestigious objects or places marked by History. While retaining this classical approach, this criterion, however, changed considerably. New forms of heritage entered the field of protection, especially ethnological heritage. Thus, for instance, objects and sites have been classified as historic monuments, without being exceptional but carrying a memory, the idea being not to lose track of this memory. Currently, there are notably protected industrial sites as well as scientific and technical heritage, etc. 1.4.2.2. The Universal Approach of Cultural Heritage French law claims a universal approach of cultural heritage. The consideration of a work of art being of foreign origin can not be invoked to exclude any measure of protection. The judges reaffirmed this regarding a vase of the Ming period and also regarding a Van Gogh painting. If, in a positive way, the link with the nation or the territory may influence a protective decision, the criterion is not exclusive. The frequent use of the term “national” within Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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the vocabulary used for cultural heritage (national museum, national treasure, national antiquities, national heritage) has another meaning. It refers to the idea of a national jurisdiction and sovereignty, but it does not characterize the degree of attachment to the nation. 1.4.2.3. Impact of Decentralization on the Assessment of the Interest in Historic Monuments and Art Recent texts suggesting transfer of the ownership of historic monuments to territorial collectivities, however, are likely to induce a change in this criterion of national interest. Among the criteria for determining the historic monuments that could be transferred, the link with the territorial entities, with local history, as opposed to property which has a wider link with the French people, revived in some ways this criterion of nationality. Regional heritage would be allocated locally while universal heritage would remain property of the State. The law relating to local liberties and responsibilities of 13 August 2004 provides for mechanisms organizing the transfer of historic monuments to local entities. According to Article 97: “The State or the National Center of Monuments transfers to territorial units who request it or to their groups, subject to compliance with the terms of donations and bequests, the ownership of immovables classified or registered under Title II of Book VI of the Code of Cultural Heritage (Code du patrimoine) on a list established by decree of the Conseil d’Etat, as well as the ownership of movable objects they contain belonging to the State or the National Centre of Monuments. This list may also include the transfer of classified or registered movables belonging to the State.” These transfers are free of any charge and do not give rise to the payment of any compensation, rights, taxes, wages or fees. These transfers are done on a voluntary basis, which means that they are only achieved if territorial units are applying as candidates. The list of monuments that could be transferred has been specified by decree of the Conseil d’Etat. It draws heavily on recommendations of the report of the committee chaired by René Rémond submitted to the Minister of Culture and Communication on November the 17th, in 2003. The report aimed to “consider the criteria enabling distinguishability among the 400 historical monuments belonging to the State and allocated to the Ministry of Culture and Communication, which should remain the State’s property and which could be transferred for full ownership to the territorial units.” The hypothesis which is evoked here only deals with the transfers of property between public persons and notably the transfer of monuments belonging to the State, from the State to local communities (regions, departments, etc.). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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With regard to the expropriation of private properties on cultural grounds, the rules are not the same in case of immovables as in case of movables. In the case of immovables, because expropriation, in the Civil Code, concerns only immovables, the Code of Cultural Heritage had to adopt special rules with regard to movables, which remain limited to certain cultural property. The members of this committee questioned the possible criteria enabling that transfer and, in the light of these considerations, proposed a list of monuments that should remain the State’s property, monuments that could be transferred and monuments for which transfer was desirable. The initial idea was to give local authorities responsibilities in the conservation and enhancement of cultural heritage. Our Constitution now states that the French Republic is decentralized. The committee members have drawn the consequences: “The transfer should not be regarded as an exception or exemption,” but rather be the principle. Based on this assumption, the practice consisted not in asking what motivated this transfer, but, under the original perspective, in asking what justified the maintenance of the monument at the State’s expense. While examining the criteria, several elements have been taken into account. According to the Rémond report, the following property must fall within the State: The criteria described in this part deal exclusively with the question of property of protected historic monuments. A certain number of monuments which used to be owned by the State have been transferred to the regions and departments, according to the decentralization laws. To decide which transfers were desirable, one was interested in the criteria according to which it was preferable that the State remained owner or, on the contrary, the ownership of the property was transferred to the local communities, on the territory of which they are situated. By virtue of being the owner, those communities ensure the management, and the costs of conservation, but can also give a higher value to the property. This question only changes the question of ownership, not the question of protection. Therefore, to decide whether to execute these transfers or not, the administration depends on the abovementioned criteria. a) monuments which are part of the nation’s memory, symbols of national unity: battlefields and military cemeteries. “Those who have shed their blood on one or rest on another came from the entire France”, so-called national palaces, most of which are residences of dynasties that have ruled over France. For that they fall into national history (e.g. the de Villers Cotterêts where was signed the edit in 1539, the first text providing protection for language that makes the French language the administrative and judicial language of the country). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The partition between local history and national history is nevertheless not always easy to achieve. An example is given with the High Koenigsburg castle which, according to the report, belongs more to the memory of Alsace, but also witnesses relationships between France and Germany. This monument was one of the first cases of transfer. The 2nd criterion is that of international notoriety and out-reach that makes a monument part of the European cultural heritage. This is the example of the Abbey of Cluny. Some monuments testify in a particular way of relations between France and other states—the Abbey of Fontevraud because of its tombs of Plantagenêt, or the obelisk of place de la concorde. archaeological sites and all the decorated caves are still to remain under the State’s responsibility. The criterion for the regrouping of some real estates is also invoked to reconstitute various properties which are in the hands of several owners (e.g the surrounding walls and towers of a town). The financial criterion is not dominant, but in case of danger, the responsibility would rather be that of the State.

In principle, these transfers do not affect the protection which remains the same regardless. But still, in a certain way the most important elements remain within the fold of the State. The issues arise whether the choice of the owner does not form some sort of hierarchy regarding the considered interest. This has been stressed in the Rémond report. Would the property transferred to local authorities not be somehow disqualified, as carrying local history rather than national memory? This question brings another question. It may indeed be asked if this redistribution doesn’t induce a change in the consideration of cultural heritage protection and does not foreshadow an evolution of its methods, which could ultimately inaugurate a two-scale system of protection depending on the nature of the considered interest. 4 ° Age criteria and cultural property This criterion is of little application regarding the implementation of cultural property protection rules. For protections such as historic monuments, sites and landscapes or specific protected areas, the texts do not refer to the age criterion. Even in the absence of any legal text, administrative practice is reluctant to use this criterion as regards to the protection of contemporary cultural heritage. For a long time, buildings which were less than 100 years of age were not classified as historic monuments. The practice has evolved. Now it tries not to classify historic buildings whose authors are still alive. As this is an unwritten rule, there are exceptions. Thus, the achievements of Le Corbusier were protected during his lifetime. Unlike other protective measures, the age criterion Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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explicitly intervenes in texts pertaining to the control of cultural property movements. Export controls are indeed exerted over specific categories of property as established in a Conseil d’Etat decree and affected by age and value criteria (see below for a description of the system). 5 ° condition of preservation and authenticity The function of preservation remaining the core issue of most protective legal measures, the preservation condition of a property influences the protective decision. A deteriorated condition that requires restorations of too much importance could raise doubts on the usefulness of such protective measures. Regarding authenticity, this can be a criterion for granting protection, but it is not binding. The art and history value can also be assessed through the successive transformations of the same property. The protection may well be based on the fact that these changes result in giving coherence to the whole. The question of the integrity of the monument is obviously one of the most important purposes of the law on heritage, close to the one known in the convention of 1972. 1.4.3. Lack of Synthetic Concept of Cultural Property—Dispersal of Categories Several cultural heritage law texts refer to the notion of cultural property, suggesting that there is in French law a generic concept of cultural property. But in fact, the concept conveys multiple realities. The phenomenon of dispersion is perceptible in the various uses of the concept of cultural property. French law usually uses the formal definition technique. Each text defines the concept of cultural property that is useful regarding its own application. As a consequence, its definition is limited to its context. There are about eight specific notions of cultural property, for example export regulations, underwater cultural property, and texts transposing or ratifying international or European conventions. This dispersion is also emphasized in that most of the key notions that describe the components of cultural heritage are more specific and sectorial. Basic notions, which emerged very early in the history of protection, are that of historic monuments, archives, collections, works of art and archaeological resources. These elements all belong to the category of cultural property, but no broader concept federates them. Finally, a third difficulty is that there is no unicity regarding the methods of defining categories of cultural property. Sometimes synthetic definitions are used. This appeals to flexible concepts; for instance, the definition of historic monuments is linked to the value of art and history. Some definitions are enumerative, referring to lists of categories which may be closed or open. Otherwise, and where appropriate, various criteria such as age or value are Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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used. Sometimes these different methods are used together. This is notably the case of the recent definition of the cultural public domain asserted in the General Code of Public Property which focuses the concept of movable public domain on cultural property (see below on this text). Finally, some texts use the term cultural property without defining it. Thus, the provisions on the European arrest warrant in the Code of criminal procedure assert specificities regarding specific categories of property including cultural property (Article 695–11) and presuppose that this concept is known. But that is not the case. It could be argued that it concerns cultural property as defined under the Code of Cultural Heritage (Code du patrimoine): classified historic monuments, museums collections and more broadly public collections, historic private archives, and cultural property subject to export controls. Certainly, these categories are cultural properties. But the Code of Cultural Heritage (Code du patrimoine) seems to refer to a broader concept of property which is potentially property of historic or artistic value. The multiplicity of concepts in French cultural heritage law is linked to the functional approach it has developed, which is in a way quite classical. French law limits the scope of the definition according to the aim it pursues, taking into account here and there a more or less broad conception of cultural property. This sedimentation phenomenon makes it more complex to identify a generic category of cultural property. The gathering of texts on cultural heritage protection will perhaps ultimately induce the emergence of a more distinct conception of the concept of cultural property. 2. Tangible Cultural Heritage 2.1. Protection Regimes Applicable to Immovable Cultural Heritage Except in exceptional cases (see above Nouméa agreements), French cultural heritage law does not intend to recognize the existence of collective rights. Several protection systems have been established, under which the administration states a public interest in the immovables that have historic or artistic values, etc. Some types of protection create easements at the owner’s expense, primarily designed to ensure the material preservation of cultural property. (I) The decision-making process varies depending on the type of protection which is decided either by the central administration, the deconcentrated services, or by the territorial collectivities. France has developed a very centralized conception of cultural heritage protection and has recently organized transfers of competence or delegated decision making to some deconcentrated entities. Recent times have seen local authorities take an increasingly important role in heritage protection. Protective measures are most often taken after consultation with specific bodies composed of individuals who are scientifically competent in judging and considering the interest of art and Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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history (curators, art historians, architectural historians, etc.). In addition, the texts also provide other restrictions on ownership, such as takings when immovables are of public interest (II). In both cases (easements and takings) we must understand how the balance of interest between the owner’s rights on one hand and the imperative of protecting heritage on the other hand is realized (III). 2.1.1. Main Conservation Easements Provided in the Code of Cultural Heritage and their Effect on the Owner’s Rights French cultural heritage law has initially developed a conception of a protection excusively focused on historic buildings. That explains why the selective criteria are very demanding. This is particularly true regarding the law on historic monuments, adopted December 31st, 1913 (1.1). With the implementation of public policies related to urban development, tools are evolving towards more global forms of protection, designed to improve the consistency with other concerns (urban, social, cultural, economic, etc.). This is for instance the case of zoning areas such as “ ZPPAUP” (zones de protection du patrimoine architectural, urbain et paysager; zones of landscape, architectural and urban heritage protection (1.7)). Moreover, some protections halfway between cultural heritage and natural heritage have developed. Hence the creation of the Conservatoire du Littoral (littoral and lake conservatory) (1.4.), the legislations on national parks, natural parks (1.5.) and landscape guidelines (1.3.). The title of the law of 1913: law of 31 December 1913 on historic monuments [French: loi de 31 décembre 1913 sur les monuments historiques]. ° In French law, we can link the notion «site» to the notion in the 1972 Convention. But the zones of protection of architectural and urban heritage are not comparable to buffer zones under the Convention. They are a tool for legal protection of very specific urbanism, which allows, for example the defining of types of diversified protection within an urban or rural zone. These zone are defined on a case by case basis in a flexible way, in collaboration with the communities involved. 2.1.1.1. Protection as Historic Monuments The statute on historic monuments is one of the oldest statutes (adopted on 31 December 1913) which establishes an administrative easement designed to protect the integrity of movable and immovable cultural property. The law of 1913 belongs to the Code of Heritage, which was adopted in 2004. It is a very important statute, the techniques and models of which have inspired many other cultural heritage texts (the statute on sites and particularly the statute on museums). This statute remains a major tool in the protection of cultural heritage, especially for immovables. That is why we will develop this issue and we will refer to it while describing other modes of protection. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The legislation on historic monuments makes a distinction between two types of measures which vary in scope: classification as a historic monument, which is the most radical and restricting protection for the owner, and registration as a historic monument. Protection as a historic monument is subject to a complex decision-making process which differs in scope. The case is usually investigated and studied at the regional level. A regional commission specifically dedicated to cultural heritage and sites, chaired by the prefect of the region (representative of the State at the regional level ), centralizes most protection cases. The decision-making process varies according to the measure at stake. The decision classification decision, which is the most restricting decision for the owner, will be taken at the central level whereas the registration decision will be taken at the regional level. 2.1.1.1.1. Classification as a Historic Monument Classification as a historic monument deals with the most important buildings and implies great restrictions for the owner. Article L 621–1 of the Code of Cultural Heritage (Code du patrimoine) states that: Immovables whose preservation is, regarding history or art, of public interest, are classified as historic monuments as a whole or in part by the administrative authority.

It is the Minister who decides about the classification (see at the end of the paragraph on the procedure). The criterion of interest in art and history for the measure of classification is a very high criterion. Even though the concept of cultural heritage has evolved into a more ethnological perception, only the most significant and rare elements are protected. Generally, there is reluctance in classifying the heritage of the twentieth century. We can discuss some case law examples in which judges have appreciated the reality of the criterion of interest in art and history. The Conseil d’Etat considered that the decoration of the Hotel de Sagonne was of historic and artistic interest within the meaning of the 1913 statute in that it was the work of one of the most outstanding painters of the end of the 12th century. A villa built in 1933 on orders of the industrialist Paul Cavroix and signed Rob Mallet-Stevens was also classified. The government commissioner indicated in his conclusions that this architect was “one of the greatest architects of the past century, as Le Corbusier, Garnier or Perret”. He argued that the villa represented his architectural testament, the cultural and artistic interest justifying the classification. In this case it was not the classsification decision that was at stake but a formal notice to perform work on the building to ensure its preservation. One of the main obligations at the expense of the owner is related to the integrity of the property. The owner may not freely dispose of his material Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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property or of his property as regards its materiality, because any modification, reparation, or restoration is subject to authorization. The advantages connected with classification for the owner can be tax benefits when the building is open for visitors, or financial benefits. The administration can cooperate in the restoration works. ° On the one hand, any alteration is subject to authorization. According to Article L 621–9 of the Code of Cultural Heritage (Code du patrimoine) “[t]he property classified as a historic building can not be destroyed or moved, even partially, nor be subject to restoration, repair or modification of any kind, without authorization by the administrative authority . . . ”. ° On the other hand, even if the owner is the principal of the work undertaken on the building, he remains under the scientific and technical control of the State services. Article L 621–9 specifies that: “. . . The work authorized under the first paragraph shall be conducted under the scientific and technical control of the state services in charge of historic monuments. A decree in the Conseil d’Etat specifies the categories of professionals to which the owner or the person in charge of the management of a classified historic building shall entrust the realization of the work”. If he doesn’t comply with this obligation and leaves the protected building without any care, the statute provides for coercive rules; these include, formal notice to undertake work, undertaking of work ex officio by the administration, and sometimes committing the owner financially if he shows negligence in the case where the preservation of the building is severely compromised, or takings if needed. The classified buildings are imprescriptible (Article L 621–17 of the Code of Cultural Heritage). Thus, no one can acquire rights by prescription. Those rules reinforce the status of the property and consolidate the owner’s position. As a general rule, classification will be decided with the consent of the owner. The decision in such case is taken by order of the minister who priorly consults for advice the National Commission of Historic Monuments, which considers the reality of the interest of art or history and the necessity of the classification. If the owner is opposed to the classification, the administration can ex officio classify the property. The procedure is then more complex and the decision must be taken by order in the Conseil d’Etat. If so, it opens a right to compensation (see below on the balance of interests between the owner’s rights and the public interest in protection). There exists an inventory of classified and registered monuments. Its management and updating are obligatory. However, the protection results from the measure of classification (by ruling of the Minister), not from the registration on the list. Monuments registered as world heritage are most often Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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classified (for example Mont Saint Michel or the Historic Fortified City of Carcassonne). On the question of transfer of property, one has to distinguish depending on whether the owner is private or public: A private owner can freely sell his object. Nevertheless, he must inform the purchaser of its status, and the Ministry of Culture of the sale. In case of a public owner, everything depends on the system of public property. If the immovable is assigned for public use or for public service, then it belongs to the public domain, and is as such inalienable. In any other case, it can be sold. The classification is subjected to public land record registration [French: publicité foncière]. It is registered at the mortgage office [French: bureau des hypothèques]. 2.1.1.1.2. Registration as a Historic Monument This method of protection is more a conservative measure. It imposes an obligation of information at the expense of the owner when the latter undertakes modifications, improvements, restorations, and so on. In this case, he must inform the administration within four months. The administration is not able to oppose these projects unless it initiates a classification procedure. The idea is to enable the State to achieve a watch on this listed heritage or to be able to intervene where appropriate and in any case of threat, determining a more effective protection. This tool notably allows the protection of contemporary heritage where there is an interest for which there isn’t yet a sufficient distance. There is thus some kind of presumption of interest. The same conditions as for classification apply for registration of a historic monument: There exists an inventory for registered monuments. Concerning the question on transfer of property, as for classification, one has to distinguish depending on whether the owner is private or public: A private owner can freely sell his object. Nevertheless, he must inform the purchaser of its status and the Ministry of Culture of the sale. In case of a public owner, everything depends on the system of public property. If the immovable is assigned for public use or for a public service, it belongs to the public domain, and is as such inalienable. In any other case, it can be sold. The registration is subjected to public land record registration [French: publicité foncière]. It is registered at the mortgage office [French: bureau des hypothèques]. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The criterion for identifying registered buildings demonstrates this logic of precaution. Within the meaning of Article L 621–25: The buildings or parts of buildings, public or private, which, without justifying an immediate classification as a historic monument, demonstrate a sufficient interest in art or history as to make their preservation desirable may, at any time, be registered by decision of the administrative authority, as a historic monument. May also be registered under the same conditions any building or buildings located in the field of visibility of a building already classified or registered as a historic monument.

The consequences of registration are much less onerous for the owner. There is no obligation of conservation of the object, but only a simple obligation of information when he starts works or transfers the property of his object. In principle, the cultural interest considered for the registration should be of less importance than the criterion of interest in art and history considered for the classification. But even for registration, this criterion remains of very high standard. This trend is quite clear in case law. A building belonging to the Caisse d’allocations familiales (family allowance fund) had been registered as a historic monument (example of protection of a contemporary property). The Administrative Court of Appeal of Paris affirmed that the building “designed by architects Raymond Lopez and Marcel Reby in 1959 [is] a unique example of a building by the use of metal structures and facades with glass curtains totally independent of the metal structure; thus, the building presents either by the novelty or the originality of its architectural design, sufficient historical interest to justify” protection. It is this interest that the owner challenged. One of the main arguments was that major restoration work to be undertaken in order to bring the building into conformity with safety standards would distort and denature the work and thus it would have no more originality. The claimants argued that without originality, thus without authenticity (the two concepts are linked here) the protection is unfounded. That reasoning was followed by the Conseil d’Etat which believed the extent of work required to bring the building into compliance with safety standards rendered the measure of protection unfounded. Changes to the building would “profoundly alter or even remove elements determining its originality.” When the considered measure of registration as a historic monument is taken, the decision occurs at the regional level by order of the prefect of region after consultation with the regional commission of Heritage and Sites Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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(CRPS). The nature of protection, which is less restricting for the owner, explains why the decision is taken by the deconcentrated authorities. The classification can be applied for by the owner, the prefect of the region, the Minister of Culture or any other person concerned (association for the protection of heritage). As a rule, the classification must be realized with the agreement of the owner. It is in this spirit that French law conceives protection. If however, the owner does not agree, the classification can be realized without his consent. However, in this case, the procedure is more onerous and the owner can be compensated. The registration can be applied for by the owner, the Minister of Culture or any other person who is concerned. The registration of immovables can also be realized without the agreement of owner. Classification or registration is not always necessary to declare property as belonging to the cultural heritage. There exist other forms of protection of immovable (and movable) heritage (see the different forms of protection mentioned). 2.1.1.1.3. Easements on Immovables Located within the Vision Field of Classified or Registered Historic Monuments The protection resulting in the classification or the registration of historic monuments has an impact on the building’s environment, which French law designates as the surroundings of a building. Immovables located in the vicinity of a protected building bear easements. They must not impair the visibility of a building that is classified or simply registered. The assessment should focus not on the qualities of the building located in that perimeter, but on the damage occurring to protected buildings in terms of visibility. 2.1.1.2. Protection as Natural Monuments and Sites This protection is very close to that of historic monuments. The economy of the law adopted in 1930 was very heavily inspired by the Act of 31 December 1913 on historic monuments. This tool helps protect landscapes and sites where the statute on historic monuments protected isolated historic buildings, sometimes including elements of its environment (backed buildings, gardens, etc.). Protection as monuments and sites had been used to protect historic centres before other tools related to urban developments or landscapes were adopted, such as the “secteurs sauvegards” (safeguarded sectors) or ZPPAUP (see below). This text provides for the establishment of an inventory. Article L 341–1.—It is established in each department a list of natural monuments and sites with conservation or preservation presents an artistic, historic, scientific, scenic or legendary, picturesque general interest. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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It also establishes two types of protection, registration and classification in terms quite similar to those used for the protection of historic monuments (conservatory for the first measure, imposing a simple obligation to provide information on the owner, and more binding for the second measure). The decision-making process distinguishes the initiative and reach of the decision. The departmental committee of the sites, landscapes and perspectives has the power to initiate the registration or the classification of monuments and sites and gives its opinion. The classification decision is taken at the central level. As for the protection of historic monuments, in the absence of any consent, the procedure is more complex and there is a possible compensation which again, is not automatic. On the question of the link between the different systems of protection in French law and in the 1972 Convention, the specialized literature on this field does not touch on this question on the international protection and the setup of protection measures in national law. The protection which originated from the 1972 Convention can be invoked for the protection of architectural heritage, urban heritage, landscape heritage, and so on. However from the point of view of legal protection, the Convention [of 1972] has no real impact from the very moment that the immovables are already protected by national law by means of the different tools mentioned; the classification as historic monuments or as heritage and sites, ZPPAUP [zones of landscape, architectural and urban heritage protection; French: zone de protection du patrimoine architectural, urbain et paysager], safeguarded district [French: secteur sauvegardé], or other protection measures. One can say that the different forms of protection meet the requirements of the 1972 Convention. The ratification of it had no impact on national law, even if other tools started to expand heritage law. In that sense, classification as world heritage strengthens the protection and acts as a label. But it adds nothing in terms of protection, as far as the law is concerned. This is one of the aspects of the French system and of its relation with international law, which is most often considered as an external source of secondary importance. One encounters a similar attitude about movable heritage (see below). That being the case, the state and the local authorities obviously attach great importance to this recognition. 2.1.1.3. Protection of Landscapes Legislation on the protection of landscapes has been recently adopted. The purpose of the guidelines is to protect cones of visibility. Therefore, it is an aesthetic vision rather than an environmental vision that dominates. The landscape’s characteristics are generally appreciated by landscape architects. These guidelines have no direct effect and must be relayed by a contractual Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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mechanism. They must inspire the conclusion of charters between the state and local authorities. This tool enables the State to recover control over land management. A charter on the Chartes Cathedral has for instance been concluded. On the relation to the 1972 Convention regime, see supra 2.1. 2.1.1.4. Coastal Protection The Conservatoire du littoral et des espaces lacustres (littoral and lakes conservatory), a public administrative body, exercises jurisdiction over coastal areas of the metropolitan territory and of the overseas departments as well as over the vicinity of lakes and water areas. Under Article L 322–1 of the Environmental Code: I. The Coastal Protection Agency is a public administrative body with the responsibility of conducting land-use policies for the protection of coastal areas, natural sites and ecological balance, after consultation with municipal councils and in partnership with interested territorial authorities: 1° In the coastal cantons delimited as of 10 July 1975; 2° In communes located close to seas, oceans, saltwater lakes or inland expanses of water of a surface area exceeding 1,000 hectares; 3° In communes located close to estuaries and deltas, when all or part of their banks are downstream from the saltwater demarcation line; 4° Repealed II. It may present public authorities with suggestions concerning its mission. It may also suggest suitable measures to prevent construction work on the land adjacent to public coastal areas. In order to promote the integrated management of coastal areas, the Coastal Protection Agency may also carry out missions in the public coastal area it has been allocated or entrusted with. III. Its intervention may be extended by a ruling of the Préfet and after assessment by the administrative board to the sectors geographically bordering the cantons and communes mentioned in I, thus forming with them an ecological or landscape unit, and to the wetlands located in the coastal départements.

2.1.1.5. Protection of Natural Parks The law provides for two different types of protection: natural national parks and natural regional parks. It also specifically deals with the status of natural marine parks. On the relation to the 1972 Convention regime, see supra 2.1. 2.1.1.5.1. National Parks This protection integrates the dual dimension of cultural and natural heritage and thus induces a change in the function of conservation by taking into account the diversity and the evolution of landscapes. The protection is specified in a charter and is accompanied by the establishment of a public administrative body (Article L 331–3 of the Environmental Code). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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According Article L 331–1: The territory of all or part of one or several communes may be classified as a national park by a Conseil d’Etat decree, when the preservation of fauna, flora, ground, subsoil, atmosphere, water and the natural environment in general, or cultural heritage, is of special interest and when it is important to preserve the area against the effect of natural damages and remove any artificial interventions which could alter its appearance, composition and development. The national park is made of one or more hearts, defined as land and sea areas to be protected, and a membership area, defined as all or part of the communes which, notably given their geographical continuity or their ecological solidarity with the heart of the park, have decided to adhere to its charter and voluntarily contribute to this protection. The park may include areas which are part of the public maritime domain and territorial waters under the sovereignty of the State.

The charter includes a specific section which considers the “objectives or guidelines and determined from its territorial, economic, environmental, social or cultural particularities” (Article L 331–3 of the Environmental Code [Code de l’environnement]). Easements related to the creation of a national park are notably established to preserve the areas against the effect of natural damage and remove any artificial interventions which could alter its appearance, composition and development. Finally, the environmental Code provides specific dispositions for the national park of Guaiana. On the relation to the 1972 Convention regime, see supra 2.1. 2.1.1.5.2. Regional Parks Regional parks participate in environmental protection policy, urban planning, economic and social development as developed by the regions “in concertation with the interested local authorities and various partners.” Prior to the creation of the park, a charter must be elaborated. The park charter determines the guidelines for protection, improvements and development, and the measures enabling them to be implemented for the park area. It includes a detailed map, based on a heritage inventory, indicating the different park areas and their use, with a document that determines the guidelines and fundamental principles for protecting the landscape structures in the park area.” (Article L 333–1 of the Environmental Code). The charter is adopted by a decree for the classification of the territory as a regional nature park for a maximum duration of ten years. On the relation to the 1972 Convention regime, see supra 2.1. 2.1.1.5.3. Natural Marine Parks Marine parks were created by the statute of 14 April 2006 and consist of a new tool for the management of the marine heritage. They can be Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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established “within waters under the sovereignty of the state or where appropriate, within waters in continuity with them, in waters under its jurisdiction, as well as within areas part of the public maritime domain” (Article L 334–3 of the Environmental Code). They are designed to contribute to “the knowledge of marine heritage and to the protection and sustainable development of the marine environment. The creation of marine parks partly located within waters under the jurisdiction of the State shall take into account the provisions of the UNESCO Convention on the Law of the Sea of 10 December 1982, including its part XII. “The management board of parks”, is composed of a minority of local representatives of the State, representatives of interested local authorities and their competent groups/ bodies, of the representative of the managing body of a contiguous regional natural park, representatives of organizations representatives of professionals, user organizations, environmental protection associations and qualified personalities.” (Article L 334–4 of the Environmental Code). The management board establishes a management plan that “sets out the measures of protection, knowledge, enhancement and sustainable development to be implemented in the marine natural park. It includes a graphic document showing the different areas of the park and their vocation. It is being revised every two years at least.” (Article L 334–5 of the Environmental Code). Globally, as for these natural heritage management tools, on the one hand the concern for the preservation of natural heritage is more closely associated with the dimension of nature protection. These tools also include the evolving nature of the heritage to be preserved, which could hardly be obtained with the classical tools used for cultural heritage preservation. Most of them associate local actors, beyond local authorities (users associations, associations for the protection of the environment). On the relation to the 1972 Convention regime, see supra 2.1. 2.1.1.6. Protection as Safeguarded Sectors (“secteurs sauveguardes”) This protection is integrated within the Urban Planning Code and not within the Code of Cultural Heritage and deals with the protection of urban ensembles. The need to integrate a new tool of protection has particularly emerged in the post-war period of reconstruction, taking into account an interesting urban subject and not only isolated monuments. The protection of safeguarded sectors was used to save historic centres or the hearts of cities. According Article L 313–1 of the Urban Planning Code: Sectors called “safeguarded sectors” can be created when they present a historic, aesthetic character or when their nature may justify the preservation, restoration and enhancement of all or part of a building lot, constructed or not. The safeguarded sector is created by the administrative authority at the request or with the consent of the town’s council or, where appropriate, the public body Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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for cooperation between relevant local communities for urban planning after consulting the National Commission of safeguarded sectors.

A safeguarding and rehabilitation program (PSMV) is developed jointly by the state and the municipality or the competent public institution of cooperation between local municipalities. This plan is subject to the advice of a local commission. This tool reconciles urban planning law (in particular the local urban planning project) and the interest of the place. “After consulting the city council or the deliberating organs of the public institution for cooperation as well as the National Commission of safeguarded sectors the draft plan for safeguarding and rehabilitating the area is being investigated by the administrative authority. It is approved by the administrative authority if the notice of the municipal council or the legislative body of the public institution for cooperation is favorable, otherwise by Conseil d’Etat decree.” 2.1.1.7. Protection Zones for Architectural, Urban and Landscape Heritage Sites (ZPPAUP) This is a more recent tool created by the first decentralization laws (law of 1983). These zones initially constituted a tool for shared management of heritage between territorial units and the State. Now the decision to create such a protection zone is decentralized. Under Article L 642–1 of the Code of Cultural Heritage: On proposal of the municipal council or of the competent deliberative organ of the public institution for cooperation between municipalities, Protection Zones for Architectural, Urban and Landscapes can be created in the surroundings of historic monuments, quarters, sites and open areas, to preserve or enhance, with regard to aesthetic, historical or cultural reasons.

These zones reflect a more comprehensive and less elitist understanding of cultural heritage and are designed to protect all kinds of urban, rural or landscape ensembles. They can sometimes help maintain certain activities. The use of ZPPAUP indirectly allows preservation of intangible heritage. A ZPPAUP has for instance been created in order to protect the Saint Ouen flea market area. 2.1.2. Other Property Rights Restrictions In addition to administrative easements that impose on the owner a number of obligations, there are other forms of property rights restrictions in French law. In particular, the public collectivity has the right to expropriate or to exercise pre-emption in a public auction when a cultural object is of artistic or historic interest. Expropriation is possible for any kind of immovables in common law, on the condition that the expropriation is necessary for a cause of public utility. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Historical or artistic interest can be considered as a cause of public utility. The Cave of Charvet has been expropriated in application of common law. On the other hand, concerning the right of pre-emption, this prerogative of public power is stipulated in special texts. As for cultural heritage, the Coastal Protection Agency [French: le Conservatoire du littoral] can exercise a right of pre-emption. The Urban Planning Code [French: le Code de l’urbanisme] also stipulates possibilities of pre-emption. Several texts are relevant particularly in general law. Article 545 of the Civil Code states that “No one may be compelled to yield his ownership, unless for public purposes and for a fair and previous indemnity.” (on the consideration for the owner’s rights in case of expropriation, see below). Apart from takings, which is stated in several texts, special law also organizes a right of pre-emption to the benefit of public personnes in a in a number of assumptions (for instance Article L 322–4 of the Environmental Code states the faculty for the Littoral and Lakes Conservatory of using its pre-emption right for immovables located within its jurisdiction; Article L 142–3 of the Urban Planning Code provides for the creation of pre-emption areas by local authorities). There are a lot of examples. 2.1.3. Balance of Interests between Property Rights 2.1.3.1. Constitutional Value of Property Rights—Overview—Limits The constitutional value of property is recognized on the basis of Article 17 of the Declaration of the Rights of Man and of the Citizen, contained in our current Constitution, which proclaims that: “since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.” But despite the affirmation of its “full constitutional value”, respect for property is only subject to a minimum control. Mere violations which do not involve deprivation of property rights are not likely to be challenged on the basis of Article 17. According to L. Favoreu and F. Luchaire, who qualify property right as an “artichoke right,” even if, when it is withdrawn a series of attributes, it remains itself; unless someone touches its heart, in which case it disappears.” The Conseil constitutionnel shall ensure that “there is no property right violation so serious that the meaning and scope of the right shall be distorted.” Conservation easements are therefore largely admitted regarding real estate. Broadly speaking, public law related to real estate imposes many constraints for the owner and is notably dictated by the development of urban planning rules.

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2.1.3.2. Compensation to the Owner 2.1.3.2.1. Conservation Easements and Compensation to the Owner Generally, there is no due compensation to the owner of property subjected to a conservation easement. The owner bears any charge although it may substantially affect his property rights. The French legal system affirms as a principle that no compensation is due for urban-planning easements. Some texts exceptionally provide for compensation in some restrictive hypothesis. The owner may ask for compensation if his property has been classified as a historic monument or site against his will. This compensation is not automatic. The owner must apply for compensation and prove he has suffered a direct and certain loss as result of the easement. Thus conservation easements do not give a right to compensation. The compensation is calculated on a case by case basis, in function of the loss incurred, the rule being that the loss must be compensated in its entirety. There are very few examples of compensation to the owner in the case of immovables (there are, on the contrary, examples in the case of movables; see below). 2.1.3.2.2. Takings of Property and Compensation to the Owner The issue of compensation arises when the owner’s property is taken. French law ensures the owner’s property rights. Article 545 of the Civil Code states: “No one may be compelled to yield his ownership, unless for public purposes and for a fair and previous indemnity.” The existence of the following is required: a) A cause of public utility. Otherwise no takings is possible. The provisions of the Code of Cultural Heritage (Code du patrimoine) facilitate the identification of a cause of public utility while pursuing the imperative of heritage protection. Indeed numerous specific texts mention the State’s faculty to take property that is of historical or artistic interest when its preservation is at stake. This is notably the case of legislation on historic monuments, archaeological sites, natural heritage and sites, and so on. These provisions refer to the possibility for the State to use general law. In doing so, they facilitate the recognition of a cause of public utility. The cause of public utility can take several forms, whether problems of conservation or of restoration, or exceptional heritage which deserves to be in the hands of the State (for example the prehistoric Chauvet cave or “grotte Chauvet”). However, generally speaking, the State does not proceed very often to expropriation in the case of immovables except in cases of serious risk to the conservation of the immovable.

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b) A rule of proportionality between the measure considered and the need for protection. As a general rule, the expropriation will only be carried out in certain limited cases (notably, peril to good conservation, negligence of the owner, incompetence to assure the protection of the property). c) Just and prior compensation. The owner must not bear any economic loss. The compensation should recover the integrality of the direct, material and certain loss. The issue has been discussed regarding the expropriation of a prehistoric cave (known as the Chauvet cave or “grotte Chauvet”, named after its finder). The issue that arose dealt with the amount of the compensation due to the owners. The appeal court in Nimes had initially considered that the price per square foot was that of the land in the Guarrigue, without regard to the added value of the cave (estimated at €4,635). But the judgment was overruled because the court had not taken into account this added value. The court of appeal of Toulouse granted €13,340 to the owners, taking into account the eventual exploitations of the site and their economic impact. The Court of Cassation overruled this judgment. There was an issue on the ownership of the real estate which was examined by the general law judge. The Court of Appeal of Toulouse could not take a decision regarding the amount of compensation without taking into account this issue. The Court of Appeal of Lyon, to which the case had been submitted by the Court of Cassation [French: Cour de cassation], estimated at €763,000 the value of the cave. Judiciary courts are competent to evaluate the due compensation. Private owners’ property rights are gradually taken into account, particularly regarding their economic aspect, as attested by the European Court of Human Rights decisions and case law dealing with the respect property rights. This is also well demonstrated by the Grotte Chauvet case. The French legal system leaves little room for communities, groups and other non-governmental organizations in the decision-making process of protection. We may still quote the creation of a private law structure in 1996 in charge of managing less important heritage and heritage of proximity. The Fondation du patrimoine (the “Heritage Foundation”) seeks to involve individuals and private companies in financing the preservation and enhancement of this heritage that has no specific legal protection. The label “Heritage Foundation” may lead to tax benefits. Broadly speaking, the associations for the protection of cultural heritage are not really important in the decision making process of protection. They may in some cases take legal action when cultural heritage preservation is prejudiced, but these initiatives are not very numerous. Where appropriate, the role of communities may be exercised within the framework of territorial units (see in particular the status of the Amazon Guyana Park, which refers to the recognition of collective rights of use). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Among the actors who struggled in favour of the protection of heritage, one can quote associations and foundations. These institutions played a role in the management of heritage and its economical development. For example, they can be owners or can assure the management of immovables or collections and the exploitation. However, they do not intervene in the decision of protection. They can of course raise the awareness of the public actors of the necessity of taking protection measures for such and such an immovable. French law does not recognize the collective rights in the benefit of the communities. That explains why there is no legal notion of community in French law. The groups which French law recognizes are for example legal entities, such as associations and foundations. France has ratified the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict but has not taken any specific law transposing it. There is a special statute for the protection of underwater heritage which is defined as “biens culturels maritimes” (underwater cultural property). This statute is specific as it regulates first and foremost underwater excavations and deals with the ownership of underwater property. Underwater heritage is defined by the statute within Article L 532–1 of the Code of Cultural Heritage as: “[d]eposits, shipwrecks, remains or more generally any property of prehistoric, archaeological or historical interest, which are located in the maritime public domain or on the seabed in the contiguous zone.” The text sanctions exploration activities likely to jeopardize these deposits. It requires anyone who discovers property to leave the property in its place, not to harm it and to inform the authorities within forty eight hours of the discovery. But the property may have been fortuitously removed, for example because of work or any other activity. In this case, Article L 532–4 states that: “this property must be declared to the administrative authority within the deadline set by Article L 532–3. It must be left to the latter within the same period or kept at its disposal. It must be filed with the latter in the same period or kept at its disposal.” The finder is entitled to compensation on terms laid down by decree, which takes into account the importance of the property. Regarding ownership, the statute provides in some dispositions for the devolution to the State of property located within the maritime public domain. It distinguishes property the owner of which can not be found. This concerns very old properties which are declared properties of the State. The finder is not the owner. The rules laid down in the Civil Code, according to which the occupant of an object “sans maître” (without a master) becomes the owner and more generally the rules pertaining to the possession of movables are not applicable. However, as for more recent property, the statute provides for a Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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three-year period within which the State must make public the discovery and ensure an advertisement in the press. If the owner does not declare himself, ownership is vested in the State at the end of that period. Concerning the compensation paid to someone who discovers an object, the mechanism rewards the finder and aims to encourage the declaration of the object. However, the compensation is not intended to compensate the value of the object, since it is, in principle, the State which is the owner. The compensation is the following: It is the Decree of 8 February 1996 that sets out the total amount of the compensation which varies in function of the cultural interest of the property, with an upper limit system. The compensation cannot exceed €1,500, if the property is of large interest, €7,500 if it is of superior interest, and €30,000, if it is of exceptional interest. But there is little explanation about the assessment of those different interests. The total amount will be decided by the Minister of Culture after the judgment of the Superior Council of Archaeological Research [French: Conseil supérieur de la recherche archéologique]. For cultural property that is not devolved to the State, the text provides the possibility of takings with a just and prior compensation. In case of disagreement, the high court is competent (TGI). This provision demonstrates a desire to protect ownership, as this form of takings is quite similar to the takings provided in general law. As for the power of expropriation of maritime cultural property, see this point elsewhere under the section forms of authoritarian acquisition by the state (1.2.1.). 2.2. Protection Regimes Applicable to Movable Cultural Heritage A distinction must be made between several types of protection applicable to movables. Some consider both movables and immovables. Some are specific to movables. First we shall point out that, as for immovables, the system does not aim to the recognition of collective rights. Protection is realized through administrative easements or through eviction of private property. The public owner is in France considered the best guardian for cultural heritage. The public domaniality regime as for immovables enables from this perspective a high level of protection (see below on this point). Regarding the decision making process, principles are somewhat similar to those applicable to immovables. The decision is very often taken by the central authority, for administrative easements as well as eviction modes (pre-emption right, takings, « Musée de France » label, classification as historic monuments or historic archives, etc.).

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2.2.1. Public Property as the Major Mode of Protection for Movable Cultural Heritage 2.2.1.1. Importance of the Movable Public Domain Concept for the Protection of Cultural Heritage The General Code of Public Property [French: Code général de propriété des personnes publiques] (henceforth abbreviated as CGPPP), which determines the rules applicable to the different forms of public property was adopted in 2006, and the Code of Cultural Heritage was adopted in 2004. There is a close relation between the two codes concerning movable cultural heritage. The CGPPP has indeed defined the public domain of movable property in reference to the Code of Cultural Heritage. The public domain of movable property is especially concerned with cultural property. The explanation for this approach originates from the fact that the notion “public domain of movable property” was a matter which was seriously in dispute at the moment of the adoption of the CGPPP. The public domain is a very protective form of public property. Property which falls under it is inalienable, imprescriptible, and cannot be seized. Certain people wished to preserve this very protective form only for the public domain of movable property. However, the Ministry of Culture convinced the government to maintain this system for cultural property. Numerous cultural objects are in public collections and this system of property, particularly the rules of inalienability and imprescriptibility, allow to better assure their protection. The circle of objects which benefit from this regime is clearly centered on cultural property. This method clearly differs from the one previously used, based on the public allocation criterion, without any regards to the nature of the property and notably its cultural chracteristics. This condition of allocation split into two conditions and resulted either in the allocation to the direct use of the public or in the allocation to the completion of a public service. Regarding this requirement case law already considered that museum works of art, public archives or manuscripts, and books in public libraries fell under this regime of public domaniality. The new Article L 2112–1 of CGPPP consolidates this construction. But the circle widens to a form of public domain by nature. It is noted in particular that objects stemming from archaeological excavations are part of the public domain when their owner is a public entity simply because of their entry into public heritage. Article L 2112–1 of the CGPPP provides: Without prejudice to the provisions regarding the protection of cultural property, are part of the movable public domain of the public entity owning property with a public interest from the perspective of history, art, archaeology, science or technology, including:

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marie cornu 1° An identified copy of each of the documents of which the deposit is required for the purposes of establishing a national memory by Article L 131–2 of the Code of Cultural Heritage; 2° Public archives within the meaning of Article L 211–4 of the Code of Cultural Heritage; 3° The archives from private funds entered into public collections by acquisition, gift, bequest or donation; 4° Movable fortuitous finds of movable which became or remained public property under Chapter 3 of Title II and Chapter 1 of Title III in Book V of the Code of Cultural Heritage; 5° Movable underwater cultural property within the meaning of Chapter 2 of Title III of Book V Code of Cultural Heritage; 6° Movables objects classified or registered under section 2 of Title II of Book VI of the Code of Cultural Heritage or located in a classified or registered building and contributing to the presentation to the public of classified or registerd parts of that building; 7° Movable objects other than those mentioned in 6° above, which present a historic or artistic interest, which became or remained public property under the law of December 9, 1905, concerning the separation of Church and State; 8° Museum collections; 9° Works and objects of contemporary art acquired by the National Centre for Visual Arts as well as collections of works and objects of art included in the inventories of the National Fund for Contemporary Art whose center receives custody; 10° Collections of old, rare or precious library documents; 11° Public collections of the Mobilier national et de la Manufacture nationale de Sèvres.

The benefit of the public domain regime is that it offers a high level of protection for cultural property. Cultural property is inalienable, imprescriptible, non-seizable and inviolable as a principle. The first rule enables the challenge of property unduly transferred by the public owner. Imprescriptibility enables the public owner to claim his property without any time limit and without having to compensate the possessor even where he would be a goodfaith possessor. A fragment of a Vendôme Column which had been dispersed in the nineteenth century (during the Paris Commune) was recently found as the result of an application for an export license. The judges confirmed that the column was part, by its nature, of the public domain of the State and that the possessor could not rely on possession because of the rules of imprescriptibility and inalienability. Even before the adoption of CGPPP, several special laws had recognized that certain categories of cultural property belonged to the public domain. This is the case of the 1905 and 1907 laws on the separation of Church and State, which provide for the imprescriptibility and inalienability of buildings allocated to the exercise of worship and objects they contain, while the law of January 3, 1979 on archives evokes the imprescriptibility of public archives. Article L 451–5 of the Code of Cultural Heritage is more explicit as it proToshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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vides that “property constituting the Musées de France collections belonging to a public person are part of the public domain and are, therefore, inalienable”. In the museum sphere, public domaniality has been specially adjusted and includes additional guarantees (see the system) with respect to the general law system (especially as regards the scope of the inalienability rule and the possibilities of disqualification from the public domain). 2.2.1.2. Facilitated Modes of Enriching Public Cultural Heritage French cultural heritage law contains a certain number of mechanisms designed to enrich the public cultural heritage, which are realized on an authoritarian or on a voluntary basis. 2.2.1.2.1. The Authoritarian Modes 2.2.1.2.1.1. Taking of Property The general law of takings only applies to immovables in the Civil Code (Article 545). The eviction of private property is thus not possible on the basis of Article 545, even if a movable would be of great value. That is why the special law pertaining to cultural heritage has admitted in some cases some kinds of “movable takings”. That is true for movable archaeological resources discovered through excavations. The State may, “in the sole interest of public collections, claim the ownership of the resources excavated” or fortuitously discovered with compensation paid to the owner of the object. Takings are allowed in the sole interest of public collections. This means that a purely scientific interest is not sufficient. There must be a “patrimonial” interest. The right of the State to claim ownership may not, however, be exercised “for the discovery of movables consisting of coins or precious metal objects without an artistic character”, a concession made to the right of ownership. The same possibility is available for underwater cultural property, this time in terms very close to the general law rules applicable to takings under Article L 532–11 of the Code of Cultural Heritage. I did not tackle the question of expropriation here. But the system of property of objects obtained from archaeological excavations is described more in detail further. The system is intricate and varies according to the modalities of the archaeological excavations (preventive excavations, excavations carried out by the State, or accidental discoveries). In case of the first two hypotheses, there is a rule of division by halves between the State and the owner. In case of the last hypothesis (accidental discoveries), the division is realized between the finder and the owner of the land. The objects of the excavation are protected, from the very moment of their discovery, by virtue of their scientific interest. The Code of Cultural Heritage notably organizes the registration of the objects. Once they have been studied, the objects can be added to the public collections or be protected as Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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historic monuments. At that moment in time the question of their belonging to cultural heritage arises. “The administrative authority may, after giving the owner an opportunity to submit its comments, declare of public utility the acquisition by the State of an underwater cultural property located in the maritime public domain. Failing the owner’s consent, public utility is declared by decree in CE”. The transfer of ownership is decided by the judiciary courts for compensation paid priorily to the taking. This allowance should cover the entire direct, material and certain loss. Failing agreement, the compensation is determined by the court.” 2.2.1.2.1.2. Pre-emption Right at Public Auctions French law has also provided the opportunity for the State to pre-empt property at a public auction for works of art and movables of high historical or artistic value and for archives. For objects and works of art, the principle is set forth in the Law of 31 December 1921 now codified in Article L 123–1 of the Code of Cultural Heritage. The historical context of the adoption of this text is interesting to recall. The law replaces a 1920 law which established an extremely restrictive export control with a very wide scope of application. It allowed the State to purchase in an authoritarian way cultural property which was likely to leave the territory. The text, poorly received in the art market, was quickly repealed and replaced by the Act of 1921, which uses another method. The right of pre-emption is preferred to this technique, which amounts to takings. It is considered far less radical as it is the owner who seeks to sell his property. The right of pre-emption is only applicable in the case of sales by auction. If the ownership is transferred without notification, the persons in charge of declaring the sale take responsibility, but the sale cannot be put into dispute. Forbidden sales and sales subject to authorization concern a small number of cultural objects. On the other hand, property of the public domain which is renowned as inalienable is largely concerned. Under certain conditions, it can be alienated, but only under very limited conditions for transfers of property between public “Musées de France” or also for transfers of property of objects classified as historic monuments belonging to territorial communities. (I described this system elsewhere.) For archives, the right of pre-emption asserted in the Law of 3 January 1979 on Archives, is realized within very close terms (Article L 212–30 et seq. of the Code of Cultural Heritage). The right of pre-emption is exercised by the State, either on its own behalf or on behalf of local authorities, or at the request of foundations or associations of public utility. Despite the fact that the rule is not written, this prerogative of public power should be available only for major works. The right of pre-emption of movable objects in public auctions concerns only property Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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of high historical value and archives. There is a strict requirement for the cultural value of this property. However, the right of pre-emption is used to buy very different types of heritage (ethnological heritage, scientific heritage, for example collections of minerals, etc.). For smaller objects, in principle, public persons should intervene in the sale as any other buyer. But the rule is in practice not always respected. The solution is not only relevant to ethics. It is arguable that this solution asserts itself in regard to respect of property. When the State decides to pre-empt a property, it should not manifest this decision before, nor during the auction, so as not to influence the bids. Once the object is sold the State is awarded a period of 15 days to confirm its intention to pre-empt. If so, the State replaces the last bidder within the conditions laid down at the auction. Broadly speaking, the means available to the public collectivity to expropriate a movable property are quite limited. They reflect a greater reluctance to jeopardize private property rights regarding movables, as well as the more liberal orientation that cultural heritage law has adopted, influenced by the logic of free movement within the European Union. 2.2.1.2.2. Voluntary Modes The enrichment of public collections can also be achieved on a voluntary basis. French law has instituted a number of incentive mechanisms, including tax incentives. One of the most significant means is the technique of “giving in payment”, which enables a physical or moral person to free itself of debt by giving a work of art (Article 1716 bis of the General Tax Code). The rule was introduced in 1968 under the leadership of Malraux and allowed entry into public collections of major works of art, some of which came from the succession of great artists (Matisse, Picasso, Cezanne, etc.). This technique follows a complex procedure. The giving in payment offer is examined by a commission composed of representatives of the Ministry of Culture, which gives its opinion on the acquisition. In light of this opinion, the decision is made by the Minister of Budget on proposal of the Minister of Culture or any other minister eventually concerned by the acquisition. As for the pre-emption right, giving in payment relates exclusively to property, works of art, artifacts and documents of high cultural value. In addition, the criterion of allocation, meaning the collection to which the cultural resource is intended, is a fundamental criterion in the way that the cultural resource must come to fill a gap in French collections to be eligible for the giving in payment. The degree of requirement seems particularly high in the implementation of this system, although a broad concept of cultural heritage is developed. All sorts of objects can be offered as a giving in payment; not only works of art, but also scientific heritage and natural collections, provided that these items are exceptional. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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French law also provides another mode of acquisition by the public collectivity in relation to the export control of cultural property. Under the previous system (Act of June 23, 1941, repealed) the State had the ability to retain cultural property within the territory and to purchase it on an authoritarian mode, a sort of takings, which has now disappeared. The new device recast by the Act of 31 December 1992, is indeed of a more liberal inspiration, being influenced by the rules on free movement within the European Union. When the public collectivity identifies a property of major importance for national cultural heritage which does not enjoy special protection, the State has the power to make an offer of purchase under certain conditions to the owner. In this context, the owner is very strongly encouraged to sell his property to the State (see description below regarding modes of movement control). 2.2.2. Administrative Servitudes—Generalities 2.2.2.1. Protection Modes Applicable to Movables and Immovables A certain number of mechanisms provided by French cultural heritage law concern movables and immovables but organize specificities. It is thus the case of the protection as historic monuments and the law applicable to the “Musées de France”. There exist lists which make an inventory of objects which are protected as historic monuments, as well as museum inventories which list their collections. However, there is no unique list of movable cultural property. These lists do not have any legal effect for the protection. They only state the existence of protection. 2.2.2.1.1. Protection as a Historic Monument This protection provides rules applicable to both immovables and movables, but within this mechanism, the two protections are distinguished (they are presented in two successive chapters) and split on some issues (for details see below on the different modes of protection). While welcoming as a historic monument both movables and immovables, the protection remains very compartmentalized, each scheme deploying its effects separately. The major problem of this distributive system is that immovables “by destination” are protected as movables and not immovables. Immovables by destination are movables which have been assigned by the owner perpetually to his tenement, most of the time for decoration (wood trims, tapestries, mirrors, statues), or integrated into the building by a system which clearly demonstrates the owner’s will to immobilize his property. Article 525 of the Civil Code gives some indication on the types of property concerned. Under this article: “An owner shall be deemed to have attached Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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movables perpetually to his tenement, where they are fastened with plaster, mortar or cement, or where they cannot be removed without being broken or damaged, or without breaking or damaging the part of the tenement to which they are affixed. The mirrors of an apartment shall be deemed perpetually placed where the flooring to which they have been fastened is part of the panelling. It shall be the same as to pictures and other ornaments. As regards statues, they are immovables where they are placed in a recess designed expressly to receive them, even though they can be removed without breakage or damage.” The connection of these immovables to the regime applicable to movable objects means that when a classified building contains elements qualified as immovables by destination, the latter are not subject to the administrative easement and may thus be dispersed. The owner may well separate them or sell them. The rules on protection of historic monuments are not applicable in this case. The question is all the more delicate because case law is not stable regarding the qualification of these immovables by destination, deciding, in very similar cases, to classify property sometimes as immovable by nature and sometimes as immovable by destination (e.g., about wood trims or libraries specially designed for a building). To overcome these difficulties, a bill has suggested that the protection of mixed ensembles be taken into account and thereby create an easement to ensure their non-dispersion and to maintain them in situ. Under Article 3, the text provided: “Movables and immovables by destination belonging to an ensemble classified under the provisions of the seventh paragraph of Article 1 are maintained in situ; they may not be removed or detached without the authorization of the competent authority of the state.” This text was adopted on first reading at the National Assembly on April 3, 2001, but has remained unanswered before the Senate. It has indeed struck a deep reluctance, criticized because it bore an excessive violation of property rights. 2.2.2.1.2. “Musées de France” Moreover, the “Musée de France” label is granted to public collections without any regard to their nature. A museum collection may consist of immovable elements. This is for instance the case of museums established on cultural heritage sites. The status of immovable and movable property is similar (see below). 2.2.2.2. Protections Specific to Movable Property Some categories of movables have a specific status, such as archives (Book II, Code of Cultural Heritage), defined as all the documents produced or received by a person exercising his/her activity. This is also the case of archaeological resources which are subject to distinct provisions regarding the regulation of their search and their ownership (Book V, Code of Cultural Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Heritage). French law also provides rules for controlling the movement of cultural property (Book I, Code of Cultural Heritage). The most prestigious cultural objects (national treasures) shall thus not be definitively exported. These mechanisms are described below. 2.2.3. Legal Framework for the Protection of Movable Cultural Heritage 2.2.3.1. Protection as Historic Monuments Movables or immovables “by destination” may be protected as historic monuments. This protection is quite similar to the protection of immovables. The protection as historic monuments concerns indeed as much protection for immovables as for movables, and the same two forms of protection can be found: classification and registration for movables. There exists a list which makes the inventory of classified and registered objects. The mobility of property imposes specific rules. 2.2.3.1.1. Main Common Provisions Regarding the Classification of Movables and Immovables as Historic Monuments Criteria which have to be fullfilled in order for cultural heritage to be protected as a historic monument, either through classification or registration, are common to movables and immovables. Some cases in which judges discuss the interest of art and history regarding the classification of cultural heritage as historic monuments give evidence of the requiremnents on this issue. Regarding a painting made by Ingres and representing the Duke of Orleans, the judges affirmed that the painting was worth being classified given the exceptional quality of the painter as well as the historic role its model played in the history of France. Generally, both criteria of art and history are often mingled as in this case. The artistic aspect is sometimes assessed more in regard to art history rather than its own intrinsic artistic qualities. As for a Van Gogh painting, the painter’s quality, the specific qualities of the painting in regard to all of the painter’s works was taken into account. Obligations imposed on the owner for the preservation of movable cultural property are expressed in similar terms as those for the preservation of immovables. The owner whose property has been classified may not freely dispose of his property. Under Article L. 622–7 of the Code of Cultural Heritage: “The objects classified as historic monuments shall not be altered, repaired or restored without the authorization of the competent administrative authority. The authorized work must be conducted under the scientific and technical control of the services of the State in charge of historic monuments. A decree in the Conseil d’Etat specifies the categories of professionals to which the owner of a movable property classified as a historic monument or of a classified organ has to entrust the realization of the work.” Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Classified movables are also imprescriptible. This is of great use for the owner as it allows him to challenge theft or other assumption of illicit dispossession, without any time limit. As for immovables, classification decision is taken by the Minister after consultation of the CNMH (National Commission on Historical Monuments) or by decree in CE if the owner does not agree. In case of an automatic classification, the owner must prove he suffered a loss in order to receive compensation. 2.2.3.1.2. Main Differences and Specificities Regarding Classification as Historic Monuments Some differences arise regarding the status of cultural property, which is in some respects more binding for immovables than for movables, especially regarding the duty of preservation. For instance, the possibility of takings is provided for immovables when their preservation is compromised. But no similar rule is provided for movables. In addition, the modalities of automatic intervention in case of threat to property are more complex for immovables. As for movables, they only apply to classified public property. These differences are explained by the consideration of private property and the balance sought in relation to the public interest of protection. This balance is not achieved in the same terms for movable and immovable heritage. The public interest is less significant as it regards movables (on this issue see also below the balance of interests between the imperative of law and the protection of movable property). The protection process is also different, at least during the consultation and investigation phase. The proposal of classification is addressed to the Minister of Culture by the prefect of the department after consultation with the departmental committee of movable property. Some specifics are also explained regarding to/by the movable aspect of property and the necessity to fight against risks of movement, dispossession, subtraction of the protected property. In addition to the duty to preserve, the owner must present the property to the competent authority. Article L 622–8 of the Code of Cultural Heritage provides a procedure of recollment every five years. The owner must inform the authority of any movement and any transfer of ownership in order to follow the movement of the property in the hands of successive owners. Movables classified as historic monuments may only be exported temporarily. They are considered national treasures by the law (Article L 111–1 of the Code of Cultural Heritage). Definite export of classified movable objects is prohibited inasmuch as this category of protected cultural property is considered as a national treasure. On the other hand, temporary export is admitted under circumstances which are specified by the legislator: restoration, exposition, loan, or storage. In this Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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case, an authorization of temporary export must be applied for at the Ministry of Culture. The export application must specify the dates of return and the conditions under which the object is preserved or held abroad. Finally, there are specific provisions regarding the status of publicly owned movable property whose owner is public. This public owned property is in the public domain of the State within the meaning of Article L 2112–1 of the CGPPP. 2.2.3.1.3. Registration as Historic Monuments The mechanism gives rise only to an obligation of information. Despite the measure not being very imposing, French law still hesitates to bind the private owner if he has not given his consent, contrary to the system applicable to immovables. This is for the same reason: consideration for private property. Until 2005, the procedure was only applicable to movables owned by a cultural association. The Ordonnance of September 8, 2005 extended the registration procedure to movable property in private hands. However, this protection can only be achieved with the owner’s consent. There is a list of registered objects kept by the Ministry of Culture. The registration of private cultural property cannot be realized without the consent of the private owner. However, the registration of public cultural property does not require the consent of the public owner (for example the registration of a painting which is property of a city). The registration procedure is delocalized at the department level (not at the region level as is the case for immovables). The rights of the owner in case of registration are not so much violated, opposite to what happens in case of classification. The main obligation in charge of the owner is an obligation of notification of the legal and material situation of the property. Concerning the financing and the aid, this aid is much less important than for immovables and it does not have an automatic character. The owners can assemble a dossier for the financing of restoration works, for example, and the administrative system remains free to accept the financing or not. The law, nevertheless, stipulates specific rules which affect public owners. Notably, territorial communities which are owners of objects classified as historic monuments must establish a budget for their preservation. 2.2.3.2. Status of the “Musées de France” Collections Article L 410–1 of the Code of Cultural Heritage defines a museum as: “[a]ny permanent collection consisting of property the preservation and presentation of which are of public interest and organized for the knowledge, education and delectation of the public”. This method is quite similar to that of historic monuments and is focused on the concept of public interest. Actually, the legislation on historic monuToshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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ments has greatly inspired some provisions of the legislation on “Musées de France”. Different kinds of public or non-profit private museums can be considered for this qualification: museums of fine arts, scientific collections, thematic museums, site museums, homes of writers, etc. Under the same label, private and public collections are subject to a set of common rules. The private or public ownership of cultural property however, interferes with the status of collections. 2.2.3.2.1. Main Provisions Applicable to Private and Public Collections Common rules apply with regard to the material and legal movement of the collections as well as to their preservation and restoration. Cultural objects which are part of these collections are qualified as national treasures and thus may not be exported (except temporarily). Private and public objects are imprescriptible. They may thus be claimed by their owner without any time limit. This ensures an efficient protection against illicit trafficking as long as the property is within the territorial state. They are also non-seizable. The rule of imprescriptibility in French law concerns not only property in the public domain, but also certain private cultural property which is subject to specific protection in the Code of Cultural Heritage. It is in this way that private movable objects classified as historic monuments and also the “Musées de France” with a private status are imprescriptible. When claimed cultural property is public property, there is no compensation for the bona fide owner by virtue of the rule according to which property in the public domain can be claimed without compensation. Nevertheless, this rule suffers one exception. In the case where these public goods are historic monuments, the Code of Cultural Heritage stipulates that the bona fide owner will be compensated. In this case, good faith (bona fide) is assessed according to common law. Private museums qualified as “Musées de France” benefit from public prerogatives such as the pre-emption right which the State may use for them at public auctions. This right of pre-emption is exercised under the same conditions as for any pre-emption on auctions (see explanation on the system above). “Musées de France” are submitted to scientific and technical controls. Moreover, any acquisition or sale requires the consultation with a special committee which ensures the consistency and quality of the collections. 2.2.3.2.2. Main Specific Provisions Applicable to Private Collections The application for the “Musée de France” label by a private person requires that a clause of its statutes provide the irrevocable allocation to the presentation of the public, of property acquired through donations and bequests or with the assistance of the state or a local authority. These goods are not inalienable, but they must remain allocated to a “Musée de France”. They can Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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be transferred to a private or public corporation which becomes committed to maintaining this allocation. Concerning the consequences of the label, I described at the same time the common rules on the “Musées de France”, regardless of whether they are private or public (3.2.1.). To this are added rules which are specific to one or another category of collections. Indeed, the private or public character of the museum changes certain obligations. 2.2.3.2.3. Main Specific Provisions Applicable to Public Collections Articles L 451–5 and following articles of the Code of Cultural Heritage contain a number of provisions related specifically to the status of collections whose owner is a public person, thus performing some flexibility particularly regarding the movement of cultural property, and by strengthening the status of these public cultural objects. 2.2.3.2.3.1. Possible Transfers of Cultural Property Belonging to the Public Domain The possibility of a free of charge transfer is authorized only between public persons. It does not, however, concern works of art given to the State by donation (Article 1131 of the Tax Code) neither given as payment to the State (Article 1716 bis of the General Tax Code). The reason is that the condition of allocation is very important in both of these procedures and the possibility to transfer the property might weaken it. 2.2.3.2.3.2. Additional Guarantees According to Article L 451–5 of the Code of Cultural Heritage: “[p]roperty constituting the “Musée de France” collections and owned by a public person are part of their public domain and are, as such, inalienable (. . .)”. Particularly the question of inalienability concerns only public museums. For private museums, they can be transferred. As such, their transfer is not always free. For certain categories of property, the transfer must inevitably be realized for the benefit of another “Musée de France”. It is a matter of bequeathed or given property, and property acquired with public funding (the text does not specify the height of the amount). Nevertheless, the law provides the possibility for a property to be removed from the public domain if it is of no interest, or not longer of interest (for instance duplicates). This possibility already exists in the general administrative law of property. What changes is, on the one hand the explicit possibility to remove the property, and on the other hand, the establishment of a special procedure with the use of an ad hoc authority able to express its opinion on the merits of classification. The downgrading of an object is decided by the Minster after an approval of the National Scientific Commission [French: commission scientifique nationale]. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Article L 451–1 states: Any disqualification decision of a property may be taken only after consultation of a scientific committee which composition and functioning modalities are determined by decree.

This can easily be understood to mean that the removal of a property must be very exceptional and not become a general tool for the management of collections. This decision was here in some ways recentralized. In the case of the Rouen Museum mentioned above, the decision to return the Maori head had been taken by the City Council without consulting the ad hoc committee; that is why the judges cancelled the decision. Another mechanism consists in “re-purchasing” disqualified cultural objects. When a property removed from the public domain is for sale, the State has a preference right and may purchase it. Finally and conversely, some property can not be disqualified. These are cultural objects which integrated a collection through a bequest or a gift and, for collections that do not belong to the State, those which were acquired with funding from the State. This guarantee’s particular purpose is to reassure donors on the fate of the objects they transfer. This impossibility of disqualification obviously complicates the issue of the Maori head case which entered the collections of the Rouen Museum through a donation. If this hypothesis was confirmed, it would mean that the head should remain in the collections, except to admit a higher interest based on the idea of human dignity. But it does not seem that the French courts easily welcome or accommodate this ground. The administrative court of Rouen found that the detention of the Maori head did not violate the principle of dignity as reflected in Article 16–1 of the Civil Code. 2.2.3.3. Status of Archaeological Resources On Land The law regulates the status of archaeological excavations that may be conducted in various ways: preventive archaeology and programmed archaeology. The law also considers fortuitous finds. In each case, the law provides for the protection of movable archaeological resources, distinguishing the scientific study and the interest in protecting these resources as cultural heritage. The Code of Cultural Heritage organizes their custody for scientific study. The question of ownership is subject to specific provisions. Recent reforms have multiplied assumptions of the devolution of excavated resources to the State. Any buried object discovered by chance over which nobody claims property rights is a treasure. This definition is a useful tool for the identification of the owner. In common law it works as follows: if the owner makes the discovery on his land, he is the owner of the discovered objects. If it is a third person who discovers the object by chance, the property is divided by half between the

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person who discovered it (the finder) and the owner of the land. This rule can not apply on objects discovered as a result of archaeological excavations, since the accidental character is lacking. In this case, the Code of Cultural Heritage provides special clauses according to the way in which the excavations are conducted. Preventive archaeological excavations and archaeological excavations carried out by the state: division by half between the State and the owner of the land. 2.2.3.3.1. Excavation Controls According Article L 531–1 of the Code of Cultural Heritage (Code du patrimoine): “No one shall undertake on his own land or on the land of another any sounding or excavations that may be of interest to prehistory, history, art or archaeology without having priorily obtained an authorization.” This rule impedes the free disposal by the landowner of his subsoil. Article L 531–14 of the code also imposes an obligation to immediately declare fortuitous finds: When as a result of works or of any fact whatsoever, monuments, ruins, substructures, mosaics, elements of antique pipework, traces of habitation or ancient burial inscriptions or more generally objects that may be of interest to prehistory, history, art, archaeology or numismatics are discovered, the finder of these remains or artifacts and the landowner are required to immediately declare those finds to the mayor of the municipality, who must pass it on without delay to the prefect. The latter notifies the competent administrative authority in the field of archaeology. If objects found were left to a third party, the latter must undertake the same procedure and make the same statement.

2.2.3.3.2. Study and Ownership of Archaeological Resources The rules regarding the devolution to the State of these objects which are mentioned in Book V of the Code of Cultural Heritage must be taken into account. These rules differ depending on the excavation’s modes of realization, knowing that in most cases the methods used for carrying out excavations, the text provides a specific time for scientific study. The ownership issue is settled after it expires. Moreover, in several cases, the Code of Cultural Heritage provides a mechanism for the devolution to the State of half of the finds. When the property falls to a third party, the State may still exercise his right to claim this property (see above on methods of public cultural heritage enrichment). 2.2.3.3.2.1. Preventive Excavations Preventive archaeology is defined by Article L 521–1 of the Code of Cultural Heritage: Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Preventive archaeology, which is a public service mission, is an integral part of archaeology. It is governed by all the principles applicable to any scientific research. Its purpose is to ensure, on land and underwater, within appropriate time limits, detection, conservation or safeguarding by the scientific study of all the elements of archaeological heritage allocated or likely to be allocated by public or private works contributing to land development. It also seeks the interpretation and the diffusion of results.

Excavations are thus realized before urban development works. In this case and according to Article L 523–12 of the Code of Cultural Heritage: “archaeological resources excavated from preventive archaeology operations, are entrusted, under control of the State services, to the operator of preventive archaeology for a delay necessary to writing of the operation report. This period may not exceed two years . . .” At the end of this two-year period, ownership is divided, with half going to the State and half to the landowner. The State may take the property of the landowner without any compensation. If the landowner does not express himself within one year, he is presumed to have abandoned the property. In this case, no compensation is due to him. The ownership of these remains is then transferred at no cost to the State. However, the State may in turn transfer, without any charge, the ownership of these remains to the municipality where the property was discovered. 2.2.3.3.2.2. Excavations Authorized by the State Rules of civil law apply here. The ownership of the remains is vested in the landowner, under the rules of accession, unless otherwise agreed. In practice, excavation agreements very rarely provide clauses relating to property. 2.2.3.3.2.3. Excavations Carried Out by the State According to Article L 531–11 of the Code of Cultural Heritage: “[t]he archaeological resources from excavations carried by the State are entrusted to the State during the period necessary for their scientific study. After this period, which may not exceed five years, ownership of movable archaeological resources is shared between the State and the landowner, in accordance with the rules of general law . . .” This means that the State is the owner of half of the objects discovered. 2.2.3.3.2.4. Fortuitous Finds Article L 531–16 of the Code of Cultural Heritage also provides that the custody of fortuitous finds for their scientific study should not exceed five years. After this period, ownership is settled in accordance with civil law and in particular with the rule of Article 716. According to this rule, ownership of treasure troves is shared equally between the landowner and the finder. Treasure is not necessarily qualified as cultural heritage. Fortuitous finds are Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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considered treasures under Article 716. Treasure can be defined as any hidden object discovered inadvertently to which no one can prove title. 2.2.3.4. Status of Underwater Cultural Property See above the developments on immovables. 2.2.3.5. The Status of Archives The Law of Archives codified within Book II of the Code of Cultural Heritage provides a set of rules applicable to archives, which are defined as: “. . . all documents, regardless of their date, their form and their material support, produced or received by any moral or physical person or by any department or any public or private body in the exercise of their activity.” (Article L 211–1 of the Code of Cultural Heritage). The definition of archives responds to an organic conception. The relation between the person who produces and receives and the environment of the activity allows determination of the public or private character of the documents. For example, when a civil servant addresses a correspondence to another civil servant, one is indeed in the environment of a public activity, and the document will be received by a public service. Therefore, it is a matter of a public archive. The conservation and the disposal of these documents are held “in the public interest both for management purposes and the justification of rights of individuals or legal entities, public or private, as well as for the historical documentation of research.” (Article L 211–2 of the Code of Cultural Heritage). Two categories of documents are distinguished, public and private archives. 2.2.3.5.1. Public Archives Public archives produced or received by a public person or a person vested with a public service mission, obey rules of communication which differ with the degree of sensitivity of the information contained therein. The deadline for communication according to general law is thirty years from the production of the material, but a series of special deadlines also applies (60 years for privacy or security of the state, 100 years for statistical studies, 150 years for medical records, for example). Public archives of public persons are part of the public domain (on this point, see above) and are thus imprescriptible and inalienable. A bill is currently under discussion for first reading at the National Assembly after having been voted on by the Senate on January 8, 2008. This text modifies the system and the delays of communication. For the thirty years period is substituted a principle of free immediate communication with a special series of delays ranging from 25 to 100 years. The new text also oversees protocols for some useful provisions regarding claims of ownership. In particular, the rule of imprescriptibility also applies and is completed by a Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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number of provisions useful for claims related to archives. The draft of Article L 212–1 is formulated as follows: Public records are imprescriptible. No one may hold without any right or any title public archives. The owner of this document, the archives administration or any competent public service of archives may bring an action to claim public archives, to declare void any act of infringement occurred within the second paragraph, for their restitution.

This text is under discussion and should be voted on by the end of May 2008. The communication delays issue could notably differ. 2.2.3.5.2. Private Archives The status of private archives is specific in several respects. On the one hand, the disclosure of documents is in the hands of the owner who may, even when he transfers his archives to the State, impose any restrictions. Where appropriate, intellectual property might also be included if the document may be considered a protected work of art. In addition the text provides the possibility of classification of historical archives. Previously, such protection was considered for historic monuments (within the chapter on movables). But the law of 3 January 1979 on archives, the founding text regarding the status of archives in general (codified in Book II of the Code of Cultural Heritage), aimed to gather the relevant provisions applicable to archives, and thus introduces a specific mode of protection largely inspired by classification as historic monuments. In the same way, classification carries an obligation of conservation. The owner of classified archives can not freely dispose of them. In particular, he must seek the agreement of the administration in case of alteration, or any operation that could alter archives. He must inform the administration of their alienation and must submit documents to accredited agents where required. The classified archives may not be exported. They are considered national treasures. They are imprescriptible. Having notably been classified are archives of publishers or the archives of the Communist Party. The law of archives has established an original mechanism regarding exportation. At the time of the export license application, the State may subordinate its issue to the achievement of the total or partial copy of the document. This provision is particularly useful for documents that derive their value from their documentary nature, given the information they contain. The bill currently under discussion has sought to harmonize the procedures for the classification as historic monuments and archives, and intends to strengthen the protection as classified archives.

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2.2.3.6. Balance of Interests between Ownership and the Need for Heritage Protection The balance of interests is not achieved through the same terms regarding immovables and movables. If the principles are similar, judges pay more attention to the owner’s rights, a trend that can be found in several ways. 2.2.3.6.1. Compensation as a Result of Classification Easement as a Historic Monument For movable as well as immovable property, the law provides an opportunity for compensation when the owner of an automatically classified object as a historic monument demonstrates that he suffered a direct, material and certain loss as a result of the classification. The question arises in particular for objects and works of art that the owner wishes to sell. As classification prohibits exportation, the international market is closed to the seller. Case law considers that the resulting loss of value is a certain prejudice. This was applied to the classification of old cars and also to a Van Gogh painting: this is the famous Walter case. The first judges had allocated 422 million French Francs to the owner for the loss he suffered. This amount was reduced to 145 million by the Appellate Court. The Court of Cassation had approved the decision. Agreeing with the certainty of the loss, the Court of Cassation could not challenge the amount of compensation as it was not of its own appreciation but of the appreciation of the trial and Appellate Courts’ judges. In fact, the administration rarely proceeds to automatic classifications as it may as a result, give compensation to the owner. The classification does not prevent the owner from selling his property. However, the purchaser cannot export the classified object. It is only there that international transfers are affected by classification. For objects which are simply registered, there is no export prohibition from the territory. 2.2.3.6.2. Price Determination Regarding Purchase Offers of Cultural Property Immobilized on the State Territory under Article L 121–1 of the Code of Cultural Heritage This development does not concern classified cultural property, but cultural objects for which a certificate is required. When the State estimates that the object has a high value, it refuses the certificate and makes a purchase as provided by Article L 121–1 of the Code of Cultural Heritage. The law requires that the offer take into account prices on the international market. This is the first time this concern appears in a special text. Article L 121–1 of the Code of Cultural Heritage provides a complex procedure for appointing an expert who shall determine the price (see above for a development on this procedure). We can consider that the conditions of respect of ownership rights are fulfilled. A doubt may however be raised regarding the sanction attached to Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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the owner’s refusal to sell his property to the State. The owner may decline the purchase offer but he will not be able to export his property, as the refusal of the certificate can be renewed without any time limit. The text also states that the owner will not be entitled to any compensation because of this easement. The sanction is thus heavy and one may question in this case whether property rights are not significantly affected. This paragraph does not concern classified property, but cultural property for which a certificate is required. When it estimates that the property has a high value, the State refuses the certificate and embarks upon buying it. This can be renewed without time limitation. However, as such, the object is not classified. This procedure has been described above. 2.2.3.6.3. Implementation of the Pre-emption Right Regarding Export Controls The issue of property rights consideration arises regarding the setting forth of the various means according to which the State has to declare that a property is part of the national heritage and shall thus be preserved on its territory. The implementation of the pre-emption right in relation to cultural property movement control mechanisms is particularly questioned. The judges notably consider that the decision of the State not to pre-empt an object at an auction shall not be interpreted as a signal of a possible future exportation. This was affirmed by the Administrative Court of Appeal of Paris regarding the refusal to issue an export license for a painting of Le Nain (“The denial of Saint Peter”): “Considering that the challenged decision taken in accordance with the procedures established by the law of 31 December 1992 which reconciles the preservation of national heritage with the guarantee of private property has not infringed property rights; considering that if the art gallery supports on this point that the ability that would thus be given to the administrative authority would be arbitrary and would leave the owner ignorant regarding the ability to export this property and to further delay its exportation, or to create the false belief that the painting could leave the territory, it follows from the above-mentioned provisions that the export license which does not have the same object, nor the same effect as the right of the administrative authority to pre-empt works of art and resulting in the owner’s dispossession of property does not, as alleged by the Gallery, imply excessive restrictions to property rights.” However, it is quite difficult to contemplate that the State will use its preemption right if it has granted an export license priorily to the auction, made all the more so because this property is supposed to be of great value. Symmetrically, what if the State refuses to grant an export license but the owner decides to sell his property at public auction? In our view, there would be no obstacle for the State to exercise the right of pre-emption. Having expressed its interest on the value of the property, and therefore having reported to the owner an intention to integrate the property into the national Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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heritage, the State could not be blamed in our view, of exercising its preemption right. If one can believe that the sale will take place in less favourable conditions for the owner, the latter has other means to sell his property, especially the regulated purchase procedure which guarantees him to obtain the international market price. 2.2.4.1. Civil Law Rules Applicable to Transactions Rules applicable to the transactions of works of art are general law rules or rules regarding movable prescription provided in the Civil Code. These rules may nevertheless be influenced by the status of cultural property, some of which is declared imprescriptible. 2.2.4.1.1. General Law Rules In terms of transactions, the French system favors the good faith possessor. Article 2276 of the Civil Code states: “Nevertheless, the person who has lost or from whom a thing has been stolen, may claim it during three years, from the day of the loss or of the theft, against the one in whose hands he finds it, subject to the remedy of the latter against the one from whom he holds it.” The only weapon available to him if his claim is made beyond this period, will be to prove the bad faith of the possessor in which case the claim is open for thirty years. The question then focuses on the assessment of good faith, knowing that French law presumes the possessor to be of good faith. It is for the owner to prove otherwise. To be effective, good faith must bear certain qualities failing which the prescription can not start or produce its effects. Good faith must be peaceful (without violence), continuous (without interruption), public (with the knowledge and consideration of all ), unequivocal and as a title of ownership. The possessor had the full belief that he became the owner and he behaved as such. The judges had the opportunity to explain on several occasions the contours and conditions of good faith. Regarding the determination of the time at which good faith is considered, the court finds that the owner is in good faith if, upon entry into possession, he thought he took his property from the real owner. The presumption of good faith can be challenged if the defendant proves that the acquirer, given his knowledge or skills, should have doubted. The judges will be more demanding in the presence of professionals of the art market and museums. If they did not take some precautions as to verify the origin of the work, then whether they acted in good faith may be discussed. The judges are particularly interested in the amount of the transaction (if the work was sold at a poor price), the circumstances in which it is concluded, the dissemination of information regarding its illicit movement (for example the presence on a database of information that the property was stolen, or Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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even the mention on a sales catalogue, information in the press, etc.) and successive sales within a very short period of time. For an illustration of assessing the degree of care the actors must demonstrate, we can cite the decision of the Cour d’appel de Paris. About a painting acquired by the State for the Paintings Department of the Louvre Museum, the judges noted that “far from negligent or lightness, the services of the Direction of “Musées de France” have taken the precautions which where imposed by requiring proof of the notary in charge of settling the estate of the person identified as the owner of the painting and whose seller claimed to be the heir, and in view of accurate and consistent information on the identity of the owner, stated by other legal professionals such as the lawyers of the seller who had been deceived as well as the notary, and as stated in the catalogue of Christies . . .” Case law is not uniform in this area. This trend reflects the fact that good faith is within the discretion of the trial and appellate court judges. In a recent case, the judges seemed demanding with respect to an antique dealer. Commenting on the compensation for the bona fide possessor of an object classified as a historic monument, they stated that: “the purchaser evicted after seizure of a classified work of art whose alienation was illegal can not be deprived of the right to the reimbursement of the acquisition price of the statue of the Virgin (. . .) if at least is reported his good faith. But if the circumstances of his acquisition did not enable him to argue that the purchase has been motivated by the charm of the statue, having decided to sell it a few months after its acquisition, and in fact, continued his activity of an antique dealer, he was led by the aim of obtaining a substantial gain, it is not established that he had been aware of the fraudulent origin despite evidence of his expertise in medieval statuary and his market knowledge, since he can not be reproached for not having sought the true origin of the object acquired from a professional antepenultimate possessor of the statue, which had made the statue estimated by the gallery Christie’s in Amsterdam, describing it as a copy of the nineteenth century with a value of 2,000 guilders.” It was a virgin on which was inscribed the name of the town in which it was stolen . . . About a triptych acquired by the State under very advantageous conditions, judges reject the plea of the low value of the painting due to the particular method by which the State had acquired it (right of retention exercised at the time of export, text providing that the price chosen is the declared price). In addition, evidence was not reported that the price was lower than the value of the triptych. As to the argument of the lack of examination of the origin of the work, the fact that there has been no “circularization of the theft”, committed more than three years ago, fact that the State, according to the judges, may not be suspected of having maintained a doubt about the origin of the object. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Concerning the UNIDROIT Convention, which France has not ratified, there are several aspects of the convention that the actors on the art market dread. One of the main points concerns the notion of good faith (bona fide). In French law, the possessor is presumed to be in good faith. It is to the person who questions his property to provide the evidence of his bad faith. By imposing on the possessor of good faith the requirement to provide evidence that he exercised the required diligence, the UNIDROIT Convention would be contrary to the French rule of presumption of good faith. Nevertheless, one can discuss this argument inasmuch as the jurisprudence is more demanding when the possessor should have known. Consequently, certain decisions are not very far from demanding of the possessor a certain diligent behaviour in the acquisition (see examples above). Another criticism comes from the notion of “stolen cultural property”, which seems to be very largely agreed upon in the UNIDROIT Convention. Obviously, it is the rule according to which stolen property must be returned that thwarts the acquisitive mechanism of Article 2276 of the Civil Code. 2.2.4.1.2. Isolation of Prescription Rules Some public property is declared imprescriptible. The public owner may claim them without time limit, including situations where dispossession is very old and the possessor is bona fide. This concerns all public property under the regime of public domaniality. Movable property in the public domain is specified in the CGPPP [General Code of Public Property; French: Code général de propriété des personnes publiques], which quite largely defines the property which forms a part of it (see above, Article 2112–1 of the CGPPP). Finally, regarding cultural heritage law, some protected cultural property benefits from the rule of imprescriptibility. This is notably the case of properties classified as historic monuments, public or private collections that have received the label “Musée de France”. The owners of these properties, including private individuals, can claim them, within any time limit, knowing that the rule is limited with regard to the principle of territoriality of the public law. 2.2.4.1.3. The Compensation Issue According to civil law, the bona fide possessor has a right to compensation when he has acquired the property where regular settlements are achieved with established merchants, at a public auction, with an antique dealer or in a gallery. The owner may not have his property returned to him unless he reimburses the possessor for the price which it has cost him (Article 2277 of the Civil Code). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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This rule is waived when the claimant is a public person and the property is part of the public domain. French law considers that no compensation to the good faith possessor is due in this case. By exception, public movable objects classified as historic monuments give rise to compensation to the good faith owner. Under Article L 622–17 of the Code of Cultural Heritage: The bona fide purchaser or sub-purchaser, who holds the claimed property, shall be reimbursed for the price which it has cost him. If the claim is exercised by the administrative authority, the latter has a remedy against the orignal seller for the total amount of compensation it will have paid to the purchaser or subpurchaser. These provisions are applicable to lost or stolen objects.

This provision was implemented by case law regarding a statue stolen from the St-Gervais church. Judges applied the compensation rule, recognizing the possessor had good faith. The municipality was ordered to pay the sum of €10,910 to the possessor. 2.2.4.2. Private International Law and the Ownership of Works of Art French law does not address cultural property differently in relation to other property from the perspective of private international law. Thus, the traditional conflict rules in relation to property will be applied. The dispute about a cultural property will be decided by the law of the location of the property. If the property is located in France, the rights of the possessors will be assessed under the influence of French law. Judges, for example, have turned down the claims of the Stroganoff-Scherbatoff heirs claiming property stolen in Russia and located in France after their sale in Berlin. According to the judges: “[t]he possessor in France of a movable acquired abroad may validly oppose Article 2276 of the Civil Code to the person claiming the ownership of the said movable.” The question arises whether a foreign state is entitled to act on the basis of its public right. A judgment of the Court of Cassation had seemed to admit, as an exception, such a possibility in deciding: “it follows the principles of international law governing relations between states that, insofar as from the viewpoint of the forum law, their subject is related to the exercise of public power, the claims of a foreign state based on the provisions of public law may not be brought before the French courts; that, however, the principle may be rejected if, in particular regarding the perspective of the forum, the requirements of international solidarity and convergence of interests at stake justify it.” But doubts may be raised regarding the reality of this exception’s implementation. The issue whether a State is entitled to invoke its public right has also been raised. The argument came under discussion before the Court of Cassation Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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about statuettes of Nok African origin illicitly exported from the Federal Republic of Nigeria. The appeal criticized the confirmatory judgment to have ordered the cessation of the seizure whereas: 1° that the claim the State of Nigeria carried out in France, about objects which the State argued that the Nigerian law affirms they are state-owned and not subject to leave its territory, was necessarily based on Articles 544 and 2276 of the Civil Code, which protect the movable property; that by refusing to implement these texts, the judge ignored his office, and violated Article 12 of the New Code of Civil Procedure; 2° that acting in this way, the judge has not settled the dispute before it and violated Article 4 of the New Code of Civil Procedure; 3° that by refusing to grant a claim in a State on cultural property deemed, under its laws, its ownership and not subject to export without authorization, the Appellate Court violated, by refusing to enforce this texts, the Articles 544 and 2276 of the Civil Code; 4° that can not be a bona fide possessor the antique dealer, professional, who must know export prohibitions to which are subject cultural objects from Nigeria, to which of course Nigerian law is enforceable, and who is unable to produce any export authorization for the objects he owns; that the Appellate Court has violated Article 2276 of the Civil Code.

The Court of Cassation did not agree: “But considering that it is without violating his office, nor the subject of the dispute, seized on the basis of Article 13 of the Paris Convention of 14 November 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the Court of Appeal, which was not required to seek automatically the legal provisions such as to justify a claim they must judge on the basis of a determined text, did not consider the case under Articles 544 and 2276 of the Civil Code that the parties had not invoked; that the plea is not founded on any ground.” 2.2.4.3. Criminal Law Regarding the illicit trade in works of art, French law does not provide specific provisions for cultural property or works of art except rules on money laundering and rules of transposition for the European arrest warrant. The law regarding archives (§July 2008) provides for increased penalties on theft of protected cultural property. 2.2.4.3.1. General Law Receiving and theft are separately sanctioned. Theft is defined as the fraudulent appropriation of a thing belonging to another person. Receiving is considered in French law as a continuous misdemeanour. Receiving is the concealment, retention or transfer of a thing, or acting as an intermediary in its transfer, knowing that that thing was obtained by a Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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felony or misdemeanour. Receiving is also the act of knowingly benefiting in any manner from the product of a felony or misdemeanour. It is punishable by five years imprisonment and a fine of €375,000. The notion of receiver is quite wide as not only persons who hold the property, but also persons who benefit from the receiving may be considered a receiver. Article 321–1 of the Penal Code indeed states: – To conceal the fact, hold or transmit a thing, to serve as an intermediary to transmit knowing that this thing comes from a crime or offence; – The fact benefit knowingly and by any means, the proceeds of a crime or offence.

A major challenge in the fight against trafficking in cultural property is a disparity of laws. In particular is a snapshot period in Belgium (prescription time for action is three years from stolen). 2.2.4.3.2. Rules Specifically Applicable to Cultural Property 2.2.4.3.2.1. Criminal Law Destruction of Cultural Property The European Arrest Warrant Among the rules applicable to the European arrest warrant, the law provides that the condition of double incrimination is not required for some properties, including cultural property. The difficulty of implementing this rule lies within the definition of cultural property which is not uniform in French law (see above on how modes of conceptualization in French law). Obligations of the Art Market Actors People “whose business involves the sale of used or acquired movable objects from persons other than those who produce or trade them” must keep a register mentioning the “description of objects acquired or held for sale or exchange and allowing the identification of these objects as well as the identification of the people who have sold or transferred it in exchange.” This obligation is also stated as for companies involved in voluntary sales of chattels by public auction (Article L 321–10 of the Commercial Code). It concerns public auctions as well as online sales and online brokerage of cultural property. Under Article L 321–7 of the Penal Code, for those concerned who will omit “including through negligence, to hold on a daily basis, under conditions set by decree of the Conseil d’Etat, a register containing a description of objects acquired or held for sale or exchange and allowing the identification of these objects as well as the people who have sold or transferred it in exchange”, the penalty is six months imprisonment and €30,000 fine. Article L 321–7 provides the same penalties, “any person other than a legal professional officer or public officer organizing on public premises or Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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premises open to the public an event to sell or exchange articles described in the previous paragraph, to keep a daily register enabling the sellers to be identified, as required by a decree of the Conseil d’Etat.” Under Article L 321–8 of the Penal Code, “A penalty of six months imprisonment and a fine of €30,000 is incurred by the recording of inaccurate information in the register required by the previous article, committed by a person referred to in that article. The same penalties apply to the refusal committed by that person whose duty it is to present that register to a competent authority.” Regarding the rules on money laundering, professionals operating in the art market (auctioneers and persons involved in trade or organizing the sale of gems, antiques and works of art) have a reinforced obligation of vigilance resulting in the obligation of information and declaration of suspicion. The penalties for non-compliance with this obligation are administrative, disciplinary and/or criminal (Article L 562–1 of the Monetary and Financial Code). Since “the declaration of suspicion was made in due course, the registrant benefits from criminal irresponsibility regarding money laundering.” 2.2.4.3.2.2. In the Code of Cultural Heritage This code only provides a certain number of specific criminal provisions which punish quite heavily the non-compliance with export rules, the alienation regime and material violations made to cultural property (damage, destruction). In practice, however, it appears that these mechanisms are very rarely involved in the implementation of sanctions. There are very few specific rules on the matter of illicit trafficking of cultural property in the Penal Code. However, there are on the contrary many stipulations in the Code of Cultural Heritage, notably in the case of illicit archaeological excavations, illicit exports, subtraction of documents from archives, etc. These special stipulations are not always efficient, and are used very rarely by the administration. Export Rules Infringements Article L 114–1 of the Code of Cultural Heritage (Code du patrimoine) punishes by two years imprisonment and a fine of €450,000, any person who exports or tries to export: – definitively a national treasure or a cultural property without having priorily obtained the certificate where it is required; – temporarily cultural property without authorization or without respecting the limited stay conditions.

Infringements Regarding Archives Regarding archives, Article L 214–4 of the Code of Cultural Heritage punishes by a fine of €450,000, a sum which may be increased to twice the value Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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of documents, the destruction or alienation of classified private archives by their owner in infringement of the said provisions and the sale of private archives without the State being informed and being able to exercise its right of pre-emption. Article L 214–5 punishes by a fine of €3,750: – the alienation of classified archives without information to the purchaser of the classification; – realization, without administrative authorization, of any operation that could modify or alter classified archives.

Illicit Excavations Alienation, acquisition or concealment of any object found in violation of legal rules is punishable by imprisonment of two years and a fine of €4,500. This provision is intended both for terrestrial and underwater archaeology. The Code of Cultural Heritage also provides for specific offences regarding underwater cultural property, which punish: – Non-compliance with the declaration duty (fine of €3,750); – Carrying out prospecting, drilling and sampling in the course of excavations, moving objects (fine of €7,500); – Alienation or acquisition of cultural property removed from the maritime public domain or the seabed in the contiguous zone (two years imprisonment and a fine of €4,500 may be increased to twice the selling price of property).

Infringements in Regard to Classified Movables Alienation or acquisition of a classified movable in violation of the applicable rules is punished by a €6,000 fine and three months imprisonment. Furthermore, “the fact for any curator or guardian, as a result of gross negligence, to let destroy, knock down, mutilate, or subtract a building or an object classified as a historic monument is punishable by imprisonment of three years and by fine of €3,750.” (Article L 624–6 of the Code of Cultural Heritage). 2.2.4.3.3. Draft of Specific Incriminations The law regarding archives provides special charges concerning the theft of protected objects. Stealing privately or publicly owned property is coupled in a sense with a violation of collective heritage, a new perspective that contrasts with the classical assessment. The property at stake is that which our law describes as national treasures (classified movable objects, classified archives, public collections, “Musées de France” collections) and more broadly any property in the public domain as well as archaeological finds. Law regarding archives Article 28 (new) Draft law on archives Article 28 (new) Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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marie cornu I.—After Article 311–4–1 of the Penal Code, is inserted an Article 311–4–2 as follows: Article 311–4–2.—Theft is punishable by seven years imprisonment and a €100,000 fine when dealing with: 1° A classified movable object or registered under the provisions of the Code of Cultural Heritage or a private archives document classified under the provisions of the Code; 2° An archaeological discovery made during excavations or accidentally; 3° A cultural property in the movable public domain or that is exhibited, stored or deposited, even temporarily, either in a Musée de France, a library, a library or archive service, or in a place depending on a public person or a private person providing a mission of general interest, or in a building used for worship. The penalties are increased to ten years imprisonment and a €150,000 fine if the offence under this section is committed with one of the circumstances under Article 311–4. The fines mentioned in this article may be raised to half the value of stolen property. II.—The fourth, fifth and sixth paragraphs of Article 322–2 of the Code are deleted. III.—In the last paragraph of Article 322–3 of the same code, the words “a place of worship”, are deleted. IV.—After Article 322–3 of the same code, is inserted an Article 322–3–1 as follows: Article 322–3–1.—The destruction, degradation or deterioration is punishable by seven years imprisonment and a €100,000 fine when dealing with: 1° A building or a movable classified or registered under the provisions of the Code of Cultural Heritage or a private archives document classified under the provisions of the Code; 2° An archaeological discovery made during excavations or coincidentally, a land on which archaeological operations are conducted, or a building used for worship; 3° A cultural property in the movable public domain or which is exhibited, stored or deposited, even temporarily, or in a Musée de France, a library, a library or archive service, either in a place depending of a public person or a private person providing a mission of general interest, or in a building used for worship. The penalties are increased to ten years imprisonment and a €150,000 fine if the offence under this section is committed in the circumstances referred to in paragraph 1 of Article 322–3. The fines mentioned in this article may be raised to half the value of the property destroyed, degraded or damaged.

2.2.4.4. Export Controls French law is inspired by European Union law and especially by the logic of free movement of cultural property, in both the control implementation and the administrative practice.

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2.2.4.4.1. European Union Law 2.2.4.4.1.1. The Exception of National Treasures Article 30 EU provides an exception for the benefit of national treasures. The measures restricting the export or import shall be allowed if they are motivated by the protection of national treasures of artistic, historical or archaeological significance. French law has clarified what cultural property is subject to export control or prohibition and has delineated the contours of the concept of national treasure in national law (see below on the presentation of system). 2.2.4.4.1.2. Movement of Cultural Property Two texts have been adopted, the purpose of which is to overcome the disadvantages of creating a single market that could encourage illicit traffic in cultural property. These texts, however, leave intact the powers exercised by the States. The first text deals with the export of cultural goods to third countries. It creates a common procedure for issuing an export license imposed on a closed set of goods listed in an annex containing a number of categories of cultural property to which are allocated value and financial thresholds (see document attached). States, for their part may provide more restrictive controls in their domestic law. The second legislative instrument organizes the return of national treasures which illegally left the territory of a Member State to another Member State. This tool is fairly close to the UNIDROIT Convention. However, it only regards illicit export and not the assumption of stolen property. This directive was transposed into national French law by the Act of 3 August 1995. 2.2.4.4.2. Export Controls in French Law French law contains provisions which aim at controlling cultural property leaving the territory, but illegal imports are not penalized. There is a slight mention in the Code of Cultural Heritage. Under Article L 111–4: “If there are any serious and corrobating presumptions of illicit import, the administrative authority may require proof of the legality of the import and, in the absence of evidence, refuse to issue the certificate.” Article L 111–4 is also applicable to third states in the European Union. Regarding the application for a certificate, one of the comments to fill in concerns the origin of the work but it seems that in practice this is rarely informed. To our knowledge, the administration has never refused to issue a certificate on the ground of any doubt about the origin of the property. Even if it did, the efficiency of this system could be discussed since the illegal import is not otherwise sanctioned and since the rules of possession spare the possessor from a claim of ownership. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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In the implementation of this control, French law distinguishes between three categories of cultural property: a) national treasures, prohibited from leaving the country, except temporarily and under close control of the conditions under which the property can be loaned, placed on deposit or restored abroad or participating in an event; b) cultural property, which, to leave the territory, must be accompanied by an export license (within the European Community), or by a license in case of export to third countries; c) goods which can circulate freely. These three categories are precisely defined in French law. 2.2.4.4.2.1. National Treasures According Article L 111–1 of the Code of Cultural Heritage: Property which belongs to public collections and Musées de France collections, property classified under the provisions relating to historic monuments and archives, and other property that is of major interest for the national cultural heritage in the perspective of history, art and archaeology, are considered as national treasures.

Two categories of national treasures may therefore be identified. On the one hand, some national treasures are already protected (movable objects classified as historic monuments, classified historical archives, “Musées de France” collections, public collections) and are as such considered national treasures. Among the cultural property which is considered as national treasures, it is possible to have private property. Indeed, Article L 111–1 of the Code of Cultural Heritage points out what objects are considered as national treasures: a) Objects classified as historic monuments: they can be private or public. b) Historical archives: this protection concerns only private archives, but not public archives. c) Public collections d) The collections of the “Musées de France”: they can be private or public. e) Other cultural property which assumes a major interest for the national heritage: again one can have in this category private and public property. French law allows the temporary export of national treasures in specific cases (exposition, loan, storage, restoration). This export is subject to a particular procedure. One must apply to the Ministry of Culture for an authorization Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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for temporary export, which specifies a certain number of things, such as the duration of the stay and the responsible persons. In case of violation of these conditions of temporary export, French law considers this situation as an illicit export. The difference between a certificate and a license is as follows. The certificate is a kind of passport which follows the property. It allows cultural property to circulate freely inside the European Union. The export license concerns the circulation to third countries. When one wishes to export the property to third countries, the license must be applied for. In principle, if the certificate is issued, the license will be granted. On the other hand, the law refers to other property that has a major interest for the national cultural heritage. This category does not quite have the same function as the previous one. These properties are not yet protected and their value will be assessed at the time of an export license application, or identified at an auction in France or abroad. They are presumed to be of value. They are potential national treasures, not yet confirmed. To enter the category of national treasures, the State will have to either purchase them, protect them or make a patron purchase (on the implementation of these processes, see below). 2.2.4.4.2.2. Cultural Property Subject to a Certificate Cultural property other than national treasures is, for some, subject to the requirement of a certificate when the owner is considering its export. It is some sort of passport, which follows the property and certifies that the property may move freely within the European Community. To leave the territory of the Union, the owner will also have obtain an export license. The categories of goods subject to inspection are defined in an annex contained in the Decree of 29 January 1993. The technique used is similar to that of the European directive and regulation: a list of goods with age and value thresholds. Only cultural property listed in the list and meeting the required criteria will be issued a certificate (see attached the list and the age and value criteria). This control is of major importance, in principle, to identify potential national treasures that have not yet received special protection. In establishing the procedure for requesting a certificate, the State may identify properties that should be withheld from the territory. In case it considers that a property is a national treasure, it has the power to immobilise it within the territory for 30 months, a period within which it must confirm its interest. It must either be classified as a historic monument or historic archive, or be bought and integrated into a public collection or a «Musée de France» collection, or even require it be purchased by a company using a special procedure of patronage (Article L 122–7 of the Code of Cultural Heritage and Article 238 bis 0–AB of the General Tax Code). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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When the minister decides to refuse the issuance of a certificate, he must first consult the Advisory Committee of National Treasures which gives a reasoned and motivated opinion. Then starts the thirty month period during which the means of preserving the property on the territory are planned with a possible use of patronage. Failing to have protected or acquired the property, the State may not oppose the export of the property. When one observes the movements of art, we realize that the assumptions on which the property is retained are after all quite rare. The French system is, contrary to what one frequently hears, very liberal. From 1993, the date of entry into force of the new system, to 2007, there were only 163 refusals, meaning roughly a dozen per year while the number of certificates granted annually varies between 8,000 and 9,450 (for the last 5 years). Among the means available to the public collectivity to retain permanently the property on its territory as a national treasure, the Code of Cultural Heritage has set up a specific procedure of acquisition. The State may make an offer of purchase to the owner, taking into account the international market price. This is a procedure in which the owner must necessarily be involved. Followed by a complex process of appointing experts to determine the price (designated by the parties making a joint report; failing their agreement, appointing an expert by both parties; failing agreement, designation of an expert by judges). Upon delivery of the expert’s report, the State has two months to make an offer of purchase at a price fixed by the expert. If the State finally abandons the acquisition, the certificate can not be refused again. In cases where the owner refuses the offer, the owner will suffer heavy consequences, as the refusal of a certificate might be renewed without time limit and without compensation. The owner may sell his property to a third party but may not export it for sale. That may obviously have great consequences on the value of the property as it can not be sold in the international market. The certificate is issued permanently except for cultural properties which are less then 100 years of age, in which case they are issued for a length of twenty years, renewable. 2.2.4.4.2.3. Cultural Property Subject to No Export Control Cultural property which falls below the thresholds prescribed and which are not national treasures may freely circulate. This will be the case for paintings which are valued at less than €150,000, or archives that do not include elements of more than fifty years of age. In addition, temporarily imported cultural property (for a maximum of 2 years) may also circulate without control. Finally, the certificate is automatically granted to imported cultural property of less than fifty years of age, which has not been subject to a protective measure (e.g. property not classified or not part of a public collection or a “Musée de France” collection). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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In French law, museums have no legal obligation to return cultural property if their possession is lawful. Prescription and good faith consolidate their situation. In this case, the 1970 Convention principles, particularly Article 13, are not directly applicable as no statute has transposed it. This was decided by the Court regarding the Nigerian statuettes. One might regret this gap, even though the charter of ethics recently adopted in France states that it lines up with the principles of ICOM. “This charter is mainly based on core principles contained in the ICOM Code of Ethics (International Council of Museums, non-governmental organization recognized by UNESCO, which has developed since 1981 a first version of its code of ethics, which is regularly updated). If the ICOM code of ethics is not binding, its great moral values must inspire the development of national codes of ethics. This charter includes principles of conduct that each curator shall respect when he enters the office and within the limits of his functions within the institution to which he belongs. The charter in no way derogates the hierarchical principle.” One of the issues stated in the charter relates to the curator’s duty of vigilance when acquiring works of art. A number of precautions are recommended, in particular, abstention in the event of serious doubt. But the text does not encourage the return. In this case, restitution could face the status of public domaniality and thus the rule of inalienability. Extract from the charter C—Vigilance The curator exercises great vigilance regarding any proposed acquisition: No property should be acquired by purchase, gift or bequest or exchange, if the museum has not undertaken any steps necessary to ascertain that the origin of the property lies within legal frameworks. The curator notably consults red lists of cultural property developed by ICOM. Prior to the acquisition of an object or specimen offered to purchase, gift, bequest, a deposit or crossed deposits, the curator makes sure it has not been illegally acquired in (or exported illegally from) its country of origin or transit countries in which it could have been the subject of a legal title. The objects should not originate from illegal excavations, destruction or damages which are prohibited, unscientific or intentional, of buildings, geological or archaeological sites, species or natural habitats. 10—The curator: ascertains the object’s condition; ascertains the authenticity of the object, its allocation, according to the latest knowledge; establishes the object’s history as comprehensively as possible, since its discovery or creation; compares the prices charged at market prices, avoiding too high of prices without harming the seller; brings together all information concerning the rights related to the acquisition (copyright, moral rights, right of reproduction, etc.). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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marie cornu Where there are serious doubts about the origin of the property (transfer of property, archaeological excavations, illicit trade, . . .), the curator refrains from proposing, either against payment or free of charge, its acquisition by the museum and must refer it to the competent authorities.

The French system has no specific mechanisms for protection of movables in the event of an armed conflict. It only implements recommendations regarding the identification of goods provided by the 1954 Convention. But it has not been transposed by any law. The system for underwater cultural property has been described above. The law on underwater cultural property concerns deposits which may include movable and immovable elements. As it regards movable property, the law provides a number of provisions that allow the State to be invested in the property ab initio, or to “expropriate” the property for public utility (see developments above). The new statute also requires that the finder of an underwater cultural property leave the property where it is located and inform the administration of his find. 2.3. French Law and the International Legal Tools in the Fight against Illicit Trafficking France has only recently ratified the 1970 Convention, by the decree of 1997.8 In 1983 a law authorized “the ratification of a Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property”.9 It is only on 7 April 1997, that the Convention enters into force in France. This process was most certainly encouraged by the signature of the UNIDROIT Convention in 1995, even though France had not yet ratified it.10 With regard to the 1970 Convention, one could ask what the impact of this new text on domestic law is. 2.3.1. The Absence of Modification of Domestic Law In reality, the ratification of the 1970 Convention has not lead to any legislative modification. It has been considered that French law already conformed to the commitments that the State Parties have to subscribe in the terms of the Convention. Therefore, the ratification was undertaken without difficul8 Decree No. 97–435 of 25 April 1997. Decree on the publication of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, done in Paris, on 14 November 1970, JO, 3 May 1997. 9 Law No. 83–347 of 28 April 1983. 10 The ratification law has been adopted in first reading in the National Assembly, but its examination in the Senate has been adjourned sine die, notably because of sharp opposition expressed by market players. In particular, one of the arguments put forward is the unconstitutionality of the Convention with regard to property law. See in this sense the consultation of D. de Bechyllon. See also L. Favoreu, who concludes in the opposite sense.

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ties. This method is rather common in the French system.11 Actually, at the time the rules on art traffic control were revised.12 The introduction of a certificate system has substituted the old customs check on this date. Still other examples can be quoted, in the field of penal sanctions (repression of theft and concealment) or customs sanctions, or, furthermore, the creation of a Central Office for the Fight against Illicit Trafficking [French: l’Office central de lutte contre le trafic illicite] (OCBC), a specialized body13 that was created in 1975, within the Central Directorate of Judicial Police [French: Direction Centrale de la Police Judiciaire] (Ministry of the Interior, Domestic Security and Local Liberties), “a body with the interministerial mission of supporting the national police, the gendarmerie, the customs and the Ministry of Culture”.14 Its functions have been modified by the Decree of 1997, but these modifications are not the result of the 1970 Convention, but of the transposition of the communal directive on the restitution of illicitly exported cultural property.15 One can without doubt regret that this ratification process did not have impact on French law, inasmuch as certain tools of the fight against illicit trafficking could have been rethinked and improved in the light of the principles developed by UNESCO. For example, with regard to the commitment to take measures to prevent acquisition of property of illicit origin, there was an opportunity to reflect on the efficiency of the system and on the necessity of sharper vigilance. It seems like the move to take the text of the convention as a starting point was alien to the construction of the rules of French law, which is above all more influenced by communal law,16 and which is without doubt more oriented towards a national protection. This being the case, one can observe among the legislative developments from 1998 on that a certain number of rules agree with the principles that have been developed in the 1970 Convention.

11 One can also quote the example of the other conventions for the protection of cultural heritage (notably the 1972 World Heritage Convention) and more recently the discussions on the project of the Council of Europe Convention on the Access to Official Documents of 3 April 2008, which concerns a particular category of cultural heritage, being archives. One can notice in this text that is still under discussion that the French model strongly inspired the plan of action, and, again, the idea was that the convention did not comprise clauses that would be contrary to domestic law. 12 The law of 31 December 1992, today codified in the Articles L 111–1 of the Code of Cultural Heritage [French: Code de patrimoine]. 13 Decree No. 75–432 of 2 June 1975, modified by Decree No. 97–285 of 25 March 1997, which establishes a Central Office for the Fight against the Traffic in Cultural Property in the Ministry of the Interior. 14 Le trafic illicite des bien culturels [The illicit trafficking of cultural property], a study carried out by the OCBC in December 2004. 15 Law No. 95–877 of 3 August 1995, and Decree No. 97–286 of 25 March 1997. 16 In a similar move France adopted the law on neighboring rights, and subsequently ratified the Rome Convention.

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This is notably the case for the regulation provisions that lead to the inventories, the collection catalogue of works and the codification of methods on the matter. The awareness of the importance of the function of identification and the usefulness of standardization has, curiously enough, grown only recently in France, particularly in terms of protection. Without doubt, inventories have traditionally been considered as scientific tools that are generally put under the responsibility of scientific departments, without appreciating to what extent they are also management tools for collections and, on a legal level, tools that serve as essential evidence in terms of traceability. This idea is currently developing, particularly within the new framework of the Law on the “Musées de France”. The Administrative Order of 25 May 2004, sets technical norms for the keeping of inventories and of registers of property held in a “Musée de France”, and for the keeping of collection catalogues.17 However, this attempt to standardization is being hampered by implementation problems insofar as, up to the present time, the establishment of inventories has been achieved according to methods that are unique to each department, even within a single institution. This is due to the large variety of museum institutions. The creation of a commission for the collection catalogues of repositories of works of art should be seen in this light.18 A report of the French Court of Audit [French: Cour de Comptes] emphasized the malfunction of the management of collections, the absence of precise and exhaustive inventories, and the uncontrolled management of repositories of works that originate from national collections (representing 170,000 works and objects of art), as well as of archaeological and ethnological repositories. A certain number of works cannot be localized, and some have disappeared. 2.3.2. Reinforcement of the Penal Arsenal Law on heritage contains a certain number of penal dispositions. The sanctions for the violation of the export rules are extremely heavy. In the sense of Article L 114–1 of the Code of Cultural Heritage “Will be punished with two years of imprisonment and a fine of €450,000 per fact any person who exports or tries to export” a national treasure, cultural property without certificate. The hypotheses for temporary exit are also treated in the text. The text mentions maximum sentences. One could still draw attention to the reinforcement of the penal arsenal against organized crime. In these recent texts, trafficking in cultural prop17 J.O. of 12 June 2004, p. 10 483. In particular, the information that must be mentioned in the inventory is specified (added text). Information to be mentioned is notably the origin of the work and the way of entry into the collection. The idea is that this ensures a certain degree of traceability of the works. 18 Decree of 20 August 1996.

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erty is explicitly targeted. Finally, the Law of 15 July 2008, creates a specific offense for theft of protected cultural property, by aggravating the prison sentences and the fines. Regulations of online sale and of obligations that apply to houses for sale and brokers of cultural property (the Law of 10 July 2000). 2.3.3. Precedents and the 1970 Convention Concerning the question of return of property based on the 1970 Convention, a certain number of claims did not succeed through lack of legal means. Some attempts to seizure and restitution in the hands of authorized representatives at public sales have been possible, but they ended without success. In reality very few decisions refer to the 1970 Convention. A recent precedent shows the limits of domestic law governing restitution, in spite of the ratification of the 1970 Convention.19 The judges order the release “of the seizure and restitution of the African statuettes under litigation from the very moment that the seizure was put into practice based on the Paris Convention of 14 November 1970, concerning the fight against illicit export of cultural property, that was ratified by France on 7 April 1997. The stipulations of this convention are not directly applicable to the domestic legal order of State parties, and do not create any direct obligations for the nationals [of the State parties].” The claim of the Republic of Nigeria was based on Article 13 of the Convention, which invites the State parties to take the necessary measures to prevent the acquisition of cultural property that left [its country] in violation of export-control legislation. If it is certain that the text of the convention needs to be transposed, no stipulation in the domestic order allows to prevent an acquisition of which the illicit character was nevertheless indisputable. This decision has been confirmed in an Administrative Order rejecting [the above-mentioned claim for seizure and restitution] of September 2006 by the French Court of Cassation [French: Cour de cassation]. From the very moment that a property is in the hands of a good-faith possessor, the restitution is not possible. Hence, the importance of this notion and the interpretation that the judges give to it. In this sense, evidence proving the illicit character of the export only, or even evidence proving that the object is inalienable public property coming from another State is insufficient.

19 Paris, 5 April 2004, Federal Republic of Nigeria / de Monbrison, jurisdata, 2004– 238340.

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Even though France has ratified the Convention on Intangible Heritage, French law does not provide any specific dispositions for its preservation. The definition of cultural heritage given by the Code of Cultural Heritage is thus significant as it mostly deals with tangible heritage (see above). Some services of the Ministry of Culture are dedicated to intangible heritage, but protection policies are not developed on the basis of a great textual support. Three statutes may nevertheless be quoted as they deal with matters closely related to intangible heritage: 1°—Firstly, the statute on registration. This statute creates a mandatory registration for any document passed on to the public, whatever its nature (written, photographic, audiovisual, numeric, etc). The idea is to constitute the memory of intellectual heritage and to put it at the disposal of the public, notably researchers. It is one of the oldest cultural statutes (ordonnance de Montpellier du 28 décembre 1537, enacted under the reign of François Premier) which could be considered as a tool for the preservation of intangible heritage. The authorized depositories are: l’Institut National de l’Audiovisuel (National Institute for the Audiovisual), Le Centre National de la Cinématographie (National Center for Cinematography), La Bibliothèque nationale de France (National Library of France) and the service of the Ministry of Interior in charge of the registration. The notion of “document” is very broad and concerns any information carrier: books and other publications in writing, photographs, films, (pieces of ) software, etc. 2°—The Statute Regarding the Use of the French Language proclaims the French language to be the language of the French Republic and “a key element in France’s personality and heritage.” Here must be quoted the decision of the Conseil Constitutionnel regarding the European Charter for Regional or Minority Languages according to which the Charter contains clauses contrary to the Constitution, notably because it undermines the constitutional principles of the indivisibility of the Republic. ON THE PARAMETERS FOR REVIEW (. . .): 7. On the other hand, the freedom proclaimed by Article 11 of the Declaration of Human and Civic Rights of 1789, whereby “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law” must be reconciled with the first paragraph of Article 2 of the Constitution, whereby “The language of the Republic shall be French”; 8. By virtue of these provisions, public-law corporations and private-law entities supplying a public service are obliged to use French; private individuals Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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can claim no right, in their relations with government departments or public authorities, to use any language other than French, nor must they be compelled to do so; Article 2 of the Constitution does not prohibit the use of translations; its application must not entail any neglect of the importance, in education, research and audiovisual communication, of the freedom of expression and communication; ON THE CONSISTENCY OF THE CHARTER WITH THE CONSTITUTION: 9. The fourth paragraph of the Preamble to the Charter considers that “the right to use a regional or minority language in private and public life is an inalienable right”; in Part I of the Charter, Article 1(a) defines “regional or minority languages” as “languages that are (i) traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and (ii) different from the official language(s) of that State”, but not including either dialects of the official language or the languages of migrants; Article 1(b) defines “territory in which the regional or minority language is used” as “the geographical area in which the said language is the mode of expression of a number of people justifying the adoption of the various protective and promotional measures” provided for in the Charter; by Article 7(1) “the Parties shall base their policies, legislation and practice on the . . . objectives and principles” set out in that Article; these objectives and principles include in particular “the respect of the geographical area of each regional or minority language in order to ensure that existing or new administrative divisions do not constitute an obstacle to the promotion of the language in question . . .” and “the facilitation and/or encouragement of the use of regional or minority languages, in speech and writing, in public and private life”; moreover, by Article 7(4) “the Parties shall take into consideration the needs and wishes expressed by the groups which use such languages” by establishing “bodies, if necessary, for the purpose of advising the authorities” on these matters; 10. Taken together, these provisions of the European Charter for Regional or Minority Languages, in that they confer specific rights on “groups” of speakers of regional or minority languages within “territories” in which these languages are used, undermine the constitutional principles of the indivisibility of the Republic, equality before the law and the unicity of the French people; (. . .) Has decided as follows: Article 1 The European Charter for Regional or Minority Languages contains clauses contrary to the Constitution.

3°—Article L 654–27–1 of the Rural Code states, since the adoption of the Agricultural Orientation Law, that: Foie Gras is part of France’s cultural and culinary heritage. By Foie Gras one means duck or goose liver fattened by specific fattening processes.

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At the end of the monopoly, the creations are regarded as being of free-range subject to the respect of the moral right. The system is not very useful for intangible heritage protection for several reasons. Firstly, traditional knowledge and cultural expressions do not always meet the criteria of form and originality. On the other hand, the temporary duration of rights is also a limit which is not inconsiderable. Some museums have substantial funds of oral recordings that can be considered as intangible heritage. But these elements are, in general, not included in the inventory of the museum, even though they are fully part of the collections. The French system does not recognize any specific protection from the point of view of granting or recognizing proprietary rights to communities or their members over traditional knowledge or traditional cultural expressions. Given the actual practice, there is no regulation concerning the misappropriation of intangible cultural heritage, although these elements are exploited. Some museums and administrations are beginning to question this, but further thoughts need to be given as this reflection is quite recent. 4. Beyond Preservation 4.1. Broadcasting Quotas French law has instituted quotas for film and radio broadcasting. Regarding film quotas, broadcasting companies must significantly broadcast French and European films. This obligation is expressed in several ways. First, broadcasting companies must devote a minimum of their turnover to films and audiovisual works wich are of French original expression or originating from the European Union. In addition, broadcasting companies are required to comply with the obligations to broadcast French works of original expression and works from the European Union. The definition of these works is specified in Decree No. 90–66 of 17 January 1990. Under Article 5 of the decree: constitute films or audiovisual works of French original expression, in addition to the film or audiovisual works carried out in French as for the full original version, those which are mainly conducted in English, since the original script and screenplay were written in French. Considered to be films of French original expression are the films that have received prior to the date of application of this decree approval of investment within the meaning of Article 19–1 of Decree No. 59–1512 of 30 December 1959 above. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Under Article 6: Constitute audiovisual works originating from the European Economic Community and films from the European Economic Community the works which: 1. are produced by a company whose headquarters are located in a State member of the European Economic Community and whose chairman, director or manager and the majority of directors are citizens of one of these States to the condition that this company takes personally or jointly shares the financial, technical and artistic initiative and responsibility of the achievement of the considered works and ensures its successful completion and which is not controlled within the meaning of Article 355–1 of Law No. 66–537 of 24 July 1966 above, by one or more producers outside the European Economic Community; 2. are financed with shares which are at least equal to 50 percent of their final costs, made by nationals of member states of the European Economic Community or by companies with seats in one of these States; 3. are subject, by virtue of at least two thirds of the final cost, of production costs within the European Economic Community; 4. are carried out with the participation of artistic performers, technical collaborators, creators and authors, including directors, screenwriters, dialogue writers, musicians, residents of a State member of the European Economic Community in the proportion of two-thirds; 5. rely on technical services performed for two-thirds in studios or shooting, in laboratories or in sound studios located in the European Economic Community.

4.2. Support to the Film Industry The support systems also take into account the controls over producing companies. The criteria of eligibility (automatic aid the amount of which is based on the number of entries carried out) are determined by the Decree of 24 February 1999. The film must have been mainly carried out by a French or European industry. The number of French or European artistic professionals is also taken into consideration as well as the directing, shooting and postproduction locations. A number of these conditions relate to nationality or to the place of residence of those in charge of the production company, and of the technical and artistic employees. 5. Miscellaneous Concerning the protection in French law, it is not correct to say that, in order to belong to heritage in French law, cultural property must be classified or registered. This distinction is correct when it concerns the protection of historic monuments or as well the protection of sites. However, there exist other systems of protection, which are different from classification or registration. For example, property which belongs to a collection of the “Musées Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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de France” receives protection, by virtue of the fact of being awarded the label. Furthermore, public property also allows assuring an effective protection for cultural property, and this system of property does not correspond to a system of classification or registration. The French texts are up to date in the Code of Cultural Heritage on the website “Legifrance” (http://www.legifrance.gouv.fr/, a website on French law with free access). For the time being, there exists no translation of the texts on heritage law in English. Here follow the different international conventions and the laws of ratification. These laws only reiterate the contents of the conventions without adopting rules of transposition in national law. Most of the time, France deems that it meets the obligations of the conventions, and judges that it is not useful to modify the rules, or to create new rules. The problem is that the jurisprudence considers that certain of those texts are not directly applicable. This is notably the case with the 1970 Convention. – The Hague Convention, 14 May 1954, for the Protection of Cultural Property in the Event of Armed Conflict—UNESCO Ratified by France on 7 June 1957, come into effect on 7 August 1956 (Law No. 57–112 of 4 February 1957, authorizing the approval of the convention, Decree No. 620–1131 of 18 October 1960, carrying the publication of the convention). – Paris Convention, 14 November 1970, on the Measures to Take to Prohibit and Prevent the Illicit Import, Export and Transfer of Ownership of Cultural Property—UNESCO Ratified by France on 7 January 1997, come into effect on 7 April 1997 (Decree No. 97–435 of 25 April 1997, carrying the publication of the convention). – Rome Convention, 24 June 1995, on Stolen or Illicitly Exported Cultural Property—UNIDROIT France is signatory of the Convention, which has not been ratified up to today (passed in first reading in the National Assembly in 2001, but never been examined in the Senate). – Paris Convention, 2 November 2001, on the Protection of Underwater Cultural Heritage—UNESCO Not ratified by France. – European Convention on Offences relating to Cultural Property—Council of Europe, 23 June 1985 Not signed by France. – European Convention on the Protection of the Archaeological Heritage— Council of Europe, 16 January 1992 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Ratified by France on 10 July 1995, came into effect on 11 January 1996 (Law No. 94–926, authorizing the approval of the convention, Decree No. 95–1039 of 18 September 1995, carrying the publication of the convention). 6. Annexe DECISION 99–412 DC OF 15 JUNE 1999 European Charter for Regional or Minority Languages On 20 May 1999 the President of the Republic referred to the Constitutional Council, pursuant to Article 54 of the Constitution, the question whether the ratification of the European Charter for Regional or Minority Languages, signed at Budapest on 7 May 1999, must be preceded, in view of the interpretative statement made by France and of the undertakings that France intends to enter into under Part III of the Charter, by amendment of the Constitution; THE CONSTITUTIONAL COUNCIL, Having regard to the Constitution of 4 October 1958; Having regard to Ordinance 58–1067 of 7 November 1958, as amended, laying down the Institutional Act on the Constitutional Council, and in particular sections 18(2), 19 and 20 thereof; Having heard the rapporteur; On the following grounds: ON THE CONTENT OF THE INTERNATIONAL UNDERTAKING REFERRED AND THE EXTENT OF REVIEW: 1. The European Charter for Regional or Minority Languages, as referred to the Constitutional Council, consists of a Preamble; a Part I, entitled “General provisions”; a Part II, setting out “Objectives and principles” that each State party undertakes to apply; a Part III, comprising ninety-eight measures to promote the use of regional or minority languages in public life, by field of application, from which each State party is free to choose in accordance with Article 2(2) of the Charter, the measures chosen applying only to the languages specified in its instrument of ratification; a Part IV, concerning application of the Charter; and a Part V, setting out final provisions; 2. By Article 2(1) of the Charter, “Each Party undertakes to apply the provisions of Part II ‘consisting only of Article 7’ to all the regional or minority languages spoken within its territory and which comply with the definition in Article 1”; it follows from this wording that Part II is prescriptive and applies not only to the languages specified by France by virtue of its Part III undertakings but to all the regional or minority languages used in France within the meaning of the Charter; 3. Article 2(2) of the Charter obliges each State party to undertake to apply a minimum of thirty-five paragraphs or subparagraphs chosen from among the provisions of Part III, including at least three from each of Articles 8 “Education” and 12 “Cultural activities and facilities” and one from each of Articles 9 “Judicial authorities”, 10 “Administrative authorities and public services”, 11 “Media” and 13 “Economic and social life”; France, when it signed the Charter, specified thirty-nine paragraphs or subparagraphs, out of the ninety-eight set out in Part III of the Charter, which it undertakes to apply and which will be annexed to its instrument of ratification; Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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eleven of these relate to education, nine to the media, eight to cultural activities and facilities, five to economic and social life, three to administrative authorities and public services, two to transfrontier exchanges and one to judicial authorities; the Constitutional Council’s review of Part III must extend only to these undertakings; 4. When the French Government signed the Charter, it also made an interpretative statement specifying the meaning and scope it intends to give to the Charter or to certain of its provisions in the light of the Constitution; a unilateral statement of this kind is no more than an instrument relating to the treaty which, in the event of a dispute, may be used to interpret it; the Constitutional Council, on a referral under Article 54 of the Constitution, may therefore review the constitutionality of the undertakings entered into by France irrespective of that statement; ON THE PARAMETERS FOR REVIEW: 5. On the one hand, as Article 1 of the Constitution states: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs”; the principle that the French people is one, and that no section of it may claim to exercise national sovereignty, is also of constitutional status; 6. In the light of these fundamental principles, no collective rights can be recognised as inhering in any group defined by community of origin, culture, language or belief; 7. On the other hand, the freedom proclaimed by Article 11 of the Declaration of Human and Civic Rights of 1789, whereby “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law” must be reconciled with the first paragraph of Article 2 of the Constitution, whereby “The language of the Republic shall be French”; 8. By virtue of these provisions, public-law corporations and private-law entities supplying a public service are obliged to use French; private individuals can claim no right, in their relations with government departments or public authorities, to use any language other than French, nor must they be compelled to do so; Article 2 of the Constitution does not prohibit the use of translations; its application must not entail any neglect of the importance, in education, research and audiovisual communication, of the freedom of expression and communication; ON THE CONSISTENCY OF THE CHARTER WITH THE CONSTITUTION: 9. The fourth paragraph of the Preamble to the Charter considers that “the right to use a regional or minority language in private and public life is an inalienable right”; in Part I of the Charter, Article 1(a) defines “regional or minority languages” as “languages that are (i) traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and (ii) different from the official language(s) of that State”, but not including either dialects of the official language or the languages of migrants; Article 1(b) defines “territory in which the regional or minority language is used” as “the geographical area in which the said language is the mode of expression of a number of people justifying the adoption of the various protective and promotional measures” provided for in the Charter; by Article 7(1) “the Parties shall base their policies, legislation and practice on the . . . objectives and principles” set out in that Article; these objectives and principles include in particular “the respect of the geographical area of each regional or minority language in order to ensure that existing or new administrative divisions do not constitute an obstacle to the promotion of Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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the language in question . . .” and “the facilitation and/or encouragement of the use of regional or minority languages, in speech and writing, in public and private life”; moreover, by Article 7(4) “the Parties shall take into consideration the needs and wishes expressed by the groups which use such languages” by establishing “bodies, if necessary, for the purpose of advising the authorities” on these matters; 10. Taken together, these provisions of the European Charter for Regional or Minority Languages, in that they confer specific rights on “groups” of speakers of regional or minority languages within “territories” in which these languages are used, undermine the constitutional principles of the indivisibility of the Republic, equality before the law and the unicity of the French people; 11. These provisions are also contrary to the first paragraph of Article 2 of the Constitution in that they seem to recognise a right to use a language other than French not only in “private life” but also in “public life”—a category in which the Charter includes judicial authorities and administrative authorities and public services; 12. Consequently, the specified provisions of the Charter are inconsistent with the Constitution; 13. Having regard to their nature, none of the other undertakings entered into by France is contrary to the Constitution, most of them, incidentally, doing no more than recognise practices that France has already implemented to promote regional languages; Has decided as follows: Article 1 The European Charter for Regional or Minority Languages contains clauses contrary to the Constitution. Article 2 This decision shall be notified to the President of the Republic and published in the Journal officiel de la République française. Deliberated by the Constitutional Council at its sitting of 15 June 1999, presided by Mr Yves GUÉNA and attended by Mr Georges ABADIE, Mr Michel AMELLER, Mr Jean-Claude COLLIARD, Mr Alain LANCELOT, Ms Noëlle LENOIR, Mr Pierre MAZEAUD and Ms Simone VEIL.

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GERMANY Kurt Siehr* 1. Cultural Matters in Germany: Legislative Power ............................... 2. Protection of Cultural Property: Sources ............................................ 2.1. International Conventions ............................................................. 2.2. European Regulations ..................................................................... 2.3. Federal Statutes ................................................................................ 2.4. State Legislation ............................................................................... 2.5. Non-binding Sources ...................................................................... 3. Cultural Property ..................................................................................... 3.1. Categories of Cultural Property .................................................... 3.1.1. Tangible and Intangible Cultural Property ..................... 3.1.2. Movable Cultural Property ................................................ 3.1.3. Immovable Cultural Property ........................................... 3.1.4. Underwater Cultural Property .......................................... 3.2. Community-Oriented Integrated Approach? ............................. 3.3. Concepts of National Rules ........................................................... 3.4. Group Rights in Cultural Property? ............................................ 4. Immovables .............................................................................................. 4.1. Competent Authorities ................................................................... 4.2. Criteria for Declaring on Object as “Cultural Heritage” ......... 4.3. Measures of Protection .................................................................. 4.4. Effects of Declaration as “Cultural Property” on Owner’s Rights ................................................................................................ 4.5. Position of Communities, Groups and Organizations ............. 4.6. Precautionary Measures of Protection in the Event of Armed Conflict ............................................................................................ 4.7. Differences with Respect to Underwater Cultural Objects ...... 5. Movables ................................................................................................... 5.1. Cultural Heritage ............................................................................. 5.2. Role of Communities and Groups ............................................... 5.3. Property Law and Cultural Objects ............................................. 5.4. Protection of Cultural Objects ...................................................... 5.5. Obligations of Museums, Galleries and other Institutions ...... 5.6. Armed Conflict ................................................................................ 5.7. Underwater Cultural Heritage ......................................................

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6. Intangible Cultural Property ................................................................. 6.1. Safeguarding of Intangible Cultural Heritage ............................ 6.2. Misappropriation of Traditions .................................................... 7. Measures beyond Preservation? ............................................................ 8. Recent Trends .......................................................................................... 9. Summary ..................................................................................................

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1. Cultural Matters in Germany: Legislative Power Germany is a federal state with different competences of federal and state authorities be they legislative, administrative or judicial ones. Under Art. 70 of the Federal Constitution (Grundgesetz of 23 May 1949; abbr. GG)1 the 16 German states (Länder) have legislative jurisdiction unless the Federation has exclusive legislative power (ausschliessliche Zuständigkeit under Art. 71 and 73 GG) or unless the Federation has not exercised its concurrent legislative power (konkurrierende Zuständigkeit under Art. 72 and 74 GG). Cultural affairs are no matter of federal exclusive or concurring legislative jurisdiction except with respect to foreign affairs (Art. 73 no. 1 GG). The Federal Parliament (Bundestag) may, however, exercise a third kind of federal legislation, apart from exclusive and concurring legislation, the “framework legislation” (Rahmengesetzgebung under Art. 75 GG). One matter of this “framework legislation” is the power to pass statutes on measures to prevent expatriation of German cultural assets (Art. 75 (1) no. 6 GG).2 Self executing international conventions need not be implemented by the German parliament. It is sufficient to pass a very short statute approving the convention and empowering the President of the Republic to ratify it. Conventions which are not fully self-executing, such as the 1970 UNESCO Convention, have to be implemented. Also European Directives need to be implemented by the competent German parliament, in most cases the Federal Parliament (Bundestag). Hence, three different kinds of legislative acts have to be distinguished in Germany: International conventions, federal statutes (either originating in national motions or implementing international conventions or European directives) and state statutes of the 16 states of the Germany.

1 An English translation of the German Basic Law is available with Albert P. Blaustein and Gisbert H. Flanz (eds.), Constitutions of the Countries of the World (Dobbs Ferry/N.Y., Oceana) Volume VII, Release 2003–3 (May 2003). 2 This has been done by the Act of 1999, see infra at n. 12.

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2. Protection of Cultural Property: Sources There are four different kinds of sources of law with respect to the protection of cultural property: international conventions, European regulations, federal statutes and state statutes. In addition to these binding sources there are several other non-binding sources with considerable impact on cultural property issues. 2.1. International Conventions Germany has ratified or is about to ratify the following conventions on cultural property: – Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict;3 – UNESCO Convention of 14 November 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property;4 – Convention of 16 November 1972 concerning the Protection of the World Cultural and Natural Heritage;5 – European Convention of 3 October 1985 on the Protection of the Architectural Heritage of Europe;6 – European Convention of 16 January 1992 on the Protection of the Archaeological Heritage (Revised);7 – European Framework Convention of 1 February 1995 for the Protection of National Minorities;8 – Convention of 20 October 2005 on the Protection and Promotion of the Diversity of Cultural Expressions.9 2.2. European Regulations So far there are only two European regulations on cultural property issues: – Regulation (EEC) No. 3911/92 of 9 December 1992 on the Export of Cultural Goods;10

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249 U.N.T.S. 216, 240; Bundesgesetzblatt 1967, Part II, p. 1235. 823 U.N.T.S. 231; Bundesgesetzblatt 2007, Part II, p. 627. 5 T.I.A.S. No. 8226; 11 ILM (1972) p. 1358; Bundesgesetzblatt 1977, Part II, p. 214. 6 European Treaty Series No. 121; Bundesgesetzblatt 1987, Part II, p. 624. 7 European Treaty Series No. 143; Bundesgesetzblatt 2002, Part II, p. 2710. 8 European Treaty Series No. 157; Bundesgesetzblatt 1997, Part II, p. 1408. 9 Bundesgesetzblatt 2007, Part II, p. 235. 10 Official Journal EC 1992 No. L 395, p. 1; modified by Regulation (EC) No. 974/2001 of the Council of 14 May 2001, Official Journal EC 2001 No. L 137, p. 101. 4

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– Regulation (EC) No. 1210/2003 of the Council of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) N. 2465/96,11 with Article 3 on the prohibition of import and export of cultural property from Iraq. 2.3. Federal Statutes Three federal statutes deal with cultural property: – Gesetz vom 6. August 1955/8. Juli 1999 zum Schutz deutschen Kulturguts gegen Abwanderung [Act of 6 August 1955 on the Protection of German Cultural Property against Expatriation];12 – Gesetz vom 6. Januar 1988 über die Sicherung und Nutzung von Archivgut des Bundes [Act of 6 January 1988 on the Protection and Use of Archives of the Federation];13 – Gesetz vom 18. Mai 2007 zur Ausführung des UNESCO-Übereinkommens vom 14. November 1970 über Maßnahmen zum Verbot und zur Verhütung der rechtswidrigen Einfuhr, Ausfuhr und Übereignung von Kulturgut und zur Umsetzung der Richtlinie 93/7/EWG des Rates vom 15. Märt 1993 über die Rückgabe von unrechtmäßig aus dem Hoheitsgebiet eines Mitgliedstaats verbrachten Kulturgütern (Kulturgüterrückgabegesetz—KultGüRückG) [Act implementing the UNESCO Convention of 1970 and the Directive 93/7/ EEC of 15 March 1993];14 – Gesetz vom 18. Mai 2007 zur Ausführung der Konvention vom 14. Mai 1954 zum Schutz von Kulturgut bei bewaffneten Konflikten [Act implementing the Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict].15 Many other federal statutes, e.g. building or zoning laws or revenue laws, may have an impact on the protection of cultural objects. 2.4. State Legislation Every of the 16 German Länder has its own act on the preservation of monuments (Gesetz zum Denkmalschutz).16 These acts provide that certain 11

Official Journal EC 2003 No. L 169, p. 6. Bundesgesetzblatt 1955, Part I, p. 501; version of 8 July 1999, Bundesgesetzblatt 1999, Part I, p. 1754, and amended by Art. 2 of the Act of 18 may 2007, Bundesgesetzblatt 2007, Part I, p. 757, 761 et seq. The Act of 1955/1999 is substituting the Regulation of 11 December 1919 on the Export of Works of Art, Reichsgesetzblatt 1919, p. 1961. 13 Bundesgesetzblatt 1988, Part I, p. 62. 14 Bundesgesetzblatt 2007, Part I, p. 757. 15 Bundesgesetzblatt 2007, Part I, p. 757, 762. 16 These state acts are collected by Rudolf Stich, Wolfgang E. Burhenne and Karl-Wilhelm Porger (eds.), Denkmalrecht der Länder und des Bundes [Law of Monuments of the States and the Federation], looseleaf collection (Köln, Schmidt 2004) 2 volumesToshiyuki (June 2007). Kono - 978-90-04-18991-1 12

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monuments should be preserved, maintained and kept as they are for future generations. 2.5. Non-binding Sources Apart from various codes of ethics binding different professions or institutions, there are non-binding instruments which may serve as guidelines in daily practice. The most important ones are the following instruments: – The Berlin Declaration of 1988 on Loans and Acquisitions of Archaeological Objects by Museums17 confirmed by the Berlin Resolution of 25 May 2003; – Washington Conference Principles on Nazi-Confiscated Art of 3 December 1998;18 – Statement (Erklärung) of 14 December 1999 by the Federal Government, the Länder (federal states) and the national associations of local authorities on the tracing and return of Nazi-confiscated art, especially from Jewish property19 and “Handout” (Handreichung) of February 2001, revised version of November 2007, implementing the Statement of 1999;20 – United Nations Declaration of 13 September 2007 on the Rights of Indigenous Peoples.21 3. Cultural Property 3.1. Categories of Cultural Property German law distinguishes between tangible and intangible cultural property with tangible property being further divided into movable and immovable cultural property. Up to now German law has not distinguished between tangible cultural property discovered or located on land and that located under water. 3.1.1. Tangible and Intangible Cultural Property Tangible cultural property is protected under federal and state law. Intangible property is protected under federal intellectual property laws (copyright, trade mark, patents etc.) and under international treaties (e.g. the Berne

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2 International Journal of Cultural Property (1993) p. 157. 8 International Journal of Cultural Property (1999) p. 342 with introduction by Andreas F.G. Raschèr. 19 Available at http://www.lostart.de/stelle/erklaerung.php3?lang=english. 20 Available in German at http://www.lostart.de/stelle/handreichung.php3?lang=german. 21 UN General Assembly Document A/RES/61/295. Toshiyuki Kono - 978-90-04-18991-1 18

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Convention of 1886 and the Paris Convention of 1883).22 Also EC law is encroaching into IP-law. Intangible property rights acquired abroad are only protected in Germany if they fit into one of the recognized types of intellectual property. Germany has not yet ratified the UN Convention of 2003 for the Safeguarding of the Intangible Cultural Heritage. 3.1.2. Movable Cultural Property Movable cultural property is protected within Germany mainly by four types of rules: (1) Treasures trove law is federal and state law. Federal law provides rules on treasure trove (§ 984 BGB) but reserves state law as to regalia (Art. 73 EGBGB). Several German states kept their law on royal (today: state) prerogatives with respect to treasures of scientific value. In this case the state is ipso facto owner of the treasure. This kind of patrimony law does not refer to any international convention. It is up to state authorities to decide whether the discovered object is of scientific (historical or artistic) value. (2) Property law in general provides rules on the protection of ownership. It is federal law and does not have specific rules for cultural objects. Limits of protection are set by rules on bona fide purchase (§§ 932 et seq. BGB) and on prescription within ten year of bona fide possession (§ 937 BGB). There is no bona fide purchase of stolen objects which have not been sold at public auction (§ 935 BGB). Such objects can be acquired only in ten years of bona fide possession. Although the BGB does not distinguish between normal objects and cultural objects, case law requires that the purchaser of precious cultural objects (e.g. archaeological objects) has to be very diligent in order to qualify as a bona fide purchaser.23 The German legislator of the BGB does not—different from Swiss federal law24—refer to the definition of “cultural property” in Article 1 of the 1970 UNESCO Convention and thereby incorporates into German law this broad notion of “cultural property”. 22 As to German intellectual property law cp. Urheberrechtsgesetz [Copyright Act] of 9 September 1965, version of 26 October 2007, Bundesgesetzblatt 2007, Part I, p. 2513. 23 Cp. Bundesgerichtshof 10 January 1973, Warneyer (ed.), Rechtsprechung des Bundesgerichtshofes in Zivilsachen [Report of Civil Cases decided by the Federal Court for Civil and Criminal Matters] (BGHWarn.) 1973, Part I, p. 9 (no. 3). 24 Articles 728 (1ter) and 934 (1bis) ZGB (Swiss Civil Code) refer to Article 2 (1) of the Swiss Federal Act implementing the 1970 UNESCO Convention (Kulturgütertransfergesetz of 2003, KGTG), and this Article 2 (1) KGTG incorporates the definition of the term “cultural property” by Article 1 UNESCO Convention into Swiss law. Article 728 (1ter) ZGB extends the time for acquisitive prescription (Ersitzung) of claims of recovery of cultural objects from 5 to 30 years and Article 934 (1bis) ZGB does the same for recovery of stolen cultural objects acquired bona fide.

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(3) Tort law (§§ 823 et seq. BGB) protects property in general and does not have special rules for the protection of cultural objects. (4) Criminal law punishes the destruction of property (§ 303 Criminal Code, StGB) and theft (§ 242 StGB). Also the conversion of treasure troves is a crime (§ 246 StGB). A special crime committed against cultural property is punished more severely as offences dangerous to the public ( gemeingefährliche Sachbeschädigung) (§ 304 StGB). Certain movables may qualify as “German national treasures” and may not be exported or removed to another Member state of the European Union without government permission. This is provided by the Federal Act of 1955/1999 on Expatriation of German Cultural Treasures (supra 2.3.). This Act leaves it to the German states to decide which cultural objects should not be exported without government permission. Up to now only privately owned objects are listed in the “Gesamtverzeichnis national wertvollen Kulturgutes”. Also here the notion of “nationally valuable cultural property” (national wertvolles Kulturgut) is not linked to any term of cultural property defined in any international instrument. Every German state has to evaluate whether a certain objects should be listed in the German “Gesamtverzeichnis” as national treasure. This evaluation is done cautiously, although listing privately owned cultural objects as national treasure does not amount to a kind of taking or quasi confiscation of private property.25 The ultimate export ban or denial of removal within the European Union, however, might be more than a constitutionally valid restriction of private property (Art. 14 GG) and might be qualified as confiscation which, under German law, is only valid if compensation is paid by the government (Art. 14 GG).26 International notions of cultural property come only into play in Germany if a foreign Contracting State of the 1970 UNESCO Convention or a Member State of the European Union asks for the return of cultural property which has been illegally exported or removed to Germany. The requesting state has to show that the exported or removed cultural object is covered by one of the categories of cultural property listed in Article 1 of the 1970 UNESCO Convention or in the Appendix to the EU Directive of 15 March 1993 (§ 6 KultGüRückG).

25 Bundesverwaltungegericht [Federal Court for Administrative Law] 27 May 1993, NJW 1993, 3280. 26 Cp. Jörg Sprecher, Beschränkungen des Handels mit Kulturgut und die Eigentumsgarantie [Restrictions of Trade in Cultural Objects and Guarantee of Ownership] (Berlin, de Gruyter 2004) p. 187 ff.

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3.1.3. Immovable Cultural Property Monuments, groups of buildings and sites are protected as immovable cultural properties. State authorities decide which of these objects should be protected under the respective state act on the preservation of monuments (Denkmalschutz-Gesetz). If a certain object qualifies as a monument to be protected, the competent state or local authorities may declare it a “cultural monument” to be listed in the state register of monuments (Denkmalbuch or Denkmalliste). Such monuments are not allowed to be torn down or changed without government permission. The owner is obliged to preserve the object. These restrictions and obligations are permissible under the constitution and the guarantee of private property. Private owners may be rewarded by tax exemptions. The state may confiscate these objects with compensation and also has a right of pre-emption. Some German sites and monuments are also listed in the “World Heritage List” under Article 11 (2) of the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage. This instrument does not preclude German authorities from putting the listed objects in danger. The Convention of 1972 has not been implemented in Germany and therefore does not work directly.27 German authorities should, however, try to protect the listed objects and keep them from being listed in the “List of World Heritage in Danger” mentioned in Article 11 (4) of the World Heritage Convention. It may be added that in Germany there are some very strong and efficient bodies which subsidize and encourage the maintenance, preservation and restoration of nationally or locally important monuments. These bodies are the Federal Culture Foundation (Kulturstiftung des Bundes), the State Culture Foundation (Kulturstiftung der Länder)28 and, especially, the German Foundation for the Protection of Monuments (Deutsche Stiftung Denkmalschutz).29 These bodies, also subsidized by public money, collect private money for their efforts to preserve important monuments. Private bodies are also heavily engaged in the protection of monuments. In Schleswig-Holstein (Land of 15,000 km2 and 3 million inhabitants) there are no less than 61 private

27 This has been decided recently in the case of the Waldschlösschen-Brücke in Dresden, putting the Elbe Valley in Dresden, listed in the World Heritage List, in danger: Bundesverwaltungsgericht [Federal Court for Administrative Law] 17 January 2007, file no. 9A 20.05. See also http://whc.unesco.org/en/news/265. 28 The Foundation publishes the quarterly periodical “arsprototo. Das Magazin der Kulturstiftung der Länder” [arsprototo. The Magazine of the Cultural Foundation of the States]. 29 The German Foundation for the Protection of Monuments publishes the bimonthly periodical “Monumente. Magazin für Denkmalkultur in Deutschland” [Monuments. Magazine for the Culture of Monuments in Germany].

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foundations, associations or groups engaged in protecting cultural property in general or in protecting specific objects.30 3.1.4. Underwater Cultural Property Germany has not yet ratified the UN Convention of 2 November 2001 on the Protection of the Underwater Cultural Heritage.31 This does not, however, mean that underwater cultural objects are not protected. Objects discovered in German territories under water (territorial waters or inland waters) are protected as discoveries of scientific value and are treated the same as archaeological objects. 3.2. Community-Oriented Integrated Approach? There are three types of cultural objects which might be qualified as “community-oriented”. These objects are “cultural monuments” (Kulturdenkmäler), “ground monuments (Bodendenkmäler as, e.g., archaeological sites and their contents) and “natural monuments” (Naturdenkmäler). These objects are protected as a unit consisting of tangible (movables and immovables) and intangible cultural heritage (preserving their original shape and nature). All these objects are protected by state statutes on monuments and landscapes (Denkmalschutz, Naturschutz). 3.3. Concepts of National Rules In German law concepts are used to define the application of statutory law. Every piece of legislation concerning cultural property has to define the term “cultural property” to be protected by it. There is no unified term “cultural property”. 3.4. Group Rights in Cultural Property? There are almost no group rights in cultural property in Germany. Cultural objects are either state property or private property. There are hardly any ethnic, tribal or minority groups in Germany to which cultural objects are assigned as “their” cultural assets. The only federal provision for a certain kind of group rights is § 96 of the Bundesvertriebenengesetz (Act on Refugees) which provides that the German federation and the German states may protect and care for cultural monuments of German refugees (mainly from

30 No. 14 of the report of the state government on the perspectives of cultural property protection in Schleswig-Holstein [Stand und Perspektiven von Denkmalschutz und Denkmalpflege in Schleswig-Holstein] of 1 November 2001, in: Stich/Burhenne/Porger, supra n. 16, vol. I, at p. 387.33 and 387.34. 31 11 International Journal of Cultural Property (2001) p. 107.

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Eastern Germany and from Czechoslovakia) located at home or in countries of the refugees’ origin. There is, however, no right of refugees to enforce such protection and care. In the German Länder Brandenburg and Saxony there are Sorbs, a Slavonic group of German nationality with about 60,000 members. The Sorbs immigrated in the 6th century C.A. and settled in the Eastern Part of Germany close to the German-Polish border. Their Slavonic language, their traditions and their costumes still survive and the states of Brandenburg and of Saxony passed statutes protecting and guaranteeing the “national identity” of the Sorbs.32 The states of Brandenburg and Saxony stipulated a state treaty establishing the “Foundation for the Sorb People” (Stiftung für das sorbische Volk).33 Under all these instruments the “Sorbische Museum” in Bautzen/ Saxony is subsidized and cultural activities of the Sorbs are protected. According to a resolution of the German Conference of Ministries of Culture, Jewish cultural property has to be protected, preserved and documented.34 4. Immovables 4.1. Competent Authorities The German states (Länder) fix the authorities competent for the protection of immovable cultural objects.35 There is no federal office for the protection of monuments. In every German territorial state (as distinguished from city states as Berlin, Bremen and Hamburg) there is a hierarchy of three different levels: The state ministry for cultural affairs as the superior authority, the regional authorities and the local authorities in local districts or cities. Within the ministries there is the state authority for the protection of monuments (Landesamt für

32 Gesetz zur Ausgestaltung des Rechts der Sorben (Wenden) im Land Brandenburg (Sorben [Wenden]-Gesetz- SWG) [Act on the Rights of Sorbs (Wenden) in the State of Brandenburg] of 7 July 1994, Gesetz- und Verordnungsblatt für das Land Brandenburg 1994, Part I, p. 294; Gesetz über die Rechte der Sorben im Freistaat Sachsen (Sächsisches Sorbengesetz—SächsSorbG) [Act on the Rights of Sorbs in the Free State of Saxony] of 31 March 1999, Sächsisches Gesetzund Verordnungsblatt 1999, p. 161. 33 Staatsvertrag zwischen dem Land Brandenburg und dem Freistaat Sachsen über die Errichtung der “Stiftung für das sorbische Volk” [Treaty between the State of Brandenburg and the Free State of Saxony on the Establishment of the “Foundation for the Sorb People”] of 28 August 1995. 34 Erhaltung und Pflege jüdischen Kulturguts in Deutschland. Bericht und Empfehlung der Kultusministerkonferenz [Preservation and Care for Jewish Cultural Property in Germany. Report and Recommendation of the Conference of Ministers of Culture] of 6 December 1996, in Stich/Burhenne/Porger, supra n. 16, at Mat/L No. 313, p. 63. 35 Cp. the state statutes for the protection of monuments in Stich/Burhenne/Porger, supra n. 16.

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Denkmalpflege). Normally local authorities are competent to protect cultural objects located within their district. 4.2. Criteria for Declaring on Object as “Cultural Heritage” There are at least three different types of immovable objects which may be protected: buildings (Baudenkmäler), sites (Bodendenkmäler) and landscape (Naturdenkmäler). 2.1 Buildings may be declared to be protected monuments if they qualify as unique, of artistic or craftsmanship quality, as exemplary, original, or as to be integrally preserved.36 2.2 Sites may be protected if it can be shown that there may be discovered archaeological objects of scientific, exemplary or unique quality within the site.37 2.3 Landscape may be declared a natural monument if it should be protected and preserved because of its scientific, ecological, historical, geographical or cultural importance or if habitats of certain animals or plants should be protected or if it is unique with respect to typical landscape features.38 4.3. Measures of Protection Measures of protection of private buildings are dealt with under 4.4. If buildings are state property the state has the same obligations with respect to measures of protection. Sites should not be excavated without government permission. Most Länder provide that archaeological objects of scientific value are ipso facto state property. Protected landscapes are protected by building laws which provide that all building in the area of a protected landscape requires government permission. 4.4. Effects of Declaration as “Cultural Property” on Owner’s Rights The effects of a declaration as “cultural property” on the owner of an object are considerable. He can no longer deal with his property as he likes. Five different main obligations need to be distinguished.39 36 Cp. the administrative guidelines for monuments protection of the State of SachsenAnhalt part 2.8 (4), at: Stich/Burhenne/Porger, supra n. 16, vol. I, at p. 384.01. 37 Cp. Sachsen-Anhalt guidelines, supra n. 36, part 2.8. (5). 38 § 24 of the Act of 1995 for the Protection of Nature, for the Care of Landscape and for Preservation of Recreation in Open Nature [Gesetz vom 29.3.1995 zum Schutz der Natur, zur Pflege der Landschaft und über die Erholungsvorsorge in der freien Landschaft] of BadenWürttemberg, in: Stich/Burhenne/Porger, supra n. 16, vol. I, at p. 217.71. 39 Reference is made to the Denkmalschutzgesetz des Landes Sachsen-Anhalt [Act on the Protection of Monuments in the State of Saxony-Anhalt] of 1991, at: Stich/Burhenne/Porger, supra n. 16, vol. I, at p. 283.11.

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4.1 The owner has to preserve the object and to see that it be maintained and protected against potential dangers (§ 9 (2)). If he does not do so, authorities of cultural monuments (Denkmalschutzbehörden) may take appropriate measures and liquidate the expenses of preservation with the owner (§ 9 (6) and (7)). In exceptional cases the object may be nationalized with compensation (§ 19). 4.2 An owner wanting to renovate, change or rebuild the object has to give notice of his plans to the competent authorities (§ 9 (3)) and get permission for such changes (§§ 10, 14). If he fails to cooperate with state authorities, he may be punished (§§ 21, 22). Illegal works may be removed at the owner’s expense (§ 9 (6) and (7)). 4.3 The owner has to inform authorities of any intended sale of the object (§ 17). He may be punished for not having done so (§ 22). In any case the state may exercise its right of pre-emption (§ 11). 4.4 The owner has to allow the monuments authorities to inspect the premises and to place emblems on the object (§ 16). 4.5 Nobody is allowed to destroy cultural objects without being punished (§ 21). 4.5. Position of Communities, Groups and Organizations Everybody may apply for certain objects as cultural monuments to be placed under protection and listed as protected monuments. Even the owner himself may apply for his object be declared a protected monument and registered as such in order to get help from public authorities for the preservation of the objects and to get some tax privileges with respect to the costs of preservation and protection. 4.6. Precautionary Measures of Protection in the Event of Armed Conflict Germany ratified the 1954 Hague Convention and implemented the instrument by the Act on the Convention of 14 May 1954 on the Protection of Cultural Property in the Event of Armed Conflict.40 The German states (Länder) have to execute the Convention by placing the distinctive emblem of the Convention on protected buildings.41 At the same time persons responsible for the duties of control are appointed and get the identification card provided by the Hague Convention. This is regulated by the federal “Zivilschutzgesetz” (Act on Civil Protection).42 Also certain refuges (Bergungsorte) have been provided in Germany for the protection of movable property in general or

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Supra n. 15. Cp., e.g., the provision of Bavaria on the execution of the Hague Convention at: Stich/ Burhenne/Porger, supra n. 16, vol. I, at p. 320.41. 42 Bundesgesetzblatt 1997, Part I, p. 726. 41

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for cultural objects exhibited in certain museums or other cultural institutions (e.g. libraries).43 In 2004 a special Federal Office for the Protection of People and Assistance in Catastrophes (Bundesamt für Bevölkerungsschutz und Katastrophenhilfe) in Bonn was established within the Federal Ministry of Interior Affairs.44 This Office has to make sure that archives are secured by copies being placed in refuges, that monuments are marked with the Hague Convention emblem, that all other cultural property is registered and reproduced in films and that shelters and refuges be built and personnel be trained. 4.7. Differences with Respect to Underwater Cultural Objects In Germany there are no special rules for underwater cultural objects. The general rules apply. Under these general rules territorial waters are part of the German territory and German law of treasure trove also applies to treasures discovered in territorial waters. 5. Movables 5.1. Cultural Heritage There is no general definition of objects which are part of the German cultural heritage. Every statute on cultural objects has to provide its own definition. So do the various statutes of German states on the protection of monuments (Gesetze zum Denkmalschutz). As a general rule all these state statutes agree that all those objects are considered to be cultural objects which, because of their importance for history, art, science and ethnology, are of interest for the public and therefore should be protected. All these objects are ipso facto cultural objects and need not be declared or registered as such. Under federal law, however, only those cultural objects are prohibited to be exported without government license which are listed in the “Gesamtverzeichnis” (supra 3.1.2.).

43 The “Barbarastollen” in Oberried in the vicinity of Freiburg/Breisgau is especially provided for the protection of archives in form of security films. This is the only place in Germany which has been identified with the distinctive emblem repeated three times. Other objects are identified only with a single emblem. Cp. Stephan Krass, “Der Kulturbunker” [Refuge for Culture], in: Etienne François and Hagen Schulze (eds.), Deutsche Erinnerungsorte [German Places of Recollection] (München, Beck 2001) vol. III, p. 651–659. 44 Gesetz of 27 April 2004 über die Errichtung des Bundesamtes für Bevölkerungsschutz und Katastrophenhilfe [Act on the Establishment of the Federal Office for the Protection of People and Assistance in Catastrophes] (BBKG), Bundesgesetzblatt 2004, Part I, p. 630.

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kurt siehr 5.2. Role of Communities and Groups

There are no collective or group rights with respect to movable cultural property in Germany. The German states decide based on general principles of state interests. Even cultural property of the Sorbs (supra at 3.4.) is not treated differently. 5.3. Property Law and Cultural Objects The general principles of property law also apply to cultural objects. There are, however, special rules for treasure troves. All state statutes on protection of monuments provide that the finder of archaeological objects has to notify the respective state authority, and federal law provides that the finder of any object, be it of cultural value or not, has to notify the owner or, if he is unknown, the competent state authority (§ 965 BGB). 5.4. Protection of Cultural Objects Cultural objects are treated the same as any kind of movable property. There is no special status as “domaine public” or “demanio pubblico” unless cultural objects are specifically declared to be “public property”. This, however, hardly ever happens. Cultural objects are also subject to the rules on bona fide purchase (§§ 932 et seq. BGB), on prescription (§ 937 BGB) and to the statute of limitations (§§ 194 et seq. BGB). They are treated differently with respect to export or removal within the EU. German cultural objects listed in the “Gesamtverzeichnis” (supra at 3.1.2.) cannot be exported or removed without government approval. If cultural objects of other Member States of the EU or of contracting states of the 1970 UNESCO Convention have been illegally removed or imported into Germany, they have to be returned under EU law or the 1970 Convention. 5.5. Obligations of Museums, Galleries and other Institutions Museums, galleries and other institutions are subjects to law and are not allowed to dispose of their treasures unless provided by law. They are not allowed to return objects to indigenous peoples in Germany or in foreign countries unless national or international instruments provide for such a return. What has been illegally taken in the past and placed in public museums has to be returned. If cultural objects have been stolen and not been sold to a bona fide purchaser afterwards, the objects have to be returned. With respect to cultural objects illegally taken during the Nazi-period (socalled holocaust art) public museums in Germany returned those objects which were either confiscated by the Nazis, stolen as Jewish property or Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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sold under pressure by the former owners. This occurred even before the Washington Conference Principles of 1998 were passed and implemented by the German “Erklärung” of 1999 and the “Handreichung” of 2001/2007. The museums did not and still do not raise the defences of lapse of time (e.g. statute of limitations, prescription) and of bona fide purchase and therefore have to give the objects back to the owners. During the last years museums and collections have intensified provenance research in order to discover the owners of cultural objects formerly held by Collecting Points of the Allies of World War II, transferred later to the Federal republic of Germany and since then held in trust for unknown beneficiaries. The Koordinierungsstelle für Kulturgüterverluste (central office for the documentation of lost cultural property) in Magdeburg/Germany with its website http://www.lostart.de in three languages (German, English and Russian) provides valuable assistance in finding out the whereabouts of lost art objects and their former owners. 5.6. Armed Conflict In case of armed conflict, the competent state authorities have to take appropriate measures in order to protect cultural objects endangered in Germany. These measures are dealt with in the state statutes on the preservation of monuments (Gesetze zum Denkmalsschutz). The statute of Baden-Württemberg, e.g., provides that for cases of catastrophe or inherent or imminent danger the monuments authority (Denkmalschutzbehörde) may by ordinance provide that the owner has four obligations:45 (1) to report the place where a cultural object is located; (2) to provide cultural objects with the emblem as laid down in international conventions; (3) to rescue cultural objects and to place them in shelters; (4) to tolerate any measure in order to document, to preserve and to restore cultural objects. In addition to this the German National Committee for Protection of Monuments has issued resolutions with respect to the protection of cultural objects in case of catastrophe.46 5.7. Underwater Cultural Heritage With respect to movables the same rules apply as with immovables (supra at 3.1.4.).

45 § 18 of the Gesetz zum Schutz der Kulturdenkmale [Act on the Protection of Monuments] of 6 December 1983 in Stich/Burhenne/Porger, supra n. 16, at RV/B-W, No. 215, p. 3. 46 Schutz von Baudenkmälern und ihrer Ausstattung bei Katastrophen. Empfehlung des Deutschen Nationalkomitees für Denkmalschutz [Protection of Monuments and their Equipment for cases of Catastrophes. Recommendation of the German National Committee for the Protection of Monuments] of 8 November 1985, in Stich/Burhenne/Porger, supra n. 16, at Mat/L, No. 313, p. 51.

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kurt siehr 6. Intangible Cultural Property 6.1. Safeguarding of Intangible Cultural Heritage

The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 3 November 200347 has not yet been ratified by Germany. Intangible cultural property is protected and safeguarded by the law of intellectual property if it is part of any intellectual property right (e.g. copyright, design) and by general private and criminal law. 6.2. Misappropriation of Traditions Traditions, even if—as so often—invented,48 are not protected in Germany. Everybody may imitate religious traditions (Christmas trees), local festivals (Halloween, Valentine Day) or tribal customs (dancing, masquerades). Also culinary traditions and recipes may be copied but not offered under the name of the country/region/place of origin of the copied original. 7. Measures beyond Preservation? There are no quota systems for any kind of media in Germany. Everybody is free to engage in any kind of media and to enjoy every kind of media as he or she likes. 8. Recent Trends In recent years the protection of cultural property has been strengthened. Germany ratified the 1970 UNESCO Convention and implemented it in a national statute. At the same time Germany is comparatively modest in protecting cultural objects located in Germany. If Germany is interested in objects offered for sale abroad, money is collected to buy these objects (e.g. the Gospel of King Henry the Lion for 32.6 million DM in 1986). On the other hand Germany may grant an export license for the export of important objects which are of major interest for foreign countries and for which no buyer in Germany can be found who is willing to pay a price offered by a foreign interested party. In 2001, for example, Germany granted an export license for the sale of the map of the German cartographer Martin Waldseemüller (ca. 1472–1522) of about 1507 on which, for the first time, the

47

12 International Journal of Cultural Property (2005) p. 447. Cp. Eric Hobsbawm and Terence Ranger (eds.), The Invention of Tradition (Cambridge, Canto 1992). 48

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North American continent was called “America”. The Library of Congress in Washington acquired the map for $10 million. 9. Summary Germany is a federal state in which the legislative and governmental jurisdiction lies with the 16 German states (Länder). The federation has only a kind of “framework jurisdiction” and may ratify international conventions. Germany relies principally on the interest of citizens in Germany to preserve their own heritage and is very reluctant to enrich national collections by restricting private owners from disposing of their cultural treasures. Germany has ratified many international conventions and has implemented them and EU directives. These instruments are enforced without any requirement of reciprocity.

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ITALY Federico Lenzerini* 1. 2. 3. 4.

General Background ............................................................................... Categorization of Cultural Heritage in Italian Law ........................... Rights over Cultural Heritage ............................................................... Protection of Tangible Cultural Heritage ............................................ 4.1. Protection and Preservation of Tangible Cultural Properties ..... 4.2. Immovable Cultural Properties .................................................... 4.3. Movable Cultural Properties ......................................................... 5. Protection of Intangible Cultural Heritage ......................................... 6. Conclusion ................................................................................................ 7. Additional Information ..........................................................................

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1. General Background There is no doubt that Italy is one of the richest countries in the world in terms of cultural heritage. Since the rise of human history, the Italian territory and the waters surrounding the greatest part of it have represented a crossroads of cultures and civilizations, a centre of cross-fertilization among different peoples and communities which has progressively shaped a cultural inheritance that has so many shades of ‘colour’ as nature may offer. All categories of cultural heritage—as defined by pertinent international legal instruments—are massively represented: tangible and intangible; immovable and movable; on land and underwater. Consequently, all main relevant multilateral conventions are of concern for Italy, although—at the time of this writing— the Italian government has not yet ratified the 1999 Second Protocol to the 1954 Hague Convention for the protection of cultural property in the event of armed conflict and the 2001 Convention on underwater cultural heritage. The Italian legal regime on cultural property is founded on—and permeated by—the philosophical rationale according to which it represents heritage belonging primarily to the community. Therefore, the first purpose of the relevant legislation consists in making fruition of cultural heritage available for the entire community. This characterization is inherent in the same Italian translation of the word ‘heritage’—i.e., patrimonio—which derives from the Latin term patrimonium, indicating the inheritance left by the father (pater) to his descendants, inheritance that they must preserve, valorize and transmit * Professor of International Law, European Community Law and Law of Cultural Property, University of Siena (Italy). Consultant to UNESCO.

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in their turn to future generations.1 The precept in point is also epitomized in one of the fundamental principles included in the Italian Constitution, as article 9 affirms that ‘[t]he Republic promotes the development of culture and scientific and technical research. It protects the landscape and the historical and artistic heritage of the Nation’.2 The use of the term Nation makes clear what is the entity holding the legal title to the right to protection of cultural heritage, i.e. the community of national people,3 including all regional and local communities.4 Cultural heritage is thus part of the identity of the nation, and all members of the national community are culturally elevated through the fruition of cultural heritage, which—consequently—contributes to the ‘full development of the human person’, as underlined by the Italian Constitutional Court.5 This principle has eventually been proclaimed by Article 1(2) of the Legislative Decree 42/2004 [Code of Cultural Properties and Landscape],6 according to which ‘protection and valorization of cultural

1

See F. Bottari, F. Pizzicanella, I beni culturali e il paesaggio (Bologna, Zanichelli 2007),

p. 3. 2

Translated by the author. See N. Assini, G. Cordini, I beni culturali e paesaggistici. Diritto interno, comunitario, comparato e internazionale (Padova, Cedam 2006), p. 22. 4 See V. Piergigli, ‘I “beni culturali”: interpretazione evolutiva di una nozione giuridica consolidata’, in V. Piergigli, A.L. Maccari, eds., Il Codice dei beni culturali e del paesaggio tra teoria e prassi (Milano, Giuffrè 2006), p. 17 at p. 37. 5 See Corte Costituzionale 29 December 1982, No. 239, Foro It., 1983, I. 6 Codice dei beni culturali e del paesaggio, D. Lgs. 22 January 2004, No. 42, Gazz. Uff. 24 February 2004, No. 45, Supplement. The Code of Cultural Properties and Landscape has subsequently been modified by the following legal instruments: D. Lgs. 24 March 2006, No. 156, Gazz. Uff. 27 April 2006, No. 97, Supplement No. 102; D. Lgs. 24 March 2006, No. 157, Ibid.; D. Lgs. 26 March 2008, No. 62, Gazz. Uff. 9 April 2008, No. 84; D. Lgs. 26 March 2008, No. 63, Gazz. Uff. 9 April 2008, No. 84. A ‘Legislative Decree’ is a law adopted by the Government upon delegation by the Parliament; it has the same status of a law adopted by the Parliament. The term ‘Code’ indicates a law which collects, modifies (where necessary), harmonizes and integrates all pre-existing legislation concerning its subject matter. The Code of Cultural Properties and Landscape is the final (at the moment of writing) result of a long evolution in the Italian legislation concerning the protection and management of cultural heritage, an evolution which started well before the moment in which, in 1861, Italy became a unitarian State. The need of safeguarding the artistic heritage of the State, for religious reasons, was already perceived by some of the most important philosophers living in the ancient Roman Empire. In modern times, since the beginning of the XVII Century some ‘pre-unitarian’ States (in particular the Granducato of Tuscany, the Reign of Naples and the Pontifical State) enacted laws aimed at preventing uncontrolled exportation of cultural properties from their territories; some of them remained in force for a few decades after the unity of Italy had been reached in 1861. The first ‘post-unitarian’ law enacted in Italy for the protection of cultural properties was Law 12 June 1902, No. 185 (so-called ‘Legge Nasi’), recognizing the absolute preponderance of the public interest over private rights, which were virtually ignored; this law, however, was inadequate to properly address the reality of cultural heritage in Italy, as it reserved protection only to properties which had been regularly registered in ad hoc inventories, making the exportation and dispersion of a huge part of the Italian patrimony legally possible. For this reason, in 1909 a new law was enacted (Law 20 June 1909, No. 364, commonly defined ‘Legge Rosadi-Rava’), which granted protection not only in favour of the properties listed in official catalogues, but more generally for all movable and immovable things of historic, artistic and archival interest. However, it was in 1939 that the first two organic laws on cultural heritage 3

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heritage contribute to preserve the memory of the national community and its territory and to promote the development of culture’.7 2. Categorization of Cultural Heritage in Italian Law The relevant Italian legal tradition—ultimately expressed by the Code of Cultural Properties and Landscape—draws a clear distinction between cultural properties (beni culturali) and landscape. However, these two elements are strictly interrelated with each other, as demonstrated by the fact that the concept of cultural heritage—as made clear by Article 2(1) Code of Cultural Properties and Landscape—‘is composed by cultural properties and landscape-related properties (beni paesaggistici)’ [emphasis added]. The following paragraph defines cultural properties as ‘immovable and movable things which [. . .] have artistic, historical, archaeological, ethno-anthropologic, archival and bibliographic interest and the other things qualified by law or according to law as evidence with a value of civilization’. This concept is elaborated by Article 10, according to which the following things are first to be considered as cultural properties: immovable and movable things—belonging to the State, the regions, other territorial public authorities, other public bodies and institutions as well as non-profit private legal persons (including ecclesiastical bodies recognized as organizations of private law)—having artistic, historical, archaeological and ethno-anthropologic interest (as provided for by Article 10(1)). This list is expanded by paragraph 2 of the same article, according to which museums, picture-galleries, galleries and other similar institutions, archives, documents, collections of books in libraries—when they belong to the State, the regions, other territorial public authorities and other public bodies and institutions—are also to be considered as cultural properties. Furthermore, pursuant to Article 10(3), things belonging to private persons or to other entities different from those included were enacted—both based on the scheme of Law 364/1909—one devoted to the things of artistic and historic interest (Law 1 June 1939, No. 1089), the other to the natural beauties (Law 29 June 1939, No. 1497). Law 1089/1939 (so-called ‘Legge Bottai’)—which concentrated its attention on properties of special significance, rarity or beauty—remained the most important legislation in force in the field of cultural properties for sixty years, until the Testo Unico on legal provisions concerning cultural and natural goods (D. Lgs. 29 October 1999, No. 490; the term ‘Testo Unico’ literally means ‘single text’, and, in Italian law, substantially corresponds to the term ‘Code’) was enacted (although in the meantime the Ministry for cultural and natural goods had been instituted—with Law 29 January 1975, No. 5—and subsequently transformed, with new competences (D. Lgs. 20 October 1998, No. 368), into the Ministry for cultural goods and cultural activities). The ‘Testo Unico’ of 1999—which reunited the preexisting legislation concerning cultural heritage and aimed at giving execution to article 9 of the Constitution—was finally replaced and considerably modified by the Code of Cultural Properties and Landscape. See Assini, Cordini, op. cit. n. 3, at p. 3 et seq. 7 All quotations taken from the Code of Cultural Properties and Landscape and from other Italian legal instruments have been translated by the author. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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within the scope of paragraphs 1 and 2 of the same article are also included within the concept of cultural properties, provided that their cultural interest has been ascertained through the procedure contemplated by Article 13 et seq.8 They include: immovable and movable things of particularly important artistic, historical, archaeological or ethno-anthropologic interest (belonging to subjects different from those specified by Article 10(1)); archives and individual documents of particularly important historical interest (belonging to private persons); collections of books of particularly exceptional cultural interest (belonging to private persons); immovable and movable things having a particularly important interest for their connection to the history of politics, military, literature, arts, science, technology, industry and culture in general, as well as for being a witness of the identity and history of public, collective or religious institutions (belonging to whatever subject); collections of objects—not included within the scope of Article 10(2)—which, considered as a whole, are of exceptional interest as a matter of tradition, fame and particular environmental characteristics, or for artistic, historical, archaeological, numismatic or ethno-anthropologic significance (belonging to whatever subject). According to Article 10(4), the categories of things listed by paragraphs 1 and 3 of the same article include a long list of properties, such as, inter alia, things of palaeontological and prehistoric interest, things of numismatic interest, manuscripts, books, engravings, maps, musical scores, photos, audiovisuals, villas, parks, gardens, public squares, streets, mines, boats and rural buildings. Other categories of things are listed by article 11, according to which they are the object of specific rules of protection that are shaped on the basis of their peculiarities and purposes. These things include, inter alia: frescoes; coats of arms; inscriptions; tabernacles; artist studies; public areas; paintings, sculptures and other artistic objects made by a living artist which are not older than fifty years; works of contemporary architecture of particular artistic value; photos, audiovisuals and similar works which are older than twenty-five years; means of transportation older than seventy-five years; things and instruments of interest for the history of sciences and technology which are older than fifty years. The Code of Cultural Properties and Landscape also provides different notions with respect to landscape as such (characterized, by Article 131, as ‘the territory expressing identity, the character of which derives from the action of natural and human factors and by their interaction’) and landscape-related properties, which are defined by article 2(3) as ‘immovables and areas [. . .] constituting expression of historical, cultural, natural, mor-

8

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phologic and aesthetic values of the territory, and the other things qualified by law or according to law’. The notion of landscape-related properties—which, pursuant to Italian law, are part of cultural heritage—recalls to mind the concept of ‘cultural landscape’ as developed in the context of the 1972 World Heritage Convention, although the only reference to such a Convention included in the relevant provisions of the Code of Cultural Properties and Landscapes— stating that in the choice of the appropriate guidelines of town planning particular attention is to be devoted to the safeguarding of sites included in the UNESCO World Heritage List (Article 135)—seems to be insufficient to conclude that these provisions constitute the direct result of the implementation by Italy of the 1972 Convention with respect to cultural landscapes. This conclusion is obviously confirmed by the fact that the category of landscape-related properties, as provided for by Italian law, is much older than the World Heritage Convention, as it was already contemplated by Article 1 Law 29 June 1939,9 No. 1497. However, the factual ‘parallelism’ between the two concepts under debate clearly appears if one considers the explanation of each of them provided by the relevant legal instruments. With respect to Italian landscape-related properties, they include—according to Article 136 Code of Cultural Properties and Landscape—immovables of evident natural beauty, ‘geologic singularity or historical memory’; villas, gardens and parks of uncommon beauty not included within the concept of cultural property (i.e., not included in the lists of properties contemplated by articles 10 and 11 Code of Cultural Properties and Landscape); complexes of immovables composing a characteristic view of aesthetic and traditional value, including historical centres and nuclei; panoramic beauties and viewpoints from which these beauties may be contemplated. As for cultural landscapes, pursuant to para. 47 of the Operational Guidelines for the Implementation of the World Heritage Convention they ‘are cultural properties and represent the “combined works of nature and of man” [. . .] illustrative of the evolution of human society and settlement over time’. According to para. 3 of Annex 3 to the Operational Guidelines, cultural landscapes fall into three main categories, i.e. landscapes designed and created intentionally by man (including gardens and parkland landscapes), organically evolved landscapes (embracing fossil landscapes and ‘continuing landscapes’, i.e. those retaining ‘an active social role in contemporary society closely associated with the traditional way of life’) and associative cultural landscapes, emerging for the ‘powerful religious, artistic or cultural associations of the natural element’. In sum, it is quite evident that—at least in a significant part—Italian landscape-related properties coincide in practice with World Heritage’s cultural landscapes.

9

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Pursuant to Article 157 Code of Cultural Properties and Landscape, landscape-related properties are included in two different lists, instituted by Article 2 Law 29 June 1939, No. 1497 and further regulated by Article 140 et seq. D. Lgs. 29 October 1999, No. 490.10 These lists are compiled by the competent provincial authorities. The first one includes immovables of evident natural beauty or geologic singularity and villas, gardens and parks of uncommon beauty, while the second one embraces complexes of immovables composing a characteristic view of aesthetic and traditional value and panoramic beauties and viewpoints from which these beauties may be contemplated. Following ratification by Italy—in 2007—of the 2003 UNESCO Convention on the Safeguarding of Intangible Cultural Heritage and of the 2005 Convention on the Protection of the Diversity of Cultural Expression, the recent Legislative Decree 26 March 2008, No. 62, added a new provision to the Code of Cultural Properties and Landscape—namely Article 7 bis— affirming that ‘[t]he expressions of collective cultural identity contemplated by [the 2003 and 2005 UNESCO conventions] are subjected to the provisions of the present code in the event that they are embodied into material manifestations and the premises and conditions for the applicability of Article 10 exist [i.e. that these expressions may be included within the concept of cultural properties]’. Therefore, pursuant to this provision, the Italian legal system adopts an integrated approach with respect to the protection and safeguarding of tangible and intangible cultural heritage, but only to the extent that the immaterial manifestations of the latter heritage find expression into material goods. This means, in other words, that intangible heritage is not specifically safeguarded by the Code of Cultural Properties and Landscape when it does not materialize into a tangible expression of cultural heritage; the reason for this is that the definition of cultural property—as provided for by article 10 of the Code—is only limited to material manifestations of heritage. 3. Rights over Cultural Heritage As noted in Section 1, according to Italian law the main proprietor of cultural heritage is the community, i.e. the national people. Therefore, all actors involved in its protection, valorization and management—being the State, local authorities, as well as other public and private persons—have the duty to give their contribution, depending on their respective degree of involvement in carrying out the above activities, in order to ensure preservation, promotion and public fruition of cultural heritage. In terms of legal ownership, cultural properties and landscape-related properties are to be distinguished into different categories. First, certain proper10

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ties belong to the State, being qualified as ‘public goods’. Public goods must not be confused with ‘goods of public interest’, which represent a broader concept including both public goods and privately owned goods that are of concern to the entire collectivity, such as cultural properties belonging to private persons. Public goods belong to the State or to other public authorities (particularly local authorities) and are the object of a particular legal regime. The two main categories of public goods are: 1) goods which are part of the State domain: they are inalienable and cannot be the object of private rights, except according to the limits and modalities established by the specific laws dealing with them; and 2) goods that are considered as patrimony—belonging to the State, the provinces or the municipalities—which, although not included within the concept of State domain, also cannot be used for purposes different from the public one to which they are devoted, except according to the modalities established by the specific laws dealing with them (so-called patrimonio indisponibile). The first of these categories—as defined by Article 822 Civil Code—includes immovable goods belonging to the State recognized by law as having historical, archaeological and artistic interest, museums, picture-galleries, archives and libraries; consequently, the goods belonging to the State domain are immovables or collections of movable goods. Pursuant to Article 826 Civil Code, goods belonging to the second of the aforementioned categories are those of State ownership which are not included within the conceptual area of the State domain (that is limited to the categories of goods specifically listed by Article 822); they may have both immovable or movable character and include things of historical, archaeological, palaeo-ethnological, palaeontological and artistic interest, found underground by whoever and in whatever way. Things belonging to both categories are cultural properties when they meet the conditions established by Article 10 Code of Cultural Properties and Landscape. According to Article 53 Code of Cultural Properties and Landscape, cultural properties belonging to the State, the regions and the other territorial public authorities which are included within the scope of application of Article 822 Civil Code compose the State cultural domain.11 They cannot be sold or made the object of private rights, except according to the limits and modalities contemplated by the Code of Cultural Properties and Landscape itself.

11

With respect to the concept of ‘State domain’, the concept of ‘State cultural domain’ is a more limited one, as it only includes those goods which are part of the State domain that are also qualified as cultural properties pursuant to the Code of Cultural Properties and Landscape; thus, the relationship between the two concepts corresponds to that existing between two concentric circles, in which the ‘State cultural domain’ is the smaller one, which is embraced by the larger one, i.e. the ‘State domain’. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Certain categories of properties belonging to the cultural domain are inalienable tout court. They are indicated by Article 54 Code of Cultural Properties and Landscape as including the following: – immovables and areas of archaeological interest; – immovables declared as national monuments by the law in force at the relevant time; – collections of museums, picture-galleries, galleries and libraries; – archives; – immovables declared to be of particularly important interest for being linked to the political, military, literary, artistic, scientific, technical, industrial or cultural history or for representing witness of the identity and history of public, collective or religious institutions; – movable things produced by a living author or not older than 50 years that are included in collections belonging to the State, the regions and the other territorial public authorities; – immovable and movable things—belonging to the State, the regions, other territorial public authorities, any other public institutions and non-profit private legal persons, including recognized ecclesiastic authorities—of artistic, historical, archaeological and ethno-anthropologic interest, produced by a non-living author, when the procedure of verification of their cultural interest (pursuant to Article 12 Code of Cultural Properties and Landscape) is pending or when, after the completion of such a procedure, the cultural interest attached to the relevant thing has actually been verified;12 – documents belonging to the State, the regions and the other territorial public authorities as well as archives and documents belonging to other public institutions.

12 This means that a thing belonging to this category may be freely sold only when, after the completion of the procedure of verification of its cultural interest, this interest has not been found. In general terms, according to Article 12, all immovable and movable things belonging to the State, to other public authorities or to non-profit private legal persons, which are included in the concept of ‘cultural property’ and have been made by a non-living author or are older than 50 years, are in any case the object of the measures of protection and the restrictions provided for by the Code of Cultural Properties and Landscape in favour of cultural properties until a procedure of verification of their ‘cultural interest’ has been completed by the Ministry for cultural goods and cultural activities. Only when—after the completion of this procedure—the relevant object has been found to have no cultural interest, it may be freely sold (in the case of an object belonging to the State domain, it is removed from such domain, except in the event that other reasons of public interest prevent this removal ). The rationale of this approach lays in the fact that, as demonstrated by the experience of the XIX Century, in a legislative environment where protection was only reserved to those properties the cultural significance of which had already been verified, the difficulty of carrying out in due time a procedure of verification of the cultural value with respect to the myriad of cultural objects existing in Italy led to the progressive dispersion of the national heritage. See Assini, Cordini, op. cit. n. 3, at p. 8.

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Cultural properties belonging to the cultural domain which are not included among the categories listed by Article 54 may only be sold—pursuant to Article 55—after having obtained the authorization of the Ministry for cultural goods and cultural activities (‘the Ministry’). The same authorization is also requested—according to Article 56—for other categories of cultural heritage, including properties—belonging to the State, regions and other public authorities—which are not part of the cultural domain. As noted in the previous Section, pursuant to Italian law cultural properties—both of immovable and movable character—and landscape-related properties may well be the object of private ownership. However, unlike those belonging to the State or to other public authorities—the status of which as cultural heritage is directly granted by the law, their being considered cultural properties by virtue of the sole fact that they objectively belong to the categories contemplated by the relevant provisions of the Code of Cultural Properties and Landscape—with respect to privately owned cultural properties their cultural heritage status is not presumed. It must be recognized “in advance”, i.e. before they can be the object of protection as things of cultural significance. This is done by means of the ‘Declaration of the cultural interest’ contemplated by Article 13 Code of Cultural Properties and Landscape, which therefore has constitutive effects. In other words, relevant privately owned things are considered cultural properties—and consequently made the object of the measures of protection reserved to cultural heritage pursuant to the relevant legislation—only after their cultural significance has been specifically declared through an ad hoc procedure. This procedure, as provided for by Article 14, is initiated by the competent local authority, i.e. the ‘Superintendent’ (Soprintendente), which may act of its own initiative or upon request by the region or any other territorial authority concerned. At the end of the procedure, the Declaration of the cultural interest (when the existence of such interest has actually been ascertained) is adopted by the Ministry and notified to the person(s) concerned. The Declaration of the cultural interest is issued irrespective of the consent of the private proprietor(s) of the thing(s) concerned, who may only—pursuant to Article 16—bring administrative recourse against the Declaration based on reasons of legitimacy or merit. The evaluation of the existence of the cultural interest operated by the competent authority has a marked discretional component, aimed at evaluating whether there is a public interest—on the basis of (at least) one of the grounds listed by Article 10(3) Code of Cultural Properties13—in the safeguarding of the relevant property.14 Certainly, the parameters of ‘authenticity’

13 14

See infra, para. 4.2. See Assini, Cordini, op. cit. n. 3, at p. 97. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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and ‘state of conservation’ (rectius: ‘integrity’) will usually play a significant role in the realization of the evaluation in point, but the fact that the relevant property does not satisfactorily fulfil such parameters is not necessarily to be considered as an insuperable obstacle to the recognition of its cultural interest. Once the cultural interest of a privately owned property has been recognized, this ownership is limited and constrained to the extent necessary to ensure preservation and public fruition of the relevant heritage. A private owner of a cultural property is thus to be considered as its custodian, who, although retaining ownership, has the social duty and the legal obligation to ensure its preservation in the interest of the collectivity. For this reason, privately owned cultural properties may be the object of any kind of Stateimposed restrictions on the proprietary rights enjoyed by their holders to the extent that such restrictions are considered necessary to ensure the proper preservation and valorization of the relevant property as well as its fruition by the community. These restrictions may amount, e.g., to specific measures of conservation, or to the imposition of a right to visit the relevant heritage in favour of the public, in order to ensure public fruition. In the latter case—according to Article 104(3) Code of Cultural Properties and Landscape—the conditions and modalities of this right are established through an agreement between the owner of the property concerned and the local Superintendence. According to Article 95 Code of Cultural Properties and Landscape, the State may even have recourse, when necessary for reasons of public utility, to the ‘extreme’ measure of restriction of the ownership of a cultural property by a private person, i.e. expropriation. In this case, the property right of the private person over the property concerned is extinguished tout court by means of an authoritative measure. The prerequisite of public utility—which must be declared by Ministerial Decree—exists every time that expropriation represents the only reliable measure for ensuring the proper safeguarding and public fruition of the relevant heritage.15 In case of expropriation, the former owner of the expropriated property has the right to receive economic compensation for the proprietary right of which he/she/it has been deprived, corresponding to the right price of the property, i.e. the price that would normally be fixed in the context of a free negotiation between private persons for its sale. This price is determined by the Ministry, but, if the private person concerned considers it unfair in comparison to the objective value of the expropriated property, he/she may oppose this determination by requesting negotiations with the administration or through submitting a recourse

15

Ibid., at pp. 125–126. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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to the competent judges (including—when feasible—the European Court of Human Rights). Acquisition of proprietary rights to cultural properties by private persons on the basis of original title is inhibited tout court. Thus, when a person accidentally discovers an immovable or movable thing included within the scope of Article 10 Code of Cultural Properties and Landscape, he/she has the obligation of reporting his/her discovery—within 24 hours—to the competent authority, as the owner of the found heritage is the State. In addition, he/she is obliged to ensure temporary conservation of the thing concerned—when possible leaving it in the same place where it has been discovered—until the public authority has taken possession of it (pursuant to Article 90 Code of Cultural Properties and Landscape). Consistently, all research activities aimed at discovering cultural properties in the national territory are reserved by Article 88 to the Ministry, which, however, may authorize a public or private entity to perform these activities. In any event, all things discovered in whatever way in the national territory or seabed belong to the State and— depending on whether they are of immovable of movable character—become part of national domain or of not-disposable heritage. The person who has discovered the cultural thing, by chance or upon authorization to research, as well as—if different—the owner of the plot of land where it has been discovered, are entitled to receive a prize for the discovery, which may not be higher than one quarter of the value of the relevant thing, as determined by the Ministry. This prize may be granted in the form of money or of property rights over part of the things discovered (Article 92). The right of ownership of a cultural property is also restricted with respect to the prerogative—inherent to the right of property—to sell the thing concerned. Cultural properties may not in fact be freely sold; on the contrary, the seller must follow a specific procedure established by law. In particular, each time that the property over a cultural property is intended to be transferred to another person, the seller and/or the buyer (depending on the circumstances of the case) are bound to inform the Ministry within 30 days from the conclusion of the contract. The effects of the transaction remain then suspended for 60 days from the reception of the notification by the public authority; thus, within this period the contract is ‘pending’, and the Ministry or—when certain conditions are met—the other public territorial authorities concerned may exercise the so-called right of pre-emption, i.e. decide to buy themselves the property concerned, paying the same price established in the original contract or, when not provided, according to the conditions determined by Article 60 Code of Cultural Properties and Landscape. If the seller does not comply with its obligation to inform the Ministry about the conclusion of the contract, the contract is null and void and the State may exercise its right of pre-emption at any time, even after many years. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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In Italy an entity which plays a special role in terms of ownership of cultural heritage is the Catholic Church. Although no exact assessment is available in this respect, it is in fact estimated that over 70 percent of the whole cultural heritage located in the Italian territory belongs to the Catholic Church.16 With respect to this heritage—as well as to the heritage belonging to other religious institutions of any credo—Article 9(1) Code of Cultural Properties and Landscape states that the modalities of their preservation and fruition are established by means of an agreement between the Ministry (or, whether and to the extent that they are competent in the instant case, the regions) and the relevant religious institution(s). The purpose of these agreements is to conciliate the different demands attached to religious heritage, so as to make possible both their use for the spiritual needs to which they are devoted and, at the same time, their public fruition as cultural heritage. A particular (and limited) kind of right over cultural heritage existing pursuant to Italian law is the right to the use of properties owned by public authorities. According to Article 106 Code of Cultural Properties and Landscape, the Ministry or the other authorities concerned may in fact authorize—in favour of a private person—any use of the cultural properties placed under their control which is compatible with the cultural purpose to which such properties are devoted. When this use is authorized with respect to a property possessed by the Ministry, the payment by the user of a rental fee is imposed. Finally, as stated in Section 1, the ‘supreme’ right over cultural heritage belongs to the community, which translates into the need to ensure its fruition by all. The fruition of cultural properties is ensured by articles 101– 105 Code of Cultural Properties and Landscape. In particular, according to Article 101(3) the institutions and places of culture (i.e. museums, libraries, archives, archaeological areas, archaeological parks and monumental centres) which belong to public bodies ‘are destined to public fruition and carry out a public service’. The same institutions and places which belong to private persons ‘are open to the public and carry out a private service of social utility’ (Article 101(4)). When the fruition of the institutions and places in point is subject to the payment of a price, its amount must be proportionate to the service offered to the public through ensuring its access therein, thus taking the form of a right to compensation for such a service. 4. Protection of Tangible Cultural Heritage With regard to tangible cultural properties, their categorization in Italian law follows the traditional international distinction between immovable and 16

Ibid., at p. 79. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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movable cultural goods. This is clear in Article 10 Code of Cultural Properties and Landscape, which defines as cultural properties ‘immovable and movable things’. Pursuant to article 17 Code of Cultural Properties and Landscape, the Ministry, with the cooperation of the regions and of other territorial public bodies, ensures the cataloguing of cultural goods, which are consequently included in a national catalogue of cultural properties. In practical terms, the cataloguing of Italian cultural heritage is currently carried out by an ad hoc body incorporated within the organization of the Ministry, the Istituto Centrale per il Catalogo e la Documentazione (Central Institute for Cataloguing and Documentation). ‘Cataloguing’ consists of the registration, description and classification of all typologies of cultural properties, in order to promote knowledge and documentation of such properties and record all relevant information.17 While cultural properties located on land are the object of very detailed legislation (as it is summarily described in this writing), the regulation of underwater cultural heritage is limited to one single provision, i.e. Article 94 Code of Cultural Properties and Landscape. According to this rule, ‘archaeological and historical objects found in the seabed of the maritime area extended 12 miles departing from the external border of the territorial sea are safeguarded pursuant to the “rules concerning activities directed at underwater cultural heritage” attached to the [2001] UNESCO Convention on the protection of underwater cultural heritage’. Although the scope of this provision is limited to underwater cultural heritage found in the contiguous zone, the reference to—and ‘nationalization’ of—the said regulations is quite remarkable, as (at the moment of writing) the 2001 Convention has not yet been ratified by Italy. It is to be noted that, with respect to objects discovered in the seabed of the contiguous zone, they must be considered as ‘things’—not ‘properties’—as (obviously) their cultural interest has not yet been verified.18 This is consistent with the terminology used by articles 88 and 90 Code of Cultural Properties and Landscape with regard, respectively, to research activities aimed at discovering cultural properties and to fortuitous discoveries made in the State territory.19 In this respect, these two provisions are to be interpreted as extending their scope to all spaces on which the State exercises its ‘territorial’ jurisdiction—including territorial (and internal) waters—in light of the substantial equivalence of the powers exercised by the State in its territory and in its territorial waters pursuant to international law and to the fact that no specific rule is contemplated in the Code of Cultural Properties and Landscape with respect to cultural objects 17 18 19

See (last visited on 2 July 2008). See Assini, Cordini, op. cit. n. 3, at p. 83. See supra, Section 3. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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found in the bed of the territorial sea. For this reason, underwater cultural objects found in the territorial seabed are to be considered as included within the scope of articles 88 (concerning research activities aimed at discovering cultural properties in the national territory) and 90 (fortuitous discoveries of cultural properties). 4.1. Protection and Preservation of Tangible Cultural Properties Under a ‘methodological’ perspective, protection of tangible (immovable and movable) cultural properties is realized through the adoption of bonds, i.e. restrictions on the use of, destination of and rights over the relevant heritage. The due respect of these restrictions by the actors involved is monitored by the Ministry. A restriction may be imposed with respect to either a (movable or immovable) cultural property in itself or a (immovable) property with no cultural significance surrounding or located in the vicinity of an immovable element of cultural heritage—i.e. its ‘environmental frame’—20 when and to the extent that this ‘indirect’ restriction is necessary to properly safeguard such heritage trough providing it with ‘complementary’ protection (due to the relationship of contiguity existing between the two properties). Examples of the latter kind of restrictions—defined by Article 45 Code of Cultural Properties and Landscape as ‘prescriptions of indirect protection’—may be the requirement to keep within a given measure the height of the buildings surrounding a cultural property or the prohibition of constructing edifices on the territory on which the property is located within a given distance from it. These prescriptions—the content and modalities of which are not pre-determined by law but are established by the authority according to the specific needs of any single property—have the purpose of preventing the integrity of an immovable cultural property from being harmed, its perspective or light damaged, or the conditions of its ‘environment and decorum’ altered. In practical terms, the areas surrounding a cultural property which are the object of indirect restrictions may be compared to the ‘buffer zones’ as known in the practice of the 1972 World Heritage Convention, although Article 45 Code of Cultural Properties and Landscape does not constitute a measure of implementation of that Convention. In deciding the restrictions to be used with respect to a privately owned cultural property, the public interest for the preservation of which these restrictions are to be adopted is to be balanced against the degree of impairment they may produce to the prejudice of the private property rights involved.21 ‘Indirect’ restrictions (i.e. those imposed on a property with no cultural significance surrounding or located in the vicinity of an element of

20 21

See Assini, Cordini, op. cit. n. 3, at p. 89. Ibid., at p. 90. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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cultural heritage), in particular, must entail the least possible sacrifice of the proprietary rights of the person(s) concerned.22 Taking this into account, the determination of the specific measures to be adopted in any instant case is substantially left to the public authority, which has the duty of evaluating what kind(s) of restrictions may ensure adequate preservation and safeguarding of the heritage concerned. Restrictive measures, in the sense just explained, are adopted in view of ensuring the protection and preservation of cultural properties. Among the main measures of protection, the Code of Cultural Properties and Landscape contemplates the prohibition of destroying, deteriorating or damaging the properties concerned as well as using them in ways not compatible with their historical or artistic character or which may prejudice their correct preservation (Article 20). Furthermore, according to Article 21 certain interventions on cultural properties must be authorized in advance by the Ministry, including removal or demolition (also when they are followed by reconstruction), relocation of movable properties and dismemberment of collections. Also, the realization of any kind of work on cultural properties (including conservation works, restoration, building activities, etc.) must be authorized by the competent Superintendent, except in the event of a situation of absolute urgency, in the context of which all provisional works which are indispensable in order to prevent damage to the property concerned may be carried out without prior authorization, provided that the Superintendent is immediately informed about the execution of those works (Article 27). Certain specific categories of cultural properties are the object of particular restrictive measures, conceived on the basis of the peculiar function(s) and value of each of them. For example, as the preservation of the value of archives is inextricably linked to their integrity and unitedness, Article 20(2) Code of Cultural Properties and Landscape affirms that their dismemberment is not allowed. Also, with respect to artist studios of historical value, Article 51 establishes an absolute prohibition of changing their destination of use and of removing their content. As stated by Article 29(1) Code of Cultural Properties and Landscape, conservation of cultural properties ‘is ensured through a coherent, coordinated and planned activity of study, prevention, maintenance and restoration’. The obligation to ensure safety and preservation of publicly owned cultural properties is held by the relevant public authority (i.e. the State, regions and other territorial or non-territorial public authorities) to which the property concerned belongs. Similarly, private owners or holders of cultural properties are bound to ensure their proper preservation. When work is necessary

22 See Consiglio di Stato, Sez. VI, 25 March 1999, No. 330, quoted by Assini, Cordini, op. cit. n. 3, at p. 120.

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for ensuring the preservation or restoration of a cultural property owned or detained by a private person, such work may be initiated at the free initiative of the private owner or holder—provided that the person concerned has obtained the authorization required by Article 21 quoted supra—or it may be imposed by the Ministry, which, in the alternative, may also decide to realize the necessary activities on its own (Article 32). In the context of the preservation and management of cultural properties a significant role may thus be played by the individual owners of the relevant heritage—particularly through interventions of consolidation, preservation and restoration authorized by the Ministry pursuant to Article 21 Code of Cultural Properties and Landscape—as well as by non-governmental bodies. With respect to the latter, non-profit private legal persons may own cultural properties—pursuant to Article 10(1) Code of Cultural Properties and Landscape—that, according to Article 54(2), when they have been produced by a non-living author or are older than 50 years may not be sold until the procedure of verification of their cultural interest has been completed and such an interest has not been found. Thus, cultural properties owned by nonprofit private legal persons are, in this respect, equated to those owned by the State or by other public bodies. In terms of management, non-profit private legal persons, pursuant to Article 112(8) Code of Cultural Properties and Landscape, may be entrusted by the State with the task of elaborating and developing strategic plans of cultural development and programmes concerning cultural properties of public ownership, even when they do not possess cultural properties which are the object of valorization. Finally, non-profit private legal persons may perform—to the same extent as the Ministry, regions and other territorial authorities—initiatives of sponsorship of cultural heritage. These initiatives, defined by Article 120 Code of Cultural Properties and Landscape, consist of contributions (which may be also provided in the form of goods or services) allocated with the view of planning or implementing activities aimed at the protection or valorization of cultural heritage. In Italy, cultural sponsorship—traditionally conceived as a form of Mecenatism—has often represented a formidable means for allowing the preservation, valorization and recovery of cultural heritage. This has also happened in situations of emergency, e.g. after an earthquake in September 1997 heavily damaged the World Heritage property of Assisi (town of St. Francis) and other localities in Umbria.23

23

See A. Ferretti, Diritto dei beni culturali e del paesaggio (Napoli, Simone 2007), p. 233. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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4.2. Immovable Cultural Properties According to Article 812 Civil Code, the soil, springs, watercourses, trees, edifices and other buildings, even if linked to the soil on a transitory basis, as well as any other thing which—naturally or artificially—is anchored to the soil are immovable goods. Mills, beach concessions and other floating edifices strongly linked to the coast or riverbed are also considered immovables. All other goods are considered movable. In terms of the presence of immovable cultural properties on its territory, there is no doubt that Italy plays a leading role in the world. To have an idea of this, one may consider—inter alia—that Italy is the country with the highest amount of properties inscribed on the World Heritage List set up pursuant to the 1972 UNESCO World Heritage Convention, reaching the number of 43 at the moment of writing.24 The properties inscribed on the World Heritage List are considered—by Article 1 Law 20 February 2006, No. 7725—as ‘peaks of excellence of the Italian cultural, landscape-related and natural heritage and of its representation at the international level’, on account of ‘their uniqueness’. Due to this ‘excellence’, Article 2 of the just-mentioned law recognizes that the realization of projects of protection and restoration of the national properties inscribed on the World Heritage List will have priority over other similar projects concerning other cultural or natural heritage; in addition, the establishment of ad hoc management plans is provided by Article 3, in order to ensure the adequate conservation and valorization of the properties in point. In addition to the World Heritage sites, all other immovable things of artistic, historical, archaeological and ethno-anthropologic interest which belong to the State, the regions, other territorial public authorities, any other public institutions and non-profit private legal persons, including recognized ecclesiastic authorities, are also included within the concept of ‘cultural properties’ as defined by Article 10 Code of Cultural Properties and Landscape. Furthermore, pursuant to Article 10(3) Code of Cultural Properties and Landscape, immovable things belonging to private owners, which are of particularly important artistic, historical, archaeological and ethno-anthropologic interest—as well as those of particularly important interest for being

24 See (last visited on 12 October 2008). Italy ratified the 1972 Convention with Law 6 April 1977, No. 184, Gazz. Uff. 13 May 1977, No. 129. Of the 43 Italian properties inscribed on the World Heritage List, 42 have been included for their cultural outstanding value; the only Italian property inscribed on the List as a natural site of outstanding universal value is the Aeolian Islands (recognized as such in 2000). 25 Gazz. Uff. 10 March 2006, No. 58. For a comment on this law see F. Lenzerini, ‘Law No. 77 of 20 February 2006’ (GU No. 58 of 10 March 2006). Special measures for the protection and fruition of Italian sites of cultural, landscape-related and natural interest, inscribed in the World Heritage List, placed under UNESCO’s protection’, 16 Italian Yearbook of International Law (2006), p. 395.

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linked to the political, military, literary, artistic, scientific, technical, industrial or cultural history or for representing witness of the identity and history of public, collective or religious institutions—are also cultural properties, provided that, as highlighted in the previous paragraph, their cultural interest is ascertained through the procedure contemplated by Article 13 et seq. Code of Cultural Properties and Landscape. Immovable cultural properties are the object of the measures of protection and conservation described in the previous paragraph. In the event of armed conflict, they would be the object of the precautionary measures provided for by the 1954 Hague Convention for the protection of cultural property in the event of armed conflict, which was ratified and executed by Italy with Law 7 February 1958, No. 279.26 4.3. Movable Cultural Properties According to Italian law, movable cultural properties are the object of specific and strict limitations with respect to a number of aspects. As seen supra, sub Section 3, proprietary rights over them by private persons are restricted both in terms of acquisition of ownership by discovery—which is inhibited tout court—and in terms of freedom to sell a cultural object by its owners, which is limited by the right of pre-emption recognized in favour of the State. With respect to the issue of international circulation of movable cultural objects, it is first of all to be noted that Italy is party to both the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Italy is thus bound to respect the rules contemplated by these instruments, although it lacks adequate domestic legislation aimed at implementing the non-self-executing provisions included in those conventions.27 In addition, Italy is bound by the relevant instruments adopted at the European Community level, i.e. Regulation 3911/199228 and Directive 1993/7.29 Relevant domestic regulation is thus shaped on the basis of the combination between the supra-national obligations resulting from such instruments and the Italian traditional restrictive approach inspired by the will of preserving the

26

Gazz. Uff. 11 April 1958, No. 87, Supplement. See R. Pavoni, ‘L’incompiuta “codificazione” italiana delle norme internazionali e comunitarie sulla circolazione dei beni culturali: interazione fra sistemi e problemi in material di adattamento’, in V. Piergigli, A.L. Maccari, eds., op. cit. n. 4, p. 331 at p. 337. 28 Council Regulation (EEC) No. 3911/92 of 9 December 1992 on the export of cultural goods, Official Journal L395 of 31 December 1992, p. 1. 29 Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State, Official Journal L74 of 27 March 1993, p. 74. 27

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integrity and cohesion of national heritage, as its loss is considered to be a harmful impoverishment of the national identity. The rationale of the restrictions on the international circulation of cultural properties contemplated by the Code of Cultural Properties and Landscape is made clear by Article 64 bis, recently added by Legislative Decree 26 March 2008, No. 62,30 which affirms that they are ‘finalized to preserve the integrity of cultural heritage in all its components’. The same provision adds that control over such circulation—which is to be exercised consistently with the obligations dictated by European Community law and by the international conventions to which Italy is party—represents a ‘function of national interest’, as well as that—with reference to the regulation of international circulation—cultural properties may not be assimilated to ‘goods’. According to Article 65, definitive exportation of cultural properties—as they are defined by Article 10—is prohibited. This prohibition involves both public properties and privately owned properties with respect to which the Declaration of the cultural interest contemplated by Article 13 has been made. It also extends to movable things—belonging to the State, regions, other territorial public authorities, other public bodies and non-profit private legal persons—which have been produced by a non-living author or are older than 50 years, and which have not yet been made the object of the procedure of verification of the cultural interest provided for by Article 12. Furthermore, the Ministry may decide to prohibit exportation of other (i.e. not included in the categories just listed) categories of cultural properties when it is considered harmful for the national cultural heritage. Definitive exportation of other categories of cultural properties—including things of cultural interest produced by a non-living author and older than 50 years, irrespective of the entity (public or private) to which they belong, as well as archives and documents of cultural interest belonging to private owners—must be authorized by the competent authorities. When the relevant objects are intended to be exported within the territory of the European Union, such an authorization—defined by Article 68 Code of Cultural Properties and Landscape with the term ‘Certificate of free circulation’—is granted by the competent exportation office, on the basis of the relevant information and instructions provided by the Ministry. In deciding whether the aforementioned certificate is to be issued, the competent office must ascertain if the relevant things have artistic, historical, archaeological, ethnoanthropological, bibliographic, documental or archival interest, pursuant to the criteria established by Article 10. In the event that this interest actually exists, the certificate is not granted, and the procedure for the Declaration of the cultural interest contemplated by Article 14 is immediately initiated.

30

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Before deciding whether the authorization at issue is to be granted or not, the exportation office may also recommend the Ministry acquire compulsorily the relevant object(s) (Article 70). If the Ministry decides that it does not intend to follow such advice, the office may address the same proposal to the territorially competent regional authority. Definitive exportation of movable cultural properties outside the territory of the European Union is regulated according to the rules set up by Regulation 3911/1992 and by Article 74 Code of Cultural Properties and Landscape. Article 2 of the Regulation, in particular, establishes that a movable cultural property may be exported outside the territory of the Union only when it is accompanied by an ‘Export licence’ issued by the competent authority of the member State in whose territory the cultural object concerned is located. As for Italy, the competent authorities in this respect are the exportation offices of the Ministry, which may issue the above licence contextually or within 30 months from the granting of the Certificate of free circulation. Pursuant to Article 66, the temporary exportation of the categories of cultural properties listed by Article 65—with the purpose of making them the object of manifestations or exhibitions of high cultural interest—is also subject to authorization. However, temporary exportation is prohibited tout court when the integrity and safety of the relevant properties is not ensured, as they may be damaged during transportation or by unfavourable environmental conditions in the place of destination. Furthermore, the temporary exportation of properties constituting the main component of a section of a museum or similar institutions is also prohibited. Restitution of movable cultural objects that have been illicitly exported from the territory of a member State of the European Union after 31 December 1992—and which belong to the national cultural heritage of the State concerned—is regulated by Article 75 et seq. Code of Cultural Properties and Landscape, consistently with the rules set up by Directive 1993/7. Exportation of a cultural object from a European Union member State is considered illicit in the following instances: a) when it occurred in violation of the legislation of such a State concerning the protection of national cultural heritage or in violation of Regulation 3911/1992; b) when an authorization of temporary exportation of the property concerned has been granted by the competent national authority, but such a property has not been returned to the national territory by the final deadline established in the above authorization; and c) when the prescriptions imposed by the authorization in point have been infringed (Article 75(4) and (5)). According to Article 78, the judicial action for restitution must be peremptorily promoted by the State concerned within one year from the day on which such State has known that the relevant property is located in a given place and owned or held by a given person. In any event, the action in point is prescribed after thirty years from the day on which the property left the territory of the State concerned, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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except with regard to certain categories of properties (in particular, properties belonging to public museum collections, archives and library collections or belonging to ecclesiastic institutions), with respect to which the action for restitution is imprescriptible. When restitution is ordered, protection of bona fide third parties is to be ensured pursuant to Article 9 Directive 1993/7, according to which, ‘where return of the object is ordered, the competent court in the requested States shall award the [bona fide] possessor such compensation as it deems fair according to the circumstances of the case’. According to the provision in point, a possessor is to be considered bona fide when the court concerned ‘is satisfied that the possessor exercised due care and attention in acquiring the object.’ This principle is substantially reproduced by Article 79(2) Code of Cultural Properties and Landscape, stating that, in order to obtain compensation, the person concerned bears the burden of proof of demonstrating that, at the moment of the purchase, he/she used the necessary diligence as required by the specific circumstances of the case. Pursuant to Article 80, the compensation in point is to be paid by the requesting State ‘contextually to the restitution of the property’ concerned. Consistent with this, Article 79 Code of Cultural Properties and Landscape authorizes the competent judicial authority to order the State obtaining restitution to pay such a compensation—the amount of which is to be determined ex aequo et bono—in favour of the interested person who demonstrates that, when buying the relevant movable cultural property, he/she used the necessary diligence depending on the circumstances of the instant case. Restitution of movable cultural properties stolen or illegally exported from States not members of the European Union is first of all regulated by Article 87 Code of Cultural Properties and Landscape. This provision, with respect to the categories of cultural properties listed in the annex to the UNIDROIT Convention on international return of stolen or illegally exported cultural objects, makes an explicit reference to the rules set up by the Convention itself and to the provisions adopted for its ratification and execution. Italy ratified the UNIDROIT Convention with Law 7 June 1999, No. 213,31 Article 2 of which sets up the conditions for the granting of administrative cooperation—by the Ministry—in favour of the other States parties to the Convention in order to facilitate the restitution and return of cultural properties. Such cooperation is granted upon condition of reciprocity, and is organized according to the following procedure: a) on request of the State party concerned, the Ministry organizes the necessary investigation for locating the property to be returned and identifying its possessor; b) the Ministry communicates the finding of the allegedly stolen or illegally exported property

31

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to the State party concerned; and c) the Ministry orders—when necessary— the removal and provisional custody in a public museum of the property concerned, as well as any other measure that is considered necessary for the proper conservation of such a property. According to Article 3 (which gives execution to Article 16 of the Convention),32 the State party concerned may present its claim for the restitution, or request for the return, to the territorially competent tribunal or through diplomatic or consular means. The bona fide possessor has the right to receive compensation, the amount of which may also be determined ex aequo et bono (Article 4). As previously noted, Italy is party not only to the 1995 UNIDROIT Convention, but also to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.33 As is well known, Article 7(b)(ii) of the 1970 Convention commends States parties to take appropriate steps—at the request of the State party of origin—‘to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned, provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property’, as well as to cooperate in order to facilitate such return. Furthermore, according to Article 13(b) and (c), States parties are also bound to, respectively, ‘ensure that their competent services co-operate in facilitating the earliest possible restitution of illicitly exported cultural property to its rightful owner’ and ‘admit actions for recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners’. As a State party to the 1970 UNESCO Convention, Italy is bound to respect and implement these rules in its relations with all other countries which are parties to the same Convention. For this reason, the fact that the Code of Cultural Properties and Landscape originally included a reference only to the 1995 UNIDROIT Convention (in Article 87), without mentioning the 1970 Convention, was capable of creating disharmony between the relevant international obligations that Italy was

32 Article 16 of the UNIDROIT Convention states that: ‘(1) Each Contracting State shall at the time of signature, ratification, acceptance, approval or accession, declare that claims for the restitution, or requests for the return, of cultural objects brought by a State under Article 8 may be submitted to it under one or more of the following procedures: (a) directly to the courts or other competent authorities of the declaring State; (b) through an authority or authorities designated by that State to receive such claims or requests and to forward them to the courts or other competent authorities of that State; (c) through diplomatic or consular channels. (2) Each Contracting State may also designate the courts or other authorities competent to order the restitution or return of cultural objects under the provisions of Chapters II and III. (3) Declarations made under paragraphs 1 and 2 of this article may be modified at any time by a new declaration. (4) The provisions of paragraphs 1 to 3 of this article do not affect bilateral or multilateral agreements on judicial assistance in respect of civil and commercial matters that may exist between Contracting States’. 33 The 1970 Convention was ratified with Law 30 October 1975, No. 873, Gazz. Uff. 24 February 1976, No. 49, Supplement.

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bound to respect and their effective implementation pursuant to Italian law. This inconvenience could be circumvented through interpreting Article 87 as including also an implicit reference to all other relevant international instruments to which Italy was a party—when and to the extent applicable—particularly the 1970 UNESCO Convention.34 In any event, Legislative Decree 26 March 2008, No. 62, has finally removed this problem through adding new provisions to the Code of Cultural Properties and Landscape—i.e. Article 64 bis (stating that control over international circulation of cultural property is to be exercised consistently with international obligations in force for Italy) and, particularly, Article 87 bis, according to which the properties included within the scope of application of the 1970 UNESCO Convention are regulated pursuant to the provisions of that Convention. With respect to the measures taken by Italy in order to control the actions and measures taken by museums, galleries and other similar institutions in relation to tangible cultural properties, the provision of reference is Article 7(a) of the 1970 UNESCO Convention, according to which the necessary measures are to be taken by States parties, ‘consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention, in the States concerned’. However, the lack of domestic regulation implementing the 1970 Convention could raise some doubts on the effective functioning of that provision with respect to Italy, as its self-executing nature is certainly debatable. In the event of an armed conflict, movable cultural properties would be protected according to the rules established by the First Protocol to the 1954 Hague Convention for the protection of cultural property in the event of armed conflict, also adopted in 1954, which was ratified by Italy, together with the Convention, in 1958. The restitution of cultural properties illegally imported to Italy from an area engaged in an armed conflict is thus regulated by this Protocol, when and to the extent that it is applicable. Additionally, Article 11 of the 1970 UNESCO Convention is also to be taken into account.35 Apart from its international obligations, however, Italy has traditionally demonstrated its willingness to cooperate with countries from which cultural properties have been subtracted in times of war. An excellent example of this willingness is the renowned case of the obelisk of Axum, which in 1935—during the war for the colonization of Ethiopia—was taken by the

34

See Pavoni, op. cit. n. 27, at p. 344. According to this provision, ‘[t]he export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit.’ 35

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Fascist army from the sacred town of the ancient Ethiopian empire and brought to Italy. Already in 1947, Italy had agreed to return the obelisk to Ethiopia, recognizing its status as war chest and, a fortiori, the illegitimacy of its appropriation by the Italian army. This notwithstanding, for several decades the return of the obelisk to its homeland was postponed, due to huge logistic problems and the high costs of its realization. However, in November 2002 the obelisk was cut into pieces and, finally, in April 2005 was returned to Ethiopia. A similar event recently took place with respect to the statue of the Venus of Cyrene, which in 1913—after Italy had obtained the territories of Tripolitania and Cyrenaica at the end of the war against Turkey—was found in the ancient city of Shahhāt (presently in the territory of Libya) and brought to Italy by a group of Italian archaeologists. On 30 August 2008 the statue was returned to Libya, after the Consiglio di Stato (Council of State, i.e. the supreme Italian administrative tribunal) ordered its restitution in application of the relevant rules of customary international law regulating the matter in point.36 Specifically, the Consiglio di Stato stressed that the obligation of restitution of cultural properties taken by a State through the use of force is a rule of customary international law which has been formed as a corollary of two well-established customary principles, i.e. the prohibition of the use of force and the principle of self-determination of peoples. The latter principle, in particular, includes “the identity as well as the historic and cultural heritage linked to the territory of each State or anyhow belonging to a population subjected to foreign domination”.37 5. Protection of Intangible Cultural Heritage As previously noted, Italy ratified the 2003 UNESCO Convention for the safeguarding of intangible cultural heritage in 2007. The law authorizing the ratification of, and giving execution to, the Convention38 does not include any provision for its implementation. At the same time, no specific legal framework for the safeguarding of intangible cultural heritage has been enacted so far, with only the exception of Article 7 bis Code of Cultural Properties and Landscape.39 As a consequence, at the moment of this writing the rules and

36

See Decision No. 3154/2008 of 23 June 2008, on file with the author. Ibid., at p. 14 (translation by the author). 38 See Law 27 September 2007, No. 167, Gazz. Uff. 12 October 2007, No. 238. In 2007 Italy also ratified the 2005 UNESCO Convention on the Diversity of Cultural Expressions (see Law 19 February 2007, No. 19, Gazz. Uff. 5 March 2007, No. 53, Supplement No. 57); just like Law 167/2007 with respect to the Convention on the safeguarding of intangible cultural heritage, Law 19/2007 gives execution to the 2005 Convention without including any provision for its implementation. 39 See supra, Section 2. 37

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standards existing in Italy for this safeguarding are mostly limited to those set up by the 2003 Convention. However, it is to be noted that a number of provisions among those included in the 2003 Convention are clearly of non-self-executing character. To quote just an example, one may refer to Article 11, according to which each State party to the Convention must ‘take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory’ and ‘identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant non-governmental organizations’. The same can be said with respect to Article 12, commending States parties to ‘draw up [. . .] one or more inventories of the intangible cultural heritage present in its territory’. With regard to these and all other similar provisions of the Convention, it is arguable that specific domestic legislative or administrative rules are adopted as soon as possible, in order to grant adequate safeguarding for Italian intangible cultural heritage and ensure effective implementation of the 2003 Convention. In any event, at the moment of this writing it may be maintained that intangible cultural heritage is only protected in Italy to the extent that the rules of the 2003 Convention are capable of being directly applied. It is worth noting that Italy has participated in the UNESCO Programme of Masterpieces of the Oral and Intangible Heritage of Humanity, which, pursuant to Article 31 of the 2003 Convention, are automatically incorporated in the Representative List of the Intangible Cultural Heritage of Humanity. In particular, the Opera dei Pupi (Sicilian Puppet Theatre) was proclaimed in 2001, and the Canto a tenore (Sardinian Pastoral Songs) in 2005. 6. Conclusion As emerges from the preceding sections, Italy has an enduring tradition of the protection of tangible cultural heritage. Since the early XVII Century, pre-Unitarian States tried to hinder the (often) hemorrhagic exportation of movable cultural treasures from the Italian territory. Already in 1602, e.g., the Granduca of Tuscany issued a ‘Prohibition of removal of good paintings from Florence and the State’ in order to pursue such a goal. This longlasting experience has allowed Italy to progressively elaborate a legislative approach concerning protection of cultural property which, although not immune from shortcomings and deficiencies (including the lack of proper implementation of non-self-executing international obligations included in conventions to which Italy is a party), has constantly improved the efficiency of actions aimed at properly safeguarding the heritage in point. To provide just an example of how this improvement has taken place, one may refer to the fact that, while in the past protection was only reserved to properties the Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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cultural significance of which had already been verified, present legislation extends safeguarding to all things that possess prima facie the elements defining cultural heritage, for which protection may be excluded only when the procedure contemplated by Article 12 Code of Cultural Properties and Landscape has been carried out and demonstrated that the property concerned lacks any cultural interest.40 This approach helps to prevent the dispersion of cultural objects in a context in which—due to the enormous amount of cultural properties existing in Italy—the ‘physiological’ slowness of the activity of verification of the cultural interest would otherwise lead to the progressive dispersion of the national heritage. The core principle permeating Italian legislation on cultural heritage consists of the recognition of the supremacy of the public interest over any kind of proprietary rights over the properties concerned. These rights—when incompatible with the primary purpose of the national action concerning cultural heritage, i.e. ensuring its proper preservation, valorization and adequate fruition by the community—are destined to surrender to the supreme requirement to properly realize the interests of the collectivity. Unlike tangible heritage, Italy has become aware of the urgent need to appropriately safeguard intangible cultural heritage only in quite recent times, approximately in coincidence with the development of the relevant international action at the UNESCO level (which ultimately led to the adoption of the 2003 Convention on the safeguarding of the heritage in point). This is the reason why adequate domestic legislation in this field is still lacking, determining the existence of a gap in the national protection of cultural heritage which should be filled in the shortest time possible. 7. Additional Information Law No. 77 of 20 February 2006 (GU No. 58 of 10 March 2006) Special measures for the protection and fruition of Italian sites of cultural, landscape-related and natural interest, inscribed in the World Heritage List, placed under UNESCO’s protection.* Law No. 77/2006 (hereinafter: “the Law”) fills a gap in the implementation by Italy of the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage (hereinafter: “the Convention”, available at ), in that it gives execution to certain non-self-executing provisions included in the Convention text which were not addressed by the ratification law No. 184 of 6 April 1977 (GU No. 129 of 13 May 1977).

40 See supra, note 12 and corresponding text. * Previously published in 16 Italian Yearbook of International Law (2006), p. 395.

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The first article of the Law, in addition, declares the symbolic value of the Italian sites inscribed in the “World Heritage List” contemplated in article 11 para. 2 of the Convention (hereinafter: “the List”), qualifying them, “due to their uniqueness”, as “peaks of excellence of the Italian cultural landscaperelated and natural heritage and of its representation at the international level”. The law thus honours one of the most important positive elements of the Italian visibility at the international level. Italy is in fact the country which has the highest number of properties—forty-three after the 2008 Session of the World Heritage Committee (that is the authority which, pursuant to article 11 para. 2 of the Convention, has the task of selecting the properties to be included in the List)—inscribed in the List, although they are almost all included for their cultural outstanding value (with the only exception of the Aeolian Islands, recognized in 2000 by the World Heritage Committee as having exceptional natural value). Article 2 recognizes that the projects of protection and restoration of the national properties inscribed in the List will have priority over other similar projects concerning other cultural or natural heritage (this, however, is conditioned to the requirement that such projects are specifically financed pursuant to applicable law). This complies with the general duty of each State party, affirmed by article 4 of the Convention, “of ensuring the [. . .] protection, conservation, presentation and transmission to future generations of the cultural and natural heritage [. . .] situated on its territory”. Coherently, the following provision of the Law gives implementation to the requirement of Article 5(a) of the Convention, according to which States “shall endeavour, in so far as possible” and as appropriate, “[. . .] to integrate the protection of [cultural and natural] heritage into comprehensive planning programmes”. Article 3 does in fact provide for the establishment of ad hoc management plans in order to ensure conservation and valorisation of the Italian sites inscribed in the List. These management plans shall define all priorities, modalities of implementation and other relevant aspects of the actions to be carried out for achieving such purpose. Special attention is devoted by the Law to the possible impact of tourism on the integrity and proper preservation of the sites inscribed in the List. Whilst the fact of a cultural or natural property being inscribed in the List is a formidable vehicle of attraction for tourists, in the end massive and unregulated tourism may have an adverse impact on the site’s integrity. The concept of “sustainable tourism” is thus taken as the basis of the provisions included in article 4, despite not exactly using such term. Letter a) of this norm affirms that all measures of support to national UNESCO-listed heritage contemplated by the subsequent paragraphs of the same article are to be finalized to “a compatible management of UNESCO’s Italian sites and a correct relation between tourist fluxes and cultural services offered”. Among these measures, article 4 lists the “study of specific cultural, artistic, historical, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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environmental, scientific and technical issues related to UNESCO’s Italian sites, including the elaboration of management plans”. This provision pairs with article 3 in implementing Article 5(a) of the Convention; at the same time, it reproduces in domestic law the provision of article 5(c) of the Convention, according to which parties shall endeavour “to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage”. Letter a) of article 4 of the Law is complemented by letters b) and c), contemplating, respectively, the “setting up of services of cultural assistance and hospitality for the public as well as cleaning, waste disposal, control and security services” and the “realization of parking areas and mobility systems in areas contiguous to the sites”. Letter d), finally, provides for the diffusion and valorisation of knowledge of UNESCO’s Italian sites in schools; the means used to pursue this goal may include governmental support for scholastic trips and cultural activities in schools. This provision gives direct execution to article 27 of the Convention, according to which State parties “shall endeavour by all appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect by their peoples of the cultural and natural heritage” protected by the Convention. The final norm of the Law (article 5) attributes to the “Consultative Commission for Management Plans of UNESCO’s Sites and for Local Tourism Systems”—previously established with Decree Law of 27 November 2003 and operating within the framework of the Ministry for Cultural Goods and Activities—specific competences concerning the implementation of the Law, particularly that of providing opinions on “issues related to UNESCO’s Italian sites”. This, again, constitutes a measure implementing article 5 of the Convention, particularly letter (e), according to which States have the duty to “foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage”.

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JAPAN Toshiyuki Kono* 1. Historical Development of the Protection of Cultural Heritage in Japan ...................................................................................................... 1.1. The Protection Scheme before World War II ............................ 1.2. The Protection Scheme after World War II ............................... 1.2.1. The Law for the Protection of Cultural Properties of 1950 ................................................................................... 1.2.2. The Amendments of the Law of 1950 .............................. 1.2.2.1. The First Amendment in 1954 ........................... 1.2.2.2. The Second Amendment in 1975 ....................... 1.2.2.3. The Third Amendment in 1996 .......................... 1.2.2.4. The Fourth Amendment in 1999 ....................... 1.2.2.5. The Fifth Amendment in 2002 ........................... 1.2.2.6. The Sixth Amendment in 2004 .......................... 2. The Current Protection Scheme under the Law for the Protection of Cultural Property ................................................................................ 2.1. The Distinction between Tangible and Intangible Cultural Heritage ............................................................................................. 2.2. Distinction between Peacetime and Wartime ............................ 2.3. Distinction between On Land and Underwater ........................ 2.4. Ownership ........................................................................................ 2.5. Categorization of Cultural Heritage ............................................ 2.6. Division between Tangible and Intangible Cultural Heritage ... 2.7. Granting Rights over Elements of Cultural Property or Heritage to Communities, Groups or Individuals ..................................... 3. Tangible Cultural Heritage ..................................................................... 3.1. Immovable ........................................................................................ 3.1.1. Protection of Culturally Important Immovables ........... 3.1.2. Criteria Used to Declare an Immovable Property as Cultural Property ................................................................. 3.1.2.1. Criteria on the Level of the Law ........................ 3.1.2.2. Criteria on the Level of the Notice .................... 3.1.2.2.1. Important Cultural Property (Buildings) ............................................ 3.1.2.2.2. Important Tangible Folk Cultural Property ................................................

469 469 471 471 472 472 472 473 474 474 474 474 474 476 476 476 476 477 477 478 478 478 478 478 479 479 479

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3.1.2.2.3. Historic Sites, Places of Scenic Beauty and Natural Monuments ...... 3.1.2.2.4. Important Cultural Landscapes ........ 3.1.2.2.5. Important Groups of Traditional Buildings Preservation Districts ....... 3.1.3. Protection Measures for Immovable Property Designated as Cultural Property ....................................... 3.1.4. Effects of the Designation of an Immovable Property as Cultural Property on the Owner’s Proprietary Rights ... 3.1.5. The Position, Role and Involvement of Communities, Groups or Relevant Non-governmental Organizations ... 3.1.6. Precautionary Measures for the Protection of Immovable Cultural Heritage in the Event of an Armed Conflict and Definition of an Armed Conflict ............... 3.1.7. Regulations for Immovable Cultural Property Located Underwater ........................................................................... 3.2. Movables ........................................................................................... 3.2.1. Framework and Criteria for the Protection of Movable Cultural Property ................................................................. 3.2.2. The Position, Role and Involvement of Communities, Groups or Relevant Non-governmental Organizations ... 3.2.3. Special Obligations with Regard to Movables ................ 3.2.4. Protection for Movable Cultural Heritage That Has Been Stolen and That Is Subject to Illicit Import, Export or Transfer of Ownership ....................................................... 3.2.4.1. Import Restrictions on “Specified Foreign Cultural Property” ................................................ 3.2.4.2. Exceptions Related to Acquisition in Good Faith of Specified Cultural Property ............................ 3.2.5. Obligations of Museums, Galleries or Other Institutions ............................................................................ 3.2.6. Movable Cultural Heritage in the Event of an Armed Conflict ................................................................................. 3.2.7. Regulations for Movable Cultural Property Located Underwater ........................................................................... 4. Intangible Cultural Heritage .................................................................. 4.1. The Protection of Intangible Cultural Heritage ......................... 4.1.1. Framework for the Safeguarding of Intangible Cultural Heritage ................................................................................. 4.1.2. Criteria for the Recognition of Traditional Knowledge or Cultural Expressions as Intangible Cultural Heritage .................................................................................

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483 483 484 484 484 484

485 485 485 486 486 487 487 487 487

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4.1.2.1. Important Intangible Cultural Property ........... 4.1.2.2. Important Intangible Folk Cultural Property ... 4.1.3. Protection Measures in Order to Achieve and Guarantee the Safeguarding of Intangible Cultural Heritage .......... 4.1.4. The Position, Role and Involvement of Communities, Groups and Relevant Non-governmental Organizations in the Safeguarding Measures ........................................... 4.1.5. Inventories of Intangible Cultural Heritage .................... 4.1.6. Other Measures in Order to Safeguard the Intangible Cultural Heritage ................................................................ 4.2. Misappropriation of Traditions .................................................... 4.2.1. Protection of Traditional Knowledge or Traditional Cultural Expressions against Misappropriation for Commercial Purposes ......................................................... 4.2.2. Proprietary Rights over Traditional Knowledge or Traditional Cultural Expressions to Communities or their Members ...................................................................... 4.2.3. Type of Regulation in Legal System ................................. 4.2.4. Regulations or Codes of Conduct ..................................... 4.2.5. Protection of Sensitive Traditional Cultural Expressions 5. Beyond Preservation ................................................................................ 6. Conclusion ................................................................................................

487 489 490

490 490 490 491

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491 492 492 492 492 493

1. Historical Development of the Protection of Cultural Heritage in Japan 1.1. The Protection Scheme before World War II The first chapter deals with the development of the legal scheme of the protection of cultural heritage in Japan. Looking back to the history of legal development is useful, since most of the categories of cultural heritage under the current legal scheme stem from concepts introduced under previous legal systems. In the modern history of Japan, the main engine to create new legal mechanisms for the protection of cultural heritage was crisis. The first crisis arrived just after the Meiji Restoration in 1868. The Meiji Government (1968–1912) rushed to introduce western governmental and social systems for the purpose of establishing a modern state. Consequently traditional Japanese culture, including Buddhism and Shinto-ism lost favor. Accordingly many temples and shrines either lost their properties or sold treasures to survive. Facing such circumstances, in 1881, the Meiji Government issued an ordinance to preserve historical objects. The Government ordered to investigate the state of cultural objects and to make a report, classifying historical objects Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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into 31 categories. During the period from 1880 until 1894, the Government subsidized 539 temples to restore their buildings. In 1888, the Government established the Extraordinary Agency for the Investigation of Treasure in the Ministry of The Imperial Household. This Agency investigated 215,000 items in old temples and shrines. This investigation made it clear that the temples and shrines in Kyoto and Nara owned outstanding cultural objects and that these objects were facing a serious threat of destruction or loss.1 In 1897 the Government promulgated the first law in Japan for the protection of cultural heritage, i.e. the Law for the Preservation of Old Shrines and Temples (Koshaji Hozon Ho) (the Law of 1897). It introduced the subsidy system for restoration under the supervision of the governor and the system of the national treasure and the building under special protection to be designated by the Interior Minister.2 One remark to be made is that the objectives of the protection under this law were limited to the buildings and treasures of temples and shrines. No secular building or treasure was covered by this law. In 1919, the second law for the protection of cultural heritage was promulgated. This law focused on historic sites, places of scenic beauty and natural monuments (Shiseki Meisho Tennenkinenbutsu Hozon Ho) (the Law of 1919). The background of this law was the House of Lords’ request to make a law to preserve historic sites, places of scenic beauty and natural monuments, since numerous construction projects, as a phenomenon of modernization, destroyed and/or threatened historic sites, places of scenic beauty and natural monuments.3 In 1929, the Government promulgated the third law, i.e. the Law for the Preservation of National Treasure (Kokuho Hozon Ho) (the Law of 1929) to cope with the serious economic crisis at that time. Treasures owned by old families and castles built by samurai families were in critical condition. But the Law of 1897 was not applicable to these non-religious heritages. Thus a new law was needed to enlarge the applicability, replacing the Law of 1897. This new law applied to movable and immovable as well as religious and secular tangible cultural heritage, as long as it was designated as a national treasure. The export or temporary transfer of national treasure without the permission of the minister in charge was banned.4 Soon after its enactment, the Law of 1929 turned out to be insufficient. It covered only designated national treasure, but quite a few, not-yet-as-national-treasure-designated, but historically or artistically important objects were being sold to foreign collectors and museums. Hence the Government

1 Kenjiro Nakamura, Bunkazai Hogo Seido Gaisetsu [Overview of the System for the Protection of Cultural Properties] (1999, Tokyo), p. 15. 2 Ibid. 3 Ibid., p. 16. 4 Ibid., p. 17. Toshiyuki Kono - 978-90-04-18991-1

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enacted another law in 1933, i.e. the Law concerning the Preservation of Important Artistic and Other Objects (Juyo Bijutsuhin to no Hozon ni kansuru Horitsu) (the Law of 1933) in order to enlarge the scope of export control. Under this law, the export and temporary transfer of historically or artistically important objects are subject to the permission of the minister in charge. Only objects made less than 50 years ago or imported less than one year ago are categorically excluded from this control. To make these undesignated objects subject to the permission, they must be so certified. Until 1950, 8282 items were certified as “permission-required”.5 1.2. The Protection Scheme after World War II 1.2.1. The Law for the Protection of Cultural Properties of 1950 During World War II, in 1943, the practice to certify as culturally or historically important objects and to designate places of scenic beauty and natural monuments were suspended. Although the practice was restarted in 1945, cultural heritage was facing serious threats due to the economic crisis, various social reforms, which included the dissolution of conglomerates, and the abolishment of the aristocratic system. Under such circumstances, the painting in the Horyuji Temple was charred by an accident in 1949. It was painted in the 7th century and considered as one of the most important Buddhist paintings besides those in the Ajanta Cave in India and Dunhuang in China. This accident accelerated the preparation of the Japanese Parliament to draft a new law to protect cultural heritage. The new Law for the Protection of Cultural Properties was promulgated in May 1950 and entered into force in August of the same year. The Japanese Constitution does not contain any provision concerning cultural heritage. Thus there is no constitutional requirement on how to protect cultural heritage in Japan. Article 4 of the Law of 1950 is the only provision somehow related to the relationship between the Constitution and the protection of cultural heritage. But its logical outcome is not clear. Article 4, paragraph 2 of the Law of 1950 requires the owners of cultural properties and other related parties to acknowledge cultural properties as valuable properties for the Japanese nation as a whole, to preserve them for the public and to culturally utilize them, including exhibition. Paragraph 3 requires the national and local governments to respect the ownership and other property rights of the related parties, when they implement this law. If the Law of 1950 requires to tolerate more restriction on cultural properties or not is uncertain from the language of this provision. It should be determined on a case-by-case basis.

5

Ibid., p. 19.

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Before World War II, as stated above, the protection scheme was divided into several laws. There was a lacuna in terms of the objectives of the protection. The Law of 1950 instead introduced the concept “Bunkazai” (cultural property) as the basic concept to cover historically or artistically important buildings and treasures, historic sites, places of scenic beauty, as well as natural monuments. In addition to that, this law introduced two new categories under the concept of cultural property. The one is intangible cultural property. The other is buried cultural property. Besides the new categories, the Law of 1950 introduced a two-step protection scheme. First, for certain items to be protected, they must be designated as “important cultural property” in the case of tangible cultural property and as “historic site”, “places of scenic beauty” or “natural monument” in the case of monument. “Importance” is the criterion for the designation. Certain items among the designated ones, for which the protection should be enhanced, are classified as “national treasure”, “special historic site”, “special place of scenic beauty” and “special natural monument”.6 1.2.2. The Amendments of the Law of 1950 The Law of 1950 has been amended several times. To understand the current protection scheme, it is useful to trace the main aspects of these amendments. 1.2.2.1. The First Amendment in 1954 The Law of 1950 originally provided for only a subsidy system for intangible cultural property with high value, which may die out without the protection of the state. The amendment in 1954 enhanced the protection for intangible cultural property through introducing the designation system of important intangible cultural property. Under this system, even intangible cultural property with less or no risk of disappearance could be protected as important intangible cultural property. Under this system, intangible aspect is designated as important intangible cultural property, while the natural person who holds it is recognized as the holder of the important intangible cultural property. Those intangible cultural properties other than important ones should be recorded only.7 1.2.2.2. The Second Amendment in 1975 With the economic development during 1950’s and 1960’s, social conditions in Japanese society have drastically changed. Rapid urbanization, depopulation in the provinces, and development projects caused the disappearance

6 7

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of folkloric activities and instruments and the destruction of buried cultural properties. Facing such circumstances, the Parliament took initiative to amend the Law. This amendment was very broad and became the foundation of the current scheme. First, not only a building, but also a premise can be designated as cultural property to be protected. Second, not only natural persons, but also association with/without legal personality can be designated as holder of an important cultural property. Third, tangible folkloric cultural property was added to the list of categories. Important ones can be designated as cultural property, whose protection may be subsidized by the state. Fourth, the protection of buried cultural property was enhanced. Fifth, preserved area with a group of traditional buildings was added as a new category of cultural property. The objective is not individual buildings, but an area with buildings. It aims at preserving the façade of buildings. The designation system was not adopted. Since people are living in these buildings, initiative for the protection should be taken on a local level by the municipality, reflecting residents’ views. Thus an interested municipality should apply and the Minister of Education, Culture, Sports, Science and Technology selects the areas with traditional buildings with high value as important preserved area with a group of traditional buildings. Sixth, traditional craftsmanship and skill, which are applied to repair tangible cultural property or to make traditional tools and instruments, were added to the list of categories. Traditional techniques, such as techniques to make brushes to produce lacquer work or music instruments to perform traditional performing arts are good examples. Such techniques to make these tools are disappearing due to the decrease of successors and lack of traditional materials. Thus the state selects such techniques to place under the protection scheme. Upon the selection, the holder (individuals or associations) of such techniques must be so recognized.8 1.2.2.3. The Third Amendment in 1996 In 1996, the registered cultural property was introduced as a new scheme to preserve buildings. Different from existing schemes, under which buildings must be designated as important cultural property, application suffices for this new category. Buildings built more than 50 years ago are eligible to be registered. What is to be protected under this scheme is the façade only. The government does not instruct, but gives advice and recommendation. The background of this new system is the quick loss occurred during 1980’s of many buildings constructed after the Meiji Restoration in 1868. According

8

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to a survey conducted in 1980, there were 1016 buildings constructed after 1868 with value as cultural property in 5 wards in Tokyo. 539 of these buildings were lost in the following 10 years.9 Since such buildings are often still used, it was crucial to strike a balance between the preservation and the utilization. 1.2.2.4. The Fourth Amendment in 1999 Decentralization was the keyword of this amendment. No new category was added. However, due to the transfer of power from the state to prefectural or municipal governments, many provisions on administrative and procedural matters were amended.10 1.2.2.5. The Fifth Amendment in 2002 The Parliament approved to ratify the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. To prepare its entry into force in Japan, the export control was enhanced, i.e. the export of important tangible folkloric cultural property needs to be permitted, while notification sufficed before.11 1.2.2.6. The Sixth Amendment in 2004 A new category, cultural landscape, was added to the list of categories. Furthermore, the concept of folk cultural property is expanded to include folkloric skill, which has traditionally been applied to daily life and production, such as the traditional skill for digging a well.12 2. The Current Protection Scheme under the Law for the Protection of Cultural Property13 2.1. The Distinction between Tangible and Intangible Cultural Heritage In Article 2 (Definition of Cultural Property) of the Law for the Protection of Cultural Properties,14 enacted in 1950, the categories of cultural properties are defined. In other words, this is the objective scope of application of this law. The definition of cultural property is as follows.

9

Ibid., p. 27. Bunkazai Hogo Hō Kenkyū Kai [Study Group of the Law for the Protection of Cultural Property] (ed.), Saishin Kaisei Bunkazai Hogo Hō [The Newest Reform of the Law for the Protection of Cultural Property] (2006, Tokyo), p. 33. 11 Ibid., p. 14. 12 Ibid., p. 33. 13 For the overview of the system for the protection of cultural property, see chapter 4 at the website http://www.bunka.go.jp/english/index.html. 14 In Japanese: 文化財保護法 Bunkazai Hogo Hō. 10

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“Cultural property” in this Law shall be the following. 1. Buildings, paintings, sculptures, craftwork, calligraphic works, classical books, antique documents and other tangible cultural products which have for Japan high historical or artistic value (including land and other objects which are inseparable from these to form such value), and archaeological specimens and other historical materials of high academic value (hereafter referred to as “tangible cultural property”) 2. Plays, music, artistic techniques and other intangible cultural products which have for Japan high historical or artistic value (hereafter referred to as “intangible cultural property”) 3. Manners, customs, folk performing arts and folk crafts related to housing, food and clothing, trades, faith, annual festivals, etc. and the clothing, utensils and implements, buildings and other objects used for that purpose, which are indispensable for the understanding of the transitions in the lives of the Japanese people (hereafter referred to as “folk cultural property”) 4. Shell mounds, burial mounds, castle town remains, castle remains, old houses and other remains which have for Japan high historical or academic value; gardens, bridges, canyons, seashores, mountains and other places of scenic beauty which have for Japan high artistic or aesthetic value; and animals (including habitat, breeding places and migration stopover sites), plants (including natural growth areas) and geological occurrences (including land where unique natural phenomenon has arisen) which have for Japan high academic value (hereafter referred to as “monuments”) 5. Areas of people’s lives or industry and scenic areas that are formed through the natural features of said areas, which are indispensable for the understanding of the transitions in the lives and industry of the Japanese people (hereafter referred to as “cultural landscape”) 6. Traditional buildings of high value which form the historical landscape in combination with the surrounding environment (hereafter referred to as “groups of traditional buildings”)

Among items which fall under these categories, protective measures are to be taken with respect to designated or selected items. These categories are not necessarily be defined in accordance with the physically tangible or intangible character of each item. Thus, for example, a “tangible” thing may fall under one category of cultural property different from “tangible cultural property” as another category of cultural property. In other words, “tangible cultural property” as a category of cultural property under the Law does not cover all tangible items. Hence, tangible items are classified as 5 types of cultural property: (1) tangible cultural property (important cultural property / national treasures), (2) monuments (historic sites / special historic sites, places of scenic beauty / special places of scenic beauty, natural monuments / special natural monuments), (3) important tangible folk cultural property from amongst folk cultural property, (4) cultural landscape, (5) groups of traditional buildings. On the other hand, intangible items are “important intangible cultural property” and “important intangible folk cultural property” from amongst folk cultural property. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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toshiyuki kono 2.2. Distinction between Peacetime and Wartime

In the Law for the Protection of Cultural Properties, there is no peacetime / wartime distinction in the protection of cultural property; but, pursuant to the Law for the Protection of Cultural Properties in the Event of Armed Conflict,15 which was enacted to implement the Convention for the Protection of Cultural Property in the Event of Armed Conflict in 2007, protective measures are, with respect to tangible cultural property, to be taken at times of armed conflict. 2.3. Distinction between On Land and Underwater The Law for the Protection of Cultural Properties has no provision specifically applicable to underwater heritage. If some items as underwater heritage should be protected, provisions on buried cultural properties in the Law (Art. 92–108) may look applicable. However, certain provisions such as Art. 92, 93, 94, 95, 96, 98, 99 contain the language “land”. Theoretically they should apply mutatis mutandis. Even so, the appropriateness to apply them should be carefully examined. 2.4. Ownership Cultural property may be privately owned. But the ownership of cultural property is subject to certain restrictions. For example, changing the current conditions must be permitted in advance by the Commissioner of the Agency for Cultural Affairs (ex. Article 43 in the case of important cultural property). Protection of cultural property often leads to restrictions of the owner’s rights. How to strike the best balance between the protection of the ownership and the protection of cultural property depends upon constitutional consideration. While Article 29 of the Japanese Constitution guarantees the property rights, the Constitution has no provision on cultural property. Article 4 of the Law of 1950 pays attention to the public nature of cultural property and its ownership aspect in paragraph 2 and 3 respectively, but its stance on the relationship of these two aspects is not clear. 2.5. Categorization of Cultural Heritage The categories of cultural properties under the Law for the Protection of Cultural Properties are described in the list at 2.1 above. This list looks quite comprehensive. But if this list would cover all kinds of cultural heritage can be questioned. An example is, as pointed out above, underwater cultural her-

15 In Japanese: 武力紛争の際の文化財の保護に関する法律 Buryoku Funsō no sai no Bunkazai no Hogo ni kan-suru Hōritsu.

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itage. In my view, there is no appropriate provision applicable to underwater heritage in the Law. 2.6. Division between Tangible and Intangible Cultural Heritage It should be noted in order to avoid confusion that there are two levels of tangiblity and intangibility, as I explained above. The twin concepts on the first level concern the physical nature of items. Those on the second level are the legal concept (category No. 1 in the 2.1 above). Thus it occurs that the category under the Law, “tangible important cultural property” (tangible on the second level), covers only a part of tangible items (tangible on the first level) to be protected under the Law. In other words, the qualification of the categories of cultural properties under the Law for the Protection of Cultural Properties does not only depend upon physical tangibility or intangibility of items. There is one category of cultural property, in which both physically tangible and intangible aspects are integrated, i.e. cultural landscape. An area could be designated as important cultural landscape, when it is the area, which has been closely connected with agricultural, forestry or fishing activities of the residents over generations. 2.7. Granting Rights over Elements of Cultural Property or Heritage to Communities, Groups or Individuals Under Japanese law, there is no system for granting rights to communities. In other words, the ownership belongs only to natural or legal persons. There is a system where the ownership and the power to manage cultural property could be separated. With respect to “tangible cultural property” as the category 1 in the above 2.1 (i.e. important cultural landscapes and important groups of traditional buildings preservation districts are not included), there is a system where the Commissioner of the Agency for Cultural Affairs can designate an association as “managing entity”, when the “owner is unknown” or when it is “deemed that management by the owner is extremely difficult or clearly inappropriate.” The managing entity should be responsible for the maintenance and management of the said cultural property and bear certain obligations with respect to that management, such as bearing the necessary expenses for management. “Local public bodies and other bodies” may be designated as managing entity under laws and regulations. In practice, municipalities are designated as managing entity in most of the cases.

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toshiyuki kono 3. Tangible Cultural Heritage 3.1. Immovable

3.1.1. Protection of Culturally Important Immovables In the Law for the Protection of Cultural Properties, the key measure for the protection of cultural property is “designation” in the case of important cultural property, important tangible folk cultural property, historic sites and places of scenic beauty, while for important groups of traditional buildings preservation districts and important cultural landscape it is “selection”, when the protection of these items is sought. The Minister of Education, Culture, Sports, Science and Technology (the Minister) has the authority to make the designation and selection. The Minister, when making the designation or selection and when terminating it, must, prior to designation or selection, consult the Council for Cultural Affairs (the Cultural Property Subcommittee) composed of experts. The designation or selection is made taking into account the report of the Council. Designation for important cultural property, important tangible folk cultural property, historic sites, and places of scenic beauty and selection for important groups of traditional buildings preservation districts and important cultural landscape is a listing system.16 In practice in Japan, being designated or selected as one of these categories is a prerequisite for nomination as World Cultural Heritage. However the criteria to be designated or selected are different from the criteria for the inscription into the World Heritage List. Anyway, to be inscribed in the tentative list, the item must pass the screening process of the special committee for World Cultural Heritage with experts set up under the Sub-Committee for Cultural Properties of the Council for Cultural Affairs. 3.1.2. Criteria Used to Declare an Immovable Property as Cultural Property 3.1.2.1. Criteria on the Level of the Law For an item to be designated, first the item should fall under one of the categories prescribed in Article 2 of the Law for the Protection of Cultural Properties. Then it must satisfy the requirement of being “important” or “especially important”. The “important” one can be designated as “important cultural property” and the “especially important” one as “national treasure”. Since these criteria are so simple, for a practical purpose, these criteria should be further elaborated. Thus we should pay attention to the criteria more detailed by the administrative notice.

16 The information on designated or selected items is available at http://www.bunka.go.jp/ bsys/ (Japanese only).

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3.1.2.2. Criteria on the Level of the Notice 3.1.2.2.1. Important Cultural Property (Buildings) Designation criteria for national treasures and important cultural property introduced by the National Commission for the Protection of Cultural Properties,17 Notice No. 2 in 1951 are as follows. Among buildings, civil engineering structures and other structures, items which fall under any one of the following items and which furthermore are archetypes of certain type or era. 1. 2. 3. 4. 5.

Items of superior design Technically superior items Items of high historical value Items of high academic value Items strikingly characteristic, representing a particular school or a particular region

3.1.2.2.2. Important Tangible Folk Cultural Property Designation criteria for important tangible folk cultural property set up by the National Commission for the Protection of Cultural Properties, Notice No. 58 in 1954 are as follows. 1. The items, which fall under the following categories of tangible folk cultural properties, are representative and have, distinctive characteristics of the foundation of Japanese people’s life and culture in their form, production technique, use, etc. a. Items used in housing, food and clothing, for example, garments, personal ornaments, utensils for food and drink, heating and lightning appliances, furniture, houses, etc. b. Items used in production and trades, for example, agricultural tools, fishing and hunting tools, craftsman’s tools, spinning tools, workplaces, etc. c. Items used in traffic, transportation and communication, for example, transport equipment, vessels, courier tools, checkpoints, etc. d. Items used in commerce, for example, calculation apparatuses, weighing apparatuses, signboards, licenses, stores, etc. e. Items used in social life, for example, gifts, guard tools, instruments of punishment, young peoples’ lodgings, etc.

17 Until the Agency for Cultural Affairs was established in 1968, the National Commission for the Protection of Cultural Properties was the governmental agency in charge of the protection of cultural properties.

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f. Items used in faith, for example, items used in religious rites and Buddhist services, offerings, icons, items used for magic, shrines, etc. g. Items used in relation to folk knowledge, for example, calendars, augury implements, medical tools, educational facilities, etc. h. Items used in folk entertainment, amusements and games, for example, garments, tools, musical instruments, masks, dolls, toys, stages, etc. i. Items used in a person’s lifetime, for example, childbirth implements, marriage and funeral implements, birth rooms, etc. j. Items used in annual festivals, for example, New Year’s implements, implements used in feasts, Festival of the Dead implements, etc. 2. Collections of tangible folk cultural properties listed in the items of the previous paragraph and whose purpose and details fall into any one of the following items with particular importance. a. b. c. d. e.

Items which show historical changes Items which show characteristics of certain era Items which show regional characteristics Items which show characteristics of certain social class Items which show aspects of vocations

3. Tangible folk cultural property, which, related to peoples other than Japanese people, but with particular importance in relation to the life or culture of the Japanese people, fall under the categories prescribed in the previous two paragraphs or collections of such items. 3.1.2.2.3. Historic Sites, Places of Scenic Beauty and Natural Monuments Designation criteria for special historic sites, places of scenic beauty and natural monuments and historic sites, places of scenic beauty and natural monuments (National Commission for the Protection of Cultural Properties, Notice No. 2 in 1951). 1. Historic sites: Items which are indispensable for the accurate understanding of Japanese history and which furthermore have value in their scale and ancient structures and relics excavated from them. 2. Places of Scenic Beauty: Places which are indispensable examples representing Japan’s excellent beauty. Among them, items with significance from a natural point of view should be outstanding in its scenic beauty, popularity or high academic value. Other items with significance from the view point of humanities should bear high artistic or academic value. 3. Natural monuments: Among animals, plants and geological occurrences, those which are academically important and commemorate the nature of Japan. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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3.1.2.2.4. Important Cultural Landscapes Selection criteria for important cultural landscapes (Ministry of Education, Culture, Sports, Science and Technology, Notice No. 47 in 2005). Among landscapes listed as follows that are formed through the lives or occupations of people in a region and the natural features of that region, those which are representative showing the characteristics of the foundation of the lives or occupations of the Japanese people or those that are unique. 1. 2. 3. 4. 5. 6. 7. 8.

Landscape related to agriculture, Landscape related to meadow or grazing, Landscape related to the use of forests, Landscape related to fish catching, Landscape related to the use of water, Landscape related to mining or manufacturing, Landscape related to circulation or traffic, Landscape related to living.

3.1.2.2.5. Important Groups of Traditional Buildings Preservation Districts Important groups of traditional buildings preservation districts selection criteria (Ministry of Education, Notice No. 157 in 1975). 1. Groups of traditional buildings as a whole with a superior design 2. Groups of traditional buildings and their layout which preserve, to a high degree, the old state 3. Groups of traditional buildings and their surrounding environment which strikingly show regional characteristics 3.1.3. Protection Measures for Immovable Property Designated as Cultural Property When an immovable property falls under an above-stated category in Article 2 of the Law for the Protection of Cultural Property and is designated as important cultural property, it will lead to the following effects: – The owner is obliged to manage the item (Article 31). – When the item is destroyed or damaged, its owner has to notify the Commissioner of the Agency for Cultural Affairs of such occurrence (Article 33). – The Commissioner of the Agency for Cultural Affairs may order or recommend taking necessary measures (improvements in management methods, fire prevention measures, etc.) with respect to management (when there is a risk of theft, damage, etc.) and repairs (Article 30). – Changing current state is subject to the permission of the Commissioner of the Agency for Cultural Affairs (Article 43). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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– Notice shall be given to the Commissioner of the Agency for Cultural Affairs when some repair work of the item should be made (Article 43–2). – In certain cases, management and repairs may be entrusted to the Commissioner of the Agency for Cultural Affairs (Article 38). – The item is subject to the investigation by the Commissioner of the Agency for Cultural Affairs (Article 54 et al.). 3.1.4. Effects of the Designation of an Immovable Property as Cultural Property on the Owner’s Proprietary Rights The above-stated obligations and responsibilities inevitably affect the owner’s property rights. In order to strike a balance between the protection of immovable cultural property and the owner’s property rights, certain provisions in the Law for the Protection of Cultural Property provides for as follows. – The government and local authorities shall respect the ownership of the persons concerned and other property rights when they implementing this law (Article 4). This provision reflects Article 29 of the Japanese Constitution, which guarantees the property rights. – The Minister of Education, Culture, Sports, Science and Technology and the Boards of Education of prefectural and city governments shall, in particular, respect the ownership rights, mining rights and other property rights of the persons concerned, and take into consideration the development of the country and the balance with other public interests (Article 111). Reflecting these provisions, due care is made to implement the Law in practice. For example, in order to designate an item as a cultural property, the consent of the owner should be obtained. The designation may be in theory understood as an unilateral administrative measure, which would not need the owner’s consent. But this stance was not taken. Additionally, Chapter 12 of the Law for the Protection of Cultural Properties provides for hearings, statements of opinion, and petitions for redress and procedural rules for these measures. Hence when certain restrictions or prohibitions on acts are imposed for the environmental preservation of cultural property, when it is ordered to suspend opening the cultural property to the public, when there is an order to suspend or prohibit excavation, a hearing is to be held. Furthermore, it is obligatory to obtain the statements of opinion of the persons concerned (Article 155), when implementing protective measures such as the repair and restoration of cultural property (Article 38), making onsite investigations of cultural property (Article 55), excavations by the state when technologically difficult (Article 98). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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3.1.5. The Position, Role and Involvement of Communities, Groups or Relevant Non-governmental Organizations There is no special provision in laws and regulations concerning the role and function of communities, groups or NGOs in the process of the designation as immovable cultural property, which may include venues of folk events. However, at an operating level, in certain projects their opinions may be heard on a case-by-case basis, such as listening to the opinions of the relevant community at the stage of investigating possibilities of the designation of candidate property. Following the designation, there are also cases where communities or NGO’s are charged with the daily management and protection of the cultural property, cooperating with its owner and local authorities. 3.1.6. Precautionary Measures for the Protection of Immovable Cultural Heritage in the Event of an Armed Conflict and Definition of an Armed Conflict Upon the ratification of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), the Law for the Protection of Cultural Properties in the Event of Armed Conflict (the Hague Act) was promulgated in 2007, which introduced new penal sanctions applicable to the damage of cultural property in states of armed conflict. Along with taking necessary measures to implement this law, such as stipulating enforcement ordinances, it is anticipated that educational activities will be undertaken within the Self-Defence Forces of Japan and that designations will be made for not-yet-as-cultural-property-designated items, which should receive protection in such states of armed conflict. The concept of “armed conflict” here is to be understood the same as “a state of armed attack” in Article 2, No. 2 of the Act for Ensuring the Security of the State and Citizens and for Ensuring the Peace and Independence of Japan in a State of Attack with Armed Forces. (Act No. 79, 2003). It is defined as a “state in which armed attack has arisen or in which it is deemed that there is a clear, impending danger that armed conflict will arise.” 3.1.7. Regulations for Immovable Cultural Property Located Underwater With respect to underwater cultural property, there is no special institutional framework. It does not mean, as stated above, that the rules on the protection of cultural property on land would apply.

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toshiyuki kono 3.2. Movables

3.2.1. Framework and Criteria for the Protection of Movable Cultural Property The legal framework for the protection of movable cultural property is the same as that for immovable. Hence, based on the provisions of the Law for the Protection of Cultural Properties, the main points of the process are the determination of a cultural property for which protection is sought and the undertaking of the designation by the Minister of Education, Culture, Sports, Science and Technology, taking into consideration the advice and reports of the Council for Cultural Affairs. The possible categories as cultural property of designated items are important cultural property, national treasure and important tangible folk cultural property. 3.2.2. The Position, Role and Involvement of Communities, Groups or Relevant Non-governmental Organizations The position, role and involvement of communities, groups or relevant nongovernmental organizations in the process of designating movable cultural property is in principle the same as in case of immovable cultural heritage. 3.2.3. Special Obligations with Regard to Movables With respect to the designated cultural property, in addition to the effects as in the case of immovable, the designation brings about the special legal effects below: – Its export is prohibited (Article 44). – Its relocation shall be notified to the Commissioner of the Agency for Cultural Affairs (Article 34). – When the owner of a movable important cultural property wants to sell it, he/she shall make the first offer to the Commissioner of the Agency for Cultural Affairs and, in that event, the state will have the right of first negotiation to purchase it (Article 46). – The Commissioner of the Agency for Cultural Affairs can recommend the owner of a cultural property to open the cultural property to the public (Article 47–2 et al.). As long as buried cultural property concerned, besides the Japanese Civil Code and other laws relating to property rights applicable to movable cultural property, the Law for the Protection of Cultural Properties provides for the following special obligations: Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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– Those who want to conduct an excavation in order to investigate buried cultural property shall give a prior notice to the Commissioner of the Agency for Cultural Affairs (Article 92). – Those who want to excavate for a purpose other than investigation of cultural property, such as civil engineering work in a land, which is well known as containing buried cultural property, shall give a prior notice to the Commissioner of the Agency for Cultural Affairs (Article 93). – When the owner or occupant of land discovers what appear to be remains, he/she shall give notice to the Commissioner of the Agency for Cultural Affairs (Article 96). 3.2.4. Protection for Movable Cultural Heritage That Has Been Stolen and That Is Subject to Illicit Import, Export or Transfer of Ownership Upon the ratification of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), the Act on Controls on the Illicit Export and Import and other matters of Cultural Property18 (the Act on Controls of Illicit Traffic) was enacted in 2002 and the following measures were taken to implement the said Convention. 3.2.4.1. Import Restrictions on “Specified Foreign Cultural Property” With respect to stolen cultural property from museums or similar institutions in a member state of the said Convention, the Minister of Education, Culture, Sports, Science and Technology will, upon receiving notice from the Minister of Foreign Affairs, consult the Minister of Economy, Trade and Industry and designate the stolen cultural property as “specified foreign cultural property”. This designation makes the property subject to import approval pursuant to the Foreign Exchange and Foreign Trade Act. (Article 4 of the Act on Controls of Illicit Traffic) 3.2.4.2. Exceptions Related to Acquisition in Good Faith of Specified Cultural Property The ratification of the said Convention led Japan to make an exception of the principle of the protection of bona fide purchaser. According to Article 192 of the Japanese Civil Code, the owner can claim for the return of his stolen property only for 2 years after the loss. As an exception to this principle, this short term is extended to 10 years with respect to claim from the victim of a theft of specified foreign cultural property, under the condition

18 In Japanese: 文化財の不法な輸出入等の規制等に関する法律 Bunkazai no fuhō na yushutsunyū-tō kisei-tō ni kan-suru hōritsu.

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of compensating the purchaser for the sales price. (Article 6 of the Act on Controls of Illicit Traffic) This mechanism is not free from criticism. First, the system to designate specific cultural property is not suitable for large scale theft cases. Second, the 10–year-extension is insufficient to cope with cases, in which items stolen several decades ago, whose whereabouts was unknown, could suddenly appear in the art market. Maybe therefore, since its promulgation there is no reported case where this exception was applied. 3.2.5. Obligations of Museums, Galleries or Other Institutions Under the Japanese legal system, museums or other institutions have no obligation to return cultural property to certain communities or persons which have a close cultural link to the said cultural property. 3.2.6. Movable Cultural Heritage in the Event of an Armed Conflict In order to seek the protection of cultural property at times of armed conflict, the above noted Hague Act introduced new penal sanctions to be imposed on the loss or destruction of cultural properties, including movables, at the time of armed conflict. The heaviest sanction under the Hague Act is 7-year imprisonment (Article 7 of the Hague Act). This is more severe than normal criminal penalties (max. 3-year imprisonment; Article 261 of the Japanese Criminal Code). The transport of Japanese designated cultural property overseas is generally prohibited, regardless of whether this occurs in times of peace or in times of armed conflict, pursuant to Article 44 of the Law for the Protection of Cultural Properties. Therefore there is no rule premised on overseas outflow in the case of armed conflict. If it would occur, the relevant countries, such as signatories to the said Hague Convention, would be contacted by the Japanese diplomatic authorities. With respect to the cultural property which has been taken out of regions in armed conflict, the import of such items into Japan is subject to the permission of the authorities (Article 6 of the Hague Act). With respect to cultural property already located in Japan, the transfer of the ownership of the said cultural property located in Japan is subject to penal sanction up to oneyear imprisonment or max. 1 million yen fine (Article 10 of the Hague Act). Through discouraging transactions with penal sanctions, the return may be facilitated. However from the perspective of legal stability of transactions, no special rule for acquisitive prescription was introduced. The Hague Act became applicable to Japan on the date where Japan becomes bound by the said Convention and its two Protocols. These various rules of the Hague Act do not apply retroactively. Cultural property brought into Japan from a region of armed conflict several decades ago would not fall into the scope of application of this Act. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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3.2.7. Regulations for Movable Cultural Property Located Underwater There is no special system with respect to underwater cultural property. 4. Intangible Cultural Heritage 4.1. The Protection of Intangible Cultural Heritage 4.1.1. Framework for the Safeguarding of Intangible Cultural Heritage UNESCO adopted the Convention for Safeguarding of Intangible Cultural Heritage in 2003 (the 2003 Convention). Japan ratified this Convention as the second member state after Algeria. Japan could play a leading role during the negotiation process of the Convention, because the concept of intangible cultural heritage was known in Japan as a legal concept already in 1950. Based on the classification of the Law for the Protection of Cultural Properties, items could be designated as important intangible cultural property or as important intangible folk cultural property. In addition, with respect to traditional techniques necessary to prepare the required materials for tangible cultural property, to repair and restore tangible cultural property, there is a system to select such traditional conservation techniques to place them under the protection. 4.1.2. Criteria for the Recognition of Traditional Knowledge or Cultural Expressions as Intangible Cultural Heritage Among those items listed in Article 2 of the Law for the Protection of Cultural Properties, being “important” is the criterion for designation on the legislative level. More detailed criteria are stipulated at the notice level. 4.1.2.1. Important Intangible Cultural Property Criteria for the designation of important intangible cultural property and the recognition as individual holders and associations as holder (the National Commission for the Protection of Cultural Properties, Notice No. 55 in 1954) are as follows. I. Designation criteria for important intangible cultural property Important intangible cultural property as a legal concept under the Law for the Protection of Cultural Property is divided into two sub-categories on the level of implementation, i.e. performing arts and craft techniques. (Performing Arts) 1. Music, dance, theater and other performing arts falling under any one of the following items can be designated as important intangible cultural property. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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a. Those of particularly high artistic value, b. Those which occupy a particularly important position in the history of the performing arts, c. Those which have high artistic value or occupy an important position in the history of the performing arts, and which are strikingly characteristic of a school or region. 2. Outstanding techniques as important elements in establishing or composing the performing arts of the previous paragraph (Craft techniques) Pottery making, fabric-dyeing, textile-weaving, lacquer-making, metal work and other craft techniques, which fall under any one of the following items. a. Those of particularly high artistic value, b. Those which occupy a particularly important position in the history of the industrial arts, c. Those which have high artistic value or occupy an important position in the history of the industrial arts and which are strikingly characteristic of a region. II. Criteria for the recognition of individual holders and associations as holder of important intangible cultural properties (Performing Arts) Individual holder 1. A person who is able to embody, to a high degree, performing arts designated as an important intangible cultural property or the techniques of such performing arts (hereafter simply referred to as “performing arts or techniques”). 2. A person who properly masters “performing arts or techniques” and furthermore is deeply versed in the art. 3. In the case where two or more people as a unit embody, to a high degree, “performing arts or techniques”, the constituent members of the entity composed by these people. Associations as holder In cases where, by the nature of the “performing arts or techniques”, individual characteristics are weak and furthermore where there are numerous persons who bear the “performing arts or techniques”, the entity which is primarily composed of these persons. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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(Craft techniques) Individual holders 1. A person who masters, to a high degree, craft techniques designated as an important intangible cultural property (hereafter simply referred to as “craft techniques”). 2. A person who properly masters (a) craft technique(s) and furthermore is deeply versed in the art. 3. In the case where two or more people master, to a high degree, industrial arts of shared characteristics, the constituent members of the entity composed by these people. Associations as holder In cases where, by the nature of the industrial arts, individual characteristics are weak and furthermore where there are numerous persons who bear the craft techniques, the entity which is primarily composed of these persons. 4.1.2.2. Important Intangible Folk Cultural Property Designation criteria for important intangible folk cultural property (Ministry of Education, Culture, Sports, Science and Technology, Notice No. 156 in 1975). This category is the closest to the concept of “intangible cultural heritage” under the 2003 Convention, which is strongly oriented to communities and groups. The holders of important intangible folk cultural property are not genius individual artists, but communities or groups which are composed of regular citizens. There are two sub-categories at the level of implementation of the Law. 1. Manners and customs falling under any one of the following items and of particular importance a. Those which are representative in their origin, content, etc. showing the characteristics of the foundation of the Japanese people’s life and culture. b. Those that show the foundation of performing arts at events undertaken annually, Buddhist services, festivals, etc. 2. Folk performing arts falling under any one of the following items with particular importance a. Those that show the genesis or formation of the performing arts b. Those that show the process of the changes of the performing arts c. Those that show regional characteristics. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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4.1.3. Protection Measures in Order to Achieve and Guarantee the Safeguarding of Intangible Cultural Heritage With respect to important intangible cultural property and important intangible folk cultural property, the state, along with recording, nurturing younger holders19 and, opening events to the public, provides subsidies for the preservation of the relevant intangible cultural property engaged in by holders and associations as holder (Articles 74 and 87). 4.1.4. The Position, Role and Involvement of Communities, Groups and Relevant Non-governmental Organizations in the Safeguarding Measures At the investigation stage of the designation process of candidates, the investigation is made with close cooperation with the holders or associations as holder of the relevant intangible cultural property. Following the designation, these holders or associations as holder will be responsible for the protection. At the same time these holders or associations as holder themselves will play leading roles for nurturing young persons to pass on the intangible cultural property and intangible folk cultural property and for opening events to the public. They may obtain financial support from the state to conduct measures for the protection. They should autonomously take various protective measures while cooperating with administrative authorities.20 4.1.5. Inventories of Intangible Cultural Heritage With respect to intangible cultural property which needs to be protected, the designation is made and a list of these is made public.21 4.1.6. Other Measures in Order to Safeguard the Intangible Cultural Heritage Outside the legal scheme, efforts are being made by the state to disseminate information on intangible cultural properties. For example, an on-line database of cultural property was set up by the Agency for Cultural Affairs

19 The National Theater of Japan started training courses to nurture young performers of traditional performing art in 1970. This system was introduced, since due to changes of social structure and the life styles, it became difficult to ensure the supply of younger performers. This system has become indispensable to sustain the traditional performing arts. 20 There is a very interesting program organized by Asia/Pacific Cultural Center for UNESCO (ACCU), whereby communities could represent their experiences how to activate their intangible cultural heritage. For the details, see http://www.accu.or.jp/ich/en/community/index.html (last visited on March 22, 2009). 21 The list of important intangible cultural properties is available at http://www.bunka. go.jp/bsys/categorylist.asp. The list of important intangible folk cultural property at http:// www.bunka.go.jp/bsys/categorylist.asp. Information is in Japanese only (last visited on March 22, 2009).

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(http://www.bunka.go.jp/bsys/index.asp). It is a pity that this website offers the information only in Japanese.22 Also exhibitions and lectures concerning these intangible cultural properties and special performances of intangible folk cultural properties are regularly organized at the National Theater in Tokyo. Furthermore, traditional techniques necessary to make the required materials, for tangible cultural property or to repair, or to restore tangible cultural property should be preserved, since the loss of such techniques would lead to the loss of tangible cultural property. Thus there is a system to select traditional conservation techniques, under which certain support for the holders of these techniques is provided. At the same time, in order to preserve such techniques, certain traditional materials are indispensable. Due to the change of social structure and life style, it has been becoming difficult to obtain such traditional materials. Thus cooperating with other administrative sectors such as the Forestry Agency is crucial to ensure the supply of primary materials.23 4.2. Misappropriation of Traditions 4.2.1. Protection of Traditional Knowledge or Traditional Cultural Expressions against Misappropriation for Commercial Purposes There is no legal scheme, which directly deals with these issues. However, in cases where misappropriation of traditional knowledge or traditional cultural expression brings about changes in the substance of intangible cultural property and have a grave impact on the cultural property’s value, from the perspective of the protection of important intangible cultural property, the Commissioner of the Agency for Cultural Affairs may, pursuant to, for example, Article 76 of the Law for the Protection of Cultural Properties, give the necessary advice and recommendations. 4.2.2. Proprietary Rights over Traditional Knowledge or Traditional Cultural Expressions to Communities or their Members Under the Japanese intellectual property law, traditional knowledge and traditional cultural expression are treated as public domain. Seeking the protection under the scheme of intellectual property law is not possible. There is no 22 Very useful to understand what intangible cultural heritage is, is the website of Asia/ Pacific Cultural Center for UNESCO (http://www.accu.or.jp/en/culture/cul01.shtml). The website of the National Research Institute for Cultural Properties in Tokyo contains some useful information. http://www.tobunken.go.jp/~geino/index_e.html (last visited on March 22, 2009). 23 The list of selected traditional techniques to be preserved is available at http://www .bunka.go.jp/bsys/categorylist.asp (last visited on March 22, 2009).

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legal system granting or recognizing any proprietary rights over traditional knowledge or traditional cultural expressions to communities or their members as a whole, either. This could be dealt with based on the general legal system. For example, if a community establishes an association with legal personality and this association is recognized as the holder of their intangible cultural property and this association registered a mark on the name of their traditional festival, the protection under the Trade Mark Law can be granted. 4.2.3. Type of Regulation in Legal System The legal form of regulation at the level of implementation of the Law for the Protection of Cultural Property is ordinance by the Cabinet or by the Ministry of Education, Sports, Culture, Science and Technology and notice by the Agency for Cultural Affairs or by various directors in the Agency. Also administrative guidance may be issued by the Agency for Cultural Affairs, although this is not legally binding. 4.2.4. Regulations or Codes of Conduct There are no special regulations or code of conduct or ethics in Japan in relation to recording, collecting, archiving or commercially exploiting traditional cultural expressions, such as fairytales, legends, rock art, and traditional fabric designs. 4.2.5. Protection of Sensitive Traditional Cultural Expressions No special provisions to protect sensitive traditional cultural expressions, such as religious rituals, sacred signs, places and monuments, against their abuse or commercial use by non-members of affected communities have been established. 5. Beyond Preservation One of the most important and difficult issues is how to strike a balance between the protection of cultural property and the use of economic aspect. The Law for the Promotion of Tourism and Specific Local Commerce and Industry in Using Local Traditional Performing Arts and Events enacted in 1992 is one of those legal tools to achieve it. This law aims at the promotion of tourism and certain types of industries through using traditional performing art, not at preserving it. It may commercialize traditional art forms, spoiling its substance and lead to folklorization of intangible folklore cultural property. Careful observation of its implementation is needed. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Another example is the “Act on the Maintenance and Improvement of Historical Landscapes,” entered into force in November 2008. The aim of this law is not a balance between the protection of cultural property and commercial activities. It aims at a balance between urban development and the preservation of historic areas. It makes possible, compared to general urban planning, a variety of preferential treatment or relaxation of regulations in cities, towns and villages that undertake urban development to maintain and improve “historical landscapes” including that surrounding environment with the cultural property as the core. This new law may cover the weak point of the Law for the Protection of Cultural Property, under which the objectives of the protection are in principle individual buildings and monuments, not areas or zones. The only exception is the groups of traditional buildings. To preserve historic zones in harmony with urban development, Japanese law did not have an effective tool. It is expected that this new law would encourage well-balanced urban development projects. 6. Conclusion The history of the Japanese legal scheme to protect cultural property goes back to the end of the 19th century. Since then the scope of the protection has been expanded throughout the 20th century to overcome crisis. It was not an easy task for the Japanese to develop the state and social systems modelled after western countries and at the same time to preserve traditional Japanese culture in tangible and intangible forms. The current legal scheme is not free from criticism. Rather it has some weak aspects. For example, the protection of historic area or zone is very limited. But the current system offers the unique combination of tangible and intangible cultural properties with numerous experiences since 1950. The aim of this paper is to offer an overview of this unique legal scheme as a basis of comparative legal studies.

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MEXICO Jorge Sánchez Cordero* 1. Introduction .............................................................................................. 1.1. Tangible Cultural Heritage ............................................................. 1.2. Intangible Cultural Heritage .......................................................... 2. The Mexican Legal Order Functionality ............................................... 2.1. The Constitutional Order ............................................................... 2.2. The Regulatory Hierarchy of the International Treaties. The Path to Globalization ............................................................... 2.3. The Mexican Codes Civils .............................................................. 3. General Issues ........................................................................................... 3.1. International Frame ......................................................................... 3.1.1. The Hague Convention of 1954 ......................................... 3.1.2. The UNESCO Conventions ................................................ 3.2. The Internal Legal Order ................................................................ 3.2.1. The Rights of Communities, Groups or Individuals on Elements of Cultural Ownership or Heritage .................. 3.2.2. Constitutional Order ............................................................ 3.3. Who Owns the Cultural Heritage? ............................................... 3.3.1. The Horns of the Federalist Dilemma: The Jurisdictional Answer ................................................... 3.3.2. The Journey of the Nationalistic Model of Cultural Heritage .................................................................................. 3.3.2.1. The Law of 1897 ..................................................... 3.3.2.1.1. Immovables ........................................... 3.3.2.1.2. Movables ................................................ 3.3.2.1.3. The Trafficking of Cultural Heritage 3.3.2.2. The Law of 1930 ..................................................... 3.3.2.3. The Law of 1934 ..................................................... 3.3.2.4. The Law of 1970 ..................................................... 3.3.2.5. The Law of 1972 ..................................................... 3.3.2.5.1. Introduction .......................................... 3.3.2.5.2. The specificity of the Monuments notion ..................................................... 3.3.2.5.2.1. Particularities of Tangible Immovable Cultural Heritage .............................

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3.3.2.5.2.2. Particularities of Tangible Movable Cultural Heritage ............................. 3.3.2.5.3. The Notion of Cultural Zones ............ 3.3.2.5.4. The Federal Governmental Declaration Mechanism ...................... 3.3.2.5.5. The Aftermath of the Res Extra Commercium Notion ........................... 3.3.2.5.6. Register System ..................................... 3.3.2.5.7. Final Remarks ....................................... 3.3.2.5.8. Epilogue ................................................. 3.3.3. The Legislation on Urban Development—Between Scylla and Charybdis ............................................................ 3.3.3.1. The Safeguarding of Mexican Cultural Heritage .................................................................... 3.3.3.2. The Current Trafficking of Cultural Heritage and their Legal Regulations .................................. 3.3.3.2.1. The Fundamental Notions of the Mexican Contractual Regime ............. 3.3.3.2.2. The Purchase and Sale Agreement Concerning Mexican Cultural Heritage .................................................. 3.3.3.2.3. The Mexican Notion of Public Dominion over Cultural Heritage ..... 3.3.3.2.3.1. The Function of the Right of Ownership ................... 3.3.3.2.3.2. The Regime of the Legality of Treasures ....... 3.3.3.2.3.3. The Res Extra Commercium Notion as a Cohesive Element of Mexican Public Dominion ......................... 3.3.3.2.3.4. The Effects of the Res Extra Commercium Notion in Mexican Law 4. The Mexican Institutions Charged with the Protection of Mexican Archaeological Sites ................................................................. 5. The Fatigue of the Nationalistic Cultural Heritage Model, The Emergence of the Multilateral Model ................................................... 5.1. Introduction ...................................................................................... 5.2. Antecedents .......................................................................................

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5.3. The Constitutional Transition. The Intangible Cultural Heritage as a Model ......................................................................... 5.4. Jurisdictional Activity ...................................................................... 5.5. The Deficiencies ................................................................................ 6. Conclusions ...............................................................................................

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There is a temple in ruin stands, Fashioned by long forgotten hands; Two or three columns, and many a stone, Marble and granite, with grass o’ergrown! Out upon Time! it will leave no more Of the things to come than the things before! Out upon Time! Who for ever will leave But enough of the past and the future to grieve O’er that which hath been, and o’er that which must be: What we have seen, our sons shall see; Remnants of things that have pass’d away, Fragments of stone, rear’d by creatures of clay. “The Siege of Corinth”, by George Gordon (Lord Byron) To my siblings Olga, Mayita, Sergio, Víctor and Gina.

1. Introduction The Mexican System of Cultural Heritage acknowledges a myriad of laws resulting from its dispersion and diverse origin. This serves to reflect the subject’s complexity in Mexican law and the enormous challenge faced by its systematization. As pre-emption to our analysis, it is necessary to highlight the different laws concerning both tangible and intangible cultural heritage and their rationae materiae. 1.1. Tangible Cultural Heritage The only law which is specifically concerned with the protection and preservation of tangible cultural heritage in Mexico is the federal law on archaeological, artistic and historic monuments and zones. It was enacted on 6 May 1972 (the Law of 1972)1 and rules over movable and immovable cultural property.

1 La ley federal sobre monumentos y zonas arqueológicas, artísticas e históricas [The Federal law on monuments and artistic, historic and archaeological zones] (hereinafter the Law of 1972) was enacted on 6 May 1972.

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The other law worth mentioning regarding movable and immovable tangible cultural heritage is the General National Ownership Act (LBN) that rules over goods and ownership pertaining to the Mexican National State and establishes the criteria to be met in order for them to be considered as such. It can therefore be maintained that the apex of the protection and conservation of Mexican tangible cultural heritage is the Law of 1972. Since its sanctioning, this law has been deemed sacred by the Mexican society; thus explaining why previous attempts to change it have been unsuccessful. The Mexican legal order of cultural heritage has been radically enriched in numerous ways by several legislations which have the clear intention of protecting and safeguarding Mexican cultural heritage. 1.2. Intangible Cultural Heritage The protection and preservation of intangible cultural heritage can only be found in the amendments made to article 2 of the General Mexican Constitution, where the languages and particularities of the identity and culture of indigenous people are protected. The implementation of secondary legislation on a federal level is still pending. On a local level, diverse legislation has been specially enforced in those states where the indigenous population is the densest e.g. the States of Chiapas, Oaxaca and the State of Mexico.2 A very recent development has been the approval of a constitutional amendment by the Mexican Congress which assures all citizens access rights to culture and also to the services provided by the National State. The National State is obliged to provide the means to render these rights effective and it is responsible for the promotion and development of cultural diversity in all its forms and with respect to creative freedom.3 Furthermore, the General Congress has undertaken the responsibility of establishing the foundations of the different cultural heritage legislation within the Federation and the federal states. Nevertheless, the Federation reserves the right to legislate on tangible cultural heritage.4 2. The Mexican Legal Order Functionality It is essential to provide a legal perspective on the functionality observed by the Mexican legal order, so that the analysis of the cultural heritage’s legal regime may be fully comprehended. 2 The Mexican leglislation can be consulted at: www.juridicas.unam.com.mx (On this site an English and French version of the General Mexican Constitution can be found) or www .ordenjuridico.gob.mx. 3 See amended article 4 of the General Constitution. 4 See amended article 73 Chapter XXIX Ñ of the General Constitution.

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2.1. The Constitutional Order The influence of the United States of America on the Mexican Constitution was fundamental and carried with it substantial legal consequences, such as the legislative power granted to each State to rule on the subject of private law. Consequently, since the Mexican independence in 1821, private law has become an essential element in the sovereignty of each State, and has given rise to the great legislative diversity that Mexico holds in relation to private law, among others. In its capacity as a national State, Mexico subsequently has three regulatory orders, the national or constitutional order, the federal order and the local order. Throughout the compilation of the Mexican legal order on cultural heritage, the international treaties have been of significant importance, which, prior to any analysis, compels us to take into consideration what the regulatory hierarchy of these treaties is in Mexican law. 2.2. The Regulatory Hierarchy of the International Treaties. The Path to Globalization Unlike other Federal States, e.g. the United States of America, the treaties in Mexican law are self-applicable, since they do not require specific legislation for their implementation. This makes the performance of the national State in the undertaking of international commitments in internal Mexican law a complex issue. In the latter part of the XXth century, the ratification of international conventions in Mexican law has periodically created controversy; especially regarding the manner in which the national State incorporated its various obligations to the international community into its legal system. The constitutional debate is one of a very curious nature. The fundamental problem stems from the determination of the manner in which Mexico should comply internally with its commitments undertaken with other national States. Furthermore, the free-trade agreements signed in the last decade by Mexico and the international conventions concerning cultural heritage also have a part to play in this debate. Article 133,5 of the General Mexican Constitution, establishes the hierarchy of the applicable regulations and consequently determines the priority of each in its application. There is an antecedent to this article, namely, article VI, paragraph II, from the Constitution of the United States of America, the

5 The last amended version of article 133 sanctioned in 1934, states that: “This Constitution, the laws of the Congress of the Union which shall be enacted in pursuance thereof and all treaties in accordance therewith, celebrated or which shall be celebrated by the President of the Republic with the approval of the Senate, shall be a supreme law of the Union. The judges of the Federal District and of the States shall be bound thereby, notwithstanding any provision to the contrary in the local constitutions or local laws”.

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contents of which served as a model for the drafting of successive Mexican constitutional texts during the XIXth and XXth centuries. This constitutional text has given rise to many varied interpretations. The controversy, which can clearly be recognized regarding the interpretation of this provision, has been, and is to this day, a result of the hierarchy of laws in our federal system which determine the priority of its performance. The Supreme Court primarily interpreted this constitutional provision by determining that the laws ensuing from the Constitution, alongside the international treaties signed by the Federal Executive Branch and approved by the Senate as being in accordance with the Constitution, held an immediate inferior position to that of the Constitution in the hierarchy of the Mexican legal order regulations. This criterion is fundamental; it determines that when considering if a law is in accordance with the Constitution, only the content of the Constitution and the body of the law which is subject to dispute should be adhered to. Following this criterion, the statements of the international treaties signed by Mexico would be overlooked.6 There was an obvious conclusion: the law which was subject to controversy, contrary to a specific international treaty, failed to imply that it was in dispute with the Constitution. Hence, the international treaties did not overrule federal or local legislation. This interpretation by the Supreme Court ordained an initial order of the General Constitution, followed by the laws imposed by Congress and ultimately the international treaties, as signed by the Federal Executive Branch with Senate approval. The jurisprudential criterion, as set by the Supreme Court, varied substantially in 1999. In accordance with this new interpretation criterion, the Constitution was held the supreme statute in the country; the international treaties that immediately followed the fundamental law were present in the hierarchy of laws, but with a higher hierarchal status than the federal law and the law of the States. The consequences of this new criterion were substantial. The national State fully undertook the international commitments which linked the Mexican authorities, both local and federal, before the international community. The Federal Executive Branch, as Head of State, was empowered with the administration of international treaties with the intervention of the Senate, as representative of the will of the States, and as such, bound all local and federal authorities.7 Hence, international treaties prevailed over federal and local legislation.

6 CD Rom. Jurisprudencia, Seventh Edition, Tomo [Volume] I. Suprema Corte de Justicia de la Nación [Supreme Court Justice of the Nation]. Tesis [Thesis] 327. p. 302. 7 CD Rom. Ninth Edition. Semanario Judicial de la Federación y su Gaceta [Weekly Judicial of the Federation]. Tomo X [Volume]. November 1999. Tesis [Thesis] PLXXVVLL/99. p. 46.

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This new interpretation by the Supreme Court, not unexpectedly, provoked nationwide criticisms which were documented in Mexican legal literature.8 Some authors stated that while from an international law point of view, it was true that the national State was completely bound by international treaties, this affirmation could not in any way determine the hierarchy of international treaties in Mexican internal law. It has been maintained that the interpretation by the Supreme Court culminated in confusion, due to the fact that the national State had undertaken international commitments with another national State. These commitments should not have had any repercussions on the regulatory hierarchy within the internal legal order. It is the national State, in its internal order, which in a sovereign form, determines this hierarchy. On the other hand, it is the head of State who executes a treaty. This fact alone does not indicate the hierarchy of that treaty within the Mexican legal order. The Supreme Court was also criticized for sustaining that the Senate of the Republic, as a collegiate body, was representative of the States, as its senatorial elections, destitution and the exercising of its powers were linked to its inhabitants and not to the States. Despite the latest criterion by the Supreme Court, it cannot be sustained that the Senate intervened as a representative of the will of the States. This notion has been widely surpassed. In our federal system, the General Constitution stipulates that the Senate of the Republic is comprised of 128 members. These are elected according to the principles of a direct vote and a proportional representation of the first minority. This form of election gives a clear popular representation of the senators. In relation to the new criterion by the Supreme Court regarding the hierarchy of the treaties, there is a section of the Mexican doctrine which declares that its performance in internal law must be regulated by precisely the same internal law; even the Vienna Convention on treaties does not provide any grading regarding the hierarchy of laws and therefore no priority is placed regarding their performance.9

8

See COSSIO D., José Ramón. “La nueva jerarquía en los tratados internacionales” [The new hierarchy of international treaties], in Este País. Tendencia y opiniones [This Country. Tendencies and opinions]. First Edition. Mexico. February 2000. p. 34. 9 The international conventions relating to Cultural Heritage participate in the same debate. In this manner, the Supreme Court stated that the objectives of the 1970 UNESCO Convention could only be reached when the cultural good in question entered national territory. Thus, once the cultural good is identified, the possibility of its legal importation is considered so that the Mexican authority is in a position to decide the source of the requesting State. According to the criterion maintained by the Supreme Court, it is until the Mexican customs has carried out the necessary formalities, when the rules of the 1970 UNESCO Convention in the matter of cultural heritage acquire their preference according to article 133 of the General Constitution and it is until this time that the corresponding Mexican authorities are forced to prevent or to prohibit their importation. See CD Rom. Ninth Edition. Primer tribunal colegiado en materias penal y civil del Cuarto Circuito [First Court of the Fourth Circuits on penal Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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According to the regulatory order previously described, and following on from the American model, civil legislation was a bone of contention among the thirty two States. This explains why Mexico has the less than ideal status of having a total of thirty two Codes Civils. In the XXth century, based on the Mexican constitutional structure, it was concluded that each local and federal regulatory order should have its own legislation. To this effect, a decision was made to refer the Federal District’s (Mexico City) Code Civil to the Republic on the issue of a federal order, along with the local issues in the Capital of the Republic, as was its natural vocation. Subsequently, the federal order was provided with a civil legislation. According to the federal regime at the time, the Federal District did not have its own legislative body. The General Congress was the competent legislative body there; one must consider that it was in Mexico City where the federal branches resided. This federal structure made this decision constitutionally viable. Over the last few decades, the Mexican political evolution has varied substantially. To satisfy increasing social demand, the General Constitution has been amended and an individual legislative body (“Assembly of Representatives”) has been introduced into the Federal District. This wields legislative power over civil matters, amidst other responsibilities. This legislative body tacitly received the Code Civil which had been in effect in its territory. In the federal order and without having explicit powers to that effect, the General Congress also conserved the same Code Civil, but referred to it as the Federal Code Civil. Before the Constitutional amendment in 1966, the Codes Civils of each Mexican State were fundamental in the protection and preservation of cultural property. They ruled over the treasury regime and acquisitions by good faith or a non domino. Since the Constitutional amendment, the Federal Code Civil now rules over these matters. Nevertheless, issues can be raised if sales agreements of cultural property are federal or local. It is to be pointed out that the letter of the law mentions the former Code Civil for Mexico City. The letter of the law pertains to those remnants, found from time to time in the law. To summarize, Mexico has 32 Codes Civils, one for each State, and one for Mexico City, applicable exclusively in their territory. In conjunction with these, a Federal Code Civil is in place dealing with federal issues.

and private matters]. Semanario Judicial de la Federación y su Gaceta [Weekly Judicial of the Federation]. Tomo [Volume] X. August 1999. Tesis [Thesis] IV. Io. P: C: 3ª. p. 731. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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3. General Issues The Mexican legal system with its highly diverse legislation recognizes, within the categorization suggested, the following criteria: 3.1. International Frame 3.1.1. The Hague Convention of 195410 The differentiation of cultural heritage, as a consequence of geopolitical circumstances, has not had the relevance in Mexico as in other latitudes. The precision is unavoidable: under no circumstances has the Hague Convention been addressed since its ratification. Additionally, a scrutiny of XXth century Mexican history shows a limited Mexican participation in recorded military events. Its participation has been purely symbolic. In the internal field there continues to be great debate over sending troops abroad, which can be attributed in part to the traditionally pacifist position held by the national State. The ratification of the Hague Convention to date has been merely a good will gesture of compliance, as a definition of armed conflict does not even exist in the domestic legislation. 3.1.2. The UNESCO Conventions Mexico has ratified a significant number of UNESCO Conventions that have been incorporated into the Mexican legal system.11 Nevertheless, it should be pointed out that notwithstanding Mexico’s ratification of the UNESCO Conventions of 1970 and 1972 and most recently the UNESCO Conventions on the Protection of the Underwater Cultural Heritage, on the Safeguarding of the Intangible Cultural Heritage, and on the Protection and Promotion of the Diversity of Cultural Expressions, no secondary legislation has been implemented to date. 3.2. The Internal Legal Order The Law of 1972 does not allow the possession of cultural heritage that is protected by Mexican law. Pre-1972 ownership and possession is still a major

10 The deposit of the ratification of this Convention was made by Mexico on 14 May 1954. 11 Mexico deposited the Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural heritage on 4 October 1972, The Convention concerning the protection of the World Cultural and Natural heritage on 23 February 1984, The Convention on the Protection of the Underwater Cultural Heritage on 5 July 2006, The Convention on the Safeguarding of the Intangible Cultural Heritage on 14 December 2005, The Convention on the Protection and Promotion of the Diversity of Cultural Expressions on 5 July 2006.

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issue; the Mexican Constitution expressly prohibits retroactivity in the law. In previous laws, it was compulsory to log the possession or ownership of pre-Columbian cultural objects in the ad hoc Register. This is cited as evidence, in international courts, that Mexican law allows private possession. Many possessors, national or international still argue in court that their possession is legal, because the acquisition occurred before the Law of 1972 was implemented. The Law of 1972 also refrained, for these reasons, from ruling on illegal possession of cultural heritage. 3.2.1. The Rights of Communities, Groups or Individuals on Elements of Cultural Ownership or Heritage There are many aspects of major relevance which warrant a mention regarding the rights of communities, groups and individuals on elements of cultural ownership or heritage. There is no official definition of communities or groups. In Mexican legal traditions they are known as “pueblos indígenas o indios” which can be translated into English as “indian or indigenous people”, and which encompasses individuals, communities and groups.12 The Mexican XXth century, along with other legal systems, was characterized by not acknowledging multiculturalism until the end of the XXth and the start of the XXIst century. Therefore, a great portion of the legislation is modeled on the basis of the federal governmental declaration of tangible cultural heritage. It is only in recent times that one begins to observe an emergence of legislation that attributes the existence of such collective rights to the cultural areas. 3.2.2. Constitutional Order Since the uprising of the indigenous people in the south eastern areas of the country, the Mexican Constitution has been amended to encompass the needs of these minorities, thereby protecting their cultural rights.13

12 The whole legislation can be found on the website ‘Red de información indígena’ under “Leyes para los pueblos indios de México” [Laws for the Indian people of Mexico]. 13 See amended article 2 of the General Constitution that states: “The Mexican Nation is one and indivisible. The national State has a multicultural composition, originally sustained by its indigenous peoples, who are those regarded as indigenous on account of their descent from the population that originally inhabited the Country’s current territory at the time of colonization, who retain some or all of their own social, economic, cultural and political institutions. . . . This constitution recognizes and protects the indigenous peoples and communities right and, consequently, their right to autonomy, so that they may: . . .—Decide the ways of their community life as well as their social, economic, political and cultural organization. . . . Preserve and promote their languages, knowledge and all those elements that constitute their culture and identity. . . . To protect this right, in all trials and procedures to which they are party, individually or collectively, the particularities of their customs and culture must be taken into account, respecting the provisions of this Constitution. . . . Guarantee and increase educational levels, favoring bilingual and cross-cultural education, literacy, the conclusion of

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The constitutional text recognizes the multicultural nature of Mexico. The consciousness of indigenous identity is a fundamental criterion in determining to whom the provisions for indigenous peoples should apply. To this end, the specification is that indigenous people are integrated into communities and form a social, economic and cultural unit that is rooted in a territory and which recognizes their own authorities in relation to their uses and customs. The Constitution provides a clear mandate for the States. They must recognize the indigenous people and their communities in their respective constitutions and internal laws in coherence with ethno-linguistic criteria and physical settlements. 3.3. Who Owns the Cultural Heritage? An analysis of the legislation on cultural heritage in modern Mexico requires prior exposure to the federalization process of Mexican cultural heritage. This analysis is essential for comprehending the issue of Mexican legislation on cultural heritage in the XXth century. 3.3.1. The Horns of the Federalist Dilemma: The Jurisdictional Answer In the Mexican tangible cultural heritage domain, the regime of pre-Columbian heritage is undoubtedly the most controversial. The first technical problem which arose in the Mexican federal regime occurred while it was attempting to identify the relevant authority on the subject. A decision had to be taken as to whether the federal government or the States was in charge of the administration of the legal regime of Mexican pre-Columbian cultural heritage. The initial traces of this intense debate can be identified in the disputes arising from the challenging of contracts that were carrying out explorations of the zones and Mexican archaeological monuments. A perfect illustration of this difficulty is the famous contract executed by the Mexican Government in collaboration with the French archaeologist Charnay in the XIXth century. Archaeological cultural heritage is the core of Mexican tangible cultural heritage. This fundamental proclamation dates back to the origins of the independence and has consistently been present in the country‘s legislation. Consequently, at this point in time, archaeological heritage has a privileged legal regime allowing for its preservation that, in spite of its shortcomings,

elementary education by students, technical training and medium and higher education. . . . To define and develop educational programs of regional content which recognize the cultural heritage of their peoples in accordance with the laws on the matter and consulting it with indigenous communities. . . . To promote respect for and knowledge of, the diverse cultures in the Mexican Nation.” Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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is more effective than the legal regime attributed to artistic and historic heritage, both of which chronically suffer from constant insufficient economic means, the lack of centralized protection and an absence of trained personnel. This preferential treatment has not come about by chance; it is linked to powerful and historic rationing. In the archaeological field, the current legal regime is the result of provisions being in effect at different times and is a response to concrete situations which, at one time, led to the creation of the appropriate means. Even though the legislation is brought to task for being confusing and difficult to comprehend, a criticism which does hold an element of truth, it has allowed the federal government to have better control over this cultural heritage, whose ultimate beneficiary is universal knowledge. Unfortunately the same cannot be said regarding movable and immovable cultural heritage during other times.14 In the XXth century, the first sovereign act of the national State in the matter of cultural heritage concerned itself with the execution of an agreement which ensured that cultural heritage was available for public interest and ordered the acquisition of immovables located in the archaeological zone of Teotihuacan. Furthermore, the national State was fully aware of its obligation to inspect and preserve archaeological monuments. It therefore resolved to sequest the lands of more than 163 owners15 in one of old Mexico’s largest ceremonial centers, the archaeological zone of Teotihuacan, where the monuments were built. This agreement was intended to concile the rights of the owners involved in the private ownership system. However, in reality, the land owners were forced into selling their land to the federal government. They were surreptitiously warned that if they failed to reach an agreement, the land would be expropriated in the case of public interest.16 This agreement was later supplemented by the decree of 1964 which ordered the expropriation of neighboring lands in order to establish the archaeological zone of Teotihuacan.17

14 See GONZALEZ, María del Refugio. “La protección de los bienes arqueológicos en México y su relación con la jurisprudencia” [The protection of archaeological property in Mexico and its relation to the jurisprudence], in Arqueología y derecho en México [Archaeology and Law in Mexico]. First Edition. Mexico. UNAM. 1980. p. 72. 15 See OLIVE NEGRETE, Julio Cesar. “Reseña histórica del pensamiento legal sobre arqueología” [Historical Review of the Legal Theory on Archaeology], in Arqueología y derecho en México [Archaeology and Law in Mexico]. First Edition. México. UNAM. 1980. p. 40. 16 See the Diario Oficial de la Federación del 11 de julio de 1907 [The Official Newspaper of the federal government 11 July 1907]. 17 See the Diario Oficial de la Federación del 30 de abril de 1964 [The Official Newspaper of the federal government 30 April 1964].

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The federal protection of archaeological heritage dates back to the XXth century. Its origin lies in a judgment issued by the Supreme Court, and came about as a result of a dispute between the Federal government and the Southern State of Oaxaca, which possesses a very rich pre-Columbian cultural heritage, regarding the enactment of the 1932 law in that State.18 The dispute arose because the State of Oaxaca published a law on the dominion and jurisdiction of archaeological and historic monuments.19 The federal government considered this law to be a breach of the legislative competition and deemed it unconstitutional, which resulted in its voidance. The Supreme Court ruled over the case in accordance with the General Constitution20 which procures that it is the highest interpreter of the Constitution and therefore must have knowledge of the constitutional disputes between the federal government and one or more States, focusing the legal scope of its jurisdiction on each one. The State of Oaxaca argued its right to enact laws of this nature and reasoned that it did not, in any way, contravene the authority of the federal government especially since the General Constitution did not grant such power to the General Congress.21 Furthermore, in the State’s opinion, admitting the arguments of the federal government would be equivalent to “constitutional deviation” which would place the heritage of the States in a “formidable central lock”.22 The Supreme Court’s decision was unanimously favorable towards the federal government, with the exception of one vote. It was argued that, although the General Constitution indicates that the powers are not specifically granted to the federal government, it is understood that they are transposed to the States. The roots of this draw water from the Constitution of the United States. This argument was not admitted in its entirety by the

18 See the Semanario judicial de la Federación. Quinta época. Tomo XXXVI. [Weekly Judicial of the federal government. Fifth Edition. Volume XXXVI]. México. Antigua Imprenta de Murguía. 1933. p. 1071. In CD-Rom. Suprema Corte de Justicia de la Nación [Supreme Court Justice of the Nation]. IUS 8. Jurisprudencia y Tesis Aisladas. 1917–11998. 19 See article 1 of the law sobre la propiedad y la competencia de monumentos arqueológicos e históricos [property law and the competition of archaeological and historical monuments] that stated: “. . . They are under the dominion of the State and will be under the legal powers of the same archaeological and historical monuments . . . (that) are located in the Oaxaca State]. Immediately after the law set out the requirements to be satisfied for the protection of these types of cultural heritage, specifying that the property had to receive the said protection.” 20 See article 105 of the General Constitution that states: “. . . the Supreme Court of Justice shall hear, under the terms set forth by the law, of the following matters: “. . . I.—Constitutional Controversies, except for those referring to electoral matters, arising between . . . The federal government and a State or the Federal District . . .”. 21 For this reason, the ley Federal del 3 de enero de 1930 sobre protección y conservación de monumentos y bellezas naturales [Federal Law of 3 January 1930 on the protection and conservation of monuments and natural wonders] was only applied to the Federal District (Mexico City). 22 See GONZALEZ, María del Refugio. Op. Cit. p. 73.

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first Mexican Constitution and, according to the constitutional text, there are other matters where concurrent jurisdiction exists between the federal government and the States. In these instances, the jurisdiction corresponds with the power that has primarily exerted it, and if neither has exerted it, the national or local interest on the subject corresponding to the disputed jurisdiction, would govern. The Supreme Court deemed that the federal government had undisputedly benefited, from the exercise of its jurisdiction over the ruins and archaeological monuments located within the territory of the Republic23 almost since the country was established. To justify its assertion, it made reference to a series of legislative precedents that convincingly accredited it as such.24 The common denominator of these legal texts stipulated that national antiques, monumental ruins and archaeological heritage such as the temples or pyramids, belonged to the national State.25 These provisions showed that the federal government had maintained a constant legislation over the ruins and archaeological monuments and had exercised this jurisdiction provided by the General Constitution26 with regards to these national cultural monuments.27 The Supreme Court viewed that since the law of the State of Oaxaca only dated back to 1932, the federal government had instigated the application of the jurisdiction over the matter in question, and not the State of Oaxaca. Therefore, according to the legal rule invoked, the former had the jurisdiction and legislative power in this case, not the State of Oaxaca. The State of Oaxaca‘s argument was rejected as it appealed to a power that was not in fact attributed specifically to the federal government, however it was held that certain powers “do not need to be literally or explicitly contained in the Constitutional Law . . . therefore . . . the legislative powers of the

23

Supra note 16. The Resolution of the Supreme Court also alluded to the briefing dated 28 August, 1868 issued by the former Ministry of Justice, which prohibited the carrying out of excavations or future works in the archaeological zones without acquiescence from the federal government; to the law of 26 March 1894 on the occupation and distraction of uncultivated lands; to the Decree of 3 June 1896 approved by the General Congress; to the law of 11 May 1897 on archaeological monuments; to the Decree of 18 December 1902, and finally to the law of 30 January 1930. 25 The treatment of these different types of goods varied very little, but all were integrated into the national heritage. 26 See article 73 Section XXV of the General Constitution that states: “. . . The Congress shall have the powers: . . . Paragraph XXV. To establish, organize and maintain throughout the Republic; arts and crafts institutions, museums, libraries, observatories and other institutions concerning the general culture of the Nation’s inhabitants and to legislate on all matters concerning such institutions; to legislate on matters concerning ruins or vestiges, archaeological, artistic and historical monuments, whose conservation is of national interest . . .”. 27 Supra note 16. 24

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federal government are not those solely expressed in a provision determined by the General Constitution”. The Supreme Court also stated additional reasons to rationalize the validity of its decision, citing, among others, the feigned spirit of the first Constitution in this field and others. This is based on ancient antecedents like the Recopilación de Leyes de los Reynos de las Indias28 (Laws of the Indies) in which this heritage was privately owned by the Spanish Crown and such heritage was untouchable and limitless. The Court ruled that “. . . when the Colony won its independence, the rights of the Crown’s private heritage, in relation to such laws as those of the Indies, were passed with all integrity and in full to the Mexican nation”. The successor of the Crown’s heritage was considered and decided on by the nation. Consequently, it was “undisputable that the ruins and archaeological monuments that are found in Mexican territory were also a part of the national heritage and not the States of the Republic, whose existence was not even well established”. It was clear to the Supreme Court that the federal government had foreseen the exertion of its jurisdiction on the subject, as in the terms of the General Constitution;29 the considered heritage had never left the dominion of the national State, but was preserved with the same legal status as found in colonial times. The Supreme Court stated that under the Law of the Indies: “the temples, graves, houses and burial sites of the indigenous people were heritage of the Crown”.30 Thus, according to the Supreme Court, the Law of 1932, as initiated by the State of Oaxaca, encroached on the constitutional

28 Recopilación de Leyes de los Reynos de las Indias mandadas imprimir y publicar por la Majestad Católica del Rey Carlos II, Nuestro Señor, va dividida en Cuatro tomos con índice general. Madrid. 1681. 29 See article 27 of the General Constitution that states: “Ownership of lands and waters within the boundaries of national land territory is vested originally in the Nation, which has had and has, right to transmit title thereof to private persons, thereby constituting private property. No expropriations of private property shall be made but for public convenience and necessity, and subject to payment of indemnification. The National State shall at all time have the right to impose on private property such restrictions as the public interest may demand, as well as to regulate, for social benefit, the utilization of those natural resources which are susceptible to appropriation, in order to make an equitable distribution of public wealth, to conserve them, to achieve a balanced development of the country and to improve the living conditions of rural and urban population . . . the National State’s control is inalienable and not subject to the statute of limitation and the exploitation, use or enjoyment of the resources in question by private persons or by companies incorporated in accordance with Mexican laws, may not be undertaken save by means of concessions granted by the President of the Republic and in accordance with the rules and conditions set forth by the Laws . . .”. 30 See La Recopilación de Leyes de los Reynos de Indias [The Recopilation of the Laws of the Indies]. Tomo [Volume] III. Libro [Book] VIII. Título [Titile] XII. Madrid. Cultura Hispánica. 1973. pp. 64–65.

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field of the federal authoritative powers, which was the qualified authority to legislate on this matter.31 The only contrary vote held that the antecedents referred to in the Spanish legislation, with regard to the disputed subject, were not acceptable as “. . . such legislative antecedents have nothing to do with the sovereignty of the States, nor with the powers of the federal government, since they refer to a system of political organization absolutely and radically different to the federal system . . .”. It was also asserted that according to the General Constitution, the States did not assign the federal government with the right to exercise jurisdiction over this type of heritage. The particular vote sustained that the Law of the State of Oaxaca therefore did not invade the constitutional sphere of the federal government, nor was it initially void. Consequently this State should be acquitted from the demand imposed upon it by the federal government. However, the Supreme Court advised that the State of Oaxaca, in its own local Constitution32 provided that “goods which had originally not been heritage of the federal government constituted the heritage of the State”. The resolution had a dramatic effect on Mexican Law and since then, the federal government has been competent to legislate on the issues regarding archaeological heritage. This criterion of the Supreme Court was adopted by the General Congress in the law of 1934,33 providing that all archaeological immovable monuments and the goods located in them are dominion of the national State. It suffices to analyze some examples34 to show that, as of the resolution of the Supreme Court, the problem regarding the jurisdiction over archaeological heritage was finally resolved. The Law of the State of Oaxaca of 1932 was replaced by the Law of 1942 over the protection of colonial, artistic and historic monuments of typical populations in which the submission to the federal government was more than apparent. This law applied to immovables pertaining to colonial architecture, located in the State of Oaxaca and whose protection and conserva31

Supra note 16. See article 20 of the Constitution of the State of Oaxaca. 33 See the ley sobre protección y conservación de monumentos arqueológicos e históricos, poblaciones típicas y lugares de belleza natural [the law on the preservation and protection of archaeological and historical monuments, indigenous peoples and natural wonders] was published in the Diario Oficial de la Federación [The Official Newspaper of the federal government] on 19 January 1934. 34 See Chiapas State decree no. 135, 31 July 1972 and 25 September 1972, Periódico Oficial [Official Publication] 11 October 1972 ley de protección de monumentos y sitios arqueológicos de Chiapas [law of the protection of archaeological sites and monuments in Chiapas]; Hidalgo State decree no. 29, 17 October 1949 and 19 October 1949, Periódico Oficial [Official Publication] 8 November 1949 ley de desarrollo del turismo y la protección de sitios de belleza natural y de objetos de interés histórico y artístico del Estado de Hidalgo [law on tourist development and the protection of sites of natural beauty and historic and artistic objects in Hidalgo State]. 32

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tion presented a public interest based on their artistic or historic value and was applied to the monuments belonging to individuals as well as to the State, if in the latter case, their protection was not reserved and governed by federal laws. For the protection of this heritage, the government of the State of Oaxaca was authorized to order their conservation or restoration, according to the procedure established by the law and for reasons of public benefit.35 On its part, the State of Yucatán in south-east Mexico, which also possesses a considerable pre-Columbian cultural heritage, classified historic monuments as all the immovables after the Conquest whose conservation would be of public benefit by virtue of its link with the history of the State of Yucatán and for possessing an artistic and architectural value representative of the history and culture of the State of Yucatán itself. To benefit from the protection, both the private and public immovables should have been declared as such by the law. The regulation of the matter did not correspond with the General Congress. The indigenous nationalism of the post-revolution regimes, together with the centralization trend of Mexico between 1920 and 1935,36 contributed to the fact that the cultural heritage was considered as being owned by the national State. This explains why the heritage pertaining to the colonial period and the later period had not been subject to the same attention as the archaeological heritage. However, and as shown in the Mc Clain case37 in the American Courts, the legislation derived from the resolution of the Supreme Court, was insufficiently precise regarding the ex lege ownership of the cultural heritage. The pillaging suffered by Mexican cultural heritage in the 60s and which persisted until the execution of the Cooperation Treaty signed between the United States of America and Mexico concerning the restitution of cultural heritage induced Mexico to “federalize” the subject and to enact the federal Law of 1972 on archaeological, artistic and historic monuments and zones. It is as a consequence of this pillaging, along with the predictable effects of the Cooperation Treaty and the expansive scope of the law of 1970, that the Law of 1972 was enacted and is now currently in force. Thus, in 1966, the General Constitution was amended and empowered the General Congress as the legislative body to establish, organize, and sustain, throughout the Mexican territory, the museums and other institutions

35 See articles 2, 9 and 11 of the ley sobre protección y conservación de monumentos y bellezas naturales [The law on the protection and conservation of monuments and natural wonders] that was published in the Diario Oficial de la Federación [The Official Newspaper of the federal government] on 31 January 1930 (hereinafter the law of 1930). 36 See MEYER, Lorenzo. El primer tramo del camino: Historia general de México [The first step of the way: General History of Mexico]. Tomo [Volume] V. First Edition. México. El Colegio de México. 1976. pp. 115–122. 37 See United States v. Mc Clain, 545F.2D 988.

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linked to the general culture of the inhabitants of the nation and to legislate on everything related to these institutions, vestiges or fossils, archaeological, artistic and historic monuments, whose conservation is of national interest. In the 1980s, Mexico entered a stage of profound transformation. At the present moment, along with other political events, there is an emergence of a new and authentic federalism. In cultural matters, the States have put forward important claims and it is in this context that the various legislative projects should be analyzed. The drafts are aimed at strengthening the authority of the States and forming the basis of a cultural collaboration between the federal government, the States, the Counties and the Government of the Federal District (Mexico City). Furthermore, the States will be encouraged to develop or apply their legislation with a view to mitigating the centralized trend of the constitutional text in force. 3.3.2. The Journey of the Nationalistic Model of Cultural Heritage An increasing nationalism combined with the unlimited practice of property law, chiefly explains the formulation of the notion of archaeological monuments as a basic concept of cultural heritage and its protection, as well as the parallel modifications on the concept of property law. The insurgence of a nationalistic model of cultural heritage was inherent to the reinforcement of the national State. By the end of the XIXth century and the beginning of the XXth century the Mexican people did not have access to the main archaeological sites, notably those located in South-East Mexico belonging to the Mayan culture like Uxmal and Chichen Itza to name just two. This was due to their being within the limits of “haciendas” which were large old Mexican farms in the private ownership realm. The climax of this event was the Thompson case. Thompson was acting as general consul for the United States in the Southern State of Yucatán and acquired possession of the Hacienda where the ceremonial centre of Chichen Itza is located. Thompson was the first to dredge the Sagrado Cenote, and most of the Mayan pieces found are now exhibited in the Peabody Museum at Harvard University. 3.3.2.1. The Law of 1897 The protection of national heritage emerges at the end of the XIXth century with a legal determination and a protection focused on archaeological monuments. The Decree of 1897 constitutes the first legislative text in which this sentiment was expressed. This would later become a genuine dogma with a touch of nationalism in the Mexican system of cultural heritage protection. However, there was still ambiguity in the Code Civil that regulated the private heritage regime of archaeological movables; the difference between archaeological movable and immovable monuments as regulated by the Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Decree of 1897 was to be expressed in various ways through the following legislations. 3.3.2.1.1. Immovables A new specificity in the notion of immovables was surreptitiously introduced into Mexican legislation. This decree detailed monuments belonging to the national State as: the ruins of cities, large houses, troglodyte housings, forts, palaces, temples, pyramids, stone sculptures or their inscriptions and, in general, all constructions that for any reason had relevance to the study of the history of the inhabitants of ancient Mexican civilizations.38 The first annotation to the notion regarding immovable monuments was tantamount, as is the legal regime to which they were subject. The great innovation was the deeming of all archaeological monuments in the Mexican territory as being national heritage and a decree that nobody could exploit, displace or restore them without the express acquiescence of the federal government.39 This criterion was corroborated by the Law of 1902 in which archaeological heritage was placed in the public dominion and, to this effect, the national State destines archaeological monuments and historical remains for such uses, and subjects archaeological immovables to the authority, regime and effects of the notion of res extra commercium. 3.3.2.1.2. Movables In the case of archaeological movables, these included Mexican “antiques”: codices, idols, amulets and whichever other good the federal government considered relevant to the study of the civilization and history of the aboriginal, indigenous peoples and ancient inhabitants of the American continent, Mexico in particular.40 The archaeological movables could be goods of private ownership and, in accordance with XIXth century Mexican legislation, the only limitation was a prohibition of exportation. This is apparent in the precedent of the request by the French archaeologist Auguste Le Plongeon in the middle of the XIXth century. Auguste Le Plongeon requested authorization from the Mexican Government to export pre-Columbian goods for an exhibition in the American city of New Orleans which would consist of many pieces taken from the archaeological zone of Chichen Itza. He was denied the authorization

38 39 40

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by the Mexican Government, on the mere suspicion that he might have had the intention to sell them.41 3.3.2.1.3. The Trafficking of Cultural Heritage A contravention of this prohibition of exportation carried a sanction of a meta-contractual nature consisting of a fine or, in some cases, criminal liability. Nevertheless, in Mexico, the internal trafficking of archaeological movables was perfectly legal. These movables were pertained to be on the market and were deduced as private heritage. The federal government was obliged, by law, to deposit all the acquired Mexican “antiques” into the National Museum in Mexico City. This imposition carried the implicit understanding that archaeological movables were, as declared by the Supreme Court, “subject to appropriation by individuals separate from the national State”.42 3.3.2.2. The Law of 1930 The law of 1930 abandoned the case-by-case method, instead imposing a criterion of artistic, archaeological and historic value which would differentiate the protection of movables and immovables.43 Despite the relinquishment of a case-by-case criterion, the legal text specifically highlighted the codices, incunabulum (books printed prior to 1501), rare books or those of exceptional value, drawings, engravings, plans and geographic maps, medals and all architectural structures or constructions corresponding to the aforementioned values and therefore of public interest. The Law of 1930 introduced a different perspective on the protection of cultural heritage. The core element of national heritage was no longer confined to archaeological monuments and movables whose protection, conservation and maintenance was of public interest, but monuments with historic and artistic value were also integrated into the law. The new legislation was better still: only immovables or movables of an archaeological nature whose protection and conservation were in the public interest due to their artistic, archaeological and historic value were the rationae materiae of the 1930 law; other cultural heritage was subjected to the general system of the Code Civil.

41 See LITVAK, Jaime and LÓPEZ VARELA, Sandra L. “El patrimonio arqueológico. Concepto y usos” [Archaeological Heritage. Concepts and uses], in FLORESCANO, ENRIQUE (ed.). El Patrimonio Nacional de México [Mexican National Heritage]. Consejo Nacional para la Cultura y las Artes [National Agency of Culture and Arts]. Fondo de Cultura Económica. México. 1997. p. 191. 42 See the Semanario Judicial de la Federación [Weekly Judicial of the federal government]. Quinta época. Primera Sala. Tomo LXXIX [Fifth Edition. First Bench.Volume LXXIX]. p. 548. 43 See article 1 of the law of 1930.

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The Law of 1930 provided a specific contractual sanction, an absolute voidance, as well as a system of damage and loss in case the purchaser was found guilty of fraud or bad faith. The feasibility of the federal government claiming tenure of archaeological monuments at all times when found in possession of a third party, whomever the possessor may be, reinforced the State heritage rights. It is evident that there is symmetry between the legal consequences of the legitimate situation in movables and immovables. Immovables and movables which satisfied the aforementioned conditions were considered national heritage if, at the time of the 1930 law’s enactment, they were in the holdings of the federal government, or if they were declared to be of that nature. The public collections of the museums were considered ipso jure, as monuments whose protection and conservation were of public interest due to their artistic, archaeological or historic value. These movables alone would be subjected to the authority, regime and effects of the res extra commercium notion and were destined for common use. They were therefore considered inalienable and nobody could acquire the right of ownership per statute of limitations nor any other actual right over such monuments. Moreover, they would not be liable for seizure and the mortgage or pledges that may have been held over them would be considered void alongside all direct or subsidiary consignment that could be made as a security of economic liability.44 Additionally, the archaeological heritage was destined for common use. The monuments classed as movables or immovables in private ownership, could be freely alienated. However, the State had a right of pre-emption over them and, therefore, the prerogative to acquire an archaeological monument at the same price as any other buyer and through a purchase agreement submitted to the same form, terms and conditions. The difference between the legal systems of movables and immovables disappeared and both became subject to the same heritage regime founded on the principle of State heritage which holds the traits of inalienability, a non liability for seizure and not being subject to a statute of limitations or liens. The notion of a federal governmental declaration mechanism was introduced and has been one of the pivotal elements in the conceptual determination of the archaeological monument as both movable and immovable. The composite nature of the cultural heritage was determined by a federal governmental resolution which consisted of a cultural sovereign act; but it also had the purpose of obeying the due process constitutional mandate. The Constitution decrees that nobody can be deprived of life, freedom or heritage, possessions or rights, but may undergo a trial before established courts

44

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which comply with the essential formalities of the proceedings in accordance with previously enacted laws45 (due process constitutional mandate). The federal governmental declaration had the effect of submitting a movable to a specific heritage regime as long that there existed a clear change in the heritage of an individual. As time slowly elapsed, the legal evolution of the archaeological monument regime and the purpose and effects of the federal governmental declaration also varied. There existed, of course, a juris et de juris presumption which considered the following as pertaining to cultural heritage: movables and immovables, public collections belonging to museums or State galleries, and even heritage which was under government care. Initially, this federal governmental resolution resulted in enabling the practice of pre-emption rights, but it also meant a substantial reduction in the heritage rights of owners, since the resolution itself was recorded in an ad hoc Public Register and this prevention of an acquiring third party implied a real decrease in the value of the heritage. The great innovation of the Law of 1930 was the creation of a presumption of immovable heritage and in the transitory articles46 of the Law of 1930, all persons and entities who claimed ownership rights over a movable or immovable monument prior to the Conquest were obliged to present their deeds before the ad hoc Public Register. A failure to do so would result in a “presumption of the heritage in favor of the national State, who then assumed control of the monuments . . . if not already held under another title”.47 Henceforth, the law considered the federal government as a good faith possessor. The prohibition of exportation applied to both movables and immovables by purpose or destination.48 Excavations were severely limited: nobody was permitted to prospect or carry out excavations with the intention of discovering goods or constructions of artistic, archaeological or historic interest without express acquiescence from the federal government. The allocation of the ownership of treasures which have been discovered by chance, was subject to the Code Civil, however, the Law of 1930 granted the federal government the authority to “acquire the discovered goods at a fair price at an appropriately deemed time”. In spite of this, the Law of 1930, along with the Law of 1902, explicitly recognized the private possession of archaeological monuments, whether they were movables or immovables. In the case of immovables, the laws provided

45 46 47 48

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that the owners and the federal government would agree, amid themselves, the conditions regarding free access. This constitutes conclusive evidence of the existence of a private heritage regime. The decision to extend this presumption is therefore fundamental. The legal presumption is defined in Mexican law as consequences derived by the law from a known fact to an unknown fact; it is stated in the presumption that there is not “a release of evidence but simply a displacement of the burden of proof ”.49 In Mexican law, the legal presumptions do not always carry the same force; some, e.g. the simple presumptions, may be challenged with contrasting evidence; with the effect of reversing the burden of proof. Other presumptions e.g. juris et de jure, are considered undisputable, possessing not only elements of conviction, but also the inability to be challenged with any contrasting evidence. In the issue in question, the presumptions of ownership relate to a simple presumption whose contrasting evidence is limited: only the presentation of the deed, whose onus probandi corresponds to the individual, may remove this presumption of ownership. However, the effects are manifold; in general, an assertion by the national State of its control over archaeological monuments encouraged individuals to present their deed. This allowed the federal government to review the legitimate deed which the individuals held for the archaeological monuments and they could therefore facilitate a stronger defense against a case of dispute. Similarly, it favored the registration of archaeological monuments in the provided catalogue, which fundamentally served as a form of control. The formulation of immovable heritage presumptions in the Mexican legal system on cultural heritage generated a new property regime specific to archaeological monuments. As a result, archaeological immovable monuments would be submitted to rules and legal consequences different from those relating to immovables. This metamorphosis is profound indeed: without the need to apply an explicit expropriation, the national State notably increased its cultural heritage and, at least in appearance, simultaneously conciliated its actions with respect to private ownership. 3.3.2.3. The Law of 1934 The Law of 1930, with a scope of validity limited to Mexico City, and some serious elements of uncertainty, was soon replaced by the Law of 193450 that

49 See CARBONNIER, Jean. Droit civil: Introduction [Civil Law: Introduction]. Eighteenth Edition. Paris, France. PUF. 1990. p. 311. 50 See article 12 of the ley sobre protección y conservación de monumentos arqueológicos e históricos, poblaciones típicas y lugares de belleza natural [law on the preservation and protection

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had a federal scope51 and included archaeological monuments, exports of archaeological and historic monuments, historic monuments of national heritage, and sites of natural beauty owned by the national State or under federal jurisdiction. Through this preventive legislative measure, the General Congress tried to highlight its foremost legislative right to rule over cultural heritage and to banish the State’s argument of vindicating any right to do so. This new law intended to mitigate the ambiguities of its predecessor and defined monuments as any movable or immovable of an archaeological origin, or whose protection and conservation derives from its historic value to the public interest. Archaeological immovable monuments were classified as ruins dating from indigenous civilizations prior to the Spanish Conquest. The Law of 1934 made a return to differentiating between archaeological movables and archaeological immovables and submitted them both under different legal regimes. Archaeological immovables were considered as national heritage and therefore, by reasoning, so were the movables contained in the archaeological immovable monuments, that by a legal fiction were considered as immovable. This property regime became dogmatic and implied an expropriation, in practice. Within this regime the national State was given the power to set up its cultural heritage, with a core element that consisted and still consists of archaeological immovable monuments. Seemingly, the chronological criterion purveyed a specific limit on dates but it was technically controversial and insufficient seeing as the Conquest did not occur simultaneously across all of Mexico’s current territory.52 The ad hoc Public Register, implemented on the subject, had effects that were beyond simple cataloguing or publicizing; the registration had creative and evidentiary effects on property law. In the absence of a registration of the right of ownership by private parties over both movable and immovable archaeological monuments the introduction of the corresponding Register transformed the presumption of juris tantum ownership into a juris et de jure presumption, by the law and with regards to the law.53 The intention was overtly obvious: by submitting the archaeological immovable monument to a new heritage regime, the Mexican Government, in practice, was quietly making an expropriation.

of archaeological and historical monuments, indigenous peoples and natural wonders], hereinafter the law of 1934. 51 See Semanario judicial de la Federación [Weekly Judicial of the federal government]. Quinta época, Segunda sala [Fifth Edition, Second Bench]. Tomo [Volume] LXXVII. p. 2914. 52 See OLIVE NEGRETE, Julio Cesar. Op. Cit. p. 41. 53 See OLIVE NEGRETE, Julio Cesar. Op. Cit. p. 312. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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It was presumed that archaeological cultural heritage not logged in the ad hoc Public Register was encompassed in immovable archaeological monuments and was therefore under national control. In the Mexican legal system, national control of immovable archaeological heritage is a notion that has been fully attained. The Law of 1934 also introduced a substantial change to the general system of the agreement that governs rights in rem. The definition of rights in rem in the civil law countries is well known as being a right that acts directly on goods (jus in rem) and purveys to its holder all or part of the economic exploitation of the said goods.54 A difference between rights in rem in an almost universally accepted classification in codified systems, abides by two approaches; some jus in rem are administered on the materiality of goods; while other jus in rems apply to their economic value. Ownership is the essence of a jus in rem. The acquisition of the ownership takes place in two ways: through free will or by virtue of the law and it is through the second form of acquisition that the mechanism of accession is developed. When determining that constructions do indeed belong to a landowner, the juris tantum presumptions are introduced in the matter of immovables; however, there is a possibility of dissociation: the constructions may belong to other persons, and not necessarily to the owner of the land where the constructions are located. The rules established by the law in this area permit a stating of the mechanisms for resolving disputes between the owner of the land and the owner of the constructions. The Mexican Law of 1934 equally dissociated the heritage law on archaeological immovable monuments: it bestowed the federal government with the rights to the surface of archaeological immovable monuments and bequeathed the ownership of the soil to individuals. It produced a mechanism for solving exceptional disputes between the federal government and the landowner which differed entirely from that stated by the property rights regime. This dissociation of immovable heritage, federal government surface rights, and the inalienable archaeological immovable monuments without statute of limitation, breached the landowner’s ownership rights and made the acquisition of their ownership impossible under free market conditions. The expropriation of the soil was the principal option considered as a resolution for this dispute or possibly the sale to the federal government under precarious conditions. Additionally, it favored the owner of the construction

54 See CARBONNIER, Jean. Civil Law. Les Biens [Ius in rem]. Eighteenth Edition. Paris, France. PUF. 1990. p. 66.

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by exerting the basic civil principle of accession which defines it as the effect of an attractive force gravitating around the notion of the soil. The constructions were considered as the principal, and the soil as an accessory. This implied that soil hosting an archaeological monument should be subjected to the same providence as reserved for the latter. Preventative measures were taken against the presumption of archaeological immovable heritage and by this reckoning, the presumption of national heritage of archaeological movables or immovables not recorded in the ad hoc Public Register. The prohibition of exporting archaeological movable monuments had an element of flexibility. Exportation was authorized in instances when the federal government considered that retaining these movables in national territory was not essential, and henceforth temporary exhibitions were permitted. Finally, because of public benefit, the national State held back its power of expropriation on historic or archaeological monuments, the lands under which such monuments or movables were found, the surrounding lands and lands necessary for prospecting works. Archaeological excavations carried out in Mexican territory were at the heart of a dispute and the concern was justified. No exact inventory had ever been made of the archaeological sites and the treasures contained in such sites were therefore unknown. The inadequate use of archaeological heritage could restrict the acquisition of universal knowledge of pre-Columbian cultures and a lack of national territory control, together with a difficulty in accessing archaeological sites which are generally located in the tropical jungle, notably aggravated this situation; all this entirely justifies the national State’s natural distrust regarding archaeological excavations. Excavations were prohibited, but the Law of 1934 introduced a get-out clause: the federal government could grant a concession for work involving the discovery of archaeological monuments as well as for the exploration of previously discovered monuments; if two goods of similar importance were found, the federal government could give one of these away, on the grounds that it was not useful to museums, national institutions or to a State. Historic monuments were movables or immovables dating from the postConquest era. Their conservation was in the public interest because they were linked to the political and social history of Mexico, or because their artistic and architectural value defined them as witnesses to cultural history. The federal governmental declaration mechanism continued to be relevant but was now limited to the historic heritage and, as a result of this declaration, the federal government could enjoy a right of pre-emption over such heritage, a feature that in the event of a sale would seriously limit the exercising of the right of ownership by its bearer. The annotation was evident: Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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archaeological monuments were submitted to the res extra commercium heritage regime and required no declaration. Any reconstructive, restorative and repair work or research of historic monuments, along with any new construction linked to and supported by them, should have express approval from the federal government. Finally, the federal government could declare as being of public interest; the protection and conservation of physical and unique aspects of the populations or certain areas of notable and particular natural beauty.55 In the last quarter of the XXth century, and for the first time in Mexico, the concept of national cultural heritage was developed and encompassed anything holding cultural significance, be it in an artistic, historic, traditional, scientific or technical field. During the 1960s, Mexico underwent a period of radical nationalism and the publication of a certain article had explosive effects. It was written by Clemency Coggins, a famous American art historian, who denounced the systematic destruction of archaeological sites and monuments in south-east Mexico and Central America.56 The publication of the above mentioned article generated an international movement composed of, among others, archaeologists and ethnographers, and Americans in particular, demanding measures to prevent the clandestine archaeology; it condemned the approach of the museums, collectors and art dealers of the developing countries who promoted this destruction and suggested introducing export regulations to restrict the exportation of cultural heritage, as well as an export permit which would be granted by the heritage’s origin State.57 The collector’s rights were under sensitive social scrutiny; the prevailing ideology stigmatized them as destroyers and mutilators of archaeological sites and monuments and accused them of having “malicious intent”, supplying foreign collectors with the pieces they required; it was taken to such extremes that the collector was declared as “the catalyst in the destruction of archaeological heritage”.58

55

See article 21 of the law of 1934. See SANCHEZ CORDERO DÁVILA, Jorge. Les Biens Culturels Précolombiens: Leur Protection Juridique [Pre-Columbian Cultural Heritage: Its Legal Protection]. First Edition. Paris, France. Librairie Générale de Droit et de Jurisprudence. p. 172. 57 See MERRYMAN, John Henry. Thinking about the Elgin Marbles: Critical Essays on Cultural Property, Art and Law. First Edition. The Hague. Kluwer Ltd. p. 179. 58 See MATOS MOCTEZUMA, Eduardo. “Las normas jurídicas y la investigación en México” [Legal rules and research in Mexico], in Arqueología y Derecho en México [Archaeology and Law in Mexico]. First Edition. Mexico. UNAM. 1980. Op. Cit. p. 126. 56

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3.3.2.4. The Law of 197059 The international pressure pushed Mexico into replacing the Law of 1934 with the Law of 1970 which introduced a basic concept: goods holding a cultural value would be determined as cultural heritage, whether they were in federal governmental possession or private ownership; this cultural heritage would retain its rights over goods with no more limitations than those established by law. The determination of considering the ownership of national cultural heritage drastically limited private ownership and these limitations depended on the nature of the heritage. Some could serve as a security or be subject to a transfer of ownership by obtaining prior written acquiescence from the federal government; they had to be recorded as national cultural heritage in the ad hoc Catalogue and Public Register. The federal government had the right of pre-emption in cases of transference of ownership of heritage, which could not be removed or disbanded without prior acquiescence from the federal government. The cultural heritage in private ownership could be subject to expropriation, occupation and full or partial seizure. Notwithstanding the expansive nature of the Law of 1970 which authorized the expropriation and the temporary acquisition of privately owned cultural heritage, it nevertheless implicitly recognized the existence of this ownership, as indicated in the ad hoc Public Register namely “Catalogue of goods determined as national cultural heritage”. The Law of 1970 lists the monuments that form part of the national cultural heritage by provision of the law and by virtue of their cultural value. Among others, it refers to archaeological, historic and artistic movables and immovables, manuscripts, incunabulum, editions, books, documents, periodic publications, maps, drawings, brochures and important or rare engravings, along with the collections; the ethnological, anthropological and paleontological pieces, the type-specimens of flora and fauna, the museums and typical and picturesque places, as well as sites of natural beauty. According to Mexican legal tradition, the metamorphosis of a good into cultural heritage was done through a federal governmental declaration or by provision of the law. The Law of 1970 supported the same definition of archaeological monuments and included all the movables and immovables pertaining to the cultures in existence before the establishment of the Hispanic culture in Mexico.60 These archaeological monuments and the movables were declared

59 La Ley Federal del Patrimonio Cultural de la Nación [Federal Law on National Cultural Heritage] was published in the Diario Oficial de la Federación [The Official Newspaper of the federal government] on 16 December 1970 (hereinafter as the Law of 1970). 60 See article 50 of the Law of 1970.

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as national heritage and attributed to national heritage by provision of the law. They were liable to the effects of public control such as inalienability, a non liability for seizure and not being subject to a statute of limitations or to any lien. Regardless of the expansive trend, this law permitted an arrangement between the government and the permit holder, or the economic sponsor of the archaeology works, to keep one or several archaeological pieces where they were found, as long as there were several pieces and they were not rare or held exceptional cultural value. The differentiation in the law on the regimes of archaeological movables and immovables was very clear. However the intention of the law was not to recognize the artistic value of privately owned heritage merely its possession. The presumption of ownership in favor of the national State was maintained and extended to archaeological movable goods that were not recorded in the ad hoc Public Register, along with those not under any request to be recorded, and goods whose possessor was considered to be of bad faith. The other element to be considered was once again the federal governmental declaration mechanism. The archaeological movables recorded in this Register, which consisted of those that were unique, rare or exceptionally valuable pieces due to their aesthetic quality or other characteristic and those that were in private possession, would be subject to temporary acquisition and then expropriation. The other registered archaeological movables would remain on the market and could even eventually be considered for exportation. The federal governmental declaration also contributed to a cultural hegemony. It was the bureaucratic officials who had the power in the determination of cultural heritage. The cultural merit of goods being held in private collections was purely and simply ignored; the nature of the declaration was therefore one of a unique sovereign cultural act, attributed exclusively to the national State; it was this and only this that could regulate the retrieval of cultural heritage. Another important effect of the federal governmental declaration was the assuaging of the constitutional due process mandate. As previously stated, the declarations had to be consistent with the constitutional text61 since this declaration carried modifying effects in the private heritage regime.

61 See Articles 14 and 16 of the General Constitution which state that: “. . . Article 14. No law shall be enforced ex post facto in the detriment of any person. No person may be deprived of life, liberty, property, possessions or rights, unless the matter involved has been tried before previously established courts, in accordance with laws enacted before the facts and subject to due process of law. In criminal trials, it is forbidden to impose, by mere analogy or reasonable belief, any penalty which is not expressly set forth in a law applicable in every respect to the crime in question. In civil trials, final judgment must be rendered in accordance with the letter of the law, or with legal interpretation and in the absence thereof, in accordance with general

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Needless to say, it does not take a stretch of the imagination to realize that the Law of 1970 overwhelmingly favored the black market in archaeological movable monuments. The legal ambiguity continued: on the one hand, and by virtue of the due process constitutional mandate, retroactive effects of the law being prohibited, it was compulsory to recognize the private ownership of archaeological movables, but on the other hand, the need to reaffirm national State owned archaeological movables or immovables as genuine links to the preservation of Mexican cultural heritage prevailed. Historic monuments included all movables and immovables created since the Hispanic culture was established in Mexico in relation to the social, political, economic, cultural and religious history of the country; artistic monuments were defined as paintings, engravings, drawings, sculptures, architectural works and other goods possessing a permanent artistic value. Astonishingly, the Law of 1970 decreed that foreign cultural goods illicitly imported into Mexican territory were not to be sold, and had to be returned to their country of origin at the request of the interested government and by means of a resolution by a competent federal authority. These regulations of internal law were clear symptoms of enforcement in national law of the international commitments contracted by the Mexican government in the UNESCO Convention of 1970. The Law of 1970 preserved the system which was introduced by the Law of 1930 and imposed contractual sanctions on the purchase and sale of goods belonging to the national cultural heritage with full voidance rights.62 The damage to public cultural heritage caused by public control of cultural heritage, along with the unlimited expansion of the res extra commercium principle, which was a true reflection of radical nationalism and was unsustainable, made it impossible to comply with the law and seriously threatened artistic creativity. 3.3.2.5. The Law of 1972 3.3.2.5.1. Introduction The Law of 1970 was rapidly substituted by the Law of 1972, which is currently in effect, and in order to make its application feasible, the rationae

principles of law. Article 16. No one may be disturbed in his person, family, home, papers or possessions, except by written order of a competent authority, duly grounded in law and fact which sets forth the legal cause of the proceeding. No arrest warrant may be issued except by the judicial authority upon previous accusation or complaint for the commission or omission of an act which is described as a crime by the law, punishable by imprisonment, and unless there is evidence to prove that a crime has been committed and that there are sufficient elements to believe that the suspects in criminally liable . . .”. 62 See article 45 of the law of 1970. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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materiae of this new law was limited and solely ruled over movable and immovable tangible cultural heritage. The expansive notion of cultural heritage contained in the law of 1970 was eliminated but the basic concept of archaeological, artistic and historic monuments was preserved as a line of defense in Mexican cultural heritage. The Law of 1972 honored the tradition in the Mexican legal system and further developed the specificity of the notions of archaeological, historic and artistic monuments, both movable and immovable and consolidated a special regime, parallel to the general regime governed by the Code Civils. As a correlative notion of this specificity, the Law of 1972 created the ex lege tangible cultural heritage, that is to say: archaeological monuments both movable and immovable, historic monuments as mentioned in the law, but not privately owned, and artistic monuments. The Law of 1972 employed the federal governmental declaration mechanism as the tool to ensure the specificity of the notion of monuments, attributing different legal effects depending on the nature of the monuments. The ex lege tangible cultural heritage was subject to the res extra commercium principle in varying degrees. The Law of 1972 provided a Registration system, whose unique purpose was the logging of facts. Sensitive to the context of the preservation and protection of tangible cultural heritage, the Law of 1972 introduced the notion of cultural zones. The public dominion and the principle of res extra commercium were also seriously limited, but they remain determining factors in the protection of archaeological movables and immovable monuments declared as national heritage, and therefore continue to be inalienable, not liable for seizure and not subject to a statute of limitations or exposable to any lien. The rationale of the protection of cultural heritage is a Eurocentric notion, but the protection of archaeological heritage has been used as the cohesive element of nationality, since the outset of Mexican independence. The Mexican State wanted, as all national States do, the Mexican society to see itself and to be seen in an illustrious light and the pre-Columbian world provided an effective realm. 3.3.2.5.2. The Specificity of the Monuments Notion The notion of “monuments” was fundamental in the production of the legal protection of Mexican cultural heritage but its progress suffers from serious legal ambiguities, mainly in regards to the legitimacy of the goods and their trafficking. According to our legal tradition on the subject, archaeological movable and immovable monuments pertain to cultures in existence before the establishment of the Hispanic culture in Mexico, including human remains and flora and fauna vestiges relating to those cultures. Along with those historic monuments subject to federal governmental declaration, the ex lege criteria for historic monuments movable and Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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immovable, are those relating to the history of the Mexican nation since the establishment of the Hispanic culture in Mexico, such as cult constructions from the XVI to the XIX century and their surroundings like presbyters, convents and other immovables destined for educational and religious activities. Movables like private works located in these immovables such as images, paintings, sculptures and also manuscripts pertaining to Mexican history such as books, brochures and other printed material from the XVI to the XIX century and any other collections and techniques associated with these works are all considered historic monuments. Needless to say this notion has expansive effects. In terms of respective federal governmental declarations or by determination of the law, artistic monuments are works of outstanding aesthetic value.63 The criteria to distinguish immovable from movable in the notion of monuments is not provided by the Law of 1972, but can be found in the Federal Civil Code. One of the defining elements in distinguishing between movables and immovables is mobility, which, in the recent past has proved to be insufficient and therefore the element of utility has also been introduced as a distinctive note. Hence movables or immovables would be considered as such depending on the correlation between their mobility and utility. The insufficiency of the mobility element in tangible cultural heritage is attestable, as can be seen in the Fresques de Casenove case in France, the Monument of Suvorov in Saint-Gotthard, Switzerland, the Temples of Philae or Abu Simbel in Egypt and the Fresques of Teotihuacan.64 3.3.2.5.2.1. Particularities of Tangible Immovable Cultural Heritage The Federal Code Civil, following the French Code Civil, introduces the general rule where all goods are considered as movables, unless otherwise deemed as immovables following casuistic criteria. Over time, the law disassociated the lands from the constructions and considered the latter as archaeological monuments, coupled with movables and immovables of an archaeological origin and movables, whose protection and conservation was in the public interest owing to their historic value. Following these criteria archaeological constructions are considered as State owned due to the classification of their importance for Mexican cultural heritage, whereas the soil can be deemed as privately or State owned. A form of conciliation was proposed in which private heritage granted the national State the authority to expropriate, for the cause of public benefit,

63

See articles 27, 33 and 35 from the Law of 1972. See SANCHEZ CORDERO DÁVILA, Jorge. Les Biens Culturels Précolombiens. Leur Protection Juridique [Pre-Columbian Cultural Heritage. Its Legal Protection]. First Edition. Paris, France. Librairie Générale de Droit et de Jurisprudence. 2004. p. 111. 64

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land under which immovables monuments were located or the surrounding lands and also lands necessary for prospecting works. This progression towards a public control of archaeological immovable heritage meant a continued expansion of the res extra commercium principle, one of the sides of the public order prism, where the main effect was to classify them as unattainable for private ownership. 3.3.2.5.2.2. Particularities of Tangible Movable Cultural Heritage The legal system of movables was even more controversial. In principle, the specific legislation on the matter acknowledged that archaeological movables could be limited to private ownership but it prohibited exportation and added a meta-contractual sanction. In this manner, the Supreme Court resolved the issue in the Thompson case65 when it declared that Mexican “antiques” could be privately owned, but their use and holding was confined to national territory. This criterion was maintained for a large part of the XXth century, when the logging of those goods in the ad hoc Public Register was required and the effect of this registration was specified in the same law; therefore the Supreme Court was able to maintain: “. . . so, if the law recognizes the possibility that persons may be owners and may acquire goods of an archaeological origin with the only limitations being those established by the law itself, it is clear that the law is in favor of the persons appropriating historical relics, and cannot be upheld over those already existing and, according to the Law of 1897, the rights of national ownership on all archaeological monuments, are only restricted regarding their exportation, this restriction specifically indicates that the possession and holding of those goods, by persons within the national territory, have been allowed by the public authority (Italics are the author’s own).”66 3.3.2.5.3. The Notion of Cultural Zones The Law of 1972, now in force, also introduced a new concept; one of zones containing monuments of different variants subject to federal jurisdiction. Archaeological monument zones are defined as an area where several archaeological immovable monuments are located, or where their existence is surmised; artistic monument zones are sectors integrating several artistic monuments in association with: open spaces, topographic elements and each other, and as a collection, has outstanding aesthetic value. Ultimately, historic monument zones are areas that hold several historic monuments

65 See Semanario Judicial de la Federación [Weekly Judicial of the Federal government]. Quinta época. Primera Sala. [Fifth Edition. First Bench] Tomo [Volume] LXXIX. p. 458. 66 Supra note 64.

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related to a national event or affiliated with facts from the past which are relevant to the country.67 3.3.2.5.4. The Federal Governmental Declaration Mechanism As provided by the Law of 1972, archaeological, artistic and historic zones and monuments are those considered ex lege cultural heritage of the Mexican national State or by a declaration of the federal government. The Executive Branch can issue the mentioned declaration concerning historic or artistic monuments on its own initiative or by private or communitarian request. It should be mentioned that the declaration issued by the federal government is subject to a very slow bureaucratic procedure. A clear distinction should be made between archaeological, historic and artistic monuments and zones regarding the declarations system. A. Archaeological monuments, both movable and immovable, and zones are considered to be under national ownership and this situation can not be challenged in court. There is no need for a declaration issued by the federal government where monuments are concerned; however archaeological zones need federal declaration and its extension can be challenged in court. That is to say, once an archaeological monument is found, it will immediately be considered as being under national ownership and can only be remedied through compensation. This would have, in practice, the effect of an expropriation. B. Only historic monuments and zones, as defined by the Law of 1972, and not privately owned, are considered to be under national ownership. All other historic monuments need a declaration issued by the federal government and can be challenged in court. This has been a common occurrence in many controversial court cases. It is to be pointed out that the owner does not lose the property but is, however, subject to serious ownership limitations. Where historic monuments are concerned, the declaration issued by the federal government does not have the effect of an expropriation. C. For monuments and zones to be considered as artistic, a declaration must be issued by the federal government and this can be challenged in court. Where artistic monuments are concerned, the declaration issued by the federal government does not have the effect of an expropriation; in theory, the federal government is obliged to foster acquisition of artistic movable monuments.

67

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The Mexican legal system established an administrative Institute, run by the federal government, which is responsible for all types of appraisals and evaluations regarding compensatory matters. It should be mentioned that due to the different free trade treaties signed by Mexico, expropriation has been practically eradicated from Mexican governmental practice. In the recent past, the Mexican Supreme Court has stated that the federal government has contravened the Mexican Constitution by issuing a declaration provided by the Law of 1972. The main reason cited by the Court when overruling the declaration, was that the federal government did not observe the due process constitutional mandate by refusing to concede the opportunity to challenge it in the court. Moreover, the Supreme Court ruled that the Law of 1972 is, in this respect, in conflict with the General Constitution, because it only allows individuals to challenge the logging of monuments in the register, and not the ability to refute its classification as a monument.68 3.3.2.5.5. The Aftermath of the Res Extra Commercium Notion The distinction should be made between artistic and historic monuments and zones, as archaeological heritage can only be State owned. They have serious ownerships limitations: owners cannot start maintenance works without having the approval of the National Institute of Anthropology and History (INAH)69 or the National Institute of Fine Arts (INBA),70 but are entitled to technical and financial support, although the former is subject to bureaucratic times, and the latter is non existent. Neighbors of artistic and historic monuments also have ownership limitations. They have to request INAH’s or INBA’s authorization to carry out any maintenance, demolition, construction or excavation work needed for the protection of historic and artistic monuments. Public dominion and the principle of res extra commercium continue to be principle notions in the protection of archaeological movable or immovable monuments that are declared as national heritage. Public dominion is a notion acquired once and for all in the Mexican legal system, like the principle of res extra commercium in which both archaeological movable and immovable monuments are inalienable, not liable for seizure, not subject to a statute of limitations and cannot be exposed to any lien.

68 See Semanario Judicial de la Federación [Weekly Judicial of the Federal government]. Novena Época Primera Sala [Ninth Edition. First Bench]. Tomo [Volume] XI. March 2000. p. 96; Tesis P. XXIX/2000. Amparo en revisión número [number] 608/2006 from 12 May 2006; Amparo en revisión número [number] 3153/78 from 22 May 1989; 608/2006; Amparo en revisión número [number] 1094/98 from 15 February 1994; Amparo en revisión número [number] 1078/2007 from 23 of January 2008. 69 The INAH was created in December 1938. 70 The INBA was created in January 1947.

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In general terms, the Federal Code Civil and State’s Codes Civils protect the bona fide purchaser, as well as the a non domino acquirer. In terms of the Codes Civils, it is the owner who carries the burden of proof. Of course compensation is given to a good faith purchaser in day to day trading. Needless to say, purchases made in a public auction are considered to be in good faith. It is worth mentioning that all dealers of artistic and historic monuments should be registered with INAH or INBA. In general, it is permitted to trade cultural property within the borders of Mexico without having to acquire special permission, but again we must differentiate between artistic, historic and archaeological cultural objects. A. Artistic cultural monuments, that is to say those subject to a declaration issued by the federal government, can be traded, but special permission is required for their temporary or permanent exportation and overseas trading and even then, if obtained, would only be granted under severe conditions. However, the Law of 1972 does not consider just any cultural object as being artistic; only a few which have been subject to a declaration issued by the federal government such as painters like Frida Khalo, Diego Rivera, David Alfaro Siqueiros, Saturnino Hernán and Orozco. To encourage artistic creativity, the law explicitly states that works of living artists cannot be declared as monuments and cannot be subject to the Law of 1972. B. Only privately owned historic cultural objects declared as such by the Law of 1972 or subject to a declaration issued by a federal government can be traded freely in Mexico; however special permission is required for permanent or temporary exportation for all historic monuments, again the likelihood of obtaining the permission is minimum and subject to severe conditions. In some cases, even privately owned objects, not mentioned by the Law of 1972 or subject to declaration, are unable to be exported. C. Archaeological cultural objects, as ruled by the Law of 1972, are owned by the Mexican Nation and their trading and exportation is strictly forbidden; except for temporary exhibitions or to scientific institutes and only then with explicit permission from the federal Executive Branch and the fulfillment of certain agreements. The problem arises with those archaeological cultural objects in ownership before the Law of 1972 came into effect, where the owner has the burden of proof. The trading of these types of archaeological cultural objects is not mentioned in the Law of 1972, but it can be assumed that they can only be traded within the borders of Mexico. It goes without saying that trading only occurs privately or on the black market. Inalienability was added as a permanent feature to the concept determining archaeological monuments as heritage under public dominion. This was to prevent their illegal marketing, and purported a contractual Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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sanction granting full voidance rights or public order in the case of someone acquiring the good. 3.3.2.5.6. Register System The Mexican legal system acknowledges three different Registers concerning cultural heritage: A. The Public Federal Register ruled by the General Law of National Heritage (LBN), where all manner of federal assets are registered, including cultural heritage. Only federal agencies may request logging in this Register. B. The Public Register of archaeological and historical monuments and zones, ruled by the Law of 1972 and administered by INAH; governmental agencies, INAH officials (such as archaeologists) and private individuals can request logging. As soon as a movable or immovable is discovered, it should be logged in this register. Under Mexican law, this Register does not confer any rights; its sole purpose is to record information. The presumption of ownership as ruled by previous laws, where the national State was considered as owner unless deemed otherwise by individuals, was disbanded. INAH is currently in the process of implementing an on-line program concerning “the methodology for the registration of archaeological movables” and the actualization of the national catalogue of collections. It should also be pointed out that archaeologists are reluctant to register new findings due to the fact that pillagers would be aware of the location of the country’s treasures by consulting the Register. C. The Public Register of artistic monuments and zones ruled by the the Law of 1972 and administered by INBA. Anyone is entitled to log artistic monuments or zones provided that they match the administrative criteria. The logging of cultural objects in these Registers does not bestow any authenticity. The Law of 1972 overcame the notion of inventory with the Registers. One of the main problems of protecting cultural heritage had been the lack of inventory, as intended by the 1970 UNESCO Convention. Needless to say, compulsory inventorying defies common sense because most cultural heritage is as yet undiscovered and therefore the founding of the ex lege ownership declaration was an act of cultural sovereignty. 3.3.2.5.7. Final Remarks The Mexican legal system does not have a specific cultural landscapes definition, as considered by the 1972 UNESCO Convention, in secondary federal Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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legislation. Nevertheless, Mexico has applied for several natural human heritage zones, the last being the Monarch Butterfly in the State of Michoacán and the State of Mexico in June 2008. However, in some local legislation, definitions can be found regarding natural wonder landscapes and areas of natural beauty. Under the Mexican Constitution the regulation of artistic and historic cultural heritage in certain areas is intended to be local. The local States, influenced to a certain degree by the 2003 and 2005 UNESCO Conventions, endeavor to rule over their own cultural heritage without encroaching on Federal jurisdiction. The State laws can be categorized in the following manner: A. Specific laws: Those laws that foster traditional towns, natural wonders and natural beauty sites. Most of the States have enforced these specific laws. B. Non specific laws: Mostly environmental laws. C. Laws protecting the indigenous culture both tangible and intangible, such as language, culture, habits and customs. These are only present in the five States where the indigenous population is most dense. To summarize, there are States that protect the traditional towns, natural wonders and natural beauty sites and hold a strong sentiment to decentralize the federal rights of control to the States and Counties. The presumption introduced by the Mexican legislation was the tool to conciliate private ownership and national property where archaeological immovables monuments were concerned. This was one of the great debates during the XXth century. Needless to say, for obvious reasons the vexatious effect has been that all archaeological monuments of less magnitude previously located in private ownership are now destined to remain silent and lost as heritage. The hegemonistic nature of the federal governmental declaration subsists; the federal bureaucratic officials retain the determination and scope of Mexican cultural heritage as its own cultural sovereign act. The national State has made herculean efforts in the region of the protection of archaeological Mexican heritage when declaring, in the first instance, a public control of movables located within archaeological immovable monuments and secondly that the movables were inalienable, not liable for seizure, not subject to statute of limitations and were now governed by the same legal system as archaeological immovable monuments. The national State achieved its goal and now recognizes a sole heritage regime which is under public dominion. Moreover, in Mexico nobody questions the national ownership of both archaeological movable and immovable monuments. Over time, the public Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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control has been consolidated and currently nobody would dare to claim possession of archaeological immovable monuments. 3.3.2.5.8. Epilogue Since 1897, an essential difference can be seen in the legal regimes of immovables and movables. From the outset, the purpose of the national State, where immovables pertains to the Mexican nation, is more than evident, but the assertion of legal movable heritage, inherent to the other side, remains, at the very least, a complex issue. XIXth century legislation reflected a notion of ownership, in keeping with the times, and if archaeological immovables were considered under public dominion, destined for common use, belonging to the national State and subject to the res extra commercium principle: the legality of privately owned heritage and its legitimacy remained untouchable. In the XXth century the national State71 managed to consolidate the notion of cultural heritage and the archaeological zones became its fleuron.72 As the XXIst century commences, the nationalist movements promoted by the national State have proved fruitful. Mexican archaeological monuments are considered an integral part of the Mexican identity and are a subject of national pride. It is possible to track the sequence of legislation developments regarding archaeological remains. First, a need to establish the foundation of the heritage of archaeological zones was considered. Next, the issues to be solved were the determination of the illegality of trade and the deterrence of the pillage of archaeological goods; by considering archaeological sites as being in federal ownership and depriving then from States or counties; these are the first symptoms of an assertion of the federal governmental authority on the subject and demonstrates how it was in charge of the custody and safeguarding of this heritage; finally the Law of 1972 strengthened the federal governmental authority with regards to the custody of pre-Columbian heritage. 3.3.3. The Legislation on Urban Development—Between Scylla and Charybdis The post-war era brought a considerable increase in international tourism, largely attributed to the technological advances in air transportation. The increased tourism and the attention that the archaeological zones were attracting abroad, propelled them into a new dimension from which emerged

71 See the Ley General de Bienes Nacionales [The General Law on National Heritage], hereinafter LBN, published in the Diario Oficial de la Federación [The Official Newspaper of the federal government] on 20 May 2004. 72 See articles 6 and 7 of the LBN.

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a phenomena of cultural tourism with great economic impact; the work carried out in these zones felt the effects of this new perspective; their quality was articulated with predominantly tourist purposes. There was a change in values and priorities which occurred in an almost imperceptible fashion, creating controversy among archaeologists that continues to this day. The protection and preservation of Cultural Tangible Heritage can not be fully understood, unless analyzed in situ. The Meso-American and the Central Highlands Andes regions are experiencing turbulent dynamisms of tourism and housing that have altered the cultural environment of archaeological, artistic and historic zones and monuments during recent times. These two phenomena belong to two different legal fields: one governed by cultural values where the preservation of human knowledge is privileged, and the other answers to free market principles and soil speculation. The philistine rhetoric of the free market does not seem to care at all about the preservation of human knowledge and cultural heritage. The crisis arises when they are juxtaposed, as seen in South East Mexico, where archaeological monuments, are endangered by the expansion of the housing and tourism industries. The General Constitution established a legal basis for the legislation of urban development and soil use73 that attempted to regulate the phenomena of urban development, linked with the merging of several human settlements that tended to form geographic, economic and social units. This text drew up a conservation act for buildings, monuments, public plazas and parks, and in general all that integrated the historic and cultural heritage of such agglomerations. The urban development ordinances of the Federal District (Mexico City) and the other States follow the same route; the federal ordinance determines that the purposes, uses and reserves of land, water and forest are inherent to public benefit and social interest that characterizes the legal nature of the property law in the terms of the Constitution and the Federal Code Civil.74 In regards to the purposes, uses and reserves of land, water and forest, the property law has to be exercised according to limitations and methods maintained by law. Currently, the Congress is discussing a change in cultural environments, especially because of the dynamic effects of tourist and housing development on the environments of archaeological zones. However, the legislation of urban development and soil uses already had rules in place for cultural preservation and has been recurrently ignored by the States, the Counties

73 The urban development and soil use in Mexico correlates with the Ley General de Asentamientos Humanos [The General Law of Human Settlements] in the general field, whereas each State and Mexico City, in accordance with this law, published their own legislation. 74 See article 830 of the Federal Code Civil that states: “The owner of a good can enjoy it and keep hold of it under the limitations and methods that determine the laws.”

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and the Federal District Government (Mexico City), overtly favoring tourism and housing developments. It goes without saying that economical transcendence has overshadowed cultural heritage protection. The statute project under discussion75 foresees that, in the envisaging of urban development programs and soil uses, Mexican cultural heritage is protected and conserved. To ensure its effectiveness, it has been stated that Mexican cultural agencies are obliged to participate in the drafting of local and regional urban plans; and it is forecast that transgressions of cultural legislation may be challenged in Mexican jurisdictions. Through an extremely novel method in the Mexican legal system, procedural legitimacy is bestowed not just upon Mexican cultural institutions, both federal and local, but on the civil society as a whole. This guarantees the effectiveness of the struggle for the protection and preservation of Mexican cultural heritage, since cultural agencies of an official nature may easily be trapped by various interests, largely in the political order. This also means a break in the hegemony of the bureaucratic elite regarding the determination of the “culturality” and with this, a vertical imposition of a cultural model upon society. It is finally the dawning of a new era for cultural liberty, which is in fear of being ambushed by the economical field players, who run the risk of jeopardizing this initiative. 3.3.3.1. The Safeguarding of Mexican Cultural Heritage The comprehension of the implementation of a safeguard policy on Mexican cultural heritage demands a detailed examination of the current trafficking of cultural heritage and their legal regulations, as well as an exposition of the protection over Mexican archaeological sites. 3.3.3.2. The Current Trafficking of Cultural Heritage and their Legal Regulations Before determining the extent of a safeguard on Mexican cultural heritage, it is advisable to specify the fundamental notions of the Mexican contractual system, whose analysis is comprised of purchase and sale agreements concerning Mexican cultural heritage and the traditional protection of this heritage through public dominion, a notion that undoubtedly has a great influence on the contractual regime and therefore must form part of the analysis. 3.3.3.2.1. The Fundamental Notions of the Mexican Contractual Regime The analysis referred to in the Federal Code Civil is the regulatory order applied throughout the Republic at a federal level. Its study is compulsory across the country and therefore is well-known nationwide.

75

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In Mexican legislation, the contract theory displays evident influence from the French Code Civil.76 The theme has been fully debated by the Mexican doctrine which encompassed the French notions as its own. In the development of the contract theory carried out by the Federal Code Civil, the contract brings about the effects of general law over other legal conventions.77 The contract has a considerable importance in the Federal Code Civil structure because it is based on this model that the general order of the contract is organized and constitutes the common denominator of other legal conventions.78 According to the Federal Code Civil structure,79 the reference to contracts are valid and are applicable to all manner of agreements and other legal conventions and acts, unless it is against their nature or they are submitted to specific legal provisions. When the legal conditions are satisfied, the contract is refined. Formation and voidance are both points of reference in contract analysis. This is understood as a mechanism composed of several diverse elements, but, as a mechanism written by private parties within the legal order, it has to be in accordance with the demands of the law. The core of our analysis into the purpose of the contract will be the purchase and sale agreement and its implications in the Law of 1972. 3.3.3.2.2. The Purchase and Sale Agreement Concerning Mexican Cultural Heritage The liberal doctrine of the XIXth century in the civil tradition countries, where Mexico is no exception, defined the right of ownership as an absolute, exclusive and perpetual right, whose characteristics were conceptualized both in the legal and philosophical fields.80 However, modern ethics put forward the relativism and functionalism of the ownership right to this liberal notion, where it is conceived as a right-function in which power is subordinate to duty and the exercise of the ownership cannot go beyond social interest. It is important to observe the manner in which the right of ownership regulates these characteristics in the purchase and sale agreement, especially when pertaining to cultural heritage.

76 It is clear that in the States there has been an enormous dispersion in this order in the latter part of the century, which has made its systemization incredibly complex. It is necessary to express that the drafting of these Codes Civils obeys fictional constructions that have very little relevance to Mexican contractual practices. 77 See article 1859 of the Federal Code Civil that states “. . . legal regulations on contracts will be applicable to all kind of agreements and other legal conventions, unless it is against their nature or they are submitted to special regulations of the law on the same point . . .”. 78 See CARBONNIER, Jean. Droit civil 4. Les Obligations [Civil Law 4. Contract Law]. Eighteenth Edition. Paris, France. PUF. 1990. p. 35. 79 See article 1859 of the Federal Code Civil. 80 See CARBONNIER, Jean. Flexible droit [Flexible Law]. First Edition. Paris, France. PUF. 1971. p. 180.

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The sale agreement constitutes the ad hoc mechanism of legal trade adopted by Mexican law. In the general context of legal acts, the purchase and sale agreement must satisfy the presupposed regulations of its category, particularly regarding its content; it is specifically in accordance with the content, and particularly the legal regime of the seller, that it is possible to analyze the Law of 1972. The primary outline of the content of the agreement developed by Mexican Law is found in the Federal Code Civil. According to our legal tradition, which originated in the XIXth century, the Federal Code Civil grants the national State the power to expropriate goods belonging to individuals when they are deemed important and representative of the national culture. But, it simultaneously imposes serious control limitations upon the owners of these goods because they cannot sell them, attach them or alter them in any way that might result in a loss of their characteristics without the acquiescence of the federal government. Notwithstanding these serious limitations imposed by the law on private ownership, individuals still have the absolute option of alienating them and therefore these goods are not excluded from trade. Thus the Mexican cultural heritage in its general system also comprises part of individual ownership. In order for a good to form part of the contractual content, it must first satisfy the following legal presuppositions: it is physically and legally possible. In regards to the physical possibility, the content must exist within its heritage or be susceptible to such existence. In reference to the legal possibility, it is advisable to analyze two elements: on the one hand, the content must be determined or determinable with respect to its genre and on the other hand, it must not be off the market, that is to say, it must not be considered as subject to the res extra commercium81 regime. This last statement is fundamental in understanding the legal implications of the text in the the Law of 1972. In terms of the Mexican legal system, the content of a contract is off the market for two fundamental reasons; because of its nature or due to an order of the law. Those contents declared by law as being unavailable for private ownership cannot be part of the contractual content. Consequently, a contract whose specified subject is goods that are off the market would be considered void due to its lack of a subject. The main legal effects of a withdrawal from the market are that goods cannot be alienated nor can they receive the benefit of statute of limitation in

81 In this matter, the key articles of the Federal Code Civil are drafted as follows: “Article 748. Goods that can be taken off the market due to their nature or by order of the law. Article 749. Goods that cannot be possessed by any individual exclusively are off the market due to their nature, and by order of the law, those declared by the same law as being unavailable for private ownership.”

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favor of any individual. Only the goods that are on the market are susceptible to an acquisition by statute of limitation. The contractual content must additionally be in agreement with the public order and good customs and it is specifically a challenge to public order that concludes the illegal character of the content. These analytical components are essential for the comprehension of the purchase and sale agreement, especially when its subject is cultural heritage. The ownership right implies a commitment by the seller to transfer it and therefore: it must exist within its heritage; be susceptible to existence; pertain to a determined or determinable genre and, lastly, it must be on the market. The ownership right depends on the legal regime to which the heritage of the seller is subject. The technique used by Mexican law in declaring the illegality of an ownership transfer of cultural heritage, among other archaeological monuments both immovable and movable, was to consider them inalienable and without statute of limitation; hence, it withdrew them from the market. This explains the specific contractual sanctions attributed to the Federal Code Civil consisting of the absolute or full voidance of the contract. The archaeological monuments, movable or immovable, cannot form part of the contractual content; their withdrawal from the market involves the legal impossibility of submitting them to the heritage regime for individuals or to be the content of a sale. The result of this being that any agreement having the transfer of ownership of archaeological monuments, movable or immovable, as its subject, is legally void as it lacks a subject in a technical sense, and the contractual voidance sanction will be then applied. According to the Federal Code Civil, this agreement would not cause any legal effect, nor could it be validated by confirmation or statute of limitation, and any interested party, e.g. cultural institutions, may invoke its voidance. Notwithstanding this technical argument, the Mexican Courts have denied demands to date on the grounds that third parties (society in general ) lack a procedural legitimacy to sue the contracting parties in order to void these contracts for breaching public order. Combined with the above, the transfer of ownership is considered illegal if it contravenes a law of public order, as is the case foreseen by the Law of 1972. The sanctions lie in the clarification of special offences regarding the resolution on archaeological movables. The Law of 1972 imposes a penalty of ten years imprisonment on any person found guilty of transferring the possession of any movable archaeological monument or trading with it. The same penalty applies to any person transporting, exhibiting or reproducing an archaeological monument without the mandatory authorization. This brief analysis of the legal system regarding the current status quo of the Mexican trafficking of cultural heritage allows one to understand the protection of archaeological sites. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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One of the most relevant issues is the limitation on the exercising of the possession of cultural heritage. The Supreme Court extended the limitation of dominion and included the prohibiting of the demolition or destruction of buildings considered as national heritage. These regulations of a prohibition and public interest nature cannot be contravened by private individuals and the agreements that breach those regulations are illegal and conse– quently void.82 Another significant regulation is related to the determination of the amount of compensation that any cultural heritage owner is forced to reimburse when the competent authorities perform maintenance work on their heritage. It is an expense imposed upon the owner by virtue of the “culturality” of their heritage. 3.3.3.2.3. The Mexican Notion of Public Dominion over Cultural Heritage It would be difficult to appreciate all the aspects of the Mexican notion of public dominion without first reflecting on the function of the right of ownership in the Mexican legal system. This would enable a more accurate description of the res extra commercium notion and establish its importance as a cohesive element in the Mexican public dominion system. In order to conclude the analysis, a reference will be made to the effects of this notion on Mexican Law. 3.3.3.2.3.1. The Function of the Right of Ownership The Code Civil is the legal ordinance regulating the transactions by which the economic purpose of individuals is carried out and the economic structure of the community is organized. It contains rules that govern the performance of attribution purposes, the exploitation of economic goods, their trafficking and the social cooperation that some individuals can carry out in favour of, or on behalf of other individuals.83 In an industrial and commercial economy, the trafficking of goods embodies the crux of the system. Every transmission implies previous situations and final results, it can consequently be observed as a status quo ante in this dynamic. Every society, in accordance with its political and cultural system, has to resolve the problem of the determination or allocation of economic goods; in the same manner, all society must favour the determination of the right of ownership towards certain individuals to the detriment of others; to

82 See CD Rom. Octava época. Segundo Tribunal Colegiado en Materia Civil del Tercer Circuito. [Eighth Edition. Second Collegiate Tribunal in Third Circuit in Private Matters]. Parte II. Tesis 16 [Part II. Thesis 16]. p. 608. 83 See DIEZ PICAZO, Luis. Fundamentos de derecho civil patrimonial [Grounds of Civil Heritage Law]. Volumen II [Volume II]. First Edition. Madrid. Tecnos. 1983. p. 31.

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individuals, to organizations, to the community in general or to the national State, and define the means employed for its practice. It is therefore necessary to establish the extent and limitations of this right regarding its quantative extension that counters the basic question: What is the amount of goods that one can own and exploit? Its qualitative length answers the question: What magnitude of powers can one exercise over the goods and what are the limitations of these powers? Finally, its temporary realm whose exposition is: What is the duration of the exercising of these powers? In the field of the right of ownership, society must decide the purpose of the goods and whether the exercising of the right of ownership should be left to the will of its holder, or if it must be regulated. The right of ownership is tied to economic policy and is a fundamental character for all social organization. The Federal Code Civil replicates the doctrine of the Mexican liberal economy that prevailed at the end of the XIXth century and conveys it in the following hypotheses: ownership is the right to enjoy and have the goods at ones disposal without further limitations than those determined by law; the owner has the claim right against the holder or possessor of the goods; nobody can be deprived of their ownership unless a decision is made by a competent authority for a reason of public benefit and through an indemnification. A conclusion is necessary: the Mexican economic system is based on free initiative and private ownership. The right of ownership is part of the Federal Code Civil that regulates the distribution, use and enjoyment of economic goods in accordance with the legal principles of the established constitutional system. In Mexican Law there is a close relation between, on the one hand, the right of ownership and the economic and social structures and, on the other hand, between the right of ownership and the general principles of the political organization. The convergence point is property law, and it is its profile and meaning, as well as its scope and configuration, that are defining factors in the right of ownership. There is no fixed type or temporary jus in rem. Instead there is a historic variability that correlates the typical jus in rem with the purposes of a social and economic order that it is expected to pursue. The jus in rem are determined according to the social configuration and legal policy. The perception of a right as a jus in rem depends on practical experiences, which are in turn linked with the protection that such a right endeavors to bestow. The ownership is much more than just a jus in rem: it is the prototype or paradigm of the jus in rem. According to the classic formulation of the right of ownership, it is defined as a “right to enjoy and have the goods at ones disposal in the most absolute manner.” The classic trilogy of the right Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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of ownership in the codified countries is divided into these attributes: jus utendi, jus fruendi and jus abutendi, that is to say; usus, fructus and abusus. According to leading legal literature, usus “specifies this type of employment as the drawing of personal profit (or pleasure), individually or for one’s family, from an unproductive or unexploited good”.84 Fructus dubs the enjoyment as being: “the right to receive the revenues from the ownership . . . whether through physical acts of enjoyment . . . or by legal acts”.85 Finally, abusus denotes the right of the owner to “dispose of the good, either by physical acts; consuming it . . . destroying it . . . or by legal acts, alienating it. In the strict sense of the term, the right of disposal is the right to alienate”.86 The analysis must now concentrate on one of the primary presumptions of ownership: the free disposition. Free disposition is the gravitational core in the individualist and liberal system of the heritage; it is, in this essential prerogative, that all the others are summarized. On the other hand, its impact depends on the status of the market. The Mexican Constitution provides that the ownership of lands and waters stationed within the limits of the national territory originally is that of the national State, which did have, and still has, the right to transfer the ownership to individuals and to establish it in private ownership. In Mexican Law, the right of ownership has been designed in affirmation with this principle. The Mexican Constitution also provides that the national State has, at all times, the right to impose the disciplines dictated by a public interest on private ownership. It is in this context that the Federal Code Civil develops the right of ownership and denotes how the owner of a good can have and enjoy it under the restrictions and disciplines dictated by law; that the good cannot be taken against the will of its owner, unless for the cause of public interest and in exchange for an indemnity. Lastly, the ownership of a good extends the right of the owner to the products of the good and all that is embodied or incorporated therein.87 3.3.3.2.3.2. The Regime of the Legality of Treasures One of the most important aspects in the analysis of property rights is the determination of the regime to which treasures are subject, especially where cultural heritage is concerned. In the XXth century, and under the Code Civil terms, the treasure answers to the same definition and respects the same principles as those contained

84

See CARBONNIER, Jean. Civil Law. Les Biens. Op. Cit. p. 141. Supra note 84. 86 Supra note 84. 87 See IBARROLA, Antonio de. Bienes y Sucesiones [Goods and Inheritance]. First Edition. Mexico. Editorial Porrúa. 1972. p. 228. 85

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in the Mexican legal tradition of the XIXth century. The treasure is a hidden or buried good (money, jewelry or other valuable goods), whose legitimate source is disregarded; it is the ownership of whomever discovers it. If the goods discovered hold an interest for the sciences or the arts, they will be appropriated to the national State, who, in consideration, will pay a fair price for these cultural goods. However, if the discovery site belongs to public dominion or to a person who is not the prospector, he will receive half of the fair price and the owner of the discovery site will receive the other half. Traditionally, treasure has been defined as res nullius and leading legal literature establishes that the word “treasure” addresses two extrinsic conditions: on the one hand, nobody can assert a right of ownership over a discovered good—it may have had an owner who hid or buried it, but lost it overtime—and on the other hand, the discovery has to be completely by chance. According to the Roman law,88 treasure is considered res nullius and of course it favors the interests of the State. The Mexican legislation, which is generally inclined towards individualism and to its most eminent expression, with respect for private ownership, has tried to conciliate the owner’s interests with those of the State, binding the latter to a compulsory acquisition and the payment of a fair price. In this context, the immovable owner’s consent is imperative: if a treasure is discovered through excavation work carried out without the owner’s consent, the treasure belongs entirely to the immovable’s owner. Under the Law of 1972, archaeological excavations are strictly forbidden and penal sanctions are to be imposed, except in the case of INAH or scientific institutions that may carry out excavation work with special permission from INAH. Everybody has the duty to inform INAH, within 24 hours, when an archaeological monument is discovered. In Mexican law, it is quite evident that the landowner cannot perform archaeological excavations on his own authority, but it is questionable if the federal government can carry out these types of excavations against the owner’s will. If the federal government has a claim right against the heritage owner that has an archaeological interest, such a claim is based on an expropriation for public benefit. The legal regime for archaeological immovables and movables would prevail over private property by means of a federal governmental declaration in order to ensure public dominion. This declaration would have an expropriation effect, the vexatious effect of which has been a blanket silence from the owners and the terminal loss of cultural heritage.

88

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3.3.3.2.3.3. The Res Extra Commercium Notion as a Cohesive Element of Mexican Public Dominion In general, archaeological monuments, both immovable and movable, are submitted to the res extra commercium regime, unless they were acquired before the Law of 1972 came into effect. State owned historic and artistic cultural objects are submitted to the res extra commercium regime when they are specified as such by the Law of 1972 or subject to a declaration issued by the federal government. The establishing of the concept and legal nature of the right of ownership that are subject to public control is based on two criteria: firstly, the nature of the good and, secondly, its affectation or purpose; the latter was prevalent in Mexican law: for some property, e.g. rivers and mines, public control is tacit, but there are other goods whose explicit affectation or purpose is necessary; such as in the case of cultural heritage. It is advisable to specify the idea of public control over the right of ownership. It refers to the attribution of a formal deed to the good, but implies a form of exploitation totally irreconcilable with the idea of private ownership. Public control presupposes a form of exploitation that is governed by general interest, belonging to the entire community, and left to bureaucratic controls which guarantee the priority of such interest.89 The res extra commercium notion represents the cohesive element in the system that is applicable to publicly controlled goods. The distinctive characteristics of this notion answer to a fundamental idea: the withdrawal of goods from the market and the consideration of them as unattainable for possession. The goods subject to public control are taken off the legal private market because they enjoy a principle of protection that allows the prevalence of general interest over third parties, as well as over negligence or bad faith by the administrators themselves. The exclusion of publicly controlled goods from the legal private market is governed by the idea of affectation, which implies that, while they are subject to public control, they are not on the legal market; it is this affectation which determines the validity of the resolution acts regarding those goods.90 In Mexican Law, the main characteristics of the legal regime of goods subject to public control are; inalienability, a non liability for seizure, a non statute of limitations and non-subjectability to any liens. The individuals and public institutions themselves may only acquire in use, enjoyment and exploitation of these goods, the rights regulated by the law and others dictated by the Legislative Branch. The tendency to resort to public control to possibly obtain a better degree of protection is the one most generalized. There are two opposing radical

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conceptions: the first proclaims the regime of private ownership and consequently advocates a particular jus fruendi, and the second, the notion of public ownership, states that jus fruendi needs to have a social function. These two principles, in keeping with the times, have alternately influenced the debate over the protection of cultural heritage and this largely explains the discrepancies seen in legislations on the subject. Currently, and on behalf of general interest, the national modern State eased the evident manner of the traditional prerogatives of the right of ownership and this decision reflects a wish to restrict the individualist aspect of the notion of ownership in the matter of cultural heritage. In the words of Lyndel V. Prott, we are assisting the emergence of the concept of “cultural property” as opposed to “cultural heritage”.91 The Federal Code Civil was the first legal text to introduce regulation of publicly controlled goods into Mexican law. Furthermore, now in its federal version, it currently makes up the supplementary legal regime to which the heritage of the federal government is subject. In effect, the Federal Code Civil92 states that, in the absence of special laws to this effect, ownership of public dominion must be regulated by the applicable resolutions contained in that legal ordinance. According to the Federal Code Civil, the General National Goods Act (LBN) is a special law93 and the outline proposed by the Federal Code Civil was described in further detail in the laws regarding the national heritage which were enacted afterwards. The Federal Code Civil distinguishes three types of goods that constitute public control: goods destined to common use, those destined to public service and the goods owned by the Mexican State.94 Regarding goods destined to common use, the primary concept is that they are inalienable and have no statute of limitation.95 For purposes of inalienability, they are withdrawn from the legal market, which makes them 91 See CARDUCCI, Guido. La restitution internationale des biens culturels et des objets d’art: Droit commun, Directive CEE, Conventions de l’Unesco et d’Unidroit [International restitution of cultural goods and objects of art: Common law, EEC directive, Unesco and Unidroit conventions]. First Edition. Paris, France. L.G.D.J. 1997. p. 51. 92 See article 766 of the Federal Code Civil that states: “Goods in the domain of public control will be enforced by the regulations of this Code when it is not determined by national laws.” 93 See article 5 of the LBN that states: “In the absence of express resolutions in this law or in other resolution from which they derive, it will be applied, in the conducive Federal Code Civil, the Federal Law of Administrative Procedures and the Federal Code of Civil Procedure.” 94 See article 767 of the Federal Code Civil that states: “Goods in the domain of public power are divided into goods for common use, goods destined for public service and the goods owned by the Mexican State.” 95 See article 768 of the Federal Code Civil that status: “Goods for common use are inalienable and have no statute of limitations. All inhabitants can take advantage of them under the restrictions laid down by the law, but for special advantages concession needs to be granted with the requirements prevented by the respective laws.”

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unattainable for private ownership and therefore makes it impossible to integrate them into individual heritage. The analysis brings about the decision that the nature of the statute of limitation on a good is a legal concept that has to be determined based on its inalienability.96 This is fundamental in the clarification of ownership because only the goods that can be alienated, and are therefore on the market, can be subject to a statute of limitation. Under the Federal Code Civil terms the acquisition by a statute of limitation or illegal seizure is a mechanism that allows the acquiring of goods over the lapsing of a certain time period and under the conditions stated by law. The LBN defines publicly controlled goods through numerous propositions but two fundamental ideas determine their principle: one refers to goods destined to common use and the other refers to goods assigned to public service. Mexican law allows its inhabitants to use and enjoy common use goods under no further restrictions than those established by the laws and bureaucratic regulations. The LBN determines that only the goods that are subject to the system of public control are inalienable, have no statute of limitation and cannot be subject to liens.97 The LBN provides that common use goods, movables and immovables considered as archaeological, historic or artistic monuments according to the Law of 1972 and its federal governmental declarations, are subject to public control. In spite of these general principles, the LBN resorts to the principles, and in this manner, specifies that murals, sculptures and any artistic work incorporated in, or permanently fixed to, the building subject to the system of public control, are also subject to administrative control; movables which are not usually replaceable due to their nature, such as documents and office files, manuscripts, incunabula, editions, books, documents, periodic publications, maps, drawings, brochures and important or rare engravings, as well as collections of these goods; ethnological and paleontological pieces; type specimens of flora and fauna; scientific or technical collections of arms, numismatics and stamps; archives, sound recordings, films, photographic, magnetic or computer files, magnetic tapes and any other object containing images or sound and artistic or historic museum pieces. The Law of 1972 prevents and penalizes the destruction of archaeological monuments and anyone committing this felony is obliged to repair any damage caused, which should be evaluated economically. The Supreme Court decided that the actuality of the goods being off the market did not in any 96 See FRAGA, Gabino. Derecho administrativo [Administrative Law]. First Edition. México. Editorial Porrúa. 1990. p. 181. 97 See article 13 of the LBN.

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way impede their accountability for an economic evaluation, since archaeology experts dedicated to such a task are able to assess them regardless of whether they are on the market or not.98 Recently, an intense debate has begun in the General Congress over the criminalization of the desecration of cultural heritage. The Supreme Court also considered that when the Law of 1972 came into effect it had, amongst others, the aim to conserve and restore archaeological monuments and treasures by virtue of the considerable importance that they hold for national cultural heritage. This law stated that, in certain cases, the Mexican Treasury must bear the cost of the work, and it wouldn’t make sense to maintain that the value of this work is wasted, solely because it is embodied in a monument. 3.3.3.2.3.4. The Effects of the Res Extra Commercium Notion in Mexican Law As a result of the Law of 1972, archaeological movable and immovable monuments are declared as being of national ownership, and therefore are inalienable, have no statute of limitation and cannot be subject to liens. Movables and immovables originating from civilizations prior to the establishment of the Hispanic culture in national territory, and also human remains, flora and fauna vestiges relating to these cultures are encompassed in this categorization. Due to the conferred nature of inalienability and a non statute of limitation, archaeological movables and immovables belong to public dominion.99 By means of a declaration, the Executive Branch states that any territory containing several archaeological immovables monuments or where the existence of such monuments is surmised, can be declared as an archaeological zone; by consequence, the territory in question will be subject to federal jurisdiction. The technical distinction between goods that are off the market and inalienable goods seems equally important. These terms are not synonymous in Mexican law. The inalienability of a good incorporates a withdrawal from the legal private market in all of its relations and its inability to form part of individual heritage; even when some legal considerations ensure the alienation of certain goods belonging to individual heritage.100

98

See CD Rom. Séptima época. Primera Sala [Seventh Edition. First Bench]. Semanario Judicial de la Federación [Weekly Judicial of the Federal government]. Tomo [Volume] 87. Segunda parte [Second Section]. p. 60. 99 See article 6 of the LBN. 100 See BORJA SORIANO, Manuel. Teoría general de las obligaciones [General Theory of Contract Law]. Fifth Edition. México. Editorial Porrúa. 1996. p. 98. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The effects of the res extra commercium notion are ordained by Mexican law as personal effects and real effects.101 The personal effect of a good’s inalienability is closely linked to the ownership of the good. If the good is subject to the system of public control, the inalienability is absolute; if the good belongs to a public organization, with the power of alienation, such an organization is obliged to request acquiescence from a public agency. In this way it attempts to assuage the traditional aim, which essentially consists of preventing the loss and at the same time guaranteeing the validity of the good in the public dominion. On the other hand, the real effect is the non statute of limitation that substantially consists of preventing the loss of a good in favor of a good will third party. Finally, an attempt is made to extract the good from the appropriate claim under the Code Civil terms, and to preserve its affectation to public dominion. 4. The Mexican Institutions Charged with the Protection of Mexican Archaeological Sites After the sun set on the Mexican revolution and during the pacification process that followed, one of the main functions of the national State, according to nationalistic principles, was to undertake the safeguarding of cultural heritage. The initial task was to assess the total damage caused to archaeological heritage during the armed struggle and later in the legal field of the new constitutional legislation. It aimed to determine what conflicts might be generated by private ownership of land containing archaeological vestiges; legislation regarding the protection of archaeological sites pertaining to cultural heritage was determined by impending hazards. Mexico in the post-revolutionary era created two fundamental institutions for the defense of cultural heritage: INAH and INBA. One would have to include the National Library, the National Newspaper Library and the General National Archive102 assigned for historic reasons, the first two to the “National Autonomous University of Mexico” and the last to the Ministry of the Interior.

101

See CARDUCCI, Guido. Op. Cit. p. 61. The General National Archive is the successor of the Ministry of the Viceroyalty and it is the most important one due to its size and the contents of the documents. See GARCIA AYLUARDE, Clara. “Historia del papel: los Archivos de México” [History of paper: The Mexican Archives], in FLORESCANO, ENRIQUE (ed.). El Patrimonio Nacional de México [Mexican National Heritage]. Consejo Nacional para la Cultura y las Artes [National Agency of Culture and Arts]. Fondo de Cultura Económica. México. 1997. p. 257. 102

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INAH was charged with carrying out these fundamental objectives. It must be noted that INAH does not deal exclusively with archaeology; it was founded with the concept of integrating archaeology with anthropology. The rising acceptance of the new academic and political theories at the beginning of the XXth century would turn into the revolutionary ideological trend, exerting a decisive influence over the concept and implementation of official projects relating to the protection, conservation, research, administration and publicity of archaeological zones. The INAH organization was sufficient and even revolutionary until the end of the Second World War. After this period, the transformations that the country underwent due to unusual industrial development, accelerated urbanization, electrification and irrigation work, meant that the institute was obligated to modernize its action. One of the initial consequences of this movement towards change was the emergence of an archaeology referred to as “salvation”, dedicated to dams, streets, buildings, roads, new urban zones and work related to underground matters such as the metro and the sewage system in Mexico City. These issues were of an urgent nature for Mexican archaeology and demanded special techniques. Very soon, the decentralization of this substantial effort in safeguarding and research was determined and assigned to specialized units in the various States; despite the fact that the demand had been subject to analysis and discussions throughout the preparation of the Law of 1972, it finally conferred all the authority on the subject to INAH; this situation continues even today, even though, in some States, there has been an emergence of groups dedicated to archaeology. It was highly predictable that, confronted with new theories and archaeological techniques, Mexican archaeology would undergo extensive revision of its methods, projects and results. One should add at this point that INAH, as an official institution, directly depends on the Federal government, who imposes a public entity measure; and therefore a notable political guise. This could favor INAH regarding the allocation of resources, but on the contrary, its archaeological action was subservient to official objectives and methods, which did not always favor a conducive development. An example that illustrates this best is the famous discussion regarding the authenticity of the alleged remains of Cuauhtémoc, the last Aztec Emperor, discovered in Ixcateopan or Ichcateopan in Guerrero, a Southern State where political interest clearly opposed scientific rigor. On two occasions the government applied pressure on archaeologists to validate the authenticity of the remains; the archaeologists defended their professional independence resolutely and, for the sake of the country, successfully.103 103

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The initial purpose of INAH was to recover the expressions of several ethnic groups in order to propose a new society model with respect to regional and popular cultural traditions that had been set aside by the liberal cultural project. In 1948, anthropologists who carried out direct work within the indigenous communities, split from INAH and created the National Indigenous Institute, now extinct, and replaced it with the National Agency for the Development of Indigenous Populations.104 On their part, with a few rare exceptions, the specialists of INAH became increasingly distant from the social problems affecting the communities during the industrial development period and dismissed the cultural project that had been the motivation for creating the Institute and transformed it into a government body dedicated to the administration of cultural heritage. Nevertheless, and on account of the importance of the functions undertaken by INAH in the national cultural project, it is worth mentioning that throughout the institute’s existence, its personnel accrued a considerable amount of technical knowledge. During its important field work, it carried out the essential task of inventorying cultural heritage and initiating federal governmental declarations of monuments and typical zones. It restored and consolidated numerous historic buildings in national territory and the abundance of documentation gathered during these tasks formed an invaluable collection for researchers. INAH is in charge of scientific researches associated with anthropology and the history of the country’s population, the conservation and restoration of archaeological, historic and paleontological cultural heritage. It is

Cuauhtémoc, the last Aztec Emperor, as well as various tools belonging to him. A first commission was designated whose statement was adverse to the claims of Dr. Guzman. The controversy that was created is without precedents. It resorted to a new Commission made up of prestigious Mexican intellectuals like—Alfonso Caso, Pablo Martínez del Río and Julio Jímenez Rueda among others. The opinion was equally adverse; the national press stigmatized the commission members. In short, the members of this second commission categorically maintained that the found remains were that of at least five skeletons, including women and children. See VÁZQUEZ ZORAIDA, Josefina. Nacionalismo y Educación en México [Nationalism and education in Mexico]. Second Edition. México. Centro de Estudios Históricos. El Colegio de México. Nueva Serie. 2000. p. 247. See also LITVAK, Jaime and LÓPEZ VARELA, Sandra L. Op. Cit. p. 194. 104 See the Decree published in the Diario Oficial de la Federación [Official Newspaper of the federal government] on 3 May 2003 that states: “. . . article 2. The agency intends to orient, coordinate, promote, support, foment, pursue and evaluate the programs, projects, strategies and criminal actions for the integral and viable development of towns and indigenous communities in accordance with article 2 of the Political Constitution of the United States of Mexico, so it will have the following functions: . . . To aid with the exercising of free determination and autonomy of towns and indigenous communities within the framework of constitutional resolutions . . . article 3. The Agency will govern its actions by the following principles . . . To observe the multiethnic and multicultural nature of the Nation . . . To promote the non-discrimination and social exclusion and the construction of a society which includes plural, tolerance and is respectful of the differences and intercultural talks; . . . To include this approach in the policies, programs and actions of the Federal Public Administration in order to promote participation, respect, equality and opportunities for indigenous women . . .”. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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also in charge of identifying, searching, protecting and restoring monuments and archaeological zones as well as the movables associated with them. It is responsible for the ad hoc Public Register of Archaeological and Historic Zones and Monuments and paleontological remains.105 For its part, INBA has, amongst other functions, the nurturing and initiating of research into, and the creation of, fine arts, in the fields of music, visual arts, drama and dance. It also participates in the artistic and literary education of establishments dedicated to pre-school, primary and secondary teaching. Finally, it is in charge of fostering, organizing and promoting the fine arts, including literature, using all means possible and guiding them towards the public in general and specifically towards the working class and the school population.106 The national State persists in its bureaucratic cultural development policy. In order to: foster the cultural expression of the various regions and all social sectors; promote a diasporas of the culture as wide as possible in all sectors of the Mexican population, and preserve and enrich national historical and cultural heritage; the federal government founded the National Council for Culture and the Arts, known as CONACULTA.107 This Board is in charge of promoting and dispersing culture and arts as well as coordinating public institutions such as INAH and INBA who hold responsibilities in this area. It endeavors to deal with artistic education, public libraries, museums, art exhibitions and other representations of cultural interest, as well as developing relations of cultural and artistic order between Mexico and abroad. Needless to say, the aims of CONACULTA are as broad as the ambitions of its bureaucrats. To sum up, in the crepuscule of the XXth century, the Mexican legislation successfully consolidated the notion of cultural heritage which gravitates around Pre-Columbian heritage. The XXth century thereby certified the legislative efforts that surpassed legal ambiguities, and attempted to reconcile the notion of cultural heritage with the constitutional order and the private property regime.

105

See article 2 of the law of INAH published on 1 January 1947. Supra note 105. 107 See the Diario Oficial de la Federación [Official Newspaper of the federal government] of 12 July 1988. 106

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5. The Fatigue of the Nationalistic Cultural Heritage Model, The Emergence of the Multilateral Model 5.1. Introduction At the dawn of the XXth century, Mexico transcended from monoculturalism into constitutional multiculturalism. In Mexico, as in the rest of Latin America, this multiculturalism has been specifically focused on the field of indigenous rights, which has generated a tremendous variety of amendments to constitutional rules. This transition was not in any way a fortuitous occurrence; in fact, this debate has been an underlying feature throughout the entire Mexican XXth century108 but it began to intensify in the latter part of the XXth century. This was attributed to the emergence of a series of anthropologists109 who forcibly challenged the indigenous policies of the Mexican Government.110 Mexico ratified Agreement 169 of the International Labor Organization, and sealed its approval at the beginning of the last decade of the XXth century.111 Over the same period, one can identify a movement towards constitutional transformation in the Latin American countries in recognition of the rights of the indigenous people.112 In Mexico, this constitutional

108 See ORDÓÑEZ MAZARIEGOS, Carlos Salvador. Tradición y Modernidad: Encuentros y Desencuentros de los Pueblos Indios frente al indigenismo y los procesos de globalización [Tradition and Modernity: Common and Uncommon Ground of Indian People in the face of indigenity and the globalization process], in ORDÓÑEZ CIFUENTES, José Emilio Rolando. (ed.). Pueblos indígenas y derechos étnicos [Indigenous peoples and ethnic rights] VII Jornadas Lascasianas. Instituto de Investigaciones Jurídicas [Institute of Legal Research]. México. UNAM. 1999. p. 152. 109 See VILLORO, Luis. Los grandes momentos del indigenismo en México [The great moments of indigeinity in Mexico]. México. Centro de Investigaciones Superiores del INAH. 1979; AGUIRRE BELTRÁN, Gonzalo. El proceso de aculturación y el cambio sociocultural en México [The process of acculturation and the sociocultural change in Mexico]. First Edition. México. Editorial Comunidad Instituto de Ciencias Sociales. Universidad Iberoamericana. 1970.; BONFIL BATALLA, Guillermo. México profundo: una civilización negada [México indepth: a denied civilization]. México. CONACULTA and Grijalbo. 1990.; STAVENHAGEN, Rodolfo. “Los movimientos étnicos indígenas del Estado nacional en América Latina” [The ethnic movements indigenous to the State in Latin America], in Civilización: configuraciones de la diversidad [Civilization: configurations of diversity]. México. UAM. 1984. 110 Among others, it is possible to mention: PABLO GONZÁLEZ CASANOVA, RODOLFO STAVENHAGEN, RICARDO POZAS, GUILLERMO BONFIL BATALLA, ARTURO WARMAN, MARGARITA NOLASCO, ENRIQUE VALENCIA, MERCEDES OLIVERA and SALOMÓN NAHMAD. 111 Agreement 169 obtained its approval at the International Labor Organisation, session 76, 27 June 1989. According to article 38 of the Agreement the rules of the Agreement fall into two categories: agreement and recommendations. The agreements are mandatory rules for the ratifying countries and it becomes national law after the ratification; the recommendations have no obligatory force and constitute guidance for the application of the agreements. 112 See VALADÉS, Diego. Constitución y derechos indígenas [Constitution and indigenous rights]. Instituto de Investigaciones Jurídicas [Institute of Legal Research]. First Edition. México. UNAM. 2002.

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movement had a different cadence; the main catalyst undoubtedly being the indigenous movement supported by the Ejército Zapatista de Liberación National (EZLN, Zapatista Army of National Liberation) in South-East Mexico, ironically just as NAFTA was coming into force.113 This movement ended with the so called San Andrés Larrainzar Peace Treaties, signed in South East Mexico; indigenous groups and communities, who previously played a major role, seemed to have entered into in impasse. 5.2. Antecedents Mexico is a heterogeneous country where several pre-Columbian cultures co-habited following the Spanish conquest, a syncretic culture flourished and resisted the Holy Inquisition Tribunal and the iron-fisted regime imposed by Spain. At the dawn of Independence, the formation of an incipient Mexican culture suffered many setbacks. Nevertheless, the enormous cultural diversity of the country was deliberately evaded and, from the onset, favored the creation of a unique and hegemonic “Mexican” culture, which suggested that no evaluation of its multicultural nature had ever taken place.114 The Indigenous policy adopted by the national State only entertained one valid premise from the outset: the integration of Indigenous people into Mexican society. A unique “Mexican” identity was imposed upon all the population in a clear detriment to the individual identities of the different ethnic groups that cohabitated in our territory. National education was generally focused on the knowledge, values and conduct typical of all Mexicans with a disregard for their Indigenous cultures. In short, a unique national culture was imposed vertically from on high.115 Although national identity was constructed on biological interbreeding and cultural and legal syncretism, the heterogeneity of the territory, the various forms of occupation and appropriation of the land, regional and rural urban differences, the varied migration trends, the diverse influence of bordering lands in the North and South, contributed to a simultaneous shaping of the differentiation and hybridization processes all across national territory.116 This ensures the existence of several cultural heritages in Mexico

113 El Tratado de libre comercio de América del Norte [The North American Free Trade Agreement] came into force on 1 January 1994. 114 See the difference between the notion of polyculturalism and multiculturalism in FENET, Alain. et al. Le droit et les minorités: Analices et textes [The law and the Minorities: Analysis and texts]. First Edition. Brussels. Bruylant. 2000. p. 386. 115 See SÁNCHEZ CORDERO DÁVILA, Jorge. Op. Cit. p. 4. 116 See STAVENHAGEN, Rodolfo and CARRASCO, Tania. “La diversidad étnica y cultural” [Ethnic and cultural diversity], in FLORESCANO, ENRIQUE (ed.). El Patrimonio Nacional de México [Mexican National Heritage]. Consejo Nacional para la Cultura y las Artes [National Agency of Culture and Arts]. Fondo de Cultura Económica. México. 1997. p. 277.

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which are comprised of vast collections of tangible and intangible cultural objects which have value and coherence within an appropriate system pertaining to the various social groups that constitute Mexican society and who possess a distinctive culture.117 5.3. The Constitutional Transition. The Intangible Cultural Heritage as a Model In 1992 the first constitutional amendment that recognized Mexico’s polycultural nature, initially sustained by its Indigenous peoples was approved.118 However, in 2001 as we entered the new century, there was a complete amendment of the matter in the General Constitution. In reference to the last constitutional amendments, one can identify three basic new principles with a plural vocation in the Constitution: the principle of legal pluralism, political pluralism and cultural pluralism; the latter, which is relevant to this analysis, maintains that the existing population in Mexican territory is culturally diverse; the principle outcome of an acceptance of this principle is an admission to an existence of several national identities in Mexican territory. There was therefore an abandonment of the hegemonic cultural model119 which dominated throughout the majority of the Mexican XXth century and was rooted in a homogeneous cultural principle. It is clearly apparent that, despite the last constitutional amendment, the Mexican debate is far from over. In the Latin American region, the problem is no less complex.120 There are unresolved problems generating regulatory

117 See BONFIL BATALLA, Guillermo. “Nuestro patrimonio cultural: un laberinto de significados” [Our cultural heritage: A labyrinth of meanings], in FLORESCANO, ENRIQUE (ed.). El Patrimonio Nacional de México [Mexican National Heritage]. Consejo Nacional para la Cultura y las Artes [National Agency of Culture and Arts]. Fondo de Cultura Económica. México. 1997. p. 47. 118 See VALADÉS, Diego. “Los Derechos de los Indígenas y la Renovación Constitucional en México” [Indigenous Rights and Mexican Constitutional Amendments], in GONZÁLEZ GALVÁN, Jorge Alberto (ed.). Constitución y derechos indígenas [Constitution and indigenous rights]. Serie Doctrina Jurídica [Legal Doctrine Series]. Núm. 92. Instituto de Investigaciones Jurídicas [Institute of Legal Research]. México. UNAM. 2002. p. 16. 119 See GONZÁLEZ GALVÁN, Jorge Alberto. Las decisiones políticas fundamentales en materia indígena: El Estado Pluricultural de Derecho en México [The fundamental political decision on indigenous issues: The multicultural state of law in Mexico]. Serie Doctrina Jurídica [Legal Doctrine Series]. Núm. 92. Instituto de Investigaciones Jurídicas [Institute of Legal Research]. México. UNAM. 2002. 120 See article 329 of the Constitution of Colombia; article 124 of the Venezuelan Constitution; article 123 of the Panamanian Constitution; Article 20 of the Brazilian Constitution and article 181 of the Nicaraguan Constitution. See CARBONELL, Miguel. “La Constitucionalización de los derechos indígenas en América Latina: Una Aproximación teórica” [The Constitutionalization of indigenous rights in Latin America: A Theoretical Approach.], in Boletín Mexicano de Derecho Comparado [Gazette of Mexican Comparative Law] 108. New Series. Year XXXVI, Number 108. September-December 2003. p. 844; VALADÉS, Diego. Los Derechos Indígenas y la Renovación Constitucional en México [Indigenous Rights and Mexican Constitutional Amendment], in GONZÁLEZ GALVÁN, Jorge Alberto (ed.). Constitución y

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and social tensions; one of which is the existing tension between the rights of the individual and the collective rights of the community; this conflict originated with a difficulty in establishing the subject or holder of the cultural rights, now recognized by the General Constitution. The jurisdiction, therefore, has the important function of interpretation, since it must determine if the subject or holder of the cultural rights is the individual, the community or the indigenous peoples. Along with this tension there are others of equal importance: the harmonization of national right and indigenous uses and customs and between the autonomy rights and the social rights recognized in the general constitutional regime. It is necessary to clarify that the Mexican legal system has deviated in its attempt to reduce the identity of its indigenous groups and communities down to the characteristics of their uses, customs and genuine way of life;121 with it, the Mexican lawmaker has intended to eliminate a false antinomy that had been upheld when two different cultures interacted. This antinomy assures that the only way to preserve the identity of an ethnic group or community is by conserving the characteristics that distinguish them as being “peculiar”; otherwise, and here lies the antinomy, the identity of the group or community would be jeopardized. This antinomy does no more than fatally sustain a false dilemma: either to conserve the minority cultures in a state of ethnographic curiosity or to attempt to promote their progress against their identity.122 The respect of cultural identity does not reside in the preservation of their distinguishing points, rather in a strengthening of their capacity for decision and change. Finally, the Mexican legislation intends to clearly differentiate between a “culture” and the specific ways in which life and ideological systems develop within a culture.123 5.4. Jurisdictional Activity The first indications of the interpretation of the new constitutional text by the Supreme Court can be identified in some recent resolutions.124 The Supreme Court maintains that the State legislative bodies can extend indigenous cul-

derechos indígenas [Constitution and indigenous rights]. Serie Doctrina Jurídica [Legal Doctrine Series]. Num. 92. Instituto de Investigaciones Jurídicas [Institute of Legal Research]. México. UNAM. 2002. p. 16. 121 See VILLORO, Luis. Sobre relativismo cultural y universalismo ético: En torno a ideas de Ernesto Garzón Valdés [On cultural relativism and ethical universalism: Around the ideas of Ernesto Garzón Valdés], in CARBONELL, Miguel, CRUZ PARCERO, Juan and VÁZQUEZ, Rodolfo (eds.). Derechos sociales y derechos de las minorías [Social rights and minority rights]. Serie Doctrina Jurídica. [Legal Doctrine Serie]. Núm. 28. Instituto de Investigaciones Jurídicas [Institute of Legal Research]. México. UNAM. 2002. p. 179. 122 See VILLORO, Luis. Op. Cit. p. 180. 123 See VILLORO, Luis. Op. Cit. p. 178. 124 It was to be expected that in electoral matters, resolutions of the jurisdiction were more abundant, especially with regards to uses and customs. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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tural rights and their institutions which reflect their own characteristics in order to better convey the situations and aspirations of the indigenous people themselves who live in their territories. The General Constitution only provides minimum cultural rights.125 The States are obliged to legally regulate the acknowledgment of indigenous populations and communities; they must nevertheless abide by the definitions and general criteria established on the subject in the General Constitution, which can be summarized as follows: the legal structure of the characteristics of free determination and autonomy best expresses the situations and aspirations of the indigenous people in each State; the basic principle of unity and national indivisibility and that autonomy is exercised within the constitutional framework. The Supreme Court adds that the cultural rights which are established, as much in favor of the indigenous populations and communities as they are for the indigenous individual, should be considered as minimum security by the States in the regulation and legal organization that fulfils the constitutions themselves and the respective laws. One of the leading consequences that clearly results is; cultural rights in favor of indigenous people, which may be granted by the States prior to the enactment of constitutional reform126 can not be considered to be limited by the new recognized cultural rights, unless the former were contrary to the basic constitutional principle of unity and national indivisibility.127 An epitome of the constitutional amendment coming into force has been that the indigenous people are now able to employ their native language in the court room, with the judge being obliged to communicate via a translator, rather then vice versa, as had been the case previously. Finally it is worth mentioning that in 2006 the first constitutional protection resolution “amparo” (habeas corpus injunction) to be promoted in an indigenous language, was granted.128 On the American continent, the Inter-American Civil Rights Court has issued several resolutions reaffirming indigenous cultural rights.129 The

125 See Novena época. Instancia: Segunda Sala. Fuente. [Ninth Edition. Instance: Second Bench. Source]. Semanario Judicial de la Federación y su Gaceta [Weekly Judicial Magazine of the Federal government and its Newspaper]. Tomo [Volume] XVI. November 2002. Tesis [Thesis]: 2ª CXL/2002. p. 446. Materia: Constitucional Tesis aislada [Subject: Constitutional Thesis isolated]. 126 The Constitutional amendment came into force on 15 August, 2001. 127 Amparo en revisión 123/2002. Comunidad indígena de Zirahuén, Municipio de Salvador Escalante, Michoacán [“Amparo” in revision 123/2002. Indigenous community of Zirahuén, Salvador Escalante county, Michoacán State]. 128 Segundo Tribunal Unitario del XIII Circuito [Second United Court of the XIII Circuit]. The “amparo” was written up in the chinanteca language. 129 See GARCÍA RAMÍREZ, Sergio. Los Indígenas en la Jurisprudencia de la Corte Interamericana de Derechos Humanos [The indigenous in the jurisprudence of the Inter-American Court of Human Rights], in ORDÓÑEZ CIFUENTES, José Emilio Rolando (ed.). Migración: pueblos indígenas y afroamericanos [Migration: indigenous peoples and African Americans].

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Inter-American Civil Rights Court resolved130 that the international instruments concerning the life, culture and indigenous rights, convey an explicit recognition of the indigenous legal institutions; each people in accordance with their culture, interests, aspirations, customs, characteristics and beliefs can establish a true version of the use and enjoyment of the goods. The relevance of this Court precedent is the recognition of community rights and the establishment of an “intimate and indissoluble” link between the rights of different natures, individual and collective, whose relevance depends on the positive guidance of individuals who form part of the indigenous ethnic groups.131 The Inter-American Civil Rights Court upheld the existence of a convergence of civil, economic, social and cultural rights. The Inter-American Civil Rights Court132 also determined that the legitimacy of the possession of rights over traditionally occupied territory is totally independent from any class of evidentiary document that common legislation can provide; the Court recognized the sui generis nature of the link that the members of the community have with the territory that belongs to them and the intangibility of their community culture where it is recognized that members of a group are entitled to a cultural identity.133 5.5. The Deficiencies Among many other deficiencies of the Mexican legislation on the cultural heritage, one can mention the following. There are currently 132 museums in the country of which the federal government takes charge, which do not include the Museums of Universities, States and Counties. Of these 132 museums, 17 museums are located in Mexico City and come under INBA. The remaining 105 museums are under the control of the INAH. Within these 105 museums, 5 museums are national (named after the legal instrument who created them, or due to their history; the importance of their collections and the theme of their heritage), 2 museums are metropolitan (located in Mexico City), 22 museums are regional (located in the States Capitals, covering archaeological, historic or artistic aspects of the State where they are located), 44 museums are local (centered around a theme or particular source), 29 museums are onsite (exhibiting collections of goods from the site) and 3 museums are community (where

XV Jornadas Lascasianas Internacionales. Serie Doctrina Jurídica [Legal Doctrine Serie]. Núm. 389. Instituto de Investigaciones Jurídicas [Institute of Legal Research]. México. UNAM. 2007. p. 35. 130 See Mayagama Community (Sumo) Awas Tingni Case. 131 See GARCÍA RAMÍREZ, Sergio. Op. Cit. p. 37. 132 See Moiwana community case; see also theYakye Axa community case and the Yatama case. 133 See GARCÍA RAMÍREZ, Sergio. Op. Cit. p. 39. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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collections are exhibited of ecological, historic and artistic themes from the heritage that is protected by the communities themselves).134 Unfortunately there is no museum legislation regulating the intrinsic aspects such as policies of fund acquisitions, general methodology for cataloguing pieces, the need to train personnel working in museums, the adaptation of monumental buildings in museums, and many more. The Law of 1972 fails to make any reference; the only legislation currently in effect is dominated by a concept whose content is too general and far from satisfies the needs of Mexican museums. The cultural bibliography, generated by humanities, anthropology and sociology over the last few decades almost exclusively concerned itself with identities, historical heritage and the national State. However, at the onset of the XXIst century, one would have to incorporate new elements: cultural processes are examined in relation to investments, art markets and consumption. The creativity of artists and writers, or la raison d’être of the museums, media and other institutions, are analyzed depending on international exchanges and globalization.135 In Mexico, public policies are required to adequately protect the copyright, promotion and exchange of goods and messages and, of course, to control the oligopolistic trends in the radio and television industry apparent in the Mexican market. The Mexican society must reaffirm its inclusive nature and adopt governing frameworks and technical solutions that respond to the needs of our society, and try to seek a difficult balance which opposes simple lucrative marketing. The cultural industries must not be organized exclusively as business, but as a service. It is symptomatic that in Mexico they are starting to conduct primary studies on the economic value of cultural production.136 It is safe to say that the Mexican Museums foster the study and diffusion of Mexican Cultural Heritage. However it should be pointed out that the great centralization of the cultural public policy mainly concerning archaeological monuments, sustains a disrespect of communities as seen in the case of Tlaloc, a rain god, who played an animist role in a Mexican community. His monolith was forcibly taken by the federal government for adornment purposes at the entrance of the National Museum of Anthropology and History, in Mexico City. 134 See BECERRIL MIRÓ, José Ernesto. El derecho del Patrimonio Histórico Artístico en México [The Law of Mexican Historical Artistic Heritage]. México. Editorial Porrúa. 2003. p. 238. 135 See GARCÍA CANCLINI, Néstor and PIEDRAS FERIA, Ernesto. Las industrias culturales y el desarrollo de México [Cultural industries and the development of Mexico]. México. Siglo XXI Editores. 2006. p. 9. 136 See PIEDRAS, Ernesto. ¿Cuánto vale la cultura? Contribución económica de las industrias protegidas por el derecho de autor en México [What is culture worth? Economic contribution of industries protected by the author’s right in Mexico]. México. CONACULTA, CANIEM, SOGEM y SACM. 2004.

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It has been confirmed137 that there is a consistency in cultural clusters that originate from religion and its colonial past, with a marked relevance in the Latin America region. But it is essential to contrast them with other facts that exist in the international field in order to stress other cultural references. One of the features that tends to be overlooked is the consequence of the communist dominion that existed for a large portion of the XXth century and governed a third of the worldwide population. Cuba, on the American continent is still one of its remaining traces. Communism left a clear imprint of cultural values on those who lived under this system. One could mention, for instance, the People’s Republic of China that, although located in the Confucian cultural zone, still holds strong elements from the Communist regime. In contrast to countries in our Latin American region, the most secular countries worldwide are Japan, China, Germany, Sweden and Norway. This secularization can be attributed to the relatively secularbureaucratic Confucian tradition; the secularizing impact of communism or the secularizing impact of affluent post-industrial societies when accompanied by an advanced welfare national state.138 This warrants accuracy in our region: although there is an actual abandonment of the churches, these values persist as part of the national cultural heritage in our region, and not through the direct influence of the religious institutions. The social economic infrastructure has undoubtedly had a great impact on human values, but today, the cultural factors undertake a paramount importance in shaping the societal level characteristics of our societies. Mexico belongs to the Latin American environment, with a strong nationalist component and in the realm of the Catholic religion traditions. This rationalizes its history and cultural codes. Cultural policy must be placed in a context where cultural heritage has as a fundamental objective, not only the rescuing of “authentic” heritage of a society, but also those that are culturally significant. Both the heritage and the processes involved in its rescue have the same relevance, since the latter represent a means of understanding and living in the world, and life, in our own social groups. The research, restoration and promotion of

137

See INGLEHART, Ronald, BASAÑEZ, Miguel, DIÉZ-MEDRANO, Jaime, HALMAN, Loek and LUIJKSX, Ruud. Human Beliefs and Values: a cross-cultural sourcebook based on the 1999–2002 values survey. México. Siglo XXI Editores. 2004. p. 15. 138 See INGLEHART, Ronald, BASAÑEZ, Miguel, DIÉZ-MEDRANO, Jaime, HALMAN, Loek and LUIJKSX, Ruud. Op. Cit. p. 16. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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cultural heritage is not aimed at pursuing its authenticity or restoring it, but at reconstructing historic plausibility. The heritage policy must try to make a relation between goods, trades and the uses and customs which are understandable in order for them to clarify what they mean to those of us who today witness, remember and call them up.139

139 See GARCIA CANCLINI, Néstor. “El patrimonio cultural de México y la construcción imaginaria de lo nacional” [Mexican National Cultural Heritage and the imaginary construction of the national], in FLORESCANO, ENRIQUE (ed.). El Patrimonio Nacional de México [Mexican National Heritage]. Consejo Nacional para la Cultura y las Artes [National Agency of Culture and Arts]. Fondo de Cultura Económica. México. 1997. p. 85.

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NETHERLANDS Katja Lubina* 1. Introduction and Key Facts of the Legal System of the Netherlands 2. General Issues ........................................................................................... 2.1. The Categories of Cultural Heritage under Dutch Law ............ 2.2. Overview of the Legal Instruments Most Relevant for the Protection of Cultural Heritage in the Netherlands .................. 2.2.1. International Standard-setting Instruments to which the Netherlands is a State Party ......................................... 2.2.1.1. Protection of Cultural Heritage in Times of War ........................................................................... 2.2.1.2. Protection of Cultural Heritage in Times of Peace ......................................................................... 2.2.2. International Standard-setting Instruments Whose Ratification and Implementation is Pending (Both Relevant for the Protection of Cultural Heritage in Times of Peace) ................................................................................. 2.2.3. Instruments of the Council of Europe on the Protection of Cultural Heritage in Times of Peace ............................ 2.2.4. European Community Instruments on the Protection of Cultural Heritage in Times of Peace ............................ 2.2.5. The National Rules Discussed in this Report (with English Translation) ............................................................. 2.2.5.1. Immovable Tangible Cultural Heritage .............. 2.2.5.2. Movable Tangible Cultural Heritage .................. 2.3. Coverage Groups of Heritage ........................................................ 2.4. Community-oriented Approach Versus Separate Protective Realms for Tangible and Intangible Cultural Heritage ............. 2.5. Categories of Cultural Heritage—Concepts / Definitions ......... 2.6. Communities as Holders of Rights over Elements of Cultural Property ............................................................................................. 3. Tangible Cultural Heritage ..................................................................... 3.1. Immovables ....................................................................................... 3.1.1. The Legal System for the Protection of Immovable Cultural Heritage ..................................................................

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567 568 568 568 568 568 569 569 569 572 574 574 574

* Master. (iur) Drs. (MA); Department of International and European Law; Maastricht University; [email protected]. The author wishes to thank Lucky Belder, Maastricht University Maastricht for her comments.

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3.1.2. What Qualifies as Immovable Cultural Heritage—the Relevant Criteria ................................................................... 576 3.1.3. Protection Measures for Immovable Cultural Heritage ... 581 3.1.4. Effects on Proprietary Rights .............................................. 584 3.1.5. Involvement of Communities in Designating Immovable Cultural Heritage .................................................................. 587 3.1.6. Precautionary Measures for Armed Conflicts ................. 591 3.1.7. Immovable Underwater Cultural Heritage ...................... 595 3.2. Movables ............................................................................................ 596 3.2.1. Criteria for Designation of Movable Cultural Heritage ... 596 3.2.2. Involvement of Communities in Designation of Movable Cultural Heritage and Management .................................. 602 3.2.3. Application of Property Law to Movable Cultural Heritage .................................................................................. 603 3.2.4. Protection for Movable Cultural Heritage That Has Been Stolen and Is Subject to Illicit Import, Export or Transfer of Ownership ......................................................................... 605 3.2.4.1. General Regime Applicable to Stolen Objects in the Netherlands: the Right to Recovery, Transfer of Property, and the Protection of Third-party Buyers under the Dutch Civil Code (DCC) ...... 606 3.2.4.2. Protection Available in the Netherlands to Cultural Objects Removed from Other EU Member States or Contracting Parties to the European Economic Area Agreement—the Dutch Implementation of the Directive 93/7/EEC .................................................................. 611 3.2.4.3. Exceeding Protection for Dutch National Treasures and Objects from Dutch Public Collections ............................................................... 615 3.2.5. Special Obligations towards Community with Closest Cultural Link ......................................................................... 617 3.2.6. Precautionary Measures for Armed Conflict and the Return of Cultural Objects .................................................. 619 3.2.7. Movable Underwater Cultural Heritage ........................... 624 4. Intangible Cultural Heritage ................................................................... 624 4.1. Safeguarding of Intangible Cultural Heritage ............................. 624 4.1.1. Framework for Safeguarding Intangible Cultural Heritage .................................................................................. 624 4.1.2. Criteria for Recognition of Intangible Cultural Heritage .................................................................................. 626 4.1.3. Protection Measures for Intangible Cultural Heritage ... 627 4.1.4. Position of Communities in Safeguarding Intangible Cultural Heritage .................................................................. 628 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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4.1.5. Inventories ............................................................................. 4.1.6. Additional Measures ............................................................ 4.2. Misappropriation of Traditions ..................................................... 4.2.1. Framework for Protection of Traditional Knowledge / Traditional Cultural Expressions ....................................... 4.2.2. Group Rights ......................................................................... 4.2.3. Regulation on Misappropriation of Intangible Cultural Heritage .................................................................................... 4.2.4. Regulations on Recording, Collecting, Archiving or Commercially Exploiting Traditional Cultural Expressions ............................................................................ 4.2.5. Protection to Sensitive Traditional Cultural Expression 5. Bibliography ..............................................................................................

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1. Introduction and Key Facts of the Legal System of the Netherlands The discussion of how Dutch law arrives at the protection of cultural heritage and the choices made by the legislature require some knowledge of the Dutch legal system. For this reason, a number of basic characteristics of the Dutch legal system will be discussed in the following paragraphs. The Kingdom of the Netherlands currently consists of three constituent parts: the Netherlands (sometimes referred to as the ‘Kingdom of the Netherlands in Europe’), the Netherlands Antilles, and Aruba. The quasi-federal structure as it exists today was introduced in 1954 by the Charter for the Kingdom of the Netherlands.1 According to Article 3 of the Charter, matters such as foreign affairs, citizenship and extradition are essentially Kingdom affairs.2 Other affairs, including the protection of cultural heritage within the national borders, are delegated to the national governments. This report deals with the protection of cultural heritage only in the European constituent part of the Kingdom of the Netherlands. Further to the Charter for the Kingdom of the Netherlands, Dutch constitutional law knows the following sources: European Union (EU) law, international treaties, the constitution, statutes and other regulations, supranational and international case law, national case law, and unwritten laws.3

1 Charter for the Kingdom of the Netherlands (Bulletin of Acts and Decrees 1954, no. 503), as last amended by Kingdom Act of 15 December 1994 (Bulletin of Acts and Decrees 1995, no. 1). 2 See Article 3 of the Charter for the Kingdom of the Netherlands (Bulletin of Acts and Decrees 1954, no. 503), as last amended by Kingdom Act of 15 December 1994 (Bulletin of Acts and Decrees 1995, no. 1). 3 Kortmann C.A.J.M. / Bovend’Eert P.P.T., Constitutional law of the Netherlands: an introduction, 2007, p. 29.

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For the protection of cultural heritage and the purpose of this report, the most important sources are statutesand other regulations, EU law, and treaties, each representing a different legal order. As outlined by the European Court of Justice in its landmark case Van Gend en Loos, the European Community constitutes a new legal order of international law for the benefit of which the member states have limited their sovereign rights.4 Community law is hence directly applicable in the Member States in its own right. With respect to the protection of cultural heritage in the Netherlands, European Law has significantly influenced the protection available for cultural objects illegally removed in other European Member States, as well as stolen cultural objects considered Dutch cultural heritage or originating from public collections.5 As to the effect of international treaties, the Dutch Constitution spells out a monist approach: provisions of treaties, which may be binding by virtue of their contents shall become binding after they have been published and do not need to be converted into national law.6 In a case of conflict between an international provision and Dutch statutory regulations, the latter give way to the former.7 This is not the case for provisions that leave a certain margin of appreciation to state authorities. These provisions must first be concerted into national law before they can be relied upon in front of the court.8 Dutch law belongs to the family of civil law systems, which means that judicial precedent is given less weight than in common law jurisdictions. Instead, civil law systems are built from abstract rules, which are then applied by judges. It is for this reason that the answers to the questionnaire will start with the description of the positive law as outlined in the different treaties, acts and decrees, before turning to case law. At this stage and before addressing the questions of the Questionnaire, the reader may be referred to existing reports and reviews in the field of cultural policy / cultural heritage law: – Smithuijsen C., et al., The Netherlands, 2005, – Ministry of Welfare H.a.C.A., Cultural policy in Netherlands: national report, 1994,

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Van Gend & Loos, Case 26/62, [1963] ECR 1. See further Section 3.2.4. 6 Article 93 Dutch Constitution. 7 Article 94 Dutch Constitution. 8 See in this respect Section 3.2.6. on the protection of movable cultural heritage in armed conflict, in particular the case in which the autocephalous Greek Orthodox Church of Cyprus could not recover four icons as the Netherlands had failed to implement Article 1.4 of the (First) Protocol for the Protection of Cultural Property in the Event of Armed Conflict (1954). 5

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– Myerscough J., Cultural policy in Netherlands: report of a European group of experts, 1994, – Beunen A., Museumrechtwijzer: Juridisch handboek voor musea, 2000.9 2. General Issues 2.1. The Categories of Cultural Heritage under Dutch Law If one understands the classical method of protecting cultural heritage as the co-existence of several isolated protection regimes applicable to only one category of cultural heritage (either tangible or intangible cultural heritage, movable or immovable) or one specific context of cultural heritage (either protection in times of war or in times of peace, either cultural heritage located on land or underwater, either legally or illegally acquired) the protection of cultural heritage available under Dutch law is to a great extent structured along these classical lines. In the following paragraphs, the categorisation of cultural heritage under Dutch law will be sketched. Subsequently, an overview of the relevant international conventions, European instruments and national laws will be given. In the first place, the Dutch legal system strictly distinguishes between the protection of intangible cultural heritage on the one hand, and the protection of tangible cultural heritage (immovables and movables) on the other. While national laws have been introduced to protect objects that qualify as Dutch cultural heritage against destruction or removal from Dutch territory, the protection of intangible cultural heritage is not law-based. On the contrary, while both immovable and movable cultural heritage is essentially protected by designation as Dutch cultural heritage and entry into national inventories, such an approach is rejected for the protection of intangible cultural heritage. Instead, the Dutch system protects intangible cultural heritage indirectly by supporting museums and research institutes dedicated to studying and imparting intangible cultural heritage. Within the category of tangible cultural heritage, the Dutch legal system consists of two separate regimes for the protection of immovable and movable cultural heritage.10 The divergence between the two regimes is so extensive that it leads to problems in the protection of one particular category of cultural heritage: collections of movable cultural-historical objects that are

9 See for a translation of Dutch cultural policy terminology into English the “Boekman thesaurus on cultural policy”. Available online at: http://www.boekman.nl/documenten/ terms_en-nl.pdf (Last visited on 4 April 2008). 10 Cf.: Vlies I.C.v.d., De kunst en het recht: over algemene publiekrechtelijke regels met betrekking tot kunst, 2005, p. 55.

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in themselves not relevant enough to enjoy protection under the Dutch Act on the protection of movable cultural heritage, but that possess culturalhistorical relevance if preserved in their original location. These collections that derive their relevance from their in situ preservation are referred to as ensembles.11 The difficulties in protecting ensembles has repeatedly been criticised by actors involved in the protection of cultural heritage and is a direct consequence of the strict separation between the protective regimes for movable objects on the one hand and immovables on the other.12 There exists one exception to the organisation of the protection of Dutch cultural heritage in separate regimes and in accordance with the classical lines: in so far as the protection of underwater cultural heritage is concerned, both immovable and movable, no separate regime exists. Instead, the protection of underwater cultural heritage relies on the same act that provides for the protection of immovable cultural heritage on the mainland (and in the ground). Further to the separation of the protective regimes according to the cultural object at hand, with the exception of underwater cultural heritage, the Dutch legal system also differs between the protection of cultural objects in times of war and in times of peace. 2.2. Overview of the Legal Instruments Most Relevant for the Protection of Cultural Heritage in the Netherlands13 2.2.1. International Standard-setting Instruments to which the Netherlands is a State Party 2.2.1.1. Protection of Cultural Heritage in Times of War – Convention (IV) respecting the Laws and Customs of War on Land (The Hague, 18 October 1907)—ratified by the Netherlands on 27.11.1909. – Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954)—ratified by the Netherlands 1958.14 – (First) Protocol for the Protection of Cultural Property in the Event of Armed Conflict (1954) ratified by the Netherlands 1958.15

11 Werkgroep Onroerend/roerend, Van Object naar Samenhang—De instandhouding van ensembles van onroerend en roerend cultureel erfgoed, 2004. 12 Ibid., p. 9; Raad voor Cultuur, Letter to State Secretary of Culture with subject “criteria WBC” Reference wbc-98.7435/1 1998. 13 All legal instruments are available on the Internet. Dutch statues and regulations can be accessed via: www.wetten.nl. The relevant conventions, EC Regulations and Directive, and Dutch Acts and decrees are also available in paper version: Klomp R.J.Q. (Ed.), Kunst en Recht 2007/2010, (2007) (in Dutch). 14 Wet van 16 juli 1958 Stb. 1985, 356, houdende goedkeuring van het op 14 mei 1954 te ’s-Gravenhage ondertekende Verdrag (. . .) en van het op 14 mei 1954 ondertekende Protocol. 15 Wet van 16 juli 1958 Stb. 1985, 356, houdende goedkeuring van het op 14 mei 1954 te ’s-Gravenhage ondertekende Verdrag (. . .) en van het op 14 mei 1954 ondertekende Protocol.

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– (Second) Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999) acceptance by the Netherlands in 2007.16 – (Second) Protocol for the Protection of Cultural Property in the Event of Armed Conflict (1999)—Ratified by the Netherlands in 2007.17 2.2.1.2. Protection of Cultural Heritage in Times of Peace – Berne Convention for the Protection of Literary and Artistic Works November 1, 1912—ratified by the Netherlands in two steps in 1974 and 1985.18 – UNESCO Convention on Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property (1970).19 – 1972 UNESCO Convention on the Protection of World Cultural and Natural Heritage—Accession by the Netherlands in 1992.20 2.2.2. International Standard-setting Instruments Whose Ratification and Implementation Is Pending (Both Relevant for the Protection of Cultural Heritage in Times of Peace) – UNESCO Convention on the protection of the diversity of cultural contents and artistic expressions.21

16 See: Letter of the Minister of Foreign Affairs dated 21 November 2006, Tweede Protocol bij het Verdrag van ’s-Gravenhage van 1954 inzake de bescherming van culturele goederen in geval van een gewapend conflict; ’s-Gravenhage, 26 maart 1999 (Trb. 2005, 279), 30 894, Nr. 1, p. 7. 17 See: Letter of the Minister of Foreign Affairs dated 21 November 2006, Tweede Protocol bij het Verdrag van ’s-Gravenhage van 1954 inzake de bescherming van culturele goederen in geval van een gewapend conflict; ’s-Gravenhage, 26 maart 1999 (Trb. 2005, 279), 30 894, Nr. 1. 18 Ratification of Articles 22–38 both for the Dutch territory in Europe, as well as the Netherlands Antilles and Aruba on 9 October 1974. Ratification of Articles 1–21 for the Dutch territory in Europe followed on 24 October 1985. 19 At the time of writing this report, ratification and implementation of the 1970 UNESCO Convention was pending. The Convention was finally ratified on 9 June 2009 before this publication went into press. Changes brought about by the convention have not yet been integrated in the text. 20 The Netherlands ratified the convention in 1992 and since then nominated six sites as world heritage. No natural sites have so far been designated but in January 2008 the Government of theNetherlands and of Germany submitted a joint application for the nomination of the Wadden Sea as World Heritage. See for the current list and sites: http://www .werelderfgoed.nl/pages/en.php. See on the nomination of the Wadden Sea: http://www .waddenzeewerelderfgoed.nl/index.php?id=45. See for an analysis of the selection and designation procedure in the Netherlands: Aa B.J.M.v.d., Preserving the heritage of humanity? Obtaining world heritage status and the impacts of listing, 2005, pp. 46–48. Available online at: http://dissertations.ub.rug.nl/FILES/faculties/rw/2005/b.j.m.van.der.aa/c3.pdf. 21 See http://www.minocw.nl/documenten/31099a1.pdf for a letter by the Minister of Education, Culture, and Science setting out the Dutch attitude concerning the convention and steps to be taken in ratification and implementation.

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2.2.3. Instruments of the Council of Europe on the Protection of Cultural Heritage in Times of Peace – Convention for the Protection of the Architectural Heritage (Granada, 1985)—The Netherlands is state party since 1994.22 – Convention for the Protection of the Archaeological Heritage (revised) (Valletta, 1992)—ratified by the Netherlands in 1998.23 – European Charter for Regional or Minority Languages Strasbourg, 5.XI.1992—ratified by the Netherlands in 1996. 2.2.4. European Community Instruments on the Protection of Cultural Heritage in Times of Peace – Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State. – Council Regulation (EEC) N° 3911/92 of 9 December 1992 on the export of cultural goods. – Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96.24 2.2.5. The National Rules Discussed in this Report (with English Translation)25 2.2.5.1. Immovable Tangible Cultural Heritage – Monumentenwet—Monuments Act.26 2.2.5.2. Movable Tangible Cultural Heritage – Wet tot behoud van cultuurbezit27—Cultural Heritage Preservation Act (in short: CHP Act).

22 Ratified by Wet van 25 November 1993, houdende goedkeuring van de op 3 oktober 1985 te Granada. 23 Ratified by 26 February 1998 Stb 1998, 196. 24 Based on restrictions from UN Security Council Resolution 1483. 25 See for a more extended list (in Dutch): http://www.minocw.nl/documenten/Overzicht_ wetten_regelgeving_cultuur_media.pdf. Also relevant for the protection of cultural objects are the Algemene Wet Bestuursrecht (AWB)—the General Administrative Law Act (Awb), as well as the Wetboek van Burgerlijke Rechtsvordering—Code on civil procedural law. 26 Monumentenwet 1988, Stb. 1988, 638. In 2008 the Monuments Act was amended by the Act on the Management and Care of Archeological Monuments to carter for the implementation of the Valetta Convention (Wet op de Archeologische Monumentenzorg van 21 december 2006 tot wijziging van de Monumentenwet 1988 en enkele andere wetten ten behoeve van de archeologische monumentenzorg mede in verband met de implementatie van het Verdrag van Valletta (Wet op de archeologische monumentenzorg). 27 Act of 1 February 1984, Stb. 1984 No. 49.

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– Sanctieregeling Irak 2004 II—Sanction Order Iraq.28 – Wet van 8 maart 2007, houdende regels over inbewaringneming en instelling van een vordering tot teruggave van cultuurgoederen afkomstig uit een tijdens een gewapend conflict bezet gebied (Wet tot teruggave cultuurgoederen afkomstig uit bezet gebied)—Act on the return of cultural objects removed from occupied territories. 2.3. Coverage Groups of Heritage The Dutch legal system does follow the classical categorisation. 2.4. Community-oriented Approach Versus Separate Protective Realms for Tangible and Intangible Cultural Heritage The Dutch legal system does not favour a community-oriented, integrated approach but instead handles tangible and intangible cultural heritage separately. The difference in approach is such that rather than having two separate legal regimes of protection, the Dutch system on the protection of cultural heritages utilises a two-tiered approach to the protection available. Whereas the protection of tangible cultural heritage is essentially based on a number of international and national binding legal instruments, such legal instruments are absent where intangible cultural heritage is concerned. The latter does not mean that intangible heritage is deemed unworthy of protection. Rather, Dutch experts in the field of intangible heritage and policy-making are critical as to whether legal protection, especially the drafting of inventories, would contribute to the protection of intangible heritage. With change being considered one of the characteristics of cultural heritage, experts are afraid that protection would do harm to intangible cultural heritage by artificially conserving it. Consequently, whereas tangible cultural heritage is protected by legally binding instruments seeking its preservation and preventing its removal from the Netherlands, the protection of intangible cultural heritage is predominantly a matter of granting subsidies to museums and research institutions for the purpose of studying and raising awareness of the intangible cultural heritage. 2.5. Categories of Cultural Heritage—Concepts / Definitions The Dutch legal system for the protection of cultural heritage is of rather recent date as compared with other European countries.29 The passiveness of 28 Implementing Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96. 29 See on the history of the emergence of national regimes on the protection of tangible cultural heritage: Odendahl K., Kulturgüterschutz. Entwicklung, Struktur und Dogmatik eines ebenenübergreifenden Normensystems, 2005, p. 41.

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the Dutch government was challenged only at the end of the 19th century when Victor de Steurs published his work ‘Holland op zijn smalst’ which one might translate as ‘Dutch frugality’.30 De Steurs accused the Dutch Government of narrow-mindedness and passiveness in respect to active protection of cultural property. Until then, the absence of a Dutch cultural policy was deeply rooted in the Dutch attitude. One reason the Dutch government withheld from introducing binding legislation was that it was considered too great an infringement of property rights. While the publication of de Steurs accusation and his subsequent work as director of the Government Department for the Arts and Sciences, which was set up in reaction to his publication, marked a turning point in Dutch cultural policy, it would take several more decades until the first binding laws on the protection of cultural heritage would be adopted. In 1905, Molengraaff still explicitly regretted that Dutch private law “left the protection of souvenirs of history and the arts (. . .) both movable and immovable to the mercy of the owner”.31 It was only after the German occupation during the Second World War that the Dutch Government granted financial support to artistic expressions. While the state aid to the arts and culture was initially intended to be of temporary character only, it would not be abandoned.32 In 1961, the Monuments Acts constituted the first national act on the protection of cultural heritage ever adopted. The Cultural Heritage Preservation Act, which followed in 1984, marked the first act on the protection of movable cultural heritage. Dutch cultural policy in general, for example including support for the performing arts, visual arts and so on, next to the protection of cultural heritage, is based on two principles: on the one hand Dutch cultural policy is still marked by the Dutch aloofness as expressed by Thorbecke,33 allowing only for Government interaction that is limited to the creation of (optimal) conditions for cultural expressions. On the other hand, Dutch cultural policy 30

Stuers V.E.L.d., Holland op zijn smalst, De Gids, 1873. Molengraaff W.L.P.A., Enige beschouwingen over de bewaring van gedenkstukken van geschiedenis en kunst in het buitenland en hier te lande, in het bijzonder over de daaromtrent bestaande wettelijke bepalingen, 1905, p. 1. 32 Smithuijsen C., et al., “The Netherlands”, 2005, in Europe/ERICarts C.o. (Ed.) Compendium of Cultural Policies and Trends in Europe, 6th Edition (available online at: http://www .culturalpoliciesnet/preview/netherlandsphp?aid=1 (last visited 26 February 2008), Section 1: Historical perspective: cultural policies and instruments. 33 One of the principles that shaped and still to some extent shapes Dutch cultural policy is the so-called Thorbecke principle. According to this principle named after its author “(. . .) the government may make no judgment of the science and the arts”. Thorbecke, who lived in the 19th century, was one of the most important Dutch politicians. His statement, which became known as the Thorbecke principle, stems from the time that he was Minister of Internal Affairs. Handelingen Tweede Kamer, 1862/1862, Verslag, p. 36. See further on current perception of the Thorbecke principle: Lubina K.R.M., “De cultuurnotaprocedure in analyse. Literatuur over juridisering en regulering rondom de cultuurnotaprocedure”, 2004, in Smithuijsen C. / Vlies I.C.v.d. (Eds.) Gepaste Afstand—De ‘cultuurnotaprocedure’ tussen de kunst, het recht en het openbaar bestuur. 31

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is motivated by the intent to contribute to the realisation of greater political aims. Depending on the actual political climate, the aims range from cultivating the citizen, contributing to the citizen’s refinement or the development of the people in general, emphasising national awareness or contributing to wellness, education or the awareness and appreciation of a multicultural society.34 As of today, Dutch law grants specific protection to cultural objects of immovable character, as well as of movable character, provided they fulfil the criteria as outlined below. The criteria seek to single out those objects with particular relevance to the Dutch cultural heritage from the great mass of cultural objects. As for the category of intangible cultural heritage, for which protection is not legally regulated, a definition as has emerged from academic debate will be given. The concept of immovable cultural heritage is outlined in the Monuments Act.35 Immovable objects that are granted specific protection are referred to as (protected) monuments. Monuments are defined by the Monuments Act as “objects that have been created at least fifty years ago and that are of public interest due to their beauty, scientific/academic relevance or culturalhistorical value” (Article 1(b) sub 1).36 What is striking about the definition is that it does not mention the immovability of an object. Read out of context, the definition could very well be applied to movable objects. There are two reasons for the indistinct nature of the article, one historical and one legaltechnical: When the Act was drafted in the 1950s, the need to distinguish immovable from movable property did not yet exist, as there was an absence of rules on the protection of movable cultural heritage.37 Later, the use of the term “object,” rather than a term implying immovability, was confirmed as the act not only applied to monuments in the common parlance but also to archaeological objects for as long as they remain in the ground.38 In order

34 Pots R., Cultuur, koningen en democraten: Overheid & cultuur in Nederland, 2000, pp. 419–420. 35 In 2008 the Monuments Act was amended by the Act on the Management and Care of Archeological Monuments to carter for the implementation of the Valetta Convention (Wet op de Archeologische Monumentenzorg van 21 december 2006 tot wijziging van de Monumentenwet 1988 en enkele andere wetten ten behoeve van de archeologische monumentenzorg mede in verband met de implementatie van het Verdrag van Valletta (Wet op de archeologische monumentenzorg). Act of 1 February 1984, Stb. 1984 No. 49. 36 Article 1(b) sub 1 reads in Dutch: “In deze wet en de daarop berustende bepalingen wordt verstaan onder monumenten: alle vóór tenminste vijftig jaar vervaardigde zaken welke van algemeen belang zijn wegens hun schoonheid, hun betekenis voor de wetenschap of hun cultuurhistorische waarde”. 37 Kamerstukken II 1959–1960; 4115, nr. 5 p. 2. See on the regulation of movable cultural heritage, in particular the introduction of the 1984 Cultural Heritage Preservation Act below at Section 3.2.1. 38 Kamerstukken II 1959–1960; 4115, nr. 5 p. 2.

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to enjoy protection under the Monuments Act, the objects, whether in the ground or above, must be man-made. The Monuments Act does not apply to organic objects.39 Movable cultural objects of national cultural relevance are defined under the Cultural Heritage Preservation Act40 as movable objects of particular cultural-historical or scientific value that must be considered irreplaceable and indispensable to Dutch cultural heritage (Article 2). The criterion of indispensability is further outlined in the act as fulfilling either a symbolic function, a “linking function” or a “reference function”.41 Different from the Monuments Act, the Cultural Heritage Preservation Act does not employ the term “beauty,” nor does it set a minimum time lag that must have passed since an object’s creation. Unlike the law on tangible cultural heritage, Dutch law is quiet on the protection of intangible cultural heritage. While it does protect minority languages, as one form of intangible cultural heritage, Dutch law does not contain a definition or description of the concept of intangible cultural heritage. According to the definition of one academic scholar that has received general support in the academic debate, intangible cultural heritage consists of three components: first, it is something transmittable, ranging from a past performance, via an experience, idea, custom, spatial element, building or artefact, to a set of these. Second, one can only speak of (intangible) cultural heritage provided that a human group exists that is able and ready to recognize these objects as a coherent unit, to transmit and to receive them. Third, there must be a set of values linking the object inherited from the past to a future use, in a sense of meaningful continuity or equally meaningful change.42 2.6. Communities as Holders of Rights over Elements of Cultural Property In order to understand the protection of cultural heritage provided by the Dutch legal system and the role accorded therein to communities, groups or individuals, the relevance of property rights must be taken into account. The Dutch legal system for the protection of cultural heritage is rather recent as compared to other European countries.43 The first national act on the protec39 Meihuizen Y. / Koelwijn F., Een monument beheren, onderhouden en handhaven: overzicht van de Monumentenwet en de monumentenzorg voor ambtenaren, architecten en eigenaren, 2006, p. 27. It should be pointed out that while a park can be designated as a monument under the Act, it is for cultural-historical reasons rather than its esthetic beauty: Kamerstukken II 1986–1987, 19881 nr 3, pp. 12–13. 40 Act of 1 February 1984, Stb. 1984 No. 49. 41 Article 2(3). 42 Frijhoff W., “Cultural Heritage in the Making: Europe’s Past and its future Identity”, 2005, in Vos J.v.d. (Ed.) The Humanities in the European Reserach Area—International Conference Amsterdam, The Netherlands 2 September 2004. 43 See on the history of the emergence of national regimes on the protection of tangible

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tion of cultural heritage was the 1961 Monuments Act. The first act on the protection of movable cultural heritage, the Cultural Heritage Preservation Act, dates only from 1984. One reason that the Dutch government withheld from introducing binding legislation earlier was that it was considered too great an infringement of property rights. The respect of property rights is one of the characteristics of the Dutch approach to cultural heritage. While the balance between the relevance of protecting cultural heritage on one hand and of non-interference with property rights on the other has been tipped to allow for the protection of cultural heritage, tangible cultural heritage is primarily considered someone’s property and only in second instance as cultural heritage. Hence, rather than starting with the perception that an object belongs to Dutch national heritage and then looking into whether the legal system has a regime for granting rights over elements of cultural property or heritage to communities, groups or individuals, the Dutch system starts with the recognition of existing property rights but may limit the rights in accordance with the law for the protection of cultural heritage. Property rights are also relevant with respect to the involvement of communities and groups in the protection of Dutch cultural heritage. Only those groups or communities with legal personhood can play an active role in the protection of cultural heritage in the Netherlands. Legal personhood is dealt with in Book 2 of the Dutch Civil Code. The following legal persons are recognised under Dutch private law: associations, co-operatives, mutual insurance societies, companies limited by shares, private companies, the societas europaea, and foundations.44 While each of these legal persons has its own characteristics and specific legal requirements, the following requirements apply to all. The legal person must be incorporated by an instrument signed by a notary. The deed of incorporation must contain the articles of association. The articles must state the objective of the legal person. The legal person must be registered in the register of commerce.45 Legal persons are equal to natural persons under Dutch patrimonial law. As a result, they can have property rights and obligations. Communities, groups and individuals are therefore involved in the protection of cultural heritage first and foremost as owners rather than as “holders,” and it is the general rules of property law, rather than aspects such as “closest cultural link,” that determine who is involved in the protection of cultural heritage.

cultural heritage: Odendahl K., Kulturgüterschutz. Entwicklung, Struktur und Dogmatik eines ebenenübergreifenden Normensystems, 2005, p. 41. 44 Chorus J.M.J., et al. (Eds.), Introduction to Dutch Law, (1999), p. 169. 45 Ibid., pp. 169–171. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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3.1.1. The Legal System for the Protection of Immovable Cultural Heritage The Dutch legal system arrives at the protection of culturally significant immovables by declaring them to be cultural heritage under the provisions of the Monuments Act.46 More precisely, protection under the Monuments Act is achieved by granting immovable objects the status of a protected monument. Protection is not limited to only monuments as understood in habitual language. Protection is also available to so-called archaeological monuments, as well as city and village views.47 While the Netherlands has ratified the 1972 UNESCO Convention on World Heritage and nominated at least one landscape48 for the World Heritage List, Dutch national Law does not know or protect the notion of “cultural landscapes” comparable to the 1972 Convention as such. According to the National Service for Archaeology, Cultural Landscape and Built Heritage (RACM), the protection of cultural landscapes is currently in development.49 Meanwhile cultural landscapes can be protected to a certain extent by the Monuments Act provided they qualify as man-made structures. The definition of man-made structure is, however broad, including for example parks.50 Another Dutch Law granting protection to landscapes is the Law on “Natural Beauty” (Natuurschoonwet).51 Different from what the title might suggest, the protection under the Law on “Natural Beauty” is only available to country estates that must fulfil a range of criteria.52 The Dutch regime for the protection of immovable cultural heritage as currently in force splits in two stages: the initial procedure granting an object the status of protected monument on one hand and its subsequent management and care on the other. The dichotomy works through the compe-

46

Monumentenwet 1988, Stb. 1988, 638. The different categories of (im)movable objects that fall under the scope of protection of the Monuments Act and the respective criteria for the designation procedure are outlined in the Section 3.1.2.). 48 See http://www.werelderfgoed.nl/pages/en/the-beemster.php. 49 Telephonic inquiry with the Rijksdienst voor Archeologie, Cultuurlandschap en Monumenten on 26 June 2008. 50 Meihuizen Y. / Koelwijn F., Een monument beheren, onderhouden en handhaven: overzicht van de Monumentenwet en de monumentenzorg voor ambtenaren, architecten en eigenaren, 2006, p. 27. It should be pointed out that while a park can be designated as a monument under the Act, it is for cultural-historical reasons rather than its esthetic beauty: Kamrstukken II 1986–1987, 19881 nr 3, pp. 12–13. 51 Natuurschoonwet 1928. 52 See further on the Law on “Natural Beauty” (Natuurschoonwet) and the availability of tax breaks for owners of country estates: Kavelaars P., Natuurschoon en rijksmonumenten, 2006. 47

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tent authority. Regarding the first stage, i.e. the designation of immovable objects as monuments, it is the Minister of Education, Culture and Science (hereinafter: ‘the Minister’) who is the competent authority.53 The Minister’s task has been mandated to the National Service for Archaeology, Cultural Landscape and Built Heritage (RACM), which is part of the Ministry of Education, Culture and Science and operates under the direct responsibility of the Minister.54 The first stage ends with the entry of the immovable object as a protected monument in a special register, the “Monuments Register”55 as outlined in Article 6 of the Monuments Act. At that point, protection becomes definitive. There is only one level of protection. The designation of a building as a monument is also written down in the land register. This is, however, not the case for sculptures. The granting of the status of immovable cultural heritage under Dutch law may be requested by any “interested party” (Article 3 of the Monuments Act). While the Minister is not obliged to meet the request, the designation procedure does grant certain rights to parties that are considered “interested parties”.56 The crucial question is hence, who qualifies as an “interested party.” The answer to this question is provided by the General Administrative Law Act, the relevance of which to the designation procedure under the Monuments Act is further explained in Section B(A)5 below. The second stage of the protective regime is essentially about the care and management of the protected monuments. Care and management are decentralised in that the competent authorities are the lower public authorities.57 53

Article 3(1) of the Monuments Act 1998. The National Service for Archaeology, Cultural Landscape and Built Heritage (RACM) was founded in 2006 as a merger of the former Netherlands Department for Conservation (RDMZ), the National Service for Archaeological Heritage (ROB), and the Netherlands Institute for Ship and Underwater Archaeology (NISA). 55 Monumentenregister. An electronic version of the register is included in the so-called object database. The database which is not publicly accessibly also holds information on past functions of a monument. Interested parties can contact the National Service for Archaeology, Cultural Landscape and Built Heritage (RACM) for information from the database. 56 Article 3(1) of the Monuments Act 1998. In 2000, the Minister had published policy rules regarding the taking into consideration of individual requests. From a practical point of view and against the background of the work of the projects inventorying and selecting monuments for protection, which started with the oldest monuments and worked its way towards current times, the rules clearly indicated that the Minister did not think it necessary to (re-) consider immovables dating from before 1940. (See: 25-02-2000, Staatscourant 2000, 39, p. 19, Document 14 februari 2000/WJZ/2000/7200 (8083)). In 2007, the Minister published new policy rules on 13 juni 2007, nr. WJZ/2007/17812 (8204). 2007). The new policy rules set a rather high threshold for objects to be designated as protected monument. For instance, further to the criteria of the Monuments Act, the structure must be considered to belong to the 100 most relevant structures not yet registered under the act. 57 In this respect the 1988 Monuments Act differs from the 1961 Monuments Act. The latter was characterised by a centralistic approach in that both the designation and management of monuments were in the hands of the central government. Due to rising criticism to the centralist administration and in line with the general trend towards decentralisation in the 1980s, the involvenment of lower administrative authorities was extended when the Monuments 54

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There exists one exception to the general dichotomy between designation by the Minister and subsequent care and management by lower public authorities. Concerning sites holding archaeological objects, both designation and management are the responsibility of the Minister.58 As administrative activities, both the activities of the Minister and of the lower authorities must abide by the General Administrative Law Act (Awb).59 It provides public authorities with legal instruments to fulfil their tasks, while at the same time regulating their activities and granting protection to citizens as against public authorities.60 As for the relation between the Monuments Act and the General Administrative Law Act, the latter act serves as lex generalis and determines the minimum requirements public authorities have to observe in their work. 3.1.2. What Qualifies as Immovable Cultural Heritage—the Relevant Criteria Before looking at the criteria used by the Monuments Act to declare an immovable property as cultural heritage, it is important to realise that there exist different categories of protected immovable objects: monuments, sites holding archaeological monuments as well as city and village views. In the subsequent paragraphs, the criteria for monuments will be elaborated upon before looking into archaeological monuments and city and village views. Monuments are defined by the Monuments Act as “objects that have been created at least fifty years ago and that are of public interest due to their beauty, their scientific/academic relevance or to their cultural-historical value” (Article 1(b) sub 1).61 According to the explanatory memorandum of the Act, the term “objects” was chosen, rather than a term implying the immovability of an object, as the scope of the Act comprises not only monuments in the common parlance but also archaeological objects in the ground.62 Furthermore, when the Act was drafted in the 1950s, the need to distinguish immovable from movable property did not exist, as movable cultural heriAct was amended. Meihuizen Y. / Koelwijn F., Een monument beheren, onderhouden en handhaven: overzicht van de Monumentenwet en de monumentenzorg voor ambtenaren, architecten en eigenaren, 2006, p. 21. See further on the decentralisation in the policy field of culture: Kuypers P., „Decentralisatie, kunst en cultuurbeleid“, 2003, in Boekmanstichting (Ed.) Kunst en De Regulering. 58 Maarleveld T., Archaeological heritage management in Dutch waters: exploratory studies, 1998, pp. 168–169. 59 See, e.g. Article 14a of the Monuments Act. 60 Wijk H.D.v., et al., Hoofdstukken van bestuursrecht, 2005, p. 1. See Section 5 on the position, role and involvement of communities, groups or relevant non-governmental organizations in the process of declaring immovable property. 61 Article 1(b) sub 1 reads in Dutch: “In deze wet en de daarop berustende bepalingen wordt verstaan onder monumenten: alle vóór tenminste vijftig jaar vervaardigde zaken welke van algemeen belang zijn wegens hun schoonheid, hun betekenis voor de wetenschap of hun cultuurhistorische waarde”. 62 Kamerstukken II 1959–1960; 4115, nr. 5 p. 2. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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tage had not yet been regulated.63 Protection under the Monuments Act is available to man-made structures and objects only. Organic objects, such as old trees, can only be protected as part of a built structure, such as a park.64 The requirement of a fifty year time period between an object’s creation and the decision on the granting of protection is meant to allow for greater objectivity in the appreciation of the object’s beauty or relevance.65 In addition to allowing time to render a verdict on the more or less subjective terms of beauty, relevance to science, and possession of cultural-historical value, a number of factors have been explicated in case law. The following aspects have been put forward repeatedly as factors relevant to the granting of protection to an immovable object: age, art historical relevance, specific architectural features, whether the object is unique or exists in different versions, the location and function of the object in the past, as well as its current function.66 The factors listed can be split in two groups: in one category, there are qualitative factors, such as age, art historical relevance, specific architectural features, as well as the function an object once had and still fulfils. These factors are neither strictly complementary nor alternative in assessing whether or not an object qualifies for protection. Rather, these factors are taken into account in the respective case-by-case analysis. The other category consists of quantitative factors, which must logically be understood to be factors of secondary or balancing value: only if an object qualifies for protection due to its age and beauty or scientific or cultural-historical value does it make sense to square it with the number of other versions available. Decay has also been identified as a negative factor in deciding upon the continuance of protection, and falls into the second category of quantitative factors. While intangible values such as religion or folklore are not explicitly recognised as factors in the determination process for immovable cultural heritage, they play a role in determining an object’s art historical relevance. Moreover, while the criterion of authenticity is not explicitly mentioned in the definition of Article 1(b) sub 1, it does underlie the Monuments Act. After all, the raison d’être of the Monuments Act is to preserve certain objects for 63

Kamerstukken II 1959–1960; 4115, nr. 5 p. 2. See on the regulation of movable cultural heritage, in particular the introduction of the 1984 Cultural Heritage Preservation Act below at Section 3.2.1. 64 Meihuizen Y. / Koelwijn F., Een monument beheren, onderhouden en handhaven: overzicht van de Monumentenwet en de monumentenzorg voor ambtenaren, architecten en eigenaren, 2006, p. 27. It should be pointed out that while a park can be designated as a monument under the Act, it is for cultural-historical reasons rather than its aesthetic beauty: Kamerstukken II 1986–1987, 19881 nr 3, pp. 12–13. 65 Kamerstukken II 1986–87; 19881 no 3 p. 14; Kamerstukken II 1986–1987, 19881 nr 3, pp. 12–13. 66 AB 1977/228, Koninklijk Besluit van 16 september 1976 nr. 29; AB 1982/443, Koninklijk Besluit van 28 april 1982 nr 25; AB 1982/225, Koninklijk Besluit van 4 februari 1982 nr. 8; AB 1985/268, Koninklijk Besluit van 14 februari 1985 nr. 176; AB 1983/365, Koninklijk Besluit van 9 maart 1983 nr. 22. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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future generations.67 Authenticity was explicitly mentioned in a court decision on the refusal to designate a building as a protected monument.68 The fact that several “much better and more sound buildings in the sense of authentic buildings” existed was one of the reasons to deny the object special protection. This does not mean, however that protection is necessarily withheld from objects that have been restored or whose substance has been partly replaced. In 1992, a smoke stack was designated as a protected monument. It dated from 1895, but substantial parts had been destroyed during the Second World War. Only the base and the lowest part of the original stack had been preserved. After the war, a new stack was added on top of the original, outmeasuring it by 4/5th of its entire length. Regardless of this ratio and the fact that the new part did not meet the fifty years criterion, the decision to designate the stack as a protected monument was upheld.69 In conclusion, while authenticity is an important factor and underlies the Monuments Act, it takes effect in particular in situations where there exists more than one potentially protectable object. Similar to its lack of explicit reference to authenticity, the Monuments Act does not stress an object’s “importance to the cultural heritage of humankind.” However, the explanatory memorandum of the Monuments Act when introduced in 1961 did explicitly refer to: “the community’s right to the preservation of the wealth in monuments being cultural heritage.”70 Furthermore, as will be outlined below, the relevance of cultural heritage for humankind brought about a significant change for the allocation of ownership rights to excavated archaeological objects in the implementation of the Valetta Convention into the Monuments Act.71 As stipulated above, the Monuments Act not only grants protection to monuments and immovable objects whose criteria of designation have been discussed in the previous paragraphs. It is also relevant to sites holding archaeological monuments as well as city and village views. However, they are granted protection by virtue of containing at least one monument. 67

Cf. Geurts J.G. / van Niftrik, Monumentenwet 1988: wet van 23 december 1988, Stb. 1988, 638, tot vervanging van de Monumentenwet met aantekeningen, uitvoeringsbesluiten, alfabetisch register en verdere bijvoegsels, 2001, p. 15 & 17. See in this respect also the website of the Ministry of Education, Culture and Science, which holds information on the Minister’s envisaged plan to to modernize the system of monument care as announced on 31 May 2007. One of the Minister’s interests is to put less emphasis on authenticity as such in exchange for stressing the continuity in history: http://www.minocw.nl/moderniseringmonumentenzorg/916/ Accenten-project-modernisering-monumentenzorg.html#. 68 AB 1983/365, Koninklijk Besluit van 9 maart 1983 nr. 22. 69 AB 1998/259, 24 maart 1998. 70 Geurts J.G. / van Niftrik, Monumentenwet 1988: wet van 23 december 1988, Stb. 1988, 638, tot vervanging van de Monumentenwet met aantekeningen, uitvoeringsbesluiten, alfabetisch register en verdere bijvoegsels, 2001, p. 17. 71 See Section 3.1.3. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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As far as sites holding archaeological monuments are concerned, the protective regime has been amended recently with the implementation of the 1992 Valetta Convention.72 For a site to be considered for protection it must be of general relevance by virtue of the (expected) presence of archaeological monuments. Archaeological monuments are objects of archaeological relevance that have yet to be excavated.73 They can also be situated underwater. In anticipation of question concerning the protection of underwater cultural heritage (B.7) it should be mentioned that while the Act does not explicitly state so, its explanatory memorandum clarifies that underwater sites holding shipwrecks and other maritime heritage can qualify as (archaeological) monuments in the sense of Article 1(b) sub 2 juncto Article 1(c).74 Archaeological objects found during excavation works either underwater or on land from a site designated as protected under the Monuments Act do not fall under the general regime of treasure trove or the general law of finds.75 Instead, archaeological monuments excavated from sites protected under the Monuments Act automatically become the property of the public authority under whose territory the protected site falls.76 One fundamental problem with the protection of archaeological objects yet to be excavated is the fact that their existence in the ground is often unknown. Against this backdrop, a system of “indicative maps of archaeological value”77 has been created. Each municipality has to classify its territory in accordance with the scale introduced by the indicative map. The chance that a certain area contains archaeological monuments is indicated 72 Wet op de Archeologische Monumentenzorg: Wet van 21 December 2006 tot wijziging van de Monumentenwet 1988 en enkele andere wetten ten behoeve van de archeologische monumentenzorg mede in verband met de implementatie van het Verdrag van Valletta, Stb. 2007, 42. The reader should bear in mind that further to the national regime of protection, there exist municpal and provincial regulations of monuments will not be elaborated upon in this report as it would exceed its scope. The first national Dutch regulation dates from 1961: Act of 22 June 1961, Monuments Act (Monumentenwet), Stb. 1961/200. Even if one takes the 1939 temporary, non-binding “List of Dutch Monuments of the History and the Arts” into account, protection of immovable cultural heritage started rather late, compared with other European Countries. See for a listing of different national acts dealing with the protection of momuments: Odendahl K., Kulturgüterschutz. Entwicklung, Struktur und Dogmatik eines ebenenübergreifenden Normensystems, 2005, p. 41. See further on the history of the Act: Meihuizen Y. / Koelwijn F., Een monument beheren, onderhouden en handhaven: overzicht van de Monumentenwet en de monumentenzorg voor ambtenaren, architecten en eigenaren, 2006, p. 20. 73 See Section 3.1.3. on protection granted to archaeological objects subsequent to their excavation. 74 Kamerstukken II 1986–1987, 19881, no 3, pp. 10–11 and Kamerstukken II 1987–1988, 19881, no. 6, p. 25. See further on the protection of underwater cultural heritage: Section 3.1.6. 75 See further on the rule of treasure trove and the law of finds: 3.2.3. Application of property law to movable cultural heritage. 76 See further Section 3.1.3. on the allocation of ownership rights to excavated archaeological objects. 77 Indicatieve Kaart van Archeologische WaardenUitgangspunt (IKAW).

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as high, moderate, low or very low.78 The classification of the indicative map allows for a more concise designation of protected sites. Finally, the Monuments Act grants protection to city and village views. According to Article 1(d), city and village views are groups of immovable objects which include at least one protected monument. Additionally, the group of immovables must be of public interest due to its beauty, internal coherence (spatial or structural), or its scientific or cultural historical value. With respect to city and village views, it is not the Minister of Culture but instead the Minister of Housing, Spatial Planning and Environment, who grants protection (Article 35). As of today, some 51,000 monuments, 150 archaeological monuments and 350 city and village views have fulfilled the criteria of the Monuments Act and have been granted protection.79 Before addressing the protection granted under Dutch national law for objects that have been designated under the Monuments Act, a few words must be said on the relevance of the 1972 UNESCO Convention on the Protection of World Cultural and Natural Heritage for the Netherlands. The Netherlands became a State Party to the Convention in 1992 by accession. Immediately after accession, a tentative list of “Dutch Cultural and Natural Heritage” was prepared by the Dutch branch of ICOMOS, the Dutch Council for Culture (Raad voor Cultuur) and a provisional Project Group for Industrial Heritage (Projectgroep Industrieel Erfgoed, PIE). The tentative list contained some thirty sites which had been chosen with little consideration of the criteria of the 1972 UNESCO Convention.80 The tentative list, and therefore also the nominations for the World Heritage List, focused on four themes: “The Netherlands—Land of Water,” the “Republic in the 17th century,” the “Dutch contribution to the Modern Movement in international architecture at the beginning of the 20th century (Modern Movement)” and “Archaeology.”81 In creating the final list, the tentative list was held against the criteria of the 1972 UNESCO Convention. Seven sites were finally nominated (six in the Netherlands and one in the Netherlands Antilles). There seems to be little interdependency between protection under Dutch national law (the Monuments Act) and the 1972 UNESCO Convention. In any event, Dutch law has not taken over the idea of a “buffer zone” sur-

78 See further on the indicative map: http://www.racm.nl/content/xml_racm/pd_ikaw .xml.asp. 79 http://www.racm.nl/content/rubriek-n6–1.asp?toc=n6–1. On 20 February 2008, the Council for Culture gave positive advice to the Minister of Culture for the designation of 99 monuments built in the period 1940–1958. 80 Aa B.J.M.v.d., Preserving the heritage of humanity? Obtaining world heritage status and the impacts of listing, 2005, p. 47. 81 See further: http://www.werelderfgoed.nl/pages/en/world-heritage-in-the-netherlands/ themes.php.

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rounding protectable objects. Also, integrity, as listed in the 1972 Operational Guidelines to the World Heritage Convention has so far not been recognised as a criterion for the determination of Dutch immovable cultural heritage. 3.1.3. Protection Measures for Immovable Cultural Heritage Measures available under the Monuments Act for the protection of immovables include the following: outright prohibition of certain activities, a licensing system—with the possibility to make licenses subject to further conditions, the adoption of zoning plans, the designation of an area as an archaeological area of interest, as well as subsidies. While Articles 30 and 31 of the Monuments Act grant the Minister the possibility of taking “enforcement action” in the sense of Article 5:21 of the General Administrative Law Act,82 these actions can only be taken where an obligation under the Monuments Act has been breached. The Monuments Act does not, however, impose a positive duty on the owner to maintain a designated monument. Hence, if the owner neglects his property, the Minister cannot take enforcement action. Only in as far as subsidies have been received by an owner can he be called to responsibility by the Dutch State. In all cases, if the owner of a monument neglects his property, little can be done about it.83 The Dutch State cannot under any circumstances expropriate the object. Also, there is no pre-emption right with regard to immovable cultural heritage under Dutch law. What follows is an elaboration on the different measures seeking to protect immovable cultural heritage (including archaeological objects in the ground). As far as outright prohibitions are concerned, Article 11 of the Monuments Act bans damaging or destroying a protected monument. The scope ratione personae of Article 11 applies to all persons, including a monument’s owner. While damaging or destroying a protected monument is not allowed under any circumstances, the following activities are permitted, provided they are performed under the terms of a license: demolition of a monument, interference with a monument, movement of a monument or change to a monument (Article 11 (a)). The same applies to restoring monuments and using them or letting others use them in a manner that mars or endangers the monuments

82 Enforcement action is defined by Article 5:21 of the General Administrative Law Act as meaning “physical acts taken by or on behalf of an administrative authority against what has been or is being done, kept or omitted in breach of obligations laid down by or pursuant to any statutory regulations”. 83 Alphen C.v., et al., Raakvlakken RO—Relaties met andere wetten, 2005, p. 110. In as far as archaeological monuments are concerned, i.e. sites holding archaeological objects, Article 56 of the Act allows the Minister to take measures to interrupt activities that (may) harm the site.

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(Article 11 (b)). The granting of a licence may be subject to further conditions in the interest of care for the monuments (Article 19).84 As for city and village views, which are protected under the Monuments Act by virtue of containing at least one protected monument, a license is also required for the (partial) demolition of any other building in the protected area (Article 37). The granting of such a license may be subject to further conditions (Article 37(4)). As outlined above, the management of protected immovable cultural heritage, including the granting of licenses, is the task of the lower public authorities. Licenses as required for the activities described in Articles 11 and 37 are to be granted by the Mayor and Aldermen (Article 12).85 Monuments outside of the territory of a municipality (Article 13), as well as sites holding archaeological monuments, fall under the authority of the Minister.86 As far as licensing in the interest of sites holding archaeological objects (i.e. archaeological monuments) is concerned, Article 19 explicates that the Minister may issue a license subject to the following conditions: the taking of technical measures that allow for continued in situ preservation, the duty to arrange for excavations, and the duty to allow expert supervision for activities interfering with the ground. Excavation activities may only be performed in agreement with the terms of a license (Article 45 (3)), the granting of which depends on the qualification of the person seeking the license (Article 45(1) and (2)). Throughout the excavation works, the progress is closely monitored (Article 46) and the permit may be withdrawn if the work falls short of the set conditions (Article 47). By subjecting excavation works to a strict licensing and monitoring regime, the Minister can not only decide which sites are to be excavated (and which objects are to be preserved in situ), he or she can also exercise quality control of the excavations.87 Violations of the Monuments Article are prosecuted under criminal law. Depending on the mens rea, one can be prosecuted for having committed an offence or crime.88 Further to prohibitions and the licensing of certain activities, possibly linked to certain conditions, as well as the deterrent function of the criminal law, the protection of immovable cultural heritage depends to a great

84 In this respect Article 3:3 of the General Administrative Law Act on detournement de pouvoir is also relevant: “An administrative authority shall not use the power to make an order for a purpose other than that for which it was conferred”. 85 As an exception to this main rule, requests for licenses concerning monuments situated outside the territoriy of a municipality are to be made to the Minister of Culture (Artice 13 juncto Article 14 (2) Monuments Act). 86 Maarleveld T., Archaeological heritage management in Dutch waters: exploratory studies, 1998, pp. 168–169. 87 Cf. Article 45(2). On top of that the Minister can make the granting of a lincense subject to living up to certain conditions (Article 45(3)). 88 Articles 61 and 62 of the Monuments Act.

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extent on the adoption of zoning plans. While zoning plans as such do not have the function of protecting immovable cultural heritage, they can help to enforce binding obligations as provided in the Monuments Act (the socalled normative function of zoning plans).89 In the past, there existed some doubt regarding whether and how far a municipality—in setting out new zoning plans—could take existing protected monuments into consideration, as well as monuments having the potential to be accorded the status of a protected monument.90 These doubts have been removed with Article 38a of the Monuments Act, which was introduced in the context of the implementation of the Valetta Convention. Article 38a formulates a duty for the city council to take existing or potential monuments into account when adopting new zoning plans as outlined in Article 10 of the Spatial Planning Act. There is no obligation to amend existing zoning plans. Article 39 and Article 40 of the Monuments Act provide for further regulations that may be included in a zoning plan. Zoning plans are also of great relevance in the protection of urban and village landscapes. Article 36 explicitly requires the city council to adopt zoning plans for the protection of village and city views. The Monuments Act also recognizes subsidies as a tool to contribute to the protection of monuments. Articles 34 and 34a of the Monuments Act stipulate that the Minister of Culture can grant subsidies for the conservation of designated monuments.91 As noted above, the Monuments Act also applies to movable objects of archaeological interest in the ground. Protection prior to excavation is granted by protecting the site and grounds where the archaeological objects are contained. While they remain movable objects, it is their position in the ground that allows the Monuments Act to provide for their protection. With their excavation, these archaeological objects are exposed to the additional threats to movable objects, as compared to immovable objects, in particular the risk of being (illegally) removed or transferred, or even being stolen. In order to counteract this threat of losing valuable information to the private market, Article 50 of the Monuments Act serves as a lex specialis to the rules on treasure trove (as well as the general law of finds) that apply to any territory not granted protection under the Monuments Act92 by according ownership of

89 Cf. Werkgroep Onroerend/roerend, Van Object naar Samenhang—De instandhouding van ensembles van onroerend en roerend cultureel erfgoed, 2004, pp. 21–22. 90 Cf. Haase N.L.J., De invloed van de Monumentenwet op het bestemmingsplan, 2004 (now outdated). 91 In accordance with Article 34 (3) the regime on the granting of subsidies has been further outlined in a decree (Besluit rijkssubsidiëring instandhouding monumenten). 92 See Section 3.2.6. for an explanation of the Dutch rule on treasure trove.

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excavated, protected objects (holding monuments) to the public authority.93 If excavated within the territory of a municipality, it is the city or province that acquires the property rights, depending on whether the former maintains a depot in the sense of Article 51(2) of the Act. In case the excavations take place outside of the territory of a municipality, property is accorded to the State.94 Neither the excavator, nor the owner of the site receive any indemnity as had been the case in the past.95 Indemnity was abolished with the implementation of the Valetta Convention as it was considered “contrary to the internationally shared perception that archaeological cultural heritage is the heritage of humankind and hence of all of us”.96 3.1.4. Effects on Proprietary Rights Ownership is the predominant concept in Dutch property law. Article 5:1 of the Dutch Civil Code (hereafter: “DCC”) characterizes ownership as the “most comprehensive right which a person can have in a thing.” Despite being the most comprehensive right, ownership is never unlimited, as is stressed by paragraph 2 of the article according to which “the owner of a thing is entitled to do with it as he or she pleases provided that he or she 93 Article 1(h) of the Monuments Act defines the activity of excavating as the undertaking of activities with the aim to discover or reserach monuments, which result in interference with the ground. Objects excavated from sites protected under the Monuments Act for holding monuments are not automatically protected by the Cultural Heritage Protection Act discussed further below in the Section on movable cultural heritage once they have been excavated. 94 The reference to the state must be seen as a safety clause which is of particular relevance for underwater cultural heritage; the management of which is in the hands of the National Service for Archaeology, Cultural Landscape and Built Heritage (RACM). Salomons A.F., Nieuwe regels omtrent de eigendom van roerende monumenten ingevolge de Wet op de Archeologische Monumentenzorg, Weekblad voor Privaatrecht, Notariaat en Registratie, 2007, p. 615. 95 In this respect, the current Monuments Act differs signficantly from the pre-1988 regime resp. the regime prior tot the implementation of the Valetta Convention: until 1988, the excavator was awarded full ownership of the excavated object(s) but had to compensate the site’s owner with 50% of the value. Given that in practice only governmental and academic institutions were authorised to excavate, as pointed out by Maarleveld T., “The Netherlands”, 2006, in Dromgoole S. (Ed.) The protection of the underwater cultural heritage: national perspectives in light of the UNESCO Convention 2001, p. 177 the difference between the pre—and post-1988 regime is smaller than the letter of the law suggests. The position of the site’s owner did, however, change significantly with the implementation of the Valetta Convention which abolished the owner’s right to receive indemnity corresponding to 50% of the object’s value as outlined in (old) Article 43 (3) Monuments Act. Salomons A.F., Nieuwe regels omtrent de eigendom van roerende monumenten ingevolge de Wet op de Archeologische Monumentenzorg, Weekblad voor Privaatrecht, Notariaat en Registratie, 2007, pp. 616–618. 96 Salomons A.F., Nieuwe regels omtrent de eigendom van roerende monumenten ingevolge de Wet op de Archeologische Monumentenzorg, Weekblad voor Privaatrecht, Notariaat en Registratie, 2007, p. 618. The law is more favourable to the landowner when the objects concerned are found not by planned excavations but by mere chance and luck. In this case, the general rules on finders’ rights (Articles 5:5–12 DCC) or treasure trove (Article 5:13 DCC) apply which will be elaborated upon in Section 3.2.3. on the application of property law to movable cultural heritage and the duties that arise from finding a precious precious artefact.

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does not infringe against statutory restrictions or the rights of third parties.”97 In addition to these two sources of limitations on the right to property, limitations can originate from unwritten rules. With regard to the rights of the owner of a monument, limitations will first and foremost originate from other statutes, in particular the Monuments Act. In the previous section, the protective measures available for immovable cultural heritage were elaborated upon. The measures ranged from outright prohibitions on certain activities, to making activities subject to a range of conditions, to the reinforcement of prohibitions through zoning plans. These measures may significantly limit an owner’s proprietary rights.98 Furthermore, the protection granted to monuments may also negatively affect the proprietary rights to neighbouring immovables. The outright prohibition to damage or destroy a monument, as stated by Article 11(1) of the Monuments Act, limits the rights of the owner to “do with it as he or she pleases.” However, as the restriction of his property rights is provided for under the law, in, for example, Article 11 of the Monuments Act, the restriction has been held necessary by the legislature to ensure the protection of these monuments. Beyond the property rights of the owner, Article 11(1) may also limit the rights of others, for example owners of buildings or land adjacent to the protected monument. The extent to which Article 11 can have such external effect has not yet been established.99 However, Dutch legal doctrine does favour external effect for monuments.100 Dutch Law does not place any limitations on the sale or transfer of ownership of immovable cultural heritage. However, as for urban and village views, Article 37 of the Monuments Act explicitly states that the protection of the designated monument can affect the property rights of the owners of any other building included in the zone designated under Article 35 as a protected urban and village view. No building in the zone may be (partially)

97 Translation based on: Haanappel P.P.C. / MacKaay E., Nieuw Nederlands Burgerlijk Wetboek: het vermogensrecht (zakenrecht, verbintenissenrecht en bijzondere overeenkomsten) / New Netherlands Civil Code: patrimonial law (property, obligations and special contracts), 1990, p. 3. In Dutch, Artikel 5:1 (2) DCC reads: Het staat de eigenaar met uisluiting van een ieder vrij van de zaak gebruik te maken, mits dit gebruik niet strijdt met rechten van anderen en de op wettelijke voorschriften en regels van ongeschreven recht gegronde beperkingen daarbij in acht worden genomen. 98 See the explanations in the previous section, in particular Articles 11, 19, 37 and 45 of the Act. See also: Alphen C.v., et al., Raakvlakken RO—Relaties met andere wetten, 2005, p. 111. 99 Peters T., Verstrekkende monumentenbescherming: de relatie tussen der herziene Woningwet en Monumentenwet 1988 bij de bescerming van monumenten, BR, 2003; Alphen C.v., et al., Raakvlakken RO—Relaties met andere wetten, 2005, p. 111. 100 Peters T., Verstrekkende monumentenbescherming: de relatie tussen der herziene Woningwet en Monumentenwet 1988 bij de bescerming van monumenten, BR, 2003; Alphen C.v., et al., Raakvlakken RO—Relaties met andere wetten, 2005, p. 111. As far as sites protected under the Nature Conservation Act 1998 are concerned, external effect is recognized in the Act.

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demolished without a license. This limitation on properietors’ rights is in addition to limitations that may arise from the zoning plan. Moreover, the licensing system created by the Monuments Act to regulate a number of activities limits the rights of proprietors. Furthermore, licenses may be subject to further conditions. There exist, however several mechanisms to counterbalance the restrictions on property rights in protected monuments. This section will only take into consideration instruments available once an object has been granted protection under the Monuments Act. Procedural guarantees for the owner and other interested parties will be discussed below. The Monuments Act provides for indemnification in Articles 22, 42 and 59. Article 22 creates the duty to grant reasonable compensation when an applicant is denied a license required for a specific activity by Article 11. The same applies when loss is suffered due to the conditions linked to the license where it would be unreasonable for the applicant to bear the loss. It is the Minister or Mayor and Aldermen who decide upon the granting of the compensation and the amount to be paid. The compensation has to be reasonable and an independent committee especially established for the purpose of assessing such losses must be consulted (Article 23 Monuments Act). The decision to grant or deny compensation may be appealed directly in court.101 The Monuments Act also grants a reasonable indemnification in cases where the following licenses are denied for reasons of archaeological monument care: a demolition permit (Article 37(1) Monuments Act), a building permit as outlined in Article 44(1) of the Housing Act, a planning permission as outlined in Article 14 of the Act Spatial Planning if dispensation in accordance with Articles 15, 17 or 19 of the same Act is withheld. Indemnification is also granted if the loss suffered results from the conditions to which a granted license is subjected (Article 42). The Monuments Act also foresees reasonable indemnification for loss suffered due to specific measures taken for the protection of archaeological monuments (Article 58). The measures can consist of interrupting activities initiated by the right holder (preventive measures or measures limiting the damages), as well as measures taken to support archaeological research. In case of activities that damage or threaten to damage archaeological monuments, the Minister may order the interruption of these activities (Article 56). When archaeological research is conducted, the Minister may require

101 See Article 29 of the Monuments Act juncto Article 7:1 General Administrative Act according to which the applicant does not have to frst raise an objection against the administrative decision with the administrative authority before appealing to courts. See Section 7 and 8 of the General Administrative Law Act (Awb) on the taking of legal action against the government.

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the right holder to tolerate certain activities, such as access to the site and excavation works (Article 57). 3.1.5. Involvement of Communities in Designating Immovable Cultural Heritage As far as the declaration of immovable property as cultural heritage is concerned, Article 3 explicitly states that any interested party can address the Minister of Culture with a request to grant protection to an immovable property under the Monuments Act. While the Minister is not obliged to meet the request, the designation procedure does grant certain rights to parties that are considered “interested parties.”102 The crucial question is hence who qualifies as an “interested party.” In order to fully understand the question of who qualifies as an interested party, the General Administrative Law Act and its relevance to the designation procedure under the Monuments Act must be introduced.103 The General Administrative Law Act contains general administrative rules governing the relationship between the government and individuals, how government orders (such as the designation of an object as protected under the Monuments Act) must be effected, and how individuals can object to such orders. It is first and foremost an act that seeks to guarantee that the public administration takes due care in its activities.104 The rules and principles laid down in the General Administrative Law Act must be considered as minimum standards that may be extended by more specific acts but cannot be undermined.105 As a result, the General Administrative Law Act is relevant, in addition to the Monuments Act, for the determination of who qualifies as an interested party. This section will first outline and illustrate the concept of “interested party” using case law, and will then address the protection available for an interested party under the General Administrative Law Act.

102 Article 3(1) of the Monuments Act 1998. In 2000, the Minister published policy rules regarding the taking into consideration of individual requests. From a practical point of view and against the background of the work of the projects inventorying and selecting monuments for protection, which started with the oldest monuments and worked its way towards current times, the rules clearly indicated that the Minister did not think it necessary to (re-) consider immovables dating from before 1940. (See: 25-02–2000, Staatscourant 2000, 39, p. 19, Document 14 februari 2000/WJZ/2000/7200 (8083)). In 2007, the Minister published new policy rules on 13 juni 2007, nr. WJZ/2007/17812 (8204). 2007). The new policy rules set a rather high threshold for objects to be designated as protected monument. For instance, further to the criteria of the Monumants Act, the structure must be considered to belong to the 100 most relevant structures not yet registered under the act. 103 The scope of this report does not allow for an in-depth discussion of the General Administrative Law Act. Instead readers may be referred to the following literature: Schilder A.E. / Brouwer J.G., A survey of Dutch administrative law, 1998 instead of many others written in the Dutch language. 104 Simon H.J., Handboek Bestuurs(proces)recht volgens de AWB, 1997, p. 7. 105 Ibid.

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According to Article 3 of the Monuments Act, interested parties are in the first place the persons recorded in the land register as owners or as having a limited right in rem, as well as the creditor of a mortgage. Under the General Administrative Law Act, particularly Article 1:2, an interested party is a person or legal entity whose interest is directly affected by an order. It is clear that an order designating property as a protected monument directly affects the interests of an owner of an immovable object, as well as the holder of a limited right (e.g. servitude or usufruct) or the creditor of a mortgage. In its case law, the Council of State has repeatedly confirmed that owners and other parties who have a right in rem to the immovable property must be considered as interested parties to decisions of the designation of an object as a monument.106 Consequently, and in particular for private individuals, the crucial question becomes whether a person possesses a right in rem to the immovable property. This point is illustrated by the 2006 decision of the District Court in ’s-Hertogenbosch. That case concerned the question of who qualifies as an interested party in the designation of a grave as monument under the Monuments Act of 1988. Previously, the general practice had been that only the owner of a graveyard qualified as an interested party. Relatives of a deceased buried in the graveyard were not considered interested parties.107 This practice was challenged by a grandson who sought to pay tribute to his grandfather by nominating the latter’s grave stone for protection under the Monuments Act of 1988. In accordance with decades long policy, the nomination was not considered because the grandson was not the owner of the graveyard. The grandson raised an objection with the administrative authority against the decision not to consider his request. As a logical step under the General Administrative Law Act, but nevertheless wrong on the merits as later determined by the Council of State, the grandson’s objection was declared inadmissible.108 The grandson subsequently lodged an appeal with the district court against the latter decision. The court held that the grandson must be considered a right holder regarding the grave stone, and that rights under the Dutch Act on the Disposal of the Dead must be considered rights in rem. Therefore, the grandson qualified as a party having a right in rem to the immovable property concerned and hence was an interested party to the decision of whether to designate his grandfather’s grave a monument.109

106 Judgement of Council of State of 3 September 2003, LJN AI1758, zaaknummer 200205030. 107 http://www.racm.nl/content/documenten%5Cracm%20nieuwsbrief_2_07.pdf (last visited 27 June 2008). 108 Article 1:5 juncto Article 1:3 General Administrative Law Act. 109 Judgement of the District Court of ’s-Hertogenbosch of 27 January 2006, AWB 05/2175. See further for a discussion of the case: Bok L. / Valkenburcht M., Eerbetoon aan Opa, Nieuwsbrief Rijksdienst voor Archeologie, Cultuurlandschap en Monumenten, 2006.

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Hence, because descendants have rights in the grave of a deceased family member, they qualify as interested parties under the Monuments Act despite the fact that this right is not recorded in the land register. Although the foregoing case focused on the legal qualification of the relationship between a descendant and the grave of a family member, it nevertheless clarified that a person’s right to an immovable object does not necessarily need to be recorded in the land register to have effect. Irregardless, the definition of interested party remains essentially based on the existence of a right in rem. With respect to legal entities such as foundations or corporations, paragraph 3 of Article 1:2 of the General Administrative Law Act broadens the understanding of interested party. As far as legal entities are concerned “directly affected interest” as outlined in paragraph 1 of Article 1:2 can be both “private interests,” as well as “general and collective interests which they particularly represent in accordance with their objects and as evidenced by their actual activities.”110 The following example illustrates the different layers of directly affected interests: with respect to the designation of a monumental building as a protected monument, a legal foundation not only qualifies as an interested party if it owned the building (“private interest”), but also if its mission statementor articles of association stated the preservation of the building, or that typeof building, as an explicit aim (“general and collective interest”).111 However, while legal entities may qualify as an interested party despite not being the owner of an object or possessing another legal right in rem, their entitlement to the status of interested party is not unlimited. First, it is important to note that the entity or interest group must have corporate personhood in order to be considered. The requirement to have corporate personhood is a necessary (but not sufficient) condition for being considered as an interested party.112 Also, given the phrasing of Article 1:2 paragraph 3 of the General Administrative Law Act, which speaks of “(. . .) interests the legal entity particularly represents (. . .),” the objectives of a legal entity may not be too broad, as it will then not be considered as representing the relevant interests particularly.113 In conclusion to the question of who qualifies as interested party concerning the designation of an immovable object as a monument, it can be stated 110 See also the case law: VzAR 11 augustus 1976, Gst. 6417; AR 10 februari 1978, AB 1979, 17, Milieugroep Venray. 111 See the following case concerning a corporate entity that was “privately affected”: VzAR 27 februari 1986, tB/S 40. 112 Judgement of Council of State of 25 June 2003, LJN AH8637, 200202381/1. Simon H.J., Handboek Bestuurs(proces)recht volgens de AWB, 1997, p. 38. See further on the position of the stakeholder: Poorter J.C.A.d., De belanghebbende: een onderzoek naar de betekenis van het belanghebbende-begrip in het bestuurs(proces)recht, 2003. 113 ABRS 16 January 1996, Gst. 7039; Pres. Rb. Amsterdam 8 September 1995, JB 1996/25.

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that both individual persons as well as groups can fall within the ambit of interested party. While a private individual must have a right in rem in the property concerned, this is not necessarily the case for interest groups. The latter must have corporate personhood as a necessary condition, and their interest can manifest itself either in a right in rem or in the interest “it particularly represents”.114 An interested person under the Monuments Act and the General Administrative Law Act enjoys the following protection under the General Administrative Law Act where the Minister of Culture denies the request to grant protection to an immovable building as outlined in Article 3 of the Monuments Act. The decision concerning the monument status of an immovable cultural object in the sense of the Monuments Act qualifies as an administrative decision (beschikking) in the sense of Article 1:3 sub 2 of the General Administrative Law Act (Awb). As a consequence, the interested party is granted legal protection under the General Administrative Law Act in that he or she can raise an objection against the administrative decision with the administrative authority, and can subsequently lodge an appeal with the administrative law section of the district court.115 This legal protection is not available to parties who are not recognized as an interested party. Also, interested parties, whether for or against the designation as a protected monument, are granted the right to be heard by the Mayor and Aldermen.116 The duty to inform interested parties about the intention to grant protection to an object is incumbent on the Minister.117 With regard to religious monuments, owners of religious buildings are granted a more active role under the Monuments Act than that granted to others. Owners of religious buildings must not only be granted the possibility to be heard, but must be consulted. Article 2(1) of the Monuments Act stipulates that without such consultation, no decision on the designation of these monuments can be made. Religious monuments are defined by Article 1(e) as “immovable monuments that are the property of a religious denomination, (. . .) or of another spiritual organisation and that are exclusively or predominantly used for joint practise of the confession or philosophy of life.” Hence, while the literal phrasing of the Article in Dutch suggests that protection is only granted to ecclesiastical monuments rather than religious monuments in general, this extra procedural protection applies to monuments serving any

114 Judgement of Council of State of 3 September 2003, LJN AI1758, zaaknummer 200205030. 115 See Section 7 and 8 of the General Administrative Law Act (Awb) on the taking of legal action against the government. 116 Article 3(4) of the Monuments Act 1998 Article 3:13 General Administrative Law Act (Awb). 117 Article 3(3) of the Monuments Act 1998.

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religion.118 The additional protection granted to religious monuments also grants the owner an added right to veto decisions made in accordance with Articles 16 and 17 of the Monuments Act, in as far as the decision affects the substantial interests of a religious or spiritual belief (Article 18). The management, preservation and possession of protected monuments are shared between an object’s owner and the Mayor and Aldermen as an authorised lower public authority. The management and preservation must be in accordance with the provisions of the Monuments Act. Article 14a of the Monuments Act declares the General Administrative Law Act, in particular section 3.4 of the Act, applicable to the procedure for seeking and granting licenses as outlined in Article 11. As for parties not qualifying as an interested party in the sense of the Monuments Act, Article 14a(2) of the General Administrative Law Act stipulates that they may present their views on the management of the object. However, no further formal involvement exists for parties who are not the owner of a monument, nor for the lower administrative authorities in the management of protected monuments. Compliance with the Monuments Act is monitored by the Monuments division of the State Inspectorate for Cultural Heritage, which is part of the Ministry of Education, Culture and Science.119 In addition to monitoring the registration of monuments and protected areas at the national level, overseeing spatial policy relating to protected areas and maintenance of national monuments, as well as supervising the issuing of permits by municipalities for the alteration or restoration of national monuments, the Monuments division also supervises private parties involved as interested parties, specifically in the area of management and use of the monuments.120 3.1.6. Precautionary Measures for Armed Conflicts There exists no generally accepted definition of armed conflict in Dutch Law. The Dutch legislature and judge rely upon the definitions of the Geneva Conventions and their Additional Protocols.121

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The freedom of religion as granted in the Dutch Constitution in Article 6 also works through the management of protected monuments (Article 18 of the Momuments Act) as outlined further below. 119 In its current form, the State Inspectorate has existed since 1 November 2005. Before that date, the management of the different aspects of cultural heritage was split amongst four national services: the National Service for the Management of Archaeology, the National Service for the Inspection of National Archives, the National Inspection for Movable Cultural Heritage, and the National Service for the Care of Monuments. 120 Part of the Inspectorate’s website is available in English at: http://www.erfgoedinspectie .nl/page/english/home (last visited 27 March 2008). 121 E.g when the Dutch Parliament discussed the Act relating to serious violations of international humanitarian law (Act international crimes) it was explicitly stated that no definition of armed conflict would be provided. However, it was stated that the question whether or not a situation qualified as armed conflict was to be assessed on factual grounds. The analysis Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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As a state party to the following international instruments relevant for the protection of cultural heritage in the event of armed conflict, the Netherlands is legally obliged to take precautionary measures concerning (immovable) cultural heritage located in hostile territory as well as on Dutch territory: the 1899 and 1907 Convention (IV) respecting the Laws and Customs of War on Land,122 the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), including its First Protocol123 and Second Protocol.124 Given the Dutch monistic approach with respect to the effect of international treaties,125 provisions of treaties which may be binding by virtue of their contents shall become binding upon publication and do not need to be converted into national law. In a case of conflict between an international provision and Dutch statutory regulations, the latter become inapplicable.126 This is not the case for provisions that leave a certain margin of appreciation to state authorities. These provisions must first be concerted into national law before they can be relied upon in front of the court.127 With respect to the 1954 Convention and its two protocols, only the First Protocol needed to be concerted into national law, as its provisions left a certain margin of appreciation to state authorities and affected the rights and duties of the Dutch citizen.128 While the obligations require more than only the taking of precautionary measures and are applicable to both immovable and movable cultural heritage,129 the focus of this section is precautionary measures aimed at the

must take into consideration the kind and extent of the hostilities, their underlying aims, as well as the (legal) ground on which the hostilities are based. Explanatory Memorandum, Wet internationale misdrijven, Kamerstukken II 2001/2002 28337, no. 3, pp. 12–13. 122 Ratified by the Netherlands on 27.11.1909. 123 Wet van 16 juli 1958 Stb. 1985, 356, houdende goedkeuring van het op 14 mei 1954 te ’s-Gravenhage ondertekende Verdrag (. . .) en van het op 14 mei 1954 ondertekende Protocol. 124 http://portal.unesco.org/en/ev.php-URL_ID=15207&URL_DO=DO_TOPIC&URL_ SECTION=201.html#STATE_PARTIES (last visited 27 March 2008). 125 Article 93 Dutch Constitution. 126 Article 94 Dutch Constitution. 127 See in this respect Section 3.2.6. on the protection of movable cultural heritage in armed conflict, in particular the case in which the autocephalous Greek Orthodox Church of Cyprus could not recover four icons as the Netherlands had failed to implement Article 1.4 of the (First) Protocol for the Protection of Cultural Property in the Event of Armed Conflict (1954). 128 See Section 3.2.6. on the discussion of the Dutch implementation of the First Protocol by the ‘Act on the Return of Cultural Objects removed from Occupied Territories’ (Wet van 8 maart 2007, houdende regels over inbewaringneming en instelling van een vordering tot teruggave van cultuurgoederen afkomstig uit en tijdens een gewapend conflict bezet gebied). 129 See in particular the Articles 56 and 46 of the 1907 Convention (IV) respecting the Laws and Customs of War on Land) on public respectively private property. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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protection of immovable cultural heritage.130 The protection of movable cultural heritage in the event of armed conflicts discussed in section 3.2.6., below.131 In order to fulfil its obligation under Articles 1 of the 1907 Convention (IV) respecting the Laws and Customs of War on Land, including Articles 27 and 56 of the annexed Regulation, as well as Article 7 of the 1954 Hague Convention, the Royal Netherlands Army has taken a number of measures to train their military personal on how to deal with cultural heritage during armed conflict both in enemy and national territory: its Army Doctrine on Combat Operations includes a section on the protection of cultural heritage.132

130 See, for an analysis of the obligations of state parties more in general: Bos A., The Importance of the 1899, 1907 and 1999 Hague Conferences for the Legal Protection of Cultural Property in the Event of Armed Conflict, Museum International, 2005; Hladík J., The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the notion of military necessity, Revue International de la Croix-Rouge, 1999; Kastenberg J., E., The Legal Regime for Protecting Cultural Property During Armed Conflict, The Air Force Law Review, 1997; Nahlik S.E. On some deficiencies of the Hague Convention of the Protection of Cultural Property in the event of Armed Conflict, Annuaire de l’Association des Anciens Audituers de l’Academie de La Haye, 1974; Prott L., V., “The Protocol to the Convention for the Protection of Cultural Property in the event of armed Conflict (The Hague Convention) 1954”, 1996, in Briat M., & Freedberg, Judith, A. (Eds.) Legal aspects of International Trade in Art; Toman J., The Protection of Cultural Property in the Event of Armed Conflict, 1996. 131 Section 3.2.6. also discusses the legal regime recently introduced for the return of cultural objects removed from occupied territories and the protection available for cultural objects removed from Iraq after 6 August 1990. 132 Royal Netherlands Army, Combat Operations—Army Doctrine Publication II Part B: Combat Operations against a regular Enemy Force, (available online at: http://www.land machtnl/organisatie/taken/militaire_doctrineaspx), (last visited 27 July 2008): “(. . .) The protection of important cultural items is particularly significant. The Geneva Conventions can play a vital role in this respect, something which places demands on the civil-military coordination” (p. 189); “An attack in a built-up area usually gives rise to prolonged combat actions with heavy losses. As much combat support as possible must be provided. Freedom of action is limited by the need to spare the civilian population and objects of cultural value” (p. 244). As far as the territory of a hostile nation is concerned, Article 1 of the 1907 Convention (IV) respecting the Laws and Customs of War on Land obliges the state parties to issue instructions to their armed land forces that are in conformity with the ‘Regulations respecting the laws and customs of war on land’ as annexed to the Convention. Article 27 of the 1907 Convention (IV) respecting the Laws and Customs of War on Land holds that during hostilities “all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments (. . .) provided they are not being used at the time for military purposes.” With respect to a foreign military rule over hostile territory, Article 56 stipulates that “[t]he property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings”. Further to the 1907 Convention (IV) respecting the Laws and Customs of War on Land, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict in its Article 7 requires state parties to “introduce in time of peace into their military regulations or instructions such provisions as may ensure observance of the (. . .) Convention, and to foster in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples”.

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Furthermore, in line with Article 7(2) of the 1954 Hague Convention, the Royal Netherlands Army operates a section dedicated to preparing military personal on how to deal with cultural heritage during armed conflict both in enemy and national territory.133 As far as precautionary measures for the protection of immovable cultural heritage in Dutch territory is concerned, Article 27 of the Convention (IV) respecting the Laws and Customs of War on Land, as well as Article 3 and Article 16 of the 1954 Hague Convention, and Article 5 of the Second Protocol, oblige the State Parties to take appropriate measures in times of peace for the foreseeable effects of an armed conflict. One such measure is the identification and marking of buildings as referred to in Article 27 of the 1907 Convention,134 as well as in Article 8 of the 1954 Hague Convention and Article 13 of the annexed Regulation. In the Netherlands, the identification of immovable cultural property falling under the special protection regime of the Conventions was carried out by the cooperation of the then Ministry of Culture, Social Well-Being and Recreation (now the Ministry of Education, Culture and Science) and the then National Service for Monument Care (now the RACM).135 In the first instance, some 100 monuments were granted special protection and were marked with the symbol of the “Blue Shield.”136, 137 The Netherlands has integrated preventive protection of cultural objects against endangerment in times of war into the general regime for the protection of cultural heritage against calamities. The respective responsibilities are shared between the national, provincial and local authorities as (partly) spelled out in the Act on the Improvement of Disaster Relief. According to the Act, which entered into force in July 2004, the protection of cultural property must become an integral part of the local plans on disaster relief.138

133 The ‘Sectie Cultuurhistorische Achtergronden en Informatie’; in English: Division on Cultural-Historical Backgroud and Information. See: http://www.landmacht.nl/organisatie/ Eenheden/Ondersteuningsgroep_CLAS/index.aspx. See further on special units of / working together with the Royal Netherlands Army on the protection of cultural objects in times of war: http://www.landmacht.nl/organisatie/taken/Internationale_taken/Cimic/Organisatie_ CIMIC.aspx and http://www.mindef.nl/actueel/parlement/kamervragen/2004/2/20040625_ erfgoedirak.aspx (last visited 27 March 2008). 134 Article 27 is relevant not only to immovable cultural heritage, but refers to “buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected”. It is important to note that the protection cannot be upheld in case the buildings are used for military purposes, as stressed by Article 27, as well as Article 23(5) of the Convention. 135 The old regime is outlined in: Ministerie van Welzijn V.e.C., Cultuurbescherming in buitengewone Omstandigheden, 1991. 136 See Articles 15 and 16 of the 1954 Hague Convention. 137 Telephonic inquiry on 7 April 2008 with Jan Willem van Beusekom from “Erfgoed Nederland” and Benedict Goes from Icomos Nederland. 138 See Letter of the Minister of Foreign Affairs dated 21 November 2006, Tweede Protocol bij het Verdrag van ’s-Gravenhage van 1954 inzake de bescherming van culturele goederen

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In 2000, Blue Shield Nederland was founded as a non-governmental organization focusing on the protection of Dutch cultural heritage against threats caused by natural disasters, molest and military actions, and on the coordination of national and international help.139 In 2003, the Cultural Emergency Response (CER) program was founded by the Prins Claus Fonds. The program seeks to grant “first aid” to cultural heritage damaged or destroyed by human or natural catastrophes. The predominant aims are stabilization of the situation, prevention of further damage and loss, and performance of basic restorations.140 3.1.7. Immovable Underwater Cultural Heritage Despite the great relevance of maritime commerce in Dutch history, there is no significant tradition of protecting underwater cultural heritage.141 When the UNESCO Convention on the Protection of the Underwater Cultural Heritage was voted upon by the plenary session of the 31st General Conference of UNESCO, the Netherlands abstained. It did, however, declare that it would look into the possibilities of joining the Convention.142 While this does not mean that the protection of cultural heritage located underwater is unregulated, no specific laws on underwater cultural heritage exist. Instead, in response to the intensification of underwater activities in the 1970s and 1980s due to more advanced techniques, protection of underwater cultural heritage was brought under the scope of the 1988 Monuments Act.143 As outlined above, the Monuments Act regulates the protection of different categories of protected (immovable) objects. The protection of maritime heritage is subsumed under the protection of archaeological monuments through the protection of sites holding monuments rather than the protection of monuments as such. Article 47a of the Monuments Act declares Articles 45–47 of the same Act applicable to the contiguous zone of the Kingdom, as

in geval van een gewapend conflict; ’s-Gravenhage, 26 maart 1999 (Trb. 2005, 279), 30 894, Nr. 1, p. 7. 139 http://www.blueshield.nl/index.en.html (last visited 27 March 2008). 140 http://www.princeclausfund.org/en/what_we_do/cer/index.shtml (last visited 27 March 2008). 141 Maarleveld T., “The Netherlands”, 2006, in Dromgoole S. (Ed.) The protection of the underwater cultural heritage: national perspectives in light of the UNESCO Convention 2001, p. 161. 142 Ibid., p. 162. The Netherlans is a State Party to the United Nations Convention on the Law of the Sea (UNCLOS) and has its maritime zones categorised in accordance with UNCLOS. While the Dutch territorial waters originally extend only 3 nautical miles from the baseline, it was extended to 12 nautical miles in 1985 by legal act (Stb. 1985, 129). See further: Kooijmans P.H., Internationaal Publiekrecht in Vogelvlucht, 2002, p. 47. 143 Maarleveld T., Archaeological heritage management in Dutch waters: exploratory studies, 1998, p. 169. Kamerstukken II 1986–1987, 19881 nr 3 pp. 10–11; Kamerstukken II 1987– 1988, 19881, nr 6 p. 25. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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established and outlined in Article 1 of the Act.144 The the contiguous zone is defined as “the zone outside of and contiguous to the Kingdom’s territorial sea, which may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.” Article 45(1) of the Monuments Act prohibits excavations conducted without, or deviating from, a license granted by the Minister. The granting of such a license depends on the expertise of the person wishing to excavate and can be subjected to certain conditions (Article 45 (2)–(3)). Article 46 imposes a far-reaching duty on the holder of the permit to report on the progress of the excavations. In cases where the holder of the permit does not live up to the conditions, or his expertise is no longer warranted, the permit can be withdrawn (Article 47). In accordance with Article 50 of the Monuments and Historical Buildings Act ownership of excavated underwater cultural heritage falls into the hands of the State.145 Since 2006, the management of underwater cultural heritage is one of the tasks of the National Service for Archaeology, Cultural Landscape and Built Heritage (RACM). RACM was set up in 2006 as a merger of the former Netherlands Department for Conservation (RDMZ), the National Service for Archaeological Heritage (ROB), and the Netherlands Institute for Ship and Underwater Archaeology (NISA).146 As a government agency, RACM is part of the Ministry of Education, Culture and Science and operates under the direct responsibility of the Minister.147 RACM is also currently involved in a European project on Managing Cultural Heritage Underwater.148 3.2. Movables 3.2.1. Criteria for Designation of Movable Cultural Heritage The Dutch legal system on the protection of cultural heritage makes a strict distinction between the protection of immovable cultural property as outlined above, and movable cultural property.149 It was upon adoption of the 144

Rijkswet van 28 april 2005 tot instelling van een aansluitende zone van het Koninkrijk (Rijkswet instelling aansluitende zone), Stb. 2005, 387. 145 Salomons A.F., Nieuwe regels omtrent de eigendom van roerende monumenten ingevolge de Wet op de Archeologische Monumentenzorg, Weekblad voor Privaatrecht, Notariaat en Registratie, 2007, p. 615; Explanatory Memorantum, kamerstukken II, 2003/04, 29259, no. 3, p. 24. 146 Maarleveld T., Archaeological heritage management in Dutch waters: exploratory studies, 1998, pp. 166–167. 147 http://www.racm.nl/content-en/xml_racm/engels_intro.xml.asp (last visited 27 March 2008). 148 See for more information the project’s website at: www.machuproject.eu. 149 An exception is movable cultural objects prior and subsequent to their excavations that are governed by the Monuments Act. See Section 3.1.2. The strict restriction has been Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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first national regulation on immovable cultural objects that protection of movable cultural objects became the subject of regulation. Only in the early 1980s did the Dutch government change its belief that specific protection for movable cultural objects was unnecessary, would infringe too greatly on owner’s rights, and would result in too great an administrative burden.150 In 1984, the Cultural Heritage Preservation Act (Wet tot behoud cultuurbezit) (hereinafter: “the CHP Act”) entered into force.151 Since then, the applicable rules on the protection of Dutch movable cultural property have undergone several revisions. The most notable amendments occurred in 1995, for the purpose of harmonizing the CHP Act with European Community Law.152 The main goal of the CHP Act is prevention of the loss of objects that are significant to Dutch cultural history, and it is specifically concerned with the loss of access to the objects through export.153 Given that the danger of unknowingly and unwittingly losing such objects is particularly eminent for objects in private collections, the CHP Act applies first and foremost to privately owned objects. Objects in public collections are considered adequately protected by virtue of their inclusion in a public collection. The CHP Act utilizes a list system in order to protect against the exportation of specific objects from private collections; this stands in contrast to the criteria system used in the United Kingdom, whereby all exports exceeding a certain value must be checked against the so-called Waverley criteria.154 In fact, this object-specific protection is a cornerstone of the Dutch system of protecting its cultural heritage. The advantage of working with a set and known number of objects is that it allows for greater legal security and visibility. The disadvantage of a set list is its lack of flexibility and capacity to act; a set list creates an increased need to screen cultural objects prior to an envisaged export.155 Currently, 270 individual objects and 31 collections are listed in the specific inventory to be maintained by the Minister under the CHP Act (the

criticised in particular with regards to so-called ensembles consisting both of immovable and movable objects. See further Section 3.1.1. and Werkgroep Onroerend/roerend, Van Object naar Samenhang—De instandhouding van ensembles van onroerend en roerend cultureel erfgoed, 2004. 150 Kamerstukken II 1959/1960 4115 no 5, p. 2. 151 Wet tot behoud van cultuurbezit, Act of 1 February 1984, Stb. 1984 No. 49. 152 See below at subsection 3.2.4.2. 153 Article 7. 154 During the evalution of the Cultural Heritage Preservation Act, the State Secretary of Culture explicitly referred to the English system according to which each eport of an object older than fifty years and above a certain value must be checked against the so-called Waverley criteria. See further: Memorie van Toelichting, 27 812, no. 3, pp. 3–4, para. 4. 155 See further below on the emergency procedure granted to the Minister of Culture in case of an envisaged export of cultural heritage value but not yet registered under the CHP Act. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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so-called Cultural Heritage Protection list).156 The Dutch State Inspectorate for Cultural Heritage estimates that the total number of objects (single objects plus objects from the designated collections) ranges from 60,000 to 70,000 objects. The inventory knows only one level of protection. No public electronic inventory of the list exists, but a copy of the list can be obtained from the State Inspectorate on Cultural Heritage. As this amount only reflects objects and collections held privately, it is not representative of the overall number of objects considered relevant to Dutch cultural heritage. Publicly owned movable cultural objects cannot be found on the list, but are found instead in the ‘inventories of the respective institutions. State owned collections are supervised by the State Inspectorate for Cultural Heritage. The foundation for Ecclesiastical cultural objects has made an inventory of ecclesiastical objects in the Netherlands.’157 As a precondition for designation under the CHP Act, the object must be located in the Netherlands. While the nationality of the owner is irrelevant, some exceptions exist in order to comply with the fundamental EU principle of free movement of persons, or to discourage loans. When an owner of a cultural object relocates to the Netherlands for a limited time, the Minister can issue a guarantee that the cultural object will not be designated as protected under the CHP Act.158 The same applies when owners living outside of the Netherlands loan cultural objects for exhibition in the Netherlands. To receive protection under the CHP Act, an object must be deemed both irreplaceable and indispensable for Dutch cultural heritage.159 Hence, not every object of cultural-historical value is included on the list of protected objects. Instead, only if there are no similar objects present in the Netherlands160 (the criterion of irreplaceability) and only if the object fulfils one of the following functions stipulating indispensability, will it be protected under the Act: a symbolic function, a “linking function” or a “reference function.”161 An object has a symbolic function if it serves as memory of historically important persons or events.162 Examples are the “Portrait of Jan Six” by Rembrandt and the decorated furniture in the castle of Amerongen, which was a present by “stadholder” (vice-regent) Willem III. The other two alter-

156 Article 3c. See for the discussion in parliament: Memorie van Toelichting, 27 812, no. 3, pp. 19–20. 157 Idem. 158 Article 5. The requirement that an object is located in the Netherlands, as well as the position of the owner was discussed in a case concerning a mechanical street organ ‘De Lekkerkerker’. Unpublished case AR 28 December 1993. Excerpts of the case reproduced in: Sjouke P.S., Wet tot behoud van cultuurbezit / P.S. Sjouke, 2007, pp. 75–76. 159 Article 2. 160 Article 2(2). 161 Article 2(3). 162 Article 2(3)(a).

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native criteria for judging indispensability are formulated rather cryptically and are party overlapping: a “linking function” (in Dutch: schakelfunktie) is explained as the “functioning of an object or collection as an essential element in a development that is of great importance for the exercise of scholarly work, including the science of culture.”163 An object is considered to have a “reference function” (in Dutch: ijkfunctie) if it “served as a starting point for the development for other scientific or artistic objects.”164 Unfortunately, the exact scope of these functions is nowhere elaborated upon—neither in the legislative history nor in case law. While the criteria were discussed during an evaluation of the CHP Act in 1998 and 1999, no further light was shed on the meaning of the “linking function” or the “reference function.” Instead, the discussion centered on the merits of including additional cumulative or supportive criteria in the CHP Act. In the end, the Council for Culture, as the main advisory body for the Dutch Government on cultural policy matters, confirmed the existing criteria of the CHP Act and held that there was no need to introduce further criteria such as “artistic value” or “presenting value”.165 Where an object fulfils the criterion of irreplaceability, and one of the three criteria stipulating its indispensability, it can be designated as a protected object under the CHP Act.166 While any citizen can suggest the granting of protection to an object by writing a letter to the Ministry of Education, Culture and Science, it is the Minister of Culture, advised by the Netherlands’ Council for Culture, who ultimately decides whether protection is granted or not.167 Compared with the U.K. system, under which all objects above a certain value threshold must be judged by the Waverley criteria, the Dutch system is rather inflexible and unable to react quickly to potential exports of objects that are yet unregistered but nevertheless relevant to Dutch cultural heritage. For this reason, an emergency procedure has been introduced.168 Under this procedure, the Minister can bring an object under the protection of the Act without first having to seek the advice of the Council for Culture. The advice of the Council for Culture must, however, be sought directly afterwards.

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Article 2(3)(b). See also: Memorie van Toelichting, 27812, nr. 3, p. 8 para. 7. Article 2(3)(c). See also: Memorie van Toelichting, 27812, nr. 3, p. 8 para. 7. 165 See also: Memorie van Toelichting, 27812, nr. 3, pp. 8–9, para. 7. “Artistic value” and “presenting value” as additional criteria were rejected for they were too difficult to define and their evaluation would depend too much on subjective factors and the zeitgeist. 166 Article 1. 167 Article 2(1) for single objects & Article 3 in respect of collections junto Article 3c specifying the registration of the objects in the list. See above, in the section on immovable cultural heritage on a short explanation on the Council for Culture. 168 Article 3a. 164

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Once an object has been designated as a protected object it keeps this status, unless and until its declassification by the Minister of Culture.169 The Minister’s decision to grant, deny, or withdraw an object’s protection under the CHP Act qualifies as an order under the General Administrative Law Act (Awb).170 The General Administrative Law Act regulates the activities of public authorities.171 Not only does it provide public authorities with the legal instruments to fulfil their administrative tasks, it also grants protection to citizens against the activities of public authorities.172 As an interested party in the sense of the General Administrative Law Act, the owner of an object can take legal action against an order he or she disagrees with. As a first step, he or she must register an objection with the special commission of the Ministry of Education, Culture and Science. Thereafter, the owner can lodge an appeal against the decision of the commission with the administrative law section of the district court.173 As noted above, the main purpose of the CHP Act is to prevent the export of a protected object or collection. To achieve this end, the CHP Act makes any transfer or relocation of property, even within the Netherlands, subject to notification of the inspector appointed by the Minister to oversee compliance with the Act.174 Since the merger of four sub-organs of the Ministry of Education, Culture and Science in 2005, the task of the inspector is fulfilled by the State Inspectorate for Cultural Heritage. In as far as transfers and sales within the Netherlands are concerned; the original owner’s obligation is limited to communicating the sale, as well as the name and address of the new owner, to the State Inspectorate. There is no obligation to do so prior to the sale. This is in contrast to an object that is taken abroad. Regardless

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Article 3d(2). Wet algemeen Bestuursrecht, in particular Article 1:3(1) AWB according to which an order is defined as: a written ruling of an administrative authority constituting a juristic act under public law. See for a short explanation of the Dutch administrative law in English: http://www.rechtspraak.nl/Information+in+English/The+structure+of+the+judiciary+syste m/Administrative+law/ (Last visited: 24 March 2008). 171 See, e.g. Article 14a of the Monuments Act. 172 Wijk H.D.v., et al., Hoofdstukken van bestuursrecht, 2005, p. 1. See Section 5 on the position, role and involvement of communities, groups or relevant non-governmental organizations in the process of declaring immovable property. 173 Article 1:5 of the General Administrative Law Act & Chapter 6 of the Act holding General provisions concerning objections and appeals. See for an English translation of the General administrative law act: http://www.justitie.nl/images/Wettekst%20Awb%20Engelse%20 Versie_tcm34-2121.pdf (Last visited: 24 March 2008). There has been one of appeal against the denial of the Minister of Culture (then the State Secretary of Culture) to grant protection to a collection of paintings and drawings allegedly by Van Gogh: ARRvS 10 September 2003, LJN AJ 3289. The court held that given the doubts of the experts from the Van Gogh Museum regarding the authenticity of (some of) objects from the collection, the criteria of “irreplaceability and indispensability” were not fulfilled and there was no need for further looking into the authenticity of the collection as had been alleged by the appealing owner. 174 Article 7 juncto Article 1(f ). 170

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of whether it is abroad temporarily for example, as part of an exhibition, or permanently, for example as part of a sale notification must be made prior to the object’s transfer. For cases involving an object’s export, only the Minister can grant permission. Failure to notify the State about the transfer of a protected object qualifies as an economic crime175 and can be prosecuted under the criminal law. Not notifying the Minister does not as such affect the transfer of the property, irrespective of the state of mind of any of the parties. There is no provision in the CHP Act that renders a sale or transfer abroad invalid. However, if the object has been sold or transferred to another EU Member State, the Netherlands can initiate proceedings for the object’s return under Directive 93/7/EEC.176 The State Inspectorate and Minister have four weeks to act upon an owner’s notice. The Minister can extend this period for another eight weeks. Upon lapse of the time period, the owner is notified by the State Inspectorate through the Minister as to whether or not the interests protected by the CHP Act stand in the way of his planned movement of his property. Upon approval by the Minister, the owner is free to carry out the notified action for a period of a year. If the Minister denies an export for sale abroad, the denial creates an offer by the State to purchase the object.177 In case the State and the owner cannot agree upon a price, the district court of The Hague has jurisdiction to determine the amount.178 One such case concerned a painting by Cézanne. ‘Paysage près d’Aix avec la tour César’ had been designated as a protected object under the CHP Act in 1985. In 1995, the owner of the painting informed the Minister about his intention to sell the painting abroad. The export was denied because of the painting’s importance for the Dutch cultural heritage. The State made an offer to purchase the painting for 6.5 million Dutch Guilders.179 The owner rejected the price on the grounds that it did not reflect the full market value. When it became evident that the parties could not agree upon a price, the district court of The Hague was called upon pursuant to Article 12(2) of the CHP Act. The court sought expert opinion on the value of the painting and set the price at 15 million Dutch Guilders,180 more than twice the amount

175 Article 1(2) of the Wet op de Economische Delicten (WED, 22 juni 1950) WET van 22 juni 1950, houdende vaststelling van regelen voor de opsporing, de vervolging en de berechting van economische delicten. The sanction can range between a maximum of six years imprisonment and a fine in the fifth category if the violation has been deliberate, to custody for a maximum of a year and a fine of the forth category (Article 6). 176 Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State. See further on the Directive Section 3.2.4.2. 177 Article 7, Article 10 and Article 12. 178 Article 12. 179 Approximately 3.1 million Euros. 180 Approximately 6.8 million Euros.

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of the State’s offer.181 As a consequence, the Cézanne was the first painting designated as cultural heritage that could not be acquired by the State. However, before the painting was sold abroad, a private individual acquired it and loaned to the Museum Boijmans Van Beuningen in Rotterdam. The Minister of Culture agreed to stay the application of the CHP Act for a period of eight years. While the concession was received critically by the Council for Culture, which learnt about it only after it had been granted, the period of eight years has by now lapsed and with it the threat of selling the painting abroad.182 From what has been set out above, it becomes evident that protection granted to cultural objects designated under the CHP Act first and foremost focuses on protecting the territorial link of the objects with the Netherlands. The CHP Act is less relevant with respect to the physical protection or preservation of designated objects. While the CHP Act provides for subsidies for the restoration of designated objects up to 60% of the restoration costs, the owner cannot be forced to restore the object concerned. In addition to financial support for restoration, owners are also granted some advantages with respect to inheritance taxation. 3.2.2. Involvement of Communities in Designation of Movable Cultural Heritage and Management As outlined above, it is the Minister of Culture, advised by the Netherlands’ Council for Culture who decides whether or not an object is granted protection.183 While any citizen, community, group or non-governmental organization can suggest the granting of protection to an object by writing a letter to the Ministry of Education, Culture and Science, there is no formal recognition of their involvement in the protection of Dutch cultural heritage, unless of course they are involved as the owner of an object once designated by the Minister as worthy of protection. Owners of protected objects have special rights (e.g. to receive subsidies for the restoration of the object) and duties (notifying the Inspectorate about relocations of the object both in and outside of the Netherlands) that follow from the designation of the object as protected.

181 District Court of The Hague, 14 January 1998, Prg. 1998, p. 395. Excerpts from the case are published in: Sjouke P.S., Wet tot behoud van cultuurbezit / P.S. Sjouke, 2007, p. 86. 182 Letter by Council for Culture to State Secretary with subject ‘Painting Cézanne’ dated 1 September 1998. As of today, i.e. after the lapse of the eight years during which the painting was granted not to be listed, the museum still holds the painting in loan. Information received from conservator of the Boijmans Van Beuningen Museum by telephonic inquiry on 24th March 2008. 183 Article 2(1) for single objects & Article 3 in respect of collections junto Article 3c specifying the registration of the objects in the list. See above, in the section on immovable cultural heritage on an short explanation on the Council for Culture.

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The composition of the Council for Culture does not seek to reflect the composition of the Dutch population, nor the interests of particular communities or groups. Instead, as the main advisory body for the Department of Culture, the Council’s members are appointed for their specialist knowledge and their broad vision on the cultural policy field. Once designated under the CHP Act, the management and supervision of the Dutch cultural heritage falls to the State Inspectorate for Cultural Heritage (Erfgoedinspectie), in particular the Collection Division. The Inspectorate, which is part of the Ministry of Education, Culture and Science, monitors the registration, conservation, storage, and risk management of protected objects. In cases where an owner wishes to move a protected object within the territory of the Netherlands, the State Inspectorate must be notified.184 Furthermore, the State Inspectorate has been mandated to grant permissions for temporary export of objects on behalf of the Minister. Finally, the State Inspectorate, in cooperation with the Tax Authorities and Customs, oversees the granting of export licences for temporary exports outside of the territory of the European Union, in accordance with Council Regulation (EEC) N° 3911/92.185 3.2.3. Application of Property Law to Movable Cultural Heritage Before setting out the Dutch regime applicable to the finding of a precious object or an archaeological discovery outside of planned and licensed excavation works, it must be stressed that valuable objects in the ground are not considered as component parts of the ground but instead as movable objects in and of themselves.186 As a general rule, Dutch property law applies to movable cultural heritage.187 While movable cultural heritage was never considered to be a res extra commercium, the removal of this Roman legal concept from the new Dutch Civil Code excludes all possible doubt.188 The fact that Dutch property law applies to movable cultural heritage does not mean, however, that it is dealt with in exactly the same manner as any other object (thing) in the sense of Article 2:1. The DCC, defines objects (literally: “things”)189 as “individual, independent corporeal objects that can 184

Article 7 Cultural Heritage Preservation Act. Council Regulation (EEC) N° 3911/92 of 9 December 1992 on the export of cultural goods. 186 Ploeger H.D., Horizontale splitsing van eigendom, 1997, p. 14. 187 Maarleveld T., “The Netherlands”, 2006, in Dromgoole S. (Ed.) The protection of the underwater cultural heritage: national perspectives in light of the UNESCO Convention 2001, p. 177. 188 Mijnssen F.H.J., et al., Mr. C. Asser’s handleiding tot de beoefening van het Nederlands burgerlijk recht. 3 Goederenrecht. Deel I. Algemeen goederenrecht, 2006, pp. 90–91, para. 96. 189 It is important to realize, especially when reading pre-1992 literature dealing with property rights that with the introduction of the new DCC in 1992, the use of terminology, in particular the relationship between “things” (zaken) and “assets” (goederen) changed. While under 185

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be susceptible to human control.” As far as the balance struck in Dutch law between the protection of movable cultural heritage on the one hand and legal certainty on the other, Section 3.2.4 will discuss the greater protection awarded to movable cultural heritage190 in the form of longer prescription periods is explained. In this section, the Dutch regime of treasure trove as outlined in Article 5:13 DCC will be elaborated upon. The Dutch rules on treasure trove are best explained by illustrating it with a real case as tried by the district court of Utrecht:191 In 2000, the City of Woerden had asked a company specialized in earthworks to unearth a street. During the digging works, not qualifying as licensed archaeological excavation, an employee of the company found a helmet dating from Roman times and subsequently sold it for 6,000 Guilders.192 The city of Woerden tried to recover the helmet, arguing that the employee did not have the right to dispose of the helmet without the city’s consent. According to the city, the employee could not have acquired property of the helmet. The reasoning of the city was incorrect as the helmet had not been found in an area that had been granted protection under the Monuments Act. Consequently, the provisions of the Monuments Act as lex specialis to the general rules on treasure trove and the law of finds did not apply to the excavated helmet. Consequently, the court determined ownership in accordance with Article 5:13 DCC on treasure trove. Article 5:13 DCC holds a specific regime for objects qualifying as “an object of value which has been hidden for so long that the owner can no longer be traced” (Article 5:13(2) DCC) to the general law of finds that applies to non-valuable objects.193 The latter is regulated in Articles 5:5–5:12 DCC.194 the old DCC “thing” (zaak) was the generic term, it has become subordinated under the new Civil Code to the term “assets” (goederen) that had until 1992 been the subordinate term. See on the change in terminology: Rayar L., et al. (Eds.), The Dutch penal code / transl. [from the Dutch], (1997), p. xvi; Mijnssen F.H.J. / Haan, Asser Serie 3 I Goederenrecht, 2001, p. 42. 190 Here, movable cultural heritage must be understood as objects designated under the Cultural Heritage Preservation Act, as well as objects from public collections. 191 District Court Utrecht 5 February 2003, NJ 2003, 211, AF4007. 192 Approximately 2,700 Euro. 193 Forder C., Treasure Trove in the Netherlands: Article 13 of Book 5 of the New Dutch Civil Code, International journal of cultural property, 1992, p. 413. See further on different understandings on what qualifies as valuable object: Boer J.d., De schatvinding in het ontwerp B.W. en de Monumentenwet, mede gezien in het licht van haar geschiedenis, RM Themis, 1973, p. 463; Fikkers H., „Wie een leeuw op straat vindt, moet deze niet thuis kunnen houden“, 1992, in Snijders H.J. / Zwitser R. (Eds.) Tot persistit! opstellen aangeboden aan HJ Snijders, ter gelegenheid van zijn afscheid als hoogleraar privaatrecht aan de Erasmus Universiteit Rotterdam, p. 135; Salomons A.F., Nieuwe regels omtrent de eigendom van roerende monumenten ingevolge de Wet op de Archeologische Monumentenzorg, Weekblad voor Privaatrecht, Notariaat en Registratie, 2007, pp. 614–615. 194 As far as non-valuable obects are concerned the finder has to report the find promptly to any local autority (Article 5:5 (1) & (2). The finder, who complied with the duty to report the find acquired ownership of the object one year after the report (unless recovery of the objects has been sought in the meantime by the rightful owner) (Article 5:6 DCC). In case the rightful Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Ownership in the case of a discovered treasure is divided in equal shares between person discovering it and the owner of the immovable or moveable object in which the treasure is found (Article 5:13 (1) DCC). The finder is obliged to report his find promptly to any local authority, in accordance with Article 5:5 (1)(a).195 In case that there exists uncertainty regarding the (valuable) object’s property statues (i.e. in case an object might have been hidden for a short while only) the public authority can require custody of the object until the ownership question has been ascertained (Article 5:13 (3) DCC). In the case of the Roman Helmet the City of Woerden had to swallow the bitter pill that the property rights to the helmet were governed by Article 5:13 DCC and that it had to share ownership rights with the employee who had discovered the helmet. As a consequence, the employee did have the right to dispose of his share ownership with respect to the helmet. Given that no action of recovery exists against a co-proprietor, the City of Woerden could not recover the helmet from the person who acquired half of the property from the employee. 3.2.4. Protection for Movable Cultural Heritage That Has Been Stolen and Is Subject to Illicit Import, Export or Transfer of Ownership In the following paragraphs the legal protection available under Dutch law for movable cultural property will be outlined. While one will look in vain for a provision under Dutch law declaring the import of objects exported illegally elsewhere illicit, as is the case with the Canadian Cultural Property Export and Import Act,196 the Dutch Civil Code (DCC), the Cultural Heritage Preservation Act (CHP Act), as well as the Code on Civil procedural law provide for a complex system of protection. In fact, different regimes of protection exist under Dutch law, depending on the circumstance of a case. In the first place, one must not oversee the regime as it generally applies in the Netherlands to any (stolen) object. The need to outline this general regime is three-fold: not only is it the regime that governs many cultural objects not being specially protected under the Cultural Heritage Preservation Act (CHP Act). In fact, the majority of cultural objects, such as paintings from private collections are not affected by the CHP Act but fall under the general regime, just like any other movable objects, be it a bicycle or a television set. In the owner recovers the object, the finder who has complied with the obligations imposted upon him is entitled according to the circumstances, to a reasonable reward (Article 5:9(2) DCC). See further: Reehuis W.H.M.R. / Heisterkamp A.H.T., Goederenrecht, 2006, pp. 404–406; Nieuwenhuis J.H., et al., Vermogensrecht—Tekst & Commentaar, 2007, pp. 377–387. 195 Article 5:13 (3) DCC. 196 Cultural Property Export and Import Act (R.S., 1985, c. C-51), Section “Foreign Cultural Property”, which prohibits the import of cultural property that has been illegally exported from a country with which Canada has a cultural property agreement on illicit traffic, including the 1970 UNESCO Convention. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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second place, in the absence of Dutch ratifications of international treaties on this matter,197 in particular the 1995 Unidroit Convention, this general regime also applies to cultural objects originating outside of the European Union (provided that Dutch law applies according to the rules private international law).198 Finally, once the general regime has been outlined, one can better understand the regime applicable to Dutch national treasures and cultural objects unlawfully removed from other EU Member States. Once the general Dutch regime has been outlined (3.2.4.1), in particular at the balance the system strikes between the protection of the interests of a dispossessed owner and legal certainty in property transactions, including the protection of a bona fide third party, the analysis will turn to the protection available in the Netherlands for national treasures unlawfully removed from other EU Member States (3.2.4.2). The choice for jumping directly to the protection available to objects originating outside of Dutch territory before turning to the protection available for Dutch national treasures and objects from Dutch public collections (3.2.4.3) is motivated by the fact that the protection of the latter has only been introduced parallel to and inspired by the implementation of Directive 93/7/EEC.199 3.2.4.1. General Regime Applicable to Stolen Objects in the Netherlands: the Right to Recovery, Transfer of Property, and the Protection of Third-party Buyers under the Dutch Civil Code (DCC) The regime that will be outlined in this subsection applies to cultural objects stolen from private Dutch collections (not listed under the CHP Act), as well as to objects stolen in foreign countries that are not EU Member States. To start with, Dutch property law underwent significant changes when the Dutch Civil Code was amended during the years 1970–1992. The relevant provisions on the protection of stolen cultural objects, or rather the protection of the rights and interests of the original owner of a cultural object and a subsequent bona fide purchaser, can be found in Books 3 and 5 of the

197 At the time of writing this report, ratification and implementation of the 1970 UNESCO Convention was pending. The Convention was finally ratified on 9 June 2009 before this publication went into press. Changes brought about by the convention have not been integrated in the text. 198 Under Dutch private international law, the rule of lex rei sitae applies to immovable and movable property. Since the introduction of Act of 25 February 2008 on conflict rules (Wet van 25 Februari 2008 houdende regeling van het conflictenrecht betreffende het goederenrechtelijke regime met betrekking tot zaken, vordeingsrechten, aandelen en giraal overdraagbare efecten, stb. 2008, 70) the application of the rule of lex rei sitae for movable objects has been codified (Art. 2(1)). Prior to the introduction of this act, the application of the lex rei sitae rule for movable property was based on unwritten law (see, e.g.: District Court Amsterdam 27 November 1932, NJ 1935, p. 657); Rotterdam 4 februari 1999, 44053/ HA ZA 96–2403 NJ kort 1999/37, at para. 5.6.1.; HR 8 May 1998, NJ 1999, 44. 199 Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State.

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new Dutch Civil Code (hereinafter DCC).200 Book 3 on Patrimonial Law in general (Law of Property, Rights and Interests) deals with all patrimonial rights, including property as a specific form of patrimonial rights, whereas Book 5 on real rights focuses on property in particular. Book 5 deals with the substance of proprietary rights and the rights of an owner. According to Article 5:1 DCC, ownership is the “most comprehensive right that a person can have in a thing”. From his property right, the owner derives a number of legal actions. The most important action regarding movable objects is the action of revindication as laid down in Article 5:2 DCC: “The owner of a thing is entitled to revindicate (recover) it from any person who holds it without right.” Due to extinctive prescription, the action to revindication is no longer available after a lapse of twenty years from the day that a different person from the right holder has taken possession of the property (Article 3:306 DCC juncto Article 3:314(2) DCC). The owner does not lose the right to revindication as such, but his action is barred leaving him with a moral claim he or she can no longer enforce. However, in a great number of cases, the original owner will not be able to recover his property due to acquisitive prescription. The rules on transferring property and the protection of third parties when acquiring a stolen object are laid down in Book 3. The general rule on the transfer of property is provided by Article 3:84 DCC and requires a “delivery pursuant to a valid title by the person who has the right to dispose of the property”. There are hence three requirements that must be met for a valid transfer of property: delivery, valid title and the right to dispose of the object concerned.201 In case of stolen objects, and in accordance with the nemo dat rule, the third requirement, i.e. the right to dispose of an object, is not met. Due to the absence of the right to dispose of the property, the property is not lawfully transferred. The general rule on the transfer of property is, however, compromised by Article 3:86 DCC, which holds a cure to the absence of the right to dispose of a property. According to this article, “a transfer (. . .) of a movable object (. . .) despite the alienator’s lack of the right to dispose of the property is valid,

200 The new Dutch Civil Code consists of eight Books, each dealing with a specific subject of private law. Book 1: Individuals and Family; Book 2: Legal Entities; Book 3: Patrimonial Law (Law of Property, Rights and Interests) in general; Book 4: Inheritance/Succession; Book 5: Law of Obligations; Book 6: Contracts, Definitions; Book 7: Specific Contracts I; Book 7(a): Specific Contracts II; Book 8: Movement Resources and Transport. In the notation of specific articles, e.g. Article 3:1 DCC the number before the colon denotes the relevant book, whereas the number after the colon refers to the specific article. In the example of Article 3:1 DCC, we are looking at Article 1 of Book 3 DCC. 201 In case of movable property, delivery is generally achieved by giving the acquirer physical possession of the object. A title must be understood as the legal relationship between the alienator and acquirer that justifies a transfer. The most common title is sale.

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provided that the transfer202 is not by gratuitous title and the acquirer acts in good faith.” The requirement that the transfer must not be by gratuitous title does not mean that the acquirer has to pay the full market value of the object to be transferred. As far as the requirement of good faith on behalf of the acquirer is concerned, the following aspects should be mentioned: The relevant moment that the acquirer must act in good faith is the moment he or she obtains possession of the object in question. While the Dutch Civil Code does not spell out what constitutes good faith, Article 3:11 sets out when an acquirer is considered not to act in good faith: “Where the good faith of a person is required to give legal effect to something, such person does not act in good faith if he or she knew, or ought to have known given circumstances, of the facts or the law to which good faith must relate (. . .)”.203 According to Article 3:11, an acquirer is presumed to have acted in good faith. The burden of proof to show that someone did not act in good faith rests upon the party seeking revindication (Article 150 of the Civil Procedure Code).204 In a case where the acquirer acted in good faith and gave some form of remuneration, he or she acquires the property despite the alienator’s missing right to dispose of it. Consequently, the original owner can no longer recover the property.205 The cure offered by Article 3:86 DCC against the absence of the right to dispose of a property, does not as such apply to cases where the original owner lost his possession of the object involuntarily, for example, due to theft. In the case of stolen objects, the original owner is granted a period of three years to recover his object as stated by Article 3:86(3) DCC: “(. . .) the owner of a moveable object, who has lost his possession through theft, may revindicate it as his property during a period of three years from the day of the theft.” However, even this exception to the exception knows yet another exception that allows immediate transfer of even stolen objects. The following requirements, as outlined in Article 3:86(3)(a), must be met for a third purchaser to acquire as property a stolen object: the acquirer must be a natural person not acting in the exercise of a profession or business. The alienator, on the other hand, must be acting in the normal course of his business and must do so in his business premises. If these requirements, in addition to the requirements of non-gratuitous title and good faith on behalf of the acquirer, are fulfilled, the property, even if a stolen object, is directly transferred. In such an instance, the original owner cannot recover the property.

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The transfer must be in accordance with Articles 3:90, 3:91 or 3:93 DCC. Article 3:11 DCC. 204 Wetboek Burgerlijke rechtsvordering (Rv). 205 The possibility that the original owner might address the alienator for indemnity should be mentioned here, but will not be further elaborated upon given the report’s preoccupation with the protection of the cultural object itself, rather than indemnity. 203

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The legislative history of Article 3:86 DCC reveals that the legislature was predominantly concerned with the protection of (weaker) consumers buying second-hand goods. The impression that the legislature did not pay due regard to the possibility that the objects in question may not be typical second-hand goods (e.g. television sets or bicycles) but instead cultural objects and in particular unique and valuable works of art, is reinforced by the fact that one particular group of sales is explicitly exempted by Article 3:86(3)(a): sales by auction. While the property of a stolen painting would be immediately transferred if acquired by a natural person in good faith in an art gallery, this is not the case if the same person had acquired the painting in auction at the Dutch branch of Sotheby’s or Christie’s. In the latter case, the rule of Article 3:86(3) applies, which allows the original owner to recover his property within a period of 3 years. In case the original owner does not make use of his right to recovery (e.g. as he or she might not know where the object is situated), the good faith buyer in auction, or at an antique market gets full legal title after the lapse of 3 years and in accordance with Article 3:99 DCC on acquisitive prescription by a good faith possessor. The prescription period starts to run the day after a person other than the right holder takes possession of the object (Article 3:101 DCC). Article 3:118 DCC further sets out the good faith as required by Article 3:99: a possessor acts in good faith “when he or she does and may consider him/herself as proper right holder.” However, not only a good faith possessor can get full legal title due to acquisitive prescription. In the Netherlands, even a person not acting in good faith, can eventually become the owner of a stolen good due to acquisition on the grounds of extinctive prescription. The moment in which this form of acquisition becomes possible is linked to the moment the legal action of the original owner has been barred due to the lapse of 20 years (Article 3:306 DCC) and occurs “regardless of whether his possession was in good or bad faith” (Article 3:105 DCC). Under the former Dutch Civil Code, extinctive prescription, i.e. the barring of the original owner’s legal action for recovery, was not linked with a provision granting the property to the person possessing it the moment the limitation period had lapsed. The consequence was a legal vacuum in which no one could subsequently acquire full legal title to the object. This was considered undesirable and hence changed with the introduction of the new Dutch Civil Code.206 Yet another interesting change concerned the length of the extinctive prescription period. Under the former Dutch Civil

206 Klomp R.J.Q., “Dieven met geduld. Over verkrijgende verjaring te kwader trouw”, 2000, in Brand I., et al. (Eds.) Tijd en onzekerkeid BW-krant jaarboek 16, p. 61 with further references.

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Code (Article 2004) a legal action for recovery was barred after the lapse of thirty years from the moment of involuntary loss of possession. As a consequence of the provisions on extinctive and acquisitive protection under the new Dutch Civil Code, even a thief can get full legal title, which is the main reason that the Netherlands is sometimes referred to as a thieves’ paradise.207 While the statement is based on a correct legal analysis, it must be further qualified: No one will deny that the balance struck by the Dutch legal system between the protection of the interests of a disposed owner and legal certainty in property transactions, including the protection of a bona fide third party, is in favour of the latter. On the contrary, the relevance of legal certainty, and hence the need for the legal qualification to follow reality at a given point in time—against the interests of dispossessed owners—has been stressed by the Dutch legislature when drafting the new Dutch Civil Code and the consequence of the possibility of a thief becoming the owner of his plunder has been accepted.208 In a case before the Dutch Supreme Court (Hoge Raad) between the German Land Saxony, as the successor in rights of the former owner, and a private individual who had acquired a painting in 1990 in Amsterdam, the Court stressed the relevance of extinctive limitation periods in the light of legal certainty. The Court stated that the fact that the original owner lost his ability to recover his painting before he or she was even able to make use of the action (i.e. before he or she learnt about the painting’s location) could not outweigh the need for legal certainty in judicial matters.209 Since the ruling of this case, which was tried under the former Dutch Civil Code, the length of the extinctive limitation period has been lowered from 30 years (Article 2004, former DCC) to 20 years with the introduction of the new Dutch Civil Code.

207 Brunner C.J.H., “Dief wordt eigenaar”, 1992, Quod Licet, Bundel aangeboden aan prof mr WM Kleijn ter gelegenheid van zijn afscheid als hoogleraar burgerlijk recht en notarieel recht aan de Rijksuniversiteit te Leiden, p. 53. 208 Klomp R.J.Q., “Dieven met geduld. Over verkrijgende verjaring te kwader trouw”, 2000, in Brand I., et al. (Eds.) Tijd en onzekerkeid BW-krant jaarboek 16, p. 61; Parl. Gesch., Boek 3, Deventer 1981, p. 416. 209 HR 8 May 1998, 1st Chamber, Nos. 16.546, C97/025; NJ 1999, No. 44, annotated by Th. M. de Boer. See for analysis and discussion of the case: Blom J., Laying Claim to Long-Lost Art: The Hoge Raad of the Netherlands and the Question of Limitation Periods, International Journal of Cultural Property, 2000.

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3.2.4.2. Protection Available in the Netherlands to Cultural Objects Removed from Other EU Member States or Contracting Parties to the European Economic Area Agreement—the Dutch Implementation of the Directive 93/7/EEC 210 The previous subsection discussed the general protection available for stolen movable objects under Dutch law. Therein, it became evident that there is little protection available to the original owner of stolen cultural objects in the sense of paintings and other works of art or antiquities from private collections. Cultural objects not considered national treasures and not part of public collections receive the same treatment as any other mass-produced object and if stolen, their dispossessed owner has little chance to recover his property. This subsection focuses on the protection available under Dutch law for a specific category of cultural objects that have been removed unlawfully from the territory of another EU Member State or a contracting party to the European Economic Area Agreement.211 As an EU Member State, the Netherlands was obliged to implement Council Directive 93/7/EEC (hereafter: the Directive),212 which seeks to reconcile the fundamental principle of free movement of (cultural) goods and the protection of objects classified as “national treasures possessing artistic, historic or archaeological value” under national legislation in the sense of Article 30 of the EC Treaty.213 Protection under the Directive is only available for those objects considered to be cultural objects in the sense of the directive. According to Article 1(1) of the Directive, there are different requirements for objects from private collections on the one hand, and objects from public collections on the other. As far as objects from private collections are concerned, they must fulfil two

210 Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State. 211 The Agreement on the European Economic Area entered into force in 1994. Its current relevance, and against the background of the protection of cultural objects is that Norway, Iceland and Liechtenstein are able to participate in the Internal Market, while not assuming the full responsibilities of EU membership. Hence, the protection available to cultural objects originating from EU Member States as discussed in this section is also available to objects originating in these three countries. 212 Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State. The Dutch Law implementing the Directive, as well as introducing some changes not required under EC Law but rather to organise the internal regime more in accordance with the European level of protection was the Wet 9 maart 1995, Stb. 145. Further to amending the Cultural Heritage Preservation Act, it brought about changes in Book 3 of the Dutch Civil Code, the Dutch Code on Civil Procedural Law as well as the Dutch Act on Economic Offences. 213 Article 30 EC Treaty grants an exception to the provisions of Articles 28 and 29, in prohibitions or restrictions on imports, exports or goods in transit justified on the grounds of (. . .) the protection of national treasures possessing artistic, historic or archaeological value (. . .) that shall not precluded (. . .).

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cumulative requirements: they must be classified as “national treasures possessing artistic, historic or archaeological value” in the sense of Article 30 of the EC Treaty under national legislation.214 Furthermore, the objects must fall into one of the categories listed in the Annex of the Directive. Objects from public collections, on the other hand, do not have to fulfil this second requirement. Instead, in addition to being classified as national treasures, they must be listed in the inventories of museums, archives, libraries or of ecclesiastical institutions in order to qualify as a cultural object in the sense of the Directive. The Directive introduces domestic obligations on all Member States to return cultural objects illegally removed from another Member State.215 In implementing the Directive, Member States had to amend their legislation in order to allow for the return of unlawfully removed objects to a requesting EU Member State. According to Article 1(2), unlawful removal means removal in breach of EEC Regulation No 3911/92, in breach of national laws, or that an object is not returned after temporary lawful removal.216 Hence, Member States had to ensure that the removal of a cultural object constituting a national treasure or originating from a public collection is held to be illegal under their own laws.217 How the Netherlands implemented the latter requirement will be elaborated in the next subsection that focuses on the protection of Dutch national treasures and objects from public collections. In order to outline the protection available under Dutch law and in accordance with European Community law for objects unlawfully removed from another EU Member State, it is best to first look at the main articles of the Directive before turning to the Dutch implementation. Article 2 of the Directive states that cultural objects in the sense of the Directive, which have been unlawfully removed from the territory of a Member State shall be returned in accordance with the procedure provided in the Directive. We have already seen that the illegality of the removal is

214 As for the Netherlands, and outlined above in Section 3.2.1. the respective legal provisions can be found in the CHP Act. 215 Siehr K., International Art Trade and the Law, 1993, p. 232. 216 EEC Regulation No. 3911/92 introduces an EU wide system of export licenses for the export of cultural goods outside the customs territory of the Community that is further outlined in COMMISSION REGULATION (EEC) No 752/93 of 30 March 1993. The regulation will not be further discussed here, as a breach of the regulation would mean an export outside of EU territory without an export licence. The question as to the return of an object once it has left EU territory is a question of international law, and depends on the countries involved. For further information on the regulation, the reader may be referred to: Ibid., pp. 226–232. 217 Article 1(2) of the Directive stipulates that “[u]nlawfully removed from the territory of a Member State shall mean:—removed from the territory of a Member State in breach of its rules on the protection of national treasures or in breach of Regulation (EEC) No. 3911/92, or—not returned at the end of a period of lawful temporary removal or any breach of another condition governing such temporary removal.”

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determined according to the law of the requesting Member State.218 While the definition of cultural objects in the sense of the Directive includes both objects from private and public collections, the Directive does not grant any rights to the private owner of an object. Only an EU Member State can initiate proceedings for an object’s return (Article 5). The general obligation of the Directive to return unlawfully removed objects to their Member State of origin is put into more concrete terms in Article 7: in particular, it clarifies that the obligation to return unlawfully removed objects is not absolute but is subject to two different kinds of time limits. In the first place, a Member State looses its right to seek return of a cultural object if it does not start return proceedings within one year after becoming aware of the whereabouts of the object and the identity of the possessor or holder. In the second place, Article 7 introduces an absolute time limit irrespective of the knowledge of the Member State seeking a return: after the lapse of thirty years for objects from private collections, and after the lapse of 75 years for public collections, a Member State can no longer seek the return of an object, unless the legislation of the Member State in which the object is residing does not recognize time limits for such proceedings, or in cases of bi-lateral agreements stating otherwise. Article 8 of the Directive clarifies that there can be no bona fide acquisition of a cultural object in the sense of the Directive. However, Article 9(1) of the Directive accounts for the interest of a bona fide possessor in requiring that he or she must be awarded a fair indemnity. In squaring the main obligations under the Directive with the Dutch system on transfer of property prior to the Directive’s implementation, particularly the applicable limitation periods and the position of good faith purchasers, it becomes evident that the Dutch legislature had to substantially amend its laws, in particular the Dutch Civil Code, the Cultural Heritage Preservation Act, the Code on Civil Procedural law, as well as the Code on Economic Offences, to allow for the return of unlawfully removed objects as required by the Directive.219 In the following paragraphs, the changes in the Dutch Civil Code as well as in the Code on Civil Procedural Law, and in the Code on Economic Offences will be discussed. The changes in the Cultural Heritage Preservation Act are first and foremost relevant for the protection of Dutch national treasures, which will be discussed in the subsequent subsection. In the first place, Article 3:310a was introduced into the Dutch Civil Code, which essentially followed the wording of Article 7 of the Directive: the action to recover a cultural object falling under the scope of the directive is barred

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Siehr K., International Art Trade and the Law, 1993, p. 236. See for a critical analysis of the impact of the implementation on the system of the Dutch Civil Code: Bollen C. / Groot G.R., de, Verknoeit het Europese recht ons Burgerlijk Wetboek?, Nederlands Tijdschrift voor Burgerlijk Recht, 1995. 219

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after the lapse of the period of one year from the day after the requesting EU Member State learnt about its location and the identity of the current possessor. Further to this subjective limitation period, the article implements the longer, absolute limitation periods of Article 7: despite ignorance of the requesting EU Member State that lost the object contrary to its own laws, any claim is barred 30 years from the day the object left its territory (which can, however, be long after the initial theft occurred). For objects from public collections or ecclesial collections, this period has been extended to 75 years. Perhaps unsurprisingly, Dutch law does not provide for an extension of the absolute time limit within which a requesting state must initiate proceedings. As a consequence, the maximum period within which proceedings must be brought ends 30 years after the removal for objects from private collections, and 75 years for objects from public collections respectively. However, in order to ensure that the requesting Member State’s action will not be barred earlier than the 30 / 75 year time limit, the Dutch legislature also had to ensure that the normal rules on good faith acquisition and acquisitive prescription would not prevent a return. This was achieved with the introduction of DCC Articles 3:86a. According to its first paragraph, DCC Article 3:86 on the protection of good faith purchasers cannot be evoked against an EU Member State that seeks the return of a cultural object in accordance with the Directive. Also, DCC Article 3:86a sets out the indemnity to be awarded to a good faith possessor in accordance with Article 9 of the Directive. While it is generally accepted that acquisitive prescription as outlined in DCC 3:99(1) does not apply to national treasures and objects from public / ecclesial collections from an EU Member State, the obligation of Article 8 of the Directive has not been explicitly implemented in the Dutch Civil Code.220 The literature discussing the Dutch implementation of the Directive assumes that Article 3:99 does not apply to cultural objects from another EU member state that fall under the scope of application of the directive. However, the Dutch Civil Code does not contain any provision that prevents the application of Article 3:99 on acquisitive prescription in this case. This lacuna has only recently been discovered and will be remedied in the context of the changes necessary for the implementation of the 1970 UNESCO Convention. The lacuna was discovered only in the context of preparation for the implementation of the 1970 UNESCO Convention.221 While the main aim of the 220 This is particularly strange as Article 3:99(2) explicitly states that the Article 3:99(1) does not apply for objects protected under the CHP Act. 221 Advisory Report of the Council of State, Regeling van het conflictenrecht betreffende het goederenrechtelijke regime met betrekking tot zaken, vorderingsrechten, aandelen en giraal overdraagbare effecten (Wet conflictenrecht goederenrecht), 30 876, Nr. 4, p. 2; Note in reaction to the Report on the Implementation of the UNESCO Convention, Uitvoering van de op 14 november 1970 te Parijs tot stand gekomen overeenkomst inzake de middelen om de

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bill for the implementation of the 1970 UNESCO Convention was to amend the Dutch law in accordance with the obligations of the Convention, the bill will also remedy the current lacuna with respect to acquisitive prescription for cases that fall under the scope of the Council Directive. The bill foresees the introduction of a new third paragraph to DCC Article 3:99 which will explicitly state that acquisitive prescription by a good faith possessor cannot be invoked against claims as outlined in DCC Article 3:86a.222 The Dutch Code on Civil Procedural Law as well as the Dutch Act on Economic Offences were amended to provide for the procedural matters of restitution. The Code on Civil Procedural Law was extended with a section 13 holding five articles (Articles 1008–1012) that map out the legal process to be followed by the Member State seeking the return of an illegally removed cultural object. The Netherlands appointed the State Inspectorate for Cultural Heritage (Erfgoedinspectie) as the central authority to carry out the tasks provided for in Council Directive 93/7/EEC and in accordance with Articles 3, 4 and 6 of the Directive.223 3.2.4.3. Exceeding Protection for Dutch National Treasures and Objects from Dutch Public Collections The subsection above discussed the implementation of European Community law on the protection of national treasures or objects from public collections unlawfully removed from other EU Member States under Dutch law. This subsection turns to the protection available for Dutch national treasures. As long as these objects remain on Dutch territory, European Community law is inapplicable. The applicability of European Community law is triggered only with the unlawful removal of a national treasure or an object from a public collection to another EU Member State. In the latter case, the Netherlands has to request the other EU Member State to return the object in accordance with the Directive as implemented in that state’s law. However, in order to allow for the return of an object in accordance with the Directive, the Dutch legislature had to ensure that, in addition to objects from private collections that are designated as national treasures under the

onrechtmatige invoer, uitvoer of eigendomsoverdracht van culturele goederen te verbieden en te verhinderen (Uitvoeringswet UNESCO-verdrag 1970 inzake onrechtmatige invoer, uitvoer of eigendomsoverdracht van cultuurgoederen), 31 255, Nr. 7, pp. 11–13. 222 Tweede Kamer, vergaderjaar 2007–2008, Uitvoering van de op 14 november 1970 te Parijs tot stand gekomen Overeenkomst inzake de middelen om de onrechtmatige invoer, uitvoer of eigendomsoverdracht van culturele goederen te verbieden en te verhinderen (Uitvoeringswet UNESCO-verdrag 1970 inzake onrechtmatige invoer, uitvoer of eigendomsoverdracht van cultuurgoederen), Voorstel van wet 31 255, nr. 2, sub E. 223 http://www.erfgoedinspectie.nl/page/collecties/regelgeving_bescherming_cultuurgoederen (last visited 27 March 2008). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Cultural Heritage Preservation Act in the sense of the Article 30 EC Treaty,224 objects from public collections could also be considered as national treasures to subsume them under the scope of cultural object in the sense of Article 1(1) of the Directive. This was achieved by introducing Article 14a to the Cultural Heritage Preservation Act, which bans the export of an object from a Dutch public collection without prior written declaration by the Minister. As a consequence, Dutch legislation regards as illegal the removal of objects qualifying as cultural objects in the sense of the Directive from a private or public collection without permission of the Minister. For those cases in which a cultural object in the sense of the Directive does not leave the territory of the Netherlands, but has nevertheless been moved contrary to the provisions of the Cultural Heritage Preservation Act, or has been stolen, the Dutch legislature chose to grant greater protection. The regime resembles to quite an extent that available for cultural objects from other Member States. This is perhaps unsurprising given that both regimes were introduced at the same time, and given the legislature’s belief that, on top of the direct implementation measures, further changes were necessary to arrive at a workable and just regime.225 As is the case for cultural objects from other EU Member States, the application of DCC Article 3:86 as a cure to the absence of a valid title to dispose of an object has been blocked (Article 3:86a (2) DCC). Hence, no protection is granted to a private individual who allegedly acquired the object against the original owner seeking its recovery after theft or loss of possession in violation of the CHP Act.226 Due to the registration of the protected objects on the list as required by the CHP Act as well as the inventories in case of public collections, the original owner receives further benefit from a reversal in the usual assignment of the burden of proof.227 Hence, the next relevant question concerns the rules on extinctive and acquisitive prescription under this regime. As far as acquisitive prescription on behalf of a good faith possessor is concerned, paragraph 2 of DCC Article 3:99 clearly states that the general rule outlined in its first paragraph, according to which a good faith possessor gets full legal title after uninterrupted

224 As for objects from Dutch private collections, which enjoy protection under the CHP Act, the reader may be reminded of what is outlined in Section 3.2.1. and 3.2.3., above. 225 Bollen C. / Groot G.R., de, Verknoeit het Europese recht ons Burgerlijk Wetboek?, Nederlands Tijdschrift voor Burgerlijk Recht, 1995, p. 3. 226 Another Article that must be mentioned here is DCC Article 3:88. According to its second paragraph the protection of its first paragraph for cases that are not covered by DCC Article 3:86 does not apply to objects protected under the Cultural Heritage Preservation Act, or which falls under the scope of Article 14a of the Act. The introduction of this second paragraph is the logic consequence now that Article 3:86a prevents the application of Article 3:86 to these objects. See further, also in respect of DCC Article 3:238(4): Ibid., p. 3. 227 Normally speaking, the possessor of an object is considered to be the right holder (Article 3:119 DCC).

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possession of three years, does not apply to objects protected under the CHP Act, or from collections in the sense of Article 14a of the CHP Act. Instead, under DCC Article 3:310b the right to legal action of the original owner lapses five years after the moment he or she learnt about the whereabouts of the missing object and the identity of the current possessor or holder. This subjective prescription rule of five years is complemented with an absolute term of thirty years starting from the day in which a person different from the right holder took possession of the object. Once either of the two limitation periods has lapsed, the current possessor acquires full legal title, regardless of whether he or she acted in good faith (Article 3:105(1) DCC). 3.2.5. Special Obligations towards Community with Closest Cultural Link There exists no legally binding obligation for museums, galleries or other institutions to return cultural property or heritage in their possession to the community that has the closest cultural link to such objects. Self-regulation is the only form of regulation employed to guide and control the activities of museums, galleries or other institutions in relation to tangible cultural property. The Dutch self-regulatory framework consists of the following actors and instruments: the Dutch Museum Association, the Dutch version of the International Council of Museums (ICOM) Code of Professional Ethics for Museums, the ethical committee giving recommendations to the museum sector on the basis of this code (the “Ethical Code Committee”), and the alternative ethics committee set up by the members of the “Foundation of Ethnological Collections in the Netherlands” (the “Ethnological Ethics Committee”). The Dutch Museum Association dates back to 1926 when it was founded as a body of museum directors. In 2006, it became the umbrella organisation for the museum sector with tasks such as lobbying and development of policies. In 1991, the first Dutch version of the ICOM Code of Professional Ethics for Museums (hereinafter: the Dutch ICOM Code)228 had been introduced by the Dutch Museum Association. Since then, the Dutch ICOM Code has been revised several times to incorporate changes made in accordance with the international ICOM Code.229 The Dutch ICOM Code sets minimum standards of professional practice and performance for museums and their staff, ranging from the housing of collections and the museum shop, to the responsibilities of the museum staff. There are several provisions on the

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accession and deaccession of museum objects. As far as the return and restitution of cultural objects are concerned, Articles 6.2 and 6.3 of the Code state that: “Museums should be prepared to initiate dialogues for the return of cultural property to a country or people of origin. This should be undertaken in an impartial manner, based on scientific, professional and humanitarian principles as well as applicable local, national and international legislation, in preference to action at a governmental or political level” (Article 6.2); and “When a country or people of origin seeks the restitution of an object or specimen that can be demonstrated to have been exported or otherwise transferred in violation of the principles of international and national conventions, and shown to be part of that country’s or people’s cultural or natural heritage, the museum concerned should, if legally free to do so, take prompt and responsible steps to co-operate in its return” (Article 6.3). As these provisions indicate, the Dutch ICOM Code is rather reserved in its demands on the museum sector.230 In the absence of legally binding force, the Dutch ICOM Code’s authority depends on moral pressure. To support observance of the Dutch ICOM Code, the Dutch Museum Association has made compliance with the Code a condition of membership. Also, in 1991, the Ethical Code Committee231 was founded to advise museums about the Dutch ICOM Code and to examine their behaviour against the Code. The Ethical Code Committee has so far issued eleven recommendations.232 None of them deal with possible special obligations for museum institutions on the return of cultural property or heritage to the community that has the closest cultural link to such objects.233 In 2002, a second museum ethics committee was founded to respond to special needs and questions of museums with ethnological collections. This Ethnological Ethics Committee was set up by the Foundation of Ethnological Collections in the Netherlands which represents eight ethnological

230 Procedural aspects of deaccessioning are further outlined in a guideline on deaccession: http://www.icn.nl/Dir003/ICN/CMT/text.nsf/URL/4716DB3F1F95254DC1256FE10041372F/ $FILE/lamo.pdf (last visited 27 March 2008). 231 http://www.museumvereniging.nl/default.aspx?id=337 (last visited 27 March 2008). 232 They can be accessed via: http://www.museumvereniging.nl/default.aspx?id=327 (last visited 27 March 2008). 233 The reference of Article 6.3 to “principles of international and national conventions” must be understood as referring not only the legally binding international treaties as ratified by the Dutch government, but all existing international legislation. Article 7.2 explicitly refers to the UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention, First Protocol, 1954 and Second Protocol, 1999); UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970); Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973); UN Convention on Biological Diversity (1992); Unidroit Convention on Stolen and Illegally Exported Cultural Objects (1995); UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001); UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003).

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museums.234 Its task is to advise the Dutch Ethnological Museums on questions regarding human remains, potential illegal objects, and the repatriation of objects or collections.235 From the recommendations issued so far, for example, on the return of a Maori head to New Zealand, it appears that the Ethnological Ethics Committee applies a higher ethical standard than the Dutch ICOM Code Committee. To conclude, there exist several actors and instruments of self-regulatory character in the Netherlands, but there exist no binding obligations for museums, galleries or other institutions to return cultural property or heritage in their possession to the community that has the closest cultural link to such objects. 3.2.6. Precautionary Measures for Armed Conflict and the Return of Cultural Objects The following will discuss the existence of Dutch law allowing for the return of cultural heritage situated in the Netherlands that has been removed from an area engaged under occupation, as well objects removed from Iraq.236 The former aspect is particularly timely, given the recent entry into force of an Act implementing the (First) Protocol to the Hague Convention.237 While the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) (hereinafter: “1954 Hague Convention”) deals with the protection both of immovable and movable cultural objects during armed conflict, the protection of movable cultural heritage is particularly dealt with in its (First) Protocol for the Protection of Cultural Property in the Event of Armed Conflict (1954) (hereinafter: “(First) Protocol to the 1954 Hague Convention”). While the Netherlands ratified the (First) Protocol to the 1954 Hague Convention in 1958, it was not until 1997 that it became

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http://www.svcn.nl/nieuws.asp?identifier=272 (last visited 27 March 2008). See: http://www.svcn.nl/nieuws.asp?identifier=160 (last visited 27 March 2008). 236 For a discussion of precautionary measures taken by the Netherlands to protect movable objects in its own territory against the destruction and removal in times of war, as well as precautionary measures taken by the Netherlands when engaged in an armed conflict or occupation outside its borders, please see Section 3.1.6., discussing precautionary measures with respect to immovable cultural heritage. Furtermore, the reader may be referred to: Prott L., V., “The Protocol to the Convention for the Protection of Cultural Property in the event of armed Conflict (The Hague Convention) 1954”, 1996, in Briat M., & Freedberg, Judith, A. (Eds.) Legal aspects of International Trade in Art; Bos A., The Importance of the 1899, 1907 and 1999 Hague Conferences for the Legal Protection of Cultural Property in the Event of Armed Conflict, Museum International, 2005; Toman J., The Protection of Cultural Property in the Event of Armed Conflict, 1996. While the required protection depends on the character of the object, and differs to some extent for movable and immovable objects, there is nevertheless quite some overlap and correspondence in the precautionary measures to be taken. 237 Wet van 8 maart 2007, houdende regels over inbewaringneming en instelling van een vordering tot teruggave van cultuurgoederen afkomstig uit een tijdens een gewapend conflict bezet gebied (Wet tot teruggave cultuurgoederen afkomstig uit bezet gebied), Stb. 2007, 123. 235

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evident that it was never implemented into Dutch Law.238 The insight was gained during a court case on the return of cultural objects removed from occupied Cyprus.239 In 1997, the autocephalous Greek Orthodox Church of Cyprus sought the return of four icons from a Dutch citizen. It was not disputed that the icons had been the property of the Church of Cyprus and had been kept in the Church until the summer of 1974, when the island was invaded by Turkish troops. It was also not disputed that the icons disappeared during the Turkish occupation. At some point in the 1970s, the icons were acquired by a Dutch citizen, Lans, from an art dealer in the Netherlands for the amount of 200,000 Dutch Guilders.240 The Church sought a declaration from the Court confirming its property rights in the icons. The Church supported its property claim with reference to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) and its Protocol. Both, the Convention and the Protocol had been ratified by the Netherlands in 1958.241 The Church asserted that Article 1.4 of the Protocol242 prevented a possessor, even in good faith, from getting full legal title to a cultural object whose return is claimed on the grounds of the Protocol.243 The Dutch citizen claimed that the Church could not rely on the the Protocol as it did not have direct effect and was not implemented into Dutch law.244 The Court sided with the interpretation of the Dutch defendant and held that Article 1.4 of the Protocol was directed only at state parties and did not grant any rights nor introduce any duties for individual persons.245 Consequently, the proprietary title of the Dutch citizen to the icons was to be judged under Dutch law only. In the absence of proof holding otherwise, the Dutch citizen was considered to have purchased the icons in good faith and his title was confirmed. As a result, the Church’s claim to ownership of the icons was denied.246 238 As the provisions of the (First) Protocol to the 1954 Hague Convention cannot be binding by virtue of their contents, they did not become binding after their publication as is the case for provisions of international treaties that can be binding by virtue of their wording (Article 93 Dutch Constitution). 239 Rb. Rotterdam 4 februari 1999, 44053/ HA ZA 96–2403 NJ kort 1999/37. 240 Approximately 91,000 Euros. 241 Wet van 16 juli 1958 Stb. 1985, 356, houdende goedkeuring van het op 14 mei 1954 te ’s-Gravenhage ondertekende Verdrag (. . .) en van het op 14 mei 1954 ondertekende Protocol. 242 Article 1.4 reads as follows: The High Contracting Party whose obligation it was to prevent the exportation of cultural property from the territory occupied by it, shall pay an indemnity to the holders in good faith of any cultural property which has to be returned in accordance with the preceding paragraph. 243 Rb. Rotterdam 4 februari 1999, 44053/ HA ZA 96–2403 NJ kort 1999/37, at para. 5.5.1. 244 Rb. Rotterdam 4 februari 1999, 44053/ HA ZA 96–2403 NJ kort 1999/37, at para. 5.5.2. 245 Rb. Rotterdam 4 februari 1999, 44053/ HA ZA 96–2403 NJ kort 1999/37, at para. 5.5.3. 246 The Appeal’s Court confirmed the judgment of the District Court in its judgment of 7 March 2002, rolnummer 99/693 (unpublished judgement). See: Memorie van Toelichting, 30 165, no. 3, p. 4. Toshiyuki Kono - 978-90-04-18991-1

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On 11 March 2007, some ten years after the request for the return of the icons was denied in court, the First Protocol was implemented into Dutch Law by the Act on the Return of Cultural Objects removed from Occupied Territories (hereinafter: “the Act”).247 Article 2 of the Act prohibits the transfer of cultural objects removed from an occupied territory into the Netherlands, as well as possession of such objects in the Netherlands. In line with the Protocol, the Act only applies to those cases in which the cultural object was removed from an occupied territory during the time of occupation.248 Objects removed prior and subsequent to the occupation do not fall under the scope and protection of the Act. Doubts have been raised as to whether the Act applies to cultural objects that have been removed from a territory under the occupation of a state that is not a party to the 1954 Hague Convention and its Protocol. The general wording of Article 1(d) of the Act speaks in favour of a broad interpretation of the prohibition, but case law will need to explicate the scope of the Act in this respect.249 In addition to the territorial and political scope of the Act’s application, the temporal scope of the application of the Act is crucial to the question of whether or not a state can recover its cultural heritage. There are two temporal aspects that must be considered: the point in time when a cultural object was removed from an occupied territory, and the point in time of its transport into the Netherlands or the ownership or possession therein. As far as the first temporal aspect is concerned, the Act applies to all removals of cultural objects from occupied territories since the entry into force of the Protocol on 14 January 1959.250 As far as the time of transfer into the Netherlands or the moment of owning or possessing it is concerned, the Act applies to all cases in which the respective activity occurred or continues to occur after 11 March 2007, when the Act entered into fore. While ownership or possession may have started prior to that date, provided that it did not start prior to the entry into force of the Protocol in 1959, it is prohibited only from 11 March 2007 onwards. The date is also crucial for transferring cultural objects removed from an occupied territory into the Netherlands: any transfer after 11 March 2007 is prohibited by Article 2 of the Act. The burden of proof to show that an object has been removed from an occupied territory during the time of occupation rests upon the Dutch

247 Wet van 8 maart 2007, houdende regels over inbewaringneming en instelling van een vordering tot teruggave van cultuurgoederen afkomstig uit een tijdens een gewapend conflict bezet gebied (Wet tot teruggave cultuurgoederen afkomstig uit bezet gebied). According to Article 12 of the Act, it enters into force one day after its official publication. 248 Memorie van Toelichting, 30 165, no. 3, p. 4. 249 Article 1(d) defines occupied territory as territory that is occupied during an armed conflict on or after 14 January 1959 and that falls under the scope of Article 1 of the (First) Protocol. 250 Article 1(d) of the Act. Toshiyuki Kono - 978-90-04-18991-1

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Minister of Culture. Prior to claiming the object’s restitution in a civil procedure (Article 7(1) of the Act), the Minister will seek to bring the object into his custody (Articles 3–6 of the Act).251 This approach will prevent objects from being removed from Dutch jurisdiction or disappearing once restitution is sought in court. Noteworthy in light of the general Dutch limitation periods is the fact that the legal action to seek recovery is not subject to any prescription period (Article 7(5) of the Act). Article 7(2) of the Act ensures that the general rules of the Dutch Civil Code on the protection of good faith purchasers (DCC Article 3:86 as well as DCC Article 3:88) and the benefit of acquisitive prescription as outlined in DCC 3:99(1) cannot be evoked against the Minister’s legal action.252 In case the court orders the restitution of the object to its owner, the possessor will be granted an indemnity. While the Protocol foresees that it is the state party “whose obligation it was to prevent the exportation of cultural property from the territory occupied by it” who will pay the indemnity (Article 1.4), the Dutch implementation imposes this obligation on the Dutch State (Article 7(3) a). Article 7(3) of the Act differs between the indemnification to be received by an owner of cultural property (sub a) and someone who did not acquire full legal title but is a good faith possessor of the object concerned (sub b): while the owner is granted full compensation in case the cultural property is returned to the formerly occupied country, the good faith possessor is granted a fair reimbursement. The amount of the reimbursement is to be determined by the court. As far as the burden of proof is concerned, it is the owner who must prove his legal title and the possessor who must prove that he acted diligently when purchasing the cultural property. In case the possessor is unable to provide all information necessary to trace the alienator from whom he acquired the object, he will not be granted any reimbursement. This requirement, which is codified in Book 3 of the Dutch Civil Code (Article 87(1)), is valid only for purchases made within the three years preceding the request for information. Hence, in cases that fall under the scope of the Dutch Act on the Return of Cultural Objects Removed from Occupied Territories, the possessor cannot rely upon the general protection of bona fide possession, as elaborated upon in Section 3.2.4.1. This does not mean, however, that bona fide possession does not play a role at all. Bona fide possession is crucial with respect to the granting of an indemnity—only a good faith possessor is awarded an indemnification.

251 Articles 3–6 of the Act implement the (First) Protocol’s requirement that state parties take property imported or held in breach of the provisions of the protocol into custody. 252 The implementation follows as far as possible the implementation of EC Council Directive 93/7/EEC as is particularly evident in respect of the balancing of the protection the cultural objects and the rights of the possessing party and legal security. See further on the implementation of the later into Dutch law: Bollen, C. / Groot G.R., de, Verknoeit het Europese recht ons Burgerlijk Wetboek?, Nederlands Tijdschrift voor Burgerlijk Recht, 1995.

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The fact that the Dutch Government has chosen to grant an indemnity to an owner or good faith possessor of a cultural object when the object has to be restituted to the authority from whose territory the object had been removed must be viewed against the strong protection of ownership rights and of the position of a good faith purchaser under Dutch law.253 With the entry into force of the Act on the Return of Cultural Objects Removed from Occupied Territories, the situation of cultural heritage brought into the Netherlands changed significantly. This is true both for recent transfers as well as transfers that occurred several decades ago. This is well illustrated by the case regarding the icons removed from Cyprus, which emphasised the need to adopt the Act in the first place. If the Cypriot authorities, rather that the autocephalous Greek Orthodox Church of Cyprus, were to now approach the Dutch government requesting the return of the icons, provided that the icons remain on Dutch territory, the Minister would, in all likelihood, seek custody of the icons and claim their restitution in a civil proceeding. Squaring the facts of that case with the requirements of the Act, particularly under Article 2, shows that the restitution of the icons falls under the scope of the Act: the icons were removed from Cyprus in 1974 during the Turkish occupation, a fact that was uncontested when the case was heard in 1999.254 At the time the icons were removed, Turkey was a state party to the (First) Protocol to the Hague Convention, which clears any doubts about the application of the Protocol and hence its Dutch implementation.255 While the icons had been brought into Dutch territory prior to the entry into force of the Dutch Act, it is not required that owning or possessing them started prior to that date (11 March 2007). The Dutch citizen took possession of them in the 1970s, hence after the entry into force of the Protocol.256 As a bona fide owner of the icons, the Dutch citizen would receive an indemnity by the Dutch State in accordance with Article 7(3) a) of the Act. In addition to the Dutch Act on the Return of Cultural Objects Removed from Occupied Territories there is a special regime for objects removed from Iraq after 6 August 1990. As a Member State of the European Union, the Netherlands implemented Council Regulation (EC) No. 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq.257 The Dutch implementation Act, the Sanctieregeling Irak

253

See above at subsection 3.2.4.1. Rb. Rotterdam 4 februari 1999, 44053/ HA ZA 96–2403 NJ kort 1999/37, at para. 5.3. 255 Turkey became a State Party in December 1965 by accession. 256 Rb. Rotterdam 4 februari 1999, 44053/ HA ZA 96–2403 NJ kort 1999/37, at para. 2.b. 257 Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No. 2465/96. The regulation is based on the UN Security Council Resolution 1483 /2003. 254

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2004 II, entered into force on 23 May 2004.258 The Sanctieregeling concerns Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific and religious importance that have been illegally removed Iraq after 6 August 1990. In line with the Council Regulation and the UN Security Council Resolution, it prohibits dealing in such objects, as well as the importation and introduction of such objects into Dutch territory. Compliance with the Sanctieregeling is monitored by the State Inspectorate for Cultural Heritage (Erfgoedinspectie). 3.2.7. Movable Underwater Cultural Heritage The protection of cultural heritage located underwater does not make a distinction between movable and immovable underwater cultural heritage. Both are protected under the Monuments Act and for this reason the reader may be referred to the discussion in Section 3.1.7. 4. Intangible Cultural Heritage 4.1. Safeguarding of Intangible Cultural Heritage 4.1.1. Framework for Safeguarding Intangible Cultural Heritage The Netherlands has not ratified the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage. The reasons for not yet doing so were expressed in a letter received by the Ministry of Culture in the context of a consultation procedure on the Convention organised by the National Dutch UNESCO Committee in 2002.259 The author of the letter was the Meertens Institute KNAW, a research institute for researching and documenting the diversity of language and culture in the Netherlands.260 According to the Meertens Institute, there exist academic, ethical, and discipline-internal problems with the Convention. Furthermore, protection of intangible cultural heritage is not considered desirable, as it would interfere with the dynamics and changes that are essential to intangible cultural heritage. This is especially the case for measures that guide, preserve, conserve or revitalise specific aspects of intangible cultural heritage. The attitude that

258 Regeling van de Minister van Buitenlandse Zaken van 11 mei 2004, nr. DJZ/BR/0325-04, houdende specifieke restricties op de economische en financiële betrekkingen met Irak (Sanctieregeling Irak 2004 II). The decree is based upon Wet van 15 februari 1980, tot het treffen van sancties tegen bepaalde staten of gebieden (Sanctiewet 1977). 259 Muskens G., Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, 2005, p. 27. 260 http://www.meertens.knaw.nl/indexe.html (in English) (last visited 27 March 2008).

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protection, especially in the form of inventories of masterpieces,261 would lead to the artificial conservation of intangible cultural heritage is common amongst experts in the Netherlands.262 Some of the experts fear that protection could lead to “cultural ghettos” or “islands” isolated from the progression in time—“graveyards hosting dead cultural heritage.”263 Thus, experts put great emphasis on culture as a living phenomenon with change being an inevitable characteristic.264 Some experts have even denoted a paradigm shift in the approach to the study of intangible cultural heritage. Traditionally, the emphasis in studying intangible cultural heritage was put on continuity.265 Currently, the emphasis is put on changes in the intangible cultural heritage, rather than merely continuity. Consequently, with change being difficult to protect, experts stress that protection of intangible cultural heritage lies essentially in stock taking and in raising awareness.266 In line with the experts’ opinion on the reappreciation of change rather than continuity, there exists no coherent national legal framework for the protection of intangible cultural heritage. Instead, protection is realised by ensuring the existence of an infrastructure within which intangible cultural heritage can be studied and experienced. The role of the government is hence mainly one of providing the necessary funds for this infrastructure.267 The cataloguing of intangible cultural heritage, as well as raising its pro– file, rests upon the shoulders of museums and scientific and policy making institutions.268, 269 There is, however, one category of intangible cultural heritage that is granted legal protection. As far as minority languages and dialects are concerned, protection goes further than the “caring and sharing” approach.

261

See further below at Section 4.1.5. asking explicitly on intenventories. Stam D. / Verhulst S., Immaterieel erfgoed in Nederland, 2006, p. 7; Muskens G., Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, 2005, p. 7. 263 Muskens G., Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, 2005, p. 12. 264 Ibid., p. 7. 265 Ibid., p. 8. 266 Ibid., p. 27. 267 Ibid., p. 26. 268 For instance, there are several museums whose mission statement directly or indirectly alludes to the relevance of rising awareness and sharing knowledge of intangible heritage. See, e.g. the mission statement of the open air museum in Arnhem: http://www.openluchtmuseum .nl/index.php?pid=59 (last visited 27 March 2008). But also the Rijksmuseum in Amsterdam, the Zuiderzeemuseum, the Royal Library, the National Archive, the Navigation Museum. Ibid., p. 13. Also, the Dutch version of the ICOM Code, in accordance with the international ICOM Code states as a principle that museums are responsible for the tangible and intangible natural and cultural heritage (. . .). 269 As for research centres and other institutions whose fields of research fall within the ambit of the intangible cultural heritage see further below at Section 4.1.4. 262

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Frisian is recognized by law as a co-official language in the province of Friesland.270 Frisian is recognised in accordance with Chapter III of the European Charter for Regional or Minority Languages, which was ratified by the Netherlands in 1996.271 Two other Dutch dialects, Dutch Low Saxon and Limburguish, are recognised under Chapter II of the Charter. Chapter II grants less protection than Chapter III, but obliges the government to encourage the use of the dialects.272 4.1.2. Criteria for Recognition of Intangible Cultural Heritage There is no list of criteria according to which particular traditional knowledge or cultural expressions are held to qualify as intangible cultural heritage. To get a better understanding of the Dutch approach to intangible cultural heritage, reference can be made to a socio-historical description of what constitutes intangible cultural heritage, which is agreed upon by a great number of Dutch experts. According to Frijhoff there exist three components to intangible cultural heritage: firstly, it is something transmittable, ranging from a past performance via an experience, idea, custom, spatial element, building or artefact, to a set of these. Secondly, one can only speak of intangible cultural heritage provided that a human group exists that is able and ready to recognize these objects as a coherent unit, and to transmit and receive them. Thirdly, there must be a set of values linking the object inherited from the past to a future use, in a sense of meaningful continuity or equally meaningful change.273 While the description of Frijhoff does not refer to authenticity, the relevance of authenticity for the intangible cultural heritage can nevertheless be implied:274 not only must there be something transmittable—which presupposes the existence of something authentic, it must also be linkable via existing, authentic values to an active human group. Hence, in comparison with cultural heritage in tangible form, it is authenticity, rather than quality, which is of utmost value.

270

Art 2:7 General Administrative Law Act. CETS No.: 148. 272 See further, in particular on the legal regime concerning the Frisian language: Hemminga P., Het beleid inzake unieke regionale talen: een onderzoek naar het beleid en de beleidsvorming met betrekking tot een drietal unieke regionale talen: het Fries in Nederland en het Noordfries en Sorbisch in Duitsland, 2000. 273 Frijhoff W., “Cultural Heritage in the Making: Europe’s Past and its future Identity,” 2005, in Vos J.v.d. (Ed.) The Humanities in the European Reserach Area—International Conference Amsterdam, The Netherlands 2 September 2004. 274 Muskens G., Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, 2005, p. 24. 271

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As far as the relationship between intangible and tangible cultural heritage is concerned, not only does the latter enjoy greater protection in law; but also it is still perceived as the dominant form of protection of cultural heritage. This becomes evident from the fact that the need to protect intangible cultural heritage has a negative correlation with the amount of tangible cultural heritage: the less tangible cultural heritage that exits, the greater the relevance and need for protection of intangible cultural heritage becomes. As for intangible cultural heritage in the Netherlands, there exists little tangible evidence of the history of slavery and migration, as well as of so-called poverty cultures as they exited in the 19th and 20th centuries.275 The supporting function of intangible cultural heritage “filling in the gaps of the tangible cultural heritage” is, however, not written in stone. With respect to a number of aspects of the intangible cultural heritage, the need to protect the intangible cultural heritage has been stressed, despite the existence of tangible cultural heritage. This is in particular the case for the protection of oral traditions, folk culture in general, and folklore, specificially music and song culture, as well as handicrafts.276 Presently, the role of intangible cultural heritage in the designation of tangible cultural heritage, both movable and immovable, has not been evaluated. With respect to movable cultural heritage as protected under the Cultural Heritage Preservation Act, intangible cultural heritage might play a role in the evaluation of an object’s indispensability for Dutch cultural heritage. With respect to immovable cultural heritage, intangible cultural heritage could influence the evaluation of the qualitative criteria, first and foremost the evaluation of an object’s artistic and historical significance. 4.1.3. Protection Measures for Intangible Cultural Heritage As a general starting point, it should be stressed that Dutch experts are pessimistic about the possibility of granting protection to intangible cultural heritage against change and dynamics or against decay or loss.277 However, protection is not only thought difficult or impossible, if one wants to do justice to the character of intangible cultural heritage, the idea of drawing up inventories of intangible cultural heritage is generally rejected and thought undesirable.278 By approaching intangible cultural heritage the same way the protection of tangible cultural heritage is approached, experts feel that it is stripped of its defining and authentic characteristics. By forcing it into the mold of tangible cultural heritage, with the latter’s emphasis on masterpieces 275 276 277 278

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and outstanding works of art, intangible cultural heritage is not protected but instead put at risk of becoming meaningless.279 Also, some experts have voiced concern about what has been referred to as the tertium datur effect: the fact that the public’s contact with intangible culture heritage will in most cases be mediated by stocktaking and re-presentation, and hence reflect experts’ choices. In light of the above, the protection of intangible cultural heritage lies essentially in the granting of subsidies by the central government to museums and institutions that aim at the protection of intangible cultural heritage,280 and in the work of the different institutions researching, analysing and bringing to public attention the practices of intangible cultural heritage. The following initiatives can be pointed out as recent examples for initiatives aiming at the protection of intangible cultural heritage.281 First, the publication of the book “Folklore is an incomplete past”282 by the Dutch Centre for Folk Culture.283 The book describes thirty regional celebrations against their historical background. Second, the Meertens Institute maintains several databases, such as those on Dutch folksongs or folktales, which are publicly accessible via the Internet.284 Further folksongs and folktales are currently being researched for the publication of a book entitled, “Canon with a small ‘c’ ” by the Documentation and Research Centre specialising in Folktales.285 One last initiative, also applicable to the next section on the involvement of communities in the safeguarding of intangible cultural heritage, is the ongoing project by the Dutch Centre for Folk Culture for the drawing up of an inventory of 100 important traditions and rituals.286 4.1.4. Position of Communities in Safeguarding Intangible Cultural Heritage Two institutes are of great relevance under the Dutch approach to the protection of intangible cultural heritage: the Meertens Institute KNAW, which researches and documents the diversity of language and culture in the

279

Ibid., p. 22. Compare: Ibid., p. 3. 281 At this point, emphasis is put on specific projects/publications. Given the Dutch approach to the protection of intangible cultural heritage through the infrastructure that is available the reader is referred to Section 4 on the role and relevance of different institutions. 282 Spapens P., Folklore is onvoltooid verleden tijd, 2005. 283 http://www.volkscultuur.nl/boekenfonds_44.html (last visited 27 March 2008). 284 http://www.meertens.knaw.nl/cms/index.php?option=com_content&task=blogcategory &id=0&Itemid=119&lang=en (last visited 27 March 2008). 285 http://www.docvolksverhaal.nl/index.php?option=com_content&task=blogcategory&id =36&Itemid=69 (last visited 27 March 2008). 286 http://www.volkscultuur.nl/enquA%AAte-100-belangrijke-tradities-en-rituelen_62.html (last visited 27 March 2008). 280

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Netherlands,287 and the Dutch Centre for Folk Culture, which strives for the preservation and promotion of tangible and intangible cultural heritage.288, 289 There exist however, many more initiatives, including research posi– tions and centres in universities concerning living cultural heritage, ethnology, world music, research institutes,290 provincial centres, museums,291 and foundations.292 Only recently, the Foundation for Oral Culture (Stichting Vertelcultuur) was founded.293 Its founders are themselves institutions involved in the protection of cultural heritage, which indicates that the field enjoys a high degree of cooperation and network spill-over.294 In addition to these somewhat institutionalised initiatives, the input of volunteers and amateur groups is considered of particular relevance for the protection of intangible cultural heritage.295 This can be explained by the great emphasis Dutch experts put on the existence of authentic heritage, as well as the linkage of past and current values.296 One must assess the position of communities in protecting cultural heritage against this background. While the existence of a human group recognising a certain expression as intangible cultural heritage is crucial,297 there are so far no specific regulations granting specific rights to communities. One exception exists, however, with respect to minority languages. Speakers of minority languages recognised 287

http://www.meertens.knaw.nl/cms/ (last visited 27 March 2008). http://www.volkscultuur.nl/nederlands-centrum-voor-volkscultuur_10.html (last visited 27 March 2008). 289 Muskens G., Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, 2005, p. 25. 290 E.g. the National Institute for the Study of Dutch Slavery and its Legacy, which has been set up in 2003. See further: http://www.ninsee.nl/ (last visited 27 March 2008). 291 E.g. the Museum Museum Maluku (MUMA). See further: http://62.41.178.226/wps/portal/muma/!ut/p/c1/04_SB8K8xLLM9MSSzPy8xBz9CP0os3gTL09fCxNDMwMDN2cjAyNjY 28Ty0AjI3dLc30_j_zcVP3g1Dz9gmxHRQAsC7wH/dl2/d1/L2dJQSEvUUt3QS9ZQnB3LzZfNEpJTTg0MTYwMEZDMjAyMzNLNDlRMjJHUDU!/ (last visited 27 March 2008). 292 E.g.: the Foundation Platform for Dutch Folklore, which aims at improving the image of Dutch Folk Culture, especially in the fields of dance and dance music and the knowledge about traditional costumes. See further: http://www.steigan.net/pnf/indexen.html (in English) (last visited 27 March 2008). 293 http://www.vertelcultuur.nl/ (last visited 27 March 2008). 294 The Foundation Oral Culture was set up by the Documentation and Research Centre Folk Tales, the National Storytelling School, the Story Telling Academy, the Dutch Centre for Folk Culture, Profiel Uitgeverij (publisher), Foudation Experience (Beleven), the Foundation for Story Telling and “Tell me”: http://www.vertelcultuur.nl/ (last visited 27 March 2008). 295 Muskens G., Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, 2005, p. 16. 296 See above, answer to question C.1 on the despcription by Frijhoff: Frijhoff W., “Cultural Heritage in the Making: Europe’s Past and its future Identity”, 2005, in Vos J.v.d. (Ed.) The Humanities in the European Reserach Area—International Conference Amsterdam, The Netherlands 2 September 2004. 297 Cf. with the definition provided by Frijhoff above. 288

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by Dutch law are guaranteed certain rights to speak the minority language. Of course, any interest group, including communities can institutionalise its interest of safeguarding cultural heritage by setting up an organisation with legal personhood, for example, a foundation. 4.1.5. Inventories As general starting point it should be pointed out that experts share a general rejection of the idea of drawing up inventories of intangible cultural heritage.298 If any inventories were to be made, this would not be considered the task of the central government.299 Two institutions have taken the initiative of taking stock of Dutch intangible cultural heritage. The Dutch UNESCO Committee has published a report on intangible cultural heritage including eight concrete examples of intangible heritage.300 Another project, still in the making is the drawing up of a top 100 list of intangible cultural heritage by the Dutch Centre for Folk Culture. Everyone is asked to contribute to the list on the Centre’s website and the final 100 practices will be published in 2009 in commemoration of the Year of Traditions.301 Further to these two practices that come closest to the idea of inventories as outlined in Article 12 of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, the Meertens Institute maintains a number of databases, such as a Dutch Folksong Database, a Feast Database, and a Dutch Folktale Database.302 4.1.6. Additional Measures The Dutch Centre for Folk Culture is currently preparing a symposium take stock of current initiatives and to discuss future steps in the protection of cultural heritage and the ratification of the UNESCO Convention.303

298 Muskens G., Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, 2005, p. 21. 299 One of the main principles that shapes cultural policy making is the so-called Thorbecke principle. Thorbecke, who lived in the 19th century, was one of the most important Dutch politicians. As Minister of Internal Affairs he or she stated that “(. . .) the government may make no judgement of the science and the arts”. Handelingen Tweede Kamer, 1862/1862, Verslag p. 36. See further on current perception of the Thorbecke principle: Lubina K.R.M., “De cultuurnotaprocedure in analyse. Literatuur over juridisering en regulering rondom de cultuurnotaprocedure”, 2004, in Smithuijsen C. / Vlies I.C.v.d. (Eds.) Gepaste Afstand—De ‘cultuurnotaprocedure’ tussen de kunst, het recht en het openbaar bestuur. 300 Stam D. / Verhulst S., Immaterieel erfgoed in Nederland, 2006. 301 http://www.volkscultuur.nl/file_handler/documents/original/view/5/vcberichtennr6pdf .pdf at p. 7 (last visited 27 March 2008). See for appeal to the public to submit traditions: http://www.volkscultuur.nl/enquA%AAte-100–belangrijke-tradities-en-rituelen_62.html (last visited 27 March 2008). 302 http://www.meertens.knaw.nl/cms/index.php?option=com_content&task=blogcategory &id=0&Itemid=119&lang=en (last visited 27 March 2008). 303 More information available via [email protected] or 0031(0)30–2760244.

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4.2. Misappropriation of Traditions Recently, certain traditional cultural products have become commercially valuable and have even led to the creation of new branches of industry. This has created tension between the communities who preserved these traditions for generations and the companies who want to exploit them commercially. Intangible cultural heritage has been divided into categories such as “traditional knowledge,” “traditional ecological knowledge,” “traditional cultural expression,” and “expressions of folklore.” While these groups may partially overlap, they help to identify the different forms of intangible heritage in need of protection.304 The discussion below regards the measures taken under national law to prevent the misappropriation of this heritage. 4.2.1. Framework for Protection of Traditional Knowledge / Traditional Cultural Expressions The Dutch legal system does not provide for a specific framework for the protection of traditional knowledge or traditional cultural expression against misappropriation for commercial purposes. At the international level, particularly in the realm of the World Intellectual Property Organization (WIPO), the protection of traditional knowledge and traditional cultural expression is the subject of ongoing debate and non-binding draft previsions.305 No binding legal treaties have been adopted. At the European level, a number of legal instruments have been adopted.306 While these instruments have been implemented into Dutch law and have direct effect, protection against the misappropriation of traditional knowledge or traditional cultural expression must essentially rely upon the general system in place for the protection intellectual property rights. This includes copyrights, neighbouring rights, and trademark or patent protection. The question of whether or not the general Dutch system of intellectual property rights would provide protection for traditional knowledge or traditional cultural expression in a specific case

304 The terms “traditional knowledge” or “traditional ecological knowledge” are often employed in order to refer to knowledge accumulated or genetic biodiversity preserved by communities over generations. These resources may be misappropriated by patenting inventions that incorporate or are based upon them. On the other hand, the terms “traditional cultural expressions” and “expressions of folklore” are used in relation to cultural expressions such as folktales, legends, rock art, rituals, habits or customs, which might be misappropriated by incorporating them into copyrighted works or by using them as trademarks. 305 See further http://www.wipo.int/tk/en and http://www.wipo.int/export/sites/www/tk/ en/consultations/draft_provisions/pdf/tce-provisions.pdf (last visited 27 March 2008). 306 European Directive 2004/24 as Regards Traditional Herbal Medicinal Products; European Directive 2006/509 on Traditional Specialities Guaranteed; Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geophraphical indications and the designations of orgin for agricultural products and foodstuffs.

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requires a study in and of itself, and as a result, will not be addressed here.307 However, one particular development should explicitly be mentioned for its potential in extending the protection available to traditional cultural expression: the ongoing research into the protection of orphan works. Orphan works are works whose right holder(s) is / are unknown or non-locatable.308 The research on how to deal with the impossibility of the author’s / right holder’s consent may be of relevance to traditional cultural expression that cannot be linked with individual authors. 4.2.2. Group Rights The Dutch legal system does not recognize any proprietary rights for communities or their members over traditional knowledge or traditional cultural expression. 4.2.3. Regulation on Misappropriation of Intangible Cultural Heritage No legally binding regulations apart from intellectual property rights exist under Dutch law. The author is not aware of the existence of any non-binding guidelines or codes of conduct. 4.2.4. Regulations on Recording, Collecting, Archiving or Commercially Exploiting Traditional Cultural Expressions But for the general intellectual property rights, especially the 1912 Copyright Act, no regulation or codes of conduct exist in Dutch law in relation to recording, collecting, archiving or commercially exploiting traditional cultural expression. While the 1995 Act on Archives regulates the keeping of archives, it is not relevant for the protection of traditional cultural expression. Rather, it requires public authorities to take the required care when preserving or destroying their archives. Given that there exists no requirement for the Dutch State to record traditional cultural expression, the 1995 Act on Archives is inapplicable.309

307 As for an introduction to Dutch intellectual property rights, the reader may be referred to: Frequin M., Auteursrechtgids voor de Nederlandse praktijk, 2005; Hesemans D.J., Auteursrecht, 2008; Hesemans D.J. / Koninkrijk der Nederlanden., Wet op de naburige rechten, 2007; Hugenholtz P.B., Auteursrecht op informatie: auteursrechtelijke bescherming van feitelijke gegevens en gegevensverzamelingen in Nederland, de Verenigde Staten en West-Duitsland. Een rechtsvergelijkend onderzoek, 2005; Lingen N.v., Auteursrecht in hoofdlijnen, 2007; Spoor J.H., et al., Auteursrecht: auteursrecht, naburige rechten en databankenrecht, 2005. 308 See in this respect also the Report on Digital Preservation, Orphan Works and Out-ofPrint Works, Selected Implementation Issues of 18 April 2007 by the European Commission. Available at: http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_ id=3366 (last visited 27 March 2008). 309 This does not take away the fact that archives in themselves constitute cultural heritage. See further: http://www.erfgoedinspectie.nl/page/english/archives (last visited 27 March 2008).

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4.2.5. Protection to Sensitive Traditional Cultural Expression The Dutch legal system grants protection to sensitive traditional cultural expression against abuse or commercial use by anyone, provided that the activity fulfils the elements of one of the following offences under the Dutch Penal Code: Articles 146, 147, 149, or Article 266. As the question as to whether or not a particular activity fulfils the elements of the offence can only be addressed on a case-by-case basis, the following paragraphs are limited to introducing the relevant articles. Article 146 of the Penal Code prohibits the disturbance of a lawful public gathering intended to profess a religion or a belief, or a lawful ceremony for the professing of a religion or a belief, or a lawful funeral service.310 Article 147 penalises the public offending, either orally or in writing or by image, of religious sensibilities by malign blasphemies; the ridiculing of a minister of religion in the lawful execution of his duties; as well as the making of derogatory statements about objects used for religious celebration at a time and place at which such celebration is lawful.311 As far as malign blasphemy is concerned, the offence is limited to offending the Christian deity; it does not extend to Christian saints and other revered religious figures or non-Christian deities. The first paragraph of Article 147 has been subject to criticism in the light of Danish cartoons depicting Mohammed, and there have been motions both to extend the scope of the offence to include nonChristian deities and revered religious figures, as well as to abolish the first paragraph in its entirety.312 As far as religious or spiritual sensibilities different from the Christian belief are concerned, Article 266 might serve as a safety net.313 The second and third paragraphs of Article 147 apply to any religion. 310 Article 146 of the Dutch Penal Code states: A person by whom, by creating disorder or by making noise, either a lawful public gathering intended to profess a religion or a belief, or a lawful ceremony for the professing of a religion or a belief, or a lawful funeral service is intentionally disturbed, is liable to a term of imprisonment of not more than two months or a fine of the second category. Rayar L., et al. (Eds.), The Dutch penal code / transl. [from the Dutch], (1997). 311 A term of imprisonment of not more than three months or a fine of the second category shall be imposed upon: (1) a person who publicly, either orally or in writing or by image, offends religious sensibilities by malign blasphemies; (2) a person who ridicules a minister of religion in the lawful execution of his duties; (3) a person who makes derogatory statements about objects used for religious celebration at a time and place at which such celebration is lawful. 312 In the context of the Danish cartoons on Mohammed and the film Fitna by the Dutch politician Wilders, the government is currently discussing whether or not to extent the scope of Article 147 of the Penal Code to apply also to other religions or whether to get rid of the Article in its entirety. 313 Article 266 reads: 1. Each intentional act of defamation that cannot be characterized as slander or as libelous defamation, committed in public either orally or in writing or by image, or orally against a person in his presence or through other acts, or committed by means of written matter or an image sent or offered, constitutes simple defamation, punishable by a

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As for places and monuments, Dutch law prohibits the desecration of grave stones and other symbols and signs on graveyards (Article 149).314 5. Bibliography Aa, Bart J.M. van der, Preserving the heritage of humanity? Obtaining world heritage status and the impacts of listing, (2005). Alphen, C. van / Gier, A.A.J. de / Meijden, D. van der / Schoot, T.H.A.A. van der, Raakvlakken RO—Relaties met andere wetten, (Alphen aan den Rijn, Kluwer) (2005). Beunen, Annemarie (Ed.), Museumrechtwijzer: Juridisch handboek voor musea, (Amsterdam, Boekmanstichting) (2000), 347. Blom, Joost, Laying Claim to Long-Lost Art: The Hoge Raad of the Netherlands and the Question of Limitation Periods, (2000) 1, International journal of cultural property, 138–150. Boer, J. de, De schatvinding in het ontwerp B.W. en de Monumentenwet, mede gezien in het licht van haar geschiedenis, (1973) RM Themis, 421–465. Bok, Leon / Valkenburcht, Michiel, Eerbetoon aan Opa, (2006) 2, Nieuwsbrief Rijksdienst voor Archeologie, Cultuurlandschap en Monumenten, 12–13. Bollen, C. / Groot, Gerard Rene, de, Verknoeit het Europese recht ons Burgerlijk Wetboek?, (1995) 1, Nederlands Tijdschrift voor Burgerlijk Recht, 1–9. Bos, Adriaan, The Importance of the 1899, 1907 and 1999 Hague Conferences for the Legal Protection of Cultural Property in the Event of Armed Conflict, (2005) Museum International, 32–40. Brunner, C.J.H., Dief wordt eigenaar, in Quod Licet, Bundel aangeboden aan prof mr WM Kleijn ter gelegenheid van zijn afscheid als hoogleraar burgerlijk recht en notarieel recht aan de Rijksuniversiteit te Leiden, (Deventer) (1992), 45 ff. Chorus, Jeroen M.J. / Gerver, Piet-Hein M. / Hondius, Ewoud H. / Koekkoek, Alis K. (Eds.), Introduction to Dutch Law, (The Hague/London/Boston, Kluwer Law International) (1999). Fikkers, Heleen, Wie een leeuw op straat vindt, moet deze niet thuis kunnen houden, in Snijders, Henricus Joseph / Zwitser, Richard (Eds.), Tot persistit! opstellen aangeboden aan HJ Snijders, ter gelegenheid van zijn afscheid als hoogleraar privaatrecht aan de Erasmus Universiteit Rotterdam, (Arnhem, Gouda Quint) (1992), 133–146. Forder, Caroline, Treasure Trove in the Netherlands: Article 13 of Book 5 of the New Dutch Civil Code, (1992) International journal of cultural property, 413–422. Frequin, Michel, Auteursrechtgids voor de Nederlandse praktijk, (Den Haag, Sdu Uitgevers) (2005). Frijhoff, W., Cultural Heritage in the Making: Europe’s Past and its future Identity, in Vos, Johannes van der (Ed.) The Humanities in the European Reserach Area—International Conference Amsterdam, The Netherlands 2 September 2004, (Den Haag, Netherlands Organisation for Scientific Research, Humanities) (2005). Geurts, J.G. / van Niftrik, Monumentenwet 1988: wet van 23 december 1988, Stb. 1988, 638, tot vervanging van de Monumentenwet met aantekeningen, uitvoeringsbesluiten, alfabetisch register en verdere bijvoegsels, (Alphen aan den Rijn, Kluwer) (2001).

term of imprisonment of not more than three months or a fine of the second category 2. Acts indended to express an opinion about the defense of public interests, and not at the same time designed to cause worse offense in any other way than might be assumed from their purport, are not punishable as simple defamation. Rayar L., et al. (Eds.), The Dutch penal code / transl. [from the Dutch], (1997). 314 Article 149 reads: A person who intentionally desecrates a grave, or who intentionally and unlawfully destroys or damages any memorial erected in a cemetetary is liable to a term of imprisonment of not more than one year of a fine of the third category. Ibid. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Gimbrère, Sabine & Pronk, Tineke, The Protection of Cultural Property: From Unesco to the European Community with special reference to the Case of the Netherlands, (1992) Netherlands Yearbook of International Law, 223–273. Haanappel, P.P.C. / MacKaay, Ejan, Nieuw Nederlands Burgerlijk Wetboek: het vermogensrecht (zakenrecht, verbintenissenrecht en bijzondere overeenkomsten) / New Netherlands Civil Code: patrimonial law (property, obligations and special contracts), (Deventer [etc.], Kluwer) (1990). Haase, N.L.J., De invloed van de Monumentenwet op het bestemmingsplan, (2004). Hemminga, Piet, Het beleid inzake unieke regionale talen: een onderzoek naar het beleid en de beleidsvorming met betrekking tot een drietal unieke regionale talen: het Fries in Nederland en het Noordfries en Sorbisch in Duitsland, (Fryske Akademy) (2000). Hesemans, D.J., Auteursrecht, (Deventer, Kluwer) (2008). Hesemans, D.J. / Koninkrijk der Nederlanden., Wet op de naburige rechten, (Deventer, Kluwer) (2007). Hladík, Jan, The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the notion of military necessity, (1999) 833, Revue International de la Croix-Rouge, 621–630. Hugenholtz, P.B., Auteursrecht op informatie: auteursrechtelijke bescherming van feitelijke gegevens en gegevensverzamelingen in Nederland, de Verenigde Staten en West-Duitsland. Een rechtsvergelijkend onderzoek, (Amsterdam, Amsterdam Academic Archive) (2005). Kastenberg, J., E., The Legal Regime for Protecting Cultural Property During Armed Conflict, (1997) The Air Force Law Review, 277–303. Kavelaars, P., Natuurschoon en rijksmonumenten, (Amersfoort, Sdu) (2006). Klomp, R.J.Q., Dieven met geduld. Over verkrijgende verjaring te kwader trouw, in Brand, I. / Franke, M.E. / Hoogervorst, E.M. / Houben, I.S.J. / Reurich, L. / Wissink, M.H. (Eds.), Tijd en onzekerkeid BW-krant jaarboek 16, (Deventer, Gouda Quint) (2000), 59–74. ——, (Ed.), Kunst en Recht 2007/2010, (Nijmegen, Ars Aequi Libri (i.s.m. De Nederlandse Museumvereniging)) (2007). Kooijmans, P.H., Internationaal Publiekrecht in Vogelvlucht, (Kluwer) (2002). Kortmann, Constantijn A.J.M. / Bovend’Eert, Paulus Petrus Theodorus, Constitutional law of the Netherlands: an introduction, (Alphen aan den Rijn, Kluwer Law International) (2007). Kuypers, Paul, Decentralisatie, kunst en cultuurbeleid, in Boekmanstichting (Ed.) Kunst en De Regulering, (Amsterdam, Boekmanstichting) (2003), 29–37. Lingen, N. van, Auteursrecht in hoofdlijnen, (Groningen etc., Wolters-Noordhoff ) (6e dr. ed., 2007). Lubina, Katja Rita Maria, De cultuurnotaprocedure in analyse. Literatuur over juridisering en regulering rondom de cultuurnotaprocedure, in Smithuijsen, Cas / Vlies, Inge C. van der. (Eds.), Gepaste Afstand—De ‘cultuurnotaprocedure’ tussen de kunst, het recht en het openbaar bestuur, (Amsterdam, Boekmanstudies Amsterdam) (2004). Maarleveld, Thijs, Archaeological heritage management in Dutch waters: exploratory studies, (Leiden) (1998), 161–188. ——, The Netherlands, in Dromgoole, Sarah (Ed.) The protection of the underwater cultural heritage: national perspectives in light of the UNESCO Convention 2001, (Leiden, Nijhoff ) (2006), 161–188. Meihuizen, Yvo / Koelwijn, Frank, Een monument beheren, onderhouden en handhaven: overzicht van de Monumentenwet en de monumentenzorg voor ambtenaren, architecten en eigenaren, (Den Haag, Sdu Uitgevers) (2006). Mijnssen, F.H.J. / de Haan, P. / van Dam, C.C. / Ploeger, H.D., Mr. C. Asser’s handleiding tot de beoefening van het Nederlands burgerlijk recht. 3 Goederenrecht. Deel I. Algemeen goederenrecht, (Deventer, Kluwer) (2006). Mijnssen, F.H.J. / Haan, Asser Serie 3 I Goederenrecht, (2001). Ministerie van Welzijn, Volksgezondheid en Cultuur, Cultuurbescherming in buitengewone Omstandigheden, (1991). Ministry of Welfare, Health and Cultural Affairs, Cultural policy in Netherlands: national report, (Zoetermeer) (1994).

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Molengraaff, W.L.P.A., Enige beschouwingen over de bewaring van gedenkstukken van geschiedenis en kunst in het buitenland en hier te lande, in het bijzonder over de daaromtrent bestaande wettelijke bepalingen, (1905). Muskens, George, Immaterieel cultureel erfgoed in Nederland: rapportage op basis van interviews met 33 deskundigen, in opdracht van het ministerie van OCW, directie Cultureel Erfgoed, (2005). Myerscough, John, Cultural policy in Netherlands: report of a European group of experts, (Zoetermeer, Ministry of Welfare, Health and Cultural Affairs) (1994). Nahlik, S.E., On some deficiencies of the Hague Convention of the Protection of Cultural Property in the event of Armed Conflicte, (1974) Annuaire de l’Association des Anciens Audituers de l’Academie de La Haye, 100–108. Nieuwenhuis, J.H. / Stolker, C.J.J.M. / Valk, W.L. / Wissink, M.H., Vermogensrecht—Tekst & Commentaar, (Deventer, Kluwer) (2007). Odendahl, Kerstin, Kulturgüterschutz. Entwicklung, Struktur und Dogmatik eines ebenenübergreifenden Normensystems, (Tübingen, Mohr 2005) (2005). Peters, Th., Verstrekkende monumentenbescherming: de relatie tussen der herziene Woningwet en Monumentenwet 1988 bij de bescerming van monumenten, (2003) BR, 923–929. Ploeger, Hendrik Dirk, Horizontale splitsing van eigendom, (Deventer, Kluwer) (1997). Poorter, Jurgen Constantinus Abraham de, De belanghebbende: een onderzoek naar de betekenis van het belanghebbende-begrip in het bestuurs(proces)recht, (Den Haag, Boom Juridische uitgevers) (2003). Pots, Roel, Cultuur, koningen en democraten: Overheid & cultuur in Nederland, (Nijmegen, SUN) (2000). Prott, Lyndel, V., The Protocol to the Convention for the Protection of Cultural Property in the event of armed Conflict (The Hague Convention) 1954, in Briat, Martine, & Freedberg, Judith, A. (Eds.) Legal aspects of International Trade in Art, (The Hague, Kluwer) (1996), 163–174. Raad voor Cultuur, Letter to State Secretary of Culture with subject “criteria WBC” Reference wbc-98.7435/1, (1998). Rayar, Louise / Wadsworth, Stafford / Cheung, Mona (Eds.), The Dutch penal code / transl. [from the Dutch], (Littleton, CO, Rothman) (1997). Reehuis, Willem Hendrik Maria Reehuis / Heisterkamp, A.H.T., Goederenrecht, (Deventer, Kluwer) (2006). Royal Netherlands Army, Combat Operations—Army Doctrine Publication II Part B: Combat Operations against a regular Enemy Force, (available online at: http://wwwlandmachtnl/ organisatie/taken/militaire_doctrineaspx) (last visited 27 june 2008). Salomons, A.F., Nieuwe regels omtrent de eigendom van roerende monumenten ingevolge de Wet op de Archeologische Monumentenzorg, (2007) 6718, Weekblad voor Privaatrecht, Notariaat en Registratie, 613–620. Schilder, Arnold Emanuel / Brouwer, Jan Gesienus, A survey of Dutch administrative law, (Nijmegen, Ars Aequi Libri) (1998). Siehr, Kurt, International Art Trade and the Law, (Academie de droit international) (1993). Simon, H.J., Handboek Bestuurs(proces)recht volgens de AWB, (’s-Gravenhage, Sdu Uitgevers Juridisch & Fiscaal) (1997). Sjouke, P.S., Wet tot behoud van cultuurbezit / P.S. Sjouke, (Deventer, Kluwer) (2007). Smithuijsen, Cas / Bína, V. / Dutch Ministry of Education, Culture and Science, The Netherlands, in Europe/ERICarts, Council of (Ed.) Compendium of Cultural Policies and Trends in Europe, 6th Edition (available online at: http://wwwculturalpoliciesnet/preview/ netherlandsphp?aid=1) (last visited 26 February 2008), (2005). Spapens, P., Folklore is onvoltooid verleden tijd, (Utrecht, NCV) (2005). Spoor, J.H. / Verkade, D.W.F. / Visser, D.J.G., Auteursrecht: auteursrecht, naburige rechten en databankenrecht, (Deventer, Kluwer) (3e, geheel herz. dr. ed., 2005). Stam, Dineke / Verhulst, S., Immaterieel erfgoed in Nederland, (Den Haag, Nationale UNESCO Commissie) (2006). Strikwerda, L., Inleiding tot het Nederlandse internationaal privaatrecht, (Deventer, Kluwer) (8th ed., 2005). Stuers, Victor Eugène Louis de, Holland op zijn smalst, (1873) De Gids.

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Toman, Jiří, The Protection of Cultural Property in the Event of Armed Conflict, (Dartmouth, UNESCO Publishing) (1996). Vlies, Inge C. van der., De kunst en het recht: over algemene publiekrechtelijke regels met betrekking tot kunst, (Den Haag, Boom Juridische uitgevers) (2005). Werkgroep Onroerend/roerend, Van Object naar Samenhang—De instandhouding van ensembles van onroerend en roerend cultureel erfgoed (Zeist, ’s-Gravenhage, Amsterdam) (available online at: http://www.erfgoedinspectie.nl/_media/publications/Van_object_naar_ samenhang.pdf ) (last visited 27 june 2008). Wijk, Hendrik Daniël van / Konijnenbelt, Willem / Male, Ronald Maria van, Hoofdstukken van bestuursrecht, (Den Haag, Elsevier Juridisch) (2005).

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NEW ZEALAND / AOTEAROA Paul Myburgh* 1. General Issues ........................................................................................... 1.1. Classification of Cultural Heritage ................................................ 1.2. Local and Regional Protection of Cultural Heritage ................. 1.3. Constitutional and Legislative Framework .................................. 1.3.1. Historic Places Act 1993 ...................................................... 1.3.2. Resource Management Act 1991 ........................................ 1.3.3. Protected Objects Act 1975 ................................................. 2. Tangible Cultural Heritage ..................................................................... 2.1. Immovable Cultural Heritage ........................................................ 2.1.1. The Statutory Framework .................................................... 2.1.2. Definitions of Immovable Cultural Heritage ................... 2.1.3. Protection of Immovable Cultural Heritage .................... 2.1.4. Registration of Immovable Cultural Heritage ................. 2.1.5. Effects of Registration of Immovable Cultural Heritage 2.1.6. Immovable Cultural Heritage and Armed Conflict ........ 2.1.7. Immovable Underwater Cultural Heritage ...................... 2.2. Movable Cultural Heritage ............................................................. 2.2.1. The Statutory Framework .................................................... 2.2.2. Registration of Movable Cultural Heritage ...................... 2.2.3. Exportation of Movable Cultural Heritage ...................... 2.2.4. Stolen and Illicitly Imported or Exported Movable Cultural Heritage .................................................................. 2.2.5. Museums and Movable Cultural Heritage ....................... 2.2.6. Movable Cultural Heritage and Armed Conflict ............ 2.2.7. Movable Underwater Cultural Heritage ........................... 3. Intangible Cultural Heritage ................................................................... 3.1. Safeguarding of Intangible Cultural Heritage ............................. 3.1.1. The Statutory Framework .................................................... 3.1.2. Registration of Wāhi Tapu .................................................. 3.2. Misappropriation of Traditions ..................................................... 4. Beyond Preservation ................................................................................

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* Associate Professor of Law, The University of Auckland, Aotearoa New Zealand. All URLs in this report were accessed on 1 June 2008. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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paul myburgh ‘Puritia ngā taonga tuku iho a ngā tupuna hei tiki hūia mā ngā uri whakatupu a Aotearoa.’ ‘Keep the treasures handed down by the ancestors as an adornment for the descendents yet to be born in New Zealand.’ 1. General Issues 1.1. Classification of Cultural Heritage

Tangible and intangible cultural heritage: New Zealand law does not categorise cultural heritage according to strict distinctions in the way in which cultural heritage presents itself, in other words, whether it is tangible or intangible. While it would be fair to say that the focus of the New Zealand statutory framework is on the protection of historic tangible places, areas and movables, the Historic Places Act 1993 expressly protects wāhi tapu (sites sacred to Māori), and the Resource Management Act 1991 specifically refers to the spiritual dimension of cultural heritage. The granting of resource consents for modification or development of land under the Resource Management Act 1991 requires consultation with local hapu and iwi (Māori subtribes and tribes). On occasion, resource consents have been opposed by hapu or iwi on the basis that the proposed development would affect a taniwha (traditional guardian spirit of the place),1 or would involve culturally unsafe practices (for example, importing sand or shells from outside the local region and mixing it with sand or shells in the local area).2 Such objections have had varying degrees of success. Cultural heritage in peace and war: New Zealand signed the Hague Convention on Protection of Cultural Heritage in the Event of Armed Conflict 1954 but did not ratify the Convention, or sign its two Protocols. New Zealand has not traditionally drawn a distinction in its cultural heritage rules between the protection of cultural heritage in peace and wartime. In 2007, however, the Ministry for Culture and Heritage issued a consultation paper inviting submissions on whether New Zealand should ratify and give domestic effect to the 1954 Hague Convention and its Protocols.3 New Zealand subsequently ratified the Convention on 24 July 2008. In September 2008 the Government introduced the Cultural Property (Protection in Armed Con-

1 See K. Quince, When Uncle Ron and the Monster Took On The Crown, Working draft of paper presented to the Federalism and Indigenous Peoples Conference at the University of Hawaii Law School, 7 January 2007 (forthcoming 2008), on file with the author. 2 The basis for the objection is that water and sand contain elements of blood, bone and other matter sacred to Māori, and these cannot be mixed with these elements from another area. 3 See http://www.mch.govt.nz/publications/hague/ConsultationPaperonthe1954Hague Convention.pdf.

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flict) Bill 2008 which, when enacted, will give domestic effect to the Convention and its Protocols. The Bill has had its first reading and is currently before the Government Administration Committee. It will not be reported back to the House until Parliament resumes sitting in 2009. One might be forgiven for thinking that giving domestic effect to the 1954 Hague Convention in New Zealand is not exactly a high priority, given that the prospect of the invasion of New Zealand by hostile powers with consequent damage to our cultural heritage is exceedingly unlikely.4 Rather, the current impetus for giving domestic effect to the 1954 Convention would appear to stem from New Zealand Defence Force involvement in United Nations peacekeeping missions abroad, and a concern that existing New Zealand Defence Force rules in respect of the protection of overseas cultural heritage are not as robust or transparent as they might be.5 Underwater cultural heritage: New Zealand is a party to, and has given domestic effect to, the United Nations Convention on the Law of the Sea 1982 (UNCLOS). New Zealand’s maritime zones are defined in accordance with the standard UNCLOS regime.6 New Zealand is not yet a party to the UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001, but one can only hope that New Zealand will ratify the 2001 Convention in the very near future, or that the principles of the 2001 Convention will have an indirect salutary influence on the law and practice of protecting underwater cultural heritage in New Zealand.7 New Zealand does not have a specific domestic legal regime for the protection of underwater cultural heritage, but pre-1900 shipwreck sites within New Zealand territorial waters and inland waters are protected under the definition of archaeological sites under the Historic Places Act 1993. New Zealand law therefore draws no special distinction in its statutes between the protection of land-based and underwater cultural heritage, but in practice the focus remains mainly on land-based cultural heritage. New Zealand’s underwater cultural heritage has been comparatively neglected and is still not effectively protected. Ownership and possession of cultural heritage: New Zealand law does draw a distinction between whether cultural heritage or property is lawfully or unlawfully owned or possessed. Tangible cultural heritage is subject to the

4 See also P. Davies and P. Myburgh, ‘New Zealand’ in S. Dromgoole, ed., The Protection of the Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 (2 ed., The Hague, Martinus Nijhoff 2006) 210. 5 See http://www.mch.govt.nz/publications/hague/ConsultationPaperonthe1954Hague Convention.pdf, p. 12: Ratification of the 1954 Hague Convention “would reinforce the current operational practice of New Zealand’s armed forces when involved in conflicts overseas, and make New Zealand’s commitment to those norms of conduct more visible”. 6 See the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 ss. 5–6A, 9; Davies and Myburgh, loc. cit., n. 4, pp. 189–190. New Zealand also has a disputed claim over the Ross Dependency, a territory in Antarctica, and its adjoining maritime space. 7 Davies and Myburgh, loc. cit., n. 4, p. 215.

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usual private law rules of land law and personal property law. In addition, the Historic Places Act 1993, the Resource Management Act 1991, the Protected Objects Act 1975 and other statutes place specific restrictions and prohibitions on land or personal property of cultural, historical, archaeological or spiritual significance. Although New Zealand law does not follow the classical categorizations of cultural heritage, it does cover most forms of cultural heritage to some degree within the statutory framework. However, this is not to say that New Zealand law offers a particularly integrated, uniform or effective approach to the protection of cultural heritage. The different domestic statutes provide differing degrees of protection to aspects of cultural heritage on a more or less piecemeal basis. Although the coverage of these different statutes often overlaps (for example there is a large overlap between the historic heritage provisions of the Resource Management Act 1991 and the Historic Places Act 1993), gaps remain in the statutory coverage. Further, the lack of an integrated statutory approach to cultural heritage issues, the use of different definitions of cultural heritage in different statutes, and the fact that the statutes are administered and enforced by different authorities or entities and enforced at different levels of government, all make for a rather complex and uneven patchwork of cultural heritage protection. 1.2. Local and Regional Protection of Cultural Heritage The protection of cultural heritage in New Zealand is reasonably community-oriented in respect of Māori cultural heritage, in the sense that wāhi tapu and wāhi tapu areas are expressly recognised and protected under the Historic Places Act 1993, and the kaitiakitanga (the ethic of stewardship) of Māori hapu or iwi of such places or areas is recognised under the Resource Management Act 1991.8 However, the extent to which Māori cultural practices and concerns are adequately taken into account will often depend in practice upon the attitude of individual territorial authorities, the effect of lobby groups,9 and the behaviour of the Crown. In respect of other cultural heritage, protection tends to depend on its cultural, historical or other significance to New Zealand as a whole, or of a region of New Zealand. Territorial authorities may issue heritage orders under the Resource Management 8 See Quince, loc. cit. n. 1; J. Ruru and J. Stephenson, ‘Wāhi Tapu and the Law’ [2004] New Zealand Law Journal 57. 9 The commercial sector, in particular, can be highly dismissive or hostile to Māori cultural concerns: for a typical example, see O. McShane, ‘Shifting Sands in Cultural Fruitcake Week’, The National Business Review, 15 November 2002, p. 26. See also H. Allen, Protecting Historic Places in New Zealand, http://www.nzarchaeology.org/elecpublications/HARRY2.pdf, at p. 12: ‘An enlightened council that fully engages with tangata whenua [the people of the land] and heritage issues is likely to meet ratepayer and landowner resistance.’ Allen’s monograph provides an excellent overview of cultural heritage protection in New Zealand.

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Act 1991 to protect heritage places or areas within the relevant territorial region. It should be noted that registration under the Historic Places Act 1993 affords protection only in so far as the relevant territorial authority must take the registration of the sites or areas into consideration when deciding whether to issue a resource consent under the Resource Management Act 1991. This involves consultation with Māori and taking into account their kaitiakitanga. However, this is only one factor amongst many in the decision-making process. Registration under the Historic Places Act 1993 does not guarantee absolute protection. The territorial authority will allow development if it decides that other factors, including economic development, outweigh cultural heritage factors. The practical reality is that some territorial authorities appear to be more “heritage-friendly” whereas others are more “developer-friendly”. Registration under the Historic Places Act 1993 may be contrasted with designation as an archaeological site, or heritage order or covenant, which are binding and cannot be overridden by territorial authorities. 1.3. Constitutional and Legislative Framework The fundamental constitutional principle regarding the protection of Māori cultural heritage is enshrined in Article II of Te Tiriti o Waitangi (the Treaty of Waitangi), signed by the British Crown and most Māori hapu in 1840, which provides for ‘te tino rangatiratanga o ō rātou whenua, ō rātou kāinga me ō rātou taonga katoa’ (or, in the English translation, ‘the unqualified exercise of their chieftainship over their lands, villages and all their treasures’).10 Specific domestic statutes protecting cultural heritage in New Zealand include the Historic Places Act 1993, the Resource Management Act 1991 and the Protected Objects Act 1975. 1.3.1. Historic Places Act 1993 The aim of the Historic Places Act 1993 is to ‘promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand’. The Act is administered by the New Zealand Historic Places Trust (Pouhere Taonga), a Crown entity.11 The Act protects archaeological sites, historic places, historic areas, wāhi tapu and wāhi tapu areas. The Historic Places Trust may impose heritage orders and heritage covenants

10 Although New Zealand has no formal written constitution in a single document, the Treaty is regarded as a highly significant constitutional document—and, for many Māori and Pākehā, it is considered the founding document of New Zealand statehood. 11 For more information on the Trust and its activities, see http://www.historic.org.nz/.

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in respect of such sites and areas, and is charged with establishing a register of historic sites and areas. 1.3.2. Resource Management Act 1991 The Resource Management Act 1991 regulates the use of land, air and water resources in New Zealand. The Act was amended to include explicit protection for historic heritage in 2003. Historic heritage is broadly defined as including historic sites, structures, places and areas, archaeological sites, and sites of significance to Māori. The Resource Management Act is administered and enforced at a regional and local level by territorial authorities. There is a broad overlap between this statute and the Historic Places Act 1993. Both statutes cover general aspects of historical and cultural heritage—the former at a central government level, and the latter at a regional and local level. The latter statute provides much of the practical “teeth” of protecting heritage against development at the local and regional level. 1.3.3. Protected Objects Act 1975 The Protected Objects Act 1975 was enacted by New Zealand in 2006.12 The Act replaces the Antiquities Act 1975, and gives domestic effect to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (the 1970 UNESCO Convention) and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995 (the 1995 UNIDROIT Convention). New Zealand is the second Common Law jurisdiction to ratify both the UNESCO and UNIDROIT Conventions, and the first Common Law jurisdiction to give domestic effect to both Conventions in a single domestic statute.13 The Protected Objects Act focuses on the protection of tangible movable cultural heritage. The Act is administered by the Ministry for Culture and Heritage.14

12 The Protected Objects Amendment Act 2006 replaced the Antiquities Act 1975, which became the Protected Objects Act 1975. Confusingly, while the title of the Act and the vast majority of its provisions have been changed, the year of the original Act has been retained. 13 See generally P. Davies and P. Myburgh, ‘The Protected Objects Act in New Zealand: Too Little, Too Late?’ (2008) 15 International Journal of Cultural Property 321–345. While Nigeria was the first Common Law country to sign both international instruments, it has not yet enacted the 1995 Convention in its domestic law. 14 See http://www.mch.govt.nz/protected-objects/index.html.

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2. Tangible Cultural Heritage 2.1. Immovable Cultural Heritage 2.1.1. The Statutory Framework New Zealand law achieves the protection of culturally significant immovables by defining and declaring them to be cultural heritage within the parameters of a specific statute. Protection may then follow automatically,15 through a process of public registration,16 by the imposition of a heritage order,17 or by the negotiation of a heritage covenant. Archaeological sites, historic sites and historic areas are protected by the Historic Places Trust under the Historic Places Act. The Trust may protect such sites and areas by imposing a heritage order or negotiating a heritage covenant with the owners or occupiers of the site or area. Wāhi tapu and wāhi tapu areas are recognised, registered and protected by the Māori Heritage Council, a specialist body within the Historic Places Trust. In addition, such heritage sites may be subject to heritage orders administered and enforced by territorial authorities in district plans and coastal plans under the Resource Management Act 1991, or may be protected by conditions imposed during the resource consent process that must be undertaken under the same Act before land can be subdivided, modified or developed. 2.1.2. Definitions of Immovable Cultural Heritage Different criteria are used in each Act to determine whether immovable property is recognised as cultural heritage. Culturally significant immovables are protected under the Historic Places Act 1993 if they are recognised as archaeological sites, historic places, historic areas, wāhi tapu, or wāhi tapu areas, as defined in s 2 of the Act. Archaeological sites are defined as any places in New Zealand that either were associated with human activity that occurred before 1900 or are the sites of the wreck of any vessel where that wreck occurred before 1900; and are, or may be, able through investigation by archaeological methods to provide evidence relating to the history of New Zealand. Historic places are defined as any land (including an archaeological site), or anything in or fixed to such land, or any building or structure (including part of a building or structure), or any combinations of land, buildings or

15

As in the case of archaeological sites under ss. 9–20 of the Historic Places Act 1993. As in the case of historic places, historic areas, wāhi tapu and wāhi tapu areas under Part 2 of the Historic Places Act 1993. 17 See s. 5 of the Historic Places Act 1993 and ss. 189 and 189A of the Resource Management Act 1991. 16

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structures that form a place that is part of the historical and cultural heritage of New Zealand, and lie within the territorial limits of New Zealand. Similarly, historic areas are defined as areas of land that contain an inter-related group of historic places, form part of the historical and cultural heritage of New Zealand and lie within the territorial limits of New Zealand. Wāhi tapu are defined as places sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense, and wāhi tapu areas are defined as an area of land that contains one or more wāhi tapu. Wāhi tapu may include urupā (burial places), rua koiwi (places where skeletal remains are kept), sites where skeletal remains once were, unless the tapu has been removed, caverns and underwater burial places, places where baptismal rites were performed, wāhi whenua (places where placenta are buried), tuahu (enclosures used for divination and other mystic rites), battle grounds and other places where blood was spilled and where the tapu has not yet been removed, waiora (springs or sources of water for healing), sources of water for death rites, ara purahourua (sacred pathways for messengers), places imbued with the mana (power) of chiefs or tupuna (ancestors), and landforms such as mountains which embody the creation stories and whakapapa (connectedness through ancestry) of the tangata whenua (the people of the land).18 The Historic Places Trust maintains Rarangi Taonga, a Register consisting of the following categories: historic places, category I (places of special or outstanding historical or cultural heritage significance or value) and historic places, category II (places of historical or cultural heritage significance or value), historic areas, wāhi tapu, and wāhi tapu areas.19 The Trust may enter any historic place or historic area in the Register ‘if the place or area possesses aesthetic, archaeological, architectural, cultural, historical, scientific, social, spiritual, technological, or traditional significance or value’.20 The deci-

18 See Y. Legarth, R. McGovern-Wilson, and K. Grieg, ‘HE5.03: Identification of Historic Heritage’, DSL Environmental Handbook, http://www.brookersonline.co.nz; Ruru and Stephenson, loc. cit. n. 8. 19 See s. 22 of the Historic Places Act 1993; http://www.historic.org.nz/Register/about_the_ register.html. There are currently about 5469 entries on the Register. Of these, 5251 are historic places, 111 historic areas, 49 wāhi tapu areas and 58 wāhi tapu. A list of historic places and areas can be searched online at http://www.historic.org.nz/Register/Search.asp. A list of wāhi tapu and wāhi tapu areas is not available online, due to the cultural sensitivities surrounding such sites. Other registers of sites of historic and archaeological importance include the Historic Asset Management System (HAMS) managed by the Department on Conservation (on which, see P. Clayworth, ‘Historic Heritage Thematic Frameworks: Their Use as Tools for Management and Interpretation’, Science for Conservation 285, 2008, at pp. 33–34, http:// www.doc.govt.nz/upload/documents/science-and-technical/sfc285entire.pdf ), the New Zealand Archaeological Association (NZAA) Site Recording Scheme (http://www.nzarchaeology .org/recording.htm) and Regional Councils’ cultural heritage inventories (see, for example, the Auckland Regional Council’s CHI at http://www.arc.govt.nz/heritage/cultural-heritageinventory/cultural-heritage-inventory_home.cfm). 20 See s. 23(1) of the Historic Places Act 1993. The Act does not list authenticity or integrity as relevant criteria in the determination process. However, questions of authenticity or

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sion as to whether historic places fall into category I or category II is made with reference to various criteria, including the importance of the place in New Zealand history, the importance of the place to the tangata whenua (the people of the land, or Māori), the community association with, or public esteem for, the place, and the extent to which the place forms part of a wider historical and cultural complex or historical and cultural landscape.21 Under the Resource Management Act 1991, historic heritage is broadly defined as those natural and physical resources that contribute to an understanding and appreciation of New Zealand’s history and cultures, deriving from their archaeological, architectural, cultural, historic, scientific or technological qualities; and includes historic sites, structures, places, and areas; archaeological sites; and sites of significance to Māori, including wāhi tapu; and surroundings associated with the natural and physical resources. The Resource Management Act has provided a vehicle for some of the more interesting cultural heritage controversies and compromises in New Zealand. Local Māori hapu and iwi have been able to use the provisions in Part 2 of the Resource Management Act requiring the decision-maker to recognise and provide for the relationship between Māori and their ancestral lands, water, sites, wāhi tapu and other taonga, to acknowledge the concept of kaitiakitanga,22 and to take into account the principles of the Treaty of Waitangi,23 to voice their opposition to developments that they consider to be culturally insensitive or unsafe. So, for example, the Ngati Rangi hapu opposed the building of the Ngawha Prison in Northland, on the basis that, amongst other things, this would upset their relationship with the taniwha of the area, Takauere, and inhibit his movements.24

integrity will presumably impact indirectly on the question of whether archaeological sites can, through archaeological investigation, provide evidence relating to the history of New Zealand, and whether other historical sites are indeed part of the historical and cultural heritage of New Zealand. 21 S 23(2) of the Historic Places Act 1993. 22 Kaitiakitanga is defined in s. 2 of the Resource Management Act 1991 as: ‘the exercise of guardianship by the tangata whenua [people of the land] of an area in accordance with tikanga Māori [Māori custom] in relation to natural and physical resources; and includes the ethic of stewardship’. 23 See ss. 6–8 of the Resource Management Act 1991; Takamore Trustees v. Kapiti Coast District Council [2003] 3 NZLR 496; Ruru and Stephenson, loc. cit. n. 8. 24 See Quince, loc. cit., n. 1. The opposition was ultimately unsuccessful in the Environment Court. Leave to appeal for an order to stay the designation and resource consents for the new prison was refused by the Court of Appeal: see Friends & Community of Ngawha Inc. v. Minister of Corrections [2003] NZRMA 272. See also The Outstanding Landscape Protection Society Inc. v. Hastings District Council [2008] NZRMA 8 (resource consent for a wind farm rejected on the basis that it would, amongst other things, interfere with a cultural landscape of great spiritual and social importance to the tangata whenua). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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2.1.3. Protection of Immovable Cultural Heritage Archaeological sites are afforded reasonably stringent protection under the Historic Places Act 1993. It is illegal to carry out any investigation that may destroy, damage, or modify an archaeological site, or for any person ‘knowing or having reasonable cause to suspect that it is an archaeological site’, to destroy, damage, or modify the whole or any part of an archaeological site, or cause it to be destroyed, damaged, or modified.25 Any person wanting to destroy, damage, or modify the whole or any part of any archaeological site, or to investigate an archaeological site, has to first apply to the Historic Places Trust for an archaeological authority to do so.26 There are two main mechanisms for protecting historic sites, historic areas, wāhi tapu and wāhi tapu areas under the Historic Places Act: heritage orders and heritage covenants. The Historic Places Trust or the Minister for Culture and Heritage may give notice to a territorial authority that it is required to issue a heritage order under the Resource Management Act 1991 to protect the whole or part of any historic place, historic area, wāhi tapu, or wāhi tapu area, and any area of surrounding land ‘as is reasonably necessary for the purpose of ensuring the protection and reasonable enjoyment of it’.27 The Historic Places Trust may also negotiate and agree with the owner or lessee or licensee of any historic place, historic area, wāhi tapu, or wāhi tapu area for the execution of a heritage covenant to provide for its protection, conservation, and maintenance. The Trust and the affected owner may include such terms and conditions as they think fit, including provision for public access. Heritage covenants may be expressed to have effect in perpetuity or for any specified term, or may be expressed to terminate upon the happening of a specific event or events, and may be varied or cancelled by agreement between the parties.28 Heritage covenants may be registered under the Land Transfer Act 1952, in which case they bind all subsequent owners of the land affected by the heritage covenant.29 Heritage covenants are often negotiated with heritage-conscious landowners who wish to obtain the Historic Places Trust’s assistance with protecting the heritage features on their properties where these might not be sufficiently important to warrant a compulsory heritage order.

25

See s. 10 of the Historic Places Act 1993. See ss. 11–12 of the Historic Places Act 1993; Ngatiwai Trust Board v. New Zealand Historic Places Trust (Pouhere Taonga) [1996] NZRMA 222 (unsuccessful appeal against authorisation granted by the Historic Places Trust to destroy part of archaeological middens). 27 See s. 5 of the Historic Places Act 1993. 28 See ss. 6–7 of the Historic Places Act 1993. 29 See s. 8 of the Historic Places Act 1993. 26

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2.1.4. Registration of Immovable Cultural Heritage Any person, or the Historic Places Trust itself, may propose registration of any historic place.30 Likewise, any person may propose registration of any wahi tapu to the Māori Heritage Council within the Historic Places Trust.31 There is then a public notification and submission process.32 The following affected persons may make written submissions on the proposal:33 (a) (b) (c) (d)

the owner of the historic place or wāhi tapu: any occupier of the historic place or wāhi tapu: any person having a registered interest in the historic place or wāhi tapu: any incorporated society or body corporate engaged in or having as one of its objects the protection of historical and cultural heritage: (e) the territorial authority and regional council having jurisdiction in the area: (f ) the appropriate iwi. There are similar procedures for the registration of historic areas and wāhi tapu areas.34 Under the Resource Management Act 1991, heritage protection authorities may include heritage orders in district plans and coastal plans. Heritage protection authorities include Ministers of the Crown; the Minister of Conservation acting either on his or her own motion or on the recommendation of the New Zealand Conservation Authority, a local conservation board, the New Zealand Fish and Game Council, or a Fish and Game Council; the Minister of Māori Affairs acting either on his or her own motion or on the recommendation of an iwi authority; a local authority acting either on its own motion or on the recommendation of an iwi authority; the New Zealand Historic Places Trust; or a company designated as a heritage protection authority. The Historic Places Trust actively encourages community organizations and local Māori groups to conserve and maintain their own taonga (treasures). Community organisations can apply to the Lotteries Grants Board’s environment and heritage committee for funding grants for projects that ‘promote, protect and conserve New Zealand’s natural, physical and cultural heritage’. The Lotteries Grants Board also has a marae (Māori meeting place) heritage and facilities fund which provides funding for the capital costs of the conservation and restoration of marae facilities.35 30 31 32 33 34 35

See s. 24 of the Historic Places Act 1993. See s. 25 of the Historic Places Act 1993. See ss. 26–28 of the Historic Places Act 1993. See s. 28(1) of the Historic Places Act 1993. See ss. 31–32 of the Historic Places Act 1993. See http://justice.org.nz/maorilandcourt/pdf/tepouwhenua8.pdf.

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Māori land is owned communally by hapu and iwi, so Māori cultural heritage sites on Māori land will, by definition, be owned communally by the relevant hapu or iwi. Tensions and cultural clashes tend to arise when wāhi tapu are identified on Crown land, or on privately owned non-Māori land. In addition, cultural heritage trusts and organizations may buy and preserve sites, and territorial authorities may buy historic or heritage sites on behalf of all their ratepayers. 2.1.5. Effects of Registration of Immovable Cultural Heritage The decision to declare immovable property to be cultural heritage fundamentally affects the landowner’s proprietary rights, in the sense that the Historic Places Act 1993 provides that it is an offence to destroy, damage, or modify land subject to a heritage order or covenant, archaeological sites, and historic sites and wāhi tapu that have been registered or are subject to preliminary registration.36 Fines range from $40,000 for lesser offences to $100,000 for more serious offences. Preliminary37 or final registration of property by the Historic Places Trust also impacts on owners’ rights under the Resource Management Act 1991. While registration as a historic place does not prevent properties being subdivided, altered or sold, territorial authorities are required to have regard to the Register when developing regional and district plans, and are required to notify the Historic Places Trust as an affected party to resource consent applications that impact on registered places. This means that the Historic Places Trust is involved in the decision-making process when developments affecting heritage sites are being considered. The Historic Places Trust has the right of entry onto land to identify, investigate and record archaeological sites and historic places. Land owners and other parties obstructing Trust officials from carrying out their duties under the Act commit an offence. Under ss 197 and 198 of the Resource Management Act 1991, a heritage protection authority or the Environment Court can also compulsorily acquire property for the purposes of giving effect to a heritage order. This is 36 See ss. 97–104 of the Historic Places Act 1993; Historic Places Trust v. Northern Projects Ltd [2000] DCR 478 (deliberate destruction of part of archaeological site—well-preserved pā (fort) on headland—$15,000 fine). The impact on landowners’ rights is particularly controversial in the case of wāhi tapu or wāhi tapu areas, which are not readily searchable on the online Historic Places Trust register, and may not be precisely defined on the register, but are proved by oral evidence from kaumatua (elders) who are experts on tikanga Māori (Māori customary law): on which, see Ruru and Stephenson, loc. cit. n. 8, at pp. 58–59. 37 If the Historic Places Trust decides to register a site or area, it issues a preliminary registration and initiates the consultation process. This is designed to stop landowners from subdividing or altering the land before final registration takes place. The relevant territorial authority granting a resource consent for subdivision or alteration is still required to consult with the Historic Places Trust if the land is subject to preliminary registration.

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deemed to be an acquisition of land for the purposes of the Public Works Act 1981. The owner will receive market value compensation in accordance with the Public Works Act. In addition, if the owner or someone else with an interest in the land proves to the Environment Court shows that he or she has tried but been unable to sell the land subject to the heritage order at market value, and the heritage order renders or will render the land incapable of reasonable use, the Environment Court may make an order giving the heritage protection authority the option of either removing the heritage order, or taking the land under the Public Works Act 1981. 2.1.6. Immovable Cultural Heritage and Armed Conflict As discussed above, New Zealand domestic law currently makes no special provision for the protection of immovable or movable cultural heritage in the event of an armed conflict. However, the Government ratified the Hague Convention on Protection of Cultural Heritage in the Event of Armed Conflict 1954 earlier this year, and has recently introduced a Bill which, when enacted, will give domestic effect to the 1954 Hague Convention and its Protocols. 2.1.7. Immovable Underwater Cultural Heritage As discussed above, the definition of archaeological sites in the Historic Places Act includes wrecks of vessels occurring before 1900, which are found within the territorial limits of New Zealand. This definition will cover shipwrecks within New Zealand territorial and inland waters, but not more than 12 nautical miles beyond New Zealand. Other examples of underwater cultural heritage, such as waka (Māori canoes), Māori stone fish traps, Māori shell middens and oven sites on beaches and harbour margins, submerged Māori pā (fort) sites on lakesides, as well as the submerged remnants of historic European jetties, wharves and other structures, all fall within the definition of archaeological sites or historic places in the Historic Places Act, as they are all found within the territorial limits of New Zealand. The Historic Places Act draws no distinction between land-based and underwater cultural heritage, although the administrative and funding focus is very definitely on the former category. For various reasons, the Ministry for Culture and Heritage has not made ratification of the UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 a high priority for New Zealand. It is to be hoped that the Ministry will change its mind on this issue, however, given the inadequacy of the existing New Zealand statutory framework to protect underwater cultural heritage.38

38

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2.2.1. The Statutory Framework The Historic Places Act protects movable cultural heritage to some extent, in that the Historic Places Trust may include in its registration of any historic place any movables or class of movables situated in or on that place, and considered by the Trust to contribute to the significance of that place.39 Any artefacts found on archaeological sites are also protected by the Act. However, the focus of the Historic Places Act is on the sites or places themselves, and its protection of artefacts removed from archaeological or historical sites or wāhi tapu is arguably less than effective, where it is not clear that the artefacts have in fact been removed from an identifiable place or site. This has caused definitional problems and confusion in respect of artefacts that have washed ashore from shipwrecks, or have been found outside a demarcated wreck site. The Protected Objects Act 1975 focuses solely on the protection of movable cultural heritage. The Protected Objects Act broadly follows the categories of the 1970 UNESCO Convention and the 1995 UNIDROIT Convention in defining ‘protected New Zealand objects’. A protected New Zealand object is an object that forms part of the movable cultural heritage of New Zealand that is of importance to New Zealand, or to a part of New Zealand, for aesthetic, archaeological, architectural, artistic, cultural, historical, literary, scientific, social, spiritual, technological, or traditional reasons, and that falls into one or more of the extensive categories of protected objects set out in Schedule 4 of the Protected Objects Act. The categories in Schedule 4 include art objects, documentary heritage objects, science, technology, industry, economy and transport objects, and social history objects that are at least 50 years old and are not represented by at least two comparable examples permanently held in New Zealand public collections. They also include archaeological and historical objects of nonNew Zealand origin relating to New Zealand that have been in New Zealand for at least 50 years and are, or have been, in a public collection, such as objects of Polynesian creation or modification brought to New Zealand before 1800, or created or modified by the former Polynesian inhabitants of the Kermadec Islands before 1800. Further categories include taxonomically significant New Zealand natural science specimens (for example, fossils, meteorites and kauri gum) and early numismatic and philatelic objects. This category specifically includes the 1772 Resolution and Adventure Medal, the Pattern Waitangi Crown, New Zealand bank notes produced before 1933, and examples of the New Zealand Cross, Victoria Cross, George Cross and

39

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associated medals awarded to New Zealanders or relating to New Zealand. The final category consists of any objects, assemblages, scientific samples and organic remains derived from a New Zealand archaeological site, as defined by the Historic Places Act 1993. A further, highly significant category, is that of ‘ngā taonga tūturu’. Ngā taonga tūturu are defined as objects more than 50 years old that relate to Māori culture, history and society and that were, or appear to have been, imported into New Zealand by Māori, manufactured or modified in New Zealand by Māori, or used by Māori. Because of their importance to New Zealand, all ngā taonga tūturu are automatically protected New Zealand objects, regardless of how many representative samples are found in public collections. Found ngā taonga tūturu are prima facie owned by the Crown until ownership is determined, in which case the artefact passes into the communal ownership (or more correctly kaitiakitanga) of the relevant hapu or iwi. However, Māori cultural heritage may be sold or lent by its legitimate owners or guardians to museums or into private ownership. Transfer of movable cultural heritage within New Zealand is only restricted by general principles of domestic contract law, criminal law and personal property law. In other words, if the domestic sale or transfer is “above board”, it will not be restricted. The Protected Objects Act solely focuses on the import and export of movable cultural heritage. 2.2.2. Registration of Movable Cultural Heritage The Ministry for Culture and Heritage is charged with the responsibility of maintaining a Nationally Significant Objects Register under the Protected Objects Act 1975.40 Any person, group or institution owning culturally significant movable cultural property may voluntarily apply to include objects in the Nationally Significant Objects Register. The decision whether to include an object in the Nationally Significant Objects Register rests with the Chief Executive of the Ministry for Culture and Heritage. In addition, if the owner of a protected New Zealand object has applied to export it from New Zealand, and the Chief Executive has refused to allow export on the basis of cultural significance, the object is automatically and compulsorily added to the Register, to preclude further export attempts. 2.2.3. Exportation of Movable Cultural Heritage The normal principles of personal property law apply to movable cultural heritage in New Zealand. However, the Protected Objects Act prohibits the export or attempted export of protected New Zealand objects from New

40

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Zealand, unless prior approval has been obtained from the Chief Executive of the Ministry for Culture and Heritage.41 The exporter has to demonstrate to the satisfaction of the Chief Executive that he or she has ‘undisputed title’ to the property. The Chief Executive must have granted a certificate of permission for the export, and the export must comply with any terms or conditions imposed. The Chief Executive may also exempt categories of protected New Zealand objects from the export prohibition, if sufficient examples of these categories are already held in public ownership in New Zealand. In deciding whether to allow export of protected New Zealand objects, the Chief Executive must consult two or more expert examiners. Permanent export of New Zealand protected objects is not allowed where the Chief Executive determines that a protected New Zealand object is, amongst other things, ‘substantially physically authentic’ and is of ‘such significance to New Zealand or part of New Zealand that its export from New Zealand would substantially diminish New Zealand’s cultural heritage’.42 Permanent export of protected objects registered on the Nationally Significant Objects Register is also prohibited. Anyone exporting, or attempting to export, protected New Zealand objects without the Chief Executive’s permission and ‘without reasonable excuse’ commits an offence, and may incur a maximum fine of NZ$100,000 or 5 years’ imprisonment, or both (or NZ$200,000, where the offence is committed by a body corporate).43 Discovery of archaeological artefacts must be reported to the Historic Places Trust. The discovery of ngā taonga tūturu must be notified to the Ministry for Culture and Heritage. Until ownership or custody (whether individual or collective traditional ownership or custody) of the taonga is established, the Crown is regarded as the prima facie owner.44 This is highly controversial. The Māori Land Court has the jurisdiction to determine ultimate ownership or custody of taonga.45 In respect of archaeological items and ngā taonga tūturu, therefore, the finder has few legal rights. In respect of other movable historical items, the finder’s legal rights will depend on whether the original owner is identifiable. If not, the found goods may be claimed by the finder. Otherwise, they must be returned to the owner. Salvage rights may apply to underwater cultural heritage.46

41

See s. 5 of the Protected Objects Act 1975. See s. 7A of the Protected Objects Act 1975. 43 See s. 5(2) of the Protected Objects Act 1975. 44 See s. 11 of the Protected Objects Act 1975. 45 See s. 12 of the Protected Objects Act 1975. 46 See Davies and Myburgh, loc. cit., n. 4, 199–201 for the impact of the salvage and wreck regimes on underwater cultural heritage. 42

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2.2.4. Stolen and Illicitly Imported or Exported Movable Cultural Heritage The Protected Objects Act 1975 provides protection for stolen and illicitly imported and exported foreign cultural property. However, because the Act only came into effect on 1 May 2007, its protection only extends to cultural property stolen or illicitly handled after this date.47 This is a major weakness in the statute. Movable cultural heritage that has been unlawfully exported may not be imported into New Zealand lawfully.48 A reciprocating State (defined as a State Party to the UNIDROIT Convention, or a State Party to the UNESCO Convention that provides for reciprocal treatment of unlawfully exported New Zealand cultural property equivalent to the protection afforded by Articles 5 and 6 of the UNIDROIT Convention) may bring a claim in the New Zealand courts against the possessor of the object within the standard 3 year and 50 year limitation periods provided for by Article 5(5) of the UNIDROIT Convention.49 The court must order the return of the unlawfully exported object if the claimant establishes that the removal of the object from the claimant’s territory impairs one of the interests set out in Article 5(3) of the UNIDROIT Convention. In such a case, the possessor of the object is entitled to fair and reasonable compensation from the reciprocating State if it was acquired after it was unlawfully exported and the possessor did not know, and could not reasonably be expected to have known, at the time it was acquired that it was unlawfully exported.50 As the Act has only recently come into effect, there is as yet no detailed judicial guidance regarding the burden of proof or the determination of compensation in these circumstances. A reciprocating State may apply to the Chief Executive of the Ministry for Culture and Heritage for recovery of objects stolen from the inventories of foreign cultural institutions (defined as museums, religious or secular public monuments, or similar institutions in States Parties to the UNESCO Convention) and imported into New Zealand.51 If the claim is established, the Chief Executive must ask the New Zealand Customs Service to seize the object under the Customs and Excise Act 1996 and transfer it to the Ministry for Culture and Heritage. The Ministry will return it if the reciprocating State pays just compensation to anyone who has valid title or is an innocent purchaser, and covers all costs relating to the return and delivery of the stolen object.

47 See s. 10F of the Protected Objects Act 1975. Prior to this date, the Antiquities Act 1975 applied. On the inadequacies of the Antiquities Act, see Davies and Myburgh, loc. cit., n. 13, pp. 323–326. 48 See s. 10A of the Protected Objects Act 1975. 49 See s. 10B of the Protected Objects Act 1975. 50 See s. 10C of the Protected Objects Act 1975. 51 See s. 10D of the Protected Objects Act 1975.

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Claims for restitution may also be brought by owners against all possessors of stolen foreign protected objects, regardless of whether or not they are bona fide purchasers.52 Such claims may be brought in the New Zealand courts within the standard 3 year and 50 year limitation periods in Article 3(3) of the UNIDROIT Convention. However, these limitation periods do not apply where the stolen object formed an integral part of an identified monument or archaeological site in the claimant State, is part of a foreign collection, or was made by a member or members of a tribal or indigenous community for traditional or ritual use by the community, and is to be returned to them. Compensation is not generally payable by the owner for the restitution of a stolen protected foreign object.53 2.2.5. Museums and Movable Cultural Heritage New Zealand museums are increasingly recognizing that the traditional ownership model of public collections of cultural heritage is inappropriate. Museums are developing relationships and partnerships with communities and iwi, in terms of their contributing to the care, management and understanding of collections and taonga. This developing practice is based on the concept of museums as guardians or kaitiaki of the collections and knowledge they hold on behalf of communities. These relationships can come under strain when museums behave in a way that is seen as unacceptable to the local community or iwi, as illustrated by the current controversy over the restructuring of the Auckland War Memorial Museum.54 A further issue for many museums to manage is the need to work with iwi to resolve cases where taonga now held in museum collections were placed there as a result of confiscation by public or private actions over past years.55 Many of these taonga, in particular toi moko (tattooed heads) and koiwi (human remains) have been returned by New Zealand museums to iwi. Increasingly, there are calls for the repatriation of Māori taonga from foreign collections. However, there is an uncomfortable irony here. The New

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See s. 10E(1) of the Protected Objects Act 1975: “A person in possession of a stolen protected foreign object must return that object to its rightful owner.” 53 See s. 10E(4) of the Protected Objects Act 1975; “[N]o compensation is payable for the restitution of a stolen protected foreign object”. The only exception is where Customs has seized a foreign object stolen from a foreign cultural institution, in which case the reciprocating State must pay just compensation to an innocent purchaser: see s. 10D(2)(b) of the Protected Objects Act 1975. The rationale for this differential treatment is unclear. 54 B. Donovan ‘Iwi “Fidgety” over Museum Changes’, New Zealand Herald, 16 May 2008, http://www.nzherald.co.nz/organisation/story.cfm?o_id=600615&objectid=10510477. 55 Museums Aotearoa Te Tari O Nga Whare Taonga O Te Motu, The Museums of New Zealand, A Strategy for the Museum Sector in New Zealand, April, 2005, http://www.museumsaotearoa.org.nz/includes/download.aspx?ID=19454; see also Museums Aotearoa Te Tari O Nga Whare Taonga O Te Motu, The Museums of New Zealand, Code of Ethics, http://www .museums-aotearoa.org.nz/includes/download.aspx?ID=20486. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Zealand Government could do more to encourage international repatriation, but is reluctant to do so, because of concerns that this may in turn trigger repatriation claims for cultural heritage held in New Zealand collections that originates from other countries.56 While Māori press to repatriate their taonga, New Zealand museums are holding the treasures of other peoples, largely those of countries in and around the Pacific.57 2.2.6. Movable Cultural Heritage and Armed Conflict As discussed above, New Zealand domestic law currently makes no special provision for the protection of immovable or movable cultural heritage in the event of an armed conflict. However, the Government ratified the Hague Convention on Protection of Cultural Heritage in the Event of Armed Conflict 1954 earlier this year, and has recently introduced a Bill which, when enacted, will give domestic effect to the 1954 Hague Convention and its Protocols. 2.2.7. Movable Underwater Cultural Heritage As discussed above, the definition of archaeological sites in the Historic Places Act includes wrecks of vessels occurring before 1900, within the territorial limits of New Zealand. This definition will cover shipwrecks within New Zealand territorial and inland waters, but not more than 12 nautical miles beyond New Zealand. Other examples of underwater cultural heritage, such as waka (Māori war canoes), Māori stone fish traps, Māori shell middens and oven sites on beaches and harbour margins, submerged Māori pā (fort) sites on lakesides, as well as the submerged remnants of historic European jetties, wharves and other structures, all fall within the definition of archaeological sites or historic places in the Historic Places Act, as they are all found within the territorial limits of New Zealand. The focus of the Historic Places Act on archaeological sites is problematic, as it does not unambiguously cover artefacts washed ashore or found some distance from underwater cultural heritage sites.58

56 ‘No Policy Set for Returning Taonga’ New Zealand Herald, 24 January 2007, http://www .nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10420565; see also ‘Government Treads Softly Around Taonga Issue’, New Zealand Herald, 25 January 2007, http://www.nzherald .co.nz/topic/story.cfm?c_id=350&objectid=10420778. However, the Ministry for Culture and Heritage does fund the repatriation office of the Museum of New Zealand, Te Papa Tongarewa, which is having increasing success. 57 For example, the Auckland War Memorial Museum has an extensive collection of cultural treasures from around the Pacific, some of which could be subject to repatriation claims, depending on the circumstances in which they were originally obtained. 58 Davies and Myburgh, loc. cit., n. 4.

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paul myburgh 3. Intangible Cultural Heritage 3.1. Safeguarding of Intangible Cultural Heritage

3.1.1. The Statutory Framework Although New Zealand’s statutory framework for the protection of cultural heritage tends to focus on the identification, recording and safeguarding of tangible cultural heritage, aspects of intangible cultural heritage are safeguarded in New Zealand law to some degree. The concept of taonga, recognised under the Treaty of Waitangi, is very broad, encompassing Māori tangible and intangible cultural heritage and traditional knowledge. As discussed above, the Historic Places Act 1993 protects wāhi tapu and wāhi tapu areas. Although the protection focuses on a physical landscape, the reason for the protection is the intangible spiritual dimension associated with this landscape. The Historic Places Act also protects places where no visible feature or evidence is present but where a significant event or traditional activity took place. Examples include taunga waka (ancestral canoe landings), mahinga kai (places where food was procured); taunga ika (fishing grounds and associated features), wāhi taonga mahi a ringa (resource sites for art materials), landscape features which determined the boundaries of iwi or hapu, and sites associated with mythological events. Places may have complex multiple layers of intangible cultural significance. For example, the Tokomaru, Waihora, Te Moana and Hawea reefs which lie within Gisborne’s river port, are considered mauri (spiritual) stones, tauranga ika (fishing grounds), kaimoana (seafood) gathering sites, and kāinga for taniwha and kaitiaki (living places for guardians of the ocean).59 New Zealand is a signatory to the World Heritage Convention 1972. Of the three World Heritage sites in New Zealand, Tongariro National Park is recognised for both its natural and intangible cultural values.60 It was the first associative cultural landscape to be listed on the World Heritage List in 1993. Tongariro, Ngauruhoe and Ruapehu are mountains sacred to the Māori. They are seen as atua, as places of spiritual forces which command

59 See http://justice.org.nz/maorilandcourt/pdf/tepouwhenua8.pdf. The recognition and protection of wāhi tapu can be fraught for both Māori and Pākehā (Europeans). There are significant Māori concerns and controversies surrounding the legal process of identification and registration of wāhi tapu under the Historic Places Act 1993, and the determination, recognition and proof of the tapu of such places (see Allen, loc. cit. n. 5, Chapter 3). Pākehā landowners argue that registration of “secret” wāhi tapu can result in the devaluation of their land and prevent its subdivision, development or resale. 60 See A. Shopland, ‘Worlds Apart’, Heritage New Zealand, http://www.historic.org.nz/mag azinefeatures/2004summer/2004_summer_worldheritage.htm; D.E. Fisher, ‘Can the Law Protect Landscape Values?’ (9) New Zealand Journal of Environmental Law (2005) 1 at pp. 8–9, 28–30, 39–41; J. Ruru, ‘Indigenous Peoples’ Ownership and Management of Mountains: The Aotearoa/New Zealand Experience’ 3 Indigenous Law Journal (2004) 111–137.

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and give life to the natural world, and whose wild and capricious actions can create and destroy on a huge scale. Accordingly, they are regarded with respect and humility as well as with awe.61 One of the most significant aspects of mātauranga Māori (Māori intangible cultural heritage) is te reo Māori, the Māori language. Te reo was the subject of Waitangi Tribunal Claim Wai 11 brought in 1985. The claimants alleged that the Crown had failed to protect te reo Māori as required by Article 2 of the Treaty of Waitangi and proposed that it be made official for all purposes, enabling its use as of right in Parliament, the courts, Government departments, local authorities, and public bodies. The Waitangi Tribunal recommended that: – legislation be introduced enabling any person who wishes to do so to use te reo Māori in all courts of law and in any dealings with Government departments, local authorities and other public bodies; – supervising body be established by statute to supervise and foster the use of te reo Māori; – an inquiry be instituted into the way Māori children are educated to ensure that all children who wish to learn te reo Māori be able to do so from an early age and with financial support from the State; – broadcasting policy be formulated in regard to the obligation of the Crown to recognise and protect te reo Māori; and – amendments be made to make provision for bilinguism in te reo Māori and in English as a prerequisite for any positions of employment deemed necessary by the State Services Commission. These recommendations have largely been accepted by the Crown and translated into legislation. The Māori Language Act 1987 declared that te reo Māori is an official language of New Zealand (along with English and New Zealand Sign Language), conferred the right to speak te reo Māori in certain legal proceedings, and established Te Taura Whiri I Te Reo Māori (the Māori Language Commission), which is charged with the protection and promotion of te reo Māori. The Māori Television Service (Te Aratuku Whakāta Irirangi Māori) Act 2003 provided for the establishment of the Māori Television Service to recognize, protect and actively promote te reo Māori and nga tikanga Māori. In 1990 the Waitangi Tribunal heard Claim Wai 150 on the allocation of radio frequencies, and recommended that the Crown suspend the radio frequency tender for six months to allow further consultation with iwi to take place; that it make independent technical advisers available to iwi to assess

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their needs and to ascertain what would be an appropriate allocation of radio frequencies; and that FM frequencies should be made available for Māori broadcasting in Auckland and Wellington. A further claim currently before the Waitangi Tribunal, Wai 262, is extraordinarily significant.62 It alleges that the Crown has failed in its responsibility to allow Māori to exercise their rangatiratanga in respect of their taonga, including flora and fauna. Eight examples of flora and fauna are cited as instances of how Crown actions, policies and legislation have affected such taonga: pohutukawa, koromiko (also known as hebe); kumara (sweet potato), puawananga (clematis), indigenous forests, kereru (pigeon), pupuharakeke (flax snail), and the tuatara. This far-ranging claim covers: – Mātauranga Māori (traditional knowledge): concerning the retention and protection of knowledge concerning ngā toi Māori (arts), whakairo (carving), history, oral tradition, waiata (songs), te reo Māori, and rongoā Māori (Māori medicine and healing). The claimants’ concern is about the protection and retention of such knowledge. They note that traditional knowledge systems are being increasingly targeted internationally. – Māori cultural property (tangible manifestation of mātauranga Māori): as affected by the failure of legislation and policies to protect existing Māori collective ownership of cultural taonga and to protect against exploitation and misappropriation of cultural taonga, for example traditional artefacts, carvings, mokomokai (preserved heads). – Māori intellectual and cultural property rights: as affected by New Zealand’s intellectual property legislation, international obligations and proposed law reforms. Issues include the patenting of life form inventions, the inappropriate registration of trade marks based on Māori text and imagery, and the unsuitable nature of intellectual property rights for the protection of both Māori traditional knowledge and cultural property. – Environmental, resource and conservation management: including concerns about bio-prospecting and access to indigenous flora and fauna, biotechnological developments involving indigenous genetic material, ownership claims to resources and species, and iwi-Māori participation in decision making on these matters.

62 See http://www.waitangi-tribunal.govt.nz/resources/researchreports/wai262/; http://www .med.govt.nz/templates/Page____1207.aspx; http://www.maoriparty.com/index.php?option= com_content&task=view&id=316&Itemid=72; A. Waetford, ‘Traditional Knowledge’ New Zealand Law Journal 263; M. de Beer, ‘Protecting Echoes of the Past: Intellectual Property and Expressions of Culture’ 12 Canterbury Law Review (2006) 94, at pp. 111–113.

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3.1.2. Registration of Wāhi Tapu As discussed above, the Māori Heritage Council of the Historic Places Trust operates a Register of wāhi tapu and wāhi tapu areas. While there is no list of “purely intangible” cultural heritage in New Zealand, this categorization is probably inappropriate when considering Māori cultural heritage in any event. Māori adopt a highly holistic view of the universe, in terms of which there is no watertight distinction between the tangible and the intangible, between the physical and the spiritual, the dead and living, the past and future, and the people and the land. The concept of “taonga” covers all these aspects. 3.2. Misappropriation of Traditions This is an issue of increasing significance in New Zealand.63 There is growing disquiet amongst Māori over use of traditional knowledge that conflicts with the sanctity of, or traditional protocols associated with, the knowledge. Recent episodes include the appropriation of Māori language or imagery in Lego toys, on cigarettes marketed by Philip Morris in Israel, in the koru (unfurling fern frond) design on Canterbury rugby boots,64 in Jean Paul Gaultier’s use of moko (traditional Māori facial tattoo) on fashion models, and in a Fiat advertisement showing a group of women performing the haka. In 2005 New Zealand amended its Trade Marks Act 2002 to prevent the use or registration in New Zealand of trade marks that would ‘be likely to offend a significant section of the community, including Māori’. The Act also provides for the establishment of an advisory committee to provide guidance on whether the use or registration of a mark derivative of Māori text or imagery would be, or is likely to be, offensive to Māori. Te Waka Toi, the Māori Arts Board of Creative New Zealand, has funded the development of the “toi iho” or “māori made” mark.65 This is a certification mark of authenticity and quality, which indicates to consumers that the creator of work is of Māori descent and produces work of a particular quality. It was developed in response to concerns raised by Māori regarding the protection of cultural and intellectual property rights, the misuse and abuse of Māori concepts, styles and imagery and the lack of commercial benefits 63 See S. Te Marino Lenihan, ‘A Time for Change: Intellectual Property Law and Māori’ 8 Auckland University Law Review (1996) at pp. 211–214; http://www.mfat.govt.nz/Trade-andEconomic-Relations/NZ-and-the-WTO/Rules-For-International-Trade/0–tripsintellpropintervention.php. 64 On this and other instances of cultural (mis)appropriation, see P. Shand, ‘Scenes from the Colonial Catwalk: Cultural Appropriation, Intellectual Property Rights, and Fashion’, 3 Cultural Analysis (2002), http://socrates.berkeley.edu/~caforum/volume3/pdf/shand.pdf; de Beer, loc. cit. n. 56, at pp. 102–103, 109–111, 113–120. 65 See http://www.toiiho.com/; and http://www.creativenz.govt.nz/funding/other/toi_iho .html.

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accruing back to Māori. The mark is considered by many as an interim means of providing limited protection to Māori cultural property, by decreasing the market for copy-cat works produced by non-Māori. Developments in this area have been usefully summarised in Te Mana Taumaru Mātauranga: Intellectual Property Guide for Māori Organisations and Communities, published by the New Zealand Government in 2007.66 4. Beyond Preservation The current Labour Government had promised in 1999 to introduce compulsory local content quotas on radio and free to air television, but had to resile from this position, as it would have contravened the previous National Government’s audio-visual commitments under the General Agreement on Trade in Services (GATS) and the Closer Economic Relations (CER) free trade agreement with Australia. Instead, in 2002 the Government established a television industry group to develop ‘voluntary targets’ for New Zealand programming for free-to-air television networks. This follows a similar voluntary Code of Practice adopted by commercial radio.67 The Government also implemented the Television New Zealand (TVNZ) Charter in 2003.68 The Charter, which only applies to State-owned broadcaster TVNZ, includes undertakings to provide programming that, amongst other things, ‘contributes towards intellectual, scientific and cultural development’, ‘promotes Māori language and culture’ and ‘understanding of the diversity of cultures making up the New Zealand population’. The effect of the Charter on the quality of TVNZ’s programmes has been underwhelming. The Charter is currently under review. New Zealand On Air and Te Māngai Pāho (the New Zealand Māori Broadcasting Agency)69 provide Government funding for locally-made television and radio programmes, and promote New Zealand and Māori music.

66 See http://www.med.govt.nz/upload/48608/ip-guide-maori.pdf. See also P.W. Jones, ‘Indigenous Peoples and Intellectual Property Rights’ 4(2) Waikato Law Review/Taumauri (1996) 117 on the lack of “fit” between Eurocentric intellectual property law principles and indigenous peoples’ struggles to preserve and protect their cultural heritage. 67 See J. Kelsey, Lessons from New Zealand: The Saga of the GATS and Local Content Quotas, Paper for the Conference on Cultural Diversity, Paris, 2–4 February 2003, http://www .arena.org.nz/gatspari.htm; see also http://www.nzonair.govt.nz/files/about/lc_report_06.pdf. 68 See http://images.tvnz.co.nz/tvnz/pdf/tvnz_charter.pdf. 69 See http://www.nzonair.govt.nz/ and http://www.tmp.govt.nz/.

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SPAIN Sofía de Salas* 1. General Issues ........................................................................................... 1.1. Overview of the Spanish Legal System on Cultural Heritage .... 2. Scope of LHHS and Categories of Cultural Heritage Conceptualized in It ............................................................................................................. 2.1. Categories of the LHHS .................................................................. 2.1.1. Assets (Movables and Immovable Goods) of Cultural Interest (ACI) ........................................................................ 2.1.2. Assets (Only Movables) Included in the General Inventory ................................................................................ 2.1.3. Assets (Movables and Immovable Goods) Included in the Spanish Historical Heritage .......................................... 2.2. Categories within the Laws of the Autonomous Communities 2.2.1. Assets of Cultural Interest ................................................... 2.2.2. Catalogued Assets ................................................................. 2.2.3. Inventory Assets .................................................................... 2.3. Concerning the Ownership of Cultural Heritage ....................... 3. Tangible Cultural Heritage ..................................................................... 3.1. Immovables ....................................................................................... 3.1.1. Protection’s Criteria: the Option between Declaration or Recognition ............................................................................ 3.1.2. Criteria Used by Spanish System to Declare an Immovable Property as Cultural Heritage ....................... 3.1.3. Protection Measures for Immovable Property Declared as Cultural Heritage ............................................................. 3.1.3.1. Civil Measures ........................................................ 3.1.3.2. Penal Measures ....................................................... 3.1.4. Balance between the Protection of Immovable Cultural Heritage and Other Interests, Such as Property Rights ... 3.1.5. Position, Role and Involvement of Communities, Groups or Relevant Non-governmental Organizations in the Process of Declaring Immovable Property, Including Sacred and Ritual Places, as Cultural Heritage ............... 3.1.6. Precautionary Measures for the Protection of Immovable Cultural Heritage in the Event of an Armed Conflict ...................................................................................

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3.1.7. (Lack of ) Regulation of Cultural Heritage Located Underwater ............................................................................ 3.2. Movables ............................................................................................ 3.2.1. Criteria to Declare Movable Property as Cultural Heritage .................................................................................. 3.2.2. Sales in Spain ......................................................................... 3.2.3. Sales Outside of Spain (Export) ......................................... 3.2.4. Ownership of Movables That Are Culturally Significant 3.2.5. Legal Mechanisms of Protection for Movable Cultural Heritage That Has Been Stolen and Is Subject to Illicit Import, Export or Transfer of Ownership ....................... 3.2.5.1. The Case of Illegal Substraction .......................... 3.2.5.1.1. Criminal Law ......................................... 3.2.5.1.2. Civil Law ................................................ 3.2.5.2. The Case of Voluntary Sale by the Owner, But in a Legal Manner ....................................................... 3.2.5.2.1. Criminal Law ......................................... 3.2.5.2.2. Civil Law ................................................ 3.2.6. Legal System to Control the Actions and Measures Taken by Museums, Galleries or Other Institutions in Relation to Tangible Cultural Property or Heritage ....................... 3.2.6.1. Art Galleries ............................................................ 3.2.6.2. Museums .................................................................. 4. Intangible Cultural Heritage ................................................................... 4.1. Safeguarding of Intangible Cultural Heritage ............................. 4.1.1. Framework for the Safeguarding of Intangible Cultural Heritage .................................................................................. 4.1.2. Criteria to Recognize Traditional Knowledge or Cultural Expressions as Intangible Cultural Heritage .................... 4.1.3. Measures Taken to Safeguard the Intangible Heritage ... 4.1.4. Role of Communities, Groups and Relevant Non-governmental Organizations in the Safeguarding Measures .................................................................................

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1. General Issues 1.1. Overview of the Spanish Legal System on Cultural Heritage The first Law on Cultural Heritage in Spain was the Law on the Defence, Conservation and Accretion of Historic and Artistic Heritage of the 13th of May 1933, currently repealed. To understand the current legislative panorama we have to start with the Spanish Constitution of 1978 which states in Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Article 46 The Public Authorities guarantee the conservation of and will to promote the enrichment of the historic, cultural and artistic heritage of the people of Spain and the assets which it includes, whatever their legal status or ownership. The Criminal Legal System will sanction attacks on this heritage.

The Constitution itself states that this Article must be put into law. This Law may include Regulations which set out the details and its implementation. But the important thing is that it is not purely a legislative regulation.1 This article has generated a large amount of complex legislation. This complexity derives from the fact that there are multiple competencies for creating these laws. And multiple sources in two directions: Vertically and horizontally. “Horizontal multiplicity” because legislation on cultural Heritage affects, among other things, both Civil Law and Property Rights (above all on the right of ownership of these assets and possible legal transactions); Urban laws and Planning laws of a public-administrative nature; legislation on Tourism, the Environment and, of course, areas such as Criminal Law, which have a lot to do with the protection of the assets against theft and removal from the country. We can find laws on Cultural Heritage in all of these areas. However we should also say that there is specific legislation which brings together the main aspects of the legal regulation of Heritage assets—e.g. The Law on the Historic Heritage of Spain of the 25th of July 1985—without affecting recourse to other laws. “Vertical Multiplicity”. In Spain, both the State and the Autonomous Communities (Regions) have legislative and executive competency (not judicial: Spain has a single judicial power). The distribution of the areas in which either of these can create legislation appears in the Constitution itself (Articles 148 and 149) and in the Statutes of Autonomy of each of the Regions (mutatis mutandis, their respective Constitutions). All this and bearing in mind that other lower level regional authorities, specifically local ones (Town councils etc.), have competencies and implementation functions as well, although not legislative. The problem then is, up to what point is the State competent to regulate these issues? And up to what point are each of the 17 Autonomous Communities in Spain competent? Logically speaking, these assets will be located in a specific Region (sometimes two or more), but at the same time on Spanish soil.

1 The jurisprudence of the Supreme Court on this issue, taking into account that it has no legal value, must be considered by the legal analyst.

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Firstly we must refer to the articles of the Constitution which distribute legislative competencies and examine them to discover which affect this area. Article 148 1. The Autonomous Communities may assume competence over the following matters: ... 3. Land, urban and house planning. ... 15. Regionally relevant museums, libraries and music conservatories. 16. Regionally relevant monuments. ... 18. Regional promotion and regulation of tourism.

Article 149 1. The State has exclusive competence over the following matters: ... 28. The Defence of Spanish cultural, artistic and monumental heritage against export and misappropriation; museums, libraries and State archives, without affecting their administration by the Autonomous Communities. ... 3. Matters not expressly attributed by this Constitution to the State may be accredited to the Autonomous Communities by virtue of their respective Statutes. . . .

Based on this distribution of competencies, the State Legislature approved the Law on the Historical Heritage of Spain, Law 16/1985 of the 25th of June, (hereinafter LHHS) which gave Cultural Heritage a common legal framework (known as the “Historic Law”). This Law was implemented by Royal Decree 111/1986 of the 10th of January on the Historical Heritage of Spain (hereinafter RDHHS). For several years this Law constituted the core legislation, but the Regions, based on the competencies attributed to them by Article 148 (mentioned above) and on the fact that Article 149.3 allows them to assume all competencies not expressly attributed to the State in their Regional Statutes, understood that each of them, if they had specifically assumed the corresponding competencies in their Regional Statutes, could entirely regulate the Cultural Heritage assets located in their territories. The only limit to this, in the opinion of the Regions, was legislation to prevent the “export and exploitation” of assets which, given its international and criminal nature clearly fell under the competency of the State. To this we must add the regulation of underwater heritage given that Spanish waters also fall under the competency of the State. This issue went all the way to the Spanish Constitutional Court which, in its judicial sentence on the 17th of January 1991 (JCC 17/1991 of the 31st of Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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January) ruled in favour of the Regions, allowing them to approve laws on the cultural assets in their respective territories without any restrictions. This is why there are 17 regional Laws in addition to State Law on this area, with similar classifications of assets, although slightly different. This proliferation of legislation has caused problems, such as the establishment of different systems for the ownership of cultural assets depending on the Region in which they are located and the creation of innumerable categories of cultural assets which impedes the fight against illegal trafficking as records are not centralised etc. The most serious practical consequence of this is that the specific declaration of each asset, which determines the level of protection it receives, now falls to the respective Region, except when these assets fulfil the circumstances set out in Article 6.b) LHHS. The LHHS, which served as a model for the Cultural Heritage Codes of France and Italy, has been reduced to a mere topic of learning without having undergone any type of reform or modification. The VIII Legislature, which was concluded recently with the elections in March 2008, has drafted a preliminary State Law which had been adapted to the new situation in which the content is transferred to regional Law, and also deals with issues not covered under law such as the regulation of underwater Heritage, especially given the relevance of the issues underlying the Odyssey case. We will have to wait to find out which path the Legislator of the recently-inaugurated IX Legislature will follow. In spite of all these warnings, it is understood that the Spanish Legal report will include a comparative analysis of these 18 Laws (17 Regional and 1 by the State). Given that this goes beyond my capacities, I believe it is reasonable 1. to base my contribution on the current (although “displaced”) State Law (LHHS) as it was the model for the creation of regional and foreign laws: In fact, there are no real innovations in regional Laws from the point of view of content. 2. and to choose the Regional Law from the Region to which my University belongs to serve as the reference Law: Law 3/1999 on Cultural Heritage of Aragon of the 10th of March (hereinafter LCHAr). 2. Scope of LHHS and Categories of Cultural Heritage Conceptualized in It As far as scope is concerned, the LHHS includes a common theme, which appears to refer only to tangible assets, such as goods and buildings, but not to intangible assets.

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There is only one isolated reference to something which might be considered an intangible asset under the subject of “ethnographical heritage”: Article 1.2 Spanish Cultural Heritage includes buildings and objects of an historical, artistic, paleontological, archaeological, ethnographical, scientific or technical interest. This also includes documents and bibliographical heritage, archaeological sites and deposits as well as natural sites, gardens and parks which are of artistic, historical or anthropological value.

2.1. Categories of the LHHS The concept of “Cultural Heritage” used in the LHHS includes, as we have already seen (Article 1), assets of a varied nature. The LHHS provides for three levels of protection, based on the individual importance of the asset, which are the following, ordered from most to least important: – Assets (movables and immovable goods) of Cultural Interest – Assets (only movables) included in the General Inventory – Assets (movables and immovable goods) included in the Spanish Historical Heritage. 2.1.1. Assets (Movables and Immovable Goods) of Cultural Interest (ACI) The maximum level of protection is accorded to those assets (movables and immovable goods) declared to be of “Cultural Interest”. Article 9.1 Assets which form part of the Historical Heritage of Spain and which are declared to be of cultural interest under this Law or under a specific Royal Decree are accorded individual protection and guardianship.

Firstly, according to the LHHS, buildings used for the housing of State archives, libraries and museums are considered to be ACI ministerio legis, as are the objects housed inside them. As are the caves, shelters and sites which contain examples of cave paintings, castles, emblems, crosses and other similar pieces, including barns and thatched grain stores found in Asturias and Galicia (LHHS Articles 40.2 and 60.1; and the 2nd Additional Provision).2 2 The literal meaning of the 2nd AC establishes that: “The assets included in the Decrees of the 22nd of April 1949, 571/1963 and 499/1973 are also considered to be of cultural interest and are subject to the system provided for under current Law”. The Decree of the 22nd of April 1949 on the protection of castles established that all castles in Spain would be under the protection of the State and that the State should ensure that no modifications were made to them to alter their character which might cause them to collapse. This same decree also included the need to create a list of all of the castles in the country, this was started in 1968

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Secondly there is the individual ACI declaration. This declaration is made through a Royal Decree. Real assets declared as ACI are sub-classified according to Article 15 LHHS3 as: 1. 2. 3. 4. 5.

Monuments Historic Gardens Historic Agglomeration Historic Site Archaeological Zone

ACIs, both movables and real properties, are inscribed in a General ACI Registry administrated by the State. The General Registry includes files for each ACI giving them an official name which is used to identify them and which includes all of the legal and artistic information about them (Articles 12 and 13 LHHS).4 2.1.2. Assets (Only Movables) Included in the General Inventory Assets given a lower level of protection are those included in the General Inventory of Objects of notable historic, archaeological, scientific, artistic,

by the General Directorate for Fine Arts of the Ministry of Education and Science, who made an inventory of Monuments and Military Architecture. This contained all of the various types of military buildings. Due to this mechanism all castles are declared ex lege AIC. With respect to the effectiveness of this general declaration concerning sites containing cave paintings, vid., C. De La Casa et al., “La ley del Patrimonio Histórico Español: Comentarios sobre su aplicación arqueológica en Castilla y León”, Complutum, 1998, nº 9, p. 262. 3 Article 15 LHSH: 1. All buildings of architectural or engineering origin and very large sculptures are Monuments as long as they are of historical, artistic, scientific or social interest. 2. A Historical Garden is a bounded area which is the product of man’s ingenuity using natural elements, occasionally complemented with fabricated structures and deemed to be of interest given its origin or past history or due to its aesthetic, sensory or botanical value. 3. A Historical Agglomeration is a group of buildings which make up a single dwelling area, either continuous or dispersed, conditioned by a physical structure representing the evolution of a human community by being a record of their culture or constituting a valuable asset which can be used and enjoyed by the community. Any individual nucleus of buildings making up a village with these same characteristics may also be considered to be a Historical Agglomeration. 4. A Historic Site is a place or natural area linked to events or memories of the past, to popular traditions, cultural or natural works and the works of man, which posses historic, ethnological, paleontological or anthropological value. 5. An Architectural Zone is a place or natural area where there are buildings or assets which are of archaeological interest, whether or not they have been extracted or are on the surface, underground or submerged in Spanish territorial waters. 4 Both the Registry and the official name are instruments used by the competent public Administration and are not generally available for the public, L.J. Capote Pérez, “Patrimonio Histórico y Registro de la Propiedad”, Revista de derecho privado, nº 91, 2007, p. 70. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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technical or cultural value and which have not been declared as being of cultural interest (Article 26 LHHS). 2.1.3. Assets (Movables and Immovable Goods) Included in the Spanish Historical Heritage This is the minimum level of protection for an asset and fulfils the general provisions of Article 1. This is a residual category for those assets which are not covered by a specific declaration but which fulfil the requirements of that article.5 It could be said that the LHHS comprehensively regulates tangible assets, both for objects and buildings. It does so in terms of the competent bodies (the historic heritage Council, advisory bodies, in Article 3); the definitions of export and exploitations in Articles 4 and 5; and above all, the declaration of these assets as “Assets of cultural interest” as set out in Title I of the Law which is general in its application. The categories for objects and buildings are also generally applicable, Title IV “On the protection of Buildings and Objects”, Title VIII “Infrastructure” and Title IX “Administrative infractions and the respective sanctions”. But, apart from these “common” laws, 1. Title II is dedicated to immovable goods (Articles 14 to 25) and Title III to movables (Articles 27 to 34). 2. There are also three types of specific categories apart from those mentioned already. – Archaeological Heritage, dealt with in Title V, which includes both buildings and objects. – Ethnographical heritage, which is dealt with in Title VI, and includes both objects and buildings as well as “knowledge and activities which are or have been a relevant expression of the culture of the Spanish people in its material, social or spiritual aspects”. This is a demonstration of the references to non-material or intangible heritage, although at the State level there is no legislation on this point. – Documental and Bibliographical Heritage (Title VII) which is a specific type of asset.

5 But assets which are not included in the inventory and are not covered by a declaration are equally subject to regulation under Law, C. Barrero Rodríguez, La ordenación jurídica del Patrimonio Histórico, (Madrid, Civitas-Universidad de Sevilla, 1990), pp. 265–266. One example can be found in Article 37.2 LHSH.

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2.2. Categories within the Laws of the Autonomous Communities Most of the regional Laws also include three levels of protection and legal status and also have specific regulations (within the actual Cultural Heritage Laws) for archaeological and ethnographical heritage. They also usually have other specific laws for Museums, Archives and documentary heritage. As such, the LPCar., provides for the classification and registry of assets under three categories in a way similar to the LHHS. Assets of Cultural Interest, Catalogued Assets and Inventory Assets. The difference between these categories and those of State Law is that these apply both to buildings and objects. The first of these also deals with intangible assets. 2.2.1. Assets of Cultural Interest These assets are the most relevant, including both tangible and intangible. These assets are included in the Aragon Registry of Assets of Cultural Interest. According to the LPCar., ACIs are classified as – Monuments6 – Agglomerations of Cultural Interest, among which are • Historical agglomerations7 • Historic Gardens • Historic sites • Paleontological zones • Archaeological zones • And places of ethnographical interest. – Assets of Cultural Interest – Non-tangible Assets of Cultural Interest 2.2.2. Catalogued Assets They are assets included in the cultural heritage which, despite their significance and importance, do not fulfil the conditions for Assets of Cultural Interest. These are inscribed in the Catalogue of Aragonese Cultural Heritage. If a building is “catalogued”, the Municipality where it is located may declare it a “Monument of Local Interest” (Article 13 LPCar.).

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Which are constructions or fixed works. They can also be declared as “Municipal Monuments” (Article 48 LPCar.). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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2.2.3. Inventory Assets This is the last category of cultural assets and includes documents, museums and libraries, these assets are included in the Inventory of Aragonese Cultural Heritage. In Aragon there also exists a General Census of the Cultural Heritage of Aragon. This is an administrative registry which coordinates and covers the three previous registries and other assets which deserve to be preserved although they may not have been included in the aforementioned registries. 2.3. Concerning the Ownership of Cultural Heritage As regards the “holders” of cultural property or heritage in Spain, it is necessary to mention that these assets are not in the public domain and remain under private ownership. However, there is a certain “community right” over these assets which goes beyond the right of individual ownership given their cultural links, meaning that in a certain sense they are “common assets”. More specifically: 1. The private ownership of an asset of cultural significance is limited in terms of the free availability of the same and “the social function of property”. These limitations are there to ensure their conservation and to ensure that they can be enjoyed, as far as is possible, by the community.8 2. It also specifies that actions requiring the Public Administration and the Courts to comply with the provisions of the LHHS for the defence of heritage are public (Article 8.1 LHHS). 3. It also states that it is the “public duty” of all citizens to report dangerous situations which could affect the ACH so that appropriate measures can be taken (Article 8.1 LHHS). Logically, there exist assets which are already in the public domain which remain in this condition (e.g. a countryside area). The idea is that the classification under the categories of the LHHS does not affect its ownership. However there is one specific area, namely Archaeological Patrimony, which is automatically considered to be in the public domain, even if it lies on private land (Articles 44.1 and 44.2 LHHS). In this case, both the discoverer and the owner of the land on which the object was discovered will equally share the value legally attributed to the object (Article 44.3).

8 The LPCar. recognizes that the community has a “right to enjoy” these assets and also imposes “a duty of conservation” for Aragonese Cultural heritage Assets. The Article talks about “All persons . . .” (Articles 5 and 6), independently of their relationship to the asset and always within the rules established under law.

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3. Tangible Cultural Heritage 3.1. Immovables 3.1.1. Protection’s Criteria: the Option between Declaration or Recognition The LHHS states that the most relevant Assets under Spanish Cultural Heritage should be inventoried or declared to be of cultural interest (Article 1.3). “The quality of belonging to Spanish Cultural Heritage is acquired at the moment in which a specific asset is incorporated under one of the categories of legal protection established: Those of Assets of Cultural Interest and inventoried assets”.9 In the case of objects, it is the declaration as ACI which provides for special protection. In theory, the relevance of these places of Historic Heritage should derive from the actual general interest which these assets enjoy and their appreciation as such by the community. In this situation (theoretically), the declaration would be an “administrative act of the recognition of the cultural value of an asset . . . taking into account the esteem it has acquired as a representation of the cultural identity in the eyes of the community which has converted it into an important asset. The Administration is limited to certifying the ‘interest’ of the asset.”10 This is different in reality as resident’s preoccupation and sensibility is not always desirable, especially in certain cases such as Archaeological Heritage.11 Rather, declarations stem from action plans drawn up by higher bodies (specifically the Administrations of the Autonomous Community). We have already seen that declaration as an ACI is done both ministerio legis and by Royal Decree. The first of these corresponds to the Spanish Parliament as they have the competency to approve Laws. The second (which has the most practical relevance) corresponded to the National Government up until 1991 which had the competency to approve Royal Decrees. The approval of a Royal Decree implied the prior opening and administration of an administrative file by the competent Body (which is the Autonomous Community, according to Articles 6 and 9.2 LHHS).

9 J.M. Alegre Ávila, Evolución y regimen jurídico del Patrimonio Histórico, (Madrid, Ministerio de Cultura, 1994), p. 523. 10 De la Casa et al., op. cit., p. 258. 11 Specifically in cases such as that of the Autonomous Community of Castille and Leon in which archaeological sites are abundant, up until 1998 not one record had resulted from a public initiative or from the initiative of the Town councils of the areas in which they are located, all of them resulted from planned goals set out by the Autonomous Community, De la Casa, op. cit., p. 258.

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The file should include a favourable report from one of the following advisory bodies: The Council on the Qualification, Evaluation and Export of Spanish Historical Heritage, The Royal Academies, The Spanish Universities, the Higher Scientific Research Council or the Higher Councils. The procedure for the declaration of an ACI is described in Articles 9 to 13 LHHS. It is also understood from JCC 17/1991 of the 31st of January that the competency to declare an asset as ACI falls to the Government of the corresponding Autonomous Community (which approves the corresponding Regional Decrees). The State only has the competency to make an ACI declaration when the assets fulfil certain individual conditions such as those in 6.b): – Assets forming part of the Spanish Historic Heritage attributed to public services administrated by the State – Those which form a part of the National Heritage (in the service of the King and his family). In the Autonomous Community of Aragon, the competent authority is the Government of Aragon after a proposal by the Council of the Department responsible for Cultural Heritage (Article 21.1 LPCar.) The proceedings, effects and terms are set out in Articles 18 to 21 LPCar. Aragon law also provides for the ex lege declaration of ACIs for certain assets. La 2nd AD LPCar. States that: All castles, crests, emblems, crosses and caves, shelters and places which contain examples of cave painting and megalithic monuments of any type in Aragon are considered to be Assets of Cultural Interest under this Law. A list of the assets affected and their locations will be approved by an Order from the Department responsible for cultural heritage.12 3.1.2. Criteria Used by Spanish System to Declare an Immovable Property as Cultural Heritage The LHHS talks about “Historical” Heritage and not about “Cultural” Heritage. The value and interest which the law talks about is therefore derived from “historical” criteria. Some Regional Laws use the same denomination of Historical Heritage (Castille-La Mancha; Andalusia, Madrid, Murcia, The

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In the application of this mandate, the Order of the 17th of April 2006 by the Department of Education, Culture and Sport of the Government of Aragon will award in genere the condition of ACI, e.g. to castles, in the categories of Monuments and Agglomerations (of Cultural Interest) Archaeological Areas as set out in the Appendix of the same. It also sets out that those castles which occupy an area which is not formally and specifically bounded will also be considered to be the subject of protection. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Canaries, the Balearic Islands) bearing in mind the common basic elements of all of these assets and the determination of their level of protection. Others make a reference to both the history and the culture of the civilization so using both terms (Extremadura, La Rioja). But most of them use what appears to be the most modern denomination and refer only to Culture, given that this supra-concept also includes historical criteria (The Basque Country, Catalonia, Galicia, Valencia, Cantabria, Aragon, Asturias, CastilleLeon, Navarra). Of course, the Spanish Law 36/1994, which implemented Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a member state, uses the term “cultural asset”. In reality, the difference is only a formality or one of terminology given that the main category of the LHHS, and that which provides most protection, is that of an Asset of “Cultural” Interest (ACI). Declaration is never free or discretional but is the result of a prior evaluation of the characteristics of the asset. Some criteria used (e.g. for archaeological sites) include “the special individuality of the place from a scientific point of view, normally deriving from more or less continuous research . . . the social significance of the remains found at these sites, meaning intended or actual visits by the general public . . . and including the need to protect the site against present or future threats”.13 However historical nature or antiquity is not the only criteria. A Garden may be declared to be of historical value (Article 15.2) “. . . based on its origin or historic past or its aesthetic, sensory or botanical value”. A group of buildings may be declared to be a Historic Agglomeration if it has “. . . a physical structure which represents the evolution of a human community and is a testament to their culture or if it constitutes an asset of value to and which is enjoyed by the Community”. 3.1.3. Protection Measures for Immovable Property Declared as Cultural Heritage 3.1.3.1. Civil Measures Protection is implemented through the limitation of the actions of the owners of the asset as a result of the social value of the property. We can specifically distinguish A. An obligation—which falls on the owner and also on anyone possessing an ACI—which allows the competent bodies to inspect them and researchers to study them, by prior qualified request, and also allows for free public visits, under conditions established by law, on at least four 13

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days per month, on the days and at the times established previously (Article 13.2 LHHS) B. The establishment of a strict duty to maintain and preserve the ACI and the buildings belonging to the ethnographical Heritage. Specifically, B.1) Prohibition of removing the ACI from the environment of which it forms a part, except for reasons of force majeure or social interests (Article 18 LHHS). B.2) The limitation of the ability to carry out works which may affect the asset in question (Articles 19 and 22 LHHS). There are also limitations on the installation of signs and pipes and cables. As such the opening of a file on the declaration of a building as an ACI will cause the suspension of the corresponding municipal licenses for planning, construction and demolition in the affected areas (Article 16 LHHS). B.3) The imposition of a general duty of maintenance and custodianship (Article 36 LHHS). These tasks are (in principle) supported by public subsidies, including the ability of the Administration to carry out the works itself. Proven breaches of these obligations “will result in the forced expropriation of these ACIs by the competent Administration” (Article 36.4 LHHS). The non-fulfilment of the obligation of keeping and maintenance of the SHH will be “reason (cause) of social interest” for the forced expropriation of the ACI assets by the competent Administration. Other reasons may also fall under the heading of “social interest”. In fact, in the 16th December 1954 Law, on Compulsory Expropriation (regarding expropriation procedures) there exists an entire chapter dedicated to the expropriation of objects of artistic, historical and archaeological value (Articles 76 to 84). C. The restriction of movement with respect to ACIs and buildings belonging to the ethnographical Heritage. 1st. The prohibition of the export of objects declared to be ACI and those which have been expressly declared to be non-exportable by the State Administration as they belong to the HHS as a precautionary measure until a file has been opened for these assets (Article 5.2.). It must also be borne in mind that although technological advances now allow for the transport of any monument, this prohibition extends to buildings by incorporation or destination (Article 14, relating to the concept of an Immovable asset to the effects of the LHHS). Any contract which contravenes this prohibition will be void under law. 2nd. Rights of preferred acquisition which I will deal with in the following point. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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D. The attribution of public domain for assets forming a part of the archaeological heritage which, as we have already said, also include buildings as well as objects. Article 40 “. . . geological and paleontological artefacts relating to the history of humans and their origins and ancestors . . . all caves, shelters and sites which contain examples of cave paintings”. 3.1.3.2. Penal Measures The Spanish Penal Code (reformed by Organic Law 10/1995) protects Historical Heritage (objects and buildings) in two ways. a. Through specific crimes against the heritage, although this is mostly applicable to movable assets (e.g. Articles 235 and 241, 652.2CP). b. Setting out of specific crimes “against Historical Patrimony” in Articles 321 to 324: e.g. Article 321 Those who demolish or seriously alter buildings which are individually protected due to their historic, artistic, cultural or monumental interest will be penalized . . .

or Article 323 Those who cause damage to an archive, record, museum, library, educational centre, scientific body, similar institution or assets with historic, artistic, scientific, cultural or monumental value including archaeological sites will be penalized.

It appears that in the case of Article 321, the expression “individually protected” is to be understood as being “declared to be an ACI” (as per JHC of the 25th of May 2004), while in the case of Article 323, case law does not require a formal declaration but the simple appreciation of its historic, artistic or cultural value (as per JHC of the 12th of November 1991). Sanctions extend not only to those causing the actual damage but also to those public authorities which authorize town planning actions relating to individually protected buildings. The intention to cause damage must be proven, meaning that: The person must be aware that his/her actions affect a protected building. If he/she is not, his/her actions will fall under generic laws for damages (Articles 263 and subsequent). This is mainly to protect historic city centres from unscrupulous developers. 3.1.4. Balance between the Protection of Immovable Cultural Heritage and Other Interests, Such as Property Rights The declaration as an ACI of a historic agglomeration, or a historic site, or an archaeological Zone, creates an obligation for the Municipality or Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Municipalities where they are located to produce a special plan for the protection of the area affected by the declaration. The approval of this Plan requires a favourable report from competent Administration for the protection of the affected cultural assets (Article 20 LHHS). The LPCar. states that urban planning should respect all of the ACIs and cultural assets in the area. What is more: Authorization is required from the Department of Culture of the Government of Aragon for works, activities or interventions affecting buildings and their contents. If this “Cultural Authorization” is not obtained (Article 35 LBCar.) the town councils—which are the competent bodies for awarding urban planning licenses—will deny applications for construction licenses.14 In the second place, we can find pre-emption rights with regards to objects which are declared to be ACI (Article 38). Under the framework of internal commercial operations, the LHHS awards a preferred acquisition right to public Administrations (the State Administration and after this, the Administration of the Autonomous Community in which the assets are located). These specifically are the rights of pre-emption and refusal. By virtue of preemption, the owner selling the ACI must notify the public Administration of this and give them the chance to acquire them under conditions set out by the owner of the property. If they do not comply with this obligation; the Administration may, in the six months following the sale of the goods, acquire them from the new owner for the same price that they paid for them. The first contract will then become void. The Spanish Land Registry will collaborate in this process by checking all sales before they are entered in the registry, if the seller has not complied with their duties this sale will not be allowed (Article 38.5 LHHS).15 The auctioneers will also have to notify, with sufficient advance notice, the public auctions in which it attempts the sale of any good that belongs to Spanish Cultural Heritage (Article 38,1 in fine).

14 These protection measures are sometimes a hindrance instead of a help as they greatly delay the execution of these works and often are given financial support. To this we have to add that not all Municipalities carry out the corresponding urban planning procedures, or if they do, they do not always make sure that they are implemented correctly. 15 The problem being the way in which the condition of an ACI is entered in the Spanish Land Register, preventive annotation has a limited lifetime (4 years), while the condition of an ACI is indefinite in principal. This problem was studied by Capote Pérez, op. cit., pp. 77–80, which proposes that the condition of ACI be entered in the Registry through a margin note with indefinite duration and which provides information which need not necessarily appear in the text of the inscription.

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3.1.5. Position, Role and Involvement of Communities, Groups or Relevant Non-governmental Organizations in the Process of Declaring Immovable Property, Including Sacred and Ritual Places, as Cultural Heritage According to Article 10 LHHS, both individuals and (not unusually) associations which are in some way connected to culture can promote these declarations. The functions of foundations are of special importance as these are very often the owners of the properties in question. Persons requesting the declaration and initiating the process have the right to be kept informed on the proceedings and their results. However they possess no other special rights. Article 6 of the LPCar expressly alludes to the role of these associations when it states that “Legally registered Aragonese cultural associations may collaborate with the Administration in the tasks . . .” of the conservation of Aragonese Cultural Heritage to the effects that they will sign the corresponding Collaboration Agreements. 3.1.6. Precautionary Measures for the Protection of Immovable Cultural Heritage in the Event of an Armed Conflict The LHHS contains nothing in respect to precautionary measures for the protection of immovable cultural heritage in the event of an armed conflict. However, the Penal Code, which regulates Crimes against the international community, dedicates a whole chapter to crimes against persons and protected assets in the case of armed conflict (Articles 608 to 614 bis). Article 613 Those carrying out or ordering any of the following actions during an armed conflict will be punished: a) Attacking or taking reprisals or committing acts of hostility against well known cultural assets or cult places, that constitute cultural or spiritual heritage of the people, and that have been awarded protection by means of special agreements, or cultural assets under reinforced protection, causing, as a consequence, extensive damage, as long as these assets are not located close to military objectives or are not being used in support of enemy military forces. ... 2. In the case of cultural assets under special protection, or in extremely serious cases, the maximum penalty may be applied.

3.1.7. (Lack of ) Regulation of Cultural Heritage Located Underwater The current LHHS does not specifically regulate this or define the term. It only references this with regard to archaeological assets of the HHS (Articles 40.1 and 41). These define the concepts of excavation, prospecting, archaeology and discoveries, including those made under water. The main consequence is that they become Spanish public property. This is one of the Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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issues in which legislation is lacking and we hope future laws will contain clearer regulations which prevent, a priori, litigations such as the one currently ongoing between the State and the company named Odyssey. The work of private institutions—which are partly financed using public funds—are especially important, one of these is the “Poseidon Project” http://www.proyectoposeidon.com/. These institutions work in collaboration with the security forces of the State and carry out the crucially important task of fighting the theft of underwater Heritage. 3.2. Movables 3.2.1. Criteria to Declare Movable Property as Cultural Heritage Movable assets of special cultural or historic relevance can be declared ACI in the same way as non-movable assets. Movables contained in a building which has been declared to be an ACI are also considered to be ACIs (Article 27 LHHS). But furthermore (and this is the main difference) there is a General Inventory of Movable Assets for movables which have not been declared to be ACIs but which have a singular relevance (Article 26.1).16 The main consequence is that contained in Article 26.6: a. The competent Administration may inspect the state of conservation of them at any time. b. The owners of movable assets and, where applicable, other holders of real rights over the same, are obliged to allow researchers to study them if a justified request is made and also to lend them, with the appropriate guarantees, to temporary exhibitions which are organized by the bodies referred to in Article 6 LHHS. Owners are only obliged to lend assets for a period of one month per year. c. Transfer by inter vivos or mortis causa acts and any other change in the situation of the assets should be communicated to the competent Administration and recorded in the General Inventory. The criteria for an asset to be included in the GIMA is that of “notable historic, artistic, archaeological, scientific, technical or cultural value” (Article 26.3 LHHS). An application for inclusion in the GIMA can be made by the owners or title holders of real rights over the assets (Article 26.2 LHHS). In order for the GIMA to be as complete as possible, the LHHS obliges the owners of assets with certain characteristics to communicate their existence 16 The fact that a similar intermediate category between that of ACI and the absence of a declaration for non-movable goods has been criticised, De la Casa et al., op. cit., p. 264.

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to the competent Administrations before selling or transferring them. The same obligations apply to the people and organizations which regularly trade in movable assets which are a part of the HHS (these include an obligation to formalize a record book of all transactions involving these assets and to make this available to the Autonomous Community). The assets which carry this obligation are, according to Article 26.1b) RD 111/1968, those with a certain financial value which varies according to the type of asset. e.g., 15,000,000 ptas. (90,000 €) for paintings and sculptures which are less than one hundred years old, and 10,000,000 ptas. (60,000 €) if they are more than one hundred years old. The position, role and involvement of communities, groups or relevant non-governmental organisations in the process of declaring movable property as cultural heritage and in its management, preservation and possession after such a declaration, is, in general terms, the same position as that of immovable property. Property law is applied, in general terms, to movable cultural heritage. In general, the special rules contained in Articles 26 to 34 apply to assets included in the GIMA and those declared to be ACIs, these put serious restrictions on the trafficking of these assets. 3.2.2. Sales in Spain Movables: a) declared to be an ACI and b) those included in the GIMA which are in the possession of religious institutions (or in any of their establishments or premises) may not be transferred—either gratuitously or for money—to individuals (commercial merchants or organizations). They may only be sold to Administrations or Public Bodies, or to other religious institutions. They are, in all cases, imprescriptible (Article 29 LHHS). 3.2.3. Sales Outside of Spain (Export) a. ACI objects: these may not be exported (Article 5.3 LHHS), although, with certain limitations, their temporary exit may be authorized (Article 31 LHHS), or they may be exchanged with others which are in the hands of other States (Article 34 LHHS). Independently of ACI objects, in general, and for every object, there is also the possibility of individual declaration as “not exportable”, if there are reasons for this. b. Objects, religious or not, enlisted in the GIMA, and those which, independently of the above mentioned categories, are more than 100 years old, will require express authorization from the Administration before they can be exported (Article 5.2 LHHS). If they are exported without this authorization, the Administration of the State will take all necessary measures to recover them (Article 29.2 LHHS and Spanish Law 36/1994, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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above mentioned, which implemented Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State). Once they have been recovered, they will belong to the State (Article 29.1 LHHS), which will display them in a public place as advised by the Council on Historic Patrimony (Article 29.4 LHHS). If the above owner of the illegally exported assets can prove that they were lost or stolen beforehand, they my request to have them returned, however, they must pay all of the costs of the recovery process and, where applicable, reimburse the State for the amount that they had to pay the purchaser of the asset (Article 29.3 LHHS). According to Article 32 LHHS, whenever an export authorization is requested, the worth value made by the applicant will be considered as a non-revocable selling offer in favour of the State Administration. Where such exportation is not allowed, the State Administration will have a six-month term to accept the offer and a 1 year term beginning from the time of request to perform the settled payment. The rejection of an export request does not imply the acceptance of the offer, which must be always expressed. 3.2.4. Ownership of Movables That Are Culturally Significant Objects and material goods which have the values of the HHS and which have been discovered by excavation, archaeological prospecting or by chance (Article 44 LHHS), will be in public domain, with all that this entails. Those which do not have these characteristics, which is difficult to distinguish as the objects need only have artistic, historic, paleontological, archaeological, ethnographic, scientific or technical value (Article 1.2 LHHS), will fall under the normal system of the civil Code with respect to “treasure” (Article 351 civil Code): The treasure belongs to the owner of the land on which it was found. However, if the chance discovery is made on somebody else’s land or State land, half of the value will belong to the discoverer.

3.2.5. Legal Mechanisms of Protection for Movable Cultural Heritage That Has Been Stolen and Is Subject to Illicit Import, Export or Transfer of Ownership The LPCar is very explicit. “Article 7. Return. The Administration of the Autonomous Community will use all measures possible to ensure the return to Aragon of all assets of Aragonese Cultural Heritage located outside of the Region and will collaborate with other public Administrations to create a detailed list of the assets in this situation. These assets form part of the Aragonese Cultural Heritage if they have originated in Aragon and been removed from there”. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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3.2.5.1. The Case of Illegal Substraction We should mention the fact that there is a Cultural Heritage Unit within the Judicial Police Service of the Guardia Civil which is responsible for the recovery of many works of art which have been stolen in Spain and abroad. 3.2.5.1.1. Criminal Law If objects with “artistic, historic, cultural or scientific value” are affected by robbery, theft, fraud or misappropriation, special circumstances will apply and the respective penalties will be greater (Articles 235, 241, 250 and 253 of the Penal Code, reformed by Organic Law 10/1995). 3.2.5.1.2. Civil Law If movable assets have been robbed they are always able to claim the right of ownership (Article 464 of the civil Code). Under no circumstances may a bona fide “third party” buyer consolidate the purchase non domino. This is a traditional rule of the Spanish system and is contained in Article 29.3 LHHS. 3.2.5.2. The Case of Voluntary Sale by the Owner, But in a Legal Manner Although not robbery, if an asset has been sold without the necessary authorization. 3.2.5.2.1. Criminal Law Assets of the HHS which are removed from Spanish territory without authorization from the State Administration will be classified as contraband (Article 2. (e) of Organic Law 12/1995, about suppression of contraband; OLSC). One of the consequences is the confiscation of “goods that are the object of a crime” (Article 5.1 OLSC). Confiscation will not occur if “the goods . . . have been legally traded and purchased by a third party in good faith” (Article 5.2 OLSC). The Spanish State has an action for claiming the return of cultural objects unlawfully removed from the territory of a Member State (procedure regulated in Spanish Law 36/1994, above mentioned). 3.2.5.2.2. Civil Law From a civil point of view, if an ACI or a BIG is sold in contravention of Article 28 LHHS, the sale is void under law (Article 44 RDHHS).

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3.2.6. Legal System to Control the Actions and Measures Taken by Museums, Galleries or Other Institutions in Relation to Tangible Cultural Property or Heritage 3.2.6.1. Art Galleries As per the contents of Article 26.4 LHHS and Articles 26 and 40.2 RDHHS to the effects of their inclusion in the GIMA and their possible preferred acquisition by the Autonomous Community (Article 40.4 RDHHS). 3.2.6.2. Museums There are no special obligations. The collections of public museums which are owned by the State are museum funds and they can also receive all types of ACIs on deposit whether they are included in the GIMA or not (and Article 63 LHHS and Article 9 RD 620/1987). In this last case, “Goods belonging to third parties which the management of the Museum agrees to receive through a deposit contract” (Article 9.1.d) RD 620/1987), the Museum accepting the deposit is not subject to any special obligation for declaring it an ACI or including it in the GIMA.17 4. Intangible Cultural Heritage 4.1. Safeguarding of Intangible Cultural Heritage 4.1.1. Framework for the Safeguarding of Intangible Cultural Heritage The LHHS does not contain any specific regulations for intangible heritage. In fact it seems to have only been created for tangible assets. However, differences do exist with regard to ethnographic Heritage. Article 47.3 It is considered that all knowledge and activities stemming from traditional techniques or models used by a specific community have ethnographical value and will enjoy the protection of the administration. When this knowledge or

17 We must remember that the LHSH does not just recognize museums to Heritage in themselves, but that State museums are also awarded the title of ACI (Article 60.1). But independently of this, the LHSH considers the collections of all of the museums to be “assets of Spanish Cultural Heritage”. Article 59.3 defines Museums as “Institutions of a permanent nature which acquire, conserve, investigate, communicate and exhibit, for the purposes of research, education and contemplation of collections with historic, artistic, scientific and technical value and any other natural quality”. As such, the museum collections are considered to be assets of historic heritage independently of their nature and type and are therefore subject to the HSH legal system. http://www.mcu.es/museos/docs/MC/MES/Rev03/ Rev03_EnTornoalMuseo.pdf.

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these activities are in danger of disappearing, the competent Administration will adopt the necessary measures for the research and scientific documentation of these assets.

There is no provision for this at the State level however. The Laws of the Autonomous Community, the most recent ones anyway, do contain express regulations, although results up to now have not been very practical. There are two streams of regulation: 1. The expansion of the concept of cultural Heritage in general, not only for movable and fixed assets, but also for intangible goods. In this way, intangible assets are the object of possible classification as an ACI, as catalogued assets or under the appropriate category. 2. Within the specific regulations which almost all regional Legal systems make on ethnographic Heritage, special attention must be paid to intangible Heritage. The LPCar. in its definition of Aragonese Cultural Heritage refers expressly to “. . . all the material and intangible assets of Aragon relating to history and culture . . .” (Article 2) and specifically it states that “The Aragonese and Catalan languages, being minority languages of Aragon . . . represent a cultural richness and will be especially protected by the Administration” (Article 4). An identical reference to material and intangible assets appears in Article 12 to the effects of its possible classification as an ACI. Intangible assets, among these being traditional activities which contain special elements constituting part of the ethnological heritage of Aragon, may be declared to be ACIs (Article 12.4).18

Special reference is also made to intangible ethnographical Assets (Article 75). However, no intangible assets have been declared to be ACIs up to today nor has an intangible asset been included in an Administrative Registry. In another Aragonese Law, Law 21/1997 of the 3rd of December on the cultural Parks of Aragon,19 goes into more detail about the concept of intangible Heritage:

18 Under Aragonese Law, they may only be awarded this classification or none at all. They do not need to be either classified or inventoried. 19 Article 1. Concept: “A Cultural Park is made up of a territory which contains elements relating to cultural heritage which have singular aesthetic and/or ecological value and which will enjoy global protection and promotion as a whole, with special protective measures in place for the relevant elements”.

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Article 2.1 . . . The language, the gastronomy, the traditions, fiestas and clothing and any cultural or traditional actions are considered to be intangible Heritage. All under the framework of the definitions established by the Council of Europe and by Unesco.

In other Regions some intangible assets have been declared to be ACIs under regional Law, e.g.: – In Andalusia, the voice of the flamenco singer “La niña de los peines”.20 – In the Balearic Islands, the fiesta of the Estandarte.21 – In Valencia, the Betlem de Tirisiti.22 One of the most complete and specific is Law 14/2005 of the 22nd of November of the Autonomous Community of Navarra, on the Cultural Heritage of Navarra (LCPnav) and, recently, Law 4/2007 of the 16th of March on the Cultural Heritage of Murcia. It must be noted that this Autonomous Community (Murcia) is one of those which has joined the Trans-national MEDINS Project.23 4.1.2. Criteria to Recognize Traditional Knowledge or Cultural Expressions as Intangible Cultural Heritage The LCPar. (as with Spanish Law) basically refers to ethnographical value as we have already seen. The Law of the Autonomous Community of Valencia on Cultural Heritage includes a definition of Intangible Heritage and its boundary criteria:24 Article 1.3 The most significant creations, knowledge, techniques, practices and uses, of the Valencian lifestyle and traditional culture, are part of the Valencian cultural heritage. As do intangible assets such as the expressions of the traditions of the Valencian people in their music, art, gastronomy and recreation, and especially those which are transmitted orally and those which support or increase the use of the Valencian language.

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http://www.juntadeandalucia.es/consejo/cg250599.htm#ref2. http://www.boe.es/boe/dias/2008/01/04/pdfs/A01009–01009.pdf. This fiesta commemorates the incorporation of Mallorca into Christian Europe, celebrating the entry of the Christians into the Arab capital of the Kingdom of Mallorca. It is the oldest of its type. 22 http://www.uch.ceu.es/principal/patrimonio/2004/tirisiti%20/tiris1ok.htm. This is a ritual representation linked to Christmas. 23 http://www.patrimur.com/etnografia/medins.php. 24 The Law is from 1998 but it has been reformed on this point by Law 5/2007 of the 9th of February. 21

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We should also mention the inclusion of a new category of Intangible Assets of a Technical Nature “which constitute relevant manifestations or events in the evolution of technology in the Community of Valencia as well as elements making up the Cultural Heritage of Valencia” (Article 1.4). 4.1.3. Measures Taken to Safeguard the Intangible Heritage The most specific regulation is that of LPCnav. It states that intangible assets have been declared to be ACIs or have been inventoried. Article 53 The asset’s declaration will establish exactly what protection measures and infrastructure are most suitable for the conservation and diffusion of the intangible Assets of Cultural Interest which have already been inventoried or declared as ACIs. Also, the Administration of the Community of Navarra will set out the measures to encourage the research required for the completion or perfection of knowledge regarding these assets.

The recent LCPmur. establishes a protection measure which particularly refers to intangible assets with ethnographical value but which applies to all: Article 66 . . . 2. When intangible assets with ethnographical value within the Region of Murcia are deemed to be in danger of disappearing, being lost or are deteriorating, the directorate general having competencies for cultural heritage will promote and adopt suitable measures for the protection, conservation, study, scientific documentation, valuation and revitalization and also collection by any means so as to guarantee its protection and transmission to future generations.

Unfortunately it is often believed that cultural Heritage is unprotected today, mostly because it is not clear in all cases who is in charge of the conservation, documentation and diffusion of the same: Museums, Universities, Centres of learning and the public Administration itself.25 One example of a positive measure is the recent creation of the Observatory for the Intangible and Ethnographic Heritage of the Region of Murcia.26 This is a communications network for people involved in safeguarding, protecting and evaluating Intangible and Ethnographic Heritage, be it for their work as researchers, teachers, technicians, etc. because of their direct participation in manifestations of intangible heritage as actors and agents.

25 See: “An approximation of an inventory of Basque ethnographical heritage”. Observatorio Vasco de la cultura, p. 13. http://www.kultura.ejgv.euskadi.net/informacion/keb_publicaciones/es_publicac/adjuntos/ Resumen_patrimonio.pdf. 26 http://www.patrimur.com/etnografia/observatorio.php.

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This serves as a mechanism allowing the competent Administration to better manage these issues. 4.1.4. Role of Communities, Groups and Relevant Non-governmental Organizations in the Safeguarding Measures These play a fundamental role. As already mentioned, the inscription of these assets in public inventories and registries has still not been extended to them. This is the job of those individuals who are in charge of inventorying, rescuing and classifying these assets. I want to emphasise the work of the Santa María la Real Foundation, their website, which is available in four languages, includes a section dedicated to intangible heritage which hold sound archives containing examples, chosen by this Foundation, which are considered to be examples of intangible assets.27 We have also mentioned the role of the people at the recently created Observatory for Intangible Heritage in Murcia. As I have indicated, State legislation does not include regulations to this effect. Neither does the LPCar. provide for a specific inventory. Although it is possible for intangible assets to be awarded a specific declaration under the LPCar., this is basically based on their ethnographical value and up to this date, upon interviewing the person in charge of the Registry in April of 2008, no intangible assets have so far been declared or registered in the general registry. The LPCnav. does provide for the existence of an inventory for Intangible Assets of Cultural Interest. The competent department for cultural issues will create an Inventory for Intangible Assets which have a special cultural relevance for Navarra which will document these assets so that they may be identified and safeguarded (Article 54).

A partial inventory has been created: e.g., the Government of Valencia, through the museum of Ethnology, has created a Phonograph Record including samples collected by local students with the support of cultural associations.28 Today, these inventories are being created by private institutions.

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In Navarra, where we have already looked at their legislation on this point, the creation of the inventory was financed partly by public funds but mostly carried out by professors and researchers.29 In the Basque Country, the gathering of intangible heritage has not been done systematically with the implementation of a protection system, but they have had some interesting experiences such as the Calendar of fiestas and traditional dances of the Basque Country, the ethnographical Atlas of Vasconia and Herri musikaren txokoa, which covers traditional Basque music.30

29 A. Asiáin Ansorena, “Archive of the oral and intangible heritage of Navarra: polyphony of emotions” in the Navarrese Ethnology and Ethnography Pamphlet, n° 80, 2005. 30 See: “An approximation of an inventory of Basque ethnographical heritage”. Observatorio Vasco de la cultura, p. 18.

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SWITZERLAND Eva Maria Belser, Eva Rüegg and Eva Molinari 1. General Issues .......................................................................................... 2. The Protection of Tangible Cultural Heritage .................................... 2.1. Federal Level .................................................................................... 2.1.1. The Protection of Movable Cultural Property ............... 2.1.1.1. Establishment of Registries of Cultural Property .................................................................. 2.1.1.2. Regulation of Import ............................................ 2.1.1.3. Regulation of Export ............................................ 2.1.1.4. Duty of Diligence in the Transfer of Ownership .............................................................. 2.1.1.5. Redefined Deadlines for Adverse Possession and Acquisition in Good Faith .......................... 2.1.1.6. Financial Assistance for the Benefit of Maintaining Cultural Heritage ........................... 2.1.2. The Protection of Immovable Cultural Property ........... 2.1.2.1. Nature and Cultural Heritage Protection ......... 2.1.2.1.1. Protection and Maintenance ............. 2.1.2.1.2. Support and Promotion ..................... 2.1.2.2. Zoning .................................................................... 2.2. Cantonal Level ................................................................................. 2.2.1. Inventories ............................................................................ 2.2.2. Giving Cultural Heritage a Protected Status (Unterschutzstellung) .......................................................... 2.2.3. Different Restrictions of Property Rights ........................ 2.2.4. Regulations on the Protection of Archaeological Objects and Places of Discovery ........................................ 2.2.5. Advice and Financial Assistance ....................................... 2.2.6. The Control of the Transfer of Cultural Heritage .......... 2.2.7. Conclusion ............................................................................ 3. The Protection of Intangible Cultural Heritage ................................. 3.1. Intangible Cultural Heritage in Switzerland .............................. 3.2. Legal Framework of the National Swiss Law ............................. 3.2.1. Federal Level ........................................................................ 3.2.1.1. The Competent Authorities ................................ 3.2.1.2. The Existing Law .................................................. 3.2.1.2.1. Swiss Federal Constitution ................

692 694 694 694 696 697 701 701 703 704 704 704 706 708 708 709 709 710 711 711 712 712 713 714 714 715 716 716 717 717

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3.2.1.2.2. Implementation of the Constitutional Foundations into Federal Law .......... 3.2.1.2.2.1. Theatre, Music, Dance, Literature ......................... 3.2.1.2.2.2. Traditional Cultivation Techniques ...................... 3.2.1.2.2.3. Cultural Education ........ 3.2.1.2.2.4. Cultural Organisations ... 3.2.1.2.2.5. Linguistic and Cultural Minorities ........................ 3.2.2. Cantonal Level ..................................................................... 3.2.2.1. Grisons .................................................................... 3.2.2.2. Appenzell Ausser Rhoden ................................... 3.2.2.3. Bern ......................................................................... 3.2.2.4. Fribourg .................................................................. 3.2.2.5. Ticino ...................................................................... 3.3. Implementation of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage ..................... 3.4. Implementation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions ................ 4. Appendix: Legal sources ....................................................................... 4.1. Federal Acts ..................................................................................... 4.2. Cantonal Acts ..................................................................................

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1. General issues Switzerland is well known for its rich cultural heritage and its cultural diversity. The protection of cultural heritage and of different cultures and languages is part of the Swiss state concept. According to the Preamble of the Swiss Federal Constitution1 (hereinafter referred to as “SFC”), the Swiss people and Cantons are conscious of their common achievements and determined to live their diversity in unity. Switzerland makes and supports efforts to preserve its cultural and natural heritage and follows an active cultural policy in order to preserve and promote “diversity within the unity”. Swiss cultural policy is strongly influenced by uniform law. Switzerland has ratified the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (entered into force in 1962) and the Convention Concerning the Protection of the World Cultural and Natural Heritage of 1972 (entered into force in 1975). Since 2004, it is a contracting party to the Convention on the Means of Prohibiting and Preventing the Illicit 1

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Import, Export and Transfer of Ownership of Cultural Property of 1970. Switzerland also intends to ratify the Convention for the Safeguarding of the Intangible Cultural Heritage of 2003 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005. Due to the particularities of the Swiss state system, the implementation of these international conventions into Swiss law is not always an easy task. The Swiss Confederation is a multicultural and multilingual state that supports and accommodates its cultural, religious and linguistic diversity through a federal system. The country consists of 26 Cantons which enjoy far-reaching competencies and comprise about 2,800 municipalities. Under Article 69, paragraph 1 of the Swiss Federal Constitution, the field of culture is a cantonal matter. Further Article 78, paragraph 1 compliments this by leaving the protection of natural and cultural heritage to the Cantons. In regards to promotion and protection of culture, the role of the Confederation is therefore a very limited one. The Confederation may support cultural activities of national interest and encourage art and music particularly in the field of education (SFC Art. 69, para. 2). In accomplishing this task, it must account for the cultural and linguistic diversity of the country (para. 3). This is one of the main state purposes according to Article 2 of the Constitution. In the field of the protection of the country’s cultural heritage, the role of the Confederation is equally fragmented. The Confederation may support efforts towards the protection of natural and cultural heritage and, by contract or expropriation, acquire or secure objects of national importance (SFC Art. 78, para. 3).2 In addition, in fulfilling its tasks (such as the construction of national highways or other public works), the Confederation is obliged to account for the objective of the protection of natural and cultural heritage and to protect scenery, localities, historical sites, and natural and cultural monuments and preserve them untouched if public interest so requires (SFC Art. 78 para. 2). In addition, because foreign relations are a federal matter (SFC Art. 54) the Confederation has the power to ratify international law relating to culture. For implementation of these laws, however, the Confederation largely depends on the activity of the Cantons. Due to Switzerland’s federal system and the constitutional attribution of competencies, the country’s cultural diversity is reflected in its legal diversity. In the field of the protection and promotion of culture, the international law exists alongside national laws and 26 different cantonal legal systems. This diversity renders it difficult to concisely present the Swiss approach to protection of its cultural heritage. The aim of this article is therefore limited 2 G. Biaggini, Kommentar, Bundesverfassung der Schweizerischen Eidgenossenschaft [Commentary, Federal Constitution of the Swiss Confederation] (Zurich, Orell Füssli Verlag AG 2007), SFC Art. 78, para. 4.

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to presenting the main strategies and to illustrate them by a limited number of regulations of particular interest. Since the law distinguishes between the protection of tangible and intangible cultural heritage and provides for a different set of provisions for each category, this article is divided into two parts. The first will deal with the protection of tangible cultural heritage (2.) and the second will give an overview of the protection of intangible cultural heritage (3.). The text will then conclude with some final remarks. 2. The Protection of Tangible Cultural Heritage By presenting the protection of tangible cultural heritage, we will first analyse the relevant norms on the federal level (2.1.) and then present a number of cantonal regulations (2.2.). 2.1. Federal Level On the federal level, we will first look at the norms protecting movable cultural property from illegal removal from the country (2.1.1.) We will then deal with the provisions protecting and maintaining the immovable cultural property of Switzerland (2.1.2.). 2.1.1. The Protection of Movable Cultural Property The central piece of the federal protection of movable cultural property is the recently enacted Federal Act of 20 June 2003 on the International Transfer of Cultural Property (hereinafter referred to as “Cultural Property Transfer Act” or “CPTA”, SR 444.1) which entered into force the 1st June 2005.3 The Act implements the non-self-executing Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (hereinafter referred to as “UNESCO Convention of 1970”) entered into force in 2004. The Act regulates the import of cultural property into Switzerland, and its transit, export and repatriation from Switzerland.4 The adoption of the Act was possible due to the fact that the Confederation and the Cantons share competences in the field of cultural property transfer: While the Cantons are competent for regulating the export of cultural property5 unless the

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The Act is completed by the Ordinance of 13 April 2005 on the International Transfer of Cultural Property SR 444.11, (hereinafter referred to as “Cultural Property Transfer Ordinance”; CPTO) which entered into force the same day. 4 The Act is based on Art. 69, para. 2 and Art. 95, para. 1 of the Swiss Federal Constitution. 5 Dispatch of the Federal Council on the UNESCO Convention of 1970 and the Federal Act on the International Transfer of Cultural Property of 21 November 2001, BBl 2002 535, p. 545. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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object belongs to federal collections or is significant for the cultural heritage of Switzerland,6 the regulation of the import of cultural heritage lies within the Confederation’s authority. Accordingly, the CPTA regulates exports only when the object involved is of national interest. As a result, it is up to the Cantons to protect cultural property of local significance from being exported.7 Inspired by the UNESCO Convention of 1970, the CPTA defines cultural property as significant property from a religious or universal standpoint for archaeology, prehistory, history, literature, arts or sciences belonging to one of the categories under Article 1 of the UNESCO Convention of 1970 (CPTA Art. 2, para. 1) and cultural heritage as the entirety of cultural property belonging to one of the categories under Article 4 of the UNESCO Convention of 1970 (CPTA Art. 2, para. 2). The CPTA implements into Swiss law the obligations under the Convention:8 – establishment of registries of cultural property (below 2.1.1.1); – regulation of import (below 2.1.1.2), export (below 2.1.1.3) and questions related to the transfer of ownership of cultural property (below 2.1.1.4 and 2.1.1.5); – financial assistance for the maintenance of cultural heritage (below 2.1.1.6); – criminal sanctions; – designation of the relevant authorities and the institution of a national service; – official and legal assistance. In addition, the CPTA grants a return guarantee. This measure goes beyond the obligations under the UNESCO Convention of 1970. Since the grant of return guarantee is increasingly important for international loans among museums, it has been introduced into the Act in order to accommodate the needs of Swiss Museums and to promote the international loan of cultural property. The return guarantee, known in countries such as France, Germany, the USA, and Canada, facilitates the international exchange of works of art for temporary expositions.9 6

Ibid. See below 2.2. 8 Dispatch of the Federal Council on the UNESCO Convention of 1970 and the Federal Act on the International Transfer of Cultural Property of 21 November 2001, BBl 2002 535, p. 557 ff., as well as A.F.G. Raschèr, et al., Cultural Property Transfer (Zurich, Schulthess 2005), pp. 27–67. 9 Dispatch of the Federal Council on the UNESCO Convention of 1970 and the Federal Act on the International Transfer of Cultural Property of 21 November 2001, BBl 2002 535, p. 583. 7

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Numerous loaning institutions now require a return guarantee from the host country prior to sending objects from their collections to a foreign exhibition. This guarantee is intended to protect the loan from legal claims made by third parties. Should the cultural property of one state be on temporary loan for exhibition in a museum or other cultural institute in Switzerland, the institution borrowing the cultural property may request that the specialised body issues a return guarantee to the loaning institution for the period of the exhibition (CPTA Art. 10). Applications are published in the Federal Bulletin. Written objections against the grant of a guarantee may be filed to the Specialised Body within 30 days (CPTA Art. 11, para. 3). Persons asserting title to the cultural property qualify as a party. The Specialised Body determines whether the request of a return guarantee will be granted. The guarantee is granted when: (a) no one makes a claim to ownership through objection; (b) the import of the cultural property is not illicit in terms of Article 2, paragraph 5 of the CPTA; and (c) the loan agreement stipulates that the cultural property will be returned to the state of origin following the conclusion of the exhibition (CPTA Art. 12, para. 2). Under the return guarantee, neither private parties nor authorities may make legal claims to the cultural property as long as the cultural property is located in Switzerland (CPTA Art. 13). This includes actions for restitution or repatriation, attachment decrees, collection proceedings and seizures.10 2.1.1.1. Establishment of Registries of Cultural Property Cultural property belonging to the Swiss Confederation and being of significant importance for the cultural heritage of Switzerland is registered in the Federal Registry (Bundesverzeichnis; Verzeichnis des Bundes). Registered objects are res extra commercium.11 They can neither be acquired by adverse possession nor in good faith. The claim for return is not subject to a statute of limitations and the definitive export from Switzerland is prohibited (CPTA Art. 3).12 Upon inquiry, the Swiss National Service (“specialised body”; “Fachstelle”) informed that the Federal Registry does not yet exist but is in preparation for next year. The Confederation only registers cultural property that is of significant importance for the cultural heritage of Switzerland. “Significant importance” is an indefinite legal term that must be concretised by authorities and courts.13 10 See for further information: http://www.bak.admin.ch/bak/themen/kulturguetertransfer/ 01107/index.html?lang=en. 11 See K. Siehr, ‘Das Sachenrecht der Kulturgüter’ [Property Law for Cultural Property], in H. Honsell, et al., eds., Aktuelle Aspekte des Schuld und Sachenrechts [Current Aspects of the Laws of Property and Obligations] (Zurich, Schulthess 2003), p. 132. 12 See CPTA Art. 4 for Cantonal registries. 13 See Raschèr, op. cit. n. 8, at p. 31.

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Since the Federal Registry does not yet exist, there are no decisions clarifying the meaning of “significant importance”. Scholars say that the term cannot be concretised in abstracto, but must be applied in concreto.14 In our view, the term “of significant importance” must be viewed in light of the public interest in protection of the Swiss cultural heritage. If loss of the object would impoverish the Swiss cultural heritage, then the object is of significant importance and registration is justified. The revised Constitution of 1999 uses the term “cultural heritage” (SFC Art. 78). This terminology is influenced by international law. Older federal acts use neither the term “cultural heritage” nor the term “cultural property”; rather, they enumerate categories of protected objects. In the cantonal laws, there is no uniform use of the terms “cultural heritage” and “cultural property”.15 Note that in order to classify an object as cultural property, registration is not needed. Registration in cantonal and/or federal registers does have some legal effects (e.g. res extra commercium), but the absence of registration does not exclude an object from being classified as cultural property. Cultural property owned by private persons or institutions, particularly, is rarely registered but can form an important part of the Swiss cultural heritage. Non-registered cultural objects (according to the definition in CPTA Art. 2, para. 1) are not extra commercium; they can be acquired in good faith or by adverse possession. However, time limitation is 30 years (instead of 5). For further information, see below 2.1.1.5. 2.1.1.2. Regulation of Import Under Article 2, paragraph 2 of the UNESCO Convention of 1970, contracting parties have an obligation to oppose illegal imports with the means at their disposal. However, the CPTA does not provide for provisions regarding the import of cultural property into Switzerland.16 Instead, the Act merely provides for the possibility of the Federal Council to negotiate bilateral agreements if the protection of the cultural heritage or foreign policy interests so require (CPTA Art. 7, para. 1).17

14

Ibid. See P. Hänni, ‘Die Schweiz und der Internationale Kulturgüterschutz’ [Switzerland and the International Protection of Cultural Property], Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht ZBL (1999), p. 348 et seq. 16 See Raschèr, op. cit. n. 8, at p. 36. 17 Dispatch of the Federal Council on the UNESCO Convention of 1970 and the Federal Act on the International Transfer of Cultural Property of 21 November 2001, BBl 2002 535, p. 578. In order to conclude such a agreement, three preconditions must be met: a) the scope of the agreement is cultural property that is of significant importance to the cultural heritage of the contracting state, b) the cultural property is subject to export provisions in the contracting state for the purpose of protecting cultural heritage and c) the contracting state grants reciprocal rights. The Confederation may negotiate the exact content of these agreements with 15

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If such an agreement has been concluded, Article 9 of the CPTA provides for repatriation claims in favour of the contracting states in cases of illicit import of cultural heritage into Switzerland.18 Since they are directly targeted at the person possessing the illicitly imported cultural property, these repatriation claims are a matter of private law.19 In the event a person has acquired the cultural property in good faith and is compelled to return it, he or she is entitled to claim compensation for the purchase price and expenses made for necessary and useful maintenance and protection.20 Until compensation has been paid, the person has a right of retention in the cultural property.21 With respect to the question of bona fide, Article 3 of the Swiss Civil Code stipulates a legal presumption that a person has acted bona fide. Therefore, it is the opposing party who has to prove the absence of bona fide or the absence of due diligence. According to the Federal Court, the diligence requirements are strictly applied in businesses exposed to a special extent to goods of questionable provenance, and thus containing a higher risk of defect of title.22 When adopting the CPTA, the legislature introduced a new provision into the Federal Code of Private International Law (CPIL). With respect to actions for the repatriation of cultural property pursuant to Article 9 of the CPTA, jurisdiction is given to the court at the domicile of the registered office of the defendant or at the place where the cultural property is located (CPIL Art. 98a). At present, Switzerland has concluded bilateral agreements with Italy, Peru and Greece23, but for the time being only the agreement with Italy has entered into force (on 27 April 2008).24 These agreements do not apply to

the contracting state in question and adapt it to the specific situation. See P. Gabus and M.-A. Renold, Commentaire LTBC: loi sur le transfert international des biens culturels (LTBC) [Commentary on LTBC: law on the international transfer of cultural property] (Geneva, Schulthess 2006), Art. 7, para. 8. 18 Gabus and Renold, op. cit. n. 17, Art. 9, para. 2; Repatriation claims may be asserted only in the case that the illegally imported object is of significant importance to the cultural heritage of the claiming state (see footnote above) and that this state bears the costs. See CPTA Art. 9 as well as Raschèr, op. cit. n. 8, at p. 38 f. 19 Gabus and Renold, op. cit. n. 17, Art. 9, para. 4; Dispatch of the Federal Council on the UNESCO Convention of 1970 and the Federal Act on the International Transfer of Cultural Property of 21 November 2001, BBl 2002 535, p. 581. 20 Dispatch of the Federal Council on the UNESCO Convention of 1970 and the Federal Act on the International Transfer of Cultural Property of 21 November 2001, BBl 2002 535, p. 581. 21 Raschèr, op. cit. n. 8, at p. 40. 22 BGE [Decision of the Federal Supreme Court] 123 II 134 consid. 6. 23 The agreements are available in the Systematic Collection of Federal Laws at www. admin.ch. 24 Website des Bundesamtes für Kultur: (visited: 5 May 2008). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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cultural property illicitly imported prior to before their coming into force, and do not grant repatriation claims for such property.25 States which have not entered into a bilateral agreement with Switzerland can only apply the regular legal actions for restitution and recovery of movables (e.g. rei vindicatio).26 However, if exceptional events such as armed conflict or natural disaster27 jeopardize a foreign state’s cultural heritage, the Federal Council is authorized to enable the import, transit, and export of cultural property, and to tie it to conditions, limitations, or prohibitions (CPTA Art. 8). Those measures must be limited in time and can be applied to all countries, even those which are not party to the UNESCO Convention of 1970.28 If the Federal Council adopts these limited measures, repatriation claims under Article 9 of the CPTA can also be raised.29 Regarding the definition of the term “armed conflicts”, for Switzerland the Hague Convention and Protocol of 1954 entered into force in 1962. The 1999 Protocol became effective in 2004. To implement the Convention, Switzerland has adopted the Federal Act on the Protection of Cultural Property in the Event of Armed Conflict in 1968 (entering into force). This Act is based on the Convention in content and to some extent also in its terminology. The definition of cultural property in the Act is (almost) identical with that of the Convention.30 Article 3 of the Act defines armed conflicts as declared wars, other armed conflicts between two or more states and armed conflicts that are not international in nature. The term armed conflicts also includes violations of neutrality and resisting these with violence. According to Article 2 of the Act, the protection of cultural property in the event of an armed conflict means both safeguarding such property and treating it with due respect. Safeguarding means to take appropriate measures to prevent or mitigate the effects of an armed conflict. Respecting cultural property requires avoiding theft, vandalism, misappropriation and actions that might damage or destroy cultural property. The obligation to respect cultural property is absolute, i.e. it is unlimited except in cases of military necessity. Therefore, contradictions with the objectives of war are inevitable.

25 See Art. IV, para. 1 lit. b of the agreements with Italy, Greece and Peru, available at . 26 See Article 641 of the Swiss Civil Code as well as Raschèr, op. cit. n. 8, at p. 38. 27 See CPTO Art. 1, lit. i. 28 Raschèr, op. cit. n. 8, at p. 38. 29 See CPTA Art. 9. 30 Cf. Art. 1 of the Federal Act of 6 October 1966 on the Protection of Cultural Property in the Event of Armed Conflict, SR 520.3, and Art. 1 of the Hague Convention.

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The Act on the Protection of Cultural Property in the Event of an Armed Conflict is completed by an Ordinance31 which regulates matters of organisation, staff and finance in a more detailed way. Concerning the organisation, the Confederation ensures the protection of its own cultural property (Art. 5, para. 1 of the Act). It provides support for the Cantons and helps them to implement and coordinate protective measures. The Confederation also grants subsidies for precautionary measures for the protection of cultural property including buildings and other objects of national or regional importance. The Swiss Committee for the Protection of Cultural Property (Art. 9 of the Act) advises the Confederation and the different Federal Offices. According to Article 4, the implementation of the Act is the responsibility of the Cantons unless responsibility lies directly with the Confederation (see Art. 5 of the Act). The Cantons have to financially contribute to the protection of cultural property and adopt the following measures: – – – – –

Create the necessary legislative framework at the cantonal level; Designate an office responsible for the protection of cultural property; Draw up an inventory of cultural property; Create documentation for the safeguard of cultural property; Determine what form of organization is required for the protection of cultural property on a local level; – Train the staff responsible for the protection of cultural property; – Plan the building of shelters for the protection of cultural property. The municipalities are responsible for the building of shelters to protect cultural property, for arranging for suitable staff and organizing refresher courses for staff involved in the protection of cultural property and for the implementation of the planned measures with due notification. Responsibilities of the owner of cultural property are: ensuring that the cultural property in their care is well known, preparing documentation for the safeguarding of cultural property or seeing to it that this is done, and planning ways to protect cultural property. Also the army has responsibilities, namely to treat cultural property with due respect. The officers in the field have the duty to ensure the best possible protection of cultural property when war-related tasks are carried out. The Federal Act on the Protection of Cultural Property in the Event of an Armed Conflict provides for the following protective measures: inventories on every level (Confederation, Cantons, municipalities); documentation, e.g.

31 Ordinance of 17 October 1984 on the Protection of Cultural Property in the Event of an Armed Conflict of 1984, SR 520.31.

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microfilms, on the cantonal level; description of the cultural property by the municipalities; shelters; marking of cultural property, organisation and personal training and information. The Inventories are established for cultural property of international, national, regional and local importance.32 At the request of the Confederation, special emblems for cultural property have been placed on numerous objects. This entails a special protection of the objects in question; namely that the protection can only be waived in exceptional circumstances, e.g. in cases of military necessity. Regarding the shelters, there are two different kinds: the standardized shelters for the protection of valuable cultural property and the auxiliary shelters, which were not originally designed for the protection of cultural property but are nonetheless appropriate for that purpose. 2.1.1.3. Regulation of Export For the purpose of international scientific and cultural exchange, which is a core element of Swiss cultural policy, cultural property listed in the Federal Registry may be exported with authorization of the specialised body on a temporary basis for research, conservation, exhibition or similar reasons (CPTA Art. 5).33 Since the law does not provide for a time frame, doctrine has suggested that the export permit should not exceed one year but be renewable.34 In cases of illicit export of cultural property registered in the Federal Registry, the Federal Council asserts claims for repatriation pursuant to Art. 6 of the CPTA. However, it must be pointed out that assertion of such claims is currently impossible since the Federal Registry does not yet exist.35 At the request of a Canton, the Federal Council will assert repatriation claims for cultural property registered in a cantonal registry and illicitly exported from Switzerland (CPTA Art. 6, para. 2).36 2.1.1.4. Duty of Diligence in the Transfer of Ownership Federal institutions and persons active in the art trade and auctioning business have to observe a duty of diligence when transferring the ownership of cultural property (CPTA Art. 15–17). According to Article 15, paragraph 1 of the CPTA, federal institutions are not allowed to acquire and exhibit cul-

32 Art. 2 of the Ordinance on the Protection of Cultural Property in the Event of Armed Conflict. 33 Raschèr, op. cit. n. 8, at p. 33. 34 Gabus and Renold, op. cit. n. 17, Art. 5, para. 3. 35 Gabus and Renold, op. cit. n. 17, Art. 6, para. 2. 36 Those claims are either asserted as request, i.e. diplomatically or by official law enforcement assistance, or by filing a suit through the ordinary judicial process. Cf. Raschèr, op. cit. n. 8, at p. 36.

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tural property that (a) has been stolen, lost or illegally excavated or (b) is part of the cultural heritage of a state and has been illicitly exported from that state. If such property is offered to a federal institution, the incident must immediately be reported to the specialized body (CPTA Art. 15, para. 2).37 According to the ICOM-Codex, members of the International Council of Museums (“ICOM”) are subject to the same standards.38 ICOM Switzerland has about 1,100 individual and 9 institutional members.39 Article 16 of the CPTA stipulates diligence obligations for the transfer of cultural property. Federal institutions as well as persons active in the art trade and auctioning business40 are allowed to transfer cultural property only when they may assume that the cultural property has not been stolen, lost, illegally excavated or illicitly imported for example, in violation of a bilateral agreement or a limited measure.41 They further have to: a) establish the identity of the supplier or seller and require a written declaration of this person’s power of disposal; b) inform the customers about existing import and export regulations of the contracting states; c) maintain written records on the acquisition of cultural property by specifically recording the origin of the cultural property (as far as it is known) and the name of the seller or supplier, a description as well as the sale price of the cultural property; d) provide the specialized body with all necessary information on compliance to this duty of diligence and e) store records and receipts for thirty years (CPTA Art. 16, para. 2 and 3). Regarding international transfer of cultural property, there is no fundamental difference to national transfer (within Switzerland). If the transfer of property is international, private international law is applicable. According to Article 100 of the CIPL, acquisition and loss of an interest in movable property shall be governed by the law of the place where the property was located at the time when the facts occurred from which the acquisition or the loss derive (para. 1). The extent and the exercise of interests in movable

37

CPTA Art. 15, para. 1 and 2. Dispatch of the Federal Council on the UNESCO Convention of 1970 and the Federal Act on the International Transfer of Cultural Property of 21 November 2001, BBl 2002 535, p. 589. 39 List of members available at: (visited: 5 May 2008). 40 Scope of application according to Art. 16, para. 3 Cultural Property Transfer Ordinance: The provisions regulating the transfer of cultural property (Art. 15–18 CPTA) apply to both federal institutions and persons active in the art trade and auctioning business. The diligence obligations apply to the persons active in the art trade and auctioning business to the extent they are active on a professional basis (Art. 1 lit. e, sub-para. 1 Cultural Property Transfer Ordinance). 41 Dispatch of the Federal Council on the UNESCO Convention of 1970 and the Federal Act on the International Transfer of Cultural Property of 21 November 2001, BBl 2002 535, p. 589. 38

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property shall be governed by the law of the place where the property is located (para. 2). It should be noted that, where cultural property rights can be transferred, the Cultural Property Transfer Act on the level of the Confederation contains no pre-emption right for movable cultural property. The legislations of most of the Cantons, however, provide for pre-emption rights for movable cultural property (and rarely for immovable property).42 To give an example, the Cantonal Act of Fribourg on the Protection of Cultural Heritage of 7 November 1991 stipulates in Art. 25 that the Canton or the municipality has pre-emptive rights for protected movable cultural property if the object in question is of outstanding importance for the Canton’s cultural heritage. According to Article 26, this pre-emption right may be exercised within three months from the day that the Canton gained knowledge of the alienation. In any case, this right is waived if not exercised within 5 years from the day of the alienation. The owner of the cultural property has to notify the competent authority of the alienation. In the Canton of Lucerne for example, alienation of protected movables leads to a notification to the Cantonal Department for Education and Culture,43 and the alienation without notification is null and void.44 2.1.1.5. Redefined Deadlines for Adverse Possession and Acquisition in Good Faith In general, the deadlines for adverse possession and acquisition in good faith are five years according to Swiss law. For cultural property (that is not registered and hence extra commercium), these deadlines have been extended to thirty years (Art. 728, para. 1ter and Art. 934, para. 1bis of the Swiss Civil Code). Since Swiss property law applies to cultural property imported or smuggled into Switzerland (lex rei sitae),45 this extension was considered necessary. The deadline of thirty years is still quite short compared to the deadlines applicable in other European countries. The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects does not yet unfold any legal effect in this context since Switzerland has signed but not yet ratified it.

42 Hänni, loc. cit. n. 15, at p. 360; vergl. LU, Gesetz über den Schutz von Kulturdenkmälern vom 8.3.1960, §11; FR, Gesetz über den Schutz von Kulturgütern vom. 7.11.1991, Art. 25; NW, Gesetz über den Schutz der Kulturdenkmäler vom 4.2.2004, Art. 22; AG, Vollzeihungsverordnung zum Gesetz über die Förderung des Kulturellen Lebens, §18. 43 See Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, §11 and §12. 44 Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, §11 para. 4. 45 Dutoit, IPRG Art. 100, no. 3.

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2.1.1.6. Financial Assistance for the Benefit of Maintaining Cultural Heritage On the basis of Article 14 of the CPTA, the Confederation is empowered to grant financial assistance for the benefit of maintaining cultural heritage. Museums or similar institutions have the option to apply for financial assistance for temporary fiduciary custody and conservatory care of cultural property belonging to the cultural heritage of a foreign state and endangered by exceptional events in that state (Art. 14, para. 1 a).46 Financial assistance may also be granted for projects to maintain the cultural heritage in a contracting state (para. 1 b) and in exceptional cases to ease the restitution of the cultural heritage of a contracting state (para. 1 c). Regarding private owners, the Cantons grant financial assistance (subsidies) for the protection, maintenance and restoration. 2.1.2. The Protection of Immovable Cultural Property Since the protection of immovable cultural property is a cantonal matter,47 there is only limited federal legislation in the field. Of particular importance is the Nature and Cultural Heritage Protection Act of 1966 (below a). Some norms of interest can also be found in the Zoning Act of 1979 (b). 2.1.2.1. Nature and Cultural Heritage Protection Since the Nature and Cultural Heritage Protection Act of 1966 (hereinafter referred to as “NCHPA”) is much older than the Convention Concerning the Protection of the World Cultural and Natural Heritage of 1972, it does not use the same terminology.48 As a matter of fact, the Act does not provide any definition, but merely names a few elements determining its scope of application.49 According to Article 1, the Act is applicable to natural sceneries (heimatliches Landschaftsbild) and natural monuments (Naturdenkmäler).50 On the other hand, the Act provides for the protection of man-made con46 The financial assistance may be granted provided that the fiduciary custody or conservatory care occurs a) in agreement with the other state or b) under the auspices of UNESCO or another international organization for the protection of cultural property. The application must be submitted to the specialized body before any measure is taken and the Federal Office of Culture is authorized to decide on the granting of the financial assistance. See Articles 8 and 9 of the Cultural Property Transfer Ordinance. 47 J.-F. Aubert and P. Mahon, Petit Commentaire de la Constitution fédérale de la Confédération suisse [Small commentary on the Federal Constitution of the Swiss Confederation] (Zurich, Schulthess 2003), Art. 78, para. 3. 48 For the term “Heimatschutz” see B. Wagner Pfeiffer, Umweltrecht II [Environmental Law II] 2nd edn. (Zurich, Schulthess 2006), p. 154. 49 Cf. P. Keller, et al., Kommentar NHG [Commentary on the Federal Act on Protection of Nature and Cultural Heritage] (Zurich, Schulthess 1997), p. 4, para. 2. 50 Natural monuments are single objects of the animate or inanimate nature which are of value from an aesthetic, scientific, historical or other point of view. Such natural monuments are for example deeply symbolic mountains as the Swiss “Matterhorn”, erratic blocks, remark-

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structions and sites such as cultural monuments, heritage sites (heimatliche Ortsbilder) and archaeological or historical sites.51 Since the NCHPA does not provide any definition, the Act does not give a definition of the terms “nature” or “culture”. The law generally uses both terms combined without any distinction. However, with regard to the structure of this law, there are certain sections that only apply to natural objects (e.g. the provisions on moors and marshland). The Nature and Cultural Heritage Protection Act is a public law and therefore enforced ex officio. In addition, Article 12 of the Act grants municipalities and organisations a right to appeal. This right is considered essential for the effective protection of Swiss heritage.52 It is, however, highly controversial. In 2007, Article 12 was modified. According to the new law, organisations can appeal against a federal decision if they are active nationwide, in existence for at least ten years and are aimed at protecting the Swiss natural and cultural heritage.53 But this provision remains disputed. In 2006, a popular initiative was launched which asks for a further limitation on the right to appeal. Under the initiative entitled “Right to appeal of organisations: Down with the politic of impediment: More economic growth for Switzerland”, an appeal would not be possible if the project was approved by public vote or parliament. Public vote on this initiative took place on 30th November 2008. The Federal Council recommended the people to reject the initiative, as it did.54 The Nature and Cultural Heritage Protection Act aims at protecting and conserving the nature and cultural heritage of Switzerland. Article 3 obliges the Confederation and other entities such as institutions and Cantons, fulfilling federal tasks to conserve the characteristic landscape, historical sites as well as cultural and natural monuments, and to preserve them untouched if public interest preponderates. Furthermore, the Confederation shall collaborate and support the Cantons in their task to protect and maintain the Swiss

able trees, cascades, sources or canyons. See Keller, op. cit. n. 49, at p. 12, para. 16 and at p. 19, para. 28. 51 H. Rausch, et al., Umweltrecht, Ein Lehrbuch [Environmental Law, A Textbook] (Zürich, Schulthess 2004), para. 523. Moreover, the Act provides for the protection of animals and plants and the preservation of their natural environment, and moors and marshland of special beauty. For the protection of moors and marshland see B. Waldmann, Der Schutz von Mooren und Moorlandschaften nach Schweizerischem Recht, Inhalt, Tragweite und Umsetzung des Rothenthurmartikels [The Protection of Moors and Marshland under Swiss Law, Contents, Consequences and Implementation of the Rothenthurm-Paragraph] (Fribourg 1997). 52 Keller, op. cit. n. 49, at p. 67, para. 2. 53 Keller, op. cit. n. 49, at p. 259, para. 7 and 8. 54 See http://www.admin.ch/ch/d/pore/va/20081130/det537.html (visited on 19 December 2008). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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natural and cultural heritage.55 The Confederation may also support activities of private organisations active in the field (below 2.1.2.1.2).56 2.1.2.1.1. Protection and Maintenance When fulfilling its tasks, the Confederation is under an obligation to conserve the characteristic landscape, historical sites as well as the cultural and natural monuments and to preserve them untouched if public interest so preponderates (NCHPA Art. 3).57 Fulfilling federal tasks includes the planning, construction or modification of federal buildings and installations, the assignment of licences (e.g. in the transport and energy sector) and authorisations (e.g. for the clearing of forests) as well as the granting of federal subsidies. Whenever such an act affects a protected item, the acting or authorizing agency must impose the conditions and obligations necessary for the protection of the cultural heritage or refrain from the project.58 In making these decisions, the agency relies largely on expert opinion.59 The Nature and Cultural Heritage Protection Act allows for different degrees of protection and therefore distinguishes between objects of national, regional or local importance.60 The Confederation establishes an inventory of objects of national significance after having heard the Cantons, while it is the Cantons’ task to register objects of regional and local significance.61 So objects of national significance are registered in Federal Inventories; objects of regional and local significance are listed in cantonal inventories. There are no hard criteria, however, for evaluating the significance of an object. The Federal Inventories contain objects of national importance. Since there are no general and objective criteria to determine what an object of national significance is, expert opinion is of major importance. The explanation report to the Swiss Inventory for Landscape and Natural Monuments of National Importance states that the national significance of a landscape or another object is recognised in case its form and substance are unique for Switzerland or typical for a part of the country.62 To determine an object’s importance, the Convention of 1972 is of no help, either. As was explained above, the Nature and Cultural Heritage Protection Act, being older than the Convention Concerning the Protection of

55

See Article 1 lit. b of the Act as well as Keller, op. cit. n. 49, at p. 135, para. 9, 10. Article 1 lit. c of the NCHPA. 57 See Wagner Pfeiffer, op. cit. n. 48, at p. 157. 58 Ibid. 59 Ibid. The agency has to follow the expert’s opinion unless there are cogent reasons for not doing so. See BGE [Decision of the Federal Supreme Court] 127 III 273, E. 4.b. and BGE [Decision of the Federal Supreme Court] 125 II 591, E. 7.a. 60 Keller, op. cit. n. 49, at p. 141, para. 7. 61 Dispatch of the Federal Council on the Federal Act for the Protection of Nature and Cultural Heritage of 2 December 1965 III 89, p. 95. 62 Keller, op. cit. n. 49, at p. 194, para. 2. 56

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the World Cultural and Natural Heritage of 1972, does not use the same terminology. For example, regarding the terms “authenticity” and “integrity”, named under the 1972 Convention regime, these terms are not explicitly used as criteria for the registration of objects in Federal Inventories. As to the question of whether to apply federal or cantonal law, cantonal law is to be applied as a rule, unless the Constitution gives a specific competence to the Confederation. Where the Confederation is competent it elaborates its own acts, for instance on the federal registries. Under the 1972 Convention, the tentative list (“liste indicative”) was set up. It was established by a group of experts designated by the Federal Office for Culture and the Federal Office for Environment, Forest and Landscapes and approved by the Federal Council in 2004.63 The relationship between the tentative list and the federal and cantonal inventories is to be understood as follows: the federal and cantonal inventories were both consulted when the tentative list was established.64 To give an example, the Vineyard Terraces of Lavaux, world cultural heritage, is also listed in the Federal Inventory for Landscape and Natural Monuments of National Importance (Bundesinventar der Landschaften und Naturdenkmäler von nationaler Bedeutung; BLN).65 The Federal Inventory lists the objects of national significance, the reasons for this classification, the potential dangers to the objects as well as existing or intended measures of protection.66 Today, there are two federal inventories, one for Swiss heritage sites (e.g. Gruyere, Lucerne), and one for Landscape and Natural Monuments of National Importance (e.g. Jungfrau, Säntis). Interference into an inventoried object can only be allowed if the interference is based on a national interest of at least equal importance.67 The Confederation may impose restrictions on the use and cultivation of the protected sites and it can tie authorisations to convert or rebuild a site to certain conditions. If necessary, it may also decree a long-term building ban. In addition, the Confederation may, by contract or expropriation, acquire an object of national importance or impose security measures (NCHPA Art. 15). In case of an immediate danger, the Confederation has the right to take precautionary measures (NCHPA Art. 16).68 Expropriation is possible against full compensation. The Constitution as well as the NCHPA men-

63 See Federal Office for Culture, Tentative List of Switzerland, Report of the Group of Experts [Liste indicative der Schweiz, bericht der Expertengruppe], p. 3. 64 Federal Office for Culture, Rapport périodique de la Suisse, Section I liste indicative, p. 7. 65 See Federal Office for Culture, Tentative List of Switzerland, Report of the Group of Experts [Liste indicative der Schweiz, bericht der Expertengruppe], p. 23. 66 Wagner Pfeiffer, op. cit. n. 48, at p. 158. 67 Ibid. 68 See for further information: Wagner Pfeiffer, op. cit. n. 48, at p. 161.

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tion this possibility. The expropriation procedures follow the Federal Act on Expropriation. The Nature and Cultural Heritage Protection Act itself only applies to agencies fulfilling federal tasks. Cantonal courts, however, have decided that Cantons, too, are obliged to protect and maintain Swiss heritage inventoried in federal registries when carrying out their duties.69 2.1.2.1.2. Support and Promotion The Confederation shall collaborate and support the Cantons in their duty to protect and maintain the Swiss natural and cultural heritage (Art. 13 et seq.). It may grant subsidies to Cantons and private owners (immovable cultural heritage can be privately owned; it is not per se res extra commercium) for the maintenance of cultural property and for scientific documentation.70 A party receiving subsidies becomes obliged to respect and fulfil conditions and obligations imposed by the Confederation (e.g. opening up the object to public visits).71 These conditions and obligations can be listed in the land register.72 In addition, the Confederation can financially support private organisations dedicated to the protection and maintenance of the Swiss natural and cultural heritage if they are active nationwide and do not pursue economic purposes.73 2.1.2.2. Zoning According to the Constitution, the Confederation shall establish principles on zoning while zoning itself lies within the competence of the Cantons and municipalities. The principles on zoning shall serve to achieve an appropriate and moderate use of the land and its ordered inhabitation (SFC Art. 75). The Federal Act on Zoning of 1979 (hereinafter referred to as “Zoning Act”) provides different instruments and actions which help protect the Swiss cultural heritage. It requires all planning agencies to take into account the protection of the cultural heritage74 and allows for the establishment of special protection zones.75 Special protection zones encompass (a) rivers and lakes, including their borders, (b) landscapes of particular beauty or of natural or cultural impor-

69 For further information see J. Leimbacher, Bundesinventare [Federal Inventories], Series 71, Swiss Association for Land Use Planning (September 2000), p. 68 et seq. 70 See Wagner Pfeiffer, op. cit. n. 48, at p. 160. 71 Wagner Pfeiffer, op. cit. n. 48, at p. 160 et seq. 72 Wagner Pfeiffer, op. cit. n. 48, at p. 161. 73 Fur further information see Keller, op. cit. n. 49, at p. 310, para. 1–9 as well as Wagner Pfeiffer, op. cit. n. 48, at p. 162. 74 Rausch, op. cit. n. 51, at para. 508. 75 Rausch, op. cit. n. 51, at para. 508.

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tance, (c) significant localities, historic sites and natural and cultural monuments, as well as (d) the natural environment of endangered animal and plant species.76 Cantons can decide to protect these objects by means other than special protection zones (Zoning Act Art. 17). Measures must be chosen in light of the object, the purpose of the protection, possible threats and protection measures already in existence.77 The special protection zones are an appropriate measure to protect cultural heritage stretching across a number of properties or the surroundings of a protected site.78 The planning agency determines the boundaries of the zone, states the purpose of the protection and decrees limitations and conditions for the use and cultivation in the zone. These limitations and conditions are binding on the land owners.79 Building bans and building restrictions are the most common measures.80 However, these measures have to respect the right to property. If restrictions of ownership are equivalent to expropriation, the owners must be fully compensated (Article 26 of the Swiss Federal Constitution). 2.2. Cantonal Level The Swiss Cantons have different conceptions regarding the protection of their cultural property. The older conception is mainly aimed at the protection of immovable properties, whereas the more modern concept has a larger understanding of the protection of cultural property and includes also the protection of movables.81 What both conceptions have in common is their reluctance to protect cultural property owned by private parties.82 2.2.1. Inventories All Cantons have established inventories of their cultural heritage.83 These inventories identify the cultural heritage of a Canton (state-owned and privately owned cultural heritage) and allow for rapid interventions in case of imminent danger. However, these inventories are often incomplete because 76

Rausch, op. cit. n. 51, at para. 518. B. Waldmann and P. Hänni, Handkommentar, Raumplanungsgesetz [Commentary, Federal Act on Zoning] (Bern, Stämpfli 2006), Art. 17, para. 28. 78 Waldmann and Hänni, op. cit. n. 77, at Art. 17, para. 31. 79 Rausch, op. cit. n. 51, at para. 530. 80 Ibid. 81 P. Hänni, loc. cit. n. 15, at p. 358. 82 Ibid. 83 See Bern, Cantonal Act on the Preservation of Historical Monuments [Denkmalpflegegesetz] of 8 September 1999, Art. 10–12; Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, § 2; Fribourg, Cantonal Act on the Protection of Cultural Property [Gesetz über den Schutz von Kulturgütern] of 7 November 1991, Art. 44; Aargau, Decree on the Protection Cultural Monuments [Dekret über den Schutz von Kulturdenkmälern] of 14 October 1975, §8. 77

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most Cantons are reluctant to register cultural property owned by private owners and only do so on demand of the owner or with his or her consent.84 Property registered in cantonal inventories may be declared as res extra commercium.85 If registered property is illegally exported, repatriation claims under the Cultural Property Transfer Act are available (CPTA Art. 6, para. 2).86 According to Article 24 of the Act of 7 September 1991 on the Protection of Cultural Heritage of the Canton of Fribourg, movable cultural heritage is not allowed to be alienated without authorisation. In the Canton of Lucerne the alienation or export of protected movables leads to a notification to the Cantonal Department for Education and Culture87. Alienation without notification is null and void.88 The respective Canton is competent to authorise cultural assets that are registered in cantonal inventories for export.89 The consequences of illegal export abroad or to another Canton are also defined by cantonal law.90 According to Article 6, paragraph 2 of the Cultural Property Transfer Act, the competent federal authority can, upon a cantonal application, ask a contracting state for the immediate repatriation of cultural assets that are registered in a cantonal inventory. 2.2.2. Giving Cultural Heritage a Protected Status (Unterschutzstellung) The protected status, called “classing” in several Cantons, has to be distinguished from the inventory.91 In a few Cantons the protected status is put out in two steps. First, the objects worthy of protection are listed in a catalogue. This listing has in principle no legal effect on the rights of the object’s private owners. Second, the objects are explicitly given a protected status, which restricts the owner’s property rights more or less gravely.92 The declaration of a cultural asset having a protected status is an administrative act that creates the obligation to maintain the protected object and to

84 See Bern, Cantonal Act on the Preservation of Historical Monuments [Denkmalpflegegesetz] of 8 September 1999, Art. 20 and 21; Fribourg, Cantonal Act on the Protection of Cultural Property [Gesetz über den Schutz von Kulturgütern], as well as Hänni, loc. cit. n. 15, at p. 359. 85 See CPTA Art. 4, as well Bern, Cantonal Act on the Preservation of Historical Monuments [Denkmalpflegegesetz] of 8 September 1999, Art. 11, para. 2. 86 See supra. 87 See Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, §11 and §12. 88 Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, §11, para. 4. 89 Gabus and Renold, op. cit. n. 17, Art. 5, para. 5. 90 Gabus and Renold, op. cit. n. 17, Art. 4, para. 14. 91 Hänni, loc. cit. n. 15, at p. 360. 92 Ibid.

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authorise any workings on it.93 Such regulations can be found in the legislation of the Cantons Fribourg, Lucerne and Aargau.94 A further restriction of property rights is the requirement of authorisation when a protected object is transferred, pledged or exported. 95 2.2.3. Different Restrictions of Property Rights For the protection of cultural heritage, the Cantons provide for different restrictions of property rights such as pre-emptions, emptions and expropriation.96 Most cantonal legislations know possibilities of expropriation for cases in which the protection of immovable cultural heritage cannot be achieved by other means.97 The correlation thereof is the Canton’s or the community’s obligation to acquire the protected cultural heritage if the concerned proprietary asks for it.98 Pre-emptions and emptions are mostly known in respect of movable cultural heritage and only in exceptional cases for immovables.99 2.2.4. Regulations on the Protection of Archaeological Objects and Places of Discovery Archaeological cultural assets are in many Cantons considered to be especially worthy of protection which is why they are often subject to special regulations.100 Archaeological sites of discovery are very often protected from interference by the creation of protection zones.101 Furthermore, most Cantons have adopted regulations on archaeological excavation and allow 93

Ibid. Cf. Fribourg, Cantonal Act on the Protection of Cultural Property [Gesetz über den Schutz von Kulturgütern] of 7 November 1991, Art. 19–24; Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, § 5, para. 1; Aargau, Decree on the Protection Cultural Monuments [Dekret über den Schutz von Kulturdenkmälern] of 14 October 1975, §12. 95 Hänni, loc. cit. n. 15, at p. 360; cf. Bern, Cantonal Act on the Preservation of Historical Monuments [Denkmalpflegegesetz] of 8 September 1999, Art. 11. 96 Hänni, loc. cit. n. 15, at p. 360 et seq. 97 See Basel, Cantonal Act on the Preservation of Historical Monuments [Gesetz über den Denkmalschutz] of 20 March 1980, § 25; Fribourg, Cantonal Act on the Protection of Cultural Property [Gesetz über den Schutz von Kulturgütern] of 7 November 1991, Art. 27. 98 Hänni, loc. cit. n. 15, at p. 361. 99 Hänni, loc. cit. n. 15, at p. 360; see Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, §11; Fribourg, Cantonal Act on the Protection of Cultural Property [Gesetz über den Schutz von Kulturgütern] of 7 November 1991, Art. 25; Nidwalden, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 4 February 2004, Art. 22. 100 Hänni, loc. cit. n. 15, at p. 364. 101 Ibid.; see Bern, Cantonal Act on Construction [Baugesetz] of 9 June 1985, Art. 86; Schwyz, Cantonal Act on Planning and Construction [Planungs- und Baugesetz] of 14 May 1987, §20; Aargau, Cantonal Act on Land Use Planning, Protection of the Environment and 94

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purposefully search for archeological objects only after having issued an authorization.102 The finders of archaeological objects are obliged to notify of their discovery.103 Article 724 of the Swiss Civil Code is on the trove of unappropriated matters of nature or antiquities of significant scientific value. It states that such objects belong to the propriety of the Canton on whose territory the object was found. Under most cantonal legislation, a claim for such discoveries exists.104 2.2.5. Advice and Financial Assistance Beside the described measures of protection, the Cantons advise and assist private owners in order to promote the protection of cultural heritage.105 By means of individual educational advertising, such as that of craftsmen, architects, constructers, conservators or private owners of cultural heritage, it is attempted to assure a professional maintenance and administration of the objects worthy of protection.106 On the other side, the Cantons grant subsidies for conserving measures and expenditures and the restoration of public or private cultural assets. Thereby, the protection of cultural objects in private ownership can efficiently be promoted. Also, cultural institutions can obtain financial assistance for their activities.107 2.2.6. The Control of the Transfer of Cultural Heritage Only a small number of Cantons have adopted provisions for the prevention of export and movement of cultural assets. A few require authorisation for the transfer of property or for the export of culturally valuable objects. Others have adopted a rule that cultural heritage owned by the Canton is, as a principle, inalienable. Meanwhile some Cantons require notification for translocations or alienation of protected cultural objects.108

Construction [Gesetz über Raumplanung, Umweltschutz und Bauwesen] of 19 January 1993, §40. 102 Hänni, loc. cit. n. 15, at p. 364; see Aargau, Decree on the Protection Cultural Monuments [Dekret über den Schutz von Kulturdenkmälern] of 14 October 1975, §3; Basel, Ordinance to the Cantonal Act on the Preservation of Historical Monuments [Verordnung zum Gesetz über den Denkmalschutz] of 14 April 1982, §17. 103 Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, §15. 104 Hänni, loc. cit. n. 15, at p. 364; see Fribourg, Cantonal Act on the Protection of Cultural Property [Gesetz über den Schutz von Kulturgütern] of 7 November 1991, Art. 39; Lucerne, Cantonal Act on the Protection of Cultural Monuments [Gesetz über den Schutz von Kulturdenkmälern] of 8 March 1960, §13 Abs. 1. 105 Hänni, loc. cit. n. 15, at p. 364 et seq. 106 Hänni, loc. cit. n. 15, at p. 365. 107 Hänni, loc. cit. n. 15, at p. 365. 108 Hänni, loc. cit. n. 15, at p. 362 et seq. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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It must be mentioned, however, that the regulations with respect to the transfer of protected cultural heritage are fairly scanty, and that the export of cultural objects that are privately owned are not restricted by the Cantons.109 2.2.7. Conclusion Immovable cultural heritage owned by legal entities under public law and archaeological sites of discovery are protected in all Cantons. On the contrary, movable cultural heritage is not sufficiently protected in all Cantons. Regarding the transfer of cultural heritage, while many Cantons have adopted specific regulations, such as an obligation for authorisation of export,110 most of the Cantons are still very reluctant to regulate privately owned cultural assets.111 In this context the functioning of the intrastate system between the Confederation and the Cantons will be explained in light of the export of cultural heritage. Article 6 of the UNESCO Convention of 1970 contains a requirement that the contracting states introduce an export certification. The states are free, however to decide the conditions under which such an authorisation will be granted.112 This regulation accords with the principle of cultural nationalism. Under cultural nationalism, each state is free to determine the legality of the exportation of a cultural object.113 By virtue of this, the Confederation can leave it to the Cantons to decide how to best regulate the export of cultural heritage.114 Regarding tangible cultural heritage, the Cantons use very different terms. Some Cantons (those with recent legislation) use terms quite close to the ones in the UNESCO Convention of 1970, while other Cantons do not use the term “cultural heritage” at all, and only cover specific aspects of cultural heritage. However, practical differences in the level of protection seem to be minor. Aside from the export certification, the most important measures of protection are inventories and catalogues of cultural assets worthy of protection. Even though all the Cantons administer such inventories, not all cultural objects considered worthy of protection under the Convention are registered. The reason is that—as mentioned above—privately owned cultural heritage only rarely finds its way into the inventories.115

109 110 111 112 113 114 115

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In summary, it can be said that the Canton’s legislation contains protective measures, such as inventories, disappropriation, pre-emption, emption and the definition of protection zones, but that this protection is nonetheless not all-inclusive. 3. The Protection of Intangible Cultural Heritage Because Switzerland is a patchwork of many different cultures and languages on a very small territory, the basic principle of cultural diversity is fundamental for Switzerland. The cultural diversity is therefore part of the Swiss state concept and positioned in the Preamble of the Swiss Federal Constitution. To preserve and promote the “diversity within the unity”,116 Switzerland follows an active cultural policy. Switzerland recognizes the importance of intangible cultural heritage for the cultural diversity, social coherence, cultural self-understanding and appearance of the country. Many national and regional characteristics are defined through the intangible cultural aspect. Therefore, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage is to be ratified in Switzerland.117 What follows is an overview of the categories of the intangible cultural heritage in Switzerland (3.1). Next, is a presentation of existing law (3.2), followed by the implementation of the UNESCO Convention on Intangible Cultural Heritage (3.3) and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (3.4) in Switzerland. 3.1. Intangible Cultural Heritage in Switzerland Although the term “intangible cultural heritage” is rarely used in Switzerland, the preservation, encouragement and facilitation of traditional cultural expression is positioned in the national promotion of culture.118 There is a wide net of communities, groups and individuals that create, maintain and transmit such heritage. Further, scientific research and archives contribute to the maintenance of the intangible cultural heritage. There are five categories of intangible cultural heritage that can be identified in Switzerland.119

116

Preamble of the Swiss Federal Constitution (SFC). Dispatch of the Federal Council of 21 September 2007 on the Convention for the Safeguarding of the Intangible Cultural Heritage, BBl 2007 7251, p. 7255. 118 Dispatch of the Federal Council of 21 September 2007 on the Convention for the Safeguarding of the Intangible Cultural Heritage, BBl 2007 7251, p. 7269. 119 See http://www.culturaldiversity.cioff.ch/swissRepertoire/en/structure.html. 117

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Music, singing and dance Yodel, alphorn, flag thrower and other Costumes, customs, rituals, and traditional games Theatre, tales and legends, regional dialects and patois Know-how of handicraft, trades, local cooking and traditional cultivation techniques

These categories cannot, however be found in any Swiss legislation. They have been identified by the Swiss Directory of Intangible Cultural Heritage realized under the patronage of The Federal Office of Culture. 3.2. Legal Framework of the National Swiss Law According to Article 69 of the Federal Constitution of the Swiss Confederation, the Confederation as well as the Cantons hold competence in the domain of culture. A general and primary competence is apportioned to the Cantons,120 while the Confederation is granted only a subsidiary competence to support cultural heritage of national interest and to promote art and music, particularly in the field of education.121 It should be noted, however, that the communities and groups are one of the main holders of intangible cultural heritage. Since the Swiss federalism is very strong on a very small territory, and since culture is mainly a competence of the Cantons and communities, the ramifications of the cultural activities and support are very large. For instance, the Cantonal Act on Cultural Affairs of the Canton of Fribourg states that cultural activities and the protection of the cultural heritage are mainly the concern of private persons (Cantonal Act on Cultural Affaires of May 24, 1991, BDLF 480.1, http:// www.fr.ch/v_ofl_bdlf_pdf/en_vigueur/deu/4801v0004.pdf). Another example is the Canton of Grisons that provides for state support for private persons, groups and communities (Art. 2, para. 1 of the Cantonal Act on the Promotion of Culture of 28 September 1997). The communities and groups are defined by their activities. They are usually only supported if their projects or activities are of special interest to the Canton, the Confederation or interlingual or intercultural exchange, and if the project or activity is partly self-financed. An example thereof is Article 11 of the Cantonal Act on the Promotion of Culture of the Canton of Grisons which puts up the following criteria for a cantonal support of a cultural project: the quality of the project, its importance for the Canton of Grisons, the accessibility for different sections of the population and partial self-financing.

120 121

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The federalist approach is in one sense problematic, as a high effort of coordination is required. On the other hand, the federalist approach is legitimate due to the country’s extraordinary cultural diversity.122 3.2.1. Federal Level The term “intangible cultural heritage” is not contained in the Confederation’s legislation (i.e. it is not clearly or systematically defined in Swiss law), nor is there a specific duty to promote and preserve intangible cultural heritage. However, even though there is no conceptual division between tangible and intangible heritage in Switzerland, the law at the Confederation level does provide for the protection and encouragement of both.123 Most Acts cover either tangible or intangible cultural heritage. However, there are a few overlaps and some provisions (e.g. related to financing) that concern both. Moreover, intangibles can play a role in the determination of tangibles as being part of the protected cultural heritage. For example, the activity as well as the actual handiwork of rustic arts is protected. Even though Swiss legislation does not specifically mention “holders”, the term “culturally active persons” is used in the context of Swiss law protecting intangible cultural heritage. The general understanding is that persons active in the field of intangible cultural heritage are holders of it. 3.2.1.1. The Competent Authorities The Federal Office of Culture is the strategic organ responsible for the elaboration and implementation of the Confederation’s cultural policy and the necessary framework. This Federal Office is furthermore competent for the elaboration of enactments and responsible for international relations and conventions in the field of culture. The Federal Office of Culture’s activities can be divided into two main pillars. On one side, it focuses on cultural production and cultural diversity. On the other side, it concentrates on the preservation and impartation of culture. The first pillar of “cultural production and diversity” embodies the protection and promotion of the fields of film, visual arts, and design, the protection of language minorities and travelling communities as well as cultural education for adults and the sponsorship of Swiss schools abroad. The second pillar of “preservation and impartation of culture” embodies the fields of monument protection, the support of archives and the Confederation’s collections, the international transfer of cultural heritage and the contact point for stolen art.124 122 R. Schweizer, ‘Der neue Kulturartikel der Bundesverfassung’ [The New Constitutional Provision on Culture], vol. 2/II/120 Zeitschrift für Schweizer Recht (2001), p. 197. 123 Dispatch of the Federal Council of 21 September 2007 on the Convention for the Safeguarding of the Intangible Cultural Heritage, BBl 2007 7251, p. 7270. 124 Report on the Financing of the Activities of the Foundation «Pro Helvetia» for the years 2008–2011, p. 8, available at: http://www.bak.admin.ch/bak/dokumentation/gesetze/ Toshiyuki Kono - 978-90-04-18991-1 index.html?lang=de. Downloaded from Brill.com06/15/2023 02:01:07AM

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Another institution that puts into effect the national policy of the arts is the Foundation «Pro Helvetia», which is an independent body that protects and promotes culture at the Confederation level in the fields of visual arts, music, literature, theatre and dance. Its primary activity is the sponsorship of cultural activities in Switzerland and in its network abroad, but also the realisation of its own projects and activities. Further, the foundation fulfils the function of a centre for information and documentation.125 Moreover, the Federal Office of Foreign Affairs supports cultural projects in the fields of development (Swiss Agency for Development and Cooperation), diplomatic relations (Competence Centre for Cultural Foreign Policy) and the appearance of Switzerland abroad (Presence Switzerland).126 Those authorities coordinate their activities and set their objectives in consideration of their respective functions.127 3.2.1.2. The Existing Law The competent authorities act on the basis of different laws such as the Federal Constitution of the Swiss Confederation, international conventions, and federal acts, ordinances and guidelines. The following legal sources are considered authoritative for the protection of intangible cultural heritage: 3.2.1.2.1. Swiss Federal Constitution First of all, the Federal Constitution of the Swiss Confederation sets the general competencies and incorporates the purpose clause, as found in Article 2 (2) of the Federal Constitution of the Swiss Confederation, which requires the promotion of cultural diversity. The Confederation supports and encourages cultural activities of national interest, arts and music, particularly in the field of education (Article 69 (2) of the Federal Constitution of the Swiss Confederation). Activities of national interest exclude in principle activities and efforts of a purely regional or local character.128 A positive description of the term “cultural activities of national interest” is rather difficult to relate due to its vagueness.129 The Federal Council interpretated this term by saying that an activity is of national interest when it refers to the constitutional safeguard of existing institutions and activities (e.g. the Foundation «Pro Helvetia») or when it refers to the establishment of an appropriate framework for cultural

125

Ibid., pp. 8–9. Ibid., pp. 7–8. 127 Ibid., p. 8. 128 Dispatch of the Federal Council of 20 November 1996 on a new Federal constitution, BBl 1997 I 1, p. 286. 129 A. Raschèr, et al., ‘Kulturförderung des Bundes—Chancen und Grenzen des neuen Kulturartikels’ [Promotion of Culture of the Confederation—Chances and Limits of the New Toshiyuki Kono - 978-90-04-18991-1 Constitutional Provision on Culture], Aktuelle JuristischeDownloaded Praxis (2001), p. 1042. from Brill.com06/15/2023 02:01:07AM 126

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activities.130 Thereby, the criteria for cultural activities being of national interest are strongly related to the content of the respective activities and to the relation to other competences of the Confederation. The criteria could thus be interpreted as weighing the contribution of the activity to the promotion of inner cohesion (Article 2 (2) of the Federal Constitution), to the understanding and exchange between different language communities (Article 70 (3) of the Federal Constitution) or the importance of the respective cultural activity for individual and social responsibility (Article 6 and 41 (1) (g) of the Federal Constitution).131 Of further importance could be the geographical expansion, the supra-regional attention, the exchange with other countries, the implementation of international obligations, or the participation of the population that accompanies a respective cultural activity.132 What could furthermore be taken into account is whether a cultural activity contributes to a sense of identity or whether it promotes Swiss cultural endeavours or expressions. Finally, the Confederation’s support has to follow the principles of distributive justice and cultural plurality. However, precise objectives and financial guarantees or a general subsidiary competence for the promotion of culture are missing on the constitutional level. A general competence can only be found in the field of education in arts and music.133 The Federal Constitution of the Swiss Confederation contains three provisions for the protection of the existing languages in Switzerland that are also protected under the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.134 In Article 4 of the Swiss Constitution, Italian, German, French and Rhaeto-Romanic are defined as languages of the country. Article 18 encompasses the freedom of language and Article 70 contains legal principles concerning languages. The content of Article 70 can be divided into four different domains. Article 70 (1) defines the official languages of the Confederation, which are the same as the languages of the country. Article 70 (2) fixes the principle of territoriality, while Article 70 (3) contains the obligation of the Confederation and the Cantons to promote understanding and exchange between the different language communities. Paragraphs 4 and 5 envelope the Confederation’s and the Canton’s competencies in furtherance of the language minorities, especially Italian and Rhaeto-Romanic.135 130 Dispatch of the Federal Council of 6 November 1991 on the Article on Cultural Promotion in the Federal Constitution (Art. 27septies), BBl 1992 I 576/77. 131 Ibid.; Schweizer, loc. cit. n. 122, at pp. 201–202. 132 Raschèr, loc. cit. n. 129, at pp. 1042–1043. 133 Schweizer, loc. cit. n. 122, at p. 203. 134 Art. 2 (a) of the UNESCO Convention of October 17, 2003 for the Safeguarding of the Intangible Cultural Heritage: oral traditions and expressions, including language as a vehicle of the intangible cultural heritage. 135 SFC Art. 70; Dispatch of the Government of the Canton of Grisons of 16 May 2006, booklet 2/2006-2007, p. 77; available at: http://www.gr.ch/Botschaften/2006/2_2006.pdf.

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3.2.1.2.2. Implementation of the Constitutional Foundations into Federal Law 3.2.1.2.2.1. Theatre, Music, Dance, Literature The Federal Office for Culture does not have primary competence to support specific projects in the field of theatre, dance, music or literature but can only support such organizations in a general way.136 In these fields, the protection and promotion is assured by the Foundation «Pro Helvetia».137 According to Article 1 of the Federal Act on the Foundation «Pro Helvetia», the purpose of the Foundation is to preserve and promote culture and to maintain the relations to foreign countries. The Foundation’s activities are described in Article 2 (1) of the Federal Act as follows: a. the maintenance of the Swiss intellectual heritage (“Geistesleben”) and the protection of the country’s cultural character having regard to the folk culture b. the encouragement of the Swiss producing pillowed on the free operating forces in the Cantons as well as in the different linguistic and cultural areas c. the encouragement of the exchange of cultural values between the linguistic and cultural areas d. the cultivation of international cultural relations, particularly through advertisement for the understanding of the Swiss intellectual and cultural heritage

Thereby, the Foundation works together with, and coordinates the work of existing institutions and associations. In absence of existing structures, the foundation conducts its own activities.138 In concrete terms this means that «Pro Helvetia» not only finances projects, but can also organise and realize its own activities.139 There are general requirements for a project to be supported by the foundation. First, the project must be conducted by Swiss citizens or by persons having their domicile in Switzerland. Further, the projects must cover important aspects of the cultural life in Switzerland and encourage exchange between different language regions or exchange with other countries.140 Other requirements include a general accordance with the Foundation’s purpose and take into account the project’s quality, professionalism, cost-benefit ratio and its national or international importance.141

136

Cf. below 3.2.1.2.2.4. See www.bak.admin.ch; Federal Act of 17 December 1965 on the Foundation «Pro Helvetia», SR 447.1 and the corresponding Ordinance of 22 August 2002, SR 447.12. 138 Art. 2, para. 2 of the Federal Act on the Foundation «Pro Helvetia». 139 Art. 1, 3 and 4 of the Ordinance on the Contributions of the Foundation «Pro Helvetia». 140 Art. 5, para. 2, ibid. 141 Art. 5, para. 1, ibid. 137

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Contributions in the field of music are aimed at innovative projects and works irrespective of the category of music they are about. Further, projects and works in the field of folk music receive support.142 In the field of literature and humanities, «Pro Helvetia» supports the creation of literary works that cover culturally important topics, or those that encourage cultural relations between Switzerland and other countries. The Foundation provides further support for the translation of literature that discusses such important themes.143 Article 11 of the Ordinance on the Contribution of the Foundation «Pro Helvetia» encompasses the financial support of productions and performances of contemporary Swiss theatre and dance groups as well as Swiss choreography. A further category of intangible cultural heritage that is supported by «Pro Helvetia» is folk culture and culture resulting from the everyday life dealing in a creative way with the present.144 Further, the Foundation backs projects that discuss current social themes, that encourage intercultural dialogue, or that are at the interface of culture and education.145 The Foundation received an indefeasible fund of 100,000 CHF, and receives yearly payments in the amount determined every four years by Federal Decision.146 Also every four years, the foundation defines its priorities for the next period. In the years 2004–2007 the Foundation «Pro Helvetia» spent 137 Mio CHF and put its main focus on dance, communication within Switzerland and cultural dialogue.147 For the years 2008–2011, the Foundation plans to focus on the promotion and communication of arts and culture, on exchange with Asia, on translation, and on co-productions between Switzerland and other countries. Cultural diversity and an abundance of folk culture will also remain of basal importance in the coming years, although it does not figure among the defined focal points.148 The Federal Council granted 135 Mio CHF for the period 2008–2011.149 In the context of theatre, music and literature, it is important to mention that Switzerland has taken an engagement to protect intellectual property. Regarding the issues of misappropriation and/or misuse of intangible cul-

142

Art. 9 of the Ordinance on the Contributions of the Foundation «Pro Helvetia». Art. 10, ibid. 144 Art. 12 (a), ibid. 145 Art. 12 (b), ibid. 146 Art. 3 of the Federal Act on the Foundation «Pro Helvetia». 147 Dispatch on the Financing of the Activities of the Foundation «Pro Helvetia» for the years 2008–2011, pp. 11–12. 148 Ibid., p. 12, pp. 15–16. 149 Ibid., p. 15. 143

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tural heritage, Switzerland has adopted a federal act on copyright and related protection rights (Federal Act of 9 October 1992 on Copyright and Related Protection Rights [Bundesgesetz über das Urheberrecht und verwandte Schutzrechte], SR 231.1, AS 1993 1798), which protects the originator of works in the field of arts and literature, as well as the practicing/performing artists (Art. 1 a and b). The term “arts and literature” encompasses literary, scientific and other linguistic works, musical and acoustic works, as well as works of fine art such as painting, sculpture or graphic design. Further protection is due to works with a technical or scientific content (graphs, drawings or plans), architecture, applied arts, photographic, cinematic and other visual works, choreography and pantomime (Art. 2, para. 2). The rights of culturally active persons that can be drawn from the federal act on copyright are various. Among them are the right of recognition of creatorship (Art. 9, para. 1), the right of first publication (when, how, under what designation, Art. 9, para. 2), the right to decide on the utilisation of the work (Art. 10) and the right on the work’s integrity (Art. 11). The protection of creatorship is provided on two levels. First, there is a protection under private law (Art. 61ss). Second is a protection under criminal law (Art. 67ss). The Federal Act on Copyright and Related Protection Rights is to be revised in accordance with the WIPO Copyright Treaty ([WIPO-Urheberrechtsvertrag], SR 0.231.151, AS 2008 2503) and the WIPO Performances and Phonograms Treaty ([WIPO-Vertrag über Darbietungen und Tonträger], SR 0.231.171.1, AS 2008 2515) effective in Switzerland on 1 July 2008. Further, Switzerland has ratified the Bern Convention on the Protection of Literary and Artistic Works that came into effect on 25 September 1993 ([Berner Übereinkunft zum Schutz von Werken der Literatur und Kunst], SR 0.231.15, AS 1993 2659), the Universal Copyright Convention, in effect on 21 September 1993 ([Welurheberrechtsabkommen], SR 0.231.01, AS 1993 2635) and the Agreement on Trade-Related Aspects of Intellectual Property Rights that came into effect on 1 July 1995 (appendix No. 1C of the Convention on the Formation of the WTO, SR 0.632.20, AS 1995 2117). 3.2.1.2.2.2. Traditional Cultivation Techniques Decision of the Federal Assembly of 3 May 1991 on the Financial Support for the Maintenance and the Care of Subnatural Cultural Landscapes150 The term “subnatural cultural landscape” describes not only the sum of natural realities, but also the result of human activity. The landscape forms part of the “lived past” and reflects people’s thinking, feeling, organisation of work

150

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and realisation of cultural values with respect to their environment.151 As a result, the scope of protection covers landscapes of which the existence is related to a specific activity. In Switzerland, this mainly concerns agricultural production and techniques such as traditional ways of pasturing, baling hay, the additional use of orchards as pastures or the use of alpine terraces.152 For the protection of subnatural cultural landscapes and the related traditional ways of production, Switzerland has created funding based on the Federal Decision of 3 May 1991 on the Financial Support for the Maintenance and the Care of Subnatural Cultural Landscapes. This funding is not to be confused with “Pro Helvetia”. The basic principle is contained in Article 1 as follows: 1. […] within the existing financial means, the Confederation grants financial support for the maintenance and care of subnatural cultural landscapes. 2. It [the Confederation, A.N.] establishes a special fund for the sourcing of this financial support.

Article 2 of the decision contains a non-exhaustive list of measures that can be supported by the Confederation. According to Article 2 (b), the financial support can be used to ‘ensure and promote traditional ways of utilization and cultivation that are in accordance with the respective localisation’. The beneficiaries of the fund are Cantons, communities, and other public corporations or independent public institutions (Article 3), and the granted support equals up to 80% of the recipient’s costs (Article 4). 3.2.1.2.2.3. Cultural Education Federal Act of 18 June 1987 on Scholarships for Foreign Students and Artists153 The Confederation grants scholarships for artists to facilitate their education and professional development (Article 1 (1) (c)). The scholarships encompass a yearly financial support, extra pay for special expenditures, and support for professional and linguistic preparation (Article 2 (1)). Federal Act of 9 October 1987 on the Promotion of the Education of Swiss Citizens Living Abroad and the Corresponding Ordinance of 29 June 1988154 The Confederation supports Swiss schools and associations abroad. Apart from the aim to facilitate access to Swiss schools and professional education

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Report of 17 June 1991, of the Federal Assembly’s Workgroup on the Parliamentary Initiative Concerning a Foundation for Landscape Protection, BBl 1991 I 935, p. 937. 152 Ibid., pp. 941–947. 153 SR 416.2. 154 SR 418.0 and SR 418.01. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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for Swiss citizens living abroad, the cultural education and identity is of great importance. Swiss schools and associations abroad organize cultural activities. To be entitled to financial support from the Confederation, the schools have to fulfil several requirements; including lessons in Swiss geography, history, civic education and at least one national language. Federal Act of 6 October 1989 on the Promotion of Extracurricular Youth Work155 The main intent of this Federal Act is to legally anchor the promotion of extracurricular youth work and the right of participation in youth organizations. A further aim is the recognition and revaluation of youth work as a culturally and socially important activity.156 “Extracurricular youth work” includes activities that are mainly from young people for young people, promoting personal development and the perception of national-political and social responsibility, and encompasses work of young people in the field of culture (Article 2 (2) (c)). The Confederation grants support in different forms. It can grant financial support on a yearly basis or on the basis of a specific project. Further, the Confederation may provide material support, by providing equipment or reducing transport costs, etc. (Article 5 (1) and (2)). The recipients of such the federal support are associations, organizations and groups that work mainly in the field of youth work (Article 3). Thus, the active participation of youth organizations in the field of sports, health, nature and environment, education, culture and society is a key element of this law.157 This can also be seen in Article 6 (1) of the respective Federal Act that says that the financial support cannot exceed 50% of the organization‘s costs, which encourages the organizations themselves to contribute to the realisation of their projects and activities.158

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SR 446.1. Dispatch of the Federal Council of 18 December 1987 on the Promotion of Extracurricular Youth Work, BBl 1988 I 825, p. 845. 157 Art. 2, para. 1 and 2 of the Federal Act of 6 October 1989 on the Promotion of Extracurricular Youth Work, SR. 446.1. 158 Dispatch of the Federal Council of 18 December 1987 on the Promotion of Extracurricular Youth Work, BBl 1988 I 825, p. 858. 156

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Guidelines of the Federal Office of Home Affaires of 20 January 1992 on the Utilization of the Credit for the Support of the Cultural Education of Adults159 The Federal Office of Home Affaires supports organizations that are active in the education of adults in respect to culture and in particular, access to cultural life.160 It therefore grants financial support on a yearly basis.161 3.2.1.2.2.4. Cultural Organisations Guidelines of the Federal Office of Home Affairs of 16 November 1998 on the Utilization of the Credit fort the Support of Cultural Organizations162 The Federal Office of Culture provides financial support for organizations of professional artists or culturally active layman, as well as umbrella associations or federations of organizations. Organizations of all cultural categories receive an advantage so long as their members come from different parts of the country and exercise their activities in at least two language regions.163 The financial support is granted on a yearly basis.164 In the year 2005, for example, the Federal Office for Culture supported 36 organizations in the categories of music, theatre, literature, dance and visual arts. The amount that was available in that year was 3,930,300 CHF.165 3.2.1.2.2.5. Linguistic and Cultural Minorities Federal Act of 7 October 1994 Concerning the Foundation “Future for Swiss Travellers”166 This Federal Act establishes a foundation for the benefit of Swiss travellers in order to secure and upgrade their situation, but also to maintain their cultural self-understanding.167

159 See http://www.bak.admin.ch/bak/themen/kulturfoerderung/00536/00545/index.html?lang=de. 160 Art. 1 and 2 (a) of the Guidelines on the Utilization of the Credit for the Support of Cultural Education of Adults. 161 Art. 3, para. 1 and Art. 5, para. 2. 162 See http://www.bak.admin.ch/bak/themen/kultur. 163 Art. 1, para. 1 and 2 para. 1 of the Guidelines for the Utilization of the Credit for the Support of Cultural Organizations. 164 Art. 3, para. 1. 165 See http://www.bak.admin.ch/bak/themen/kulturpolitik/00455/index.html?lang=de. 166 SR 449.1. 167 Art. 1 of the Federal Act on the Foundation “Future for Swiss Travellers”.

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Federal Act of 6 October 1995 on the Financial Support for the Maintenance and the Promotion of the Rhaeto-Romanic and the Italian Languages and Cultures168 and the corresponding Ordinance169 The purpose of this Federal Act is to accord federal financial support to the Cantons of Grisons and Ticino for the maintenance and promotion of the Rhaeto-Romanic and Italian languages and cultures that are in danger of disappearance from the linguistic scenery of Switzerland.170 This funding is aimed at supporting general cantonal measures, organisations and institutions that maintain and promote the two endangered languages and respective cultures, while also supporting publishing and the press in Rhaeto-Romanic and Italian languages.171 General cantonal measures are measures in the field of education and science, of the consistent usage of the two languages as the official language, and of the maintenance and promotion of the cultural and linguistic identity.172 3.2.2. Cantonal Level As the Confederation is competent in all external affairs, it is the Confederation’s task to ratify and implement international Conventions. However, in many matters, including culture, the Confederation has to rely on cooperation with the Cantons. Therefore, the primary competence in cultural matters rests, as mentioned above, with the Cantons. There are 26 Cantons in Switzerland, which are all, to a certain extent, sovereign and have their own specific dialect or language, history and culture. The following presents several cantonal laws that touch upon intangible cultural heritage. The selection made is based on several criteria. The four languages spoken in Switzerland are considered, as well as rural and urban regions. The geographic location (east, north, etc.) is a further criterion taken into account. It must be noted that the range of cantonal regulations on culture is very broad. Some Cantons have specific laws on the promotion of culture, including intangible cultural heritage, while others have merely adopted the indispensable regulations based on federal mandates. As mentioned above, Swiss legislation distinguishes between protection of culture (“Kulturpflege”) and promotion 168

SR 441.3. SR 441.31. 170 Art. 1 of the Federal Act of 6 October 1995 on the Financial Support for the Maintenance and the Promotion of the Rhaeto-Romanic and Italian Languages and Cultures, SR 441.3; Dispatch of the Federal Council of 6 October 1995 on the Federal Act on the Financial Support for the Maintenance and the Promotion of the Rhaeto-Romanic and Italian Languages and Cultures, BBl 1995 II 1241, p. 1243. 171 Art. 21 of the Federal Act on the Financial Support for the Maintenance and the Promotion of the Rhaeto-Romanic and Italian Languages and Cultures. 172 Art. 1 of the Ordinance on the Financial Support for the Maintenance and the Promotion of the Rhaeto-Romanic and Italian Languages and Cultures. 169

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of culture, rather than between tangible and intangible cultural heritage. Protection of culture encompasses mainly the Convention’s notion of tangible cultural heritage, while promotion of culture means the support of the actual working, creating and performing process, for example, rather the intangible cultural heritage. However, the legislation overlaps and the competent authorities are often insufficiently definite. 3.2.2.1. Grisons The Canton of Grisons is the largest Canton in Switzerland, and the only one to house three languages on its territory (German, Italian and RhaetoRomanic). Formative for the Canton of Grisons is its rural environment and mountain space.173 Article 90 of the Cantonal Constitution of Grisons calls for the promotion of artistic, cultural and scientific production as well as the cultural exchange, taking into account the linguistic diversity and regional characteristics of Grisons.174 The general principles of the cantonal promotion of culture, namely the observance of the cultural and linguistic diversity and the principle of subsidiarity regarding the support coming from institutions, individuals and communities,175 are also contained in the Cantonal Act on the Promotion of Culture176 and the corresponding Ordinance.177 The competent authority is the Cantonal Department for Culture which coordinates the state support for cultural matters and the functions of different cultural institutions. The office contains the Commission for the Promotion of Culture and a commission that is responsible for cultural competitions. The Commission for the Promotion of Culture examines different projects and recommends some of them to the government for support. Equally, it nominates artists for cantonal awards and advises the government on cultural matters.178 The Commission for Cultural Competitions decides the awarding of scholarships and contributions to specific works.179

173 http://www.gr.ch/Deutsch/seiten.cfm?idnav1=1&idnav2=7&seite=/Deutsch/ Land&Leute/zahlenfakten.cfm; http://de.wikipedia.org/wiki/Graubünden. 174 Constitution of the Canton of Grisons of May 18, 2003, SR 13.226. 175 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 1, para. 2 and Art. 2, para. 6. 176 Ibid. 177 Grisons, Ordinance on the Federal Act on the Promotion of Culture [Kulturförderungsverordnung] of 12 January 1998. 178 Grisons, Ordinance on the Federal Act on the Promotion of Culture [Kulturförderungsverordnung] of 12 January 1998, Art. 2. 179 Grisons, Ordinance on the Federal Act on the Promotion of Culture [Kulturförderungsverordnung] of 12 January 1998, Art. 7.

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The Canton of Grisons is active in the fields of music, singing, theatre, dance and literature,180 as well as in layman and folk culture.181 Further, the cantonal support encompasses scientific research on the cultural and living space of Grisons, youth culture, and persons professionally engaged in the cultural sector.182 The measures are either one-time or yearly financial contributions for cultural projects and cultural institutions.183 The one-time financial contributions are based on several cumulative criteria contained in Article 11 of the Cantonal Act on the Promotion of Culture of 28 September 1997. Decisive factors are the quality of the project, its reference to the Canton of Grisons, and the possibility of access for different sections of the population. Institutions have to assume an important cantonal function or be of regional importance to be supported by the Canton.184 Further, the Canton supports singing and music schools with yearly financial aid185 and administers its own cultural institutions.186 The Canton also awards prizes, scholarships and contributions for specific creations187 and supports specialized courses and priority programmes for the concerted amelioration of the cultural work and the procurement of culture.188 In addition, the Confederation’s principles concerning languages189 were incorporated into the Cantonal Constitution of Grisons of 18 May 2003. Article 3 of the Constitution encompasses anchoring the Italian, German and Rhaeto-Romanic languages as official languages of the Canton, the Canton’s obligation to maintain, administer and promote the Italian and Rhaeto-Romanic languages, the principle of territoriality, and the respect of

180 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 3, para. 1. 181 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 3, para. 2. 182 Grisons, Ordinance on the Federal Act on the Promotion of Culture [Kulturförderungsverordnung] of 12 January 1998, Art. 4, 12 and 13. 183 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 2, para. 1 and 2. 184 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 6. 185 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 7. 186 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 2, para. 3 and Art. 5, para. 3. 187 187 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 12 and 15; Grisons, Ordinance on the Federal Act on the Promotion of Culture [Kulturförderungsverordnung] of 12 January 1998, Art. 8 and 9. 188 Grisons, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 September 1997, Art. 14 and 15; Grisons, Ordinance on the Federal Act on the Promotion of Culture [Kulturförderungsverordnung] of 12 January 1998, Art. 13 and 14. 189 SFC Art. 18 and 70.

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community autonomy to decide on the official and academic languages of their territory.190 In support of these constitutional principles, the Canton of Grisons adopted the Cantonal Act on languages of 19 October 2006 and the corresponding Ordinance of 11 December 2007.191 The purposes of this legislation are defined in Article 1 of the Cantonal Act on languages: 1. The purposes of this Act: a. to strengthen the trilingualism as a characteristic of the Canton; b. to tighten the awareness of the trilingualism in respect of individuals, society and institutions; c. to procure the exchange between and the living together of the cantonal language communities; d. to maintain and promote the Italian and Rhaeto-Romanic languages; e. to support the endangered language Rhaeto-Romanic with specific measures; f. to create the prerequisites for a cantonal institute of trilingualism.

The Cantonal Act on languages regulates the utilization of the cantonal official languages by the cantonal authorities and courts, the measures to maintain and promote the Italian and Rhaeto-Romanic languages and cultures, as well as the allocation of communities to language regions and the cooperation between the Canton and other Cantons, communities or associations.192 Of importance for the intangible cultural heritage and the implementation of the UNESCO Convention into national cantonal law, are however, only the measures concerning the maintenance and promotion of the Italian and Rhaeto-Romanic languages and cultures, and the cooperation of the different parties concerned in this field. For example, the Canton contributes to the “Lia Rumantscha”, the “Pro Grigioni Italiano” and the “Agentura da Novitads Rumantscha” on a repeating basis.193 The “Lia Rumantscha” is an umbrella organization and non-profit institution that promotes the Rhaeto-Romanic language and culture by order of the Confederation and the Canton of Grisons. It supports and coordinates the regional organizations for procurement of the endangered language and culture. The regional organizations are organized according to different thematic priorities as follows: applied linguistics (translations, linguistic concepts, development of the written and spoken language), schools, and continuing education and publishing. In the field of culture, the “Lia

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Dispatch of the Government of the Canton of Grisons of 16 May 2006 concerning the Cantonal Act on Languages, booklet 2/2006–2007, p. 78; available at: http://www.gr.ch/ Botschaften/2006/2_2006.pdf. 191 Grisons, Cantonal Act on Languages [Sprachengesetz] of 19 October 2006. 192 Grisons, Cantonal Act on Languages [Sprachengesetz] of 19 October 2006, Art. 2. 193 Grisons, Cantonal Act on Languages [Sprachengesetz] of 19 October 2006, Art. 11. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Rumantscha” develops, realizes and advises cultural projects and supports inter- and supra-regional projects with a Rhaeto-Romanic background.194 The “Pro Grigioni Italiano” is an association that is also subsidised by the Canton and the Confederation. According to its bylaws, the association promotes all manifestations of the Grisons-Italian life that is directed towards the amelioration of the cultural and existential conditions of the Italian Grisons.195 This includes the protection and promotion of the Italian language and culture, the conservation of the Italian-Grisons cultural heritage, the support of cultural activities, and cultural exchange.196 The association’s activities are divided into different sectors, amongst which is the promotion of the arts. This sector encompasses the planning, coordination and realisation of projects in all fields of the arts including music, dance, theatre and folklore.197 The “Agentura da Novitads Rumantscha” is a foundation which follows the purpose of supporting the media in Rhaeto-Romanic language. It is also mainly subsidised by the Canton and the Confederation.198 Furthermore, the Canton grants financial aid to communities, statutory corporations under public law, as well as private institutions. Financial support is granted for projects and measures for the protection and promotion of the Rhaeto-Romanic or Italian languages, and for the promotion of understanding between the different language communities. Further, the Canton supports newspapers and magazines, as well as the drafting, translation and publication of scientific papers and literary works. Finally, the Canton funds courses in Rhaeto-Romanic and Italian languages, and bilingual schools.199 3.2.2.2. Appenzell Ausser Rhoden The prevalent forms of intangible cultural heritage found in Appenzell Ausser Rhoden are music—traditional as well as modern—and traditional customs, rituals, costumes and painting.200 Characteristic for Appenzell Ausser Rhoden is the coexistence of self-contained traditional and progressive cultural forms.201 The cultural landscape is dispersed and the initiatives of individuals or loose associations, rather than larger cultural centres or fixed institutions,

194

See http://www.liarumantscha.ch/98+M5d637b1e38d.0.html. See http://www.pgi.ch/. 196 Art. 2 of the Bylaws of the Association “Pro Grigioni Italiano”; available at: http://www .pgi.ch/pgi/statuto_pgi2007.pdf. 197 Concept of the Commission on the promotion of Culture of the Association “Pro Grigioni Italiano”, p. 1; available at: http://www.pgi.ch/pgi/promozione/Concetto%20COPRA. pdf. 198 See http://www.anr.ch/index_d.htm. 199 Non-conclusive catalogue of measures in: Grisons, Cantonal Act on Languages [Sprachengesetz] of 19 October 2006, Art. 12. 200 Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 15, 17; available at: www.ar.ch/Inneres/kulturfoerderung/kulturkonzept.pdf. 201 P. 8, ibid. 195

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are determinant.202 Therefore, the Canton wants to clarify and strengthen its cultural support in the coming years and has already taken important steps in this direction. In 1995 Appenzell Ausser Rhoden adopted a new constitution203 that, in Article 49 (1), obliges the Canton and the communities to promote culture. As a result, the adoption of a cantonal act to substantiate this constitutional base became necessary.204 On 1 August 2006 the Cantonal Act on the Promotion of Culture205 and the corresponding Ordinance206 came into effect. At the same time, the Canton created the Office of Culture and thereby established an important basis with which to strengthen cultural support and democratically legitimate the promotion of culture on the cantonal level.207 The main task of the cantonal promotion of culture is the material and ideal support of cultural institutions and artists through the procurement, integration, coordination and advice in the cultural field. Thus there are three main concerns. First, the cultural dispersion characteristic of the cultural landscape in the Canton should be obtained and strengthened. Second, the tension between traditional and contemporary culture should enjoy special attention. And third, the procurement of culture should be strengthened, particularly among children and young people.208 The role of the Canton and communities in the field of culture is defined in Articles 1 and 2 of the Cantonal Act on the Promotion of Culture:209 Art. 1 1. The Cantons and Communities promote the cultural diversity of the presence and cultivate the cultural heritage; 2. They provide for a framework that allows for cultural activities and manifold cultural exchange in the public domain; 3. In the completion of their tasks, they heed the freedom of the persons producing or procuring culture.

Art. 2 1. The Canton and the Communities promote the cultural creation and procurement (. . .);

202

Pp. 15, 17, 18, ibid. Constitution of the Canton of Appenzell Ausser Rhoden of 30 April 1995. 204 Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 12. 205 Appenzell Ausser Rhoden, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 November 2005. 206 Appenzell Ausser Rhoden, Ordinance on the Promotion of Culture [Kulturförderungsverordnung] of 4 July 2006. 207 Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 11. 208 P. 27, ibid. 209 Appenzell Ausser Rhoden, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 November 2005. 203

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2. They campaign for an animated examination of the traditional cultural heritage as well as its fostering, exploration and procurement.

The Canton fulfils this role in collaboration with the Confederation, the communities and private sponsors. Furthermore, the Canton fulfils the function of a centre of competence in cultural questions. It imparts specific knowledge, coordinates information and is responsible for the cooperation between communities, Cantons, the Confederation and individuals, as well as between artists, institutions and organizers of cultural events.210 Besides the cantonal Office for Culture, there is the Council for Culture that constitutes a permanent commission of five persons who are elected by the government. Its functions are primarily the realisation of the cantonal cultural concept, the determination of promotion criteria and measures, as well as the examination of the yearly and project-bound financial aid exceeding 5,000 CHF. Further, the Council for Culture formulates strategies and priorities for cultural promotion, accompanies projects, and initiates its own events.211 The cantonal support is directed toward the maintenance and promotion of diverse cultural scenery. Therefore, Appenzell Ausser Rhoden supports all fields of culture, containing intangible cultural heritage in the form of dance, performance, music, theatre, literature, folk culture, traditional customs, rituals and costumes, as well as daily traditions.212 The general principles therefore are the principle of subsidiarity and the principle that financial support is in accordance with the financial power of the recipient, the importance of the project, and total costs. Further, the promotion of culture is part of the federal system, meaning that the Canton supports projects of regional or cantonal importance, while the communities support primarily the local work and activity of associations.213 The support measures are diverse, also. They include support of the creating process, diffusion, exchange and procurement of culture, as well as the documentation, communication and the furtherance of structures.214

210 Appenzell Ausser Rhoden, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 November 2005, Art. 9, para. 1; Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 26. 211 P. 31, ibid. 212 Appenzell Ausser Rhoden, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 November 2005, Art. 4, para. 2. 213 Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 34. 214 Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 33.

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The instruments for the support of culture are project-based and yearly financial contributions for cultural institutions215 or individuals,216 as well as a cantonal prize for culture. The Canton attaches great importance to the free promotion of projects and therefore invests 30–40 % of the available funds for culture into such projects.217 Furthermore, the Office for Culture acts as a contact point for cultural questions, advice and exchange and thereby supports culture in an indirect way.218 The conditions and criteria to be supported by the Canton are based on the following eight pillars: the project’s feasibility, quality, relevance, resonance and emission, potential and professionalism, sustainability, authenticity and innovation. Further, the respective project must have a reference to the Canton and not be profit-oriented.219 In the year 2006, the Canton invested around 3 Mio CHF into culture, of which around 1.5 Mio CHF were used for the promotion of culture. This equals 53 CHF per person per year.220 In comparison to the expenditure for culture in Switzerland, the Canton of Appenzell Ausser Rhoden is well below the Swiss average, which is 112 CHF per person per year.221 In the year 2007, the Canton had subsidies of 1.31 Mio CHF for cultural matters. The cultural fund is financed by the regular cantonal budget on one side, and by lottery funds on the other side.222 It can be expected that the financial support will remain unchanged in the coming years.223 Apart from the limited financial sources, the transparency of the cantonal support is insufficient, resulting in unnecessary and unavoidable duplications of resources in the past due to the unclear apportionment of competences (i.e. between the Canton and the Foundation on Culture). This apportionment should become clearer with the new Cantonal Act on the Promotion of Culture. Further weaknesses in cultural promotion are the large discrepancies between the different communities within the Canton and the lack

215 Appenzell Ausser Rhoden, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 November 2005, Art. 4, para. 1; Appenzell Ausser Rhoden, Ordinance on the Promotion of Culture [Kulturförderungsverordnung] of 4 July 2006, Art. 5 and 6. 216 Appenzell Ausser Rhoden, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 November 2005, Art. 4, para. 2; Ordinance on the Promotion of Culture [Kulturförderungsverordnung] of 4 July 2006, Art. 7. 217 Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 8. 218 P. 32, ibid. 219 P. 35, ibid.; Ordinance on the Promotion of Culture [Kulturförderungsverordnung] of 4 July 2006, Art. 10. 220 Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 21. 221 P. 9, ibid. 222 Appenzell Ausser Rhoden, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 28 November 2005, Art. 5, para. 2. 223 Concept of Culture 2008 of the Canton of Appenzell Ausser Rhoden, p. 32.

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of networking and exchange.224 Therefore, those fields are the focus of the cultural concept for the coming years.225 3.2.2.3. Bern There are four relevant Articles for the protection of the intangible cultural heritage in Constitution of the Canton of Bern.226 First, there is Article 4 of the Constitution of Bern which is about meeting the concerns of the cultural, regional and linguistic minorities. Article 6 anchors the bilingualism of the Canton, while Article 22 sets up the principle of freedom of culture. Further, there is Article 48, which says: 1. the Canton and the Communities facilitate the access to culture. They foster the cultural producing as well as the cultural exchange; 2. they thereby account for the needs of all parts of the population and for the cultural diversity in the Canton.

In the Canton of Bern there are two authorities responsible for the promotion of culture. On one side, there is the cantonal office for the promotion of culture (containing a German and a French language section) that deals with the application for singular or recurrent financial contributions. Its main task is the support of professional artists in the Canton of Bern. The support is put into cultural projects and events that meet certain formal and artistic requirements, such as having a convincing relation to the Canton, financial participation of third parties, the project’s importance and effect, its innovative approach, as well as its inner coherence. On the other side, there is the Agency of Cultural Commissions227 which is responsible for the cantonal tendering, awards and foreign exchange sponsorships. It administers the secretary and is in charge of the cultural activities of the different commissions.228 The supported categories that are relevant to the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage are music, dance, theatre, literature and “other categories” which include folk art, the fostering of dialects, and cultural history.229 Article 4 of the Cantonal Act on the Promotion of Culture of 11 February 1975230 states the following: 224

P. 19, ibid. P. 40, ibid. 226 Constitution of the Canton of Bern of 6 June 1993, SR 131 212. 227 Bern, Cantonal Decree on the Cultural Commissions [Dekret über die Kulturkomissionen] of 11 March 1998. 228 See www.erz.be.ch/site/index/kultur/kulturfoerderung.htm. There are Commissions for the categories arts and architecture, applied arts, music, literature, film and photography, theatre and dance. 229 See http://www.erz.be.ch/site/index/kultur/kulturfoerderung/kulturfoerderung-kultursparten.htm. 230 Bern, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 11 February 1975. 225

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eva maria belser, eva rüegg and eva molinari Domains of the cantonal promotion and fostering of culture The cantonal promotion and fostering of culture ranges particularly over: a. The maintenance and the protection of the traditional cultural heritage (archaeological architecture and art monuments, the collection of museums, libraries and archives, folk art, dialects, customs, etc.); b. The work and the research on literature, fine and applied arts, architecture, handcraft, music, theatre, cultural science, film, photography and cultural activities in general; c. The cultural exchange; d. The spreading and procurement of cultural values, particularly through its regard in schools of all grades; e. The support of the special needs of language minorities; f. The support of the special needs of travellers.

The cantonal financial support follows the principle of subsidiarity.231 The Canton contributes up to 50% of the needed funds. The rest is provided by the communities and third parties.232 To provide for the efficiency and cooperation between the different sponsors, there is the “Regional Conference on Culture”.233 The cities and the communities surrounding them organize themselves in associations and participate at the conference. The purpose is to facilitate the communities’ participation in the financing of the cultural centres of the Canton. Their contribution is set at 10–15% of the needed funds.234 The Canton of Bern uses three instruments for the promotion of culture. First, the Canton contributes financially to projects and events.235 Second, the Canton gives recurrent financial aid to institutions and organizations that are of at least regional importance.236 This requires that the cultural institutions and organizations address themselves to a broad public, play an important role in the maintenance and transmission of cultural heritage, and provide a platform for current developments. The third category of instruments for the promotion of culture takes the form of direct contributions to culturally

231 Bern, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 11 February 1975, Art. 1. 232 Bern, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 11 February 1975, Art. 11, para. 4; Cultural Strategy for the Canton of Bern, January 2008; available at: http://www.erz.be.ch/site/kulturstrategie_dt..pdf, pp. 6–7. 233 Bern, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 11 February 1975, Art. 13 g; Ordinance on the Regional Conference on Culture [Verordnung über die regionale Kulturkonferenz] of 23 May 1997. 234 Bern, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 11 February 1975, Art. 13 b; Cultural Strategy for the Canton of Bern, January 2008; available at: http:// www.erz.be.ch/site/kulturstrategie_dt..pdf, p. 7. 235 Bern, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 11 February 1975, Art. 11, para. 1. 236 Bern, Cantonal Act on the Promotion of Culture [Kulturförderungsgesetz] of 11 February 1975, Art. 11, para. 2.

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active persons. These direct contributions can vary, including, for example, prizes, awards, scholarships, or the appropriation of studios.237 The cantonal contribution to the promotion of culture grew steadily in the past eight years. In the year 2000, the Canton invested 40,965 CHF into the promotion of culture, increasing that amount to 50,985 CHF in the year 2006. This amounts to a contribution of 50 CHF per person (without archaeology, preservation of ancient monuments and administrative charges), which places Bern in the middle when compared to all other Cantons. In comparison to those Cantons with larger cities on their territory, Bern trails behind.238 Weaknesses in the cantonal promotion of culture include the allocations between the different actors (cities, communities and the Canton). This allocation is not accurately defined, and not all communities participate in the financing of culture. Second, the cooperation is often unattended. A third matter is the financial imposition on the city of Bern. Bern subsidies 33–39% of the funds needed for large institutions such as the historic museum and the city theatre or Bern’s symphonic orchestra. Further, rather neglected domains are the control of finances, the procurement of culture, and the organisation of music schools.239 To ameliorate these weaknesses in the cantonal promotion of culture, Bern focuses on different strategic points. First of all, the Canton wants to strengthen the presence of culture in the cantonal schools, particularly in music and cultural projects. Second, it is working to create a catalogue of clear criteria for the support of cultural projects and on a support programme that sets a clear course and priorities. Lastly, the Canton hopes to improve the legal framework for culturally active people.240 3.2.2.4. Fribourg The Canton of Fribourg, located in the west of Switzerland, is a bilingual Canton where French and German are spoken.241 Fribourg anchors the esteem of the cultural diversity amongst the cantonal objectives in Article 3 of its Constitution.242 Article 79 of the Constitution covers culture as follows:

237 Cultural Strategy for the Canton of Bern, January 2008; available at: http://www.erz. be.ch/site/kulturstrategie_dt..pdf, p. 8. 238 P. 8, ibid. 239 P. 10, ibid. 240 Pp. 13–14, ibid. 241 Http://www.fribourgtourisme.ch/en/navpage.cfm?category=InformationsFR&subcat=F ribourgRegionFR&id=144365. 242 Constitution of the Canton of Fribourg, of 16 May 2004, SR 131.219.

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Article 79: Culture 1. The Canton and the Communities promote and support the cultural life in its diversity as well as the artistic work. 2. They foster the cooperation and cultural exchange between the regions within and beyond the Canton.

In the Canton of Fribourg, cultural activities and the protection of cultural heritage is primarily the concern of private individuals.243 The Canton advocates the promotion of culture and functions in the field of cultural production. The Canton participates further in the protection of cultural heritage by contributing to its maintenance and to its accentuation.244 To fulfil these tasks, the Canton created the Cantonal Office for Culture which is in charge of the realisation of the cultural policy. It particularly allocates subsidies and is responsible for the cooperation and the supervision of the different cantonal institutions. The communities participate and contribute to the maintenance and the promotion of culture, too. But their primary field of function is the realisation of cultural events.245 It can hence be said that the Canton primarily supports culturally active professionals, while the communities are primarily responsible for the realisation of cultural projects.246 The Canton and communities can, however, contribute subsidiarily to other principal tasks. The measures the Canton can take to fulfil its tasks are contained in Articles 6 and 8 of the Cantonal Act on Cultural Affaires of 24 May 1991. It includes regulations for private individuals, takes the necessary organisational measures, creates and administers cultural institutions, is concerned with the promotion of cultural life in all school grades, and accords subsidies. There are different types of subsidies in the Canton of Fribourg.247 The first type is ordinary subsidies, which are a yearly financial contribution to the administrative costs of an association, organization or group that is active in the field of culture. An ordinary subsidy is only granted when the applicant’s activity is of outstanding importance for the Canton, and when it can verify a perennial practice in the particular field.248

243 Fribourg, Cantonal Act on Cultural Affairs [Gesetz über die kulturellen Angelegenheiten] of 24 May 1991, Art. 2, para. 1. 244 Fribourg, Cantonal Act on Cultural Affairs [Gesetz über die kulturellen Angelegenheiten] of 24 May 1991, Art. 4. 245 Fribourg, Cantonal Act on Cultural Affairs [Gesetz über die kulturellen Angelegenheiten] of 24 May 1991, Art. 3. 246 See http://admin.fr.ch/secu/de/pub/praesentation/mission.htm. 247 Fribourg, Cantonal Act on Cultural Affairs [Gesetz über die kulturellen Angelegenheiten] of 24 May 1991, Art. 9. 248 Fribourg, Regulation on Cultural Affaires [Reglement über die kulturellen Angelegenheiten] of 10 December 2007, Art. 10.

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The second type of cantonal financial contribution to the promotion of culture is extraordinary subsidies. These are one-time contributions granted for the realisation of a cultural project. The conditions for this type of financial support are that the project is realized in the cantonal territory, that it is of more than local interest, that it is of outstanding importance to the cultural life of the Canton, and that it receives financial support from the concerned local organizations and institutions.249 Further, the Canton can contribute financially or otherwise to a cultural production process that is in direct relation to the Canton’s cultural life. The following requirements are imposed on the applicant: the applicant must live in the Canton of Fribourg or have a close relation to the cultural life of the Canton. The applicant’s project must be considered interesting. The applicant must verify the accomplishment of a professional education on the respective territory (or have similar experience), and the applicant must provide half of the funds needed for the project.250 This third form of subsidy can also be granted on a perennial basis, usually for three years.251 The Canton also supports cultural events. The funds for this are derived from the cantonal fund for culture.252 In addition, the Canton grants scholarships for the promotion of literature and a cantonal prize of maximum 20,000 CHF for groups or individuals.253 Further, the Canton provides for studios in Fribourg and abroad, and supports school projects.254 Concerning the above mentioned activities of the Canton of Fribourg, the Cantonal Act and Ordinance on Cultural Affaires does not say anything about the fields to receive support, meaning that all cultural fields can benefit from the cantonal financial aid. In the year 2007, the Canton of Fribourg had 3,000,000 CHF available for its activities. Of these funds, 80% were used for the production of culture and the other 20% for the realisation of cultural events.255

249

Fribourg, Regulation on Cultural Affaires [Reglement über die kulturellen Angelegenheiten] of 10 December 2007, Art. 11. 250 Fribourg, Regulation on Cultural Affaires [Reglement über die kulturellen Angelegenheiten] of 10 December 2007, Art. 12. 251 Fribourg, Regulation on Cultural Affaires [Reglement über die kulturellen Angelegenheiten] of 10 December 2007, Art. 13. 252 Fribourg, Regulation on Cultural Affaires [Reglement über die kulturellen Angelegenheiten] of 10 December 2007, Art. 15. 253 Fribourg, Regulation on Cultural Affaires [Reglement über die kulturellen Angelegenheiten] of 10 December 2007, Art. 21 and 26. 254 See further information on http://admin.fr.ch/secu/de/pub/kuenstlerateliers/im_ausland.htm; http://admin.fr.ch/secu/de/pub/kultur_und_schule/auffuehrungen.htm. 255 Report and Accounts of the Canton of Fribourg of 2007, available at: http://admin.fr.ch/ dics/de/pub/rechenschaftsberich.htm. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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3.2.2.5. Ticino In the Canton of Ticino, which is an Italian speaking Canton, the promotion of culture is also anchored in the Cantonal Constitution.256 In Article 4, the constitution guarantees the promotion of culture. However, the implementation of this constitutional guarantee through cantonal acts does not reach as far as that of other Cantons. There is no general cantonal act for the promotion of culture or intangible cultural heritage. What does exist, however, is a cantonal regulation for the safeguard and promotion of the Italian culture and language,257 which is based on a federal act regarding the same matter.258 The federal funds are used for general measures to safeguard and promote the Italian language, for organizations and institutions that work to safeguard and promote the Italian language and culture, and for publishing activities in the Italian speaking part of Switzerland.259 Further cantonal measures for the safeguard of the intangible cultural heritage is the Canton’s contribution to the “Fund for the Orchestra of the Italian part of Switzerland”. The Canton supports this fund with a yearly amount of 2,900,000 CHF.260 In addition, the Canton of Ticino has adopted a legislative decree on the participation of the State [of Ticino] in the increase of the artistic heritage and a corresponding regulation. The Canton thereby supports mainly the tangible cultural heritage, since it merely regulates the acquisition of artistic works that are destined for collections, public buildings or places, and graphics for official publications. With respect to the intangible cultural heritage there are two cantonal authorities that are of importance. First, there is the Commission of Culture, the activities of which cover all fields of culture, including dance, theatre, music and publishing activities. The Commission administers federal contributions and contributions derived from the “Intercantonal Lottery Fund” and the “Fund Cinema”. In addition, the Commission participates in the elaboration of cultural projects and is active in the controlling of cultural activities and institutions. Most importantly, the Commission for Culture examines the requests for cantonal financial support for cultural activities.261 256

Constitution of the Canton of Ticino of 15 December 1997. Ticino, Cantonal Regulation on the Federal financial Aid for the Safeguard and the Promotion of the Italian Culture and Language [Regolamento sull’ aiuto finanziario federale per la salvaguardia e la promozione della lingua e cultura italiana] of 10 November 1981. 258 Federal Act on the Financial Support for the Maintenance and the Promotion of the Rhaeto-Romanic and Italian Languages and Cultures of 6 October 1995, SR 441.3. 259 Ticino, Cantonal Regulation on the Federal financial Aid for the Safeguard and the Promotion of the Italian Culture and Language [Regolamento sull’ aiuto finanziario federale per la salvaguardia e la promozione della lingua e cultura italiana] of 10 November 1981, Art. 1. 260 Ticino, Decree on the Constitution of the “Fund for the Orchestra of the Italian Part of Switzerland” [Decreto legislative sulla costituzione della “fondazione per l’orchestra della Svizzera italiana”] of 5 November 1990. 261 A. Cencini, Due Parole sulla Commissione Culturale Cantonale [Two Words on the Cantonal Commission for Culture], pp. 1–2, available online at: http://www3.ti.ch/osservatorioculturale/allegati/documenti/Due%20parole%20sulla%20Commissione%20Culturale.pdf. Toshiyuki Kono - 978-90-04-18991-1 257

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The second cantonal authority meriting consideration is the “Cultural Observatory of the Canton of Ticino”. The observatory collects and renders accessible information on the cultural activities in the Canton, reflects and documents the development and the strategies of the cantonal support of culture, and is active in the fields of formation and cooperation between different cultural actors in Ticino.262 3.3. Implementation of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage Even though the term “intangible cultural heritage” does not figure in the Confederation’s legal sources, Swiss federal law does already cover a great part of the measures provided by the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (hereinafter referred to as “the Convention”) that is to be ratified in Switzerland.263 First, the Confederation’s general policy is largely in accordance with the purposes of the Convention, which are the safeguarding of intangible cultural heritage, respect for the communities, groups and individuals, efforts to raise awareness and appreciation of the intangible cultural heritage, and the provision of international cooperation and assistance.264 In comparison with the measures provided in the Convention, Swiss federal law does not yet go so far. Switzerland has, as mentioned above, adopted a general policy for the safeguarding of culture in accordance with Article 12 (a) of the Convention, but it abstains from a distinct programme concerning the intangible cultural heritage. Rather, the protection of the intangible cultural heritage is imbedded in various federal acts, decisions, guidelines and specific programmes that encompass different elements of such cultural heritage. Examples include the Federal Act on the Foundation «Pro Helvetia» and the Decision on the Financial Support for the Maintenance and the Care of Subnatural Cultural Landscapes. A specific programme for the safeguarding of intangible cultural heritage was realized within the priorities of the Foundation «Pro Helvetia» in the years 2004–2007. It was a programme for the promotion of dance in Switzerland and contained measures with respect to education, retraining, infrastructure, promotion, information, maintenance and honours. The project was realized by the Federal Office for Culture in collaboration with the Foundation «Pro Helvetia», the Cantons, cities and dance associations.265 262 Communication on the Cultural Observatory of the Canton of Ticino, of 9 March 2007, p. 1, available at: http://www.ti.ch/decs/temi/stampa/2007/070309_OsservatorioCulturale/ ZZZ070309-01-ComunicatoStampa-OsservatorioCulturale.pdf. 263 Dispatch of the Federal Council of 21 September 2007 on the Convention for the Safeguarding of the Intangible Cultural Heritage, BBl 2007 7251, p. 7253. 264 Art. 1 of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage. 265 Final Report of on the “Project Dance”, September 2006, available at http://www.bak. admin.ch/bak/dokumentation/studien/index.html?lang=de. Toshiyuki Kono - 978-90-04-18991-1

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The Confederation has further competent bodies for the safeguarding of intangible cultural heritage and is active in studies and research, mainly based on the competence of the Federal Office for Culture or the Foundation «Pro Helvetia».266 Thereby, Switzerland is active with respect to Articles 13 (b) and (c) of the Convention. In matters of cultural education, the Confederation has specific competence contained in Article 69 (2) of the Federal Constitution of the Swiss Confederation. There are several Federal Acts that settle the educational efforts of the Confederation. Further, it must be pointed out that cultural education is mainly carried out by cultural organisations, associations or societies. Therefore, the Confederation supports such institutions according to the guidelines of the Federal Office of Home Affairs of 20 November 1992 on the Utilization of the Credit for the Support of Cultural Organizations.267 In the year 2005, for example, the Confederation supported around 30 organizations in the fields of dance, music, theatre and literature.268 Nonetheless, it focuses not only on organisations that educate, but also on public institutions such as universities where there is for example a postgraduate diploma course in “Swiss folk music”. There is such an institution in Lucerne.269 Thus, the Confederation knows measures that are in accordance with Article 14 (a) of the Convention. The Confederation is also active with regard to Articles 15 and 19 of the Convention. The participation and cooperation of communities, groups and associations is of great importance in Switzerland. This is due first and foremost to the limitations on the Confederation’s competence. The participation and cooperation of the Cantons, communities and cities, as well as the different organizations, is particularly important in a federal state where the competencies and responsibilities are greatly decentralized. The Confederation finances a part of the expenses of a specific programme and fosters in this way the active participation and cooperation of the different actors in the cultural field. However, backlog still exists. Therefore, there must be greater efforts to harmonize and coordinate state support. The participation of the different actors is also explicitly anchored in federal law, for example, in Article 2 (2) of the Federal Act on the Foundation «Pro Helvetia». In accordance with Article 19 of the Convention, Switzerland ensures active cooperation not only within the nation, but also with other cultures and countries. This aim is contained in the Federal Act, as well as the corre266 E.g. Study of the University of Geneva on behalf of the Federal Office for Culture on the “Project Dance”, cf. also http://www.bak.admin.ch/bak/dokumentation/studien/index. html?lang=de. 267 See http://www.bak.admin.ch/bak/themen/kulturpolitik/00455/index.html?lang=de. 268 Ibid. 269 Report on the Ratification of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, p. 15.

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sponding Ordinance on the Foundation «Pro Helvetia», with Article 1 setting the purpose as administration of the international relations. The activities of the Foundation «Pro Helvetia» were, in the years 2004–2007, to strengthen its field offices abroad and to foster international collaboration and cooperation.270 Moreover, one of its main focuses during those years was the intercultural dialogue with regard to long-term partnerships with other states.271 Further, by conducting a consultation of the viewpoint of the Cantons on the ratification of the Convention,272 the Confederation informed the competent cantonal authorities about the Convention’s provisions and recommended their adoption according to Article 35 (b) of the Convention. What is missing in the Swiss legislation is a clear identification and documentation of the existing intangible cultural heritage, but there are efforts to rectify this matter. The Swiss Section of the International Council of Organizations of Folklore Festivals runs a pilot project for the listing of the Swiss intangible cultural heritage. However, since this list is based on a voluntary inscription by the concerned communities, groups and individuals, the Swiss Confederation must establish inventories that cover the whole State territory to fulfil the Convention’s requirements.273 In conclusion, it can be said that the Swiss Confederation fulfils an important part of the Convention’s requirements, but that there is no explicit safeguarding of the intangible cultural heritage separate from the general protection of culture. Further, the legal sources are numerous and the competences not easily definable. To fill this gap, the Federal Council has created and adopted a general law on the promotion of culture274 and completely revised the Federal Act concerning the Foundation «Pro Helvetia».275 These two laws are at the moment being reconsidered by the Parliament; but they have not been enacted yet. The crucial points about the Federal Act on the Promotion of Culture are its unification of the various legal sources in respect to the concretization of Article 69 of the Swiss Constitution, and its fostering of the transparency and clarity of federal support for culture. It should further advance the coordination between the Confederation, the Cantons, the cities and the communities, and set up a clear allocation of competencies between the different actors.276 270 Dispatch on the Financing of the Activities of the Foundation «Pro Helvetia» for the years 2008–2011, p. 11. 271 Ibid., p. 12. 272 Cf. the Report on the Results on the Consultation on the Ratification of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of June 2007. 273 Ibid., p. 17. 274 See http://www.bak.admin.ch/bak/themen/kulturpolitik/00450/index.html?lang=de. 275 Ibid. 276 Dispatch of the Federal Council on the Federal Act on the Promotion of Culture, pp. 7–8.

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According to the Dispatch on the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, the Swiss Federal Act on the Promotion of Culture can be seen as the direct implementation of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.277 3.4. Implementation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions Cultural diversity is of fundamental importance in Switzerland. This is evidenced by the fact that many different cultures and languages exist in Switzerland, and also by the fact that the Cantons hold the primary competence in the field of culture. The diversity of its own culture and the exchange with other cultures are seen and respected as a key factor of the Swiss identity. Therefore, Switzerland was already active in the development of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression (hereinafter referred to as “the Convention”) and is now ratifying it.278 The Convention allows Switzerland to fulfil its constitutional mandate by referencing to basic principles that are recognized in an internationally respected instrument of law. The Federal Constitution of the Swiss Confederation itself contains the ideals of the ‘respect of the diversity within the unity’,279 the promotion of cultural diversity,280 and the consideration of all cultural and linguistic regions in the field of culture.281 Further relevant principles contained in the Swiss Federal Constitution are the imperative of understanding and exchange between the language communities and the diversity and quality of film.282 Since the Convention also embodies the principle of media diversity, the Confederation can be strengthened to fulfil Article 93 (2) of the Swiss Federal Constitution,283 which guarantees basic provisions in the field of cultural diversity relative to the opinion forming process. The Confederation, the Cantons and the communities follow an active cultural policy that is largely in line with the Convention’s requirements. It is therefore not necessary for Switzerland to change or adjust its existing law. Rather, the Convention serves to strengthen the already existing legal frame-

277 Dispatch of the Federal Council of 21 September 2007 on the Convention for the Safeguarding of the Intangible Cultural Heritage, BBl 2007 7251, p. 7276. 278 See http://www.bak.admin.ch/bak/themen/kulturpolitik/0083/index.html?lang=de. 279 Preamble of the Federal Constitution of the Swiss Confederation. 280 SFC Art. 2, para. 2. 281 SFC Art. 69, para. 3. 282 SFC Art. 70, para. 2 and Art. 71, para. 2. 283 SFC Art. 93, para. 2.

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work by legitimating the maintenance and development of measures for the protection and promotion of the diversity of cultural expressions.284 4. Appendix: Legal sources 4.1. Federal Acts Systematische Sammlung des Bundesrechts (SR) [Systematic Collection of Federal Laws]: www.admin.ch 4.2. Cantonal Acts – – – – – – – – –

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Aargau: http://www.ag.ch/sar/index.htm?/sar/sar.htm Appenzell Ausser Rhoden: http://www.bgs.ar.ch/ Basel: http://www.gesetzessammlung.bs.ch/sgmain/default.html Bern: http://www.sta.be.ch/belex/d/ Fribourg: http://admin.fr.ch/publ/fr/pub/recueil_syst_matique.htm Grisons:http://www.navigator.ch/gr/lpext.dll?f=templates&fn=main-h. htm&vid=de Lucerne: http://srl.lu.ch/sk/srl/default/first.htm Nidwalden: http://www.navigator.ch/nw/lpext.dll?f=templates&fn=main-h. htm Schwyz: Systematische Gesetzessammlung des Kantons Schwyz (SRSZ): http://www.sz.ch/xml_1/internet/de/application/d999/d2522/d943/p945. cfm Ticino: http://www.ti.ch/CAN/temi/rl/

284 Report on the Ratification of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, p. 14.

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TAIWAN Ming-Yan Shieh* and Chung-Hsi Lee** 1. General Issues .......................................................................................... 2. Tangible Cultural Heritage .................................................................... 2.1. Manners of Protection ................................................................... 2.2. Determination of the Competent Authority for Immovable as Cultural Heritage ............................................................................. 2.3. Process of Determination .............................................................. 2.4. Movables ........................................................................................... 3. Intangible Cultural Heritage .................................................................. 3.1. Safeguarding of Intangible Cultural Heritage ............................ 3.2. Misappropriation of Traditions .................................................... 4. Beyond Preservation ................................................................................

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1. General Issues The cultural heritage in Taiwan is generally protected by the Cultural Heritage Preservation Act (CHPA), which was enacted in 1982 and most recently amended in 2005. The category of cultural heritage in this law is described in Article 3, which is divided into seven different groups: 1. Historic sites, buildings and gathering habitations which were built for the human being’s demand of daily life with historic and cultural value. 2. Archaeological sites which contain historic objects, sites and places of the human being’s former life with historic and cultural significance. 3. Cultural vistas which form the place and coherent environment of fairy tale, legend, event, historic happenings, gathering life or ceremony. 4. Traditional arts: Traditional technology and artistic works among groups and villages that were carried on, including traditional technical arts and performance arts. 5. Folk customs and related cultural artifacts: customs relating to the folk life, tradition and beliefs, festivals and other related artifacts with special cultural significance.

* Dr.; Professor of Law, National Taiwan University (Taiwan). ** Dr.; Assistant Professor of Law, Chung Yuan Christian University (Taiwan). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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6. Antiquities: objects having historical or artistic value made by man. 7. Natural vistas which are natural areas, rock formations, plants and rocks designated as being of value in preserving natural value. CHPA was influenced by the Japanese legal system, and is not only to protect indigenous peoples’ culture, but also to protect all kinds of cultural heritage in this country. As to specific law for indigenous culture, Taiwan has just enacted a new law, named the Protection Act of Traditional Intellectual Creation of Indigenous People (PATIC), which was passed in 2007. The Constitution of Taiwan has been amended several times in recent decades. The 1997 amendment added the Tenth Amendment, which includes the following: “The State affirms cultural pluralism and shall actively preserve and foster the development of aboriginal languages and cultures. The State shall, in accordance with the will of the ethnic groups, safeguard the status and political participation of the aborigines. The State shall also guarantee and provide assistance and encouragement for aboriginal education, culture, transportation, water conservation, health and medical care, economic activity, land, and social welfare, measures for which shall be established by law.” The PATIC has its roots in the Constitution. Although the Cultural Heritage Preservation Act does not categorize in a way that is compatible with the classical view, it includes the cultural heritage to the same extent. Relating to tangible and intangible presentation, historic sites, buildings and gathering habitation, archaeological sites, cultural vistas and natural vistas belong to tangible presentations. Traditional technology and folk customs are intangible presentation. The geo-political circumstances relating to peace and wartime are not differentiated in the Cultural Heritage Preservation Act. The cultural heritage includes locations which are on land and underwater. The Cultural Heritage Preservation Act also does not differentiate between legal and illegal holding. The legal system of PATIC has adopted a community-oriented, integrated approach. The definite indigenous people or tribes may apply for the protection of their traditional intellectual creation. The Council of Indigenous People under the Executive Yuan (Cabinet) is competent for the determination of application and registration. Such indigenous people or tribes can be granted the exclusive use right of intellectual creation after the registration. The holders of rights under this law are indigenous people’s tribes or local indigenous communities, whichever is appropriate (§4, §6, §7). However, the legal status of tribes or indigenous communities is still unclear from the perspective of the Constitution. In name of the definite indigenous people, the exclusive right holder shall have the property right to use and make profits and have the moral right from the intellectual creation. A mutual fund on behalf of indigenous people or tribes shall be established from the income of the intellectual creation (§14). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The exclusive use right holder of the intellectual creation can claim against an actor of infringement for exclusion and prevention (§17), and against an actor of infringement with intention or negligence for damages (§18). The exclusive rights here can be seen as a kind of cultural property. The intellectual creation includes traditional religious worship, music, dances, songs, sculptures, weaving, pattern, design, folk artistic technique and other presentations of cultural success of indigenous people or tribes. As a consequence, the protection of the above mentioned forms of intellectual creation in principle should be regarded as the protection of intangible cultural heritage (§3). §3 of the Cultural Heritage Preservation Act provides the definition and conception of the cultural heritage in detail: 1. Historic sites, buildings and gathering habitations which were built for the human being’s demand of daily life with historic and cultural value. 2. Archaeological sites which contain historic objects, sites and place of the human being’s former life with historic and cultural significance. 3. Cultural vistas which form the place and coherent environment of fairy tale, legend, event, historic happenings, gathering life or ceremony. 4. Traditional arts: Traditional technology and artistic works among groups and villages that were carried on, including traditional technical arts and performance arts. 5. Folk customs and related cultural artifacts: customs relating to the folk life, tradition and with beliefs, festivals and other related artifacts with special cultural significance. 6. Antiquities: objects having historical or artistic value made by man. 7. Natural vistas which are natural areas, rock formations, plants and rocks designated as being of value in preserving natural value. Under CHPA, if individuals do not own the tangible cultural heritage, it belongs to the State. CHPA does not authorize the competent authority to grant communities, groups or individuals as holders of cultural property. According to §7 of the CHPA, the competent authority can allow institutes, groups or individuals relating to research of the cultural heritage to carry out investigation, preservation and administrative maintenance. Such institutes, groups or individuals can only be called administrator, not holder, because administrator and holder differ from each other. Under PATIC, only tribes or indigenous communities can be the holders of cultural property. The PATIC was enacted only one year ago, so how the tribes or communities can practice their exclusive rights remain to be seen.

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According to §3 of the Cultural Heritage Preservation Act, cultural heritage includes heritage with historic, cultural, artistic and scientific value that is designated and registered. Such cultural heritage includes: 1. historic sites, buildings and gathering habitations, 2. archaeological sites, 3. cultural vistas, 4. traditional arts, 5. folk customs and related cultural artifacts, 6. antiquities, 7. natural vistas. 2.2. Determination of the Competent Authority for Immovables as Cultural Heritage Various authorities are competent for different types of cultural heritage. The most important is the Council for Cultural Affairs, which is in charge of most kinds of cultural heritage, and can make a final decision. Besides the census of the competent authority, the competent authority can accept the application of individuals or groups related to contents and extent of value of historic sites, buildings and gathering habitations. After the competent authority has reviewed the application according to the legal procedure, it has to trace it with the registered list (§§4, 12, 37, 77 of the Cultural Heritage Preservation Act). 2.3. Process of Determination The process of determination of cultural heritage is regulated in §3 of the Rule for Designation of Cultural Heritage and Abolishment of Review. The process is as follows: 1. investigating on the scene, 2. reviewing, discussing and deciding to designate, 3. publication, 4. in case of local governments at the special-municipality, county and city levels, making an announcement to the central competent authority. The listing system in CHPA is not divided by different categories, such as immovable and movable. The list can be found on the official website: http:// chmis.cca.gov.tw/ (in Chinese language). Criteria for cultural heritage: §2 of the Rule for Designation of Cultural Heritage and Abolishment of Review, which is issued by the competent authority under CHPA, regulates the following criteria (not as requirements): 1. 2. 3. 4.

historic, cultural and artistic value, significant relation to historic events and characters, local characteristics of building techniques in different epochs, rarity and difficultly of existence, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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5. significance of architecture, value and potential of re-use, 6. other value of historic sites. Basically, this set of criteria applies to all kinds of cultural heritage under CHPA. In practice, they are enforced by a Committee in the competent authority, and reviewed case by case. There are three levels of cultural heritage, which are national, municipal, and local. Municipal and local governments can declare the cultural heritage in their own territory, and are in charge of protecting them. Protection measures for cultural heritage: Under the mandate of the Cultural Heritage Preservation Act, there is the Rule for Maintenance and Management of Historic Sites and the Rule for Dealing with Catastrophe for Historic Sites and Historical Buildings. Both regulate the details of protection. §20 of the Cultural Heritage Preservation Act regulates the management and maintenance of historic sites including the following: 1. routine maintenance and periodic repairs, 2. the operation and management of the present and future use of such historic site, 3. anti-burglary, anti-disaster and insurance measures, 4. establishment of contingency plans, and 5 other matters relevant to the management and maintenance of historic sites. In addition, if the competent authority has reviewed historic sites and is of the opinion that unsuitable management may cause loss or devaluation, the competent authority can notify the holder, user or manager to improve the site within a time period. If the situation is not improved within the time frame, the competent authority can impose costs for management of maintenance and repairs, or impose it compulsorily on historic sites and their location (§24 of the Cultural Heritage Preservation Act). The budgets for management of maintenance, repair and reuse of private owned historic sites, buildings and gathering habitations are supported by the competent authority (§26 of the Cultural Heritage Preservation Act). §90 and the following provisions of the Cultural Heritage Preservation Act place a penalty on destroyers or destructors of cultural heritage. On the other hand, the property holder of the cultural object can be exempted from several kinds of taxes, such as land tax, house tax, inheritance tax. They also receive a tax refund after they pay to repair their property (§§91, 92, 93). In principle, the competent authority should respect the rights and interests of the owner of cultural heritage and afford them professional consultation (§9 of the Cultural Heritage Preservation Act). But, if the competent Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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authority is of the opinion that unsuitable management can cause loss or devaluation, the competent authority should command improvement within a time period; if the improvement is not made within the time limit, the competent authority can impose costs for the management of maintenance, repair and impose compulsorily on historic sites and their location (§24 of the Cultural Heritage Preservation Act). If it is necessary to enter public or private owned sites for purposes of protection or research, it should be approved by land owner, user or manager. The competent authority should give the damaged holder of the land property right reasonable compensation for exploring historic sites (§48 of the Cultural Heritage Preservation Act). When property rights of historic sites or their locating lands are going to be transferred, the competent authority should be notified. If the property belongs to an individual, the competent authority has a pre-emption right to buy it on the same condition with exception of the inheritance (§28 of the Cultural Heritage Preservation Act). The price will be determined as a governmental taking. There is no effect on proprietary rights to neighbouring immovables. In principle, property rights should be respected, but the competent authority will take action to protect cultural heritage if the management is not suitable. The consent of the property owner is not necessary in the decision to declare a cultural heritage. However, the State will compensate the loss of the property holder. Individuals or groups can notify the competent authority of the contents and extent of value of historic sites, buildings and gathering habitations (§§4, 12, 37, 77 of the Cultural Heritage Preservation Act). §7 of the Cultural Heritage Preservation Act also allows the competent authority to authorize or instruct other departments, academic institutes related to research of cultural heritage, groups or individuals for investigating, preserving and managing preservation. There are general provisions with penalties for the destruction or damage of cultural heritage. The legal system in Taiwan has a special provision only for the protection of movable cultural heritage in the event of an armed conflict. There is no special provision for the immovable cultural heritage. In wartime, the movable cultural heritage can be transported overseas for avoidance of damage (§71). §3 of the Enforcement Regulation of the Cultural Heritage Preservation Act provides the sites and their location, including on land and underwater. There is no special provision for protection and no definition of the term “underwater”. Basically, the definition of the term “underwater” can be referenced by inland water and offshore, as far as the sovereignty could reach.

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2.4. Movables The protection of cultural heritage makes no distinction between movables and immovables. §3 of the Cultural Heritage Preservation Act has seven categories of cultural heritage. The movable cultural heritage includes folk related cultural artifacts and antiquities. The antiquities are divided in accordance with the value of rarity into national treasures, significant antiquities and general antiquities according to §63 of the Cultural Heritage Preservation Act. The Cultural Heritage Preservation Act has no definite provision for determination of folk related cultural artifacts and antiquities. There is only an executive enforcement rule, namely the Rule for Designation of Cultural Heritage and Abolishment of Review. The Rule for Designation of Cultural Heritage and Abolishment of Review provides following criteria for determination: 1. historic significance or presentation of tradition, groups and local cultural characteristics, 2. historic origin, 3. certain characteristics, technology and groups of epoch, 4. artistic or scientific success, 5. valuable and rare characteristics, 6. historic, cultural, artistic or scientific value. The competent authorities for cultural heritage in Taiwan are the Council for Cultural Affairs under Executive Yuan and the local governments at county and city levels. There is the Review Committee of Cultural Heritage and the Review Committee of Antiquities under the Council for Cultural Affairs, which are competent for designation, change, abolishment of review, review of import and export, and review related promotion and punishment. The competent authority can accept the application of individuals or groups related to content and extent of value of historic sites, buildings and gathering habitations. After the competent authority has conducted a review according to the legal procedure, it must trace it with registered list. The collective right can only be found under the PATIC, which is specifically for intangibles cultural property and for indigenous people. The position, role and involvement of communities, groups or relevant non-governmental organizations in the process of declaring movable property as cultural heritage are not active. The governmental units play an important role for the declaration of cultural heritage. Non-governmental organizations or individuals can only notify or apply for the registration. They play a complementary role. There is cooperation between the government and non-governmental organizations for the preservation and maintenance of Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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cultural heritage. The government is responsible for the management and maintenance of the public antiquities. The owner of private antiquities manages and maintains them himself with the assistance of state. In addition, there are voluntary groups at the non-governmental level who contribute to the preservation and maintenance of cultural heritage. Movable cultural heritage is also governed by general property law. §9 of the Cultural Heritage Preservation Act states that the competent authority should respect the rights and interests of the owner of cultural heritage. When privately owned objects should be designated by the competent authority as cultural heritage, the CHPA, as a special law, has a pre-emptive application to the Civil Code. Before privately owned national treasures or property of significant antiquities are transferred, the central competent authority must be notified in advance. Public authorities for the storage of antiquities have a pre-emption right on the same condition with the exception of inheritance. If a lost item with value of antiquities has been found, the finder has to report to the competent authority immediately and may not occupy it. If any objects with value of cultural heritage have been found during construction or exploration, the construction or exploration must be stopped and the competent authority must be notified. §71 of the Cultural Heritage Preservation Act regulates that the national treasures and significant antiquities, and the first and second levels of antiquities, (there are three levels of antiquities, the third level is normal antiquities) may not be exported to a foreign country, with the exception of approval by the central competent authority. The approved national treasures and significant antiquities for export must have insurance, careful transportation and storage, and be returned within a time period. In case of import due to exposition, sale, report and repairs, if the imported antiquities must be reexported, they have to be applied to the competent authority in advance. The Cultural Heritage Preservation Act has special punishment provisions in the Criminal Code and Administrative Code. In addition, the Cultural Heritage Preservation Act regulates the claims for recovery and damages. The Civil Code and the Criminal Code can apply to the cultural heritage within the legal system in Taiwan. If there is no special provision, the Civil Code has application to the cultural heritage. For example, the Cultural Heritage Preservation Act has no special provision for the antiquities transfer with good faith. Although the state has a pre-exemption right against the transferor, even if the transferor did not legally notify the competent authority and transfer it to the third party, the third party can claim the transfer with good faith according to §801 and §948 of the Civil Code, which is equally applicable to both cultural and non-cultural objects. The state may not deprive the rights of a third party according to the Civil Code. But, the third party must carry out the obligations of the owner of cultural heritage, such as assistance in maintaining the antiquities. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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The rule of bona fide in Taiwan’s Civil Code: According to §948, the bona fide purchaser can have the ownership of the property. If the property is stolen goods, the original owner can reclaim the property within two years (§949). However, if the purchaser bought that property in the public marketplace or at auction, the original owner must pay the same purchase price in order to reclaim that property (§950). According to §7 of the Cultural Heritage Preservation Act, the competent authority can instruct other public or private institutes, groups or individuals to investigate, preserve and manage maintenance, but there are no provisions related to the return of cultural property or heritage in their possession to the community that has the closest cultural link to such objects. This occurred in a famous case in Taiwan, namely the event of archaeological antiquities in Bei Nan, Tai Dong. Stone coffins and other stone objects in the coffins had been found during the construction for the relocation of a train line and the establishment of a new train station in 1990 in Tai Dong. There were more than 24,000 pieces in total. They were treated as pre-historic antiquities in the Bei Nan (the name of one indigenous tribe) historic sites. They were the most important and the most famous historic sites in the New Stone Era in Taiwan. They were also the largest historic sites in the Asian and Pacific Area. The Department of Archaeology of National Taiwan University was instructed by the government to dig them up to prevent them from being stolen. They have been stored in the Department of Archaeology of National Taiwan University. The Tai Dong Pre-Historic Museum was established later, but these antiquities did not belong to this museum. As a consequence, the habitants actively claimed against the Department of Archaeology of National Taiwan University for return these antiquities to the sites of origin. There was a controversial battle between the Tai Dong Pre-Historic Museum and the Department of Archaeology of National Taiwan University. A partial return was finally made to Tai Dong under the pressure of public opinion in 2005. The legal issue was that there were no laws and regulations regarding indigenous ownership of cultural heritages at the time the antiquities had been found. It appeared that the cultural heritage preservation in the past ignored indigenous peoples’ rights. The Cultural Heritage Preservation Act has since been wholly revised. Although the issue of cultural heritage preservation has attained more and more attention from the government and non-governmental levels, the ownership of indigenous peoples regarding their historic sites and antiquities is still not entitled. The Rule of finds in Taiwan’s Civil Code and CHPA: According to §808 of the Civil Code, anyone who finds a buried object can claim ownership. If the object was found under someone else’s land or inside his property, the finder should share the ownership with him. However, when the object has value for academia, art, archaeology or history, the ownership should be decided under CHPA (§809). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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According to §74, anyone who finds objects of antiquity must notify the local government to take preserving measures. This notification will bring the finder some rewards from the government (§90). Anyone who fails to obey this obligation will be punished with 100 thousand to 500 thousand NTD fine (about 17 thousand USD) (§97). There is no detailed provision for the protection of the cultural heritage in an armed conflict in the legal system in Taiwan. §71 of the Cultural Heritage Preservation Act is the only provision prohibiting the export of national treasures and significant antiquities with the exception of the approval of the Executive Yuan through the central competent authority. The National Government was relocated to Taiwan in 1949. Many national treasures were transported from China to Taiwan and stored in the National Palace Museum. It was recognized as legitimate for the Taiwan Government to store such antiquities at that time. There was no legal issue around them. §3 section 3 of the Enforcement Regulation of the Cultural Heritage Preservation Act provides the sites and their location including on land and underwater. There is no special provision for protection, and no definition of the term “underwater”. 3. Intangible Cultural Heritage 3.1. Safeguarding of Intangible Cultural Heritage Taiwan has a legal framework for the safeguarding of cultural heritage, which is called “Cultural Heritage Preservation Act” (CHPA). CHPA provides safeguarding for seven kinds of cultural heritage, including tangibles and intangibles. According to the Act, “traditional art” and “folk art” can be categorized as intangibles. Traditional knowledge or cultural expressions, as an intangible cultural heritage, can be protected under two legal systems. One is CHPA, the other is PATIC. Under CHPA, traditional art and folk art are enlisted, and can be protected after the government has reviewed and registered them. This is not to entitle someone with a set of rights, but rather is for the purpose of preserving the object, so there is no such concept as ownership or right holder. On the other hand, the PATIC is to entitle indigenous peoples with exclusive use rights over their traditional art and creation, also via governmental reviewing and registration. When a traditional art or folk art is protected as a cultural heritage, the government should make a preservation plan including recording, inventory and teaching (§60, 61 of the Cultural Heritage Preservation Act). According to the Rule of Selecting Important Traditional Artists (RSITA), which was issued for implementing CHPA, the government should select and honour those Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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artists who practice the traditional arts very well. The selected traditional artists can teach their skills in art schools, and propose programs for preserving the traditional arts, to which the government should give financial support. The Cultural Heritage Preservation Act does not regulate the community involvement in the safeguarding measures of intangible cultural heritage. Only the indigenous tribes or communities can be the holders of rights to their own traditional intangible heritage, under PATIC. Taiwan’s Government has set up a “National Centre for Traditional Arts” to preserve and popularize many kinds of traditional arts. The Centre’s website can be viewed at http://www.ncfta.gov.tw/ncfta_eh/main/index.aspx. Regarding the preservation of indigenous traditional knowledge (other than cultural expression), Taiwan’s government has proposed a drafting Act relating to the protection of indigenous ecological traditional knowledge, named the Protection Act of Indigenous Peoples’ Traditional Ecological Knowledge (PATEK). The principles of this draft are based upon the Convention on Biological Diversity, which is to protect the indigenous people’s intangible knowledge about their ecological resources. This draft is now undergoing the legislative proceeding in Congress. 3.2. Misappropriation of Traditions The Protection Act of Traditional Intellectual Creation of Indigenous People (PATIC) is the current legal framework for the protection of indigenous traditional cultural expressions against misappropriation for commercial purposes. If the PATEK is enacted, the legal framework will be more comprehensive. According to PATIC, the indigenous communities are recognized as owners of their traditional cultural expressions, only after they apply for registration and are approved. A special committee will review the application. In contrast to PATIC, the CHPA will not create any ownership over cultural heritage, unless it was private property before being declared as cultural heritage. The principles of CHPA are to protect the heritage per se, not the people or communities who keep or practice the heritage. The regulation of misappropriation in PATIC is legally binding. Any commercial use of indigenous traditional cultural expressions violating the law will be subject to monetary remedy. The calculation of the remedy should be based on the actual damage. But, when the indigenous tribe cannot provide proof of the actual damage, they can claim statutory remedy, which ranges from 50 thousand to 3 million NTD (about 100 thousand USD). When the infringement is wilful and serious, the remedy could reach 6 million NTD (§19). Since the PATIC was just enacted one year ago, there is no legal case yet.

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Under the CHPA, the recording, collecting or archiving of traditional cultural expressions is not forbidden, because the purpose of CHPA is to protect the heritage per se, not any individual or group. Even under the PATIC, the purpose of which is to protect the rights of indigenous people, only commercial exploitation of indigenous traditional creations is forbidden. There are the fair use doctrine, research exemption and non-commercial exemption in PATIC (§16). According to the PATIC, religious rituals and sacred signs are protected from misuse. These are protected as moral rights in the copyright system, prevented from distortion and defamation (§10). 4. Beyond Preservation Regarding the preservation of indigenous cultural expressions, we should not overlook the cultural clashes and interactions between the indigenous and the mainstream society. In order to support the sustainability of indigenous society, Taiwan’s Government has contributed to making a legal framework for protecting their culture, such as the “Indigenous Peoples’ Basic Law”, and the “Indigenous Peoples’ Education Act”. The Indigenous Peoples’ Basic Law is a fundamental legal framework for protecting indigenous peoples’ culture and interest. It was enacted in 2005, and mandates the Congress with several legislative works. PATIC and PATEK are also mentioned in §13 of this Basic Law. The Indigenous Peoples’ Education Act was enacted earlier, in 1988. This Act is to enhance the opportunity of education for indigenous people. Among others, §24 of this Act regulates that teachers of indigenous education must learn the indigenous culture and language. This may help to preserve indigenous culture by educating children.

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UNITED STATES James A.R. Nafziger* 1. General Issues .......................................................................................... 2. Tangible Cultural Heritage .................................................................... 2.1. Immovables ...................................................................................... 2.1.1. Federal Law .......................................................................... 2.1.1.1. General Land-Based Heritage ............................. 2.1.1.2. Indigenous Heritage ............................................. 2.1.1.3. Armed Conflict ..................................................... 2.1.1.4. Underwater Heritage ............................................ 2.1.2. State Law ............................................................................... 2.2. Movables ........................................................................................... 2.2.1. Federal Law .......................................................................... 2.2.1.1. General Land-Based Heritage ............................. 2.2.1.2. Indigenous Heritage ............................................. 2.2.1.3. Armed Conflict ..................................................... 2.2.1.4. Underwater Heritage ............................................ 2.2.2. State Law ............................................................................... 3. Intangible Cultural Heritage .................................................................. 3.1. Safeguarding of Intangible Cultural Heritage ............................ 3.2. Misappropriation of Traditions .................................................... 4. Miscellaneous Provisions ........................................................................

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1. General Issues The United States legal system, in the common-law tradition, does not formalize cultural heritage or cultural property as juridical terms. They are, however, widely understood and used in professional discourse. They also appear in some statutes, particularly those that implement international agreements employing the terms. Protection of the domestic heritage under United States law is primarily extended to public lands, public projects, indigenous (largely Native American and Native Hawaiian) land and culture, and the export of material from these sources. Privately owned, non-indigenous heritage enjoys less protec* Thomas B. Stoel Professor of Law and Director of International Programs, Willamette University College of Law; Chair, Cultural Heritage Law Committee, International Law Association. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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tion, but several statutes and judicial decisions have extended some state and local measures to private land and ownership. The United States also cooperates broadly in international efforts to deter and respond to illegal trafficking and other threats to the foreign heritage, even where such efforts impinge on private interests. Thus, the legal protection of indigenous and foreign cultural material has affected private interests to a substantially greater extent than the limited extension of legal protection, primarily by the states, to the private ownership, stewardship, and disposition of the mainstream domestic heritage. Among the historical, social, and political factors that help explain the United States’ distinctive regime of protection, the most important is a shared set of bedrock principles, norms, and expectations to govern political and social organization. The text of the United States Constitution itself makes no reference whatsoever to cultural property or heritage. It is not the constitutional text, however, but a constitutional tradition or underlying constitutionalism that has shaped the regime. Of greatest significance are evolving principles of federalism to allocate powers between federal and state authority, a robust commitment to civil liberties, judicial powers of review, inherent executive powers over foreign affairs, and the exceptionalism of indigenous tribes and non-tribal groups that is derived from specific treaties and general principles of historical primacy. 2. Tangible Cultural Heritage 2.1. Immovables 2.1.1. Federal Law 2.1.1.1. General Land-Based Heritage The United States is a party to the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage. Accordingly, the federal government is committed to effective site management of sites on the World Heritage List that are designated to be of “outstanding universal value.” The government also submits periodic reports about the designated sites and their management and prepares management plans for sustainable tourism at the sites. A short list of World Heritage Sites in Danger identifies sites threatened by a natural disaster, war, pollution, or inadequate funding that are entitled to emergency safeguarding. Yellowstone National Park in the United States, for example, was on the Danger List for eight years until nearby mining operations ceased, local building and road construction was modified, the full-facility tourist season was reduced, and the United States reported on plans to phase out the general use of snowmobiles in the park.

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The first comprehensive federal legislation to protect cultural heritage, The Antiquities Act of 1906,1 made it a crime to “appropriate, excavate, injure, or destroy any object of antiquity” found on federal lands without a permit from the federal government. In United States v. Diaz,2 however, the Ninth Circuit Court of Appeals, whose jurisdiction encompasses a major part of the indigenous cultural heritage in the western part of the United States, largely eviscerated the penal provisions of the Act. As a matter of due process, the court declared unconstitutional the vague definition of the terms “ruin,” “monument,” and “object of antiquity.” Despite the Diaz decision, however, the 1906 Act continues to have profound effects in protecting cultural heritage. Most importantly, the Act authorizes the President, without legislative enactment, to establish national monuments in order to preserve “objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States.” Under this authority, for example, Theodore Roosevelt established the Grand Canyon National Monument in 1908, Franklin D. Roosevelt designated the Jackson Hole National Monument in 1913, Jimmy Carter added fifteen more national monuments in Alaska in 1978, and, in 1996, Bill Clinton created the largest monument outside Alaska, the Grand Staircase-Escalante. The National Historic Preservation Act of 19663 establishes a National Register of historically significant buildings, sites, and areas. It provides special tax benefits, such as income tax credits, deductions, and accelerated depreciation of designated property. The Act also provides for federal matching grants to the states to support local survey and preservation efforts. The Act requires all federally directed, funded, or licensed projects, public or private, to consider a project’s impact on archaeologically significant resources and to take account of nonbinding comments by an Advisory Council on Historic Preservation. The Archaeological Resources Protection Act of 1979 (ARPA)4 refines and largely supersedes the penal and certain other protective provisions in the Antiquities Act of 1906. It reasserts federal control over archaeological resources on federal lands and provides stiff penalties for persons who knowingly excavate, sell, purchase, transport, exchange, receive, or remove those resources without a federal permit. The term “archaeological resources” is defined to include “any material remains of past human life or activities

1 2 3 4

16 U.S.C. §§ 431–433 (2000). 499 F.2d 113 (9th Cir. 1974). 16 U.S.C. §§ 470–470a (2000). 16 U.S.C. §§ 470aa–470mm (1994).

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which are of archaeological interest” and are at least one-hundred years old. ARPA provides for seizure and forfeiture of illegally obtained material, including material imported from foreign sites. In United States v. Gerber,5 a federal appeals court interpreted ARPA to apply to artifacts found on privately owned property as well as property owned by the federal government or by Indian tribes, even though the Act explicitly refers only to property owned by the federal government or by Indian tribes. The Court concluded that such an interpretation best furthered the purposes of the Act “to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites. . . .” Other, more general federal laws seek to protect archaeological resources secondarily. For example, the National Environmental Policy Act of 1969 (NEPA)6 requires federal agencies to prepare an environmental impact statement whenever a proposed project might affect the quality of the environment. NEPA specifically includes the historical and cultural heritage within the federal government’s scope of environmental responsibilities under the Act. The periodic Department of Transportation Acts7 and related regulations seek to avoid harm to historical sites threatened by federal highway and related projects and to permit states to use federal highway funding for archaeological salvage. They also provide a means for recovery of archaeological material at impacted sites. The Historic Sites, Buildings, and Antiquities Act of 19358 seeks to ensure the preservation for public use of historic structures and objects of national significance. As a measure of international cooperation, the Act on the Regulation of Importation of Pre-Columbian Monumental or Architectural Sculpture or Mural Statute (Pre-Columbian Statute)9 prohibits the import of any designated pre-Columbian stone carvings or wall art into the United States unless they are accompanied by sufficient documentation showing that their export either complied with the laws of the country of origin or occurred before 1972, when the Pre-Columbian Statute came into force. The Secretary of the Treasury has the responsibility of preparing a list of designated protected items after consulting with the Secretary of State. Upon detention of listed objects by Customs, articles are stored at a storage facility or bonded warehouse at the risk of a consignee until sufficient documentation is presented. If no certification of legitimate export is presented within 90 days, the item is to be seized, forfeited, and returned to the country of origin, so long as

5 6 7 8 9

999 F.2d 1112 (7th Cir. 1993). 42 U.S.C. §§ 4321–4370f (2000). See, e.g., 23 U.S.C. §§ 138, 305 (2000). 16 U.S.C. §§ 461–470x-6 (2000). 19 U.S.C. §§ 2091–2095 (2000). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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that country agrees to bear all expenses incident to the return. A bona fide owner or other successful claimant receives no compensation under this legislation. 2.1.1.2. Indigenous Heritage The Native American Graves Protection and Repatriation Act (NAGPRA)10 is the keystone in a strong legal framework for protecting and repatriating indigenous heritage within the United States. NAGPRA is commonly acknowledged to be the world’s most comprehensive and effective national law to protect indigenous cultural material. Although it is particularly instrumental in protecting indigenous movables (to be discussed later), it also provides an effective regime for protecting monuments and other immovables. Despite the limiting word “graves” in its title, NAGPRA substantially elaborates and broadens the framework of federal and state law to protect the indigenous heritage. Fundamentally, NAGPRA grants autonomy to recognized Native American and Native Hawaiian groups in the use and disposition of stipulated cultural material on their lands or otherwise within their authority. At the time NAGPRA was enacted, the protection of indigenous immovables relied on the regulation of federal and tribal lands, and only a few state laws specifically protected indigenous heritage, mostly with respect to commercial or donative transactions. NAGPRA is essentially human rights law. Its legislative history confirms this foundation: “Such human rights include religious, cultural, and group survival rights, as understood within the context of U.S. and international standards of human rights and rights of self-determination.”11 In this regard, the United States acknowledges that it is bound by the Universal Declaration of Human Rights, as evidence of international custom, and the International Covenant on Civil and Political Rights, as a party. Although neither of these instruments articulates a specific right of cultural patrimony, their provisions for “security of person,” “right to recognition everywhere as a person before the law,” and “self-determination” can be interpreted in concert to embrace a right to repose—for example, a right to non-interference with human remains, associated cultural items, and patrimonial artifacts. As a product of United States constitutionalism, NAGPRA manifests the historic but evolving relationship of entrustment between the federal government, on the one hand, and indigenous groups, on the other. In practice, the underlying trust

10

25 U.S.C. §§ 33001–33013 (1994). NAGPRA’s companion legislation is the National Museum of the American Indian Act, 20 U.S.C. §§ 80q–80q–15 (2000), which requires the Smithsonian Institution to inventory Native American remains and return identifiable remains to the tribes. 11 Report of the Panel for a National Dialogue on Museum/Native American Relations (Feb. 28, 1990), § D(1)(a), reprinted in 24 Ariz. St. L.J. 487, 494 (1992). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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doctrine has entailed a liberal construction of public enactments to the benefit of indigenous peoples. The American Indian Religious Freedom Act of 197812 protects access to sites, use and possession of sacred objects, and the practice of sacred ceremonies and rites by indigenous people. This Act has not had much effect because it is largely precatory and applies only to federal agencies, and courts have not interpreted it as establishing new rights. It does require federal agencies, however, to consider the impact of proposed projects on indigenous religious sites and practices. 2.1.1.3. Armed Conflict The United States is a party to the Hague Conventions of 1899 and 1907, the four Geneva Conventions of 1949 (notably Convention IV), and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The United States is not yet bound by the two Protocols to Convention IV or the two protocols to the 1954 Hague Convention. Even prior to ratification, the United States took steps under general principles of international law and custom to comply with the 1954 Hague Convention’s conduct-regulating provisions. These steps included signing the Convention, voicing support of its general aims and purposes, educating military personnel in it, and conforming military operations to its requirements. United States legal obligations arise not only in circumstances of armed conflict but also during military occupation of foreign territory. Accordingly, the Hague Convention of 1907 requires military authorities to restore and ensure public order, including adequate measures to enforce a specific prohibition of pillage. The 1954 Hague Convention imposes additional obligations to safeguard and preserve property under military control, to prevent exportation of looted material, and to facilitate its return to countries of origin. 2.1.1.4. Underwater Heritage United States courts (that is, federal district courts hearing maritime claims under admiralty law) apply a hybrid of national and international rules to govern the treatment of shipwreck, cargo, and related material. In applying this body of law, self-styled as “general maritime law,” the courts have struggled to resolve disputes involving the underwater cultural heritage ever since exploration and excavation of that heritage became technologically feasible in recent decades. Within the federal system, a majority of federal courts have concluded that the Submerged Lands Act of 1953,13 which granted coastal states general jurisdiction over the continental shelf immediately offshore,

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42 U.S.C. §§ 1996–1996b (2000). 43 U.S.C. §§ 1301–1356a (2000). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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did not specifically assert U.S. title to shipwrecks nor purport to transfer any such title to the states. Thus, under the Supremacy Clause of the Constitution, federal admiralty rules protecting finders and salvors of underwater heritage historically preempted state laws of historic preservation. It is only recently that federal admiralty law has incorporated a consideration of archaeological or historical factors. The development of United States law governing the underwater heritage has advanced through four stages in a little over a quarter of a century. At first, the federal courts simply applied the common law of salvage and finds. Accordingly, salvage claims, for example, were normally based on three wellestablished elements and the valuation of salvage awards on six factors (the so-called Blackwall rules).14 Of particular interest is a recently added seventh factor—archaeological supervision and documentation—which began to be applied to the salvage of historic wreck when modern technology made it feasible. Later, at a second stage, the Abandoned Shipwreck Act of 1987 (ASA),15 which is applicable to the submerged coastal lands of the states, transferred authority over coastal wreck from the federal admiralty courts to the President for retransfer to coastal states. The ASA thereby confined the discretion of the federal admiralty courts over offshore (coastal) historic wreck largely to factual issues of abandonment and compliance with the new authority vested in the states. A third stage of legal development involved a more complex analysis of issues relating to the salvage of wreck lying beyond coastal state jurisdiction and therefore beyond the scope of the ASA. Although even the early cases addressed issues of extraterritorial jurisdiction, the bases for such jurisdiction evolved during the third stage well beyond simplistic applications of traditional rules. Unfortunately, however, issues of competing salvage rights, jurisdiction to regulate salvage activities, and public access to such wreck remained unresolved. Admiralty courts sometimes took foreign and international interests into account, but they often either ignored or misconstrued applicable international law. The need was becoming clear for admiralty

14 The three substantive elements of a valid salvage claim are as follows: (1) a marine peril, (2) service voluntarily rendered and not required as a pre-existing duty, and (3) success in recovering imperiled maritime property. 8 Benedict on Admiralty § 8.03 (7th ed., rev. 2002). Successful salvage gives rise to a lien in the rescued property in favor of the salvor. The value of the lien is set by an admiralty court. In The Blackwall, 77 U.S. 1, 14 (1870), the U.S. Supreme Court established the following factors: (1) the labor expended by the salvors in rendering the salvage service; (2) the promptitude, skill, and energy displayed in rendering the service and saving the property; (3) the value of the property employed by the salvors in rendering the service, and the danger to which such property was exposed; (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and (6) the degree of danger from which the property was rescued. 15 43 U.S.C. §§ 2101–2106 (2000).

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courts to reconcile conflicting national interests with newly acknowledged international interests. Fortunately, the latest, fourth stage of legal development has been characterized by a more sensitive interpretation of bilateral treaty law, a recognition of multilateral treaty law and international custom, and a new commitment to general principles of comity and international cooperation. The opinions in the Titanic16 and Sea Hunt17 cases, in particular, have been watersheds in the development of a more cosmopolitan approach. Current developments in the adjudication of historic wreck claims in admiralty courts have been creative rather than natural, teleological rather than incremental. The key features have been three efforts: to fashion a constructive in rem basis of adjudicatory jurisdiction; to apply the jus gentium and conventional international law more credibly and responsibly; and to redefine the general maritime law in terms of comparative insights and law-of-the-sea norms. Limited federal legislation reinforces the emerging regime. For example, the Agreement Concerning the Shipwrecked Vessel RMS Titanic18 designates the famous shipwreck in the Atlantic Ocean as an international maritime memorial. Parties to the agreement commit themselves to respect the scientific, cultural, and historical significance of the Titanic by regulating all activities within their jurisdiction that impact upon the vessel, including its hull, cargo, and artifacts at and strewn around the wreck site. The National Defense Authorization Act for Fiscal Year 200519 includes the Sunken Military Craft Act (SMCA), which protects sunken military vessels and aircraft from any activity directed at them for which a permit has not been obtained. The SMCA provides for civil penalties and damages. It also encourages agreements with foreign countries to help implement the law. The United States is not yet a party to the UNESCO Convention on the Protection of the Underwater Cultural Heritage. 2.1.2. State Law All fifty states have statutes to protect public monuments, cemeteries, and archaeological resources on state lands, normally with penal sanctions against violations of the laws. Some states require the reinterment of all Indian remains from private as well as public lands—for example, remains exposed by highway construction. Several states require permits for archaeological

16

R.M.S. Titanic v. Haver, 171 F.3d 943 (4th Cir. 1999). 221 F.3d 634 (4th Cir. 2000), cert. denied, 121 S.Ct. 1079 (2001). 18 See United Kingdom Foreign & Commonwealth Office, Explanatory Memorandum on the Agreement Concerning the Shipwrecked Vessel RMS Titanic, Command Paper No. 5798 (2003). The United States and the United Kingdom have ratified the agreement, but the two other invited parties—Canada and France—have not done so. 19 Pub. L. 108–375, §§ 1401–1408, 118 Stat. 1811 (2004). 17

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controls, prohibit burial desecration, or impose land-use and surveying controls over private land containing cultural relics. Although private owners are otherwise entitled to free use and enjoyment of their archaeological and other cultural property, the judicial trend has been toward a modest extension of public authority to control the disposition and use of archaeological and indigenous immovables on private land. 2.2. Movables 2.2.1. Federal Law 2.2.1.1. General Land-Based Heritage Federal measures to protect immovables, as discussed above, normally apply as well to movables and their transferability. In addition, several provisions of penal law help combat illegal trafficking in foreign material. Customs agents, acting under general powers, may seize any item that is smuggled, improperly declared, or undervalued upon its entry into the country.20 False declarations, invoicing, or evaluations can also constitute the federal offense of commercial fraud. In the absence of a seizure or investigation, Customs has no power to detain property once it has received and processed entry documents, classified and valued the property, and assessed a duty. Otherwise, the powers of Customs to seize and detain restricted merchandise are broad, extending even to bona fide purchases. After Customs has seized and detained cultural material, its Office of Enforcement normally undertakes an investigation. If the Office can determine the country of origin, it will notify that country’s embassy. If necessary, enforcement proceedings may include a criminal action, forfeiture proceedings, or an interpleader action on the status of the contested property. On completion of any such action, an illegally imported object may then be returned, if requested, to the country of origin. The National Stolen Property Act (NSPA)21 prohibits the transportation in interstate or foreign commerce of any article with a value of $5,000 or more that is known to be stolen. Occasionally, INTERPOL and foreign governments initiate requests for detention or seizure of objects. With or without such a request, federal law-enforcement agencies may seize objects under the general customs law. Even though the NSPA itself does not authorize seizure or detention of objects, it does provide a basis for prosecution and return of illegally imported objects to countries of origin. Ordinarily, the return of

20 See 18 U.S.C. § 545 (2000) (discussing smuggling goods into United States); 19 U.S.C. § 1497 (1990) (discussing penalties for failure to declare); 19 U.S.C. § 1595 (1990) (discussing searches and seizures of merchandise on cause to suspect failure to pay duties on it or if it “has been otherwise brought into the United States contrary to law.”). 21 18 U.S.C. §§ 2311–2319 (2002).

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such objects is coordinated with foreign embassies. The landmark decisions in United States v. Hollinshead and United States v. McClain22 established that the term “stolen property” (theft) in the NSPA may be defined by the law of the country of origin. Even if a foreign state has not reduced an illegally exported object to its possession, it may validly claim ownership over the property so long as it has been previously declared to be so by law. The Cultural Property Implementation Act (CPIA)23 executes the United States’ obligations under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. In 1982 the United States became the first “art market” state to ratify the Convention. The CPIA executes U.S. obligation under the 1970 Convention by providing for official cooperation in returning property stolen from a museum, religious or secular public monument, or similar institution in a requesting state. Unlike most other parties, however, the United States entered a reservation to the Convention by which it does not automatically enforce foreign export controls. Instead, under Article 9 of the Convention, the United States relies on bilateral enforcement of export controls. Accordingly, it has agreed to respond to claims by foreign governments that specific categories of their cultural heritage are in jeopardy. The President, advised by a Cultural Property Advisory Committee within the federal Department of State, may then either enter into executive agreements with those countries to restrict the importation from them of archaeological or ethnological materials that is threatened with “pillage” or unilaterally impose import restrictions on such materials in emergency situations. Under the CPIA, any designated or stolen property is subject to seizure and forfeiture pursuant to a warrant from a magistrate or judge. The Cultural Property Advisory Committee is a central but not exclusive activity of the Cultural Heritage Center within the Bureau of Educational and Cultural Affairs of the Department of State. In implementing United States obligations under the 1970 UNESCO Convention, the Center conducts several other activities. Under Article 7 of the UNESCO Convention and bilateral agreements, the Center facilitates the return of property stolen from foreign museums, religious or secular monuments, and similar institutions in a requesting state. Another of the Center’s activities is to cooperate with other states in museum development, documentation and inventory of collections and sites, technical training in conservation, and professional development, research and exchange. A related, very promising trend in Article 9 agreements has been to include provisions for ongoing collaboration in conservation measures,

22 23

495 F.2d 1154 (9th Cir. 2974); 593 F.2d 658 (5th Cir. 1979). 19 U.S.C. §§ 2601–2613 (2000). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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mutual exchange, and long-term loan of material. Yet another of the Center’s activities is to coordinate the U.S. Ambassadors Fund for Cultural Preservation, which enables United States ambassadors in developing countries to support local projects for protecting sites, collections of objects or forms of traditional cultural expression. Bilateral treaties, primarily with Latin American and Eastern European countries, include recovery-and-return agreements, customs agreements, judicial assistance, and extradition agreements. For example, the United States-Mexico treaty for the recovery and return of stolen cultural property is designed to protect designated material from illegal trade and promote joint archaeological activity and exchange of antiquities. The treaty’s mechanism for recovery of stolen national art treasures requires each country’s attorney general to bring a civil action for the recovery and return to the other country of illegally imported property. The treaty covers pre-Columbian objects, religious art and artifacts of the colonial period, and documents from official archives up to 1920 that are “of outstanding importance” to the national patrimony. A determination of what items are “of outstanding importance” depends on either an agreement between the two governments or identification by a panel of qualified experts selected by the two governments. Extradition treaties sometimes list art theft or violations of the antiquities laws of a requesting state as extraditable offenses. More often, however, the treaties establish general categories of extraditable offenses within which offenses against cultural material can be included. These include common theft, “offenses against the laws relating to importation, exportation or transit of goods,” and “receiving, possessing, or transporting for personal benefit any . . . property, knowing the same to have been unlawfully obtained.” 2.2.1.2. Indigenous Heritage NAGPRA,24 which was introduced earlier under the heading of “Immovables,” vests ownership and control of American Indian and Native Hawaiian human remains and other cultural objects in the tribes and Native Hawaiian groups. The governing body of a pertinent Indian tribe or Native Hawaiian organization, however, may relinquish title or control to such items. Ancillary provisions restrict the availability of permits for excavation and removal of Native American human remains or cultural items and require notification of inadvertent discoveries of such material. To enforce these provisions, NAGPRA criminalizes illegal trafficking in Native American and Native Hawaiian human remains and stipulated categories of cultural items. Arguably, criminal sanctions against what otherwise would be normal dealing in cultural items might drive the market further underground and

24

See note 10, supra. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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thereby imperil the public values and opportunities that inhere in open trading. Although NAGPRA does not seem to have produced this result, the risk of a black market bespeaks the need for vigilance, education of dealers and prospective collectors, strong professional and institutional codes of ethics, and improved recordation or registration of cultural items. The heart of NAGPRA is a scheme for repatriation of Native American human remains and other cultural items from museums, very broadly defined, and federal agencies. They are required to compile inventories or provide summaries of Native American remains and cultural items in their possession. A lineal descendant of a deceased Native American, a culturally affiliated Indian tribe, a cultural affiliated Native Hawaiian organization, or a tribe or organization that can show ownership or control of an item may request material listed in a specific inventory of human remains and associated funerary objects or a general summary of unassociated funerary objects, sacred objects, and objects of cultural patrimony. Under pain of civil penalty, museums and federal agencies must then expeditiously return any such material to a claimant that has established the requisite link of lineal descendancy, cultural affiliation, or ownership or control, as the case may be. A determination of whether an object is properly classified, particularly as a “sacred object” or an “object of cultural patrimony,” is often difficult. Issues of classification often have been resolved by consultation and collaboration between native groups and museums or federal agencies. Aside from understandable delays that may result from having to resolve these kids of issues, there are four statutory qualifications on the requirement of expeditious return of material. First, if an inventory or summary itself does not establish cultural affiliation of the item with a requesting tribe or organization, a federal agency or museum may retain an item until the requesting party can demonstrate cultural affiliation by a preponderance of evidence based on several factors. These factors include “geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical or other relevant information or expert opinion.” Second, if a cultural item is “indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States,” repatriation may be delayed until no later than ninety days after completion of the study. Third, the claimant of an unassociated funerary object, sacred object, or object of cultural patrimony must present evidence “which, if standing alone before the introduction of evidence to the contrary, would support a finding that the federal agency or museum did not have the right of possession.” In response, the particular museum or federal agency is given an opportunity to prove its right of possession to the item. Finally, a museum or federal agency may retain an item disputed by multiple (competing) claimants until they agree upon its disposition or until the dispute is otherwise resolved under either internal NAGPRA procedures or by a court of competent jurisdiction. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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NAGPRA provides two avenues for resolving disputes arising out of its implementation: its own Review Committee and federal court jurisdiction. NAGPRA’s seven-person Review Committee has been a highly effective group whose members are appointed by the U.S. Secretary of the Interior. Three members are nominated by the indigenous community, three members by national museum and scientific organizations, and a seventh member by the other six members. The Review Committee meets twice a year to mediate disputes and to make policy recommendations to the Secretary of the Interior. In practice, the Review Committee has been far more active and effective in resolving disputes than the federal courts. NAGPRA’s requirements of consultation and cooperation between Indian tribes and Native Hawaiian organizations, on the one hand, and museums, on the other, foster broader respect and interchange. NAGPRA has had the effect of redefining the fiduciary duty of museums. This new duty may override normal practices of storage, retention, and display as well as prohibitions on the depletion or deaccessioning of collections. NAGPRA has also stimulated museums to undertake comprehensive reexamination and improved documentation of their collections. 2.2.1.3. Armed Conflict Under the UNESCO Convention on illegal trafficking in cultural property, the United States prohibits importation and acquisition of looted material in the circumstances of armed conflict or occupation. For example, the federal government has successfully brought several prosecutions against persons accused of trying to import looted material from Iraq in the aftermath of the armed intervention there. Other provisions in the UNESCO Convention and 1907 Hague Convention have induced the United States to increase public awareness and ensure education of military personnel in their rules during armed conflict and occupation. 2.2.1.4. Underwater Heritage Enforcement of the coastal regime for protecting offshore movables relies heavily on the states. As noted earlier, the ASA,25 having vested title in the United States to all shipwrecks of historic significance embedded in the submerged lands and coralline formations of a state, simultaneously transfers title to the wrecks to the states in which they are located. The states then bear a responsibility to protect underwater movables, deter illegal activity directed at them, and police illegal trafficking in them. To ensure a measure of national uniformity, a state’s regulatory competence is subject to federal standards and planning requirements. In particular, these include guidelines for managing underwater resources that seek to (1) maximize the enhance-

25

See note 15, supra.

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ment of cultural resources; (2) foster a partnership among sport divers, fishermen, archaeologists, salvors, and other interests to manage shipwreck resources; (3) facilitate access and utilization by recreational interests; and (4) recognize the interests of individuals and groups engaged in shipwreck discovery and salvage. 2.2.2. State Law In addition to the general property law that is vested in the states and the authority given to the states over offshore movables, the criminal laws of all states provide for seizure of stolen and illegally excavated and stolen cultural property within their jurisdiction. Also, state laws, sometimes called “little NAGPRAs,” mirror the federal regime for protecting stipulated categories of indigenous material. Several of these laws explicitly provide, or have been interpreted to provide, for the protection of such material even if it is found on private land.26 3. Intangible Cultural Heritage 3.1. Safeguarding of Intangible Cultural Heritage The United States is not a party to the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage. Instead, the United States relies on federal copyright and other intellectual property laws, notably those executing international agreements such as the Berne Convention. Some state laws protect the moral rights of artists, as does the federal Visual Artists Rights Act of 1990 (VARA),27 which was summarized in a leading judicial decision, Carter v. Helmsley-Spear Inc.28 Also, as already noted,29 the American Indian Religious Freedom Act of 1978 seeks indirectly to protect the practice

26 27 28

29

See, e.g., Whitacre v. Indiana, 619 N.E.2d 605 (Ind. 1993). Pub. L. No. 101–650 (tit. VI), 104 Stat. 5089, 5128–33 (1990), U.S.C. § 101 (2000). 71 F.3d 77, 83 (2d. Cir. 1995) (citations deleted), as follows: [VARA’s] principal provisions afford protection only to authors of works of visual art—a narrow class of art defined to include paintings, drawings, prints, sculptures, or photographs produced for exhibition purposes, existing in a single copy or limited edition of 200 copies or fewer. With numerous exceptions, VARA grants three rights: the right of attribution, the right of integrity and, in the case of works of visual art of “recognized statute,” the right to prevent destruction. For works created on or after June 1, 1991—the effective date of the Act—the rights provided for endure for the life of the author or, in the case of a joint work, the life of the last surviving author. The rights cannot be transferred, but may be waived by a writing signed by the author. Copyright registration is not required to bring an action for infringement of the rights granted under VARA, or to secure statutory damages and attorney’s fees. All remedies available under copyright law, other than criminal remedies, are available in an action for infringement of moral rights. See text at note 12, supra. Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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of sacred ceremonies and rites of indigenous people by safeguarding traditional sites. 3.2. Misappropriation of Traditions The Indian Arts and Crafts Act30 was initially enacted in 1935, during the Great Depression, to encourage a legitimate market for Native American arts and crafts. Amendments in 1990 and 2000 have updated the purpose and scope of the Act to establish a procedure for certification of authentic work created by an enrolled member of a recognized tribe. The main purpose of the Act has been to discourage if not foil counterfeit or bogus Native American art. The authenticity of a work as Native American refers not to its cultural representation but rather to the tribal status of its creator. In other words, certified works eligible for protection under the Act need not bear any particular association with a particular tribe or its tradition. The misappropriation of traditions has been an issue in a number of disputes. For example, Native Americans have raised claims regarding image rights. An ongoing controversy relates to the use of generic and tribal names of Native Americans by college and professional sports teams. Examples include the Kansas City Chiefs and the Washington Redskins in football, the Cleveland Indians and the Atlantic Braves in baseball, and the Chicago Blackhawks in hockey. The United States is a signatory but not a party to the Convention on Biological Diversity, with its protection of traditional knowledge of genetic resources. 4. Miscellaneous Provisions The United States supported and is bound by a “cultural industries” exception in the North American Free Trade Agreement (NAFTA) by which each of the three treaty parties is entitled to take measures otherwise contrary to free trade requirements in order to protect its cultural industries such as magazine production and distribution. The United States has, however, firmly opposed more extravagant international initiatives to insulate national cultural expressions from foreign alternatives and the risks of cultural globalization. In particular, the United States opposes the UNESCO Convention on the Protection and Promotion of the Diversity of Expression as an unwarranted restriction on freedom of expression and the free movement of ideas and images.

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25 U.S.C. §§ 305–310 (2000). Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

INDEX 1899 (Hague II) Convention, see Convention With Respect to the Laws and Customs of War on Land (1899) 1907 (Hague IV) Convention, see Convention Respecting the Laws and Customs of War on Land (1907) 1954 Convention, see Convention for the Protection of Cultural Property in the Event of Armed Conflict 1970 UNESCO Convention, see UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1972 Convention, see UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage 1982 Convention, see United Nations Convention on the Law of the Sea (UNCLOS) 1995 Convention, see UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 2001 Convention, see UNESCO Convention on the Protection of the Underwater Cultural Heritage 2003 Convention, see UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage 2005 Convention, see UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions ACI (assets of cultural interest) (Spain), 183, 668–669, 671, 673–678, 680–681, 683–687 ACIEI (Act on Controls on the Illicit Export and Import and Other Matters of Cultural Property) (Japan), 167, 188, 223, 485 acquisition, 39, 61, 67, 68 n. 349, 69 n. 353, 70, 169, 173, 177, 184, 187, 189, 195, 259, 265, 292, 306, 317–318, 320–321, 323, 343, 348, 352, 374, 376, 378–380, 385, 395–396, 401, 406–409, 411, 425, 449, 456, 485, 502, 504, 506, 519–520, 522–523, 528, 538, 542, 545, 557, 609, 613–614, 651, 676, 678, 684, 702–703, 738, 769 acquisitive prescription, 266 n. 52, 426 n. 24, 486, 607, 609, 614–616, 622 Act on Church Buildings (Denmark), 145, 308–309

Act on the Return of Cultural Objects Removed from Occupied Territories (The Netherlands), 123, 193, 569, 622–623 administrative sanctions, 291 adverse possession, 178, 696–697, 703 Agency for Cultural Affairs (Japan), 151, 208, 476–477, 479 n. 17, 481–482, 484–485, 490–492 antique market, 609 Antiquities Act of 1906 (USA), 143, 759 Aotearoa (New Zealand), see New Zealand Appenzell Ausser Rhoden (Switzerland), 211 n. 1191, 729–732, 743 Archaeological Institute (Czech Republic), 284, 289–290 archaeological object, 174, 179, 182, 200, 202, 237, 265 n. 51, 321, 425–426, 429, 431, 434, 571, 576, 578–579, 581–583, 711–712 archaeological site, 20, 25 n. 111, 37 n. 183, 47, 49 n. 236, 67 n. 342, 118–119, 138–139, 140 n. 741, 145, 147–148, 152, 154, 156–157, 202–203, 237, 243, 250–252, 254, 256, 265 n. 51, 285, 329, 356, 371, 407, 429, 510 n. 34, 512, 520–521, 533, 535, 538, 547, 641, 643–645, 647–648, 650–653, 656–657, 668, 673 n. 11, 675, 677, 711, 713, 745–748 archive, 20, 25 n. 111, 37 n. 183, 122, 172, 210 n. 1186, 217, 222, 263–264, 265 n. 51, 274, 299–300, 334, 341–342, 350, 357–358, 374–376, 378–379, 381, 390–391, 398, 400–402, 404–406, 409 n. 11, 424, 433, 441–442, 445–446, 450, 453, 457, 459, 545, 547, 591 n. 119, 612, 625 n. 268, 632, 666, 668, 671, 677, 688, 714, 716, 734, 767 armed conflict, 4, 14 nn. 46–47, 16–18, 19 n. 73, 20–23, 25, 27–28, 28 n. 122, 29–31, 33, 36, 43, 58 nn. 293–294, 85 n. 446, 109, 118, 126, 136, 170, 190–196, 223, 227–228, 261–262, 268, 291–293, 330–332, 344, 373, 408, 416, 423–424, 432, 435, 439, 456, 461, 476, 483, 486, 503, 564 n. 8, 566–567, 591–594, 618 n. 233, 619–620, 621 n. 249, 640, 651, 657, 679, 692, 699–700, 750, 754, 762, 769 ARPA (The Archaeological Resources Protection Act of 1979) (USA), 125, 143–144, 181–182, 759–760 artist studios, 453 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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Aruba (The Netherlands), 563, 567 n. 18 ASA (Abandoned Shipwreck Act of 1987) (USA), 763, 769 auction, 169, 171, 265, 313, 315, 323–325, 342, 369, 378–379, 385, 393, 396, 399–400, 405, 426, 530, 609, 678, 701–702, 702 n. 40, 753 authenticity, 50–51, 51 n. 248, 57, 137, 144, 146, 148, 153 n. 824, 155, 157, 357, 363, 407, 447, 531, 548, 559, 577–578, 578 n. 67, 600 n. 173, 626, 646 n. 20, 661, 707, 732, 771 Aztec (Mexico), 548, 549 n. 103 Basque (Spain), 675, 687 n. 25, 689 Bei Nan (Taiwan), 753 Berlin Declaration, 425 Berne Convention for the Protection of Literary and Artistic Works (1886), 215, 244, 425–426, 567, 721, 770 beyond preservation, 246, 276–278, 292, 414–415, 436, 492–493, 662, 756 Blue Shield, 28 n. 121, 594–595 bona fide, 37 n. 184, 41, 41 n. 201, 60–62, 66–70, 164–168, 171, 177, 180–181, 183–184, 187, 193 n. 1079, 239, 259, 265, 266 n. 52, 292, 385, 395–398, 426, 434–435, 459–460, 485, 530, 606, 610, 613, 622–623, 656, 683, 698, 753, 761, 765 bona fide possessor, 395–396, 398, 459–460, 613 bona fide purchase, 37 n. 184, 41, 60–62, 66–70, 165–168, 171, 177, 180–181, 184, 187, 397, 426, 434–435, 485, 530, 606, 656, 753, 765 British Columbia, 124, 142, 180, 216, 233 n. *, 235, 238, 241, 246 Canada, 7, 114, 122, 124, 130–131, 142–143, 161 n. 868, 179–181, 185–187, 189, 191–192, 198, 215–216, 222, 226–227, 231, 233–246, 605, 605 n. 196, 695, 764 n. 18 Canadian Heritage Information Network (CHIN), 180, 185, 241 Canadian museum, 131, 180, 241–242 Canadian Register of Historic Places, 236 categories of cultural heritage, 36–37, 37 n. 183, n. 185, 50–51, 61, 63, 65, 68, 91, 109, 116–118, 125, 138–139, 144–145, 150–157, 160, 163, 166–168, 168 n. 914, 171–173, 175, 178, 202–203, 226, 228, 239, 250–251, 256, 265 n. 51, 284, 286, 300, 316, 343–344, 348, 350, 357, 376, 381, 383, 386, 403–405, 409 n. 11, 425–429, 439, 441–447, 450, 453, 457–459, 469–470, 472–481, 484, 487, 489, 546, 565, 569, 571, 574 n. 47, 576, 595,

611–612, 625, 631, 640, 642, 646–647, 651–654, 661, 667–672, 674 n. 12, 675, 680 n. 16, 681, 685, 687, 694–695, 697, 714–715, 720, 724, 733, 745–746, 748, 751, 754, 766–767, 770 Catholic Church, 128, 450, 558 CECA (Danish Commission on the Export of Cultural Assets), 169, 298–299, 314–316, 319, 319 n. 125, 322–323 Central list of cultural heritage of the Czech Republic, 286 Central Office for the Fight against Illicit Trafficking (l’Office central de lutte contre le trafic illicite) (France), 409 Certificate of free circulation (Italy), 457–458 CGPPP (General Code Regarding the Property of Public Persons) (Code général de la propriété des personnes publiques) (France), 122, 171, 173, 375–376, 384, 396 Chauvet cave (France), 371–372 Chiapas, State of (Mexico), 498, 510 n. 34 Chichen Itza (Mexico), 512–513 CHIN, see Canadian Heritage Information Network city and village views, 155, 574, 576, 578, 580, 582 CNMH (National Commission on Historical Monuments) (France), 383 Coastal Protection Agency (Conservatoire du littoral) (France), 359, 366, 370 Code Civil (Mexico), 502, 512, 514, 516, 525–526, 530, 534–541, 544–545, 547 code of conduct, 335, 492, 632 Code of Cultural Heritage (Code du patrimoine) (France), 121, 135, 141–142, 160 n. 862, 171–173, 199, 214, 341–344, 350–355, 358–361, 368–369, 371, 373, 375–378, 381–392, 397, 400–406, 409 n. 12, 410, 412, 416 Code of Cultural Properties and Landscape (CCPL) (Italy), 119, 127 n. 673, 128, 146–147, 161, 165–166, 199, 204, 214–215, 227 n. 1276, 440–462, 464 Code of Ethics, 68, 163, 170, 173, 177–179, 267 n. 57, 318, 324–325, 342, 407, 656 n. 55, 768 collector, 316, 348, 470, 521, 768 community, 4–6, 8, 17, 46, 52 n. 257, 63 n. 323, 67 n. 342, 85, 85 n. 447, 87, 89–92, 92 n. 480, 94, 96 n. 505, 109–110, 114–115, 118, 120–121, 125–129, 131–137, 139, 142–145, 148, 152, 154, 156–158, 160–163, 181, 184, 189, 205–206, 208–215, 217–218, 220–222, 226–227, 235–236, 238–239, 242, 244, 250–251, 261, 263, 265, 270, 272, 272 n. 66, 275–276, 282–284, 300, 324, 335, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

index 341, 343, 345, 348, 350, 354–355, 359, 369, 372–373, 378, 384, 414, 418, 429, 432, 434, 439–441, 444, 448, 450, 463–464, 477, 483–484, 486, 489–492, 504–505, 539–540, 543, 549, 549 n. 104, 549, 552, 554–557, 569, 572–573, 576 n. 60, 578, 587, 600 n. 172, 602–603, 617–619, 628–632, 642, 647, 649, 656, 661–662, 669 n. 3, 672–673, 675, 679, 681, 684, 688, 711, 714–716, 718, 722, 726, 728–736, 739–742, 746–747, 751, 753, 755, 769 community-oriented, 250–251, 283, 300, 345, 429, 569, 642, 746 compensation, 13, 40, 62, 67–70, 72 n. 371, 115, 139, 141, 145, 148–149, 156, 166, 168, 172, 221, 235, 251–252, 252 n. 21, 255, 258, 264, 266, 273, 275, 286, 289, 306–307, 324, 328, 354, 361, 364–365, 371–374, 376–378, 383, 385, 389, 392–393, 395–397, 406, 427–428, 432, 448, 450, 459–460, 486, 528–530, 539, 584 n. 95, 586, 622, 651, 655–656, 656 n. 53, 698, 707, 709, 750, 761 CONACULTA (National Council for Culture and the Arts) (Mexico), 550 conservation, 16, 17 n. 56, 44, 44 n. 215, 47, 48 n. 233, 50–51, 52 n. 257, 53–54, 55 n. 273, 57, 58 n. 294, 59, 112–113, 119, 124, 138, 142, 235–236, 238, 251, 254–262, 264 n. 49, 265, 265 n. 51, 267 n. 58, 283, 290, 351, 353, 355, 359, 363–364, 366, 370–372, 389–391, 448–449, 453, 455–456, 460, 465–466, 487, 491, 498, 507 n. 21, 508 n. 26, 509 n. 29, 510–512, 514–515, 518, 520–521, 526, 534–535, 546, 548–549, 554, 569, 575 n. 54, 583, 585 n. 100, 596, 603, 624–625, 643, 646 n. 19, 648–649, 660, 664–665, 672, 672 n. 8, 679–680, 684 n. 17, 687, 701, 704–706, 712, 729, 746, 766 Consiglio di Stato (Italy), 453 n. 22, 462 Constitution of the Czech Republic, 113, 134, 281–282, 292 control list, 206, 269, 269 n. 60, 270 Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), 7 n. 10, 14 n. 46, 16–33, 35–36, 43, 108–109, 118, 126, 136, 162, 170, 190–197, 227–228, 231, 242, 248 n. 5, 249, 262, 278, 283, 291–292, 300–301, 330–332, 344, 373, 408, 416, 423–424, 432, 439, 456, 461, 476, 483, 503, 503 n. 10, 564 n. 8, 566–567, 592–594, 618–621, 640–641, 651, 657, 692, 699, 762 Convention for the Protection of the Archaeological Heritage of Europe (ETS No. 143) (1992), 249, 283, 326, 416, 423, 568

775

Convention for the Protection of the Architectural Heritage of Europe (ETS No. 121) (1985), 249, 283, 301, 301 n. 17, 423, 568, 568 n. 22 Convention for the Protection of the World Cultural and Natural Heritage (1972), see UNESCO Convention for the Protection of the World Cultural and Natural Heritage (1972) Convention for the Safeguarding of the Intangible Cultural Heritage (2003), see UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005), see UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) Convention on the Protection of the Underwater Cultural Heritage (2001), see UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001) Convention Respecting the Laws and Customs of War on Land (1907), 11–15, 19, 566, 592–594, 762, 769 Convention With Respect to the Laws and Customs of War on Land (1899), 11–13, 19, 592, 762 Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State, 126, 164–166, 169–170, 177, 187, 266, 278, 291, 313 n. 85, 316, 318, 424, 427, 456, 458–459, 568, 601, 601 n. 176, 606, 606 n. 199, 611, 611 nn. 210, 212, 615, 622 n. 252, 675, 682 covenant, 157, 643, 645, 648, 650 CPIA (Cultural Property Implementation Act of 2000) (USA), 125, 181, 182 n. 1009, 766 CPIL (Federal Code of Private International Law) (Switzerland), 698 CPTA (Cultural Property Transfer Act of 2005) (Switzerland), 123, 178–179, 185, 223–224, 694–699, 701–702, 704, 710 crime, 16, 18 n. 69, 191, 194, 242–243, 267, 349, 399, 410, 427, 523 n. 61, 582, 591 n. 121, 601, 677, 679, 683, 759 criminal sanction, 291, 695, 767 criteria, 14 n. 47, 39, 48, 48 n. 233, 49–50, 54–55, 57, 70, 75, 83, 85–86, 86 n. 447, 93 n. 483, 94, 95 n. 493, 96, 109, 116, 134, 136–138, 140–142, 144, 147–155, 157, 160, 163–164, 168, 169 n. 920, 170, 173, 175, 179, 181, 183, 185, 197, 206–207, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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208 n. 1166, 210 n. 1182, 211, 237, 242, 256, 267, 269, 284–285, 289, 300, 305, 309, 313–314, 343, 350–357, 359–360, 363, 375, 379, 382, 405, 414–415, 431, 457, 472, 478–481, 484, 487–489, 498, 500–501, 503, 505, 510, 513–514, 518, 525–527, 531, 543, 555, 566 n. 12, 571–572, 574, 574 n. 47, 575 n. 56, 576–578, 580–581, 587 n. 102, 596–599, 600 n. 173, 626–627, 645, 646 n. 20, 647, 673–675, 680, 686, 706–707, 715, 718, 725, 727, 731–732, 735, 748–749, 751 Croatia, 7, 113, 115 n. 593, 118–119, 133, 137–140, 159, 160 n. 865, 163–165, 168, 179, 185–187, 192, 192 n. 1062, 197, 201, 201 n. 1129, 206–208, 220–221, 226–227, 231, 247–279 Cuauhtémoc (Mexico), 548, 548 n. 103 cultural asset, 122, 133, 168–169, 298–299, 299 n. 7, 308, 312–316, 319–320, 323, 331, 422, 429, 667, 672, 675, 678–679, 710–713 Cultural Assets Act (Denmark), 312–314, 316, 320 cultural diversity, 85 n. 446, 88–89, 94, 96–102, 103 n. 545, 105–106, 110, 115, 205, 210, 220 n. 1253, 221–222, 230, 270, 277, 498, 552, 692–693, 714, 716–717, 720, 730, 733, 735, 742 cultural expressions, 7 n. 10, 86, 96, 100–108, 205–206, 208, 211 n. 1193, 220–221, 245, 269, 276, 335, 343, 413–414, 423, 444, 462 n. 38, 487, 491–492, 503, 503 n. 11, 550, 570, 626, 631–633, 686, 693, 714, 742–743, 754–756, 767, 771 cultural good, 100, 102 n. 544, 104, 107, 121, 126, 146, 166, 169 n. 919, 170, 183, 224, 249–250, 261, 269, 271, 272 n. 66, 313, 313 n. 85, 316, 342 n. 5, 403, 423, 441 n. 6, 446 n. 12, 447, 451, 456 n. 28, 466, 501 n. 9, 524, 542, 568, 603 n. 185, 611, 612 n. 216 cultural goods and services, 100, 102 n. 544, 107 Cultural Heritage Act of 1999 (CHA) (Croatia), 118–119, 137, 163–164, 164 n. 891, 192, 201, 206–207, 226, 248, 248 nn. 4, 5, 250–266, 268–279 Cultural Heritage Preservation Act (CHPA) (Wet tot behoud van cultuurbezit) (The Netherlands) 123, 135, 176–177, 185, 568, 570, 571 n. 37, 572–573, 577 n. 63, 597, 597 n. 154, 603 n. 184, 604 n. 190, 605, 611 n. 212, 613, 616, 616 n. 226, 627 Cultural Heritage Preservation Act (CHPA) (Taiwan), 117–118, 132, 132 n. 702, 152, 152 n. 822, 167–168, 208, 208 n. 1171, 745–756

cultural heritage reservation (Czech Republic), 285, 287 cultural heritage zone (Czech Republic), 285, 287 cultural industries, 101, 103 n. 545, 106 n. 560, 246, 557, 771 cultural landscape, 50, 55 n. 278, 117, 136, 146, 148, 151, 155, 159, 228, 283, 307, 443, 465, 474–475, 477–478, 481, 531, 574–575, 575 n. 54, 55, 584 n. 94, 596, 647, 647 n. 24, 658, 721–722, 729–730, 739 cultural property, 4–5, 10–12, 16–46, 54 n. 265, 55, 60–71, 75, 77, 84, 108–109, 115, 117, 119–120, 122–123, 126, 127 n. 674, 128–131, 134, 138–139, 139 n. 737, 147–148, 151–152, 154, 156–157, 161–162, 165–171, 173–176, 178–184, 184 n. 1024, 185 n. 1030, 191, 191 n. 1059, 196, 196 n. 1094, 199, 202–203, 208, 215, 217, 233, 238–243, 254, 276, 282, 285–286, 292, 300, 312, 316–317, 320, 324, 331–332, 342, 344–345, 352–353, 355–359, 373–378, 380, 382–386, 390, 392–394, 396–411, 415–416, 423–431, 433–436, 439, 440 n. 6, 441–464, 471–493, 497, 502, 530, 544, 570, 572–573, 593 n. 132, 594, 596–597, 605, 605 n. 196, 617–619, 620 n. 242, 622, 624, 653, 655, 660, 662, 672, 684, 694–704, 704 n. 46, 708–710, 747, 751, 753, 757–758, 765, 767, 769–770 Cultural Property (Protection in Armed Conflict) Bill (2008) (New Zealand), 640–641 Cultural Property Export and Import Act (1977) (Canada), 124, 180, 191, 234, 240, 242–243, 605 cultural services, 292, 465 cultural zone, 525, 527, 558 Czech Constitutional Court, 282, 282 n. 2, 283 n. 3, 288, 288 n. 6 Czechoslovakia, 281, 281 n. 1, 430 Czech Republic, 7, 113, 120–121, 134, 139–140, 159, 161 n. 868, 164–165, 168, 179, 185, 187–188, 190, 202, 216–217, 221–222, 231, 281–293 DaMuA (Danish Museum Act of 2006), 122–123, 128, 145–146, 168–170, 170 n. 927, 198, 223, 320, 322 Danish Coin Treasure, 322 Danish Folklore Archives, 217, 300, 334, 334 nn. 206, 208 Danish Language Council, 217, 334, 334 n. 209 declaration (as cultural heritage / cultural property), 20 n. 78, 29 n. 126, 37 n. 184, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

index 41 n. 203, 55, 63, 109, 125, 138–140, 144–147, 150–153, 156, 164–166, 171, 182–183, 188, 198, 200, 229, 251–256, 258–261, 263, 265, 269–273, 284–286, 288–289, 302–303, 364, 373–374, 393, 428, 431–434, 446–447, 457, 478, 504, 511, 515–516, 520–523, 525–526, 528–532, 542–543, 545–546, 549, 574, 576, 576 n. 60, 587, 600 n. 172, 645, 650, 667–671, 673–681, 684–688, 710, 749–751, 755 Declaration of Brussels Concerning the Laws and Customs of War (1874), 11 Declaration of the cultural interest, 447, 457 Denmark, 7, 115 n. 593, 122–123, 128–129, 144–147, 155, 160–161, 168–170, 185–186, 193–194, 198–199, 217–218, 222–223, 230–231, 295–335, 633, 633 n. 312 designate / designation, 31, 36–37, 37 n. 184, 75, 134, 137–138, 140–143, 146, 148–157, 160–161, 163–164, 167–168, 171, 173–176, 176 n. 969, 182–185, 191, 197, 206–209, 211, 219, 221, 235–236, 298, 303, 309–311, 319, 324, 364, 406, 470–473, 475, 477–490, 565, 567 n. 20, 572 n. 39, 574 nn. 47, 50, 575–576, 577 n. 64, 578–581, 583, 585, 587–590, 596, 598–603, 604 n. 190, 615, 627, 643, 647 n. 24, 649, 695, 700, 707, 721, 746–748, 751–752, 758–760, 764, 766–767 Diaz case, 759 Dubrovnik (Croatia), 58, 137, 137 n. 728, 247 n. 2, 248, 248 n. 6, 276 n. 74 Dutch Council for Culture (Raad voor Cultuur) (The Netherlands), 580 ensembles, 48 n. 233, 142, 154, 368–369, 381, 566, 597 n. 149 Environmental Code (Code de l‘environnement) (France), 350, 366–368, 370 Environment Court (New Zealand), 647 n. 24, 650–651 Ethiopia, 461–462 European Charter for Regional or Minority Languages (1992), 214, 345, 412–413, 417, 419, 568, 626 European Community, 100 n. 531, 404–405, 456–457, 564, 568, 597, 612, 615 European Convention on the Protection of the Archaeological Heritage (Revised, ETS No. 143) (1992), 249, 283, 301, 326, 416, 423, 568 European Court of Human Rights, 372, 449

777

European Cultural Convention (1954), 300 European Union, 291–292, 313 n. 85, 318 n. 122, 379–380, 402–403, 405, 414, 427, 457–459, 563, 603, 606, 623 excavation, 35 n. 169, 37 nn. 183–184, 40, 60, 66, 70, 72, 72 n. 372, 76–78, 139 n. 736, 142, 144, 155, 172, 174, 182, 188, 201, 203, 235, 255, 257, 262, 284–285, 317, 342, 342 n. 3, 344, 373, 375, 377, 387–389, 400–402, 407–408, 431, 480, 482, 485, 508 n. 24, 516, 520, 529, 542, 578–579, 582–584, 584 nn. 93, 95–96, 587, 596, 596 n. 149, 603–604, 679, 682, 702, 711, 759, 762, 767, 770 Executive Yuan (Taiwan), 746, 751, 754 exhibition, 20, 25 n. 111, 164–165, 167, 174, 177–178, 180, 241–242, 250, 256, 264–265, 267, 272, 289–290, 316, 327, 349, 402, 433, 458, 471, 491, 512–513, 520, 530, 538, 550, 556–557, 598, 601, 680, 684 n. 17, 696, 701, 770 n. 28 expatriation, 170, 422, 424, 427 export, 7 n. 10, 23, 25–26, 30 n. 132, 32–36, 38–41, 41 n. 203, 52, 59–70, 78, 113, 123–124, 126, 162, 164–170, 172–176, 178–180, 182–184, 186–188, 188 n. 1037, 191, 195, 223–224, 234, 237, 240, 243, 248–250, 265 n. 50, 266 n. 54, 267, 267 n. 56, 278, 283–284, 290–293, 298, 300–301, 313–322, 324, 332, 351, 357–358, 376, 378, 380, 382–385, 391–393, 395, 398, 400, 402–411, 416, 423–424, 424 n. 12, 427, 433–434, 436, 440 n. 6, 456–461, 461 n. 35, 463, 470–471, 474, 484–485, 503 n. 11, 513–514, 516, 518, 520–521, 523, 527, 530, 567–568, 597, 597 n. 155, 599–601, 603, 603 n. 185, 605, 605 n. 196, 611 n. 213, 612 n. 216, 616, 618, 618 n. 233, 620 n. 242, 622, 644, 653–655, 666, 670, 674, 676, 681–682, 693–696, 697 n. 17, 699, 701–703, 710–713, 751–752, 754, 757, 760, 762, 766–767 export licence / export license, 165, 169–170, 314–316, 376, 391, 393, 403–405, 436, 458, 603, 612 n. 216 expropriation, 115, 139, 139 n. 736, 141–142, 145, 147–150, 154, 156–157, 160–161, 165, 172, 179, 186, 229, 255, 255 nn. 31–32, 258, 279, 288, 306–307, 328, 355, 369–372, 374, 377, 379, 408, 448, 506, 509 n. 29, 517–520, 522–523, 526, 528–529, 537, 542, 581, 676, 693, 707–709, 711 extinctive prescription, 607, 609 Faroe Islands, 314, 314 n. 93, 330, 330 n. 187, 333 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

778

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First Nations, 130–131, 180, 216, 227, 234, 238–240, 242, 245–246 First Protocol to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 18, 18 n. 65, 20, 23–28, 32–33, 108, 118, 162, 190–195, 227, 231, 242–243, 248 n. 5, 249, 262, 278, 292, 300, 300 n. 15, 330, 332, 461, 486, 564 n. 8, 566, 566 nn. 14–15, 592, 592 nn. 123, 127–128, 618 n. 233, 619–623, 640–641, 651, 657, 699, 762 folk art, 733–734, 747, 754 folk cultural property, 117, 167, 474–475, 478–480, 484, 487, 489–491 fossil trove, 170, 327 Framework Convention on the Protection and Sustainable Development of the Carpathians (2003) (Czech Republic), 283 France, 7, 41 n. 202, 62 n. 318, 115, 120–122, 134–135, 141–142, 159, 171–173, 186, 188, 190, 190 n. 1052, 199, 199 nn. 1113, 1115, 214, 222, 231, 234, 246, 268, 268 n. 59, 337–419, 498 n. 2, 505, 513, 526, 536, 667, 695, 764 n. 18 French Guiana, 349–350 Fribourg (Switzerland), 210 n. 1182, 211 n. 1191, 703, 709 n. 83, 710–711, 711 n. 94, 97, 99, 712 n. 104, 715, 735–737, 743 fruition of cultural heritage, 127–128, 147, 219, 439–440, 444, 448, 450, 464 Fund of the International Committee, 42–43 Germany, 7, 19, 41 n. 202, 115 n. 593, 125, 133–134, 147–148, 148 nn. 791, 793, 159 n. 854, 161, 170–171, 186–187, 192, 195–196, 202, 202 n. 1137, 217, 222–223, 228, 230–231, 322–323, 356, 421–437, 558, 567 n. 20, 570, 610, 695 globalization, 38, 85 n. 446, 88, 96, 98, 99 n. 524, 102, 272, 499, 557, 771 good faith (bona fide), 26, 41, 41 n. 201, 60–62, 66–70, 108 n. 567, 164–168, 171, 177–178, 180–181, 183–184, 187, 193 n. 1079, 344, 385, 394–398, 407, 411, 426, 426 n. 24, 434–435, 459–460, 485, 502, 516, 530, 606, 608–610, 613–617, 620, 620 n. 242, 622–623, 656, 683, 696–698, 703, 752–753, 761, 765 good faith (bona fide) possessor / good faith (bona fide) possession, 344, 394–398, 411, 516, 426, 459–460, 609, 613–616, 622–623 good faith (bona fide) purchase / good faith (bona fide) purchaser, 41, 60–62, 66–70, 165–168, 171, 177, 180–181, 184, 187, 397, 426, 434–435, 485, 530, 606, 613–614, 622–623, 656, 753, 765

goods of public interest, 445 Government funding for locally-made television and radio programmes (New Zealand), 662 Granada Convention, see Convention for the Protection of the Architectural Heritage of Europe (ETS No. 121) (1985) Grand Theft from the Royal Library (Denmark), 323–324 Greenland, 314, 314 n. 93, 319, 319 n. 127, 330, 330 n. 187, 333 Grisons (Switzerland), 210 n. 1182, 211 n. 1191, 715, 725–729, 743 group rights, 129–131, 136, 148, 429, 434, 632 Hague II Convention (1899), see Convention With Respect to the Laws and Customs of War on Land (1899) Hague IV Convention (1907), see Convention Respecting the Laws and Customs of War on Land (1907) Hague Convention (1954), see Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) Heritage Agency of Denmark (Kulturarvsstyrelsen), 144–145, 298–299, 302–307, 309–312, 312 n. 80, 325–329, 329 n. 183, 330 n. 185, 332 heritage atlas, 311–312 Heritage Conservation Act (British Columbia), 124, 142, 235, 238 heritage covenant, 157, 643, 645, 648 heritage order, 157, 642–643, 645, 648–651 historic building / historical building, 127, 144, 298–299, 302–304, 305 n. 31, 307–308, 309 n. 59, 310, 335, 356, 359, 361, 364, 549, 596, 749 Historic Buildings Council of Denmark (Det Særlige Bygningssyn), 144, 298–299, 299 n. 5, 302, 304, 307–308, 309 n. 59, 310 historic heritage / historical heritage, 120–121, 136, 150, 154, 156, 182–183, 200, 203, 251 n. 19, 506, 520, 557, 642, 644, 647, 665–666, 668, 670, 673–674, 677, 684 n. 17 historic monument / historical monument, 11, 13–14, 16, 37 n. 183, 51, 122, 141, 153–154, 185 n. 1030, 341–342, 342 n. 1, 346, 351–365, 369, 371, 374, 378, 380–385, 391–392, 395–397, 401, 404–405, 415, 497, 507, 507 n. 19, 508 n. 26, 510–512, 518, 518 n. 50, 520–521, 524–531, 593 n. 132, 594 n. 134 Historic Places Act 1993 (New Zealand), 119, 131, 156, 174, 202, 640–645, 646 nn. 19–20, 648, 650–653, 657–658, 658 n. 59 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

index Historic Places Trust (New Zealand), 157, 643, 645–646, 648–650, 650 nn. 36–37, 652, 654, 661 historic site / historical site, 44, 118, 124, 143, 150, 152, 208, 236, 470, 472, 475, 478, 480, 644–645, 647–648, 650, 652, 669, 669 n. 3, 671, 677, 693, 705–706, 709, 745–751, 753, 760 holder, 20 n. 78, 26, 84, 115, 133, 135–136, 139, 162, 206, 208–211, 217, 220, 226, 251 n. 19, 253, 261, 271 n. 65, 284, 448, 453–454, 472–473, 487–492, 519, 523, 540, 554, 572–573, 586–588, 596, 598, 607, 609, 613, 616 n. 227, 617, 620 n. 242, 632, 672, 680, 715–716, 746–747, 749–750, 754–755 human rights, 5, 12 n. 36, 89–90, 90 n. 472, 98, 103, 103 n. 545, 202 n. 1253, 247 n. 3, 270, 372, 449, 761 ICOM (International Council of Museums), 17, 17 n. 56, 68, 163, 170, 173, 177–178, 267 n. 57, 316 n. 111, 318, 318 n. 119, 324, 342, 407, 617–619, 625 n. 268, 702 ICOM Code of Ethics, 68, 163, 170, 173, 177–179, 267 n. 57, 318, 324, 342, 407, 617–619, 625 n. 268, 702 ICOMOS (International Council on Monuments and Sites), 55–56, 73, 580, 594 n. 137 illegal export / unlawful export, 7 n. 10, 23, 25–26, 30 n. 132, 33–35, 35 n. 174, 38–39, 39 n. 194, 59–60, 62–70, 78, 113, 126, 164, 175, 182, 186–187, 224, 240, 248 n. 5, 249, 266 n. 54, 278, 283, 291–292, 301, 317, 319–320, 427, 456, 458–459, 461, 605, 605 n. 196, 618 n. 233, 644, 655, 682, 703, 710, 766 illicit trafficking / illegal trafficking, 32–34, 42–43, 52, 60, 62, 66, 77, 224, 385, 400, 403, 408–409, 485–486, 605 n. 196, 667, 758, 765, 767, 769 immovable cultural heritage / immovable cultural property, 29, 116, 121, 123–125, 130, 136–139, 139 n. 736, 140 n. 741, 141–152, 153 n. 828, 154–160, 162–165, 167, 171–172, 177, 182–183, 185–186, 189, 229, 248, 251, 251 n. 19, 252 n. 23, 253 nn. 24–26, 254–261, 263, 284–285, 287–289, 298 n. 2, 301, 351, 358–359, 425, 428, 452, 455–456, 482–484, 497, 506, 526, 566, 571, 574–577, 579 n. 72, 581–583, 585, 587, 592–594, 594 n. 134, 596, 599 n. 167, 602 n. 183, 619 n. 236, 627, 645, 648–651, 677, 679, 694, 704, 708, 711, 713, 750 immovable property, 12, 20, 25 n. 111, 108–109, 157, 253 n. 26, 258–259, 392,

779

452, 478, 481–482, 576, 576 n. 60, 587–588, 600 n. 172, 645, 650, 674–675, 679, 681, 703, 709 immovables, 117–122, 124–125, 129, 135–136, 138, 138 n. 730, 140–141, 144, 146–147, 150, 153, 155, 165, 167–168, 172–174, 176 n. 967, 182, 185–186, 234–235, 239, 251 n. 17, 252, 254, 256–257, 257 n. 33, 261, 263–264, 268, 283–287, 302, 344, 351–355, 358–360, 364–365, 369–371, 373–374, 377, 380–384, 390, 392, 429–430, 435, 442–446, 455, 478, 506, 510–511, 513–520, 522–524, 526–527, 532–533, 542, 545–546, 565–566, 574, 575 n. 56, 580–581, 585, 587 n. 102, 645, 673, 711, 748, 750–751, 758, 761, 765, 767 import, 7 n. 10, 32–36, 38–41, 41 n. 203, 59–60, 78, 123–124, 126, 162, 164, 167, 169, 175, 178–180, 182, 182 n. 1009, 184–188, 188 nn. 1037–1038, 191, 194–195, 223, 234, 240, 243, 248 n. 5, 249, 252 n. 21, 266 n. 54, 278, 283, 290–292, 300, 315–317, 318 n. 120, 319–321, 332, 398, 403, 406, 408, 408 n. 8, 416, 423–424, 434, 456, 460–461, 471, 474, 485–486, 501 n. 9, 503 n. 11, 524, 567, 605, 605 n. 196, 611 n. 213, 618 n. 233, 622 n. 251, 624, 640, 644, 653, 655, 682, 693–699, 702–703, 751–752, 760, 765–767, 769 import restriction, 34, 485, 766 in situ preservation, 76, 566, 582 INAH (National Institute of Anthropology and History) (Mexico), 153, 174, 187, 213, 529–531, 542, 547–550, 556 INBA (National Institute of Fine Arts) (Mexico), 154, 529–531, 547, 550, 556 Indian, 114, 125, 130, 130 n. 691, 143, 180, 189, 216, 227, 239–240, 245, 504, 504 n. 12, 760, 761 n. 10, 762, 764, 767–771 Indian Act of 1876 (Canada), 130, 180, 189, 227, 239 indigenous people, 5, 103 n. 545, 108, 114, 118, 132, 175, 208–209, 213, 213 n. 1205, 215–216, 227, 234, 242, 244–245, 345, 347, 349, 425, 434, 498, 504–505, 509, 510 n. 33, 513, 518 n. 50, 551–555, 662 n. 66, 746–747, 751, 753–756, 762, 771 ‘indirect’ restriction, 452 intangible cultural heritage / intangible cultural property, 5, 7 n. 10, 82–96, 96 n. 505, 101, 110, 115–125, 129, 131–136, 162 n. 876, 205–223, 225–227, 229–230, 243–246, 248 n. 5, 249–251, 268–277, 283, 292–293, 300–301, 333, 335, 343, 351, 412, 414, 425–426, 429, 436, 444, 462–464, 472, 474–475, 477, 487–493, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

780

index

497–498, 503, 503 n. 11, 553, 565, 569, 571–572, 618 n. 233, 624–632, 640, 658–659, 661, 684, 686, 693–694, 714–718, 718 n. 134, 720, 725–726, 728–729, 731, 733, 738–742, 747, 754–755, 770 intangible goods, 270, 270 n. 62, 685 intangible property, 425–426 integrity, 51, 57, 63 n. 323, 97 n. 506, 137, 144, 146, 153 n. 824, 155, 157, 166, 215–216, 244, 260, 357, 359–360, 448, 452–453, 457–458, 465, 509, 581, 646 n. 20, 707, 721, 770 n. 28 intellectual property rights, 83 n. 435, 217, 245, 334, 436, 631–632, 632 n. 307, 660–661, 721 Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation, 36, 42–43, 43 n. 209 international obligation, 34, 108 n. 567, 166, 194, 293, 300, 335, 460–461, 463, 660, 718 INTERPOL, 187, 765 inventory, 31, 39–40, 53 n. 258, 54, 60, 60 n. 307, 63, 85 n. 444, 92–93, 95, 149, 176, 179–183, 191, 208, 212–213, 218, 218 n. 1238, 221, 241, 263, 308, 314, 343, 351, 361–362, 364, 367, 376, 380, 382, 410, 410 n. 17, 414, 440 n. 6, 463, 490, 520, 531, 549, 565, 569, 575 n. 56, 587 n. 102, 597–598, 612, 616, 625, 627–628, 630, 646 n. 19, 655, 668–669, 669 n. 2, 670 n. 5, 671–673, 680, 685 n. 18, 687–689, 700–701, 706–710, 713–714, 741, 754, 761 n. 10, 766, 768 Iraq, 26, 123, 330, 332, 424, 568–569, 569 n. 28, 593 n. 131, 619, 623–624, 769 Istituto Centrale per il Catalogo e la Documentazione (Italy), 451 Italian Constitutional Court, 440 Italy, 7, 10, 41 n. 202, 113–114, 119, 127–128, 135, 146–147, 147 nn. 787–788, 159, 161, 165–166, 179 n. 989, 186–187, 194, 196, 199–200, 204, 214, 222, 227 n. 1276, 229, 231, 321, 439–466, 667, 698, 699 n. 25 Japan, 7, 12, 112, 117, 132–133, 150–152, 159–161, 167, 185, 187–188, 192–193, 202, 207–208, 220–221, 223, 226–228, 231, 467–493, 558, 746 jus gentium, 201, 764 kaitiakitanga (the ethic of stewardship) (New Zealand), 131, 131 n. 697, 642–643, 647, 647 n. 22, 653 Kingdom of the Netherlands, 563

Law for the Protection of Cultural Properties of 1950 (LPCP) (Japan), 117, 133, 150–151, 159, 167, 167 n. 911, 192, 207–208, 226, 228, 471, 474, 476–478, 482–484, 486–487, 491 Law No. 101/2001, on Restitution of Illegally Exported Cultural Heritage (Czech Republic), 291–292 Law No. 122/2000, on Protection of Museum Collections (Czech Republic), 165, 290 law of finds, 163–164, 167, 171–172, 175, 177, 183, 185, 188, 198, 579, 583, 604 Law of Jutland (1241) (Denmark), 128 n. 681, 297 Law of the Dane’s Realm (1683) (Denmark), 297 Law of the Sea, 70–72, 78 n. 405, 79 n. 414, 198, 198 n. 1109, 201–203, 301, 301 n. 16, 329, 368, 595 n. 142, 641, 764 LBN (General National Goods Act) (Mexico), 498, 531, 533 nn. 71–72, 544–545, 545 n. 97, 456 n. 99 LCHAr (Law 3/1999 on Cultural Heritage of Aragon) (Spain), 667 lex rei sitae, 266, 606 n. 198, 703 LHHS (Law on the Historical Heritage of Spain of 1985), 120, 136, 150, 150 n. 801, 807, 182–183, 203, 212, 666–676, 678–684 licence / license, 165, 169–170, 173, 186–187, 289–290, 314–316, 325, 376, 391, 393, 403–405, 433, 436, 479, 458, 581–582, 582 n. 85, 586, 591, 596, 603–604, 612 n. 216, 648, 676, 678, 706, 759 Listed Buildings Act (Denmark), 128, 299, 303–305, 307–308 local content quotas, 662 LSCCH (Law No. 20/1987, on the State Care of Cultural Heritage) (Czech Republic), 120, 139–140, 164–165, 216, 283–290, 293 Māori Heritage Council (New Zealand), 645, 649, 661 Māori Language Act 1987 (New Zealand), 659 market price, 169, 315, 394, 406–407 Mātauranga Māori (traditional Māori knowledge) (New Zealand), 219, 659–660 Maya, 512 Mc Clain case, 511 mecenatism, 454 Mexico, 6, 7, 33–34, 42 n. 205, 114–115, 120–121, 152–154, 160 n. 861, 173–174, 185–188, 190, 195–197, 203, 203 n. 1143, 213, 213 n. 1205, 216, 221, 229, 231, 234, 321, 495–559, 767 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

index Ministry for Cultural Goods and Cultural Activities (Italy), 146, 166, 441 n. 6, 446 n. 12, 447, 466 minority language, 212, 214, 218, 345, 412–413, 417–419, 568, 572, 625–626, 629–630, 685 misappropriation of traditions, 207–208, 212, 214–219, 222, 245–246, 274–275, 334–335, 414, 436, 491, 631–632, 660–661, 666, 683, 699, 720, 755, 771 monist approach, 564, 592 monument, 11, 13–14, 16, 20, 25 n. 111, 37 n. 183, 40, 44, 46, 48 n. 233, 49–51, 55–56, 60, 63, 67 n. 342, 73, 85 n. 446, 117, 118 n. 605, 121–125, 137–139, 140 n. 742, 141–143, 145–146, 148–150, 153–156, 160, 160 n. 861, 170, 173, 185 n. 1030, 188, 192, 206–208, 210 n. 1186, 236, 248 nn. 4–6, 251–252, 254–255, 260, 265 n. 51, 268, 270 n. 62, 271 n. 65, 272–276, 276 nn. 73–74, 283–287, 289–290, 297–298, 308 n. 56, 310–311, 311 n. 76, 325–326, 326 n. 152, 328–329, 341–342, 342 n. 1, 346, 351–365, 368–369, 371, 374, 378, 380–385, 388, 391–392, 395–397, 401, 404–405, 415, 424–425, 428–435, 435 nn. 45–46, 446, 450, 470–472, 475, 480, 492–493, 497, 497 n. 1, 505–522, 524–534, 538, 542–543, 545–546, 549–550, 557, 568, 568 n. 26, 570–591, 591 nn. 118–119, 593 n. 132, 594–596, 596 n. 149, 600 n. 171, 604, 624, 634, 655–656, 666, 669, 669 nn. 2–3, 671, 671 n. 7, 674, 674 n. 12, 676–677, 693, 703 nn. 43–44, 704–707, 709, 709 n. 83, 710 nn. 84–85, 87–88, 711 nn. 94–95, 97, 99, 712 nn. 102–104, 716, 734–735, 759–761, 764, 766 monument annuity, 206–207, 251, 251 n. 19, 270 n. 62, 271 n. 65, 272–276, 276 nn. 73–74 Monuments Act (DuMoA) (The Netherlands), 123, 155, 177, 568, 568 n. 26, 571–572, 574–579, 579 n. 72, 581, 583, 584 nn. 93, 95, 585–591, 595, 604 moral rights, 215–216, 244, 407, 414, 746, 756, 770, 770 n. 28 movable property, 12, 13 n. 39, 14, 108–109, 178, 263, 289, 351, 375, 379, 381–384, 396, 398, 408, 432, 434, 453, 571, 576, 606 n. 198, 607 n. 201, 680–681, 702, 751 movables, 61, 61 n. 312, 64, 108, 117–125, 129, 135–136, 144, 150, 153, 155, 164–165, 168 n. 914, 171 n. 938, 172–174, 176 n. 967, 177–180, 182, 185–186, 189, 195, 234, 239, 241, 263, 264 n. 48, 265, 283–286, 289, 344, 351–355, 371,

781

373–374, 376–384, 391–392, 401, 408, 427, 429, 433, 435, 484, 486, 512–516, 518, 520, 522–527, 531–533, 538, 542, 545–546, 550, 565, 596, 640, 652, 668–670, 680–682, 699, 703, 709–710, 751, 761, 765, 769–770 movable tangible cultural heritage, 119, 121–126, 131, 135–137, 139–141, 162–172, 172 n. 944, 174, 177–186, 189–190, 192, 197, 498, 525, 568 Musée de France, 122, 171–172, 341, 342 n. 7, 348, 352–353, 374, 377–378, 380–381, 384–386, 395–396, 401–402, 404–406, 410, 415–416 museum, 10, 14, 17, 17 n. 56, 20, 25 n. 111, 37 n. 184, 39–40, 60, 63, 122, 128, 131, 145, 163, 165, 167–170, 172–173, 175, 177, 180–181, 185, 189, 196, 198, 218, 223, 241–242, 263, 267–268, 274, 278 n. 80, 279, 289–290, 298–299, 299 n. 8, 304 nn. 28–31, 305 nn. 32, 34–35, 306 nn. 38–45, 307 nn. 48–50, 309 n. 61, 310–312, 312 n. 83–84, 316–329, 329 nn. 176–182, 334, 334 n. 207, 342–343, 345–350, 352, 354, 358–359, 375–377, 380–381, 384–387, 394–395, 407–408, 410, 414, 425, 430, 433–435, 441, 445–446, 450, 458–461, 470, 485–486, 508 n. 26, 511–512, 514–516, 520–522, 545, 550, 556–557, 565, 569, 600 n. 173, 602, 602 n. 182, 612, 617–619, 625, 625 n. 268, 628–629, 629 n. 291, 653, 655–657, 657 nn. 56–57, 666, 668, 671–672, 677, 684, 684 n. 17, 687–688, 695–696, 702, 704, 734–735, 753–754, 761 nn. 10–11, 766, 768–769 Museums Act (Zakon o muzejima) (1998) (Croatia), 163, 267, 267 n. 57, 279 NAFTA, 246, 552, 771 NAGPRA (Native American Graves Protection and Repatriation Act of 2000) (USA), 125, 129, 143, 181, 189, 349, 761, 761 n. 10, 767–770 national cultural monument (Czech Republic), 284–287, 290 national cultural monument (Mexico), 508 National Palace Museum (Taiwan), 754 National Service for Archaeology, Cultural Landscape and Built Heritage (RACM) (The Netherlands), 155, 574–575, 575 nn. 54–55, 584 n. 94, 594, 596 national treasure, 151, 167–168, 170, 172–173, 249, 266 n. 53, 342 n. 7, 354, 382–383, 385, 391, 400–401, 403–406, 410, 427, 470, 472, 475, 478–479, 484, 606, 611–616, 751–752, 754 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

782

index

Native American, 125, 129, 131, 143, 162, 181, 189, 226–227, 242, 757, 761, 761 nn. 10–11, 767–768, 771 Native Hawaiian, 125, 129, 143, 227, 757, 761, 767–769 natural heritage, 5, 7 n. 10, 28–29, 43–48, 50–51, 52 n. 257, 53, 53 nn. 257–258, 260, 56–58, 58 n. 294, 83, 85 n. 446, 101, 134, 136, 148, 159, 161 n. 873, 226–227, 236, 247 n. 2, 248 n. 5, 249, 282–283, 301, 359, 366, 368, 371, 423, 428, 455, 464–466, 503 n. 11, 567, 580, 618, 692, 704, 707, 758 natural property, 57, 465 NCHPA (Federal Nature and Cultural Heritage Protection Act of 1966) (Switzerland), 124, 148–149, 159, 704–708 NEPA (National Environmental Policy Act of 1969) (USA), 760 The Netherlands, 7, 113, 122–123, 135, 154–156, 159–160, 175–177, 185–186, 188–189, 193, 196, 202, 202 n. 1137, 217–218, 218 nn. 1236, 1238, 221–222, 230–231, 323, 561–637 Netherlands Antilles, 563, 567 n. 18, 580 New Zealand, 7, 114, 118–119, 131, 131 n. 697, 156–157, 160, 160 n. 864, 162, 174–175, 185–187, 189–190, 194–195, 202–204, 219, 224, 226, 231, 245, 348, 619, 639–662 New Zealand Model, 219 ngā taonga tūturu (New Zealand), 175, 653–654 Nok, statuettes of (France), 398 non-governmental organization, 17 n. 56, 73 n. 377, 85, 93, 139, 261, 263, 372, 407, 463, 483–484, 490, 595, 602, 679, 681, 688, 751 Nouméa agreements (France), 345–347, 358 NSPA (National Stolen Property Act) (USA), 125, 181, 765–766 Ny Carlsberg Glyptotek (Denmark), 321 Oaxaca, State of (Mexico), 498, 507–511 owner’s rights, 141, 147, 351, 359, 361, 370, 392, 431, 476, 584 n. 95, 597 PATEK (Protection Act of Indigenous Peoples’ Traditional Ecological Knowledge) (Taiwan), 755–756 PATIC (Protection Act of Traditional Intellectual Creation of Indigenous People of 2007) (Taiwan), 118, 132, 132 n. 702, 208–209, 221, 227, 746–747, 751, 754–756 peacetime, 14, 21, 28 n. 122, 30, 33–35, 109, 192, 261, 476 performing arts, 90, 206 n. 1155, 207, 270 n. 61, 473, 475, 487–489, 490 n. 19, 492, 570, 721

pillage, 13 n. 39, 22, 30 n. 135, 32, 182, 182 n. 1009, 511, 531, 533, 762, 766 POA (Protected Objects Act of 1975) (New Zealand), 174–175, 185–187, 224, 642–644, 644 nn. 12–13, 652–653, 654 nn. 41–45, 655, 655 nn. 47–51, 656 nn. 52–53 pre-Columbian cultural objects (Mexico), 321, 504–505, 507, 511, 513, 520, 525, 533, 550, 760, 767 prescription period, 604, 609, 622 preservation district (Japan), 477–478, 481 Private Art Dealer from Lyngby (Denmark), 321 private international law / conflict of laws, 69, 179, 224, 266, 397, 606, 606 n. 198, 698, 702 private property, 11–12, 12 n. 30, 13 n. 39, 51, 73, 126, 137, 147, 158, 163, 179, 225, 353, 355, 374, 377, 379, 383–384, 393, 404, 427–429, 452, 509 n. 29, 542, 550, 592 n. 129, 593 n. 132, 755 Pro Helvetia (Switzerland), 211, 225, 225 n. 1270, 230, 717, 719–720, 720 nn. 142–149, 722, 739–741 Programme of Masterpieces of the Oral and Intangible Heritage of Humanity, 84–86, 86 nn. 447–448, 89, 94–96, 96 n. 500, 225, 463 property rights, 51, 73, 83 n. 435, 108, 135, 137–138, 149–152, 154, 158, 160, 162–163, 170, 179–180, 182–183, 189, 199, 217, 225, 245, 255, 282, 288, 298, 307, 334, 345, 369–372, 379, 381, 387, 393, 426, 436, 448–449, 452, 471, 476, 482, 484, 519, 541, 570, 572–573, 584–586, 603 n. 189, 605, 607, 620, 631–632, 632 n. 307, 660–661, 665, 677, 703, 710–711, 721, 746, 750 protected monument, 145, 155, 431–432, 571, 574–575, 575 n. 56, 578, 580–583, 585–586, 587 n. 102, 588–591, 591 n. 118 protected New Zealand objects, 652–654 protected status, 710 public access, 139 n. 736, 255, 258, 264, 271, 648, 763 public goods, 146–147, 282–283, 293, 385, 445 public utility, 142, 261, 344, 369–371, 378, 408, 448 Public Works Act 1981 (New Zealand), 157, 651 Quebec, 124, 180–181, 234, 239–241, 244 Raad voor Cultuur (Council for Culture) (The Netherlands), 176, 580, 580 n. 79, 599, 599 n. 167, 602–603 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

index RDHHS (Royal Decree on the Historical Heritage of 1986) (Spain), 666, 683–684 Recopilación de Leyes de los Reynos de las Indias (Laws of the Indies) (Mexico), 509 recovery, 28 n. 122, 40–42, 58, 60, 62, 72 n. 371, 77–78, 193, 234, 239, 366, 426 n. 24, 454, 460, 549, 564 n. 8, 592 n. 127, 604–611, 613, 616, 621–622, 655, 681–683, 699, 752, 760, 763 n. 14, 767 register / registration, 22–23, 28, 68 n. 349, 132, 138, 138 n. 734, 140–145, 149–152, 154–155, 157, 163, 170–172, 175, 178–179, 182–186, 206–209, 211, 214, 216, 220–221, 235–236, 248, 248 n. 8, 250 n. 16, 251, 253–254, 254 n. 29, 256, 257 n. 33, 259, 269–271, 273–274, 277, 290, 302, 302 n. 21, 303 n. 23, 311–312, 317, 321, 329, 329 nn. 183–184, 330 n. 185, 342, 347, 349, 352, 354, 360–365, 376–377, 382, 384, 392, 399–400, 402, 410, 412, 415–416, 428, 432–433, 440 n. 6, 451, 473, 492, 504, 516–520, 522–523, 525, 527, 529–531, 550, 573, 575, 575 nn. 55–56, 587 n. 102, 588–589, 591, 597 n. 155, 599–600, 602 n. 183, 603, 616, 643–646, 646 n. 19, 648–650, 650 nn. 36–37, 652–654, 658 n. 59, 660–661, 669, 669 n. 4, 671–672, 678–679, 685, 688, 695–698, 701, 703, 706–708, 710, 713, 746, 748, 751, 754–755, 759, 768, 770 n. 28 Regulation 92/3911/EEC of 9 December 1992 on the Export of Cultural Goods, 169 n. 919, 313, 313 n. 85, 316, 423, 456, 456 n. 28, 458, 568, 603, 603 n. 185, 612, 612 nn. 216–217 religious monument, 265 n. 51, 590–591 religious movables, 241 remove / removal, 11, 23–24, 31, 33, 35 n. 174, 38 n. 188, 39 n. 194, 63, 63 nn. 319, 323, 71, 71 n. 368, 79, 123, 130, 140, 169, 191, 193, 201, 235, 238, 240, 258 n. 36, 259, 262, 265 n. 50, 266, 278, 286, 289–290, 307, 313 n. 85, 316, 316 n. 109, 318–319, 319 n. 124, 321–322, 324, 348, 363, 367, 373, 381, 386–387, 401, 427, 432, 434, 446 n. 12, 453, 456 n. 29, 460, 463, 522, 564–565, 568–569, 583, 592 n. 128, 593 n. 131, 601 n. 176, 606, 606 n. 199, 611–616, 619–624, 646, 651–652, 655, 665, 675–676, 682–683, 694, 759, 767 remuneration, 140, 206–207, 251, 251 nn. 19–20, 270 n. 62, 271 n. 65, 273–277, 277 n. 76, 286, 608 res extra commercium, 146–147, 178, 513, 515, 521, 524–525, 527, 529, 533, 537, 539, 543, 546–547, 603, 696–697, 708, 710 res nullius, 542

783

Resource Management Act (1991) (New Zealand), 131, 131 n. 697, 156, 640, 642–645, 645 n. 17, 647–650 restitution, 26, 35 n. 174, 36, 38, 38 n. 188, 40–43, 52, 62–64, 66–67, 67 n. 342, 69, 77, 162, 165–167, 171, 174–175, 177, 184, 193–194, 291–292, 324, 345–349, 391, 407, 409, 411, 458–462, 511, 544 n. 91, 615, 618, 622–623, 656, 656 n. 53, 696, 699, 704 return of cultural property, 26, 36, 42–43, 63 n. 319, 123, 126, 131, 170–171, 193, 266, 278, 313 n. 85, 318, 318 n. 122, 320, 427, 456 n. 29, 459, 460 n. 32, 568–569, 592 n. 128, 593 n. 131, 601 n. 176, 606 n. 199, 611 nn. 210, 212, 618–623, 675, 682–683, 753 Rhaeto-Romanic, 718, 725–729, 738 n. 258 right of pre-emption / pre-emption right, 139–140, 148, 160–161, 165, 171, 183, 229, 240, 258 n. 37, 259, 265, 287–288, 315, 342, 342 n. 2, 369–370, 374, 378–379, 385, 393–394, 401, 428, 432, 449, 456, 497, 515–516, 520, 522, 581, 678, 703, 711, 714, 750, 752 Rouen Museum (France), 347–348, 387 Saartjie Baartman (France), 349 safeguarding, 5, 7, 7 n. 10, 17, 21, 21 n. 86, 24, 30–31, 39, 44–45, 51, 57–59, 82–93, 93 n. 483, 95–96, 97 n. 505, 99, 108, 110, 114–116, 122–123, 128, 132, 139–140, 146–147, 154, 158–159, 162, 166, 168–169, 176, 184, 191, 200, 204–207, 209, 211, 216–218, 220–222, 225–226, 229–230, 243, 248 n. 5, 249–250, 268–269, 271, 274, 283, 292, 297, 298 n. 2, 300–304, 305 n. 31, 308, 308 n. 55–56, 310–312, 325, 330–331, 333, 335, 343, 364–365, 368–369, 389, 426, 436, 440 n. 6, 443–444, 447–448, 451–453, 462–464, 487, 490, 498, 503, 503 n. 11, 533, 535, 547–548, 618 n. 233, 624, 628, 630, 658, 684, 687–688, 693, 699–700, 714, 717–718, 718 n. 134, 733, 738–742, 746, 754–755, 758, 762, 770–771 Sanctieregeling Irak 2004 II (Sanction Order Iraq) (The Netherlands), 123, 123 n. 644, 569, 623–624, 624 n. 258 seabed, 71 nn. 363, 368–369, 80 n. 420, 198–200, 267, 328–329, 373, 401, 449, 451–452 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999), 18, 18 n. 65, 20, 22, 26–32, 108, 118, 162, 190–192, 194–195, 197, 227–228, 231, 242–243, 248 n. 5, 249, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

784

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262, 278, 283, 291–292, 301, 330, 439, 486, 567, 592, 594, 618 n. 233, 640–641, 651, 657, 699, 762 secteurs sauvegards (safeguarded sectors) (France), 364–365 self-regulation, 617 smuggle, 32, 267 n. 56, 703, 765, 765 n. 20 Sorb (Germany), 134, 430, 430 nn. 32–33, 434 South Africa, 348–349 Spain, 7, 112, 118, 120–121, 136, 149–150, 150 n. 805, 182–183, 183 n. 1014, 186–188, 194, 194 n. 1080, 196–197, 203–204, 212–213, 221–222, 225, 231, 323, 509–510, 518, 552, 663–689 Spanish Constitutional Court, 149–150, 666 sponsorship of cultural heritage, 147, 211, 221, 454, 523, 717, 731 State care and protection of cultural heritage (Czech Republic), 284 State care of cultural heritage, 120, 139, 164, 216, 283–287, 289 State domain, 445, 445 n. 11, 446 n. 12 State Inspectorate for Cultural Heritage (The Netherlands), 176, 176 n. 969, 591, 598, 600, 603, 615, 624 stewardship, 131, 131 n. 697, 642, 647 n. 22, 758 stolen cultural property, 32, 35 n. 174, 40, 41 n. 203, 60, 62–69, 125, 162, 164, 168, 171, 175, 177, 181, 185, 210 n. 1186, 224, 234, 239–240, 266, 292, 316–317, 320–324, 351, 394–397, 399, 402–403, 426, 426 n. 24, 434, 459–460, 485–486, 564, 583, 605–609, 611, 616, 655–656, 656 nn. 52–53, 682–683, 702, 716, 753, 765–767, 770 subsidy, 128, 149, 154, 169–170, 209–210, 210 n. 1182, 214, 286, 288, 292, 298, 311 n. 76, 312, 317–318, 321, 324–325, 325 n. 147, 343, 428, 430, 470, 472–473, 490, 569, 581, 583, 583 n. 91, 602, 628, 676, 700, 704, 706, 708, 712, 729, 732, 735–737 Superintendent (soprintendente) (Italy), 146, 447, 453 Swiss National Service, 696 Switzerland, 7, 44 n. 215, 115, 122–124, 135–136, 148–149, 159–160, 177–179, 185–188, 191, 197, 202, 209–212, 221–223, 225, 225 nn. 1269–1270, 227–228, 230, 231, 426, 426 n. 24, 526, 691–743 Tadic, Dusko, 18 n. 70, 194, 330 Tai Dong (Taiwan), 753 Taiwan, 7, 114–115, 117–118, 132–133, 152, 167–168, 168 n. 914, 188, 190, 194–195,

202, 208–209, 220–221, 227, 231, 745–756 taonga (“treasure”) (New Zealand), 131, 157, 175, 219, 226, 640, 643, 646–647, 648 n. 26, 649, 653–654, 656–658, 660–661 Television New Zealand (TVNZ) Charter, 662 temporary exportation / temporary export, 164, 166, 173–174, 183, 186, 383–384, 404–405, 458, 530, 603 tentative list, 54–55, 55 n. 272, 59, 92, 94, 151, 159, 254, 254 n. 30, 286, 478, 580, 707 Teotihuacan (Mexico), 506, 526 te reo Māori (Māori language) (New Zealand), 219, 659–662 theft, 22, 30 n. 135, 32, 34, 35 n. 169, 52, 60, 63–64, 66, 67 n. 342, 69, 191, 239, 243, 245, 261 n. 41, 264 n. 49, 267 n. 56, 317, 319, 323, 332, 383, 394–395, 398, 401–402, 409, 411, 427, 481, 485–486, 608, 614, 616, 665, 680, 683, 699, 766–767 Thompson case, 512, 527 Thorbecke principle, 570, 570 n. 33, 630 n. 299 Ticino, 211 n. 1191, 725, 738–739, 743 Titanic, 764, 764 nn. 16, 18 Trade Marks Act 2002 (New Zealand), 661 traditional building, 117, 473, 475, 477–478, 481, 493 traditional cultural expression, 85–86, 208, 276, 335, 413–414, 491–492, 631–633, 714, 755–756, 767 traditional knowledge, 84, 89, 208, 219, 244, 269, 334–335, 413–414, 487, 491–492, 626, 631–632, 658, 660–661, 686, 754–755, 771 trafficking, 32–34, 42–43, 52, 60, 62, 66, 71, 71 n. 368, 77–78, 224, 385, 399–400, 403, 408–410, 485–486, 514, 525, 535, 538–539, 605 n. 196, 667, 681, 758, 765, 767, 769 transfer of ownership, 7 n. 10, 32–34, 36, 38–39, 41 n. 203, 59, 62, 67, 69, 78, 120, 123–124, 162–164, 166, 168–169, 173–176, 178, 180–181, 183–185, 201, 210 n. 1186, 223, 234, 240, 248 n. 5, 249, 266 n. 54, 270 n. 62, 278, 283, 287, 290–291, 300, 316–317, 319, 319 nn. 126–127, 354–356, 362–363, 376, 378, 383, 386–387, 389, 391–392, 398–399, 408, 408 n. 8, 416, 423, 435, 449, 456, 460, 461 n. 35, 470–471, 474, 485–486, 503 n. 11, 522, 538, 541, 567, 583, 585, 600–601, 605–609, 613, 618, 618 n. 233, 621, 623, 644, 653, 655, 680–682, Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

index 693–695, 701–703, 704 n. 46, 710–713, 716, 750, 752, 763, 765–766, 769 treasure trove, 163, 171–172, 175, 177, 183, 202, 264, 264 n. 45, 268, 297, 322–323, 327, 327 n. 161, 389, 426–427, 433–434, 579, 583, 584 n. 96, 604 Treaty of Waitangi (New Zealand), 114, 132, 219, 219 n. 1249, 226, 643, 647, 658–659 Tunisia, 7–8, 120–121, 132–133, 154, 183–184, 186–187, 190, 200, 200 n. 1119, 209, 231 UNCLOS, see United Nations Convention on the Law of the Sea (1982) underwater cultural heritage, 7 n. 10, 70–81, 81 n. 422, 110 n. 570, 121, 125, 162, 197–204, 243, 248 n. 5, 249, 262, 283, 301, 416, 429, 435, 439, 451, 503, 503 n. 11, 566, 579, 584 nn. 94–95, 595–596, 618 n. 233, 624, 641, 651, 654, 654 n. 46, 657, 762, 764 underwater cultural property, 199, 344, 357, 373, 376–378, 390, 401, 408, 429, 483, 487 UNESCO, 7, 7 n. 10, 10, 14, 14 n. 46, 16–17, 17 n. 56, 20, 22, 27–29, 32–34, 36, 42–45, 49 n. 234, 54 n. 264, 56–57, 59, 61, 72–73, 75, 78, 80 n. 418, 81–84, 86–87, 92 n. 480, 96–101, 107 n. 562, 108–109, 117, 117 n. 600, 161, 166, 190, 197, 200, 213, 215, 220–223, 228, 234, 236, 240, 243, 245, 247, 247 n. 2, 248 n. 5, 266 n. 54, 278, 300, 300 n. 15, 316 n. 111, 319, 319 nn. 126–127, 343, 368, 407, 409, 416, 422–424, 426–428, 434, 436, 443–444, 451, 455–456, 460–466, 474, 487, 490 n. 20, 491 n. 22, 501 n. 9, 503, 524, 531–532, 567, 567 n. 19, 574, 580, 595, 605 n. 196, 606 n. 197, 614–615, 618 n. 233, 624, 630, 641, 644, 651–652, 655, 686, 694–695, 697, 699, 704 n. 46, 713–714, 718, 718 n. 134, 728, 733, 739, 739 n. 264, 742, 758, 764, 766, 769–771 UNESCO Convention for the Protection of the World Cultural and Natural Heritage (1972), 7 n. 10, 28–29, 43–59, 59 n. 300, 82, 85–87, 91–94, 101, 104, 106, 108–109, 124, 127, 136–137, 142, 144, 146, 148, 151, 153 n. 824, 155, 158–162, 205, 226–229, 231, 236, 248 n. 5, 249, 253 nn. 24–25, 254, 283–284, 286, 293, 301, 357, 359, 365–368, 409 n. 11, 423, 428, 443, 452, 455, 455 n. 24, 464–466, 503, 531, 567, 574, 580, 658, 692, 704, 706–707, 758 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003), 7 n. 10, 82–96, 96 nn.

785

501–502, 505, 101, 104–106, 108, 110, 119, 122, 129 n. 683, 134–135, 205, 209, 211, 211 n. 1193, 213–222, 225–227, 230, 231, 248 n. 5, 249, 269, 283, 292, 301, 333, 335, 343, 426, 436, 444, 462–464, 487, 489, 503, 503 n. 11, 532, 618 n. 233, 624, 630, 693, 714, 718, 718 n. 134, 733, 739–742, 770 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), 7 n. 10, 32–43, 52, 59–67, 78, 108–109, 123–126, 162, 162 nn. 878–879, 165–167, 169–170, 173–175, 177–178, 178 n. 981, 180–182, 182 n. 1009, 184–188, 223–224, 231, 234, 240, 248 n. 5, 249, 266 n. 54, 278, 283–284, 290, 293, 300, 317, 319–320, 398, 407–409, 411, 416, 422–424, 426–427, 434, 436, 456, 460–461, 474, 485, 501 n. 9, 503, 524, 531, 567, 567 n. 19, 605 n. 196, 606 n. 197, 614–615, 618 n. 233, 644, 652, 692–695, 697, 699, 713, 766 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005), 7 n. 10, 96–108, 108 n. 567, 110, 119, 122, 134–135, 205, 211 n. 1193, 213, 215, 220–222, 225, 227, 230, 231, 245, 343, 423, 444, 462 n. 38, 503, 503 n. 11, 532, 567, 693, 714, 742 UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001), 7 n. 10, 70–82, 108–110, 110 n. 570, 136, 162, 197–201, 203–204, 227, 227 n. 1276, 230, 231, 243, 248 n. 5, 249, 262, 283, 301, 329, 416, 429, 439, 451, 503, 503 n. 11, 595, 618 n. 233, 641, 651, 764 UNIDROIT, 7, 7 n. 10, 38, 52, 59–70, 78, 82, 109, 113, 117, 117 n. 600, 162, 162 nn. 879–880, 164–166, 169, 174–175, 177, 184, 184 n. 1024, 185 n. 1028, 186–187, 224–225, 240, 248 n. 5, 249, 266 n. 54, 278, 283, 301, 317, 320, 335, 396, 403, 408, 416, 456, 459–460, 460 n. 32, 606, 618 n. 233, 644, 652, 655–656, 703 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995), 7 n. 10, 38, 52, 59–70, 78, 82, 109, 113, 162, 162 nn. 879–880, 164–166, 169, 174–175, 177, 184, 184 n. 1024, 185 n. 1028, 186–187, 224–225, 231, 240, 248 n. 5, 249, 266 n. 54, 278, 283, 301, 317, 320, 335, 396, 403, 408, 416, 456, 459–460, 460 n. 32, 606, 618 n. 233, 644, 644 n. 13, 652, 655–656, 703 Toshiyuki Kono - 978-90-04-18991-1 Downloaded from Brill.com06/15/2023 02:01:07AM via York University

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United Nations Convention on the Law of the Sea (UNCLOS) (1982), 70–72, 72 n. 370, 75, 77–79, 79 nn. 408, 410, 414, 198, 198 n. 1109, 202–203, 301, 301 n. 16, 329, 368, 595 n. 142, 641 United States, 6–7, 10, 14, 14 n. 46, 34, 39, 42 n. 205, 44–45, 82 n. 424, 112, 122, 124–125, 129–131, 143–144, 162, 180–182, 189–190, 195, 200–201, 204, 216, 221, 226–227, 234, 239–242, 245, 499, 502, 507, 511, 511 n. 37, 512–513, 521, 757–771 unlawful export, see illegal export Urban Planning Code (Code de l’urbanisme) (France), 368, 370 Valetta Convention, see European Convention on the Protection of the Archaeological Heritage (Revised, ETS No. 143) (1992) vandalism, 22, 30 n. 135, 699

war time, 12–14, 16, 35, 109, 116, 300, 344, 476, 565–566, 594, 619 n. 236, 640, 746, 750 World Heritage List, 29, 48–49, 53–59, 83, 85 n. 446, 109, 127, 137, 147–148, 151, 158–159, 162, 228–229, 247–248, 257 n. 33, 428, 428 n. 27, 443, 455, 455 n. 24, 464–465, 478, 574, 580, 658, 758 World War II (Second World War), 14, 16, 23, 33, 43, 234, 328, 435, 469, 471–472, 548, 570, 578 Yucatán (Mexico), 511–512 zoning, 148–149, 261, 359, 424, 581, 583, 585–586, 704, 708–709 zoning plan, 581, 583, 585–586 ZPPAUP (Zones de protection du patrimoine architectural, urbain et paysager) (France), 359, 364–365, 369

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