This chapter describes cultural heritage law and management in Africa. Whether in the field of tangible and intangible heritage or the domain of movable and immovable cultural heritage, sub-Saharan Africa legislation and administration of cultural property have been blighted by the colonial past. Independence has not always been used as opportunity for a breaking off or breaking forth with the cultural heritage protection system installed by the former colonial power. It appears that the formulation and elaboration of cultural heritage laws are often designed on European concepts of the protection of cultural property. The laws are, therefore, not often adapted to the present African realities. This is a legacy of the colonial past. The chapter then considers the AFRICA 2009 programme, which has helped in many ways to enhance in manifold ways the conservation of immovable cultural heritage in sub-Saharan Africa through a sustainable development process.
This chapter examines existing ‘Alternative Dispute Resolution’ (ADR) options—such as negotiation, mediation, conciliation, and arbitration—with a view to assessing their efficacy in relation to cultural heritage disputes. Indeed, even a cursory consideration of the practice reveals that the vast majority of restitution claims arising in the past few decades have been settled through such means. Admittedly, this is due to the fact that ADR procedures combine important virtues. The first advantage of ADR resides in the parties’ power to tailor the settlement process according to their interests and the circumstances of the dispute. Second, private settlement is likely to be speedier and cheaper. Third, these mechanisms provide for flexibility and creativity. Fourth, since disputes are resolved out of the public eye, extra-curial resolution ensures confidentiality. Lastly, ADR entails neutrality and fairness.
Disputes involving Olympic athletes can arise from a wide range of decisions made by a host of entities. A disputed decision may involve the eligibility of an athlete, employment of coaches and staff, organizational governance, doping, and commercial contracts. Three disputes involving athletes and the modern Olympic games show how arbitration has come to play a central role in resolving contested decisions of sporting associations. First, the case of sprinter Harry Reynolds illustrates the limitations of using national courts to challenge doping-related sanctions. Second, the eligibility struggles of Oscar Pistorius demonstrate how athletes and national sporting associations can benefit from arbitration’s efficiency. Finally, the case of Claudia Pechstein offers a recent example showing the deference given arbitration by national courts, for better or worse.
This chapter explores the protection of cultural heritage in Asia. Rapid socioeconomic transformation in East Asia and South East Asia has posed a serious challenge to the cultural heritage of the sub-regions. The substantial damage and destruction inflicted on the cultural heritage, coupled with the growth of public awareness on its importance for national identity, prompted the governments in the region to take action, in particular through promulgation of the laws and regulations for the protection of cultural heritage. In so doing, the meaning of cultural heritage has generally expanded beyond the traditional, tangible cultural objects into intangible and underwater cultural heritage. A series of international conventions for the protection of cultural heritage, adopted under the auspices of UNESCO, has undoubtedly provided much impetus. Also, the question of return or repatriation of cultural objects to their countries of origin looms increasingly large in Asia.
This chapter discusses the protection of cultural heritage in Central and South America. The key defining features of Central and South American regional efforts in the field of heritage are the use of heritage as a tool for development and the connection between heritage and indigeneity. With respect to development, the main approach is policy-driven, explained both by the nature of the objective (economic) and by the fact that most organizations engaging in this area have reduced mandates for rule-making with respect to heritage. With indigeneity, rule-making is stronger, engaging a proud tradition of international lawmaking in the region, which started as part of a Pan-American reliance on the rules of international law to shield Central and South American nations from European colonialism and US neo-colonialism. In the specific area of heritage, there is certainly a conversation between the regional and the global that needs to be accounted for.
Erin Aeran Chung
This chapter surveys the major challenges, opportunities, and insights of scholarship on citizenship and migration in the so-called non-Western world in order to move the field of citizenship studies forward by critically reevaluating our assumptions about the concept of citizenship, its associated rights, and the lived realities of citizenship practices in various parts of the world. The study of citizenship in various non-Western contexts provides a distinctive lens through which we can analyze its contradictions. Rather than begin with the assumption that citizenship is universal, democratic, and inclusive, research in this area highlights how citizenship—as a legal status, symbol of national and/or ethnic identity, institution, and practice—is contingent. The chapter explores how technologies of citizenship create hierarchies of citizens and noncitizens that prioritize meso-level membership over individual rights, that extend beyond national boundaries, and that generate “in-between” statuses among both native and migrant populations.
This chapter addresses the role of ethical rules in the field of art law and international protection of cultural heritage. The examination of the legal nature of the codes of ethics and of their effectiveness is preceded by the analysis of their role which is frequently twofold. On the one hand, ethical codes can inspire market regulation by establishing or by confirming a catalogue of good practices in this field. This is the case of the CINOA (International Confederation of Art and Antique Dealers) Code of Ethics and the ICOM (International Council for Museums) Code of Ethics. In such cases, the codes of ethics may have a direct and/or an indirect effect to the functioning of the commercial transactions in this sector. Ethical codes may also represent a source of inspiration for the development of law rules, at both national and international levels.
Cosmopolitan citizenship is a controversial notion. But it has also been taken to mean different things. In this chapter, I first outline three ways in which “cosmopolitan citizenship” has been understood. The first understands cosmopolitan citizenship as a legal-political ideal, as an actual political membership under a world government. The second understand the cosmopolitan citizen to be someone who is empowered and has the capacity to participate in global democratic decision-making and governance. I will call this the democratic conception of cosmopolitan citizenship. This is the conception of cosmopolitan citizenship associated with the idea of cosmopolitan democracy. The third sense of cosmopolitan citizenship understands it more metaphorically, to express a normative perspective or point of view the globally engaged individual should adopt. I call this the normative conception of cosmopolitan citizenship. This is the conception of cosmopolitan citizenship that is assumed when invoked in discussions of cosmopolitan justice. I grant that while the legal-political and democratic conceptions of cosmopolitan citizenship are questionable, the normative conception is a coherent and morally galvanizing ideal.
This chapter addresses the main legal, institutional, and operative challenges to the protection of cultural and natural heritage along the temporal phases of a disaster. Recent disasters have demonstrated how cultural and natural heritage can suffer significantly from calamitous events. Despite the frequency and magnitude of disasters, the international legal framework has paid little attention to legal challenges posed by the protection of cultural and natural heritage in disaster settings, a situation compounded by the absence of in-depth scholarly analysis. The chapter then examines how international cultural heritage law (ICHL) has so far addressed this topic, also in light of the increasing cross-fertilization with inputs provided by an emerging branch, namely international disaster law (IDL). It also highlights the so-called ‘cycles of a disaster’, commonly arranged along the phases of mitigation and preparedness, relief and recovery.
This chapter studies the link between cultural heritage and human rights, considering treaties on cultural heritage and treaties on human rights. Cultural heritage is increasingly seen in international law not merely as an important product or value in itself but also in relation to the construction and preservation of cultural identities and, thereby, of the dignity of peoples, communities, and individuals. This has enhanced the human rights dimension of cultural heritage, in particular for minorities and Indigenous peoples. Several human rights—including the rights to take part in cultural life, to enjoy culture, and to freedom of expression and assembly—confirm that protection and promotion of cultural heritage is part of human rights. Strengthening and maintaining the link between cultural heritage and human rights reaffirms cultural heritage as a value for human dignity and reflects a shift from a sovereignty and State-centric approach to a people’s and peoples’ approach.
This chapter examines the protection of both cultural heritage and intellectual property. The relationship between cultural heritage and intellectual property evolves in a profoundly complex setting—with many institutions and actors involved, often with very different or even divergent interests, and within a fragmented legal regime. Although intellectual property law has developed sophisticated rules with regard to a variety of intellectual property forms, it is based on certain author-centred and mercantilist premises that do not work so well with the protection of traditional knowledge (TK) and traditional cultural expressions (TCE). Nevertheless, in the fields of patent, trademark, and copyright protection, there are tools that may provide some, albeit imperfect, protection of TK and TCE. The chapter maps the mismatches and the gaps and asks whether these can be addressed in some viable way—be it through adjusting the existing rules or through the creation of new tailored models of protection.
The beginnings of international cultural heritage law can be traced to rules on the treatment of cultural sites and objects in war—that is, to international humanitarian law, the branch of public international law dedicated to the regulation of the conduct of what we now refer to as armed conflict. Today there exists a detailed body of conventional and customary international humanitarian law designed to protect tangible cultural heritage, both immovable and movable, from destruction and damage and from all forms of misappropriation in the course of international and non-international armed conflict. The chapter provides an account and analysis of these rules.
The application of State immunity to cultural heritage property may yield contradictory outcomes. On the one hand, it may bar access to justice by rightful owners of cultural property. On the other, it may shield art objects from reparation claims by victims of state breaches of obligations which are unrelated to ownership issues. This chapter examines the law and practice concerning cultural heritage and state immunity. A variety of pertinent recent developments are reviewed, such as certain law-making activities by the Council of Europe, the International Law Association, and a number of States, as well as several high-profile judicial disputes challenging state immunity for cultural property, particularly in the context of the United States Nazi-looted art litigation. Against that backdrop, the chapter discusses the boundaries of customary law in this area, especially as regards the existence and scope of a customary rule of immunity from seizure for artworks on loan.
This chapter determines to what extent international norms on State responsibility may be applied in cases of the violation of international obligations concerning cultural heritage. It determines to which State wrongful behaviour may be attributed; second, which breaches of law consist in wrongful acts; third, whether such responsibility may be precluded; fourth, what consequences arise from the recognition of State responsibility including which persons are entitled to invoke such responsibility. Although cultural heritage treaties do not provide for a distinctive responsibility regime, the Draft Articles on State Responsibility are applicable to wrongful acts arising from the breach of the obligations established by these treaties. Moreover, the breach of the norms relating to cultural heritage, which have been recognized as part of customary international law, entails the application of general principles on State responsibility, including those contained in the Draft Articles. The chapter then considers the principle of ‘responsibility to protect’.
This chapter describes the relationship between the evolving international law regime for the protection of cultural heritage and the theory and practice of State succession. State succession in respect of cultural heritage has usually been associated with the allocation and division of movable cultural treasures following territorial transfers. Hence, much of the doctrinal effort has focused on the principles and criteria governing the passing of State cultural property and attempted to respond to the topical question of to whom cultural property belongs. The chapter then looks at the codified sources of the law on State succession. It also examines the consequences of State succession relating to distinct pre-existing legal situations: State archives and property; international cultural heritage obligations arising from treaties and customary international law; and international responsibility for cultural heritage wrongs committed prior to the date of succession.
Joseph Powderly and Rafael Braga da Silva
The women’s rights movement has secured important reforms aimed at realizing the promise of genuine equality and the universality of fundamental human rights norms. Giving substantive voice to the cultural rights of women has been an important feature of the discourse and has led to significant advances in recognizing the intersectionality of the forms of oppression experienced by women, the centrality of women’s agency in exercising their cultural rights, and the dangers of essentialized conceptions of the lived experiences of women. The chapter explores the extent to which gender issues are reflected in international cultural heritage instruments as well as in the practices and policy initiatives of UNESCO. It suggests that the advances made in the realization of women’s cultural rights have not yet been fully translated in the context of international cultural heritage law and practice.
This chapter evaluates whether the existing legal framework adequately protect cultural heritage vis-à-vis the economic interests of foreign investors. It aims to address this question by examining recent arbitrations and proposing three principal legal tools to foster a better balance between economic and cultural interests in international investment law and arbitration. This recent jurisprudence highlights that arbitral tribunals are increasingly providing consideration to cultural concerns. Yet, the interplay between the protection of cultural heritage and the promotion of foreign direct investment in international investment law and arbitration continues to pose two main problems: one ontological, concerning the essence of international investment law and international law more generally; and one epistemological, concerning the mandate of arbitral tribunals. The chapter then considers three principal avenues that can facilitate a better balance between the public and private interests in international investment law: a ‘treaty-driven approach’; a ‘judicially driven approach’; and counterclaims.
Ana Filipa Vrdoljak
This chapter examines the interrelationship between cultural heritage and efforts to secure and sustain peace. It gives an overview of the new international order the post–World War I and II peace settlements sought to create and the role of specialist culture bodies within intergovernmental frameworks in promoting the role of culture and cultural heritage in peace efforts. The role of culture rights and cultural heritage is considered within the transitional justice framework enunciated by the UN covering the rights to justice and accountability, truth, remedy and reparation, and guarantees of non-recurrence. Illustrations are drawn from the burgeoning jurisprudence of regional human rights courts and international criminal courts and State practice arising from the proliferation of peace processes since 1989. Finally, it considers the preventative role of cultural heritage and cultural rights in sustaining peace beyond the post-conflict context and UN/UNESCO efforts to promote a culture of sustainable peace.
This chapter assesses whether contemporary international law prescribes obligations in the field of cultural heritage protection, which are binding upon States and other relevant international actors independently of or even against their consent. This question is relevant for a number of reasons. First, in spite of the widespread acceptance of treaty obligations in the various fields of cultural heritage protection, many States remain outside of the treaty regimes. Second, even for the States bound by treaties in force, their obligations have no retroactive effect, therefore leaving situations or disputes arising before the entry into force of relevant treaties outside their scope of application. Third, recognition of the character of custom or general principles to certain norms of international law may guarantee a superior ranking in the domestic law hierarchy of sources of the law.
This chapter explores the legal and policy links between the cultural heritage and the natural environment. Although there are formal separations between the two realms, there is an increasing convergence between them, manifested in the interpretation of the primary international instruments and associated guidelines and policies. In the Indigenous world, the links between culture and nature have always been more obvious and understood. Thus an increasing legal integration of the concepts of cultural heritage and natural heritage should be seen as a welcome development. It is argued that, unless an awareness of the vital dependence of humanity on its local and global environments can be re-established, the polycentric existential crises facing humanity—represented by climate change, pollution, land degradation, and biodiversity loss—have little chance of being addressed. A fundamental rethink of our understanding of the legal and policy relationships between the cultural heritage and the natural environment is required.