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International Heritage Law for CommunitiesExclusion and Re-Imagination$

Lucas Lixinski

Print publication date: 2019

Print ISBN-13: 9780198843306

Published to Oxford Scholarship Online: July 2019

DOI: 10.1093/oso/9780198843306.001.0001

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Definitions: From Cultural Property to Cultural Heritage (and Back?)

Definitions: From Cultural Property to Cultural Heritage (and Back?)

(p.27) 2 Definitions: From Cultural Property to Cultural Heritage (and Back?)
International Heritage Law for Communities

Lucas Lixinski

Oxford University Press

Abstract and Keywords

This chapter focuses on the multiple definitions of ‘heritage’ in UNESCO instruments, and particularly on their relationship to the idea of ‘property’, with respect to communities’ engagement with heritage. It examines the drafting history of the key UNESCO treaties in the area, to identify the role of communities and other stakeholders in the definitions, as well as the political compromises made. The chapter also re-examines the move from ‘cultural property’ to ‘cultural heritage’, an important part of the elevation of the field to one overseeing international public goods. The chapter argues that this shift has had unintended consequences, key among which is the exclusion of communities. The field would do well to revisit the idea of ‘property’, but, as the chapter discusses, as a specific understanding of property that goes against conventional wisdom based on property as the ultimate bastion of individual liberty.

Keywords:   definitions, drafting history, cosmopolitanism, property, heritage

In order to critically assess the impact of international heritage law on communities, a first step is to unpack the very definition of heritage, and legal discourses around it. I unpack heritage in this chapter as a means of understanding whether and how communities are positioned with respect to cultural heritage on a definitional level, the input of communities in defining and attributing value to heritage, and how claims around heritage are staked out through definitions. This chapter traces the evolution of the notion of ‘cultural heritage’ in the different UNESCO instruments as an attempt to more clearly understand how international law has conceived of culture as a proxy for sovereignty, and ‘heritage of [hu]mankind’ as a banner of cosmopolitanism. Cultural heritage is a notion where these two apparently conflicting views of international law and their roles must be negotiated.

I argue in this chapter that the move from cultural property to heritage, while it enhanced many of the values of cultural heritage—and particularly its connection to intangible cultural processes rather than tangible buildings, monuments, and artefacts—has also had the (unintended) consequence of disassociating communities from heritage they live with or around, and for whose survival they are necessary. As a result, a return to a specific way of conceptualizing property may be needed, at least in some respects.

This chapter offers a genealogy of the concept of ‘cultural heritage’ in international heritage law as a means to showcase how debates over sovereignty and cosmopolitanism have played out since midway through the twentieth century inside a UN Specialized Agency. Additionally, I attribute part of the disconnect between communities and their heritage promoted by the law to one between domestic and international: while international legal discourse, and cosmopolitanism with it, has embraced the notion of heritage, domestic law still relies heavily on the category of property as a means to implement international legal obligations with respect to heritage. So, while the language of heritage in international law has introduced key values into the way we think about culture, domestically the language of property seems to be impervious to or deny those aspirations. The effect of this mismatch is once again to exclude communities from controlling their own culture.

This chapter will assess the way the multiple treaties under UNESCO have defined cultural heritage, and the values attached to those definitions. I will also rely on (p.28) primary sources and scholarly work around the history of UNESCO,1 and, on the international law front, work on the definition of cultural heritage in international law, and the shift from cultural ‘property’ to cultural ‘heritage’.2 The purpose of using these sources is to paint a clearer picture of how heritage is defined by international law across the spectrum of UNESCO instruments, and to ultimately show how there is ambiguity at the centre of the field, which ‘may at times lead to contradictory positions and unintended outcomes’.3

By rejecting ‘property’, international heritage law also rejects an important yardstick that connects the values articulated in the international (beautifully contained in the word ‘heritage’) to the needs of people on the ground. In search of a replacement yardstick, international heritage law defers to sovereignty as a basic principle of international law. The effects of this deference are alienation, and ultimately the reinforcement of the Authorized Heritage Discourse (AHD) and the conservation paradigm.

Further, the back and forth between heritage and property also shows a largely lost narrative of the engagement between a legal (property) and a non-legal (heritage) concept and category. The embracing of the term heritage in latter treaties is a victory for non-lawyers in the field, but it also means less legal certainty, and a further divorce between law and non-law in the safeguarding of cultural heritage, as legal processes where enforcement is clearer, like domestic law, still rely on the legal and better circumscribed category of property over heritage.

If property is still used domestically, particularly locally, in heritage management, it is a category worthy of exploration. The continued use of property in domestic law to refer to, define, and manage cultural heritage may be read as meaning that international law’s aspirations have failed, and the terminology disconnect creates a way to ignore the values of the international. That said, this chapter also revisits the meanings of property, and its functions in the law. I do so to show that ‘cultural property’ is not necessarily the ultimate commodification of heritage and its subordination to neoliberal economics that are just as, and probably even more, exclusionary than the shield created by the term ‘heritage’.

This chapter proceeds as follows: Section 2.1 revisits the shift from cultural property to cultural heritage through the lenses of the key UNESCO treaties and their (p.29) drafting history. Section 2.2 focuses on the exclusionary effects of the discourses around the category of cultural heritage, in order to set up the shift back to property in Section 2.3.

2.1 Treaty Histories and Definitions

While a number of instruments predated the creation of UNESCO,4 this chapter, much like this entire book, focuses on the five key treaties under the aegis of this organization. Roger O’Keefe has suggested that the definition in the Hague Convention and its Protocol need to be taken in isolation from other UNESCO treaties, since each one of the treaties has a specific object and purpose.5 I respectfully disagree. Even if I accepted the premise that different definitions are deployed for the different objects and purposes of different treaties, at its highest I could put this argument to mean that the definitions of treaties drafted specifically for different types of cultural heritage (underwater, intangible, movable, etc.) would be fundamentally different. The Hague Convention and protocols, however, refer not to a type of cultural heritage, but to cultural heritage in a specific anomalous context (wartime). Nevertheless, what I propose to do in this section is to look at definitions across the treaties as a means to distil principles underlying the way international heritage law defines cultural heritage and the values associated with it.

The Preamble to the 1954 Hague Convention is the first formal legal usage in the English language of the term ‘heritage’ in the context of cultural protection.6 Similarly, the preamble also speaks of the protection of culture of ‘peoples’, and of ‘[hu]mankind’, thereby intentionally enshrining a cosmopolitan spirit that is meant to be dissociated from state sovereignty, and referring to anthropological knowledge that gives cultures to peoples, rather than nation states.7 That said, the definition in the actual text of the 1954 Hague Convention, in Article 1, speaks of cultural ‘property’.8

(p.30) The drafters of the Hague Convention thought that the Hague Rules of 1907 were overambitious in their definition of protected (cultural) property, and therefore aimed at providing a more realistic definition that would actually be able to protect at least some cultural heritage during conflict. By narrowing down the definition, they reasoned, it would be possible to give more protection to whatever fell under said definition.9 Ultimately, though, it seems that even this narrowing of the definition has been unsuccessful, in light of military practice, and is still considered ambiguous.10

The narrowing of the category meant that suggestions by specific states of additions to the definition, which would in retrospect have helped the coordination with subsequent UNESCO treaties, went unheeded. The United States asked for the inclusion of religious monuments and natural sites.11 Japan also suggested that natural sites be added to the definition, because they are ‘considered sources of culture of sentiments for the people’, as well as important sources for scientific research.12 A similar nod to scientific research was made by Vietnam, who suggested scientific research centres be included in the definition.13 Israel suggested that mounds where artefacts are found and libraries (the latter separately from Article 1.b) should also be included in the definition of the Hague Convention.14

Even if the definition contained in the Hague Convention is ‘for the purposes of the present Convention’, and its subsequent protocols, it has inevitably been influential in subsequent discourses around the definition of cultural heritage. Therefore, it deserves close attention.

The key language that needs interpreting in the Hague Convention for our present purposes is that of ‘great importance to the cultural heritage of every people’,15 because it attributes value to heritage, and also because ‘every people’ connects heritage to specific stakeholders. The ambiguity of the term ‘every people’ is resolved in favour of interpreting it as the heritage ‘of each respective people’, at least if one takes into account the Hague Convention’s preamble, an interpretation supported by state reports on the implementation of the treaty, and by key scholars like Roger O’Keefe.16 In practice, the effect of this interpretation is that the Hague Convention’s definition is open to a certain sense of representativeness (and potentially an open avenue for communities), or at least that it relies on the discretion and competence of each state party to identify the heritage within its own territory that is worthy of protection.17 The fact that it is states that have the ability to identify heritage challenges to a certain extent the people-centric (as opposed to (p.31) state-centric) aspirations of the preamble, much in the way that the language on ‘property’ in the operative part of the treaty challenges the idea of ‘heritage’ in the preamble. One of the possible effects of this reliance on states to define cultural heritage in the context of armed conflict, for instance, is that states can refuse to define as heritage worthy of protection the heritage of minorities or armed groups in the context of non-international armed conflicts (a matter discussed in more detail in Chapter 4).

With respect to the relationship between the 1954 Hague Convention and the conservation paradigm, one of the important innovations of the Convention in relation to previous (pre-UNESCO) international heritage law is the protection of ‘groups of buildings’, in Article 1.a (language which was added very late in the negotiating process).18 This innovation reflected a move in preservationism that sought to (re)contextualize cultural heritage and focus not only on isolated buildings, but on larger architectural fabrics. This language was opposed by a number of states during the negotiations, and passed by a fairly narrow margin.19 However close the vote was, it is important to highlight that, as early as the Hague Convention, there is a move towards context in international heritage law that challenges intrinsic value in favour of relational values, even if it is still one predicated on built fabric, as opposed to living social connections.

The 1999 Second Protocol to the Hague Convention was an opportunity to revisit many of the tensions around the definition of ‘cultural property’ in the 1954 treaty, and in doing so accommodate best practice and (then) current knowledge in the field. The initial report behind the drafting of the Second Protocol noted the imprecision of the definition in the 1954 Hague Convention, as well as divergences from other UNESCO treaties that had been adopted up until that moment.20 In fact, the original report urged that the definitions of the 1970 Convention (for movable heritage) and the World Heritage Convention (WHC) (for immovable heritage) be incorporated.21 During negotiation of the Second Protocol, proposals were made to change the definition of heritage in order to update and expand it. There was even consideration of the possibility of including natural heritage (therefore, the environment) under the purview of the Second Protocol. This change was rejected, however, because natural heritage was deemed to have too many peculiarities that would make it incompatible with the cultural heritage regime.22 Even a general updating of the concept of heritage was rejected because of the need that the Second Protocol be seen as closely aligned with rather than replacing the Hague Convention.23

Ultimately, in spite of the cries for redefinition, the wording in the Hague Convention was taken as acceptable by the participants in the meeting of experts, (p.32) and the question was not reopened.24 As a result, the Second Protocol merely incorporates by reference the definition in the 1954 treaty.25 But the Second Protocol did consider the relationship to the WHC and the definition therein in some more detail. Already under the Hague Convention, over time, the idea of ‘great importance’ in its text had been interpreted by a number of states as equating with the notion of ‘Outstanding Universal Value’ (OUV) in the World Heritage Convention, discussed in this section.26 That said, the drafters of the Second Protocol ultimately rejected that only those sites on the World Heritage List were worthy of protection under the Hague Convention system, and said that property that lacked OUV, but still had national or local importance, also fell under the general scope of application of the system.

However, when it comes to the enhanced protection system under the Second Protocol, the relationship to OUV is more pronounced.27 The Second Protocol creates a new List of Cultural Property under Enhanced Protection. The system is modelled, for the most part, on the 1972 WHC.28 Although the notion of simply incorporating cultural heritage on the World Heritage List into the Enhanced Protection List was rejected (partly because of the difference in the definition of ‘heritage’ between the two instruments, which affects their scope of application), the presence of cultural heritage on the World Heritage List serves as a powerful guide to the ‘greatest importance for humanity’ threshold.29 In fact, according to the guidelines implementing the Second Protocol, there is a presumption that heritage on the World Heritage List meets the criteria for enhanced protection.30 Listing is addressed in more detail in Chapter 7, but it is important to highlight here the push (p.33) for closer coordination among UNESCO instruments, and the ultimately missed opportunity that could have created more transparency within UNESCO.

In some respects, the Hague Convention and its Second Protocol could have been a window into how the field of international heritage law had evolved over forty-five years, particularly in respect to the definition of cultural heritage. But the opportunity to revise the definition was missed, illustrating that there are dissonances between definitions authorized at a certain point in time, reflecting values of each period, and influencing subsequent practice and innovation with respect to heritage. The law’s resistance to change makes it even more important that a genealogy of the definition of heritage be undertaken to highlight the mismatches between those definitions and contemporary practice of and aspirations towards cultural heritage.

The 1970 Convention uses the ‘cultural property’ terminology as well, in its fairly extensive definition.31 This convention was preceded by a 1964 Recommendation, which contained a definition of cultural property that the 1970 treaty built upon.32 The drafting history of the 1964 Recommendation follows in the footsteps of the Hague Convention, while noting domestic practice in the implementation of the Hague Convention and general domestic law, which was either more prescriptive than the Hague treaty (e.g. by applying an (p.34) age threshold), or less so (e.g. by having a broader definition).33 The drafting also points out to the International Customs Convention, and the categories in it.34 It seems in fact that the International Customs Convention, and the influence of the International Customs Union during the drafting of the 1970 Convention, have been decisive in shaping this specific instrument, particularly as a number of states had adopted the International Customs Convention, and thereby already incorporated that terminology in their domestic laws.35 Thus, the practicalities of law enforcement seem to be a more important driver in the definition of heritage in the 1970 Convention than underlying issues about the role and place of cultural heritage, at least on the surface. Procedural expediency seems to replace due consideration of heritage and its role, and the perspectives of state law enforcement agents are paramount to other views.

While the customs definition was useful, there was also a concerted effort to not rely entirely on it, at least initially, nor on the Hague Convention definition. That reluctance left drafters with domestic law, of which the most frequent definitional criterion seemed to be age.36 Subsequent negotiations revisited this issue, and introduced a time criterion that had to do not with the age of the object, but rather a cut-off on the date of production (1920 was suggested).37 And, as with the Hague Convention, there is a fairly wide margin of discretion for each state to determine whether the objects are ‘of particular importance’, in accordance with their own rules.38 This discretion was opposed by countries like Japan, who argued that this allowance would create inconsistencies in the definition, and ultimately compromise the effectiveness of the instrument.39

For the movable heritage category, though, this nationalistic impulse is more easily understandable, given the 1970 Convention’s commitment to attempt to return property to newly decolonized countries, shared at least in part by the preceding Recommendation. Hence, there are clear nationalistic undertones, rather than the (frustrated) cosmopolitan aspirations of the Hague Convention. But the cosmopolitan spirit makes an appearance in the 1970 Convention definition as a limitation to the state’s power to determine ‘importance’. So, while for the Hague (p.35) Convention the notion of ‘importance’ means full discretion for the state party (and is thus nationalistic), in the 1970 Convention it is a limit on the same discretion, in order to enable a market in antiquities (and is therefore cosmopolitan). Note that the key players here seem to be just states (of different ‘types’, yes, but states nonetheless), and that they act as the proxies for their populations, in line with the Westphalian paradigm of international law.

With respect to the precision needed for a definition, the United Kingdom delegate called the difficulties in the definition ‘insuperable’,40 while the United States delegation said the idea of cultural objects was ‘so vague as to defy definition’.41 In response, the UNESCO Secretariat skirted these objections simply by saying they did not refer to specific wording in the draft’s language, and restated their criteria around ‘importance’ and the ability left to each state to define their own heritage for the purposes of the Recommendation.42 UNESCO thus asserted and expanded its authority by sidestepping states and falling back on experts as a ‘neutral’ source of legitimacy.

After the adoption of the Recommendation in 1964, UNESCO moved to preparing what became the 1970 Convention. In the drafting, it was highlighted that its purpose would be to protect the cultural heritage of peoples, as opposed to the cultural heritage of humankind.43 The process of revising and expanding the definition for the 1970 Convention took into account again the language of the International Customs Convention, alongside other instruments like the Hague Convention, the agreements on the end of occupation in West Germany, and the 1964 Recommendation, while distinguishing the objectives of those instruments from those of the 1970 Convention.44 For instance, the 1970 definition sought to eliminate the ‘great importance’ threshold, while maintaining the need for designation by individual states.45 The result here is to keep the nationalistic impulse, while eliminating the cosmopolitan check on it. The International Customs Union, as an observer at the diplomatic conference, restated the importance of its own definition, given its wide acceptance by states at the time.46

(p.36) The delegates at the diplomatic conference in 1970 stressed the need for a precise definition, while at the same time highlighting that the 1970 Convention should steer away from dealing with domestic property law.47 So, even though the reliance on domestic law has been crucial in the definition, the use of language seems to be where the influence ends, as domestic property law is off limits to the treaty. A disconnect between domestic and international law is thereby created. To facilitate law enforcement, the definition left as little subjectivity as possible in the assessment of cultural heritage, and it closely followed the language of the International Customs Convention.48

After the 1970 Convention, another Recommendation was approved, more broadly on the ‘protection of movable cultural property’. The 1978 Recommendation contains yet another definition of cultural heritage,49 which in many respects expands upon the 1970 Convention. This new definition includes, for instance, items of applied arts, mummies, the product of underwater excavations, and photographic and film archives. In light of the broadening of the definition, and at the suggestion of East Germany, a coda was added to the definition, again deferring to states on the definition, but implying each state should adopt criteria to classify and define their own heritage.50 The need for definition is once again reinforced, presumably for the (p.37) purposes of law enforcement, and turned into an ‘objective’ assessment into which political actors like communities would have no stake.

Subsequent practice under the 1970 Convention, particularly under the ‘Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation’, has engaged with these definitions again. The engagement of this Committee has in particular emphasized the need for a broad definition of heritage that not only shifts the focus away from objects (which was the early emphasis of the Committee) and towards other forms of cultural expression, including movable, immovable, tangible, and intangible cultural heritage, but also highlights Indigenous heritage in particular.51 The Indigenous rights discourse, in fact, has helped shift international attention from ‘property’ towards heritage, by connecting heritage to identity and religious and spiritual values.52 In this particular, subsequent practice has at least attempted to overcome the exclusion of communities under the guise of ‘neutrality’, and has reinjected some of the postcolonial and emancipatory spirit into the treaty.

Therefore, while the 1954 Hague Convention definition stems from a broader cosmopolitan commitment to the heritage of humankind, the definition of heritage with respect to movable heritage, anchored by the 1970 treaty, seems to be based on domestic law, including customs regulations. These two treaties thus showcase different tensions with respect to cultural heritage and its objectives. But they also present similar gaps, such as the virtual exclusion of nature from the definitions of heritage (in spite of attempts by multiple states, particularly in the Hague Convention drafting). This gap is remedied by the World Heritage Convention, which again reassesses the definition of heritage for the purposes of international law, and this time refers to it for the first time as ‘heritage’ in the main text of the treaty.

The WHC expands the realm of international heritage law in many significant ways. For one, it is the first international instrument to comprehensively deal with the status of immovable heritage in peacetime.53 Secondly, it bridges the gap between culture and nature in ways that the Hague Convention and the 1970 Convention failed to do (which will be explored in some detail in Chapter 6). In bridging the gap between culture and nature, though, the WHC still relies on some degree of separation as far as the concept of heritage is concerned, containing separate articles for cultural and natural heritage.54 Communities, particularly traditional ones, where (p.38) the separation is more porous, end up excluded in the early years, in favour of a certain expert-driven scientificism.

The definition of heritage contained in the WHC responds to a specific vision of the conservation paradigm discussed in Chapter 1. In fact, the early pushes for what became the WHC emphasized the need for appropriate technical criteria for the conservation of monumental heritage.55 It is worth highlighting that the WHC has evolved tremendously in its practice, and that includes expanding the definition of heritage,56 in a ‘dynamic reinterpretation of the concept’.57 Of course, the treaty itself has not changed, but the Operational Guidelines to the WHC have, in order to accommodate evolving notions of heritage and its worth, which have attempted to move away from elitist notions of heritage to things that are closer to human beings (and therefore community-centric and intangible heritage).58 One of the effects of this evolution is to shift away from heritage itself, and towards the values attributed to it. While that movement is observable as well in the heritage studies literature, there is a legal-mechanical reason behind it: under the WHC, the definition of cultural heritage (or natural heritage, for that matter) cannot be amended, save for great efforts;59 however, OUV, which is a characteristic of all groups of cultural and natural heritage in the WHC, is not defined in the WHC, in spite of concern by the drafters on this matter60—rather, it is for the Operational Guidelines to define this value;61 as the Guidelines can be more easily amended or changed, it has been the way in which the definition of heritage, and the conservation paradigm under it, has evolved. Therefore, the evolution of the notion of heritage under the WHC has happened around the edges, rather than centrally. To be sure, there is only so far that a change to criteria can go, as the main definition in the treaty still limits the (p.39) possibilities for World Heritage and the conservation paradigm under it. After all, changing the criteria against which one can value and protect heritage does not necessarily challenge the core of the definition.62

Early proposals for the WHC did not mention the term ‘heritage’, and focused instead only on certain cultural categories, without an umbrella term. They focused on monuments and groups of buildings for the most part (or monuments and sites, which would have included nature),63 drawing a comparison between those and ‘centers containing monuments’ in the Hague Convention definition.64 That said, at the time the science branch of UNESCO was working on a draft for the protection of natural sites, which was to be submitted to the 1972 Stockholm Conference (United Nations Conference on the Human Environment), a landmark event in international environmentalism. The science and culture arms of UNESCO then decided to merge the two drafts, and that exacerbated the scientificism around heritage, but also paved the way for the umbrella term ‘heritage’ being for the first time enshrined in the main text of a UNESCO cultural treaty (as opposed to the preamble).65

The influence of the nascent environmental movement, of course, goes beyond introducing the term ‘heritage’ to the main text of the treaty (even if that contribution cannot be underestimated). The category of natural heritage itself is a contribution to how we think about heritage more generally, and the available models for its protection (discussed in more detail in Chapter 7). To be more specific, the introduction of the category of natural heritage was the way in for the United States national parks model to be at the forefront of proposals for the structure of what became the WHC.66

The definition of natural heritage, like the one for cultural heritage, relies on OUV quite substantially. Further, and differently from cultural heritage, natural heritage also relies on the linkage with science (all three categories of natural heritage) for its definition, as well as conservation (categories 2 and 3) and aesthetics (categories 1 and 3).67 As is discussed further in Chapter 6, this connection to science raises the stakes of natural heritage, and helps reinforce a certain view of the conservation paradigm that inevitably spills over to cultural heritage as well. So, in spite of the relative underrepresentation of natural heritage on the World Heritage (p.40) List (a phenomenon that may also have to do with the finiteness of nature, whereas culture keeps flourishing),68 natural heritage has been greatly influential on the way we define and think about cultural heritage. And that influence is felt in the creation of a mixed type of heritage under the WHC.

The introduction of the category of cultural landscapes, as under Article 1 of the WHC,69 has been a significant evolution. That said, it has also created some confusion, being accused of imprecision, and of muddying the separation between cultural and natural heritage that the drafters implemented.70 This category has stranded cultural heritage in the text of the WHC, and natural heritage in earlier iterations of the Operational Guidelines.71 A response to this muddying of the categories has been the merger of the criteria for OUV into a single set in 2003 (as opposed to the historically separate sets for cultural and natural heritage).72 The effect of this merger of the concepts is a further approximation between culture and nature in the very definition of World Heritage, which also brings World Heritage closer to the reality of many (particularly traditional) communities that live in, around, or otherwise with heritage.

While the WHC embraces the language of ‘heritage’, the language of property does not quite go away, either. After all, World Heritage Sites are still largely referred to as ‘properties’. Immediately after the WHC defines cultural and natural heritage, for instance, it refers to this heritage as ‘properties’ in the territory of a state, which need defining for protection purposes.73 Taken at its best, the return to the terminology of property implies that heritage, for legal protection purposes, needs to be defined and constrained, a point which I have argued elsewhere relates to the commodification of cultural heritage.74 But needing to define and constrain heritage can also mean divorcing it from its practitioners, and the changes those stakeholders may want to make to heritage sites. Therefore, the return to property in the World Heritage Convention, to the extent it is property of the state party, is a means to define heritage, to exercise control over it. But the control is handed over to the state, essentially dealing a blow to the cosmopolitan spirit that the WHC otherwise embodies. In spite of its best intentions, the WHC system falls short of being the ‘kind of global heritage commons’ that was once envisioned, and needs to work through its states parties as ‘the operative arms that UNESCO or the [World Heritage] Committee itself lacks’.75

(p.41) In the drafting of the WHC, then UNESCO Director-General René Maheu attempted to reconcile this tension between internationalism and nationalism with respect to World Heritage. In the opening of a meeting of the committee of experts drafting the WHC, Mr Maheu said that the revised draft of the WHC was ‘based on the principle that the cultural and natural heritage belongs to [hu]mankind as a whole, which means that it lies outside the proprietorship of States while remaining within the framework of their sovereignty’.76 This idea seems to redefine the use of ‘property’ for the purposes of the WHC, meaning not the body of property law domestically, but reinforcing the notion that ‘property’ is just a means to delimit heritage. In fact, the body of property law, even though key in the domestic implementation of the WHC, is largely avoided by the treaty. That manoeuvre does not mean that in actuality World Heritage sites avoid the legal categorization and association with property that comes with the status: these sites are still very much property in practice,77 in spite of the WHC’s best efforts to avoid the economics of heritage (of which property rights are a big aspect, and as is discussed in Chapter 5).

The definition of cultural heritage in the WHC has been influential in subsequent instruments. It has helped the Underwater Cultural Heritage Convention (UCHC), for instance, in raising awareness of the existence of underwater cultural heritage, and helping merge maritime World Heritage (often natural) with underwater cultural artefacts.78 And, for the Intangible Cultural Heritage Convention (ICHC), the WHC’s definition and its evolution helped take the relational definition of heritage (which was the result of the evolution of the definition in the WHC through the criteria for assessment of OUV, as discussed) even further.79 But, before getting to the relational aspects of heritage and the shift in the conservation paradigm ostensibly promoted by the ICHC, it is necessary to look in more detail at the definition of underwater cultural heritage in the UCHC.

The UCHC is the first treaty to make a clean break with the terminology of ‘cultural property’, based on the idea of using the treaty to create an international protective system rather than a means to allocate title and rights to underwater heritage (which could have implications for how sovereignty was construed in those areas).80 The UCHC in some respects reinforces the historical conservation paradigm in the origins of the WHC, which can be attributed to a resurgence of reliance on expert rule, as discussed in Chapter 3. Its definition of underwater heritage focuses on cultural remains of a certain age.81 This period oscillated in the drafting between (p.42) 50 and 100 years, and a compromise at some point was put forward that the time limit be 100 years, but allowing states to consider certain objects submerged for less than 100 years as underwater cultural heritage.82 The Argentinean delegation, for instance, supported this latter view.83 Chapter 4 engages with the matter of time with respect to cultural heritage, and for our current purposes I will focus on the definition in the UCHC and its history, particularly in relation to the concept of property.

The drafting of the UCHC underlines that the main body of materials covered by the treaty are not just shipwrecks, but also artefacts linked to them.84 Discussions during the drafting considered whether underwater landscapes should be included in the definition in addition to objects of archaeological interest, but, in the view of the drafters, underwater landscapes would likely fall under state jurisdiction, and thus outside the jurisdictional scope of the UCHC.85 Further, landscapes would require coordination with the World Heritage Convention, which was seen as undesirable in this respect.86 Likewise, the notion of palaeontological underwater artefacts was ultimately excluded from the definition for being part of the UNCLOS regime,87 thus enshrining a separation between nature and culture that reverts the trend started in the Hague Convention, and ultimately crystallized in the WHC text. The South Korean and Tunisian delegations opposed this exclusion, and insisted on the inclusion of landscapes, and a narrower definition of warships (discussed shortly).88 This may have been a missed opportunity to engage with (p.43) intangible aspects of underwater cultural heritage, as well as with natural aspects. In fact, the UCHC stresses that underwater heritage must have ‘a cultural, historical or archaeological character’, a criterion added at a relatively late stage in the negotiations.89

Instead, states stressed the importance of a clear definition for matters of legal certainty,90 which is a common theme in the history of treaty definitions. This push for precision in the definition came mostly from the practice of common law countries, who traditionally take a selective approach to heritage, in opposition to the expansionist and protectionist take of civil law countries.91 But in spite of the push for a narrow, legally precise definition, the UCHC incorporated far more than just shipwrecks and artefacts associated with shipwrecks; but the definition was not as broad as it could have been, in a concerted effort to exclude areas within a state’s sovereign jurisdiction.92 The reference to aircraft, for instance, is an innovation of the UCHC vis-à-vis other international and regional initiatives covering underwater heritage, and the UCHC in general ends up referring to all traces of human existence, in line with the Council of Europe’s Valetta Convention on the matter.93 Likewise, qualitative criteria were excluded from the UCHC, which is one of the reasons behind UK opposition, namely the existence of too many shipwrecks under its jurisdiction, and the undesirability of extending legal protection under the UCHC to all of them.94 The lack of a qualitative criterion in the definition affects the protection mechanisms, and is one of the reasons why the UCHC is the only UNESCO treaty that does not contain a list, as is discussed in Chapter 7. It also has the potential to democratize heritage in favour of communities, but, as will be discussed in the next chapter, that is not possible under the UCHC for other reasons (primarily its reliance on expert rule).

While the drafting of the definition was deemed a difficult and somewhat controversial process,95 there seemed to be agreement in that warships should be excluded, as a means of protecting state sovereignty.96 Coupled with the exclusion of underwater landscapes, the exclusion of warships can be read as meaning that the space for cosmopolitanism in the definition of heritage for the UCHC was carved only in the negative, after fully protecting state sovereignty. The protection of sovereignty as a key element of the definition of UCH was deemed by many states, such as Canada, to be central to the process.97

(p.44) The same exclusion of state sovereignty, like in other UNESCO treaties, meant the exclusion of the domestic law of property.98 Drafters for instance decided that consideration of ‘abandonment’ of underwater heritage (akin to the abandonment of property in domestic property law) created a division between lawyers and archaeologists, and was also incompatible with the domestic law of several member states, particularly in Latin America. A definition of abandonment was included in one of the drafts of the UCHC, which would affect ownership questions indirectly.99

Ultimately, though, drafters considered that the question of title should not be dealt with at all by the UCHC,100 including the matter of abandonment. This pragmatic compromise allowed the UCHC to stay in line with its predecessor in deterring the question to state sovereignty and enabled the inclusion of warships within the scope of the convention, facilitating the negotiation process as a whole.101 The drafting history does suggest, however, that the exclusion of ownership matters from the UCHC means that ‘all underwater cultural heritage should be protected, regardless of ownership. In other words, the owner of a wreck may use it, but only with the consent of and according to the conditions established by the competent authorities’.102 Effectively, this choice means that the UCHC attempts to clearly subordinate domestic property law to the requirements of cultural heritage protection, while at the same time fully doing away with the ‘property’ terminology that had been deployed by preceding treaties. The reasons for the elimination of property in this context are connected to the nature of UCH as falling outside territorial jurisdiction, unlike other heritage treaties, whose scope is primarily territorial, thus reinforcing the idea that property is a proxy for sovereignty in international heritage treaties. But it still means an important step away from state property as a form of control over heritage, which is only partly replicated in the Intangible Cultural Heritage Convention.

I have written on the definition of ICH elsewhere,103 but it is necessary to highlight specific elements of the ICHC definition104 in comparison with other definitions (p.45) in the relevant UNESCO treaties. Many expressions have been used in the past to describe intangible heritage, including ‘folklore’, ‘traditional cultural expressions’, ‘Indigenous culture’, and ‘traditional or popular culture’, among many others.105 While ‘intangible cultural heritage’ is a term that can be criticized (for creating an apparent opposition to tangible heritage, for instance), it is the one for which it was possible to find consensus when drafting the ICH Convention. That said, the choice of the term ‘intangible cultural heritage’ has been criticized by some scholars. The term makes sense within the administrative logic of UNESCO, precisely because of its opposition to tangible cultural heritage, which was addressed in other UNESCO instruments. However, to conceive of this type of heritage as ‘intangible’ in theory weakens its worth, rendering it disconnected and conveying the impression that its existence is ethereal or irrelevant. Further, the term ‘intangible heritage’ arguably weakens the status of traditional culture in legal practice, and can lessen the possibilities of protection.106 Considering this treaty is the one most open to community governance (as discussed in the next chapter), and that intangible heritage in general is central to community initiatives around heritage, this criticism is not a fatal blow.

The discussion on the definition of what became ICH as being in opposition to physical heritage has a long history at UNESCO. A 1984 study, for instance, engages with definition of ‘non-physical heritage’.107 It outlines the following four elements to a definition of non-physical heritage, popular traditions, or folklore: (1) collective and spontaneous participation by the community; (2) ‘impersonal or anonymous origin’; (3) non-commercial and oral transmission; and (4) intergenerational structure.108 These four elements can still be seen in the ICHC, and the idea of community participation is particularly important in challenging the conservation paradigm. The idea of impersonal origin serves to eschew property in the domain of ICH.109 The idea of links to the community was reinforced in the early developments of the programme that was the basis for the ICHC, making ‘a critical, inseparable linkage to the social life of the community’ and essential part of the definition of non-physical heritage.110

(p.46) Language was ‘unanimously considered’ part of non-physical heritage,111 but the ICHC later made language less central, as a means to defer to sovereignty.112 Therefore, even if best knowledge in the area suggests that language should be part of the definition of heritage in the ICHC, (domestic) politics changes the status of language. In this way, the cosmopolitan aspiration of the ICHC, particularly with respect to ethnic groups and their possible emancipation through culture, gives way to a compromise that protects the sovereignty of states.

As to whether non-physical heritage should be defined in the negative (i.e. in opposition to physical heritage), the 1984 report said that this approach ‘violates the unitary nature of a worldview which produces both material and non-material representations: this broad usage incorporates “the totality of the creative genius of a society”, into non-physical heritage: all culture, in fact’.113 This early report therefore already incorporates a holistic view of the definition of what became ICH, and one that strives to be all-encompassing vis-à-vis other types of heritage. The same view is espoused by Janet Blake in her report that served as the basis for the negotiation of the ICHC, even if she admonishes that focusing too much on intangible in opposition to tangible reinforces Eurocentrism with respect to tangible heritage, rather than challenging it.114

One of the predecessors to the ICHC, the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore, used the term folklore. The definition of folklore given by the Recommendation115 was useful in making communities a central part of the definition.116 However, it was argued that the definition was too product oriented (and therefore dependent upon physical means), overlooking the fact that the real object of protection was the social practices and cultural contexts from which the products derived (therefore, intangible heritage as an independent type of heritage).117 It was also felt by some communities that it was ultimately demeaning, and needed to be revised.118

(p.47) Another predecessor, the Masterpieces of the Oral and Intangible Heritage of Humanity programme, moved the definition closer to the current one, but engaged with it indirectly as well through selection criteria, much like the WHC did in using its Operational Guidelines, as discussed. Two main selection criteria were set for this programme: universal value as a general cultural criterion, and organizational criteria. The latter included the participation of the communities concerned with that particular manifestation of ICH in its protection.119 The exact meaning of ‘outstanding universal value’ when it came to intangible heritage, however, was questioned by several states during the first meeting of the jury to select these masterpieces, in 2001. The jury responded by offering three criteria for defining the value of ICH: (1) outstanding value to the custodial community and for cultural diversity; (2) being a long-lived practice; and (3) specific creation linked to a specific cultural space.120

ICH seemed to be the best option for the new treaty, though, despite criticism. ‘Folklore’ was a term already charged with the product-oriented connotations of the 1989 Recommendation, as well as being perceived to imply banality within sacred traditions, ways of life, and cultural identity generally.121 ‘Treasures’, on the other hand, was seen as being too paternalistic (and too oriented towards a ‘westernized’ conception of heritage modelled after the WHC). Further, ‘oral heritage’ was considered too narrow in scope,122 while ‘traditional culture’ seemed to ignore the fact that ICH is about living cultures being constantly recreated.123

During the drafting of what became the ICHC, Francesco Francioni, Chair of the drafting meeting held in Turin (2001), presented a comprehensive report on issues that should be taken into account when drafting a definition of ICH, which had by then become a high priority for UNESCO.124 The report outlined the possibility of legally protecting ‘non-material’ goods using the example of intellectual property (IP) rights, but also drawing a line distinguishing between ICH and IP, in that IP focuses on the end product of the creative process, whereas ICH is the process itself. One important definitional issue in the ICHC is the idea that ICH refers not to the cultural objects, but rather to the social and cultural processes of which these objects are but the products. This was an important change of focus that happened gradually in heritage studies, and one that was decisively pushed into the ICHC by the Organization of African Unity (later replaced by the African Union), alongside the (p.48) group of experts responsible for the initial drafting of the ICHC.125 This change of focus also has a positive effect on communities.

The 2001 report then outlined definitions of cultural heritage in existing international instruments, concluding that elements could be drawn from all these definitions that would be relevant for the formulation of a legal definition of intangible heritage, such as its significance, the importance of a broad definition with a non-exclusive typology, criteria that could be operationalized by the organ eventually in charge of administering the ICHC, and the fact that intangible heritage should focus on the ‘internal’ cultural manifestations, and not on the products. A definition was proposed, and much of it made it into the final instrument.126

What exactly falls under the definition of ‘intangible cultural heritage’, however, was the object of much debate during the meeting of the Restricted Drafting Group in 2002. Three difficulties were identified: (1) that any such category of intangible heritage would be too broad; (2) conversely, that a list would run the risk of being too specific and restrictive; and (3) that it would be necessary to harmonize the different views of states with respect to their perceptions of what ICH is. The (eventually adopted) flexible approach was identified as being necessary, taking into account UNESCO Member States’ views on the topic, but at the same time avoiding overlaps with the mandates of other international organizations (most notably the WIPO and the WTO), while attending to the concerns of experts and facilitating legal protection.127 Ultimately, the definition seems to have taken these factors into account, by weaving an open definition, with a non-exhaustive list of examples, and avoiding using examples from the area of IP law (out of respect for the division of work with the WIPO, but also with the consequence of autonomizing intangible heritage beyond the domains of IP).

Intangible heritage, like Indigenous heritage, must be seen as holistic.128 This holistic understanding is both dependent on and independent of tangible heritage. To be more accurate, the ICHC makes several tangible elements dependent on the intangible expressions from which they derive, and not the other way around. In other words, it protects objects because they derive from a larger cultural practice, and not vice versa, which would be the traditional response of museums, for instance, in protecting the objects themselves and hoping, perhaps, to indirectly protect the culture behind them.

Further, the ICHC definition includes the precedence of group rights in the context of intangible heritage (since the rights belong primarily to the community, and only ‘in some cases’ to individuals), which is key in rearticulating the stakeholders in international heritage law, as is discussed in Chapter 3. For our present purposes, (p.49) it suffices to say that the ICHC’s definition at least nominally gives the control over ICH to communities, rather than states. However, as the following chapter discusses, ultimately the control still rests with the state, so this step in the evolution of definitions, much like the move from property to heritage, is one that does not go particularly far in practice, even if it opens a precedent that may be taken up again in the future.

Besides, the ICHC definition clearly sets a limit on what can be protected culture, by giving importance to universalist conceptions of human rights. The ICHC affirms that those cultural practices that are incompatible with internationally recognized human rights do not fall within its scope of application. Examining a human rights exception to the ICHC falls outside the scope of this chapter,129 but it is still important in that ICH ends up defined against the normative standards of a separate area of law, and one which is not particularly friendly towards communities.130

We have seen so far that definitions in UNESCO treaties have strived for specificity, for the sake of legal certainty, and for the most part have still adopted fairly broad definitions. The ICHC is no different in that the definition is very broad, but this wide reach is necessary in such a comprehensive area of law, which tries to bring together interests which can at times be incompatible.

Moreover, the ICH definition is ‘forward-looking’, in the sense that it protects manifestations of heritage necessary for the continuation of a certain community. Heritage studies have traditionally looked at heritage as escapist and ‘backward-looking’,131 primarily because of their connection to tangible heritage and archaeology, where the object necessarily predated its discovery, turning these objects into sites for the exploration of ‘lost’ history. However, it is important to notice the shift in discourse when it comes to the safeguarding of intangible heritage, which aims at defending living cultures. This shift helps unsettle the conservation paradigm discussed in Chapter 1, and particularly the scientificism enshrined so centrally in treaties like the WHC and the UCHC. It also has effects on communities by including them in thinking about whether heritage is in fact ‘living’.

The definition of the ICHC stresses that ‘[t]his intangible cultural heritage [ … ] provides [the communities] with a sense of identity [ … ]’. It is precisely because intangible cultural heritage provides a sense of identity that it is worthy of protection. Heritage connects each person to the community they stem from, and creates a sense of shared experience, and thus identity. Protecting this shared identity, and, ultimately, a shared humanity, is perhaps the most important goal behind heritage safeguarding.

The definition of ICH is multifaceted and complex, and looks at heritage as an integral part (rather than a product) of a living culture, and an essential part of the (p.50) maintenance of this culture through time. In doing so, it seems to accommodate a more cosmopolitan engagement with heritage and its control (ultimately betrayed by its implementation mechanisms, as discussed here in Chapters 3 and 7), and it avoids the matter of property beyond state control by deferring it to a different regime, that of IP rights.132 Lastly, it is important to note that the definition in the ICHC, unlike the one in the WHC, has so far not been challenged in the implementation of the treaty. The Operational Directives for the Implementation of the ICHC do not make any considerations about the ways in which heritage is to be assessed against any criteria, beyond indicating that ICH should fall under the definition in Article 2 of the ICHC.133

The analysis of these five treaties and their definitions of heritage suggests a few commonalities, and also key differences. On the commonalities, key themes emerge like the tension between nationalism and internationalism or cosmopolitanism, and the engagement with nature or natural features associated with heritage. On the differences, one can see for instance differences in the engagement with the conservation paradigm, which has a substantial impact on whether and how communities are taken into account in the practice of international heritage treaties, particularly in making assessments as to whether heritage is worth safeguarding. But the most important difference is the progressive abandonment from one treaty to the next of the terminology of property, either in relation to property law as an area of domestic law, or as a stand-in for state sovereignty and control. This shift has significant impacts on how communities can (or cannot) control their own heritage on the ground. Whether this shift is reflected in the literature engaging with the two categories, and what the literature means when it speaks of ‘property’ in this context, is the subject of the next section, which also discusses in more detail the exclusionary effects vis-à-vis communities of the tension between property and heritage.

2.2 Discourses and Exclusion

The history of the key UNESCO treaties reveals that the category of ‘property’ is a fairly resilient one. It was only the UCHC that made a decisive break with it, and, even then, only because it was meant to address heritage normally outside a state’s sovereignty. The drafting history also reveals that property does not usually mean the common usage of property as a private law category of ownership, which was left for the domaine réservé of states. For the most part, property is a proxy for state sovereignty, a means to balance the cosmopolitan spirit embodied in the idea of heritage since the 1954 Hague Convention. One must not forget that treaties are products of their time, and that in this respect protection of sovereignty was in line with the state of international law in the Cold War era,134 a state of affairs which, as discussed in (p.51) the next chapter, saw communities as a politically charged term, and therefore one that could not be part of the diplomatic and international legal vocabulary, lest it suffer the paralysis brought by the capitalist/communist divide in the period.

Francesco Francioni suggests that the idea of ‘cultural property’ is a direct result of the creation of UNESCO, and a means to differentiate cultural property (which fell under the purview and standard-setting action of the organization) from other types of protected property in time of conflict (such as schools and hospitals).135 That view, which may suggest that administrative convenience lies at the root of the creation of the category of cultural property (subsequently evolved into heritage), calls into question efforts to dissociate heritage from property in contemporary discourse. But Francioni also admonishes that the use of the term property should not be read as meaning something different from a concern with the cultural value of heritage, and that UNESCO practice in this area has shown ‘remarkable continuity’.136

The usual narrative137 suggests that developments in the field reached a point at which the values attached to property needed to be modified in order for other social goals to be secured. It involved a change not in the content of what was protected, but in how the question of protection was approached, and one that could in theory accommodate multicultural groups within the same state.138 While ‘property’ as a legal category offers certain advantages, as it is often viewed as a near-absolute bundle of rights once conferred, its use implied the setting up of a social policy to protect the possessor of the cultural object. This approach, however, came into conflict with the fundamental goal of heritage protection, as there was a shift from protecting individual interests to protecting the interests of society in the preservation of cultural goods.139 Moreover, property was generally too narrow a concept to ‘cover all evidence of human life that we are trying to preserve’.140 It was perceived by heritage experts outside the law that the law needed to catch up with their usage of heritage as the umbrella term.141 In fact, heritage seems to be a term imported into the law from anthropology and archaeology,142 underscoring the importance of clearer relationships between law and non-law in this area, as discussed in Chapter 1.

The law had evolved to deem the value to be protected by norms to be present and future generations, or society as a whole, rather than the particular possessor of a certain object.143 This idea of protecting the interests of future generations gradually led to a change in terminology, and the term ‘cultural heritage’ began to be used in the English-language literature. Relatedly, cultural heritage was seen as a non-renewable resource like the environment or mineral resources.144

(p.52) In this respect, cultural heritage ends up tied with the notion of ‘common heritage of [hu]mankind’,145 which is defined by five characteristics: universal, intergenerational, non-economic, scientific, and free from sovereign control.146 The narrative of heritage as an interest of humankind helps drive cosmopolitanism, and the idea, enshrined in the UNESCO Constitution, of heritage as a conduit for mutual understanding among peoples and lasting peace, which had earlier historical antecedents.147 Therefore, the connection of heritage to a universal discourse of commonality has helped divorce economics from heritage, and reinforce the interests of the scientific community (at the expense of communities). It is only sovereignty that has remained with respect to heritage, at least translated as ‘respect [to] the special interests of the State of origin’.148

As to the shift in international legal discourse from ‘property’ to ‘heritage’, it is largely seen as meaning an acceptance that the protection of heritage goes beyond the protection of the actual sites, objects, and artefacts;149 instead, what is to be protected is the relationship between these sites, objects, and artefacts and human beings,150 with a view towards intergenerational safeguarding of culture.151 In this sense, what is protected is precisely the element of intangibility behind all heritage, even if the competing social goals of heritage and property still subsist, and need to be balanced.152 This focus on the relationships implies the articulation of the idea that cultural heritage belongs to the whole of humankind, and must be protected to favour those communities more connected to it, as opposed to the individuals in possession of the items. It is thus meant to create an opening for community-centric heritage governance.

A critique of the use of the term ‘property’ goes beyond criticizing the ultimate value to be protected. After all, in one way or another, the protection of objects is one of the aims of property law, the difference being that property law does not question who is to benefit from such protection. It protects the interests of the possessor. For the purposes of the critique outlined here, it may well be said that the owner (of heritage as property) is society as a whole, and thus ‘cultural property’ would still work as a concept. At least that seems to be the version espoused in the international treaties, of property as a proxy for state sovereignty, and closing the door on communities.

Several scholars, particularly in the field of legal anthropology, have raised the point that ‘property’ is a ‘Western’ concept, which does not necessarily address the (p.53) needs of all peoples. There are several examples of societies that do not recognize ‘property’ as a social possibility; rather than owning something, individuals belonging to these societies believe that they are owned by the environment around them, which is in certain cases nothing short of the embodiment of the deities that they worship. It seems natural that a religion does not allow one to own one’s object of worship, lest the reason for it (namely, that you worship some entity mightier than you) would cease to exist. If everything around me is a deity, and I cannot own a deity, I do not own anything.153 This argument is closely related to the critique that using the term ‘property’ implies a commodification of cultural aspects of life, which should not be treated as goods in the marketplace.154 Further, the use of the term ‘property’ also reinforces the idea that cultural values can be captured and frozen.155

It is worth noting that, as indicated in the previous section, Indigenous rights advocates pushed for heritage instead of property in the negotiations of the 1970 Convention. That move coincided with a specific moment in Indigenous rights advocacy, which is still observable in many contexts today, in which the international is seen as an alternative to the oppressive domestic, and proposed an ‘at times subversive view of the cultural heritage’.156 It also aligned with the idea, espoused by many Indigenous peoples, that they do not own the land; rather, the land owns them.157 Therefore, embracing a cosmopolitan notion of heritage, instead of a domestic version of property, was appropriate. That is so especially considering how domestic property law had until then (and still does in many jurisdictions) largely prevented Indigenous peoples from gaining full property title to their lands, and, consequently, their heritage.158 In many respects, then, Indigenous international claims against the state could be covertly translated as claims about heritage, and an interest in international control over culture. But, as Karen Engle has shown, translating Indigenous culture (and therefore their claims) as heritage is in effect the weakest form of Indigenous rights advocacy, far weaker than property.159 It seems that it was the case simply that property was not available as an avenue, either domestically or internationally. Hence, the attempt to rely on the category of heritage has the positive effect of opening the international to communities, but what is behind that curtain is far weaker than the mere difficult domestic category of property.

The use of the term ‘property’ in the context of the protection of cultural heritage is, in the end, associated with things whose value transcends their physical existence. One compelling example of this is that one of the fundamental aspects of property as a right, ius abutendi, cannot be exercised when dealing with cultural (p.54) goods. Ius abutendi is the faculty that the owner of a thing has to destroy the object; this is rather difficult to accept when speaking of cultural heritage.160 Further, even if this objection could be overcome, certain categories of cultural heritage seem to escape property (the discussion between IP and ICH comes to mind),161 and heritage acts as a unifying concept for cultural attributes, rather than economic or proprietary ones.162 Communities end up stuck with culture, and lack access to economics and the political power that comes with it.

In several English-language jurisdictions, implementing international heritage law means having resort to domestic law categories of property, as there is not always a clear domestic law equivalent to the international concept of heritage.163 In federal countries like Australia, the situation is particularly acute, as the implementation of international heritage law is a federal prerogative, but property law (and private law more generally, including trusts164 and contracts as an often preferred method of negotiating the interests of public authorities and private owners)165 is the competence of subfederal entities (states and territories, in Australia). We thus end up with two sets of background legal orders: a federal background legal order, made of specific implementing legislation, and broader background norms (for instance, administrative law, but also export control laws)166 that need to be triggered; and at the local level, private property law comes into play.167 In unitary countries, the tension is only between the bodies of law, as opposed to the levels of jurisdiction, which makes the resolution of conflicts potentially easier, but nonetheless challenging, as different concepts need to be translated across different bodies of law.

All of these are tensions largely sidestepped by international heritage law, as the previous section demonstrated, for understandable reasons. But this avoidance has ultimately counterproductive effects on how international obligations are brought to fruition, and how heritage is conceptualized at the domestic level. It also means that communities close to heritage, because they are not present at international fora, are left with domestic law that cannot capture the same values as the international legal system. At its best, this mismatch causes confusion and sends conflicting messages; at its worst, it has the effect of further divorcing communities from their heritage as it is understood and conceptualized internationally. States, in (p.55) implementing their international legal obligations, end up enforcing this separation between communities and heritage at the conceptual level, with trickle-down effects to other forms of heritage law and policy. This problem of domestic implementation is even further amplified when going into linguistic domains that require not only the international-to-domestic (and in some cases federal-to-local) translation, but also a language one.

Even if international law has relied on domestic traditions in the drafting of the key treaties, as indicated above, there are still problems of translating these instruments back into domestic law, which are only compounded by linguistic/legal-cultural matters. The terms used to refer to cultural property or cultural heritage across different languages vary quite significantly, and, in trying to find accurate yet appropriate translations, the otherwise ostensibly uniform, expert-driven discourse of cultural heritage tends to get modified in its interactions with the broader categories of domestic law triggered by the simple act of identifying an appropriate legal term in the native tongue.168

But beyond implementation dynamics (revisited in Chapter 7), the move in legal discourse from property to heritage can be read as a reconceptualization of the conservation paradigm in three different respects: a move from monuments to people; a move from objects to functions; and a move ‘from preservation per se to purposeful preservation, sustainable use and development’.169 The third move in particular still relies heavily on input from outside the law, except that the input can be widened to include not only archaeologists and anthropologists (responsible for the initial shift from property to heritage and deeply influential in the negotiation of definitions in international treaties,170 as mentioned) who enshrined the AHD and a version of the conservation paradigm. Economists can also be brought on board, particularly if preservation as a tool of development is to be considered (as is discussed in Chapter 5).171 This move thus has the potential to bring community governance to the forefront of development. The fact it does not is a testament to the resilience of Westphalian categories (and their further entrenchment under the guise of community governance)172 and to how the creation of new categories does not necessarily resolve the problem; a new category hides the problem, and generates a blind spot which, in this case, has deep effects on communities.

Likewise, the use of ‘cultural heritage’ as a legal concept is not free from difficulties. One of the problems that the use of the concept poses derives from it having been imported from other disciplines without incorporating the necessary theoretical background of these disciplines, such as anthropology or cultural studies, which are critical of international legal definitions of culture for focusing too much on (p.56) culture as a product/commodity, or as a practice.173 This transplantation has led to ‘cultural heritage’ being one of the most problematic legal concepts dealt with today.174 For instance, it still relies heavily on the notion of property to propel a conservation instinct that prevents heritage from changing or evolving, and in fact commodifies it in potentially destructive ways.175 In addition, the fact that ‘heritage’ as a legal concept tries to embrace features such as national patrimony, regional and ethnic legacies, and a commonly shared global heritage is also part of the challenge, as these features often translate into incompatible aims.176 Communities end up caught in the crossfire, as agencyless witnesses to and pawns in the manipulation of their heritage.

All things considered, the concept of ‘heritage’ is important because of its capacity to include notions beyond economics and ownership that are typical of property. Most importantly, it allows us to think of heritage as a ‘cultural process’, which can help us think of it as by turns experience, identity, intangibility, memory and remembering, performance, place, and even dissonance.177 Property can in fact freeze the process by enshrining the material form of heritage, as far as heritage scholars are concerned.178

That said, economics and ownership as control are important for communities if they are to be included in decision-making about their heritage. It gives them the leverage they need to be part of heritage management processes. Without property title or some other version of control, there is absolutely no reason for communities’ views to be considered. In fact, their views may be seen as challenging the cosmopolitan spirit of heritage as a universal language, which is not always nor necessarily the case (as discussed in more detail in Chapter 8).

Heritage internationalism, therefore, and the move to the concept of ‘heritage’ it embodies, has the effect of creating disincentives for the inclusion of certain stakeholders. Instead, it privileges others that can speak the uniform language of cultural heritage, which tend to be states and experts (as discussed in Chapter 3). Further, as discussed in Chapter 1, the move towards heritage disengages the private of ‘property’ by privileging the public of ‘heritage’, thereby creating another means that facilitates, or at least has the unintended consequence of facilitating, the exclusion of communities and other substate actors.179

Nevertheless, the shift from property to heritage does not mean that property goes away. Rather, property still applies to several aspects of cultural heritage, depending (p.57) on how heritage is framed domestically or internationally. A coherent system that takes into account the needs of culture and heritage, and the social goals behind the idea of cultural heritage, is needed, and so far, does not exist.180 But, by not acknowledging the continuing influence of categories of property,

we con ourselves into heritage hypocrisy. Personal selfishness is seldom confessed, mostly self-concealed. National avarice is rebuked, tribal self-interest justified as cultural survival and global equity. Few are willing to admit the reality that [ … ] cultural property [ … ] is valued precisely because it is private, our own, not somebody else’s.181

In other words, hiding the category of property (either in the private, or in the background) has the key effect of disguising the politics of heritage and compromising its legal articulation and safeguarding. It also makes it much more difficult to contest the pre-approved or authorized boundaries of what is permissible when it comes to heritage, often to the prejudice of those who have been initially excluded in the shift from property to heritage, like communities.

Academic discourse around the definition of cultural heritage, and the evolution from property to heritage, seems to take a different position as to what property means in the cultural sense, and legal scholars in particular (who seem to be the bulk of those concerned with this question) think of property as the private law category that was excluded from treaties. The effect of this usage of property is twofold: first, it takes international heritage law discourses in directions that were not originally part of the legal framework; second, it helps integrate the domestic into the ways in which we think about cultural heritage globally.

These two intertwined effects ultimately produce a positive outcome in integrating property, but ultimately, the majority of the scholarship denounces property in favour of heritage as the reigning concept, and in the end the effect of integrating the domestic dimensions, which are key for the implementation of international heritage law (discussed in more detail in Chapter 7), tends to be missed. In the process, communities’ control over their heritage, which is only properly articulated in domestic law, is further pushed into the background, in favour of a more universal discourse around heritage that serves the needs of an expert-driven conservation paradigm (as discussed in Chapters 1 and 3). The next section examines what it would mean to reconsider property in the cultural context, and whether a version of property as a legal category could in fact do some of the work that has been excluded from international heritage law, particularly with respect to communities.

2.3 Rethinking Property

The concept of property, with its legal load, seems to be a possibility worth exploring when it comes to redefining cultural heritage in a way that is more conducive to the inclusion of communities in the management of and control over heritage. But (p.58) what version of property law is needed is not as clear-cut as one might think. On one extreme there is the view that cultural heritage ‘is, in most ways, just like ordinary property, and existing laws and practices that govern the treatment of ordinary property should apply to cultural property’.182 On the other, there is the view that cultural heritage is a special kind of property, and needs specific regulation.183 At stake here is a claim to the morality of cultural heritage, and the values attributed to it. But the question that remains underexplored is what the law of property in this context should look like. While the version of cultural heritage as ordinary property seems to suppose (neo)liberal economics as the basis for libertarian property law (focused on individual liberties), that should not be a given. Much discussion about the foundations of property, whether related to heritage or not, implies social responsibilities attached to ownership, and this section explores what this version of property could do for cultural heritage.

Property has traditionally been construed, at least in the common law world, using Blackstone’s ‘sole and despotic dominion’ formula, which is not too different from Roman law categories influential in civil law countries, and on which Blackstone himself relied. A more nuanced view sees property as exclusion instead; as a means to reengage formal rigidity with respect to property.184 But even this view misses the contingencies of how property is conceptualized and engaged, and also misses the idea of property as an umbrella for a set of plural institutions, that can embrace pluralistic values.185

The notion of property has been used at times to imply absolute power, and at other times to mean no protection for individual rights at all. It therefore has variable power,186 a notion often missed in debates about property in the cultural context. Cultural heritage helps destabilize prior understandings of the binary of power/non-power of property.187 In other words, property is usually defined in a way that can be so simplified it is distorted; cultural heritage as a concept can help displace the distortion.188

The work that heritage can do in reimagining property is not unique to heritage, and can be done by other purposive engagements with property and its protective characteristics.189 As Hanoch Dagan has suggested: ‘because property allocates claim to various scarce resources in society, property must be about distribution, as well as about our conceptions of community and social responsibility’.190 Further, heritage can help as a reminder that property is not only exclusionary, but also inclusionary, as a number of property institutions can ‘facilitate important spheres of human interaction and flourishing’.191 Inclusionary manifestations of property are (p.59) just as intrinsic to property as exclusion, and should not be seen as limitations.192 Cultural heritage is among these, assuming the correctness of the proposition that heritage is an essential binding element of human society.

The connection between property and the idea of rights has been explored in depth by Laura Underkuffler.193 She argues that even though rights have a protective power, and property can be considered to fall in this category, in property the range of situations where the protective power fails is much wider, and there are compelling reasons why property should lack ‘the presumptive power traditionally associated with rights’.194

Underkuffler identifies three traditional conceptions of property: (1) property as things (which misses the relational qualities of property); (2) property as a fundamental right (which does not account for the specificities of property vis-à-vis other types of rights); and (3) property as limited rights in or to things (the version to which she subscribes).195 This third version is what she also terms an ‘operative’ version of property, in which limitations to the idea of property as the protection of an individual liberty sphere intersect with tensions that are settled via incorporating said tensions into the very concept of property.196 This mechanism does away with the presumptive power of property over competing public interests, as the core values underlying the defence of property are of the same kind as those in competition with it.197 In other words, ownership is the source of its own restrictions.198 Cultural heritage, in this view, is an integral part of property, and not set in opposition to it.199 But it is property with built-in limitations to accommodate public interests. Therefore, international heritage law would do well to accommodate property as more than a proxy for state sovereignty (even if I acknowledge the political difficulties of trying to harmonize domestic private law, but more on that in what follows). Communities would benefit in this instance by being able to frame their claims in relation to a public interest that now works with them (since it is in the public interest to protect heritage), as opposed to seeing communities’ (traditionally conceptualized) private law property title to heritage in opposition to heritage’s public values.

In order to explain the resilience of the idea of property as rights, van der Walt has argued that the rules and practices that entrench and protect property insulate themselves against change ‘through the security- and stability-seeking tendency of tradition and legal culture’, which includes stability and security concerns associated with rights doctrines more generally.200 These notions can get in the way of reformist attempts to favour ‘weak and marginalized’ populations.201 In this way, attempts to conciliate between private and public interests may not be sufficient, and a reconsideration of the rights-based property paradigm may be needed.202 A rethinking of property requires acknowledging that ‘these features of the rights paradigm, in both the civil law and the common law traditions, are based on socio-political and (p.60) socio-economic assumptions and rhetoric about the role of property in individual lives and in society, rather than purely on legal tradition or doctrine’.203 Property is ordered and conflicts are adjudicated in a way that favours existing rights and the status quo in acontextual and backwards-looking ways. And, while there are some variations to it, only a few of these challenge the fundamentals of this reading of property.204

This insight fits well in the context of cultural heritage, in which the concept of ‘property’ has been essentialized by non-legal stakeholders (particularly anthropological and archaeological experts) to the point where no productive engagement with the notion of property is possible within cultural heritage law. The most that seems possible is to get to the point of thinking of public interests with respect to culture as part of the bundle of property, as suggested earlier. But that does not necessarily give marginalized communities the control over their culture that they might desire, as the public interest is usually translated into the conservation paradigm, which at best gives only conditional control to communities over their heritage, by not allowing radical transformation of the heritage, or even more fundamental challenges to the heritage narratives built into the heritage, which inevitably change over time.

Part of the impulse to defend the status quo in property law is that it is centred on the assumption that having property is the rule, and not having it is an abnormality. Therefore, property law works to maintain control, rather than help marginalized groups gain access to property in the first place. This assumption helps normalize the status of subaltern groups,205 which can be particularly damning to many traditional communities connected to heritage. The fact that the notion of heritage has been read as stripping property away in favour of the greater good (embodied by the state or the international community) means that these communities now face an uphill battle to (re)gain control over their heritage.

Further, property, inasmuch as it is associated with domestic law, poses difficulties in presenting a unified discourse, as property law is largely considered to be fragmented, at least across the major legal traditions,206 and also in some respects across countries belonging to the same traditions.207 Hence, to appropriately tackle the notion of property requires integrating insights from several different legal traditions, beyond international law. Domestic law has influenced international law, and vice-versa. It is useful therefore to trace how domestic property law has historically accommodated the idea of concern for public goods, particularly cultural public goods. Importantly, as Joseph Sax suggested, there is a mismatch between intellectual and physical property. While for intellectual property there is more willingness to secure and protect a robust public interest, conventional wisdom with respect to physical property relies on the exclusionary view that the theorists discussed here have debunked.208 The greater willingness to embrace a public interest with respect to intangibles can help cultural heritage, especially as it moves away from things (p.61) and towards cultural connections and intangible practices (in essence, intangible heritage). But, even focusing only on tangible heritage, Sax also demonstrates how, historically, the privileging of private property rights has not actually been as central as often suggested, and there is a case to be made for safeguarding property over cultural heritage in a way that makes allowance for public interests.

Joseph Sax argues that heritage was formulated first as a public concern and subject of public discourse in late eighteenth-century revolutionary France.209 More specifically, a member of the French revolutionary government, Henri Grégoire, was asked to produce reports on a proposal to destroy Latin inscriptions on monuments (deemed unrevolutionary). In his reports, he engaged with the matter, but also thought it necessary to answer a preliminary question, of why nations seek to protect monuments.210 He thus became the first person to propose preservation as a public duty, based on Enlightenment and French revolutionary values. He asserted that liberty can only be realized through the flourishing of creative energies, which is dependent on tolerance for difference, as well as ‘the pursuit of knowledge and repudiation of ignorance’.211 He thus introduced notions of ‘common property’ and ‘common heritage’, and articulated a sense of property that went beyond its narrow economic sense,212 and attached a sense of duty to the property over cultural artefacts. In fact, the people would recover their property by having items moved out of private collections and into museums.213 Therefore, property here acquires a much broader sense, one that is not only economic and exclusionary, but also attached to national identity and even politics. In this sense, property, at least with respect to monuments and cultural artefacts, attracts duties towards the broader community, which was embodied by the state in revolutionary France.

Ultimately, Sax argues that the community at large has a stake in certain objects because they embody ideas or information of public interest. Those objects bring together public and private interests, suggesting that unqualified protection of property is neither appropriate nor desirable, for both legal and ethical reasons.214 In addition to his work on France, he also refers to examples in a number of common law jurisdictions, including the important United States case about the preservation of Grand Central Terminal in New York City.215 Analysing these cases across a range of jurisdictions and involving a number of cultural activities beyond heritage (such as presidential archives and contemporary art), Sax ultimately demonstrates that there is agreement with the proposition that not only heritage should be thought of as an integral part of the concept of property, but culture more broadly. For our purposes, though, we will focus on cultural heritage, and rely on this broadening of the finding to other cultural activities simply as support for the proposition that (p.62) cultural heritage law does not operate in a vacuum (an idea subsequent chapters of this book will return to).

In the common law, property can also be defined in a way that incorporates the interests of the public or community at large. As a matter of political theory that has been deeply influential in the common law world, the usual characterization of property is the Lockean idea of it being the guarantor of private liberty. But it is also, according to Locke, the means to enter the public sphere.216 Hannah Arendt, for instance, focuses on property on the basis of its relationship with public participation.217

Of course, pushed too far, property title in favour of communities and other traditional owners of heritage can also lead to an absurd situation in which the state is still required to protect heritage, but cannot inquire about what it is, where it came from, nor where it is headed.218 Or it can lead to the approach of a number of market nations, who apply blanket ownership to cultural heritage in a way that, at least when it comes to artefacts, renders the laws virtually unenforceable, and therefore self-defeating.219 State property for cultural heritage, like the French revolutionary model inspired by Grégoire and still largely in place, resolves the issue of control and ownership in a way that simplifies the matter of implementation of international legal obligations, but at the same time it creates no incentive (and arguably creates a number of disincentives) for the enforcement of heritage protection, and for communities to seek to continue engaging with the heritage in question.

The Scottish model, for instance, highlights the shortcomings of a blanket model, particularly as compared to the rest of Britain (England and Wales).220 Scotland espouses a blanket ownership law which, while on the surface a stronger form of protection, misses non-legal policy approaches, such as the policing of sites and comprehensive reporting systems.221 The lesson from Scotland, which applies to a number of domestic jurisdictions, is that reliance on state property alone, or excessive burdens towards a public sphere other than the one immediately connected to the heritage in question, can be counterproductive.

A question that remains unresolved in this discussion of property law, which is largely based on theoretical accounts and domestic legal experiences, is the role of international law. After all, as the drafting history of UNESCO treaties has shown, property as property law was intentionally avoided by UNESCO treaties, given the difficulties of reconciling domestic approaches. So, even if agreement could be reached on a theoretical basis, the actual practice of property law suggests there are irreconcilable rifts that prevent the uniformization of property law to an extent sufficient to allow its interaction with heritage treaties.

But contemporary surveys of international law with respect to property suggest agreement is possible. John Sprankling has suggested that modern international (p.63) law directly or indirectly creates property rights, protects property rights stemming from domestic law, coordinates property rights arising from domestic law, restricts property rights with a domestic origin, and even prohibits the creation of certain property rights in domestic law.222 Therefore, there seems to be a sufficient body of international property law, based on pure international law or derived from municipal law (as ‘general principles of law’, in the sense of a source of international law under the Statute of the International Court of Justice, Article 38.1.c)223 to displace the historical assertion about the impossibility of international heritage law engaging with the theme of property rights.

The fact that significant parts of property law can largely be characterized as general principles of law, and therefore applicable as part of international law in the interpretation of international heritage law treaties, does not necessarily provide the answer to all the challenges posed in this chapter. For one, it still does not fully address the matter of international heritage treaties having purposefully excluded property law, instead using property as a proxy for state sovereignty. The incorporation of property as property law into heritage treaties can create tensions about regime interaction that need mediating.

Further, it is unclear to what extent international lawyers in general, and international heritage lawyers in particular, are able to think of property law as more than property as exclusion, and skirt the essentialized version of property that ‘reinforces a culture of alienation that underplays the significance of belonging to a community’.224 International (heritage) law, with its cosmopolitan aspirations, may in fact be better placed than most other law to engage with this communitarian and inclusionary spirit, which can have trickle-down benefits in the implementation of international heritage law, undoing the domestic/international mismatch discussed here in a productive way. But international heritage law needs to prioritize property when it discusses heritage, instead of treating property (and the economic effects that come with it, discussed in Chapter 5) as the enemy. The economic aspects of property, to be sure, belong more easily with the notion of property as exclusion, in that this version of property ‘commodifies both our citizenship and our membership in local communities’.225 But, as discussed, there are other emancipatory effects of property, which international heritage law would do well to embrace, even if it chooses to keep resisting the economics of heritage. The effect on communities would be significant, as property as inclusionary and communitarian necessarily caters for the centrality of the role of non-state actors, particularly collective ones, in controlling resources, including cultural heritage.

At a minimum, therefore, property cannot be understood without the incorporation of public goods, in a purposive interpretation. It operates through institutions, and is closely connected in many respects to freedom of contract.226 But it is also often tied to a rights binary, which sees public interests, including heritage specifically, as an integral part of property. Therefore, the divorce between heritage and (p.64) property, executed in international law for pragmatic reasons, cannot be sustained in the application of international heritage law.

Taken a step further, the notion of property as rights still fails to fully incorporate marginalized groups like the communities that I argue throughout this book need to be incorporated into heritage governance at all levels. But that is only because its contingencies are missed, and in fact dismissed as belonging to a reified legal tradition, instead of being part of the anthropological and archaeological discourse that informs not only the conservation paradigm but the making of international heritage law more generally. Therefore, a manoeuvre that insulates property from the sphere of the main forces behind international heritage law results in further underappreciation of what property, or at least certain versions of property, can do for heritage and, more importantly, heritage holders.

That international law has for pragmatic reasons avoided delving into matters of property law could once have been justified, but that no longer seems to be a strong explanation. As general principles of law around property have coalesced, the divide among the large legal families has been bridged. Therefore, international heritage law can engage with property as more than a proxy for state sovereignty, and rather as a language of power and distribution, or outright transformation, that can benefit heritage indirectly by benefitting communities, and also directly simply as a part of the core of property law.

Historical discourses about how cultural heritage gets intermingled with property may have helped pave the way for heritage as a sovereign prerogative, particularly in revolutionary France, but, read in their context, these discourses can also be taken as simply elevating cultural heritage as favouring the community connected to it, regardless of whether that community is the state or a differently configured entity. Therefore, the definition of heritage, allied with the version of property espoused here, can go further than a heritage that is set as being in opposition to, or transcending, property. It is time to recover these narratives about the role of heritage vis-à-vis property, and of the concept of property more generally, as a means to give more effectiveness to the concept of heritage as it has been transformed over time, and particularly its current iteration, which is more centred on communities as a central part of the definition, value, and safeguarding of this public good. Only then will the cosmopolitan values embraced by international heritage law and UNESCO in particular really be advanced.

The UNESCO engagement with the notion of heritage, and the transformation of cultural property into cultural heritage that the organization has promoted, has admittedly had negative and exclusionary effects. But it is also important in its aspirations to conceptually thinking of heritage beyond sovereignty. The road has been long, but advances have been made in detaching at least some aspects of heritage from states, and reverting to other actors that more closely map onto the ideals of UNESCO of promoting enduring peace through cultural understanding. Therefore, while property has a key role to play—and I have argued that the abandonment of the notion of property has had negative consequences and should be revisited—the aspirational values of the UNESCO definitions of heritage in fact reinforce the versions of property advocated here, and across all major legal systems. (p.65) UNESCO has played a key role in introducing aspirational values around heritage, and these values must be embraced and strengthened in order to assist in the interpretation of property in the terms proposed here.

But the definition of cultural heritage (or cultural property) is only part of the much larger puzzle of international heritage law. Now that we understand the concept that holds the field together, it is important to understand who the actors in this field are, and how they wield (or fail to wield) this concept. A mapping of these stakeholders is the objective of the next chapter.


(1) This historical scholarship includes Pearson, Christopher E. M., Designing UNESCO: Art, Architecture and International Politics at Mid-Century (Ashgate, 2010).

(2) The main works in this respect are Francioni, Francesco, ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’, in Abdulqawi A. Yusuf (ed.), Standard-setting in UNESCO: Normative Action in Education, Science and Culture (Martinus Nijhoff, 2007), 221–36; Blake, Janet, ‘On Defining the Cultural Heritage’, International and Comparative Law Quarterly 49 (2000), 61–85; Prott, Lyndel V. and O’Keefe, Patrick J., ‘ “Cultural Heritage” or “Cultural Property”?’, International Journal of Cultural Property 1 (1992), 307–20; Bendix, Regina, ‘Héritage et patrimoine: de leurs proximités sémantiques et de leurs implications’, in Chiara Bortolotto (ed.), Le patrimoine culturel immaterial: Enjeux d’une nouvelle catégorie (Éditions de la Maison des sciences de l’homme, 2011), 99–121; and Francioni, Francesco, ‘Cultural Property, International Law’, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2008). For a pre-Second World War evolution of the idea of cultural property in international law, see generally Vrdoljak, Ana Filipa, International Law: Museums and the Return of Cultural Objects (Cambridge University Press, 2006).

(3) Blake, ‘On Defining the Cultural Heritage’ (n 2) 85.

(4) For an overview, see Graham, Gael M., ‘Protection and Reversion of Cultural Property: Issues of Definition and Justification’, The International Lawyer 21(3) (1987), 755–93, 756–66.

(5) O’Keefe, Roger, The Protection of Cultural Property in Armed Conflict (Cambridge University Press, 2006), 102 and 248.

(6) Ibid., 95.

(7) Ibid.

(8) Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954 (adopted 14 May 1954, entered into force 7 August 1956) 249 UNTS 240 (1954 Hague Convention or Hague Convention):

Article 1. Definition of cultural property. 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’.

(9) O’Keefe (n 5) 101.

(10) Ibid., 110.

(11) Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, Observations concerning the Draft Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 21 April–12 May 1954. CBC/4 (15 February 1954), page 10.

(12) Ibid., page 9.

(13) Ibid., page 19.

(14) Ibid., page 7.

(15) 1954 Hague Convention (n 8), Article 1.a.

(16) O’Keefe (n 5) 103–4.

(17) Ibid., 105–6.

(18) For instance, the 26 February 1954 draft did not include this language.

(19) O’Keefe (n 5) 102–3.

(20) Ibid., 248.

(21) Toman, Jiří, Cultural Property in War: Improvement in Protection—Commentary on the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (UNESCO Publishing, 2009), 50.

(24) I Diplomatic Conference on the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 15–26 March 1999. Summary Report. Paris, June 1999, para. 47. See also O’Keefe (n 5) 248.

(25) Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004) 2253 UNTS 172 (Hague Protocol II): ‘Article 1 Definitions. For the purposes of this Protocol: [ … ] b. “cultural property” means cultural property as defined in Article 1 of the Convention [ … ].’

(26) O’Keefe (n 5) 108.

(27) See Lixinski, Lucas, ‘Environment and War: Lessons from Cultural Heritage Law’, in Rosemary Rayfuse (ed.), War and the Environment: New Approaches to Protecting the Environment in Relation to Armed Conflict (Martinus Nijhoff, 2014), 157–77.

(28) Convention concerning the Protection of the World Cultural and Natural Heritage 1972 (adopted 23 November 1972, entered into force 15 December 1975) 1037 UNTS 151 (WHC). Henckaerts, Jean-Marie, ‘New Rules for the Protection of Cultural Property in Armed Conflict: The Significance of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict’, in María Teresa Dutli (ed.), Protection of Cultural Property in the Event of Armed Conflict (International Committee of the Red Cross, 2002), 27–55, 43. UNESCO in 1993 even invited states to submit items of the World Heritage List for consideration for inscription in the Special Protection List. No nominations resulted from this effort. See Hladík, Jan, ‘UNESCO’s Activities for the Implementation and Promotion of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols’, in María Teresa Dutli (ed.), Protection of Cultural Property in the Event of Armed Conflict (International Committee of the Red Cross, 2002), 57–77, 66.

(29) Toman (n 21) 188.

(30) Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of an Armed Conflict (adopted March 2012), Guideline 36.

(31) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231 (1970 Convention):

Article 1. 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 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.

(32) Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property (adopted 19 November 1964):

I. Definition. 1. For the purpose of this recommendation, the term ‘cultural property’ means movable and immovable property of great importance to the cultural heritage of a country, such as works of art and architecture, manuscripts, books and other property of artistic, historical or archaeological interest, ethnological documents, type specimens of flora and fauna, scientific collections and important collections of books and archives, including musical archives. 2. Each Member State should adopt whatever criteria it deems most suitable for defining which items of cultural property within its territory should receive the protection envisaged in this recommendation by reason of their great importance.

(33) Technical and Legal Aspects of the Preparation of International Regulations to Prevent the Illicit Import, Export and Sale of Cultural Property, UNESCO/CUA/115, of 14 April 1962, 5–6.

(34) Ibid., 6.

(35) Reading this history from the perspective of US–Mexico bilateral cooperation in the area of illicit trafficking, see Nafziger, James A. R., ‘The 1970 UNESCO Convention: Insights, Circumspections, and Outlooks’, in Jorge A. Sánchez Cordero (ed.), La Convención de la UNESCO de 1970: Sus Nuevos Desafíos (2014) 211–28, 211–18.

(36) Technical and Legal Aspects (n 33) 8.

(37) Means of Prohibiting the Illicit Import, Export and Sale of Cultural Property. Preliminary Report prepared in accordance with Article 10.1 of the Rule of Procedure concerning the recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4, of the Constitution. UNESCO/CUA/123, 15 July 1963, page 6.

(38) Ibid., 7.

(39) Means of Prohibiting the Illicit Import, Export and Sale of Cultural Property. Preliminary Report prepared in accordance with Article 10.1 of the Rule of Procedure concerning the recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4, of the Constitution. UNESCO/CUA/123, 15 July 1963. Annex I—Replies to circular letter CL/1667 and document UNESCO/CUA/123, received from Member States by 10 February 1964, page 10.

(40) Ibid., 22.

(41) Ibid., 23–4.

(42) Means of Prohibiting the Illicit Import, Export and Sale of Cultural Property. Preliminary Report prepared in accordance with Article 10.1 of the Rule of Procedure concerning the recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4, of the Constitution. UNESCO/CUA/123, 15 July 1963. Annex II—Secretariat’s Response, pages 2–3. See also Draft Report of the Special Committee of Governmental Experts to prepare a draft Recommendation on means of prohibiting and preventing the illicit export, import and sale of cultural property, 13–24 April 1964. IEIS/DR/91, 24 April 1964, para. 18.

(43) Means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property—Preliminary report prepared in compliance with Article 10.1 of the Rules of Procedure concerning Recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4, of the Constitution. SHC/MD/3, 8 August 1969, para. 10.

(44) Ibid., paras 21–26.

(45) Ibid., para. 28.

(46) UNESCO General Conference, 16th Session. Item 19 of the Provisional Agenda—Draft convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, 16 C/17, 13 July 1970. Annex II—Report of the Special Committee of Governmental Experts to examine the draft convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, para. 12.

(47) Ibid., paras 17–18.

(48) Ibid., para. 20.

(49) Recommendation for the Protection of Movable Cultural Property (adopted 28 November 1978):

I. Definitions. 1. For the purposes of this Recommendation: (a) ‘movable cultural property’ shall be taken to mean all movable objects which are the expression and testimony of human creation or of the evolution of nature and which are of archaeological, historical, artistic, scientific or technical value and interest, including items in the following categories: (i) products of archaeological exploration and excavations conducted on land and under water; (ii) antiquities such as tools, pottery, inscriptions, coins, seals, jewellery, weapons and funerary remains, including mummies; (iii) items resulting from the dismemberment of historical monuments; (iv) material of anthropological and ethnological interest; (v) items relating to history, including the history of science and technology and military and social history, to the life of peoples and national leaders, thinkers, scientists and artists and to events of national importance; (vi) items of artistic interest, such as: paintings and drawings, produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); original prints, and posters and photographs, as the media for original creativity; original artistic assemblages and montages in any material; works of statuary art and sculpture in any material; works of applied art in such materials as glass, ceramics, metal, wood, etc.; (vii) manuscripts and incunabula, codices, books, documents or publications of special interest; (viii) items of numismatic (medals and coins) and philatelic interest; (ix) archives, including textual records, maps and other cartographic materials, photographs, cinematographic films, sound recordings and machine-readable records; (x) items of furniture, tapestries, carpets, dress and musical instruments; (xi) zoological, botanical and geological specimens; [ … ] 2. Each Member State should adopt whatever criteria it deems most suitable for defining the items of movable cultural property within its territory which should be given the protection envisaged in this Recommendation by reason of their archaeological, historical, artistic, scientific or technical value.

(50) International Instruments on the Prevention and Coverage of Risks to Movable Cultural Property. Final report prepared under Article 10.3 of the Rules of Procedure concerning Recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4, of the Constitution. CC-78/WS/9, 20 March 1978. Annex I—Analytical study of the general observations and comments made by Member States on the preliminary report and the first draft recommendation (Document CC-77/WS/45), para. 25.

(51) Vrdoljak (n 2) 213–14.

(52) Ibid., 270.

(53) In fact, the Operational Guidelines to the Convention are very explicit in that only immovable heritage can be considered, stating that ‘nominations of immovable heritage which are likely to become movable will not be considered’. Operational Guidelines for the Implementation of the World Heritage Convention (2015), para. 48.

(54) WHC:

I. Definitions of the cultural and the natural heritage:

Article 1. 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; 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. 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.

(55) Yusuf, Abdulqawi A., ‘Article 1—Definition of Cultural Heritage’, in Francesco Francioni and Federico Lenzerini (eds), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008), 23–50, 24.

(56) Ibid, 29.

(57) Francioni, ‘A Dynamic Evolution of Concept and Scope’ (n 2) 230.

(58) Cameron, Christina and Rössler, Mechtild, Many Voices, One Vision: The Early Years of the World Heritage Convention (Ashgate, 2013), 240.

(59) The amendment procedure is in Article 37 of the WHC.

(60) UNESCO General Conference, Draft Convention for the Protection of the World Cultural and Natural Heritage and Draft Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage (15 June 1972), 17 C/18, para. 14.

(61) Operational Guidelines for the Implementation of the World Heritage Convention (2015), paras 49–53.

(62) For a more optimistic view on this evolution, as well as a detailed account of how it happened, see Yusuf (n 55) 31–40.

(63) d’Ossat, G. De Angelis, ‘The Scientific Concepts on Which the Protection and Presentation of Monuments and Sites is Based’, paper presented at the Meeting of Experts to co-ordinate with a view to their international adoption, the principles and scientific, technical and legal criteria which would make is [sic] possible to establish an effective system for the protection of monuments and sites (January 1968). SXC/CS/27/3, paras 15–17.

(64) UNESCO Executive Board, Possible International Instrument for the Protection of Monuments and Sites of Universal Value (22 April 1970), 84 EX/14, paras 41–42.

(65) Yusuf (n 55) 26.

(66) Redgwell, Catherine, ‘Article 2—Definition of Natural Heritage’, in Francesco Francioni and Federico Lenzerini (eds), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008), 63–84, 64.

(67) Ibid., 66.

(68) Ibid., 83.

(69) Operational Guidelines, para. 47.

(70) Cameron and Rössler (n 58) 70.

(71) As discussed by Whitby-Last, K., ‘Article 1: Cultural Landscapes’, in Francesco Francioni and Federico Lenzerini (eds), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008), 51–63, 52–3.

(72) Cameron and Rössler (n 58) 97.

(73) WHC, Article 3: ‘It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above’ (emphasis added).

(74) Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press, 2013), 14–18.

(75) Brumann, Christophe and Berliner, David, ‘Introduction. UNESCO World Heritage—Grounded?’, in Christophe Brumann and David Berliner (eds), World Heritage on the Ground—Ethnographic Perspectives (Berghahn, 2016), 1–34, 9.

(76) Address by Mr René Maheu, Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO), at the opening of the meeting of the Special Committee of Governmental Experts to prepare a draft Convention and a draft Recommendation to Member States concerning the protection of monuments, groups of buildings and sites (4 April 1972) (emphasis in the original).

(77) Brumann and Berliner (n 75) 19.

(78) Yusuf (n 55) 43–4.

(79) Ibid., 41–3.

(80) Francioni, ‘A Dynamic Evolution of Concept and Scope’ (n 2) 232.

(81) Convention on the Protection of the Underwater Cultural Heritage 2001 (adopted 2 November 2001, entered into force 2 January 2009) 2562 UNTS 3 (UCHC):

Article 1—Definitions. For the purposes of this Convention:

1. (a) ‘Underwater cultural heritage’ means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as: (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. (b) Pipelines and cables placed on the seabed shall not be considered as underwater cultural heritage. (c) Installations other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage. [ … ]

(82) Report of the meeting of governmental experts on the draft convention for the protection of the underwater cultural heritage (29 June–2 July 1998). CLT-98/CONF.202/7, para. 9.

(83) Third Meeting of Governmental Experts to consider the draft Convention on the Protection of the Underwater Cultural Heritage. Synoptic Report of comments on the Draft Convention on the Protection of the Underwater Cultural Heritage made by Member States of UNESCO (April 2000). CLT-2000/CONF.201/3, 3.

(84) UNESCO Executive Board, Feasibility Study for the drafting of a new instrument for the protection of the underwater cultural heritage (23 March 1995). 146 EX/27, paras 4–5.

(85) UNESCO General Conference, Report by the Director-General on action taken concerning the desirability of preparing an international instrument for the protection of the underwater cultural heritage (5 August 1997). Annex I—Summary report of the meeting of experts for the protection of underwater cultural heritage (22–24 May 1996). 29 C/22, para. 9.

(86) Strati, Anastasia, Draft Convention on the Protection of Underwater Cultural Heritage—A Commentary prepared for UNESCO (CLT-99/WS/8, April 1999), 16.

(87) Report of the fourth meeting of governmental experts on the draft Convention on the protection of the underwater cultural heritage (26 March–6 April 2001). CLT-2001/CONF.203/INF.3, 6–7.

(88) UNESCO General Conference, Report by the Director-General on action taken concerning the desirability of preparing an international instrument for the protection of the underwater cultural heritage (5 August 1997). Annex II—Observations by states on the report of the meeting of experts jointly organized by UNESCO, the United Nations Law of the Sea Office of Legal Affairs and the International Maritime Organization. 29 C/22, Views of the Republic of Korea, paras 2–3, Views of Tunisia, paras 2–3.

(89) Dromgoole, Sarah, Underwater Cultural Heritage and International Law (Cambridge University Press, 2013), 91.

(90) UNESCO General Conference, Report by the Director-General on action taken concerning the desirability of preparing an international instrument for the protection of the underwater cultural heritage (5 August 1997). Annex I—Summary report of the meeting of experts for the protection of underwater cultural heritage (22–24 May 1996). 29 C/22, para. 13. See also Strati (n 86) 15.

(91) Dromgoole (n 89) 92.

(92) Ibid., 66–7.

(93) Ibid., 87.

(94) Ibid., 93.

(95) UNESCO General Conference, Report by the Director-General on action taken concerning the desirability of preparing an international instrument for the protection of the underwater cultural heritage (5 August 1997). Annex I—Summary report of the meeting of experts for the protection of underwater cultural heritage (22–24 May 1996). 29 C/22, para. 21.

(96) Ibid., paras 22–26.

(97) UNESCO General Conference, Report by the Director-General on action taken concerning the desirability of preparing an international instrument for the protection of the underwater cultural heritage (5 August 1997). Annex II—Observations by states on the report of the meeting of experts jointly organized by UNESCO, the United Nations Law of the Sea Office of Legal Affairs and the International Maritime Organization. 29 C/22, Views of Canada, para. 2.

(98) On ownership with respect to UCH generally, see Dromgoole (n 89) 96–119.

(99) Strati (n 86) 16–17.

(100) Report of the meeting of governmental experts on the draft convention for the protection of the underwater cultural heritage (29 June–2 July 1998). CLT-98/CONF.202/7, paras 12–13.

(101) Dromgoole (n 89) 117.

(102) Strati (n 86) 17.

(103) Lixinski (n 74) 7–10 and 34–6.

(104) Convention for Safeguarding of the Intangible Cultural Heritage 2003 (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 3 (ICHC):

Article 2—Definitions. For the purposes of this Convention, 1. 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. 2. The ‘intangible cultural heritage’, as defined in paragraph 1 above, is manifested inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship. [ … ]

(105) UNESCO, International Round Table: ‘Intangible Cultural Heritage—Working Definitions’, meeting held in Turin, Italy on 14–17 March 2001.

(106) McCann, Anthony et al., ‘The 1989 Recommendation Ten Years On: Towards a Critical Analysis’, in Peter Seitel (ed.), Safeguarding Traditional Culture: A Global Assessment (Smithsonian Institution, 2001), 57–64, 60.

(107) Dunaway, David K., ‘The World’s Non-Physical Heritage’, paper prepared for the Consultation of Experts to Define the Non-Physical Heritage (27–30 November 1984). CLT-84/CONF.603/COL (1 September 1984).

(108) Ibid., 8.

(109) Ibid., 9.

(110) Final Report of the Meeting of Experts to Draw Up a Future Programme Concerning the Non-Physical Heritage. CLT-84/CONF.603/COL.2, 31 May 1985, 2.

(111) Ibid., 3.

(112) As discussed in Lixinski (n 74).

(113) Dunaway (n 107) 10.

(114) Blake, Janet, Developing a New Standard-Setting Instrument for the Safeguarding of Intangible Cultural Heritage: Elements for Consideration (UNESCO Publishing, 2001), 8–9.

(115) Recommendation on the Safeguarding of Traditional Culture and Folklore (1989):

A. Definition of folklore. For purposes of this Recommendation: Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.

(116) Blake, Developing (n 114) 10.

(117) See Munjeri, Dawson, ‘Following the Length and Breadth of the Roots: Some Dimensions of Intangible Heritage’, in Laurajane Smith and Natsuko Akagawa (eds), Intangible Heritage (Routledge, 2009), 207–42, 217; and Aikawa-Faure, Noriko, ‘From the Proclamation of Masterpieces to the Convention for the Safeguarding of Intangible Cultural Heritage’, in Laurajane Smith and Natsuko Agakawa (eds) Intangible Heritage (Routledge, 2009), 1–44, 21.

(118) UNESCO Executive Board, Report on the preliminary study on the advisability of regulating internationally, through a new standard-setting instrument, the protection of traditional culture and folklore. 161 EX/15, 16 May 2001, para. 25.

(119) Aikawa-Faure (n 117) 18.

(120) Ibid., 32.

(121) Blake, Janet, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage (Institute for Art and Law, 2006), 22 and 32. But see Telesetsky, Anastasia and Nafziger, James A. R., ‘Toward a Broader Concept of the Intangible Cultural Heritage’, Transnational Dispute Management 11(2) (2014), 1–16, 2 (arguing that the definition in the ICHC may not have been successful in breaking with the negative charge of the idea of ‘folklore’ after all).

(122) Aikawa-Faure (n 117) 27.

(123) Kurin, Richard, ‘Safeguarding Intangible Cultural Heritage: Key Factors in Implementing the 2003 Convention’, International Journal of Intangible Heritage 2 (2007), 10–20, 12.

(124) UNESCO, Address by Mr Koïchiro Matsuura, Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO), on the occasion of the International Round Table: ‘Intangible Cultural Heritage: Working Definitions’. DG/2001/33, 14 March 2001.

(125) Aikawa-Faure (n 117) 23.

(126) UNESCO, International Round Table: ‘Intangible Cultural Heritage—Working Definitions’, meeting held in Turin, Italy on 14–17 March 2001.

(127) UNESCO, Preparation of a preliminary draft International Convention on the Intangible Cultural Heritage, Meeting of the ‘Restricted Drafting Group’ (RDG) in Paris, 20–22 March 2002—Outline Work Plan, paras 30–1.

(128) Kearney, Amanda, ‘Intangible Cultural Heritage: Global Awareness and Local Interest’, in Laurajane Smith and Natsuko Akagawa (eds), Intangible Heritage (Routledge, 2009), 209–26, 217.

(129) But see Lixinski (n 27) 172–3.

(130) Lixinski, Lucas, ‘Heritage for Whom? Individuals’ and Communities’ Roles in International Cultural Heritage Law’, in Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods—Normative Perspectives on Human Rights, Culture and Nature (Hart, 2014), 193–213.

(131) Lumley, Robert, ‘The Debate on Heritage Reviewed’, in Gerard Corsane (ed.), Heritage Museums and Galleries: An Introductory Reader (Routledge, 2005), 15–25, 17.

(132) For a discussion, see Lixinski, Intangible Cultural Heritage (n 74) 175–204.

(133) Operational Directives for the Implementation of the Convention for the Safeguarding of the Convention for the Safeguarding of the Intangible Cultural Heritage (2016), para. I.1.1.

(134) Blake, ‘On Defining the Cultural Heritage’ (n 2) 62.

(135) Francioni, ‘Cultural Property, International Law’ (n 2) para. 1.

(136) Francioni, ‘A Dynamic Evolution of Concept and Scope’ (n 2) 235.

(137) Which I have myself used; see Lixinski, Intangible Cultural Heritage (n 74) 5–7.

(138) Graham (n 4) 776.

(139) Prott and O’Keefe (n 2) 309.

(140) Ibid., 307.

(141) Ibid., 319.

(142) Blake, ‘On Defining the Cultural Heritage’ (n 2) 63. Cf. Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge, 2010), 1 (‘The ascendancy of the notion of cultural heritage owes much to the law.’).

(143) Prott and O’Keefe (n 2) 309.

(144) Blake, ‘On Defining the Cultural Heritage’ (n 2) 69.

(145) Francioni, ‘A Dynamic Evolution of Concept and Scope’ (n 2) 235.

(146) Joyner, Christopher C., ‘Legal Implications of the Concept of the Common Heritage of Mankind’, International and Comparative Law Quarterly 35 (1986), 190–9.

(147) Forrest (n 142) 11–13.

(148) Blake, ‘On Defining the Cultural Heritage’ (n 2) 71–2.

(149) Bendix (n 2).

(150) This shift was also mirrored in general debates about property law. Property has shifted from being a legal protection of an object (or the exclusive rights of the owner to its property in relation to non-owners) to the relationship between non-owners and the property, to the extent some rights can also be granted to non-owners. For a discussion and reconceptualization of property law, see generally Kennedy, David, ‘Some Caution about Property Rights as a Recipe for Economic Development’, Accounting, Economics and Law 1 (2011), 1–62.

(151) Janet Blake, International Cultural Heritage Law (Oxford University Press, 2015), 8–9.

(152) Prott and O’Keefe (n 2) 309.

(153) A real-life example is given by Prott and O’Keefe (n 2) 310 (mentioning a famous Australian domestic case, Milirrpum v Nabalco Pty Ltd).

(154) Blake, ‘On Defining the Cultural Heritage’ (n 2) 65–6.

(155) Laurajane Smith, Uses of Heritage (Routledge, 2006), 101.

(156) Blake, ‘On Defining the Cultural Heritage’ (n 2) 75.

(157) Prott and O’Keefe (n 2) 310.

(158) For a discussion of this international movement, with a particular focus on the Americas, see generally Engle, Karen, The Elusive Promise of Indigenous Development: Culture, Rights, Strategy (Duke University Press, 2010).

(160) Prott and O’Keefe (n 2) 310. See also Sax, Joseph L., Playing Darts with a Rembrandt: Public and Private Interests in Cultural Treasures (University of Michigan Press, 1999).

(161) See e.g. Lixinski, Lucas and Buckingham, Louise, ‘Propertization, Safeguarding and the Cultural Commons: The Turf Wars of Intangible Cultural Heritage and Traditional Cultural Expressions’, in Valentina Vadi and Bruno de Witte (eds), Culture and International Economic Law (Routledge, 2015), 160–74.

(162) Prott and O’Keefe (n 2) 313.

(163) For instance, with reference to Australia, see Boer, Ben and Wiffen, Graeme, Heritage Law in Australia (Oxford University Press, 2006), 72.

(164) Ibid., 252. Note that trusts are a construct of Islamic legal systems that was imported into the common law, but do not exist as such in the civil law.

(165) Boer and Wiffen (n 163) 212.

(166) Gilman, Derek, The Idea of Cultural Heritage (Cambridge University Press, 2010), 141–55 (comparing Australia, the United Kingdom, and the United States).

(167) Ibid., 179.

(168) Frigo, Manlio, ‘Cultural Property v Cultural Heritage: A “Battle of Concepts” in International Law?’, International Review of the Red Cross 86(854) (2004), 367–78, 370; and Loulanski, Tolina, ‘Revising the Concept for Cultural Heritage: The Argument for a Functional Approach’, International Journal of Cultural Property 13 (2006), 207–33, 219.

(169) Loulanski (n 168) 207.

(170) Forrest (n 142) 21–2.

(171) Loulanski (n 168) 219.

(172) Eslava, Luis, Local Space, Global Life: The Everyday Operation of International Law and Development (Cambridge University Press, 2015), 262.

(173) Ahmed, Mohsen Al Attar, Aylwin, Nicole S., and Coombe, Rosemary J., ‘Indigenous Cultural Heritage Rights in International Human Rights Law’, in Catherine Bell and Robert Patterson (eds), Protection of First Nations’ Cultural Heritage: Laws, Policy and Reform (University of British Columbia Press, 2009), 311–42, 330.

(174) Blake, ‘On Defining the Cultural Heritage’ (n 2) 63.

(175) Lowenthal, David, ‘Why Sanctions Seldom Work: Reflections on Cultural Property Internationalism’, International Journal of Cultural Property 12 (2005), 393–423, 396–7.

(176) Blake, ‘On Defining the Cultural Heritage’, cit., 64 (citing Lowenthal, David, The Heritage Crusade and the Spoils of History (Cambridge University Press, 1998), 227).

(177) Smith (n 155) 44–8.

(178) Ibid., 83.

(179) Kuzmarov, Betina, ‘The Coherence of the Concept of Cultural Property: A Critical Examination’, International Journal of Cultural Property 20 (2013), 233–56, 235.

(180) Prott and O’Keefe (n 2) 312.

(181) Lowenthal, ‘Why Sanctions Seldom Work’ (n 175) 401 (original emphasis).

(182) Posner, Eric A., ‘The International Protection of Cultural Property: Some Skeptical Observations’, Chicago Public Law and Legal Theory Working Paper No. 141 (2006), available at <http://ssrn.com/abstract_id=946778>.

(183) See for instance Sax, Playing Darts with a Rembrandt (n 160) and discussion in what follows here.

(184) Dagan, Hanoch, Property Values and Institutions (Oxford University Press, 2011), xi.

(186) Underkuffler, Laura S., The Idea of Property: Its Meaning and Power (Oxford University Press, 2003), viii.

(187) Ibid., ix.

(188) Prott and O’Keefe (n 2) 310–11.

(189) Dagan (n 184) xiii.

(190) Ibid., 3.

(191) Ibid., xiii.

(192) Ibid., 38.

(193) Underkuffler (n 186).

(194) Ibid., 5.

(195) Ibid., 30.

(196) Ibid., 52.

(197) Ibid., 75.

(198) van der Walt, A. J., Property in the Margins (Hart, 2009), 31.

(199) Ibid., 110–16.

(200) Ibid., viii.

(201) Ibid., ix.

(202) Ibid., 14–15.

(203) Ibid., 28.

(204) Ibid., 31–2.

(205) Ibid., 232.

(206) Prott and O’Keefe (n 2) 315.

(207) Ibid., 317

(208) Sax, Playing Darts with a Rembrandt (n 160) 3.

(209) Sax, Joseph L., ‘Heritage Preservation as a Public Duty: The Abbé Grégoire and the Origins of an Idea’, Michigan Law Review 88(5) (1990), 1142–69, 1143.

(210) Ibid.,1143–4.

(211) Ibid., 1155.

(212) For an articulation of this connection particularly in the French legal tradition, see Xifaras, Mikhail, La Propriété: Etude de Philosophie du Droit (Presses Universitaires de France, 2004).

(213) Sax (n 209) 1158.

(214) Sax, Playing Darts with a Rembrandt (n 160) 9–10.

(215) Ibid., 55–9.

(216) Kuzmarov (n 179) 239.

(217) Ibid., 241.

(218) Lowenthal, ‘Why Sanctions Seldom Work’ (n 175) 400.

(219) Fincham, Derek, ‘A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin’, International Journal of Cultural Property 15 (2008), 347–70, 351.

(220) For the full comparison, see ibid.

(221) Ibid., 363.

(222) Sprankling, John G., The International Law of Property (Oxford University Press, 2014), 41.

(223) Ibid., 203.

(224) Dagan(n 184) 45.

(226) Ibid., 34.