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5872. The Human Dimension of International Cultural Heritage Law: An Introduction
- Author:
- Francesco Francioni
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- 1. In introducing this EJIL symposium, I cannot help but recall a much debated article published in 1986 in the American Journal of International Law. The author of that article, Stanford professor John Merryman, theorized that there are \'two ways of thinking about cultural property\'. 1 The first, he argued, is the national(istic) way, which conceives of cultural property as part of the nation, with the attendant desire of governments to jealously retain it within state boundaries and to limit its international circulation. The second is the international way, which views cultural property as the heritage of humankind and supports the broadest access and circulation to facilitate exchange and cultural understanding among different peoples of the world. The author left no doubt that the latter view was to be preferred for its alleged capacity to contribute to a cosmopolitan order, in which cultural property can be freely accessed and thus contribute to the intellectual and moral progress of humanity. One may wonder whether this dual perspective accurately reflected the spirit of the law and the policy attitudes of the time when the article was written. Certainly, it cannot adequately explain the present state of the law and, in particular, of international law. Today, there are more than just two ways of thinking about cultural property. Cultural property may be seen as part of national identity, especially in the post-colonial and post-communist context, but it can also be looked at as part of the \'territory\', the physical public space that conditions our world view and which is part of what we normally call \'the environment\' or the \'landscape\'. Cultural property may be seen as moveable artifacts susceptible to economic evaluation, and for this reason subject to exchange in international commerce; but it may also be thought of as objects endowed …
- Topic:
- Economics and Government
- Political Geography:
- America
5873. Genocide and Restitution: Ensuring Each Group's Contribution to Humanity
- Author:
- Ana Filipa Vrdoljak
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- The protection of minorities in modern international law is intimately connected with and fuelled the recognition of the crimes of persecution and genocide. Minority protection represented the proactive component of the international efforts to ensure the contribution of certain groups to the cultural heritage of humankind. Prohibition and prosecution of persecution and genocide represented the reactive element of these same efforts. The restitution of cultural property to persecuted groups by the international community was recognition that their ownership and control of these physical manifestations was necessary for the realization of this purpose. In this article, I consider the emergence, contraction, and revival of the interconnection between minority protection, the prevention and punishment of genocide, and the protection and restitution of cultural heritage over the last century-long development of international law. It is argued that the central aim driving and interweaving these initiatives is the effort to ensure the continuing contribution of each group to the cultural heritage of all humanity.
- Topic:
- Development and International Law
5874. The Restitution of Holocaust Looted Art and Transitional Justice: The Perfect Storm or the Raft of the Medusa?
- Author:
- Thérèse O'Donnell
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- This article considers the legal difficulties associated with restituting Holocaust-looted art. Can such claims provide platforms for examining the associated cultural implications of both the looting and restitution programmes? Not with standing its centrality to Nazism and the Holocaust, looting's reversal was not a post-war Allied priority. Consequently, looting's painful after-effects leave a sense of unfinished business. Restitution traditionally envisages a high profile for law and, in particular, courts. Taken together with restitution's importance within reconciliation processes, this highlights that these cases are clearly located within transitional justice discourse. For example, property restoration is entwined with reconstitution of individual and group identities. The article concludes that restitution is crucial to successful completion of transitional justice processes. However, law's role must be re-imagined beyond the current adversarial/judicial paradigm which fails within its own limited understandings of restitution and hampers rather than enhances reconciliation processes.
5875. Selecting Heritage: The Interplay of Art, Politics and Identity
- Author:
- Lucas Lixinski
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- This article discusses the international protection of intangible cultural heritage (ICH) by a UNESCO-based regime created by the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. This Convention has experienced very fast ratification (127 states parties less than seven years after its approval), but this is in no small part attributable to a certain lack of 'legal bite' of the instrument. There are several layers of state sovereignty imbued in the instrument, as well as weak mechanisms for community participation. These are reflected by a state prerogative in determining what the intangible heritage within their territories is for international safeguarding purposes, therefore having the chance to stifle internal dissent by ignoring minority cultures or even appropriating them and depriving them of political meanings. The early practice under the Convention, including the first nominations, puts these structural shortcomings in further evidence. However, recent reforms to the operational directives for the implementation of the Convention have already taken decisive steps towards increasing community participation, even when this means eroding state privileges with regard to the Convention.
- Topic:
- Politics
5876. Intangible Cultural Heritage: The Living Culture of Peoples
- Author:
- Federico Lenzerini
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- Intangible cultural heritage (ICH), made up of all immaterial manifestations of culture, represents the variety of living heritage of humanity as well as the most important vehicle of cultural diversity. The main 'constitutive factors' of ICH are represented by the 'self-identification' of this heritage as an essential element of the cultural identity of its creators and bearers; by its constant recreation in response to the historical and social evolution of the communities and groups concerned; by its connection with the cultural identity of these communities and groups; by its authenticity; and by its indissoluble relationship with human rights. The international community has recently become conscious that ICH needs and deserves international safeguarding, triggering a legal process which culminated with the adoption in 2003 of the UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage. This Convention correctly highlights the main elements of ICH and is based on the right philosophical rationale, but its operational part – structured on the model provided by the 1972 World Heritage Convention – appears to be inadequate to ensure appropriate safeguarding of the specificities of intangible heritage. This article argues that to correct such inadequacy, international safeguarding of ICH must rely on the concomitant application, even though in an indirect manner, of international human rights law, for the reason that ICH represents a component of cultural human rights and an essential prerequisite to ensure the actual realization and enjoyment of individual and collective rights of its creators and bearers.
- Topic:
- Human Rights and Culture
5877. The Cultural Rights of Indigenous Peoples:Achievements and Continuing Challenges
- Author:
- Siegfried Wiessner
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- The novel international legal regime of the rights and status of indigenous peoples has emerged in direct response to the concerted efforts and demands of indigenous communities regarding the survival and the flourishing of their distinct cultures. Its high point, as of yet, has been the 2007 UN Declaration on the Rights of Indigenous Peoples, now enjoying virtually universal support. This article locates the regime of the Declaration within post-World War II value-oriented international law; it highlights its novel, essentially communal rights to culture, self-determination, and land; and it assesses its content within existing sources of international law. It ends with an appraisal of the progress made, and an evaluation of the challenges ahead.
- Topic:
- International Law, United Nations, and Culture
5878. On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights
- Author:
- Karen Engle
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- This article traces the development of the international human rights and international indigenous rights movements, with a particular eye towards their points of convergence and divergence and the extent to which each has influenced the other. Focusing on the United Nations Declaration on the Rights of Indigenous Peoples, it argues that the document, while apparently pushing the envelope in its articulation of self-determination and collective rights, also represents the continued power and persistence of an international human rights paradigm that eschews strong forms of indigenous self-determination and privileges individual civil and political rights. In this sense, it signifies the continued limitation of human rights, especially in terms of the recognition of collective rights, in a post-Cold War era in which a particular form of human rights has become the lingua franca of both state and non-state actors.
- Topic:
- Cold War, Human Rights, and United Nations
5879. Towards a Jurisprudential Articulation of Indigenous Land Rights
- Author:
- Gaetano Pentassuglia
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- As expert analysis concentrates on indigenous rights instruments, particularly the long fought for 2007 UN Declaration on the Rights of Indigenous Peoples, a body of jurisprudence over indigenous land and resources parallels specialized standard-setting under general human rights treaties. The aim of the present article is to provide a practical and comparative perspective on indigenous land rights based on the process of jurisprudential articulation under such treaties, principally in the Inter-American and African contexts. While specialized standards inevitably generate a view of such rights (and, indeed, indigenous rights more generally) as a set of entitlements separate from general human rights, judicial and quasi-judicial practice as it exists or is being developed within regional and global human rights systems is effectively shaping up their content and meaning. I argue that indigenous land rights jurisprudence reflects a distinctive type of human rights discourse, which is an indispensable point of reference to vest indigenous land issues with greater legal significance. From a practical standpoint, focussing on human rights judicial and quasi-judicial action to expand existing treaty-based regimes and promote constructive partnerships with national courts, though not a panacea to all the intricacies of indigenous rights, does appear to offer a more realistic alternative to advocacy strategies primarily based on universally binding principles (at least at this stage) or the disengagement of domestic systems from international (human rights) law.
- Topic:
- Human Rights and United Nations
- Political Geography:
- Africa and America
5880. The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest for Consistency
- Author:
- Micaela Frulli
- Publication Date:
- 02-2011
- Content Type:
- Journal Article
- Abstract:
- This article undertakes a comparative analysis of the two main international legal instruments providing for offences against cultural property and cultural heritage in times of armed conflict in order to assess existing gaps and lacunas, and to make suggestions on how better to advance the protection of cultural property through international criminal law. The International Criminal Court Statute takes a very retrograde attitude to this kind of crime – which the author calls the civilian-use approach – whereas the Second Protocol to the 1954 Hague Convention on the Protection of Cultural Property in Times of Armed Conflict seems far more innovative, preferring a cultural-value oriented approach. The author concludes that the latter approach is more appropriate and that, at present, the most effective tool for pursuing war crimes against cultural property is Protocol II to the 1954 Hague Convention. It is thus crucial to promote ratification by a large number of states and to encourage states to adopt implementing legislation that may allow domestic judges to prosecute the most serious crimes against cultural heritage on the basis of jurisdictional criteria provided for in Protocol II to the 1954 Hague Convention.
- Topic:
- Culture