Gillian Higgins Reviews International Cultural Heritage Law by Janet Blake

International Cultural Heritage Law by Janet Blake

Book Review by Gillian Higgins

Whether it’s the return of the Benin Bronzes by the Horniman Museum, the trial of a British tourist collecting ‘stones’, the negotiation of a “Parthenon Partnership" or the conclusion of long-running discussions with Cambodia over stolen antiquities sold on the international market by a private dealer, the thorny issues of the protection of cultural property are never far from the news. For mediators and lawyers, this relatively youthful area of international law is replete with questions of policy, convention interpretation and the need to assist States, museums and other institutions to reach tenable solutions to often politically sensitive problems concerning the return or retention of cultural property.

The recent agreement in the US to return 30 looted antiquities to Cambodia has been described by Cambodia’s US ambassador as akin to “returning the souls of our culture back to our people.” Given the cultural significance of repatriation and the global scale of ongoing trafficking, how we can protect cultural heritage and what does the term actually mean?

“Cultural heritage is a portmanteau term with a myriad of possible meanings and interpretations” explains Dr Janet Blake[1] in her recent volume, International Cultural Heritage Law.  Its legal definition is arguably “one of the most difficult confronting legal scholars today”.

Modern international cultural heritage law developed in the period following the Second World War with the establishment of the United Nations (UN) and the UN Educational, Scientific and Cultural Organization (UNESCO) in 1945 and the adoption of the Universal Declaration on Human Rights (1948).

By 1954, there was express recognition in the preamble of the Hague Convention that “cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is in increasing danger of destruction” and that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.”

Blake guides the reader through the subsequent developments of the law in its various forms around the world – including national legislation, constitutions, statutory laws, treaties, and administrative regulations. She explains that it is not possible to state one single approach to the protection of cultural heritage under international law and that the challenge in this field “is to try to satisfy as many of the legitimate interests in heritage as possible while, at the same time, operating within a system primarily established by and for sovereign and equal states.”

Blake explains the interplay between this “relatively youthful area of international law”, human rights law, environmental law and intellectual property and provides the reader in the opening chapter with all the essential tools needed to gain an overview of cultural heritage law.

In Chapter Two, Blake introduces the relevant international treaties concerning illicit excavation, theft and trafficking, addressing the scale of the problem worldwide and the nature of the illicit trade in antiquities. The different forms of control of the movement of antiquities employed by States to prevent illegal removal are explored including export/import controls, inventory systems, museum self-regulation, international and local policing. Focusing on the continuing trade in antiquities, Blake explains that while the market has accepted the principle that it should not deal in artefacts known to be illicit, “dealers and auction houses remain prepared to deal in items whose provenance is not known or even dubious.” The author notes “that international litigation for restitution and return of antiquities is not in itself a practical answer in the majority of cases and will only ever be appropriate to a few, high-profile cases.” Blake urges States to consider ways in which a balance can be found between the competing interests.

The subject of underwater cultural heritage is explored in Chapter Three. The physical facts of sites and artefacts being located underwater makes their discovery, recording and excavation a challenging task requiring diving skills with archaeological methodology and expertise. Blake explains that the “legal environment of the sea adds its own special complexities” alongside traditional rules of salvage and the division of the sea into various jurisdictional zones “plus the existence of both international customary rules and treaty law regarding the rights and duties of States within these various zones.” Blake concludes the chapter with a discussion of the 2001 Convention on Underwater Cultural Heritage which “has faced a long history in its making and has experienced much resistance.”

Chapters 4 and 5 address environmental issues and the intangible aspects of cultural heritage. Blake explains that while cultural heritage and the natural environment are closely interconnected, “this fact has not been sufficiently well reflected in either the drafting or the implementation of treaties in these two fields of international law (despite the best efforts of treaty bodies). Blake explores the impact of UNESCO’s Convention for Safeguarding Intangible Cultural Heritage (2003) and its lack of “legal bite”. She explains that there is “little to be found in this treaty in terms of strict obligations placed on Parties to govern their behaviour towards this heritage or even towards the communities, groups, and individuals who create and practise it, and, for whom, it represents a key part of their identities.” Blake concedes that the Convention has however succeeded in raising awareness and stimulating the development of safeguarding policies.

The diversity of cultural expression and its protection through the intellectual property regime is considered in Chapters 6 and 7, while Chapter 8 explores explicit linkages between international protection of the cultural heritage and human rights law. Chapter 9 concludes with Blake’s explanation of regional approaches and future trends to safeguarding and protecting cultural heritage. The author notes that most cultural heritage treaties “set up what are known as ‘soft law’ obligations that are more of an exhortatory than a binding character.” Customary norms are extremely limited and are almost exclusively related to law operating in the event of armed conflict. Blake concludes that “despite its clear legal challenges and limitations, international cultural heritage law has succeeded in stimulating a great deal of legal and related developments in countries around the world that have contributed to the overall status of protection of this highly important resource of individuals, groups, communities, nations and even humankind as a whole.”

An excellent and engaging account of a rapidly growing area of law.

Gillian Higgins

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[1] Associate Professor of Law at the University of Shahid Beheshti and expert in cultural heritage.