Cultural Heritage Disputes Research Articles

Menelusuri Kontroversi Klaim Budaya Perspektif Indonesia-Malaysia dalam Sengketa Warisan Budaya

This article reviews the cultural claims controversy between Indonesia and Malaysia in cultural heritage disputes. This study aims to explore the long debate between Indonesia and Malaysia regarding competing cultural claims. This article uses the research method of literature study or literature study by collecting data and information using various library resources, including books, documents, and periodicals, and archival narratives. Data collection is carried out by collecting various scientific articles from research published through google scholar. Data search was carried out using keywords relevant to the focus of this study. Data analysis is carried out qualitatively with stages of data reduction, data presentation, and conclusion drawing. The results of the data analysis show that tracing the controversy over cultural claims between Indonesia and Malaysia in cultural heritage disputes, illustrates the complexity of dynamics between the two countries involving aspects of history, politics, and cultural identity. Competition for claims to cultural heritage often reflects efforts to strengthen or expand national identity, while also fighting for economic rights and interests. Such conflicts emphasize the need for a cautious and evidence-based approach in resolving claims, while considering the importance of close bilateral cooperation to preserve and promote the cultural richness that forms part of a shared identity within the Southeast Asian region

THE INDONESIA-MALAYSIA CULTURAL HERITAGE DISPUTES: A CASE STUDY OF THE PENDET DANCE AND RASA SAYANGE FOLK SONG

Abstract This article analyses the role of nationalism and power politics (external/domestic) in shaping Indonesia’s relations with Malaysia during the administration of President Susilo Bambang Yudhoyono (SBY). More specifically, it examines how nationalism, namely domestic nationalist pressure interacts with other external-domestic determinants in shaping Indonesia’s external behaviour and options towards Malaysia when managing the cultural heritage disputes, with particular attention given to Malaysia’s alleged claims of proprietorship over the Pendet dance and Rasa Sayange folk song. By adopting a neoclassical realist construct, this study seeks to address the pertinent questions of why, how, when and to what extent nationalism affects the perceptions and calculation of the SBY administration and Jakarta’s policy options during their altercations over the two cultural heritage debacles. Special attention is given to examining the interactions between domestic nationalist pressure and the related external-domestic determinants influencing Indonesia’s foreign policy towards Malaysia, to assess the extent to which nationalism constrained the SBY administration’s handling of the related episodes of the cultural heritage disputes. This study found the salience of nationalism and/or domestic nationalist pressure in constraining/affecting SBY administration’s management of the cultural heritage disputes affecting the Indonesia-Malaysia bilateral ties to be dependent on the Indonesian state-elites’ perceptions/calculation of the external-domestic conditions, namely their domestic political resolve vis-à -vis nationalist forces and Indonesia’s relative power position compared with Malaysia, which predisposed specific foreign policy-options during the given time period and context.

Cultural Heritage Challenges in Investment Arbitration: Review of Valentina Vadi'sCultural Heritage in International Investment Law and Arbitration

International investment law is usually oriented to protect investors while cultural heritage law focuses on the protection of unique items and activities of cultural value. These two subsystems coexist and increasingly intersect within the international legal system, mainly in the context of investment arbitration proceedings, where domestic cultural policies are balanced against the interests and rights of foreign investors. The interplay between these subsystems entails legal complexities and challenges and, as a result of the increasing number of cultural heritage disputes, demands new approaches in the fields of cultural governance, international relations and dispute settlement. These issues are thoroughly addressed by Valentina Vadi in her bookCultural Heritage in International Investment Law and Arbitration(Cambridge University Press 2014).

Culture Clash? World Heritage and Investors' Rights in International Investment Law and Arbitration

Can States promote economic development without infringing upon the cultural wealth of nations? Although economic globalization and international economic governance have spurred a more intense dialogue and interaction among nations—potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage—these phenomena can also jeopardize the cultural wealth of nations. Foreign direct investments have an unmatched penetrating force with the ultimate capacity of changing landscapes and erasing memory. At the same time, the increase in foreign direct investment has determined the creation of legally binding and highly effective regimes that demand States to promote and facilitate foreign direct investment. Has an international economic culture emerged that emphasizes productivity and economic development at the expense of cultural wealth? Does the existing legal framework adequately protect the cultural wealth of nations vis-a-vis economic globalization? This article surveys a selected sample of investment arbitrations, showing that while international investment law has not developed any institutional machinery for the protection of world heritage through investment dispute settlement (after all international investment law is not intended to protect cultural heritage), in recent years, a jurisprudential trend has emerged that takes cultural heritage into consideration. After defining the concept of cultural heritage disputes, this study analyzes and critically assesses these disputes and explores the use of cultural exceptions as a tool to prevent disputes in this field.

Culture Clash: Investor’s Rights v. Cultural Heritage in International Investment Law & Arbitration

This study aims to explore the ‘clash of cultures’ between international investment law and international cultural law. When countries pursue economic growth, their policy makers may have an incentive to lower cultural standards to promote economic activities. If states nonetheless maintain a high level of cultural heritage protection, disputes may arise as foreign investors can claim that such policies affect their economic interests thereby breaching investment treaty provisions. Given the extraordinary increase of foreign direct investment (FDI) flows in recent years, the privileged regime created by international investment law within the boundaries of the host state has increasingly determined a tension between investors’ rights and cultural heritage protection. In some cases, foreign investors have claimed that cultural policies negatively affected their investment, thereby amounting to indirect expropriation. In other cases, the investors alleged discrimination and/or violation of the fair and equitable treatment standard. In sum, there is a variety of potential conflict areas between investor rights and cultural policies.The interplay between investor’s rights and cultural heritage protection raises a number of questions. First, have arbitral tribunals paid any attention to cultural heritage? If so, how have they balanced investors’ rights and the cultural policies of the host State? Second, what implications, if any, can be drawn from this emerging case law with regard to the current debate on the unity or fragmentation of international law? Third, have arbitral tribunals conformed to existing adjudicative patterns of other courts and tribunals on cultural heritage issues?This study aims to address these questions by mapping the uncharted land of cultural heritage related disputes. After defining the concept of cultural heritage disputes, this study analyzes and critically assesses the cultural heritage related disputes and explores some legal options to reconcile the different interests at stake. Finally some conclusions will be drawn.

Justice and the Cultural Heritage Movement: Using Environmental Justice to Appraise Art and Antiquities Disputes

What does justice require? This paper aims to spark a conversation about the role of justice in art and antiquities disputes by introducing the concept of cultural justice. Borrowing from a principle known as environmental justice, cultural justice allows the application of critical scrutiny to the law and norms that govern cultural heritage. The history of environmental justice — including both its successes and failures — offers important lessons for the cultural heritage movement. Environmental and cultural injustice plagues the same nations and groups: Africa, Central and South America, and indigenous groups are denied the same environmental and cultural benefits. The cultural heritage movement has been subject to the same criticisms as the environmental justice movement, but has not had the benefit of an animating theoretical framework. The law strains to resolve art and antiquities disputes. Examining disputes through the lens of cultural justice allows us to move beyond thinking about art in terms of keeping it in museums (or the art trade) or returning it to its nation of origin. This paper applies Rawls’s theory of justice to cultural heritage and presents a taxonomy of cultural justice, examining in detail its distributive, procedural, corrective, and social aspects. Thinking about cultural justice allows a deeper understanding of the reasons why cultural heritage disputes are so difficult to resolve. By considering cultural justice, we can also begin to define the limits of what law and policy can do to remedy historical and contemporary art taking. These limits have eluded cultural heritage advocates, subjecting the cultural heritage movement to broad criticisms.

Conference on Cultural Heritage Issues: The Legacy of Conquest, Colonization and Commerce, Willamette University, Salem, Oregon October 12–14, 2006

On October 12 to 14, 2006, Willamette University hosted an international conference, “Cultural Heritage Issues: The Legacy of Conquest, Colonization and Commerce.” Some 30 distinguished panelists addressed five themes: the legacy of indigenous conquest, the legacy of international conquest and colonization, the legacy of commerce, avoidance and resolution of cultural heritage disputes, and issues related directly to museums and sites. Papers drew on the panelists' expertise in a broad range of disciplines, from archaeology to law enforcement. Topics included, for example, Repatriation of First Nations' Material Culture in Canada, the UNESCO Convention on the Protection of the Underwater Cultural Heritage, Recovery of Art Looted During the Holocaust, and The Effect of Colonization on the Cultural Property of Libya.