Cultural Heritage Law Research Articles

Reorganising the law to understand and protect all forms of cultural heritage

ABSTRACT Professor Irene Watson explains that decolonisation requires us to dissolve and think beyond the white colonial ‘right way of knowing’ intrinsic in Western law, and its methodologies and philosophies (1998, 28, 30). This ‘right way’ operates within a hierarchy of being that divides body from mind and spirit, and divides humans from non-human beings and from the physical and spiritual environment (Graham, 1999, 113–115). This ethos of separation is infused in Australian law and common law thinking, including those laws directed to the protection of cultural heritage. Using the cultural heritage protections laws as a prism, this paper interrogates the contemporary injustices caused by law. Contrasting the quality of protections afforded to Aboriginal cultural heritage to that afforded to ‘white’ forms of cultural heritage, we argue that cultural heritage laws operate as a racialised system of violence that is causing irreparable harm to the lands and waterways. It is urgent that we reorganise laws’ relationship to land by reinstating Indigenous sovereignty and holistic and relational management of country, the waterways, non-human beings and other entities.

Optimization of Legal Protection for the Leato Wreck Site: Discourse on Cultural Heritage Law and Maritime Conservation Law

Cultural heritage regulations and maritime conservation area regulations intersect and overlap in terms of legal protection, and nowhere is this more obvious than at the Leato underwater site/Japanese cargo ship wreck, referred to as the Leato wreck site in this paper. This legal issue later became a stumbling block in optimizing the legal protection of the Leato/Japanese cargo wreck underwater site. The study used two approaches: the statute approach and the conceptual approach. Analysis: a shipwreck can be defined as a catastrophic event that occurred in the past, with potential socio-economic benefits in the future, contingent upon optimal efforts to conserve history and culture, with great socio-economic potential if its exploitation is successfully optimized, with an eye to conservation efforts. The combination of these legally binding regulations is the key to optimizing the legal protection of the Leato underwater site. The maritime conservation area regulations safeguard the shipwreck's location as an integrated and interconnected ecosystem. By contrast, cultural heritage regulations protect the core zone of the Leato underwater site as a maritime cultural heritage from potential natural or human-caused damage. Other important issues that need to be considered are the empowerment of local communities in realizing a sustainable environment and cooperation between institutions in maintaining and preserving underwater cultural heritage.

Pierre Lalive and John Henry Merryman, Fellows in Art and Cultural Heritage Law – Where Are They Now?

The International Journal of Cultural Property (IJCP) is proud to award yearly the Pierre Lalive and John Henry Merryman Fellowship in Art and Cultural Heritage Law, hosted by the International Cultural Property Society and the Art-Law Centre of the University of Geneva.

The idea of protecting cultural heritage for the benefit of future generations in international cultural heritage law

Abstract Much of today’s academic scholarship of international cultural heritage law circles around cultural heritage’s protection for the benefit of future generations. Despite this, the efforts to systematically examine the concept in more detail are scarcer. This paper seeks to fill this gap by taking a closer look at the ways in which the notion of future generations features in the body of international cultural heritage law. This contribution firstly illustrates how central the idea of protecting cultural heritage for the benefit of future generations is in international cultural heritage law. Despite this centrality, evidenced by an extensive analysis of international and regional hard and soft law, national law, case law, and policy options, its precisely contours the second argument of this paper, is that they remain elusive. Finally, skepticism is voiced over the concept’s potential ambivalent use with respect to the protection of cultural heritage.

Juridical Analysis of the Position of the Surakarta Kasunanan Palace as a Cultural Heritage Area Linked to the Basic Agrarian Law (UUPA)

With the provisions of the Fourth Dictum of the UUPA, regarding the position of the Surakarta Kasunanan Palace as a cultural heritage area, there are still differences of opinion regarding its ownership status. This research aims to examine the position of the Surakarta Kasunanan Palace after the enactment of the UUPA, as well as to analyze the ownership status of the Surakarta Kasunanan Palace as a cultural heritage area. The research method is normative juridical. The type of data used is secondary data. Data analysis techniques using deductive reasoning presented descriptively. The results of this research are: first, the position of the Surakarta Kasunanan Palace after Indonesian Independence, based on: Law Number 10 of 1950 was designated as part of Central Java Province; and based on Law Number 18 of 1965, de jure Swaraja Surakarta was abolished. Then, after the UUPA came into force, the position of the Surakarta Kasunanan Palace should have shifted to the State. However, in reality, currently the Surakarta Palace Sultanate still has and exercises authority over the lands it owns and owns based on Presidential Decree Number 23 of 1988. Second, the ownership status of the Surakarta Kasunanan Palace as a cultural heritage area is stipulated in the Regulation of the Minister of Culture and Tourism Number PM.03/PW.007/MKP/2010 belongs to the Surakarta Kasunanan Palace as an indigenous community in accordance with Article 13 of the Cultural Heritage Law. The Surakarta Kasunanan Palace is a traditional community, because the King is the traditional leader who still has the same territorial area and lineage and has authority within and outside his traditional area. If the Kasunanan Surakarta Palace is interpreted as a traditional institution, and ownership of the land of the Surakarta Kasunanan Palace becomes a customary right for the Surakarta Kasunanan Palace, then as a consequence the Government in taking over the land of the former Surakarta self-government must also pay attention to the principle of recognizing these customary rights.

A Roman holiday with ‘open heritage’? Exploring copyright law and cultural heritage law’s role for our collective cultural interest in Italian film and Italian fashion

A Roman holiday with ‘open heritage’? Exploring copyright law and cultural heritage law’s role for our collective cultural interest in Italian film and Italian fashion

Application of Intangible Cultural Heritage Art Resources in Art Education of Primary and Secondary Schools

The Intangible Cultural Heritage Law of the People's Republic of China explicitly states that educational institutions shall implement relevant intangible cultural heritage education by the provisions set forth by the competent education department under The State Council. Integrating intangible cultural heritage into art education is a crucial approach to safeguarding and preserving intangible cultural heritage. Schools serve as an optimal platform for inheriting and protecting the abundant intangible cultural heritage, with the compulsory education stage in primary and secondary schools offering unparalleled opportunities. Integrating local intangible cultural heritage into primary and secondary school art education and compiling art textbooks with local characteristics will help form a theoretical framework of curriculum design suitable for this purpose. As a result, they attained significant accomplishments regarding cultural transmission and spiritual heritage. However, there are still some things that could be improved with teaching staff, teaching material content, family and school social environment. It is imperative to conduct further research on optimizing the integration of resources into art education in primary and secondary schools. The investigation into effectively incorporating intangible cultural heritage art resources into art instruction in primary and secondary schools necessitates additional exploration.

Land Ownership Rights to Cultural Reserve Buildings in Surabaya based on Basic Agrarian Law and Cultural Heritage Law

<div><p class="abstract"><span>In colonial times, the city of Surabaya was an important part that held a lot of history. Surabaya is known as the oldest port city in Indonesia during the Dutch East Indies era and was the centre of government and international trade. Apart from that, Surabaya was also named a city of heroes because the heroes at that time were willing to sacrifice themselves to fight for and defend the independence of the Republic of Indonesia by fighting the invaders. On that basis, Surabaya is rich in cultural heritage. Most of the heritage of these historic buildings is still standing and can be found in several areas of the city of Surabaya. The local Department of Tourism and Culture has established regulations to protect original historic buildings as city heritage. However, in fulfilling the rights and obligations of individuals and city governments, land rights owned from generation to generation must be considered by the local city government. This research uses normative juridical with doctrinal and statutory regulatory approaches. This research aims to find regional regulations regarding cultural heritage related to ownership rights in managing cultural heritage land and buildings.</span></p></div>

Evaluation of Infrastructure Management of Solo’s Fort Vastenburg Heritage Building

Surakarta is an old settlement in Indonesia that has many infrastructure heritages in the center of the city, one of which is in the form of soft infrastructure, namely the Vastenburg Fort building. This building has been neglected, even though it is listed as a national cultural heritage building and is protected by the cultural heritage law. The purpose of this research is to evaluate the existing of the cultural heritage building assets of Fort Vastenburg. This type of research is evaluation research with a qualitative approach. The process of collecting data by searching archives and documents of ownership of Fort Vastenburg assets and in-depth interviews with parties related to the management of cultural heritage management of fort buildings. The evaluation stage is carried out by measuring the suitability between the regulations of Law with empirical facts in the field. Furthermore, an assessment is carried out using qualitative analysis techniques, namely: reduction, presentation, and conclusion drawing or verification. The results showed that the land certificate owners of Fort Vastenburg amounted to 12. This makes it difficult for the Surakarta City Government to preserve the cultural heritage building of Fort Vastenburg, therefore the evaluation results are at a sufficient level.

Illicit Trade in Cultural Objects under the Spanish Law: The Cabeza de mujer joven Case

This article seeks to introduce a brief description of the rules of protection of cultural heritage goods in the Spanish Law, using the example of a mediatic case of illicit trade, where the regulations of civil law, criminal law, and administrative law were applied and where the freedoms inherent in the right of ownership collided with the rules on properties of cultural interest. First, it provides an overview of the Spanish cultural heritage law, beginning with the constitutional mandate of assuming and promoting the protection of Spanish cultural heritage, and thereafter focusing on the concept of private ownership and its limits, in accordance with the social function of all property rights under the 1978 Spanish Constitution. Second, it describes a well-known case of illicit trade, focused on a valuable painting by Pablo Picasso. The work Cabeza de mujer joven (Head of a young woman) belonged to a private owner who decided to sell it internationally, using the services of a well-known auction house. When the required permission for exportation was denied by the Spanish public administration, the owner commenced a court proceeding aimed at changing the decision, but also planned to send the painting abroad using a yacht on his property. Thirdly, the article’s conclusion reflects on the level of severity of the Spanish legislation as applied in the case, in the context of the balance between cultural heritage protection and the freedom of disposition inherent to the right of property ownership.

Making the Case for the Restitution of Illicitly Acquired Cultural Objects under the Rules of Jus Cogens

Over the years, our perspective on cultural heritage has undergone changes. The field has become more diverse, requiring solution-focused approaches to address the underlying problems associated with cultural heritage. One significant challenge is the issue of restitution, which is considered a major failure of international cultural heritage law. How can international cultural heritage law completely heal historical wounds instead of merely offering empty hopes to those who have suffered? Simply acknowledging past wrongs by offending states is insufficient, and it does not align with the fundamental legal principle that where there is a wrong, there should be a remedy (ubi jus ibi remedium). Despite the considerable growth in the jurisprudence of international cultural heritage law, there remains a pressing need to consolidate the legal framework to facilitate the restitution of stolen or looted cultural objects. This article argues that the prohibition of plunder and pillage of cultural property constitutes a jus cogens rule of international law. Its violation therefore gives rise to an unconditional obligation to restitute such property.

The 2003 Intangible Cultural Heritage Convention in Armed Conflict: An integrated reading of obligations towards culture in conflict

Abstract International law today recognizes that cultural heritage includes not only tangible but also intangible cultural heritage, encompassing traditions, customs, practices, and beliefs. While protections for tangible cultural heritage have existed since at least the nineteenth century, only relatively recently has the law gone beyond piecemeal human rights protections and extended direct and specific treaty protections to intangible cultural heritage through the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage. The push for this Convention was linked with broader discontent within the Global south at the prioritization of Eurocentric ‘monumentalism’ in international cultural heritage law. Nevertheless, in situations of armed conflict, the emphasis reverts to protection of tangible cultural heritage as international humanitarian law does not go beyond general civilian protections to directly address the protection of intangible cultural heritage in conflict. While the 2003 Convention provides for emergency assistance, its broadly-worded terms do not indicate the shape its other obligations would take in armed conflict or the manner in which they would interact with rules governing the conduct of hostilities. This article examines, first, the degree and extent to which the 2003 Convention’s various obligations in relation to safeguarding intangible cultural heritage circumvent de-prioritization and continue to apply in conflict; and second, the manner in which they can be integrated with rules of international humanitarian law to better protect intangible cultural heritage during active hostilities.

A Brave New World: Maneuvering the Post-Digital Art Market

The digital revolution has launched myriad new technologies in the field of art and cultural heritage law, including digital art, NFTs (non-fungible tokens), artificial intelligence (AI)-generated art, virtual reality and reality augmentation, online viewing rooms and auctions, holograms, immersive experiences, and more. As a $67.8 billion industry, the art market is a global driver of innovation, international collaboration, and national economies, given its cross-border transactions. However, given the extremely rapid development of these new technologies, regulators have struggled to keep pace and implement legal measures that are fit for purpose in this field. Limited oversight has resulted in several claims that have the potential to change the legal landscape. For instance, claims over the theft/misappropriation of NFTs and the related fraud and money laundering that may ensue, as well as a recent class action copyright infringement suit against the creators of a popular AI algorithm and infringement claims over immersive installation and light technologies, demonstrate how new ways of thinking are required to assess cases involving digital property (distinguished from other types of non-tangible property). Moreover, the US Supreme Court has issued a landmark ruling on fair use within the copyright context, which will be relied upon in the future to determine whether (and to what extent) the appropriation of existing copyrighted material is permitted. This includes both the digital use of physical artworks and the use of born-digital works. Although jurisprudential decisions are made on a case-by-case basis, factual patterns involving online media, digital art, and related technologies could serve as guidance for legislators and other decision-makers when considering what limits should be imposed on Web 3.0. This article will focus on recent US-based claims and regulations and dovetail with existing art market regulations in this jurisdiction (e.g., anti-money-laundering statutes) to determine their impact on new technologies, whether directly or indirectly. Finally, the article highlights ongoing trends and preoccupations to provide an overview of the shifting legal landscape.

Safeguarding Oman’s Cultural Heritage: Legislative Perspective

Oman’s cultural heritage is protected by a number of laws, the most important of which is the Cultural Heritage Law (CHL), which was issued in 2019 as a replacement for the National Heritage Protection Law (NHPL) that was in force since 1980. This paper reviews the protection and management of various types of cultural heritage under both these laws and other relevant national legislative tools. It discusses the aptness and adequacy of these laws to manage this heritage in light of the unprecedented development that the country has been witnessing since 1970. The study concludes that there are a number of aspects that need to be considered for the refinement and reformation of extant laws. For example, the legal and practical challenges that can arise from having a single law must be considered to manage and protect all types of cultural heritage. Also, the practicability of having two different organizations to manage both tangible and intangible heritage must be assessed. Finally, the study proposes to include the protection of cultural heritage in laws that have a direct and indirect relationship. Finally, it suggests the reconsideration of the separation of the bodies concerned with heritage from those concerned with culture.
 
 Keywords: Sultanate of Oman; cultural heritage; tangible heritage; intangible heritage; law.

Peran Pemerintah Daerah Dalam Melestarikan Situs Budaya (Studi Kasus Petilasan Tribuana Tungga dewi di desa Klinterejo Kecamatan Sooko Kabupaten Mojokerto)

Mojokerto Regency is one of the areas in East Java which has historical heritage. It is not surprising that the district has many historical relics, such as the Petilasan Tribuana Tunggadewi in Klinterjo Village, Sooko District, Mojokerto Regency. This study uses a qualitative method. Technical analysis of this data using descriptive qualitative. The data collection technique uses the snowball method with four informants. Source of data obtained based on primary data and secondary data. To collect data researchers used observation techniques, in-depth interviews, and documentation. The data analysis model used is data collection, data reduction, data presentation, and drawing conclusions. This study aims to determine the form of the role of local governments in preserving cultural sites up to their utilization and also to determine the supporting and inhibiting factors in preserving cultural sites. The results of this study indicate that there are several stakeholders who are responsible for preserving the Tribuana Tunggadewi ruins, where the Tribuana Tunggadewi ruins are included in the National Cultural Heritage Area (KCBN). This is what plays an important role in the preservation of the ministry, this has been regulated in the Cultural Heritage Law No. 10 of 2011. As is the case in excavations where this is carried out by the East Java Region XI Cultural Preservation Center (BPK) under the supervision of the ministry, this makes the Mojokerto district government in its utilization was hindered by regulations from the ministry, but the existence of this partition did not make the role of the Mojokerto district government hands off as a regulator such as outreach to the residents of Klinterjo village in collaboration with the local village government and also from BPK region XI East Java. While the facilitator is like in making roads leading to the petilasan area or supporting facilities such as building a prayer room in the petilasan area, toilets, and the pavilion. From the results of this study it can be concluded that the preservation of the Tribuana Tunggadewi ruins has stakeholders who oversee the preservation of cultural heritage, both from the central, district and village governments.

Alicja Jagielska-Burduk talks with Patty Gerstenblith, professor of law at DePaul University and director of its Center for Art, Museum & Cultural Heritage Law

Alicja Jagielska-Burduk talks with Patty Gerstenblith, professor of law at DePaul University and director of its Center for Art, Museum & Cultural Heritage Law

2022 Pierre Lalive and John Henry Merryman Fellowship in Art and Cultural Heritage Law

2022 Pierre Lalive and John Henry Merryman Fellowship in Art and Cultural Heritage Law

Excavating the field of heritage law: support, renewal, and iconoclasm

AbstractThis article maps the field of cultural heritage law, arguing for the need for its renewal, even if at the cost of some iconoclasm of notions we hold dear in our conceptual thinking about heritage. The article pursues this thesis by excavating a conceptual archaeology (broadly in the Foucauldian sense) of four key assumptions or conceptual pillars of cultural heritage law, which are the assumption of inherent value of cultural heritage; the pillar of authenticity; the assumption that human rights can work as a panacea for the renewal of the field; and the pillar of expertise. The archaeology of these ideas shows how much of what we take for granted in cultural heritage law is no longer fit for purpose, and the article shows those stakes by contrasting the work of these pillars and assumptions against some of the key challenges to the field: interdisciplinarity; the Anthropocene; enforcement; and the growing use of heritage as an ideological target in armed conflicts.

A Case about the Avalokiteshvara Statue of Buseoksa Temple(Seoju, Goryeo) and the International Cultural Heritage Law

A Case about the Avalokiteshvara Statue of Buseoksa Temple(Seoju, Goryeo) and the International Cultural Heritage Law

Cultural Heritage Zoning System of Otanaha Fort Gorontalo City: Its Implementation in Regional Regulations

The purpose of this study is to determine and analyze the implementation of the zoning system in the cultural heritage of Fort Otanaha in Gorontalo Province. This research uses a type of normative-empirical (applied) research, which is research that examines the implementation or implementation of positive legal provisions (legislation) and written documents in action (factual) on a certain legal event that occurs in society. Based on the results of the study, it was concluded that in the application of the zoning system in accordance with the mandate of applicable laws and regulations, it is necessary to have a legal umbrella, namely a derivative regulation that can become a legal umbrella and become an extension to realize the mandate stated in the Cultural Heritage Law so that the cultural heritage of Fort Otanaha can be preserved and passed down from generation to generation.