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Lecture notes Property I
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Cultural Property, Mabo.
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W3 – CULTURAL PROPERTYLECTURE 1 – WHAT IS CULTURAL PROPERTY OR CULTURAL
HERITAGE?
Important questions
What is cultural property?
o Culture is fluid and always changes.
How does law protect cultural property?
o A complicated issue not least because of the fluidity of
culture, and the principles behind the concept.
Can it be owned? I.e. can we assign ownership rights in/to it?
Consider the Parthenon/Elgin Marbles case.
Is law truly relevant or is this area properly governed by politics?
What is cultural property?
When we think about cultural property or cultural heritage, and how
to protect and allocate ownership to it, we can think about any of
the following:
o Antiquities,
o Ancient artefacts,
o Sculptures (like Parthenon Marbles),
o Monuments,
o Statues,
o Heritage sites (can be protected by UNESCO),
o Façade,
o UNESCO World Heritage site like Canterbury Cathedral,
o Art,
Paintings in national collections, museums, looted or
sold under duress in wartime like in Nazi era, art of
great cultural significance held privately, but not
allowed to be exported),
o Western Art e.g. Mona Lisa
o Aboriginal pieces,
o Human skeletons,
o Human remains (bone rooms)
Should it be buried? Respected? Or is it an art object
and has no other value? Sold on the market? Consider
the ethical issues.
o Funerary objects,
o Threatened Flora and Fauna,
o Weeds of national significance,
o Entire ecosystems,
UNESCO does not yet protect animals. Should animals even have
rights? Should the law respect them if they are created? Are animals
property or living creatures with their own likes and desires?
, UN Educational, Scientific and Cultural Organization.
World Heritage Convention.
How does the law protect cultural property or heritage?
Protects against destruction wartime, illicit trade/trafficking, listing
(World Heritage Convention) and other international and domestic
initiatives.
Wartime:
o 1954 Convention for the Protection of Cultural Property in the
Event of Armed Conflict (the 1954 Hague Convention) & its
two Protocols (1954 & 1999).
Provides for:
Planning protection during peacetime (enhanced
protection)
Providing protection during war, including ‘enhanced
protection’ (2nd Protocol),
Repatriating and restitution after hostilities end.
o The domestic legislation implementing the 1954 Convention is
the Cultural Property (Armed Conflicts) Bill [HL] 2016-17.
http://services.parliament.uk/bills/2016-17/
culturalpropertyarmedconflicts.html
It is debatable that the shield has any real effect and can
simply make a site a target for when, in a war, a country
wants to cripple the identity of the country it attacks.
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