2/2017 (4)

2017

Data publikacji: 03.07.2018

Licencja: CC BY-NC-ND

Redakcja

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BOOK REVIEWS

Information

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 1 - 1

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EDITORIAL

Alicja Jagielska-Burduk, Andrzej Jakubowski, Katarzyna Zalasińska

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 9 - 11

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IN MEMORIAM

Charlotte Woodhead, Luke Harris

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 13 - 16

https://doi.org/10.4467/2450050XSNR.17.017.8418

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GUEST EDITORIAL: Intangible Cultural Heritage: Successes, Disappointments, and Challenges

Lucas Lixinski, Hanna Schreiber

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 17 - 20

https://doi.org/10.4467/2450050XSNR.17.018.8419

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INTERVIEWS

“We Need to Make Synergies between the Conventions. This is the Next Step for UNESCO…”

Cécile Duvelle

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 21 - 32

https://doi.org/10.4467/2450050XSNR.17.019.8420

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Between Exclusion and Inclusion: On the Challenges Facing World Heritage Preservation Efforts

Mechtild Rössler

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 33 - 40

https://doi.org/10.4467/2450050XSNR.17.020.8421

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RESEARCH ARTICLES

From Traditional Culture and Folklore to Intangible Cultural Heritage: Evolution of a Treaty

Janet Blake

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 41 - 60

https://doi.org/10.4467/2450050XSNR.17.021.8422

The purpose of this article is to explore the evolution of the 2003 Convention in particular by examining the international policy priorities that led up to this process and also the relevant prevailing international law. Moreover, this process involved moving from seeking to safeguard “traditional culture and folklore”, then to regulating the neologism (in international law, at least) of “intangible cultural heritage” and the implications of that shift. One of these, of course, is the participatory heritage safeguarding model advocated by the 2003 Convention, highlighting its strongly human rights-based orientation. Furthermore, the relationship of the Convention with intellectual property (IP) rules and that of UNESCO with the WIPO in this endeavour is also explored, both up to the adoption of the 2003 Convention and the subsequent work in WIPO to develop sui generis IP rules to protect traditional knowledge and cultural expressions. In view of the divergence between UNESCO’s broader cultural approach and WIPO’s narrower focus on IP rules, the similarity of the 2003 Convention to the model of the 1972 Convention and the potential for overlap that exists between both these treaties in terms of their subject-matter, the role and positioning of the 2003 Convention vis-à-vis the 1972 Convention are also examined here.

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The Intangible Cultural Heritage System: Many Challenges, Few Proposals

Ahmed Skounti

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 61 - 76

https://doi.org/10.4467/2450050XSNR.17.022.8423

The 2003 Convention is one of the most powerful normative instruments of UNESCO in the fields of culture and cultural heritage. Ten years after its entry into force, it’s worth scrutinizing its implementation globally. One hundred and seventy-four States have become parties to the Convention as of 12 May 2017. Four hundred and twenty-nine elements and 17 programs, activities, and projects have been inscribed altogether on the Urgent Safeguarding List and Representative List or selected on the Register of Good Safeguarding Practices. The 2003 Convention has given birth to what I propose to call an “Intangible Cultural Heritage System” (“ICH System”): a constellation of actors either on the local, national, or international levels who contribute, in different ways, to its implementation. This paper examines the main challenges posed to this system in the last decade. It focuses on key-issues to which the 2003 Convention is confronted today: the universality of the concept of ICH, the governance of the 2003 Convention and its implementation on the international, national, and local levels, the listing process, including its positive and negative effects, the role of communities and other stakeholders in the implementation process, and the impact of safeguarding on ICH elements. Through a critical approach, both from inside and outside the functioning of the ICH System, the main objective of the paper is to make a contribution to the efforts seeking at the enhancement of the safeguarding worldwide. Its aim is a contribution both to the academic research in the field of heritage

studies and to the improvement of the implementation worldwide.

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Building Bridges Between the 1972 and 2003 Conventions – Searching for an Integrated Protection of Cultural Heritage under UNESCO’s Cultural Conventions System

Katarzyna Zalasińska

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 77 - 90

https://doi.org/10.4467/2450050XSNR.17.023.8424

The need for an integrated application of the Convention Concerning the Protection of World Cultural and Natural Heritage (1972) and the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) illustrates a shift in approach concerning the axiological base of the UNESCO’s Cultural Conventions System. Adopting the 2003 Convention reflected the new ways of thinking about the role of cultural heritage, raising the question of creating an integrated management model of heritage sites that could ensure a holistic approach to heritage conservation. The full engagement of communities in the management processes must entail considering the intangible cultural heritage elements, of which they are bearers. Thus, building integrated management systems would be the result of a redefinition of the scope and significance of the UNESCO Cultural Conventions.

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National Laws Related to Intangible Cultural Heritage: Determining the Object of a Comparative Study

Anita Vaivade, Noé Wagener

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 91 - 108

https://doi.org/10.4467/2450050XSNR.17.024.8425

This article is part of a collective research that focuses on studying various national legal tools elaborated for implementing the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (ICH), adopted in 2003. Instead of presenting the first results of this comparative law research project still in progress, the purpose of this article is to question the object of such a comparative study – before comparing and even before defining the scope of the study in terms of countries to be studied. It is certain that a comparative study on ICH law cannot be carried out simply based on a database gathering national laws using the term “ICH”. The pitfall is twofold: on one hand, it would be an error to think that one starts from nothing, and that ICH law remains still to be written in the vast majority of States; while on the other hand it would also be an error to create artificial continuities, with more or less assumed political implications, made up of legal regulations of yesterday and today which, nevertheless, do not claim to concern ICH. It is in the interval between these two extremes that legal continuities, as well as disruptions of the legislative histories may be observed, and all of these would enrich our understanding about the contexts in which the term “ICH” has been incorporated into national legal systems.

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The Protection of Intangible Cultural Heritage in Armed Conflict: Dissolving the Boundaries Between the Existing Legal Regimes?

Kalliopi Chainoglou

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 109 - 134

https://doi.org/10.4467/2450050XSNR.17.025.8426

The themes of measures of cultural heritage protection and the accountability of perpetrators of crimes against cultural heritage in armed conflict have been receiving growing attention in international fora and international scholarship. The applicable law for the protection of cultural heritage in times of conflict is the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols; however, the protection that this body of rules provides to intangible cultural heritage (as opposed to tangible cultural heritage) is questionable. This paper seeks to critically present the intersection of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage with other international legal regimes, especially the norms of the 1949 Geneva Conventions and their Additional Protocols and human rights law, with the aim of establishing that intangible cultural

heritage enjoys legal protection in all phases of an armed conflict.

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Museums, Dance, and the Safeguarding of Intangible Cultural Heritage: “Events of Practice” – A New Strategy for Museums?

Tone Erlien, Egil Bakka

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 135 - 156

https://doi.org/10.4467/2450050XSNR.17.026.8427

This article proposes to view the present actions regarding cultural heritage through the prism of two different paradigms: the paradigm of preservation and the paradigm of safeguarding. The question posed is whether and how these two paradigms can work together and support each other. The article is written as a dialogue between Tone Erlien, initiator, curator, and project manager of the project “Interactive dance dissemination”, who takes the perspective of the museums; and Egil Bakka, professor emeritus serving on UNESCO’s Evaluation Body for the 2003 Convention, who takes the perspective of this normative instrument. The Norwegian project “Interactive dance dissemination” is used as a point of departure for our discussion, and as an example of how the Convention has inspired and influenced the work of museums. We find that museums are signalling a strong wish to include the safeguarding of intangible cultural heritage (ICH) in their portfolios, even if they still mainly work within the preservation paradigm. As museums normally combine many approaches in their work with immaterial culture, many of them may not belong to a full-fledged “safeguarding” of ICH. In this article we posit that exhibitions and performances certainly can support safeguarding in important ways, but that full safeguarding projects would need to include the practitioners. The New Museum wave has reached out towards safeguarding, and the dance project described in this article elaborated several solutions to allow museums to embrace safeguarding, emphasizing the method we call “events of practice”. A basic challenge is whether museum staff are willing to give practitioners the lead, and if so, whether the practitioners themselves are able to take the lead.

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“Lawmaker Wants Cockfighting [to be] Part of Heritage”: A Critical Analysis of the 2003 Convention and the Struggle of Animal Rights Groups

Tsehaye Hailemariam

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 157 - 182

https://doi.org/10.4467/2450050XSNR.17.027.8428

This article critically examines the 2003 Convention and the struggle of animal rights groups. Throughout the analysis references will be made to the currently inscribed elements to the Representative List of the Intangible Cultural Heritage of Humanity, and the 2003 Convention’s criteria in place. In addition, the article demonstrates the 2003 Convention’s implications for the current debates on intangible cultural heritage and animal rights through a case study from the Philippines. The questions raised are developed within the broader discourses of the political, philosophical, and legal literature relevant to the issue of animal rights and intangible cultural heritage. It is argued that intangible cultural heritage practices that maltreat animals are not sustainable, and the definition of sustainable development currently being used by the United Nations is more holistic and inclusive than understood by the designers of the 2003 Convention; it can encompass the rights of animals, not only when their abuse and mistreatment is considered as serious damage to the environment, but also when their right to exist within the environment is violated.

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The Ví of Visibility, Visitability, and Viability in Vietnam: pHD and the Safeguarding Paradigm of the 2003 Convention After a Decade

Marc Jacobs

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 183 - 214

https://doi.org/10.4467/2450050XSNR.17.028.8429

In this contribution, first the importance of a Vietnamese episode in the genealogy of the paradigm of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage is highlighted. Second the evolution and bandwidth of this heritage paradigm are explored using a sensitizing distinction between AHD (Authorized Heritage Discourse) and pHD (participatory or popular Heritage Discourse) and via a discussion of the importance of appropriate vocabulary, focussing on interactions between Vietnamese policy makers and other actors on the one hand and UNESCO on the other hand. Third is a critical discussion of recent case studies of inscribed elements on the UNESCO lists (Articles 16 and 17) by Oskar Salemink, Barley Norton, and Lauren Meeker, next to a close reading of recent nomination files and films submitted by Vietnam for the Representative List of the 2003 Convention. The notions of visibility, viability, and visitability are used to discuss the criteria of the nomination procedure and how Vietnam deals with this as a Member State. The more general conclusion is that working together and other participatory methods are the way to go in the safeguarding intangible cultural heritage paradigm, not only to manage the effects of visibility and visitability, but above all in trying to “ensure” viability.

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COMMENTARIES

UK’s Cultural Property (Armed Conflicts) Act 2017 – Legislation 60 Years in Making

Agnieszka Jachec-Neale

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 215 - 236

https://doi.org/10.4467/2450050XSNR.17.029.8430

On 12 September 2017, the United Kingdom joined 128 other States in officially becoming party to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols. The UK first signed the Hague Convention in December 1954, but did not ratify it for 60 years. As political pressure mounted in recent years to recognize the necessity of safeguarding of cultural heritage both at home and abroad, the current government undertook to rectify the delay in bringing the UK’s obligations up to international standards in this field. This paper examines both the process and its legislative outcome. It argues that this ratification came as a much-awaited and welcome step, in particular because it allows for domestic prosecutions of serious breaches of the Second Protocol against non-nationals. By contrast, the ratification represented a missed opportunity to tackle some of the more challenging and topical issues related to the material and personal scope of application of the Hague Convention and its Protocols, as well as to the definition of cultural property.

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Cultural Heritage and Spanish Private Law

Luis Javier Capote Pérez

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 237 - 254

https://doi.org/10.4467/2450050XSNR.17.030.8431

This article offers a brief analysis of the public/private law divide in relation to the legal protection of cultural heritage in Spain. First, it provides an overview of the Spanish public law regime for the protection of historic and artistic heritage, comprising the list of categories of cultural goods. Second, the article endeavours to explain the impact of this public law regime on property rights. In particular, it explores and substantiates how and to what extent the general interest of the community in safeguarding and preserving cultural heritage, provided by public law regulations and enforced by public administration, may limit the property rights of private owners of cultural assets.

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Varia

The Nicosia Convention 2017: A New International Instrument Regarding Criminal Offences against Cultural Property

Mateusz Maria Bieczyński

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 255 - 274

https://doi.org/10.4467/2450050XSNR.17.031.8432

This article introduces a new treaty on the protection of cultural property: the Council of Europe’s Convention on Offences relating to Cultural Property (“the Nicosia Convention”), sometimes referred to as the “Blood Antiquities Convention”. Opened for signature on 19 May 2017, it is considered to be an expression of hopes regarding the prevention of destruction and illicit trade of cultural objects. The Nicosia Convention obliges its State Parties to implement common standards in criminal law in relation to cultural property. The recognition and implementation of equal measures for criminal offences can fill the gap in international cooperation in that field, particularly in times of instability or conflict. The treaty opens a new perspective, but its effectiveness depends however on the readiness of States to sign and effectively implement its regime in their respective domestic legal systems. This article focuses on the basic questions regarding the conditions of effectiveness of this treaty, the context of its adoption, and its envisaged consequences for the protection of cultural property.

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DEBUTS

International Cultural Heritage Law and World Heritage Listing: A Vehicle for “White Control of Indigenous Heritage”?

Marijke Bassani

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 275 - 296

https://doi.org/10.4467/2450050XSNR.17.032.8433

This article demonstrates that the current international cultural heritage protection framework, particularly in relation to the World Heritage List, provides an insufficient legal framework within which to protect Indigenous heritage, both tangible and intangible. This inadequacy is largely attributed to the incompatibility of “cultural heritage” with “Indigenous heritage”. An analysis of two dual-listed World Heritage sites – Uluru-Kata Tjuta National Park and Tongariro National Park – reveals that their listing results in an international cultural heritage protection paradigm that is overly bureaucratized and endorses a European colonial State-centric perspective. It thus not only fails to adequately account for Indigenous understandings of cultural heritage, but provides protection that is, at best, piecemeal and inconsistent with the 1976 International Covenant on Economic, Social and Cultural Rights and the 2007 United Nations Declaration on the Rights of Indigenous Peoples. The rights and interests of States, tourism industries, and landowners in relation to the heritage listed are often privileged, and this has negative implications for Indigenous peoples whose rights, interests, identities, histories, practices, and knowledge systems are further marginalized during the very process by which States seek to “protect” their heritage.

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Is China a Model Member State of UNESCO in Implementing the 2003 Convention? Reasons, Benefits, and Criticisms

Marta Tomczak

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 297 - 318

https://doi.org/10.4467/2450050XSNR.17.033.8434

This article argues that despite criticism within and outside China of the country’s practices in safeguarding its intangible cultural heritage, China has been truly attempting to execute and enhance the UNESCO instruments and to adopt UNESCO rules and practices. In return, it has enhanced the condition of its traditional culture, legal system, and soft power, thus heading in the direction of becoming a model Member State of UNESCO. In order to support this hypothesis, the article analyses how the 2003 Convention has influenced the manner in which China has sought to restore its traditional culture. To do so, I examine an authoritative list of the “Top 10” events in the field of intangible cultural heritage that took place in China during 2016. Moreover, this article suggests that the reason China has become involved in such a high-priced ICH revolution to a model degree is that quite early on the State realized the capacities hidden in traditional culture and the political potential of

applying UNESCO’s policies, and has been using the latter ever since as a vehicle to enhance the projection of soft power abroad, as well as a platform to establish a new sense of national pride and multi-ethnic “Chineseness” domestically. In bringing Chinese traditional culture and values back to the public discourse and making it a big part of its national project of reviving its glorious past, it can serve as a foundation for a unifying nationalism, hence serving legitimization purposes as well.

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CULTURAL HERITAGE IN POLAND

The Threat to Cultural Heritage from Crime in Poland: 2016 Cases

Olgierd Jakubowski

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 319 - 342

https://doi.org/10.4467/2450050XSNR.17.034.8435

Various methods of risk assessment can be deployed when examining the phenomenon of crime against cultural heritage. Annual data concerning instances of particular crimes involving cultural assets as well as case studies allow us to understand the trends in the activities of the perpetrators and help to develop methods of prevention. This article presents selected data as well as cases of offences discovered or committed in Poland in 2016, based on the statistics provided by the police, Customs Service, and Border Guard. It also presents data on final convictions of perpetrators of such acts. As part of the annual cycle of analysis, the developments illustrate the trends and risks to monuments and cultural assets in a given year. This complementary presentation of information about the threat to cultural heritage is important for research and policy-making aimed at developing strategies for its protection.

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EVENTS AND CONFERENCES

TIAMSA – The International Art Market Studies Association

Alicja Jagielska-Burduk, Philipp A. Nuernberger

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 343 - 345

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The 1995 Unidroit Convention Academic Project: Facilitating the Study of the Unidroit Convention on Stolen or Illegally Exported Cultural Objects

Giuditta Giardini

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 346 - 348

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Cultural Assets Law, Reproductive Photography, Street Photography: The Eleventh Heidelberg Days of Art Law (XI. Heidelberger Kunstrechtstage: “Kulturgüterrecht, Reproduktionsfotografie, Streetphotography”) Heidelberg, 20-21 October 2017

Krzysztof Grzegorczyk

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 349 - 351

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41st Session of the World Heritage Committee Kraków, 2-12 July 2017

Magdalena Marcinkowska

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 352 - 354

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Building Bridges between the 1972 and 2003 Conventions: Challenges for the Future. Side event at the 41st Session of UNESCO World Heritage Committee Kraków, 10 July 2017

Hanna Schreiber

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 355 - 356

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Cultural Heritage in Danger: Illicit Trafficking, Armed Conflicts and Cultural Diplomacy Research Conference at the Centre for Heritage, University of Kent Canterbury, 9 June 2017

Kristin Hausler

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 357 - 358

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Cultural Heritage in the European Union: Legal Perspectives and Contemporary Challenges Warsaw, 20-21 April 2017

Paola Monaco

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 359 - 363

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The First Nomination from Poland Submitted to the Representative List of Intangible Cultural Heritage of Humanity (2018 Cycle)

Hanna Schreiber

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 364 - 365

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The European Students’ Association for Cultural Heritage (ESACH). A European Cultural Heritage Movement

Marius Müller, Maike Schwiddessen

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 366 - 369

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16+1 Expert-Level Forum: China and East-Central Europe on the Safeguarding of the Intangible Cultural Heritage Kraków, 11-14 October 2016

Hanna Schreiber

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 370 - 372

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BOOK REVIEWS

Culture and Human Rights: The Wroclaw Commentaries Andreas Joh. Wiesand, Kalliopi Chainoglou, Anna Śledzińska-Simon, and Yvonne Donders (eds.)

Robert McCorquodale

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 373 - 375

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Restitution of Cultural Property. Hard Case. Theory of Argumentation. Philosophy of Law Kamil Zeidler

Paulina Gwoździewicz-Matan

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 376 - 379

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International Cultural Heritage Law in Armed Conflict: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan Marina Lostal

Karolina Wierczyńska

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 380 - 384

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Intangible Cultural Heritage: Safeguarding Experiences in Central and Eastern European Countries and China. 10th Anniversary of the Entry into Force of the 2003 UNESCO Convention through the Prism of Sustainable Development Hanna Schreiber (ed.)

Andrzej Rottermund

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 385 - 391

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Call for Papers

Santander Art and Culture Law Review, 2/2017 (3), 2017, s. 392 - 393

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2/2017 (3)

2017 Następne

Zawartość numeru

BOOK REVIEWS

INTERVIEWS

RESEARCH ARTICLES

COMMENTARIES

Varia

DEBUTS

CULTURAL HERITAGE IN POLAND

EVENTS AND CONFERENCES

BOOK REVIEWS

2017