Implementation and Enforcement of International Heritage Law

This chapter tackles issues of application that are at the forefront of international heritage treaties. It looks at tools inherent to international heritage treaties such as listing, international funds, and cooperation mechanisms, and the ways communities can (or, more often, cannot) rely on them. It also considers how, once compared across treaties, these tools share certain commonalities and differences that are revealing about the way international heritage law as a body of rules operates, particularly vis-à-vis communities. After that, the chapter examines the somewhat elusive matter of enforcement of international heritage law, which is for the most part reliant on non-specific fora, and sometimes other treaties altogether, to translate heritage goals into the language of those other instruments. Alternative fora can have beneficial effects on the inclusion of communities as a central part of heritage processes. Lastly, the chapter engages briefly with the matter of domestic implementation.

Introduction

The Introduction details the book’s general aims and argument. It also lays the groundwork for some of the broader theoretical themes that run through the book, namely: the relationship between law and non-law with respect to cultural heritage; the conservation paradigm under which international heritage law operates; and the basic terminology that the book uses, in its choice to refer to simply ‘heritage’, instead of ‘cultural heritage’, ‘cultural property’, ‘natural heritage’, and a working definition of ‘community’.

Conclusions

This, the concluding chapter of the book, pulls together the many strings of argument so as to provide elements for a more community-centred international heritage law, which, the chapter argues, is ultimately an improved and more sustained way of safeguarding heritage for present and future generations, therefore fulfilling UNESCO’s ambitions of promoting peace through heritage. The chapter proposes pathways to bring communities to the international decision-making, and for a more critically aware international heritage law.

Temporalities of International Heritage Law

This chapter focuses on the way international heritage law applies across time, and the mismatch between community and state expectations of these relationships between heritage and time. While it often relies on time as a means to define heritage, international heritage law has in many respects a difficult relationship with Chronos. From the age of heritage down to the non-retroactivity of treaties which essentially resets the clock on a number of heritage disputes and injustices, the temporal application of international heritage law plays a significant role in shaping what is permissible heritage, and how the law addresses heritage. The chapter uses genocide’s relationship to cultural heritage as a means to examine how heritage plays roles before, during, and after major events, in ways that the law does not always capture constructively. Lastly, it queries the potential of international human rights law to address international heritage law’s shortcomings in this area.

Stakeholders in International Heritage Law

This chapter looks at the actors and stakeholders in the field of international heritage law. It focuses a significant amount of energy on the roles of states and experts, who are the key actors with a seat at the international table, before moving to look at museums, collectors, and other private (corporate) actors, and the elusive ‘community’, which is at the centre of this book’s project. The chapter argues that community, while ambiguous and laden with colonial legacies, is still a concept worth trying to define.

Heritage and the Environment

This chapter focuses on the relationship between heritage and sustainable development, and more broadly the environment, particularly in the ways in which sustainable development can exclude communities from their own heritage. It shows how ‘natural’ heritage has a much more pervasive impact on how we think of heritage in international law, and the conservation paradigm more specifically. The chapter also discusses the implications of sustainability for heritage safeguarding; how environmental considerations, while in and of themselves positive and desirable, can also have the effect of excluding community stakeholders, ultimately compromising their ability to promote sustainable safeguarding of heritage, and, in more extreme cases, the very existence of the heritage they set out to protect. The chapter thus argues that sustainable development, in the heritage context, needs to take communities into account more seriously if it is to effectively pursue its goals.

Definitions: From Cultural Property to Cultural Heritage (and Back?)

This chapter focuses on the multiple definitions of ‘heritage’ in UNESCO instruments, and particularly on their relationship to the idea of ‘property’, with respect to communities’ engagement with heritage. It examines the drafting history of the key UNESCO treaties in the area, to identify the role of communities and other stakeholders in the definitions, as well as the political compromises made. The chapter also re-examines the move from ‘cultural property’ to ‘cultural heritage’, an important part of the elevation of the field to one overseeing international public goods. The chapter argues that this shift has had unintended consequences, key among which is the exclusion of communities. The field would do well to revisit the idea of ‘property’, but, as the chapter discusses, as a specific understanding of property that goes against conventional wisdom based on property as the ultimate bastion of individual liberty.

The Bright and Dark Sides of International Heritage Law

This chapter uses the insights gained from previous chapters to outline the bright and dark sides of international heritage law, particularly as seen from the perspective of communities’ engagement with their own heritage and the legal structures around it. This chapter argues that, while there have been tremendous achievements in the field of international heritage law under UNESCO’s tutelage, each one of these achievements has brought with it unintended consequences that we need to be mindful of if we are to continue constructive engagement with the field. This chapter, while setting these bright and dark sides in pairs, should not be read as creating dualities but rather as dialectically bridging concepts, and showing cause and effect: every bright side casts a shadow, which needs our attention.

International Heritage Law and the Market

This chapter introduces the second major part of this book, looking at the application of international heritage law. It focuses on the ways in which the economics of heritage are engaged (or disengaged) by international heritage treaties, and their effects on communities, whose engagement with their own heritage is very often economic. The common assumption is that economic uses of heritage cheapen what is otherwise unique and special culture. Therefore, the economics of heritage end up either made illegal, or ignored. The result backfires: the market does not stop interacting with cultural heritage, it is just that its regulation moves to other fora, which are less sympathetic to culture and its special character. The chapter also looks at the literature on heritage economics and the contribution it can make to heritage law, as well as the connection between heritage and development, particularly from the standpoint of communities.