Handbook on the Law of Cultural Heritage and International Trade

Handbook on the Law of Cultural Heritage and International Trade

Research Handbooks on Globalisation and the Law series

Edited by James A.R. Nafziger and Robert Kirkwood Paterson

This Handbook offers a collection of original writings by leading scholars and practitioners in the exciting, rapidly developing field of cultural heritage law. The detailed essays are the product of a multi-year project of the Committee on Cultural Heritage Law of the International Law Association.

Chapter 24: A legal pluralist approach to international trade in cultural objects

Francesca Fiorentini

Subjects: law - academic, cultural heritage and art law, international economic law, trade law

Extract

Cultural property trade arouses the interest of comparative lawyers for at least three reasons. It does so, first, because of the difficulty in determining the legal ontology of cultural property. The legal notion of "cultural property" emerged for the first time at the level of international law with the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954, as meaning "anything [movable or immovable] which bears witness to the artistry, history and identity of a particular culture." As Antonio Gambaro puts it, "the problem of cultural property is that it includes any object which is capable of conveying a meta-individual message." The cultural relevance of this message depends on the subjects using the cultural property, or having access to it. Indeed, their values may change in space and time, in the same way as culture changes. The many functions that cultural property can play as well as the plurality of its users have thus led to a legal regime which is complex and intricate. This intricacy introduces the second point of interest for comparative lawyers. It is the transnational, global character of cultural property that strongly impacts on the domestic regimes, creating a "multilayered" and "de-centralized" structure of the sources of cultural property law. This fragmentation of the sources of law has been emphasized by globalizationand the Internet, and has resulted in the blurring of the classic separation between private and public actors in the law-making activity.

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