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A Critical Analysis of the Legal and Quasi-Legal Recognition of the Underlying Principles and Norms of Cultural Heritage

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A Critical Analysis of the Legal and Quasi-Legal Recognition of the Underlying Principles and Norms of Cultural Heritage A CRITICAL ANALYSIS OF THE LEGAL AND QUASI-LEGAL RECOGNITION OF THE UNDERLYING PRINCIPLES AND NORMS OF CULTURAL HERITAGE Thesis submitted for the degree of Doctor of Philosophy at the University of Leicester by Charlotte Cassandra Woodhead LL.M Department of Law University of Leicester 2014 Charlotte Woodhead A critical analysis of the legal and quasi-legal recognition of the underlying principles and norms of cultural heritage Certain things, places and practices are valuable to particular individuals, communities, nations or to mankind to such a degree that the loss or destruction would be a misfortune to the culture, identity, heritage or religious practices of those people(s). For the purposes of this thesis, cultural heritage represents the intangible aspect of these important things, places and practices. It will be argued that despite the existence of various cultural heritage principles which represent the different types of value, public legacy and associated norms with its subject matter, these principles are not always effectively upheld in the governing legal regime, although a body of principles akin to legal ones has developed, from professional practice, codes of ethics and non-legal decision-making bodies. Recent legal intervention has responded to political imperatives at the risk of a clear and consistent regime to effectively meet the underlying principles of cultural heritage. The most effective means of fulfilling these principles and norms is by treating cultural heritage as an intangible legal concept, akin to property which in its English common law form is really a bundle of rights associated with things tangible or intangible rather than simply ownership and possession or the physical things themselves. In this thesis a system is proposed whereby decision-makers take account of the intangible nature in a holistic manner within a legal framework. Consequently it would facilitate the allocation of entitlement to the subject matter of cultural heritage in seemingly conflicting claims and would more effectively uphold the cultural heritage principles and norms The thesis will be tested in the context of cultural heritage objects. i Acknowledgements The burden of writing something witty, yet erudite weighs heavily on my shoulders when realising that this may be the only page of my thesis that many people will read. My interest in Cultural Heritage law had humble beginnings: a noticeboard in UCL’s Faculty of Laws where I chose a last minute option – The Law of Cultural Property. Since the early discussions in those LL.M classes and my later work with Norman Palmer and Ruth Redmond-Cooper at the Institute of Art and Law (for whose support I am very grateful) my keen interest in this area of law has developed, but so too has the law itself. In an age when legislation now facilitates the return of Nazi Era loot and human remains and where there is increased emphasis on museum codes of ethics, this is an exciting time to be researching in this area. I give grateful thanks to my employers past and present for financial and pastoral support for these studies: University of Derby, School of Law & Criminology for the former and Warwick Law School for providing a splendid research environment, the space to think about ideas and the opportunity to present my research. I am grateful to colleagues past and present for all their encouragement and support. My supervisors, Dr Dawn Watkins and Professor Janet Ulph, have encouraged me in my development as an academic and provided valuable guidance on both my thesis and related papers – sincere thanks to you both. Six months before starting this thesis I embarked on another lengthy, yet rewarding venture – married life. Without Robert’s love and support this thesis would have been so much more difficult; having encouragement and wisdom from someone with his own thesis experience was invaluable and his logical, no-nonsense, advice often kept me on the straight and narrow! My parents, Susan and Richard Woodhead, have provided me with such love throughout my life. I am eternally grateful to them both for all the opportunities that they gave me and the enthusiasm with which they have supported me. I am also extremely lucky to have so much support and encouragement from my wider family (the Woodheads, the Scarletts, the Fears and the Todds) – to them all I say thank you. To all my family: past, present and future. ii TABLE OF CONTENTS Abstract ......................................................................................................................................... i Acknowledgements ...................................................................................................................... ii List of figures ............................................................................................................................. vii List of abbreviations ................................................................................................................. viii Introduction Cultural heritage? An object cannot speak for itself .................................................................. 1 The thesis ................................................................................................................................... 7 Scope of the thesis and justification ....................................................................................... 8 Timeliness and originality of project ................................................................................... 13 Theoretical assumptions ........................................................................................................... 14 Methodology ............................................................................................................................ 19 Chapter 1 – Definitions and meanings 1.1 Introduction .................................................................................................................. 25 1.2 A definitional framework ............................................................................................. 26 1.2.1 Cultural heritage ................................................................................................... 27 1.3 Definitional woes: more terms than meanings? ........................................................... 31 1.3.1 ‘Cultural heritage’ and ‘cultural property’: different words – same meaning? .... 34 1.3.2 Common heritage ................................................................................................. 37 1.3.3 Cultural objects and cultural goods ...................................................................... 47 1.3.4 The case for ‘cultural heritage’ rather than ‘cultural property’ ............................ 49 1.4 Conclusion ................................................................................................................... 52 Chapter 2 – Cultural heritage: principles and norms 2.1 Introduction: developing a lens .................................................................................... 55 2.2 The intangible dimensions of the subject matter of cultural heritage .......................... 57 2.3 The importance of the subject matter of cultural heritage ........................................... 59 2.3.1 Importance of the object, place or practice itself: a freestanding importance ...... 59 iii 2.3.2 Associative importance ........................................................................................ 62 2.4 The principles of cultural heritage ............................................................................... 65 2.4.1 Value .................................................................................................................... 65 2.4.2 Public legacy ........................................................................................................ 93 2.4.3 The principles of cultural heritage as compared with other concepts .................. 99 2.5 Norms of cultural heritage ......................................................................................... 111 2.5.1 Preservation ........................................................................................................ 113 2.5.2 Access ................................................................................................................ 119 2.5.3 Comparison of these norms with other classifications ....................................... 122 2.6 Conclusion ................................................................................................................. 124 Chapter 3 – Legal recognition of cultural heritage principles and norms 3.1 Introduction ................................................................................................................ 126 3.2 A single legal definition of cultural heritage? ............................................................ 128 3.3 International declaratory statements ......................................................................... 129 3.3.1 The instrument’s underlying purpose ................................................................ 131 3.3.2 Statements of commitment and declaratory international norms ....................... 140 3.3.3 Policies to achieve the cultural heritage norms: under human rights law .......... 146 3.3.4 Some concluding thoughts on international efforts ............................................ 149 3.4 Failure of English domestic law to recognise the value ...........................................
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