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The Legal Protection of Cultural Heritage in International Law and Its Implementation in Dutch Law

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The Legal Protection of Cultural Heritage in International Law and Its Implementation in Dutch Law Design by Catharina Veder The legal protection of cultural heritage in international law And its implementation in Dutch Law Lucky Belder The legal protection of cultural heritage in international law And its implementation in Dutch Law De juridische bescherming van cultureel erfgoed in internationaal recht en de implementatie in Nederlands recht (met een samenvatting in het Nederlands). Proefschrift Ter verkrijging van de graad van doctor aan de Universiteit Utrecht op gezag van de rector magnificus, prof.dr. G.J. van der Zwaan, ingevolge het besluit van het college voor promoties in het openbaar te verdedigen op vrijdag 27 september 2013 des middags te 2.30 uur. door Lucretia Philippine Christine Belder geboren op 9 juli 1959 te ‘s Gravenhage Promotoren Prof. dr. M. de Cock Buning Prof. dr. H.E.G.S. Schneider Leescommissie Prof. T.J.C.A. van Engelen Prof. E.H. Hondius Prof. C. Flinterman Prof. I.C. van der Vlies Prof. S.A. de Vries Table of Contents 07 Preface 14 I. Introduction 16 1.1. Introduction 17 1.2. The background of the research project: the networked society 19 1.3. The research task and its delineation 25 1.4. Methodology 28 1.5. Terminology 29 II. Developments in thinking on the protection of cultural heritage 32 2.1. Introduction 33 2.2.1. Approaches to culture and cultural heritage 35 2.2.2. Essentialist approach 35 2.2.3.1. Instrumental approach, introduction 38 2.2.3.2. Cultural heritage as a resource of economic value 38 2.2.3.3. Cultural heritage as instrumental in the construction of identity and social cohesion 39 2.2.4. The Critical theory approach in the study of culture and cultural heritage 41 2.2.5. Interim concluding remarks 43 2.3.1 Phases in thinking on the protection of cultural heritage 43 2.3.2. Thinking of cultural heritage in the nineteenth century 44 2.3.3. From the protection of national interests to the protection of international interests 46 2.3.4 From protecting international interests to protecting global interests 48 2.3.5 Concluding remarks 50 2.4.1. From the protection of cultural heritage as the protection of private interests in goods and services towards the protection of cultural heritage as public goods 50 2.4.2. The function of private property rights in the protection of cultural heritage 51 2.4.3. The social relations theory perspective on rights to cultural heritage 53 2.4.4. Cultural property rights as a new regime of private property rights 55 2.5. Concluding remarks 59 7 III. The Protection of cultural property against illicit trade 62 3.1 Introduction 63 III.A. The Protection of cultural property against illicit trade in international law 64 3.A.1.1. Developments in international trade in cultural property 65 3.A.1.2. Legal issues concerning the protection of cultural property against illicit trade 67 3.A.1.3. Issues concerning the protection of private interests in cultural property 72 3.A.1.4. Mitigation of applicable law by public order 77 3.A.1.5. Interim conclusion 78 3.A.2. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 79 3.A.2.1. Developments towards the UNESCO 1970 Convention 79 3.A.2.2. Objectives of the 1970 UNESCO Convention 80 3.A.2.3. Obligations 81 3.A.2.4. Interim concluding remarks 87 3.A.3. The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) 88 3.A.3.1. Introduction 88 3.A.3.2. Objectives 89 3.A.3.3. Obligations 90 3.A.4. Concluding remarks 92 III.B. The European and Dutch perspective on the protection against international illicit trade and export of cultural property 94 3.B.1. Introduction 95 3.B.2. The European normative framework as provided by the Council of Europe and the European Union 96 3.B.2.1.1. The Council of Europe 96 3.B.2.1.2. The European Cultural Convention 97 3.B.2.1.3. The Council of Europe: The European Convention on the Protection of the Archaeological Heritage (Valetta 1992) 97 3.B.2.2.1. Introduction to the EU normative framework 98 3.B.2.2.2. The EU normative framework on trade in cultural property 100 3.B.2.2.3. Regulation 3911/92 101 3.B.2.2.4. Directive 3911/93 102 3.B.2.3. !!!!!Implementation of the Directive in the Netherlands 103 3.B.3. The implementation of the 1970 UNESCO Convention 106 3.B.4. The Issues revisited 108 3.B.4.1. The issue of nationalism 108 3.B.4.2. Private interests and public interests 109 3.B.4.3. The position of local communities 110 8 3.B.5. Concluding remarks 111 IV. The legal protection of cultural heritage 112 4. Introduction 113 IV.A The international dimension of the legal protection of cultural heritage in the World Heritage Convention 114 4.A.1. Towards the World Heritage Convention 115 4.A.2. Defining world heritage of outstanding universal value 117 4.A.3. The objectives of the World Heritage Convention 118 4.A.4. The obligations in the World Heritage Convention 118 4.A.5.1 The Lists in the World Heritage Convention 119 4.A.5.2. The Criteria for being placed on the World Heritage List 122 4.A.5.3. Towards the criteria 124 4.A.5.4. Examples of the use of the criteria 125 4.A.5.5. Credibility and representativeness of the criteria 126 4.A.5.6. Convergence in categories of heritage properties 128 4.A.6. The Documentation of World Heritage 131 4.A.7. National and international interests in the protection and preservation of world heritage 133 4.A.8. The protection of private interests in the World Heritage Convention 133 4.A.9. Communities and world heritage 135 4.A.10. Concluding remarks 136 IV.B. The protection of cultural heritage in Dutch law 140 4.B. Introduction 141 4.B.1. The European perspective on the protection of cultural heritage 143 4.B.1.1. The European Convention on the Protection of the Archaeological Heritage 143 4.B.1.2. The Council of Europe Framework Convention on the Value of Cultural Heritage for Society 144 4.B.1.3. The EU perspective on the protection of cultural heritage 145 4.B.2.1. The legal protection of cultural heritage in the Netherlands 146 4.B.2.2. Implementation of the World Heritage Convention in the Netherlands 147 4.B.2.3. The protection of national cultural heritage by the Dutch Monuments Act 148 4.B.2.4. The implementation of the Council of Europe Valetta Convention on the protection of archaeological monuments in the Dutch Monuments Act 149 4.B.3.1. The Issues revisited 151 4.B.3.2. The protection of national interests 151 9 4.B.3.3. The protection of private and public interests 152 4.B.3.4. The role of local communities 153 4.B.4. Concluding remarks 153 V. The Safeguarding of intangible cultural heritage 156 5. Introduction 157 V.A. The safeguarding of intangible cultural heritage in international law 158 5.A.1.1. Towards the safeguarding of intangible cultural heritage 159 5.A.1.2. Protecting expressions of folklore by copyright after the 1967 Stockholm revision of the Berne Convention 161 5.A.1.3. Tunis Model Law on copyright for developing countries 163 5.A.1.4. The WIPO/UNESCO Model provisions of 1982 164 5.A.1.5. Developments in the case law on Aboriginal cultural expressions 166 5.A.1.6. The 1996 WIPO Treaties 168 5.A.1.7. The 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore 169 5.A.1.8. Towards the UNESCO 2003 Convention on the Safeguarding of Intangible Cultural Heritage 170 5.A.1.9. Expressions of folklore and traditional cultural expressions as intangible cultural heritage 171 5.A. 2. The UNESCO Convention on the Safeguarding of intangible cultural heritage 172 5.A.2.1. Introduction 172 5.A.2.2. Objectives: Safeguarding Intangible Cultural Heritage 173 5.A.2.3. Obligations on the national level 175 5.A.2.4. Obligations on the international level 176 5.A.2.5. The Lists in the Intangible Heritage Convention 176 5.A.2.6. The Representative List and the importance of ‘Representativeness’ 178 5.A.2.7. The criteria 179 5.A.2.8. A recent example of applying the criteria: Falconry 180 5.A.3. Remarks on similarities and differences between the World Heritage Convention and the Intangible Heritage Convention 181 5.A.4.1. The participation of communities, groups and individuals in the safeguarding of intangible cultural heritage 183 5.A.4.2. Communities and article 15 of the Intangible Cultural Heritage Convention 185 5.A.5. Protecting intellectual property rights in the ICH Convention 186 5.A.6. WIPO and the protection of intangible cultural heritage 189 5.A.6.1. WIPO 189 10 5.A.6.2. Protecting Expressions of Folklore by intellectual property rights 189 5.A.6.3.1. Protecting Expressions of Folklore by a sui generis right 191 5.A.6.3.2. Further steps towards the international legal document 193 5.A.7. Concluding remarks 196 V.B. The safeguarding of intangible heritage in the Netherlands 200 5.B.1. Introduction 201 5.B.2.
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