Cultural Heritage in the European Union : A Critical Inquiry into Law and Policy [1 ed.] 9789004365346, 9789004365339

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Cultural Heritage in the European Union

Studies in Intercultural Human Rights Editor-in-Chief Siegfried Wiessner St. Thomas University Board of Editors W. Michael Reisman (Yale University) Mahnoush H. Arsanjani (United Nations) Nora Demleitner (Hofstra University) Christof Heyns (University of Pretoria) Eckart Klein (University of Potsdam) Kalliopi Koufa (University of Thessaloniki) Makau Mutua (State University of New York at Buffalo) Martin Nettesheim (University of Tübingen; University of California at Berkeley) Thomas Oppermann (University of Tübingen) Roza Pati (St. Thomas University) Herbert Petzold (Former Registrar, European Court of Human Rights) Martin Scheinin (European University Institute, Florence)

volume 9 This series offers pathbreaking studies in the dynamic field of intercultural ­human rights. Its primary aim is to publish volumes which offer interdisciplin­ ary analysis of global societal problems, review past legal responses, and ­develop solutions which maximize access by all to the realization of universal human aspirations. Other original studies in the field of human rights are also considered for inclusion. The titles published in this series are listed at brill.com/sihr

Cultural Heritage in the European Union A Critical Inquiry into Law and Policy Edited by

Andrzej Jakubowski Kristin Hausler Francesca Fiorentini

leiden | boston

The publication of this volume has been co-funded within the framework of the project ‘HEURIGHT14 – The Right to Cultural Heritage Its Protection and Enforcement through Cooperation in the European Union’ (http://heuright.eu), No 30/DSAP-PF/ HERITAGEPLUS/2015, ERA-NET JPI Heritage Plus ‘Cultural ­Heritage and Global Change’. Library of Congress Cataloging-in-Publication Data Names: Jakubowski, Andrzej, 1980- editor. | Hausler, Kristin, editor. | Fiorentini, Francesca, editor. | HEURIGHT, sponsoring body. Title: Cultural heritage in the European Union : a critical inquiry into law and policy / edited by Andrzej Jakubowski, Kristin Hausler, Francesca Fiorentin. Description: Leiden ; Boston : Brill Nijhoff, 2019. | Series: Studies in intercultural human rights ; Volume 9 | “The publication of this volume has been co-funded within the framework of the project ‘HEURIGHT14 - The Right to Cultural Heritage Its Protection and Enforcement through Cooperation in the European Union’ (http://heuright.eu).” | Includes bibliographical references and index. Identifiers: LCCN 2019002067 (print) | LCCN 2019005160 (ebook) | ISBN 9789004365346 (E-Book) | ISBN 9789004365339 (hardback : alk. paper) Subjects: LCSH: European Union countries--Cultural affairs. | Culture and law--European Union countries. | Cultural property--Protection--Law and legislation--European Union countries. Classification: LCC KJE6257 (ebook) | LCC KJE6257 .C848 2019 (print) | DDC 344.24/094--dc23 lc record available at http://lccn.loc.gov/2019002067 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1876-9861 isbn 978-90-04-36533-9 (hardback) isbn 978-90-04-36534-6 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents

Foreword: European Heritage and the Future of Europe  ix Krzysztof Pomian

Acknowledgments  xxiii List of Figures and Tables  xxv Abbreviations  xxvi Table of Cases  xxix Table of Instruments  xxxiv Notes on Contributors  li Introduction  1 Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini

Part 1 Europe, the European Union and the Concept of Cultural Heritage 1

Conceptions of a Shared, Common, or European Heritage in the Emerging Heritage Diplomacy of the European Union, 1973–92  13 Cynthia Scott

2

Common Cultural Heritage, the European Union, and International Law  33 Andrzej Jakubowski

3

Cultural Heritage and the EU: Legal Competences, Instrumental Policies, and the Search for a European Dimension  57 Evangelia Psychogiopoulou

4

The Single European Market and Cultural Heritage: The Protection of National Treasures in Europe  79 Michele Graziadei and Barbara Pasa

5

The ‘Right to Cultural Heritage’ in the European Union: A Tale of Two Courts  113 Mateusz Bieczyński

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Part 2 Cultural Heritage and the European Union’s Economic and Social Development 6

Exploring the Links between Culture and Development: New Challenges for Cultural Indicators in the European Union  143 Paola Monaco

7

The Financing of Cultural Heritage: A Value Based Approach  163 Arjo Klamer and Anna Mignosa

8

Cultural Heritage in the EU Trade Agreements: Current Trends in a Controversial Relationship  184 Francesca Fiorentini

9

Enhancing the Mobility of Collections in the European Union  213 Nout van Woudenberg

10

Cultural Heritage, Education and Research in the European Union  241 Alicja Jagielska-Burduk

Part 3 Cultural Heritage and the European Union: New Frontiers 11

The Cultural Heritage of Minorities and Indigenous Peoples in the EU: Weaknesses or Opportunities?  269 Alexandra Xanthaki

12

Migration, Cultural Heritage, and Cultural Rights: A Critical Assessment of European Union Law and Policy  294 Alessandro Chechi

13

Intangible Cultural Heritage, Europe, and the EU: Dangerous Liaisons?  324 Hanna Schreiber

14

Cultural Heritage within the European Union’s External Relations: More than a Policy Objective?  365 Kristin Hausler

Contents

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15

The Protection of Cultural Landscapes in the European Union  395 Amy Strecker

16

Digitization: Towards a European Cultural Heritage  417 Ewa Manikowska



Final Conclusions  445 Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini

Index  463

Foreword

European Heritage and the Future of Europe Krzysztof Pomian

Director of research emeritus, Centre National de la Recherche Scientifique, Paris, France, Professor emeritus, Nicolaus Copernicus University, Toruń, Poland*1

It is only recently that the notion of ‘Cultural Heritage’ achieved public recog­ nition within both the institutions and documents of the European Union. When? Three dates may be proposed. In 2002, the European Commission launched the Prize for Cultural Her­itage, awarded by the ngo Europa Nostra. Each year it rewards around thirty initia­ tives pertaining to the preservation, advancement, and the adaptation to new uses of cultural heritage, as well as to fields of research, education, training and raising awareness of its role. Even though the expression ‘European heritage’ is not used as such, it is clear that we are indeed talking about ‘European cultural heritage’. In 2005, six EU Member States decided, on the impetus of France, to create a ‘European Heritage’ label. It was awarded for the first time on 19 March 2007, the occasion of the fiftieth anniversary of the Treaty of Rome. Four years later, sixty-eight sites from nineteen countries had been granted the label. In 2013, the European Commission itself, within the framework of its ‘Cre­ ative Europe’ programme, began to award the ‘European Heritage’ label. Its cri­ teria appear to be somewhat more restrictive than the previous ones. Indeed, the list of sites benefiting from the label totals just twenty-nine, with only a few being on the previous list. In any case, it can be asserted that the expres­ sion ‘European Heritage’ now forms a part of the vocabulary of the organs of the EU, and that what it denotes is now granted, within its ‘Creative Europe’ official recognition. Whichever date we choose, this recognition in any case occurred some fifty years after the Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague on 14 May 1954 under the auspices of unesco, which introduced the concept ‘heritage of human­ ity’ into international law; as well as fifty years after the European Cultural * Translated from French by Faria Medjouba.

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Convention, adopted in Paris on 19 December 1954 on the initiative of the Council of Europe. ­Article 5 of the latter Convention is of particular relevance to our subject: ‘Each Contracting Party shall regard the objects of European cultural value placed under its control as integral parts of the common cul­ tural her­itage of Europe, shall take appropriate measures to safeguard them and shall ensure reasonable access thereto.’ Thus, through this document the concept of a ‘common cultural heritage of Europe’ became law. Let us remind ourselves here that these Conventions were adopted nine years after the end of the Second World War, in a Europe divided by the ‘Iron Curtain’, where a slow thaw got underway ­following Stalin’s death. The Council of Europe was then composed of Western European countries only. It did however represent the entire continent and wagered on its future unification, which seemed un­ thinkable at the time. In this very same year, 1954 – which constituted a decidedly significant turn­ ing point in the history of ideas and practices relating to cultural heritage from an inter-state perspective – the Council of Europe launched a programme aim­ ing at raising the profile of the different components and dimensions of the European common cultural heritage, which was reduced at that time to artistic heritage only. Inaugurated by the exhibition L’Europe humaniste, which took place in Brussels from December 1954 to February 1955, this programme con­ tinues to this day, with a total so far of some thirty exhibitions that have made it possible to explore the different periods and styles of European art, some of which are particularly memorable. Suffice to mention here Les sources du XXe siècle (Paris, from November 1960 to January 1961), The Age of Neoclassicism (London, September–November 1972), or Kunst und Macht : Europa unter den Diktatoren (1930–1945) (Berlin, July-August 1996). The thirtieth exhibition of this cycle, Soif de liberté: l’art en Europe depuis 1945, opened in Berlin in October 2012, before travelling for two years to Milan, Tallinn and Kraków. To properly appreciate the importance of this programme, it is necessary to position ourselves against the background of the ideological climate of the 1950s, when the West and the East displayed two different, if not radically op­ posed, attitudes towards culture in general and art in particular. This was a time where communications between the two sides of a then-divided Europe began to gradually resume after years of disruption caused by the war, which was fol­ lowed shortly thereafter by the Stalinist imprisonment of almost every country of Central and Eastern Europe. These years were furthermore preceded by a long period in which the countries of the Central and Eastern European region were hardly known, one may even say ignored, by the West. Yet, from the out­ set the Council of Europe’s exhibitions were conceived without regard to exist­ ing divides, and required the cooperation of cultural institutions, especially

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museums, on both sides of the ‘Iron Curtain’. In that respect, each of these exhibitions constituted, at their level and within their field, a step towards Eu­ ropean integration. Even though until 1989 these exhibitions were exclusively held in the Western parts of Europe, they generated for their visitors an ideal vision of the continent’s cultural unity. They have therefore contributed, to a degree that is difficult to measure but that was likely non-negligible, to the propagation among Western elites of the feeling that the sovietized Central and Eastern countries were an integral part of Europe as a historical and cul­ tural entity. Hence, they contributed to the renaissance of what can be called, to quote the wording of the first Rencontres Internationales in Geneva in 1946, the ‘European spirit’.

…

We start with this reminder, for reasons which will later become clear, and in order to challenge the very notion of ‘heritage’ in the way it is understood with­ in the term ‘cultural heritage’. The term ‘heritage’ is generally defined as all cul­ tural goods associated with a ‘heritage value’, meaning that it is believed that they must be transmitted to future generations. As far as the notion of ‘cultural heritage’ is concerned, this requirement of transmission to future generations is crucial. It is indeed thanks thereto that modern heritage management prac­ tices are not geared towards the past, but towards the future. Heritage consists of those cultural goods which, while originating in the past, must imperatively be transmitted to the future, to an open-ended distant human future and to future generations that we can barely picture. That is precisely why they must unquestionably be safeguarded, and be subject to special protection against natural deterioration and man-made degradations. They will otherwise be condemned to sooner or later disappear. It should be noted that this definition of heritage is designed to be seen through the lens of curators, who receive a range of cultural goods which are already assigned heritage value, and whose task is to effectively safeguard them. In the performance of their duties, curators are not required to think about heritage. They must perform their duties in relation to the objects that constitute it, in order to preserve them in a state that is supposed to be their original one, or at least the state they were in when they reached the curator, and to transmit them in that state to their successors, who will in turn trans­ mit them to theirs, and so on. At the same time, curators must also exhibit these objects to their contemporaries. These two tasks and requirements are not easily compatible, and a compromise has to be made in order to satisfy both to the maximum extent possible. This presupposes extensive research on

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these objects: on their history, their materiality, and sensitivity to environmen­ tal conditions. Given these tasks, it hardly seems necessary to stress here the importance of a curator’s function. He or she represents, so to speak, the sub­ jective complement of a heritage from which he or she is inseparable, as two sides of the same sheet of paper. However, as important as the curator’s perspective is with respect to her­ itage, it is far from being the only one, and in and of itself it is not sufficient. This is because, as we previously stated, the curator is in charge of cultural goods which already possess a heritage value. Those who vest these ­objects with a heritage value (of which they were previously deprived) are indeed not themselves curators. They are artists, writers, historians, and scholars; in a nut­ shell, intellectuals who draw attention to these objects and somehow trans­ mit the conviction that they have to be transmitted to future generations. It is only when such a conviction is firmly rooted in the public consciousness and accepted by the relevant institutions that the objects, now part of the ‘her itage’, are entrusted to the good deeds of the curator as they are registered into museums or included in a list of protected monuments. We will see lat­ er on e­ xamples of particular cultural goods being promoted to the status of heritage. Between the perspective of the intellectual and that of the curator lies the normative perspective of the lawyer, who defines the content and extent of heritage, establishes the regulations applied by the institutions in charge of its management, draws the line between what is allowed and what is forbid­ den, sets the limits of private ownership rights with regard to objects possess­ ing a heritage value and clarifies the consequences of their potential violation. There is no heritage without the understanding of heritage as conveyed by in­ tellectuals, nor without heritage law as set out by lawyers. That is why a historian who focuses on the issue of heritage cannot rely only on the history of the objects that constitute it. He or she must address them in conjunction with the ideas that have funnelled the attribution of heritage value to these objects, together with the controversies they created, as well as with the standards laid down by lawyers and the institutions created to enforce them. This means that the historian’s perspective is neither that of a curator, concerned with the safeguarding of the components of heritage, nor that of an intellectual, invested in granting heritage value to certain cultural goods, nor that of a lawyer, who sets out the laws and regulations pertaining to them. The historian intervenes in retrospect and his role is to understand the curators, intellectuals, and lawyers, as well as to piece together the path that led to the present situation. Our approach to European heritage therefore endeavours to proceed as an archaeologist would, by starting with the most recent stratum,

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and thus the closest to the surface of the excavation site, before slowly sinking into the depths of the past.

…

We started from the decisions of the European Union, as they followed those of the Council of Europe. These, however, and particularly the 1954 European Cultural Convention and the art exhibitions mentioned above, refer to deeper strata. This Convention contains a whole set of measures adopted within the international law framework of the 19th and first half of the 20th century, and preceded by a reflection on the specific status of cultural properties initiated by the theorists of the Law of Nations (or jus gentium). It is impossible to dis­ cuss the details here, but it is enough to quote a short excerpt of the influential Treatise of Emmerich de Vattel, published in 1758, which implicitly contains the idea of a common European heritage and, more widely, a common her itage of mankind: For whatever cause a country is ravaged, we ought to spare those edifices which do honour to human society, and do not contribute to increasing the enemy’s strength – such as temples, tombs, public buildings, and all works of remarkable beauty. What advantage is obtained by destroying them? It is declaring oneself an enemy to mankind, thus wantonly to de­ prive them of these monuments of art and models of taste […]. Book iii, Chapter ix, § 169

The European Cultural Convention of 1954 also refers, albeit without mention­ ing them, to various states’ laws and regulations dating from the 1830’s onwards, which do not relate to heritage as such, even though the term in its current meaning has existed in French since 1790, but to ‘monuments and sites with artistic, historical or scientific interest in relation to which protection must be ensured’, to use the wording of the French Act of 1913. As regards the art exhibitions organized under the auspices of the Coun­ cil of Europe, they would not have been possible if the works exhibited had not been preserved by collectors and museums, or if the trend toward interna­ tional exhibitions had not begun to develop before the First World War, with everything that entails in terms of agreements on the conditions under which the works are to be exhibited, on loan rules, insurance, and transport. We can refer here to the publications of the late Francis Haskell. As it follows from all that the European cultural heritage is constituted not only of objects, but also of standards, processes, habits – or as phrased in the unesco Convention of

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17 October 2003, of ‘intangible heritage: practices, representations, expressions, knowledge, skills (…) that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.’ The different precedents of the Council of Europe’s cultural initiatives, fol­ lowed belatedly by those of the European Union, do not mean that there has been, between the pre-war and post-war period (in our field as in every other), a straightforward continuity. This is well demonstrated by the fact that the Council of Europe was born in 1949 and that the European Union (originally the European Economic Community) came into being in 1957, both of which were a response to the Second World War and to the horrible way it had torn Europe apart. However, neither of them were born in a vacuum. Their respec­ tive existences were triggered by Churchill’s speeches, the ‘Conference of Eu­ rope’ in The Hague in May 1948 that launched the European movement, and even by the confrontation surrounding the idea of ‘Europe’ between, on one hand, the Nazis and collaborators who wanted it to serve Hitler’s purposes, and on the other hand the movements of the Resistance, which conveyed a vision of a unified and regenerated Europe. At a deeper level, they were pre­ ceded during the inter-war period by the pan-European movement of Richard Coudenhove-Kalergi, which managed to bring together the liberal and antitotalitarian sections of European elites, and by Aristide Briand’s still-born at­ tempt to establish a federal European Union. While being innovative in many respects, the cultural initiatives of the Council of Europe relied nonetheless on the legacy of this recent past – on the men shaped by it, and on the ideas of which they were – if not the authors – at least the carriers, particularly with regard to projects pertaining to European cultural integration. This is also clear when we turn our attention to unesco, created in 1946 in the wake of the establishment of the UN, which benefited from the experience of the International Committee on Intellectual Cooperation, an extension of the League of Nations (LN) created in January 1922. Out of its multifaceted activities, we will focus here only on those related to heritage, that is to say, the International Museums Office created in 1926. Its role was to promote in­ ternational exhibitions, facilitate the loan of works, and organize exchanges between curators and museum administrators in the form of meetings and seminars and through the publication of its journal Mouseion commenced in 1927. It should be noted that the International Committee on Intellectual Cooperation was not, in theory, specifically European. But at that time the ma­ jority of the world was still dominated by colonial powers; the United States were not a member of the LN, which the Soviet Union antagonized for a long time; and China was torn apart by a civil war, exacerbated by the Japanese aggression which led to Japan’s withdrawal from the LN, followed by the

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­ ithdrawal of Nazi Germany and Fascist Italy. Consequently, the majority of w the intellectual cooperation in the 1920’s and 1930’s, especially the cooperation between museums, thus effectively took place within a European framework – occasionally extended to include the United States, South American countries and India, and limited in the end to non-totalitarian states. Whether considering the League of Nations’ agencies, the pan-European movement, or the Briand plan, the institutions and initiatives of the inter-war era that have been briefly touched upon should be regarded as responses to the situation faced by Europe in the aftermath of the First World War, in other words, to the collapse of ‘yesterday’s world’, of which Stefan Zweig presented a moving and unforgettable portrayal. This portrait was, however, idealized to the point of fiction. Because if this world was, according to Zweig, character­ ized by the unity of Europe, in reality the latter only related to a relatively small elite, an elite that was wealthy, cultivated, and accustomed to international trade and scientific and artistic exchanges. It consisted of a minority fraction of elites in different countries, who, in their majority, just like the majority of grass-root masses, were being shaped by nationalisms and adhered to their vi­ sion of Europe and of the world they proposed. Yet nationalism, contrary to popular belief, is not defined by an excessive attachment to one’s nation. It is a powerful feeling, and by its very essence a negative one: the hatred of others and above all the hatred of any form of hu­ man collectivity which claims, with respect to one’s own group, a certain supe­ riority, whereby the former encompasses the latter and is allowed to dictate its action in certain areas. In the Middle Ages, nationalisms were directed against empires. Since the Great Western Schism (1378–1417), and even more strik­ ingly, the Reformation, they were directed against the Roman Church. In the nineteenth century, in the context of multinational or colonial empires, they were directed against the dominating nation(s). And in general against the Jews, who were accused of pursuing universal domination. Nationalism in all its different forms, just like its opponent – cosmopolitanism or ­Europeanism – sadly also forms part of the European cultural heritage in the sense that there are people determined to transmit it, from generation to generation, to their successors. The underside of ‘yesterday’s world’ was characterized by the outburst of nationalisms throughout the nineteenth century especially its last decades. While the First World War carried them to extremes, the cessation of hostili­ ties did not stop their vehemence. Inter-war Europe was composed of states dominated by nationalisms, some of which, driven by a desire for revenge and expansion, planned not only on war, but also on genocide, which was partic­ ularly the case in Hitler’s National Socialism. In this context, the projects of

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European integration did not stand a chance. Besides, the institutions in charge of promoting peaceful cooperation between peoples, starting with the League of Nations, saw their actions increasingly hampered by states’ policies based on distrust and nationalism. We are tackling here a fundamental dif­ ference between this period and that following the Second World War, where nationalisms in Europe, crushed by the fall of the Third Reich and of Italian fascism, became ostensibly insignificant, albeit to different degrees from one country to another. It was only during the last twenty years or so that they have once again become highly toxic and found new audiences. Still, for ­approximately half a century the institutions in charge of implementing Eu­ ropean integration, starting with the common market, could proceed under favourable conditions, and the initiatives promoting cultural cooperation were approved by the majority of citizens.

…

The nineteenth century did not explicitly acknowledge European Heritage. What we consider as such today was then seen as exclusively national. The ultimate testimony to this lies in the controversy surrounding the Gothic, which may be deemed an international style, if there is one,but that the Eng­ lish declared as being English, the French proclaimed as French, whereas the ­German saw it as the epitome of German national identity. If the English quickly dropped their claim, the French and the Germans continued to argue on the nationality and origin of Gothic throughout the nineteenth century, up until and during the First World War. This was because in the mindset of those times heritage, just like culture, could only be a national concept. This is also reflected in the nationalization of art and monuments, in the quest for a ‘na­ tional style’ through art in the making, be it architecture, paintings, or music, and in the attribution of a nationality to monuments, even if dating from the Palaeolithic era. This did have a beneficial impact. As a result of being seen as materializa­ tions of nationality – for some also of religion and for others of people as well – the medieval productions were promoted from mere curiosities to the status of works of art, which best illustrates the attribution of heritage value to objects that were originally deprived thereof. It is in the context of rivalry between nations that we can observe the multiplication of museums, as well as the implementation – by one country after another – of measures aimed at pro­ tecting an ever-growing number of monuments, both in terms of quantity and diversity; whereas at the same time they have gradually stopped being exclu­ sively artistic and emerged also as scientific, technical, mythical, folkloric…

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This marks the beginning of the time when ideas started to become more pre­ cise, when competences, rules and procedures began to develop, eventually to become applicable at a much later stage at the European or global scale. Even though European Heritage was not explicitly acknowledged as such in the 19th century, it was nonetheless, albeit without being so-named, pres­ ent and operational in the education and activities of the elites. Indeed, Latin and Greek were at the heart of secondary education, including the lit­ erature in these languages, so was the Ancient History of Greece and Rome, while Antique art remained the reference point in terms of universally valid models of beauty. This occurred in every European country, which resulted in the elites being shaped in the same cultural mould, with the same literary and cultural references and having the same examples of good taste forced upon them. At a different level, the legal systems of different countries were strongly suffused with Roman law, in the same way as the emerging interna­ tional law was infused with jus gentium. This was all part of a common dis­ tant background originating in the times of religious wars, when a torn-apart ­Christianity found – in the ancient pagan era (the wealth of which had been emphasized by the humanists since the fourteenth century), an arena peace­ fully shared by conflicting confessions. Being placed at the centre of the syl­ labus in Protestant and Catholic schools, Rome – its language, its history, and its ­literature – ­allowed literate Catholics and Protestants to commune within the same s­ ecular faith, which was compatible with Christian beliefs, despite some sporadic difficulties. The eighteenth century added the beaux arts (fine arts) to the belles lettres and completed Rome with Greece, while transforming worship practices to­ wards Greeks and Romans in an anthropocentric religiosity, carried on most specifically by the Freemasons. The emerging jus gentium, in line with this edu­ cational system and based on a long exposure to the formative influence of the Ancients, also resorted to pagan history (as complemented by the Old Testa­ ment) to extract from their precedents legal standards aimed at governing the relationship between States in peace and in war, a law that was not dependent on dogmas from any Christian religion, and therefore a law that was accept­ able to all and could thus help pacify otherwise incurable conflicts. The ancient pagan era, when nature preceded the revelation, allowed liter­ ate Christians, divided by irreconcilable interpretations of the latter, to find a common language and to belong together in a community of culture, the respublica litteraria, i.e. the Republic of Letters. But the respublica litteraria was not the only one to play this role. The same also applied to nature, as mani­ fested by the visible, which was thought more and more immune to the pas­ sage of time because it was governed by immutable regularities in contrast to

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a sequence of singularities; and expressed as the field of reason, as opposed to the world of men guided by passions. Such a nature, as revealed by measuring tools and instruments of observation that enabled to transcend the visible and to discover regularities by means of experiments, can only be characterized in mathematical language. As such, it became the second common language of the Republic of the Letters, before taking the lead when the science of nature, best illustrated at the time by the celestial mechanics, was promoted to the rank of the greatest work of the human intellect. Science, joining an antique erudi­ tion which would eventually be ostracized, along with the law, the i­nfluence of which was only to grow, became thereby in the seventeenth ­century part of European heritage and remains one of its essential components to date. Alongside classical education and science, the era of religious wars, which ran from the 1520s until the Treaty of Utrecht in 1713, brought yet new elements into European Heritage: a set of myths and themes that travelled between lan­ guages and literatures, some of them a source of inspiration for artists (such as Don Juan and Sganarelle, Faust, Don Quixote and Sancho Panza, Robinson Crusoe, and Gulliver), Petrarchism in poetry, the theatre of Shakespeare, Lope de la Vega and Molière, the Italian opera, orchestral music (oratorio, concerto grosso, symphony), the exemplary paintings and sculptures from Italy and The Netherlands – to mention only some of the prominent ones. It also brought, as already mentioned, the jus gentium and strongly contributed to turning peoples’ conflicts into elements of a system of States, of a ‘European concert’ as it was called. It was governed by the balance of powers, and while it recog­ nized war and conquest as a legitimate means of politics, they were nonethe­ less mitigated by mutually agreed standards which were applied by diplomats. Finally, this period brought about one more element, without which the com­ mon heritage of a group of countries differentiated by their language, histories, and religions could not have been qualified as ‘European’. The word ‘Europe’, not in its geographic sense but as the name of a commu­ nity of history and faith, appeared like a lightning bolt during the Carolingian era and then instantly vanished. Its renewed recognition started in the four­ teenth century, when the rediscovery of pagan antiquity as such created a need to identify the body formed by the ancient Romans and their modern followers. Yet, since the Romans were pagans such a body could only be unified around the bonae litterae and around the fine arts, or in a word – around culture. Liter­ ate people, deeply convinced of their belonging to the christianitas, or if we so desire, to the Respublica Christiana – two expressions which were used to iden­ tify the community integrated in various ways since the Roman era – therefore had to adopt new terms in order to accurately describe this new community, which was a cultural community. One of these terms was the aforementioned

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respublica litteraria; another one was Europe. The reference to a cultural com­ munity hence superimposed itself onto the traditional use – dating back to Antiquity – of the word ‘Europe’ to refer to a continent. Consequently, and contrary to the respublica litteraria, which describes an ideal e­ ntity without any determined location, Europe designates a circumscribed space (even if its Eastern border is disputed). This is why it can be used to identify a group of states located on the continent bearing the same name. Nonetheless, for so long as Latin Christianity remained united around the papacy the expressions christianitas and Respublica Christiana remained valid and did not need to be replaced by Europe. This unity was lost after the Reformation, when Protestants and Catholics both refused to acknowledge the other as ‘Christians’. Advocates of the Counter-Reformation reserved the word Christianity for themselves. The Protestants presented themselves as ‘reformed’, in other words: reformed Christians, who returned to the original purity of faith. In France, which remained faithful to the Roman church but allied with Protestants and even Muslims, the word ‘Europe’ began to be used with increasing frequency to designate the group of States of the former Latin Christianity, united not by religion but by history, and later also by the law. And when the France of Louis XIV, reacting to the Glorious Revolution of England, picked up the torch of the Counter-Reformation and positioned itself as the head of Christianity, William of Orange’s allies called upon Europe. Thus, the wars of the seventeenth century and the beginning of the eighteenth between the coalition organized by France and the allies of England, and then Great Britain, represented in reality the confrontation between Christianity and Europe. It was Europe that prevailed, in the sense that it now designates a group of people differentiated in many ways, but nonetheless united by a common past, crystallized by a common culture and forced to coexist in the continent of the same name. ‘Europe’ subsequently emerged as a bipolar system, organized around Eu­ rope on the one hand, and nations on the other, an ideal opposed to reality and a culture opposed to politics, in the same way that what is supposed to unite is opposed to what divides. But the two clusters are not balanced. At times, the integrative, unifying, pro-European forces have dominated. This was the case throughout the eighteenth century, from the Glorious Revolution of England to the French Revolution, and to a lesser extent until the Spring of Nations. This was also the case, for the second time, during the seventy years that followed the Second World War. At other times, on the contrary, centrifugal, differenti­ ating, nationalitarian, and even nationalist forces came to the forefront. This was clearly the case between the Spring of Nations and the end of the Second World War, and it intensified during the inter-war period, if not from the 1870’s.

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There were also periods where the two clusters seemed to balance each other. This can be notably observed between the French Revolution and the 1830’s, when pro-European tendencies seemed to retain the upper hand, but were in reality losing ground to nationalisms. We may well be reliving a similar period.

…

What is it that enabled this bipolar system to not only not collapse, but to re­ construct itself even after extremely violent conflicts like the First World War, and especially the Second World War? What is it that allowed the continuation of the objective of European integration and how could it mobilize the forces determined to achieve it, even if at the price of a confrontation with those act­ ing against it and aiming at its neutralization? What is it that, even before the constitution of the European cluster, allowed the inclusive inclination, under its irenic and political form, to survive among the ruins of Latin Christianity ravaged by the wars of religion and torn apart in a seemingly irreversible man­ ner between the Counter-Reformation on one hand, and Protestantism on the other – divided – hand? To understand this enigmatic situation, we must dig and reach the deepest stratum of what we consider the ‘European Cultural Heritage’, which became such, as we have seen, only fairly recently. This stratum, fashioned in the first place by a common religion, i.e. Christianity in its Catholic, Roman, Latin, and, since the fourteenth century, gradually secularized version, was being shaped for more than a millennium, if we consider as the starting point the recogni­ tion of Christianity as the official religion of the Roman Empire and as the end­ ing date the explosion of the Reformation. During this long period, buildings and objects were created and established, and more importantly ways of liv­ ing, feeling, thinking and imagining crystallized; ways to behave towards one­ self, others, nature, the past and the future, and the visible and the invisible. The Church, with its apparatus and liturgies – always the same give or take a few local variations – effectively imposed on all of its followers throughout the continent the same beliefs in relation to transcendent reality, and the same di­ vision of individual life into stages, punctuated by sacraments. It also imposed on them an identical organization of time: a long time (since the origin of the world) and a short time (a year, a month, a week); and the same organization of space, divided into parishes and dioceses with a common capital, Rome, and a spiritual centre, Jerusalem; the same sexual and dietary prohibitions, more often than not enforced by sanctions; the same social hierarchy, where the clergy had a prominent place, with the Bishop of Rome at its head; Latin as the common language of clerical elites, along with Roman literature ranging

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from Virgil to Saint Augustine of Hippo; the same models of art, derived first from the late Antiquity and then from Imperial – if not Republican – Rome; and a book, the ultimate Book, the Old and the New Testaments, that must be read together with the Councils’ decisions, Patristic writings and commentar­ ies from authoritative theologians. The Church created moreover an educa­ tional system which, in its fully developed form, ranges from Church schools to universities and is equipped at all levels with programmes that are, if not identical, at least compatible, as well as a legal system based on Roman law. Aided by the secular powers which it supported in exchange for its prominent position, the Church transformed, via all these means, a horde of heteroge­ neous tribes into a group of nations unified around the same faith and the same institutional system. It is also the Church which, through preaching, rituals, celebrations, pilgrim­ ages, ceremonies, and coercion, relentlessly instilled – one generation after the other for centuries – the feeling of belonging to a group larger than any other local community, of which it was itself the visible form; to the christianitas, to the Respublica Christiana supposed to embody virtually all the peoples on Earth until they will be converted to the true faith. This sense of belonging – which coexisted, albeit not without conflicts, with the concept of, firstly, loy­ alty to the tribe, then to a group of the same lord’s subjects, and finally to a nation – started to weaken before it disappeared during the wars of religion. It could, however, always rely on influential spokespersons, and the void it left was eventually filled by the feeling of ‘belonging to Europe’, which was spread­ ing and taking root as the second stratum of European heritage simultane­ously and gradually thickened. This has already been discussed at length. Suffice it to say once again that contrary to the previous stratum, this one integrated nations not by imposing a common religion on them, but by superimposing a single jus gentium to the diversity of the States, and a single culture to the diversity of national cultures. Europe was built on a foundation laid by Chris­ tianity, but as a secular entity, as a community of culture and law where reli­ gion, now a divisive factor, is regulated in each country by state power, which is supposed to remain neutral as far as beliefs are concerned. It was this Europe that we could well have felt might disappear for good in the maelstrom of the two World Wars.

…

Nonetheless it survived, and the survivors of the wreckage are the ones who committed to breathe new life into it and to give it a new form. In this respect, our common cultural heritage plays a significant role. European integration

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has however now taken a new and different turn. It is now targeting not the elites, but the masses; not the festivities, but the daily life; in other words the economy and legal regulations as required by the functioning of a common market. Stemming from the Treaty of Rome and the enlargement of Europe in 2004, Europe is now materialized by the European Union and its institutions, where the inter-state principle coexists, with difficulty, with the supranational principle. It is this Europe that nationalisms wish to nullify in favour of a return to the Europe of sovereign States. This return, according to them, can be achieved in a peaceful manner and will benefit all Europeans. Nothing could be further from the truth. Historical experience has already shown twice that the disintegra­ tion of the unified form of Europe – if not in the whole continent then at least in its Western part – rapidly engendered conflicts and wars which resulted in an explosion of barbarism. This has been the case following the disintegration of Christianity. This has also been the case following the disintegration of the Europe of culture. There is nothing that should allow us to think that next time around things will be different. The current question mark surrounding the future of the European Union applies in reality to Europe. Moreover, the challenge faced by its defenders cannot be reduced to the presentation of rational arguments contrasting the advantages of the Union with the disaster that its disappearance would entail. While these well-known arguments remain valid, they are flawed in that they do not account for minds consumed with the negatives emotions generated and nurtured by nationalisms, as we recently saw in England. Thus, in order to fight them effectively, we have to confront them not only with rational argu­ ments, but also with strong and positive emotions, stronger if possible than the ones already at play. They must not be challenged by an ersatz of European patriotism, represented by the so-called ‘constitutional patriotism’, but by a real patriotism, based on a strong emotional link with Europe, a shared her itage and thus on a vision of a shared future, assuming its entire past, including all its glories and horrors, and based on the conviction that the values it repre­ sents are worth defending and propagating.

Acknowledgments This edited volume is the final output of a three-year research project entitled ‘The Right to Cultural Heritage – Its Protection and Enforcement through Co­ operation in the European Union’ (HEURIGHT14), which was financed under the EU’s Joint Programming Initiative on Cultural Heritage and Global Change ‘Heritage PLUS’ (jpi ch). We would like to also acknowledge the support of­ fered by the Ministry of Culture and National Heritage and the National Insti­ tute for Museums and Public Collections (Poland), the Arts and Humanities Research Council (United Kingdom), the Ministry of Cultural Heritage and Activities and the Ministry of Education, Universities and Research (Italy), the European Commission, and the Coordination Office of the jpi ch. We are par­ ticularly grateful to all the institutional members of the project’s consortium: the University of Fine Arts in Poznań; the British Institute of International and Comparative Law in London; the Department of Legal, Language, Inter­ preting and Translation Studies of the University of Trieste; and two research centres of the Polish Academy of Sciences in Warsaw – the Institute of Law Studies and the Institute of Art. Our thanks also go to Dušan Nikolić, Rector of the University of Novi Sad, and all the Associated Partners to the project for their unfailing support. There are a number of additional individuals to whom we owe a special debt of gratitude. We would thus especially thank Matteo Rosati, Mauro ­Bussani, Roger O’Keefe, Damien Helly, and Diego Marani for their encour­ agement and invaluable advice and suggestions, all of which helped shape the present volume. We are also very grateful to Krzysztof Pomian for having contributed to this volume with his thoughtful Foreword. Of course, our most sincere gratitude goes to the Chapters’ authors, who contributed their time and expertise to this book. Every contributor adds a layer of practical experi­ ence and expertise, which renders this collection particularly rich in different perspectives. We are all indebted to James F. Hartzell, J.D., for his much-appreciated lan­ guage revisions of the volume and to Aleksandra Zych for her meticulous ed­ its. We would also like to acknowledge the assistance rendered by ­Magdalena Szymańska, Patricia Ambrose, Roberto Ferrarato, as well as the research as­ sistance of Camila Adach, Michele D’Addetta, Julia Krzesicka, and Richard Mackenzie-Gray Scott. Without them, this book would not have become a re­ ality. Our special thanks also go out to Siegfried Wiessner, the Editor-in-Chief of the Studies in Intercultural Human Rights, and Lindy Melman, Bea Timmer,

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Kim Fiona Plas, and the staff at Brill-Nijhoff for their priceless assistance with the publication process. Last but not least, we would like to thank Diego, Ewa, Irenka, James, ­Jonathan and Leone along with Andrea, for their loving patience and understanding. The Editors

Figures and Tables Figures 7.1 13.1

Five spheres for the optimal valorization  170 Regional groups and the EU Member States according to the number of in­ scriptions on the Representative List of ich of Humanity (2008–16)  331

Tables 13.1 13.2

Possible sources of ich projects – funding within EU (after the entry into force of the 2003 Convention)  346 Creative Europe (2014–17) projects defined in activity type as ‘intangible culture’  356

Abbreviations AA AAL AAM AAMD AFSJ AJIL BFI CAHDI

Association Agreement Art, Antiquity and Law American Alliance of Museums Association of Art Museum Directors Area of Freedom, Security and Justice American Journal of International Law British Film Institute Committee of Legal Advisers on Public International Law of the Council of Europe CAP Common Agricultural Policy CCA Cultural Cooperation Agreement CCP Common Commercial Policy CDCPP Steering Committee for Culture, Heritage and Landscape CDIS Culture for Development Indicators CESCR Committee on Economic, Social and Cultural Rights CETA Comprehensive Economic and Trade Agreement CETS Council of Europe Treaty Series CEU Council of the European Union CFR Charter of Fundamental Rights of the European Union CJEU Court of Justice of the European Union CMLR Common Market Law Review CoE Council of Europe CoE Publ Council of Europe Publishing CORDIS Community Research and Development Information Service CPPDCE UNESCO Convention on the Protection and Promotion of the Diver­ sity of Cultural Expressions CUP Cambridge University Press DGs Directorates-General EC Bull Bulletin of the European Communities EC European Community ECC European Cultural Convention ECF European Cultural Foundation ECHR European Convention on Human Rights ECJ European Court of Justice ECoC European Capital of Culture ECtHR European Court of Human Rights EEA European Economic Area

Abbreviations EEAS EEC EENC EES EHD EHL EIA EJIL ema EnDOW

xxvii

European External Action Service European Economic Community European Expert Network on Culture European Statistical System European Heritage Days European Heritage Label Environmental Impact Assessment European Journal of International Law Euro-Mediterranean Agreement ‘Enhancing access to 20th century cultural heritage through Distrib­ uted Orphan Works clearance’ project ELR European Law Review ENP European Neighbourhood Policy EPA Economic Partnership Agreement ets European Treaty Series EU European Union EU Publ Office Publications Office of the European Union EUI European University Institute EYCH European Year of Cultural Heritage FCPNM Framework Convention for the Protection of National Minorities FPs Framework Programmes FTA Free Trade Agreement GATS General Agreement on Trade in Services GATT General Agreement on Tariffs and Trade GDA Giornale di diritto amministrativo Hart Hart Publishing HRC United Nations Human Rights Council HRLR Human Rights Law Review HRQ Human Rights Quarterly HUP Harvard University Press ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICH Intangible Cultural Heritage ICOM International Council of Museums IFAR International Foundation for Art Research IJCP International Journal of Cultural Property IJCPolicy International Journal of Cultural Policy IJHS International Journal of Heritage Studies ILA International Law Association IOLR International Organizations Law Review

xxviii IPRs ISSJ LEG Ln MJECL MoU NEMO Nijhoff NJIL OJ OMC PCA PPP PUP SAA SAACLR SDGs TA TEU TFEU TTIP UDHR ULR UNDRIP UNESCO UNESCO Publ UNGA UNHRC UNIDROIT UNSC UNTS UNWTO VJTL WG WHL WIPO WTO

Abbreviations Intellectual Property Rights International Social Science Journal Leadership Group League of Nations Maastricht Journal of European and Comparative Law Memorandum of Understanding Network of European Museum Organizations Martinus Nijhoff Publishers Nordic Journal of International Law Official Journal of the European Union Open Method of Coordination Partnership Cooperation Agreement Public–Private Partnerships Princeton University Press Stabilization and Association Agreement Santander Art and Culture Law Review Sustainable Development Goals Trade Agreement Treaty on European Union Treaty on the Functioning of the European Union Transatlantic Trade and Investment Partnership Universal Declaration on Human Rights Utrecht Law Review United Nations Declaration on the Rights of Indigenous Peoples United Nations Educational, Scientific and Cultural Organization UNESCO Publishing United Nations General Assembly United Nations Human Rights Committee International Institute for the Unification of Private Law United Nations Security Council United Nations Treaty Series United Nations World Tourism Organization Vanderbilt Journal of Transnational Law Working Group List of the World Cultural and Natural Heritage World Intellectual Property Organization World Trade Organization

Table of Cases European Court of Human Rights Akdaş v Turkey App no 41056/04 (ECtHR, 16 February 2010). Albert Fürst von Thurn und Taxis v Germany App no 26367/10 (ECtHR, 14 May 2013). Avotiņš v Latvia App no 17502/07 (ECtHR, 23 May 2016). Beyeler v Italy ECHR 2000-I 57. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland ECHR 2005-VI 107. Buckley v the United Kingdom App no 20348/92 (ECtHR, 29 September 1996). Buonomo Gärber and Others v Italy App no 63783/00 (ECtHR, 20 May 2003). Case ‘relating to certain aspects of the laws on the use of languages in education in ­Belgium’ v Belgium (Merits) App nos 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64 (ECtHR, 23 July 1968). Catan and Others v Moldova and Russia ECHR 2012-V 309. Chapman v the United Kingdom ECHR 2001-I 41. Debelianovi v Bulgaria App no 61951/00 (ECtHR, 29 June 2007). Depalle v France App no 34044/02 (ECtHR, 29 March 2010). G and E v Norway App no 9278/81 & 9415/81 (joined) (Commission Decision, 3 October 1983). Garaudy v France ECHR 2003-IX 333. Handölsdalen Sami Village and Others v Sweden App no 39013/14 (ECtHR, 30 March 2010). Herrick v the United Kingdom App no 11185/84 (1985) 42 DR 275. Hingitaq 53 and Others v Denmark ECHR 2006-I 345. Khurshid Mustafa and Tarzibachi v Sweden App no 23883/06 (ECtHR, 16 December 2008). Könkämä and 38 other Sami villages v Sweden App no 27033/95 (Commission Decision, 25 November 1996). Kozacioğlu v Turkey App no 2234/03 (ECtHR, 19 February 2009). Kyrtatos v Greece ECHR 2003-VI 257. Lehideux and Isorni v France App no 24662/94 (ECtHR, 23 September 1998). Nowakowski v Poland App no 55167/11 (ECtHR, 24 July 2012). Opinion 1/75 of the Court [1975] ECR 1355. Opinion 1/78 of the Court [1979] ECR 2871. Opinion 1/94 of the Court [1994] ECR I-5267. Opinion 2/00 of the Court [2001] ECR I-9713. Opinion 2/13 of the Court [2014] ECLI:EU:C:2014:2454. Podkolzina v Latvia ECHR 2002-II 419.

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Potomska and Potomski v Poland App no 33949/05 (ECtHR, 29 March 2011). Ruspoli Morenes v Spain App no 28979/07 (ECtHR, 28 June 2011). SCEA Ferme de Fresnoy v France ECHR 2005-XIII 211. Sidiropoulos and Others v Greece App no 26695/95 (ECtHR, 10 July 1998). Syllogos Ton Athinaion v the United Kingdom App no 48259/15 (ECtHR, 31 May 2016). Witzsch v Germany App no 7485/03 (ECtHR, 13 December 2005).

European Court of Justice Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629. Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649. Case 178/84 Commission of the European Communities v Federal Republic of Germany [1987] ECR 1227. Case 249/81 Commission of the European Communities v Ireland [1982] ECR 4005. Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v ­Netherlands Inland Revenue Administration [1963] ECR 1. Case 29/69, Erich Stauder v City of Ulm, Sozialamt [1969] ECR 419. Case 41/76 Donckerwolke and Others v Procureur de la République and Others [1976] ECR 1921. Case 45/86 Commission of the European Communities v Council of the European Communities [1987] ECR 1493. Case 4/73 J Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ECR 491. Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. Case 7/68 Commission of the European Communities v Italian Republic [1968] ECR 423. Case 8/73 Hauptzollamt Bremerhaven v Massey-Ferguson GmbH [1973] ECR 897. Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837. Case C-109/10 P Solvay SA v European Commission [2011] ECR I-10329. Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143. Case C-130/10 European Parliament v Council of the European Union [2012] ECLI:EU:C:2012:472. Case C-133/13 Staatssecretaris van Economische Zaken and Staatssecretaris van Financiën v Q ECLI:EU:C:2014:2460.

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xxxi

Case C-154/89 Commission of the European Communities v French Republic [1991] ECR I-659. Case C-162/96 A. Racke GmbH & Co. v Hauptzollamt Mainz [1998] ECR I-3655. Case C-17/92 Federación de Distribuidores Cinematográficos v Estado Español and Unión de Productores de Cine y Televisión [1993] ECR I-2239. Case C-180/89 Commission of the European Communities v Italian Republic [1991] ECR I-709. Case C-185/95 P Baustahlgewebe GmbH v Commission of the European Communities [1998] ECR I-8417. Case C-193/07 Commission of the European Communities v Republic of Poland (ECJ, 18 April 2007). Case C-198/89 Commission of the European Communities v Hellenic Republic [1991] ECR I-727. Case C-201/02 The Queen on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723. Case C-211/01 Commission of the European Communities v Council of the European Union [2003] ECR I-8913. Case C-234/97 Teresa Fernández de Bobadilla v Museo Nacional del Prado, Comité de Empresa del Museo Nacional del Prado and Ministerio Fiscal [1999] ECR I-4773. Case C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd. [1998] ECR I-621. Case C-268/94 Portuguese Republic v Council of the European Union [1996] ECR I-6177. Case C-286/90 Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp. [1992] ECR I-6019. Case C-301/15 Marc Soulier and Sara Doke v Premier ministre and Ministre de la Culture et de la Communication [2016] ECLI:EU:C:2016:878. Case C-308/06 International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport [2008] ECR I-4057. Case C-309/96 Daniele Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio [1997] ECR I-7493. Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change [2011] ECR I-13755. Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-3689. Case C-386/04 Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften [2006] ECR I-8203. Case C-388/01 Commission of the European Communities v Italian Republic [2003] ECR I-721. Case C-404/09 European Commission v Kingdom of Spain [2011] ECR I-11853.

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Case C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen [2016] ECLI:EU:C:2016:198. Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman [1995] ECR I-4921. Case C-42/97 European Parliament v Council of the European Union [1999] ECR I-869. Case C-479/04 Laserdisken ApS v Kulturministeriet [2006] ECR I-8089. Case C-50/09 European Commission v Ireland [2011] ECR I-873. Case C-531/07 Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ECR I-3717. Case C-543/14 Ordre des barreaux francophones et germanophone and Others v Conseil des ministres [2016] ECLI:EU:C:2016:605. Case C-601/15 PPU J N v Staatssecretaris van Veiligheid en Justitie [2016] ECLI:EU: C:2016:84. Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1935. Case C-87/13 Staatssecretaris van Financiën v X [2014] OJ C65/3. Case T-464/04 Independant Music Publishers and Labels Association (Impala, association internationale) v Commission of the European Communities [2006] ECR II-2289. Case T-646/13 Minority SafePack – one million signatures for diversity in Europe v Commission [2013] ECLI:EU:T:2017:59. Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351.

Human Rights Committee Bernard Ominayak, Chief of the Lubicon Lake Band v Canada, No 167/1984, 26 March 1990. Ilmari Länsman et al. v Finland, No 511/1992, 14 October 1993.

Inter-American Court of Human Rights Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment, InterAmerican Court of Human Rights Series C No 79 (31 August 2001). Case of the Saramaka People v Suriname, Judgment, Inter-American Court of Human Rights Series C No 172 (28 November 2007). Case of the Xákmok Kásek Indigenous Community v Paraguay, Judgment, Inter-­ American Court of Human Rights Series C No 214 (24 August 2010).

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xxxiii

Maya Indigenous Community of the Toledo District v Belize, Case 12.053, Report No 40/04, Inter-American Commission of Human Rights, OEA/Ser.L/v/II.122 Doc 5 rev 1 (2004).

International Criminal Court Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence (No ICC-01/12-01/15-171, 27 September 2016).

The Netherlands Crimea Treasures case (2016) ECLI:NL:RBAMS:2016:8264 (Amsterdam District Court). Morning Star International Corporation v Republic of Gabon and the State of the Netherlands ECLI:NL:HR:2016:2236. State of the Netherlands v Servaas ECLI:NL:HR:2016:2354.

United Kingdom Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2007] EWCA Civ 1374 (CA), [2009] QB 22. Winkworth v Christie Manson & Woods Ltd [1980] Ch 496, [1980] 1 All ER 1121.

United States Jeanneret v Vichey, 541 F Supp 80 (SDNY 1982), rev’d and remanded, 693 F.2d 259 (2d Cir 1982). Llanos Oil Exploration v the Republic of Colombia, the State of the Netherlands and Ecopetrol S.A., Supreme Court, NJ 2010, 507.

Table of Instruments 2015 Joint Report of the Council and the Commission on the implementation of the strategic framework for European cooperation in education and training (ET 2020) – New priorities for European cooperation in education and training [2015] OJ C417/25. Abu Dhabi Declaration on Safeguarding Endangered Cultural Heritage (3 December 2016). Accord entre la Communauté économique européenne et la Confédération suisse [1972] OJ L300/189. Agreement between the European Economic Community and the Kingdom of Norway [1973] OJ L171/2. Agreement between the European Economic Community and the Principality of ­Andorra [1990] OJ L374/16. Agreement between the European Economic Community and the Republic of Iceland [1972] OJ L301/2. Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part [2002] OJ L352/3. Agreement establishing an association between the European Union and its Member States, on the one hand, and Central America on the other [2012] OJ L346/3. Agreement on Cooperation and Customs Union between the European Economic Community and the Republic of San Marino [2002] OJ L84/43. Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Fed­ eration, of the other part [1997] OJ L327/3. Agreement on the European Economic Area [1994] OJ L1/3. Agreement on Trade, Development and Cooperation between the European Commu­ nity and its Member States, of the one part, and the Republic of South Africa, of the other part [1999] OJ L311/3. Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part [2014] OJ L161/3. Attuazione della direttiva 2014/60/UE relative alla restituzione dei beni culturali usciti illecitamente dal territorio di uno Stato membro e che modifica il regolamento (UE) n. 1024/2012 [Legislative Decree No. 2 (Italy), 7 January 2016] Gazzetta Ufficiale No 7, 11.02.2016. Charter of Fundamental Rights of the European Union [2000] OJ C364/1. Charter of Fundamental Rights of the European Union [2012] OJ C326/391.

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Charter of the United Nations (26 June 1945). Code du patrimoine (France, consolidated version as of January 2019) accessed 20 March 2019. Codice dei beni culturali e del paesaggio (Italy, consolidated version as of Dicember 2017) accessed 20 March 2019. Commission Decision (EU) 2017/652 of 29 March 2017 on the proposed citizens’ initia­ tive entitled ‘Minority SafePack – one million signatures for diversity in Europe’ [2017] OJ L92/100. Commission of the European Communities, ‘1st Report on the consideration of cul­ tural aspects in European Community action’ COM (96) 160 final. Commission of the European Communities, ‘A Fresh Boost for Culture in the European Community. Commission Communication to the Council and Parliament Transmitted in December 1987’ COM (87) 603 4 EC Bull Supplement. Commission of the European Communities, ‘Commission Staff Working Document on the External Dimension of Audiovisual Policy’ SEC (2009) 1033 final. Commission of the European Communities, ‘Community Action in the Cultural Sector. Commission Communication to the Council, Sent on 22 November 1977’ COM (77) 560 (1977) 6 EC Bull Supplement. Commission of the European Communities, ‘Eastern Partnership’ (Communication) COM (2008) 823 final. Commission of the European Communities, ‘eEurope 2005: An information society for all. An Action Plan to be presented in view of the Sevilla European Council’ (Com­ munication) COM (2002) 263 final. Commission of the European Communities, ‘Europe in the World – Some Practical Proposals for Greater Coherence, Effectiveness and Visibility’ (Communication) COM (2006) 278 final. Commission of the European Communities, ‘European agenda for culture in a global­ izing world’ (Communication) COM (2007) 242 final. Commission of the European Communities, ‘Global Europe: Competing in the world’ (Communication) COM (2006) 567 final. Commission of the European Communities, ‘Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters’ COM (2003) 624 final. Commission of the European Communities, ‘Recommendation from the Commission to the Council to authorise the Commission to participate, on behalf of the Com­ munity, in the negotiations within UNESCO on the convention on the protection of the diversity of cultural contents and artistic expressions’ SEC (2004) 1062 final.

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Commission of the European Communities, ‘Stronger Community Action in the Cul­ tural Sector. Communication from the Commission to the Council and Parliament, Transmitted on 12 October 1982’ COM (82) 590 final 6 EC Bull Supplement. Commission Recommendation (EEC) 75/65 of 20 December 1974 to Member States concerning the protection of the architectural and natural heritage [1975] OJ L21/22. Commission Recommendation of 24 August 2006 on the digitisation and online ac­ cessibility of cultural material and digital preservation (2006/585/EC) [2006] OJ L236/28. Commission Recommendation of 27 October 2011 on the digitisation and online ­accessibility of cultural material and digital preservation (2011/711/EU) [2011] OJ L283/39. Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty [2014] OJ L187/1. Committee of Ministers, ‘Council of Europe Convention on Offences relating to Cul­ tural Property’ CM (2017) 32 final. Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part [2017] OJ L11/23. Congress of Local and Regional Authorities of Europe, ‘Recommendation 40 (1998) on the draft European landscape convention’ (27 May 1998). Consolidated version of the Treaty on European Union [2002] OJ C325/5. Consolidated version of the Treaty on the European Union [2012] OJ C326/13. Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47. Consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community [2002] OJ C325/1. Consolidated Versions of the Treaty on European Union and the Treaty on the Func­ tioning of the European Union [2008] OJ C115/1. Consolidated Versions of the Treaty on European Union and the Treaty on the Func­ tioning of the European Union [2012] OJ C326/1. Convention for the Protection of Cultural Property in the Event of Armed Conflict (­adopted 14 May 1954, entered into force 7 August 1956) 249 UNTS 240. Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14 (adopted 4 November 1950, entered into force 3 September 1953) ETS 005. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447.

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Convention on Jurisdictional Immunities of States and Their Property (adopted 2 ­December 2004, not yet in force) UNGA Res A/Res/59/38. Convention on the Elimination of All Forms of Discrimination against Women (­adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13. Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. Council conclusions of 12 May 2009 on a strategic framework for European coopera­ tion in education and training (ET 2020) [2009] OJ C119/2. Council conclusions on cultural heritage as a strategic resource for a sustainable ­Europe [2014] OJ C183/36. Council conclusions on culture in the EU’s external relations with a focus on culture in development cooperation [2015] OJ C417/41. Council conclusions on participatory governance of cultural heritage [2014] OJ C463/1. Council Decision (EU) 2016/838 of 23 May 2016 on the conclusion, on behalf of the European Union, of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part [2016] OJ L141/26. Council Decision (EU) 2017/38 of 28 October 2016 on the provisional application of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part [2017] OJ L11/1080. Council Decision 87/327/EEC of 15 June 1987 adopting the European Community ­Action Scheme for the Mobility of University Students (Erasmus) [1987] OJ L166/20. Council Decision 97/126/EC of 6 December 1996 concerning the conclusion of an agreement between the European Community, of the one part, and the Govern­ ment of Denmark and the Home Government of the Faroe Islands, of the other part [1997] OJ L53/1. Council Decision No 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1. Council Directive 77/486/EEC of 25 July 1977 on the education of the children of ­migrant workers [1977] OJ L199/32. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of ­certain public and private projects on the environment [1985] OJ L175/40. Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment [1990] OJ L158/56. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7.

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Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlaw­ fully removed from the territory of a Member State [1993] OJ L74/74. Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1997] OJ L73/5. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. Council of Europe Convention on Offences relating to Cultural Property (adopted 3 May 2017, opened for signature 19 May 2017) CETS 221. Council of Europe Framework Convention on the Value of Cultural Heritage for Soci­ ety (adopted 27 October 2005, entered into force 1 June 2011) CETS 199. Council of Europe Parliamentary Assembly, Resolution 1689, ‘The Future of the Coun­ cil of Europe in the Light of Its Sixty Years of Experience’ (1 October 2009). Council of Europe, ‘Recommendation of the Committee of Ministers to Member States on the European Cultural Heritage Strategy for the 21st century’ (22 February 2017) CM/Rec(2017)1. Council of Europe, ‘Recommendation of the Committee of Ministers to M ­ ember States on the Internet of citizens’ (10 February 2016) CM/Rec(2016)2. Council of the European Union, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, amending the Work Plan for Culture (2015–2018) as regards the priority on intercultural dia­ logue’ [2015] OJ C417/44. Council of the European Union, ‘Conclusions of the Council and of the Representa­ tives of the Governments of the Member States, meeting within the Council, on a Work Plan for Culture (2015–2018)’ [2014] OJ C463/4. Council of the European Union, ‘Conclusions of the Council and of the Representa­ tives of the Governments of the Member States, meeting within the Council, on the promotion of cultural diversity and intercultural dialogue in the external relations of the Union and its Member States’ [2008] OJ C320/10. Council of the European Union, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on a Work Plan for Culture 2008–2010’ [2008] OJ C143/9. Council of the European Union, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on the Work Plan for Culture 2011–2014’ [2010] OJ C325/1. Council of the European Union, ‘Conclusions on cultural heritage as a strategic resource for a sustainable Europe. Education, Youth, Culture and Sport Council Meeting, Brussels, 20 May 2014’ accessed 20 March 2019.

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Council of the European Union, ‘Council conclusions on an EU strategic approach to international cultural relations’ [2017] OJ C189/38. Council of the European Union, ‘Council conclusions on the Global Strategy on the European Union’s Foreign and Security Policy’ (17 October 2016). Council of the European Union, ‘Council Decision on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part’ (26 October 2016) 2016/0206 (NLE), 10972/1/16 REV 1. Council of the European Union, ‘Council Resolution of 20 November 1995 on the pro­ motion of statistics on culture and economic growth’ [1995] OJ C327/1. Council of the European Union, ‘Draft Council conclusions on cultural heritage as a strategic resource for a sustainable Europe’ [2014] 8892/14 CULT 58. Council of the European Union, ‘Work Plan for Culture 2011–2014 – Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council’ accessed 20 March 2019. Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods (Codified version) [2009] OJ L39/1. Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restric­ tions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96 [2003] OJ L169/6. Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural develop­ ment from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations [1999] OJ L160/80. Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L349/1. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the rec­ ognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1. Council Regulation (EEC) 3911/92 of 9 December 1992 on the export of cultural goods [1992] OJ L395/1. Council Regulation (EEC) No 2078/92 of 30 June 1992 on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside [1992] OJ L215/85. Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographi­ cal indications and designations of origin for agricultural products and foodstuffs [1992] OJ L208/1.

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Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of ag­ ricultural products and indications referring thereto on agricultural products and foodstuffs [1991] OJ L198/1. Council Regulation (EEC) No 2328/91 of 15 July 1991 on improving the efficiency of agricultural structures [1991] OJ L218/1. Council Regulation (EEC) No 797/85 of 12 March 1985 on improving the efficiency of agricultural structures [1985] OJ L93/1. Council Regulation (EU) No 1332/2013 of 13 December 2013 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria [2013] OJ L335/3. Council Resolution of 25 June 2002 on a new work plan on European cooperation in the field of culture [2002] OJ C162/5. Decision (EU) 2017/1545 of the European Parliament and of the Council of 13 Septem­ ber 2017 amending Decision No 445/2014/EU establishing a Union action for the European Capitals of Culture for the years 2020 to 2033 [2017] OJ L237/1. Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1. Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on imple­ menting the final phase of the Customs Union [1996] OJ L35/1. Decision No 1194/2011/EU of the European Parliament and of the Council establishing a European Union action for the European Heritage Label [2011] OJ L303/1. Decision No 1720/2006/EC of the European Parliament and of the Council of 15 ­November 2006 establishing an action programme in the field of lifelong learning [2006] OJ L327/45. Decision No 1855/2006/EC of the European Parliament and of the Council of 12 ­December 2006 establishing the Culture Programme (2007 to 2013) [2006] OJ L372/1. Decision No 2228/97/EC of the European Parliament and of the Council of 13 October 1997 establishing a Community action programme in the field of cultural heritage (the Raphael programme) [1997] OJ L305/31. Decision No 445/2014/EU of the European Parliament and of the Council of 16 April 2014 establishing a Union action for the European Capitals of Culture for the years 2020 to 2033 and repealing Decision No 1622/2006/EC [2014] OJ L132/1. Decision No 508/2000/EC of the European Parliament and of the Council of 14 Febru­ ary 2000 establishing the Culture 2000 programme [2000] OJ L63/1. Decision No 626/2004/EC of the European Parliament and of the Council of 31 March 2004 amending Decision No 508/2000/EC establishing the Culture 2000 programme [2004] OJ L99/3.

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Decision No 1622/2006/EC of the European Parliament and of the Council of 24 ­October 2006 establishing a Community action for the European Capital of Culture event for the years 2007 to 2019 [2006] OJ L304/1. Declaration no 17 concerning primacy [2008] OJ C115/344. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res A/Res/25/2625 (24 October 1970). Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNGA Res A/Res/47/135 (3 February 1992). Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the informa­ tion society [2001] OJ L167/10. Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30. Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) [2007] OJ L108/1. Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or admin­ istrative action in Member States concerning the pro-vision of audiovisual media services [2010] OJ L95/1. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless per­ sons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9. Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works [2012] OJ L299/5. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (re­ cast) [2013] OJ L180/60. Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information [2013] OJ L175/1. Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L124/1.

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Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 [2014] OJ L159/1. Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part [2008] OJ L289/3. Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part [2016] OJ L250/3. Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part [2000] OJ L276/45. Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part [2016] OJ L29/3. Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part [2004] OJ L304/39. Euro-Mediterranean Agreement establishing an association between the ­European Communities and their Member States, of the one part, and the Hashemite ­Kingdom of Jordan, of the other part [2002] OJ L129/3. Euro-Mediterranean Agreement establishing an association between the ­European Communities and their Member States, of the one part, and the Kingdom of ­Morocco, of the other part [2000] OJ L70/2. Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part [2005] OJ L265/2. Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part [2006] OJ L143/2. Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of ­Tunisia, of the other part [1998] OJ L97/2. Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part [2000] OJ L147/3. Euro-Mediterranean Interim Association Agreement on trade and cooperation ­between the European Community, of the one part, and the Palestine Liberation ­Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part [1997] OJ L187/3.

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European Charter for Regional and Minority Languages (opened for signature 5 ­November 1992, entered into force 1 March 1998) ETS 148. European Commission, ‘A European Agenda on Migration’ (Communication) COM (2015) 240 final. European Commission, ‘Action Plan for strengthening the fight against terrorist fi­ nancing’ (Communication) COM (2016) 50/2. European Commission, ‘Action Plan on the integration of third-country nationals’ (Communication) COM (2016) 377 final. European Commission, ‘Annex to the Joint Proposal for a Council Decision on the Union position within the Association Council established by the Asso­ ciation Agreement between the European Union, the European Atomic Energy ­Community and its Member States, of the one part and Georgia, of the other part with regard to the adoption of the EU-Georgia Association Agenda’ JOIN (2017) 12 final. European Commission, ‘Communication from the Commission to the Euro­ pean ­ Parliament, the Council, the European Economic and Social Commit­ tee and the Committee of the Regions, Creative Europe – A new framework programme for the cultural and creative sectors (2014–2020)’ COM (2011) 786 final. European Commission, ‘Communication on the protection of national treasures with an artistic, historic or archaeological value: Needs arising from the abolition of fron­ tiers in 1992’ COM (89) 594 final. European Commission, ‘Communication to the Commission from the President in agreement with Vice-President Ashton. Strategy for the progressive improvement of the EU status in international organisations and other fora in line with the objec­ tives of the Treaty of Lisbon’ C (2012) 9420 final. European Commission, ‘Communication to the Council, the European Parliament and the Economic and Social Committee: New prospects for Community cultural ac­ tion’ COM (92) 149 final. European Commission, ‘Country reports and info sheets on implementation of EU Free Trade Agreements’ SWD (2017) 364 final. European Commission, ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’ (Communication) COM (2010) 2020 final. European Commission, ‘European Agenda for the Integration of Third-Country Na­ tionals’ (Communication) COM (2011) 455 final. European Commission, ‘For a European Industrial Renaissance’ (Communication) COM (2014) 014 final. European Commission, ‘Implementation of Free Trade Agreements’ (Report) COM (2017) 654 final.

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European Commission, ‘Joint Communication to the European Parliament and the Council: An integrated European Union policy for the Arctic’ JOIN (2016) 21 final. European Commission, ‘Joint Communication to the European Parliament and the Council: Towards an EU strategy for international cultural relations’ JOIN (2016) 29 final. European Commission, ‘Proposal for a Council Decision on the extension of the en­ titlement to co-productions as provided for in Article 5 of the Protocol on Cultural Cooperation to the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part’ COM (2017) 182 final. European Commission, ‘Proposal for a Decision of the European Parliament and of the Council on a European Year of Cultural Heritage’ COM (2016) 543 final. European Commission, ‘Proposal for a Directive of the European Parliament and of the Council amending Directive 2010/13/EU on the coordination of certain provi­ sions laid down by law, regulation or administrative action in Member States con­ cerning the provision of audiovisual media services in view of changing market realities’ COM (2016) 287 final. European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the import of cultural goods’ COM (2017) 375 final, 2017/0158 (COD). European Commission, ‘Report on the implementation and relevance of the 2011–14 Work Plan for Culture’ COM (2014) 535 final. European Commission, ‘Report on the implementation of the European Agenda for Culture’ COM (2010) 390 final. European Commission, ‘Strengthening European Identity through Education and Cul­ ture: The European Commission’s contribution to the Leaders’ meeting in Gothen­ burg, 17 November 2017’ (Communication) COM(2017) 673 final. European Commission, ‘Supporting the prevention of radicalisation leading to violent extremism’ (Communication) COM (2016) 379 final. European Commission, ‘Towards an integrated approach to cultural heritage for ­Europe’ (Communication) COM (2014) 477 final. European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221. European Convention on Offences relating to Cultural Property (adopted 23 June 1985) ETS 119. European Convention on the Protection of the Archaeological Heritage (adopted 6 May 1969, entered into force 20 November 1970) ETS 066. European Convention on the Protection of the Archaeological Heritage (Revised) (ad­ opted 16 January 1992, entered into force 25 May 1995) ETS 143. European Council, ‘Solemn Declaration on European Union’ (1983) 6 EC Bull 24.

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European Cultural Convention (adopted 19 December 1954, entered into force 5 May 1955) ETS 018. European Landscape Convention (adopted 20 October 2000) ETS 176. European Parliament resolution of 13 May 1974 on measures to protect the European cultural heritage [1974] OJ C62/5. European Parliament resolution of 5 July 2017 on Towards an EU strategy for interna­ tional cultural relations (2016/2240(INI)). European Parliament resolution of 8 September 2015 towards an integrated approach to cultural heritage for Europe, P8_TA-PROV(2015)0293. European Parliament resolution on measures in favour of minority languages and cul­ tures [1983] OJ C68/103. European Parliament resolution on stronger Community action in the cultural sector [1983] OJ C342/127. European Parliament resolution on the European social heritage [1983] OJ C68/104. European Parliament resolution on the protection of the European architectural and archaeological heritage [1982] OJ C267/25. European Parliament, ‘Report on the proposal for a decision of the European ­Parliament and of the Council on a European Year of Cultural Heritage (COM(2016)0543 – C80352/2016 – 2016/0259(COD)). Draft European Parliament Legislative Resolution’ (16 November 2016) A8-0340/2016. European Parliament, Committee on Culture and Education, ‘Report on the cultural dimensions of the EU’s external actions (2010/2161(INI))’ (31 March 2011). European Parliament, Committee on Foreign Affairs and Committee on Culture and Education, ‘Report on Towards an EU strategy for international cultural relation (2016/2240(INI))’ (13 June 2017). Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17. Framework Convention for the Protection of National Minorities (adopted 10 Novem­ ber 1994, entered into force 1 February 1998) ETS 157. Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part [2010] OJ L127/6. General Agreement on Tariffs and Trade (15 April 1994) 1867 UNTS 187. Gesetz zur Neuregelung des Kulturgutschutzrechts – KGSG [Germany, Act of 31 July 2016 Reforming the Law on the Protection of Cultural Property], Bundesgesetz­ blatt 2016 I S 1914. Human Rights Council Resolution 6/11. Protection of cultural heritage as an impor­ tant component of the promotion and protection of cultural rights (2007) UN Doc A/HRC/RES/6/11. Interim Agreement establishing a framework for an Economic Partnership Agreement between the Eastern and Southern Africa States, on the one part, and the European Community and its Member States, on the other part [2012] OJ L111/2.

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Interim Agreement on trade and customs union between the European Economic Community and the Republic of San Marino [1992] OJ L359/14. International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 7 March 1966, entered into force 4 January 1969) 660 UNTS 195. International Covenant on Civil and Political Rights (adopted 16 December 1966, en­ tered into force 23 March 1976) 999 UNTS 171. International Covenant on Economic, Social and Cultural Rights (adopted 16 Decem­ ber 1966, entered into force 3 January 1976) 993 UNTS 3. Law (Turkey) No. 5366/2005 on Renovating, Conserving and Actively Using Dilapi­ dated Historical and Cultural Immovable Assets (TR) accessed 20 March 2019. Marrakesh Agreement Establishing the World Trade Organization (15 April 1994) 1867 UNTS 3. New York Declaration for Refugees and Migrants, UNGA Res A/RES/71/1 (19 Septem­ ber 2016). Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UNGA Res A/RES/63/117 (10 December 2008). Partnership agreement 2000/483/EC between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 – Protocols – Final Act – Declarations [2000] OJ L317/3. Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Armenia, of the other part [1999] OJ L239/3. Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Azerbaijan, of the other part [1999] OJ L246/3. Partnership and Cooperation Agreement between the European Union and its Mem­ ber States, of the one part, and the Republic of Iraq, of the other part [2012] OJ L204/20. Protocol amending the European Landscape Convention (opened for signature 1 ­August 2016) CETS 219. Protocol III on Cultural Cooperation [2008] OJ L289/1938. Protocol on Cultural Cooperation [2011] OJ L127/1418. Protocol on Cultural Cooperation [2012] OJ L346/2622. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 20 March 1952, entered into force 18 May 1954) ETS 009.

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Recommendation of the European Parliament and of the Council of 16 November 2005 on film heritage and the competitiveness of related industrial activities [2005] OJ L323/57. Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning [2006] OJ C394/10. Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products [2009] OJ L286/36. Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on ­Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13. Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 Sep­ tember 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regu­ lation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC [2016] OJ L251/1. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1. Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 De­ cember 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014–2020) and repealing Decision No 1982/2006/EC [2013] OJ L347/104. Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe programme (2014 to 2020) and re­ pealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC [2013] OJ L347/221. Regulation (EU) No 1301/2013 of the European Parliament and of the Council of 17 December 2013 on the European Regional Development Fund and on specific provi­ sions concerning the Investment for growth and jobs goal and repealing Regulation (EC) No 1080/2006 [2013] OJ L347/289. Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC [2014] OJ L150/168. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member

xlviii

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State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31. Regulation (EU) No 1288/2013 of the European Parliament and of the Council of 11 De­ cember 2013 establishing ‘Erasmus+’: the Union programme for education, training, youth and sport and repealing Decisions No 1719/2006/EC, No 1720/2006/EC and No 1298/2008/EC Text with EEA relevance [2013] OJ L347/50. Resolution of the Council of 16 November 2007 on a European Agenda for Culture [2007] OJ C287/1. Resolution of the Ministers responsible for Cultural Affairs, meeting within the Coun­ cil, of 13 June 1985 concerning the annual event ‘European City of Culture’ [1985] OJ C153/2. Resolution of the Ministers responsible for Cultural Affairs, meeting within the Council, of 17 February 1986 on transnational cultural itineraries [1986] OJ C44/2. Resolution of the Ministers with responsibility for Cultural Affairs, meeting within the Council, of 13 November 1986 on the protection of Europe’s architectural heritage [1986] OJ C320/1. Resolution of the Ministers with responsibility for Cultural Affairs, meeting within the Council, of 13 November 1986 on the conservation of works of art and artefacts [1986] OJ C320/3. Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004) 2253 UNTS 212. Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part [2015] OJ L164/2. Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedo­ nia, of the other part [2004] OJ L84/13. Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part [2009] OJ L107/166. Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part [2010] OJ L108/3. Stabilization and Association Agreement between the European Communities and their Member States of the one part, and the Republic of Serbia, of the other part [2013] OJ L278/16.

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Stabilization and Association Agreement between the European Union and the ­European Atomic Energy Community, of the one part, and Kosovo, of the other part [2016] OJ L71/3. Statute of the Council of Europe (adopted 5 May 1949, entered into force 3 August 1949) ETS 001. The Single European Act [1987] OJ L169/1. Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part [2012] OJ L354/3. Transforming our World: The 2030 Agenda for Sustainable Development, UNGA Res A/RES/70/1 (25 September 2015). Treaty Establishing a Constitution for Europe [2003] OJ C169/1. Treaty Establishing the European Economic Community (Treaty of Rome) 298 UNTS 11. Treaty of Amsterdam amending the Treaty on European Union, the Treaties establish­ ing the European Communities and certain related acts [1997] OJ C340/1. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1. Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts [2001] OJ C80/1. Treaty on European Union, signed at Maastricht on 7 February 1992 [1992] OJ C191/1. Tribunals, Courts and Enforcement Act 2007 (UK). UNESCO Convention Concerning the Protection of the World Cultural and Natural ­Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (ad­ opted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1. UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 UNTS 231. UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 UNTS 311. UNESCO Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 41 ILM 37. UNESCO Declaration of Principles of International Cultural Co-operation (4 Novem­ ber 1966). UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (adopted 24 June 1995, entered into force 1 July 1998) 34 ILM 1322.

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United Nations Declaration on the Rights of Indigenous Peoples, UNGA Res A/ Res/61/295 (2 October 2007). Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III). Universal Declaration on Cultural Diversity, UNESCO Doc 31C/Res (2 November 2001). UNSC Resolution 2347: Maintenance of international peace and security (2017) UN Doc S/RES/2347. UNSC Resolution 661 (1990) UN Doc S/RES/661. UNSC Resolution 986 (1995) UN Doc S/RES/986. Ustawa z dnia 23 lipca 2003 r. o ochronie zabytków i opiece nad zabytkami [Polish Act on the Protection and Guardianship of Monuments] (as modified in 2014) DzU 2003 nr 162 poz 1568. Ustawa z dnia 25 maja 2017 r. o restytucji narodowych dóbr kultury [Polish National Trea­ sures Act] DzU 2017 poz 1086.

Notes on Contributors Mateusz Bieczyński serves as Vice-Rector of the University of Fine Arts in Poznań. He holds a PhD in Legal Sciences from the Institute of Law of the Polish Academy of Sci­ences, MA in Art History (Adam Mickiewicz University in Poznań) and LL.M. in German Law (Potsdam University). He also graduated from the CuratorLAB – Postgraduate Program for Professional in Arts (Konstfack – University Col­ lege of Arts, Crafts and Design) and received START scholarships for young researchers from the Foundation for Polish Science (2012) and that in the field of culture awarded by the Wielkopolska Province Marshal (2013). Mateusz was a member of the Polish team of the HEURIGHT project. Alessandro Chechi is a senior researcher at the University of Geneva (Faculty of Law) and lec­ turer in public international law at the Université Catholique of Lille (Faculty of Law). He holds a Ph.D. from the European University Institute and a LL.M. from the University College London. Alessandro is a member of the Interna­ tional Law in Domestic Courts-Oxford University Press project (ILDC) and also sits on editorial boards of the Italian Yearbook of International Law and the Santander Art and Culture Law Review. Alessandro is a member of the So­ ciété internationale pour la recherche sur le droit du patrimoine culturel et le droit de l’art and the ILA Committee on Participation in Cultural Heritage Governance. He was a consultant for the Council of Europe for the revision of the Convention on Offences Relating to Cultural Property. He authored The Settlement of International Cultural Heritage Disputes (Oxford: University Press, 2014). Francesca Fiorentini Ph.D. (University of Trento), is associate professor of Comparative Private Law at the University of Trieste, Department of Legal, Language, Interpreting and Translation Studies and was a Principal Investigator on the HEURIGHT ­Project. She is a former research associate at the Max-Planck-Institut für aus­ ländisches und internationales Privatrecht of Hamburg and former Marie Curie Fellow at the Zentrum für Europäisches Rechtspolitik (University of Bremen). She is a member of the ELI (European Law Institute), of the Italian Society for Research on Comparative Law (SIRD). She authored, among others, the book Le garanzie immobiliari in Europa. Studio di diritto comparato (Berne: Staempfli; Napoli: ESI, 2009).

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Michele Graziadei is full professor of Comparative Law at the University of Torino. He is the Pres­ ident of the Italian Society for Research on Comparative Law (SIRD) and a ­titular member of the International Academy of Comparative Law. He is the author or co-author of over 90 publications. His latest book, co-edited with Lionel Smith, is Comparative Property Law: Global Perspectives (Cheltenham/­ Northampton: Edward Elgar, 2017). Kristin Hausler Lic. iur. (University of Fribourg), LL.M. (University of British Columbia), is the Dorset Senior Research Fellow in Public International Law at the Brit­ ish Institute of International and Comparative Law, in London, and was a Principal Investigator on the HEURIGHT project. Kristin has also worked with Geneva Call on its work promoting the respect of cultural heritage by armed non-state actors. She is also a member of ILA Committee on Partici­ pation in Cultural Heritage Governance. Previously, she studied art history at Christie’s in New York and worked as a repatriation researcher at the Muse­ um of Anthropology in Vancouver, returning ancestral remains to Indigenous communities. Alicja Jagielska-Burduk Ph.D., MBA, is assistant professor and UNESCO Chair holder in Cultural Proper­ ty Law at the Faculty of Law and Administration, University of Opole, Poland. She is also the co-founder and editor-in-chief of the Santander Art and Culture Law Review. In the International Art Market Studies Association (TIAMSA) she co-chairs TIAMSA Legal. She specializes in cultural management, encompass­ ing the issues of participation and access to culture and cultural heritage. In 2014, the government of Poland nominated her as a mediator at the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation. Andrzej Jakubowski Ph.D. (European University Institute, Florence), is assistant professor at the In­ stitute of Law Studies of the Polish Academy of Sciences (Warsaw), and served as the HEURIGHT Project Leader. He also holds a MA in art history from the University of Warsaw and is Chair of the ILA Committee on Participation in Cultural Heritage Governance. He authored, among others, State Succession in Cultural Property (Oxford: Oxford University Press, 2015) and edited Cultural

Notes on Contributors

liii

Rights as Collective Rights – An International Law Perspective (Boston-Leiden: Brill-Nijhoff, 2016). Arjo Klamer is professor of Cultural Economics at the Erasmus University, Rotterdam. He has published extensively on cultural economics and has conducted sev­ eral studies on the financing of cultural heritage. Recently he served as the ­president of the Association of Cultural Economics International. He is the editor of The Value of Culture: the relationship between economics and the arts (Amsterdam: Amsterdam University Press, 1997), and most recently Doing the Right Thing: a Value Based Approach (London: Ubiquity Press, 2017). His cur­ rent research focuses on the cultural dimension of economic life and the val­ ues of art. Ewa Manikowska is associate professor at the Institute of Art of the Polish Academy of Sciences in Warsaw and was a member of the Polish team of the HEURIGHT project. She holds a European Doctorate in Social History and Mediterranean (University of Warsaw/Ca’ Foscari University, Venice). Her research interests focus on the history of collecting, survey photography, cultural heritage, and digitization. She is the main author of an innovative online database of a prominent Polish collection of survey photography. She has authored, among others, the book Photography and Cultural Heritage in the Age of Nationalisms. Europe’s Eastern Borderlands (1859–1945) (London: Bloomsbury Academic Publishing, 2018). Anna Mignosa is a lecturer at the University of Catania and a visiting lecturer at the Erasmus School of History, Culture and Communication, Rotterdam. She holds a Ph.D. from Erasmus University, Rotterdam, and a B.A and M.A. in Economics from the University of Catania. Her research interests focus on cultural economics, cultural heritage, and cultural policy. She co-edited, with Ilde Rizzo, the Handbook on the Economics of Cultural Heritage (Cheltenham: Edward Elgar, 2013). Paola Monaco Ph.D. (University of Palermo), is a post-doctoral fellow in Comparative Pri­ vate Law at the University of Trieste, Department of Legal, Language, Inter­ preting and Translation Studies and was a member of the Italian team of the HEURIGHT project. Her principal publications include papers on scientific

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evidence, gender equality, cultural indicators, as well as a monograph on toxic tort litigation in the United States legal system: La toxic tort litigation. Analisi e comparazione dell’esperienza statunitense (Napoli: ESI, 2016). Barbara Pasa Ph.D. (University of Trento), is full professor of Comparative Private Law at the IUAV University of Venezia. She is also a member of the Scientific Committee of the Archivio Progetti, one of the main Architecture and Design Archives in Italy for the twentieth and twenty-first century collections, and research fellow at the SSST, an institution of excellence and higher education for the ­University of Torino, a member of the ELI (European Law Institute) and the Italian Society for Research on Comparative Law (SIRD). Prior to joining the University of Venezia, she was associate professor at the Law Department of the University of Torino, holding the chairs of Comparative Law and European Private Law. Her research interests include artist’s archives, cultural and lan­ guage pluralism, consumer protection, and intellectual property rights. Krzysztof Pomian Ph.D. (University of Warsaw), is a philosopher and historian specializing in the socio-cultural history of France, Italy, and Poland. He served as director of research at the Centre National de la Recherche Scientifique (CNRS) in Paris. He is Emeritus Professor of the History of Culture at the Nicolaus ­Copernicus University in Toruń, Poland, and serves as chair of the Scientific Committee of the Museum of Europe in Brussels and as an editorial adviser to the journal Le Débat. He has edited and authored many books, among which are L’Europe et ses nations (Paris: Gallimard, 1990) and Des saintes reliques à l’art moderne. Venise-Chicago, XIIe-XXème siècle (Paris: Gallimard, 2003). Evangelia Psychogiopoulou Ph.D. (European University Institute, Florence), is a lawyer and senior research fellow at the Hellenic Foundation for European and Foreign Policy (ELIAMEP). She is also adjunct faculty member at the Hellenic Open University and a legal counsellor for the Greek Ministry of Culture and Sports. She holds a DEA in EU Law from the University of Paris I Pantheon-Sorbonne. She has worked for the Directorate General Education and Culture of the European Commission and is a former Marie Curie Fellow at the University of Maastricht. Her main areas of research are cultural governance, cultural diversity, media governance and fundamental rights in a European perspective. She has conducted research for the EU institutions and she has participated in several collaborative research

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projects funded by the EU and international organizations. Her publications include: The Integration of Cultural Considerations in EU Law and Policies (Leiden-Boston: Martinus Nijhoff Publishers, 2008) and Cultural Governance and the European Union: Protecting and Promoting Cultural Diversity in Europe (London: Palgrave Macmillan, 2015, ed.). Hanna Schreiber Ph.D., is assistant professor at the Faculty of Political Science and ­International Studies, University of Warsaw. She holds MA diplomas in Law (2005), Political Science (2006) and History (2010). She was a member since 2013 and vice-pres­ ident since 2016 of the Polish Intangible Cultural Heritage Council. Since 2018 she co-coordinates the Intangible Cultural Heritage Network within the Asso­ ciation of Critical Heritage Studies. She is the co-editor and author of, among others, two volumes: Culture(s) in International Relations (Frankfurt am Main – New York: Peter Lang, 2017), UNESCO Conventions in the Field of Culture. A Commentary, (in Polish; Warszawa: Wolters Kluwer P ­ ublishing, 2014). Hanna was a member of the Polish team of the HEURIGHT project. Cynthia Scott Ph.D. (Claremont Graduate University), is a historian and heritage scholar who served as an Associate Partner for the HEURIGHT project. Her research focus­ es on diplomacy, historical justice and memory in the museum and cultural heritage arenas. She authored, Cultural Diplomacy and the Heritage of Empire: Negotiating Post-Colonial Returns (London: Routledge, forthcoming). Cynthia’s career began at the Getty Information Institute, where she managed numerous projects and helped establish Object ID – the international documentation standard for identifying works of art in the event of theft. She is a member of the Association of Critical Heritage Studies, and is a referee for the International Journal of Heritage Studies. Amy Strecker is an assistant professor at the Department of Heritage and Society at Leiden University. Her research focuses on the interplay between landscape, heritage and human rights in international law, particularly in relation to spatial jus­ tice. Amy is currently working on a number of research projects, including an ERC-Synergy project (Nexus1492) in which she analyses the role of interna­ tional law in confronting the colonial past in the Caribbean. She is author of the book Landscape Protection in International Law (Oxford: Oxford University Press, 2018).

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Nout van Woudenberg is Strategic Policy Adviser Kingdom Affairs of the Ministry of Foreign Af­ fairs of the Kingdom of the Netherlands. He worked as Legal Counsel at the International Law Division of the same Ministry and in that capacity acted as vice-Chair and Chair of the UNESCO Committee for the Protection of Cul­ tural Property in the Event of Armed Conflict. He was also a member of the Dutch negotiation delegation on the return of cultural objects displaced dur­ ing WW II and a member of the OMC Working Group on Mobility of Collec­ tions (2008–2012). He authored, inter alia, State Immunity and Cultural Objects on Loan (Leiden-Boston: Brill, 2012) and holds a doctorate in international law. Alexandra Xanthaki is professor of Law at Brunel University London, where she is also the Director of Research. She is considered one of the leading scholars on Indigenous rights as well as cultural rights in international law. She authored, among others, Indigenous Rights and United Nations Standards: Self-Determination, C ­ ulture and Land (Cambridge: Cambridge University Press, 2007) and co-edited Indigenous Peoples’ Cultural Heritage (Leiden-Boston: Brill, 2017). Alexandra has close links with non-governmental organizations, has worked closely with the United Nations, and has advised several states.

Introduction Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini One of the effective ways to secure a future for a united Europe … or to put it more precisely, for the reunited Europe … is sharing of our past, of our memory, striving to unite.1 The European Union (EU) is still a relatively young project, legally, politically, and territorially. Having emerged from the post-Second World War’s traumas and hopes, and further developed during the Cold War, it was finally established following the fall of the Berlin Wall. It has long served as an anchor of peace in restless times, a symbol of the economic rebirth of its members, and of their prosperity and wellbeing. Unsurprisingly, its ‘successful struggle for peace and reconciliation and for democracy and human rights’ was emphasized by the Norwegian Nobel Committee, when awarding the EU with the Nobel Peace Prize in 2012.2 Indeed, the Committee underlined the value of the partnership and confidence between the ‘historical enemies’ France and Germany, and the EU’s contribution to the ‘introduction of democracy’ in Greece, Spain, and Portugal. The Committee also praised the strengthening of democracy in Eastern Europe after 1989 and overcoming of ‘the division between East and West’, and the contribution of the Union to the ‘process of reconciliation in the Balkans’.3 Accordingly, ‘[t]he stabilizing part played by the EU has helped to transform most of Europe from a continent of war to a continent of peace’.4 The significance of the undoubted success of the European project, notwithstanding recurring crises and disintegrative trends, lies not only in the role of the EU as a peace-maker and in the power of the EU’s economy. Indeed, the EU is also a sui generis legal space of security, stability, and justice, which many European societies had never experienced in the past. By bringing together distinct countries, their systems of law and governance, and their political traditions, the EU has created a unique, supranational polity.

1 Jorge Semprún (2005) in House of European History, Guidebook: Permanent Exhibition (EU Publ Office 2017) 146. 2 Norwegian Nobel Committee, ‘The Nobel Peace Prize 2012: European Union (EU)’ (12  ­October  2012) , ­accessed 9 February 2019. 3 Ibid. 4 Ibid.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_002

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However, the process of integration has always been contested. While the EU has reached a high degree of economic and legal cohesion, its cultural integration has long seemed to lie beyond the priorities of its Member States. It cannot be truly said that the EU easily bridges the variety of national and state identities, traditions, historical narratives, experiences, and mutually exclusive memory discourses. Nevertheless, from the very beginning the process of European integration was founded on a common European consciousness and the idea of Europe’s ‘common heritage’, reinforced and consolidated during the parallel processes of decolonization and the Cold War. Yet it is only since the creation of the Union, under the Treaty of Maastricht,5 that the common cultural action has gradually been concretized. Today, the EU coordinates, supports, and supplements, but does not harmonize, the policies and measures of its Member States in cultural matters, including special funding schemes designed to reduce regional disparities in wealth, income, and opportunities. In addition, the EU Member States are bound by the constantly evolving regime of the European Convention on Human Rights (echr),6 which today recognizes the spectrum of human rights attached to culture and cultural heritage. This human rights dimension will be strengthened when the Union accedes to the echr. The EU Member States are also parties to the vast international cultural heritage law instrumentarium. Thus, the EU’s approach to culture and cultural heritage involves both commonality and diversity, making the ‘European Cultural Space’ a unique phenomenon. This justifies a more coordinated common action on the part of the EU with respect to culture and cultural heritage, both in its internal and external dimensions. This novel holistic approach has recently been enhanced and promoted by the agenda for the European Year of Cultural Heritage 2018 (eych 2018),7 which emphasizes that cultural heritage is of great value to the societies of the continent from the cultural, environmental, social, and economic points of view. It also explicitly acknowledges that the sustainable management and governance of cultural heritage should constitute a strategic choice for the 21st century. In this regard, the eych 2018 constitutes a crucial response from the EU and its Member States to the current challenges faced by cultural heritage

5 Treaty on European Union, signed at Maastricht on 7 February 1992 [1992] OJ C191/1. 6 (Adopted 4 November 1950, entered into force 3 September 1953) 213 unts 221, as amended. 7 Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1.

Introduction

3

world-wide and the evolving understanding of cultural heritage governance, as substantiated in the UN 2030 Agenda for Sustainable Development,8 which explicitly acknowledges global citizenship, cultural diversity, and intercultural dialogue as overarching principles of international development and peaceful relations. At the same time, cultural heritage has become a key topic in the EU political and social discourse in light of the specific challenges faced by Europe and its societies: armed conflicts and humanitarian crises in neighbouring regions, migration, threats to democracy and to the EU legal framework and integrity (including Brexit), terrorism, populism, and economic difficulties. Unsurprisingly, culture and cultural heritage have also become the subject of rich scholarly investigation. However, while the topic of the EU and culture has intensively been studied in relation to cultural and linguistic diversity,9 the movement of cultural goods and cultural professionals, intellectual property and audio-visual industries,10 it still remains underdeveloped in relation to cultural heritage and its legal and policy operationalization. Scholarly research pertaining to the EU’s engagement with cultural heritage has so far focused on the protection and conservation of spiritual, artistic, and historical heritage, the promotion and enhancement of cultural production (creativity and cultural exchange etc.), and the development of cultural policies and new methods of decision-making.11 Values, meaning, and rights attached to cultural heritage to be protected and enjoyed by individuals and groups, other than nations, have hardly been analysed in the context of the EU’s model of legal, political, and social integration, although several studies have dealt with the issue of the 8 9

10 11

Transforming our World: The 2030 Agenda for Sustainable Development, unga Res A/RES/70/1 (25 September 2015). Hildegard Schneider and Peter van den Bossche (eds), Protection of Cultural Diversity from a European and International Perspective (Intersentia 2008); Ekavi Athanassopoulou (ed), United in Diversity: European Integration and Political Cultures (I.B. Tauris 2008); Elisabeth Prügl and Markus Thiel (eds), Diversity in the European Union (Palgrave Macmillan 2009); Julia Athena Spinthourakis, John Lalor, and Wolfgang Berg (eds), Cultural Diversity in the Classroom: A European Comparison (Springer 2011); Dieter Fuchs and Hans-Dieter Klingemann (eds), Cultural Diversity, European Identity and the Legitimacy of the EU (Edward Elgar 2011). For instance, see Annabelle Littoz-Monnet, The European Union and Culture: Between Economic Regulation and European Cultural Policy (Manchester University Press 2007). In particular, see Rachael Craufurd Smith (ed), Culture and European Union Law (oup 2004); Evangelia Psychogiopoulou (ed), Cultural Governance and the European Union: Protecting and Promoting Cultural Diversity in Europe (Palgrave Macmillan 2015); Evangelia Psychogiopoulou, The Integration of Cultural Considerations in EU Law and Policies (Brill 2008); Kiran Klaus Patel (ed), The Cultural Politics of Europe: European Capitals of Culture and European Union since 1980s’ (Routledge 2013).

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Jakubowski, Hausler and Fiorentini

cultural identity of the EU and its societies.12 Due to the changing paradigm of the EU’s action in relation to culture and cultural heritage towards participatory governance and efforts to build inclusive societies, there has arisen a need for a comprehensive approach to research the complex intersections of law, policy, and cultural heritage. Therefore, the present volume entirely ­focuses on and investigates how the EU frames and addresses cultural heritage in its law and policy. While acknowledging often contested conceptualizations of cultural heritage, it endeavours to map out how its evolving notion affects the forms of protection, access to, and governance of heritage, within the institutional, operational, and legal structures of the EU. In particular, it addresses the complex organizational and regulatory frameworks concerned with cultural heritage in place in the EU and its Members States, as well as their interaction, cross-fertilization, and possible overlaps. Hence this volume is designed to, on the one hand, comprehensively explore and substantiate the role of cultural heritage for regional European integration, and on the other to explain and debate the uniqueness of the EU model of cultural heritage governance vis-à-vis global efforts aimed at ensuring respect for and safeguarding cultural heritage and diversity around the world. It serves to further the study of cultural heritage governance in different contexts, such as sustainable development, international relations, and human rights. Drawing upon both theoretical and practical aspects of the EU’s action in the realm of cultural heritage, this volume offers insights on how heritage is currently defined, used, and managed in decision- and policy-making. The analysis in this book is built around four research questions which lie at the core of cultural rights and heritage studies. Each individual contribution endeavours to address them in a specific context or area of investigation. First, the book explores the values attached to cultural heritage on which the EU’s common action is based. In particular, it deals with the changing conceptualization of cultural heritage vis-à-vis societal, political, and legal challenges, both in Europe and globally. Who decides on the value of cultural heritage? Who are the stakeholders? Is a balance struck between the conflicting values of different stakeholders, and if so, how? Second, the volume examines how these values have been employed within both the internal legal governance of the EU and its external action on the global arena. Third, the place of cultural heritage within the human rights framework in Europe is analysed. While the human right to (access/enjoy/participate in) cultural heritage at the 12

See, for instance, Gerard Delanty, The European Heritage: A Critical Re-Interpretation (Routledge 2018); Richard McMahon (ed), Post-identity? Culture and European Integration (Routledge 2013).

Introduction

5

i­ nternational level can be described as adopting a people-centred understanding of cultural heritage, with an emphasis placed on the link between heritage and the rights of people, both individually and collectively, the present book considers whether and to what extent the human dimension of cultural heritage is recognized by the EU. Fourth, it seeks to assess how the EU protects, supports, and enhances cultural heritage and the human rights attached to it. In examining these issues, the volume also demonstrates the variety of approaches and methods applied to study the role of cultural heritage in the matrix of legal dimensions affecting the life of diverse societies of Europe. This book brings together a select group of contributors, including not only scholars within the field of international cultural heritage law, but also in cultural economics, as well as heritage professionals, government representatives, and historians. The diverse backgrounds of the authors, all renowned in their respective fields, offer a cross-disciplinary approach and a variety of views which bring together the latest developments on the topic of cultural heritage in Europe. The volume is thus not only the sum of sound academic research, but also the result of years of experience from some practitioners, leading to a comprehensive understanding of the key issues at stake. Part 1 of the volume, ‘Europe, the European Union, and the Concept of Cultural Heritage’, is designed to explore and substantiate the conceptualization of cultural heritage in the EU’s legal and policy agenda. The five chapters in this part deal with distinct elements of the operational notion of cultural heritage and explain how these components have been perceived and employed as unifying or linking factors in the European regional integration. The chapter by Cynthia Scott analyses the early invocation of notions of a shared, common, or European heritage by the European Communities in the 1970s and 1980s. Drawing on new distinctions being made in critical heritage studies around definitions of cultural diplomacy and heritage diplomacy, the chapter argues that in addition to stealthily gaining competence in the cultural sector, the European Communities began to lay the groundwork for a heritage diplomacy both in, and by, the EU; one which would take off in 1993. The next two chapters, by Andrzej Jakubowski and Evangelia Psychogiopoulou respectively, explore the place of cultural heritage within the EU’s legal and policy framework, considering its constitutional foundations, the splitting of competences between the Union and the Member States, as well as the variety of EU actions and policies over time. They explain how the legal notion of cultural heritage has gradually evolved and analyse the extent to which the socio-economic benefits of cultural heritage have been used and applied in a large number of policy areas – not confined only to culture – due to their contribution to social, (inter)cultural, political, educational, symbolic, economic, and environmental values. In turn,

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the chapter by Michele Graziadei and Barbara Pasa considers one of the key topics of the EU regulation in the realm of cultural heritage: the circulation of cultural objects in the EU internal market. In particular, this chapter focuses on the notion of ‘national treasures’ and on the strong role played by Member States in defining this notion. It underlines how the search for harmonization in this area has been pursued by techniques that differ from traditional staterelated law, such as through soft-law provisions like codes of ethics, guidelines, and best practices adopted by non-state actors (museums, professional associations, etc.); the Open Method of Coordination, which structures ­cooperation between Member States and the EU Institutions; and diplomatic actions for restitution. The last chapter in this part, by Mateusz Bieczyński, examines whether a ‘right to cultural heritage’, framed as a human right pertaining to individuals, has been recognized by the regional courts having jurisdiction over human rights matters: the European Court of Human Rights (ECtHR) and the European Court of Justice (ecj). After discussing the differences between these two tribunals in terms of their functions, competences, and reciprocal influence, this chapter analyses and compares their respective case law pertaining, directly or indirectly, to cultural rights and cultural heritage. Part 2, ‘Cultural Heritage and the European Union’s Economic and Social Development’, offers a comprehensive discussion on the contribution of cultural heritage to economic integration and the increase of wealth and opportunities not only within Europe and its societies, but also externally. Accordingly, its five contributions are focused on the issues of circulation of cultural objects and the development of heritage-oriented policies and industries, such as museums, exhibitions, trade, conservation, and education. This part also deals with methodologies to measure economic and social growth through access to and participation in cultural practices. The chapter by Paola Monaco scrutinizes measurement methodologies of economic and social growth through access to and participation in cultural practices. It reviews the EU experience of cultural statistics and indicators and discusses the principal international initiatives to measure the impact of culture on development. This make it feasible to consider the possible contribution these models could provide to current and future EU actions regarding culture and culture heritage in general. In turn, Arjo Klamer and Anna Mignosa depart from the premise that the EU policy has largely acknowledged the role that cultural heritage may play in supporting not only cultural identities and diversity, but also the economy, trade, and sustainable development. The authors present a new approach, stemming from cultural economics, called the ‘value based approach’, which may be used to select and realize any set of values in cultural heritage projects. The following contribution, by Francesca Fiorentini, presents the results of an empirical

Introduction

7

analysis of more than forty EC/EU Trade Agreements with third countries. It explores how culture, cultural diversity, and cultural heritage considerations have been dealt with, if at all, at the operative level within the wide array of EU Trade Agreements, and what effective use is currently being made of these notions in the context of the EU Common Commercial Policy. Next, the chapter by Nout van Woudenberg covers the issue of collections’ mobility (comprising art loans), which is a crucial way for the public to not only become acquainted with foreign cultures, but also with their own common cultural heritage. The idea of collections’ mobility mirrors the EU’s fundamental principles, such as free ­movement of persons, goods, services, and capital. As the notion of the mobility of collections has been a key issue within the EU since 2003, the particular focus of this chapter is on the legal developments pertaining to this issue within the EU, providing a clear picture of the situation at the EU level. It also analyses the relevant provisions of the UN Convention on Jurisdictional Immunities of States and Their Property,13 scrutinizes the most recent and significant developments within EU Member States and Council of Europe, and recalls the works by the International Law Association. Next, the contribution by Alicja Jagielska-­Burduk deals with the ‘Europeanization’ of education systems and programmes in the EU, highlighting its key characteristics and drawbacks. In this regard, the concept of common heritage is acknowledged as one of the pillars of the integrated approach to cultural heritage. Together with copyright law, it becomes more and more visible in the education policies and programmes of the EU Member States, as developing culture awareness among citizens is the first step to enhancing sustainable development in EU countries. Hence this chapter analyses how the EU’s governance in the realm of education embodies and fosters the idea of Europe’s cultural heritage as an element of greater societal integration, economic development, and intercultural dialogue. The final part of this volume (Part 3), ‘Cultural Heritage and the European Union: New Frontiers’, discusses the new extended boundaries of cultural her­ itage governance by taking a holistic and anthropological approach to heritage, emphasizing its role in realizing fundamental rights and fostering the creation of more inclusive societies. The chapter by Alexandra Xanthaki analyses minority and Indigenous cultural heritage and considers whether the EU’s legal framework is adequate to protect their rights to their cultural heritage, and/ or whether a gap can be identified. Next, Alessandro Chechi analyses EU law and policy in relation to migrants’ cultural heritage and cultural rights, seeking to identify whether the cultural heritage of migrants, as well as their human 13

(Adopted 2 December 2004, not yet in force) UNGA Res A/Res/59/38.

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rights associated with such heritage, is sufficiently recognized, promoted, and protected by the EU. While the initial two chapters in this part of the volume consider the rights of migrants, minorities, and Indigenous peoples to their cultural heritage, the other four contributions substantiate the new ‘spatial’ dimensions of cultural heritage: intangible manifestations, cultural landscapes, cultural diplomacy, and digital heritage. Hanna Schreiber presents an interdisciplinary analysis of institutional, political, and legal frameworks adopted in the field of implementation of the concept of intangible cultural heritage (as defined by unesco) in Europe as a region, at the level of both the Member States of the EU as well as at the level of EU institutions. She argues that the great potential of bringing intangible cultural heritage to the EU level has not been adequately addressed yet. Hence this chapter seeks to find the reasons for this state of affairs, as well as to identify the challenges and inherent risks stemming from the possible greater visibility of intangible cultural heritage in Europe and in the EU as an organization. Kristin Hausler discusses how the EU has gradually integrated the use of cultural heritage within its external action, pointing to the various diplomatic goals this has sought to achieve, and considering its ‘strategy for international cultural relations’, which recently adopted a ‘people-to-people’ approach. This analysis includes both policy and legal actions, while also looking at the relevant human rights framework in order to assess whether the EU’s inclusion of cultural heritage in its external action plays a role with regard to its Member States’ obligations in relation to the international human right to access and enjoy cultural heritage. This contribution also seeks to assess whether the use of cultural heritage by the EU in its external relations can be strengthened, and if so, how. In the following chapter Amy Strecker critically analyses cultural landscape protection in the EU. She explains that while the EU does not have specific competence in the field of culture, it nevertheless has a wide remit in the field of environmental protection, and it is here that the scope for the protection of cultural landscapes is the widest. In particular, environmental impact assessment directives include the requirement to assess the effects of projects not only on environmental elements, but also on cultural heritage and the landscape. However, she argues that the conceptualization of landscape within the EU is still a rural, scenic one, rather than connoting the various ways in which people interact with and relate to cultural landscape. In addition, access to justice remains a problem for landscape matters not related to environmental breaches but cultural ones. The last part of the volume concludes with a chapter by Ewa Manikowska which illustrates the development of a coherent EU digitization policy. The author argues that the giving of new

Introduction

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digital life to European museums, libraries, and archives was certainly intended not only to improve the preservation of and access to cultural heritage, but also, and importantly, to reinforce Europe’s symbolic prestige, cultural status, and economic influence both within the EU – promoting integration in the context of past and future enlargement processes – and in the global arenas, in the context of the cultural and economic competition between Europe and the US. She also questions the capability of the top-down approach of the current EU digitization policy to contribute to a European identity and culture, due to its detachment from heritage meanings and values. Last but not least, the volume offers a comprehensive summary of the research discussed within each thematic part. It also provides a set of recommendations on how the EU’s current involvement in cultural heritage should be improved and fostered in light of the agenda for the eych 2018 and the role of the EU for better cultural heritage governance for the benefit of individuals and heritage communities. The diverse contributions to this volume aim to address the complex interdisciplinary debates in the field of cultural heritage within the EU, a unique supranational system of regional integration which continuously seeks to position itself as a global actor. In addition to framing its analysis of the EU context in light of the latest developments and initiatives undertaken at the universal level with regard to cultural heritage, this volume responds to the current challenges threatening the functioning of the EU, and thus of the world – such as the migration ‘crisis’ for example. In this regard, it seeks to substantiate the axiological, political, and societal considerations driving the EU’s involvement in cultural heritage, both regionally and globally. It is hoped that this volume will in turn contribute to strengthening the role of cultural heritage for international peace and security, sustainable development, and a better understanding among people, both within Europe and beyond.

Part 1 Europe, the European Union and the Concept of Cultural Heritage

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Chapter 1

Conceptions of a Shared, Common, or European Heritage in the Emerging Heritage Diplomacy of the European Union, 1973–92 Cynthia Scott 1 Introduction The EU has long faced the challenging necessity of forging ‘a popular sense of belonging and loyalty to EU institutions and ideals’ for achieving the goal enshrined in the 1957 Treaty of Rome,1 and echoed in successive treaties, of ‘ever-closer Union among the peoples of Europe’.2 The acquisition of democratic legitimacy and authority—keys to its ultimate success—depends on the EU’s ability to instil a European collective identity that can withstand the loyalties of its members to their respective nationalities. Despite having established the economic and legal underpinnings of a future trans-national state—through the Single European Act of 19873 and the Maastricht Treaty of 19924—some have said that ‘the EU conspicuously lacks … a common culture around which Europeans can unite’.5 However, ever since EU policy makers turned to the question of how to forge a European identity that would support the integration process, they have invoked conceptions of a shared, common, or European heritage. Cultural, social, and political theorists have f­ollowed by tracing the appearance of such concepts in EU policy initiatives and programmes.6 While generally agreeing on the genealogy of cultural language, 1 Treaty Establishing the European Economic Community (Treaty of Rome) (signed 25 March 1957, entered into force 1 January 1958) 298 unts 11 (eec Treaty). 2 Cris Shore, Building Europe: The Cultural Politics of European Integration (Routledge 2000) 21. 3 The Single European Act [1987] OJ L169/1 (amending the eec Treaty). 4 Treaty on European Union, signed at Maastricht on 7 February 1992 OJ C191/1 (Maastricht Treaty). 5 Shore (n 2) 18. 6 See Bruno De Witte, ‘Building Europe’s Image and Identity’ in Albert Rijksbaron, WH Roobol, and M Weisgalss (eds), Europe from a Cultural Perspective (Nijgh & Ditmar Universitair 1987) 121–51; Soledad García (ed), European Identity and the Search for Legitimacy (Pinter 1993); Bo Stråth, ‘A European Identity: To the Historical Limits of a Concept’ (2002) 5(4) European Journal of Social Theory 387–401.

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they s­ ometimes d­ iffer in their interpretations of how that language has been given meaning over time. Recently, for example, some have noted a shift from an original focus on unity—or ‘a common European heritage’—to a greater stress on diversity over unity, and then, from an emphasis on diversity, toward a synthesis of ‘unity in diversity’.7 Others have found a remarkable ‘resilience’ over the decades in ‘the celebration of a historically deeply rooted European unity’ by EU institutions, Member States, and actors outside the EU.8 Nevertheless, regardless of whether cultural programmes have emphasized unity, ­diversity, or unity in diversity, an underlying strategy has remained fairly consistent. When looking at the historical emergence of the EU’s deployment of such terms one finds the beginnings of a dual effort to project a unified ­European identity, both inside and out. However, rather than imposing the specific content of the European identity, EU institutions have involved others in defining and promoting it instead.9 To help further an understanding of how they did this, this Chapter re­visits some of the earliest invocations of a shared, common, or European cultural heritage in documents of the European Community (EC).10 Tracing the origins of these conceptions in the period between 1973 and 1992 reveals that ideas of heritage, as a source and basis of identity, were increasingly mobilized and paired with ideas about the preservation of the cultural past. This Chapter therefore traces when these ideas were mobilized and why, and in so doing demonstrates that the need to ‘promote Europeanness’ ended up becoming a foundation for the emergence in the EU of an internal and external her­itage diplomacy. This historical perspective is significant because it helps cut through some of the complexity of present-day policies. The designation of 2018 as European Year of Cultural Heritage,11 for example, is one of the most recent EU efforts to connect European identity with cultural heritage preservation and promotion. It illustrates that, at this point, the role of the EU in the realm of cultural heritage is largely taken for granted; as is, perhaps, the stunning breadth of the goals the initiative envisions achieving. Ranging from 7 8 9 10

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Monica Sassatelli, Becoming Europeans: Cultural Identity and Cultural Policies (Palgrave 2009). Oriane Calligaro, Negotiating Europe: EU Promotion of Europeanness since the 1950s (Palgrave MacMillan 2013) 29–30. Ibid 16. The term European Community or ‘EC’ refers to the European Communities, which developed after the Second World War out of the European Coal and Steel Community (ecsc) and the European Economic Community (eec). Its successor, the European Union or ‘EU’, replaced it in 1992 via the Maastricht Treaty. ceu, ‘European Year of Cultural Heritage in 2018: Celebrating the Diversity and Richness of Our European Heritage’ (9 February 2017) Press Release 52/17.

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promoting ‘cultural diversity, intercultural dialogue and social cohesion’, to highlighting economic benefits and the role of cultural heritage in external relations, the EU appears to be thoroughly embedded in global networks of cultural heritage governance. As the following historical analysis shows, it has not always been this way. 2

Cultural Heritage and the EU: A Search for Origins

It is commonly understood that the EU’s formal involvement with culture came in 1992 with the Maastricht Treaty, which sought ‘to make the EU seem more relevant and useful to ordinary people’ by redefining or expanding ‘Community competence in a number of policy areas’, including culture.12 As a result, at least since the late 1990s all of the Culture Programmes of the EU—from Raphael (1997–99), to Culture 2000 (2000–06), Culture 2007–13, and Creative Europe (2014–20)—have been ‘informed by [the Maastricht Treaty’s] explicit rhetoric that: “the Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore”.’13 However, it has been noted that when drafting the Treaty little thought had been given to what the term ‘common cultural heritage’ actually meant.14 Rather than try to pinpoint a precise or original definition of the concept, the following traces when it began to be used, and for what purposes, starting long before the Maastricht Treaty. In the preceding decades of the 1970s and 1980s, culture had been excluded from treaties establishing the first EC, and when an interest in culture did arise it remained, according to Sassatelli, ‘a very marginal and disguised sector of intervention which had to “pass” under some of the statutory fields of competence it actually exceeded, notably economic and social policies’.15 However, the 1973 EC Declaration on European Identity signed in Copenhagen16 marked

12 13 14 15 16

Desmond Dinan, Europe Recast: A History of the European Union (Lynne Rienner Publishers 2004) 253. Elisabeth Niklasson, ‘Funding Matters: Archaeology and the Political Economy of the Past in the EU’ (PhD thesis, Stockholm University 2016) 27. Ibid 102. Citing: Evangelia Psychogiopoulou, Integration of Cultural Considerations in European Union Law and Policies (Brill/Nijhoff 2008) 29. Sassatelli (n 7) 49. ‘Summit Conference of the Heads of State or Government of the Member States of the European Community, Copenhagen, 14–15 December 1973. Declaration on European Identity’ (1973) 12 EC Bull 118 (Declaration on European Identity).

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the start of the EC’s public use of the closely related concept ‘European identity’ as a tool of legitimization. In Sassatelli’s analysis, a feeling that something fundamental towards [building a ‘community of destiny’ was] still missing start[ed] to spread and [it] eventually becomes identified as a problem of identity—hence the discourses and initiatives meant to create it or, better, to awaken it from its allegedly latent state [that followed.]17 Notably as well in this period, despite the addition in 1973 of three new ­members—from the original six states (Belgium, the Federal Republic of ­Germany, France, Italy, Luxembourg, and the Netherlands), to nine (including Denmark, Ireland, and the United Kingdom)—Europeanization, expanding supranational influence, and the widening of competencies through the European Economic Community (eec) had seemed to have stalled. 3

Promoting the European Identity Abroad

What comes across in a close reading of the Declaration on European Identity, however, is that rather than solely aiming to address questions of internal legitimization, the effort to define the European identity was primarily seen as a way of helping the EC strengthen the position of a ‘United Europe’ internationally. As the document states, one of its aims was ‘to achieve a better definition of their relations with other countries and of their responsibilities and the place which they occupy in world affairs’.18 The work to be done in defining the European identity, therefore, would soon include, according to the Declaration, ‘reviewing the common heritage, interests and special obligations of the Nine’, so as to assess and understand the ‘degree of unity so far achieved’, and the extent to which the Nine were ‘already acting together’ in world affairs.19 In other words, the Declaration not only emphasized the need to elaborate a unified European identity for the purposes of internal legitimization, it asserted the need to do so in order to strengthen the Member States as a unified player internationally. Reflecting the deep concerns of EC members about the state of international affairs, the Declaration voices the vulnerability felt by leaders of some 17 18 19

Sassatelli (n 7) 49. Declaration on European Identity. Ibid 119.

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countries to global transformations taking place in the period. For example, the strongest justification the text gives in support of its call for unification around a common European identity can be seen in its candid acknowledgment that the parts to be played by individual European countries in influencing the international scene, let alone in resolving international problems, had been severely diminished and replaced by those of far fewer ‘great powers’.20 The entire second section is then devoted to elaborating how the consolidation of ‘the European Identity’ would support and strengthen the role of the Nine members as a whole in world affairs.21 However, in its call for a review of the common heritage the Declaration did not define what was meant by the term ‘heritage’, nor did it pair ‘heritage’ with the term ‘cultural’. This is particularly significant given that the text of the Declaration strove to give substance to the common elements making up ‘the European Identity’. Rather, starting with an attempt to resolve the contradictory need for unity in the face of radical historical disunity and diversity, the Declaration asserted that Europe (of the Nine) shared ‘a basic European necessity to ensure the survival of the civilisation which they have in common’— which meant respecting ‘the cherished values of their legal, political and moral order’—while preserving ‘the rich variety of their national cultures’.22 Thus in the language of the Declaration, what constituted the unique and dynamic ‘European Identity’ at that time was: the diversity of cultures within the framework of common European civilisation, the attachment to common values and principles, the increasing convergence of attitudes to life, the awareness of having specific interests in common and the determination to take part in the construction of a united Europe.23 In other words, the Declaration saw an all-encompassing civilizational unity as being more fundamental than political and cultural differences, which could be contained within the whole. At the same time, the text hinted that the future transmission of this identity would eventually require an internal review of the ‘common heritage’. There was precedent for the argument that a review of the common her­ itage called for in the Declaration meant that European identity would reveal a 20 Ibid 119–20, and 120. 21 Ibid 120–22. 22 Ibid 119. 23 Ibid.

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common civilization emerging from the diversity of cultures within.24 As others have recalled, this formulation originally came from the Council of Europe’s (CoE) ideas on heritage, especially the 1954 European Cultural Convention,25 which sought to foster more unity among members and encourage learning about the common civilization between them. This included ideals and principles, as well as ‘objects of European cultural value’, as integral parts of the common cultural heritage of Europe.26 Yet, it seems that the idea of promoting a unified European identity had taken on new urgency in the face of global economic recession in the early 1970s. The Community now stressed a review of the common heritage not only to foster unity among CoE members through mutual learning, but in order to project a united front to the rest of the world. Three years later, in 1976, integration through cultural action was further supported by the influential Report on European Union by Leo Tindemans, which included a chapter on the EC’s public image entitled ‘A Citizen’s Europe’.27 In this text, Tindemans suggested that European identity needed to be promoted and advanced as part of political integration, and that something needed to be done to create a people’s Europe, since it would not ­develop naturally from the technocratic approach.28 To Sassatelli, the effect of the Tindemans Report can be seen in retrospect as having legitimized the EC as an actor in cultural matters, and introduced into the EC language the undefined notions of ‘European identity’ and even ‘European culture’.29 In my reading, however, the Tindemans Report also reinforced the 1973 Declaration’s call for the further uniting of Europe in order to bolster its position in world affairs. It advocated connecting the uniting in external relations more closely to the felt sense of that need—that is, to connect it to ‘our vulnerability and our relative impotence’—among the people of the Community’s member countries.30 This bridging to the people was new and, as will be demonstrated below, it set in motion what would become a new kind of cultural policy making aimed at reaching the people of Europe through efforts in the ‘cultural sector’.

24 25

Niklasson (n 13) 78. European Cultural Convention (adopted 19 December 1954, entered into force 5 May 1955) ets 018 art 1. 26 Niklasson (n 13) 78, citing: European Cultural Convention art 1. 27 Leo Tindemans, ‘European Union: Report by Mr Leo Tindemans, Prime Minister of Belgium, to the European Council’ (1976) 1 EC Bull Supplement 14 (Tindemans Report). 28 Sassatelli (n 7) 49. 29 Ibid. 30 Tindemans Report 14.

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Projecting the European Identity Within

Similar to the Declaration of European Identity, for example, the section on ‘A Citizen’s Europe’ claimed that unifying Europe had a double-edged rationale: first to bring European countries together in a way that would help them adapt to changing conditions around the world; while at the same time holding on to ‘those values which are their common heritage’.31 Internally, in order for Europe to ‘be close to its citizens’, Tindemans argued that it would need to set its sights first on protecting the rights of Europeans—beyond those protections offered by individual states—and second, to provide more tangible ‘external signs’ of European solidarity in the day-to-day lives of its people.32 When it came to rights, Tindemans emphasized the gradual increase of powers in the European institutions to ensure fundamental rights and freedoms, especially economic and social rights, consumer rights, and environmental protection. In the area of ‘external signs of solidarity’, however, Tindemans highlighted the need to open up the movement of persons across the borders of member countries, to create uniformity of passports and eventually a passport union. In the latter aspect, and with regard to culture, Tindemans extended the elimination of borders to include educational matters such as the promotion of student exchanges, and creating equivalencies of diplomas and studies across educational systems. This, Tindemans claimed, would help widen the scope for personal understanding of the wider European reality, languages, and cultures, the latter of which he saw as constituting ‘the common heritage which the European Union aims specifically to protect’.33 So while the bulk of the Tindemans Report reinforces the Declaration’s emphasis on external relations, in ‘A Citizen’s Europe’ it reverses the direction toward which the emerging European identity should be projected, from a main concern with external relations to the internal relations between member countries and their citizens. In a sense, the call on member governments to foster agreements between universities and educational institutions around student exchanges, and the reciprocal legal recognition of studies in different sectors, added a new dimension to the traditional elements found in cultural relations agreements between various countries. However, Tindemans made a further plea to better present to public opinion in Europe (of the Nine) ‘our common activity’, and to link such communications—through greater collaboration of the media—to the policy making that went on every day and to the 31 Ibid 26. 32 Ibid. 33 Ibid.

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greater vision of a European construction that the people would inherit.34 The Tindemans Report has been seen as marking the beginning of an incremental adoption of a cultural policy, which was in line with a style of EC policy making in sectors in which it lacked clear competence and which were sensitive to national identities and sovereignty.35 What I would add is that, when seen within a wider scheme of an emerging ‘heritage diplomacy’, this internal focus now complemented the external by promoting the European identity within the countries of a unifying Europe. 5

Towards a Community Role in Heritage Diplomacy

Other texts emphasized both aspects. For example, in the aftermath of the Tindemans Report, and following a European Parliament Report of 13 May 197436—which sparked ‘preparations for Community action in the cultural sector’ by the Commission of the European Communities and included funding for experiments—the European Commission made the 1974 Recommendation to Member States Concerning the Protection of the Architectural and Natural Heritage37 (Recommendation) in which it highlighted strengthening external cooperation with the United Nations Educational, Scientific and Cultural Organization (unesco) and the CoE. Here, the Recommendation drew attention to developments in these bodies and urged Member States to participate in order to do more to preserve the architectural and natural heritage.38 Toward this end, it urged Member States in the Community to sign or ratify before the end of 1975 the 1972 unesco Convention on the Protection of the World Cultural and Natural Heritage39 and to support the CoE’s actions surrounding its European Architectural Heritage Year of 1975.40 Here it should be noted that the term ‘heritage’ itself was only recently entering into the language of cultural policy or international discourse, especially through the 1972 unesco World Heritage Convention. Yet, it became 34 35 36

Ibid 27. Sassatelli (n 7) 49. Report by Lady Elles on the protection of the European cultural heritage in Minutes of the sitting of Monday, 13 May 1974 [1974] OJ C62/1. 37 Commission Recommendation (eec) 75/65 of 20 December 1974 to Member States concerning the protection of the architectural and natural heritage [1975] OJ L21/22. 38 Ibid. 39 Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 unts 151. 40 Rec (eec) 75/65.

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s­ omething the Community began to take up despite the fact that at that point it had no authority over the Member States in the area of cultural heritage preservation. However, having conducted studies on environmental problems that included architectural and natural heritage in urban and regional contexts, the Commission had found a way to make a connexion between the architectural and natural heritage, and the promotion of Europe’s cultural identity. This becomes clearer if we draw on Winter’s formulation that: heritage diplomacy extends beyond the use of culture as a tool for international public and political relations; it acts as an arena of governance, one that crosses borders, and becomes politicised as it straddles sectors as diverse as architectural conservation, social development and postdisaster reconstruction. In this regard, heritage diplomacy can broadly be defined as a set of processes whereby cultural and natural pasts shared between and across nations become subject to exchanges, collaborations and forms of cooperative governance.41 A tentative emergence of such cooperative governance can be seen in the Recommendation, as the Commission began to assert itself as an intermediary in the cultural relations of Member States, not only by promoting internal action, but by encouraging concerted heritage-related actions internationally. On the one hand, it may have been thought that this would help promote a European cultural identity, but looking back we can see that it marked the Community’s increasing participation in the international networks of heritage governance, which had been expanding apace since the end of the Second World War.42 So, it can be said that with this move the Community edged closer to what can now be seen as an early stage of an emerging heritage diplomacy. A further example that illustrates the Community’s budding participation in heritage diplomacy can be seen in the more internally-oriented Commission Communication entitled ‘Community Action in the Cultural Sector’ (1977 Communication), which emerged three years later.43 In its preliminary remarks, the text defined the ‘cultural sector’ as ‘the socio-economic whole formed by persons and undertakings dedicated to the production and distribution of cultural goods and services’.44 It justified Community action here by 41 42 43 44

Tim Winter, ‘Heritage Diplomacy’ (2015) 21 ijhs 1007. Ibid 1000–06. Commission of the European Communities, ‘Community Action in the Cultural Sector. Commission Communication to the Council, Sent on 22 November 1977’ com (77) 560 (1977) 6 EC Bull Supplement. Ibid 5.

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being ‘centred on solving the economic and social problems which arise in this sector as in all others [… and aiming] to support culture by gradually creating a more propitious economic and social environment’.45 Careful to appear to remain within the bounds of EC competence at that stage, it stated that ‘Community action in the cultural sector [… did] not constitute a cultural policy’ per se, since the cultural sector did not constitute ‘culture itself’. ­Calligaro elaborates at length on the hesitancy around this early foray into the area of culture.46 Yet the 1977 Communication illustrates that, in addition to demonstrating the Community’s move into the realm of cultural policy, it also began setting the stage for an internal heritage diplomacy, still defined along the lines framed earlier by Tindemans in ‘A Citizen’s Europe’, and the 1973 Declaration on European Identity. Tellingly, for example, despite having stated that its actions would not constitute a policy on culture, the 1977 Communication envisioned a broader role for the Community in the advancement of architectural heritage preservation, cultural exchanges, cooperation with the cultural institutes of the Member States, and their ‘socio-cultural activities at the European level’.47 As part of its emerging internal heritage diplomacy as well, the 1977 Communication asserted that these efforts would continue to help promote the European identity by showing people through various ‘exchanges’—even pressing museums into creating ‘European rooms’—the ‘cultural similarities, links and affinities between all the countries and regions of the Community and, at the same time, the various national and regional contributions to that culture’.48 The aim of all of this would be, in accordance with the suggestions made in the Tindemans Report, to make citizens aware of the European identity, promoted across Europe by the mass media.49 At the same time, the 1977 Communication50 emphasized more explicitly than before the Community’s increasing participation in external heritage diplomacy. For example, the text asserted, its actions in this sphere would strengthen ‘cooperation between the Community and the international organizations concerned with culture’.51 Playing a mediating role in the space between the intergovernmental organizations and Member States as well, it further recommended support of the CoE and unesco initiatives, including 45 Ibid. 46 Calligaro (n 8) 99–101. 47 com (77) 560, 19. 48 Ibid 21. 49 Ibid 25. 50 Ibid 5. 51 Ibid 5–6.

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the CoE’s 1969 Agreement on the Protection of the Archaeological Heritage,52 and the 1970 unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.53 In a cautious note, it clarified that the Community and the CoE would focus on their own respective spheres related to culture, with the CoE furthering research on culture itself, and the Community focusing on practical issues such as taxation, copyright law, and the practical benefits of preservation based on the CoE’s measures.54 Here, the text emphasized that action in the cultural sector by the Community consisted of merely applying the eec Treaty, thereby involving ‘freedom of trade, freedom of movement and establishment, har­ monization of taxation systems and legislation’.55 At the same time, however, it seems that economic and social measures, though not ‘cultural activities or policies’ per se, were contributing to what today can be understood as aspects of the growing system of heritage governance and therefore, the beginning of EU heritage diplomacy. In other words, in this document we can see a further integration of the EC into that emerging system. 6

Emboldening Claims to a Community Heritage Diplomacy

Reinforcing this trend in 1982, a subsequent Commission Communication, entitled ‘Stronger Community Action in the Cultural Sector’ (1982 Comm­u­ nication),56 delivered a five-year assessment of efforts made in response to the previous Communication of late 1977 and to propose stronger Community action in the cultural sector. It noted that Parliament had set aside funds for these activities, resulting in an increase from 20,700 eua in 1976, to 686,500 ecu in 1982, mainly for ‘community grants’ for training and events.57 In this document, Community action again centred on advancing and improving freedom of trade, conditions of cultural workers, the expansion of a­ udiences, 52

European Convention on the Protection of the Archaeological Heritage (adopted 6 May 1969, entered into force 20 November 1970) ets 066. 53 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 unts 231. Cited in: com (77) 560, 9. 54 com (77) 560, 6. 55 Ibid 7. 56 Commission of the European Communities, ‘Stronger Community Action in the Cultural Sector. Communication from the Commission to the Council and Parliament, Transmitted on 12 October 1982’ com (82) 590 final 6 EC Bull Supplement 2. 57 Ibid.

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and conservation of the architectural heritage.58 It also introduced the idea that the concept of ‘national heritage’ should slowly be expanded into a new concept of European or ‘Community heritage’ for works of art that could be moved from one country to another without feelings of loss to the originating country, although this was not elaborated further.59 Again, rather than admit involvement in cultural policy making, let alone heritage diplomacy, the 1982 Communication justified the Community’s role in conserving the architectural heritage on the basis that it contributes ‘to a rich resource that generates economic activity’ specifically, tourism, scientific research, art publishing, etc., and that conservation constituted a viable economic activity for firms and workers undertaking it.60 In 1987, a third Commission Communication, entitled ‘A Fresh Boost for Culture in the European Community’ (1987 Communication),61 pushed further and finally provided a framework programme, or plan of action, for culture in the EC for the period 1988 to 1992. It included the increasingly familiar blend of both internal and external activities that can be recognized now as foundational to the emergence of heritage diplomacy. These were, for example, creating a ‘European cultural area’, promoting the European audio-visual industry, expanding access to cultural resources, training for cultural sector workers, and opening a ‘dialogue with the rest of the world’.62 However, while the basic outlines of the framework programme reflected the economic imperative, it also renewed the emphasis on promoting, both internally and externally, a European identity consisting of a values- and diversity-based common cultural heritage. Externally, for example, the inclusion in the framework programme of the category ‘Dialogue with the rest of the world’ marks a return to sentiments expressed in the 1973 Declaration on European Identity, which aimed at furthering acceptance of ‘the European identity’ in the international domain. Here, the text emphasizes the need and justification for: greater coherence within the Member States regarding cultural exchanges outside the Community … so that, at a time of widespread austerity, the efforts of various public and private bodies within the Community 58 59 60 61

Ibid 4. Ibid 5. Ibid 18. Commission of the European Communities, ‘A Fresh Boost for Culture in the European Community. Commission Communication to the Council and Parliament Transmitted in December 1987’ com (87) 603 4 EC Bull Supplement. 62 Ibid.

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can be combined to present various facets of European culture to the world at large and, conversely, to promote a cultural picture within the Community of the non-member countries with which it enjoys close relations.63 At the same time, however, the 1987 Communication’s promotion of heritage diplomacy internally was reinforced by Carlo Ripa di Meana, Member of the Commission with special responsibility for culture, when he asserted in the text’s Foreword that the need for increasing cultural activity had become ‘a political as well as a social and economic necessity’ in light of the dual goals of ‘completing the internal market by 1992 and progressing from a People’s Europe to European Union’. Here, Ripa di Meana went further than the previous communications, by claiming a cultural basis for both European identity and union, and that a felt sense of the European identity by the public would garner support for the creation of the internal market. Towards this end he boldly asserted that: Europe’s cultural identity is nothing less than a shared pluralistic humanism based on democracy, justice and freedom. Expressed in the diversity of our local, regional and national cultures, it [furthermore] is the basis for European Union, which has goals other than economic and social integration … [i]t is this sense of being part of a European culture which is one of the prerequisites for the solidarity which is vital if the advent of the large market—and the resulting radical changes in living conditions within the Community—is to secure the popular support it needs.64 With these claims, alongside a role in heritage diplomacy that had been largely self-appointed, the 1987 Communication further inflated a sense of the Community’s duty to foster it within. Such exaggerations can be seen elsewhere in the text, for example, when it asserts that the Community’s involvement with culture constituted a response to the demands of citizens of the Member States, and warns that there was a: growing concern within the Community as to the future of cultural cooperation in Europe. This concern reflects an increasing awareness of what is at stake in the interrelationship between the economy, technology 63 64

Ibid 24–25. Ibid 5.

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and culture. The debate as to whether or not the Community has the ­necessary competence to intervene cannot hide the growing clamour from its citizens to participate in cultural life or their demand for new mechanisms for exchanges and cooperation in this area. The Community’s governments and institutions must give a positive answer to the legitimate expectations of the people of Europe.65 Along with justifying strongly the Community’s internal cultural interventions in this way, the 1987 Communication also returns to a call elaborated in the 1973 Declaration on European Identity for the goals of the EU to encompass more than simply economic and social integration. However, now they were to foster heritage diplomacy internally by promoting a sense of ‘a common cultural heritage’ made up of the values of inhabitants, ‘characterised by dialogues and exchanges between peoples and men of culture based on democracy, justice and liberty’, and expressed in the ‘diversity of our local, regional and national cultures’. Most importantly within the text, this promotion would secure popular support for ‘the advent of the large market … and the considerable changes it will bring …’.66 This binding together of the terms, ‘common’, ‘cultural’, and ‘heritage’, leads later in the text to stressing the need to further link Community information, communication, and culture policies within the process of creating ‘a European area based on common cultural roots as well as social and economic realities’.67 Finally, reflecting the flexibility and complexity of the emerging networks of the international heritage governance system—of which the Community was increasingly becoming a part—the text describes the variety of levels on which projects would be carried out. Some were to be treated as being ‘within the Community framework’, while others were seen as part of a ‘coordinated effort between member states, or within a context of European cultural cooperation’.68 These aims—and the 1987 Communication’s call to give cultural activities a higher profile—reinforce the sense of an emerging heritage diplomacy directed both internally and externally and tied to other heritage governance networks. What it does not account for, however, is the new boldness of the Commission’s aspirations in the area of heritage diplomacy.

65 Ibid 6. 66 Ibid 7. 67 Ibid. 68 Ibid 9.

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Expanding Cooperation and Exchange

To trace the origins of the Commission’s diplomatic ambitions around heritage governance we need to look at several incremental developments which took place prior to the 1987 Communication that strengthened its growing convictions. According to Niklasson, in 1982 overall funding for culture and heritage had nearly doubled—from 686,500 ecu, to 1.3 million ecu—and the EC had expanded further via the accession of Greece, Spain, and Portugal, countries which were supportive of an EC cultural policy.69 More specifically, ­funding initiatives were aimed at archaeological restoration projects and professional heritage training schools, including, in 1983, two new endeavours supporting the Parthenon in Athens (500,000 ecu) and the European Historical ­Monuments and Sites Fund (ehmf) (220,000 ecu).70 Funding was based on a 1982 European Parliament Resolution on Architectural and Archaeological Heritage, which emphasized its ‘“importance … for our European culture and history and awareness of our European identity” and the “moral obligation to ensure that future generations inherit a humane world”.’71 The Acropolis was especially valorized in the preparatory report as representing an ‘“embodiment of Europe’s entire history”, which was now “succumbing to the onslaught of technical progress”.’72 In Niklasson’s analysis, the Acropolis began to provide substance to the European identity in the form of, ‘an origin myth for the Community, a usable past and a golden age’.73 I would add that these initiatives can also be seen as examples of the EC’s early forays into heritage diplomacy, originally for the purpose of projecting a European identity, both internally and externally, but later taking on a multitude of tasks, including cooperation and exchange. As such, they were important elements in the development of internal networks of cooperation in the EU based on ‘political-material entanglements’ advancing what Winter describes as ‘heritage in diplomacy’.74 In 1983, for example, the Heads of State or Government made a Solemn Declaration on European Union that included ‘cultural cooperation’ as one of four policy areas. It asserted that the Heads of State or Government agreed to ‘promote, encourage or facilitate’ cultural cooperation, based on the justification that it complemented Community action and that the Member States were also 69 70 71 72 73 74

Niklasson (n 13) 83. Ibid 83–4. Ibid 83. Ibid 84. Ibid 85. Winter (n 41) 1009.

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members of the CoE. Their support would go toward: developing activities by the European Foundation and the European University Institute (eui) in Florence; closer cooperation in higher education; youth exchanges and language teaching; increasing knowledge about different Member States and information on Europe’s history and culture in order to promote a European awareness; considering whether to take joint action to protect, promote, and safeguard the cultural heritage; examining the idea of promoting joint activities disseminating culture, especially through audio-visual methods; extending contacts between writers and artists, and disseminating their works more widely both internally and externally; and deeper coordination of cultural activities in third countries as part of the framework of Political Cooperation.75 To Sassatelli, the Solemn Declaration on European Union marked a turning point in that it endorsed EC cultural action through cooperation, in order to affirm ‘the awareness of a common cultural heritage as an element of the European identity’ in the service of ‘ever closer union among the peoples and Member States’.76 I would add that this initiative also marked the Community’s bolder commitment to what can now be recognized as heritage diplomacy—both internal and external. As such, the Community can be seen at this time as becoming increasingly entangled with Member States, international organizations, and a plethora of non-state actors that were activating around heritage governance. 8

Normalizing Community Heritage Diplomacy

In light of the above, I would argue that by the propitious year of 1992, this internal-external strategy in an emerging heritage diplomacy was contributing to advancing the aims of the EU, and to positioning the Commission to propose further consolidation. This can be seen in its next Communication, entitled ‘New Prospects for Community Cultural Action’ (1992 Communication), where the dual emphasis on internal and external heritage diplomacy became normalized.77 Notably however, with the anticipated Maastricht Treaty on the horizon the Commission’s detailed review of the Community’s cultural activities, including reports on consultative meetings with professionals in the cultural sector, introduced a new vocabulary to describe its priorities. 75 76 77

European Council, ‘Solemn Declaration on European Union’ (1983) 6 EC Bull 24, 28. Sassatelli (n 7) 50–1. European Commission, ‘Communication to the Council, the European Parliament and the Economic and Social Committee: New prospects for Community cultural ac­tion’ COM (92) 149 final.

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For example, in the report’s section titles, which reflected the wording in the draft Treaty, we now see: (1) ‘Contributing to the Flowering of Culture in the Frontier-Free Area’; (2) ‘Bringing the Common Cultural Heritage to the Fore by Providing Support for Specific Areas’; and (3) ‘Increasing Cooperation with Non-Member Countries and International Organisations’, in particular the CoE. At the same time, the sections’ subheadings reflected categories seen earlier in culture-related documents, such as the Community’s internally focused encouragement of cooperation between Member States. In particular the text stresses involving people active in the field of culture, promoting artistic and cultural creation, improving knowledge and dissemination of culture, making better use of cultural resources, and accounting for cultural aspects in Community policies and programmes. The internal work of the Community was to focus on supporting the areas of: cultural heritage, books and reading, and the audio-visual sector, while the Community’s external focus was to increase cooperation—by the Community and its Member States—with non-member countries and international organizations, especially the CoE.78 With these categories, therefore, the strategy of internal and external heritage diplomacy to advance the aims of the Community remained intact, while at the same time the authors of the 1992 Communication employed the newly emerging language soon to be ­enshrined in the Maastricht Treaty. The anticipated prospects were tied directly to a perception that the Community was on the ‘threshold of a new era’ of growth for ‘cultural cooperation and support’.79 When it came to historicizing the emergence of the Community ‘cultural policy’, a close reading of the 1992 Communication shows that the Commission marked 1977, not 1973 or 1974, as the beginning of actions in the cultural sector.80 It posited three stages in their development, which confirms that what happened during this period can be read as foundational to an emerging EU heritage diplomacy. These stages, the 1992 Communication states, were: 1977–82, stemming from the Commission Communication to the Council that claimed the Community should engage with the economic and social aspects of culture; 1982–86, when Community action promoting culture became more visible, and various—mainly symbolic—measures were undertaken; and 1987–92, when regular meetings were held between the Council and the Ministers for Cultural Affairs, and a Committee on Cultural Affairs was established and undertook more structured action. The report cited ‘A Fresh Boost for Culture in the European Community’, discussed earlier, as a political initiative in 78 Ibid. 79 Ibid 1. 80 Ibid 2.

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this period that put forward a framework for cultural action, and an expanding budget. The results were, according to the report, successful in confirming ‘the value and importance of developing common approaches and aroused growing interest among the professionals and the authorities in the Member States’.81 The report marked the year 1992 as the beginning of a new era that required a real framework for common action and dialogue in order for the Commission to ‘prepare specific target-oriented proposals and programmes, and the related budgetary estimates …’.82 There was no acknowledgment of the initial impetus in 1973 for reviewing the common heritage, to support the projection of a European identity at home and abroad, except with regard to external heritage diplomacy. Here, the 1992 Communication echoed earlier texts calling for increased cooperation with non-member countries and international organizations, especially the CoE. The main emphasis centred on the perception of the Community, which, the text argued, had reached a point where it was no longer seen as merely an economic power, but also as having a role in international cultural relations. However, traces of the 1973 Declaration on European Identity and the Tindemans Report were visible when the text reiterated the importance of external cultural cooperation so as to use cultural relations ‘to enhance its general image’.83 It should be noted that since the 1970s the Community had also made tentative forays into what could later be seen as an emerging heritage diplomacy, by entering into several agreements with non-member countries, including the Lomé Convention,84 a trade and aid agreement signed in February 1975 in Lomé, Togo (between the Community and the African, Caribbean, and Pacific countries). The 1992 Communication called this ‘the first to give culture a new status by including a section largely given over to cultural cooperation’. Lomé iv (1990), which eventually succeeded the second and third iterations, in­cluded the ‘cultural dimension’ in development projects and programmes among other forms of support for cultural action.85 The Community also began a dialogue on cultural cooperation in Europe between the Community and Central

81 Ibid. 82 Ibid. 83 Ibid 14. 84 See European Commission, ‘From Lomé i to iv bis’ accessed 12 March 2019. Available accessed 29 January 2019. 85 See Giuliano Garavini, After Empires: European Integration, Decolonization, and the Challenge from the Global South 1957–1986 (Richard R Nybakken trans., oup 2012).

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and Eastern European countries as part of the integration process.86 In these initiatives—among members and non-members, or formerly non-members, and non-governmental organizations—the Community seems to have made important strides in promoting the European identity through what can now be seen as an emerging heritage diplomacy. To further its consolidation, in the conclusion to the 1992 Communication the Commission called on the Council and Parliament to decide on a reference framework for Community cultural action before the end of 1992. In addition, in the lead-up to the anticipated Maastricht Treaty the Commission would assess existing measures and start presenting proposals and programmes for common actions, and their related budget estimates.87 True ratification of the Community’s heritage diplomacy can be said to have come with the 1992 Treaty of European Union, amended in Amsterdam in 1997. As a result of the provisions contained in these Treaties, as a supranational union the EU now had legal authority pertaining to cultural action. While restrained by the subsidiary principle against interference in national interests, it could at last take steps to widen the scope of its involvement in various networks of heritage governance. 9 Conclusions While cultural, social, and political studies have reaffirmed the historical genealogy of the EU’s use of culture—and the language of a shared, common, or European cultural heritage—to bolster the sense of a European collective identity, the analysis offered here reveals that its doing so also helped the EU and its Member States develop heritage governance networks of their own, and to participate in the emerging international networks of others. In its earliest stages, in the 1970s and 1980s, it is difficult to categorically separate or isolate this mobilization from the commonly-held understandings of its incremental expansion into the realm of ‘cultural policy’, or even ‘cultural diplomacy’. However, if we take into account recent distinctions drawn between cultural diplomacy and heritage diplomacy, posited in the field of critical heritage studies, it becomes possible and plausible to see these differences and to read them into the historical documents. If, as Winter argues, ‘cultural diplomacy typically pivots around the projection or export of a particular cultural form as a mechanism of soft power’, and ‘heritage diplomacy’ adds to this ‘bi- and

86 87

com (92) 149 final (n 77), 14–15. Ibid 17.

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­ ulti-dimensional cultural flows and exchanges’,88 then the history of the exm pansion of EU competence into the realms of culture and heritage preservation, as described above, is also the story of its emerging heritage diplomacy. Carried forward, the EU’s expanding participation in heritage diplomacy can be seen in the European Parliament and Council’s recent Decision to designate 2018 as ‘European Year of Cultural Heritage’.89 The aims of this initiative, such as raising ‘awareness of European history and values and to strengthen a sense of European identity’,90 hint at its origins in the 1970s and 1980s. At the same time, they reveal some significant departures, including vastly expanded conceptions of heritage itself, to include not only architectural monuments and sites, museums, libraries, and archives, but also ‘traditions, transmitted knowledge and expressions of human creativity’.91 Juxtaposed against this Chapter’s search for origins of an EU cultural heritage diplomacy, the texts associated with naming 2018 as European Year of Cultural Heritage illustrate just how far the EU has come in justifying its role in heritage governance. It not only lays claim to a ‘European cultural heritage’, understood as a ‘shared source of remembrance, understanding, identity, dialogue, cohesion and creativity, [which] contributes to economic growth and social cohesion’.92 It boldly proclaims that ‘cooperation in heritage preservation, conservation and promotion, can only be achieved at the EU level’, albeit through its role as coordinator and supporter of Member States carrying out their respective national ­competences.93 All in all, therefore, the deployment of conceptions of a shared, common, or European heritage have been, and continue to be, crucial in the shifting landscape that has so dramatically shaped the diplomatic uses of heritage in the EU, its Member States, and beyond. 88 89

Winter (n 41) 1007. Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1. 90 ceu Press Release 52/17. 91 Ibid. 92 The formulation ‘European cultural heritage’, asserted in the following Legislative Train Schedule, marked a significant expansion of the terminology, ‘Europe’s cultural heri­tage’, used in Dec (EU) 2017/864. See Legislative Train Schedule, Culture and Education, ‘European Year of Cultural Heritage 2018’ accessed 29  ­ January 2019. 93 Legislative Train Schedule (n 92).

Chapter 2

Common Cultural Heritage, the European Union, and International Law Andrzej Jakubowski 1 Introduction The ideals, principles and values embedded in Europe’s cultural heritage constitute a shared source of remembrance, understanding, identity, dialogue, cohesion and creativity for Europe.1 This opening sentence of preamble of the Decision of the European Parliament and of the Council establishing the European Year of Cultural Heritage (2018) (eych) perhaps best grasps the ‘functional’ or ‘instrumental’ approach driving forward this action of the EU in the field of cultural heritage. In fact, the EU seems to perceive Europe’s common cultural heritage as the foundation of Europe’s integration and of the socio-economic development of its Member States, as well as both their individual and collective well-being.2 Hence its action refers to ‘an array of instrumental benefits expected from cultural heritage’.3 On the other hand, the post-Second World War process of European integration, which occurred parallel within the framework of the three European Communities and the Council of Europe (CoE), was built around the concept of a ‘common heritage’ of European nations. In this regard, the preambles of the Statute of the CoE4 and of the CoE’s European Cultural Convention (ecc)5 addressed ‘common heritage’ in terms of ‘spiritual and moral values’ shared by Europe’s peoples as being ‘the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all 1 Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1, Preamble, 1st recital. 2 See Rachael Craufurd Smith, ‘The Cultural Logic of Economic Integration’ in Evangelia Psychogiopolou (ed), Cultural Governance and the European Union. Protecting and Promoting Cultural Diversity in Europe (Palgrave Macmillan 2015) 7. 3 Evangelia Psychogiopoulou, ‘Cultural Heritage in European Union Law and Policies’ (2018) 45(2) Legal Issues of Economic Integration 177, 191. 4 (Adopted 5 May 1949, entered into force 3 August 1949) ets 001. 5 (Adopted 19 December 1954, entered into force 5 May 1955) ets 018.

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genuine democracy’. Hence, they ‘assumed the existence of a common “European identity” upon which further integration and cooperation within Europe could be built, and heritage has played a significant role in seeking to identify and consolidate such a common identity’.6 Alongside the actions by the CoE, the progressive integration and enlargement of the European Economic Community in 1970s and 1980s, undertook and developed various cultural strategies designed to create and consolidate a ‘European consciousness’.7 The fall of the Iron Curtain dramatically altered the cultural and human rights landscape in Europe. The subsequent accession of former Eastern bloc countries to Europe’s regional integration structures—the EU, CoE and the European Convention on Human Rights (echr)8—re-visited the concepts of common European values, including a shared, though diverse, culture and cultural heritage. Indeed, the creation of the EU was coupled with the introduction of ‘culture’ as a part of the integration process and an important element in building solidarity between the EU Member States and their peoples, with full respect for their history and traditions.9 According to the preamble of the Treaty on European Union (teu),10 the Member States, while creating the Union, draw ‘inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of human beings: freedom, democracy, equality, and the rule of law’. In turn, the EU respects the ‘rich cultural and linguistic diversity’ of Europe and ‘ensure[s] that Europe’s cultural heritage is safeguarded and enhanced’ (Article 3(3) teu).11 As determined by Article 167 of the Treaty on the Functioning of the European Union (tfeu),12 the Union ‘shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’. The EU’s engagement relates, inter alia, to the ‘conservation and safeguarding of cultural heritage of European significance’. Both the EU and its Member States must act and legislate consistently with the 6 7

Janet Blake, International Cultural Heritage Law (oup 2015) 323. See Chris Shore, Building Europe: The Cultural Politics of European Integration (Routledge 2013) 40–65; Evangelia Psychogiopoulou, The Integration of Cultural Considerations in EU Law and Policies (Brill 2008) 7–24; see also Chapter 1 by Cynthia Scott in this volume. 8 (Adopted 4 November 1950, entered into force 3 September 1953) 213 unts 221, as amended. 9 See Anabelle Littoz-Monnet, Union and Culture. Between Economic Regulation and European Cultural Policy (Manchester University Press 2013) 2 ff; Psychogiopoulou, The ­Integration (n 7) 25 ff. 10 (Consolidated version) [2012] OJ C326/13. 11 Ibid. 12 (Consolidated version) [2012] OJ C326/47.

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EU Charter of Fundamental Rights (cfr),13 which provides a certain catalogue of cultural guarantees. Hence the conceptualization of Europe’s common heritage within the EU constitutional design is founded on the complex dialectics between the shared values and common identity of Member States and their respective cultural identities and cultural heritages. However, the founding constitutional instruments do not seem to offer a clear answer how to combine supranational unity ‘with de facto ethno-cultural and identificational diversity’14 of the Union. In fact, cultural heritage and cultural policy today constitute one of the last bastions of state sovereignty, protected from alleged or real external interferences and threats. In the globalized world, where nation-States’ competences may seem diminished or limited, cultural heritage still lies at the core of States’ identities, defining their statehood and international standing. Thus, the c­ oncept of a common cultural heritage might be seen as one of the most difficult areas of European integration, notwithstanding the fact that it undoubtedly amounts to a distinct phenomenon—profoundly shaped by a common h ­ istory, the diversity of European societies and their constitutional traditions—and located vis-à-vis the plurality and variety of other cultures of the world. This Chapter attempts to critically explore the present-day understanding and operationalization of the ‘common cultural heritage’ under the EU constitutional law. It also considers the CoE’s legal framework and its relevance to the EU law and policy. In fact, the CoE—a regional, intergovernmental organization, currently gathering 47 Member States, including all EU Member States—is the forum where the concept of Europe’s ‘common cultural heritage’ has been best addressed in the entire process of the European integration. This Chapter adopts an international law perspective, looking at the EU as an supranational, regional polity through the prism of the theory of global constitutionalism. Thus it does not adhere to or develop any federalist discourses or ‘Big C’ constitutional vocabulary in relation to the European project.15 The omission of federalist vocabulary from the analysis in this Chapter is motivated by the very international law nature of EU founding and constitutional treaties, the failure of the proposed European Constitution,16 as well as the current disintegrating processes, in particular Brexit, which profoundly affect the social, political, and probably cultural, unity of the EU. Instead, this Chapter explores 13 14 15 16

[2012] OJ C326/391. Marco Martiniello, ‘The Dilemma of Separation versus Union: The New Dynamic of Nationalist Politics in Belgium’ in Hans-Rudolf Wicker (ed), Rethinking Nationalism and Ethnicity: The Struggle for Meaning and Order in Europe (Berg 1997) 287, 291. See, for instance, Robert Schütze, European Constitution Law (2nd edn, cup 2016) 43 ff. Treaty Establishing a Constitution for Europe [2003] OJ C169/1.

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whether the EU constitutes just a platform to enhance, enforce, and reconcile singular cultural heritage interests of its members, or perhaps is already an organization that has developed its own constitutional cultural heritage principles, common or collective in nature. Next, it will analyse the evolving notion of cultural heritage within the EU primary law in light of the developments in the global legal environment, including the constitutionalization of cultural heritage concerns. Accordingly, this Chapter endeavours to analyse whether, and to what extent, the concept of Europe’s common cultural heritage, under EU constitutional law, goes beyond the sum of Member States’ heritages and their internal cultural regulations and policies which those States reciprocally protect and enforce through the EU legal mechanisms. 2

Global Constitutionalism and the EU Constitutional Law

The EU, which was officially established in 1993 and has enjoyed an international legal personality since 2009, is today the most integrated international governmental organization in the world. Much has been written about the nature of this integration, particularly with reference to state sovereignty vis-à-vis the common, unified international standing of the EU on the one hand,17 and its internal, supranational powers and decision-making on the other.18 When referring to the phenomenon of the EU from the perspective of public international law, this model of integration has often been used as an emblematic, although sui generis, case of global constitutionalism.19 In fact, the theoretical efforts to describe and explain the societal changes affecting the operationalization of the international law system, including the alleged twilight of the Westphalian order whereby nation-States were the sole law-makers, have often referred to the concept of international or global 17

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See, inter alia, Christopher J Bickerton, Dermot Hodson, and Uwe Puetter, The New Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era (oup 2015); Walter Mattli, ‘Comparative Regional Integration: Theoretical Developments’ in Erik Jones, Anand Menon, and Stephen Weatherill (eds), The Oxford Handbook of the European Union (oup 2015) 777; Bruno De Witte, ‘EU Law: Is It International Law?’ in Catherine Barnard and Steve Peers (eds), European Union Law (oup 2014) 174, 191 ff. See, for instance Joseph H H Weiler, ‘The Community System: the Dual Character of Supranationalism’ (1981) 1(1) Yearbook of European Law 267; Schütze (n 15) 44 ff; Paul James Cardwell and Tamara Hervey, ‘The Roles of Law in a New Intergovernmentalist European Union’ in Bickerton, Hodson, and Puetter (eds) (n 17) 73. Cf Jo Shaw, ‘The European Union and Global Constitutionalism’ (2017) 2 University of Edinburgh School of Law Research Paper Series; Christine EJ Schwöbel, Global Constitutionalism in International Legal Perspective (Nijhoff 2011) 107 ff.

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constitutionalization, seeing the phenomenon of globalization as a unifying factor in the international legal order rather than as a source of its fragmentation or rupture.20 According to the constitutionalization thesis, international law has reached a certain degree of autonomy and objectivity vis-à-vis state sovereignty.21 As such, international law is seen as enhancing common values and the common interests of humanity, thus transcending the individual interests of States.22 Hence it is argued that today’s international law system possesses certain common constitutional features comparable to those characterizing national constitutional systems.23 This also refers to the role and impact of powerful international organizations and their law-making activity. Indeed, the supranational operation of EU law and its attendant independent, autonomous judicial review make the Union a plausible candidate for constitutionalizing theories in the international law scholarship.24 Within the vast vocabulary of parallel constitutional discourses, the nature of EU constitutional law seems, arguably, to be best fitted to the theories of functional or institutional constitutionalization, normative constitutionalization, and social constitutionalism. The first theory inherently relates to the very nature of the EU institutional, supranational structure and its powers, including the constitutional functions of the Court of Justice of the European Union (cjeu), conferred to the Union by the Member States in the founding treaties. In other words, national constitutional systems no longer regulate the entirety of governance and the exercise of governmental power. They no longer retain total sovereignty since certain constitutional guaranties are today externally safeguarded by the organs of the EU, a powerful constitutional polity.25 At the same time, however, the EU’s 20 21 22 23 24 25

See Andrzej Jakubowski and Karolina Wierczyńska, ‘Introduction’ in Andrzej Jakubowski and Karolina Wierczyńska (eds), Fragmentation vs the Constitutionalisation of International Law: A Practical Inquiry (Routledge 2016) 1, 3. See, for instance, Thomas Kleinlein, ‘Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law’ (2012) 81(2) njil 79, 81 ff. See Santiago Villalpando, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21(2) ejil 390. Kleinlein (n 21) 85–86. Further see Turkuler Isiksel, Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State (oup 2016). See the analysis of constituent regimes of international (intergovernmental) organizations in Aoife O’Donoghue, Constitutionalism in Global Constitutionalisation (cup 2012) 11 ff, 56; Anne Peters, ‘Membership in the Global Constitutional Community’ in Jan ­Klabbers, Anne Peters, and Geir Ulfstein (eds), The Constitutionalization of International Law (oup 2009) 201 ff; compare Jürgen Habermas, ‘The Crisis of the European Union in the Light of a Constitutionalization of International Law’ (2012) 23(2) ejil 335.

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common action in the areas of culture and cultural heritage is limited by the nature of the competences conferred upon it by the Member States. Accordingly, Articles 6 and 167(5) tfeu define the EU competences in the field of culture and cultural heritage as supporting, coordinating, or supplementing the actions of the Member States, without thereby suspending their competence in this area, and without entailing the harmonization of Member States’ law in the sphere of culture. The second theoretical approach, i.e. normative constitutionalization, which refers to the proliferation of ‘constitutional’ international legal rules arising from international treaties and the law-making powers of international organizations, goes to the core of the EU legal system. In fact, it is based on the supremacy and direct effect of the EU primary law in relation to national law, since Member States ‘have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves’,26 thus rendering ‘automatically inapplicable any conflicting provision of current national law’.27 Such a nature of the EU law has, perhaps, been best synthesized by the European Court of Justice (ecj)’s opinion on the accession of the EU to the echr, wherein it stated that ‘the EU has a new kind of legal order, the nature of which is peculiar to the EU, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation’.28 While the normative constitutional nature of the EU legal order, as established by the founding treaties and the ecj’s jurisprudence, seems unquestionable, the overt ‘Big C’ constitutional, de facto federal language of the regional ­European integration has been virtually abandoned following the rejection of the proposed ­European Constitution in the 2005 referendums in France and the Netherlands,29 evidencing a widespread bias against the alleged increasing federalization of the EU. Thus, after the ‘period of reflection’, the Lisbon reform refrained from the constitutional vocabulary, thus altering the constitutional vocabulary into ‘small c’ discourse.30 In fact, it seems that today ‘the European 26 27 28 29 30

Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ecr 1. Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ecr 629, para 17, read further Schütze (n 15) 118 ff. Opinion 2/13 of the Court [2014] ECLI:EU:C:2014:2454, para 158; also see Declaration no 17 concerning primacy [2008] OJ C115/344. Jean-Claude Piris, The Constitution for Europe: A Legal Analysis (cup 2006) 9 ff. Paul Berman, ‘From Leaken to Lisbon: The Origins and Negotiation of the Lisbon Treaty’ in Andrea Biondi, Piet Eeckhout, and Stefanie Ripley (eds), EU Law After Lisbon (oup 2012) 3; compare Armin von Bogdandy, ‘Neither an International Organization nor a

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integration process—in its current form—represents an important “constitutionalised” supplement to the liberal democratic constitutional frameworks of the Member States’.31 In such a guise, it naturally manifests tensions and compromises between supranational methods of legal operation with those of intergovernmental (international) relations and decision-making. At the same time the EU’s actions in the realm of cultural heritage are yet again limited by the full respect it must show to the competences of the Member States. Importantly, the nature of the EU legal system might also be seen through the prism of social constitutionalism,32 which uses the concept of ‘community’ at both the domestic and global governance levels to identify the holders of constituent and constituted power within a constitutional legal order.33 In other words, constitutionalization is seen through the lens of governance and the protection of various social relations emerging at the international level, beyond the realm of state sovereignty. In this regard, the social cohesion and constitutional legitimacy of the EU may be analysed from the perspective of European citizens and realization of their fundamental rights and freedoms. Indeed, the process of European integration, initiated after the Second World War, was coupled with the development of human rights guarantees and mechanisms for their efficient enforcement. Although the economic and political integration within the three European Communities initially lacked this element, it has today greatly expanded the area of fundamental rights protected under EU law. The values enshrined in Article 2 teu—‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’ are deemed to be ‘common to all the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. Undoubtedly these can be perceived as constitutional guarantees accompanying European citizenship, even more strongly pronounced in the cfr. The EU and the Member States must act and legislate consistently with the cfr, which also addresses the protection of certain human cultural rights, such as freedom of speech (Article 11) and freedom of the arts and sciences (Article 13). Moreover, the awaited accession of the EU to the

31 32 33

­ ation State: The EU as a Supranational Federation’ in Jones, Menon, and Weatherill (eds) N (n 17) 761. Shaw (n 19) 11. Johan van der Walt, The Horizontal Effect Revolution and the Question of Sovereignty (De Gruyter 2014) 287 ff. See Ronald St John Macdonald and Douglas M Johnston (eds), Towards World Constitutionalism. Issues in the Legal Ordering of the International Community (Nijhoff 2005).

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echr may strengthen the constitutional legitimacy of the EU as a constituted power in the area of human rights. Unsurprisingly, the EU constitutional model can be seen, in light of the broader global unifying or constitutionalizing trends, as a system of governance within common areas of its constituent members (EU Member States), while enhancing the recognition and enforcement of constitutional rights and freedoms necessary for regulating and managing social relations. Arguably, the social content of the EU constitutionalism is perhaps the most significant element of the European model of integration, justifying the powers conferred to the EU by sovereign States. This perspective also seems crucial to properly explore and substantiate the notion of common cultural heritage within the EU constitutional system. 3

Europe’s Common Cultural Heritage in the Constitutional (‘Written’) Provisions of EU Law

Today, in the post-Lisbon constitutional reality of the EU, cultural heritage is present in treaty provisions with reference to various areas of common governance.34 These comprise cultural, linguistic, and religious diversity (Preamble and Article 3(3) teu; Articles 13 and 167 tfeu; and Article 22 of the cfr); the enhancement and promotion of cultural rights (in particular, Articles 11 and 13 of the cfr); the protection of cultural heritage (Article 3(3) teu, Articles 36 and 167 tfeu); and cultural development, cultural exchanges and training (Articles 166, 167, and 198 tfeu). Significantly, the EU primary (‘written’) law refers to ‘Europe’s cultural heritage’. Similarly to the already cited preamble of the teu, the preamble to the cfr also makes a clear reference to ‘common values’ stemming from the ‘spiritual and moral heritage’ of European nations. Accordingly, the EU ‘is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law’, while ‘respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States’. In this regard, the EU ‘shall ensure that Europe’s cultural heritage is safeguarded and enhanced’ (Article 3(3) teu). The nature of such a common engagement is given substance in Article 167 tfeu. On one hand, the EU is committed to bring ‘the common cultural heritage to the fore’ through the 34

See Chapter 3 by Evangelia Psychogiopoulou in this volume; see also Psychogiopoulou (n 3) 179–81.

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‘­improvement of the knowledge and dissemination of the culture and history of the European peoples’, ‘conservation and safeguarding of cultural heritage of European significance’ and various measures of cultural exchange and cooperation with the EU and beyond. On the other hand, the EU shall respect and promote the diversity of cultures of the Member States, particularly through fostering and supporting ‘artistic and literary creation, including in the audiovisual sector’. Thus it seems apparent that the EU common cultural heritage can be understood within two distinct, though interconnected, dimensions. The first refers to the more abstract idea of a shared heritage of Europeans, stemming from a common European identity built on the common cultural history and experience,35 with all the uncertainties that this may entail, particularly in terms of conceptual integrity.36 It is comprised of both intangible values and heritage assets which transcend local and Member States’ identities and borders, underpinning the cultural unity of the EU. Thus, heritage assets and intangible values associated with them would be transformed into a ‘common good’ that belongs to all Europeans.37 In turn, the second dimension refers to the diversity of cultural expressions, including national, regional, and local traditions perceived as a common European value, or even a constitutional principle of the EU.38 In such a guise cultural diversity, being ‘a key value shared by all Europeans (…) is seen to reinforce a common European awareness and feeling of collective belonging, determining in consequence the progress of the Union’.39 Thus, the protection and promotion of cultural diversity might 35

36 37

38

39

Compare Gerard Delanty and Paul R Jones, ‘European Identity and Architecture’ (2004) 5(4) European Journal of Social Theory 453; Paul Kearns, ‘Culture and EU Law: The Exploration of an Interface’ in Rachael Craufurd Smith (ed), Culture and European Union Law (oup 2004) 385, 390; Monica Sassatelli, Becoming Europeans. Cultural Identity and Cultural Policies (Palgrave Macmillan 2009) 43 ff. Máiréad Nic Craith, ‘Europe’s (Un)common Heritage(s)’ (2012) 41(2) Traditions 11, 19. Tuuli Lähdesmäki, ‘The Problematic of Conceptualizing a European Cultural Heritage’ in Newtona Johnson and Shawn Simpson (eds), Bridging Differences: Understanding Cultural Interaction in Our Globalized World (Inter-Disciplinary Press 2016) 65; see also Psychogiopoulou (n 7) 29. Kristin Henrard, ‘The Impact of the Enlargement Process on the Development of a Minority Protection Policy within the EU: Another Aspect of Responsibility/Burden-sharing?’ (2002) 9(4) mjecl 357, 382–83; compare Armin von Bogdandy, ‘The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity—­ Elements of a Beautiful Friendship’ (2008) 19(2) ejil 241; Rachael Craufurd Smith, ‘­Article 151 EC and European Identity’ in Craufurd Smith (ed) (n 35) 277, 279–80. Beata Klimkiewicz, ‘Media Pluralism and Enlargement: The Limits and Potential for Media Policy Change’ in David Ward (ed), The European Union and the Culture Industries: Regulation and the Public Interest (Routledge 2012) 81, 99.

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also be seen as a joint, shared commitment of the EU and the Member States on behalf of their common interest.40 These two general conceptualizations of a ‘common cultural heritage’ or ‘a cultural heritage of European significance’, though interconnected and dependent on one another, have not been properly substantiated at the level of the constitutional provisions embodied in the teu, tfeu, and the cfr. But the concept of Europe’s common cultural heritage is not original or exclusive in EU law. In fact, it should be seen and interpreted in the broader context of general principles underpinning the content of the EU constitutional framework, as well as rooted in international cultural heritage law. 4

Europe’s Common Cultural Heritage as a Legal Concept

Parallel to the economic and political integration in Europe and the development of human rights guaranties, the emergence of the concept of a common heritage in international law is also essentially rooted in the post-Second World War trauma and discredit of nationalisms, accused of being one of the reasons of the global conflict. The 1954 Hague Convention recognized that ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world’, and thus ‘the preservation of the cultural heritage is of great importance for all peoples of the world’.41 While the joint duty to cooperate in cultural matters in the common interest of Europe’s nations was promptly recognized under the ecc, the concept of a common heritage was mainly associated with certain common legal and democratic traditions of ­European States. Moreover, European regional integrative organizations, such as the CoE and the three European Communities, have long perceived culture and cultural heritage issues as an exclusive domain of States, thus mirroring national practices in managing and administrating the spheres of art, culture, and cultural heritage, predominantly characterized by a top-down approach within a given sector of state administration. However, both the international (universal) and European regional regimes for the protection of cultural heritage have profoundly evolved. Indeed,

40 41

See Psychogiopoulou (n 7) 29. Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 249 unts 240, Preamble, 2nd and 3rd recitals.

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c­ ultural heritage has gradually become an element of human rights discourse, due to its importance to the identity of peoples and to the enhancement of all human rights in their individual and collective dimensions.42 This process has occurred within various layers of international law, and thus the protection of cultural heritage is seen today as part of the safeguarding of human dignity, and ‘an important component of the promotion and protection of all human rights’.43 Arguably, this shift towards the human dimension of cultural heritage, including the societal functions of heritage and entailing common obligations and duties also affects the current interpretation of the concept of common cultural heritage under the EU constitutional law. 4.1 Common Cultural Heritage from the European Regional Perspective As already highlighted, one of the main features of European integration in the area of culture is its focus on shared and common values defined as common heritage. According to Article 1(a) of the Statute of the CoE, the aim of this regional international organization, that gathers all EU members, ‘is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’. In this guise, the ecc—­forming the ‘cultural constitution’ of this organization—stressed the importance of the cultural heritage of Europe and the cultural development of the CoE’s Member States and their nationals, and encouraged their joint efforts in this domain, aimed at protecting and conserving heritage of ‘European cultural value’.44 Accordingly, the CoE actions have led to the adoption of a number of treaties dealing with cultural activities, industries, and the protection and conservation of cultural heritage and cultural environment, driven by the joint interest and responsibility of European nations and their societies for their common heritage and cultural values. Moreover, in light of the political developments in SouthEastern Europe, the CoE became more ‘concerned with the protection of both individual cultural rights, the collective cultural rights of vulnerable groups, the avoidance of conflict between majority cultures and minority cultures, and the importance of community through recognition of the cultural values

42 43 44

See Janet Blake, ‘Cultural Heritage in the Human Rights System’ in Andreas J Wiesand and others (eds), Culture and Human Rights: The Wroclaw Commentaries (De Gruyter 2016) 61. hrc Resolution 6/11. Protection of cultural heritage as an important component of the promotion and protection of cultural rights (2007) UN Doc A/HRC/RES/6/11, para 8. See Art 5: ‘Each Contracting Party shall regard the objects of European cultural value placed under its control as integral parts of the common cultural heritage of Europe, shall take appropriate measures to safeguard them and shall ensure reasonable access thereto’.

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of others’.45 Importantly, the CoE has developed a broad system of protection of minorities’ cultural rights, including the right to cultural heritage. The CoE Framework Convention for the Protection of National Minorities (fcpnm)46 explicitly includes the preservation of cultural heritage in its list of minority rights. It states that the parties to this Convention shall undertake ‘to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’ (Article 5(1)). The fcpnm also provides for a complex monitoring system, including the participation of non-governmental actors, placing minority protection as one of the core activities of the CoE.47 In fact, the second feature of common cultural heritage refers to its human and societal dimension, going beyond States’ cultural interests. The notion of common cultural heritage is perhaps best enshrined in the text of the 2005 CoE Framework Convention on the Value of Cultural Heritage for Society (the Faro Convention),48 ratified by 18 CoE members, including 9 EU members.49 While other regional and international instruments in the area of cultural heritage refer to the means of protection and conservation of cultural goods, the Faro Convention addresses the questions why and for whom heritage is transmitted. Accordingly, Article 2(a) of this treaty defines cultural heritage as: a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions. It includes all aspects of the environment resulting from the interaction between people and places through time. This approach is based on the idea that knowledge and the use of cultural heritage form a part of the right vested in everyone, both individually and collectively, to participate in cultural life as defined in the Universal Declaration of Human Rights50 and guaranteed by the 1966 International Covenant on Economic, Social and Cultural Rights (icescr).51 Thus, the Faro Convention 45 46 47 48 49 50 51

Robert Pickard, European Cultural Heritage, vol 1 (CoE Publ 2002) 11. (Adopted 10 November 1994, entered into force 1 February 1998) ets 157. For more, see Tove H Malloy and Ugo Caruso (eds), Minorities, Their Rights, and the Monitoring of the European Framework Convention for the Protection of National Minorities. Essays in Honour of Rainer Hofmann (Nijhoff 2013). (Adopted 27 October 2005, entered into force 1 June 2011) cets 199. Austria, Croatia, Finland, Hungary, Latvia, Luxembourg, Portugal, Slovakia and Slovenia. (Adopted 10 December 1948) unga Res 217 A(iii), 71. (Adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3; for a commentary see Ugo Misfud Bonnici, ‘The Human Right to Cultural Heritage—the Faro

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defines ‘a heritage community’ which ‘consists of people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations’ (Article 2(b)). It employs an expanded and interdisciplinary concept of cultural heritage, at the centre of which are rooted people and human values. Most interestingly, the Faro Convention explicitly substantiates the notion of the ‘common heritage of Europe’ (Article 3). Accordingly, the parties to this treaty are committed ‘to promote an understanding of the common heritage of Europe’. This is understood as: a. all forms of cultural heritage in Europe which together constitute a shared source of remembrance, understanding, identity, cohesion and creativity, and b. the ideals, principles and values, derived from the experience gained through progress and past conflicts, which foster the development of a peaceful and stable society, founded on respect for human rights, democracy and the rule of law. In such a guise, cultural heritage is presented as a resource for human development by its enhancement of cultural diversity and the promotion of intercultural dialogue. Within this framework, the Faro Convention sets out positive obligations upon the State Parties, which are required in order to, inter alia: protect cultural heritage situated under their respective jurisdictions, regardless of its origin; promote cultural diversity; and establish processes for conciliation to deal equitably with situations where contradictory values are placed on the same cultural heritage by different communities. The CoE’s involvement in culture and cultural heritage issues is shaped by a ‘classic’ intergovernmental method of operation, characteristic of international governmental organizations. Thus, the CoE’s cultural treaties, except for the Faro Convention, essentially aim at standard-setting in matters of culture and cultural heritage within specific areas of national policies. Moreover, none of the CoE’s cultural instruments provide for any specific system of control and enforcement, leaving the implementation of their standards to the States’ discretion, whose activities are subjected to rather weak instruments of monitoring and evaluation exercised by the Steering Committee for Culture, Heritage and Landscape (cdcpp).52 Yet the legal concept of Europe’s cultural heritage has probably been better substantiated within the CoE’s human rights, rule of law, and institutional and

52

­ onvention’s Contribution to the Recognition and Safeguarding of This Human Right’ C in Heritage and Beyond (CoE Publ 2009) 53, 57–8; see also Patrice Mayer-Bisch, ‘On the “Right to Heritage”—the Innovative Approach of Articles 1 and 2 of the Faro Convention’ in Heritage and Beyond (CoE Publ 2009) 59. Further see accessed 6 February 2019.

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policy frameworks, even though the echr contains no direct provision on a right to culture. Indeed, the main principle underlying CoE culture and cultural heritage operations ‘has been to develop the European cultural identity while at the same time protecting the distinctive features that are the source of the identity’s richness’.53 The practice of various CoE’s bodies have consolidated the idea that Europe’s common heritage, as translated into democracy, human rights, and the rule of law, implies the development of a system for the protection and enforcement of cultural rights, including those attached to cultural heritage. In this regard, the right to take part in cultural life is identified as ‘pivotal to the system of human rights’ of the CoE.54 Therefore, one of the crucial elements of the concept of Europe’s common legal culture and common heritage consists in providing for participation, both individually and collectively, in the cultural life of society. In fact, the idea of a new additional protocol to the echr designed to guarantee individual rights in the cultural field (including access to cultural activities, access to information, and the right to cultural heritage)—widely discussed in the early 1990s—has recently been addressed, but no concrete steps have been undertaken.55 The enhancement of common values, including those related to the rights of communities in relation to cultural heritage, can also be seen in the larger programme to disseminate and consolidate a common constitutional European heritage within the CoE’s Member States, thus contributing to the democratization and rule of law in the continent, as ensured by the CoE advisory body on constitutional issues—the E ­ uropean Commission for Democracy through Law (the Venice Commission).56 Culture and cultural heritage have also been subject to judicial review by the European Court of Human Rights (ECtHR). The provisions of the echr most often invoked in relation to rights related to culture are Article 8 (the right to respect for private and family life), Article 9 (freedom of thought, conscience,

53 54 55

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Aleksandra Mężykowska, ‘Council of Europe (CoE)’ in Wiesand and others (eds) (n 42) 121. See CoE, Parliamentary Assembly, Resolution 1689, ‘The Future of the Council of Europe in the Light of Its Sixty Years of Experience’ (1 October 2009). See Patrick Thornberry and María Amor Martín Estébanez, Minority Rights in Europe. A Review of the Work and Standards of the Council of Europe (CoE Publ 2004) 204–06. Similar considerations with respect to the difficulties in defining of cultural rights as fundamental rights were also addressed in relation to the initiative by Poland to include culture in a new additional protocol to the echr, launched on the occasion of the Wroclaw 2015 European Capital of Culture; see Aleksandra Mężykowska, 'European Convention on Human Rights (ECHR)' in Wiesand and others (eds) (n 42) 156, 157–58. See accessed 6 February 2019.

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and religion), and Article 10 (freedom of expression) of the echr, as well as Article 2 of Protocol No 1 to the echr57 (the right to education). Accordingly, eight specific human rights addressed in the jurisprudence of the Court can be labelled as cultural rights or as being of cultural content: the right to artistic expression; access to culture; the right to cultural identity; linguistic rights; the right to education; the right to seek historical truth; the right to academic freedom; and finally the right to the protection of cultural and natural heritage.58 In those judgments in which the ECtHR explicitly dealt with ‘cultural heritage’, societal and collective dimensions (national or minority) have usually been taken into account in measuring the proper and just balance between interests of a larger community and rights of individuals,59 though sometimes the Court has referred to rights to cultural heritage enjoyed by individuals.60 The ECtHR has also—explicitly61 or implicitly62—referred to the CoE cultural heritage treaty instrumentarium. In Akdaş v Turkey the ECtHR also explored the concept of a European common cultural heritage, holding that the recognition accorded to the cultural, historical, and religious peculiarities of the CoE’s Member States cannot prevent access by the public of a given language to a work belonging to the ‘European literary heritage’.63 In other words, it recognized the existence of certain groups of cultural elements deemed to be ‘common’ to all people of Europe. Thus the ECtHR, while giving effect to the collective cultural interests of the CoE Member States and national and ethnic minorities, also recognizes certain common European cultural heritage values. Arguably, these standards set up by the echr and ECtHR should also be seen as those belonging to EU principles—‘general principles of the Union’s law’— as provided in Article 6(3) teu, also in light of the forthcoming accession of the EU to the echr (Article 6(2) teu). Common Heritage in the EU Member States’ Constitutional Traditions Importantly, the notion of Europe’s common cultural heritage is to be interpreted based on those fundamental rights that ‘result from the constitutional traditions common to the Member States’ as they ‘shall constitute general 4.2

57 58 59 60 61 62 63

(Adopted 20 March 1952, entered into force 18 May 1954) ets 009. See Chapter 4 by Mateusz Bieczyński in this volume. Andrzej Jakubowski, ‘Cultural Heritage and the Collective Dimension of Cultural Rights in the Jurisprudence of the European Court of Human Rights’ in Andrzej Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Brill 2016) 157. Nowakowski v Poland App no 55167/11 (ECtHR, 24 July 2012). Debelianovi v Bulgaria App no 61951/00 (ECtHR, 29 June 2007), para 54. Albert Fürst von Thurn und Taxis v Germany App no 26367/10 (ECtHR, 14 May 2013). Akdaş v Turkey App no 41056/04 (ECtHR, 16 February 2010), para 30.

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principles of the Union’s law’ (Article 6(3) teu). Accordingly, the protection of such fundamental rights, ‘whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community’.64 In the founding judgment of J Nold v Commission, the ecj also reiterated that ‘fundamental rights form an integral part of the general principles of law’. Cases concerning the observance of these rights is vested in the Court, which ‘is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those States’.65 In this regard, the constitutions of the EU Member States contain a number of culture and cultural heritage-oriented provisions. While usually referring to the protection, enhancement, and development of national heritage, these provisions offer a vast catalogue of cultural rights vested in individuals, including those belonging to minority groups. Arguably, these cultural heritage guarantees might be perceived as contributing to or forming the normative and axiological content of the concept of Europe’s common cultural heritage. Moreover, the EU Member States are parties to a vast human rights instrumentarium, which has standardized their constitutional regimes. As already pointed out, the international cultural human rights legislation has greatly expanded beyond the realm of human rights instruments sensu stricto, and today it also comprises several cultural heritage treaties.66 The proliferation of these cultural human rights obligations has led to the consolidation of the cultural content of constitutional frameworks of the EU Member States. They may also serve to interpret the fundamental rights observed and protected by the EU,67 thus contributing to the notion of a common cultural heritage under the EU constitutional law. 64 65 66 67

Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ecr 1125; also see Case 29/69, Erich Stauder v City of Ulm, Sozialamt [1969] ecr 419. Case 4/73 J Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ecr 491. Andrzej Jakubowski, ‘Culture and Human Rights: Concepts, Instruments and Institutions’ in Wiesand and others (eds) (n 42) 2, 8. As the ecj noted in J Nold v Commission (n 64): ‘similarly, international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories, can supply guidelines which should be followed within the f­ ramework of community law’. Further read Hermann-Josef Blanke, ‘The Protection of Fundamental Rights in Europe’ in Hermann-Josef Blanke and Stelio Mangiameli (eds), The European Union after Lisbon: Constitutional Basis, Economic Order and External Action (Springer 2012) 162.

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Protection of Cultural Heritage as a Constitutional Principle of the International Law Order The legal conceptualizations of Europe’s common cultural heritage need to be seen also in light of the consolidation of global concerns about the protection of cultural heritage, i.e. the constitutionalization of international cultural heritage law. This global perspective seems useful to understand the developments on the level of general international law, including the rise and proliferation of cultural heritage obligations binding all members of the international community. Accordingly, the concept of a common cultural heritage has profoundly evolved, from the initial wording offered by the 1954 Hague Convention to a much more complex set of international obligations in relation to cultural heritage, as most recently reaffirmed by unsc Resolution No 2347, adopted on 24 March 2017.68 It may be argued that the increasing expansion and consolidation of culture-specific and culture-oriented substantive and procedural international law frameworks relating to visions other than those of nationStates with respect to culture(s) and the rights attached to culture(s) provide evidence of such constitutionalizing developments, and reflect the trends towards the protection and enhancement of human dignity, in both its individual and collective aspects. Sometimes cultural heritage is also associated with ‘global common goods’ or ‘global public goods’, as referred to on various occasions by the UN Development Programme.69 In this guise, cultural her­ itage would belong to ‘human-made global commons’,70 of which humanity as a whole would be both the beneficiary and custodian.71 Such a conceptualization of cultural heritage appears very attractive and tempting, particularly in light of the seemingly universal notions of ‘cultural heritage of all mankind’ or ‘world cultural heritage’, terms stemming from the expanding law-making and standard-setting activity of unesco. Significantly the latter notion, introduced by the nearly universal 1972 unesco Convention,72 is usually associated with ‘global commons’, entailing a shared duty to co-operate in order to 4.3

68 69 70

71 72

unsc Resolution 2347: Maintenance of international peace and security (2017) UN Doc S/RES/2347. See, for instance, Inge Kaul, Isabelle Grunberg, and Marc Stern (eds), Global Public Goods: International Cooperation in the 21st Century (oup 1999) 453. Andrzej Jakubowski, ‘A Constitutionalised Legal Order: Exploring the Role of the World Heritage Convention (1972)’ in Andrzej Jakubowski and Karolina Wierczyńska (eds), Fragmentation vs the Constitutionalisation of International Law: A Practical Inquiry (Routledge 2016) 183, 190–202. Lynn Meskell, ‘Heritage and Cosmopolitanism’ in William Logan and others (eds), A Companion to Heritage Studies (Willey Blackwell 2016) 479, 481–87. unesco Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 unts 151.

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safeguard and conserve world heritage in the general interest of humankind.73 Hence, the consolidation of international regimes for combating violations of the general interest of humankind in protecting cultural heritage may arguably be perceived as a ‘global common good’. The European States and the EU, pursuant to their joint action, are committed to the development of measures for the protection of cultural heritage. Importantly, the EU is constantly involved in the global fight against illicit trafficking in cultural objects in light of the tragedies of Syria and Iraq.74 Moreover, within the CoE regional framework the new Convention on Offences relating to Cultural Property was adopted in 2017,75 thus giving flesh to the increasing catalogue of international obligations towards cultural heritage.76 But what is the nature of the operationalization of international law within EU law? As already mentioned, the Member States have created, through the founding treaties, a specific legal order. Thus the EU is neither an organization under international law, nor is its constitutional basis the same as that of a State.77 As confirmed by the jurisprudence of the ecj, the EU has a sui generis supranational nature, and public international law is not applicable to either establishing the legal relations between the EU institutions, nor to the relationship between the EU and its members.78 However, public international law governs the relations between the EU and non-Member States, as well as relations between the EU and international organizations. The obligation of the EU to comply with international law—as a subject of international law which is an addressee of the pacta sunt servanda and consuetudo est servanda rules—is transmitted from and into the internal legal orders of the Member States.79 Accordingly, international law obligations can be applicable as legal standards to review the legality of an act of the EU, as it must respect international law 73 74

75 76 77 78 79

Jakubowski, ‘A Constitutionalised Legal Order’ (n 70) 188–202. Council Regulation (EU) No 1332/2013 of 13 December 2013 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria [2013] OJ L335/3. See Richard Mackenzie-Gray Scott, ‘The European Union’s Approach to Trade Restrictions on Cultural Property: A Trendsetter for the Protection of Cultural Property in Other Regions?’ (2016) 2(2) saaclr 211–36. (Adopted 3 May 2017, opened for signature 19 May 2017) cets 221. See Mateusz Bieczyński, ‘The Nicosia Convention 2017: A New International Instrument Regarding Criminal Offences against Cultural Property’ (2017) 3(2) saaclr 255–74. See von Bogdangdy, ‘Neither an International Organization’ (n 30) 19. See Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ecr i-6351, para 282. Francesca Martines, ‘Direct Effect of International Agreements of the European Union’ (2014) 25(1) ejil 129, 132.

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in the exercise of its powers, and thus it must comply with the rules of customary international law.80 Arguably, the consolidation of cultural heritage obligations under general international law affects both the exercise of powers by the Union as well as the interpretation of the cultural heritage provisions of the EU primary law. The next question which arises refers to agreements concluded by the EU. These must be ‘compatible’ with the EU primary law (Article 218(11) tfeu), ‘are binding upon the institutions of the Union and on its Member States’ (Article 216(2) tfeu), and may have a direct effect, thus giving rise to rights and obligations that can be enforced before Member States’ national courts or a European court. To date, the EU has been a party to one international cultural heritage treaty: the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (the 2005 unesco Convention).81 This ­Convention recognizes cultural diversity as the common concern of humanity, and reaffirms its importance for the full realization of human rights and fundamental freedoms. It is an integral part of the EU legal system, serving to strengthen the creation, production, distribution/dissemination, access, and enjoyment of cultural expressions transmitted by cultural activities, goods, and services. At the same time, cultural diversity can also be seen as a global common. In fact, it is defined as ‘embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind’, leading to the conclusion that as ‘a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature’.82 In international practice, cultural diversity has been recognized and promoted as a global common good for a variety of reasons and purposes, including its importance to peace and stability, progress and development, and the full realization of all human rights.83 In such a guise, Europe’s common cultural heritage can be seen as a universally recognized common good, the value and 80

81 82 83

Case C-162/96 A. Racke GmbH & Co. v Hauptzollamt Mainz [1998] ecr i-3655, paras 45, 46; also see Case C-286/90 Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp. [1992] ecr i-6019, para 9; Case C-308/06 International Association of ­Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport [2008] ecr i-4057, para 51. (Adopted 20 October 2005, entered into force 18 March 2007) 2440 unts 311. Art 1 of the Universal Declaration on Cultural Diversity, unesco Doc 31C/Res (2 November 2001). Ana F Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’ in Federico Lenzerini and Ana F Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart 2014) 139, 168–72; Céline Romainville, ‘Cultural Diversity as a Multilevel and Multifaceted Legal Notion Operating in the Law on Cultural Policies’ (2016) 22(3) ijc Policy 273.

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significance of which ­arises from the protection of diversity of cultures, inherently linked to the identity of peoples and connected to both individual and collective human rights. 5

eych 2018—Mainstreaming Cultural Heritage Considerations in the EU

As shown above, cultural heritage and its societal functions have increasingly become a global common, the protection of which is essential for the maintenance of global peace and security—as was most recently stated by the unsc Resolution No 2347 (2017)—as well as crucial for sustainable development. Accordingly, the UN 2030 Agenda for Sustainable Development84 marked a substantial step forward for sustainable development for culture, since it is the first time that the international development agenda refers to culture within the framework of Sustainable Development Goals related to education, sustainable cities, food security, the environment, economic growth, sustainable consumption and production patterns, and peaceful and inclusive societies. In fact, the recent G7 summit in Florence, held on 30–31 March 2017 was dedicated, for the first time, to cultural heritage defined as a tool for dialogue among peoples and an instrument of dialogue among different nations—an essential tool in the service of international co-operation and world sustainable development.85 The cultural determinations of human existence and the rights attached to cultural heritage are also increasingly recognized as crucial for the promotion and full implementation of all human rights and safeguarding of human dignity. As has been shown, these developments have taken place at the level of international treaty law within originally distinct or separate areas of legal regulations. Indeed, a number of cultural law instruments have linked their implementation with the observance of human rights and freedoms, enhancing the role of the human dimension in implementing cultural and cultural heritage policies. Arguably, such an interpretation of cultural heritage has also affected the EU actions. As emphasized by the Commission in its Communication of 2014 84 accessed 31 January 2019. 85 See the ‘Joint Declaration of the Ministers of Culture of G7 on the Occasion of the Meeting “Culture as an Instrument for Dialogue Among Peoples”’, Florence, 30 March 2017 accessed 6 February 2019.

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entitled ‘Towards an integrated approach to cultural heritage for Europe’,86 cultural heritage is to be considered a shared resource and a common good held in trust for future generations. In this regard, Europe’s common cultural heritage is defined as strengthening a sense of community within the Union and contributing to the competitiveness of the entire region, thus integrating cultural human values and the socio-economic context, as two ‘sides of this same coin’.87 Such considerations also drove the establishment of the eych 2018. Its agenda, proposed at the European Culture Forum held in Brussels on 19–20 April 2016, included the various aspects of cultural heritage: tangible, intangible, and digital,88 with special focus on the sharing of heritage and greater social participation by creating a dialogue with civil society and stakeholders active in the field of cultural heritage.89 Importantly, the 2017 Decision establishing the eych 2018 stated that: The increased recognition at the international level of the need to put people and human values at the centre of an enlarged and cross-disciplinary concept of cultural heritage reinforces the need to foster wider access to cultural heritage, inter alia, in light of its positive effects on the quality of life. Such wider access can be achieved by reaching out to different audiences and by increasing accessibility to places, buildings, products and services, taking into account special needs and the implications of demographic change.90 Moreover, it also appears that the envisioned aim of the eych 2018 initiative was to raise awareness of European history and values and to strengthen a sense of European identity through the enhancement of its values and the richness of Europeans’ cultural diversity.91 It was explained that the planned and implemented initiatives would not concentrate exclusively on the economic benefits of cultural heritage, but embrace it as ‘an investment in society, contributing to the better understanding of other cultures and to the building

86 com (2014) 477 final. 87 Ibid, Explanatory Statement, Conclusions. 88 accessed 3 February 2019. 89 accessed 3 February 2019. 90 Preamble, 13th recital. 91 ceu, ‘European Year of Cultural Heritage in 2018: Celebrating the Diversity and Richness of Our European Heritage’, Press release of 9 February 2017, PRES/17/52.

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of bridges between peoples’.92 In relation to the Commission’s Proposal, Silvia Costa, Chair of the Committee on Culture and Education of the European Parliament, stated that ‘[c]ulture and cultural heritage should be the new soul and new identity for a new Europe’, thus offering a great opportunity to face the current Euroscepticism.93 Importantly, the enhancement of Europe’s common cultural heritage might thus be seen as a response to the trends and events affecting or challenging this common model: Brexit, migration, the threats to democracy both within the EU (in particular the erosion of liberal constitutional frameworks in Hungary and Poland) and the CoE (authoritarian governance and the sunset of civic societies in Russia and Azerbaijan, as well as the creeping dictatorship in Turkey). In light of these policy developments and current challenges affecting the EU model and regional integration, this value-laden idea of Europe’s cultural heritage is presented as stemming from ‘the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’.94 Thus, the EU constitutional concept of a common cultural heritage seems to be ever more associated with the defence of the liberal constitutionalism inherent in EU constitutional law and social governance. ­Perhaps now more than ever the traditional and seemingly indisputable EU constitutional principles such as the rule of law, the ‘exalted role of the individual’, institutional separation of powers, procedural justice, non-discrimination, participation, and tolerance are to be seen as inherent in the concept of Europe’s common heritage,95 which also shapes its cultural heritage governance. Common cultural heritage, as a strong axiological argument, underpins and supports the legitimacy of the EU, its powers, and its international standing. In such a guise, cultural diversity is a direct emanation of the liberal democratic vision of multiculturalism, and the peaceful accommodation of various cultural identities and practices is seen as a source of strength and cohesion rather than of cause of ruptures. In this regard, the development of creativity and diversity of cultural expressions are crucial not only for the economic well-being of Europeans, but also contribute to a common constitutional design based on dialogue and participation, thus giving flesh to a number of postulates enshrined in the cultural human rights international instrumentar92 accessed 6 February 2019. 93 accessed 6 Feb­ ruary 2019. 94 TUE, Preamble, 2nd recital. 95 See John Loughlin, Subnational Democracy in the European Union: Challenges and Opportunities (oup 2001) 1–7.

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ium. Arguably, they also give a cultural dimension to the concept of European citizenship, putting people and human values at the centre of an enlarged and cross-disciplinary concept of cultural heritage, as enshrined in the Preamble of the Faro Convention.96 Thus this aspect of the conceptualization of Europe’s cultural heritage is perhaps the most significant when seen from the perspective of global constitutionalism in its social dimension. 6 Conclusions Cultural heritage constitutes a powerful legal concept linked to the identity of nations, States, communities, and individual persons, thus profoundly affecting societal relations. It may serve as a tool of both dialogue and conflict or rupture. Europe’s common cultural heritage has arisen as a legal concept from the experience of European States in relation to the management and governance of cultural policies, industries, and the conservation and transmission of spiritual, artistic, and historical heritage. At the same time, the concept is essentially rooted in the liberal theory of constitutional democracy, including the idea of a multicultural deliberative society. Although the EU treaties offer no definition of Europe’s common cultural heritage, it can be (re)constructed through a consistent interpretation of the relevant EU provisions in light of both the evolving international cultural heritage and human rights regulatory regimes as well as the expanding global consitutionalization of cultural her­ itage concerns. The analysis in this Chapter demonstrates that, notwithstanding the fact that the EU is a sui generis supranational polity with an internal autonomous legal system, its constitutional principles are greatly derived from the expanding human rights legislation, which today also comprises reinforced cultural human rights. Clearly the general principles of EU law include those fundamental rights which are guaranteed by the echr, as explicitly stated in Article 6(3) teu. These include a number of rights attached to cultural her­ itage, a notion manifested in the case law of ECtHR. Among them are those related to access to Europe’s cultural heritage (Akdaş v Turkey). The relationship between the EU legal system and other rules of international law is more complex. It has not, however, fallen within the scope of this Chapter to intermingle in the debate on the EU legal autonomy vs the unity of international legal order. Instead, it suffices to recall that the EU law does not operate in a legal vacuum. While recognizing all its specificities, the EU and its Member 96

2nd recital.

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States are subjects of international law and thus are bound to comply with their international law obligations. In this regard, the humanization and constitutionalization of cultural heritage law will affect the notion and content of EU cultural heritage provisions, particularly those referring to Europe’s common cultural heritage. Accordingly, this concept not only refers to certain cultural assets of all- or pan-European significance. Instead, it should truly be seen as an underlying, axiological principle of the EU legal order derived from the constitutional traditions of the Member States and international law rules; one which puts people and human values at the centre of the concept of cultural heritage. Seen through such a lens, Europe’s common cultural heritage constitutes a common good of all Europeans, who have an intrinsic right to create, maintain, and enjoy their heritage in a society based on freedom, democracy, equality, and the rule of law. Thus, the diversity of cultures, traditions, languages, cultural expressions, and practices within the EU cannot be seen as being in opposition to the notion of a European common cultural heritage, but rather reinforce this concept. Indeed, cultural diversity flourishes ‘within a framework of democracy, tolerance, social justice and mutual respect between peoples and cultures’ and ‘is indispensable for peace and security at the local, national and international levels’.97 Indeed, the concept of Europe’s common cultural heritage transcends the sum of Member States’ heritages and serves as an important, axiological foundation of the EU constitutional law. 97

The 2005 unesco Convention, Preamble, 4th recital.

Chapter 3

Cultural Heritage and the EU: Legal Competences, Instrumental Policies, and the Search for a European Dimension Evangelia Psychogiopoulou 1 Introduction Cultural heritage worked its way onto the European agenda before the Treaty of Maastricht, and since the Treaty’s entry into force it has always been a central component of the EU’s cultural policy. From 2005 onwards, it has been consistently addressed by successive Work Plans for Culture,1 introduced to identify priority areas for action by the Council of the European Union (Council), the European Commission (Commission) and the Member States. The 2007 European agenda for culture in a globalizing world considered cultural heritage to lie ‘at the very heart of the European project’,2 whereas more recently cultural heritage has been viewed as a ‘major asset for Europe’,3 reflecting the increased policy interest in this field on the part of European institutions. This Chapter seeks to deepen the understanding of European Union (EU or Union) actions in the area of cultural heritage. What is the place of ­cultural heritage within the system of EU competences, and what policies are 1 See CEU, ‘Work Plan for Culture 2005-2006, 2616th Council Meeting, Education, Youth and Culture’, 15-16 November 2004 accessed 15 January 2019; ceu, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on a Work Plan for Culture 2008–2010’ [2008] OJ C143/9; ceu, ‘Work Plan for Culture 2011–2014 – C ­ onclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council’ accessed 15 January 2019; ceu, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on a Work Plan for Culture (2015–2018)’ [2014] OJ C463/4. 2 Commission of the European Communities, ‘European agenda for culture in a globalizing world’ (Communication) COM (2007) 242 final. 3 ceu, ‘Conclusions on cultural heritage as a strategic resource for a sustainable Europe. Education, Youth, Culture and Sport Council Meeting, Brussels, 20 May 2014’ para 3

­accessed 15 January 2019.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_005

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formulated in its regard? How is the concept of cultural heritage understood by ­European institutions and what are the core values and interests that drive their heritage-oriented actions? To answer these questions, this Chapter is structured as follows. Part 2 investigates the competences of the EU in the area of cultural heritage. Part 3 explores the way(s) in which cultural heritage is construed at the EU level, taking into account the absence of a concrete definition of cultural heritage contained in the Treaties and its qualification with ‘European’ attributes. Parts 4 and 5 discuss EU cultural heritage actions in a pre- and post-Maastricht context, that is, before and after the conferral of a formal cultural competence to the EU. Part 6 examines the operationalization of the concept of cultural heritage through specific measures adopted within the framework of the EU’s cultural policy and other EU policies with a heritage dimension. Part 7 expands on the instrumental approach that generally characterizes EU cultural heritage action and the objectives that guide it. The Chapter ends with some concluding remarks. 2

Cultural Heritage within the System of EU Competences

Safeguarding and enhancing ‘Europe’s cultural heritage’ constitutes one of the objectives of the Union, alongside respect for cultural and linguistic diversity.4 Article 167(1) of the Treaty on the Functioning of the European Union (tfeu) entrusts the Union with the task of ‘contribut[ing] to the flowering of the cultures of the Member States while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’. EU actions aim ‘at encouraging cooperation between Member States’ and if necessary, at supporting and supplementing their action in specific areas, such as the area of ‘conservation and safeguarding of cultural heritage of European significance’ and the area of ‘improv[ing] the knowledge and dissemination of the culture and history of European peoples’.5 Together with the Member States, the EU also aims to foster cultural cooperation with third countries and competent international organizations, which can involve cultural heritage actions. In order to fulfil its cultural mandate, the EU can only adopt recommendations and incentive measures, with no harmonization of the laws and ­regulations of the Member States, as provided by Article 167(5) tfeu. The 4 Art 3(3) teu, Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C326/1, 13. 5 Art 167(2) tfeu: Consolidated Versions of the Treaty (n 4) 47.

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formulation of cultural policies, including cultural heritage policies, hence ­essentially remains a prerogative of the Member States. However, the Union’s constrained cultural remit goes hand in hand with a wider set of implicit cultural powers, which can be found in Article 167(4) tfeu, known as the cultural mainstreaming clause of the tfeu.6 This states that the Union ‘shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures’.7 By allowing for the integration of cultural considerations in EU actions under policy headings other than Article 167 tfeu on culture, Article 167(4) tfeu enables the incorporation of cultural heritage considerations in EU policies other than the EU cultural policy. It thus broadens EU heritage activity outside the procedural limits of Article 167(5) tfeu. Other provisions which are relevant for cultural heritage include the following. The preamble of the Treaty on European Union (teu) declares that the EU Member States draw ‘inspiration from the cultural, religious and humanist inheritance of Europe’. The preamble of the Charter of Fundamental Rights (cfr) of the EU expressly refers to the Union’s ‘spiritual and moral heritage’, whereas the right of the elderly to participate in cultural life, enshrined in Article 25 cfr, can be seen in terms of access to and enjoyment of cultural her­ itage. Article 13 tfeu asserts that the Union and the Member States shall pay full regard to animal welfare requirements ‘while respecting the (…) customs of the Member States relating (…) to religious rites, cultural traditions and regional heritage’. Article 107(3)(d) tfeu affirms that ‘state aid to promote culture and heritage conservation’ can be considered to be compatible with the internal market, subject to certain conditions. Moreover, the Court of Justice of the European Union (cjeu) has confirmed that heritage assets come under the scope of the EU rules on the free movement of goods.8 Similarly, the tfeu provisions on the free movement of workers, the freedom of establishment, and the freedom to provide services cover operators (employed and self-employed) and services in the heritage sector. With respect to the free movement of goods, Article 36 tfeu recognizes that the protection of ‘national treasures possessing artistic, historic or archaeological value’ can justify national barriers to the prohibition of quantitative restrictions between Member States. In an 6 For more on this, see Evangelia Psychogiopoulou, ‘Cultural Mainstreaming: The European Union’s Horizontal Cultural Diversity Agenda and its Evolution’ (2014) 39 elr 626. 7 This is in line with art 22 of the Charter of Fundamental Rights of the European Union [2012] OJ C326/391, which states that ‘[t]he Union shall respect cultural, religious and linguistic diversity’, rendering respect for cultural diversity a duty for the EU institutions in their overall action. 8 Case 7/68 Commission of the European Communities v Italian Republic [1968] ecr 423.

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important string of cases, the cjeu has also ruled that ‘protecting the national historical and artistic heritage, guaranteeing the proper appreciation of places and things of historical interest and facilitating the widest possible dissemination of knowledge of a country’s patrimony’ can constitute an overriding reason in the public interest justifying restrictions on the freedom to provide services.9 More recently, the cjeu has accepted that national legislation aimed at protecting the cultural and historical heritage of a Member State by limiting the deduction of costs relating to listed historic buildings solely to the owners of buildings which are situated in the Member State concerned is compatible with the freedom of establishment, provided that such a tax advantage is also available for buildings which form part of the national heritage but are located in the territory of another Member State.10 3

EU Definitions and Approaches to Cultural Heritage

None of the heritage provisions of the EU constitutional texts define what cultural heritage is. According to the 2014 Conclusions of the Council on cultural heritage as a strategic resource for a sustainable Europe, cultural heritage consists of the resources inherited from the past in all forms and aspects – tangible, intangible and digital (born digital and digitized), including monuments, sites, landscapes, skills, practices, knowledge and expressions of human creativity, as well as collections conserved and managed by public and private bodies such as museums, libraries and archives. It originates from the interaction between people and places through time and it is constantly evolving.11 The Council’s definition of cultural heritage is relatively broad: it encompasses tangible and intangible heritage and it incorporates digital assets, which shows the influence of digitization and new technologies on the notion of cultural heritage in an EU context. The definition has been endorsed by the European Parliament within the framework of the negotiations on a European Year of 9

10 11

Case C-154/89 Commission of the European Communities v French Republic [1991] ecr ­i -659; Case C-180/89 Commission of the European Communities v Italian Republic [1991] ecr i-709; Case C-198/89 Commission of the European Communities v Hellenic Republic [1991] ecr i-727. Case C-87/13 Staatssecretaris van Financiën v X [2014] OJ C65/3. ceu, ‘Cultural heritage as a strategic resource’ (n 3) para 3.

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Cultural Heritage (eych) and it has been extended to the film sector.12 The Commission also perceives cultural heritage as having a variety of movable and immovable forms.13 The attitudes of European institutions towards cultural heritage show that cultural heritage is generally viewed as a shared resource and ‘an asset for all’.14 As a ‘common good’ inherited from previous generations, it is considered a legacy for those to come, and therefore a common responsibility.15 Cognizant of ‘the importance of activating synergies across different stakeholders to safeguard, develop and transmit cultural heritage to future generations’, the Council has advocated the participatory governance of cultural heritage as a means for raising awareness of cultural heritage as a shared resource.16 The broad definition of cultural heritage that is generally advanced by European institutions and the emphasis put on the adoption of participatory governance models in principle guarantee a wide scope for EU heritage activities, at the same time encouraging the active involvement of stakeholders. Nevertheless, EU actions in the field of cultural heritage have been substantially complicated by the way in which cultural heritage is qualified by the teu and tfeu. References to ‘Europe’s cultural heritage’, a ‘common cultural heritage’ and a ‘cultural heritage of European significance’ have puzzled the European institutions, raising important questions as to their concrete meaning, even if they are not EU-specific.17 As discussed in Chapters 1 and 2, the existing scholarship has debated whether a European cultural heritage even exists. Common cultural features, distressing experiences, and allegiance to political values such as respect for fundamental rights, solidarity, and the rule of law have all 12

13 14

15 16 17

See Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1, Preamble, 7th recital (eych Decision). With respect to film heritage, see also Recommendation of the European Parliament and of the Council of 16 November 2005 on film heritage and the competitiveness of related industrial activities [2005] OJ L323/57. See European Commission, ‘Supporting Cultural Heritage’ accessed 15 January 2019. European Commission, ‘Towards an integrated approach to cultural heritage for Europe’ (Communication) com (2014) 477 final, 2; European Parliament resolution of 8 September 2015 towards an integrated approach to cultural heritage for Europe, P8_TAPROV(2015)0293, point A accessed 15 January 2019. European Commission, ‘Towards an integrated approach’ (n 14) 2. Council conclusions on participatory governance of cultural heritage [2014] OJ C463/1, point 5. See European Cultural Convention (adopted 19 December 1954, entered into force 5 May 1955) ets 018.

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been put forward as a possible common ground for conceptualizing Europe’s cultural heritage.18 The European institutions have tended to allude to Europe’s rich variety of cultures when seeking to construe the concept of the common European cultural heritage. For the European Parliament, for instance, ‘cultural heritage is naturally heterogeneous, reflect[ing] cultural and linguistic diversity and pluralism’.19 According to the Commission, Europe’s heritage is ‘both local and European. It has been forged over time, but also across borders and communities [and it] (…) is made up of local stories that together make the history of Europe’.20 In the Commission’s view, ‘[t]he European experience [also] shows that it is possible to progress from an appreciation of the uniqueness of one’s own heritage to an interest in and respect for the heritage of others’.21 This suggests that the concept of European cultural heritage is intrinsically linked to respect for and openness towards the heritage assets of others. Clearly then, Europe’s cultural heritage cannot be equated with a single, hegemonic or homogenous culture. In some instances, European institutions have advanced an account of Europe’s cultural heritage from the perspective of common values. It is indicative for instance that the Decision of the European Parliament and of the Council establishing the European Heritage Label (ehl)—an initiative that places cultural heritage under the symbolic patronage of the EU—refers to a ‘common (…) cultural heritage, especially in relation to the democratic values and ­human rights that underpin the process of European integration’.22 The eych Decision points to ‘the ideals, principles and values embedded in Europe’s cultural heritage’, observing that these ‘constitute a shared source of remembrance, understanding, identity, dialogue, cohesion and creativity for Europe’.23 This echoes the definition of the ‘common heritage of Europe’ contained in the 18

19 20 21 22 23

See, indicatively, Tuuli Lähdesmäki, ‘Rhetoric of Unity and Cultural Diversity in the Making of European Cultural Identity’ (2012) 18 ijc Policy 59; Monica Sassatelli, Becoming Europeans. Cultural Identity and Cultural Policies (Palgrave Macmillan 2009); Gerard Delanty, ‘Models of European Identity: Reconciling Universalism and Particularism’ (2002) 3 Perspectives on European Politics and Society 345; Rachael Craufurd Smith, ‘Article 151 EC and European Identity’ in Rachael Craufurd Smith (ed), Culture and European Union Law (oup 2004) 279–80. European Parliament resolution towards an integrated approach (n 14) point C. European Commission, ‘Towards an integrated approach’ (n 14) 3 (emphasis added). Ibid 13. See Decision No 1194/2011/EU of the European Parliament and of the Council establishing a European Union action for the European Heritage Label [2011] OJ L303/1, art 3(2) (ehl Decision). eych Decision, Preamble, 1st recital.

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2005 Council of Europe Framework Convention on the Value of Cultural Heritage for Society, which points to ‘all forms of cultural heritage in Europe which together constitute a shared source of remembrance, understanding, identity, cohesion and creativity’ and to ‘the ideals, principles and values, derived from the experience gained through progress and past conflicts, which foster the development of a peaceful and stable society, founded on respect for human rights, democracy and the rule of law’.24 Admittedly, the cultural heritage language of the teu and the tfeu is ­suffici­ently vague that it can be construed in different ways. This allows the European institutions considerable flexibility when adopting specific cultural heritage measures: they can define the concepts used as they deem fit, and they can take into account international developments in the field. 4

Cultural Heritage Actions in the Pre-Maastricht Context

Although prior to the Treaty of Maastricht the European institutions did not possess a formal cultural competence, they developed cultural actions and intervened in heritage matters. In response to Member States’ calls to review their ‘common heritage’ as part of their efforts to give flesh to a shared ‘European identity’,25 the European Parliament was first to suggest concrete measures in the area of cultural heritage. The concept of a European cultural heritage was accordingly conceived as a means to epitomize and substantiate European identity.26 Interestingly, the measures proposed were rather pragmatic. They included: establishing an inventory of heritage assets; creating a fund for heritage preservation purposes; promoting training in restoration practices; approximating the laws of the Member States on the protection of cultural heritage; and fighting theft and illicit trafficking of archaeological treasures and works of art.27 The Commission favoured action on architectural and archaeological her­ itage, revealing a preference for measures oriented toward high-culture, and 24 25 26 27

See Council of Europe Framework Convention on the Value of Cultural Heritage for Society (adopted 27 October 2005, entered into force 1 June 2011) cets 199, art 3. ‘Summit Conference of the Heads of State or Government of the Member States of the European Community, Copenhagen, 14–15 December 1973. Declaration on European Identity’ (1973) 12 EC Bull 118, 119. Oriane Calligaro, ‘From “European Cultural Heritage” to “Cultural Diversity”? The Changing Core Values of European Cultural Policy’ (2014) 45 Politique européenne 60, 62. European Parliament resolution of 13 May 1974 on measures to protect the European cultural heritage [1974] OJ C62/5.

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highlighted the economic and social benefits that support for heritage conservation could generate in terms of employment, regional development, ­tourism, etc.28 The European Parliament proved a staunch supporter of a wider understanding of European cultural heritage beyond emblematic sites and monuments. Having clarified as early as in 1982 that the architectural heritage encompassed ‘urban, rural and industrial architectural works’,29 it suggested extending the concept of European cultural heritage to include ‘scientific, musical and ethno-anthropological heritage’, stating that this ‘bear[s] witness to (…) technical and industrial progress and the culture of ethnic, religious and linguistic minorities’.30 It also invited the Commission to explore the potential for preservation of the ‘European social heritage’, conceived as ‘evidence of the history of the world of work, industrial development, the birth of factories, the lives and struggles of workers’ etc.31 Following the 1983 Solemn Declaration on the European Union, signed by the Heads of State or Government in Stuttgart, which argued for greater engagement in the field of culture and cultural cooperation, especially ‘in order to affirm the awareness of a common cultural heritage as an element in the European identity’,32 measures in the form of training grants, support for projects and events devoted to the conservation of architectural heritage, and financial assistance channelled to the restoration of monuments and sites of special historical significance were given the go-ahead.33 These were

28

29 30 31 32 33

Commission of the European Communities, ‘Community Action in the Cultural Sector. Commission Communication to the Council, Sent on 22 November 1977’ COM (77) 560 (1977) 6 EC Bull Supplement; Commission of the European Communities, ‘Stronger Community Action in the Cultural Sector. Communication from the Commission to the Council and Parliament, Transmitted on 12 October 1982’ COM (82) 590 final 6 EC Bull Supplement; Commission of the European Communities, ‘A Fresh Boost for Culture in the European Community. Commission Communication to the Council and Parliament Transmitted in December 1987’ COM (87) 603 4 EC Bull Supplement. European Parliament resolution on the protection of the European architectural and archaeological heritage [1982] OJ C267/25, point D. European Parliament resolution on stronger Community action in the cultural sector [1983] OJ C342/127, point 16. See also European Parliament resolution on measures in favour of minority languages and cultures [1983] OJ C68/103. European Parliament resolution on the European social heritage [1983] OJ C68/104, point A. European Council, ‘Solemn Declaration on European Union’ (1983) 6 EC Bull 24, para 1.4.3. European Commission, ‘Communication to the Council, the European Parliament and the Economic and Social Committee: New prospects for Community cultural action’ com (92) 149 final, Annex A, 5.

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c­ omplemented by ‘prestige’ actions, such as the European City of Culture34 and other measures, which took the form of resolutions adopted by the Ministers of Culture of the Member States meeting in the Council.35 Action in the field of cultural heritage also took place through internal market measures—and therefore mainly from an economic, market-building perspective. Enacted on the basis of what is now Article 114 tfeu, Directive 93/7/eec on the return of cultural objects unlawfully removed from the territory of a Member State is a clear illustration of the cultural heritage dimension that was developed in EU internal market legislation,36 and it is discussed in detail in Chapter 8 of this volume. 5

Cultural Heritage Actions in the Post-Maastricht Context

Since the entry into force of the Treaty of Maastricht, which brought culture formally within the sphere of EU competences, cultural heritage has formed a constant component of the Union’s cultural cooperation instruments adopted on the basis of Article 167(5) tfeu. Raphael was the first programme which formally sought to encourage cooperation in the field of ‘cultural heritage of European significance’.37 The programme did not define ‘cultural heritage of European significance’, but approached cultural heritage in terms of ‘movable and immovable heritage (museums and collections, libraries and archives, including photographic, cinematographic and sound archives), archaeological and underwater heritage, architectural heritage, assemblages and sites and cultural landscapes’.38 Launched in 1997 for a period of four years, it had a budget of ecu 30 million. It supported projects encouraging the conservation of 34 35

36 37 38

Resolution of the Ministers responsible for Cultural Affairs, meeting within the Council, of 13 June 1985 concerning the annual event ‘European City of Culture’ [1985] OJ C153/2. See, indicatively, Resolution of the Ministers responsible for Cultural Affairs, meeting within the Council, of 17 February 1986 on transnational cultural itineraries [1986] OJ C44/2; Resolution of the Ministers with responsibility for Cultural Affairs, meeting within the Council, of 13 November 1986 on the protection of Europe’s architectural heritage [1986] OJ C320/1; Resolution of the Ministers with responsibility for Cultural Affairs, meeting within the Council, of 13 November 1986 on the conservation of works of art and artefacts [1986] OJ C320/3. Council Directive 93/7/eec of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State [1993] OJ L74/74. Decision No 2228/97/EC of the European Parliament and of the Council of 13 October 1997 establishing a Community action programme in the field of cultural heritage (the Raphael programme) [1997] OJ L305/31, art 1 (Raphael Decision). Ibid art 2.

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cultural heritage, including complex operations for ‘works, monuments or sites of exceptional, historic, architectural or artistic importance’ (the ‘­European heritage laboratories’);39 the pooling of knowledge and skills; improved public access to, participation in, and awareness of cultural heritage; cooperation with non-member countries and competent international organizations, and others. The successors of Raphael—Culture 2000,40 operational for the period 2000–06 with a total budget of €403.5 million; and Culture,41 which ran from 2007 to 2013 with a budget of €400 million—were framework programmes addressing the cultural sector in general. They both supported heritage-related projects, albeit only the former mentioned ‘sharing and highlighting, at the ­European level, the common cultural heritage of European significance; [and] disseminating know-how and promoting good practices concerning its conservation and safeguarding’ among its objectives.42 Creative Europe,43 which enjoys a budget of approx. €1.46 billion for the period 2014–20, expressly lists among its goals the ‘promotion of Europe’s cultural heritage’ and ‘strengthen[ing] the competitiveness of the European cultural and creative sectors’, which cover the heritage sector.44 The programme also supports prominent EU actions in the field of cultural heritage, such as the EU Prize for Cultural Heritage,45 the European Heritage Days (ehd), a 1985 initiative of the Council of Europe, coorganized with the EU since 1999, which offers access to rarely opened monuments and sites on an annual basis,46 and the ehl and the eych. 39 40

41 42 43

44 45 46

Ibid Annex. Decision No 508/2000/EC of the European Parliament and of the Council of 14 February 2000 establishing the Culture 2000 programme [2000] OJ L63/1 (Culture 2000 Decision); Decision No 626/2004/EC of the European Parliament and of the Council of 31 March 2004 amending Decision No 508/2000/EC establishing the Culture 2000 programme [2004] OJ L99/3. Decision No 1855/2006/EC of the European Parliament and of the Council of 12 December 2006 establishing the Culture Programme (2007 to 2013) [2006] OJ L372/1 (Culture Programme Decision). Culture 2000 Decision, art 1. Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC [2013] OJ L347/221 (Creative Europe Regulation). Ibid arts 2 and 3. See European Commission, ‘European Union Prize for Cultural Heritage’ accessed 15 January 2019. Council of Europe, ‘European Heritage Days (ehds)’ accessed 15 January 2019.

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Cultural heritage has also been closely associated with the use of the open method of coordination (omc) in the field of culture. As ‘a non-binding, ­intergovernmental framework for policy exchange and concerted action’,47 the cultural omc has been applied, since 2008, in order to structure Member States’ cultural cooperation, promote the exchange of best practices, and foster national policies through recommendations for national policy-makers.48 Cultural heritage themes have been selected as topics for action by dedicated working groups, which gather experts from Member States on a voluntary basis. In the period 2008–18, four working groups (WGs) have specifically dealt with cultural heritage: the WG on the mobility of collections of works of art (2008–10); the WG on the simplification of the lending and borrowing of works of art among the Member States (2011–12); the WG on participatory governance of cultural heritage (2015–16); and the WG on traditional and emerging heritage professions (2017–18).49 Moreover, cultural heritage has been the object of several studies funded by the Commission on issues such as the prevention and fight against the illicit trafficking of cultural goods, the valuation of works of art, and others.50 Notably, cultural heritage has also received attention within the framework of EU policies other than culture—a course of action that is legitimized by Article 167(4) tfeu and other Treaty provisions that require consideration to be given to cultural heritage, such as Article 107(3)(d) tfeu. This can be seen in internal market legislation,51 state aid policy,52 and key support instruments in policies such as economic, social, and territorial cohesion, research, or agriculture,53 and measures introduced as part of the EU’s relations with 47 48

European Commission, ‘A European agenda for culture’ (n 2) 12. See Evangelia Psychogiopoulou, ‘The Cultural Open Method of Coordination: A New Boost for Cultural Policies in Europe?’ (2017) 24 mjecl 264. 49 See ceu, ‘Work Plan for Culture 2008–2010’ (n 1); ceu, ‘Work Plan for Culture 2011–2014’ (n 1); ceu, ‘Work Plan for Culture 2015–2018’ (n 1). 50 See ceu, ‘Work Plan for Culture 2011–2014’ (n 1); ceu, ‘Work Plan for Culture 2015–2018’ (n 1). 51 See, indicatively, Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 [2014] OJ L159/1 (Return of Cultural Objects Directive); Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products [2009] OJ L286/36. 52 See, for instance, Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty [2014] OJ L187/1, arts 4 and 53. 53 See European Commission, ‘Mapping of Cultural Heritage Actions in European Union Policies, Programmes and Activities (latest update: May 2017)’ accessed 15 January 2019.

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­ artner countries and regions.54 While the emphasis has been on tangible herp itage, intangible heritage has also been partly addressed.55 In its 2014 Conclusions on cultural heritage as a strategic resource for a sustainable Europe, the Council noted that cultural heritage cuts across an array of policies: regional development, social cohesion, agriculture, maritime affairs, environment, tourism, education, the digital agenda, and research and innovation.56 It found such policies to have ‘a direct or indirect impact on cultural heritage’, and considered cultural heritage to have ‘a strong potential for the achievement of their objectives’.57 On this basis, it called on Member States and the Commission, within their respective spheres of competence, to ‘mobilise available resources for supporting, enhancing and promoting cultural heritage via an integrated, holistic approach’, and to ‘contribute to the mainstreaming of cultural heritage in national and European policies’.58 Both the European Parliament and the Commission agreed with such proposals,59 underlining the transversal policy relevance of cultural heritage. 6

Operationalization of Cultural Heritage and the Quest for a European Dimension

The Union’s cultural cooperation programmes, adopted as part of the Union’s cultural policy, have generally abstained from defining European cultural heritage. This does not mean that there has been no operational conceptualization of a ‘European dimension’ of cultural heritage as part of their enactment and implementation. Such a European dimension has mostly rested in requirements that a ‘transnational element’ be included in eligible projects for funding, usually implying operators from different Member States and the ­involvement of European networks and organizations, with a European vocation in the activities financed. Projects of an exemplary or innovative nature have also been perceived as stimulating a European dimension of cultural heritage. This is also the case with highly symbolic actions, such as the ehd and the ehl. 54 Ibid. 55 For a detailed overview of the EU’s dealings with intangible cultural heritage, see Chapter 13 by Hanna Schreiber in this volume. 56 ceu, ‘Cultural heritage as a strategic resource’ (n 3) para 8. 57 Ibid. 58 Ibid paras 11–12. 59 See European Commission, ‘Towards an integrated approach’ (n 14); European Parliament resolution towards an integrated approach (n 14).

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By promoting access to cultural heritage through Europe-wide events, which take place simultaneously in the Member States and which are strongly promoted as ‘European’, the ehd attributes a European dimension to the context within which cultural heritage is approached and enjoyed. From this perspective, it could be argued that the initiative fosters a common, European ‘experience’ of cultural heritage. The ehl confers a European dimension to selected sites, covering ‘monuments, natural, underwater, archaeological, industrial or urban sites, cultural landscapes, places of remembrance, cultural goods and objects and intangible heritage associated with a place, including contemporary heritage’60 for their ‘symbolic value’ and for ‘hav[ing] played a significant role in the history and culture of Europe and/or the building of the Union’.61 It should be noted, however, that the symbolic value and role are left to the candidate sites to explain. Flexibility is granted in this regard, as these are free to demonstrate their ‘cross-border or pan-European nature’, namely how their past and present influences and attractions go beyond the borders of a Member State; their place and role in European history and European integration and their links with key European events, personalities, or movements; and/or their place and role in the development and promotion of common values that underpin European integration.62 The quest for a ‘European dimension’ of cultural heritage has been much less pronounced in the context of heritage-related measures adopted within the framework of other EU policies. It is indicative, for instance, that Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a Member State covers objects of historical, paleontological, ethnographic, and numismatic interest or scientific value, provided that they are classified or defined as national treasures by the Member States.63 In the context of the Directive, the objects which amount to national treasures ‘belong’ to ‘cultural heritage of European significance’.64 Directive 2014/52, in turn, on the assessment of the effects of certain public and private projects on the environment provides for the assessment of the direct and indirect significant effects of a project on cultural heritage, but makes no reference to European cultural heritage.65 It mentions only that the cultural heritage which comes 60 ehl Decision, art 2. 61 Ibid art 7(1). 62 Ibid. 63 See Return of Cultural Objects Directive, recital 9. 64 Ibid recital 3. 65 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L124/1.

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under its scope comprises ‘urban historical sites and landscapes, which are an integral part of the cultural diversity that the Union is committed to respecting and promoting in accordance with Article 167(4) tfeu’.66 It is evident that the two instruments advance two distinct rationales for action touching upon cultural heritage through the conduct of policies other than culture. Directive 2014/60/EU perceives the protection of national heritage assets of exceptional importance—a legitimate interest of the Member States which limits the ­operation of the internal market as recognized by Article 36 eec—as a concurrent EU policy objective consisting of the protection of cultural heritage of European significance. Directive 2014/52 views cultural heritage assets as forming part of the cultural diversity which the EU is required, by virtue of the cultural mainstreaming clause of Article 167(4) tfeu, to respect and promote. Other instruments, such the European Regional Development Fund, whose investment priorities include ‘preserving and protecting the environment and promoting resource efficiency by (…) conserving, protecting, promoting and developing natural and cultural heritage’,67 or the General Block Exemption Regulation, which exempts from the notification requirement of Article 108(3) tfeu state aid for heritage conservation (subject to determined thresholds),68 do not expand on any particular ‘European dimension’ of cultural heritage. They merely refer to cultural and natural heritage, without attributing any ‘European’ features to them. A reference to the ‘collective heritage of [the] Union’ can be found in the EU’s Framework Programme for Research and Innovation—Horizon 2020, under the priority ‘Societal Challenges’, in relation to research on European identity, memory, integration, and cultural interaction, which recalls the early attempts of the European project to incarnate a European identity by linking it to the concept of European cultural heritage.69 In other research and innovation rubrics of Horizon 2020, such a European dimension is missing from activities related to cultural heritage—for instance with respect to converging technologies or climate change.70 66 67

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Ibid recital 16. Regulation (EU) No 1301/2013 of the European Parliament and of the Council of 17 December 2013 on the European Regional Development Fund and on specific provisions concerning the Investment for growth and jobs goal and repealing Regulation (EC) No 1080/2006 [2013] OJ L347/289, art 5. See Regulation (EU) No 651/2014, arts 4 and 53. Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014–2020) and repealing Decision No 1982/2006/EC [2013] OJ L347/104, Annex i, Part iii, point 6.3.3. Ibid Annex i, Part iii, points 1.3.3 and 5.3.

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Instrumental Uses of Cultural Heritage

The cultural heritage measures that received the green light by the European institutions in the pre-Maastricht context were founded on a combined understanding of the positive socio-economic effects that relevant actions could produce, alongside the political gains in terms of promoting a sense of belonging to the European polity and European identity. Such an instrumental approach to cultural heritage in pursuit of economic, social, and political objectives continued post-Maastricht and was bolstered and diversified. For example, the Union’s cultural cooperation programmes have clearly espoused an instrumental approach to culture and cultural heritage. The Raphael programme recognized the contribution of the preservation of cultural heritage to job creation, the promotion of cultural tourism, regional development, and an improved quality of life, and encouraged projects with ‘a multiplier effect in cultural, educative or socioeconomic terms’.71 Culture 2000 expressly targeted the ‘fostering of intercultural dialogue’ and the ‘recognition of culture as an economic factor and as a factor in social integration and citizenship’.72 The programme also sought to ‘strike a significant chord with the people of Europe and help to increase their sense of belonging to the same community’.73 Its successor for the period 2007–13, the Culture programme, aspired to ‘enhance the cultural area shared by Europeans’ in order to ‘encourag[e] the emergence of European citizenship’.74 Creative Europe has established a framework for the funding of heritagerelated projects that advances a particularly instrumental vision of culture, acknowledging its potential to make a major contribution to the Union’s economic and social agenda. The programme is based on the premise that culture and cultural activities have a dual nature, ‘recognising, on the one hand, the intrinsic and artistic value of culture, and on the other hand the economic value of [the cultural and creative] sectors, including their broader societal contribution to creativity, innovation and social inclusion’.75 It expressly notes its intention to ‘contribute to the achievement of the objectives of the Europe 2020 Strategy’ for smart, sustainable, and inclusive growth,76 and declares that the ‘cultural and creative sectors are a source of innovative ideas that can be 71 72 73 74 75 76

Raphael Decision, recital 5 and art 4. Culture 2000 Decision, art 1. Ibid Annex i, point i.3. Culture Programme Decision, art 3(1). Creative Europe Regulation, recital 20. Ibid art 5.

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turned into products and services that create growth and jobs and help address societal changes’.77 Important cultural heritage actions of the Union that receive Creative Europe’s support are also permeated by an instrumental logic. According to the ehl Decision, for instance, the ehl aims at strengthening European citizens’ sense of belonging to the Union and intercultural dialogue.78 The selected sites are to enhance the value and profile of cultural heritage, increase its role in economic and sustainable development at the regional level, in particular through cultural tourism, foster synergies between cultural heritage and contemporary creation and creativity, and promote democratic values and human rights.79 The ehl sites are thus charged with a multiplicity of political, cultural, and socio-economic objectives, reflecting the array of instrumental benefits that are expected from cultural heritage. This instrumental approach to culture in general, and to cultural heritage in particular, is also reflected in the eych initiative. This is apparent when one considers the context through which the eych emerged. Both the Council’s and the European Parliament’s invitations to the Commission to propose and designate, preferably for 2018, a eych formed part of a wider process that underlined the role of heritage policies for helping attain the Union’s social and economic objectives. The Council’s invitation was included in its Conclusions on participatory governance of cultural heritage, which stressed ‘the increased recognition at the international level of a people-centred and culture-based approach to foster sustainable development’ and ‘the increased recognition at European, national, regional and local level of the social dimension of cultural heritage’.80 The Council viewed the participatory governance of cultural heritage as offering ‘opportunities to foster democratic participation, sustainability and social cohesion’ and to ‘face (…) social, political and demographic challenges’.81 As a result, in addition to inviting the Commission to consider a eych, it invited the Member States to promote governance frameworks that ‘address, respect and enhance (…) [the] social, cultural, symbolic, economic and environmental values’ of cultural heritage and that allow it ‘to contribute to objectives in different policy areas, including to smart, sustainable and inclusive growth’.82 In a similar vein, the Parliament’s call to the Commission for a eych was connected to calls for recognizing and properly exploiting the 77 78 79 80 81 82

Ibid recital 7. ehl Decision, art 3. Ibid recital 9. Council conclusions on participatory governance of cultural heritage (n 16), paras 4–5. Ibid para 8. Ibid paras 15–16.

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full potential of cultural heritage for sustainable, human, social, and economic development.83 The Commission’s proposal, published on 30 August 2016, observed that an added value of the eych would lie, amongst other issues, in the strengthened ‘awareness of the importance of the European cultural heritage in terms of economic growth and social cohesion’.84 The final decision, adopted in May 2017 following the political agreement reached between the European Parliament and the Council in February 2017, stipulates that the overall purpose of the eych is ‘to encourage the sharing and appreciation of Europe’s cultural heritage as a shared resource, to raise awareness of common history and values, and to reinforce a sense of belonging to a common European space’,85 which reflects the long-established integrative role that has been ascribed to cultural heritage. The eych Decision declares that the general objective of the eych is to ‘encourage and support the efforts of the Union, the Member States and regional and local authorities, in cooperation with the cultural heritage sector and broader civil society, to protect, safeguard, reuse, enhance, valorise and promote Europe’s cultural heritage’.86 This is exemplified by three key objectives, characterized for the most part by an instrumental dynamic: [to] promot[e] the role of Europe’s cultural heritage as a pivotal component of cultural diversity and intercultural dialogue (…) highlight[ing] the best means to ensure the conservation and safeguarding of Europe’s cultural heritage as well as [its] enjoyment (…) by a wider and more diversified audience, including through audience-development measures and heritage education, thereby promoting social inclusion and integration; [to enhance its] contribution (…) to society and the economy, through its direct and indirect economic potential, which includes the capacity to underpin the cultural and creative sectors, including small and medium-sized enterprises, and to inspire creation and innovation, to promote sustainable development and tourism, to enhance social cohesion and to generate long-term employment; [and to] (…) promot[e] cultural heritage as an important element of the relations between the Union and third countries.87 83 84

European Parliament, Towards an integrated approach, point A. European Commission, ‘Proposal for a Decision of the European Parliament and of the Council on a European Year of Cultural Heritage’ com (2016) 543 final, 17. 85 eych Decision, art 1(2). 86 Ibid art 2(1). 87 Ibid.

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This is followed by a list of no less than 14 specific objectives for the eych to attain, mainly of a cultural, economic, social, environmental, and political nature.88 These include, inter alia: ‘promot[ing] debate, research and the exchange of good practices on the quality of conservation, safeguarding, innovating reuse and enhancement of cultural heritage’; ‘mak[ing] cultural heritage accessible to all’; ‘highlight[ing] and enhanc[ing] the positive contribution of cultural heritage to society and the economy through research and innovation’; and ‘encourag[ing] synergies between cultural heritage and environment policies by integrating cultural heritage into environmental, architectural and planning policies, and by promoting energy-efficiency’.89 Other specific objectives of the eych include: ‘to encourage regional and local development strategies that tap into the potential of cultural heritage, including through the promotion of sustainable tourism’; ‘to promote research and innovation in relation to cultural heritage’; ‘to highlight the potential of cooperation in matters of cultural heritage for developing stronger ties (…) with countries outside the Union and for encouraging intercultural dialogue, post-conflict reconciliation and conflict prevention’; and ‘to highlight significant events that have a symbolic importance for Europe’s history and cultural heritage’.90 This is no doubt an overwhelming list of objectives, and it will be an extremely burdensome task for the eych to deliver them. Framed by reference to a series of instrumental uses of cultural heritage, the objectives are clearly overambitious, which raises concern about the successful implementation of the eych. The wide set of instrumental aims can significantly complicate the identification of specific eych activities and the formulation of its agenda. Devising actions that address such a rich variety of objectives is not a straightforward exercise and requires significant policy-linking capacities— a particularly complex venture given the need for a working interpretation of ‘Europe’s cultural heritage’ that can be operational for the planning and implementation of activities at both the European and the national levels, whilst also being mindful of national/local sensitivities and the heterogeneity of the actors and interests involved. This will be a test of the Commission’s plans to reach out to civil society and stakeholders in exchanging information on ideas and activities91 and taking steps to ensure proper coordination 88 Ibid art 2(2). 89 Ibid. 90 Ibid. 91 European Commission, ‘Launch of the Special Call “Voices of Culture and Heritage”’ accessed 15 January 2019.

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of the eych at the national and Union levels,92 coupled with a ‘transversal approach’ that creates synergies between the various heritage-related programmes and initiatives of the Union and therefore between the responsible Commission departments.93 In addition, the European Parliament’s guarantee of a separate financial envelope for the eych94—eventually agreed at €8 ­million95—seems a rather limited amount in view of the abundance of objectives pursued. Having said the above, it should be noted that an instrumental approach equally characterizes the EU’s heritage-related action that stems from policies other than culture. In contrast with the cultural heritage measures adopted on the basis of Article 167(5) tfeu, all other EU measures with a cultural her­ itage component must in principle be adopted to attain the specific aims mentioned in the Treaty article that serves as their legal basis. This usually results in cultural heritage being used as an instrument to attain the specific goals of the EU policies concerned. Over the last few years this instrumental mindset has intensified, with a clear focus on the economic and social dimensions of cultural heritage. In particular, in its 2014 Conclusions on cultural heritage as a strategic resource for a sustainable Europe the Council recognized the value of cultural heritage for society from the cultural, social, economic, and environmental points of view.96 With respect to the role of cultural heritage in creating and enhancing social capital, the Council stressed not only the ability of cultural heritage to promote a sense of belonging to a wider community and facilitating a better understanding and respect between peoples, but also its potential for reducing social disparities, promoting social cohesion and inclusion, developing skills and innovation, and supporting education.97 The economic value of cultural heritage was also emphatically acknowledged, particularly in relation to

92 93 94

95 96 97

EYCH Decision, arts 4–5. Ibid art 5(2). See European Parliament, ‘Report on the proposal for a decision of the European Parliament and of the Council on a European Year of Cultural Heritage (com (2016) 0543 – C8-0352/2016 – 2016/0259(cod)). Draft European Parliament Legislative Resolution’ (16 November 2016) A8-0340/2016, Amendment 10 accessed 15 January 2019. The Commission had suggested implementing the eych within existing budget limits through the use of existing EU programmes, in particular Creative Europe. eych Decision, art 9. ceu, ‘Cultural heritage as a strategic resource’ (n 3) para 2. Ibid para 5.

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l­ocal and regional development, rural and urban development, tourism, and employment.98 .

8 Conclusions Cultural heritage attracted the attention of the European institutions prior to the Treaty of Maastricht, and efforts to strengthen a feeling of belonging to the European polity and advance European integration through the creation of a common market prompted initiatives in the field. A key component of the EU’s cultural heritage action currently stems from the EU’s cultural policy and the measures that are introduced in its context. An important strand of EU heritage-related activity also derives from EU policies other than culture. The 2017 eych Decision pertinently states in this respect that: Policies for the maintenance, restoration, conservation, reuse, accessibility and promotion of cultural heritage and related services are primarily national, regional or local responsibilities. Nevertheless, cultural heritage has a clear European dimension which is addressed, in addition to cultural policy, through other Union policies such as education, agriculture and rural development, regional development, social cohesion, maritime affairs, environment, tourism, the digital agenda, research and innovation, and communication.99 This ‘European dimension’ of cultural heritage, to which the eych Decision alludes, has proved to be a source of anxiety for the European institutions and their cultural heritage endeavours. Inasmuch as the Treaties refer to ‘Europe’s cultural heritage’, ‘bringing the common cultural heritage to the fore’ and preserving ‘cultural heritage of European significance’, the European institutions have sought to exhibit and substantiate the ‘European dimension’ of their actions. In doing so, they have adopted for the most part a ‘commonalities’ discourse, but this has been invariably accompanied by references to cultural diversity. Such an approach is epitomized by the 2007 Cultural Agenda, which refers to both a ‘common cultural heritage’ shared by Europeans and ‘Europe’s rich and diverse cultural heritage’.100

98 Ibid para 6. 99 eych Decision, Preamble, 1st recital. 100 See European Commission, ‘A European agenda for culture’ (n 2) 2 and 5.

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The actual operationalization of the European dimension of cultural heritage in the context of specific actions undertaken at the EU level reveals a mixed picture. In some instances, it has rested on the incorporation of a ‘transnational element’ in the activities concerned and in the promotion of partnerships and networks, especially with respect to cultural cooperation projects that receive EU funding. In other instances it has been embodied in the symbolic attribution of European meaning to heritage assets and events of a national, regional, or local character, and the broader duty of European institutions to respect and promote cultural diversity. Occasionally however, no particular European dimension to cultural heritage was espoused or explained by the measures adopted. The analysis herein shows that the European institutions have generally endorsed an instrumental approach to cultural heritage, even though its intrinsic value is also eminently acknowledged.101 EU actions have been closely linked to instrumental aims involving the role of cultural heritage in bolstering European identity, fostering intercultural dialogue, encouraging employment, supporting economic and social development, and promoting social inclusion. This mix of political, cultural, and socio-economic benefits characterized the heritage actions of the European institutions already in the pre-Maastricht context, and post-Maastricht there is no substantive shift in the conceptual background concerning the instrumental uses of cultural heritage—the same mix of political, cultural, and socio-economic benefits are expected to be gained. During the past few years, however, there has been a marked emphasis on the socio-economic potential of cultural heritage and the exploitation of synergies between cultural heritage and various EU policies from a socioeconomic perspective. The fact that cultural heritage appears to have become an important reference point in several EU policies due to its socio-economic ‘instrumentalities’ should come as no surprise. In fact it is questionable whether—and if so to what extent—culture in general and cultural heritage in particular can be detached from such aims. What lurks behind this ‘heritagization’ of such a wide spectrum of EU policies, however, is the danger of an ‘instrumental overload’, which could result in an incapacity or unwillingness to treat cultural heritage equally seriously within the framework of the various EU policies concerned. Such an instrumental overload could also dilute energies and undermine cultural actions aimed at coping with the significant number of challenges affecting the sector. These include decreased public budgets for the safeguarding and management of both tangible and intangible cultural heritage, environmental 101 ceu, ‘Cultural heritage as a strategic resource’ (n 3) para 9.

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threats and urbanization pressures, transforming expectations in terms of access to and enjoyment of cultural heritage due to the digital shift, combating the illegal trafficking of heritage assets, looting and destruction of cultural ­heritage in conflict areas, etc. Whether any concrete measures will be taken in this latter regard remains to be seen, especially with respect to measures for the identification of those good practices which could usefully inform Member States and measures that foster greater cooperation with competent international organizations and bodies.

Chapter 4

The Single European Market and Cultural Heritage: The Protection of National Treasures in Europe Michele Graziadei and Barbara Pasa 1 Cultural Heritage: Multiple Actors, Multilevel Actions Cultural heritage law is a versatile, multifaceted topic. From a European private and comparative law perspective it is a rather complex field too. Even a casual observer soon realizes that in recent decades a growing number of international treaties and European legal acts frame the law and policy on the protection of cultural heritage at the transnational level. The EU in particular is a kind of laboratory in this respect. Across Europe several layers of sources (national/ international; formal/informal; legislative/judicial; public/private) overlap, contributing to the development of eclectic solutions and the ­generation of normative tensions as well. This complexity is evident in the rules governing the circulation of cultural goods. The EU does not have an all-encompassing competence to legislate on this matter, which therefore still involves general private law issues under the laws of the Member States. In those areas of the law in which the EU is competent, the directives adopted by the Union have to be transposed into national legal systems, with the effect that some or many aspects of domestic private law will have an EU basis, or will be affected by EU law. Even when the European measures are not implemented, national jurisdictions and their private law regimes are inevitably put under pressure by EU law, thus they evolve in the light of it and are ‘fertilized’ by it. On the other hand, however, Member States maintain their sovereignty with respect to their 'national treasures'. Against this background, the Chapter contributes to the general debate on the perennial tension between the EU and the Member States by addressing some of the questions concerning the circulation of cultural goods within the internal market. The tension between the centre and the periphery, typical of a sui generis supranational actor such as the EU, is complicated by the participation of the Union and the Member States to the international community: their policies and their national legislation cannot disregard the global framework. This Chapter then provides a short sketch of the development and the key features of the global framework, to better understand the EU legal landscape and that of its Member States. Going through fundamental United Nations

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Educational, Scientific and Cultural Organization (unesco) conventions, United Nations Security Council (unsc) resolutions, the International Institute for the Unification of Private Law (unidroit) and the Council of Europe’s legal instruments, to the self-regulation of national and international associations of museums such as the American Alliance of Museums (aam), Association of Art Museum Directors (aamd), International Council of Museums (icom) and confederation of art and antique dealer associations (such as the cinoa Confédération internationale des Négociants d’oeuvres d’art/ International Confederation of Art & Antique Dealer Associations), the Chapter tackles the response of the EU to current global challenges like terrorism, and present the EU as global actor and trendsetter in the area covered by our analysis. The legal framework of trade in cultural property is then examined by considering the language questions and the terminological issues arising from the reference to the notion of ‘national treasure’ in relation to those of ‘cultural property’ and ‘cultural heritage’, which are recurrent in key international and European law provisions. The Chapter also discusses the relationship between ‘national treasures’ and the broad notion of ‘culture’, by addressing the ‘cultural exception’ to free trade (World Trade Organization and Treaty of the Functioning of the ­European Union), the notion of ‘national treasure’ in the Directive 2014/60 and in some Member States’ implementation measures, to highlight the problematic legacy of the repealed Annex of the Directive 93/7. The Chapter finally casts light on the Member States great freedom to define their ‘national treasures’, which is in tension with other aspects of EU policy in the field of cultural heritage. We further make the point that, with respect to cultural property, any legal regime based on the stereotypical classic individual, absolute, and exclusive ownership is bound to be inadequate. In our view, therefore, even when in private hands, cultural property provides an example of ‘another way of owning’, bound up, as it is, with social obligations concerning its fruition. 2

Early Goals

With the aim of harmonizing the global legal (dis)order, in the aftermath of the Second World War two main actors, first unesco and later on unidroit, proposed the adoption of international instruments for the protection of cultural heritage.1 Since the 1950s the international community has shown 1 For instance, see Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010) 31 ff; Janet Blake, International Cultural Heritage Law (oup 2015); ­Manlio

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an i­ncreasingly shared political commitment toward targeting the illicit trade in cultural objects, both in times of peace and in wartime (1954 Hague Convention).2 Artworks, archaeological objects, antiquities, curiosities, specimens and collections, or high-value indigenous objects that combine elements of sacredness and beauty all come into consideration in this respect.3 The main goal has been to combat the illicit trafficking in cultural objects, regulating States’ actions to claim the return of such objects (1970 unesco Convention).4 For some States the general rules on the acquisition of ownership a non domino (‘possession vaut titre’) impede the efficiency of return mechanisms. This is the case in most civil law countries worldwide, while in principle the true o­ wner prevails over all other purchasers in common law jurisdictions.5 These inconsistencies have been exploited by fraudsters and criminals involved in ‘artwork laundering’.6 The improvement of the return mechanisms for stolen and illegally exported cultural objects, through a uniform law approach impacting on national substantive laws concerning the good faith acquisition of cultural objects, was thus promoted by unidroit (1995 unidroit Convention).7

2 3 4 5

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Frigo, La Circulation des biens culturels (Martinus Nijhoff) 2016; Francesco Francioni, ­Cultural property in International Law, in Michele Graziadei, Lionel Smith (eds.), Comparative Property Law: Global Perspectives (Edward Elgar 2017), 374. Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 249 unts 240. Margaret Bruchac, ‘Art or Patrimony? Indigenous Objects in the International Art Market’ (2013) 54 Anthropology News 7. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 unts 231. Italian law, for example, protects an acquisition made in good faith from a person who is not the owner, even if the goods are stolen or involuntarily lost (art 1153 of the Italian Civil Code). Good faith is presumed (art 1147 c. c.). France (art 2276, ex 2279 of the French Civil Code) and Germany (para 935 BGB) protect an acquisition made in good faith only if the goods are not stolen or involuntarily lost. Cf Francesca Fiorentini, Kristin Hausler, Alicja Jagielska-Burduk, and Andrzej Jakubowski, ‘Editorial’ (2016) 2(2) saaclr 9, 15. Alessandro Chechi, The Settlement of International Cultural Heritage Disputes (oup 2014) 90 ff (and the entire chapter for a thorough treatment of related problems). Fiorentini, Hausler, Jagielska-Burduk, and Jakubowski (n 5) 16. In the famous case of Winkworth v Christie Manson & Woods Ltd [1980] Ch. 496, [1980] 1 All ER 1121, cultural goods stolen in England had been brought to Italy and were acquired there under art 1153 of the Italian Civil Code by an art collector who was unaware of the fact that they had been stolen. They were then moved back to England and sold on auction. The original owner claimed ownership, but the court rejected the claim, because there had been a good faith acquisition by the art collector according to the law of Italy, where the acquisition took place. unidroit Convention on Stolen or Illegally Exported Cultural Objects (adopted 24 June 1995, entered into force 1 July 1998) 34 ilm 1322.

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The drafting of these Conventions was an opportunity to highlight the importance of protecting cultural heritage as a model of public education, ­instilling a sense of responsibility in both the public and private sectors. Indirectly, these treaties forged a vocabulary as well, which helped to frame several other instruments. Unilateral repatriation has thus become more common following these international interventions. For example, the Denver Art Museum not only returned some 40 wooden totems, known as vigangos, to Uganda recently, but also paid for their return.8 Unfortunately, many of the States parties to the 1970 unesco Convention have either limited or cherry-picked their obligations.9 The national models for implementing the 1970 unesco Convention are remarkably diverse, both in terms of their black letter law and in practice.10 Furthermore, the number of trained officials to supervise controls over the export of cultural objects is inadequate and varies from State to State,11 despite agreed-upon mechanisms to increase controls on a reciprocal basis. The 1995 unidroit Convention has been subjected to criticism as well, because it requires the buyer to verify the provenance of the cultural object in order to be able to obtain compensation, when compelled to return a stolen object. It has become necessary to explain the ‘due diligence in contrahendo’ requirement both to possessors, to enable them to know what to do, and to national judges, to enable them to assess the possessor’s conduct, in accordance with the principle of legal certainty. Despite these reservations, the 1995 unidroit Convention provided the basis for new European rules to govern the cross-border circulation of cultural goods.12 European developments become significant in the 1990s, with the signature of the Treaty on European Union (teu, Maastricht Treaty, soon replaced by the Amsterdam Treaty), the Single European Market strategy, the accession of new 8 9

10

11 12

James AR Nafziger, ‘Trading and Returning Cultural Objects under International Law’ (2016) 2(2) saaclr 179, 189. On the Italian practice: Tullio Scovazzi (ed), La restituzione dei beni culturali rimossi con particolare riguardo alla pratica italiana (Giuffrè 2014). Japan, for example, confines its Treaty obligations under art 7 to prohibiting the importation of ‘specifically designated’ foreign cultural objects; the United States has been hostile to the enforcement of foreign export controls, except in cases of illegally exported objects characterized as stolen property. See Nafziger (n 8) 189. See Patty Gerstenblith, ‘Models of Implementation of the 1970 unesco Convention: Can Their Effectiveness Be Determined?’ in Lyndel Prott, Ruth Redmond-Cooper, and Stephen Urice (eds), Realising Cultural Heritage Law: Festschrift for Patrick O’Keefe (Institute of Art and Law 2013) 9. Nafziger (n 8) 190. Marina Schneider, ‘The 1995 unidroit Convention: An Indispensable Complement to the 1970 unesco Convention and an Inspiration for the 2014/60/EU Directive’ (2016) 2(2) saaclr 149, 155.

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Members States to cover almost the whole of western Europe, the Schengen Agreement, and a new process of membership negotiations with ten countries from Central and Eastern Europe. In those years, the EU institutions decided to establish a system of controls over the export of cultural objects, aimed at supplementing the protection afforded by heterogeneous national rules. Regulation 3911/9213 was intended to ensure uniform export controls at the EU’s external borders of national cultural objects exported outside the Single European Market, while Directive 93/714 aimed at facilitating the return of certain cultural objects unlawfully removed from the territory of a Member State, thereby contributing to the safeguarding of national cultural heritage, and also introduced the right to fair compensation for possessors who purchased in good faith. Both instruments were applied to those cultural objects that belonged to one of the categories listed in an Annex, and both derived from the necessity to reconcile the free movement of goods with the determination of EU Member States to protect their ‘national treasures’. National legislative regimes indeed prohibit, or at least restrict, the export of cultural objects,15 but often the States of destination (i.e. the market nations) consider the import of such objects as permissible under their domestic legislation, and refuse to apply foreign legislation (i.e. that of the source nation) which prohibits, or limits, the export of cultural objects. Cultural nationalism (namely, the identification of the State as the ‘ultimate authority’ in this matter) has thus determined the global movement to ensure, 13 14

15

Council Regulation (eec) 3911/92 of 9 December 1992 on the export of cultural goods [1992] OJ L395/1. Council Directive 93/7/eec of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State [1993] OJ L74/74. The Italian literature on the subject is substantial: see, e.g., Manlio Frigo, La circolazione internazionale dei beni culturali: diritto internazionale, diritto comunitario e diritto interno (2nd edn, Giuffrè 2007); François Lafarge, ‘Beni culturali’ in Mario P Chiti and Guido Greco (eds), Trattato di diritto amministrativo europeo: Parte speciale, vol 2 (Giuffrè 2007); Michele Graziadei, ‘Beni culturali (circolazione dei) (diritto internazionale privato)’, Enciclopedia del diritto, Annali ii.2 (2008); Barbara Pasa, ‘Beni culturali (diritto dell’Unione europea)’ in Digesto delle discipline privatistiche: sezione civile, Aggiornamento (Utet 2010); Lorenzo Casini (ed), La globalizzazione dei beni culturali (Il Mulino 2010); Geo Magri, La circolazione dei beni culturali nel diritto europeo: limiti ed obblighi di restituzione (esi 2011); Lorenzo Casini, Ereditare il futuro. Quattro dilemmi sul patrimonio culturale (Il Mulino 2016). For recent comments: Robert Peters, Marja van Heese, Bernard Łukańko, Piotr Stec, Marina Schneider, Wojciech W Kowalski, Geo Magri, all in ‘saaclr’ vol 2(2)/2016. This is not a recent tendency: François Lafarge and Cinzia Profeti, ‘Les lois du Grand-­Duché de Toscane relatives à l’exportation d’oeuvres d’art (1737–1859): entre p ­ erfectionnisme législatif et intérêts économiques’ in Benoît Garnot (ed), Normes juridiques et pratiques judiciaires du Moyen-Âge à l’époque contemporaine (Éditions universitaires de Dijon 2007).

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at a supranational level, compliance with national protective regimes for cultural objects between States. Directive 93/7 was criticized by both Member States and European institutions for its narrow scope of application, the short limitation period within which return proceedings could be initiated (within one year after the requesting Member State authority became aware of the location of the object and the identity of its possessor), and its lack of clarity as to the requirements to be met to obtain the return of the cultural object.16 3

What Next

Beginning with onset of the 21st century, unesco’s ‘soft power’ has been used to promote a paradigmatic shift towards more local, community-oriented interventions for the safeguarding of intangible cultural heritage (2003 unesco Convention),17 seeing it as a factor enhancing intergenerational transmission. This approach also inspires the unesco Convention on the Protection of the Underwater Cultural Heritage (2001 unesco Convention),18 which makes the in situ preservation of underwater cultural heritage as the first option, and prohibits the commercial exploitation for trade or speculation of underwater cultural heritage. In order to support States’ actions to preserve and defend cultural and linguistic diversity, unesco decided next to promote and protect the diversity of cultural expressions (2005 unesco Convention).19 This new path is characterized by a growing awareness that non-European States and their intangible cultural heritage are an important factor in bringing human beings closer together and ensuring understanding among them. The international community enhanced international cooperation in the cultural heritage sphere to safeguarding global security, peace, and development. unesco and unsc thus strengthened their cooperation in this field. Since the wars in Kuwait (1990–91) and Iraq (2003), the unsc has become an important global cultural heritage 16 17 18 19

See Manlio Frigo, ‘The Implementation of Directive 2014/60/EU and the Problems of the Compliance of Italian Legislation with International and EU Law’ (2016) 2(2) saaclr 71, 72. unesco Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 unts 1. unesco Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 41 ilm 37. unesco Convention on the Protection and Promotion of the Diversity of Cultural ­Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 unts 311.

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law-maker. The unsc, acting under Chapter vii of the UN Charter, established binding obligations supplementing the existing legal frameworks in the area of cultural heritage. The tragedies in Syria and Iraq gave rise to three ad hoc instruments, strongly supported by unesco, but there are other ad hoc binding resolutions of the unsc dealing with the illicit trafficking in cultural property. unsc Resolution No 2347 of 24 March 201720 creates binding obligations as it requests Member States to take appropriate steps to prevent and counter the illicit trade and trafficking in cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance originating from a context of armed conflict, and urges Member States to introduce effective national measures at the legislative and operational levels where appropriate, and in accordance with obligations and commitments under international law and national instruments, to prevent and counter trafficking in cultural property and related offences. Besides unesco, also the EU strengthened its cooperation with the unsc, to respond to international crime and implement unsc binding resolutions. Since the Iraqi–Kuwait conflict,21 the EU announced its determination to combat the illicit trafficking of cultural property, as highlighted also by the 1992 Framework Decision on the European arrest warrant. This instrument is applicable to the offence of illicit trafficking in cultural goods, including antiques and works of art (Article 2(2)).22 The framework decision on the ­European arrest warrant is not the only measure that applies to the trafficking of cultural property; other measures fall under the scope of the Treaty on the Functioning of the European Union (tfeu), in particular with a view to avoiding 20

unsc Resolution 2347: Maintenance of international peace and security (2017) UN Doc S/RES/2347. 21 See unsc Resolution 661 (1990) UN Doc S/RES/661 and subsequent relevant Resolutions, in particular unsc Resolution 986 (1995) UN Doc S/RES/986 by which the Council imposed a comprehensive embargo on trade with Iraq. 22 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. For a broader view of the tools available to combat the trafficking of cultural property in the EU see the ‘Study on preventing and fighting illicit trafficking in cultural goods in the European Union by the CECOJI-CNRS – UMR 6224, Annex Final Report – October 2011’ accessed 31 January 2019.

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distortion of competition.23 According to the European institutions, the Union’s ­legislation should implement all the relevant decisions of the Security Council as far as the territory of the Community is concerned. The ongoing destruction, looting, and trafficking in cultural property, especially in the Middle East (Iraq, Syria, and in other countries of this region among others) demonstrated the need for the EU to move beyond a protection regime that applied only to the cultural heritage of EU Member States. The EU thus adopted Regulation 1210/2003 on Iraqi cultural property24 and Regulation 1332/2013 on Syrian cultural property,25 both of which ban the import, export, and trade in cultural objects: these regulations indicate that Europe has opted for a strong direct policy against the illicit trafficking in cultural property also outside its borders. The way the perception of illicit traffic in cultural goods has changed is reflected in the increasing visibility of cultural heritage in EU public policy.26 A recent initiative by the EU, stemming from the unsc Res 2347 of 24 March 2017 (above mentioned) and from the agenda of the European Year of Cultural Heritage (2018), is the Proposal for a Regulation of the European Parliament and of the Council on the import of cultural goods presented in July 2017.27 The proposal put forward new rules to ban all illegal import and trafficking of cultural goods from outside the EU, often linked to terrorist financing and other criminal activity. The new rules foresee a number of actions that should make the importation of illicit cultural goods much more difficult. These include the introduction of a new licensing system for the import of archaeological objects, parts of monuments and ancient manuscripts and books, a more rigorous certification system for the importers, who will have to submit a signed statement or affidavit as proof that the goods have been exported legally from the third country. With the aim of ensuring an effective protection, the proposal of the 23 24 25 26 27

Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C326/1, 47. Council Regulation (EC) No. 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No. 2465/96, [2003] OJ L169/6. Council Regulation (EU) No 1332/2013 of 13 December 2013 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria [2013] OJ L335/3. European Commission, ‘Security Union: Cracking down on the illegal import of cultural goods used to finance terrorism’ (13 July 2017) Press Release IP/17/1932 accessed 31 January 2019 com (2017) 375 final, 2017/0158 (cod). On 24 October 2018, the Parliament approved the amendments to the Commission proposal. On 7 November 2018, the Council adopted its position on the draft Regulation and on 11 December 2018 a provisional interinstitutional agreement was reached. On 12 March 2019, the European Parliament adopted its position at first reading, available at accessed 19 March 2019.”

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forthcoming EU Regulation introduces a new common definition for ‘cultural goods at importation’, which covers a broad range of objects including archaeological finds, ancient scrolls, the remains of historical monuments, artwork, collections, and antiques and which applies only to cultural goods that have been shown to be most at risk (i.e. those at least 250 years old at the moment of importation). Trafficking of cultural goods through illicit importing, exporting, and transferring of ownership of cultural property, is indeed a pressing issue for the European Commission, which is thus considering further actions against all the dangers resulting from organized crime, money laundering, and terrorism.28 The global concern for criminal activities related to cultural goods, beyond the EU dimension but affecting the internal law of the Member States, is currently reflected by the intense activity of the Council of Europe on these issues. Recently, the Council of Europe commenced work on a new draft Convention on offences relating to cultural property29, which finalized in May 2017, and it is now open for signature (Nicosia, 2017).30 The European Convention on Offences relating to Cultural Property (Delphi, 1985) never entered into force,31 and as none of the international instruments deal with criminal law issues, in April 2015, the ministers responsible for cultural heritage from the 50 States parties to the European Cultural Convention (Paris, 1954)32 adopted the Namur Call. With this call, the ministers condemned ‘the deliberate destruction of cultural heritage and the trafficking of cultural property’ and decided to ‘reinforce European cooperation to prevent and punish such acts’. They aimed to protect cultural property belonging to peoples, which ‘constitutes a unique and important testimony of the culture and identity of such peoples, and forms their cultural heritage’.33 The Council of Europe then prepared the Nicosia Convention which has been just signed by nine States.34 The Convention applies to the prevention, investigation, and prosecution of the criminal offences relating to movable and immovable cultural property (Article 2), in particular their unlawful destruction or damaging, and their unlawful removal, in whole or in part (Article 10). The Convention aims to build on instruments 28 29 30 31 32 33 34

For more information on further initiatives: accessed 31 January 2019. Committee of Ministers, ‘Council of Europe Convention on Offences relating to Cultural Property’ CM (2017) 32 final; European Committee on Crime Problems (cdpc), ‘Draft Council of Europe Convention on Offences relating to Cultural Property’ cdpc (2017) 06. Council of Europe Convention on Offences relating to Cultural Property (adopted 3 May 2017, opened for signature 19 May 2017) cets 221. (Adopted 23 June 1985) ets 119. (Adopted 19 December 1954, entered into force 5 May 1955) ets 018. Committee of Ministers (n 29). To check the full list see accessed 31 January 2019.

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relating to cultural property such as the 1970 unesco Convention and the 1995 unidroit Convention in order to make it compatible with relevant existing international and supranational legally binding standards. According to Article 2 of the Nicosia Convention, States are sovereign in the designation of what constitutes their own cultural property, as was the case under the 1970 unesco Convention. By default, the term ‘cultural property’ means property which, ‘on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science’ (Article 1) the loss of which would constitute ‘the impoverishment of the cultural heritage of that State’ (Article 2).35 So far sovereign States have the power and the ultimate authority to protect their national cultural heritage. However, in the age of global actors, national (internal) cultural States’ interests are being gradually replaced by more sophisticated and transversal aggregators of interests, grounded on different core-values, above all the preservation of and public access to the cultural heritage of mankind. 4

Self-Regulation Tools: Codes of Ethics and omc Recommendations

Two different forces are pushing the inter-state dialogue on cultural heritage: on one hand, in this field there is a growing recourse to criminal law rules as highlighted in the previous section, and on the other, we witness the development of best practices and guidelines, namely of soft law instruments adopted by way of self-regulation. The phenomenon of soft law and the role that selfregulation plays in helping mainly professionals (but also citizens) to understand and enjoy the diversity of their cultural heritage is not hard to grasp: one may consider, as an example, the codes of ethics elaborated by a variety of subjects, such as the Code of Ethics and the Guidelines of the aam, the Code of Ethics for Museums belonging to the icom, the Guidelines on Loans of Antiquities and Ancient Art of the aamd,36 the Code of Ethics of cinoa and the role they play. Despite their non-binding nature, these ‘Codes’37 ­influence 35 36

37

Robert Peters, ‘The Protection of Cultural Property: Recent Developments in Germany in the Context of New EU Law and the 1970 unesco Convention’ (2016) 2(2) saaclr 85. Manlio Frigo, ‘Le rôle des règles de déontologie entre droit de l’art et régulation du marché’ (2007) 134 Journal du droit international 883; Pierpaolo Forte, ‘Codice etico di icom e disciplina dei musei in Italia’ (2010) 2 Aedon accessed 31 January 2019. With respect to the variations in the meaning of the term ‘Code’, see among others: Paolo Cappellini and Bernardo Sordi (eds), Codici: Una riflessione di fine millennio (Giuffrè 2002). For more on the codification of rules concerning cultural goods, see Sabino Cassese, ‘Codici e codificazioni: Italia e Francia e confronto’ (2005) 11 gda 95; and L­ orenzo

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both social behaviours and market rules through their reputational effect. unesco has also shown to be aware of their effects, and has prepared an International Code of Ethics for Dealers in Cultural Property,38 a model Code of conduct establishing standards intended to influence the exchange of cultural objects. Soft law has also had a clear impact on hard law, demonstrated by the concept of due diligence contained in Article 4(1) of the aforementioned 1995 unidroit Convention. Finally, soft law represents a fundamental driving force for the formation of a new international customary law applicable to the protection of cultural heritage.39 In fact, in accordance with both customary and codified international law, the cultural property of a foreign State enjoys immunity from execution when the cultural object belonging to the foreign State is on temporary loan to another State or foreign museum for an exhibition (the so-called ‘immunity from seizure’).40 As the Action Plan for the EU Promotion of Museum Collections’ Mobility and Loan Standards 200641 suggested, the mobility of museum collections, i.e. the lending and borrowing of cultural objects and works of art, has been concretized through best practices: commonly applied loan standards and guarantee schemes, provided by EU Member States and museums of various sizes and in all parts of the EU. The Commission Communication on a European Agenda for Culture in a Globalizing World 2007 required a wider reflection on the role of culture as a key element of the European integration process. In order to implement its objectives, it introduced a new cooperation method—the Open Method of Coordination (omc)—as a more structured system of cooperation between Member States and EU institutions. Four groups of experts from Member States have been set up, addressing (among other issues): the mobility of

38

39

40 41

Casini, ‘La codificazione del diritto dei beni culturali in Italia e in Francia’ (2005) 11 gda 98. (1999) CLT/CH/INS-06/25 rev. The Code aims to give effect to the provisions of the 1970 unesco Convention and the 1995 unidroit Convention. It was developed based on the experience of French, Dutch, Swiss, and the United Kingdom professional Codes of practice, as well as on the Code of conduct of the cinoa. Francesco Francioni, ‘La protezione internazionale dei beni culturali: un diritto consuetudinario in formazione?’ in Paolo Benvenuti and Rosario Sapienza (eds), La tutela internazionale dei beni culturali nei conflitti armati (Giuffrè 2007) 3 ff; Francesco Francioni, ‘Plurality and Interaction of Legal Orders in the Enforcement of Cultural Heritage Law’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (oup 2013) 9 ff; Frigo ‘Le rôle des règles’ (n 36). Nout van Woudenberg, State Immunity and Cultural Objects on Loan (Nijhoff 2012); also see Chapter 9 by Arjo Klamer and Anna Mignosa in this volume. The Action Plan contributed to the implementation of Council Resolution 13839/04, which established the mobility of works of art, art collections, and exhibitions as one of five priorities in the Work Plan for Culture 2005–2006: Action Plan for the EU Promotion of Museum Collections’ Mobility and Loan Standards (Helsinki University Press 2006) 4.

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collections, including the value of cooperation and reciprocity; the need to reduce the costs of lending and borrowing; the need to explore new non-traditional modalities of mobility; and the importance of assessing the essential requirements for due diligence, particularly in researching the provenance of cultural objects. Experts from 25 Member States participated in the mobility of collections working group; five sub-groups were identified and hundreds of professionals around Europe were involved in and contributed to their work. The omc allows detailed recommendations to be addressed to different target audiences, such as Cultural Affairs Committee representatives, Member States (officials working in ministries with responsibility for Culture; Finance, Justice and Foreign affairs ministries; and politicians), museum workers (directors, heads of collections, curators, registrars, and exhibitions staff) and professional networks including Network of European Museum Organizations (nemo) and icom, European Registrars Group, International Exhibitions Organizers group, and the Bizot Group of Museum Directors. However, precisely owing to this multi-faceted input, the Final Report and Recommendations to the Cultural Affairs Committee on Improving the Means of Increasing the Mobility of Collections (2010) elaborated by the omc is complex and not easy to grasp.42 5

Cultural Heritage: A Strategic Resource

Despite what has been said above, soft standards on the one hand and criminal rules on the other are not the hallmarks of our times. Instead, the symbol of the present time is the instrumental use of culture, which is not a new phenomenon at all (in some legal systems it has been particularly noticeable43), but one that has become part of a widespread global strategy. The EU has recently defined cultural heritage as one of the ‘strategic resources’ for a sustainable Europe, and actively seeks to strengthen the competitiveness of the European cultural and creative sectors (Creative Europe 2011).44 Article 2 of Regulation 1295/ 42 accessed 31 January 2019. 43 As for example in the Central and Eastern European countries under the Soviet regime, or in the Chinese legal system, and—although not readily observed—even within the Western legal tradition. See respectively Hedwig De Smaele, ‘Mass Media and the Information Climate in Russia’ (2007) 59 Europe-Asia Studies 1299; Ann Kent, China, the United Nations, and Human Rights: The Limits of Compliance (Pennsylvania University Press 1999) 24 ff. In general see George Yúdice, The Expediency of Culture: Uses of Culture in the Global Era (Duke University Press 2004). 44 European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Creative Europe – A new framework programme for the cultural and creative

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201345 ­establishing the Creative Europe Programme affirms that cultural heritage is ‘included’ in the cultural and creative sectors, whose activities are based on cultural values and/or artistic and other creative expressions, whether these activities are market- or non-market-oriented, regardless of the type of structures that carry them out, and irrespective of how that structure is financed.46 The goals are to first map all the activities with a cultural dimension within the internal market, and then to foster a European cultural heritage through a variety of policies: social cohesion, tourism, environmental policy, education, and the digital agenda. This vast programme may be considered as the European attempt to find a compromise between the logic of the market and cultural heritage protection. The debate over whether works of art should in general be a tradable commodity at all is well known.47 A compromise solution, according to the European institutions, has been reached in Regulation 116/200948 on the export of cultural goods, which did not introduce major changes to its predecessor of 1992, and Regulation 1215/2012,49 which established, for the internal market, a rule of private ­international law in favour of the owner of a cultural object, who will be able to initiate proceedings as regards a civil claim for its recovery in the court of the place where the cultural object is situated at the time the court is seized (a rule already provided by Article 8(1) of the 1995 unidroit Convention); and finally in Directive 2014/6050 on the return of national treasures exported illegally from one ­Member State to another, which puts pressure on the owner of a cultural sectors (2014–2020)’ com (2011) 786 final. This is the European Commission’s framework for the promotion of the culture and audiovisual sectors. 45 Regulation (EU) 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe Programme (2014 to 2020) [2013] OJ L347/221. 46 ‘The cultural and creative sectors include, inter alia, architecture, archives, libraries and museums, artistic crafts, audiovisual (including film, television, video games and multimedia), tangible and intangible cultural heritage, design, festivals, music, literature, performing arts, publishing, radio and visual arts (…)’. 47 See for instance Judith H. Dobrzynski, ‘Brandeis’ Wretched Museum Closure’ (Forbes, 4 February 2009) accessed 31 January 2019. 48 Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods (Codified version) [2009] OJ L39/1. 49 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1. 50 Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 [2014] OJ L159/1.

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object, who is under the obligation to exercise due ­diligence with respect to its provenance.51 In particular the new Directive, that recasts Directive 93/7, supports the ‘cultural argument’ for claiming the restitution of these objects.52 The general objective of both Regulation 116/2009 and Directive 2014/60 is to achieve a better compromise between the principle of free movement of cultural goods and the protection of cultural heritage. They do not provide a definition of ‘national treasure’, but they restrict the perimeter of possible returns as much as possible: indeed only objects classified by the States as ‘national treasures’ are subject to the right of return. Once more, the role played in this matter by the States is crucial. In particular, honouring mutual trust, Member States would have to defer to another Member State’s competence over what is to be considered its ‘national treasure’; at the same time, they should also confirm whether a certain object is a ‘national treasure’ under the law of another Member State. The glue that holds the States together in protecting their cultural heritage is therefore an attentive and active trust. Clearly this is no simple matter or task. It requires taking into consideration the 15 categories listed in the previous Annexes of both Regulation 3911/92 and Directive 93/7, which are rather ambiguous. The Annex to Regulation 3911/92 is still in force (Regulation 116/2009) and it provides only rough filters for national cultural treasures on the basis of age and financial thresholds (while most Member States do not categorize their national treasures on the basis of monetary value). The Annex to Directive 93/7 was repealed (Directive 2014/60), but it is still used as a reference criterion, although it is difficult for a cultural object to be protected to meet the criteria contained in the 15 categories listed in the Annex to the previous Directive.53 As is well known, this has been one of the main obstacles to its application, in addition to the burden of proof with respect to possession in good faith and the short time period for Member States to initiate a return procedure.54 51

52 53 54

The possessor has to prove (by documentation) the provenance of the object, the authorization for its removal under the law of the requesting Member State, the character of the parties, the price paid, and whether the possessor consulted any accessible register of stolen cultural objects or took such other steps as any reasonable person would have taken in the circumstances. Art 10 of Directive 2014/60, inspired by art 4(4) of the 1995 unidroit Convention. Marie Cornu, ‘Recasting Restitution: Interactions between EU and International Law’ (2015) 20 Uniform Law Review 637, 642. Marja van Heese, ‘The Implementation of Directive 2014/60/EU in the Netherlands’ (2016) 2(2) saaclr 103, 115. Ibid: ‘The possibly high costs of a legal procedure (lawyers’ fees, court fee, and fees for witnesses and experts, as well as seizure costs and costs for transport, storage and insurance) require one to think twice about the application of the Directive’.

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As mentioned above, the application of both Regulation 116/2009 and Directive 2014/60 requires active trust and mutual solidarity between EU Member States. The cooperation between Member States is facilitated through the new administrative system (made available in June 2016) that enables EU Member States authorities to rapidly exchange information through the imi system.55 This will require each Member State to control not only the export of the State’s own national cultural property, but also the import of the national property of another Member State.56 In this way, the protection of a State’s cultural treasure and the protection of cultural treasures belonging to other States are really the two sides of the same coin. Under this regime, the competence for cultural matters is firmly in the hands of the Member States, with only a marginal, complementary competence for the EU. The main difficulty thus lies in defining what is a ‘national treasure’. Without a braver, clearer, and harmonized demarcation of this notion, it is possible that a substantial number of applications channelled through the imi system will not actually refer to a designated category of cultural objects.57 The legal solutions introduced by Directive 2014/60 may thus have limited effectiveness. 6

National Treasures and Cultural Heritage: Strict Exceptions to Free Trade

As established by both the General Agreement on Tariffs and Trade (gatt) of 1947 and the 1994 wto Agreement,58 as well as by the European Treaties, 55

Olgierd Jakubowski, ‘The Internal Market Information System (imi) on the Return of Cultural Objects – Its Principles, Application, and Evaluation of Its Effectiveness for the Protection of Cultural Heritage’ (2016) 2(2) saaclr 247, 290: ‘Central authorities must cooperate and provide consultation, using the imi system, in order to search for a specified cultural object that has been unlawfully removed, as well as the identity of its possessor, to notify the requesting state of its discovery of such a cultural object, to enable the requesting State to check on the cultural object, and to act as an intermediary with regards to its return. The imi module raises some questions related to the storage of personal data and to the way courts will approach these data in the context of submission of evidence in court cases for the return of cultural objects’. 56 Peters (n 35) 92. 57 Jakubowski (n 55). 58 The wto – gatt system provides a ‘cultural exception’ in art xx(f): see General Agreement on Tariffs and Trade (15 April 1994) 1867 unts 187; Marrakesh Agreement Establishing the World Trade Organization (15 April 1994) 1867 unts 3; cf Sandrine Cahn and Daniel Schimmel, ‘The Cultural Exception: Does It Exist in gatt and gats Frameworks? How Does It Affect or is Affected by the Agreement on TRIPS?’ (1997) 15 Cardozo Arts & Entertainment Law Journal 281.

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Member States have the right to restrict the free movement of some particular objects to protect their ‘national treasures’ (Article xx(f) wto and Article 36 tfeu respectively). According to Article 36 tfeu, the Member States can deviate from the rules aimed at ensuring the free movement of goods through restrictive measures taken to protect national treasures ‘possessing artistic, historic or archaeological value’. These measures cannot, however, constitute a means of ‘arbitrary discrimination’, nor a ‘disguised restriction’ on trade between Member States. In fact, outstanding works of visual arts or archaeological artefacts of a certain age, typically found in museums, are under protection.59 It has been argued that the Member States can derogate from the internal market rules on the basis of the above-mentioned exception only for a class of objects that represent the ‘essential and fundamental elements of national artistic patrimony’.60 This view, which was expressed not only with respect to art,61 is generally supported with reference to the cultural patrimony of a nation.62 A Communication issued by the Commission on the verge of the removal of the internal barriers in 1992 upholds similar arguments.63 It seems we should test this interpretation, which is competing with other interpretations64—under what circumstances

59 60

61

62 63

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Jingxia Shi, Free Trade and Cultural Diversity in International Law (Hart 2013) 145. Pierre Pescatore, ‘Le Commerce de l’art et le Marché Commun’ (1985) 21 Revue trimestrielle de droit européen 451; the author was the rapporteur in the European Court of Justice (ecj) Case 7–68 Commission of the European Communities v Italian Republic [1968] ecr 423. According to the ecj, the Italian Republic failed to fulfil the obligations imposed on it by art 16 of the eec Treaty by continuing to levy, after 1 January 1962, the progressive tax provided for by the Italian Law no 1089 of 1 January 1939, on exports to other Member States of objects of artistic, historic, archaeological, or ethnographic interest. In the same sense: Andrea Biondi, ‘The Merchant, the Thief & the Citizen: The Circulation of Works of Art Within the European Union’ (1997) 34 cmlr 1173, 1181. European Commission, ‘Communication on the protection of national treasures with an artistic, historic or archaeological value: Needs arising from the abolition of frontiers in 1992’ com (89) 594 final, para 5: ‘It is for each Member State to determine its own criteria for identifying cultural objects that can be regarded as “national treasures”; nevertheless, the concept of “national treasures possessing artistic, historic or archaeological value” cannot be defined unilaterally by the Member States without verification by the C ­ ommunity institutions. (…) Moreover, art 36 of the eec Treaty – which should be interpreted restrictively since it derogates from the fundamental rules of the free movement of goods – cannot be relied upon to justify laws, procedures or practices that lead to discrimination or restrictions which are disproportionate with respect to the aim in view’. On the various interpretations advanced with respect to the question: Irini A. Stamatoudi, Cultural Property Law and Restitution: A Commentary to International Conventions and European Union Law (Edward Elgar 2011) 122 ff.

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today will a Member State’s national interest in keeping cultural goods on its own territory be treated as an obstacle to free trade in the Eurozone? The fundamental issue concerns the relationship between the notions of ‘cultural heritage’, a liminal concept65 that is relevant to several non-legal disciplines as well, and of ‘national treasure’.66 7

National Treasure in Directive 2014/60 and Its Implementation

Although it is reasonable to include only the most important elements of cultural heritage within the scope of application of Directive 2014/60, it is not clear what the dynamic components of a ‘national treasure’ are, especially in relation to the circulation of those objects which comprise a State’s ‘cultural heritage’. Article 2(1) of Directive 2014/60 defines a ‘cultural object’ as any object that is classified or defined by a Member State, before or after its unlawful removal from the territory of that Member State, as a ‘national treasure of artistic, historic or archaeological value’ under national legislation or administrative procedures within the meaning of Article 36 tfeu. This strengthens the protection of Member States’ national treasures, as does Regulation 116/2009.67 Unfortunately, however, the choice of ‘national treasure’ as the key expression in the Directive is of little direct assistance in the context of restitution of cultural property between Member States. This is because the definition is likely to vary from State to State; indeed it has not been possible to achieve any sense of harmony among the different national laws.68 The European Commission’s previous Reports, presented every three years from the entry into force of Directive 93/7, reflected a range of factors that resulted in the ineffectiveness of that Directive. Amongst the most important were the requirements making it essential to classify objects as an element 65

66 67 68

Massimo S Giannini, ‘I beni culturali’ (1976) 26 Rivista trimestrale di diritto pubblico 3 and Casini, Ereditare il futuro (n 14). Francesco Francioni, ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’ in Abdulqawi A Yusuf (ed), Normative Action in Education, Science and Culture (vol 1; unesco Publ/Nijhoff 2007) 221. As discussed below, the expression ‘national treasure’ featuring in art 36 tfeu is a token for a concept that is not necessarily uniform, under the various language versions of the Treaty. According to its 7th Whereas, the Regulation is not intended to prejudice the definition of ‘national treasure’ adopted by Member States. Jia Min Cheng, ‘The Problem of National Treasure in International Law’ (2010) 12 Oregon Review of International Law 141.

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of national culture through a formal return procedure, i.e. they had to belong to one of the categories listed in the Annex to the Directive as well as to fulfil certain criteria relating to the value and age of the protected cultural object. Directive 2014/60, and its reception and application so far within EU Member States, does not really improve on the status quo. Here we can tackle at least three issues. The first has to do with path dependence, which is related to the appropriateness of considering the previous Annex to Directive 93/769 as a reference point to fill in the notion of ‘national treasure’. Indeed, some Member States still make use of the reference to public collections listed in the inventories of museums, archives, or libraries’ conservation collection, and to the inventories of ecclesiastical institutions, plus to financial or historical thresholds.70 For example, the Polish Act on the Protection and Guardianship of Monuments71 contains a list that is a verbatim copy of the Annex to Directive 93/7: the cultural objects which can be classified as the Heritage Treasures List (Lista Skarbów Dziedzictwa) are those of utmost importance for the Polish cultural heritage. In fact this list was proposed in 2014 as a special tool to protect the most important cultural objects of Poland’s national heritage, in particular the Lady with an Ermine, 1489–90—a painting owned until 2016 by the Princes Czartoryski Foundation, a private charity. Popular gossip circulates that the main reason for the list was the government’s intention to limit international loans of the only Leonardo da Vinci painting in Poland. In fact, the entire art collection of the Foundation has recently been purchased by the Polish State to secure its display in the country. What the lawmaker really had in mind, according to some domestic commentators, was a very strong control over ‘national treasures’, while transferring the duty of care from the State 69

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The Annex listed, inter alia, the following categories: a. elements forming an integral part of artistic, historical or religious monuments which have been dismembered and are more than 100 years old; b. pictures and paintings executed entirely by hand, on any material and in any medium; c. mosaics other than falling in categories a. and b. and drawings executed entirely by hand in any medium and on any material; d. original engravings, prints, serigraphs and lithographs with their respective posters and plates; e. original sculptures or statuary and copies produced by the same process as the original. The object must be more than 50 years old (with some exceptions for certain collections), not belong to its creator, and have a minimum value of between ‘whatever the value’ (for archaeological objects, archives, incunabula, and manuscripts) and ‘150,000 Euro’ (for pictures). The works of living artists are excluded, since contemporary art is not consistent with the historical threshold, i.e. being more than 50 years old. See Barbara T Hoffman, ‘European Union Legislation Pertaining to Cultural Goods’ in Barbara T Hoffman (ed), Art and Cultural Heritage (cup 2006). Ustawa z dnia 23 lipca 2003 r. o ochronie zabytków i opiece nad zabytkami (as modified in 2014) DzU 2003 nr 162 poz 1568 accessed 31 January 2019.

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to individual owners.72 Thus the Polish provisions still impose restrictions on return based on the categories of objects defined by their nature, age, and market value, as was the case in Directive 93/7.73 A second issue, which is only briefly mentioned here, has to do with the fact that ‘national treasure’ is not a stand-alone concept. The good faith purchaser, for example, is still treated in a different way under different national legal systems,74 notwithstanding the fact that the 1995 unidroit Convention provides a pragmatic uniform solution for assessing whether the possessor had been diligent, which was adopted in Directive 2014/60.75 A third issue concerns the domestic interpretations of ‘national treasure’, having regard to the different official language versions of Directive 2014/60 and of Article 36 tfeu.76 The expression ‘national treasure’ has been translated differently in the various authentic language versions. For example, the English and French versions refer to treasure, ‘trésor nationaux’, while Italian, Spanish, and Portuguese texts appear to give the State a broader discretionary power to protect the patrimony/heritage, ‘patrimonio artistico, storico o archeologico nazionale’. It therefore seems that Italian, Spanish, and Portuguese versions vest more power in the Member States as exporting countries, who would thus prefer a more extensive interpretation of what is their ‘national 72 73

74 75

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Piotr Stec, ‘The Lady or the Tiger? Legal Pitfalls of Implementing the Return of Cultural Goods Directive’ (2016) 2(2) saaclr 135. Wojciech W Kowalski, ‘Ratification of the 1995 unidroit Convention on Stolen or Illegally Exported Cultural Objects, in Light of Directive 2014/60/UE on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State: The Perspective of Poland’ (2016) 2(2) saaclr 165, 170. Marta Cenini, Gli acquisti a non domino (Giuffrè 2009) 21. Manlio Frigo, ‘The Impact of the unidroit Convention on International Case Law and Practice: An Appraisal’ (2015) 20 Uniform Law Review 626; Cornu (n 52). In this regard it is inevitable that note will be taken of the many comparative law contributions to the preparation and interpretation of international and European rules on this matter. We can recall, for example, that the 1995 unidroit Convention originated from a previous proposal to establish a uniform regime for the good faith purchaser (an innocent party who purchases for value a property without notice of any other party’s claim to the title of that property) against the nemo plus iuris rule (ad alium transferre potest quam ipse habet), which means that one cannot transfer more rights than (s)he has, i.e. a purchase from someone who has no ownership rights denies the purchaser any ownership title to the property. See, among others, Kurt Siehr, ‘The Protection of Cultural Heritage and International Commerce’ (1997) 6 ijcp 304; Lorna Woods, Free Movement of Goods and Services Within the European Community (Ashgate 2004); Frigo, La circolazione internazionale dei beni culturali (n 14) 71–4; Frigo, La Circulation des biens culturels (n 1) 305 ff. The Vienna Convention on the Law of Treaties provides a general rule of interpretation, which confirms that exceptions in Treaties must be strictly construed.

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treasure’. In contrast, importing countries favour a restrictive interpretation of the notion that has been tagged as ‘elitist’77 exactly because it contains the idea of a restriction to the greatest elements of the cultural heritage of the States. But beyond this somewhat vague and formalistic distinction between exporting and importing countries, we can notice a general trend to adopt a wide and protectionist definition of what is a national treasure or national artistic h ­ eritage. Viewed in this light we can underscore that the Polish National Treasures Act (Article 2 point 4) implementing Directive 2014/6078 adopts a very wide definition of ‘national treasure’, comprising practically all cultural objects, including archives and library materials classified as National Library deposits and objects in museum inventories, even if they are not ‘heritage items’.79 The new German Cultural Property Protection Act (cppa)80 implementing Directive 2014/60 adopts an extended notion of ‘Nationales Kulturgut’ (national cultural good), which comprises public collections as well as objects of churches and religious entities. Furthermore, any cultural object designated as a ‘valuable cultural good’ (valuable to German cultural heritage and/or because its transfer out of Germany is considered as a loss) can be registered and receive the same protection. The Italian Legislative Decree No 2 of 7 January 2016,81 also implementing Directive 2014/60, amends the related provisions under the 2004 Italian Code of Cultural and Landscape Heritage, that covers the international circulation, and restitution or return, of stolen or illegally exported objects.82 The new definition of ‘beni culturali’ (cultural objects) also

77 78 79 80

81

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Cornu (n 52) 643. Ustawa z dnia 25 maja 2017 r. o restytucji narodowych dóbr kultury DzU 2017 poz 1086 accessed 31 January 2019. Cf Stec (n 72) and Kowalski (n 73). Gesetz zur Neuregelung des Kulturgutschutzrechts – KGSG [Act of 31 July 2016 Reforming the Law on the Protection of Cultural Property], Bundesgesetzblatt 2016 I S 1914 accessed 31 January 2019. The cppa is comprised of paragraphs instead of articles, because it is in itself art 1 of the overall legislative reform. See Paul Fabel, ‘Due Diligence Obligations in the New German Cultural Property Protection Act’ (2016) 2(2) saaclr 237. See also the article by Peters (n 35). Attuazione della direttiva 2014/60/UE relative alla restituzione dei beni culturali usciti illecitamente dal territorio di uno Stato membro e che modifica il regolamento (UE) n. 1024/2012 [Legislative Decree, No 2, 7 January 2016] Gazzetta Ufficiale No 7, 11.02.2016 accessed 31 January 2019. See Frigo, ‘The Implementation of Directive 2014/60/EU’ (n 16). Codice dei beni culturali e del paesaggio (consolidated version) accessed 25 31 January 2019.

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includes cultural objects that are ‘merely defined’ as such.83 This change, and the abolition of the list of categories contained in the Annex to the Directive, has considerably extended the scope of the relevant legal regime. As a consequence, under the Italian legislation requests can be submitted for the return of items of paleontological, numismatic, and items of scientific interest, even if they do not belong to collections listed in inventories of museums, archives, libraries, or ecclesiastical institutions.84 France, which in February 2015 was the first State to implement Directive 2014/60, applied the relevant definition provided in its Code du patrimoine to designate ‘trésors nationaux’.85 This definition is a very broad one, as Article 111(1) of the Code du patrimoine provides that, in addition to the categories of ‘cultural objects’ such as collections of museums, archives, etc., which are specified in detail, the definition also includes ‘other goods of a significant importance for the cultural heritage from the point of view of history, art or archaeology’, all of which in practice will be determined by the relevant administrative authorities. As pointed out in the literature on the topic, EU Member States have thus obtained an ‘almost unlimited freedom to define what is and what is not a cultural object which can be classified as a national treasure’.86 Incidentally, the Austrian Federal Act on the return of unlawfully removed cultural objects adopted, for example, two separate definitions of a cultural object:87 the first refers to Article 2 point 1 of Directive 2014/60 and provides that a cultural object is an object which under the law of an EU Member State, before or after its unlawful removal from the territory of that Member State, was classified or defined as a ‘national treasure’ within the meaning of Article 36 tfeu; while at the same time a cultural object is an object that is protected under the provisions of a State party to the 1970 unesco Convention as part of the ‘nation’s cultural heritage’, within the meaning of Articles 1, 4 and 5 of this Convention. It remains to be seen what the Austrian interpreters will do with these two distinct reference definitions.

83 84 85 86 87

Under the former Directive, the cultural object had to be classified as such by the Member State. Frigo, ‘The Implementation of Directive 2014/60/EU’ (n 16). Code du patrimoine (consolidated version) accessed 31 January 2019. Stec (n 72) 112. Bernard Łukańko, ‘The Implementation Process of Directive 2014/60/EU of the European Parliament and of the Council in Austrian Legislation’ (2016) 2(2) saaclr 119, 123. See the unofficial English translation of the Act at accessed 31 January 2019.

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In conclusion, the provisions of both the EU Treaty and Directive 2014/60 allow for a potentially creative and wide protection of cultural heritage at the national level. 8

National Treasure and Its Link to ‘Culture’

The above-mentioned exceptions to free trade, encapsulated into the expression ‘national treasure’ respectively in Article xx(f) wto and Article 36 tfeu, avoid any reference to the word ‘culture’, that is to the ‘cultural value’ the objects should have in order to be protected, while Directive 2014/60, in classifying a good as part of a ‘national treasure’, used the term ‘cultural’ to mean an object with artistic, historic, or archaeological value. The first issue therefore concerns the ‘cultural object’ defined by Directive 2014/60 in relation to ‘national treasure’, as just discussed above. In the mainstream literature, it is emphasized that the ‘national treasure’ designation does not refer to all cultural objects, but only to those that have an inseparable link to the culture and history of a given country.88 As a consequence, a second issue is raised in relation to the terms and expressions that qualify expression ‘national treasure’, namely to such vague notions as ‘culture’, ‘history’, ‘artistic values’, ‘age value’, ‘use value’,89 etc.,90 which are in turn eventually interpreted as flexible guidelines by the domestic courts on a case-by-case basis. If we look at the words chosen by the European lawmaker we can speculate on the message that the EU intended to communicate using precisely those words and not others. ‘Treasure’ evokes an object of extraordinary economic value, anchored to a monetary index. It furthermore recalls the idea of an accidental, fortuitous finder who finds something abandoned, hidden, or buried, whose owner cannot easily be established.91 ‘Treasure’ is, then, first of all a national property law issue, which eventually became an international trade 88 89 90

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Biondi (n 62) 1173 ff. The market value of these objects fluctuates a lot, depending on the social setting in which they circulate: see David Throsby, The Economics of Cultural Policy (cup 2010). Hence market value is a relevant aspect, but not essential for the above-mentioned test. Each notion has been discussed by Alois Riegl, ‘The Modern Cult of Monuments: Its Essence and Its Development’ in Nicholas Stanley Price, M Kirby Talley Jr, and Alessandra Melucco Vaccaro (eds), Historical and Philosophical Issues in the Conservation of Cultural History (Getty Conservation Institute 1996). See, for example, the Italian Civil Code, art 932, in Mara Wantuch-Thole, Cultural Property in Cross-Border Litigation: Turning Rights into Claims (De Gruyter 2015) 31, and compare it with the common law approach to the law of finders in Forrest (n 1) 307–08. The law of finds is applied to historic shipwreck together with the law of salvage: see Christian

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issue. A property right is the right to possess, use, and enjoy a specific piece of property (whether a chattel or land), i.e. a right of ownership. The owner has the right to determine how to use the property, whether to sell or rent it. The law can subordinate this right to the general social interest (reasons of public utility), according to the forms established by law, and upon the payment of just compensation where applicable, as in the case of expropriation. This is often conceived as a fundamental right, recognized at the international level (International Covenant on Economic, Social and Cultural Rights 1966, Article 1); at the regional level (European Convention on Human Rights, Article 1 Protocol 1; American Convention on Human Rights, Article 21; Charter of Fundamental Rights of the European Union, Article 17), and in several national Constitutions. The fact that ‘treasure’ is a property law issue is well illustrated by the famous Barakat case decided in 2007.92 In that case the Court of Appeal for England and Wales applied the lex rei sitae connecting factor and stated that: ‘The claim is an attempt to assert rights of ownership, not to enforce export restrictions’, . On this basis the Court ordered the restitution to Iran of 18 carved jars, bowls, and cups dating from the period 3000 bc and originating from illicit excavations in the Jiroft region of Iran. ‘National’, on the other hand, can refer to where the treasure was found, or to where the work of art, the object, was created, or to the nationality of the creator, or the place it represents, or to which it refers. In putting together the two terms ‘national + treasure’ to form the concept of national treasure, the ordinary meaning of the two words seems to deviate and the expression acquires a new and different sense. A national treasure is a property belonging to a certain State, regardless of whether the constitutive elements of property were created by one of its nationals, or within its territory, or were inspired by a subject related to that State. This leads to conclude that the search for connecting factors to its ‘national culture’ is sometimes vain. This is a functional transformation of sense with respect to the ideal notion that these special objects belong to the nation, and not being of anyone in particular, belong in fact to all; an ideal which prevailed in States like France (soon followed by many others), and that was f­undamental to ground the State’s

92

Hoefly, ‘National Treasure: A Survey of the Current International Law Regime for Underwater Cultural Heritage’ (2016) 4 Penn State Journal of Law and International Affairs 814. Government of the Islamic Republic of Iran v The Barakat Galleries Ltd [2007] ewca Civ 1374 (CA), [2009] QB 22. Comments by Frigo, ‘The Impact of the unidroit Convention’ (n 75); Nafziger (n 8) 191. The judgment had two corollaries: (a) the right of ownership under Iranian law has the same effect as under English law; (b) the 1970 unesco Convention, Directive 93/7, and the 1995 unidroit Convention had a deep influence on English law, even though the UK is not a party to the latter Convention.

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protection of the national heritage.93 Despite the fact that States are engaged in the protection of national cultural goods, artworks in public hands are not always adequately kept: a child vomited over some bronze tiles forming part of Carl Andre’s Venus Forge at the Tate Museum in London; someone kissed a painting by Cy Twombly at the Museum of Contemporary Art in Avignon, smearing lipstick onto the canvas; while Munch’s The Scream was stolen twice from the National Gallery in Oslo (the thieves left a note reading ‘Thanks for the poor security’). In some cases States also banned the exposition of some artworks, and imprisoned artists for pornography and immorality, as in the case of Egon Schiele.94 Even when a national treasure is owned by private collectors, who can afford the market price of such works of art,95 the protection is not guaranteed. Some commentators have already described what private owners of art objects have done with their valuable possessions:96 we can just mention here Groult, the 19th century French collector who wanted to burn his collection before he died; Ryoei Saito, the Japanese businessman who bought Renoir’s Au Mulin de la Galette and van Gogh’s Portrait of Dr. Gachet at auction and said he wanted the works to be cremated with him; or, as other examples, 93

During the tumultuous years of the French Revolution the Abbé Grégoire celebrated freedom but, at the same time, eloquently argued that patriotism could not affirm itself by destroying monuments and artefacts that represented the legacy of the past: Abbe Grégoire suggested the recognition and protection of those objects that ‘incorporate the genius of past generations, which serve as incentive for creativity and talent development for future generations’. On similar premises, many objects formerly belonging to the nobility or the Church were incorporated into the State treasure (patrimoine), or were subject to public constraints. André Chastel, ‘Patrimoine’, Encyclopédia Universalis, Supplément (1980); Jean-Pierre Babelon and André Chastel, La notion de patrimoine (Éditions Liana Levi 1994); Victor Hugo, Pamphlets pour la sauvegarde, Guerre aux démolisseurs ! (L’Archange Minotaure 2006). For more on the evolution of French law, see the essays collected in the volume by Maria Luisa Catoni (ed), Il patrimonio culturale in Francia (Electa 2007), as well as Joseph L Sax, ‘Heritage Preservation as a Public Duty: The Abbé Gregoire and the Origins of an Idea’ (1990) 88 Michigan Law Review 1142. 94 Cf La storia dell’arte (Electa 2006) and Scoprire l’arte (Giunti 2017). 95 Cf the Yves Saint Laurent private collection: Christie’s auctioned off works from this collection for more than $264 million in February 2009: Steven Erlanger, ‘Saint Laurent Art Sale Brings in $264 Million’ The New York Times (23 February 2009) accessed 31 January 2019; Bill Gates acquired the Leonardo Codex Leicester in 1994 for $31 million: Carol Vogel, ‘Leonardo Notebook Sells for $30.8 Million’ The New York Times (12 November 1994) accessed 31 January 2019. 96 Joseph L Sax, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (University of Michigan Press 1999). Cf also La storia dell’arte (n 94) and Scoprire l’arte (n 94).

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the works by van Eyck and Pollock, which were cut into fragments and sold separately to increase their economic value (a well-known ancient praxis applied to incunabula and books). A provocative question could then be: should national treasures and cultural goods in general belong to those who can afford the costs for their protection, without denying citizens access to enjoyment of them? Historically, works of art and archaeological objects followed military and economic power. Western States thus accumulated these objects from around the world. However, since the beginning of romanticism, the prevailing idea in many quarters is that cultural goods are connected to people and places, and that their physical location is intertwined with their aesthetic force and social significance. Some questions surface in this respect: Are States of origin able to afford the price to bring back objects already lost? Are they willing to pay for their citizens’ enjoyment of heritage resources? Can national heritage be understood to exclude those objects that were not produced locally, but have been acquired from other nations? To escape these embarrassing questions, resorting to the notion of ‘cultural heritage’ is of little help. 9

Is there a ‘European Cultural Heritage’ to Protect?

The legal literature reflects a clear divide between those States that promote a vision of objects as inscribed in a given culture, and those that believe instead that such goods should be subject to protective regimes modelled according to worldwide uniform schemes, because they reflect universal values protecting ‘culture’ as a human right. John Merryman, a strong advocate of the latter vision, which is also supported by a number of important museums, described this dichotomy using two categories: cultural nationalists and cultural internationalists.97 This is not merely one of many academic disputes. Salvatore Settis, Emeritus Professor of History of Classical Art and Archaeology at the Scuola Normale Superiore of Pisa and a member on many museums’ Advisory Boards,98 eloquently explained the reasons why the two positions represent the opposite poles of the conventional discourse on culture, and vigorously recalls the short- and long-term risks arising from our inability to imagine c­ ulture 97 98

John H Merryman, ‘Two Ways of Thinking About Cultural Property’ (1986) 80 ajil 831; now in John H Merryman (ed), Thinking About the Elgin Marbles: Critical Essays on Cultural Property, Art and Law (rev edn, Wolters Kluwer Law & Business 2009). He denounced the ‘assault on the Italian national cultural heritage’, assimilating Italy to a joint-stock company under a takeover bid in his book: Italia Spa: l’assalto al patrimonio culturale (Einaudi 2007).

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as a fluctuating notion, as a living social and urban fabric (‘tessuto urbano e sociale vivente’) according to the Italian tradition developed throughout its history.99 It is certainly true that defence of the integrity of a certain culture is typically the responsibility of a State, based on the default principle of uti possidetis.100 It is also true that the uti possidetis principle can give some p ­ ositive results if we assume that cultural goods reflect ‘universal’ cultural values. But the arguments against the assumptions underlying the positions taken by Merryman and others, are rather solid, as explained by Neil Brodie. Brodie rejects the internationalists’ argument that the protection of cultural heritage through restrictive measures would only encourage the illicit trafficking in cultural goods.101 Furthermore the position taken by Merryman is reductive at any rate, because in addition to cultural internationalists and cultural nationalists there are also cultural intra-nationalists: significant claims on cultural heritage can originate from indigenous peoples who live within and across the borders of different nations, or from small local communities who are the custodians of cultural goods by chance, and could also originate from migrants in the near future. Cultural heritage is, indeed, a vast domain not entirely represented by the totality of tangible cultural objects: it includes oral traditions, patronymics, choreographies, rituals and ceremonies, social practices and festive events, landscape, cultural spaces created by communities and groups in response to their environment, traditional craftsmanship, digitalization etc.102 The issues raised by the querelles regarding the restitution of cultural goods have much to do with the present vision of cultural heritage, providing further evidence to the effect that overzealousness is a bad adviser in this sector.103 99 Ibid. 100 The legal definition of uti possidetis is ‘as you possess’. According to this principle of international law, the parties to a treaty can retain possession of what they have acquired by force during a war. 101 Neil J Brodie, ‘Historical and Social Perspectives on the Regulation of the International Trade in Archaeological Objects: The Examples of Greece and India’ (2005) 38 vjtl 1051. 102 Roger W Mastalir, ‘A Proposal for Protecting the “Cultural” and the “Property” Aspects of Cultural Property Under International Law’ (1992–93) 16 Fordham International Law Journal 1033; Siegfried Wiessner, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’ (2011) 22 ejil 121; Mauro Bussani, ‘The (Legal) Culture of Cultural Property’ in Jorge A Sánchez Cordero (ed), La Convención de la unesco de 1970. Sus nuevos desafíos/The 1970 unesco Convention. New Challenges/La convention de l’unesco de 1970. Les nouveaux défis (Universidad Nacional Autónoma de México 2013). 103 Jeanneret v. Vichey, 541 F Supp 80 (sdny 1982), rev’d and remanded, 693 F.2d 259 (2d Cir 1982). Comments by Shelly Janevicius, Ece Velioglu Yildizci, Marc-André Renold, ‘Case Matisse Painting – Jeanneret v Vichey’ (Platform ArThemis, July 2014) accessed 14 March 2019. ‘A painting by Henri Matisse was unlawfully exported

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It is naïve to believe that legal dichotomies such as hard law versus soft law; public law versus private law; or global law versus national law can explain all the intricacies in a tidy scenario. The multi-faceted dimension of cultural heritage is such that it eludes sharp distinctions and clear demarcations. In fact, beyond the legal standards produced either by the formal sources of law or by way of self-regulation, there are further interests and claims of a various nature. They may be categorized as follows: (a) those rooted in moral questions (equity and justice), for example related to our willingness to challenge purchasers’ unfairness and undeserved titles (reflected for instance in the events related to the restitution of property to Holocaust victims); (b) other claims reflecting our sociability, i.e. our need to live in a community of people, which are closely related to the communicative function of cultural heritage; and (c) other claims based on overt economic interests. The law alone cannot cope with all these interests and claims. 10

Back to Diplomatic Actions

Notwithstanding all the international and supranational legal norms, the press does not fail to inform us, on a daily basis, about some shocking events related to cultural sites or objects of art. The issue is now also well-­documented by an abundant literature.104 Disputes over cultural property fascinate anyone ­involved in comparative law, because it is through the analysis of litigation concerning the return of cultural objects—the solutions of which quite often depend on conflicts of law rules—that we can compare the various legal regimes established for the protection of cultural heritage, as well as the international dimension in which these aspects are inscribed.105 Usually these disputes are settled by alternative dispute mechanisms before reaching the from Italy to New York because its owner, Anna Vichey, never acquired the mandatory export license in 1970. The painting was then sold to a Swiss art dealer named Marie Jeanneret and delivered to Geneva, Switzerland. After discovering the cloud on the title of the painting, Mme. Jeanneret was unable to sell the painting. Mme. Jeanneret sued the Vicheys for breach of implied and express warranties, fraudulent misrepresentation, and breach of contract. Before any final decision was made, Mme. Jeanneret voluntarily withdrew her action after she supposedly received an Italian judgment that allowed her to legally sell the painting’. It is unclear what Italy did to allow Mme. Jeanneret to legally sell the painting. 104 For trends in international litigation on this matter, see the essays by Jayme, Palmer, Symeonides, Brodie, and Siehr collected in the ‘vjtl’ issue 4/2005. 105 For a comprehensive treatment: Chechi (n 5).

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courts: mediation, diplomatic missions, joint statements, bilateral agreements, tripartite cooperation within the unesco supervision, etc.106 Alternative dispute mechanisms often produce solutions which are satisfactory for all the parties involved. We can recall, for example, Canova’s journey to Paris to recover artworks that the French army had taken beyond the Alps. He was one of the favourite among Napoleon’s artists and this fact, together with the publication of the Quatremère de Quincy’s pamphlet on the république des arts et des sciences, based on the principle that diviser c’est détruire,107 helped him recover some papal State masterpieces, such as the Laocoon, the Apollon of Belvedere, the Transfiguration by Raphael, and the Deposition of Caravaggio plus several manuscripts. More recently, the return of the Axum Obelisk to Ethiopia, or of the Venus of Cyrene to Libya108 may be cited. However, diplomatic actions and settlement agreements do not affect legal rules and legal definitions on what constitutes ‘national treasures’ or ‘cultural property’, which remain heterogeneous notions. The legal domain, in fact, contributes only in part to the understanding of the concept of cultural property. Most frequently it covers only one part of the cultural heritage, the immensely diverse mass of ‘documents’109 of all types upon which our societies confer a particular artistic, historical, or ethnological interest.110 Thus, a question arises: on the basis of what criteria do States assign the kind of ‘spiritual supplement’111 to the strict materiality of an object? Are they symbolic of the capacity of the society under consideration to understand and represent its present and its past, as well as those of others? The majority of these objects are potential carriers of multiple meanings and information about the history and beauty of mankind. Are all of these ‘documents’ cultural property? What fate do States reserve for them? Whenever we encounter them—even when the definition varies and comprises intangible objects—it is a question 106 Marc-André Renold, Alessandro Chechi, and Anne Laure Bandle, Resolving Disputes in Cultural Property/La résolution des litiges en matière de biens culturels (Schulthess ­Verlag 2012); Alper Tașdelen, The Return of Cultural Artefact: Hard and Soft Law Approaches (Springer International Publishing 2016). 107 Removing it from the place in which it had been created means to destroy. 108 Tullio Scovazzi, ‘Diviser c’est détruire: Ethical Principles and Legal Rules in the Field of Return of Cultural Property’ (2011) 94 Rivista di diritto internazionale 341. 109 Jacques Le Goff (ed), Patrimoine et passions identitaires, Actes des Entretiens du Patrimoine (Fayard 1998). 110 Marie Cl Berducou, ‘Introduction a la conservation archéologique’ (1990), English translation: ‘Introduction to Archaeological Conservation’ in Nicholas Stanley Price, M Kirby Talley Jr, and Alessandra Melucco Vaccaro (eds), Historical and Philosophical Issues in the Conservation of Cultural History (Getty Conservation Institute 1996). 111 Ibid 247.

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of their ‘conservation’,112 with the goals of conservation being: (1) to ensure their durability; (2) to respect their integrity; and (3) to offer wide accessibility. Yet, it is a question of balancing the interests and limits imposed by conservation with the interests on the social usefulness of the cultural heritage, transmitted by the revelation of its aesthetic, historical (or other) message. 11

‘Another Way of Owning’

In our opinion, the relationship between cultural heritage and national treasures within the internal market (and also outside of it) does not refer only to a legal regime based on classic individual, absolute, and exclusive ownership in the Blackstonian sense.113 Their ‘common’ dimension gives even tangible objects some inherent attributes of an immaterial, intangible character, which supports their inclusion under the protective umbrella of the commons, as a tertium genus in between public and private ownership.114 'Another way of owning', as Paolo Grossi wrote in his seminal work,115 may be the best way to represent this new form of owning by the community. It is based on the same paradigm that challenged the great transformation during the origins of the modern market economy, highlighted by Karl Polany with exemplary passion in his book.116 By calling it an ‘instance of sociality’, we refer to the powerful nucleus of civic (i.e. related to citizens) expectations, that comes alive as soon as the phenomenon of a­ ppropriation—by private individuals or by public 112 Ibid 250. 113 Antonio Gambaro, ‘Community, State, Individuals and the Ownership of Cultural Objects’ in Jorge A Sánchez Cordero (ed), La Convención de la unesco de 1970. Sus nuevos desafíos/The 1970 unesco Convention. New Challenges/La convention de l’unesco de 1970. Les nouveaux défis (Universidad Nacional Autónoma de México 2013). 114 Francesco Francioni, ‘Public and Private in the International Protection of Global Cultural Goods’ (2012) 23 ejil 719, 722. For more on cultural property as a common good, see Pablo A Gonzales, ‘From a Given to a Construct: Heritage as a Commons’ (2013) 28 Cultural Studies 359; and Lyndel V. Prott, ‘International Standards for Cultural Heritage’ in World Culture Report (unesco Publ 1998). See also André Micoud, ‘Le Bien commun des patrimoines’ in Patrimoine culturel, patrimoine naturel, Actes du colloque de l’École Nationale du patrimoine, 12 et 13 décembre 1994 (La Documentation française 1995). Cf Andrzej Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Brill/Nijhoff 2016). 115 Paolo Grossi, Un altro modo di possedere. L’emersione di forme alternative di proprietà alla coscienza giuridica postunitaria (Giuffrè 1977); Paolo Grossi, ‘“Un altro modo di possedere” rivisitato’ (2007) 1 Agricoltura, istituzioni, mercati 11. 116 Karl Polanyi, The Great Transformation (Farrar & Rinehart 1944); Chris Hann and Keith Hart (eds), Market and Society: The Great Transformation Today (cup 2009).

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e­ ntities—collides in practice with the wider use of assets which were previously conceived of as ‘part of the community’. The notion of a ‘common good’ has been closely bound up with the idea of citizenship, as a material consequence of citizens' collective actions of citizens participating in their own selfgovernment; at the same time ‘commons’ identifies the possibility that politics can be about more than building an institutional framework for the narrow pursuit of individual self-interest in the essentially private domain of liberalized markets.117 Citizens can claim a right to enjoy these common goods, as Gino Gorla pointed out in his telling essay.118 With respect to cultural heritage, ‘another way of owning’ becomes essential.119 We must acknowledge at the outset that contemporary legal concepts and the vocabulary that expresses them—especially those provided by the continental Civil codes, eventually exported to many non-Western countries through imposition (read: colonization), by chance (read: migration), or by prestige (read: being part of a wealthy club of nations, such as in the case of wto, or EU)—do not help in understanding the expression ‘another way of owning’.120 The expression carries with it a sense of community and common identity. And precisely at this point comparative law can be helpful in understanding the implicit dimension of legal rules that benefit a given community, their meanings and limits. Comparative law works to build the awareness that elsewhere there is another community of people characterized by other ways of thinking. Comparative law helps in understanding that another way of owning is possible when paradigms change because cryptotypes121 are revealed. 117 Joseph L Sax, ‘Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council’ (1992–93) 45 Stanford Law Review 1433; Sax, ‘Heritage Preservation as a Public Duty’ (n 93); Sax, Playing Darts with a Rembrandt (n 96); see also Carol Rose, ‘Joseph Sax and the Idea of the Public Trust’ (2003) 3(1) Issues in Legal Scholarship accessed 31 January 2019. 118 Gino Gorla, ‘Il Museo Guarnacci di Volterra, la Fabbrica di porcellane Ginori e i palazzi di Firenze: (dall’aurea giurisprudenza della Rota fiorentina al codice civile del 1942)’ (1972) 95 Il Foro Italiano 1, 31. 119 Joseph L Sax, ‘Is Anyone Minding Stonehenge? The Origins of Cultural Property Protection in England’ (1990) 78 California Law Review 1543; Joseph L Sax, ‘Imaginatively Public: The English Experience of Art as Heritage Property’ (2005) 38 vjtl 1097. 120 Ugo Mattei, Edoardo Reviglio, and Stefano Rodotà (eds), Invertire la rotta. Idee per una riforma della proprietà pubblica (Il Mulino 2007). Cf Carla Barbati, Marco Cammelli, and Girolamo Sciullo (eds), Diritto e gestione dei beni culturali (Il Mulino 2011). 121 A cryptotype amounts to a legal formant without an explicit linguistic formulation, see Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment i of ii)’ (1991) 39 American Journal of Comparative Law 1. The discovery of a cryptotype is facilitated when, as happens, a legal rule, a concept, or a principle implicit in one legal system is explicit in another legal system. Normally, jurists belonging to a given system

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The cryptotype, a term imported from linguistics into law by Rodolfo Sacco, is the underlying pattern to be revealed, or made visible by logical or non-logical inferences from an explicit rule.122 Individuals often operate on the basis of a ‘sense of what would be morally wrong or right, or even illegal or legal’, even in the absence of knowledge of the relevant rules or laws and without being able to conceptualize what would be wrong about the relevant course of action. They can have ‘a feeling of entering forbidden territory without having a conception of the boundaries of that territory’.123 Unveiling cryptotypes can foster better understanding of social and normative dynamics in cultural heritage law. 12 Conclusions The relationship between cultural heritage and national treasures in Europe requires a close reflection on the intricate relationship between national and international rules and standards, between formal and informal sources of law. The complexity arising from the interaction of many normative layers is well reflected in the legal language, in particular on ‘cultural’ as an overdone adjectivization used by the law, which may be summarized as follows: ‘cultural property’—was first a notion with multiple meanings, irrespective of origin or ownership, adopted by the 1954 Hague Convention its two (1954 and 1999) find greater difficulty in freeing themselves from the cryptotypes of their system than in abandoning the rules of which they are fully aware. For some scholars, the subjection to cryptotypes constitutes the mentality of the jurist of a given country at a given time, and such differences in mentality are the greatest obstacle to mutual understanding between legal actors of different legal systems. Cf Pierre Legrand, Fragments on Law-asCulture (WEJ Tjeenk Willink 1999). Although a cryptotype can be intended as a part of the mentality, it does not coincide with it. Individuals often follow rules which they are not aware of, or which they would not be able to articulate or explain. For instance, few would be able to formulate the language rule we follow when we say three dark suits and not three suits dark (Sacco 1991). See Barbara Pasa and Lucia Morra, ‘Implicit Legal Norms’ in Jacqueline Visconti (ed), Handbook of Communication in the Legal Sphere (de Gruyter Mouton 2018), 141. 122 The tacit normative dimension is connected to the legal text through the halo of implicit meaning that intersects the ‘living law’ where the legal text suggests, implies, or alludes. ‘The living law’, Ehrlich wrote, is ‘the law which dominates life itself even though it has not been posited in legal propositions (…)’: cf Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Transaction Publishers 1962) 493. 123 Michael Schmitz, ‘Social Rules and the Social Background’ in Michael Schmitz and others (eds), The Background of Social Reality: Selected Contributions from the Inaugural Meeting of enso (Springer 2013).

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Protocols. The notion of ‘cultural heritage’ of each State—was then used in Article 4 of the 1970 unesco Convention, and in the 1995 unidroit Convention,124 which introduced another notion, namely: ‘cultural object’— indeed for the purpose of protecting cultural heritage, each State can claim the restitution (Article 1(a))/return (Article 1(b)) of stolen/illicitly removed cultural objects: those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art, or science and belong to one of the categories listed in the Annex to the 1995 unidroit Convention.125 ‘Cultural object’ is now a quite widespread notion, articulated with respect to the quality of the object according to the context, time, and space in which it is inserted, as well as to the messages that it conveys to different communities, since the problem of cultural objects affects all objects that express a ­meta-individual message.126 Unfortunately, ‘cultural/culture’ is a hot-button word: it is both eclectic and polyphonic. The international Conventions and supranational institutions perhaps overstate the cohesiveness of ‘culture’. Western intellectual traditions have conceptualized the notion. Stemming from the verb colere in early Latin usages, culture denotes a state in which nature has been redefined by human efforts. The idea of the cultivation of the individual is then transferred to societies, creating a meta-individual dimension of societal progress. The Age of Enlightenment expressed this idea through the French term ‘civilisation’, meaning culture as a measurable quality according to universal standards, whereas the Age of Counter-Enlightenment, and particularly JG Herder, rejected the cosmopolitan concept and linked the term ‘Kultur’ to the agenda of Romantic Nationalism, which exalted diversities.127 On one hand it is a meta-national culture that instils a sense of unity for the construction of statehood; while, on the other, it is a particularistic concept identified with the uniqueness of a community within the nation-state, threatened by trends towards unification. The roots of the term ‘culture’, just briefly recalled here, and its slippery multi-valence meaning cast doubts on the usefulness of the concept as a heuristic tool with an explanatory function. Behaviours, which the law aspires to regulate, are also a product of the brain, an organ of our body in constant cognitive adaptation in response to social interactions, so it seems 124 See Frigo, ‘The Impact of the unidroit Convention’ (n 75). 125 See accessed 31 January 2019. 126 Antonio Gambaro, ‘Il diritto di proprietà’ in Antonio Cicu, Francesco Messineo, and Luigi Mengoni (eds), Trattato di diritto civile e commerciale (Giuffrè 1995) 326. 127 Helge Dedek, ‘When Law Became Cultivated: “European Legal Culture” between Kultur and Civilization’ in Geneviève Helleringer and Kai Purnhagen (eds), Towards a European Legal Culture (Hart 2014) 354 ff.

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we should be seriously rethinking the role of both biological and cultural elements in shaping human behaviour. Furthermore, the polyphonic sound of the word ‘culture’ is amplified by the circular relationship between law and culture: culture produces a set of values, rules, and institutions that together create the way of acting of a given community, while legal rules and practices give normativity to a given culture. Law is a performative language: the very act of naming the content of culture also constructs its heritage and identity as ‘culture’. This is not a natural fact; it pertains to the normative dimension, has a complex historicity, and it cannot be dissociated from the relationship between disciplines, regulations, and sanctions. Thus it is a fact that ‘European culture’ is an ambiguous concept, in a state of flux as it is specific to national contexts and historical variances and will probably never become fixed. The European institutions were first involved in the regulation of the trade in cultural goods while laying down the rules establishing the common market. Those rules allowed for the possibility of national restrictive measures taken to protect ‘national treasures’ ‘possessing artistic, historic or archaeological value’. Those measures were acceptable, provided that they did not constitute a means of ‘arbitrary discrimination’ nor a ‘disguised restriction’ on trade between Member States. This norm is still with us, under Article 36 tfeu. Meanwhile the Community, and then the Union, have taken several initiatives to both enable the Member States to protect their national treasures after the establishment of the single market. The EU tries to ensure that European cultural heritage is safeguarded and enhanced (Article 3(3) teu), to strengthen the competitiveness of the cultural and creative sectors and to facilitate adaptation to industrial changes, but, at the same time, the EU has no competence over cultural legislation and it must contribute to the flowering of the Member States’ cultures, while respecting their national and regional diversity (Article 167 tfeu). Does this mean something more than that Member States must fully respect their different traditions, histories, and linguistic diversities? Doesn’t this mean that the EU has to protect diversity instead of bringing a ‘common European cultural heritage’ to the fore? The EU then has taken actions to combat the illicit trafficking of cultural goods. Similar efforts are now directed towards the repression of the trafficking of cultural goods imported in Europe from other parts of the world. The latest initiative in this respect is the proposed EU Regulation of July 2017 on the import of cultural goods. The action of European institutions in this area of the law takes place on a ­terrain located in between the EU’s exclusive competence for commercial policy and for customs legislation, Member States’ cultural policies, and the many international texts and initiatives that establish international regimes aimed at protecting cultural heritage, also subject to public and private law regimes.

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Considering this complex landscape, a few conclusions can be drawn. The regulation of the field can be improved by making a more parsimonious use of the notion of culture and by improving the terminology that is used to frame new rules, by rendering it more transparent, and rigorous. The adjective ‘cultural’, which features so prominently in the discourse over what is to be protected, does not identify a homogenous category of objects, that are all to be subject to the same policy. The protection and the fruition of archaeological discoveries poses different problems from those involved in the protection and the fruition of contemporary art, ancient paintings, or frescos, etc. Reference to ‘culture’ in setting new rules to govern these matters is not by itself the game changing move.128 Considering the competence of the Member States over the identification and protection of the national cultural heritage, we do not think it would be productive to push for an even broader, all compassing legal notion of 'European cultural heritage'. Nonetheless, we think that the support that the EU can provide to the improvement of the protection of cultural heritage at the national level remains important. It can be further strengthened by showing how it does contribute to the making and the development of a European cultural landscape. On the other hand, the current protection afforded by European regulations and directives to 'national treasures' shows some limitations. The circumstance that the EU still relies on the Annexs to Regulation 116/2009 and to Directive 93/7 for certain purposes is an example of these limitations. Unfortunately, this approach has also influenced the national legislation of a few Member States, on the occasion of their accession to the Union. Despite these shortcomings, the emergence of global norms and standards accepted at the international and at the national level is a fact. The EU, through its action, contributed, and will continue to contribute in the future to this movement, thus highlighting the gradual acceptance of the idea of a common heritage of mankind.129 128 Geneviève Helleringer and Kai Purnhagen (eds), Towards a European Legal Culture (Hart 2014). 129 This pluralistic dimension of cultural property is already reflected in the language of the 1954 Hague Convention (n 2), according to which ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world’ (see the Preamble).

Chapter 5

The ‘Right to Cultural Heritage’ in the European Union: A Tale of Two Courts Mateusz Bieczyński 1 Introduction The legal notion of cultural heritage in international law originates from unesco’s legislative activity, which systematically developed and extended its content.1 Indeed, unesco has addressed the multidimensional relationships and complementarities among different categories of cultural heritage (e.g. tangible, intangible, and underwater cultural heritage). In parallel, cultural heritage appears as a point of indirect reference (cultural rights) in international human rights treaties from the post-war period. Although the main treaties do not mention the ‘right to cultural heritage’ explicitly, the ties between international human rights law and the protection of cultural heritage have been increasingly strengthened and consolidated in the practice of various ­international human rights bodies.2 Under the European regional system for the protection of human rights a more explicit connection between cultural heritage and human rights has been established quite late: primarily in two treaties adopted by the Council of Europe (CoE): the 1995 Framework Convention for the Protection of National Minorities3 and the 2005 Framework Convention on the Value of Cultural Heritage for Society (Faro Convention).4 Yet these treaties remain in the shadow of the two main European Human Rights Acts—the CoE’s European Convention for the Protection of Human Rights and Fundamental Freedoms (echr),5 and the Charter of Fundamental Rights of the European Union (cfr)6—neither of which contains an explicit right to cultural heritage. 1 Francesco Francioni, ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’ in Abdulqawi A Yusuf (ed), Standard-Setting in unesco, Normative Action in Education, Science and Culture (vol 1; unesco Publ/Nijhoff 2007) 221. 2 In particular, see hrc, ‘Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed’ (2011) UN Doc A/HRC/17/38. 3 (Adopted 10 November 1994, entered into force 1 February 1998) ets 157. 4 (Adopted 27 October 2005, entered into force 1 June 2011) cets 199. 5 (Adopted 4 November 1950, entered into force 3 September 1953) ets 005. 6 [2012] OJ C326/391. © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_007

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Unsurprisingly, both under international law instruments and the law of the EU, most of the existing legal empowerments to carry out actions directed towards cultural heritage are assigned to States. However, the lack of any direct expression of individual empowerments vis-à-vis cultural heritage in the echr and the cfr does not exclude incorporating individual interests in such heritage as a legal argument. The ‘right to cultural heritage’ can and should be considered as an important tool to protect important aspects of other—directly expressed—human rights. But while examining the individual dimension of the ‘right to cultural heritage’, one needs to take into account that the notion is itself a shortcut phrase.7 It consists of many different singular rights, such as the right to access, protect, or enjoy cultural heritage. So the content of that right is strictly intermediated by the singular context of the case in which an individual claims legal protection of his/her interests. This recognition constitutes the main focus of this Chapter, which investigates the presence of individual rights to cultural heritage under EU law, and particularly under the supranational case law that is impacting and forming the EU legal system. The problem, however, needs to be seen in a broader context. The direction of the development of the EU, i.e. from a strict economic regional integration into a culture-related community of shared values,8 has been accompanied by new questions about the universality of the standards of protection of human rights within the Union. These are now clearly visible in the inevitable coexistence between the two main European courts—the European Court of Human Rights (ECtHR) in Strasbourg and the European Court of Justice (ecj) in Luxembourg, which is one of the three courts within the Court of Justice of the European Union (cjeu)9—both of which decide simultaneously about different aspects of human and citizens’ rights. The former, as an international court which is external to the EU legal system, has over a half-century of practice in the enforcement of human rights on the European continent. Its verdicts are binding on all Member States of the EU, as they are also parties to the echr. The cjeu, as the highest court in the Union in matters of EU law, is not a human rights court, and as such has not been called upon in the past to decide cases directly focusing on the topic of human rights. Most of the cultural issues regulated by EU law were also beyond its focus, due to the limited competences of the Union in that sphere of social life. 7 See hrc (n 2) para 60. 8 For a critical approach to this evolution, see Clive Barnett, ‘Culture, Policy and Subsidiarity in the European Union: From Symbolic Identity to the Governmentalisation of Culture’ (2001) 20 Political Geography 405. 9 This Chapter uses the abbreviation ecj only for the cases decided before 2009. The cjeu is used as a general reference to the Court’s policy.

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In analysing the influence of the case-law of the ECtHR and cjeu on the enforcement and development of the ‘right to cultural heritage’ in its individual dimension, one must consider two aspects of the coexistence between both courts—the functional one and the substantive one. The functional aspect refers to the legal foundations of their actions, while the substantive aspect concerns the content of particular judgments, the scope of protection given to cultural heritage rights, the senses inherent in the notion of cultural heritage in their rulings, etc. While both these aspects—functional and s­ ubstantive— are strictly interrelated, they can also be considered separately. One should first take into consideration the functional aspect because of its general ­character—it would seem a logical sequence to define first who is acting (the ‘competence’ norm) before going on to examine and describe the actions of the legal subject (use of the competence). Both of these aspects have to be situated in the dynamic context of the EU’s historical evolution. The functional frame of the cjeu’s actions has undergone permanent changes. In the process of deepening the legal integration of the Union, human rights—including cultural human rights as well as other culture-related issues—have been incrementally included into EU law, and thus have fallen within the competence of the cjeu.10 This situation has created the need to redefine the relations between the two European courts. It has contributed to the actualization of such general problems as: To what extent is the cjeu obliged to follow ECtHR’s decisions? What impact does the case-law of the ECtHR have on the practice of the cjeu? The substantive dimension of the relationship between the two courts has also changed over time, in accordance with the fluctuations in cultural policies, both at the level of Member States as well as at the level of the Union. A close examination of the case-law of the ECtHR and cjeu (and formerly ecj) reveals that the lack of a specific legal guarantee of the ‘right to cultural heritage’ in international and European treaties has not inhibited its development and enforcement in the praxis of EU law. Both courts have had and are having a significant impact on that process. Although the meaning which they attribute to the notion of cultural heritage in their jurisprudence seems to be different, the pragmatic necessity of mutual agreement between their positions suggests the possibility of a future accordance in their lines of reasoning. By searching for a common line of reasoning between the two institutions, this Chapter endeavours to explore and substantiate the content of the ‘right to cultural heritage’ in the EU. 10

See Chapter 3 by Evangelia Psychogiopoulou in this volume.

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The main aim of this Chapter is thus to reconstruct the historical evolution of the way in which both courts have approached the topic of cultural heritage, with special focus on its individual dimension. To this end, the Chapter investigates their case-law and attempts to determine each judicatory line. The central focus is on the question of whether or not these judicatory lines are in convergence, and to what extent. It also attempts to draw more general conclusions concerning the political consequences of the on-going existence of dual and parallel regimes of European human rights law for the EU and for the CoE. Accordingly, this Chapter endeavours to explain whether it is possible today to identify a more coherent, or perhaps common approach, to the human rights attached to cultural heritage within the EU. Undoubtedly such a discussion is needed in light of the increasing importance of cultural heritage for the social development of Europe and intercultural dialogue and understanding, as has been explicitly emphasized in the agenda for the European Year of Cultural Heritage (2018).11 2

The Substantive Level of Coexistence

The research on the recognition and enforcement of the ‘right to cultural heritage’ in the judicatory practice of the ECtHR and cjeu (and the former ecj) requires a two-step analysis: a separate look at the case-law of each; and a comparison of the judgments in search of tangential points between them. The main focus in the first step is the description of the subject and object of the ‘right to cultural heritage’ in all of its dimensions, as mentioned in the introduction (i.e. the right to enjoy, access, protect, or inhabit an object of cultural heritage as well as to cultivate some cultural practices) as considered by both institutions. The detailed questions to be addressed include: How is the ‘right to cultural heritage’ understood by each court? How is the ‘right to cultural heritage’ constructed in their judgments? According to the judicial line of reasoning adopted in their judgments and decisions, can the ‘right to cultural heritage’ be considered as a human right? Who is the subject of that right in both legal regimes? How is the ‘right to cultural heritage’ put into force by the respective judicial bodies? If the courts do not recognize the ‘right to cultural heritage’ as a human right, are they protecting individual interests in and rights to cultural heritage under any other legal construction? In the second step, special focus is placed on the issue of possible substantive overlaps in various fields in the cases conducted in the front of the 11

Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1, Preamble.

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r­ espective courts. The question here is also whether any conception of a ‘common European heritage’ has been developed by either of the courts, and if so to examine the sustainability or accordance of such concept(s) as enforced by both institutions. In comparing the practice of both courts, it is also important to note the main functional differences between them, which refer to such aspects as standing before the court, both ratione personae and ratione materiae. The ECtHR is a regional human rights monitoring body which monitors the conduct of State Parties to the echr. With respect to individuals, it serves as the court of last instance of appeal. According to Article 35(1) of the echr and Article 1 of Protocol No. 1 to this Convention,12 the ECtHR may receive applications from any person, non-governmental organization, or group of individuals claiming to be the victim of a violation of the echr by a State Party. It should be noted that it is not required that the individual applicant be a citizen or even a resident in one of the State Parties to the echr. However, the applicant must fall under the jurisdiction of a State Party, generally by being on its territory or, exceptionally, on an extra-territorial basis.13 In contrast, the cjeu is a sui generis supranational institution responsible for the cohesion of different EU policies. According to Article 263 of the Treaty on the Functioning of the European Union (tfeu),14 the cjeu shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and the acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices, or agencies of the Union intended to produce legal effects vis-à-vis third parties. Any natural or legal person may, under the conditions laid down in the law, institute proceedings in connection with an act addressed to that person or which is of direct and individual concern to them, as well as against a regulatory act which is of direct concern to them and does not entail implementing measures. This means that an individual only has standing if directly impacted by an EU measure. The cjeu is thus not a human rights court per se, but due to the extensive EU legislation in the field of human rights there are ever-increasing opportunities for individuals to attain standing to bring a human rights complaint before the cjeu. 12 13 14

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 20 March 1952, entered into force 18 May 1954) ets 009. For instance, see Lorand Bartels, ‘The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects’ (2014) 25 ejil 1071. Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47.

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The above demonstrates that the two courts belong to different legal regimes of international adjudication. Yet despite these differences it seems that their relationship to each other is crucial for the future development of the ‘right to cultural heritage’ within EU law. 2.1 Enforcement of the ‘right to cultural heritage’ by the ECtHR As already mentioned, the echr does not explicitly mention any cultural rights, but the dynamic interpretation of its provisions has led to their gradual, practical recognition. The rights enshrined in the echr most likely to be invoked by the court in relation to cultural rights are: Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression), Article 14 (the non-discrimination clause), and Article 2 of Protocol No 1 (right to education). In answering the question—How is the ‘right to cultural heritage’ enforced in the juridical practice of ECtHR?—a brief overview of its case-law is necessary. Reconstruction of the arguments used by the Court in favour of the ‘right to cultural heritage’ provides the theoretical basis for its future litigation and development. According to the Case-law Report of 2011, drafted by the Research Division of the ECtHR, the following cultural rights have been adjudicated by the Court: (a) artistic expression; (b) access to culture; (c) cultural identity; (d) linguistic rights; (e) education; (f) cultural and natural heritage; (g) historical truth; and (h) academic freedom.15 All of the above-mentioned rights are interrelated and cannot be neatly separated. The Report does not explicitly point to ‘cultural heritage’ as a separate area of the Court’s concern, and it also confirms that the ECtHR has never recognized the ‘right to the protection of cultural heritage’ as such.16 The Court has accepted only the protection of that heritage as a legitimate aim which a State can pursue when interfering with individual rights, especially with respect to the right to property enshrined in Article 1 of Protocol No 1 to the echr. As a consequence, the ‘right to cultural heritage’ often appears in the ECtHR’s caselaw as a right interrelated with property rights and as such is centred on its tangible dimension. In a number of cases, the Court has dealt with the right to the peaceful enjoyment of one’s property when such property is protected as cultural heritage under national law. Overall, the protection of cultural h ­ eritage has been guised as a collective right to safeguard and preserve a property of 15 16

European Court of Human Rights, ‘Cultural Rights in the Case-Law of the European Court of Human Rights’ (January 2011, updated January 2017) accessed 30 January 2019. Ibid para 78.

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high historical value.17 For example, in Beyeler v Italy,18 Ruspoli Morenes v Spain,19 and Buonomo Gärber and Others v Italy,20 the ECtHR’s rulings limited the individual right to the free disposal (alienation) of cultural property. The reason underlying the Court’s conclusions was the collective right to secure the preservation of and public access to cultural heritage. Arguably, this means that in the opinion of the Court the legitimate aim of a State to enforce limitations on property rights to cultural objects is not justified by its ‘own’ political interests, but consists in protecting the interest(s) of a community of citizens, understood as a group of eligible recipients of this heritage, their access to which must be protected. Therefore, the relationship between export controls or other art market controls and human rights has been directed from vertical relations (between individuals/non-State communities and States) towards horizontal ones (between various cultural rights holders, both individual and collective).21 In the cases of scea Ferme de Fresnoy v France22 and Albert Fürst von Thurn und Taxis v Germany,23 which concerned the broader context of the use, development, conservation, and management of property which was deemed to be of great importance to the cultural heritage of a State, the ECtHR decided mostly in favour of the State, as a representative of the collective interest of the people of a particular nation in the exercise of their rights to preserve the integrity of their cultural heritage. Even where the Court recognized a party’s claim against the State vis-à-vis the lack of just compensation for the limitation(s) placed on the property rights, the Court did not strike down the underlying limitation itself, as in, e.g., Potomska and Potomski v Poland.24 Similarly, in Debelianovi v Bulgaria25 and Kozacioğlu v Turkey,26 which concerned the expropriation of immovable cultural property, the ECtHR did not challenge the legitimacy of this measure protecting cultural heritage. In particular, in the latter case, it held that ‘legitimate objectives of public interest’ may justify a reimbursement of less than the full market value of an expropriated 17 18 19 20 21 22 23 24 25 26

Andrzej Jakubowski, ‘Cultural Heritage and the Collective Dimension of Cultural Rights in the Jurisprudence of the European Court of Human Rights’ in Andrzej Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Brill 2016) 157. echr 2000-i 57. App no 28979/07 (ECtHR, 28 June 2011). App no 63783/00 (ECtHR, 20 May 2003). Jakubowski, ‘Cultural Heritage’ (n 17) 164. echr 2005-xiii 211. App no 26367/10 (ECtHR, 14 May 2013). App no 33949/05 (ECtHR, 29 March 2011). App no 61951/00 (ECtHR, 29 June 2007). App no 2234/03 (ECtHR, 19 February 2009).

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property, and explained that the protection of historical heritage constituted such an objective.27 However, it underlined that an individual cannot be made to solely bear the expenses of the general (cultural) interest of a community.28 The problem of the contradictory nature of the individual and collective dimensions of the ‘right to cultural heritage’ was elaborated most comprehensively in the case of Nowakowski v Poland,29 which concerned the forfeiture of a private collection of historic weapons. This example shows that the E ­ CtHR endeavoured to balance the scope of a State’s intervention into private property rights, wherein it confirmed only the forfeiture of those objects, the possession of which required a legal permit (in this case historic guns and ­weapons). The Court recognized a violation of Article 1 of Protocol No 1 to the echr as the State obtained the collection for free at the expense of the applicant. The Court thus held that the most appropriate form of redress of the violation would be restitution to the applicant of those elements of the historic collection which could be lawfully restored to him.30 Despite this verdict, it should be underlined that in the judgment handed down in the case no individual ‘right to cultural heritage’ was mentioned. This case confirms the general approach of the ECtHR to individual rights to culture. In all cases in which an individual sought legal recognition and protection, the ECtHR looked for more general arguments to affirm an individual right. In other words, ‘recent’ or ‘more contemporary’ aspects of culture are not covered by the notion of ‘cultural heritage’. For example, in the case of Chapman v the United Kingdom,31 the Court considered the Roma lifestyle as an individual right to live without a permanent address. In deciding in favour of the applicant, the ECtHR virtually recognized minority (i.e. collective in essence) rights to live in accordance with their traditions. Although ‘tradtions’ could potentially be considered as intangible cultural heritage, the mentioned judgment can hardly be seen as the explicit recognition of ‘cultural heritage rights’. Summarizing this analysis of the ECtHR’s approach to the different aspects of tangible cultural heritage, it appears that in all the above-mentioned cases the Court has recognized the State as the ‘advocate’ of the collective interest to preserve and access cultural heritage. In this context the ‘right to cultural ­heritage’ could be defined as a right guaranteeing the widest possible public access to cultural heritage.32 According to this definition, this right is considered as a collective right exercised and executed on by the State. 27 Ibid paras 64 and 82. 28 Ibid paras 72–3. 29 App no 55167/11 (ECtHR, 24 July 2012). 30 Ibid para 62. 31 echr 2001-i 41. 32 See Beyeler (n 18) para 113.

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In the context of the cases described above, special attention should be given to the case of Akdaş v Turkey,33 the analysis of which leads to the conclusion that the collective subject of the ‘right to cultural heritage’ does not always have a common interest with the State. This case shows that there are some situations wherein the right to access cultural heritage comes into conflict with some other legally protected public good defended by the State, which assigns the latter a more important legal value. The case concerned the sentencing of a publisher to pay a heavy fine for the publication in Turkish of an erotic novel by Guillaume Apollinaire (dating from 1907), and seizure of all the copies of the book. It enshrined the concept of a ‘European literary heritage’ and set out various criteria in this respect: the author’s international reputation; the date of the first publication; and the large number of countries and languages in which the book had been published. What is interesting for this research on the ‘right to cultural heritage’ is the Court’s conclusion that the ‘public of a given language’, in this case Turkish, could not be prevented from having access to a work that is part of such a heritage.34 On one hand the Court thus confirmed the earlier assumption about the collective subject of the ‘right to cultural heritage’, but on the other hand it opposed this subject to the State itself. Considering that the object of legal protection in all the above-mentioned cases was the same as in the Akdaş case, it appears that this collective right represents a broader interest than only the national one. In cases of a conflict between an individual right to cultural property and a collective ‘right to cultural heritage’ (mostly the right to free access), the State will represent the larger community’s interest. However, in cases in which the ‘right to cultural heritage’ opposes another value protected by the State, the State may oppose such a societal interest. The Akdaş case also encompasses another interesting aspect—an attempt to define the concept of ‘common European heritage’. It opens up a series of issues connected with the sphere of intangible cultural heritage. This decision was the first judgment in which ECtHR directly referred to the notion of ‘cultural heritage’ outside of the context of property rights. It seems to break from the Court’s former hesitation to justify the pure communicative aspects of culture as a part of people’s heritage. For example, in Khurshid Mustafa and Tarzibachi v Sweden35 and in the already mentioned Chapman case, the ECtHR referred to other rights correlated with the ‘right to cultural heritage’, but did not invoke this ‘right’ directly. The Khurshid Mustafa case was related to access to information and concerned the evictions of tenants on account 33 34 35

App no 41056/04 (ECtHR, 16 February 2010). Ibid para 30. App no 23883/06 (ECtHR, 16 December 2008).

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of their refusal to remove a satellite dish that enabled them to receive television programmes in Arabic and Farsi from their country of origin (Iraq). The Court developed its ruling based on its case-law concerning the freedom to receive information under Article 10 echr. It emphasized the importance of such freedom for an immigrant family with three children, who may wish to maintain contact with the culture and language of their country of origin. The ECtHR also pointed out that the freedom to receive information extends not only to reports of events of public concern, but in principle covers also cultural expressions as well as pure entertainment.36 Court of Justice of the European Union. A Brief Overview of Its Cultural Heritage-Related Case-Law The lack of an explicit guarantee for the ‘right to cultural heritage’ as a human right in EU law does not, in and of itself, offer sufficient premises to conclude whether this right is or is not protected in the EU legal system. It is not possible to define the real scope of its recognition without first exploring a functional interpretation of the cjeu’s and former ecj’s case-law, including analysis of the relationship between cultural heritage and human rights, with special attention paid to cultural human rights. This analysis should also take into account the specific context in which the cjeu is considering human rights, as the main aim of this institution is the uniform application and interpretation of EU law. In the judicatory practice of the Court, there are some crucial points of interpretation which give a picture of the ‘right to cultural heritage’ in terms of its practical enforcement. Among other issues, the Court was concerned that ‘a Community competence should clearly be subordinate to the objective of coordinating cultural policies in reference to third countries as defined by each Member State within the sphere of its own competences’.37 This however does not exclude the influence of the ecj (now cjeu) on the cultural policy of the Member States within the Union. Indeed, the EU as a supranational organization is governed by a set of primary rules (in particular the four fundamental freedoms of movement—goods, persons, services, and capital) which can collide with domestic rules for the protection of cultural heritage. Both ­contexts—the subordination of the Union’s cultural competences to the cultural policy of the Member States, as well as the ecj’s/cjeu’s competence to protect the EU’s fundamental freedoms—build a conceptual framework for the following discussion. 2.2

36 37

Ibid para 44. Case C-268/94 Portuguese Republic v Council of the European Union [1996] ecr i-6177.

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The cjeu has, in its judgments and decisions, taken cultural heritage considerations into account when deciding upon different legal issues: promotion of linguistic diversity of the Community in the information society;38 harmonization of certain aspects of copyright and related rights in the information society;39 discrimination in the access to culture on the grounds of nationality, i.e. admission to public monuments;40 and the free movement of capital, i.e. certain properties that are protected on account of their forming part of the national cultural and historical heritage.41 Accordingly, the notion of cultural heritage serves, in the judicial praxis of the cjeu, as: (1) a feature differentiating a legal assessment—e.g. a tax law on historical buildings;42 (2) a point of reference for investigating the influences of other EU-Members’ policies and actions on environmental change;43 (3) a separate field of action—while taking into consideration the secondary competences of the Community in the field of culture in external relations;44 and (4) a reason for limitations on free trade within the common market, based on the safeguarding of ‘national treasures’.45 In many cases, the cjeu (and formerly the ecj) has considered the degree of cultural interest that needs to be shown to derogate from the rules on the four freedoms of the movement laid down in the Treaty of Rome Treaty Establishing European Economic Community (eec Treaty,46 today replaced by tfeu). It is possible to reconstruct an evolution of the Court’s policy in this respect via a comparison of two cases—the judgment in the already-mentioned case Commission v Italy, and the opinion of Advocate General Van Gerven in the Fedicine case.47 In Commission v Italy, the Italian Government prohibited the exportation of art treasures (articles of an artistic, historic, archaeological, or ethnographic nature) and claimed that the art treasures did not constitute ‘consumer goods’ 38 39 40

Case C-42/97 European Parliament v Council of the European Union [1999] ecr i-869. Case C-479/04 Laserdisken ApS v Kulturministeriet [2006] ecr i-8089. Case C-388/01 Commission of the European Communities v Italian Republic [2003] ecr i-721. 41 Case C-133/13 Staatssecretaris van Economische Zaken and Staatssecretaris van Financiën v Q ECLI:EU:C:2014:2460. 42 Ibid. 43 Case C-404/09 European Commission v Kingdom of Spain [2011] ecr i-11853. 44 Portuguese Republic (n 37). 45 Case 7/68 Commission of the European Communities v Italian Republic [1968] ecr 423. 46 [2002] OJ C325/1. 47 Case C-17/92 Federación de Distribuidores Cinematográficos v Estado Español and Unión de Productores de Cine y Televisión [1993] ecr i-2239 (Fedicine case), Opinion of AG Van Gerven.

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or ordinary products and therefore were exempted from the rules on free movement. The Court declared that the protection of cultural heritage was not an area of Community’s competence and that the European Economic Community (eec) had no influence on national cultural policies.48 This statement was based on the cultural exception introduced first in Article 36 of the eec Treaty (now Article 36 tfeu). The Court went on to assess whether the ‘national treasures’ exception could be applied to every movable artwork that could be an object of a commercial transaction.49 In practice, this exception was interpreted restrictively and the ecj never considered the cultural interest. Justifications based on a national interest were considered with suspicion, as a form of protectionism.50 The Court’s jurisprudence was equivalent to an ascertainment that the free movement of goods admitted no legal difference between cultural goods and ordinary commercial products.51 Chronologically, there are other cases which shrunk the boundaries of the restrictive interpretation of the cultural derogation of Article 36 of the eec Treaty (now Article 36 tfeu) concerning the four fundamental freedoms. Prior to 1992 the ecj was sceptical about culturally-based limitations to the free market regulations. Cases like Procureur du Roi v Benoît and Gustave Dassonville (1974),52 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (‘Cassis de Dijon’, 1979),53 or Commission of the European Communities v Federal Republic of Germany (‘German Beer’, 1987)54 confirmed the ecj’s position in extending protection of the integrity of the common market.55 The ecj was even criticized for its economic laissez-faire doctrine with respect to the free 48 49

50 51 52 53 54 55

See Alessandro Chechi, ‘Cultural Matters in the Case-law of the European Court of Justice’ in Sneška Quaedvlieg-Mihailović and Rupert Graf Strachwitz (eds), Heritage and the Building of Europe (Maecenata 2004) 86. ‘In the absence of a Community characterization that definition has been narrowly interpreted so as to cover only priceless works of art having a significant correlation with the nation, with the consequence that many masterpieces have been excluded and are thus governed by the rules which are normally applied to common merchandises’. See Alessandro Chechi, ‘Cultural Matters in the Case Law of the European Court of Justice’ (2004) 9(3) aal 281, 282. Rachael Craufurd Smith, ‘The Cultural Logic of Economic Integration’ in Evangelia Psychogiopoulou (ed), Cultural Governance and the European Union: Protecting and Promoting Cultural Diversity in Europe (Palgrave Macmillian 2015) 9. See John E Putnam ii, ‘Common Markets and Cultural Identity: Cultural Property Export Restrictions in the European Economic Community’ [1992] University of Chicago Legal Forum 457, 464. Case 8/74 [1974] ecr 837. Case 120/78 [1979] ecr 649. Case 178/84 [1987] ecr 1227. Jingxia Shi, Free Trade and Cultural Diversity in International Law (Hart 2013) 227.

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movement of cultural goods. Especially after the decision in the case of Commission of the European Communities v Ireland (‘Souvenirs’, 1984),56 the ecj was accused of depriving Ireland of its ability to control the commercial exploitation of its own cultural heritage.57 An important role in this regard was played by the Cassis de Dijon judgment, which introduced the ‘rule of reason’ as a ‘mandatory requirement’ in determining the national interest in restricting the export of cultural goods. In this case the Court recognized that ‘State regulations of areas not subject to Community harmonization must be accepted, together with any obstacles to trade which may follow from disparities in national laws, but only insofar as these trade rules could be justified by the “rule of reason”.’58 As the case-law illustrates, such a category constitutes an open definition that may be fulfilled by any non-economic interest, among which the Court included the protection of cultural heritage.59 In this judgment the ecj seemed to recognize the importance of non-economic development for the Member States, and took the first step in the harmonization between the free market principle and local cultural policies. But, as recognized in the legal literature, ‘where cases before the ecj place economic and cultural interests in conflict, the economic considerations usually prevail to the detriment of the cultural considerations’.60 The 1992 Treaty of Maastricht,61 establishing the European Community and the European Union added a new Title ix called ‘Culture’ to the former ecc Treaty (renamed: Treaty Establishing the European Community, EC Treaty),62 with the most important regulation expressed in Article 128 (now Article 167 tfeu).63 On one hand, the new Treaty’s entry into effect did not much change 56 57

Case 249/81 [1982] ecr 4005. See Janja Hojnik, ‘Free Movement of Goods in a Labyrinth: Can Buy Irish Survive the Crises?’ (2012) 49 cmlr 291. 58 Chechi, ‘Cultural Matters in the Case-law’ (n 48) 289. 59 Ibid. 60 Shi (n 55) 227. 61 [1992] OJ C191/1. 62 [2002] OJ C325/1. 63 ‘1. The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore. 2. Action by the Community shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas: improvement of the knowledge and ­dissemination of the culture and history of the European peoples; conservation and safeguarding of cultural heritage of European significance; non-commercial cultural exchanges; artistic and literary creation, including in the audiovisual sector. 3. The Community and the Member States shall foster cooperation with third countries and the competent international organizations in the sphere of culture, in particular the Council of Europe. 4.

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the ecj’s adjudications in cases involving culture,64 while on the other hand a new perspective was opened with the opinion given by the Advocate General in the Fedicine case (1993). Advocate General Van Gerven summed up the ecj’s case-law concerning cultural matters, emphasizing that national or regional measures enacted ‘to ensure the preservation and appreciation of historical and artistic treasures or the dissemination of knowledge of the arts and culture, which are directed towards preserving the freedom of pluralistic ­expression (…) or towards the protection of a national language’ may justify restrictions on the four freedoms of movement in the EU.65 The opinion goes even further, stating that [t]he basis of this may be found in an analogous application, to national measures concerning the provision of services, of the ground of protection of ‘national treasures possessing artistic, historic or archaeological value’ mentioned in Article 36—with reference to movement of goods. Such an analogous application finds support in the case-law of the Court.66 The opinion directly referred to the new provisions of the Treaty concerning culture—which it characterized as ‘a task which, according to the new Article 128(1) of the Treaty, must be fulfilled while respecting the national and regional diversity of the Member States and at the same time bringing the common cultural heritage to the fore’, and it additionally mentioned that ‘Article 128(4) prescribes to the Community to take cultural aspects into account in its action under other provisions of the Treaty’.67 This ‘cultural shift’, which could be observed in some decisions of the ecj from the 1990s onward, was nevertheless still not effecting any long-term change. Perhaps the most obvious case where Article 128 of the eec Treaty should have been addressed more seriously was Union royale belge des s­ ociétés

64 65 66 67

The Community shall take cultural aspects into account in its action under other provisions of this Treaty. 5. In order to contribute to the achievement of the objectives referred to in this Article, the Council: acting in accordance with the procedure referred to in Article 189b and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonization of the laws and regulations of the Member States. The Council shall act unanimously throughout the procedures referred to in Article 189b; acting unanimously on a proposal from the Commission, shall adopt recommendations’. Shi (n 55) 228. Fedicine case (n 47) para 26. Ibid para 27. Ibid para 22.

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de football association ASBL v Jean-Marc Bosman (1995).68 This case concerned the rule existing in the European Football Confederation that permitted national football associations to limit the number of foreign players who could be fielded by a club in competition matches. Many national associations had such rules. The French Court of Appeal of Liège asked the ecj to rule on whether the nationality clauses were prohibited by Article 39 of the EC Treaty (ex Article 48 of the ecc Treaty) on freedom of movement of workers, and the ecj held that they were. Germany argued that sport is often a cultural, rather than economic, activity, and that Article 128(1) of the EC Treaty required the Community to respect the national and regional diversity of the cultures of the Member States. The ecj dismissed this cultural argument with a single sentence, stating that [t]he argument based on points of alleged similarity between sport and culture cannot be accepted, since the question submitted by the national court does not relate to the conditions under which Community powers of limited extent, such as those based on Article 128(1), may be exercised but on the scope of the freedom of movement of workers guaranteed by Article 48, which is a fundamental freedom in the Community system.69 Another important case before 1999, when the new Treaty of Amsterdam70 entered into force, was the case Daniele Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio,71 in which the ecj stated that a regional law establishing a park intended to protect and enhance environmental value and cultural heritage falls outside the scope of Community law.72 Nor did the situation visibly change after 1999, when the provisions of the former Article 128 were incorporated into new Article 151, according to which the Community was obliged not only to ‘take cultural aspects into account in its action under other provisions of this Treaty’ but also to do so ‘in particular in order to respect and to promote the diversity of its cultures’ (Article 151(4)). This extension of the content could have been considered as opening a new perspective of possible compromises between the interests of the Community 68 69 70 71 72

Case C-415/93 [1995] ecr i-4921; Collette B Cunningham, ‘In Defense of Member State Culture: The Unrealized Potential of Article 151(4) of the EC Treaty and the Consequences for EC Cultural Policy’ (2001) 34 Cornell International Law Journal 151. Union royale belge (n 68) para 78. Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts [1997] OJ C340/1. Case C-309/96 [1997] ecr i-7493. Ibid para 24.

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and its Member States in safeguarding cultural heritage. But once again the promise of the change was not fulfilled, as the level of the EU’s engagement in cultural issues was limited by the nature of competences in this area. As has been noted: ‘Article 151 of the EC Treaty has not prompted the ecj to adjust its analysis in cases involving culture’.73 Generally speaking it was argued that Article 151, perceived as ‘an exceptional provision’, ought to ‘be interpreted in a narrow sense’ and ‘cannot justify a shift in the institutional balance’74 of the EU.75 In fact, the Court did not invent any new general argumentation about the influence of Article 151 of the EC Treaty on the four fundamental freedoms. However, in Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften76 and IMPALA v Commission,77 the ecj showed some broader interest in considering cultural issues. It seems that since then the provisions under Article 151 of the EC Treaty have gradually become more noticed in the ecj’s jurisprudence. Hence it has been advocated that for the sake of the protection of cultural diversity ‘the ecj should apply Article 151 independently and include it as an explicit part of legal analysis when a party raises a reasonable cultural justification’.78 The subsequent enactment, in 2000, of the EU’s own ‘Convention’ on human rights—the Charter of Fundamental Rights—and its incorporation into primary EU law suggested the possibility of a change in the direction of the ecj’s rulings on cultural issues. Up until that moment, the main focus of the Court had been on the protection of the four fundamental freedoms, considered as the core basis for the economic integration of the Community. Most of the cases decided by the ecj systematically diminished the importance of the individual interest when it was non-economical in nature. Therefore, the introduction of the Charter as an instrument of the human rights’ protection within EU law was accompanied by the promise of a significant change. That, however, is all about theory, as ‘[l]ooking at the content of the Charter, it is striking that not all categories of human rights are equally incorporated’.79 In fact, the cfr contains primarily civil rights and some political, economic, and 73 74 75 76 77 78 79

Shi (n 55) 229. Case C-211/01 Commission of the European Communities v Council of the European Union [2003] ecr i-8913, Opinion of AG Alber, para 22. See Shi (n 55) 229. Case C-386/04 [2006] ecr i-8203. Case T-464/04 Independant Music Publishers and Labels Association (Impala, association internationale) v Commission of the European Communities [2006] ecr ii-2289. Shi (n 55) 230. Yvonne Donders, ‘The Protection of Cultural Rights in Europe: None of the EU’s Business’ (2003) 10 mjecl 117, 118.

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social rights, while cultural rights are hardly present in the text. It seems that this lack of a cultural dimension within the body of the EU fundamental rights seems to be fully reflected and confirmed in the recent case-law of the Court in cases where it has dealt with cultural issues.80 3

The Functional Level of Coexistence

Any analysis of the functional relationship between the ECtHR and the ecj requires a historical perspective. The ECtHR was established on 21 January 1959 and since then has worked uninterruptedly on the enforcement of the human rights and freedoms contained in the echr. The ecj began to function in 1952, but until the year 2007 had operated outside of the domain of human rights, primarily as a consequence of the original idea that the European Communities had been founded on strictly economic premises. Human rights in general, and cultural human rights in particular, were initially situated outside of the focus of community law. The founding Treaties contained no specific provisions on fundamental rights and freedoms. The ecj’s rulings had been essentially based on both Article 220 of the EC Treaty (ex Article 164 of the eec Treaty), which requires the Court to ensure the interpretation and application of the Treaty, as well as on the political assumption that the Community is grounded on a European model of society, which includes the protection of fundamental rights recognized by all Member States. The first common legal act of community law which referred to human rights’ issues was the Single European Act of 1986.81 In the process of the EC’s further integration and the establishment of the EU, the ecj (and after 2009 cjeu) took over the task of gradually developing a system of guarantees for fundamental rights throughout the EU. This was in response to national allegations that constitutionallyprotected human rights at the level of Member States should act as a limitation on the powers of the European Community.

80

81

For instance, Case C-531/07 Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ecr i-3717; Case C-234/97 Teresa Fernández de Bobadilla v Museo Nacional del Prado, Comité de Empresa del Museo Nacional del Prado and Ministerio Fiscal [1999] ecr i-4773, Opinion of AG Fennelly. [1987] OJ L169/1. The Preamble of the Single European Act stated that the Member States were ‘determined to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter notably freedom equality and social justice’.

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The Treaty of Maastricht (1992) was the first EU Treaty to formally recognize human rights as a part of EU law, reflecting the ECtHR’s jurisprudence on that issue.82 Article 6(2) confirmed that fundamental rights are guaranteed within the Community by both the echr and as they result from the constitutional traditions common to the Member States, designating them as ‘general principles of Community law’.83 Next, the Treaty of Amsterdam (1997) proclaimed respect for human rights and fundamental freedoms as one of the basic principles of EU law (Article 6(1) teu) and extended the powers of the ecj in the field of human rights by recognizing its competence to establish a fundamental rights’ observance test with respect to the rights of European institutions (Article 46 teu). As mentioned above, the case-law of the ecj has undergone constant change in relation to the development of EU law. These changes have strongly affected its relation to the echr and the case-law of the ECtHR. The ecj did not refer the ECtHR’s case-law in its decisions until the end of the 1990s. At that time, if the ‘minima of protection’ established by echr was implicitly considered by ecj. The situation changed slowly, as manifested in Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag,84 Lisa Jacqueline Grant v South-West Trains Ltd.,85 Baustahlgewebe GmbH v Commission of the

82 83

84

85

The Preamble of the Treaty of Maastricht confirmed the attachment of the Member States ‘to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’. Art F: ‘1. The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. 3. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies’. Case C-368/95 [1997] ecr i-3689; see para 5: ‘Where a Member State relies on overriding requirements, such as maintaining press diversity, under Article 30 of the Treaty in order to justify rules which are likely to obstruct the exercise of free movement of goods, such justification must also be interpreted in the light of the general principles of law and in particular of fundamental rights. Those rights include freedom of expression, as enshrined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. A prohibition on selling publications which offer the chance to take part in prize competitions may, in that context, detract from freedom of expression. Article 10 does, however, permit derogations from that freedom for the purposes of maintaining press diversity, in so far as they are prescribed by law and necessary in a democratic society’. Case C-249/96 [1998] ecr i-621.

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European Communities,86 and Dieter Krombach v André Bamberski,87 in which the ecj began to take the ECtHR’s case-law directly into consideration. The first citation by the ecj of the ECtHR’s case-law came in 1996 in the case P v S and Cornwall County Council.88 It established a new rule of practice, according to which both sources of law—the echr and the ECtHR’s judgments—were points of reference. The subsequent Treaty of Nice (2000)89 strengthened the control mechanisms over human rights’ breaches in the EU and introduced a new legal act in that field—the Charter for Fundamental Rights (Charter). The Charter was incorporated into primary EU law by the Treaty of Lisbon (2007),90 which also declared under Article 6 that ‘the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms’ as well as that ‘the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms’. In the same article, the Treaty of Lisbon formulated the reservation that ‘such accession shall not affect the Union’s competences as defined in the Treaties’. The above-described modifications in the recognition of human rights within EU law raised the question about the relationship between the new cfr and the echr. In consequence, it also created a need to define the mutual relationship between the judicial institutions deciding upon the effects of these acts, i.e. between the ecj and ECtHR. There are at least two sets of reasons why the ecj should follow the ECtHR: practical and formal. The former results from the danger of contradictory obligations on the part of Member States (‘practical arguments of recognition’). The development of a different and dogmatic approach to human rights law by the ecj would create the possibility of a conflict between its competences and those of the ECtHR in the event of different legal interpretations. This does not mean that this practical argument obliges the ecj to apply the echr directly. In its past praxis, the ecj very rarely relied on concrete provisions of the echr as the basis for its decisions. The Convention appeared in the legal justification of the ecj only as a general rule of law in the European Community. In consequence, the ecj developed his own concept of fundamental 86 87 88 89 90

Case C-185/95 P [1998] ecr i-8417. Case C-7/98 [2000] ecr i-1935. Case C-13/94 [1996] ecr i-2143. Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts [2001] OJ C80/1. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1; Consolidated version of the Treaty on the European Union [2012] OJ C326/13.

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rights, which—as the Charter stated91 and as the ecj declared in a description of its own policy—is not identical to but adequate within the scope of human rights protection by the echr.92 The formal reasons for the ecj to respect the Convention and the case-law of the ECtHR result directly from the former decisions of the ecj, as well as from the provisions of the primary EU law mentioned above (i.e. Article 6 of the Treaty of Lisbon). In the case Nold v Commission (1974),93 the ecj had ruled that international treaties to which the Member States are signatories can supply guidelines for the protection of fundamental rights and freedoms as ‘general principles of EU law’. Also, the obligation placed on the EU to accede to the ECHR94 defines a clear direction for judging all future litigation before the ecj. Thus, while at present the EU and its institutions are not directly bound by the echr as such, still less by the case-law of the ECtHR, the quest for a harmony in their judgments seems evident. The declaration of the ecj to develop a legal dogma of human rights95 which is adequate to the interpretation line of the human rights protection 91

92

93 94

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Arts 52(3) and 53 of the Charter result in the situation whereby potentially those ‘human rights’ issues that might escape jurisdiction of the ECtHR may still be scrutinized if they fall within the jurisdiction of the ecj, see also: Dinah Shelton, ‘The Boundaries of Human Rights Jurisdiction in Europe’ (2003) 13 Duke Journal of Comparative & International Law 95. A list of corresponding rights can be found in the official explanations relating to the Charter, See Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17. Opinion 2/13 of the Court [2014] ECLI:EU:C:2014:2454; Case C-109/10 P Solvay SA v European Commission [2011] ecr i-10329, Opinion of AG Kokott, para 252. See also: Case C-404/15 and C-659/15 ppu Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen [2016] ECLI:EU:C:2016:198, paras 86–91. In the legal literature exists a description of this autonomic tendency: ‘Charter centrism’ (see Lize R Glas and Jasper Krommendijk, ‘From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship between the Luxembourg and Strasbourg Courts’ (2017) 17 hrlr 567). Case 4/73 J Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ecr 491, Rec 13. The accession of the EU to the echr denotes the process whereby the Union will join the community of 47 European States which have entered into a legal undertaking to comply with the echr and have agreed to supervision of their compliance by the ECtHR. The EU will thus become the 48th Contracting Party to the ECHR. Required under the Treaty of Lisbon, EU accession to the Convention is destined to be a landmark in European legal history because it will make it possible, at last, for individuals and undertakings to apply to the ECtHR for review of the acts of EU institutions, which unquestionably play an increasingly important role in our everyday lives. Case C-601/15 ppu J N v Staatssecretaris van Veiligheid en Justitie [2016] ECLI:EU:C:2016:84, para 46. See subsequently Case C-543/14 Ordre des barreaux francophones et germanophone and Others v Conseil des ministres [2016] ECLI:EU:C:2016:605, para 23.

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system of the CoE raises the important question of whether the interpretation of the echr and the cfr, respectively, can be—in any given case—in contradiction with each other. The basic provisions aimed at resolving this issue are Articles 53 and 52(3) of the cfr. The former declares that ‘nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and freedoms as recognized by echr’. The latter provides that where the ‘Charter contains rights, which correspond to rights guaranteed by echr, the meaning and scope of them shall be the same’. This means that the ecj, when deciding about the scope of human rights’ protection, cannot limit it in comparison with the scope provided by the ECtHR. These invoked provisions in fact establish two legal rules with respect to the relationship between the two European courts. The first is defining the minima of protection of human rights within the EU law, which is based on the provisions of echr and the judicial practice of ECtHR. The second rule provides that while the ecj cannot lower these standards, it can set them higher. As the former ECtHR’s Judge Dean Spielmann stated: the continuing cross-fertilisation between the Strasbourg and Luxembourg case law and the gradual impingement of the European Union on fields of human freedom and welfare, led the former to clarify its position towards the standard of fundamental rights protection offered by EU law.96 He also underlined that the Grand Chamber of the ECtHR, in its Bosphorus97 judgment, addressed the question of ‘the responsibility of Member States in the context of measures taken by them in order to abide by legal obligations towards international organizations to which they have transferred sovereign powers’.98 Indeed, the ECtHR in the Bosphorus judgment stated that the Member State, when implementing legal obligations resulting from its membership in an international organization, shall respect two conditions: (1) the State has no discretion vis-à-vis the international organization with respect to how to implement these obligations; and (2) the relevant international organization is protecting fundamental rights in an equivalent manner as does the echr.99 96

97 98 99

Dean Spielmann, ‘The Judicial Dialogue between the European Court of Justice and the European Court of Human Rights, Or How to Remain Good Neighbors after the Opinion 2/13’ (27 March 2017) 8 accessed 28 January 2019. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland echr 2005-vi 107. Spielmann (n 96) 8. Bosphorus (n 97) para 155.

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Yet, the presumption of ‘equivalent protection’ in the Bosphorus judgment does not refer to identical, but only comparable protection. Moreover, according to Spielmann ‘the protection must be equivalent both in respect of the guarantees of substantive fundamental rights and the machinery for supervising fundamental rights enjoyment’.100 He also underlined that ‘with Bosphorus the ECtHR manifested its intention to avoid conflict with the Luxembourg court’.101 This judgment turned into a ‘doctrine’ of decision-making (the socalled Bosphorus doctrine) after the Treaty of Lisbon came into force. The obligation on the part of the EU to access the echr strengthened the position of the ECtHR in its ‘dialogue’ with the ecj. However, the situation changed following the decision handed down by the cjeu on 18 December 2014, according to which the draft agreement of the EU’s accession to the echr102 was rejected as not compatible with EU law.103 The Court referred to Protocol No 8 relating to Article 6(2) teu, which states that the accession agreement had to contain provisions preserving the specific characteristics of the EU and of EU law, as well as to ensure that accession does not affect EU institutions’ competences or their powers.104 In that context, the Court concluded that accession was liable to upset the underlying balance of the EU and undermine the autonomy of EU law.105 This decision had no influence on the former primary EU law regulations, including Article 6 teu, which still obliged the EU to accede to the echr, but put into question the sense of a close cooperation between the two courts. After the Opinion 2/13 and the inevitable appearance of cracks in the two Courts’ relationship, one key question arose: would the ECtHR continue to apply the Bosphorus doctrine to the EU? As it has been argued (…) three basic scenarios became possible. The ECtHR would continue to implement the Bosphorus presumption as if nothing had happened. The ECtHR would decide to abandon it. Or, there could be an intermediate solution: the ECtHR would continue to apply the Bosphorus doctrine but in a more rigorous manner.106 100 Spielmann (n 96) 8. 101 Ibid. 102 ‘Draft revised agreement on the accession of the European Union to the European Convention on Human Rights. Strasbourg’ (5 April 2013) accessed 28 January 2019. 103 Opinion 2/13 (n 92). 104 Ibid paras 161 and 164. 105 Ibid para 194. 106 Spielmann (n 96) 15.

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On one hand, the ECtHR has already shown its readiness to apply the ­Bosphorus doctrine in the same manner as before the issuance by the cjeu of Opinion 2/13, as confirmed in the Avotiņš v Latvia judgment of 23 May 2016.107 But on the other hand, this does not guarantee that the ECtHR will continue this line of reasoning in the future.108 It is hard to predict what the future relationship between both courts will look like, or what will be their real impact on the development of a ‘right to cultural heritage’, or whether both courts will find a compromise in recognizing the cultural interests of individuals against the State, and of the State against the Community. It seems that there are at least two possible paths. The first would be that the cjeu will, as part of the EU, access the Convention and thus adopt the positions of the ECtHR and accordingly change its own line of ­decision-making, accepting free trade limitations based on the cultural interests of a State to a greater extent than just the ‘national treasure’ doctrine. The second possible path is that the cjeu will maintain its own perspective, but with the additional caveat that the protection of the four fundamental freedoms must be in accordance with the Bosphorus doctrine. This path could be strengthened by the argument that the recognition of an individual interest in cultural heritage preservation can be seen as an extension of the individual property right, understood as a human right. But it is also possible that neither of these two scenarios will come true, and—as the praxis has shown so far—another policy will be developed which will reconcile these opposing perspectives.109 From the general point of view, any adaptation of the two above-mentioned solutions will have different consequences for culture inside of the EU.110

107 App no 17502/07 (ECtHR, 23 May 2016). 108 Compare Glas and Krommendijk (n 92). 109 Kathrin Kuhnert, ‘Bosphorus: Double Standards in European Human Rights Protection?’ (2006) 2(2) ulr 177, 188: ‘With the Bosphorus judgment, the ECtHR confirmed its former case law that it has no competence to review Community acts as such. But the Court recognizes a competence to review these acts indirectly through examining specific implementation measures at national level. Initially, the Bosphorus judgment confirms the ECtHR’s case-law that secondary Community law leaves discretion in implementation for the Member States. As a consequence, both primary and secondary Community law are now subject to review by the ECtHR and EU Member States can be held responsible for (nearly) all Community acts as they originally participated in the legislation process as the authors of these acts and are considered the original legislators of Community acts, and thus responsible for any shortcomings in this context’. 110 See also: Tobias Lock, The European Court of Justice and International Courts (oup 2015); Elisa Ravasi, Human Rights Protection by the ECtHR and the ecj: A Comparative Analysis in Light of the Equivalency Doctrine (Brill 2017).

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4 Conclusions The analysis of the case-law of the ECtHR and ecj/cjeu leads to the conclusion that there is an overlapping field of concern in the judicial practice of both courts with respect to the issue of cultural heritage protection in the context of the free transfer of goods on the common European market. Both courts evaluate sometimes quite similar situations from the perspective of two different legal regimes. On the general level of analysis we can assume that both institutions face the same task—balancing the two main contexts in which objects of high artistic, historic, or archaeological value are exported throughout national borders. On one hand, such objects are usually under the special protection of the Member States, while on the other hand they can be owned by individuals or groups, have an economic/market value, and as such can appear and be sold on the international market. This dualism of interests could be characterized at the theoretical level as an axiological opposition between two notions— ‘cultural heritage’ and ‘cultural property’.111 But this view leads to a simplification of the problem. The dualism of interests does not translate into a dualism of notions, at least insofar as EU law uses the terms ‘cultural goods’ (formerly), or ‘cultural objects’ (currently) rather than ‘cultural property’. Moreover, the distinction between the two aforementioned concepts (i.e. ‘cultural heritage’ and ‘cultural property’) has already been explored in the literature in order to highlight some other relationships (individual v State, as opposed to State v Community).112 It is also important to underline that the cjeu is concerned primarily with dilemmas involving a national interest in preserving ‘cultural heritage’ in light of Article 36 tfeu, rather than trying to elaborate the more abstract concept of ‘cultural heritage’ itself. These observations constitute the basis for assessing the search for another—other than theoretical—possible way to reconcile the ECtHR’s and cjeu’s judgments with respect to ‘cultural heritage’ and individual interests thereto. 111 Annabelle Littoz-Monnet, The European Union and Culture. Between Economic Regulation and European Cultural Policy (Manchester University Press 2013) 45: ‘Although cultural policy motives were not accepted by the ecj as a motivation for restricting the free movements of goods, the rulings of the Court—which defined cultural products in economic terms—contributed to legitimizing Community intervention in the cultural sector’. While comparing the case-law of ECtHR and cjeu regarding the ‘right to cultural heritage’ defined as a collective right to preservation and access to the valued works of arts, then one can realize how deep is the gap between contemporary senses given to the ‘cultural heritage’ as a ‘collective human right’ and as a ‘property right’. 112 See Francioni (n 1); Lyndel V. Prott and Patrick J O’Keefe, ‘“Cultural Heritage” or “Cultural Property”?’ (1992) 1(2) ijcp 307.

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In order to answer the questions addressed in the Introduction, referring to the way in which both courts understand the ‘right to cultural heritage’, express it in their judgments, and recognize it as a part of cultural human rights, it is necessary to take into account some functional differences between the two judicial institutions. Both courts are quite clear and consequent in their decision-making. Despite many procedural aspects vis-à-vis the relationship between both courts—aspects which would have to be explored in a detailed analysis of their real influence on their decisions in protecting individual interests in cultural heritage, iethe justification of each court (issue of standing before the cjeu and ECtHR) or its attitude to human rights113—it seems that the interactions between both courts influence the legal shape of the ‘right to cultural heritage’ in the EU. The ECtHR tends to limit individual property rights due to the collective (in fact—national) interest in preserving cultural heritage. Most of such judgments contain considerations about individual interests in cultural objects, but do not describe them directly as a human rights to possess and enjoy individually any object of cultural value. As mentioned, according the ECtHR’s rulings the ‘right to cultural heritage’ can be only interpreted as a right of the general public to have the widest possible access to cultural heritage.114 The cjeu—in contrast to ECtHR—in most cases connected with the possession of cultural goods adheres to the same line of reasoning with respect to protecting free trade on the common market from national interests based on culture, which could lead to limiting the latter. With other words, the cjeu also does not recognize the ‘right to cultural heritage’ as human right, but follows a general path of decision-making which privileges the four fundamental freedoms, especially the free trade of goods (including cultural objects), while showing little concern with some specific written provisions requiring it to balance the national and common European policies in the field of culture (Article 151(4) of the EC Treaty, now Article 167(4) tfeu).

113 ‘Thus, it is useful to remind ourselves that the two courts were invested in the beginning with distinctive missions: the Strasbourg Court would guarantee the respect of the rights enshrined in the Convention. (…) The Luxembourg court is not and has never been a human rights court. (…) A crucial difference between the two courts lies in their respective relationship with the Member States, which is reflected on the nature of their judicial mission. In particular, the Strasbourg Court, in accordance with article 53 of the Convention, aims at establishing a minimum level of human rights protection throughout all forty-seven Member States, [while] for the ecj the protection of fundamental rights in EU law has always been regarded with reference to the attainment of the objectives of the Treaties. I call it the pro-integration approach to human rights’ (Spielmann (n 96) 3). 114 See Beyeler (n 18) para 113.

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As a result of the conducted analysis, one could risk the thesis that each court follows policies resulting from the general rule of competence (‘limited competence of the Community in the field of culture’)115 rather than the law itself (making no direct reference to the legal provisions referring to culture in primary EU law); or in a softer version, that their decision-making is dependent on the path marked out by the former cases. When comparing both judicial strategies from the perspective of human rights it seems that—despite its direct intentions and contrary to its primary functions—it is not the ECtHR but the cjeu which, through its practice, is giving the greater possibility for protecting individual interests in the enjoyment of cultural heritage. Insofar as the concept of collective human rights has no binding legal form with respect to the two courts, every limitation on the individual property right to a cultural object has to be recognized as a limitation on a human right, even if the ECtHR justifies such limitations based on the interest of the broader public’s access to cultural heritage.116 By comparing the adjudicatory policies of both European courts with respect to cultural heritage, it is possible to recognize the significance of the way in which ECtHR defines the ‘right to cultural heritage’. By recognizing it as an interest of the general public of one nation to access its own culture, the ECtHR protects cultural diversity. The practice of the cjeu (formerly ecj), seen from the same perspective, appears to be an opposing strategy—directed toward the unification of European culture through the ‘common market’ protection (i.e. free movement of goods without the cultural exceptions). In the context of European integration, each court seems to play a different role. In other words, when the ECtHR limits the private property rights to an object belonging to cultural heritage, it is ruling in opposition to the cjeu. So far, the cjeu’s rejection of the draft agreement of the EU’s accession to the echr can be considered as a threat to the idea of cultural diversity (only the protection of ‘national treasures’ can limit the circulation of cultural objects within the Union, a position which promotes cultural unification). However, the cjeu seems to increasingly recognize the need for the development of a consistent human rights policy in EU law, including a cultural human rights policy.117 This is not only a theoretical wish, but also a practical necessity resulting from the content of the Article 167(4) tfeu (ex Article 151(4) of the 115 See Klára Szalay, ‘The Cultural Dilemma: The EU and Its Cultural Competence Viewed from an International Trade Perspective’ (2014) 152 Studia Iuridica Auctoritate Universitatis Pecs Publicata 187. 116 See more Jakubowski (n 17). 117 See Philip Alston and JHH Wiler, ‘An “Ever Closer Union” in Need for a Human Rights Policy’ (1998) 9 ejil 658.

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EC Treaty). This provision has an ‘unrealized potential’ with respect to the possible harmonization of the common market rules and national cultural policies.118 The cjeu (and earlier the ecj) has not often referred to this provision in many situations when it considered culture- and cultural heritage-related issues. And in cases where it has been mentioned, it was not used by the Court as a main and decisive argument.119 As Renaud Dehousse argued, ‘in such situations the ecj should be compelled to act in order to fill the political void’.120 In his opinion, the Court should use its discretionary power to clarify the practical meaning of Article 151(4) and to show the way in which it should be interpreted. So far the Court has not been willing to do so.121 The hitherto practice of the Court suggests hesitation, far-reaching caution, and an attachment to the legal-dogmatic reasoning when dealing with ‘culture considerations’. The cjeu has not recognized Article 167(4) as relevant to cultural heritage-related cases in the sense of being a general cultural exception to free trade within the Community.122 In the context of the actual political tendencies, such as the very visible strengthening of right-wing populism across the western world (from the election of conservative and populist parties in Hungary (2010, 2018) and Poland (2015) through to ‘Brexit’ (2016) and the election of Donald Trump (2016)) the problem of the relationship between the economic foundations of the EU and its cultural dimension ‘comes to the fore’ as a most urgent problem which needs to be resolved. In this context, the suggestion made in 2008 by one American lawyer—that the limited scope of the recognition of national measures in the cjeu’s culture-related cases can strongly influence the EU’s separation tendencies among Member States—sounds today like an unrecognized prophecy.123 In this context, the provisions of Article 167(4) tfeu must be seen as an 118 See Cunningham (n 68). 119 Ibid 123. 120 Renaud Dehousse, The European Court of Justice: The Politics of Judicial Integration (Macmillan 1998) 128. 121 Cunningham (n 68) 150. 122 Ibid 150–51. 123 Nathan Horst, ‘Creating an Ever Closer Union: The European Court of Justice and the Threat to Cultural Diversity’ (2008) 47 Columbia Journal of Transnational Law 165: ‘Over the past few decades, the European Union has emerged as a powerful economic and political force, the remarkable result of decades of effort spent in the hopes of creating a united Europe. However, the success of those efforts is a double-edged sword, bringing both benefits and potentially detrimental consequences. One of those consequences has received relatively little attention, yet could pose a substantial obstacle to the Union’s continued success. That consequence is the threat to cultural diversity. This Note argues that perceived fears of cultural erosion caused by economic integration tend to foster

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opportunity—albeit still only potential—for an accordance between the two European courts and their lines of decision-making in culture-related cases. Wherever the courts may go in developing their policies, it is hard to believe in their readiness to resolve the conflict between a State’s national interest in keeping its own cultural heritage under control and the priority of the EU in the safeguarding of the free circulation of goods through the enforcement of a (human) ‘right to cultural heritage’. ­ ationalist sentiments, sentiments that could sap support for the Union’s future endeavn ors. (…) The European Court of Justice poses the most immediate threat to Member State’s culture through its consistent invalidation of national measures meant to protect culturally-sensitive industries’.

Part 2 Cultural Heritage and the European Union’s Economic and Social Development

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Chapter 6

Exploring the Links between Culture and Development: New Challenges for Cultural Indicators in the European Union Paola Monaco 1 Introduction Borders, shapes, and possible contents of the idea of cultural heritage within the EU have been carefully designed and explored in Part one of this book. As has been made clear (and will be stressed in the following Parts and Chapters), in recent times culture and cultural heritage have begun to play an increasingly central role in the EU’s strategic internal and external policy plans,1 as is reflected in both the EU’s founding treaties2 and the variety of EU initiatives linked in general to the promotion of culture and cultural diversity, as well as to the protection of cultural heritage.3 This focus on culture is also motivated 1 Evangelia Psychogiopoulou (ed), Cultural Governance and the European Union: Protecting and Promoting Cultural Diversity in Europe (Palgrave Macmillan 2015); Evangelia Psychogiopoulou, Integration of Cultural Considerations in EU Law and Policies (Nijhoff 2008) xv; Michaela Franke and Katarzyna Anna Iskra, ‘Fact Sheets on the European Union—Culture’ (10/2018) accessed 22 January 2019. See also for example the 2016 EU strategy to international cultural relations, aiming to give cultural cooperation a central position in the EU’s diplomatic relations with other countries: European Commission, ‘Joint Communication to the European Parliament and the Council: Towards an EU strategy for international cultural relations’ join (2016) 29 final. 2 Art 167 of the Treaty of the Functioning of the European Union (tfeu) clearly states that ‘[t]he Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’, while the Treaty on European Union (teu) posits that the EU ‘respect[s] its rich cultural and linguistic diversity, and (…) ensure[s] that Europe’s cultural heritage is safeguarded and enhanced’ (art 3 teu). In addition, the EU’s cultural competences are identified in ‘carry[ing] out actions to support, coordinate or supplement the actions of the Member States’ (art 6 tfeu): Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C326/1. 3 For a detailed analysis of these activities, See Chapter 14 by Kristin Hausler in this volume; Evangelia Psychogiopoulou, ‘Conclusion: Culture and the European Union’ in Psychogiopoulou (ed), Cultural Governance (n 1) 237 ff; Psychogiopoulou, Integration (n 1) 38 ff. See also the Commission of the European Community, ‘European agenda for culture in a globalizing world’ (Communication) COM (2007) 242 final.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_008

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by the social, environmental, and economic impacts that cultural heritage has and might have on EU economies. While Part two of this book broadly deals with cultural heritage and the EU’s economic and social development, the specific goal of this Chapter is to focus on the issues and problems surrounding the EU’s economic vision of culture and cultural heritage, the value of which is, for EU policy-makers, mostly associated with the recognition of culture as a driver in boosting growth and jobs across the EU.4 In this perspective, the Chapter will consider and compare the most important initiatives and methodologies (both within and outside the EU) for the collection of reliable data on the valorization of culture and cultural heritage in the promotion of economic growth. As will be shown, these experiences offer important lessons to EU policy-makers insofar as culture and development are concerned. Let us start with some general considerations. Even though culture and development are two concepts that public and academic debates have often had difficulty coordinating,5 many scientific and institutional initiatives at the national, regional, and international levels have placed an increasing emphasis on their coupling, and in particular on the need to further examine how culture influences developmental processes.6 The general consensus so far seems to be that cultural factors might have a relevant—and positive—social and economic impact on development.7 This paradigm shift regarding the linkages between culture and development also explains why culture is today a key part of the development policies supported by the international community, as it Also worth recalling here is the Work Plan for Culture (2015–2018), adopted in December 2014 by EU Member States’ culture ministers: ceu, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on a Work Plan for Culture (2015–2018)’ [2014] OJ C463/4. The Plan recognized, among the priorities for European cooperation in cultural policymaking, ‘inclusive and accessible culture, the promotion of cultural heritage, support to the flowering of the cultural and creative sectors, and promotion of cultural diversity and of culture in EU external relations’ (Priorities and Working Methods of the Work Plan for Culture [2015–2018]). Moreover, on 17 May 2017 the European Parliament and the ceu designated the year 2018 as the European Year of Cultural Heritage: art 1 of the Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1. 4 Psychogiopoulou, Integration (n 1) 3 ff. Cultural and creative industries are responsible for around 3.5% of all EU products and services annually, and employ 6.7 million people, or 3% of the European workforce. 5 Maider Maraña, Culture and Development. Evolution and Prospects (unesco Etxea 2010) 2. 6 For an analysis of these initiatives, see for example ibid 2 ff; Sarah A Radcliffe (ed), Culture and Development in a Globalizing World. Geographies, Actors, and Paradigms (Routledge 2006). 7 World Commission on Culture and Development, Our Creative Diversity: Report of the World Commission on Culture and Development (World Commission on Culture and Development 1996) 14 ff accessed 22 January 2019.

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is well illustrated in the UN 2030 Agenda for Sustainable Development8 and the 2017 G7 Florence Declaration.9 At the same time, it is equally clear that policies aiming at boosting culture and development need to be crafted on the basis of reliable evidence, against which the effectiveness of the policy plan can be judged. This explains why, in this field, and in particular insofar as the contribution of culture to economic performance is concerned, the European Council10 and the European Commission11 have repeatedly stressed the necessity to collect and rely on up-to-date statistical and quantitative information. In this context, the present Chapter begins with the presentation of the EU experience in terms of cultural statistics and indicators (§2). It will then present an overview of the main international initiatives that have tried so far to measure the impact of culture and development—initiatives that could be particularly useful to EU policy-makers when conceiving their strategies for the protection and promotion of cultural heritage. Our attention will be firstly devoted to the most important international text linking culture to development, which is the 2005 unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions (§3). After exploring the contribution and the limits of the unesco Convention, the Chapter will focus on two ‘measurement’ projects that have been recently carried out in this field: the Culture for Development Indicators (cdis), drafted by unesco (§4); and the Sustainable Tourism Indicators, published by the United Nations World Tourism 8 9

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unesco, ‘Sustainable Development Goals for Culture on the 2030 Agenda’ accessed 22 January 2019. The 2017 Florence Declaration, adopted by the Ministers of Culture of G7, stresses that cultural heritage ‘is an important tool for the growth and sustainable development of our societies, also in terms of economic prosperity’. Ministers of Culture of G7, ‘Culture as an Instrument for Dialogue Among Peoples, Joint Declaration of the Ministers of Culture of G7 on the Occasion of the Meeting’ (30 March 2017) accessed 22 January 2019. See Priority 3 of the Work Plan for Culture 2008–2010 (ceu, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on a Work Plan for Culture 2008–2010’ [2008] OJ C143/9, 13); and Priority Area F: Culture statistics of the Work Plan for Culture 2011–2014, according to which the promotion of cultural goals ‘involves sharing existing data, case studies, cooperation on evaluation and impact analysis methodologies. However it also requires reviewing and, where necessary, improving national statistical information and ensuring better comparability of national statistics’. ceu, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on the Work Plan for Culture 2011–2014’ [2010] OJ C325/1, 8. See, for example, Commission of the European Communities, ‘1st Report on the consideration of cultural aspects in European Community action’ com (96) 160 final, 4–5; com (2007) 242 final, 14.

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Organization (unwto) (§5). This comparative analysis will lead us to some final remarks about the possible contributions and shortcomings that the imitation or transplantation of these models could represent in the current actions of the EU (§6). 2

EU Cultural Statistics

Collecting statistics and data is certainly not a new task within the EU. Since 1953 Eurostat (naturally in changing and ever-expanding forms) has been processing and working with comparable statistical information at the European level.12 However, the demand for reliable data and statistics in the field of culture arose primarily in the 1990s,13 following the progressive expansion of EU competences from core economic issues to broader political sectors.14 The first efforts to structure cultural data and methodologies were the establishment of the Leadership Group (leg) on cultural statistics (1999–2000), and of the Eurostat Working Group (2001–04). The task assigned to each of these two groups was to oversee a three-year pilot project on the production of cultural statistics which would fairly describe the European cultural scene and facilitate inter-country comparisons.15 The main outcome of these initiatives was the publication by Eurostat in 2007 of a Cultural Statistics Pocketbook, 12

Eurostat is the statistical office of the EU. Its headquarters are in Luxembourg. The mission of Eurostat is to provide high quality statistics for Europe: see Eurostat, ‘Overview’ accessed 22 January 2019. 13 ceu, ‘Council Resolution of 20 November 1995 on the promotion of statistics on culture and economic growth’ [1995] OJ C327/1; Eurostat, Cultural Statistics in the EU: Final report of the leg (European Commission 2000); European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Creative Europe—A new framework programme for the cultural and creative sectors (2014–2020)’ com (2011) 786 final, 7. 14 At the very beginning the EU did not consider culture as a core sector to be developed: ­ESSnet-CULTURE—European Statistical System Network on Culture, ‘Final Report: 2012’ 17 accessed 22 January 2019. 15 Eurostat, Cultural Statistics in the EU (n 13) 1. At the end of its work, leg developed definitions, shared concepts and key indicators trying to describe European cultural diversity (ESSnet-CULTURE (n 14) 17), although the quality of the results was tainted by the heterogeneity of the initial existing sources and the limited duration of the project (Eurostat, Cultural Statistics in the EU (n 13) 179 ff). The same can be said for the Eurostat Working Group (ESSnet-CULTURE (n 14) 231), which ended its activities in 2004 inasmuch as culture statistics had become ‘a negative priority’ within the Eurostat (Eurostat, Cultural Statistics in the EU (n 13) 232).

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which presented comparable data on culture (and on its links to social and economic development), relying on the activities recognized as ‘cultural’ by each Member State.16 The priority given to improving the quality and the comparability of cultural statistics, clearly stated by the European Council in the 2008–10 Work Plan for Culture,17 led to two further initiatives in the following years. On one hand, experts from the ministries of culture and national cultural institutions began meeting regularly to promote spontaneous statistical harmonization through networking and the exchange of best practices.18 On the other hand, in 2009 a network of several organizations belonging to the European Statistical System (ess) banded together in the European Statistical System network on Culture (ESSnet-Culture),19 with the mandate to ‘develop data generation on the basis of a coordinated statistical system and to examine the possibility of adapting 16

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In the report, the field of culture was divided into eight ‘domains’ (artistic and monumental heritage, archives, libraries, books and press, visual arts, architecture, performing arts, and audiovisual/multimedia), and six ‘functions’ (conservation, creation, production, dissemination, trade, and training): Eurostat, Eurostat Pocketbook: Cultural Statistics—2007 Edition (Office for Official Publications of the European Communities 2007) 5 accessed 22 January 2019. Two other editions of the Pocketbook were published, in 2011 and 2016 respectively. Both editions presented a selection of indicators on different culture-related topics, such as cultural heritage, cultural employment, international trade in cultural goods, cultural enterprises, households’ cultural expenditures, cultural participation: Eurostat, Eurostat Pocketbook: Cultural Statistics—2011 Edition (EU Publ Office 2011); Eurostat, Culture ­Statistics—2016 Edition (EU Publ Office 2016). Both are available on the Eurostat website. The Work Plan(s) for Culture are triennial work plans adopted under the European Agenda for Culture, dealing with the definition of initiatives to be carried out in the field of culture at the national and EU levels. The current Plan is the Work Plan for Culture (2015–2018), see n 3. omc experts used to meet five to six times over 18 months to exchange good practice and produce policy manuals or toolkits, which are widely shared throughout Europe: European Commission, ‘European cooperation: the Open Method of Coordination’ accessed 22 January 2019. The ESSnet-Culture project was financed by a grant of the European Commission and was led by the Ministry of Culture of Luxembourg with a group of four other core copartners (the French Ministry of Culture and Communication, the Czech Statistical Office, Statistics Estonia, and the Dutch Ministry of Education, Culture and Science). The main goals of the ESS-net Culture project were: (i) to revise the European framework for cultural statistics (created by leg-Culture); (ii) to improve the existing methodological base to develop new EU cultural statistics; (iii) to define indicators and variables that make it possible to describe and study the cultural sector in all its complexity; and (iv) to provide a national experience to allow a wider and more advanced analysis of the data: ESSnet-CULTURE (n 14) 19, 26.

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or developing existing methods in order to respond to new needs and to cover new domains if relevant’.20 The ESSnet-Culture group (which operated from 2009 to 2012) updated the European conceptual framework for cultural statistics and produced many key indicators on a number of issues (such as the link between culture and employment rates; the import and export of cultural material; the impact of information technologies; and the quality of communication in the cultural sector), intended to represent a platform for the collection of data on cultural activities and their contribution to the economy.21 These 20 years of experience in analysing and collecting cultural statistics clearly demonstrate the efforts made by the EU to ‘upgrade’ culture as a strategic field in EU policy plans and to develop statistics as a privileged instrument to measure the impact and the potential of the cultural sector. However, the limits of these initiatives were, and are, manifold. Suffice it to mention that, besides the absence of a harmonized framework for data and analysis on cultural phenomena among Member States,22 cultural statistics are not included in the Eurostat Annual Work Programme 2017 Priority,23 at least not as an autonomous category,24 and the most recent EU culture statistics are not drawn from specific collections of data pertaining to culture, but rather are secondarily-derived from work aimed at other purposes (mostly at labour, income, and trade).25 20 21 22 23 24

25

Ibid 19. Ibid 21. Ibid. The statistical data used by the project were those produced by the national statistical organizations of Member States, which could provide very different materials in terms of content and methodologies. Eurostat, ‘Eurostat Annual Work Programme 2017—Annex 3A. Overall Priorities’ accessed 22 January 2019. Culture statistics only derive from other multi-purpose data collections. The only direct reference to culture is in Objective 7.1: ‘esp detailed objective 7.1: Provide statistics on key areas of social policy where the citizen is the centre of interest, such as well-being, sustainability, social cohesion, poverty, inequalities, demographic challenges (…), the labour market, education and training, including childhood education, adult learning, vocational training and learning mobility of young people, culture’, ibid 10 (emphasis added). In particular, the cultural dimensions are surveyed through social and economic statistics on: (i) employment, taken from Labour Force Survey (eu-lfs); (ii) business, extracted from Structural business statistics (sbs), Short-term business statistics (sts); (iii) private and public expenditure, coming from Household Budget Surveys (hbs) and statistics on Government expenditure, respectively; (iv) practice and participation, drawn from EU Statistics on Income and Living Conditions (eu-silc), Adult Education Survey (aes), and Information and Communications Technologies (ict); (v) international trade in goods and services, measured through the COMEXT and Balance of Payments. See Eurostat,

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This is why it is useful to test the limits, and examine the room for improvement, of the EU approach to culture data by moving our perspective to the international level, and by comparing the EU path with the main initiatives devoted to the collection of statistics and to the development of indicators for the understanding and strengthening of the relationship between culture and development. This comparative exercise will allow us to verify how different legal institutions have interpreted and performed their mandates insofar as culture and development are concerned, and the extent to which these experiences can be borrowed, imitated, and/or adapted to the European context.26 The starting point for the analysis of these initiatives must be the 2005 unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions. 3

The 2005 unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions

The EU has become one of the strategic partners of unesco, sharing with it the same values and common goals in the area of culture.27 Amidst the many international legal initiatives promoted by unesco on cultural heritage,28 the most important text in terms of pursuing the aim of integrating the protection

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‘Culture: Overview’ accessed 22 January 2019. For more on legal transplants, see Alan Watson, Legal Transplants: An Approach to Comparative Law (University of Georgia Press 1993); Michele Graziadei, ‘Comparative Law as the Study of Transplants and Receptions’ in Mathias Reimann and others (eds), The Oxford Handbook of Comparative Law (oup 2006) 455 ff. Legal transplants can certainly take place from one international institution to another: See, for example, the collaboration established by the UN and the Council of Europe with unesco to learn from the latter’s experience with the unesco Indicators for Media Development: unesco, Media Development Indicators: A Framework for Assessing Media Development (unesco 2010). See the Memorandum of Understanding accessed 22 January 2019. See, inter alia, the Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 unts 151; Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 unts 1; Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 41 ilm 37; and Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970, entered into force 24 April 1972) 823 unts 231.

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of cultural heritage with sustainable development is the 2005 unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions (the 2005 Convention).29 As is well known, this text is the first international treaty defending cultural activities, goods, and services in both their economic and social dimensions, ie both as means to provide jobs and revenues, drive innovation, and enhance sustainable growth, as well as platforms for conveying identities, fostering social inclusion, and nurturing a sense of belonging.30 The 2005 Convention represents the final segment of a long process of diplomatic consensus-building that transformed the protection of cultural diversity from a mere soft law obligation into a binding commitment.31 It is equally well known that by linking culture to international and national development policies and to economic growth, the 2005 Convention brought the economic dimension of culture to the core of unesco’s work. In this Convention, culture is seen not only as a good per se, but also as an instrument for the achievement of certain social and economic goals.32 This is particularly emphasized in Article 13 and Article 14 of the 2005 Convention. Article 13 of the 2005 Convention highlights the specific link which exists between the protection of diversity in cultural expressions on one hand, and the sustainable development of countries on the other. Based on the belief that culture is not only an effect of, but also a means for development, and that culture is a missing factor in many policies for development, Article 13 obliges signatory parties to

29

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(Adopted 20 October 2005, entered into force 18 March 2007) 2440 unts 311. For a summary of the 2005 Convention’s themes and merits, see, inter alia, Sabine von Schorlemer and Peter-Tobias Stoll (eds), The unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Explanatory Notes (Springer 2012). unesco, Re-shaping Cultural Policies: Advancing Creativity for Development (unesco 2018) 1. Jan Wouters and Maarten Vidal, ‘unesco and the Promotion of Cultural Exchange and Cultural Diversity’ in Abdulqawi A Yusuf (ed), Standard-setting in unesco (vol 1; unesco Publ/Nijhoff 2007) 168. In particular, signatory States are under a duty to adopt technical measures to place cultural diversity at the service of sustainable development: Christiaan De Beukelaer and Raquel Freitas, ‘Culture and Sustainable Development: Beyond the Diversity of Cultural Expressions’ in Christiaan De Beukelaer and others (eds), Globalization, Culture, and Development. The unesco Convention on Cultural Diversity (Palgrave Macmillan 2015) 214. Yudhishthir Raj Isar and others, ‘Confusing Culture, Polysemous Diversity: “Culture” and “Cultural Diversity” in and after the Convention’ in Christiaan De Beukelaer and others (eds), Globalization, Culture, and Development. The unesco Convention on Cultural Diversity (Palgrave Macmillan 2015) 17.

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endeavour to integrate culture in their development policies at all levels for the creation of conditions conducive to sustainable development and, within this framework, foster aspects relating to the protection and promotion of the diversity of cultural expressions.33 This instrumental view of culture is further confirmed by Article 14, according to which the [p]arties shall endeavour to support cooperation for sustainable development and poverty reduction, especially in relation to the specific needs of developing countries, in order to foster the emergence of a dynamic cultural sector by, inter alia, the following means: (a) the strengthening of the cultural industries in developing countries (…); (b) capacity-building through the exchange of information, experience and expertise, as well as the training of human resources in developing countries, in the public and private sector relating to, inter alia, strategic and management capacities, policy development and implementation, promotion and distribution of cultural expressions, small-, medium- and micro-enterprise development, the use of technology, and skills development and transfer.34 However, all that glitters is not gold. The much hoped-for balance between the protection of culture and promotion of development proposed by these articles is put at risk by many factors. Among these, one may list the quite vague and programmatic contents of State Parties’ obligations: The articles, for instance, do not expressly deal with tourism uses of cultural heritage, in spite of the fact they are a driving economic force, but only impose an obligation of means upon the signatory States (‘parties shall endeavour to […]’). But the main obstacle to the effectiveness of the 2005 Convention lies in its limited enforceability. As a traditional international hard law instrument with no internal mechanisms of control and sanction, the 2005 Convention is not only not binding on non-signatory States, but even vis-à-vis the signatory States it essentially remains a paper tiger.35 In the absence of mechanisms for unesco’s supervision, and given States’ traditional reluctance to claim breaches of multilateral commitments of a non-economic nature against one another, a 33 34 35

Art 13 (Integration of culture in sustainable development) of the 2005 Convention. As we will see below (§4), art 13 is the legal basis on which the unesco CDIS are built. Art 14 (Cooperation for development) of the 2005 Convention. Francesco Francioni and James Gordley, ‘Introduction’ in Francesco Francioni and James Gordley (eds), Enforcing International Cultural Heritage Law (oup 2013) 2.

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signatory party of the 2005 Convention usually has no legal incentives to abide by its commitments, the only possible consequence for a breach being the reputational reprimand it might incur from the international organization and, eventually, the international community. All the above explains why, after the 2005 Convention, unesco has turned from a positive official layer to a soft law measure aimed at creating additional incentives for compliance, including developing a set of indicators supporting the 2005 Convention, known as the unesco Culture for Development Indicators (cdis). In the context of international treaties, indicators can be seen as instruments for ‘socializing’36 State parties.37 Indicators are sometimes foreseen as a built-in obligation within an international treaty,38 but more often they are developed by the international organization responsible for a treaty (or by another entity) in order to measure the treaty’s success, and/or to support its implementation by helping and pressuring national policymakers to evaluate priorities for their policy agendas. Whatever their structure and purpose, by conveying a set of targets and best practices in a given field, indicators 36

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Socialization is the ‘general process by which actors adopt the beliefs and behavioral patterns of the surrounding culture’: Ryan Goodman and others, ‘How to Influence States: Socialization and International Human Rights Law’ (2004) 54 Duke Law Journal 626. More generally, for more on the many forms that processes of state socialization may take see Ryan Goodman and Derek Jinks, Promoting Human Rights through International Law (oup 2013). For a general definition of what ‘indicators’ are, cf. Kevin E Davis and others, ‘Introduction: Global Governance by Indicator’ in Kevin E Davis and others (eds), Governance by Indicators. Global Power through Quantification and Rankings (oup 2012) 3, 6; Kevin E Davis and others, ‘Introduction: The Local-Global Life of Indicators: Law, Power, and Resistance’ in Sally Engle Merry and others (eds), The Quiet Power of Indicators: Measuring Governance, Corruption, and Rule of Law (cup 2015) 4; Rene Urueña, ‘Indicators as Political Spaces Law, International Organizations, and the Quantitative Challenge in Global Governance’ (2015) 12 IOLR 1; Sally Engle Merry, ‘Measuring the World: Indicators, Human Rights, and Global Governance’ (2011) 52 Current Anthropology S83; Maria Green, ‘What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement’ (2001) 23 hrq 1065. See, for instance, art 2 of the Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 unts 13. Here the terms ‘appropriate means’ and ‘appropriate measures’ comprise ‘developing and establishing valid indicators of the status of and progress in the realization of human rights of women, and establishing and maintaining databases disaggregated by sex and related to the specific provisions of the Convention’: UN Committee on the Elimination of Discrimination against Women (cedaw), ‘General recommendation No 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women’ CEDAW/C/GC/28, 9 accessed 22 January 2019.

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go well beyond the neutral collection of statistics. They often constitute an indirect, yet powerful, tool for making policymakers internalize their international obligations and abide by them. From our perspective, what should be underlined is that, in spite of the fact they are allegedly ‘purely’ descriptive, indicators in practice contribute to strengthening the supervisory grip of international organizations over States. Thus what might result from indicatorbuilding initiatives is the absorption, at the national and international levels, of legal standards—an absorption that might be equally, if not more, compelling than the traditional legal measures of hard or soft law.39 This is also the case for the unesco cdis, the aim of which is to educate States on how to include the promotion of culture in their national plans, based on the assumption that policies on culture and sustainable development should go in hand. 4 The unesco Culture for Development Indicators (cdis) The 2005 Convention does not explicitly provide for the establishment of indicators. Yet in 2009, the unesco launched its Culture for Development Indicators40 under the umbrella of Article 13 of the 2005 Convention41—and with the support of (only) the Spanish Agency for International Development Cooperation (aecid).42 The project proposed a novel methodology to measure the role of culture in national development processes. The assumption underlying the cdis is that given the close link between culture and development, obtaining reliable data about culture is a fundamental step for understanding and promoting development policies. The cdis aim to offer Member States, especially middle- and low-income States,43 a learning tool to illustrate how culture can represent a sustainable means for achieving key development goals. But this is not all. Through the implementation of the cdis, unesco is trying to document culture’s contribution to both economic and non-economic 39 40 41 42 43

Marta Infantino, ‘Global Indicators’ in Sabino Cassese (ed), Research Handbook on Global Administrative Law (Edward Elgar 2016) 356; Marta Infantino, ‘Human Rights Indicators across Institutional Regimes’ (2015) 12 IOLR 153, 166; Urueña (n 37) 5 ff. unesco, ‘Culture for Development Indicators’ accessed 22 January 2019. See §3. Guiomar Alonso and Melika Medici, unesco Culture for Development Indicators: Methodology Manual (unesco 2014) 7. This is also criticized because it makes the cdis dependent on a single, Western donor: De Beukelaer and Freitas (n 31) 214. Alonso and Medici, Methodology Manual (n 42) 13.

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development, and to raise global awareness of the virtuous cycle between culture and sustainable development.44 The implementation process of the cdis at the national level is coordinated by the institution serving as national leading partner,45 which has to identify and select the local contractor(s) responsible for collecting—preferably on the basis of national sources46—and analysing the data on which the indicator is based.47 In order to create a vision encompassing the many benefits that culture might produce in economic and non-economic terms, the cdis embrace seven key policy dimensions as forms of interaction between culture and development. Some dimensions are directly related to the impact of culture on development processes, while others concentrate on the role that culture might have in creating and enabling an environment for development. The seven key policy dimensions are: (1) economy, on the contribution of culture to economic development; (2) education, on the place given to culture within the educational system; (3) governance, which focuses on the national ways of governing the cultural system; (4) social participation, which observes the impact of culture practices, values, and attitudes on social progress; (5) gender equality, on the role of culture in promoting both real and perceived gender equality; (6) communication, about the conditions for diffusion and access to diverse cultural content; and (7) heritage, which assesses public frameworks for protecting and promoting heritage sustainability.48

44

Ibid 5, 12; see also Guiomar Alonso and Melika Medici, unesco Culture for Development Indicators: Implementation Toolkit (unesco 2014) 5. To this end, the cdis consider culture not only as a sector of human activity, but also as values and norms that orient human action: see Alonso and Medici, Methodology Manual (n 42) 5. 45 A leading partner, for example, can be a unesco Field Office, a government ministry, a research institute, a national institute of statistics, or a development agency: Alonso and Medici, Methodology Manual (n 42) 2. 46 The cdis approach has a strong preference for national sources, because the cdis makers think that they are more reliable, up-to-date, and offer more opportunities for disaggregation by demographic variables. When no national data are available, global sources can be used: ibid 5–6. 47 Ibid 2–3. 48 Ibid 27, 46, 62, 82, 103, 116, 130. Some have criticized unesco’s choice of placing ‘economy’ as the first dimension of the cdis, believing that this choice was contrary to the (implicit) guideline of the 2005 Convention to give equal weight to all cultural dimensions: De Beukelaer and Freitas (n 31) 214.

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In order to highlight the interrelated role of culture in national development processes, every dimension contains from one to five specific core indicators, which are identified and summarized in the so-called cdis matrix. There are 22 core indicators in total.49 The outcome of the implementation of the cdis is the so-called cdis dna, which consists of a visualization scheme enabling a transversal analysis of indicators and a multidimensional reading of culture to development at the national level.50 As to the methodology, the cdis follows a bottom-up system, insofar as interested countries are directly involved in the processing and building of their own indicators. As already stated, the final outcome is not a ranking of countries depending on their scores, but rather a matrix that, being countryfocused, does not imply a ranking of States according to their performances.51 Within the cdis Methodology Manual—a sort of guide for the construction of the 22 core indicators—there are many references to cultural heritage w ­ ithin all the seven dimensions.52 Yet the protection of cultural heritage is mainly 49

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Alonso and Medici, Methodology Manual (n 42) 47. The 22 indicators, divided into each ‘dimension’, are: contribution of cultural activities to gdp; cultural employment; household expenditure on culture (Economy dimension); inclusive education; multilingual education; arts education; professional training in the culture sector (Education dimension); standard-setting framework for culture; policy and institutional framework for culture; distribution of cultural infrastructures; civil society participation in cultural governance (Governance dimension); participation in going-out cultural activities; participation in identity-building cultural activities; tolerance of other cultures; interpersonal trust; freedom of self-determination (Social participation dimension); gender equality objective outputs; perception of gender equality (Gender equality dimension); freedom of expression; access and internet use; diversity of fictional content on public television (Communication dimension); heritage sustainability (Heritage dimension). See ibid 19, 45, 61, 81, 101, 115, 129. Alonso and Medici, Implementation Toolkit (n 44) 12. Alonso and Medici, Methodology Manual (n 42) 15. Just to give some examples: in the Economy dimension, the ‘cultural employment’ indicator takes into account the number of people employed in cultural occupations (both in cultural establishments and non-cultural establishments). In dimension of Education— the indicator ‘professional training in the culture sector’ aims to highlight whether there is at least one public or private government-dependent or educational institution that provides heritage training courses. The ‘standard-setting framework for culture’ indicator, belonging to the Governance dimension, tries to map the body of international and national culture-related provisions in force in a State, focusing on the international conventions on heritage (Convention for the Safeguarding of the Intangible Cultural Heritage, Convention on the Protection of the Underwater Cultural Heritage, Convention Concerning the Protection of the World Cultural and Natural Heritage), and, at the national level, on the constitutional (Recognition in the constitution of cultural rights to access cultural heritage) and regional provisions (Existence of a sectoral law on heritage). In the same dimension, ‘the policy and institutional framework’ indicator checks if there are public policies and political and administrative processes, structures, mechanisms,

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dealt with in the seventh dimension (Heritage), which is the only dimension covering just one indicator, that of ‘heritage sustainability’, wherein heritage encompasses historical and cultural sites, natural sites and landscapes, cultural property, as well as intangible heritage.53 This indicator aims to measure the efforts of public authorities and their outcomes in relation to the establishment and implementation of standards, policies, concrete mechanisms and measures for the conservation, safeguarding, management, transmission, and valorization of heritage in the concerned country.54 5

The World Tourism Organization’s Sustainable Tourism Indicators

As has been pointed out, unesco is not alone in the field of cultural indicators. In recent years, many other international organizations have been working on similar initiatives, and some have focused on the relationship between cultural heritage and the sustainable management of tourism.55 One of the best illustrations of these endeavours is the already-mentioned sustainable tourism indicators developed by the unwto, the UN agency responsible for the promotion of responsible, sustainable, and universally accessible tourism,56 and which has been working towards this end since the early 1990s.57 unwto’s enterprise is based on the underlying assumption that the exploitation of cultural heritage can boost tourism as a powerful economic force.58

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and systems devoted to guaranteeing and promoting effective and efficient management in the cultural sphere, including, inter alia, those related to cultural heritage. The Social participation dimension has ‘participation in going-out cultural activities’ and ‘participation in identity-building cultural activities’ indicators. Both these indicators address, for example, attendance at historical/cultural parks or heritage sites, museums, art galleries, or crafts expositions, etc. See ibid. Ibid 132. Ibid 130. For example, at the European level see the European Tourism Indicator System (etis) developed by the European Commission: European Commission etis Team, The European Tourism Indicator System etis: Toolkit for Sustainable Destination Management (EU Publ Office 2016). For other initiatives, also see unwto, Indicators of Sustainable Development for Tourism Destinations: A Guidebook (unwto 2004) 16 ff. Its headquarters are in Madrid, Spain. Other information is available on the unwto website. The EU cooperates with unwto in many respects: see ‘unwto Strengthens its Relationship with the European Union’ (19 December 2016) accessed 22 January 2019. unwto (n 55) 7. Evangelos Christou, ‘Heritage and Cultural Tourism: A Marketing-Focused Approach’ in Marianna Sigala and others (eds), International Cultural Tourism: Management, ­Implications and Cases (Elsevier Butterworth-Heinemann 2005) 3 ff.

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Cultural heritage tourism has the potential to stimulate economic benefits (eg new employment and/or commercial opportunities based on visitors’ expenditures), as well as social benefits (such as the enhancement of community identity and the improvement of local policies for maintaining and preserving cultural heritage sites).59 Yet it is equally clear that tourism poses a challenge to the protection of cultural heritage and requires the articulation of strategies for ensuring its sustainability in the long term to avoid several negative phenomena, such as the undermining of local traditions and the damaging of heritage sites due to inappropriate treatment and uncontrolled visits.60 In order to support policy makers in taking more responsible decisions regarding tourism, in 2004 the unwto issued its Guidebook for building indicators.61 The Guidebook focuses on the central role of the use of indicators as an instrument to collect the data and information required to empower and make better decisions.62 In the Guidebook, unwto envisions a participatory process for the development of tourism indicators by involving every stakeholder interested in tourism, such as tourism enterprises and destination managers as well as ministries, local authorities, and private and non-governmental organizations.63 The process embraces a 12-step procedure. Each step of the procedure aims to identify the issues which are most adaptable to the specificities of the country of destination and the indicators which are easiest to use by that country.64 Within the indicators proposed in the Guidebook, there is one chapter— ‘Sustaining Cultural Assets’—that is specifically devoted to the protection of cultural heritage, although it pays attention only to built heritage.65 unwto 59 60 61 62 63 64

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Jamie Kaminski and others, ‘Introduction’ in Jamie Kaminski and others (eds), Contemporary Issues in Cultural Heritage Tourism (Routledge 2014) 4; Christou (n 58) 3 ff. Kaminski (n 59) 4. unwto (n 55). Ibid 3. Ibid 464. Research and Organization: Step 1. Definition/delineation of the destination; Step 2. Use of participatory processes; Step 3. Identification of tourism assets and risks; Step 4. Longterm vision for a destination. Indicators Development: Step 5. Selection of priority issues; Step 6. Identification of desired indicators; Step 7. Inventory of data sources; Step 8. Selection procedures. Implementation: Step 9. Evaluation of feasibility/implementation; Step 10. Data collection and analysis; Step 11. Accountability, communication and reporting; Step 12. Monitoring and evaluation of indicators application: ibid 22. unwto embraces the definition of historic monument contained in art 1 of the Venice Charter for the Conservation and Restoration of Monuments and Sites (1964): ‘The concept of a historic monument embraces not only the single architectural work but also the urban or rural setting in which is found the evidence of a particular civilization, a significant development or a historic event. This applies not only to great works of art but

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highlights in this Chapter that for a country to have sustainable protection of cultural heritage and obtain assistance and financial support for its maintenance, the starting point should be to select and designate sites as heritage assets.66 Heritage sites represent one of the prime tourist attractions worldwide, and are usually linked to a variety of related economic services and activities (such as accommodation, restaurants, souvenirs, and handicrafts) which might provide for additional sources of tourist revenue. Yet these sites also have to endure the physical impact of over-visitation and congestion, and be able to resist insensitive and inappropriate commercialization of authentic historic and cultural contexts.67 In order to build indicators on ‘Sustaining Cultural Assets’, unwto suggests considering the following factors: − government development policies, especially in developing countries, which are often subject to external pressures such as structural adjustment and aid disbursement; − local politics, in particular with regard to striking a proper balance between the desire of local constituencies to create jobs and economic development and retention of the significant built and natural resources; − tourism, as a major income generator and image-maker, often dependent on cultural assets in urban areas; − private initiatives which could endanger existing assets, with a view toward replacing them with alternative and more profitable uses of cultural sites; and − economic change, especially reforms aiming at reordering national and international priorities during a recession, or increased building and redevelopment in times when the economy is growing.68

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also to more modest works of the past which have acquired cultural significance with the passing of time’. unwto (n 55) 22. C Michael Hall and others, ‘The Geography of Sustainable Tourism Development: Introduction’ in C Michael Hall and others (eds), Sustainable Tourism: Geographical Perspectives (Addison Wesley Longman Ltd. 1998) 1; Colin Hunter, ‘Sustainable Tourism as an Adaptive Paradigm’ (1997) 24 Annals of Tourism Research 857. unwto (n 55) 76. An additional reference to heritage in the Sustainable Tourism Indicators is contained in a section specifically dedicated to the different types of destinations. In this section, extra indicators are suggested to stakeholders to enable them to approach the development and use of indicators from the point of view of the special characteristics of the destination: ibid 247. In this case, the main focus is on the pressure exerted by urban growth on built heritage, and on the catalyst role that tourism can play in the rehabilitation and re-use of heritage buildings. The suggested indicators are: Demolition of old buildings with heritage value (number/percentage of heritage buildings demolished); Deterioration of built structures (number/ percentage of buildings considered in degraded condition); Threatened historic districts or structures (number of

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In order to measure the influence of tourism on cultural heritage assets, as well as on sustainable development, unwto’s proposed indicators relate to: (i) the legislative basis for the protection of heritage sites (number and type of legislation and/or amendments introduced to preserve structures at the local, provincial/state/canton, or national levels); (ii) the designation of heritage assets (number and type of designation under which historic structures, monuments, and districts are recognized; percentage of eligible sites and/or structures receiving designation); (iii) the funding for their protection (amount of funds allocated to the restoration, preservation, and maintenance of cultural assets on an annual basis; voluntary contributions; tourism contribution to preservation); (iv) the public profile of the site (change/number of electronic and print articles generated on historical structures, monuments, and districts covered by local, regional, national, and international media); (v) the condition of their setting (changes necessary to develop the area surrounding a cultural asset, the environment, and whether maintenance or improvements have taken place; condition of the building or site); as well as (vi) the threats to the integrity and authenticity of the property (increase/decrease in threats with respect to the original purpose and use of a site).69 The most remarkable characteristic about these indicators is surely the methodology enshrined in them. The unwto follows a bottom-up approach,

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buildings and/or districts listed on endangered sites lists, ie World Heritage, World Monuments Fund); Loss of historic character of districts (percentage of buildings in district which are historic; percentage of buildings in district which are vernacular architecture); Protection of historic buildings (number/percentage of old buildings designated at local, national, and/or World Heritage levels); Protection of historic districts (percentage of district which has protection (level of protection or designation)); Cost of protection (level of funding allocated for restoration efforts); Re-use of historic buildings or sites (number of buildings re-used for commercial or residential purposes; number of buildings re-used for tourism purposes, eg hotels or restaurants); New legislation (quantity of new legislation introduced to preserve structures at local, provincial/state/canton, or national levels); Contribution of tourism to the preservation of built heritage sites (visitor fees; concession fees; donations from visitors and tour operators; fees from guide and other services; in-kind contributions, eg equipment, volunteers; revenues from catering and accommodation services; tourism-related tax designated to site maintenance; sale of goods, eg informative materials, handicrafts, equipment to visitors); Tourism management (existence of congestion management practices, eg line management, timing, parking, reservation, and on-line purchase systems to avoid queues at ticket offices; existence of visitor/information centre, interpretative materials, guided tours); Use levels (number and origin of visitors to the site per season (day, month, year); length of stay; number of tour operators with a permit to operate at the site; times during year when structure is most heavily visited; current building use, ie active, closed, abandoned, or demolished; continuation or change of usage of historic structures): ibid 278–79. Ibid 77 ff.

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since the development of the indicators is up to those stakeholders who are directly interested. An extremely important factor is the attention given to the specificities of each destination, since the Guidebook proposes a large set of choices to identify the indicators that best fit the specificities of the destinations and which are easiest to use in both measurement and decision-making. The main fallacy of these indicators, insofar as culture is concerned, lies in their limited consideration of ‘culture’ as such, since references to culture are only linked to the preservation and the registration of built cultural heritage. Thus to some extent it can fairly be said that the unwto Sustainable Tourism Indicators underestimate the cultural factor similarly as the unesco cdis underestimate the tourism factor. In fact, although many components of ‘heritage sustainability’ are indirectly related to tourism,70 none of them directly refers to tourism as such. The cdis’s disregard for the impact of touristic activities on cultural heritage means that these indicators wholly underestimate the potential of tourism as both a threat to, and an engine for, the protection of culture and promotion of sustainable development. And it should also be taken in consideration that while unwto was a pioneer in building tourismrelated indicators, the unesco cdis initiative commenced five years after that of unwto was completed. It is thus a pity that the cdis lost the opportunity of learning from, and improving, unwto’s analysis of the links between culture and tourism. 6

An Opportunity Not to Be Missed

As was stated at the beginning, there is still much disagreement on the very notions of culture and development. The different approaches taken by unesco and unwto to the similar problem of obtaining reliable data about culture as 70

The three components of the indicator are: (1) ‘Registrations and Inscriptions’ (approximating the extent to which a country’s heritage resources are recognized as valuable and deserving of official protection for their safeguarding); (2), ‘Protection, Safeguarding and Management’ (highlighting the extent to which public authorities ensure heritage’s conservation, valorization and sustainable management; the necessary training and capacity-building of key stakeholders; and the active involvement of the communities concerned); and finally (3) ‘Transmission and Mobilization of Support’ (which looks at the efforts deployed to raise awareness and understanding among communities and citizens of the value and sense of heritage and at the continual investments to promote heritage by involving the private sector and civil society, in order for the message of its value and significance to be passed on to future generations): Alonso and Medici, Methodology Manual (n 42) 131.

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a fundamental step for understanding and promoting development policies constitutes a telling illustration of the persistence of that disagreement. In spite of this, however, there seems to be a substantial degree of uniformity in the means that these institutions deploy in furthering cultural protection and sustainable development (whatever it is thought to be). In order to implement their core missions, both unesco and the unwto chose to rely on indicators as unconventional legal instruments capable of fostering dialogue across institutions and policy sectors and building consensus in decisionmaking on a specific subject.71 As we have seen, indicators are powerful exactly because they bypass traditional law-making processes and rather subtly convey mindsets, priorities, and policies that are (more or less spontaneously) internalized by their targets— it is not by chance that indicators have been dubbed a ‘technology of global governance’.72 The transformative power of this technology operates primarily within the circle of those actors who participate in collecting statistics and preparing the indicators, that is, the target-states. But in principle, indicators might also provide a platform where other actors—civil society, minorities, non-governmental organizations—can communicate and transact through the common language of statistics and data.73 It is, however, important to consider some possible side-effects. By shedding light on particular problems, themes, and priorities, indicators might also silence other issues that in principle might be equally worthy of attention. In other words, indicators might create the risk that whatever they do not cover gets lost, or is at least insufficiently taken into consideration. Let’s look for instance at the cdis’s approach to tourism. Although the cdis are celebrated as the most comprehensive quasi-legal instruments for measuring the manner in which culture contributes to development, the exclusion of sustainable tourism within the cdis initiative represents a major shift from the previous experience of the unwto Sustainable Tourism Indicators, and a substantial 71 72

73

See n 37. David McGrogan, ‘Human Rights Indicators and the Sovereignty of Technique’ (2016) 27 ejil 400; Davis and others, ‘Introduction: The Local-Global Life’ (n 37) 1; Sabino Cassese and others, ‘Public Regulation of Global Indicators’ in Kevin E Davis and others (eds), Governance by Indicators. Global Power through Quantification and Rankings (oup 2012) 467 ff; Kevin E Davis and others, ‘Indicators as a Technology of Global Governance’ (2012) 46 Law and Society Review 81; Merry (n 37); Daniel Kaufmann and others, ‘Governance Indicators: Where Are We, Where Should We Be Going?’ (2008) 23 The World Bank Research Observer 1; AnnJanette Rosga and others, ‘The Trust in Indicators: Measuring Human Rights’ (2009) 27 Berkeley Journal of International Law 255. Infantino, ‘Human Rights Indicators’ (n 39) 152–53; Cassese and others (n 72) 467 ff.

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retrenchment in terms of the international community’s interest in sustainable tourism and controlling tourism as a pivot for both the protection of culture and promotion of development. Consequently, there is less awareness of the potentials and perils of tourism, and less control over the manner in which tourism might impact culture. Going beyond all praise and criticism, the highly-developed methodology used by unesco and unwto, as well as the proper focus of both initiatives linked specifically to culture, make the experience of using these indicators very precious in the eyes of the EU. Whatever strategies the EU will pursue in the upcoming years for linking culture and cultural heritage to economic growth, and whatever the technical means adopted for those aims, the flurry of experiments, methodologies, and results produced by unesco and unwto can teach EU institutions many lessons. Firstly, all of the above confirms that the use of soft law instruments such as indicators present a highly valuable way to subtly impose on States a shared view on the cultural policies to be implemented, even in fields where there is no political agreement. Moreover, indicators’ soft law approach often proves to be equally, if not more compelling than traditional hard law measures. Seen in this light, it is clear that indicators might help in the implementation of EU strategies and actions for the promotion of economic growth through the valorization of cultural heritage and culture. Finally, the approach and methodology used in these indicators, which have directly involved the interested stakeholders, bequeath evidence that only bottom-up initiatives, as opposed to top-down ones, can provide a reliable reservoir of data and information able to sustain any future adequate, effective, and efficient enterprise (also with respect to the harmonization of rules) that EU institutions may undertake, and especially in the field of culture and cultural heritage. Learning is an opportunity not to be missed.

Chapter 7

The Financing of Cultural Heritage: A Value Based Approach Arjo Klamer and Anna Mignosa 1 Introduction Do we throw our old computer away, or should we preserve it for later? Who knows, maybe our children will be interested in it. Or we ourselves may want to feel the thing when we are old and slightly demented. How about the kids’ toys? Their shoes? Shall we buy a house with a large attic to accommodate all that stuff? Or should we save on those additional expenditures and use the money for the education of our children? How about the old building down the street? If people have strong memories connected with it, would they be willing to contribute to its preservation, even if they are not owners of it? Maybe they should pressure the local government to protect it? But then who is to pay for the cost? The owner? The government? A foundation? So what be preserved, and what not? What has to go in the name of progress, and what should stay for the sake of heritage? And the economist will immediately add: Who is going to cover the costs? And what are the legal ­arrangements?—the legal scholar wants to know. In this Chapter we, both being cultural economists, address the issue of cultural heritage preservation and enhancement from various angles. We recognize that people seek support in legal arrangements when they insist on the preservation of tangible or intangible cultural heritage. Listing systems, like the unesco World Heritage List, have proven to be quite effective in promoting preservation.1 We also see that people may follow economic leads when they plead for the destruction of physical objects or the neglect of intangible practices based on economic and financial arguments. This gets them to stress the importance of progress, of space for the dynamics of economies, and to evoke the captivating notion of ‘creative destruction’—based on the idea

1 See unesco Convention Concerning the Protection of the World Cultural and Natural ­Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 unts 151.

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that all progress involves some kind of destruction or another.2 But there are also economic arguments for preservation, like the argument that heritage is a ‘public good’ and bears ‘externalities’,3 or that it constitutes cultural capital that can generate income (e.g. tourism).4 We also examine the pros and cons of moral arguments. In some instances, moral arguments have motivated the destruction, or desecration, of images and monuments during various waves of iconoclastic movements in the history of humankind. For instance, moral arguments were used by iconoclasts during the era of Reformation in Europe in the 16th century,5 and voiced by the Taliban in order to justify the destruction of Buddha’s statues of Bamiyan in 2001.6 The actions carried out by the Germans to rid their country of all Nazi symbols after the Second World War were also morally founded.7 In this Chapter, we focus on the financial aspects surrounding the question whether or not to preserve a specific cultural heritage. These aspects are easily overlooked in the discussions surrounding cultural heritage. When we listen to the arguments voiced by representatives of disciplines which are focused on the cultural, historical, and artistic values of cultural heritage (in particular, archaeologists, historians, and anthropologists) we are often reminded of Oscar Wilde’s ‘romantic’—‘who sees the value of everything and the price of

2 Joseph A Schumpeter, From Capitalism, Socialism and Democracy (first published 1942, 3rd edn, Harper 1975) 82–5. Schumpeter uses the term to indicate the constant process of industrial mutation, that modifies the economic structure from within; destroying the old one and creating a new one. 3 These are among the reasons justifying public intervention. For an examination with respect to cultural with respect to the culture sector see sector See Alan T Peacock, ‘A Future for the Past: The Political Economy of Heritage’ (1995) 87 Proceedings of the British Academy 189; Ilde Rizzo and David Throsby, ‘Cultural Heritage: Economic Analysis and Public Policy’ in Victor A Ginsburg and David Throsby (eds), Handbook of the Economics of Art and Culture, vol 1 (Elsevier 2006); Ilde Rizzo and Anna Mignosa (eds), Handbook on the Economics of Cultural Heritage (Edward Elgar 2013). 4 Gregory J Ashworth, ‘Heritage and Local Development: A Reluctant Relationship’ in Rizzo and Mignosa (eds) (n 3). 5 Roger Homan, The Art of the Sublime: Principles of Christian Art and Architecture (Routledge 2017) 78 ff. 6 Lynn Meskell, ‘Negative Heritage and Past Mastering in Archaeology’ (2002) 75 Anthropological Quarterly 557. See also the edict by the supreme leader of Taliban, Mullah Mohammed Omar, issued on 26 February 2001 concerning the destruction of the statues of Buddha in Bamiyan, quoted in inter alia: Rodney Harrison, Heritage: Critical Approaches (Routledge 2013) 184. 7 Dana Arieli-Horowitz, ‘The Nazi Phantom: German Cities Confronting their Past, History and Theory’ (2009) 14 Bezalel accessed 28 January 2019. Rem Kolhaas, ‘Cronocaos’ (oma, 2010) accessed 28 January 2019.

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nothing’.8 Being economists we wonder the price to which they would be willing to go to preserve whatever they value so highly. Any price? Who then is to pay? Should that necessarily be the government (as is usually implied)? Economist are naturally inclined to raise such questions. Then again, economists may also go too far in stressing the financial aspects of preserving cultural heritage. They then turn into Wilde’s ‘cynic’—‘who sees the price of everything and the value of nothing’.9 Cultural, historical, and artistic values matter too. Pricing a practice or a site may indeed be uncalled for in some instances.10 We, propose an alternative route. We call it the value based approach.11 This approach does justice to the non-financial values and stresses the critical process of the valorization of values, thus inevitably having to deal with the financial aspects, but with more nuance and depth than the standard economic approach allows. We will first expound the elements of this approach and then use a few cases to illustrate how it can be made to work in practice, and in which respects it adds to the legal, economic, or cultural framing of the question: To preserve or not? Special attention is given to the possibility to use this method to assess whether programs launched by the EU in the realm of cultural heritage actually realize their objectives. 2

The Economic Perspective

In order to highlight the innovativeness of the value based approach we feel compelled to give a brief overview of the ‘standard’ economic approach to cultural heritage. This approach took flight in the 1980s and has witnessed numerous contributions.12 What drives these contributions is the formulation of a 8

Oscar Wilde, ‘Lady Windemere’s Fan’ in Oscar Wilde, The Importance of Being Earnest and Other Plays (Penguin 1940) 48. 9 Ibid. 10 Indeed, market failures and the need for public intervention are at the basis of the cultural economics analysis of cultural heritage. See, for instance, Peacock (n 3); Bruno S Frey, ‘The Evaluation of Cultural Heritage: Some Critical Issues’ in Michael Hutter and Ilde Rizzo (eds), Economic Perspectives on Cultural Heritage (Macmillan 1997); Françoise Benhamou, ‘Heritage’ in Ruth Towse (ed), A Handbook of Cultural Economics (Edward ­Elgar 2003); Rizzo and Throsby (n 3). 11 Arjo Klamer, Doing the Right Thing: A Value Based Approach (Hilversum 2016), and Arjo Klamer, ‘The Value-based Approach to Cultural Economics’ (2016) 40 Journal of Cultural Economics 365. 12 Peacock (n 3); Frey, ‘The Evaluation of Cultural Heritage’ (n 10); Alan T Peacock and Ilde Rizzo, The Heritage Game: Economics, Policy, and Practice (oup 2008); Rizzo and Throsby (n 3); Rizzo and Mignosa (eds) (n 3).

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rational basis for the decision whether or not to preserve. The standard of the economic approach is the weighing of costs and benefits; when the benefits exceed the costs, it may be rational to preserve. Next the standard approach addresses the question: Who is to pay for heritage preservation, restoration, and enhancement?13 Most economists would agree that those who benefit the most should pay the most. They will have trouble with a legal argument that stipulates the obligation to preserve and leaves the financial burden with the owner. After all, when others have my house declared a monument, why should I have to pay for the expensive renovation that is required? However, cultural economists also acknowledge the peculiarities of cultural heritage. Using arguments such as the ‘public good’ nature of cultural heritage, the ‘externalities’ it can produce, and its ‘non-use values’, they explain the undesirability of mere reliance on a cost-benefit analysis, or the need to restrain activities that may change the state of cultural heritage.14 The economic approach thus needs to be adapted. The lack of a market price makes this necessary, as does the social and cultural context that usually renders cultural heritage valuable and meaningful.15 We are loyal to our profession in our agreement that the issue of assessing a price is inevitable. This makes us critical of discussions of cultural heritage that ignore this issue. The nuance that we bring to the table is that we want to show that it matters how the financing is done; and who is paying. The mode of financing matters for the realization of the important values inherent in cultural heritage. We agree with the culturalists, i.e. those who stress the cultural, historical, and artistic values, that the standard economic approach cannot do justice to such values.16 A straightforward cost-benefit analysis will not do. Cultural 13

14 15

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We are aware that it is possible to refer to a wide set of terms to indicate the types of intervention necessary to guarantee heritage survival: (see for instance the Glossary provided by icomos at accessed 28 January 2019). However, we choose these three terms to indicate all the activities that relate to heritage survival and enhancement: the daily maintenance of heritage; the work needed in the event of damage; and the opening of heritage to the public to ensure its public use and enjoyment. Bruno S Frey, Arts & Economics: Analysis & Cultural Policy (Springer 2000); Benhamou (n 10). It is true that some immovable and movable tangible heritage objects can be sold on the real estate market, at auctions, and in antique shops. However, the cultural economics approach stresses the impossibility of identifying the market price of, for example, the Pyramids, the Coliseum, Rembrandt’s Night Watch, etc. This is at the basis of the economic explanation of public intervention for culture, and cultural heritage in particular, and has motivated the quest for a method to assess the value of cultural heritage (see below n 18). See Randall Mason, ‘Economics and Heritage Conservation: Concepts, Values, and Agendas for Research’ in Economics and Heritage Conservation: A Meeting Organized by the

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economists acknowledge the existence of a wide range of values of cultural heritage. They refer to both use and non-use values and, among the latter, include: existence value, option value, bequest value, scientific value, historical value, prestige value, etc.17 Granted, cultural economists have developed various methods to incorporate these values.18 They try, for example, to construct market situations where there are none. Using the contingent valuation method, they try to assess what potential users or beneficiaries of a particular cultural heritage item would be willing to pay for it. And using hedonic pricing, cultural economists study the additional price for real estate in the neighbourhood of cultural heritage sites as an indication of willingness to pay for being close to such sites.19 Alternatively, they research the costs people are willing to incur to enjoy cultural heritage, such as travel costs.20 Or they study the economic impact of cultural heritage sites; that is, the additional income that visitors and workers at a site generate for the local economy.21 All such measurements are indirect and are focused on the financial aspect. However, they are not conclusive, and, as far as we can tell, they do not influence actual policies.22 Because of the incompleteness of standard economic approaches, we have developed the value based approach. This approach is meant to remedy the lack of attention given to valorization issues in cultural and legal accounts.

Getty Conservation Institute, December 1998, Getty Center, Los Angeles (J. Paul Getty Trust 1999); Arjo Klamer and Peter-Wim Zuidhof, ‘The Values of Cultural Heritage: Merging Economic and Cultural Appraisals’ in Economics and Heritage Conservation: A Meeting Organized by the Getty Conservation Institute, December 1998, Getty Center, Los Angeles (J. Paul Getty Trust 1999). For an illustration of culturalists’ resistance to the economic valuation of heritage, see for example John Carman, Heritage Value: Combining Culture and Economics (Art & Humanities Research Council 2012) 6. 17 For a thorough examination of these values see David Throsby, ‘Seven Questions in the Economics of Cultural Heritage’ in Michael Hutter and Ilde Rizzo (eds), Economic Perspectives on Cultural Heritage (Macmillan 1997). 18 See the discourse on the evaluation of heritage built on environmental economics that inspired the use of Contingent Valuation (CV) and Willingness to Pay (wtp) to assess the value of heritage. See Ruth Towse, A Textbook of Cultural Economics (cup 2010) 157 ff and Jeanette D Snowball, Measuring the Value of Culture: Methods and Examples in Cultural Economics (Springer 2007) 79 ff for a thorough illustration of valuation methods in cultural economics. The value based approach goes beyond these ‘measurements’ and points at the need to monitor the realization of various qualities. 19 Snowball (n 18) 77 ff. 20 Klamer and Zuidhof (n 16) 32 ff. 21 Snowball (n 18) 33 ff. 22 Klamer, Doing the Right Thing (n 11) 217–29.

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3 The Value Based Approach The premise of the value based approach is that whatever people, organizations, or governments do is intended to realize certain values, such as the values of family, friendship, community, tradition, religion, and heritage.23 Realizing values has two aspects: (a) being aware of which values are important; and (b) making the values real, that is, valorizing them. When a person or an organization recognizes the great historical value of an object, they display awareness. The challenge, then, is to get others to recognize that value as well, and where necessary to get others to (co-)finance its preservation. By doing so, the person or the organization makes the historical value of the object real in some way or another. We call the realization of these values ‘valorization’. Accordingly, in our meaning valorization involves more than just pricing the good or getting others to pay for it; more important is the realization of the really important values, such as a historical value. Value is a problematic concept.24 Economists are inclined to reduce value to price, or even to equate the two. In our approach we consider value to be people's answers to the question: What is important to you? Accordingly, we include historical, cultural, religious, social, and artistic values when people mention them as important to them. Values also have a weight: some qualities are felt to be more important than others. And they can vary. We may consider, for example, an old chest of drawers considered ready for the trash, a decision which may be reconsidered when a grandmother will tell us about its special meaning and history, or when an expert explains the special qualities of the craftsman who made it a few centuries ago. We may then ascribe a historical or artistic value to it that we did not do at first. Hence valuation is a dynamic process. Values have different functions. Some values are instrumental or merely functional, such as the sharpness of a knife, or the spatial characteristics that make a particular site suitable for particular events. Some values are there to enjoy or to cherish, such as a pleasant atmosphere, or the friendliness of the host. These are subsidiary values. Most important are the values we strive for, which may be considered the goal values. They answer the question what a particular cultural heritage is good for. As mentioned, standard or mainstream economists may consider some of these values in their analysis, but they will usually treat them as given. In 23 Ibid. 24 Cf Elizabeth Anderson, Value in Ethics and Economics (hup 1995) 1–12, and Barbara Herrnstein Smith, Contingencies of Value: Alternative Perspectives for Critical Theory (hup 1988) 11.

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the value based approach, those values are at the core of the exploration, are in need of articulation and interpretation, and could very well be subject to change. In the study of actual practices we find, for example, that in particular the articulation of the goal values, i.e. the mission, is usually incomplete, vague, and/or unsatisfactory. Practitioners tend to have a hard time articulating what a particular practice is actually good for. However, in order to determine the conditions for evaluation, especially when public money is involved, it would be necessary to know what purposes a cultural heritage project is meant to contribute to assess whether the views of the government and of the involved stakeholders coincide or conflict with each other.25 Is it the awareness of its artistic and historical qualities? Is it to strengthen or rejuvenate a religious practice? Or is it aimed at enhancing a local identity, a sense of self-worth? Only when we know how to answer these questions can we determine when and whether a cultural heritage project is successful. This could be particularly interesting in assessing EU programmes on cultural heritage, in order to verify whether their implementation actually realizes the objectives set. Or to understand if the objectives set include those that matter for the stakeholders involved. When the goal values for a cultural heritage project are clear to the principal subjects involved (individuals, organizations, or governments), they have to design their strategy. They have to determine how to valorize the goal values. Do they need an organization? How will they arrange the funding? Will the project create an income, i.e. can it be used to realize other values (such as urban regeneration, national identity, local communities, family history)? Legal issues naturally come into consideration, and cultural issues can be part of the design process. We are aware that goals might differ among different groups, sometimes leading to conflicts.26 The construction of a replica of a heritage 25

26

We use the term ‘stakeholders’ to refer to all the people who might be interested in cultural heritage and/or might be affected by decisions concerning it (i.e. owners of cultural property, visitors, users, decision makers, taxpayers, people working to preserve and/or enhance cultural heritage, etc.). We refer here to projects started from the public sector, e.g. the restoration of a historical building, the opening of a new museum, the organization of an exhibition, a project involving schools, etc. But we also consider projects started by private organizations/individuals, for instance, the creation of a new foundation to exhibit a private collection, a community project to restore and open to the public a small heritage site, a project to revitalize cultural practices and knowledge at the basis of various intangible heritage forms. See for example: Fisun Yuksel, Bill Bramwell, and Atila Yuksel, ‘Stakeholder Interviews and Tourism Planning at Pamukkale, Turkey’ (1999) 20 Tourism Management 351; Bénédicte Gaillard, ‘The Dresden Elbe Valley, First Cultural Property to be Delisted from the World Heritage List: Why and How? Exception or Future Tendency’ (2011) 7 International

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M

C C

G

S O

Figure 7.1 Five spheres for the optimal valorization

site (e.g. Alta Mira, Tutankhamun’s tomb) might for example (partially) resolve the tension between conservation and (tourist) valorization objectives, or the ban on accessing certain sites (e.g. the Urul in Australia) might satisfy the need to preserve the spiritual value of a place. However, these solutions are costly and do not always meet with overall approval. The strategy chosen is intended to optimize the valorization. We suggest that the protagonists, that is the principal subjects, take at least the following five spheres into account. Each sphere has its own logic. Their design has to be such that they exploit one or more spheres for the optimal realization of their values (see Figure 7.1). The encompassing cultural sphere (C) is the symbolic field in which asserted cultural, historical, artistic, and archaeological values obtain meaning. When people claim a historical value for an item, it has to resonate in a specific context and be supported by existing knowledge, the availability of meaningful references, etc. The historical value needs to be valorized in the cultural sphere. In the social sphere (S) we realize values in a social context, by getting ­others, e.g. a community of experts, locals, or other interested persons or entities, involved and committed to somehow become a stakeholder in our project. We must make sure that our project is part of a meaningful conversation,27 that is, that it gets talked about. The question might be whom to involve. How important is the involvement of the locals? How important is the generation of a community of people who share the preservation of the item as a common goal?

27

Journal of Environmental, Cultural, Economic and Social Sustainability 391; Bénédicte Gaillard and Dennis Rodwell, ‘A Failure of Process? Comprehending the Issues Fostering Heritage Conflict in Dresden Elbe Valley and Liverpool—Maritime Mercantile City World Heritage Sites’ (2015) 6 The Historic Environment: Policy & Practice 16. Michael Oakeshott, On Human Conduct (Clarendon Press 1991) 41; Richard Rorty, Philosophy and the Mirror of Nature (pup 1979) 319.

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In the value based approach, the social sphere is important insofar as it is needed to bring about shared goods.28 Friendship is an obvious example. When we value friendship, we need to engage in the social sphere in order to generate friendships with other persons. Friendship is thus shared. The way to generate a friendship is to get both parties to contribute to it. The willingness to contribute is a crucial characteristic of the logic of the social sphere. By contributing to a community, knowledge, an art form, or any other shared good, we gain co-ownership of the shared good. Another way to express the same process is to speak of co-production or co-creation. Shared goods can also be a common practice, like the playing of music together, or the practice of a language. Other characteristics of the social logic include the forming of relationships, communities, clubs, neighbourhoods, and the principles of gift- giving and reciprocity. The social logic also contributes to the generation of financial sources by way of gifts and donations.29 The logic of the market sphere (M) is what is most commonly associated with the issue of valorization. It is the logic of supply and demand, of turning a good into a market commodity by pricing it and establishing its (private) property rights. The market logic is above all instrumental in the sense that it enables the realization of basic values, in particular by placing monetary values on them. Money is a means of exchange: it only realizes its potential of value when it is exchanged for something, a good or service that is of (use) value. Such a purchase is usually instrumental in nature. The purchase of a house is not usually for the sake of having a house, i.e. for the investment, but in order to have a home to live in. Likewise, a book has the potential of generating insights or giving pleasure, and an eggplant is good for a meal once it is cooked or fried. Accordingly, when a cultural heritage site can be used to generate income, e.g. because of payments by visitors, we still need to know what that income is good for, what values it will generate, for instance, with respect to historical, artistic, prestige, identity, or spiritual interests. The logic of governance (G) is the logic of organizations, as with those of governments and foundations. It is usually the logic of rules, procedures, regulations, laws, and the like. When dealing with cultural heritage we may also need to respond and react to the rules and procedures that potential funders adhere to. Or we may consider setting up an organization ourselves, or joining one, in order to manage the cultural heritage site. The logic of organizations is far-reaching and quite dominant nowadays. It is hard to get around, as the legal contributions to this volume demonstrate. 28 Klamer, Doing the Right Thing (n 11) 75–99. 29 Ibid Ch. 10.

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Finally, there is the logic of the oikos, or home (O). It is the logic of family interactions, of families (which may include communities) sharing memories, caring for each other, and even feuding with each other. In some cases, that logic will be important to a particular object or topic of cultural heritage, as when a family owns a historical building. This logic causes certain emotions to come into play, bringing about (financial) sacrifices that would not be conceivable in other circumstances. Cultural heritage furthermore may derive historic values from its place in the history of a family. There are families who share a passion for cultural heritage, and members of a household may get the liberty from fellow household members to work on behalf of cultural heritage, even without receiving a proper compensation.30 4

Applying the Value Based Approach

When it is clear that the realization of values is the purpose, and that the valorization may encompass five different spheres, each with its distinct logic, we can show how this approach can be made to work by examining a few concrete cases. Our attention will focus on cultural heritage. There is a ‘new’ way of conceiving it as a ‘resource for sustainable development and quality of life in a constantly evolving society’, as stated by the Framework Convention on the Value of Cultural Heritage for Society (the Faro Convention), adopted by the Council of Europe (CoE) in 2005.31 Cultural heritage policies focus on the interrelationships between the economy, society, and culture. In fact, cultural heritage is often considered as an instrument to attain other targets or goals: to boost tourism, stimulate the construction industry, create jobs in a time of economic recession, and foster social inclusion. As the cases will show, this ‘wider’ focus of heritage policies corresponds to a frequent overlap among the five spheres in interventions aimed at promoting cultural heritage. Various questions come to the fore. Who owns the cultural heritage? Who finances it? Might a specific source of financing be preferable for the realization of social values? The analysis of these cases shows how difficult it can sometimes be to identify a unique sphere, how the distinct logics often collide, and how sometimes a possible solution derives from ‘collaboration’ among the different spheres. The cases illustrated in the following sections are examples of the involvement of different spheres in activities related to cultural heritage. The cases 30 31

See ibid 132, 154. Council of Europe Framework Convention on the Value of Cultural Heritage for Society (adopted 27 October 2005, entered into force 1 June 2011) cets 199 Preamble.

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refer to built heritage, but they are also representative of what could happen when decisions relate to intangible heritage. The first case is an example of a public–private partnership for the enhancement of a unesco World Heritage site and, at the same time, of its adaptive reuse. Both features are gaining increasing attention within policies for cultural heritage at both the national level as well as at the EU level. The second case has been chosen because Turkey is a EU associated state, a member of the CoE, and party to its many cultural heritage treaties. The country is also recipient of various EU funds in the area of cultural heritage. Despite this, the cases show that sometimes the rules in place to ensure the protection of cultural heritage may be stretched to bend to different interests. The Ex-Benedictine Monastery of Catania and Public–Private Partnership In Italy there are many religious buildings which, following the unification of the country in 1860, were taken over by the state and transformed and re-used for civil purposes. One of these examples is the Benedictine monastery of Catania. It now belongs to the University of Catania and hosts the Department of Humanities. Since 2002, it has been included in the unesco World Heritage List.32 The monastery represents an interesting case of adaptive re-use of a heritage site, which is visited daily by thousands of students, professors, and employees engaged in the daily activities connected with education. In 2009, the university felt the necessity to add other activities to the daily educational activities undertaken in the premises for students, aiming at enhancing the site and opening it to visitors (both local and non-local). The university had no personnel for these activities.33 Hence, it signed an agreement with a private non-profit association—Officine Culturali—that a group of students and faculty staff had created. The two organizations belong to two different spheres. Public universities can be considered as representing the government sphere, whereas the association represents the social sphere. The common aim which led to the agreement, i.e. the enhancement of the Benedictine monastery of Catania site, is to be realized in the cultural sphere, the encompassing (C) in Figure 7.1. However, looking at the two actors some differences are evident. Alongside the cultural value shared with the university, the association emphasizes mainly social values. The enhancement of cultural heritage is a means to attain various social goals: from job creation to people ­empowerment, from 4.1

32 See unesco World Heritage Centre, ‘Late Baroque Towns of the Val di Noto (South-­ Eastern Sicily)’ accessed 28 January 2019. 33 Professors and/or researchers do sometimes run the enhancement activities of heritage sites belonging to universities, but this is not always possible.

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the transfer of knowledge to the involvement of communities and, especially, of the weakest members of society (children, people with disabilities, children from poorer families or with difficulties, migrants). The strategy to realize these goals has been that of adopting co-creation as a way of operating. The informality, flexibility, and openness of the members of the association makes it possible to identify the needs of all the above-listed people, and to work with them to define and design tools aimed at satisfying them. Hence, people not only benefit from the activities, but actively participate in the design and implementation of the activities that they need.34 The university, as mentioned, shares the same main goal of the association, i.e. the enhancement of the monastery. It wants the monastery to be open to and known by the widest possible circle of people. Next to education, this is its main goal, and both goals belong to the cultural sphere. However, the university adopts the logic typical of the governance sphere: rules, procedures, regulations, laws, etc. These are the backbones of its way of operating. It needs them. The case is interesting as it shows how different spheres follow different logics as well as how the differences can bring about conflicts. For example, even though the agreement between the two organizations clearly states the joint goal of enhancing the monastery, frictions arise. Professors, whose mission is that of teaching, are disturbed by the noise of the school pupils participating in the edutainment activities organized by the association. The association on the other hand sometimes finds itself limited or slowed down in the development of its activities by the rules and procedures in place to get the necessary permissions to implement them.35 This shows how, depending on what the prevailing logic is, one sphere may work better than another. In order to involve communities, children, youngsters, and people with disabilities or problems, the social sphere works better as it is capable of stimulating co-creation and generating a sense of shared ownership. Such an outcome is virtually impossible to achieve when people work solely within the governance sphere, where formal arrangements prevail.36 In this specific case, the social sphere also plays a critical role in the financing of the costs. Not only does the association not obtain its funds from the university, but in fact pays a percentage of its income to the university plus a rental fee. Hence, the association’s income derives only from what is paid 34

35 36

Francesco Mannino and Anna Mignosa, ‘Public Private Partnership for the Enhancement of Cultural Heritage: The Case of the Benedictine Monastery of Catania’ in Victoria M Ateca-Amestoy and others (eds), Enhancing Participation in the Arts in the EU (Springer 2017). Mannino and Mignosa (n 34). Arjo Klamer, ‘The Values of Cultural Heritage’ in Rizzo and Mignosa (n 3).

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by the public to participate in the activities organized. That means that its revenues cover only part of the costs, and some of the jobs provided by the members of the association are considered as volunteer, i.e. unpaid, jobs. Such gifts come about and are made meaningful through the social sphere. From this point of view, the members of Officine Culturali share such a strong sense of ownership of the activities undertaken, since they are willing to engage in financial sacrifices to operate them. This, in turn, creates some frictions in its collaboration with the governance sphere, as the sense of ownership and the emotional involvement in the activities undertaken, which characterize the members of the association, is not perceived or understood at the government level, creating some frustration and sometimes some conflicts. We can consider the above collaboration as an example of a Public–Private Partnership (ppp) to manage a cultural heritage site.37 This type of organizational agreement is still not widespread, although its potential is increasingly recognized. For instance, according to unesco: [t]he cultural sector offers a great and unexplored potential for partnerships. (…) [that] can bridge the funding gap of public entities, provide interesting investment opportunities for the private sector, but require environmentally and socially sound approaches that respect and benefit local communities.38 Each partner could respectively contribute its knowledge and skills: the public sector would have a fundamental role in setting the strategic guidelines, providing administrative support, and facilitating investments. The private sector could bring in skills and competencies that the public sector lacks, as well as commitment and emotional involvement. In sum, such a ppp could bring together the best of both worlds. The partnership between the University of Catania and the private association seems to realize this model. The university, 37

38

Paola Dubini and others, ‘Role Distribution in Public-Private Partnerships: The Case of Heritage Management in Italy’ (2012) 42 International Studies of Management & Organization 57. In fact, private intervention is not new and the various examples (e.g. National Trust in UK, ‘friends’ of museums associations) show how private organizations and individuals (e.g. volunteers) contribute to the preservation of cultural heritage and the diffusion of knowledge and awareness about it. What is interesting to note, however, is how governments now consider ppp as a new tool to protect, restore, and enhance heritage and have introduced legal rules to allow this (e.g. Italian Cultural Heritage Code). unesco, ‘Public Private Partnerships in the Culture Sector. Background Note for the Hangzhou International Congress’ (2013) accessed 28 January 2019.

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owner of the monastery, guarantees its preservation and daily maintenance, whereas the association contributes to the enhancement of the site with human and financial resources. With reference to the value based approach, the introduction of this type of partnership is particularly interesting because, as the case shows, it encompasses the need to balance different logics and their values and coordinate them so that the final goal is realized. The difficulty in the implementation of this (relatively) new format, the complexity of the process necessary to design the laws to introduce the ppp in various administrative settings and establish the rules necessary for its functioning are all obstacles to the realization of a fruitful collaboration. The value based approach also incites a range of questions. We are led to ask whether there is a single logic that prevails, or whether multiple logics are at work. Do the rules of the governance sphere prevent the realization of the goals characterizing the social sphere? Is it possible to combine and harmonize the two, or would this lead to an organization which lacks consistency? And which logic is optimal for the realization of the important values? Insofar as the involvement of the local community is of such importance, the social logic may require more space to operate. 4.2 Renovation of Heritage Sites in Turkey A different example of the struggle/interaction that can take place among different spheres relates to cultural heritage in Turkey, where laws to protect cultural heritage have been in place since the first half of the 20th century. Following the government logic, there are rules and procedures which must be followed in order to undertake actions related to heritage buildings and heritage sites. The government sphere establishes them to guarantee the realization of the objective of preserving cultural heritage. However, in recent years urban development, led by real estate interests and the consequent need for space, especially in the centres of cities, has started to become a threat to cultural heritage. In principle the laws in place should avoid heritage destruction. However, recent studies have highlighted the risk of (mis)use of heritage laws to start projects that actually damage both the tangible and intangible component of cultural heritage.39 A law introduced in 2005 to valorize cultural heritage allows for urban regeneration and conservation projects that are often planned and financed by private investors.40 Some 39 40

Özgün Özçakır, Güliz A. Bilgin Altınöz, and Anna Mignosa, Political Economy of Renewal of Heritage Places in Turkey (mimeo 2016). Law No 5366/2005 on Renovating, Conserving and Actively Using Dilapidated Historical and Cultural Immovable Assets (TR) accessed 28 January 2019.

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of these projects have brought about a dramatic transformation affecting not only cultural heritage values, but also social and cultural values (displacements of communities, transformation of the architecture of places, and loss of traditional shops or practices, i.e. intangible heritage). For instance, in Istanbul in Sulukule the local population of the district, consisting mostly of Romani, was displaced to another district—60 km away—to allow the regeneration of the neighbourhood by property developers. The project also neglected the preservation of Byzantium and Ottoman archaeological remains. This happened despite a lawsuit filed by the Istanbul Chamber of Architects. Interestingly, the Council of State approved cancellation of the project, but the decision came too late as the project had already been completed. In this case it seems that the market logic prevailed over the government logic, i.e. the latter bent to the former to accommodate its values and facilitate their realization.41 The social sphere, on the other hand, was totally neglected and marginalized. The same holds true for the cultural sphere. Despite the attempt to raise public awareness of the case by the Romani and architects, the government gave permission to the developers to realize the project. There are other cases in Istanbul where people, traditional activities, or heritage sites have been displaced or eliminated to make space for new urban development (e.g. the case of the Emek Movie Theatre). At the same time however, there are also cases in Turkey where the application of the same rules generated the opposite result. In İzmir, the local government has been effective in including the social sphere alongside the cultural sphere in the case of the renewal project of Konak. The district contains different types of buildings and the population is mainly composed of immigrants from various parts of Turkey and from Syria. The local community’s needs have been considered in deciding how to proceed with development, this time against the values of the market sphere. These two opposite ways of applying the same rules are interesting as they highlight various aspects. First of all, each sphere has a different aim. The government logic adopts rules and procedures with the aim of preserving cultural heritage. Perhaps the physical heritage, i.e. the buildings, can be preserved in this way, but this does not guarantee the long-term preservation of cultural heritage. To that end local communities usually need to be involved, i.e. the social sphere has to play a significant role. When the market logic prevails, displacement of local communities and an undesirable transformation of the 41

The price for houses in the neighbourhood went up following the renovation project. See Constanze Letsch, ‘Turkish Roma Make Way for Property Developers in Historic Istanbul District’ The Guardian (London, 9 November 2011) accessed 28 January 2019.

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architecture of the areas may occur, with the loss of cultural heritage as a consequence. The logic of the social sphere could point toward the importance of cultural heritage as a shared good and establish premises to ensure the sustainable preservation of both its tangible and intangible components, but it is often neglected when decisions about cultural heritage are at stake. Secondly, the government logic that adopts rules and procedures to ensure cultural heritage preservation does not guarantee the realization of this aim on its own. On one hand the case shows that when the logic of the government begins to take into account the logic of the market, it risks being transformed into a tool to realize the aim of a different sphere. In the case of Sulukule, the government seems to have succumbed to the market logic, with dramatic effects on the buildings and people/communities in the district. Furthermore, the cases show that when the social sphere is not taken into consideration, the laws and rules themselves are not enough to ensure cultural heritage preservation. On the other hand, the case of İzmir shows that if the government is capable of considering the social logic and listening to communities’ needs through public consultation, the projects will include what is important for them and cultural heritage preservation can be sustainable. A third aspect, which is worth mentioning from a political economy point of view, is that the Turkish cases are also examples of ppps. The government regenerates an area with the financial intervention of the private sector, i.e. the real estate actors. The frictions and conflicts that characterize some of these ppps confirm unesco’s statement that interventions ‘(…) require environmentally and socially sound approaches that respect and benefit local communities’.42 These cases show that there are different logics in place and, depending on which prevails, the outcome differs. The cases also demonstrate that more often than not, and more and more frequently, the different spheres overlap and there is a need to find a balance/coordination among them. This is something that also happens with respect to EU funded projects, as shown in the following section. 5

The European Union and Cultural Heritage

There has undoubtedly been a shift towards the connection between cultural heritage and development. This emerges from the UN Sustainable Development Goals and the role that culture plays, whereby the UN affirms that 42

unesco, ‘Public Private Partnerships’ (n 38).

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[c]ulture contributes to poverty reduction and paves the way for a human-centred, inclusive and equitable development. No development can be sustainable without it. Placing culture at the heart of development policies constitutes an essential investment in the world’s future (…).43 The Ministers of Culture of G7 follow this line of reasoning.44 Heritage has also been a priority in the EU for a long time. Since 1986, the Commission Framework Programmes (FPs) have supported circa 120 cultural heritage projects, involving various stakeholders (universities, research centres, museums, private companies).45 The projects focused on solutions to preserve both movable and immovable cultural heritage. The aim of the various EU programmes has changed over time, and EU programmes currently present a wide range of objectives: from heritage preservation to its protection against illicit trade; from its adaptive re-use to its digitization; from its relation with cultural tourism to its protection against environmental factors; from its relation to cultural identities to its relation to creativity, cultural and creative industries, and a creative economy; from boosting its accessibility to collecting statistics about it; from assessing its economic value to highlighting its role for education, and these are only to mention just some of its aims.46 The EU actions focusing on cultural heritage have always included a thorough analysis at the end of each programme in order to (try) to assess its impact and evaluate the results. An interesting example here is Euromed ­Heritage.47 This programme, which ran from 1998 to 2012, focused on the cultural heritage of the Mediterranean countries, involving the Member States of the EU and meda countries (Mediterranean non-member countries).48 It was divided in four phases. In the first, Euromed Heritage i (1998–2004), the main goal was the creation of heritage inventories and the facilitation of networking between museums and other cultural institutions. The goal of Euromed 43 44

45 46 47 48

unesco, ‘Sustainable Development Goals for Culture on the 2030 Agenda’ accessed 28 January 2019. Ministers of Culture of G7, ‘Culture as an Instrument for Dialogue Among Peoples, Joint Declaration of the Ministers of Culture of G7 on the Occasion of the Meeting’ (30 March 2017) accessed 28 January 2019. European Commission, ‘Mapping of Cultural Heritage Actions in European Union Policies, Programmes and Activities’ (2017) accessed 28 January 2019. See ibid for an updated overview of EU programmes. For a thorough illustration of the programme, see Euromed Heritage, ‘Programme’ accessed 28 January 2019. They are Algeria, the Palestinian Authority, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, Syria, Tunisia, and Turkey.

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Heritage ii (2002–07) was to boost Mediterranean countries’ capacities in managing and developing their cultural heritage, with special attention given to intangible heritage. Phase iii (2004–08) was an extension of the previous one and kept the same objectives and focus (i.e. intangible heritage). Euromed Heritage iv (2008–12) shifted attention to people’s appropriation of their own cultural heritage through easier access to education and knowledge, aimed in part at implementing the spirit of the 2005 CoE Faro Convention. Each phase was followed by an extensive final evaluation, which led to a re-definition of the objectives of the programme. It can be seen that the more ‘traditional’ approach that focused on inventories and networking among cultural institutions (Phase i) led in Phase iv to a focus on the relationship between people and their heritage and the need to strengthen this relationship through education so as to make people aware of the importance of their heritage. The various phases of this programme testify to the shift from an approach to heritage that focuses on its preservation to a more holistic view that considers the importance of managing cultural heritage and finally to the importance of people’s appropriation of their heritage, not only to guarantee its preservation but also as a means to improve people’s way of living. This shift is evident looking at the cultural heritage legal instrumentarium adopted by the CoE, which affects or may affect the EU policy and law-making. Indeed, the already mentioned 2005 Faro Convention is a fundamental document that testifies to the widening of objectives with respect to policies on cultural heritage. Next to reaffirming the need to preserve cultural heritage, this Convention highlights its contribution ‘to society and human development’ (Section ii), with references to dialogue (Article 7), the environment and quality of life (Article 8), sustainability (Article 9), and economic activity (Article 10). The Convention focuses on heritage as a shared responsibility (Section iii) on the part of the organizations and the public institutions responsible for it (Article 11), access and democratic participation (Article 12), knowledge (Article 13), and the information society (Article 14). Arguably, the principles of the 2005 Faro Convention have somehow shaped the ‘conclusions on cultural heritage as a strategic resource for a sustainable Europe’, adopted by the ceu.49 This document considers cultural heritage to be a resource for social inclusion, also having an economic impact, which can play a role in achieving the Europe 2020 strategy goals by cutting through different public policies (related to regional development, social cohesion, 49

ceu, ‘Conclusions on cultural heritage as a strategic resource for a sustainable Europe’ (2014) accessed 28 January 2019.

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agriculture, maritime affairs, the environment, tourism, education, the digital agenda, research and innovation). The European Commission follows this approach and underlines the potential contribution of cultural heritage to ‘sustainable and inclusive’ growth and social cohesion. The Commission calls for an integrated approach to increase the chances of maximizing the benefits deriving from cultural heritage.50 In its Report of the CHCfE Consortium, the Commission indicates various measures that testify to the potential role of heritage for growth. It refers mainly to data about numbers of visitors, jobs created, and cultural tourism. However, it highlights the need for data about the sociocultural impact of cultural h ­ eritage. The Commission refers to a study financed by the EU that acknowledges cultural heritage as ‘a capital of irreplaceable cultural, social, environmental and economic value’ and underlines the need for facts and figures to support policies and investments.51 Quantitative and qualitative data on the value of heritage provide evidence of its benefits and impacts. These measures increase the understanding of the potential of heritage for sustainable development by providing support for effective policies and attracting all sorts of supporters. The programmes launched by the EU, as shown with respect to Euromed Heritage, testify its widening of the scope of cultural heritage policies, and their overlapping/inclusion in other policies domains (rural development, digitization, education, lifelong learning, urban management, etc.). This is evident in the evolution of the various FPs (1986–2013).52 The more recent programmes seem to place even further stress on how cultural heritage policies are more and more intertwined with other polices under the responsibilities of several directorates, including: education, cohesion, digital culture, Research and Innovation, science, internal market, industry, tourism and entrepreneurship, rural heritage, maritime heritage, environment, and citizenship.53 50 51 52 53

European Commission, ‘Towards an integrated approach to cultural heritage for Europe’ (Communication) com (2014) 477 final. CHCfE Consortium, Cultural Heritage Counts for Europe: Full Report (2015) Foreword accessed 28 January 2019. European Commission, Preserving our Heritage, Improving our Environment, vol 1 (EU Publ Office 2009). Education: Erasmus + (under the responsibility of the Directorate-General for Education, Youth, Sport and Culture). Cohesion: EU structural funds 2014–20 (Directorate-General for Regional and Urban Policy). Digital culture: Digital Heritage, Europeana, Film Heritage (Directorate-General for Communications Networks, Content and Technology—DG CONNECT). Research and Innovation: Joint Programming Initiative in Cultural Heritage and Global Change, Horizon 2020 (Directorate-General for Research and Innovation). Science: European Cultural Index, Cultural and creative city monitor 2016 (Joint Research

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As we have seen, the EU programmes, as well as several national programmes, recognize the need for more data to assess the effectiveness of the projects once they are concluded and to support the launch of new ones.54 The EU report mentioned above is an example of a project supported by the EU to cover this gap.55 However, the methods used often vary and, especially when it comes to the social and cultural values of cultural heritage, the debate is still open. In fact, there are often also doubts about the data on the economic impact of culture; it has been shown that the method used can affect the final result. The value based approach proposed here contributes to this debate by providing a different perspective, as it encourages the assessment of the realization of values that are important to those who have a stake in cultural heritage, such as local organizations, governments, professionals, individuals, foundations, etc. This corresponds to the adoption of a totally different logic in setting the objectives of the projects: the needs of the stakeholders would constitute the starting point to define the targets. Furthermore, the value based approach shows stakeholder(s) how to consider the five spheres of valorization and raises the additional question of which sphere is optimal for the realization of the most important values. The aim of the approach is to increase the attention given to the variety of (public) values at stake and determine the best sphere to finance their realization. A comprehensive framework is currently lacking though, and this is what the value based approach is aimed at providing. 6

Conclusions. A Possible Way Forward: The Use of the Value Based Approach

Is it possible to harmonize the goals of the university and those of the association in the case of the Benedictine monastery of Catania? Could the use of the value based approach have prevented the development of the Sulukule project in Istanbul? Is it possible to adopt the value based approach in EU programmes

54 55

Centre). Internal market, industry, tourism, and entrepreneurship: Cultural tourism, sustainable tourism and rural development, Satellite data to protect heritage (DirectorateGeneral Internal Market, Industry, Entrepreneurship and smes). Some programmes involve more directorates at once; it is the case with the one combating illicit trade of cultural goods that sees the cooperation of the Directorate-General for Taxation and Customs Union, the Directorate-General for Education, Youth, Sport and Culture, and the Directorate-General Internal Market and Services. See for example the Heritage Lottery Fund (2013). CHCfE Consortium (n 51).

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to try to assess the values of cultural heritage and, thus, be sure to guarantee its sustainable preservation? In fact, Article 2 of the Faro Convention acknowledges that people value ‘specific’ aspects of cultural heritage which, within the framework of public action, they wish to sustain and transmit to future generations. Hence, the adoption of this method could allow for the identification and, possibly, the realization of these different values. We believe that the value based approach is a possible tool to try to balance the somewhat contradictory goals and logics of the cases examined. By asking all the involved stakeholders what is important to them, these values should become the benchmark and guidelines upon which to decide what to do and how to do it. In this way it would be possible to consider the different values at stake, overcome the limits that characterize the intervention of each sphere and that prevent the collaboration among more spheres, for example by establishing a ppp. Of course, the application of this method is not easy and immediately pursuable. Still it would allow for finding the best way to intervene in support of cultural heritage while considering the various values at stake and the different logics involved. Thus, it would make possible a smoother collaboration among the different spheres, as in the case of the Benedictine monastery of Catania. Or it could avoid or, at least reduce, the conflicts that seem to be taking place in some of the renovation of heritage spaces in Turkey.

Chapter 8

Cultural Heritage in the EU Trade Agreements: Current Trends in a Controversial Relationship Francesca Fiorentini 1

Balancing Trade and Culture in the EU’s Common Commercial Policy

This Chapter offers another example of the transversal character and instrumental use of the notion of ‘cultural heritage’ within the variety of policies and actions of the EU, a feature which clearly emerges from diverse angles in this volume.1 The task here is to explore the meaning and role of cultural heritage in EU Trade Agreements (TAs) with third countries from two perspectives: The institutional setting of the EU’s Common Commercial Policy (ccp); and its operative practice over the decades. TAs are only one of the technical instruments used within the ccp of the EU.2 They are intended to create better trading opportunities for both the EU and its partner countries, by overcoming or reducing trade barriers such as customs and tariffs.3 The importance of TAs for the EU’s external action—and for its ccp in particular—can already be deducted from economic data: It is estimated that 90% of future global growth will take place outside the EU borders and more than 30 million jobs already depend on export outside the EU. Trade outside the EU is clearly a growth vector and a key priority for the EU.4

1 See, e.g., the Chapters by Andrzej Jakubowski, Evangelia Psychogiopoulou, Ewa Manikowska, and Cynthia Scott in this volume. 2 Trade agreements are classified as conventional measures. Other instruments are unilateral measures, such as anti-dumping measures: Paul Craig and Graínne de Burca, EU Law: Text, Cases, Materials (6th edn, oup 2015) 337. 3 Technically, the term ‘Trade Agreements’, as used by the EU institutions, includes different types of agreements having different names, depending on their content and goals. Usually they either liberalize or regulate purely trade aspects, or they have primarily development and cooperation aims, sometimes also including trade aspects. For more details, see accessed 31 January 2019. 4 Data from the European Council and ceu, see accessed 31 January 2019; European Commission, Trade for All. Towards a More

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_010

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Analysing the role of cultural heritage when dealing with TAs with third countries is a relatively new exercise, and needs to be performed together with the analysis of other wider and interconnected notions like those of ‘culture’ and ‘cultural diversity’. What is not new is the conceptual framework in which the topic of this Chapter is placed, i.e. the traditional clash existing between ‘trade’ and ‘culture’.5 Free trade can facilitate the spreading and mutual understanding of cultures, but it also carries dangers for the less viable cultures, which risk losing genuine cultural choices.6 From the EU institutional point of view, the problem of finding a balance between the two poles has been dealt with since 1992. While the Community competence in the ccp was among the earliest exclusive competences of the European Economic Community (eec), the EU complementary competence in culture, based on respect for national cultural diversities, was added only with the Treaty of Maastricht establishing the EU in 1992.7 Ever since, the EU’s trade strategy has had to balance trade liberalization with the need to respect Member States’ competences in defining and implementing cultural policies. While the place of culture, cultural diversity, and cultural heritage in the EU’s constitutional framework, and in particular in the EU’s external relations, is considered in other contributions to this volume,8 this Chapter explores whether, to what extent, and for what purpose(s) cultural heritage (through the mediation of the notions of culture and cultural diversity) has a place in the ccp and, if so, what is the effect of this ‘unexpected’ inclusion in TAs. In order to approach these key questions, first a brief account of the role of trade with third countries under (E)EC and EU law is needed, taking into consideration the institutional architecture for the ccp over time. Secondly, the relationship between the ccp with the forum of the World Trade Organization (wto) will be examined, as well as the change over time of the European

5

6 7 8

Responsible Trade and Investment Policy (EU Publ Office 2014) 8ff accessed 31 January 2019. The literature on this topic is vast. See at least Mira Burri, ‘The Trade Versus Culture Discourse: Tracing its Evolution in Global Law’ in Valentina Vadi and Bruno de Witte (eds), Culture and International Economic Law (Routledge 2015) 104ff; Tania Voon, Cultural Products and the World Trade Organization (cup 2007) 3ff. See the unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 unts 311 (cppdce), 16th recital. Treaty on European Union, signed at Maastricht on 7 February 1992 [1992] OJ C191/1. See arts 3, 128, and subsequently arts 2(5), 6, and 167 of the Treaty on the Functioning of the European Union (consolidated version) [2012] OJ C326/47 (tfeu). See, respectively, the Chapters by Andrzej Jakubowski, Cynthia Scott, Evangelia Psychogiopoulou, and Kristin Hausler in this volume.

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­ ommission’s trade strategy, especially after the entry into force of the 2005 C unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions (cppdce). Next, and against this background, a summary of the outcomes of a textual analysis of a vast group of EU TAs with third countries follows. This will allow for some concluding remarks on the meaning of the notion of cultural heritage within the practice of the ccp and on the effective function and use of this notion at the level of the implementation of EU TAs, as well as suggestions to better implement the said notion in the context of current EU global trade policy. 2

The Institutional Structure of the ccp over Time

The original institutional structure of the ccp and the manner in which it developed over the past six decades somehow mirror the establishment of the internal common market. This is due to the close link existing between the two sectors for the coherent achievement of the institutional objectives. It is a link which must be borne in mind in order to understand the theme of this Chapter. The story of this link is characterized by a constant struggle to find a balance between (E)EC/EU competences and those of the Member States. It is apparent that whereas ‘central’ exclusive competences reinforce the role of the (E)EC/EU as a global actor in world trade, the splitting of competences with the Member States makes it much more difficult for the supranational organization to play that role. Under the Treaty of Rome of 1957 (eec),9 the ccp was regulated in Articles 110–16. These provisions limited the ccp’s scope to trading in goods and progressively eliminating customs tariffs, whereas services, as well as other matters of national competence of the Member States, such as intellectual property or foreign investment, were not included.10 Basically, the institutional actors involved in the ccp were the Commission and the Council, with the former submitting proposals or recommendations to negotiate agreements, and the

9 10

Treaty Establishing the European Economic Community (Treaty of Rome) 298 unts 11. Art 113(1): ‘The common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in case of dumping or subsidies’. Roberto Bendini, ‘The Future of EU Trade Policy’ (July 2015) DG EXPO/B/PolDep/Note/2015_227, July 2015PE549.054, 4.

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latter issuing the relevant authorizations.11 No involvement whatsoever of the European Parliament was established at that time. Moreover, the competence for the ccp was an exclusive competence of the Community, i.e. excluding concurrent actions by Member States. The European Court of Justice (ecj or the Court), particularly in 1970s, has been very active in determining and expanding the doctrine of the exclusive competence of the Community in this field, including attaching implied powers to it.12 This was justified by the need for unity in the Community’s external action and by the argument that the proper functioning of the customs union required a wide interpretation of the powers conferred by the Treaty in this field.13 In the same way, and using the same arguments, the ecj established the exclusive nature of EC/EU competence as far as the conclusion of international agreements is concerned.14 This reasoning of the ecj has been described as ‘a characteristic mixture of pragmatism and the link between external and internal trade policy’.15 In accordance with this case law, if a particular issue is deemed to fall within the scope of the ccp, the Community competence will be exclusive: Member States will be left out of negotiations and the conclusion of international agreements, which will remain in the sole hands of the Commission and the Council. In the 1970s and 1980s the ecj also took a position on the growing phenomenon of agreements and other measures aimed at regulating (more than merely liberalizing) trade, which were concluded with third developing countries also with a view toward generating aid and development. The Court affirmed that 11

12

13 14

15

With respect to these competences, the Council acted by qualified majority (art 113(4)). Trade agreements had to be concluded by the Council on behalf of the Community, acting unanimously during the first two stages, and by a qualified majority thereafter (art 114). Thomas Cottier, ‘Towards a Common External Economic Policy of the European Union’ in Marc Bungenberg and Christoph Herrmann (eds), Common Commercial Policy After Lisbon, Special Issue of European Yearbook on International Economic Law (Springer 2013) 3ff, 8. Case 8/73 Hauptzollamt Bremerhaven v Massey-Ferguson GmbH [1973] ecr 897, 4. For a detailed account of this case, see Craig and de Burca (n 2) 337–39. Opinion 1/75 of the Court (Understanding on a Local Cost Standard) [1975] ecr 1355, and similarly in Case 41/76 Donckerwolke and Others v Procureur de la République and Others [1976] ecr 1921 as far as the adoption of autonomous or unilateral legislative acts is concerned. Piet Eeckhout, External Relations of the European Union. Legal and Constitutional Foundations (Oxford EC Law Library 2004) 15. Marise Cremona, ‘External Relations and External Competence of the European Union. The Emergence of an Integrated Policy’ in Paul Craig and Graínne de Burca (eds), The Evolution of EU Law (2nd edn, oup 2011) 217–68.

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the objectives of such agreements were complex and that, if certain a­ ctivities prescribed in the agreements were within the competence of the Member States and if they were of crucial importance for the achievement of the agreements’ objectives, the competence could be deemed to be shared between the Community and the Member States.16 This view was affirmed despite the Court’s trend to keep the scope of the ccp (and of the EC’s exclusive competence therein) broad, in a way that could well cover development measures necessary for trade purposes.17 From this time onwards, and also on the basis of the experience of the wto ‘mixed agreement’ in 1994,18 a new era for the ccp began, in which trade measures would not necessarily be perceived as commercial policy measures (hence subject to exclusive competence) if they also pursued other objectives, such as, e.g., environmental protection (traditionally included in the competencies of the Member States).19 In such cases, competence could be shared with the Member States and the ensuing agreements were deemed to be ‘mixed agreements’ requiring the consent and ratification of the Member States—a procedure which clearly makes it more difficult to conduct and successfully close trade negotiations with third countries. Whereas no substantial institutional changes to the ccp provisions were brought about by the Treaty of Maastricht in 1992, the Treaty of Amsterdam (1997)20 and the Treaty of Nice (2001)21 both marked a further step in the evolution of the Community’s ccp, though the system arising out of these Treaties still deserved improvement: they widened the scope of the ccp to include services and intellectual property but—this time—still in a regime of shared competence with Member States.22 16 17 18

19 20 21 22

For instance, in the Opinion 1/78 of the Court (International Agreement on Natural Rubber) [1979] ecr 2871 concerning the case of an Agreement in which the Member States were committed to finance developing, the ecj considered the competence shared. Case 45/86 Commission of the European Communities v Council of the European Communities [1987] ecr 1493. Marrakesh Agreement Establishing the World Trade Organization (15 April 1994) 1867 unts 3; see Opinion 1/94 of the Court (wto Agreement: gats and trips) [1994] ecr i-5267, 36–41 and Michael Hahn and Livia Danieli, ‘You’ll Never Walk Alone: The European Union and Its Member States in the wto’ in Bungenberg and Herrmann (eds) (n 12) 49ff. Opinion 2/00 of the Court [2001] ecr i-9713, in a case regarding the Cartagena Protocol of Biosafety. Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts [1997] OJ C340/1. Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts [2001] OJ C80/1. Marise Cremona, ‘A Policy of Bits and Pieces? The Common Commercial Policy After Nice’ (2001) 4 Cambridge Yearbook of European Legal Studies 61.

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These modifications were further elaborated under the Treaty of Lisbon (2007),23 which established the current institutional framework for the ccp, a framework which is very different from the original one at least in three respects.24 Firstly, the ccp now covers trade in services as a whole,25 commercial aspects of intellectual property, and foreign investment, giving a much broader scope to the EU’s exclusive external competence in this field. Since the adoption of the Treaty of Lisbon, the EU’s exclusive competence for all services, including audio-visual services, takes this cultural sector out of the hands of the Member States, which will no longer be parties to the agreements covering these topics, and the Member State parliaments will no longer need to ratify the ensuing instruments. Negotiations on audio-visual services are now in the exclusive hands of DG-Trade, thereby emphasizing the commercial component of this sector and diminishing its cultural component. While DG-Education and Culture has a secondary role in these negotiations, it is argued that these two DGs do not cooperate much.26 This novelty under the Treaty of Lisbon regarding the exclusive competence to negotiate agreements on audio-visuals is debatable. Secondly, despite the subsumption of trade in all services under exclusive EU competence, Article 207(4)(3) tfeu exceptionally recognizes a stronger role for the Member States’ interests, as it provides for unanimity by the Council in the field of: ‘trade in cultural and audio-visual services, where these 23

24 25 26

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1. Part v of the tfeu is now devoted to the Union’s external action; Title i of this Part is devoted to General Provisions on the Union’s external action, and contains only art 205: ‘The Union’s action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title v of the Treaty on European Union’. Title ii is devoted to ccp, and is made up of only arts 206 and 207 (respectively ex arts 131 and 133 tec). Art 206 establishes the objectives of ccp: ‘By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers’. Art 206 is more complex, establishing the scope, measures to be taken and institutional procedures for the ccp and its implementation, with the involvement of the European Parliament. Craig and de Burca (n 2) 336ff. As regard services, transport policy, which is a competence shared between the EU and the Member States under art 4(2)(g) tfeu, remains outside the scope of the ccp. Jan Loisen and Ferdi De Ville, ‘The EU–Korea Protocol on Cultural Cooperation: Toward Cultural Diversity or Cultural Deficit?’ (2011) 5 International Journal of Communication 254, 260.

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agreements risk prejudicing the Union’s cultural and linguistic diversity’. This rule clearly recognizes ‘the high level of national sensitivity concerning the effects of the EU common commercial policy in the field of culture in general and audio-visual services in particular’,27 but it is difficult to interpret and, so far, no decision has been issued by the Court of Justice of the European Union on this rule. Thirdly, the European Parliament is finally accorded a full legislative role within the ccp. Now it is up to the Parliament and the Council, adopting regulations in accordance with the ordinary legislative procedure, to define the implementation framework for the ccp (Article 207(2)). Moreover, the Parliament’s consent is now required for the conclusion of an international agreement related to the ccp (Article 207(3), referring to the procedure in Article 218). The broadening of the scope of the EU’s ccp in the post-Lisbon era facilitated the negotiation of agreements covering not only classical trade topics. Despite the new rules in the Treaty of Lisbon, the difficult problem of balancing the interests of the EU as a whole with those of the individual Member States, as well as the question of taking into account other civil society interests in the negotiations over ‘mixed agreements’ remains open and may limit the efficiency of the current ccp—as demonstrated by the negotiations of the Comprehensive Economic and Trade Agreement (ceta) with Canada and by the difficulties surrounding the Transatlantic Trade and Investment Partnership (ttip) negotiations with the usa.28 3

Trade in Cultural and Audiovisual Services: The Relationship between the wto and the ccp under the Treaty of Lisbon

It is worth noting that the rule set out in Article 207(4)(3) tfeu establishing unanimity by the Council for the negotiation and conclusion of agreements with third countries in the field of ‘trade in cultural and audio-visual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity’ clearly mirrors the ‘cultural exception’ codified in the wto regime with respect to the liberalization of trade in cultural goods and 27 28

Evangelia Psychogiopoulou, ‘The External Dimension of EU Cultural Action and Free Trade: Exploring an Interface’ (2014) 41(1) Legal Issues of Economic Integration 65, 68. See below Section 6. With respect to ceta, see , and on the state of ttip negotiations, see both accessed 31 January 2019.

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services—­particularly audio-visual products, which is certainly the most profitable cultural sector for global trade.29 In relation to the trade in cultural goods, the ‘cultural [goods] exception’ of the General Agreement on Tariffs and Trade (gatt) applies (Article XX(f)),30 an exception which was strongly advocated by the EU and France during the 1994 gatt negotiations against the US approach, which sought to extend liberalization to those particular goods. By virtue of this exception, EU Member States have traditionally excluded liberalization in audio-visual goods in order to promote national cultures and identities. The same practical result has been achieved within the General Agreement on Trade in Services (gats) with reference to audio-visual services, where the EU Member States notified exemptions from the most favourable nation (mfn) treatment31 established for services in general. The EU Member States’ approach, oriented toward excluding the liberalization of audio-visuals in the multilateral trade system of the wto, has made it possible for the EU to preserve this topic for further—and maybe more tailor-made—negotiations in bi- or plurilateral contexts within the ccp, and in a manner allowing more room for manoeuvre vis-à-vis the US and other global competitors. This happened certainly thanks to the institutional novelties of the Treaty of Lisbon, which made this shift of forum legally possible, but also by virtue of a change in the paradigm of the EU’s global trade strategy that was imposed by the needs of emerging markets, as is explained below. 4

The Globalization of Trade and Its Impact on the EU’s Common Commercial Policy

The institutional changes in the ccp illustrated above, which culminated in the Treaty of Lisbon, have been largely determined by the bottom-up impact that the globalization of trade has produced. 29

30

31

Burri (n 5) 104ff. Data (in millions of dollars) on the economic value of global trade in audio-visual services: in 2016 the import of those services within the EU (28 Member States) amounted to 177,849, and the import outside the EU (28) to 109,353 and in the usa to 42,743. The export in the same services in the same year amounted to 122,226 for the usa, 108,120 within the EU (28) and 66,471 for the EU export outside the EU (28): World Trade Organization, ‘World Trade Statistical Review 2017’, Table A43 accessed 31 January 2019. This rule allows restrictions on the free trade of goods if they are ‘imposed for the protection of national treasures of artistic, historic or archaeological value’. Yet the derogation is subject to compliance with the non-discrimination principle, reciprocity between States, and non-disguised restrictions on international trade. The Most Favoured Nation clause is set out in art ii gats. See Voon (n 5) 109ff.

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At the time of the Treaty of Rome and in the following decades—at least till the beginning of the 1990s and the ratification of the gats within the wto in 1994—global trade was largely based on trade in goods. The service markets were split in a nuance of varying national dimensions that hindered the formation of a cross-border market. The technological revolution and digitization, which started after that period and bloomed only in the 21st century, completely altered the way the trade in services had so far been conducted. It opened the gates to a global trade in services and advanced the growth of global trade in general. The phenomenon may well be referred to as the ‘servicification of trade’ in goods,32 meaning that nearly every type of cross-border flow—including in goods—now has a services-based ‘digital format’ that accompanies the transaction and provides essential product information.33 This revolution in the global trade market altered the previous world balance between the powers of developed economies. Also, as a consequence of the persistent financial crisis, the EU lost its key role in world trade—a key role it enjoyed for centuries. The winners of this revolution include most of the emerging economies, such as China, India, and Brazil. The stalemate of the ttip negotiations between the US and the EU shows that this trend is unlikely to be stopped. Consequently, the multilateral trade system within the wto, previously jointly managed by the US and the EU, has come to a standstill. Another factor pushing towards a paradigm shift in the EU trade policy was the proactive US trade policy of competitive liberalism, pursued since the beginning of the 2000s through the negotiation of bilateral agreements.34 As a result of the impasse in multilateral negotiations, the EU has gradually modified its world trade strategy. While the previous privileged forum of negotiation was the wto, it has now shifted to a system of bilateral or plurilateral negotiations, tailored to the needs and interests of, respectively, the EU and selected countries or regions in the global arena.35 The European Commission—External Trade launched its new and ambitious world trade 32 33

34 35

Rupa Chanda, ‘Trade in Services’ in Kenneth A Reinert (ed), Handbook of Globalisation and Development (Edward Elgar Publishing 2017) 36ff, 45. James Manyika and others, ‘Global Flows in a Digital Age: How Trade, Finance, People, and Data Connect the World Economy’ (April 2014) accessed 31 January 2019. Simon J Evenett and Michael Meier, ‘An Interim Assessment of the U.S. Trade Policy of “Competitive Liberalisation”’ (February 2007) accessed 31 January 2019. Bendini (n 10) 5; Stephen Woolcock, ‘EU Policy on Preferential Trade Agreements in the 2000s: A Reorientation towards Commercial Aims’ (2014) 20(6) European Law Journal 718.

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strategy in 2006 (in the Communication ‘Global Europe’36), convinced that maintaining a leading (if not supreme) role in global trade and the new markets is essential to sustain the EU project as well as the European way of life.37 What this strategy aims at is not only combating barriers abroad and lowering tariffs, but also creating markets where EU actors may find the best conditions to operate: fair deals, free competition, and legal protection. Also, new areas of interest are indicated, such as intellectual property rights (iprs), services, investments, public procurements, and competition—areas that can all be better addressed by TAs.38 The European Commission’s policy statement of October 2010 on ‘Trade, Growth and World Affairs’ confirmed this trend.39 This strategy has been further elaborated by the DG-Trade in its new strategy document: Trade for All. Towards a More Responsible Trade and Investment Policy of 2015.40 Making trade and investment policy more transparent (to gain more democratic consensus) and making the same policy more adherent to EU values—such as social justice, respect for human rights, social and labour rights, the environmental aspects of value chains, and health and safety protection, are crucial points in this strategy.41 Moreover, this document clearly declares a change of paradigm in trade negotiations: Whereas they formerly focused on pure economic aspects and regulatory negotiations aimed at exchanging the best conditions for each party in a game of give and take, now negotiations about regulatory standards will be included in a cooperation framework. This will allow the promotion of high standards for each party. In this context, trade agreements will be destined to be a forum for political dialogue.42 36 37 38

39

40 41 42

Commission of the European Communities, ‘Global Europe: Competing in the world’ (Communication) com (2006) 567 final. Ibid 6. Ibid 7. Sieglinde Gstöhl and Dominik Hanf, ‘The EU’s Post-Lisbon Free Trade Agreements: Commercial Interests in a Changing Constitutional Context’ (2014) 20(6) European Law Journal 733. For an economic assessment of this phenomenon see Georg Koopmann and Marco Wilhelm, ‘EU Trade Policy in the Age of Bilateralism’ (2000) 45(5) Intereconomics 305. For the further trend towards mega-regional trade agreements currently under negotiation (Trans-Pacific Partnership among Australia, Canada, Japan, Mexico, and seven other countries, ttip between the EU and the United States, and China’s Regional Comprehensive Economic Partnership): Chad P Bown, ‘Mega-Regional Trade Agreements and the Future of the wto’ (2017) 8(1) Global Policy 107. European Commission, ‘Trade, Growth and World Affairs: Trade Policy as a Core Component of the EU’s 2020 Strategy’ https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/trade-growth-and-world-affairs-trade-policy-core-componenteus-2020-strategy> accessed 31 January 2019. European Commission, Trade for All (n 4). Ibid, respectively 18ff, 20ff. Ibid 20.

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It is evident that the two strategic documents of the Commission further implement the new institutional setting of the ccp, which is bound by the Treaty of Lisbon to be coherent with the EU’s external action as a whole and with the general values of the EU project,43 the latter aspect now being possible also thanks to the role accorded to the European Parliament in the ccp. Within this new context, trade policy will be an instrument for the promotion of sustainable development globally.44 In this vein, Free Trade Agreements (ftas) will have to systematically include and combine provisions on trade and sustainable development.45 5 The cppdce and the ccp: Protocols on Cultural Cooperation Strange as it may seem, another crucial step in the development of a new global trade strategy for the EU has certainly been the 2005 cppdce46 and its adoption by the EU in 2006.47 According to Article 216(2) tfeu, the cppdce has automatically become EU law, therefore the EU is directly obliged to comply with it and implement its provisions. This made the cppdce a landmark in the process of reviving the idea of cultural diversity48 (a concept which reflects multiculturalism more adequately than the traditional notion of ‘culture’) in the EU’s internal and external policies.49 Among the many relevant aspects of this Convention, the following bear the greatest impact on the EU’s ccp. The Guiding Principles, under Article 2(5) establish the ‘Principle of the complementarity of economic and cultural 43 44

45 46 47 48 49

Ibid 22. The importance of the potential contribution of trade policy to sustainable development has recently been reaffirmed in the unga resolution: Transforming our World: The 2030 Agenda for Sustainable Development, unga Res A/RES/70/1 (25 September 2015). In para 8 of this document cultural diversity is among the values that shall guide sustainable development. European Commission, Trade for All (n 4) 23. (n 6). Council Decision 2006/515/EC of 18 May 2006 on the conclusion of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions [2006] OJ L201/15. The catch-all term ‘cultural diversity’ is described in the unesco Universal Declaration on Cultural Diversity, unesco Doc 31C/Res (2 November 2001). See also its definition in art 4 of the cppdce. For more on the legal operationalization of cultural diversity, see inter alia: Lilian Richieri Hanania (ed), Cultural Diversity in International Law: The Effectiveness of the unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Routledge 2014); for more on the impact of the cppdce on the EU, see Chapter 13 by Hanna Schreiber in this volume.

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aspects of development’. The principle reads as follows: ‘Since culture is one of the mainsprings of development, the cultural aspects of development are as important as its economic aspects, which individuals and people have the fundamental right to participate in and enjoy’. This guiding principle is of fundamental importance since it puts culture and economy on an equal footing.50 Then, the cppdce commits its parties to integrating cultural diversity considerations in cooperation and development policies. This is on the basis of Guiding Principle no 6, ‘Principle of sustainable development’, and by virtue of Article 16 requiring developed countries to facilitate cultural exchanges with developing countries, by providing preferential treatment to their artists and other cultural professionals and practitioners, as well as to their cultural goods and services. Under Article 20, the parties undertake to foster mutual supportiveness between the cppdce and other treaties to which they are party, and to take into account the provisions of this treaty when interpreting and applying existing international obligations or when entering into new ones. The rules of the cppdce, together with the actions envisaged by the Cultural Agenda of 2007,51 require the integration of culture and cultural diversity promotion and considerations in all of the EU’s external policies, including the ccp. This will have to happen in the following four directions, drawn up by the same Cultural Agenda: Developing political dialogue on culture and cultural exchanges; promoting market access for the cultural goods and services of developing countries; promoting financial and technical support for preservation and access to cultural heritage and the promotion of cultural diversity; and reinforcing EU participation to international organizations dealing with culture. As the empirical analysis shows,52 these directions perfectly mirror the recurring content of TAs with third countries, with particular clarity in the period after Lisbon. Following the Cultural Agenda, in 2008 the ‘Cannes Declaration’ acknowledged ‘the utility of reinforcing audio-visual cooperation measures in the cooperation and trade agreements concluded between the EU and third countries’;53 and was in turn followed by the Commission’s ­Working Staff 50

51 52 53

According to the unesco Universal Declaration on Cultural Diversity (art 3) cultural diversity helps implement the possibilities of development: ‘Cultural diversity widens the range of options open to everyone; it is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence’. Commission of the European Communities, ‘European agenda for culture in a globalizing world’ (Communication) com (2007) 242 final. See below, Section 6. ‘Declaration of European Audiovisual Affairs Ministers and of the European Commission Member responsible for the Information Society and Media’ (19 May 2008) 2 accessed 31 January 2019.

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Document on the ‘External Dimension of Audiovisual Policy’ of 19 July 2009.54 It cannot go unnoticed that these declaratory principles clearly go against the traditional trend of ftas to leave cultural content outside their scope, in particular of the audio-visual kind. On these premises, the cppdce has created momentum for the elaboration of a new instrument of ccp to be attached to TAs with third countries: the Cultural Cooperation Protocol.55 It is intended to implement the cppdce and, in particular, to ensure a specific place for the regulation of audio-visual services,56 distinct from the title on Services and Establishment contained within the usual text of the TAs. This is consistent with the EU’s intention,57 aimed at negotiating the liberalization in audio-visuals not at a multilateral level, but at a bi- or plurilateral level.58 So far, Cultural Cooperation Protocols have been negotiated and attached to three TAs: With the cariforum countries59 (2008); with South Korea (2011); and with Central America countries (2012). Moreover, the negotiation of a Cultural Cooperation Agreement (cca) with Colombia and Peru, independent from the TA signed by the EU with the same parties in 2012, was concluded in 2011.60 A survey of the content and meaning of these Protocols follows below.61 Following the description of the institutional setting of the EU’s ccp and its underpinning declaratory principles, it is now time to look at the evolution 54 55 56

57 58 59

60 61

Commission of the European Communities, ‘Commission Staff Working Document on the External Dimension of Audiovisual Policy’ sec (2009) 1033 final. Its draft model is elaborated in: European Commission Argumentaire, ‘On the Title on Cultural Cooperation in Future EU Trade Agreements’ (11 May 2007) 1 accessed 31 January 2019. For more on the focus of this Protocol on audio-visuals, see Evangelia Psychogiopoulou, ‘The Convention on the Diversity of Cultural Expressions and the European Union. The Quest for Competence and Implementation’ in Toshiyuki Kono and Steven Van Uytsel (eds), The unesco Convention on the Diversity of Cultural Expressions. A Tale of Fragmentation in International Law (Intersentia 2012) 365, 390–93. See above, Sections 3 and 4; Christoph Beat Graber, ‘The New unesco Convention on Cultural Diversity: A Counterbalance to wto?’ (2016) 9(3) Journal of International Economic Law 553. Antonios Vlassis, ‘European Commission, Trade Agreements and Diversity of Cultural Expressions: Between Autonomy and Influence’ (2016) 31 European Journal of Communication 446, 449. This is a subgroup of the African, Caribbean, and Pacific Group of States established in 1992 and serving as the basis for dialogue with the EU. It comprises Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Suriname, Trinidad and Tobago, and the Dominican Republic. This Agreement is not yet in force. See below, Subsection 6.5.

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over time of the practice of the EU TAs with third countries at the operative level. 6

Cultural Heritage in the Operative Practice of EU TAs: Objectives and Scope of the Analysis

What follows is an empirical analysis of the TAs with third countries so far concluded by the (E)EC/EU. First, the analysis considers the content of each agreement in order to assess whether it refers to cultural heritage (and/or to culture and cultural diversity) and, if so, in what terms/meaning(s) and with what objectives and—possibly—results. Furthermore, in more general terms it makes it possible to measure whether the EU’s ‘global trade strategy’—as designed in the constitutional framework of the EU treaties and declared in the institutional strategic documents—truly corresponds to the empirical use of TAs within the ccp over the past decades and at present. In this analysis, the time factor is important as it allows to make a key distinction between agreements pre- and post-Lisbon. Putting these data together allows for a general assessment of common trends regarding the (geo)political role and use of the notion of cultural heritage (together with those of culture and cultural diversity) in these fundamental instruments of the EU’s external action, as well as to identify the possible differences between the ‘first’ and the ‘new generation’ of TAs, as explained above. The scope of the analysis covers the (E)EC/EU TAs so far concluded with third countries or group of countries and which are currently in force, i.e. 44 agreements that were publicly available at the time of this writing.62 The study focuses on all agreements that, regardless of their formal name, have some sort of economic content, in order to evaluate the connection between their economic content and their cultural heritage- or culture-related content. It does not cover those agreements which are not yet in force,63 nor those signed by the EC/EU within the wto.64 The analysed agreements are divided into five 62 See accessed 31 January 2019. 63 There is a group of agreements which have been concluded but are not yet in force: the Interim Economic Partnership Agreement with the East African Countries (eac: Burundi, Kenya, Rwanda, Tanzania, and Uganda) (end of negotiations: 16 October 2014); the fta with Singapore, initialled on 17 October 2014; and the fta with Vietnam, concluded on 1 February 2016. 64 These are about 60 agreements and decisions, see accessed 31 January 2019.

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groups, according to geographical location of the countries involved and the time of their conclusion, whether before or post-Lisbon Treaty, namely: (1) Agreements within Europe; (2) Agreements with Mediterranean Countries; (3) Agreements with Other Countries pre-Lisbon; (4) Agreements with Other Countries post-Lisbon; and (5) and according to the presence (or not) of annexed Cultural Cooperation Protocols. The full study based on the textual analysis of each agreement within each group is published together with Annexes containing relevant culture-related rules in a larger Report on Cultural Heritage in EU’s Trade Agreements, available on the webpage of the Heuright14 project.65 Here the relevant agreements in above-mentioned groups are only briefly presented, with more attention being paid to the Cultural Cooperation Protocols.66 6.1 Agreements with Third Countries within the European Region In the early 1970s, the Community began concluding agreements within the European region. In 1973, agreements were concluded with Switzerland,67 Iceland,68 and Norway;69 followed in the 1990s with Andorra (1991),70 San Marino (1992),71 Turkey (1995),72 the Faroe Islands (1997),73 and Russia (1997).74

65 . 66 See below, Subsection 6.5. 67 Accord entre la Communauté économique européenne et la Confédération suisse [1972] OJ L300/189 (signed 22 July 1972, entered into force 1 January 1973). 68 Agreement between the European Economic Community and the Republic of Iceland [1972] OJ L301/2 (signed 22 July 1972, entered into force 1 April 1973). 69 Agreement between the European Economic Community and the Kingdom of Norway [1973] OJ L171/2 (signed 14 May 1973, entered into force 1 July 1973). 70 Agreement between the European Economic Community and the Principality of Andorra [1990] OJ L374/16 (signed 28 June 1990, entered into force 1 January 1991). 71 Interim Agreement on trade and customs union between the European Economic Community and the Republic of San Marino [1992] OJ L359/14 (signed 16 December 1991, entered into force 1 December 1992), now substituted by Agreement on Cooperation and Customs Union between the European Economic Community and the Republic of San Marino [2002] OJ L84/43 (entered into force 1 April 2002). 72 Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union [1996] OJ L35/1 (signed 22 December 1995, entered into force 31 December 1995). 73 Council Decision 97/126/EC of 6 December 1996 concerning the conclusion of an agreement between the European Community, of the one part, and the Government of Denmark and the Home Government of the Faroe Islands, of the other part [1997] OJ L53/1 (signed 6 December 1996, entered into force 1 January 1997). 74 Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part [1997] OJ L327/3 (signed 24 June 1994, entered into force 1 December 1997).

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All these agreements were either Customs Unions or ftas, except the agreement with Russia, which was a Partnership and Cooperation Agreement. Then, from the beginning of the 21st century, and mostly in the post-Lisbon and post-cppdce era, Stabilization and Association Agreements (saas) were concluded with the Western Balkan countries: The Former Yugoslav Republic of Macedonia (2004),75 Albania (2006),76 Montenegro (2010),77 Serbia (2013),78 Ukraine (2014 and 2016),79 Bosnia and Herzegovina (2015),80 Kosovo (2016),81 Georgia (2016),82 and Moldova (2016).83 6.2 Agreements with Mediterranean Countries The agreements with Mediterranean countries all pre-date the Treaty of Lisbon and the cppdce. Like with the Eastern Europe-Western Balkan area, the technical instrument used by the Community is the AA with commercial measures for market regulation, as well as for broader cooperation in the social and cultural fields. These AAs are gathered under the Euro-Mediterranean Partnership, aimed at creating a free trade area between the EU and the 75 76 77 78 79 80 81 82

83

Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part [2004] OJ L84/13 (signed 9 April 2001, entered into force 1 April 2004). Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part [2009] OJ L107/166 (signed 12 June 2006, entered into force 1 April 2009). Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part [2010] OJ L108/3 (signed 15 October 2007, entered into force 1 May 2010). Stabilization and Association Agreement between the European Communities and their Member States of the one part, and the Republic of Serbia, of the other part [2013] OJ L278/16 (signed 29 April 2008, entered into force 1 September 2013). Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part [2014] OJ L161/3 (signed 21 March 2014, entered into force 1 November 2014; 1 September 2017). Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part [2015] OJ L164/2 (signed 16 June 2008, entered into force 1 June 2015). Stabilization and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part [2016] OJ L71/3 (signed 27 October 2015, entered into force 1 April 2016). Council Decision (EU) 2016/838 of 23 May 2016 on the conclusion, on behalf of the European Union, of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part [2016] OJ L141/26 (signed 27 June 2014, entered into force 1 July 2016). Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part [2014] OJ L 260/4 (signed 27 June 2014, entered into force 1 July 2016).

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Mediterranean countries.84 Instruments are in force with the following countries/authorities: The Palestinian Authority (1997),85 Tunisia (1998),86 Morocco (2000),87 Israel (2000),88 Jordan (2002),89 Lebanon (2003),90 Egypt (2004),91 and Algeria (2005).92 6.3 Agreements with Other Countries: Pre-Lisbon Agreements Within this category, there are 19 agreements currently in force. Only five out of the 19 are dated before the Lisbon- and cppdce-era, namely those with

84

85

86 87 88 89

90 91 92

See the related European Commission web page: accessed 31 January 2019. The European Neighbourhood Policy applies to the Southern Mediterranean partners. For an economic assessment, see Dimitris Kallioras and Anna Maria Pinna, ‘Trade Activity Between the EU and Its Neighbouring Countries: Trends and Potential’ (2017) 108(1) Tijdschrift voor economische en sociale geografie 36. Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organization (plo) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part [1997] OJ L187/3 (signed 24 February 1997, entered into force 1 July 1997). Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part [1998] OJ L97/2 (signed 17 July 1995, entered into force 1 March 1998). Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part [2000] OJ L70/2 (signed 26 February 1996, entered into force 1 March 2000). Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part [2000] OJ L147/3 (signed 20 November 1995, entered into force 1 June 2000). Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of ­Jordan, of the other part [2002] OJ L129/3 (signed 24 November 1997, entered into force 1 May 2002). Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part [2006] OJ L143/2 (signed 17 June 2002, entered into force 1 April 2006). Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part [2004] OJ L304/39 (signed 25 June 2001, entered into force 1 June 2004). Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part [2005] OJ L265/2 (signed 22 April 2002, entered into force 1 September 2005). The Agreements with Morocco and Tunisia are being updated. See details at , accessed 31 January 2019.

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Armenia,93 Azerbaijan,94 Chile,95 Mexico,96 and South Africa.97 This highlights the rapid increase of agreed ftas after the EU’s change of paradigm from multilateral to bi- or plurilateral negotiations in the post 2007–09 period. Agreements with Other Countries: Post-Lisbon Agreements without Cultural Protocols As regards this group of agreements, the analysis focuses on the most representative agreements only, i.e. those with Iraq (2012),98 Kazakhstan (2015),99 the Southern African Development Community (2016),100 as well as the Comprehensive Economic and Trade Agreement with Canada (ceta) (2016).101 6.4

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Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Armenia, of the other part [1999] OJ L239/3 (signed 22 April 1996, entered into force 9 September 1999). 94 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Azerbaijan, of the other part [1999] OJ L246/3 (signed 22 April 1996, entered into force 17 September 1999). 95 Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part [2002] OJ L352/3 (signed 18 November 2002, entered into force 1 March 2005). 96 Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part [2000] OJ L276/45 (signed 8 December 1997, entered into force 1 October 2000). 97 Agreement on Trade, Development and Cooperation between the European Community and its Member States, of the one part, and the Republic of South Africa, of the other part [1999] OJ L311/3 (signed 11 October 1999, entered into force 1 January 2000; 1 May 2004). The Agreements with Azerbaijan and Mexico are being updated. See details at accessed 31 January 2019. 98 Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Iraq, of the other part [2012] OJ L204/20 (signed 11 May 2012, entered into force 11 May 2012). 99 Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part [2016] OJ L29/3 (signed 21 December 2015, provisional application 1 May 2016). 100 Economic Partnership Agreement between the European Union and its Member States, of the one part, and the sadc epa States, of the other part [2016] OJ L250/3 (signed 10 June 2016, provisional application 10 October 2016). 101 [2017] OJ L11/23 (signed 30 October 2016, provisional application 21 September 2017). See Council Decision (EU) 2017/38 of 28 October 2016 on the provisional application of the Comprehensive Economic and Trade Agreement (ceta) between Canada, of the one part, and the European Union and its Member States, of the other part [2017] OJ L11/1080. See European Commission, ‘EU and Canada agree to set a date for the provisional application of the Comprehensive Economic and Trade Agreement. Statement by Mr JeanClaude Juncker, President of the European Commission and Mr Justin Trudeau, Prime

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In particular, ceta is the broader and most ambitious fta concluded so far, made up of 30 Chapters covering not only tariffs and customs matters, but also trade in goods and services, technical standards, investment, iprs, government procurement, trade and sustainable development, trade and labour, trade and the environment, regulatory cooperation, administrative cooperation, transparency, and dispute settlement. It aims at removing basically all tariffs on goods and services exchanged between the partners and creating important new market opportunities in, among others, financial services, telecommunications, energy, and maritime transport, while reserving the parties’ right to regulate their internal public affairs. This fta recognizes in its Preamble that the parties preserve the right ‘to achieve legitimate policy objectives, such as public health, safety, environment, public morals and the promotion and protection of cultural diversity’ and affirms ‘their commitments as parties to the cppdce, done at Paris on 20 October 2005’. Furthermore, it recognizes that ‘states have the right to preserve, develop and implement their cultural policies, to support their cultural industries for the purpose of strengthening the diversity of cultural expressions, and to preserve their cultural identity, including through the use of regulatory measures and financial support’. On this basis, culture is expressly excluded from the agreement (Article 28(9)). Thus, the old approach to the topic ‘trade and culture’ appears, as contained in the firstgeneration agreements, replicating the substance of the ‘cultural exception’ of gatt 1994 (Article XX(f)), or that of Article 36 tfeu, i.e. that cultural matters are national competences, despite all of the declaratory commitments of the parties with regard to the implementation of the cppdce. Agreements with Other Countries: Post-Lisbon Agreements with Cultural Cooperation Protocols As mentioned above in connection with the entry into force of the cppdce, so far Cultural Cooperation Protocols have been negotiated and attached to three agreements: the Economic Partnership Agreement (epa) with the cariforum countries (2008),102 the fta with South Korea (2010),103 and the AA, with 6.5

Minister of Canada’ (8 July 2017) Statement/17/1959 on the date of the instrument’s provisional application. 102 Economic Partnership Agreement between the cariforum States, of the one part, and the European Community and its Member States, of the other part [2008] OJ L289/3 (signed 15 October 2008, entered into force 1 November 2008). Protocol iii on Cultural Cooperation [2008] OJ L289/1938. 103 Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part [2010] OJ L127/6 (signed 6 October 2010,

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its strong trade component, between the EU and Central America (2012).104 Moreover, the negotiation of a cca with Colombia and Peru, independent from the trade agreement signed by the EU with the same parties in 2012, has been concluded in 2011, although it is not yet in force.105 The analysis of the Cultural Cooperation Protocols shows that they all follow the same model,106 more or less replicating the same provisions in form and content, although adaptations to the specific situations of the individual third countries or regions result in some differences. Importantly, their explicit aim, as set out in the Preamble, is to implement the cppdce and connect trade with culture in order to promote an equitable growth in global commerce.107 This shows that they are intended as an implementation instrument of the new global trade strategy of the axis unesco–eu.108 The Cultural Cooperation Protocols have three main common features. First, they are based on the principles and definitions of the cppdce, highlighting the dual nature of cultural goods and services; which are tradable, but not equal to normal goods and services due to their cultural value.109 Second, they contain horizontal provisions, meaning that they cover issues relevant to the promotion of cooperation in all cultural fields. These rules regard the exchange of best practices, the creation of a relevant dialogue, the training of professionals, and the efforts by each party to facilitate the entry and t­ emporary

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provisional application 1 January 2011, entered into force 1 May 2015). Protocol on Cultural Cooperation [2011] OJ L127/1418. Agreement establishing an association between the European Union and its Member States, on the one hand, and Central America on the other [2012] OJ L346/3 (signed 29 June 2006, provisional application 1 August 2013). Protocol on Cultural Cooperation [2012] OJ L346/2622. Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part [2012] OJ L354/3 (signed 26 June 2012, entered into force 1 August 2013). Agreement on Cultural Cooperation between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part accessed 31 January 2019. Basically, structure and content of their texts is articulated as follows: scope, objective, definitions; Section A: Horizontal provisions: (i) Cultural exchanges and dialogue; (ii) Artists and other Cultural Professionals and Practitioners; (iii) Technical Assistance; Section B: Sectoral Provisions: (i) Audio-visual, including Cinematographic, cooperation; (ii) Performing arts; (iii) Publications; (iv) Protection of Sites and Historic Monuments; Section C: Final provisions (entry into force). epa cariforum (n 102) Recital no 4; AA Central America (n 104) Recital no 2, less strongly; fta South Korea (n 103) Recital no 3; TA Colombia and Peru (n 105) Recital no 5. On which see above, Sections 4 and 5. epa cariforum (n 102) Recital no 3; AA Central America (n 104) Recital no 2; fta South Korea (n 103) Recital no 2; TA Colombia and Peru (n 105) Recital no 3.

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stay in their territories of artists, cultural professionals, and practitioners from the other State party.110 Third, Cultural Cooperation Protocols contain sectoral provisions addressing the specificity of some individual cultural sectors: audio-visual cooperation and co-production, cooperation in publications, performing arts, and the protection of heritage sites. In the area of sectoral provisions, the differences among the texts of the Protocols are greater with regard to audio-visual cooperation and co-production regulation, whereas on the other matters the wording of the provisions is rather similar. This shows that no detailed negotiations have really been conducted on sectoral topics other than audio-visual products, because the true interest was in the latter only.111 For instance, the eu-cariforum, the EU–Central America Protocols, and the EU–Colombia and Peru cca contain the parties’ commitment to foster negotiations of new, and the implementation of existing, co-production agreements between Member States and other third countries. They establish that the parties shall facilitate access to co-produced works into their respective markets. To do so, only the eu-cariforum Protocol grants preferential access to the EU market to co-productions, under specific conditions.112 Unlike the other Protocols and the cca, the EU–South Korea Protocol follows the criterion of reciprocity, due to the stronger audio-visual industry that South Korea has developed in comparison to the other countries involved in the above cultural instruments. Accordingly, EU–South Korea co-productions shall enjoy reciprocal access to the parties’ audio-visual support schemes by qualifying both as ‘European works’ within the meaning of the Audiovisual Media Services Directive,113 and as ‘Korean works’ within the meaning of existing regulations in Korea. The conditions for access to these benefits, however, are stricter than those established in the eu-cariforum Protocol.114

110 epa cariforum (n 102) art 3; AA Central America (n 104) art 3; fta South Korea (n 103) art 4; TA Colombia and Peru (n 105) art 5. 111 Psychogiopoulou, ‘The External Dimension’ (n 27) 77f. 112 Arts 13 and 16. 113 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services [2010] OJ L95/1. This Directive is currently open for review: see European Commission, ‘Proposal for a Directive of the European Parliament and of the Council amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services in view of changing market realities’ com (2016) 287 final. 114 fta South Korea (n 103) art 5(6).

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The other sectoral provisions of interest are those regarding cultural heritage protection. There is normally only one provision devoted to this topic, which states that: The Parties, in conformity with their respective legislation and without prejudice to the reservations included in their commitments in the other provisions of this Agreement, shall encourage, in the framework of appropriate programmes, exchanges of expertise and best practices regarding the protection of cultural heritage sites and historic monuments bearing in mind the unesco world heritage mission, including through facilitating the exchange of experts, collaboration on professional training, awareness of the local public and counselling on the protection of the historic monuments and protected spaces and on the legislation and implementation of measures related to heritage, in particular its integration into local life.115 Only the EU–Colombia and Peru cca addresses the issue of illegal trafficking in cultural objects, establishing the commitment of the parties to combat this phenomenon and facilitate the return of illegally exported cultural goods. In order to fulfil this goal, the parties shall promote cooperation between their respective agencies and may support the conclusion of specific agreements.116 It cannot go unnoticed that the wording of this provision devoted to cultural heritage is even poorer than the one found in other agreements without Cultural Cooperation Protocols, because the concept of heritage appears here to be limited to sites, i.e. to its immovable component, whereas the movable component is considered only in one Protocol, and its immaterial component does not seem to be taken into account at all, nor is the possibility of digitizing cultural heritage.117

115 fta South Korea (n 103) art 10; TA Colombia and Peru (n 105) art 10; epa cariforum (n 102) art 9; AA Central America (n 104) art 8. 116 Art 10(3). 117 For more on digitization, see AA Moldova (n 83) art 99. For the immaterial component of cultural heritage see, e.g. ema Palestinian Authority (n 85) art 57; ema Israel (n 88) art 60; ema Lebanon (n 90) art 67; ema Algeria (n 92) art 77. With respect to the dimension of Indigenous traditional knowledge, see the Interim Agreement establishing a framework for an Economic Partnership Agreement between the Eastern and Southern Africa States, on the one part, and the European Community and its Member States, on the other part [2012] OJ L111/2 and, for biodiversity and traditional knowledge, see TA Colombia and Peru (n 105) art 202.

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Textual analysis shows that Cultural Cooperation Protocols are aimed at specific tailor-made regulations for audio-visual services and products, rather than being focused on other cultural aspects. Proof of this is the lack of proper coordination in dealing with cultural aspects between the texts of the agreements and their Cultural Cooperation Protocols, together with the high standardization of the other rules of the Protocol, which are largely based on generic provisions and are weakly-binding in their wording,118 similar to those that can be found in the agreements without Cultural Cooperation Protocols and in the agreements stipulated with other regions of the world even before the proclamation of the new global trade strategy uniting trade and culture. A final critical issue regards the mechanisms adopted (or not) to guarantee the effectiveness of these Protocols. As instruments for the implementation of a new global trade strategy, they should entail dispute-resolution procedures and a system of periodic assessment of their implementation. Both these aspects have been properly dealt with only in the South Korea Protocol and the Columbia and Peru cca. The South Korea instrument provides for a strict separation between the dispute resolution procedures deriving from the TA and those pertaining to the Cultural Cooperation Protocol. A Committee on cultural cooperation, made up of senior officials from the administration of both parties with experience in cultural matters, will oversee the implementation of the Protocol and operate as a dispute resolution body for cultural disputes.119 The same mode of dispute resolution has been adopted by the cca with Colombia and Peru, which sets up a Committee on cultural cooperation with competences regarding implementation, monitoring, and dispute resolution.120 Unlike these instruments, the Protocol with Central America submits the supervision of its implementation to the Cooperation Subcommittee of the TA, which shall include officials who have competence in cultural matters and practices,121 but is silent on the issue of cultural dispute resolution. Finally, the cariforum Protocol is silent on the aspects of both implementation and dispute resolution. Beyond the formal solutions crystallized in the texts of the Protocols, the actual output of these instruments so far is poor. The Proposal for a Council decision on the extension of the entitlement to co-productions, as provided for in the Cultural Cooperation Protocol between the EU and South Korea of 118 They contain recurring are expressions like: ‘the Parties shall aim at fostering’; ‘shall endeavour to facilitate’; ‘endeavour to provide’, etc. 119 South Korea Protocol (n 103) arts 3 and 3bis. 120 Art 4. 121 Recital no 6 of the Preamble.

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11 April 2017, contains no ex-post evaluations, but presents the results of stakeholder consultations: ‘[T]he EU Domestic Advisory Board noted the lack of EU–Korea audio-visual co-productions under the conditions mentioned in the Protocol, but agreed that the Protocol has nonetheless the potential of being a useful tool’.122 In the same vein, a 2014 document examining the impact of the Economic Partnership Agreement with the cariforum countries states that modalities for dialogue have been established, and there have been initial efforts at discussion on cultural cooperation at the first Trade and Development Committee in 2011, but no follow-up efforts since 2011. Implementation of key provisions (movement of artists and co-productions) is still at a very early stage. There have been no requests by EU MSs to start negotiations for new co-productions, due to the lack of visibility of this industry in the Cariforum countries, leading to the lack of interest by the same industry in the MSs.123 It must be underlined that the scant involvement of the relevant cultural industries—which is conducive to a weak implementation of these Protocols— may derive from the scant involvement of the relevant stakeholders (culture organizations, professionals, etc.) in the negotiations of these Protocols. This results in a top-down action by the European Commission,124 disconnected from civil society, whereby any effort to create an effective foreign cultural policy may amount to wishful, and uninfluential, thinking. In addition, even the scant attention paid by the drafters of the Protocols to the implementation and effectiveness of the Protocols regards only the audio-visual sector, and does not refer to cultural heritage at all. 7

Concluding Remarks

On the surface, the textual analysis of the TAs with third countries reflects the institutional and strategic evolution over time of the EC/EU ccp vis-à-vis its relationship with cultural heritage (and culture). Yet a closer look at the analysis reveals an overall weakness in the implementation of cultural heritage considerations by the EU via its ccp, mostly because cultural heritage provisions are not aimed at cultural heritage per se but are used as instruments to reach other goals. This discrepancy, and this conclusion, can be articulated as follows: 122 com (2017) 182 final, 4. This is a decision on the second extension until 2020. 123 ‘Monitoring the Implementation & Results of the cariforum-eu epa Agreement: Final Report’ (September 2014) 49f. 124 Vlassis (n 58) 456.

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First, up until the 1990s customs unions with third countries (especially those within Europe, Subsection 6.1) never mentioned culture or cultural heritage and were based on pure trade aspects. This was in line with the absence of institutional competences for culture in the primary sources of eec law up until 1992, and with the traditional strict separation between trade and culture.125 Second, in the 1990s, i.e. after the Maastricht Treaty attributed complementary competences in culture to the EU, efforts to find a balance between trade liberalization and culture, including cultural diversity and cultural heritage considerations, began to emerge from the texts of the agreements, but in a weak fashion. For example, the Customs Union with Turkey (1995) allows state aid to promote culture and cultural heritage conservation where such aid does not adversely affect trading conditions between the two parties to an extent contrary to the common interest (the same is true of Ukraine 2014). The agreements with Georgia (2016), Ukraine (2014), and Moldova (2016), in the chapters devoted to establishment and trade in services, include rules on conditions for licensing, which state that, in establishing the rules on selection procedures, the parties my take into account legitimate public policy objectives including considerations of the preservation of cultural heritage. These state aid and licensing exceptions to protect culture and cultural heritage are in line with the pure ftas after Maastricht, including the most recent ceta with Canada (2016), all of which only minimally try to balance trade liberalization with the EU and Member States’ competences on cultural policies by leaving the liberalization of cultural goods and services out of the picture. This is nothing other than the replication—in the EU’s external commercial action—of the rules of the internal market (e.g. Article 36 tfeu and wto– gatt Article XX lit (f)), which establish (even broad) exceptions to free trade when requested by national cultural interests (exceptions for the so-called ‘national treasures’).126 This paradigm shows the weakness of the EU’s approach in the implementation of cultural considerations via TAs. Despite the new EU competences at the institutional level, culture and cultural heritage considerations seem to remain, at the practical level, a matter for Member States to decide, this being true within the internal market in the same way as it is in the external relations, in the context of the EU’s ccp. 125 See above, Section 1. 126 Francesca Fiorentini, ‘New Challenges for the Global Art Market: The Enforcement of Cultural Property Law in International Trade’ in Ann Appers and others (eds), Property Law Perspectives, vol 3 (Intersentia 2014) 189ff, 197. For more on the ‘national treasures’ exception within the internal market, see also Chapter 4 by Michele Graziadei and Barbara Pasa in this volume.

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Third, the analysis also shows that even after Lisbon and the cppdce (2007–09), when cultural services have been included within the exclusive competence of the EU ccp, ftas with strong market economies still refrain from addressing cultural (audio-visual) matters, as is the case in the ceta with Canada, which expressly excludes culture (this meaning audio-visual services) from its scope (Article 28(9)). This leaves the impression that a resilient path dependency is still governing the EU approach to trade and culture insofar as the relationships with strong economies are concerned. Fourthly, especially after the Lisbon era (but in some cases even before), through a combination of Action Plans by the European Commission emanating from both DG-Culture and DG-Trade, whenever the EC/EU stipulated an agreement with a non-Western, less developed country or a country in transition from an ex-communist past, it needed to introduce considerations on sustainable development that could help prepare the political, social, and legal context of a market economy in the third countries involved. This happened particularly in the context of the European Neighbourhood Policy and Enlargement Negotiations with the Eastern European and Western Balkan countries (Subsection 1), and within the Euro-Mediterranean Partnership (Subsection 2). This triggered recurring provisions on cultural cooperation aimed at: (i) developing political dialogue on culture for the mutual understanding between peoples and cultural exchanges between institutions, artists, and persons working in the area of culture; (ii) promoting market access for cultural goods and services of developing countries, and—if needed—declaring the need to combat illicit trafficking in cultural objects, including through the ratification by the partner-country of the relevant international instruments; (iii) providing for cultural cooperation in audio-visual services, depending on the degree of development reached by this sector in the partner-country; (iv) promoting financial and technical support for the preservation of and access to cultural heritage, sometimes including also the promotion of digitization of cultural heritage and the promotion of cultural diversity, and sometimes stressing the link between sustainable tourism, environmental protection, and cultural heritage; and (v) reinforcing the EU’s and partner-country’s participation in international organizations dealing with culture (mainly unesco). In these agreements, cultural heritage seems to have a stronger role to play. However, the standardized formulas, coupled with the absence of any impact assessment of these provisions, induce one to think that this notion is used as an instrument functional to the needs of the EU trade strategy (like preparing the context of a market economy for EU actors outside the EU borders and maintaining peace and stability at the geopolitical level). Here, again

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emerges—in the sphere of the ccp127—the use of culture, cultural heritage, and cultural diversity as a transversal conceptual (or even rhetoric) tool used by the EU institutions to reach other purposes or to better implement a variety of foreign policies. Fifthly, the functional—rather than operational—character of the references to culture, cultural heritage, or cultural diversity in the EU TAs is substantially confirmed by the general character of their provisions, as happens even in the ‘last generation’ agreements. If one searches for the meaning of the expression ‘cultural heritage’, one must read through the lines of the short provisions which mention it. The result is that most of the time it is intended in an old-fashioned way as immovable heritage, this showing a complete lack of consideration of the many different types of cultural assets that international cultural heritage law has addressed over the last decades. This shows that cultural heritage within the ccp is not considered per se, but as a locution valise used to reach other goals of the EU in the (geo)political trade competition with other strong global economic actors. Sixthly, the analysis shows that the Cultural Cooperation Protocols, as the new flagship instruments for the EU’s ccp and which are (theoretically) aimed at potentiating cultural diversity in TAs, may not be as innovative as they seem. They basically replicate—though in a more structured way—the old contents and even the wording of previous cultural cooperation provisions inserted in the pre-Lisbon and pre-cppdce agreements. The true focus of these Protocols, at the operative level, is only on the sectoral provisions on cooperation in audio-visual services. This has always been the main component of the meaning of culture in the EU’s trade policy and this feature has not undergone any substantial changes so far. These rules are almost the only ones to be truly negotiated, based on the degree of development of the audio-visual industry and the reciprocal economic interests of the contracting parties. In a symmetrical fashion, another clear proof of the true interests promoted by the Cultural Cooperation Protocols is given by the sectoral provision regarding cultural heritage protection. It is replicated in all the protocols, almost always using the same—poor—wording, which is rather generic in tone and content.128 These provisions, if compared with the pre-existing provisions of TAs with developing countries or countries in transition, provide no innovation or deepening of the level of cultural heritage protection.

127 As well as in other areas of the EU policy: see, e.g., the Chapters by Evangelia Psychogiopoulou and Ewa Manikowska in this volume. 128 See the text of these provisions above, Subsection 6.5.

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The last, final proof of the functional character of cultural heritage protection within the ccp is certainly the lack of impact assessments of the Cultural Cooperation Protocols129 which, in the same way as the periodic impact assessments of the TAs, make no mention at all of cultural heritage or cultural diversity issues. The most recent example of this can be found in the Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Implementation of Free Trade Agreements, 1 January 2016–31 December 2016.130 This document reports on, inter alia, the implementation of sustainable development provisions—mainly focusing on labour conditions and environmental protection aspects—whereas any reference to cultural heritage is completely neglected. The report concludes that: The Agreements seek to provide a useful framework for addressing issues that may arise regarding the interaction between trade, social and environmental objectives. But the work on Trade and Sustainable Development has yet to realize its full potential. (…) The implementation of tsd commitments depends on long-term engagement with trade partners and close coordination between different levels of authority responsible for policies in areas such as labour and the environment. These do not always perceive or understand the link between those policies and international trade. Engagement with civil societies organizations, including workers’ and employee’s representatives, is an important part of this process. They should play an ever greater role in monitoring implementation.131 Against this background, the Commission is currently engaged in comprehensive discussions with the European Parliament, the Council, and stakeholders with a view to improving the effectiveness of the implementation and enforcement of Trade and Sustainable Development provisions in TAs. There is a Non-paper of the Commission services of 11 July 2017 entitled ‘Trade and Sustainable Development chapters in EU Free Trade Agreements’132 which 129 See above, Subsection 6.5. 130 com (2017) 654 final. See also the accompanying Commission Staff Working Document: European Commission, ‘Country reports and info sheets on implementation of EU Free Trade Agreements’ swd (2017) 364 final accessed 31 January 2019. 131 com (2017) 654 final (n 130) 28. 132 Available at accessed 31 January 2019.

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serves as basis for discussion. It declares that it is time to revise the provisions on trade and sustainable development, but this document too lacks any reference to cultural heritage issues in this process. Maybe this weak presence of cultural heritage in the implementation of trade and sustainable development in the EU’s ccp via TAs is best reflected— at a more global level—in the UN 2030 Agenda for Sustainable Development,133 where it can be noted that cultural heritage still plays a marginal role, being mentioned only once under Goal 11.4 aimed at ‘strengthen[ing] efforts to protect and safeguard the word’s cultural and natural heritage’, which falls within the Goal 11 devoted to ‘Mak[ing] cities and human settlements inclusive, safe, resilient and sustainable’. It can be argued that the process of revision of the text of the ftas, and especially of their implementation mechanisms, should include a proper consideration of the cultural heritage provisions contained in the Cultural Cooperation Chapters or Protocols, if not simply because of the intrinsic value of cultural heritage as a crucial component of the cultural life of any society, then at least because of their potential to help implement—instrumentally—the wider comprehensive goals contained in the puzzle of sustainable development. Yet in order to follow this path at least two operational requirements need to be fulfilled, i.e. improving coordination between the relevant DGs of the European Commission, Trade and Culture,134 and more systematically engaging stakeholders and civil society in this process, together with the involvement of the European Parliament. 133 (n 44). 134 See above, Section 2 and n 28.

Chapter 9

Enhancing the Mobility of Collections in the European Union Nout van Woudenberg ‘The mobility of museum collections is a decisive factor in the dissemination of knowledge, experience, mutual inspiration and cooperation in the cultural sector’.1 1 Introduction The notion of the mobility of collections has been a key issue within the EU since 2003. The mobility of collections (the exchange of cultural and historical objects from museum’s collections in the EU) is considered to accord with the fundamental principles of the EU, such as the free movement of persons, goods, services, and capital.2 This mobility should enable the public everywhere in Europe to enjoy the common cultural heritage.3 Through the mobility of collections, European citizens can become acquainted with their own as well as other cultures and are able to pass this heritage on to future generations.4 This Chapter provides an overview of the relevant developments with respect to mobility of collections, both within the EU and on the global level. Since immunity from seizure for cultural objects on loan facilitates the mobility of collections and the unimpeded circulation of cultural goods to a great extent, thereby enhancing a broad access to heritage and possibly also giving a boost to cultural industries in the EU Member States, this Chapter pays specific attention to the concept of immunity from seizure. Immunity from seizure is understood, for the purposes of this contribution, as a legal guarantee that

1 Tanja Saarela, Finnish Minister of Culture, during the European Conference Encouraging the mobility of collections, Helsinki, 20 and 21 July 2006. 2 Ronald de Leeuw and others, Lending to Europe. Recommendations on Collection Mobility for European Museums (April 2005) 8. 3 Nout van Woudenberg, State Immunity and Cultural Objects on Loan (Brill 2012) 214. 4 Lending for Europe, ‘Collections Mobility’ accessed 21 January 2019.

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c­ ultural objects on temporary loan from another State are protected against any form of seizure during the loan period. Generally, in practice there appear to be two main situations in which some entity or person may wish to seize a cultural object that is temporarily on loan. The first is if there is an ownership dispute over a cultural object on loan (e.g. allegedly stolen or otherwise wrongfully appropriated). A claimant may attempt to file a claim in the borrowing State and try to seize the object if he believes that his chances are better, legally speaking, in the State where the cultural object is temporarily on loan than they are in the State where the object is normally located. The second situation arises if a claimant (an individual or a company) asserts that the owner of the cultural object on loan owes a debt (not necessarily related to the object itself) to the claimant, and the claimant has doubts regarding the possibility of enforcing a judgment or arbitration award in the State of residence of the owner. But there may also be other situations. For instance, in the context of a criminal investigation law enforcement officers may wish to seize certain cultural objects in order to preserve evidence. Or it may be the case that a third party, such as a carrier handling the cultural object(s) in connection with an exhibition could have a lien on the object until it is paid for the services provided.5 A good illustration of the first category concerns the 1909 painting by Matisse entitled The Dance. In 1918, the painting (together with many other cultural objects) was taken by a decree from Lenin. No compensation was offered to its owner, Sergei Shchukin, one of the main art collectors in Russia at the time. Over the last 25 years this painting was exhibited in Paris, Dusseldorf, Rome, London, and Amsterdam. The heirs of Shchukin (first his daughter and, after her death, his grandson) have tried several times to seize the artwork. According to the heirs, their primary goal was to draw attention to the way Shchukin’s property had been expropriated by the Russian Communist regime in 1918. In their view, the Russian Federation should conclude an agreement that reasonably compensates them and pays a percentage of the material benefits that have accrued to the State from the exploitation of these expropriated cultural objects.6 So far, the heirs have not been successful in their seizure attempts, but they have succeeded in creating some unrest in the international museum world. The second category of cases is much less straightforward than the first one, as this category has nothing to do with an ownership dispute, nor necessarily even with the cultural object concerned. The Noga case illustrates this type of 5 Van Woudenberg (n 3) 6–7. 6 Ibid 282–85, 327–28.

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situation, i.e. where someone may wish to seize cultural objects temporarily on loan to secure an (alleged) unpaid debt. In November 2005, the Swiss trading company Noga tried to seize a collection of 54 French masterpieces, including paintings by Renoir, Monet, Manet, Degas, Van Gogh, and Gauguin, belonging to the Pushkin Museum in Moscow. These artworks had been exhibited from June to November 2005 in Martigny, Switzerland. Noga claimed that the ­Russian Federation owed it hundreds of millions of dollars in alleged debts and unpaid compensation, referring to a 1997 Swedish Arbitration Institute ruling that the Russian government had to pay Noga US$63 million. In order to execute on that ruling, Noga obtained an order from the Swiss court in the canton of Wallis (where the exhibition took place) authorizing the seizure. However, the seizure was lifted by the Swiss Federal Council, which took the view that the seizure was not allowed under international law.7 Section 2 of this Chapter provides a historical overview of the deliberations and results under auspices of the EU with respect to the mobility of collections, with a special focus on the immunity from seizure of cultural objects on loan. In recent years, important developments and events concerning this issue are worthy of mention, such as the publication of a Handbook to encourage the mobility of collections (see below), as well as a Toolkit (also see below) to provide museum professionals with useful guidelines, checklists, and links to practical information that can be used in the process of lending and borrowing. Recently, the focus has shifted somewhat from the mobility of collections to measures aimed at countering the illegal import and trafficking of cultural goods from outside the EU. Section 3 takes a stand with respect to the latest European developments on immunity from seizure for cultural objects on loan. It focuses on developments in Hungary, Poland, and the Netherlands, as well as within the Council of Europe, as a result of an initiative taken by the Czech Republic and Austria in regard to cultural State property on loan. In order to offer a comprehensive backdrop to this analysis, the section starts with a brief review of the state of affairs with regard to the most relevant global instrument, the 2004 UN Convention on Jurisdictional Immunities of States and Their Property. The above-mentioned UN treaty only regards State property, which means that only cultural State property is included. However, privately-owned cultural objects can also be very important for international exhibitions, education, and research. Moreover, the ownership of an increasing number of cultural objects is being transferred from State-owned to being owned by private foundations. For this reason, the International Law Association decided to draft a 7 Ibid 310–14.

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Convention on immunity from seizure and suit, which covers not only cultural State property but also privately-owned property. An overview of the preparation of this Draft Convention and its current status is set forth in Section 4. Finally, Section 5 offers some conclusions drawn from the findings in ­Sections 2, 3, and 4. 2

Mobility of Collections in the EU: A Short Historical Overview8

2.1 Work Plan for Culture 2005–2006 During the Dutch Presidency of the EU in the second half of 2004, the Netherlands proposed that the issue of mobility of collections be taken up in the Work Plan for Culture for 2005–2006. Consequently, the EU Council of Ministers adopted Resolution 13839/04 on the Work Plan for Culture 2005–2006, which focused on five priority areas.9 One of these areas was the mobility of works of art, collections, and exhibitions. The aims and measures set out in these areas were intended to improve cultural cooperation and to remove the main obstacles to such cooperation.10 Within this context, the EU Council Presidency set up a working group of museum experts, under the chairmanship of Ronald de Leeuw, the then-Director General of the Rijksmuseum in Amsterdam. Its mandate was ‘to prepare practical recommendations for improving the mobility of museum collections, with a special emphasis on questions related to insurance and indemnity, standards and guidelines and the role of the registrar’.11 The working group produced Lending to Europe: Recommendations on Collection Mobility for European Museums in the spring of 2005.12 As well as the initial mandate, other subjects related to collection mobility were discussed in the

8

See also Lending for Europe, ‘History of Collections Mobility’ accessed 21 January 2019. 9 These priority areas were: the Lisbon strategy (contribution of creativity and cultural industries to European growth and cohesion); coordination of digitization (providing citizens with unrestricted, sustainable, and reliable digital access to Europe’s cultural heritage; supporting the move towards a digital Europe with rapid sharing of cultural knowledge and thus contributing to the establishment of a knowledge economy); a cultural Portal with a view to improving information on the mobility of artists, mobility of works, and intercultural dialogue; mobility of works of art, collections, and exhibitions; mobility of persons; solving obstacles caused by taxation of mobile artists. 10 De Leeuw and others (n 2) 9. 11 Ibid. 12 Van Woudenberg (n 3) 215.

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working group, including immunity from seizure.13 The problems around the issue of immunity from seizure were considered by the group to be a major obstacle to the mobility of museum collections on a wider scale.14 After all, the possibility of seizure might lead to the reluctance of lenders to send their cultural objects into a foreign jurisdiction. It also creates insecurity for borrowing museums: if during the exhibition the blockbuster pieces are seized, this may not only have a negative impact on the exhibition and the good name of the museum concerned, it also may lead to empty spaces in the exhibition venue due to the removal of works of art (in case of factual seizure along with the legal seizure). During the Austrian Presidency in the first half of 2006, a team representing six successive presidencies (2004–07)15 met in Vienna to draw up an action plan concerning loans for exhibitions between museums in the EU. The draft Action Plan for the EU Promotion of Museum Collections’ Mobility and Loan Standards was discussed during the conference titled ‘Encouraging the Mobility of Collections’, held in Helsinki on 21 July 2006 and endorsed by the EU Cultural Affairs Committee on 17 October 2006.16 The aim of the Action Plan was ‘to facilitate the access to Europe’s cultural heritage, make it available for all citizens and find new ways to improve co-operation, trust and good practice 13

14 15

16

In the report Lending to Europe (n 2), immunity from seizure was described as follows: ‘Immunity from seizure involves the legal protection that one State grants to an object on loan in its territory from another State within the context of a temporary exhibition. The purpose is to secure the object against any legal claims by former owners or claimants who dispute the legitimacy of the current ownership. The claimant takes advantage of the fact that the object is temporarily in a different country with a different set of laws and requests its seizure. The protection offered by immunity from seizure is granted for a specific period, i.e. the period of exhibition, extended by the number of days necessary to prepare the exhibition’. In State Immunity and Cultural Objects on Loan (n 3), the following definition of immunity from seizure is used: ‘The legal guarantee that cultural objects on temporary loan from another State will be protected against any form of seizure during the loan period’. That definition is based on the description of immunity from seizure in the Action Plan for the EU Promotion of Museum Collections’ Mobility and Loan Standards (Helsinki University Press 2006) (see n 16). Van Woudenberg (n 3) 215. The Netherlands, the United Kingdom, Luxembourg, Austria, Finland, and Germany. During the UK Presidency in the second half of 2005, the Department for Culture, Media and Sport of the United Kingdom hosted the museum conference ‘Increasing the Mobility of Collections’. The conference was held on 27 and 28 November 2005 and was organized by the UK Museums Association. The Action Plan can be found at accessed 21 January 2019.

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for lending between museums’.17 Furthermore, six working groups were established to encourage the implementation of the Action Plan,18 including one which focused on the issue of immunity from seizure.19 2.2 Work Plan for Culture 2008–2010 The mobility of collections was again listed in the EU Work Plan for Culture 2008–2010. On 16 November 2007, the Council of the EU adopted Resolution 2007/C 287/01 on a European Agenda for Culture (Council Resolution),20 endorsing priority areas of action for the period 2008–10 in the context of the strategic objectives of the European Agenda for Culture, followed by Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the Work Plan for Culture 2008– 2010.21 This Council Resolution endorsed the promotion of cultural diversity and intercultural dialogue,22 to be specified by, inter alia, ‘promoting cultural ­heritage, namely by facilitating the mobility of collections and f­ostering the process of digitization, with a view to improving public access to different forms of cultural and linguistic expressions’.23 The Annex to the Council Resolution i­dentified the priority areas for action for the period 2008–10, with the second priority being on ‘promoting access to culture, in particular through the promotion of cultural heritage, multilingualism, digitalization, cultural tourism, synergies with education, especially art education, and greater mobility of collections’.24 17 18

19 20 21 22 23 24

Ibid 4. These working groups were: loan administration and loan standards; State indemnity schemes; valuation, self-insurance, and non-insurance of cultural objects; immunity from seizure; loan fees and long-term loans; building up trust and networking. There was a seventh theme, being digitization. That area was promoted by the National Representatives Group for the EU coordination of the digitization of cultural and scientific content. Van Woudenberg (n 3) 216. [2007] OJ C287/1. [2008] OJ C143/9. Res 2007/C 287/01 (n 20) para 2(a). Ibid para 3A, second dash. The other four were: ‘– improving the conditions for the mobility of artists and other professionals in the cultural field, (…) – developing data, statistics and methodologies in the cultural sector and improving their comparability, – maximising the potential of cultural and creative industries, in particular that of smes [Small and Medium Enterprises], – promoting and implementing the Unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions’. See also: Van Woudenberg (n 3) 217.

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2.2.1 omc Expert Working Group on the Mobility of Collections The Council Resolution also introduced the Open Method of Coordination (omc) as an overall new way of cooperation in the field of culture, which would ‘provide a flexible and non-binding framework for structuring cooperation around the strategic objectives of the European Agenda for Culture and fostering exchanges of best practices’.25 As a consequence, an omc Expert Working Group on the Mobility of Collections was set up, comprised of experts from the EU Member States. It was one of the four omc groups that were established.26 The Expert Working Group on the Mobility of Collections, which had its first meeting in Brussels on 12 November 2008, consisted of five subgroups: State indemnity and shared liability agreements; long-term loans; prevention of theft and illicit trafficking; mobility of museum professionals/exchange of expertise; and immunity from seizure. The latter subgroup consisted of 13 Member States.27 It prepared a questionnaire and circulated it to all EU Member States in order to gain an insight into the existing regulations regarding immunity from seizure for foreign cultural objects temporarily borrowed for a public exhibition, as well as possible amendments and approaches thereto, and to investigate whether immunity from seizure legislation was planned in the Member States where such legislation was not yet existent.28 In June 2010, the recommendations of all the subgroups were bundled in the ‘Final Report and Recommendations to the Cultural Affairs Committee on Improving the Means of Increasing the Mobility of Collections’ by the omc Expert Working Group on the Mobility of Collections.29 One of the main conclusions that the subgroup on ‘immunity from seizure’ drew was that:

25 26 27

28 29

Res 2007/C 287/01 (n 20) para 9. The other omc groups addressed the links between culture and education; the mobility of artists and other cultural professionals; and the potential of cultural and creative industries and museum activities. Austria, Belgium, Finland, France, Germany, Greece, Hungary, the Netherlands, Poland, Portugal, Romania, Spain, and the United Kingdom. All the EU Member States were represented in the overall omc Expert Working Group on the Mobility of Collections. However, it was deliberately agreed that not all the Member States would actively take part in all the five subgroups. Van Woudenberg (n 3) 219. omc Expert Working Group on the Mobility of Collections, ‘Final Report and Recommendations to the Cultural Affairs Committee on Improving the Means of Increasing the Mobility of Collections’ (June 2010) accessed 21 ­ January 2019.

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there is no single, best or preferred way to address ‘immunity from seizure’, as the following approaches have been adopted by EU Member States (sometimes in combination):30 – immunity from seizure legislation, specifically addressing cultural objects; – specifically addressing cultural objects of foreign States; – specifically addressing cultural objects of both foreign States and private individuals; – general immunity from seizure legislation, not specifically addressing cultural objects, but focusing on property of foreign States, intended for official/public use; – considering cultural objects of foreign States, temporarily on loan, immune from seizure on the basis of customary international law; – the issue of immunity from seizure guarantees in the form of ‘letters of comfort’. The subgroup concluded that different States followed different approaches and that the ‘Member States should assess which approach would fit them best according to their different legal systems’.31 It also stated that ‘it is not recommended that the [European] Commission, or an expert group falling under the auspices of the EC, should attempt to prepare model legislation, or to determine any standardized content of immunity from seizure legislation’.32 It recommended, however, that the European Commission should provide a platform for sharing and exchanging best practices.33 The omc Expert Working Group on the Mobility of Collections recommended, as a whole, that ‘the European Council (Cultural Affairs Committee – cac) and the European Commission now pursue and develop, in the near ­future, their efforts in these areas, for example through a standing committee of experts on Mobility of collections’.34 2.2.2 Handbook Encouraging Collections Mobility During the period of the Work Plan 2008–2010 a Handbook, entitled Encouraging Collections Mobility. A Way Forward for Museums in Europe,35 was launched 30 Ibid 20, recommendation 14. 31 Ibid. 32 Ibid. 33 Ibid 22, recommendation 17. 34 Ibid 4. 35 Susanna Pettersson and others (eds), Encouraging Collections Mobility. A Way Forward for Museums in Europe (Finnish National Gallery 2010).

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at the annual meeting of the Network of European Museums Organizations (nemo) in September 2010. Being a result of a European-funded project ­(Collections Mobility 2.0, Lending for Europe 21st Century), this Handbook offers some welcomed recommendations for working together and sharing collections, promoting the use of collections for the enjoyment of all who wish to have access to cultural heritage in Europe. On the Collections Mobility website of Lending for Europe, one can read: Specific collections mobility issues have also been addressed in this book. These issues include immunity from seizure, insurances, non-insurances and state indemnities, long-term loans, loan fees, and digitisation. It is also pointed out that standards, trust, and good networking form the basis for all co-operation. The material is completed by a practical guide to the Collections Mobility process: it pulls together current good practice in developing loans procedures and sets it out in a clear format.36 The Handbook, which has proven to be a useful tool for practitioners, contains various topics, including the history of collecting and current strategies; museum objects and active collections; the way forward to collections mobility, with a legal exploration on immunity from seizure; as well as a practical guide to collections mobility.37 In addition to the Handbook, it is worth noting the work of nemo, even though it is an independent network of museums located throughout the Council of Europe and not only the EU.38 Based on the concept that ‘[t]hrough the mobility of collections people can become acquainted with, appreciate, enjoy and understand their own and other cultures, thus enabling them to pass on this heritage to future generations’,39 nemo has developed European guidelines to increase the mobility of collections through the development of a standardized loan agreement that can be used by all kinds of museums in Europe. The standardized loan agreement contains information about the lender and the borrower, the objects which are to be lent, the details of the exhibition, data on insurance, and cost figures.40 36 37

See accessed 21 January 2019. The Handbook can be downloaded for free from the Lending for Europe website: accessed 21 January 2019. 38 The nemo website has a specific part on this: accessed 21 January 2019. 39 Ibid. 40 The standardized loan agreement can be downloaded here:

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2.3 Work Plan for Culture 2011–2014 The Work Plan for Culture 2011–2014, adopted by the European Council during its meeting on 18–19 November 2010,41 again refers to the mobility of collections. It contains six priority areas, with Priority area D entitled ‘Cultural heritage, including mobility of collections’.42 EU Member States are commissioned to examine ways and means to simplify the process of lending and borrowing. In the omc Working Group of Member State experts, these experts had to identify good practices on all relevant issues in the context of the mobility of collections. The target outputs envisaged for the years 2011–12 were: a toolkit (including good practice guidelines, templates, and ‘user guides’) on state indemnity provisions, as well as a good practice manual for national authorities on other relevant issues.43 The omc Working Group addressed the following topics: improving and expanding indemnity schemes and shared liability agreements at the EU Member State level; improving valuation processes for works of art and cultural goods and the systems/mechanisms of valuation for the purposes of indemnity (and shared liability); simplifying and improving the process of risk assessment when lending and borrowing; and making transport procedures more reliable and less expensive.44 In September 2012, the omc Working Group produced A Report on Practical Ways to Reduce the Cost of Lending and Borrowing of Cultural Objects among Member States of the European Union.45 This Report accessed 21 January 2019. It states that ‘[t]hrough the development of such standardized loan agreement, that is applicable by all kinds of museums, nemo wants to encourage a widespread collaboration between museums working towards a common cultural aim and to increase the mobility of works of arts in Europe’. nemo also refers to the Resolution on indemnity by the Bizot Group (a group of museum directors of some of the world’s largest museums, named after its founder Irene Bizot), released in 2009, and to the revised loan guidelines by the Bizot Group, also published in 2009, see accessed 21 January 2019. 41 The Work Plan can be found at accessed 21 January 2019. 42 The other priority areas were: Priority area A: Cultural Diversity, Intercultural Dialogue and Accessible and Inclusive Culture; Priority area B: Cultural and Creative Industries; Priority area C: Skills and Mobility; Priority area E: Culture in External Relations, and Priority area F: Culture Statistics. 43 Work Plan for Culture (n 41) 15. 44 See accessed 21 January 2019. 45 accessed 21 January 2019. The Report consists of several subjects: State indemnity (improving and expanding indemnity schemes); shared liability (shared liability agreements at the EU Member State level); valuations (improving valuation ­processes

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was a follow-up of the report issued in June 2010.46 The Report contains recommendations to European institutions, to EU Member States, to museum professionals, and recommendations directed to all of the aforementioned levels. One of the key recommendations is the recommendation to the EU institutions ‘[t]o consider establishing a standing committee of Member State experts on the mobility of collections in order to monitor the implementation of the recommendations of this report and the use of the toolkit and to find ways to keep the information up to date’.47 Besides the Report, the omc Working Group also produced a Toolkit,48 which ‘provides the museum professional with useful guidelines, checklists, factsheets and links to practical information that can be used in the process of lending and borrowing’ and ‘also proposes guidelines for Member States’ governments on how to promote collection mobility (and significantly reduce overall costs) by preparing the outlines of an indemnity scheme and a checklist of what should be contained in the guidelines relating to that scheme’.49 The issue of immunity from seizure was no longer explicitly mentioned in the Work Plan for Culture 2011–2014 because—as stated above—in June 2010 the omc Expert Working Group and its subgroup on the topic were of the opinion that, besides providing a platform for sharing and exchanging best practices, there was no concrete role for the EU to fulfil. Pursuant to the Work Plan for Culture 2011–2014, the European Commission commissioned a study on the valuation of works of art for lending and borrowing purposes. The study, carried out in the years 2011–12: aims to assist the European Commission and EU Member States by providing updated knowledge on the methods for the valuation of works of

46 47 48

49

for works of art and cultural goods and the systems/mechanisms of valuation for the purposes of indemnity and shared liability); risk assessment (simplifying and improving the process of risk assessment when lending and borrowing); and reducing the costs of transport (making transport procedures more reliable and less expensive). For that report, see n 29. Report on Practical Ways (n 45) 9. omc Working Group of EU Member States’ Experts on the Mobility of Collections, Toolkit on Practical Ways to Reduce the Cost of Lending and Borrowing of Cultural Objects among Member States of the European Union (September 2012) accessed 21 January 2019. The Toolkit includes Guidelines for the introduction of State Indemnity Schemes; Guidelines for shared liability; a Valuation Checklist; Guidelines for Risk Assessment (in the context of state indemnity); Best Practices in Risk Assessment; Best Practices in reducing transport costs; and a Glossary. Ibid 5.

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art in Europe and considering measures to facilitate the mobility of collections, through a survey of museums, governments and curators. The focus of the research lies on the financial valuation of works of art and how valuation processes are undertaken in the practice of EU Member States.50 The European Expert Network on Culture (eenc) Report on Valuation of Works of Art for Lending and Borrowing Purposes was published in November 2012.51 It contains a short description of how financial valuation takes place in the broader context of the valuation of cultural goods or works of art, refers to questionnaires and interviews with museums, governments, and curators, and presents recommendations at both the policy and management levels. Moreover, a sample methodology for assessing the value of different types of collections, as well as a glossary of key terms, are also included.52 2.4 Work Plan for Culture 2015–2018 On 25 November 2014, the European Council adopted the Work Plan for Culture 2015–2018.53 Around 20 concrete actions were to be pursued along the following priorities: A. Accessible and inclusive culture; B. Cultural heritage; C. Cultural and creative sectors: creative economy and innovation; and D. Promotion of cultural diversity, culture in EU external relations, and mobility.54 A stocktaking meeting on the mobility of collections was also planned. A midterm review of the Work Plan was to be prepared in 2016, which subsequently was to be evaluated and revised based on the review’s findings and discussions among the Member States.55 However, as of the time of writing this Chapter, this mid-term review has not yet taken place. 50

See the website of Interarts: accessed 21 January 2019. Between the end of 2010 and Spring 2015, Interarts and Culture Action Europe coordinated the European Expert Network on Culture, on behalf of the Directorate General for Education and Culture of the European Union. 51 The Report can be found here: accessed 21 January 2019. 52 Ibid. 53 ceu, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on a Work Plan for Culture (2015–2018)’ [2014] OJ C463/4. 54 See European Commission, ‘New Work Plan for Culture Adopted’ accessed 21 January 2019. The theme of mobility of collections can be found under part D3 of the Work Plan: intercultural dialogue and mobility. 55 European Commission, ‘Strategic Framework – European Agenda for Culture’ accessed 21 January 2019.

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During this period, the focus of attention has shifted somewhat from collection mobility to the regulation of imports of cultural objects, a topic also mentioned in the Work Plan for Culture, under the aforementioned priority area D3.56 On 13 July 2017 the European Commission adopted a proposal for a Regulation to counter the illegal import and trafficking of cultural goods into the EU,57 in relation to which the European Commission noted their link ‘to terrorist financing and other criminal activity’.58 This piece of legislation will complete the current legal framework and provide for unified rules and standards of control at the EU borders at the moment of entry of cultural goods onto the EU territory. The Regulation proposal has now been submitted to the European Parliament and the Council of the EU, with the law due to enter into force in 2019. In order for the customs authorities to apply the law, certain secondary legislation will need to be drawn up to establish harmonized license applications and importer statements.59 3

Immunity from Seizure as a Vehicle for the Mobility of Collections in Europe

Immunity from seizure is of importance to a lot of European States, as it supports the mobility of collections by facilitating the international lending and borrowing of cultural objects and thus helping the people to get acquainted with each other’s cultural norms, history, and heritage. Reference was made in Section 2.2.1 to the omc Expert Working Group on the Mobility of Collections and its subgroup on ‘immunity from seizure’. However, when it comes to immunity from seizure for cultural objects on loan, more has to be said with regard to the latest European developments. In order to put the European developments in context, the key international instrument (although not yet entered into force) is presented first.

56 57 58 59

While the topic mobility of collections is mentioned as topic D3c, topic D3d regards the illicit trafficking of cultural objects, including EU import rules for cultural objects illegally exported from third countries. com (2017) 375 final, 2017/0158 (cod). European Commission, ‘Security Union: Cracking down on the illegal import of cultural goods used to finance terrorism’ (13 July 2017) Press Release IP/17/1932 accessed 21 January 2019. See European Commission, ‘Questions and Answers on the illegal import of cultural goods used to finance terrorism’ (13 July 2017) Press Release memo/17/1954 accessed 21 January 2019.

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3.1 2004 UN Convention on Jurisdictional Immunities of States and their Property On 2 December 2004, the UN General Assembly adopted without a vote the UN Convention on Jurisdictional Immunities of States and Their Property (2004 UN Convention).60 Although it has not yet entered into force, the number of States Parties is slowly but steadily growing61 and has reached 22, including several European States,62 whereas 30 States Parties are needed for the Convention to enter into force. The preamble expressly refers to State immunity as a principle of customary international law, adding that the developments in State practice have been taken into account. According to Article 5, a State enjoys immunity, with respect to itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the convention. Subsequently, the Convention enumerates the proceedings in which State immunity cannot be invoked.63 Part iv of the Convention deals with State immunity from measures of constraint in connection with proceedings before a court. Article 18, regarding State immunity from pre-judgment measures of constraint, provides that no pre-judgment measures of constraint against the property of a State may be taken in connection with a proceeding before the court of another State, unless and except to the extent that the State has expressly consented to the taking of such measures, or the State has allocated or earmarked the property for the satisfaction of the claim which is the object of that proceeding. With regard to post-judgment measures of constraint, Article 19 has the same content as Article 18 with regard to pre-judgment measures of constraint, but adds an extra exception: no post-judgment measures of constraint against the property of a State may be taken unless it has been established that the property is specifically in use, or intended for use, by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.64 It is thus important to determine whether the property 60 61 62

63 64

(Adopted 2 December 2004, not yet in force) unga Res A/Res/59/38. Van Woudenberg (n 3) 59–87. As of January 2019. Since the publication of my book in 2012, when the Convention counted 13 States Parties, the following new European States Parties can be welcomed: Finland, Italy, Latvia, Liechtenstein, Slovakia, and the Czech Republic. Iraq and Equatorial Guinea also acceded to the Convention and Mexico ratified it since then. Van Woudenberg (n 3) 102. Ibid 103.

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in question serves a commercial purpose (in which case no immunity applies), or whether the property has a sovereign, governmental purpose (which makes the property entitled to immunity). Part iv of the Convention also contains a provision which lists the categories of State property which shall not be considered as property specifically in use, or intended for use, by the State for other than government non-­commercial purposes. Consequently, this type of property is immune from seizure, unless the State to which the property belongs has explicitly consented to the taking of such measures, or has allocated or earmarked the property for the satisfaction of the claim that is the object of the proceeding. The relevant article, Article 21, provides protection for certain specific categories of property by excluding them from any presumption or implication of consent to measures of constraint. The fifth category concerns ‘property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale’.65 Without much discussion, dispute, or counterpoise, the International Law Commission agreed to adopt this article with the reference to property forming part of an exhibition.66 The fact that cultural objects can be important for the identity of a State and may help to understand the culture, history, and development of a State, as well as the fact that cultural objects can be used as a means in the promotion of international cultural exchanges and the strengthening of bilateral or multilateral diplomatic relations, makes it fair to consider these cultural objects on loan as a category of protected State property.67 Declaration on Jurisdictional Immunities of State-Owned Cultural Property Inasmuch as the 2004 UN Convention has not yet entered into force, other developments should be noted. The so-called Diag Human case prompted the authorities of Austria and the Czech Republic to launch an initiative aimed at developing a declaration in support of the recognition of the customary nature of the 2004 UN Convention in order to guarantee the immunity of State cultural property on loan. In May 2011, following a request by Diag Human (a Liechtenstein incorporated company trading in blood plasma), a Viennese District Court ordered the seizure of three cultural objects owned by the Czech Republic to be lent to an exhibition in the Austrian National Gallery Belvedere in Vienna. The objects concerned were a painting by the Czech artist Emil Filla, 3.2

65 66 67

State-owned exhibits for industrial or commercial purposes are not covered by this subparagraph. Van Woudenberg (n 3) 103–04. Ibid 104.

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Two Women (coming from the Moravian Gallery in Brno); a painting by fellow Czech national Vincenc Benes, The Dancer; and a sculpture by the Czech artist Otto Gutfreund, called The Embrace (both coming from the National Gallery in Prague). The Belvedere was appointed as the court’s custodian of the objects.68 On 21 June 2011, the Viennese District Court ordered that the seizure had to be lifted, on the basis of the generally acknowledged rules of international law.69 However, as a result of this case the Czech Republic became very hesitant to loan works of art to other States, as it feared that Diag Human may elsewhere continue its attempts to seize any cultural object owned by the Czech Republic.70 Therefore the Czech Republic wanted to minimize future risks of seizure and launched the above-mentioned initiative together with Austria, as well as the Netherlands.71 A declaration was presented at the 46th meeting of the cahdi, the Committee of Legal Advisers on Public International Law of the Council of Europe.72 On this occasion, it was recalled that this Declaration had been elaborated as a legally non-binding document expressing a common understanding on opinio juris of the basic rule that certain kinds of State property (cultural property on exhibition) enjoyed jurisdictional immunity.73 68

The background of this case was as follows: In the beginning of the 1990s the company Diag Human wanted to trade in blood plasma from Czech transfusion centres, but stated that it failed to do so after the then-Czech Minister of Health referred to the company in seemingly negative terms. Diag Human started a legal case, asking for compensation from the Czech Republic. In August 2008, Diag Human received an arbitral award, ordering the Czech Republic to pay a sum of almost 9 billion Czech crowns to the company. The Czech Republic appealed against this ruling, but there were differences of view on the question whether the appeal was signed by duly authorized Czech officials. According to Diag Human, the arbitral decision became final and effective, but the Czech authorities were of the opinion that the legal case was still pending. 69 For more on the Diag Human case, see Van Woudenberg (n 3) 302–05. Although the 2004 UN Convention on Jurisdictional Immunities of States and Their Property had not entered into force, the court was of the opinion that the contents of the convention provided sufficient indications of State practice to assume that a rule of customary international law exists, immunizing cultural State property on loan. On 16 April 2013 (after the publication of my book), the Supreme Court of Austria delivered a judgment stating that indeed the arbitral award had not yet become binding on the parties within the meaning of article v(1)(e) of the New York Convention (United Nations Conference on International Commercial Arbitration on 10 June 1958). 70 In this regard, see also n 95. During the course of the case, Diag Human stated that it also intended to issue seizure requests in other States. 71 The Austrian government supported the Czech Republic in its court case. The Austrian Ministry of Foreign Affairs sent a letter, originally from the Austrian Ministry of Justice, to the Court, stating that under customary international law, the Czech Republic was immune from seizure with regard to its cultural objects. 72 Strasbourg, 16–17 September 2013. 73 See cahdi, ‘Declaration on Jurisdictional Immunities of State Owned Cultural Property’ accessed 21 January 2019.

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The signatories of the declaration expressed their desire to strengthen international cooperation in the field of culture, their recognition that the exchange of cultural property significantly contributes to the mutual understanding of nations, and declared their resolve to promote the mobility of State-owned cultural property through temporary cross border loans for public display. The signatories felt the need to reaffirm the international legal framework applicable to State-owned cultural property on public display in another State on the basis of the customary international law on State immunity, as codified in the 2004 UN Convention. The substantive part of the declaration reads as follows: In accordance with customary international law as codified in the Convention – property of a State forming part of its cultural heritage or its archives or forming part of an exhibition of objects of scientific, cultural or historical interest, and not placed or intended to be placed on sale cannot be subject to any measure of constraint, such as attachment, arrest or execution, in another State; and – therefore, such measures of constraint can only be taken if immunity is expressly waived for a clearly specified property by the competent national authorities of the State owning the property or if the property has been allocated or earmarked by that State for the satisfaction of the claim which is the object of the proceeding concerned. So far, this declaration has not only been signed by Austria, the Czech Republic, and the Netherlands, but also by Latvia, Slovakia, Georgia, Romania, Estonia, Albania, the French Republic, Armenia, Belgium, Belarus, Luxembourg, Ireland, the Russian Federation, Hungary, Finland, Portugal, and the Holy See (listed in order of signing).74 Description of the Situation in the Netherlands Concerning Immunity from Seizure for Cultural Objects on Loan Some recent developments in the Netherlands justify dedicating a separate section to the situation there.75 It is established judicial practice to treat 3.3

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Special thanks to Jan Holovský, Ministry of Culture of the Czech Republic, Department for the Protection of Movable Cultural Heritage, Museums and Galleries. Several other States have indicated that they are also considering signing the declaration. The situation in the Netherlands and its view on customary law is described in Chapter 8 of my book State Immunity and Cultural Objects on Loan (n 3) 253–80.

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the cultural goods of a foreign State that are in the Netherlands temporarily for an exhibition as goods intended for public service. The Netherlands has ­repeatedly expressed the opinion that, based on customary international law, cultural objects belonging to foreign States and on temporary loan in the Netherlands are to be considered as property intended for public service, as long as the objects do not clearly have a commercial goal (e. are offered for sale). As such, these objects are immune from seizure. The State of the Netherlands declared before a court in the Netherlands that even though the 2004 UN Convention has not yet entered into force, the provisions included therein concerning immunity from execution offer an important guideline in answering the question whether immunity from execution should be enjoyed.76 Articles 18 to 21 of the 2004 UN Convention show that in principle measures of constraint are not allowed where State property is concerned, save for certain exceptions. On 30 September 2016,77 and again on 14 October 2016,78 the Supreme Court of the Netherlands issued orders along these same lines. Since the beginning of the 21st century, the Netherlands issues so-called ‘Guarantor’s Declarations’ with regard to immunity from seizure for cultural objects on loan, which are actually ‘letters of comfort’.79 From a legal point of view, such a ‘letter of comfort’ cannot be considered as ‘hard law’, in contrast to the Dutch immunity from seizure legislation, but merely as a reassurance to the lender and a commitment that, in case an attempt to seize the objects would be made, the authorities of the borrowing State (in this case, the ­Netherlands) will do everything in their power to prevent or stop that seizure. Approximately 40 such declarations are issued by the Dutch Ministry of 76 77 78 79

Written defence of the Dutch State at the Supreme Court, 20 November 2009, para 3.3.2 (on file with the author), in: Llanos Oil Exploration v the Republic of Colombia, the State of the Netherlands and Ecopetrol S.A., Supreme Court, NJ 2010, 507. Morning Star International Corporation v Republic of Gabon and the State of the Netherlands ECLI:NL:HR:2016:2236. State of the Netherlands v Servaas ECLI:NL:HR:2016:2354. Van Woudenberg (n 3) 277–78 for the text of these letters of comfort. Each time Dutch authorities issue a Guarantor’s Declaration, an explanatory letter is attached to this declaration. In that letter, it is stated among other things: ‘It is established judicial practice to treat cultural objects of a foreign State that are in the Netherlands temporarily for an exhibition as goods intended for public service’. Support for this practice can be found in international law. Art 21 of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property explicitly states that ‘property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale’ should be considered goods intended for public service. When the Convention was drafted, there was no controversy whatsoever among the negotiating Parties concerning this matter. Consequently, it may be explicitly assumed that this is an applicable rule of international law.

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Foreign Affairs each year, most of them being requested by the Russian Federation, but also by the United States, Turkey, Germany, and some other States. In November 2015, the Ministry of Foreign Affairs decided to apply restrictions to the provision of Guarantor’s Declarations for cultural objects on loan that are privately owned, because the Dutch jurisdictional immunity (and legislation) is limited to cultural State property. While this includes property of organs of the State, and of municipalities or federal units, jurisdictional immunity does not apply to privately owned objects. The domestic law of the ­Netherlands offers no means of preventing the seizure of privately owned objects; a Guarantor’s Declaration, which only confirms the applicable legal regime, will therefore not provide any means of protection against such seizure. For a long time, most cultural objects on loan to museums in the Kingdom of the Netherlands, and for which the Ministry of Foreign Affairs issued a Guarantor’s Declaration, were State-owned, with only about 10% of the cultural objects on loan being privately owned. However, the number of privately owned cultural objects on loan, in relation to the number of State-owned cultural objects, has risen dramatically. At present, approximately half of the objects for which a Guarantor’s Declaration is requested are privately owned.80 Issuing declarations for such objects constitutes an unacceptable risk for the Ministry. While a Guarantor’s Declaration states only that the government will do whatever is legally possible to prevent seizure, the possibility cannot be excluded that a private owner of a cultural object on loan may invoke such a declaration when her/his property is seized. Strictly speaking, the government may then initiate summary proceedings against the seizing party, even when it is obvious that the government would lose such proceedings. In view of the above, the Ministry of Foreign Affairs has decided to restrict the issuance of ­Guarantor’s Declarations to cultural State property on loan for the purpose of an exhibition and not intended for sale. The question has been asked whether the verdict of the Dutch Court81 in the so-called Crimea Treasures case82 has influenced third States in regard to their 80 81 82

According to the International Cultural Policy Unit of the Ministry of Foreign Affairs of the Kingdom of the Netherlands. See accessed 21 January 2019. For an excellent article on this issue, see Maria Nudelman, ‘Who Owns the Scythian Gold? The Legal and Moral Implications of Ukraine and Crimea’s Cultural Dispute’ (2015) 38 Fordham International Law Journal 1261. See also: Evelien Campfens and Irina Tarsis, ‘Crime-a-river! Crimean Gold in the Crosshairs of Geopolitics’ (2017) 18 ifar Journal 36. See also: ‘Crimean Gold Artefacts Must Go Back to Ukraine, Dutch Court Rules’ The Guardian (London, 14 December 2016) accessed 21 January 2019.

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(un)willingness to loan cultural objects to the Netherlands. From 6 February 2014 until 31 August 2014, the Allard Pierson Museum in Amsterdam hosted the exhibition Crimea – the Golden Island in the Black Sea. Important cultural objects (among other things the so-called ‘Scythian gold’) from several museums in Crimea had been given on loan, with an export authorization issued by the Government of Ukraine. During the exhibition, Crimea was annexed by the Russian Federation. After the exhibition the Allard Pierson Museum did not know to whom to return the works of art, i.e. whether to the Crimean museums or to the State of Ukraine. The Crimean museums started a procedure before the Court of Amsterdam, and the State of Ukraine intervened in that procedure. On 14 December 2016, the Amsterdam District Court ordered that the cultural valuables concerned were illegitimately outside the territory of Ukraine.83 Although initially the valuables had been exported legitimately, in the meantime the export licenses issued by the Ukrainian Ministry of Culture had expired. In its explanation the Court referred to Articles 2, 3, 6 and 7 of the 1970 unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,84 Article 5(2)85 of the unidroit Convention on Stolen or Illegally Exported Cultural Objects,86 and Article 2(2)(b) of Directive 2014/60/EU of the European Parliament and of the Council on the return of cultural objects unlawfully removed from the territory of a Member State.87 The Dutch Court was of the opinion that, based on the 1970 unesco Convention, the Crimea Gold belonged to the cultural heritage of the State of Ukraine. The Court declared that the Allard Pierson Museum had to hand over the cultural valuables to the Ukrainian State, and to transport these to the Ukrainian permanent custodian, the National Historical Museum of Ukraine in Kiev, and

83

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The Court had competence on the basis of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1. Besides, the cultural valuables were on Dutch territory. (Adopted 14 November 1970, entered into force 24 April 1972) 823 unts 231. The Court emphasized the relevance of the following provision: ‘A cultural object which has been temporarily exported from the territory of the requesting State, for purposes such as exhibition, research or restoration, under a permit issued according to its law regulating its export for the purpose of protecting its cultural heritage and not returned in accordance with the terms of that permit shall be deemed to have been illegally exported’. (Adopted 24 June 1995, entered into force 1 July 1998) 34 ilm 1322. [2014] OJ L159/1. Art 2(2)(b): ‘For the purposes of this Directive, the following definitions apply: “unlawfully removed from the territory of a Member State” means: not returned at the end of a period of lawful temporary removal or any breach of another condition governing such temporary removal’.

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that the relevant Crimean museums shall admit this. After the return of the cultural valuables to Ukraine, the Ukrainian court has to establish the entity legally entitled to the cultural valuables in accordance with Ukrainian law. The verdict of the Amsterdam District Court is not yet enforceable because of the possibility of appeal and because the consequences of immediate return of the valuables may be irreversible in the event the Court of Appeal rules differently from the District Court. The Crimea museums indeed launched an appeal in January 2017 which is, at the time of writing this article, still under consideration by the Court of Appeal. The verdict in the above case has so far not negatively impacted the willingness of third States to loan cultural objects to the Netherlands.88 The issues may look related, but are fairly different. In the Crimea Treasures case, there was no discussion on immunity from seizure. The question was whether certain cultural valuables needed to return to the relevant Crimean museums89 or to the Ukrainian mainland. Recent Legal Developments in Some Other European States:90 Hungary and Poland In 2012, Hungary adopted legislation on the special protection for cultural objects on loan.91 The apparent incentive for this legislation was ‘the towering insurance costs connected to the Cézanne exhibition of the Szépművészeti 3.4

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For example, it has not caused the Russian authorities, nor the State Hermitage Museum in Saint Petersburg, to refrain from transferring several important Masterpieces on loan to the Hermitage Museum in Amsterdam for its latest exhibitions. The Tavrida Central Museum in Simferopol; the Kerch Historical and Cultural Preserve in Kerch; the Bakhchisaray History and Cultural State Preserve of the Republic of Crimea in Bakhchisaray and the National Preserve of ‘Tauric Chersonesos’ in Sevastopol. In my book State Immunity and Cultural Objects on Loan (n 3), I referred to the legislation existing at that time concerning immunity from seizure for cultural objects on loan. France was the first State within the EU to pass such legislation (in 1994), followed by Germany (1999), Austria (2003), Belgium (2004), the United Kingdom (2007), Finland (2011), and the Czech Republic (also 2011). European non-Member States Switzerland and Liechtenstein enacted legislation in 2005 and 2007 respectively. Also, the Netherlands has immunity from seizure legislation, although not specifically referring to cultural objects but to State-owned objects intended for public service (which could include cultural objects as well). Act No 95 of 2012 on the Special Protection of Borrowed Cultural Goods, adopted by the Hungarian Parliament on 26 June 2012. See English translation: accessed 21 January 2019. The original language version can be found here: accessed 21 January 2019. Many thanks to Dr. Henriett Galambos, Head of the legal department, Szépművészeti Múzeum, Budapest, Hungary. Also many thanks to Boglárka Borbély for the translation of the Explanatory Note to the Act.

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Múzeum’,92 although not everyone in Hungary subscribes to that opinion. While there may be a direct link between insurance costs and declarations of indemnity, the link is less apparent between insurance costs and immunity. The aim of the law is to ensure the widest possible access to cultural goods and values. The Explanatory Note to the Act states in its general part that, although the current legal environment does not hinder the organization of temporary cultural exhibitions, it is becoming increasingly important for the lenders from all around the world that a specific immunity rule is established. The law applies to cultural objects loaned for a temporary cultural, scientific, entertainment, or educational exhibition, that does not exceed a period of twelve months.93 It regards both foreign cultural State property, as well as foreign privately-owned cultural objects. The Explanatory Note to the Act underlines that the protection offered is not limited to fine art, but that it covers also a whole range of cultural goods (e.g. archaeological finds). Cultural objects that are subject to a return or restitution procedure because of their illegal acquisition or transfer of ownership or their illicit import or export are not protected by this law.94 The law does not provide immunity from suit; it solely prevents the imposition of coercive measures. The special protection is not provided automatically; an advance procedure needs to be followed where relevant information needs to be handed over, after which the National Office of Culture Heritage can issue a certificate (State guarantee) declaring the period of special protection. In 2015, Poland also enacted immunity from seizure legislation, ‘as a response to recurrent difficulties in receiving exhibits for displays organized by

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Péter Inkei and Veronka Vaspál, Compendium: Cultural Policies and Trends in Europe. Country Profile: Hungary (December 2014) accessed 21 January 2019. There is one exception to that period: in the event a damage occurred during the time of exhibition, it can be extended by the period of time necessary for its restoration, with a maximum of four months. In this context, the Explanatory Note refers to Act No 80 of 2001 on the Return of Cultural Objects Unlawfully Removed, established in order to harmonize with Council Directive 93/7/eec of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State [1993] OJ L74/74; to Act No 28 of 2001 by which the 1995 unidroit Convention on Stolen of Illegally Exported Cultural Objects had been promulgated; and to Decree-Law No 2 of 1979 on the Promulgation of the unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

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Polish museums’.95 The legal protection against seizure for cultural objects on loan was established by an amendment to the 1996 Museum Act.96 As in Hungary, the immunity is not provided automatically, as a formal application procedure needs to be followed and an application needs to be filed with the Polish Ministry of Culture and National Heritage.97 In the event of an import contrary to Polish law, or if the object concerned was exported illegally, the conditions for immunity will not be met. Once again in line with the Hungarian system described above, the legislation does not extend to immunity from suit (it neither prevents claims related to foreign property on loan98 or actions against a foreign lender99), but only regards immunity from seizure. It provides for protection lasting up to 12 months. The Polish legislation is not limited to cultural State property, as its protection applies to natural and legal foreign non-State lenders as well. 4

A Future Convention for All Cultural Property on Loan?100

International lending and borrowing of objects for public display and scientific research have become particularly significant, as tighter budgets and stricter ethical requirements have restricted purchases of objects by museums and other institutions. If the 2004 UN Convention enters into force, there will 95

Paulina Gwoździewicz-Matan and Andrzej Jakubowski, ‘Enhancing the Mobility of Collections and Access to Cultural Heritage: Immunity of Cultural Objects from Seizure in Poland’ (2017) 23 ijc Policy (published online 1 February 2017). The authors gave some examples of these recurrent difficulties. In 2009, the National Museum in Warsaw could not obtain certain masterpieces from Russian museums for the exhibition titled Le Siècle français: The 18th Century French Paintings and Drawings, due to the Russian position not to lend exhibits to States which did not adopt anti-seizure regulations. In 2012, the Czech Republic denied the loan of works of art for another exhibition by the Museum and the Royal Castle in Warsaw: Europe Jagiellonica Art and Culture in Central Europe under the Reign of the Jagiellonian Dynasty (1386–1572). This was a direct consequence of the Diag Human case; see Section 3.2. 96 Section 4: ‘the legal protection of movable property of artistic, historical or scientific value lent from abroad for a temporary exhibition organized on the territory of the Republic of Poland’. 97 A decision is published in the Official Bulletin; within 30 days after the date of publication, one can lodge an objection to the decision. 98 Actions in rem. 99 Actions in personam. 100 See also: Nout van Woudenberg and James AR Nafziger, ‘The Draft Convention on Immunity from Suit and Seizure for Cultural Objects Temporarily Abroad for Cultural, Educational or Scientific Purpose’ (2014) 21 ijcp 481.

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be a rule of treaty law that protects cultural State property on loan against seizure. Already today an emerging rule of customary international law can be identified, according to which cultural objects belonging to foreign States and on temporary loan for an exhibition are immune from seizure.101 However, privately owned cultural objects can also be very important for international exhibitions, education, and research. Moreover, the ownership of more and more cultural objects is being transferred from State-owned to privatelyowned foundations. A future global convention on immunity from seizure for all kinds of cultural property on loan, regardless whether it regards State property or private property, may be the most appropriate way forward.102 Such a convention could provide more legal security, but of course could also raise new questions, such as a possible overlap or discrepancy with the 2004 UN Convention. During the 2010 Conference of the International Law Association (ila) in The Hague, the Cultural Heritage Law Committee of the ila decided to take up the topic of immunity from seizure for cultural objects on loan. After having assessed a discussion paper on the topic,103 the Committee decided, at its 2012 meeting, that it would draft a Convention on immunity from seizure for cultural objects on loan. The Committee decided to follow a so-called ‘inclusive approach’. This means that the draft should concern not only immunity from seizure, but also immunity from suit (however with some kind of ‘opt out’ clause). Moreover, the draft should not only focus on cultural objects ‘on loan’, but in general on cultural objects temporarily present in another State for cultural, educational, or scientific purposes. Not only cultural State property, but also privately owned property should be covered. In sum, the Draft Convention should respond to an important problem concerning international loans of cultural objects for scientific, cultural, or educational purposes, especially for temporary exhibits. Its fundamental purpose is to protect the integrity of international loans and thereby encourage their role in promoting cross-cultural understanding.104 Thus the Draft Convention, as approved by the ila at its Seventy-Sixth Conference in Washington in April 2014, provides for immunity from suit and seizure of (all) cultural objects which are temporarily present in a receiving State for cultural, educational, or scientific purposes, unless the cultural o­ bject 101 Van Woudenberg (n 3). For the exceptions and limitations to that rule of customary law, see pp. 434–43. 102 van Woudenberg and Nafziger (n 100) 483–84. 103 Prepared by Prof. Th M de Boer (a Private International Law Professor at Amsterdam ­University) and the author of this Chapter. 104 Van Woudenberg and Nafziger (n 100) 483.

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is placed or intended to be placed on sale, or the cultural object is owned, ­possessed, or otherwise controlled by the receiving State or a physical or legal person resident in the receiving State. The Draft Convention expresses the conviction that: immunity from seizure can prevent cultural objects temporarily abroad for cultural, educational or scientific purposes from being subject to trade, ownership or other disputes, and that immunity from seizure facilitates the mobility of cultural objects and overcomes the reluctance of lenders to send their cultural objects into a foreign jurisdiction where they might be subject to some form of judicial seizures.105 Thus Article 3 of the Draft Convention, one of the core Articles, states that objects ‘which are temporarily present in a receiving State for cultural, educational or scientific purposes shall enjoy immunity from seizure in that State. No order that prevents or may prevent the return of the cultural object to the sending State shall be issued in the receiving State’.106 Moreover, under Article 4(1), ‘the temporary presence of the cultural objects in the receiving State for cultural, educational or scientific purposes shall not form the basis for any legal process in the receiving State’.107 With that provision, the drafters of the Draft Convention aimed to prevent the kind of situation that occurred in the US in the Malewicz case.108 It was considered important that the granting of immunity under the Draft Convention should not be a means of facilitating the cross-border movement of cultural objects that have been illegally exported, stolen, looted, or acquired illicitly. For that reason, Article 5 of the Draft Convention states that immunity from seizure or suit does not apply in cases where the receiving State is bound 105 Ninth preambular paragraph. 106 However, the preamble of the Draft Convention expresses the conviction that the granting of immunity under this convention should not facilitate the cross-border movement of cultural property that may have been stolen, looted, or otherwise acquired in an illicit manner. Van Woudenberg and Nafziger (n 100) 484. 107 An article regarding exemption from suit was considered necessary, as the jurisdiction of civil courts can be based on the mere presence of property in the forum State. 108 In that case, plaintiffs were able to use the window of opportunity afforded by a cultural exhibition of the works of art by Malewicz as the jurisdictional hook for their claims. That resulted in considerable fear on the part of some museums to loan works of art to US institutions, as well as to uncertainty regarding how far-reaching or limited the US Public Notice on cultural significance, which was an important precondition to immunity, would be in practice. In other words, the international mobility of cultural objects was considerably threatened. See also: Van Woudenberg (n 3) Ch. 4.4.5, pp. 172–82.

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by conflicting obligations under international or regional law, including EU law. No explicit reference to court orders has been made, because the practices of incorporating or transposing international law into the domestic order vary widely among States. However, in several States a court order may be required in order to give effect to an obligation under international or regional law.109 The United Kingdom Tribunals, Courts and Enforcement Act 2007, Article 135(1) served as a source of inspiration for Article 5. Although immunity in the context of loans is a temporary measure, it may also suspend a claimant’s ability to be granted a particular form of relief. In order to provide some kind of balance, it was considered necessary that the receiving State and the sending State, jointly or separately, exercise due diligence in order to determine or confirm the provenance of a cultural object subject to a prospective loan. Consequently, no transfers should take place between a sending State and a receiving State where the provenance of an object cannot be established.110,111 The Draft Convention should be considered as a ‘minimum standard’. According to its terms, States Parties are entitled to take further measures in accordance with their municipal law to secure the effective implementation of the Draft Convention within their respective jurisdictions, provided such measures are consistent with the provisions of the Draft Convention. Moreover, any State Party may enter into agreements with one or more other State Parties, with a view to improving the application of the convention in their mutual relations.112 The adoption by the ila of this Draft Convention in 2014 finalized a four-year process. At the same time however, it should be considered as a new starting point. Therefore, ila Resolution 3/2014 requests the Secretary-General of the ila to forward a copy of the Final Report, including the Draft Convention, to the United Nations Secretary General, the Secretary General of unesco,113 the Hague Conference of Private International Law, cojur (Comité Juridique)/EU, 109 Van Woudenberg and Nafziger (n 100) 485. 110 Ibid. 111 The principle of due diligence has been drawn particularly from the United Kingdom legislation (Tribunals, Courts and Enforcement Act 2007, Part 6, Sections 134 to 138), as well as the 2004 Code of Ethics of the International Council of Museums (icom). The 2004 icom Code of Ethics sets minimum standards of professional practice and performance for museums and its staff. Especially Arts 2(2), 2(3) and 3(6) are relevant in that regard. 112 Van Woudenberg and Nafziger (n 100) 485–86. 113 That would then follow the same path as the unesco Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 41 ilm 37. The ila initially provided a first draft of that convention: the 1994 ila Draft Convention on the Protection of Underwater Cultural Heritage.

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cahdi, the Council of Europe, and other appropriate international and regional organizations, such as for instance icom. If one of these organizations, or perhaps another, takes up the Draft Convention and initiates intergovernmental negotiations based on it, the outlook is promising for the global endorsement of immunity from suit and seizure for cultural objects temporarily abroad for cultural, educational, or scientific purposes.114 However, unfortunately, so far the afore-mentioned institutions have not responded.115 5 Conclusions The notion of the mobility of collections, in which immunity from seizure is considered an element, has been a key issue for the EU since 2003. Especially in the period 2008–12 the EU was very active in this field. While there have not been very many recent developments, one can still harvest from what has been planted and cultivated in the previous years. It would be unfortunate to lose sight of this. As one of the aims of the 2018 European Year of Cultural Heritage was to ‘encourage people to explore Europe’s rich and diverse cultural heritage’,116 the mobility of collections within Europe is more important than ever before. Thus, hopefully, the fruits of what has been developed within the EU during the previous years will be picked. With regard to immunity from seizure, the omc Expert Working Group on the Mobility of Collections and its subgroup on immunity from seizure concluded that ‘it is not recommended that the [European] Commission, or an expert group falling under the auspices of the EC, should attempt to prepare model legislation, or to determine any standardized content of immunity from seizure legislation’.117 Member States were of the opinion that this issue belonged to their competence as sovereign States and should not be considered as a community competence. It is thus wise that the European Commission 114 Van Woudenberg and Nafziger (n 100) 486. 115 Around the time of adoption by the ila, I had an interesting conversation with a highranking unesco officer. This officer informed me that the chances that unesco would take it up within due time would be very limited, giving two reasons therefore. The first reason was that unesco would like to focus more on the proper implementation of, and compliance with, already existing international instruments instead of creating new ones. The other reason had to deal with the budget: as the financial resources of unesco were limited, and were even decreasing, States that were keen on discussing specific topics should provide for extra budgetary funding. 116 accessed 21 January 2019. 117 See Section 2.1.

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followed on this recommendation and did not aim to come up with some form of model legislation. However, it was also recommended that the Commission would provide a platform for sharing and exchanging best practices, and that platform, except for the Toolkit and Handbook described in sections 2.2 and 2.3, still does not really exist. Meanwhile, the focus of attention within the EU seems to have shifted somewhat to the regulation of imports of cultural objects in order to clamp down on the illegal import and trafficking of cultural goods from outside the EU, which is undoubtedly a relevant topic, especially given its relationship with terrorist financing and other criminal activities. At the global level, the number of States Parties to the 2004 UN Convention on Jurisdictional Immunities of States and Their Property is slowly but incrementally growing and includes more and more EU Member States. Let us hope that the threshold number of 30 States Parties necessary for the entry into force of the Convention will be reached within the near future. Meanwhile, the emergence of a rule of customary international law providing immunity from seizure for cultural State property on loan may be strengthened by its over time. At the level of the EU Member States, Hungary and Poland have developed new legislation. When one compares both legislative acts, quite many similarities are visible. On the other hand, unfortunately, the Netherlands, as explained in Section 3.3, had to stop the issuance of Guarantor’s Declarations for privately owned cultural objects on loan. This shows that there are still a lot of differences between the level of protection provided to cultural State property on loan and that granted to foreign privately-owned cultural objects. To conclude, the efforts of the International Law Association in developing a Draft Convention on immunity from suit and seizure for cultural objects temporarily abroad for cultural, educational, or scientific purpose, should be lauded. As Paulina Gwoździewicz-Matan and Andrzej Jakubowski stated: ‘Undoubtedly, the solutions proposed by the ila draft Convention, if adopted as a binding international instrument, would significantly improve global cultural exchange’.118 It is therefore unfortunate that, so far, no relevant (preferably global) intergovernmental organization has taken it up. 118 Gwoździewicz-Matan and Jakubowski (n 95).

Chapter 10

Cultural Heritage, Education and Research in the European Union Alicja Jagielska-Burduk 1 Introduction In December 2017, during the European Culture Forum, Antonio Tajani, the President of the European Parliament, stated that ‘[o] ur cultural heritage is a link between half a billion people living in Europe’.1 The measures that will support and strengthen this link in both the present and future perspectives are undoubtedly connected with educational activities, because they raise awareness of the importance of cultural heritage and the responsibility of all generations. Therefore, the European Year of Cultural Heritage 2018 (eych) brings about an opportunity to develop various educational measures and ‘discover adult education as a force for promoting and protecting our heritage’.2 Examples include those projects listed within Erasmus+, such as InHerit,3 oriented on heritage interpretation and supporting visitors’ place-based learning, and Museums Art & Alzheimer’s, which aims to ‘facilitate the access of people with dementia, their family and professional carers, to art and museums’.4 Reaching out to different audiences within Erasmus+ shows that education about cultural heritage and culture itself is a broad concept, even within programmes dedicated to adults. On the other hand, the (unsuccessful) idea of a common European history handbook provides an example of initiative directed toward schools.5 The scope of the educational activities is necessarily vast in order to reach different target audiences. Education shapes the EU citizens’ approaches towards integration and their joint responsibility for cultural heritage. The linkage between education policy 1 European Commission, ‘European Culture Forum 2017: Post Event Video and Web Streaming’ accessed 10 February 2019. 2 European Commission, ‘Adult Education Celebrates Cultural Heritage’ (19 December 2017) accessed 10 February 2019. 3 See accessed 12 February 2019. 4 See accessed 12 February 2019. 5 See Section 2 below.

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and cultural heritage is based on the European values, as enshrined in Article 2 of the Treaty on the European Union (teu).6 The development strategies include a cultural sector, with creative industries and education as factors supporting European economic improvement. Due to the ongoing political tensions undermining the European integration process, building society’s awareness of the importance of cultural heritage, as well as supporting European citizenship values and tolerance for cultural diversity, have a profound meaning. This Chapter presents the EU educational policy, indicating its major characteristics and drawbacks when it comes to issues of cultural heritage inclusion. It aims to assess whether the EU policies in the area of culture and education together provide a solid and consistent basis for action, and whether the actions offered are diverse and developed enough to have a real impact on the education regarding cultural heritage in the Member States. First it offers an overview of the relevant education policies, together with the role of the Open Method of Coordination (omc). Next, it explores the linkage between education and cultural policy and the idea of a common cultural heritage in the EU. Given the need for cross-sectoral cooperation between EU initiatives on education and training, as well as in the strategic documents regarding employment, enterprise, social policy, youth policy, and culture,7 a case study of the Forget Heritage Project financed by the European Regional Development Fund is also presented. This part explores the practical dimension of educational activities which bring about an added value in EU projects, with Forget Heritage being oriented on cultural heritage management, giving historic buildings new life, and the stimulation of creative industries. The Chapter ends by offering conclusions as to whether use of synergies between cultural heritage and education is taking place within EU policies. 2

Educational Policies and Initiatives of the EU: An Overview

The role of the EU in areas involving culture and education is referred to in its founding treaties and in a number of documents issued by its institutions and committees. The EU has an important role to play in initiating or facilitating change in cultural heritage management and in maximizing the use of available cultural resources in the Member States. Both education and cultural heritage are important elements of the EU’s development goals and they 6 Consolidated version: [2012] OJ C326/13. 7 Council conclusions of 12 May 2009 on a strategic framework for European cooperation in education and training (ET 2020) [2009] OJ C119/2.

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are i­nextricably linked in EU policy. All actions of the EU concerning culture should be in line with the values declared in the EU’s founding treaties.8 According to Article 3 of the teu, the Union ‘shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced’. In turn, the provisions of Article 167 of the Treaty on the Functioning of the European Union (tfeu)9 form the basis of the EU cultural policy, which assumes that the EU will contribute ‘to the flowering of the cultures of the Member States’. However, this contribution should be done in a way which both respects Member States’ national and regional diversity while at the same time bringing the common cultural heritage to the fore. The main aim is to enhance the cooperation between the Member States, with the EU supporting and supplementing their efforts (Article 167(5)). Among the four mentioned areas dealt with in this article (Paragraph 2), the first two are of special interest: improvement of the knowledge about and dissemination of the culture and history of the European people; and conserving and safeguarding cultural heritage of European significance.10 Article 165(1) tfeu acknowledges the prime role of education and points out the diversity of systems and cultures within the EU. The EU’s role and competences in this regard are subsidiary,11 while the Member States’ position is leading: [t]he Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organization of education systems and their cultural and linguistic diversity. The use of the non-affection clause underlines the Member States’ sovereignty in the area of culture and education.12 The tasks undertaken at the local and

8

9 10 11 12

In particular, art 2 teu states that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. Consolidated version: [2012] OJ C326/47. See Chapter 3 by Evangelia Psychogiopoulou in this volume. Art 164(4) tfeu. Caroline U Amann, The EU Education Policy in the Post-Lisbon Era: A Comprehensive Approach (Peter Lang 2015) 73–4.

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domestic levels are, due to the respect given by the EU to the national systems, of great importance in the EU’s education policy. Education policy has visibly changed within the EU Member States in line with the promotion of European citizenship and common values. The Declaration of the EU Education Ministers on promoting citizenship and the common values of freedom, tolerance, and non-discrimination through education shows the need to include intercultural competences and intercultural dialogue through EU cooperation and supports the EU Member States’ national educational policies.13 Actions are supposed to appear at all levels and the policy instruments should contain support and training for teachers, additional class materials, and actions for children, such as for example workshops on cultural diversity. The assessment taken in this Declaration showed that EU Member States are at different stages of engagement, as some of them were still developing their education policy, while others had already undertaken a variety of measures, which differed amongst States both in their content and level of implementation.14 The coexistence of many cultures and an attitude of tolerance guarantee the development of European societies and safeguard basic rights and values, as confirmed in the 2015 Joint Report of the Council and the Commission on the implementation of the strategic framework for European cooperation in education and training (ET 2020)—New priorities for European cooperation in education and training.15 Additionally, this document refers to violent extremism as one of the factors of the terrorist attacks in 2015 (e.g. coordinated attacks in Paris).16 It emphasizes the role of education and training in teaching and learning respect for the human and civic values shared by the EU community, which are to be safeguarded and passed on to future generations.17 13

14

15 16 17

Education, Audiovisual and Culture Executive Agency, ‘Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education. Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015’ accessed 12 February 2019. Education, Audiovisual and Culture Executive Agency, Promoting Citizenship and the Common Values of Freedom, Tolerance and Non-discrimination through Education. Overview of the Education Policy Developments in Europe Following the Paris Declaration of 17 March 2015 (Luxembourg 2016) 4–7. [2015] OJ C417/25. Ibid para 1. Barry van Driel, Merike Darmody, and Jennifer Kerzil, Education Policies and Practices to Foster Tolerance, Respect for Diversity and Civic Responsibility in Children and Young People in the EU. Examining the Evidence (EU Publ Office 2016) 22 https://publications.europa.eu/en/publication-detail/-/publication/abe4b8dc-ffa8-11e5-b713-01aa75ed71a1/language-en accessed 27 January 2019.

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The threat to common values was also noted in the Fourth Bologna Policy Forum in 2015, where the intensified and tighter cooperation in the European Higher Education Area was pointed out as an important recovery tool.18 In the Communication from the Commission supporting the prevention of radicalization leading to violent extremism,19 the promotion of inclusive education and EU common values were mentioned as actions at the EU level that can support Member States. In 2017, the Education Committee prepared the Draft Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on Inclusion in Diversity to achieve a High Quality Education For All.20 This document also refers to common EU values and the challenges presently faced by the education sector. It concludes that it is only through proper educational tools and the involvement of actors representing different levels of education that the process of the community’s integration is possible.21 However, sometimes the aspect of a common European history is criticized as biased and showing only the positive achievements of the EU Member States, while hiding the martyrdom, communism, and the history of colonialism.22 Hence, with the development of critical heritage studies, it has become possible to take a new approach to the analysis of nations’ and European memory. Nowadays, ‘the European mode of remembering, promoted by the EU-elites, pays special attention to cultural diversity and celebrates the importance and enriching effects of encounters between different cultures, emphasizing that they should be based not only on tolerance, but also on mutual

18

19 20 21 22

The European Higher Education Area, ‘Statement of the Fourth Bologna Policy Forum, Yerevan, 14–15 May 2015’ http://www.ehea.info/media. ehea.info/file/2015_Yerevan/74/8/Statement_of_the_Fourth_Bologna_Policy_Forum_final_613748.pdf accessed 27 January 2019: ‘We have identified a number of common challenges that should drive our joint cooperation for the future; these include demographic changes, graduate unemployment, the economic and political crises affecting many of our countries, the prevalence of stereotypes, insufficient intercultural dialogue and increasing extremism and radicalization. We will work with the academic community to develop the key role of higher education in meeting these challenges and creating the societies we want’. European Commission, ‘Supporting the prevention of radicalisation leading to violent extremism’ (Communication) com (2016) 379 final. (1 February 2017) accessed 11 February 2019. Ibid 5–6. Krzysztof Kowalski and Barbara Törnquist-Plewa, ‘Heritage and Memory in a Changing Europe. Introductory Remarks’ in Krzysztof Kowalski and Barbara Törnquist-Plewa (eds), The Europeanization of Heritage and Memories in Poland and Sweden (Jagiellonian University Press 2016) 27–28.

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respect and recognition’.23 In this light, ‘European heritage – embracing the dark and hidden memories of Europe nations’24 constitutes an educational tool encompassing human rights and democratic European values. An initiative worth mentioning in this context is the House of European History, which is a museum in Brussels. It was first intended to be a cultural institution and exhibition centre, but became a trigger for a wide debate among the EU and its Member States, in particular with regard to historical links and the way history should be presented.25 The museum opened in May 2017.26 Its establishment was controversial from the very beginning. The total cost of this initiative27 was alleged to be too expensive and the work on historic details28 was challenged as not taking all the important historic events into account. Another unsuccessful example was the 2007 final result of the initiative, under the German EU Presidency, to prepare a common European history book. Nevertheless, the idea of a common textbook could be perceived as partially successful insofar as it at least raised public awareness about this issue. All involved understood from the beginning that the project faced challenges and struggles, as all achievements do.29 The main argument against the textbook was the fact that a common approach cannot be offered with regard to history, as each event can be perceived in a different light, (even though the project was meant to show a diversity of views). This initiative was aimed at strengthening the identification of States as EU Member States through a 23 Ibid. 24 Ibid 28. 25 accessed 11 February 2019. 26 European Parliament, ‘European Parliament opens the House of European History on 6 May 2017’ (4 May 2017) accessed 12 February 2019. 27 ‘Row brewing as cost of new Brussels history museum soars’ Daily Mail (6 April 2017) accessed 12 February 2019. 28 See ‘“Dom Historii Europejskiej” powstanie, ale z polskimi poprawkami [“The House of European History” will be created, but with Polish amendments]’ Gazeta.pl (15 December 2008) accessed 12 February 2019. 29 Joke van der Leeuw-Roord, ‘A Common Textbook for Europe? Utopia or a Crucial Challenge?’ in Jan P Bauer, Andreas Körber, and Johannes Meyer-Hamme (eds), Geschichtslernen – Innovationen und Reflexionen: Geschichtsdidaktik im Spannungsfeld von theoretischen Zuspitzungen, empirischen Erkundungen, normativen Überlegungen und pragmatischen Wendungen. Festschrift für Bodo von Borries (Centaurus Verlag & Media 2016) 57. The author cites Professor Dr. Peer Vries: ‘Better to be visionary and fail, than be unimaginative and die’.

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parallel a­ cknowledgment of the various historical tracks of each nation. While some of those opposing the project assumed that no common approach to EU history can be taken and that EU identity is a fiction, its supporters suggested introducing a unified meta-level narration, or building the future historic discourse on acknowledging the diverse and multifaceted EU identity.30 What should be stressed here is the extremely important role of schools and teachers in education at all stages. According to the European Commission, as expressed in its Cultural Awareness and Expression Handbook (2016),31 cultural knowledge is supposed to include ‘an awareness of local, national and European cultural heritage and their place in the world’,32 with its achievement depending on its mode of transmission.33 Hence the attitude of the learner should include ‘confidence and motivation to cultivate cultural capacities, an open attitude to and interest in cultural expression (self and other) and respect for the cultural expressions, identities and views of others’.34 It appears that such an approach, when carefully introduced in basic cultural education, can support the sustainable development of peaceful societies. Furthermore, it demonstrates how aspects of cultural heritage should be addressed in education in order to result in an ‘awareness of the manifold, diverse roots of one’s own culture, to be aware of culture as a dynamic and ever-changing construct, and a result of intercultural exchange’.35 3

Education and Cultural Heritage – A Case of Convergence?

Both the cultural and educational policies of the EU are subsidiary to the Member States’ national regulatory choices and policies.36 However, this does not mean that they cannot be supported within EU actions and used in 30

31

32 33 34 35 36

Elżbieta Lesiewicz, ‘Europejski podręcznik historii jako próba wypracowania wspólnej pamięci zbiorowej obywateli Unii Europejskiej [The European History Handbook as an Attempt to Develop the Collective Memory of EU Citizens]’ (2012) 3 Przegląd Politologiczny 57, 65–6. Directorate-General for Education and Culture, Cultural Awareness and Expression Handbook. Open Method of Coordination (omc) Working Group of EU Member States’ Experts on the Development of the Key Competence ‘Cultural Awareness and Expression’ (EU Publ Office 2016) accessed 12 February 2019. Ibid 15. See Chapter 11 by Alexandra Xanthaki in this volume. Directorate-General for Education and Culture (n 31) 45. Ibid 31. Arts 165(4) and 167(5) tfeu.

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­achieving EU development goals as well. Education has been a key issue in the EU strategies, in the Lisbon Strategy, and now in the Europe 2020 Strategy.37 The targets of the Lisbon Strategy included education, together with training and research, to contribute to the economy on the basis of knowledge. It has to be underlined that the integration of higher education falls within the intergovernmental area. Similarly, common responsibility for cultural heritage within the EU is subsidiary to the local and national activities undertaken by the Member States’ authorities. In this regard, the Open Method of Coordination (omc) enables policy cooperation in those areas where the EU has only limited legislative powers, which includes both policy fields which are discussed in this Chapter, i.e. education and culture. The omc, introduced for the sectors of research, education, and social inclusion in 2000, was ‘a new open method of coordination at all levels, coupled with a stronger guiding and coordinating role for the European Council to ensure more coherent strategic direction and effective monitoring of progress’.38 In other words, it was a new tool for EU management and governance in those areas which were excluded from harmonization as a result of EU treaty law.39 Its main features are benchmarks and objectives, as well as process monitoring.40 This means that when EU law delivers only limited competences in an area, the EU’s action should not go beyond the level of support and supplementation.41 The omc was launched in the area of culture in 2007.42 According to the Resolution’s provisions: ‘the Council opted for a flexible application of the omc in the cultural field, with voluntary member state participation in the actions and procedures concerned’.43 The Bologna Process was significant for cooperation in the field of higher education. The aims set in the 1999 Bologna Declaration led to education 37 38 39 40 41 42 43

European Commission, ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’ (Communication) com (2010) 2020 final. European Parliament, ‘Lisbon European Council 23 and 24 March 2000: Presidency Conclusions’ accessed 10 February 2019. Gábor Halász, ‘European Union: The Strive for Smart, Sustainable and Inclusive Growth’ in Yan Wang (ed), Education Policy Reform Trends in G20 Members (Springer 2013) 279–83. Amann (n 12) 59–60. Halász (n 39) 279. See Evangelia Psychogiopoulou, ‘The Cultural Open Method of Coordination’ in Evangelia Psychogiopoulou (ed), Cultural Governance and the European Union: Protecting and Promoting Cultural Diversity in Europe (Palgrave Macmillan 2015) 37–41. Evangelia Psychogiopoulou, ‘The European Union and Cultural Rights’ in Ana Filipa Vrdoljak (ed), The Cultural Dimension of Human Rights (oup 2013) 181. Statement about the Resolution of the Council of 16 November 2007 on a European Agenda for Culture [2007] OJ C287/1.

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r­ eform in the EU Member States.44 Culture was mentioned several times in the document, but two mentions of it are of profound significance, i.e. in the introduction with regard to the cultural dimension, and later on in the document with the inclusion of ‘building the awareness of shared values and belonging to a common social and cultural space’.45 The Bologna Process created a basis for the European High Education Area and was connected with EU policy. The Europe 2020 Strategy, as a successor of the Lisbon Strategy, perpetuates this approach to education as one of its priorities. The improvement of educational systems and education outcomes is made more probable by inserting an important cultural aspect, not only to affirm diversity but also to stimulate creativity in the cultural sector. In the area of culture, education was invoked in the Resolution of the Council of 16 November 2007 on a European Agenda for Culture.46 The resolution states that ‘culture and its specificity, including multilingualism are key elements of the European integration process based on common values and a common heritage – a process which recognizes, respects and promotes cultural diversity and the transversal role of culture’.47 However, the process of recognition, respect, and promotion of cultural diversity, and the transversal role of culture, should be considered as long term goals and be accompanied by institutionalized actions. Therefore, among the five priority actions which were to be pursued in the context of the strategic objectives of the European Agenda for Culture, education was mentioned in connection with access to culture and the promotion of cultural heritage, through priority number 2 on ‘promoting access to culture, in particular through the promotion of cultural heritage, multilingualism, digitization, cultural tourism, synergies with education, especially art education, and greater mobility of collections’.48 The Work Plan for Culture 2008–2010, in its priority number 2, included ‘Synergies with education, especially art education’ as objectives for the working group on

44 45 46 47 48

Sacha Garben, ‘The Bologna Process and the Lisbon Strategy: Commercialisation of Higher Education Through the Back Door?’ (2010) 6 Croatian Yearbook of European Law and Policy 209, 217–18. The European Higher Education Area ‘The Bologna Declaration of 19 June 1999’ accessed 10 February 2019. [2007] OJ C287/1, para 3. Ibid para 7. ceu, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on a Work Plan for Culture 2008–2010’ [2008] OJ C143/9.

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‘Culture-education synergies’.49 It appeared that the first step in introducing the omc in the area of culture was like a ‘pilot action’, which showed that more defined topics should be offered and that additional emphasis on the analysis of national practices was needed.50 The Work Plan for Culture 2011–2014 presented a revised set of six priority areas: cultural diversity, intercultural dialogue and accessible and inclusive culture; cultural and creative industries; skills and mobility; cultural heritage, including the mobility of collections; culture in external relations; and culture statistics. Education was linked with the priority focused on cultural diversity, intercultural dialogue, and accessible and inclusive culture. The target of seeking the ‘[i]dentification of policies and good practice manual for public arts and cultural institutions’ was set within ‘[t]he role of public arts and cultural institutions in the promotion of: cultural diversity and intercultural dialogue’.51 This included an analysis of the policies and good practices with regard to the creation of spaces in public arts and cultural institutions to facilitate exchanges among different cultures and social groups, in particular by highlighting the intercultural dimension of the heritage in question, and by promoting artistic and cultural education and developing intercultural competences. It also included the identification of good practices for the development of this competence and its integration into education policies on the basis of knowledge and attitudes identified in the Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning.52 The good practice manual for culture and education authorities at the national and European levels was not completed by the end of the Work Plan.53 Therefore, the group of experts continued their work within the next phase (2015–2018). According to the external evaluation, the intended results of the programme are practical, including handbooks, guides, and tools. The 49

50 51 52 53

Ibid Annex i. The working group will consider, report, and make recommendations on the following areas: ‘policies aimed at promoting synergies between culture and education, including arts in education, and the development of projects, in order to implement the key competence “Cultural awareness and expression”; exchange of best practices on activities and structures at regional, national, and local level to promote arts and cultural education, either formal (as an integrated part of school curricula), non-formal or informal’. European Commission, ‘Report on the implementation of the European Agenda for Culture’ com (2010) 390 final. ceu, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on the Work Plan for Culture 2011–2014’ [2010] OJ C325/1, Annex 1. [2006] OJ C394/10. European Commission, ‘Report on the implementation and relevance of the 2011–14 Work Plan for Culture’ com (2014) 535 final.

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evaluators pointed out that greater impact could be achieved through advanced information-sharing channels between the omc participants and the decision makers at the national level.54 Within the Work Plan for Culture (2015–2018),55 the educational aspect of various target groups (EU citizens, public cultural institutions, and authorities at the regional and national levels) appears in all of the four priorities set out for creating an accessible and inclusive culture, cultural heritage, and cultural and creative sectors: creative economy and innovation; promotion of cultural diversity; culture in the EU’s external relations; and mobility. In the priority area of ‘accessible and inclusive culture’, the topic ‘Development of the key competence “cultural awareness and expression”’ was introduced. This was a continuation of the aim contained in the Work Plan 2011–2014, with experts meant to identify good practices for the development of this competence and its integration into education policies. The result of their work was the Manual of good practice for culture and education authorities at the national and European level.56 The recommendations provided by the experts were divided into three groups: integrated policy developments; cultural policy; and educational policy. The general conclusion was that a more strategic and integral approach should be introduced. Significantly, it also pointed out the variety of tools to develop the key competence of cultural awareness and expression.57 Both arts education and cultural education were recognized as essential for lifelong learning and for the full development of personality and citizenship.58 This is inextricably linked with the fact that their role is to ‘encourage people to learn about their cultural heritage and to engage with various forms of traditional and contemporary art (arts education in the narrow sense) and everyday culture (cultural education in the broad sense) as a source of and resource for their present and future life’.59 4

Common European Cultural Heritage

The concept of a common heritage is one of the pillars of the integrated approach to cultural heritage. It was underlined in 2014 in the Communication 54 Ibid. 55 ceu, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on a Work Plan for Culture (2015–2018)’ [2014] OJ C463/4. 56 Directorate-General for Education and Culture (n 31). 57 Ibid 20. 58 Ibid. 59 Ibid 21.

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from the Commission towards an integrated approach to cultural heritage for Europe (‘the 2014 Communication’) that cultural heritage is ‘a shared resource, and a common good’, which constitutes ‘our common responsibility’.60 However, while the document declares that there is no contradiction between national responsibilities and EU action and that heritage is always both local and European, it looks like there is a rising threat to this concept: the current overly radical national approaches introduced by some political regimes within the EU, the influence of which needs to be assessed.61 The elements of national cultural heritage should be, but often are not, viewed as natural elements of the greater puzzle that is European cultural heritage. Instead, ever more nationalistic attitudes are undermining the common heritage concept. This concept is strongly based on the diversity of cultures and the search to establish which parts could be defined as cultural heritage of European significance. Some authors additionally undermine this concept by referring to ‘a Europe built from cultural heritages and identities that together form a kind of bricolage of majorities and minorities’,62 an assessment which poses a risk to the concept. However, this view is addressed in the 2014 Communication’s conclusions, which state that ‘European experience shows that it is possible to progress from an appreciation of the uniqueness of one’s own heritage to an interest in and respect for the heritage of others’.63 According to the 2014 Communication, Europe shall be ‘a laboratory for heritage-based innovation’,64 which will result in further integration. But a lot of work needs to be done before creating the appropriate environment for such an outcome. As the heritage sector is at a crossroads, its future integration will require using all available tools, such as e-learning and digitization, to affirm the common European cultural heritage and engage all members of EU society in cultural policy. Owing to online access, the distance between the giver and recipient of this information is shorter and less time-consuming. But all of the methods offered by EU policy demand some activity and engagement from the Member States. Without a willingness on the part of the EU Member States, one cannot consider and plan the future development and evolution of the European cultural heritage. The 2014 Communication mentions many forms of cooperation and cooperative activities. European integration in the 60

European Commission, ‘Towards an integrated approach to cultural heritage for Europe’ (Communication) com (2014) 477 final, para 1.1. 61 Ibid, para 1.1. 62 Lars-Eric Jönsson, ‘“A Dangerous Country”. The Council of Europe in Search of a Common Heritage’ in Kowalski and Törnquist-Plewa (eds) (n 22) 70. 63 com (2014) 477 final (n 60) para 4. 64 Ibid.

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area of culture is a process based on diverse methods and tools and involving activities at different levels (local, regional, and national). In the context of the more integrated approach, it should be noted that the interaction of policies in both the areas of culture and education is also determined by other policies in the areas of regional development, social cohesion, agriculture, maritime affairs, environment, tourism, education, the digital agenda, research, and innovation. This proves how complex current EU policies are and how cultural heritage issues are occurring in multiple perspectives.65 5

The Impact of Educational Activities on Cultural Heritage

Cultural heritage is strongly visible in the education policies and programmes of the EU Member States aimed at building cultural awareness among citizens as the first step toward enhancing sustainable development in cultural matters in the EU countries. Educational activities supported in programmes run by the EU are provided in various forms, both direct and indirect. Direct forms include: introducing cultural issues in learning programmes at all stages of education, with emphasis on the content of handbooks and educational materials; digitization processes with respect to cultural goods (both privately and publicly owned); and promoting tourism together with cultural heritage sites. Among the indirect means, one could list EU projects and dissemination of the obtained results, organizing workshops, engaging local groups, and cooperation between local authorities and citizens. Apart from basic education about culture, promoting access to cultural goods and developing professional skills in the cultural sector are also crucial. The creation of leaders in the cultural sector, by enhancing the process of gaining new competences, strengthens cultural integration and influences its pace. As it will be presented below, the European Cultural Heritage Label, together with other initiatives such as the European Capital of Culture, forms an important part of EU policy based on the promotion of and access to places designated as European Heritage Label sites and European Capitals of Culture. Other activities which promote lifelong learning, such as the Erasmus and Jean Monnet Programmes, stimulate cultural exchanges and enable participants to gain cross-cultural experience from students and academics.

65

ceu, ‘Conclusions on cultural heritage as a strategic resource for a sustainable Europe. Education, Youth, Culture and Sport Council meeting, Brussels, 20 May 2014’.

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5.1 Education and Research Policy Programmes and Actions Both the Erasmus+ Programme and the Jean Monnet Programme belong to the higher education sector, with a huge culture and culture heritage value impact. One has to keep in mind that the cultural heritage of higher education systems, in the context of access and universities’ autonomy, is also part of the European integration policy.66 In both programmes, what is most important is the exchange of experience and knowledge within and between Member States as well as non-EU actors. The first international exchange programme was Erasmus, which was established in 1987.67 Among the main goals listed in Article 2 of the Council Decision of 15 June 1987 adopting the European Community Action Scheme for the Mobility of University Students was the strengthening of the interaction between citizens in different Member States, with a view to consolidating the concept of a People’s Europe, which strongly relates to the European citizenship idea. The programme’s current version is Erasmus+,68 which continues the goals set out in the Lifelong Learning Programme 2007– 2013.69 Article 12 of Decision No 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning refers to horizontal policies, mentioning first the promotion of an awareness of the importance of cultural and linguistic diversity within Europe, as well as the need to combat racism, prejudice, and xenophobia. Established in 2013, Erasmus+ was developed to embrace all of the EU programmes in the area of education. Pursuant to Article 5 of Regulation (EU) No 1288/2013 of the European Parliament and of the Council of 11 December 2013 establishing ‘Erasmus+’: the Union programme for education, training, youth and sport assumed that it shall promote the Union’s broad linguistic diversity and intercultural awareness. Intercultural awareness is the crucial point in understanding culture and the common European cultural heritage, the strength of which lies in its multicultural elements. Although the programme falls

66 67 68

69

Vladimir Filippov, ‘Defining the Principles of Cultural Heritage in the European Higher Education Area’ (2006) 31(4) Higher Education in Europe 359, 360. Council Decision 87/327/EEC of 15 June 1987 adopting the European Community Action Scheme for the Mobility of University Students (Erasmus) [1987] OJ L166/20. Regulation (EU) No 1288/2013 of the European Parliament and of the Council of 11 December 2013 establishing ‘Erasmus+’: the Union programme for education, training, youth and sport and repealing Decisions No 1719/2006/EC, No 1720/2006/EC and No 1298/2008/EC Text with eea relevance [2013] OJ L347/50. Decision No 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning [2006] OJ L327/45.

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within the educational sector, it prepares a solid base for an awareness of EU culture among its beneficiaries and the groups engaged. Established in 1987, the Jean Monnet Programme now falls within the Erasmus+ Programme. It is, however, more focused on the learning process as it assists academics in delivering courses and offering didactic publications on European integration and history. From the beginning, its goal was to encourage European integration and focus on research excellence. That is why the areas covered by Jean Monnet chairs and Jean Monnet Centres of Excellence were broadened to include issues concerning intercultural dialogue and regional studies.70 Together with other EU actions, Erasmus+, including the Jean Monnet Programme, creates a network of possibilities available to many target groups active in education sector. Horizon 2020, a European Commission programme focused on research and innovation, is also important for cultural heritage studies. The Joint Heritage European Programme, launched in 2009, could be given as an especially instructive example, as it involves different funding parties (European funds and partially from Member States budgets – the era Net funding system) and various groups of cultural heritage stakeholders.71 Apart from underlining the risks to heritage, the Programme’s Vision Document emphasizes the role of innovation in cultural heritage protection, as well as of digitization in enhancing education and access to cultural heritage online and disseminating project results.72 Since 2015 its financial structure has changed and now JPH2 is organized within the third pillar of Horizon 2020 (Societal challenges). For instance, this present volume stems from the HEURIGHT project, which comprises both research and educational activities and has benefitted from the Joint Programming Initiative on Cultural Heritage and Global Change.73 5.2 Culture policy Programmes and Actions Among the new, modernized tools which the EU has introduced to enhance its cultural policy one may mention the Creative Europe and Horizon 2020 programmes as instruments supporting research. Creative Europe was e­ stablished 70

Stefania Baroncelli, Fabio Fonti, and Gordana Stevancevic, ‘Mapping Innovative Teaching Methods and Tools in European Studies. Results from a Comprehensive Study’ in Stefania Baroncelli and others (eds), Teaching and Learning the European Union: Traditional and Innovative Methods (Springer 2014) 94–5. 71 accessed 12 February 2019. 72 ‘The Joint Programming Initiative on Cultural Heritage and Global Change: A New Challenge for Europe. Vision Document’ (17 June 2010) accessed 14 February 2019. 73 accessed 14 February 2019.

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in 2013 by Regulation (EU) No 1295/2013 of the European Parliament and of the Council74 as an EU framework programme devoted to the culture and audiovisual sectors. Under Article 3 of this Regulation, there are two general objectives: (1) ‘to safeguard, develop and promote European cultural and linguistic diversity and to promote Europe’s cultural heritage’; and (2) ‘to strengthen the competitiveness of the European cultural and creative sectors, in particular of the audiovisual sector, with a view to promoting smart, sustainable and inclusive growth’. These are broken down into specific goals (Article 4), for which Creative Europe established three specialized sub-programmes in different cultural activities: the MEDIA Sub-programme; Culture Sub-programme; and Cross-Sectoral Strand (Article 6). Among the indicators designed for the programme one may find some directly connected with education on cultural heritage matters, such as ‘the number of people accessing European cultural and creative works, including, where possible, works from countries other than their own’, and others related to the measurement of specific objectives (Article 18). As already mentioned, another important programme that was created to strengthen European identity is the European Heritage Label (ehl),75 which has been operating at the EU level since 2013. It stems from an intergovernmental European Heritage Label initiative launched on 28 April 2006 in Granada in Spain, which then became an EU action. Its main aim is to promote both heritage sites as well as access to them. These general principles were delivered in the decision, while noting that the action is not to deliver systems of protection, as that remains a task within protection regimes. While the target group is wide, young people are emphasized. The action is also supposed to be an area of cooperation between sites and their managers. Enlisting cultural heritage is already an established method within cultural heritage systems’ solutions. Despite its different aims, the EU action is meant to align with the unesco World Heritage List, the unesco Representative List of the Intangible Cultural Heritage of Humanity, and the Council of Europe’s European Cultural Routes. The programme is currently still under development, with 38 labelled sites so far.76 The selection process for the listing of sites foresees not only the i­ nvolvement 74 75 76

Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC [2013] OJ L347/221. Decision No 1194/2011/EU of the European Parliament and of the Council establishing a European Union action for the European Heritage Label [2011] OJ L303/1. For more, see Krzysztof Kowalski, ‘Inventing a Common European Memory: Reflections on the “European Heritage Label” Initiative’ in Katarzyna Jagodzińska and Jacek Purchla (eds), The Limits of Heritage (International Cultural Centre 2015) 627–42.

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of the Member State where the site is located, but also engagement with the local authorities. The ehl programme needs to be perceived as one which gives a new European platform for cooperation, with the possibility of having joint applications for certain sites being of particular interest to one or more countries (transnational site). Additionally the criteria, based on the European significance of the site, suggest that beyond the national value, the European value is crucial for education, in particular with regard to the understanding and teaching of European history. According to the manner in which it was defined in the document, one may assume that the European citizenship values are enhanced through acceptance and understanding. According to Article 7, a project submission has to include ‘organising educational activities, especially for young people, which increase the understanding of the common history of Europe and of its shared yet diverse heritage and which strengthen the sense of belonging to a common space’. This element confirms the role of education in enhancing a common cultural heritage, as well as a common European history, in order to strengthen European citizens’ sense of belonging to the Union, and in particular that of young people. That sense of belonging is thus based on shared values and elements of a common European history and cultural heritage, as well as an appreciation of national and regional diversity and an understanding of the importance of intercultural dialogue. In addition to the ehl programme, the European Capital of Culture (ECoC) is another key initiative which highlights the diversity of European cultural heritage. It was first organized as an intergovernmental event in 1985, but has become part of European actions since 1999.77 In 2006, a Decision was issued to establish a Community action for 2007–1978 in order to ‘highlight the richness and diversity of European cultures and the features they share, as well as to promote greater mutual understanding between European citizens’. Although education is not mentioned directly in this groundwork decision, all outreach campaigns have an educational value. It has subsequently been stated that this initiative shall attract groups that would otherwise ignore culture [and] should be considered by future ECoC in terms of the type, geography and scope of the 77 78

Beatriz Garcia and Tamsin Cox, ‘European Capitals of Culture: Success Strategies and Long Term Effects. Study’ (2013) 37 accessed 14 February 2019. Decision No 1622/2006/EC of the European Parliament and of the Council of 24 October 2006 establishing a Community action for the European Capital of Culture event for the years 2007 to 2019 [2006] OJ L304/1.

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cultural offer they put on. This can be achieved for example by instigating parallel programmes of outreach arts activity within poorer neighbourhoods and communities in the city, in partnership with other service providers, and developing volunteering programmes to provide other practical opportunities to participate in the ECoC year.79 The instrument regulating the ECoC has since been amended in order to broaden the group of potential applicant countries, and thus entitles cities located in a candidate country, in a potential candidate for EU membership, or in an European Free Trade Association country which is party to the Agreement on the European Economic Area,80 to hold the title every third year.81 Education is one of the key elements in the selection process and, therefore, in the recommended actions the European Commission’s encouragement and reward for the involvement of formal education sectors was stressed.82 The participation of the education sector refers to representatives from the local and national levels.83 In the ECoC Post-2019 Online consultation, the participants mentioned education many times and in various aspects.84 The educational aspect of the ECoC is important in terms of both its medium- and longterm impact on cities’ development.85 Finally, an extensive and carefully developed use of new technologies has to be pointed out as one of the keys to delivering an effective education about EU values. For the purpose of this Chapter, the most relevant tool relates to the digitization of cultural heritage, which offers online access to it and can be used for distance learning as well. In the Europe 2020 Strategy, digitization is mentioned in the part titled ‘Smart growth – an economy based on knowledge and innovation’. Within the strategy, digitization is taken into account 79

80 81 82 83 84

85

‘Compendium of recommendations from ex-post evaluations of European Capitals of Culture 2007–2016’ (March 2018) 7 accessed 12 February 2019. Agreement on the European Economic Area [1994] OJ L1/3. Decision (EU) 2017/1545 of the European Parliament and of the Council of 13 September 2017 amending Decision No 445/2014/EU establishing a Union action for the European Capitals of Culture for the years 2020 to 2033 [2017] OJ L237/1. Garcia and Cox (n 77) 201. Ibid 94. Ecorys, ‘The European Capitals of Culture (ECoC) Post-2019 Online consultation: Analysis of the results’ accessed 12 February 2019. Dec (EU) 2017/1545 (n 81).

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with regard to both economic development and culture. The flagship action called ‘A Digital Agenda for Europe’ includes active support for the digitization of ‘Europe’s rich cultural heritage’. Digitization is presented more as a part of using Internet-based services in an economic way, but its educational value is obvious as it gives access to potentially excluded groups. The digitization of cultural heritage is a process that enables access to resources and plays an important role in preserving and documenting that heritage.86 As Trilce Navarrete, a digital heritage researcher, concluded: ‘digitization would make universal and eternal access to heritage a reality’.87 The question is how the education policy will make use of the possibilities offered by the digitization process to the European community. So far a number of public and private museums, archives, libraries, and ngos have been among the coordinators of the digitization projects. The significant role of the coordinators of digitization projects has to be emphasized, as they are responsible not only for implementing all the project’s tasks and ensuring its sustainability, but also for deciding to exclude some objects from digitization because of moral or religious issues.88 It should be added that some of the tools, such as 3D print, not only aid in making cultural heritage accessible, but also help in eliminating barriers to access for some people. This refers in particular to images and information about cultural heritage online or to those prints that provide substitute access to the original.89 6

Education in Cultural Heritage Management: Interreg and Forget Heritage

International cooperation projects between Member States on cultural heritage management very often incorporate an educational component, especially when the project is funded by the EU. In addition to highlighting good practices, assessing challenges and risks, as well as exchanging experiences, most projects foresee an additional educational impact. An example of the 86 87 88 89

For more, see Chapter 16 by Ewa Manikowska in this volume. Trilce Navarrete, ‘Digital Cultural Heritage’ in Ilde Rizzo and Anna Mignosa (eds), Handbook on the Economics of Cultural Heritage (Edward Elgar 2013) 265. Kate Hennessy, ‘Cultural Heritage on the Web: Applied Digital Visual Anthropology and Local Cultural Property Rights Discourse’ (2012) 19 ijcp 345. The most important use of 3D print is in the conservation and restoration process, but still it cannot be underestimated in popularizing cultural heritage in general or in commercial ways; for example via 3D souvenirs for tourists. Another good example are 3D prints of sculptures that could be exhibited and ‘touched’ by people with disabilities.

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e­ ducational tasks undertaken in such projects is presented here vis the activities of the Forget Heritage project, which is being conducted within Interreg Central Europe.90 The project is funded by the European Regional Development Fund, which concentrates on cross-border, transnational, and regional cooperation.91 The aim of Interreg is to foster cooperation between diverse partners from both the public and private sectors in the following areas: environment, culture and transport, innovation, and a low-carbon economy. As education about cultural heritage can take place in formal, non-formal, and informal contexts,92 this example shows that educational value is integrated into European projects referring to cultural heritage. Cooperation in the field of culture within the EU Cohesion Policy has a visible educational dimension. The educational initiatives undertaken within the Forget Heritage 2016–2019 project are diverse in terms of beneficiaries (students, local ngo representatives, local government representatives, professionals dealing with culture-related issues) and formats (workshops, reports, conferences). Additionally, the interregional cooperation in the field of cultural heritage management has stimulated mutual learning and exchanges of experiences between participants, through various pilot actions such as the Quadruple Helix around the Loggia Della Mercanzia in Genova or Writers Hub for Vodnik’s Heritage Preservation in Ljubljana,93 which demonstrate that lifelong learning is a process that can be supported through various measures. Forget Heritage 2016–2019 is an example of a project subsidized by an EU initiative in Central Europe,94 with many educational tasks involved. The project is conducted within the European Funding Programme Interreg Central Europe,95 with a total budget of €246 million. Forget Heritage96 is conducted 90

This project has been chosen as an example as the author has not only taken part in surveys, but was also able to see how it evolved on the national (with two Polish cities engaged) and international levels. 91 See about impact of the Cohesion Policy 2007–2013 on culture in Working Group of EU Member States Experts (Open Method of Coordination) on Cultural and Creative Industries, ‘Policy Handbook on How to Strategically Use the EU Support Programmes, Including Structural Funds, to Foster the Potential of Culture for Local, Regional and National Development and the Spill-over Effects on the Wider Economy?’ (April 2012) 17–19. 92 Directorate-General for Education and Culture (n 31) 22. 93 accessed 12 February 2019. 94 I would like to thank Ms Joanna Wilgorska (former Forget Heritage coordinator in Bydgoszcz) and Mrs Katarzyna Napierała (current Forget Heritage coordinator in Bydgoszcz) from the International Projects’ Unit, City of Bydgoszcz, for offering their experiences and expertise concerning this program. 95 accessed 14 February 2019. 96 Interreg Central Europe Cooperation Programme, ‘European Territorial Cooperation 2014–2020’ (4 December 2014) accessed 14 February 2019.

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within Priority axis 3—‘Cooperating on natural and cultural resources for sustainable growth in Central Europe’, and Specific objective 3—‘To improve environmental management of functional urban areas to make them more liveable places’, with a budget estimated at €2.4 million. This specific objective assumes that the quality of life in urban areas in different countries varies significantly. It also emphasizes the need to involve various stakeholders and integrate all members of society in order to face the challenges (here cultural heritage management and cultural heritage awareness) together: Capacities of the public sector and related entities for integrated environmental management ensuring compliance with environmental policies, engaging with the relevant stakeholders and integrating environmental considerations into economic decisions are, however, not yet sufficiently established in many central European cities. This calls for a closer vertical and horizontal coordination and integration of environmental management measures considering urban cores and their hinterlands.97 The three year project was the result of a proposal submitted by seven countries: Croatia, Germany, the Czech Republic, Slovenia, Italy, Hungary, and Poland. It seeks to improve the quality of life of their citizens and encourage private-public cooperation in cultural heritage management. It also aims to inspire the establishment of innovative business entities involved in creative industries in historic buildings. Partners from eight European cities are involved and, therefore, eight pilot actions establishing a new function for unused heritage/historic buildings are envisioned as the project’s outcomes. Each partner is meant to lead one pilot action prepared by the project team concerning the re-use of historic buildings for cultural purposes, in cooperation with local groups engaged in the cultural sector. The project seeks to introduce new initiatives in unused historic buildings which are relevant to the history of the region and well-recognized by local groups. The most difficult decision to be made for nearly all participants has been choosing the right building within the time allocated while also ensuring the project’s sustainability. A pilot action ‘Young Craftsmen in an Old City’ could be a good start to a new chapter for the whole historic building which is in the city centre in Bydgoszcz, as well as serve as an inspiration for future educational actions prepared by local ngos.98

97 Ibid. 98 Originally it was a regional city market with special stalls (spaces) for each shop owner. Its peak popularity was in the 1990s. Finally, however, a smaller space was given to the project

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The idea of connecting a heritage building with cultural and creative industries is in line with the aim of linking the culture-related issues with economic uses and economic goals.99 As donations of artists and cultural industries play an important role in building city centres,100 in the Forget Heritage project cultural industries and new craftsmanship initiatives were linked with the aim of giving new functions to old cultural heritage buildings. The stimulation to establish creative industries and encourage entities to build clusters remains an important part of this cultural policy. This results from the new attitude to culture, i.e. as an area that can have a significant impact on economic growth. The visible change in perception is the effect of a new understanding of culture and the opportunities it creates for an economy, involving both the public and private sectors.101 Three panel meetings focused on education (higher education) in the cultural sector and led to discussions regarding issues connected with good practices in the organization of cultural events and cultural heritage management. The first meeting involved the participation of university students who were studying culture-related subjects. The report prepared after the meetings showed that the potentially aware respondents did not have sufficient knowledge and information about the region and that there is still more to be done in terms of curriculum planning. During the group workshops, the issue of exchange of good practices in cultural heritage management in the region was also raised.102 The Forget Heritage project reflects the idea of a common European heritage and of facing the challenges of the future together, which is at the core of the European Funding Programme Interreg Central Europe. Thus the cooperation between representatives/local leaders of the cultural sector should lead to their involvement in creating public policy and the mutual exchange coordinators close to the city centre and linked with the history of one of the oldest hair salons, that was operating there from 1941. 99 William H Jansen, ‘Cultural Heritage in the Global Policy Arena: Issues, Institutions, and Resources in the Policy Mix’ in Phyllis M Messenger and George S Smith (eds), Cultural Heritage Management. A Global Perspective (University Press of Florida 2010) 239–40. 100 Brian Goodey, ‘Interpreting Urban Heritage’ in Alison Hems and Marion Blockley (eds), Heritage Interpretation (Routledge 2006) 29. 101 Dave O’Brien, Cultural Policy. Management, Value and Modernity in the Creative Industries (Routledge 2014) 5–6, 42–3. 102 Regarding the project all project partners were supposed to prepare their own models of management, and diagnose threats and opportunities in order to enable the project’s leader to combine all the perspectives into one handbook, presenting an international, unanimous attitude. See the project’s website: .

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of experiences. The participants drafted a set of useful guidelines and advice for potential managers which could be applied in all processes pertaining to cultural resource management, which include an interdisciplinary approach, an awareness of public needs, and an understanding of cultural heritage law.103 Among the many tasks, that of dialogue and educational activities devoted to different target groups should be particularly emphasized. The undertaken educational actions seem to have had a strong impact, as their beneficiaries are not only the participants, but also people who can be taught or influenced by the participants, which confirms the possibility of an EU-level education on cultural heritage. 7 Conclusions Education undisputedly can be a powerful tool to achieve integration and closer social cohesion within the EU. The programmes in education are one of the omc areas that enable the EU to introduce certain actions in spheres that are beyond its direct competences. The education programmes also support the implementation of omcs and strengthen their place in the EU harmonization and integration governance instruments.104 Education appears in diverse EU programmes. Also, the role of the educational tasks in those programmes ­varies—from a leading one to just accompanying the main goal of the projects (see the Forget Heritage project, for example). In-depth research into all of the available EU financial tools could perhaps strengthen the EU subsidized initiatives. In addition, the way education has been integrated in EU policy shows that the same goals can be achieved using different tools, and also shows how they are complementary to each other. Diverse measures are available to strengthen intergovernmental cooperation in the area of education and culture. The link between them is additionally visible in the fact that both policies are coordinated by the same Directorate. The offered programmes and policies have important objectives. Due to the objectives, actions undertaken may have an impact not only on the cultural heritage awareness of society members, but also on economic growth within the EU as well as on the quality of Research & Development. Therefore, in 103 See Thomas F King, Cultural Resource Laws and Practice (AltaMira Press 2013) 359. 104 Pascal Lejeune, ‘European Union Support to Learning Mobility: Rationale of a Success’ in Günter J Friesenhahn and others (eds), Learning Mobility and Non-Formal Learning in European Contexts: Policies, Approaches and Examples (CoE Publ 2013) 25, 28–29.

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some programmes heritage management is connected with entrepreneurial initiatives. The wide range of educational activities about European cultural heritage should have a practical dimension. Both culture and education are prominent in EU policies, and their potential is acknowledged by all the responsible EU institutions.105 The concept of a common European cultural heritage seems to be delivered in EU policy through actions that concentrate on cultural awareness and intercultural dialogue. The perception of European Cultural Heritage as a link between EU citizens should flow from a state of mutual cultural respect and the affirmation of cultural diversity. The concept of a European cultural heritage, supported by specialized programmes, can be easily placed within the broader EU policy. Its aim is to tighten the bonds within the EU and mitigate the EU’s crisis concerning intergovernmental relationships. Although some projects, such as promoting the idea of a common EU history book, have either failed or been highly criticized (such as the House of European History), they have nevertheless partially fulfilled their mission through the issues they raised. All efforts to stimulate discussion about the EU and its common goals and main values, which include diversity, should be appreciated. The worst thing that could happen is cutting the debate off and diminishing mutual respect and understanding. The concept of a common European cultural heritage is also politically oriented. At the same time, the more a common European cultural heritage will be present in the political dialogue, the more probable will be the introduction of new legal institutions dedicated only to a limited group of objects which will flow from their new international status. However, the awareness of the common European heritage among future leaders and politicians—and future generations in general—makes integration more likely to succeed. Education and enhancing the European identity, especially in the sphere of cultural heritage, can be a catalyst for development in other areas of EU policy, such as regional cooperation, taxes, and agriculture, as these areas overlap each other. The EU subsidies invested in widely varying programmes are part of a broad economic policy aimed at sustainable development, which additionally offers a multitude of educational tasks, as the Forget Heritage project demonstrates. The success of this policy is its wise use in economic development of all resources, including cultural heritage and culture-related activities. It is no secret that Member States are struggling with a polarization of interests when it comes to the issue of European versus national identities. One can 105 Krzysztof Kowalski, O istocie dziedzictwa europejskiego – rozważania [On the essence of European heritage – deliberations] (Międzynarodowe Centrum Kultury 2013) 11.

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argue that misguided educational policies, such as ones based on inappropriate assumptions like radical nationalism, can pose a major threat to the EU’s future. For now, the debate about common goals has not yet concluded, even though it seems that some consensus can be noted with respect to European cultural heritage and its challenges in terms of the cultural heritage safeguarding and becoming an important asset in economic development. Perhaps the discussions resulting from the European Year of Cultural Heritage regarding cultural education in the broad sense will bring some clarification and better solutions for future international cooperation on education about cultural heritage.

Part 3 Cultural Heritage and the European Union: New Frontiers

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Chapter 11

The Cultural Heritage of Minorities and Indigenous Peoples in the EU: Weaknesses or Opportunities? Alexandra Xanthaki 1 Introduction The importance of the cultural heritage of minorities and indigenous peoples has only recently began to be explored in law. International human rights law recognizes to members belonging to minorities their right to culture, that includes protection of cultural heritage. For minorities within the EU, their cultural heritage is an essential tool for maintaining and strengthening their identity. In their joint article, Jakubowski, Fiorentini, and Manikowska have demonstrated how church bells have been vehicles of collective memory and cultural identity in parts of Eastern Europe.1 In Desulo of Sardinia, traditional woven dresses, embroidered with colourful flowers and vibrant stitching, tell stories of life, death, and place. ‘“Each stitch, every piece of fabric, all the colours talk about me”, one community member explains. “Red like embers when I got married, black like coal after I became a widow”.’ Pecora states: ‘In every dress I see a life, and in every life, a story’.2 The recent interest of the international community in the protection of cultural heritage has revealed a serious gap in the protection of minorities internationally. Minority heritage is often appropriated by the State and presented as part of the national cultural heritage and/or undermined and trumped upon by other, often commercial, interests. For example, believers of the Old Belief religion in Estonia have commented that the use of their cultural heritage for touristic purposes by the

1 Andrzej Jakubowski, Francesca Fiorentini, and Ewa Manikowska, ‘Memory, Cultural Heritage and Community Rights: Church Bells in Eastern Europe and the Balkans’ (2016) 5(2) International Human Rights Law Review 274. 2 As quoted in ‘Folklife Friday: Shabbat in Zimbabwe, Sardinian Dresses, and More’ (Smithsonian Center for Folklife & Cultural Heritage, 3 November 2017) accessed 31 January 2019.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_013

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government undermines its heritage value.3 The Jewish minority in Poland ­experiences surprise by the new law that makes it illegal to accuse the Polish nation of having taken part in the atrocities and the systematic mass murder of the Jews committed by the Germans during World War ii.4 Indigenous peoples also ask for the realization of their rights to cultural heritage. For example, Saami in Finland continue to ask for the recognition and control of their artefacts and designs.5 In contrast to minorities, indigenous rights to cultural heritage have been very clearly recognized recently in the UN Declaration on the Rights of Indigenous Peoples (undrip).6 They derive from indigenous self-determination and include collective rights to the development and the management of cultural heritage as well as the free, prior and informed consent on decisions that affect them. And it seems that the indigenous movement may be more active in its claims rather minorities at the EU level: In a meeting of indigenous delegations and the European Parliament in 2016, indigenous delegates asked the support of the EU to the idea of international repatriation, the establishment of an international mechanism to fight for the selling of indigenous artefacts illegally, and the establishment of capacity building programs for the preservation of indigenous cultural heritage.7 It is argued in this Chapter that although the EU has declared that the rights of members belonging to minorities and indigenous peoples should be respected by the EU, its legal framework is wholly inadequate in protecting their rights to their cultural heritage. Such protection remains indirect and falls short of the emerging international human rights standards on cultural heritage. Interestingly, the intangible cultural heritage of minorities, although very recently recognized at the international level, at the EU level is better protected than other kinds of cultural heritage. In contrast, the tangible cultural heritage of minorities is left in the total control of the EU State.

3 Aleksandr Aidarov, ‘Tourism and the Preservation of Old Belief in Estonia: The Frontstage and Backstage of Estonian Old Believers’ (2016) 22(2) IJCPolicy 200. 4 Svenja Bethke, ‘Poland is Trying to Rewrite History with This Controversial New Holocaust Law’ (The Conversation, 16 February 2018) accessed 31 January 2019. 5 Alexandra Xanthaki and others (eds), Indigenous Peoples’ Cultural Heritage (Brill/Nijhoff 2017). 6 United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, UNGA Res A/Res/61/295 (2 October 2007). 7 ‘Indigenous delegates recommendations to the Eropean Parliament’, Meeting hosted and chaired by Mrs Hautala, European Parliament, 14th June 2016 in https://www.docip.org/en/ indigenous-peoples-at-the-eu/indigenous-peoples-meetings-with-the-eu/, assessed 31 January 2019.

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2 The EU Legislative Framework: Yes but No… 2.1 The EU Treaties Article 2 of the Treaty of Lisbon8 explicitly proclaimed the respect of the EU for minority rights: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail. Article 3(3) of the Treaty on European Union also declares that the EU ‘shall combat social exclusion and discrimination, and shall promote social justice and protection (…). It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced’.9 Hence, both the rights of minorities and non-discrimination are deemed to be essential values of the EU. The Charter of Fundamental Rights of the European Union (cfr),10 a binding instrument, also proclaims in Article 21 that ‘[a]ny discrimination based on any ground such as (…) membership of a national minority (…) shall be prohibited’.11 Article 22 proclaims: ‘The Union shall respect cultural, religious and linguistic diversity’.12 Both the above provisions can be applied to the cultural heritage of minorities: the rights of persons belonging to minorities include recognition and protection of their culture and their heritage, whereas non-discrimination must also be insured with respect to the cultural activities of persons belonging to minorities. The above provisions also apply to the cultural heritage of indigenous peoples: Although minorities and indigenous peoples are different, the international legislative regimes for the protection of minorities also applies to indigenous peoples in addition to the specific instruments for the protection of indigenous peoples. Yet, despite the statement of the European Union Agency for Fundamental Rights that ‘the Treaty of Lisbon puts a new emphasis on persons belonging 8

European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01. 9 OJ C 326, 26.10.2012, pp. 13–390. 10 Charter of Fundamental Rights of the European Union [2012] OJ C326/391. 11 Ibid. 12 Ibid.

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to minorities and on diversity in general’,13 the protection provided by the EU for the cultural heritage of minorities and indigenous peoples after Lisbon is indeed very limited. Both Article 3(3) of the Treaty on European Union (teu)14 and the cfr do not constitute legal basis provisions. In other words, the EU cannot regulate neither in the field of cultural heritage nor in the field of minority rights.15 Therefore, no protection can be directly given to minority cultural heritage by the EU and no such policies can be directly applied by the EU. It is assumed that such measures will come from the individual Member States. The EU’s position on this has recently been confirmed. A proposed European Citizens’ Initiative to ‘improve the protection of persons belonging to national and linguistic minorities and strengthen cultural and linguistic diversity in the Union’16 was halted by the European Commission in 2013. A European Citizens’ Initiative enables EU citizens to request the European Commission to consider an idea as a possible basis for a legislative proposal.17 Commission Decision C (2013) 5969 of 13 September 2013 refused the registration of an initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’ that called ‘upon the EU to adopt a set of legal acts to improve the protection of persons belonging to national and linguistic minorities and strengthen cultural and linguistic diversity in the Union’.18 In recognizing the gap that exists in the EU legal framework, the initiative asked for ‘policy actions in the areas of regional and minority languages, education and culture, regional policy, participation, equality, audiovisual and other media content, and also regional (state) support’.19 The annex to the initiative mentioned 11 specific proposed legal acts including, inter alia, a recommendation of the Council on the protection of cultural diversity in the Union; a decision of the Council and the Parliament for funding programmes accessible for minorities; regional funds available for the protection of minorities; a proposed centre for linguistic diversity; effective measures to address discrimination and lack of 13

European Union Agency for Fundamental Rights, Respect for and Protection of Persons Belonging to Minorities 2008–2010 (EU Publ Office 2011) 24 (emphasis added). 14 OJ C 326, 26.10.2012, pp. 13–390. 15 Tawhida Ahmed, ‘The Treaty of Lisbon and Beyond: The Evolution of EU Minority Protection?’ (2013) 30 elr 36. 16 ‘Minority SafePack – one million signatures for diversity in Europe’ (European Citizens’ Initiative Official Register) accessed 31 January 2019. 17 Anastasia Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Lawmaking’ (2017) 54 cmlr 177. 18 ‘Minority SafePack’ as above. 19 Ibid.

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equality; and measures to promote copyright legislation more suitable for minorities. In February 2017, the General Court of the European Union annulled the Decision of the European Commission not to register the Citizens’ Initiative on the ground that it had failed to state reasons.20 However, in its new Decision 2017/652 of 29 March 2017, the Commission confirmed its legal position: A legal act of the Union for the purpose of implementing the Treaties cannot be adopted either as regards effective measures to address discrimination and to promote equal treatment, including for national minorities (…) Whilst irrespective of their field of action, the Union institutions are bound to respect ‘cultural and linguistic diversity’ in accordance with Article 3(3) teu and to refrain from discrimination based on ‘membership of a national minority’ in accordance with Article 21(1) of the Charter of Fundamental Rights of the European Union none of these provisions constitutes a legal basis for whatever action by the institutions.21 Therefore, the EU is under no obligation to take positive action to protect the cultural heritage of minorities. A window of opportunity could be the use of Article 19 of the Treaty on the Functioning of the European Union (tfeu),22 which establishes the possibility of legal action ‘to combat discrimination’. If persons belonging to a majority benefited from measures that protected the cultural heritage of such majority groups, minorities could potentially claim discrimination and ask for similar measures for minority groups. However, the European Commission has rejected such a possibility: Article 19 tfeu provides that without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. However, this exhaustive list of grounds of discrimination does not include membership of a national minority. Therefore, Article 19 tfeu 20 21 22

Case T-646/13 Minority SafePack – one million signatures for diversity in Europe v Commission [2013] ECLI:EU:T:2017:59. Commission Decision (EU) 2017/652 of 29 March 2017 on the proposed citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’ [2017] OJ L92/100, para 7. Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C326/1.

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cannot constitute the legal basis for the adoption of a legal act of the Union for the purpose of implementing the Treaties proposals for ‘effective measures to address discrimination and to promote equal treatment, including for national minorities’.23 In other words, the Commission drew a distinction between racial or ethnic origin and membership of a national minority. Such a distinction is inconsistent with international human rights standards, nor is it very clear. The UN Declaration on Minorities refers to them in the title as ‘national or ethnic, religious and linguistic’,24 so people belonging to national minorities are persons of racial or ethnic origin. The Advisory Committee of the main instrument of the Council of Europe on minorities, the Framework Convention on National Minorities (fcnm),25 also discusses within its remit persons of racial or ethnic origin. Therefore, minorities of ethnic or racial origin and national minorities fall within the same category. Making a distinction between their rights is quite arbitrary and not in accordance with current standards of international law. Article 167(1) tfeu recognizes the responsibility of the EU to contribute ‘to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’. Paragraph 2 proclaims that [a]ction by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the (…) improvement of the knowledge and dissemination of the culture and history of the European peoples, conservation and safeguarding of cultural heritage of European significance.26 However this provision does not concern minority cultural heritage. Not only is it not helpful in gaining respect and protection of minority heritage, it actually leads to its disrespect, as shown below. First, by focusing on cultural heritage of ‘European significance’, it adopts an understanding of culture focused only on significant cultural elements, rather than as a way of life. This is not in tune with the current understanding of 23 24 25 26

Ibid para 8 (emphasis added). Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNGA Res A/Res/47/135 (3 February 1992). Framework Convention for the Protection of National Minorities (adopted 10 November 1994, entered into force 1 February 1998) ETS 157. Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C326/1.

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culture and its meaning. Originally, international law focused on protecting specific tangible objects. The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict,27 the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property28 and the 1972 unesco Convention Concerning the Protection of the World Cultural and Natural Heritage29 defined cultural heritage as monuments, groups of buildings and sites of outstanding universal value. Culture as a way of life was not considered within the remit of culture. However in 2018, the unesco Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage deemed a host of new elements significant in protecting ‘a way of life’.30 And of course the UN Human Rights Committee (unhrc) has long talked about culture as a ‘way of life’.31 Second, in promoting EU culture, it leaves open the possibility of trampling on the rights of minorities to their cultural heritage for the sake of European culture. The only obstacle to such a process is implied in Article 167(4) tfeu, which states that the ‘Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures’. Yet this language is not very clear and the possible protection of minority cultural heritage against encroachment by measures aimed at strengthening EU culture is not very direct. To date, the only clear reference to the cultural heritage of minorities comes from the European Parliament. In 2017, the Parliament urged States to ‘pay particular attention to monuments, buildings, cemeteries and everyday implements which are of great importance to the cultural heritage of minority peoples, and to engage in enhanced cooperation by including them in any decision-making process that affects their cultural heritage’.32

27 28 29 30 31 32

Adopted 14 May 1954, entered into force 7 August 1954, 249 unts 358. Art 1 describes cultural property as ‘property of great importance’. Adopted 14 November 1970, entered into force 24 April 1972, 823 unts 231. Article 1 defines cultural property as property ‘of importance to archaeology, prehistory, history, literature, art or science’. Adopted 16 November 1972, entered into force 17 December 1975, 1037 unts 151. Art 1 defines heritage as works or buildings ‘of outstanding universal value’. ‘Preserving Intangible Culture for Future Generations’ (UN News, 16 January 2018) accessed 31 January 2019. unhrc, ‘General Comment No 23. Art 27 (Rights of Minorities)’ (26 April 1994) CCPR/C/21/Rev.1/Add.5, para 7. European Parliament, ‘Motion for a resolution pursuant to Rule 133 of the Rules of Procedure on support for the preservation of the heritage of ethnic minorities in Europe’ (26 January 2017) EU Doc B8-0131/2017, para 3.

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2.2 The European Convention on Human Rights Although still waiting for the accession of the EU to the European Convention on Human Rights (echr),33 the latter enjoys a higher status than other international treaties. In addition to having the status of ‘general principles of EU law’, it also acts as interpretative tool to the EU’s own human rights legal text, the European Charter of Fundamental Rights, that is ‘closely modelled on the echr’.34 Most importantly, it is the only international instrument chosen to be given the status of primary law (Article 6(2) Lisbon Treaty). As Psychogiopoulou notes: Declared as an autonomous source of EU fundamental rights principles— insubordinate to national constitutionally protected human rights—the echr functions as a limitation on EU action. The cjeu is entrusted with the task of ensuring respect for its provisions by the European ­institutions, while national rules falling with the scope of EU law are also ­required to be compatible with the echr.35 However, the echr has several limitations regarding the protection of minority cultural heritage. The Convention does not recognize minority rights, neither does it recognize the right to cultural heritage, nor the right to culture. In Syllogos Ton Athinaion v the United Kingdom,36 the European Court of Human Rights held that Article 8 does not give rise to a general right to protection of cultural heritage. In Hingitaq 53 and Others v Denmark,37 the Court did not consider the importance that the forced relocation had for the Inughuit tribe’s identity and heritage. And although the Court has accepted that protection of 33

34 35 36 37

(Adopted 4 November 1950, entered into force 3 September 1953) 213 unts 221, as amended. For the accession of the EU to the echr, see European Parliament, EU accession to the European Convention on Human Rights (echr), Briefing, July 2017, at accessed 31 January 2019. Also see Sonia Morano-Foadi and Stelios Andreadakis, ‘The EU Accession to the echr after Opinion 2/13: Reflections, Solutions and the Way Forward, Paper submitted to the European Parliament’s Committee on Constitutional Affairs Public Hearing on “Accession to the European Convention on Human Rights (echr): Stocktaking after the ECJ’s Opinion and way forward”’ 20 April 2016, accessed 31 January 2019. Paul Craig and Gráinne de Búrca, EU Law: Texts, Cases, Materials (5th edn; oup 2011) 399. Evangelia Psychogiopoulou, ‘The European Union and Cultural Rights’ in Ana Filipa Vrdoljak (ed), The Cultural Dimension of Human Rights (oup 2013) 162. App no 48259/15 (ECtHR, 31 May 2016). echr 2006-I 345.

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cultural heritage is a legitimate aim for the restriction of other human rights,38 one can only hope that this would include, if not be even stronger, for minority cultural heritage. Nevertheless, some protection has been given by the Court to minority cultural heritage in an indirect way, through the provisions on private and family life (Article 8), freedom of thought, conscience, and religion (Article 9), assembly and association (Article 11), discrimination (Article 13), and education (Article 2 of the First Protocol).39 The Court’s statement on Article 8 echr is noteworthy, where it stated that: an emerging international consensus (…) recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (…) not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.40 The Court has recognized the positive obligations of States to facilitate the Roma way of life, including consideration of their needs and their different lifestyle.41 This is part of the minorities’ cultural heritage. The right to seek historical truth is another element of cultural heritage useful to minorities, and which has been protected. The Court has held that the negation or revision of clearly established facts, such as the Holocaust, does not fall within the protection of Article 10 echr (freedom of expression).42 Although the Court has repeated that this applies only to ‘clearly established historical facts’,43 these judgments can be used as the basis for protecting minorities’ histories and traditions against revisionist ideas on the part of EU States.44

38 39

Debelianovi v Bulgaria App no 61951/00 (ECtHR, 29 June 2007). Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 20 March 1952, entered into force 18 May 1954) ETS 009. 40 Chapman v the United Kingdom ECHR 2001-I 41 para 93. 41 Ibid. 42 Lehideux and Isorni v France App no 24662/94 (ECtHR, 23 September 1998) para 47; and Garaudy v France echr 2003-IX 333; and Witzsch v Germany App no 7485/03 (ECtHR, 13 December 2005). See also Paolo Lobba, ‘Holocaust Denial before the European Court of Human Rights: Evolution of an Exceptional Regime’ (2015) 26 ejil 237. 43 Lehideux and Isorni (n 26) para 47. 44 It would be interesting to see how the Court would view the new Polish legislation that makes it illegal to accuse the Polish nation of having taken part in the atrocities and the systematic mass murder of the Jews committed by the Germans during World War ii. See Bethke (n 4).

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The Court has also recognized the link between linguistic rights and the maintenance of the cultural identity of minorities.45 The Court has criticized measures that prevent persons belonging to minorities to ‘maintain contact with the culture and language of their country of origin’,46 including the removal of a satellite dish from the property of minority persons. The Court has also protected the right to education in one’s mother tongue47 and has held that restrictions in the use of and access to the minority language at school violates the right to education.48 Finally, the Court has also protected the right of members belonging to minorities to form associations aimed at promoting their cultural heritage, ruling that the refusal of a State to register a nonprofit association that aims at the protection of cultural heritage of minorities amounts to a violation of Article 11 echr.49 Overall, one can see that the protection of minority cultural heritage has been very limited in the echr system. Minorities’ tangible heritage has not even been considered to be protected by the echr so far. 2.3 Other International Instruments In view of the delay in the accession of the EU to the echr, and its limited use in such claims, one must look for the protection of the rights of minorities and indigenous peoples to their cultural heritage in other human rights provisions within the Council of Europe, and more widely in the UN. The Court of Justice of the European Union (cjeu) noted in European Parliament v Council of the European Union that ‘the duty to respect fundamental rights is imposed, in accordance with Article 51(1) of the Charter of Fundamental Rights of the European Union, on all the institutions and bodies of the Union’.50 The EU is also under the obligation to respect international human rights obligations only to the extent that these are binding on the EU under treaties or customary international law.51 In Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, the cjeu reiterated: 45 46

Podkolzina v Latvia echr 2002-II 419. Khurshid Mustafa and Tarzibachi v Sweden App no 23883/06 (ECtHR, 16 December 2008) para 44. 47 Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ v Belgium (Merits) App nos 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64 (ECtHR, 23 July 1968). 48 Catan and Others v Moldova and Russia echr 2012-V 309. 49 Sidiropoulos and Others v Greece App no 26695/95 (ECtHR, 10 July 1998) para 43. 50 Case C-130/10 European Parliament v Council of the European Union [2012] ECLI:EU:C:2012:472, para 83. 51 Lorand Bartels, ‘The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects’ (2014) 25 ejil 1071.

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Under Article 3(5) teu, the European Union is to contribute to the strict observance and the development of international law. Consequently, when it adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union.52 Unfortunately, largely because of lack of exclusive competence, and with the exception of the 2005 unesco Cultural Diversity Convention, the EU has not signed any treaty that would be relevant to the protection of minority cultural heritage. It has not signed the fcnm, which recognizes the right of members of minorities to their culture; neither has it signed the Faro Convention53 which explicitly protects the cultural heritage of minorities. It has also not signed the 1992 European Charter for Regional and Minority Languages,54 the European Cultural Convention,55 nor the revised European Convention on the Protection of the Archaeological Heritage.56 In any case, it may be questioned whether the latter would be of great help, as it gives a voice for the modification of development plans likely to have adverse effects on archaeological heritage to ‘archaeologists, town and regional planners’ who according to Article 5 should ‘systematically consult one another’ to permit such modification. Contrary to current international law standards, it makes no mention of minorities having an input to such decisions. Similarly, the EU has not signed any relevant human rights treaty that would push forward the protection of minority and indigenous cultural heritage. For example, the UN Convention on the Elimination of All Forms of Racial Discrimination requires that States ensure the equal right to participate in cultural activities.57 Article 15 of the International Covenant on Economic, Social and Cultural Rights58 clearly recognizes the right to culture and has been interpreted as including the right to maintain and develop one’s cultural heritage in its collective aspect. And Article 27 of the International Covenant

52 53 54 55 56 57 58

Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change [2011] ecr I-13755, paras 101 and 123. Council of Europe Framework Convention on the Value of Cultural Heritage for Society (adopted 27 October 2005, entered into force 1 June 2011) cets 199. (Opened for signature 5 November 1992, entered into force 1 March 1998) ets 148. (Adopted 19 December 1954, entered into force 5 May 1955) ets 018. (Adopted 16 January 1992, entered into force 25 May 1995) ets 143. (Opened for signature 7 March 1966, entered into force 4 January 1969) 660 unts 195 art 5(e)(vi). (Adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3.

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on Civil and Political Rights59 creates obligations on the part of States to at least not discriminate in their recognition of minorities’ right to profess their culture. In reality, the relationship between human rights and cultural heritage has only recently started being explored in international law.60 Yet, in the last decade, the provisions mentioned above have been interpreted in a manner more reflective of the need to protect cultural heritage. Unfortunately, all these provisions and their underlying principles can only be indirectly taken into account, as the EU has not become a Party to them. An exception is the 2005 unesco Convention on Cultural Diversity, which the EU has actually signed and is therefore bound by its contents. Hence it is worthy of further examination. The 2005 unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the Commitment to Minority Rights The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005 unesco Convention) is not a treaty on cultural heritage per se.61 It focuses on cultural goods and expressions and does not specifically aim to protect human rights related to cultural diversity (and subsequently, heritage).62 However, it does take a human rights’ approach, linking its content to human rights and fundamental freedoms. The Preamble confirms that the State Parties take into account ‘the importance of the vitality of cultures, including for persons belonging to minorities and indigenous peoples, as manifested in their freedom to create, disseminate and distribute their traditional cultural expressions and to have access thereto, so as to benefit from them for their own development’.63 Article 2 of the 2005 unesco Convention states that: ‘The protection and promotion of the diversity of cultural expressions 2.4

59 60

61 62 63

(Adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171. For the relationship between human rights and cultural heritage, see United Nations, Report of the Independent Expert in the field of Cultural Rights, Farida Shaheed, UN Doc A/HRC/17/38 of 21 March 2011; also see UN Report of the Special Rapporteur Karima Bennoune in the field of cultural rights, UN Doc A/71/317 of 9 August 2016; also see emrip, Study on the Promotion and Protection of the Rights of Indigenous Peoples with Respect to their Cultural Heritage, UN Doc A/HRC/30/53 of 19 August 2015. unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007) 2440 unts 311 art 2(1). Yvonne Donders, ‘Cultural Rights in the Convention on the Diversity of Cultural Expressions: Included or Ignored?’ in Toshiyuki Kono and Steven van Uytsel (eds), The unesco Convention on the Diversity of Cultural Expressions (Intersentia 2012) 177. Ibid para 16.

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presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples’. Finally, Article 7 states that State Parties shall create the necessary conditions to encourage individuals and social groups (…) to create, produce, disseminate, distribute and have access to their own cultural expressions, paying due attention to the special circumstances and needs of women as well as various social groups, including persons belonging to minorities and indigenous peoples. However, as cultural diversity is closely linked to minority and indigenous cultures and cultural heritage, one can see links between the 2005 unesco Convention as a whole and sub-national cultural heritage. In particular, the explicit attention to the preservation of cultural diversity may be of particular interest to both minorities and indigenous peoples.64 Unfortunately, the 2005 unesco Convention and its Governing Body seem to have placed very limited emphasis on the cultural heritage of minorities. This is reflected in the 2018 Global Report of the Convention,65 where one can find chapters on gender and on artists but not on minorities. In fact, the whole 251 pages of the Report contain only three references to minorities. Given that the Report notes in its subtitle (Monitoring the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions) its emphasis on monitoring, one can have very limited hope in the role that the 2005 unesco Convention will play in monitoring and ensuring that the cultural expressions of minorities within the EU are protected. The report includes statistics that 65% of the civil society organizations have contributed to national cultural policy or consultations; however, nowhere are any of these organizations specified as minority organizations.66 In light of the above, it is apparent that the EU has taken on very limited obligations regarding the protection of minority and indigenous cultures. This is also because of its lack of exclusive competence; or even because of the lack of commitment of Member States which would allow in turn the EU to take 64 65 66

Anna Meijknecht, ‘The Convention on the Diversity of Cultural Expressions: What is its Added Value for Minorities and Indigenous Peoples?’ in Kono and van Uytsel (eds) (n 62) 201–07. unesco, Reshaping Cultural Policies: Advancing Creativity for Development. Monitoring the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (unesco 2017). Ibid 86.

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on more obligations with regard to shared competences. Whatever the specific reasons, the protection of minority and indigenous cultural heritage is not seen as falling within the remit of the EU. Hence, when EU projects may violate minority and indigenous cultural heritage there is a very limited obligation on the part of EU institutions to prevent such a violation. 3

The Reality: Indirect Action towards the Protection of the Cultural Heritage of Minorities and Indigenous Peoples

Even though the EU legal framework does not give the EU the responsibility to actively, positively protect minorities’ cultural heritage, some protection has been given in an indirect manner. 3.1 Actions for Migrants Migration is a very topical issue within the EU at this time and many actions, policies, and practices have been carried out and implemented to protect the intangible cultural heritage of migrants.67 In 2015, at the start of the ‘migration crisis’ in Europe, the EU Culture Ministers agreed to create a working group of Member State experts to explore the ways that culture and art could help alleviate the crisis.68 The group identified more than 200 initiatives that fall within its mandate. They put a clear emphasis on intercultural dialogue and integration. The 2017 Report repeats that these are policies and actions for the integration of migrants and refugees. The Report identifies ‘prerequisites to effective intercultural dialogue’, which include ‘a positive attitude towards integration and a willingness to engage in dialogue, among both migrant and host communities’ and ‘acceptance of and respect for the rule of law, among both migrant and host communities, including support for fundamental human rights, and condemnation of violence and terror’. This language points towards a rather one-way understanding of integration, with few obligations attaching to the State and most placed on the migrants and refugees themselves. One would hope that future documents will also touch upon States’ obligations to encourage the integration of migrants and refugees by, inter alia, allowing them control and empowerment over their heritage.

67 68

Also see Chapter 12 by Alessandro Chechi in this volume. Directorate-General for Education and Culture, How Culture and the Arts Can Promote Intercultural Dialogue in the Context of the Migratory and Refugee Crisis (EU Publ Office 2017).

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Migrants at the receiving end of actions protecting their heritage are also often minorities. ‘Old migrants’, i.e. migrants who have been living in a State for some time, clearly fall within the definition of minorities in the prevailing opinion of international law scholarship. The length of time that the migrants should be living in the state is a matter of continuing discussion.69 Clearer is the recognition of the migrants as members of minorities irrespective of their citizenship. Contrary to the widely used Capotorti definition of the 1970s,70 a lack of host State citizenship is no longer considered as an important criterion for minority protection: the Commentary of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities maintains that citizenship ‘should not be a distinguishing criterion’.71 In 2005, the UN Working Group on Minorities recommended that governments protect the rights of all minority persons within their territory, ‘irrespective of citizenship’.72 As stated, members of such ‘migrant groups’ are often minorities. In addition, if the group is well-established but other individuals arrived recently, then they also fall within the definition of both migrants and members of minorities. unhrc noted in its General Comment No 23 that: ‘Just as they need not be nationals or citizens, [members of minorities] need not be permanent residents. Thus, migrant workers or even visitors in the State party constituting such minorities are entitled not to be denied the exercise of [minority] rights’.73 The Advisory Committee of the Framework Convention on National Minorities has on several occasions discussed, within the context of Article 6 fcnm, the rights of ‘new minorities’.74 Henrard has rightly confirmed that ‘there seems to be an emerging consensus that (…) “new minorities” should be considered to be “minorities” for the purposes of minority protection’.75 69 70 71

72 73 74 75

R Medda-Windischer, ‘Old and New Minorities: Diversity Governance and Social Cohesion from the Perspective of Minority Rights’ (2017) 11 Acta Univ. Sapientiae, European and Regional Studies 25–42. Francesco Capotorti, ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’ (1979) UN Doc E/CN.4/Sub.2/384/Rev.1, para 205. UN Commission on Human Rights, ‘Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ (4 April 2005) UN Doc E/CN.4/Sub.2/AC.5/2005/2, paras 10–11. Also see Chapter 12 by Alessandro Chechi in this volume. UN Commission on Human Rights, ‘Prevention of Discrimination and Protection of Minorities: Report of the Working Group on Minorities on its eleventh session’ (8 July 2005) UN Doc E/CN.4/Sub.2/2005/27, para 16(d). unhrc (n 18) para 5(2). Stephanie Berry, ‘Integrating Refugees: The Case for a Minority Rights Based Approach’ (2012) 24 International Journal of Refugee Law 1. Kristin Henrard and Robert Dunbar (eds), Synergies in Minority Protection (cup 2008) 12.

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The situation of refugees in EU Member States is similar. After they have settled in a State, they also form members of minorities of that State if their ethnic group has had a presence for a considerable amount of time in the receiving State.76 Most of the migrants in the EU have joined others of the same ethnicity or race, language, religion, or culture who have been living in European States for a long time. Therefore, most of the migrant groups and refugees that are the beneficiaries of EU protective actions are indeed minorities. 3.2 Old Minorities Protection to old minorities has mainly been given through the EU regional policy. Often, the regional policies of the EU regarding cultural heritage also protect minority and indigenous cultures. As mentioned earlier, the European cultural heritage benefits from a range of supportive measures (policies, programmes, and funding) aimed at its preservation (Article 3 teu) and promotion (Article 167 tfeu). The EU regional policy has indirectly helped some minorities and indigenous peoples within the EU, viewing them as regional or local cultures. For example, in 2005, a centre in the Chanov Quarter of Most, in the Czech Republic, was renovated into the Svet Roma Cultural Centre.77 The beneficiary was a minority even though the project did not announce this. In 2012–13, the EU-funded project Art School ‘Walk’ established a common cultural cross-border educational centre between the twin cities of Valka in Latvia and Valga in Estonia. Among other aspects, including inter-cultural education, the centre provided Estonian-speaking children in Latvia with art classes in Estonian.78 The linguistic Estonian minority was the beneficiary of this project. While minorities may be included in ‘local’ and ‘regional’ cultures—terms and entities which are used in the EU legal framework—nevertheless local cultures are not always minority, nor indigenous cultures. Neither does the term signify the vulnerability of minorities and their need for enhanced protection. Specifically on indigenous peoples notable is the example of the project Sámi Cultural Centre, completed in 2012 in Inari, Lapland (Northern Finland), which obviously benefited the Sámi people, as it aimed at creating better opportunities for the Sámi people in Finland to preserve and develop their own language, 76 77 78

Berry (n 55) 1. European Commission, ‘A Centre of Roma Culture in the Chanov Quarter of Most’ (17 October 2011) accessed 31 January 2019. European Commission, ‘Cross-border Education Proves a Work of Art for Latvia and Estonia’ (23 November 2017) accessed 31 January 2019.

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culture, business activities, Sámi cultural self-government, and improve their living conditions.79 Calligaro notes that the concept of heritage was mobilized to defend local cultural expressions, but also local social and economic interests against the homogenizing effects of European integration. This use of heritage is not necessarily oriented against the European integration process; sustained and sometimes initiated by the EU, it can also provide a way to develop a model of integration from below.80 A substantial level of protection is specifically given to minority and indigenous languages, as within the EU there are over 60 regional or minority languages, including, inter alia, Basque, Catalan, Frisian, Saami, Welsh, and Yiddish, spoken by about 40 million people.81 Protection for Europe’s linguistic diversity is enshrined in Article 22 of the cfr: ‘The Union shall respect cultural, religious and linguistic diversity’. Council Directive 77/486 establishes the duty of Member States to promote ‘the teaching of the mother tongue and culture of the country of origin for the children’.82 It is important that a legally binding instrument moves beyond non-discrimination and imposes an obligation on States to take positive measures to protect minority and indigenous children. Regrettably, the implementation of the Directive has been disappointing,83 even though Education Ministers of the EU have insisted on the importance of languages in their ‘Conclusions on the education of children with a migrant background’ of 2009.84 On the issue of migrant children, the Ministers see a 79

80 81 82 83 84

European Commission, ‘Project of the Week: Sámi Cultural Centre to Keep Sámi People’s Cultural Heritage Alive’ (23 April 2012) accessed 31 January 2019. Oriane Calligaro, ‘From “European Cultural Heritage” to “Cultural Diversity”? The Changing Core Values of European Cultural Policy’ (2014) 3 Politique européenne 60; see also Chapter 1 by Cynthia Scott in this volume. European Union, ‘Multilingualism’ in https://europa.eu/european-union/topics/multilingualism_en, assessed 31 January 2019. Council Directive 77/486/EEC of 25 July 1977 on the education of the children of migrant workers [1977] OJ L199/32, art 3. Bruno de Witte, ‘The European Communities and its Minorities’ in Catherine Brölmann, René Lefeber, and Marjoleine Zieck (eds), People and Minorities in International Law (Kluwer Academic Publishers 1993) 182. ceu, ‘Council conclusions on the education of children with a migrant background’ (26 November 2009) accessed 31 July 2018.

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link between integration and economic competitiveness on one hand, and social stability and cohesion on the other. The Conclusions note the importance of migrant children being taught the official language of the Member States, but also encourage the teaching of their mother tongue. Member States are invited to provide specialized training in linguistic and cultural diversity for school leaders, teachers, trainers, and administrative staff. The Rome Declaration, adopted on 25 March 2017, asserts that the EU should be one which ‘preserves [Europe’s] cultural heritage and promotes cultural diversity’.85 European leaders met on 17 November 2017 in Gothenburg to discuss the future role of education and culture in strengthening the sense of belonging together and being part of a cultural community. The European Commission contributed to this meeting via a Communication, wherein it identified key issues and set out possible ways forward with respect to education and culture.86 While nowhere in the Communication does the Commission refer to the cultural heritage of members belonging to minorities, it does note that: Europe’s cultural diversity is a strength that fuels creativity and innovation and, at the same time, there is common ground that makes up the distinct feature of the European way of life. Education and culture play a pivotal role for people to (i) know better each other across borders, and (ii) experience and be aware of what it means to be ‘European’. Understanding and preserving our cultural heritage and diversity are prerequisites to maintain our cultural community, our common values and identity.87 The reference to cultural diversity as a strength and to the need to understand and preserve ‘our’ cultural heritage may be interpreted as including minority and indigenous heritage. However, the omission of an explicit reference is telling, especially in an era where the world has now become so aware of minority rights. The failure to explicitly mention such communities implies a very limited understanding of their needs. The European Capitals of Culture project, established by Decision No 445/2014/EU of the European Parliament and of the Council of 16 April 2014, 85 86 87

European Council and the ceu, ‘The Rome Declaration’ (25 March 2017) accessed 31 January 2019. European Commission, ‘Strengthening European Identity through Education and Culture: The European Commission’s contribution to the Leaders’ meeting in Gothenburg, 17 November 2017’ (Communication) com (2017) 673 final. Ibid 3.

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also provides a degree of protection, albeit indirectly, to minority and indig­ enous cultural heritage. The project includes the aim to widen access to and participation in culture and encourages ‘the creation of new and sustainable opportunities for a wide range of citizens to attend or participate in cultural activities, in particular young people, volunteers and the marginalized and disadvantaged, including minorities’.88 During the nomination and the monitoring processes of the European Capitals of Culture, the panels have often insisted on plans involving the minorities of these capitals. Creative Europe, the latest framework cultural policy programme of the EU Commission,89 has also been indirectly helpful to the protection of minority cultural heritage. The programme explicitly refers to Articles 11, 21, and 22 of the cfr and the 2005 unesco Convention. Several of the projects funded have focused on persons belonging to both the ‘new minorities’ as well as traditional old ones. However, the emphasis seems to be mainly on the integration of members belonging to minorities and migrants, rather than their empowerment to be in control of their cultural heritage.90 In April 2016, the eacea funded 12 projects aimed specifically at the integration of refugees through culture.91 Most of them also have an impact on minority cultural heritage, as the refugees—some of whom share an ethnic origin with a specific minority within the receiving State—strengthen their own cultural heritage. Finally, the 2016 Proposal of the European Commission for a European Year of Cultural Heritage does not specifically refer to minorities or indigenous peoples as interested parties, even though it mentions the protection and involvement of persons with disabilities, the elderly, and those with reduced mobility.92 Once again, any protection provided is indirect: the document discusses the ‘local’ level and notes that 88

Decision No 445/2014/EU of the European Parliament and of the Council of 16 April 2014 establishing a Union action for the European Capitals of Culture for the years 2020 to 2033 and repealing Decision No 1622/2006/EC [2014] OJ L132/1, art 5(5)(b). 89 Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC [2013] OJ L347/221. 90 ‘Report on the Role of Public Arts and Cultural Institutions in the Promotion of Cultural Diversity and Intercultural Dialogue’ (January 2014) accessed 31 January 2019. See Voices of Culture, ‘The Inclusion of Refugees & Migrants Through Culture’ accessed 31 January 2019. 91 accessed 31 January 2019. 92 Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1, paras 9 and 10.

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[c]ultural heritage plays an important role for community cohesion at a time when cultural diversity is increasing in European societies. (…) New participatory and intercultural approaches to heritage policies and educational initiatives that attribute equal dignity to all forms of cultural heritage have the potential to increase trust, mutual recognition and social cohesion.93 The explanation of the European Commission is that ‘[p]olicies for the maintenance, restoration, conservation, reuse, accessibility and promotion of cultural heritage and related services are primarily national, regional or local responsibilities’.94 This is a valid argument so long as other stakeholders are not mentioned or prioritized in policies relating to cultural heritage. However, the specific references to historians and experts and to disabled persons, the elderly etc. call the approach into question. At the same time the documents explicitly prioritize the interpretations of the local (minority) heritage by the State or experts and historians; and in this way actively weaken the rights of minorities to control their cultural heritage. Protection of Minorities and Indigenous Peoples in the EU’s External Relations with Other States Unfortunately, although external agreements between the EU and third countries refer to co-operation in matters related to cultural heritage, there is no mention of the cultural heritage of minorities, nor of indigenous peoples in specific. In a partnership agreement that was published in January 2017 between the members of the African, Caribbean, and Pacific Group of States on the one part and the European Community and its Member States on the other part, both parties jointly agreed that to ‘promote the preservation and enhancement of the cultural heritage of each acp country, at the international, bilateral and private level’. Rather than local populations, minorities or indigenous groups, the parties acknowledge the importance of historians and researchers in promoting the development and exchange of information of the cultural heritage of these States.95 Similarly, in an agreement between Georgia and the EU, both parties agreed to cooperation in the Cultural Field, 3.3

93 Ibid para 11. 94 Ibid para 14. 95 ‘Declaration xi: Joint Declaration on the acp cultural heritage’ in Partnership agreement 2000/483/EC between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 – Protocols – Final Act – Declarations [2000] OJ L317/3.

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including ‘to co-operate on the development of an inclusive cultural policy in Georgia and on the preservation and valorization of cultural and natural heritage with a view to fostering socio-economic development’.96 However, there is no discussion of the protection of cultural heritage of the Crimeans97 or any reference to other non-State heritage. Specifically on indigenous peoples, the EU has expressed its support for the UN Declaration on the Rights of Indigenous Peoples (undrip),98 that includes a detailed analysis and recognition of rights to cultural heritage. In 2016, the High Representative of the European Union for Foreign Affairs and Security Policy and the European Commission made concrete plans to further develop EU policy in line with the UN Declaration on the Rights of Indigenous Peoples (undrip) and the Outcome document of the 2014 World Conference on Indigenous Peoples.99 Interesting is also the effect on the indigenous heritage of the European Union policy on the Arctic.100 The policy aims at protecting among other aspects, the natural and cultural heritage of the Arctic and falls within the external policy of the Union. Specifically the Northern Periphery and Arctic Programme promotes and develop cultural and natural heritage. The programme includes the nine partner countries in the European Arctic plus Canada and Russia. Although any attention to indigenous cultural heritage is very welcome, it seems that the EU is currently paying more attention to the protection of indigenous cultural heritage outside the Union, rather than within its borders. It is ironic that initiatives on cultural heritage in EU Member states do not identify the indigenous cultural heritage as a priority, whereas outside the Union, the principles incorporated in the undrip seem to be taken seriously and upheld.

96

European Commission, ‘Annex to the Joint Proposal for a Council Decision on the Union position within the Association Council established by the Association Agreement between the European Union, the European Atomic Energy Community and its Member States, of the one part and Georgia, of the other part with regard to the adoption of the EU-Georgia Association Agenda’ join (2017) 12 final, 46. 97 See Evelien Campfens, ‘Whose Cultural Heritage? Crimean Treasures at the Crossroads of Politics, Law and Ethics’ (2017) 22 aal 193. 98 ceu, ‘Council Conclusions on Indigenous peoples’, Brussels, 15 May 2017, 8814/17. 99 The Joint Staff Working Document “Implementing EU External Policy on Indigenous Peoples” (swd (2016) 340 Final) by the High Representative of the European Union for Foreign Affairs and Security Policy and the European Commission was published on 17 October 2016. 100 European Commission, ‘Joint Communication to the European Parliament and the Council: An integrated European Union policy for the Arctic’ join (2016) 21 final.

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Missed Opportunities for a More ‘Integrated Approach’ to Cultural Heritage

The above discussion reveals that the cultural heritage of minorities falls generally outside the scope of the discussion of cultural heritage in the EU. This runs against the current international trend, where the topic is gaining momentum. Indeed, there are currently important ongoing discussions in existing scholarship101 as well as in several organizations, including the UN, unesco and wipo, regarding the effect of their existing policies on minorities’ cultural heritage. The Council of Europe has also recently promoted ‘an integrated approach’ to cultural heritage.102 The ‘European Cultural Strategy for the 21st Century’103 has recommended the creation of ‘a suitable framework to enable local authorities and communities to take action for the benefit of their heritage and its management’ (Recommendation S6). The strategy demonstrates some sensitivity towards communities and specifically asks the States to draw up charters for the involvement of heritage communities in public actions. In addition, in 2014 the European Council itself promoted the participatory governance model on cultural heritage.104 The European Experts Network on Culture explained that such a model aims at seeing that ‘authority is released and empowerment ensured’ and that ‘responsibility is shared and decisions are taken by communities rather than by individuals’.105 The work plan acknowledges that the concept of participation in the cultural heritage sector ‘reflects a general cultural shift in the 21st century which has transformed individuals from cultural consumers to cultural producers’.106 101 Isnart notes that in ethnology, terms such as ‘indigenous curation’, ‘“non-official” heritage claims’, ‘autonomous archives’, or ‘public folklore’ have been used to capture communities’ participation in heritage practices. Cyril Isnart, ‘Self Heritage-Making and Religious Minority in Greece: An Ethnography of Heritage Activities outside of the Cultural Institutions’ in Nicolas Adell and others (eds), Between Imagined Communities of Practice, Participation, Territory and the Making of Heritage (Göttingen University Press 2015) 180. 102 John Bold and Robert Pickard (eds), An Integrated Approach to Cultural Heritage: The Council of Europe’s Technical Co-operation and Consultancy Programme (Council of Europe 2018). 103 Council of Europe, ‘Recommendation of the Committee of Ministers to Member States on the European Cultural Heritage Strategy for the 21st century’ (22 February 2017) CM/ Rec(2017)1. 104 Council conclusions on participatory governance of cultural heritage [2014] OJ C463/1. 105 Margherita Sani and others, ‘Mapping of practices in the EU Member States on Participatory governance of cultural heritage to support the omc working group under the same name (Work Plan for Culture 2015–2018)’ (June 2015) 3. 106 Ibid.

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And although the Work Plan gives some interesting examples of participatory governance, so far the wider picture tells a different story. Unfortunately, there have been some glaring missed opportunities to adopt a participatory and integrated approach to the protection of cultural heritage that is inclusive of minorities. The 2012 Report of the European Commission on measures to protect and promote the obligations of the 2005 unesco Convention, to which the EU is a party, constituted an opportunity to introduce minorities and indigenous communities as stakeholders in the preservation of heritage. The Report mentions how the European Broadcasting Union must ‘pay attention to social and cultural needs of ethnic and linguistic minorities, as well as migrants’ and refers to EU States that have dedicated newsrooms for and about historical minorities in their countries.107 However, minorities and indigenous peoples are nowhere to be seen on the list of stakeholders in the preservation of heritage. The Report mentions artists, cultural enterprises, cultural institutions, third countries, and even ‘local cultural policies’,108 but does not once refer to minorities or groups. Directive 2014/60/EU of the European Parliament and of the Council on the return of cultural objects109 also adopts an approach that views culture as either belonging to the State or to the individual, and recognizes no role for or interest of any sub-national community. But even more recently, EU documents and policies have failed to adopt an inclusive approach to heritage. The Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) emphasizes the importance of various civilizations that exist in the EU and the importance of cultural diversity. However, Paragraph 16 reads: In order to realise fully the potential of cultural heritage for European societies and economies, the safeguarding, enhancement and management of cultural heritage require effective participatory (i.e. multi-level and multi-stakeholder) governance and enhanced cross-sectoral cooperation, as stated by the Council in its conclusions of 25 November 2014. Such governance and cooperation involve all stakeholders, including public authorities, the cultural heritage sector, private actors and civil 107 European Commission, ‘Quadrennial Periodic Report on behalf of the European Union on measures to protect and promote the diversity of cultural expressions in the framework of the 2005 unesco Convention’ swd (2012) 129 final, 87. 108 Ibid 4. 109 Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 [2014] OJ L159/1.

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society organizations, such as ngos and organizations in the voluntary sector. This paragraph completely undermines the rights to cultural heritage of minorities and indigenous populations living within the EU. It enumerates stakeholders, including public authorities, the private sector, and civil society, but ignores groups, communities, or local populations, in other words omits any term that could be perceived as referring to minority groups. This omission is even more surprising because it goes against the current trend in academic scholarship, international practice, and EU work. It is very surprising that ­Decision 2017/864 does not reflect these developments in any way. 5 Conclusions The discussion above reveals an emphasis on European heritage and a reluctance on the part of EU bodies and EU Member States to bring the protection of cultural heritage of minorities, and even more so indigenous peoples, into the EU forum. This is understandable in view of the competences of the EU. Certainly the EU has protected—albeit in an indirect way—the cultural heritage of some minorities and indigenous groups (mainly the Saami), often labelled as local populations. However, such protection has been unplanned and random, without any reflection on the principles that need to govern cultural heritage initiatives that relate to minorities. Certainly, the focus has recently been on the protection of the cultural heritage of refugees and new migrants as a way to reverse discriminatory policies and stereotypes developed in European States. Old, long-standing minorities and to a lesser degree indigenous groups may get the benefits of initiatives aimed at protecting the regional or local cultural heritage. The tangible heritage of minorities is especially at risk of being appropriated and presented as national heritage, or seen through the lens of the majority. Intangible heritage has at times been protected through initiatives that aim at protecting cultural diversity. Finally, as the focus is clearly on protection of the ‘European cultural heritage’, one is left wondering how the EU will minimize the negative effect that these priorities and actions aimed at protecting the European culture have on minority heritage. One would hope that discussions in other legal systems, such as the human rights system and the unesco system, will quickly infiltrate also the EU regime on cultural heritage. There are some signs that this may be the case, at least through the ‘participatory governance model’ that is being promoted in

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the EU. A notable example is the eych decision (2017).110 However, more reflection needs to take place and proactive policies put into effect in order to ensure that minorities and communities are seen as stakeholders in the same way as experts, historians, and vulnerable persons. A real participatory model would ensure that minority cultural heritage is not trumped by other considerations, policies, and politics in the EU. 110 Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1.

Chapter 12

Migration, Cultural Heritage, and Cultural Rights: A Critical Assessment of European Union Law and Policy Alessandro Chechi 1

Introduction: Setting the Frame

Humankind has been on the move since early times. Yet the present-day transnational flow of migrants from poor and insecure countries to the EU is unprecedented for its intensity and modalities. To give just some figures of the ‘human tragedy’1 endured by mostly African and Asian migrants, it suffices to consider that 119,069 migrants entered the EU in 2017 (through 25 August) via dangerous sea journeys (this compares with 283,323 arrivals through 25 August 2016), and that 2,410 migrants perished in the Mediterranean Sea since the beginning of 2017 through 25 August (compared to 3,234 deaths through 25 August 2016).2 These alarming data on migrant arrivals and fatalities have prompted numerous studies on the EU legal framework governing migration and the rights of migrants. With a view to contributing to this debate, this Chapter focuses on third-country nationals that have immigrated into EU Member States. The objective is twofold: to demonstrate that the cultural heritage of these migrants, as well as the human rights associated with such heritage, is not properly recognized, promoted, and protected by the EU; and to suggest some (necessarily tentative) recommendations for reform. Due to space limitations, this Chapter neither seeks to offer an exhaustive catalogue of the challenges and potential solutions to the problems of migration, nor a detailed analysis of the existing international instruments, nor an in-depth examination of the political and legal practice of EU institutions or EU Member States.3 Three premises lay at the heart of this Chapter. 1 European Commission, ‘A European Agenda on Migration’ (Communication) com (2015) 240 final (European Agenda on Migration), 3. 2 International Organization for Migration (iom), ‘Missing Migrants Project’ accessed 14 February 2019. 3 In particular, this Chapter neither considers the policy and legal initiatives adopted by the Council of Europe, nor the issues related to the migration of economically active persons

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The first is that the increase in migrant arrivals creates challenges for all EU governments and fuels debates about issues such as national sovereignty, security, immigration regulation, integration, and xenophobia. States are divided between the (scarce) number who offer a welcoming embrace to migrants, and the (frequent) calls to build barriers against them.4 The media describe the arrival of migrants in anxiety-inducing terms and convey the feeling that Europe is under siege. Accordingly, significant segments of the population of receiving States perceive migrants as invaders that change society, steal the jobs available to local people, overburden public health systems, jump housing queues, dilute the national culture, and intensify contemporary problems such as crime and drugs.5 Human rights violations often derive from these perceptions. As strangers to the host society, migrants may not know how to react to hate-crimes, marginalization, and discrimination—especially in cases where they do not have the required documents. If caught by the authorities, they may be detained and subjected to degrading treatment, without access to legal assistance. Undocumented migrants are vulnerable to exploitation by employers, human traffickers, and criminal gangs. Women can easily become targets for sexual exploitation.6 Second, migration severs the connection of persons and groups with their country of origin and their cultural heritage, not just in a physical sense but also in a deeper, existential sense. At the same time, migrants experience an estrangement from the host State’s society due to a lack of fully belonging to that country, or of their ethnic, religious, or cultural differences from the main­ stream population of that country. As shall be demonstrated, in the absence of and EU citizens within the EU territory, nor the case law of the cjeu or of the ECtHR. For an examination of the case law of these two courts see Chapter 5 by Mateusz Bieczyński in this volume. 4 New York Declaration for Refugees and Migrants, unga Res A/RES/71/1 (19 September 2016) paras 13–14. See also François Crépeau and Anna Lise Purkey, Facilitating Mobility and Fostering Diversity: Getting EU Migration Governance to Respect the Human Rights of Migrants (ceps Paper in Liberty and Security in Europe 92, 2016). 5 Implicit in these views is the refusal to acknowledge that migrations are one of the upshots of globalization and capitalism, which allow States (including many EU Member States), private corporations, and individuals to profit at the direct expense of the States of origin of migrants. Silvana Palma, ‘Guess Who’s Coming to Dinner. Representations of Africa and Immigration Policies in Post-Colonial Italy’ in Giuseppe Cataldi (ed), A Mediterranean Perspective on Migrant’s Flows in the European Union (Editoriale Scientifica 2016) 224, 231. 6 Giorgia Bevilacqua, ‘The Use of Force against the Business Model of Migrant Smuggling and Human Trafficking to Maintain International Peace and Security in the Mediterranean’ in Giuseppe Cataldi (ed), A Mediterranean Perspective on Migrant’s Flows in the European Union (Editoriale Scientifica 2016) 119, 120.

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adequate State action this dual estrangement may bring about the marginalization of immigrants and of their cultural heritage.7 Third, the EU instruments that will be examined in this Chapter neither define cultural heritage nor delineate the meaning and scope of the rights connected with it. Instead they contain multiple references to the core values and interests embodied by cultural objects and expressions. For the purposes of the present study, the term ‘cultural heritage’ is used to define the whole set of practices, resources, knowledge, skills, and objects that have been inherited from the past by communities, groups, and individuals which they recognize—independently of ownership—as part of their history and identity, and which they must be entitled to access, perform, enjoy, and transmit to future generations as a matter of right.8 However, as it is unlikely that migrants can not have direct access to the ‘tangible’ heritage of their country of origin in the host country,9 the term ‘cultural heritage’ is used in this Chapter to indicate the ‘intangible’ manifestations of culture that normally migrants can bring along with them, recreate, and enjoy, such as oral traditions, language, performing arts, social practices, rituals, festive events, culinary practices, and traditional craftsmanship.10 On the other hand, the generic term ‘migrant’ is used in this Chapter to indicate a person who is moving or has moved across an international border (…) away from his/her habitual place of residence, regardless of (1) the person’s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of the stay is.11 7 8

9 10 11

Ien Ang, ‘Unsettling the National: Heritage and Diaspora’ in Helmut Anheier and Yudhishthir Raj Isar (eds), Heritage, Memory & Identity (Sage 2011) 83–4. This definition encompasses tangible and intangible elements and is based on the definitions contained in the unesco Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 unts 1 (2003 unesco Convention) art 2, and in the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (adopted 27 October 2005, entered into force 1 June 2011) cets 199 (2005 CoE Convention) art 2. Obviously, artworks, archaeological treasures, and other ‘movable’ items are conserved in museums or similar institutions, whereas buildings, monuments, and cultural spaces are ‘immovable’ by definition. This non-exhaustive list is derived from art 2 of the 2003 unesco Convention and art 2 of the 2005 CoE Convention. iom, ‘Key Migration Terms’ accessed 14 February 2019.

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International migration law also distinguishes between refugees; migrant workers; trafficked migrants; ‘regular’ (or ‘documented’) migrants; and ‘irregular’ (or ‘undocumented’) migrants.12 These different categories reflect the manifold root-causes of migrations. First, individuals and families are forced to be on the move to save their lives or preserve their freedom from armed conflicts, or political or religious oppression. Extremist assaults on minorities have become widespread around the world, with incidents ranging in severity from hate speech to mass slaughter.13 All of this is testified to by the dramatic growth in the number of people fleeing persecution and violence in Iraq and Syria. People left their homes because they were forced to by violence which caused the deaths of family members, relatives, and fellow citizens. Often it is not just a single house that is destroyed, but entire villages vanish under indiscriminate attacks. Fleeing is thus the only choice they have. Unemployment, endemic poverty, socio-economic inequalities, and peoples’ aspiration to a better life, to obtain a better job, or to take part in the educational opportunities in other countries represent additional, powerful causes of international migration.14 Finally, natural or human-induced disasters are another cause of mass migration.15 These can be the result of extreme hydro-meteorological events such as hurricanes and typhoons, but also of slow and long-term processes such as desertification, increased salinity in coastal zones, and the depletion of ecosystems. The reason for focusing on the rights of migrants vis-à-vis their cultural heritage under EU law is threefold. First, EU institutions have established 2018 as the European Year of Cultural Heritage. The professed objective of this initiative is to highlight the importance of European culture and cultural diversity. It is to be expected that this initiative will also offer the opportunity to emphasize that diasporas have been key determinants in shaping the rich and diverse European cultural and historical heritage.

12 Ibid. 13 See hrc, ‘Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed’ (2017) UN Doc A/HRC/34/56. 14 See Guy S Goodwin-Gill, ‘Setting the Scene: Refugees, Asylum Seekers, and Migrants at Sea—The Need for a Long-Term Protection-Centred Vision’ in Violeta Moreno-Lay and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill/Nijhoff 2016) 19–20. 15 Mahmoud Solh, ‘This Growing Migration Crisis Is the Canary in the Mine on Climate Change’ The Guardian (London, 21 September 2015).

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Second, in many EU Member States immigrants are portrayed as a threat not only to public security and public order, but also to national culture.16 This is due to the fact that since the early 19th century officially-sanctioned art treasures and cultural commonalities—such as language, religion, and folklore—have functioned as devices for supporting or legitimizing claims to selfdetermination and independence, for creating a cohesive national identity, and hence monocultural nation-States.17 The movement of people across national borders threatens that official, nationalist narrative of one territory with one people, one history, one culture, and one identity, as immigrants bring with them their traditions, customs, languages, and so on.18 Third, rights related to cultural heritage are no longer a neglected category of human rights in comparison to civil, political, economic, and social rights.19 In recent years various human rights bodies have explored the concept of cultural heritage from a human rights perspective and have defined the normative content of cultural rights.20 This Chapter proceeds in three stages. It begins by exploring the meaning and the content of the rights related to cultural heritage in general, and of the right to participate in cultural life in particular, with a focus on migrants (Section 2). Next it assesses whether the EU recognizes, promotes, and respects the cultural heritage and the cultural rights of migrants through an examination of a selected number of EU policies and legal instruments (Section 3). Finally, it provides a critical assessment of the impact of EU law and policy on the cultural heritage and the cultural rights of migrants (Section 4). Section 5 offers conclusions. 2

Cultural Rights in International Law: An Established Category of Human Rights

Although the right to cultural heritage appears in various international treaties,21 the principal sources of the right are the International Covenant on 16 17 18 19 20 21

Helen O’Nions, ‘Minority and Cultural Rights’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar 2014) 244. Rodney Harrison, Heritage. Critical Approaches (Routledge 2013) 141–43; and Janet Blake, Exploring Cultural Rights and Cultural Diversity (Institute of Art and Law 2014) 82–7. Ang (n 7) 83, 86–7. See also nn 8, 9, and 10 and related text. Janusz Symonides, ‘Cultural Rights: A Neglected Category of Human Rights’ (1998) 50 issj 559. See Section 2. See, e.g., the Universal Declaration of Human Rights (adopted 10 December 1948) unga Res 217 A(iii) arts 22 and 27, the Convention on the Rights of the Child (adopted

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Economic, Social and Cultural Rights (icescr)22 and the International Covenant on Civil and Political Rights (iccpr).23 Article 15(1)(a) icescr sets forth out the right to participate in cultural life.24 The normative content of this right was fleshed out for the first time in 2009 by the Committee on Economic, Social and Cultural Rights (cescr) in its General Comment no 21.25 At the outset, the cescr recalled that ‘[c]ultural rights are an integral part of human rights and, like other rights, are universal, indivisible and interdependent’.26 Next it made clear that cultural rights may be exercised by ‘a person (a) as an individual, (b) in association with others, or (c) within a community or group (…)’.27 The cescr also elaborated on the term ‘culture’ in order to better define cultural rights as human rights. According to the Committee, the term ‘culture’ reflects ‘a living process, historical, dynamic and evolving’, one that encompasses ‘all manifestations of human existence (…)’.28 The cescr affirmed that such manifestations as ways of life, language, oral and written literature, music and song, nonverbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and manmade environments, food, clothing and shelter, and the arts, customs and traditions are essential to individuals and communities to ‘express their humanity and the meaning they give to their existence, and build their world

22 23 24

25 26 27 28

20 ­November 1989, entered into force 2 September 1990) 1577 unts 3 art 31, and the International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 7 March 1966, entered into force 4 January 1969) 660 unts 195 art 17(2). (Adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3. (Adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171. The other substantive human rights to be protected as cultural rights under the icescr are: (i) the right to education (arts 13–14); (ii) the right to enjoy the benefits of scientific progress and its applications (art 15(i)(b)); (iii) the right to benefit from the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which the person is the author (art 15(1)(c)); and (iv) the freedom for scientific research and creative activity (art 15(3)). cescr, ‘General Comment no 21. Right of Everyone to Take Part in Cultural Life (Art 15, para 1 (a), of the International Covenant on Economic, Social and Cultural Rights)’ (21 December 2009) E/C.12/GC/21 (General Comment no 21). Ibid para 1. Ibid para 9. Ibid paras 11–12.

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view representing their encounter with the external forces affecting their lives’.29 These statements signal that the notions of culture and cultural heritage are not limited to what is considered to be of outstanding value to humanity as a whole; rather, they encompass what is of significance for particular individuals and communities. Therefore, it becomes clear that culture and cultural heritage have a ‘human dimension’.30 Based on the principle of universality of human rights, on the fact that culture is an ever-evolving notion whose meaning depends on cross-fertilization and communications,31 and on the assumption that ‘migration (…) has brought cultures, groups and individuals into closer contact than ever before’, the cescr included migrants among the ‘most disadvantaged and marginalized individuals’ and declared that they deserve ‘special protection’.32 Accordingly, States parties should pay particular attention to the protection of the cultural identities of migrants, as well as their language, religion and folklore, and of their right to hold cultural, artistic and intercultural events. States parties should not prevent migrants from maintaining their cultural links with their countries of origin.33 In the midst of the economic, political, social, and other adversities that they face in the host State, their native culture becomes a source of pride and strength that allows migrants to continue struggling for a better life.34 It follows that the right to participate in cultural life belongs to all ­individuals—regardless of whether they are citizens or non-citizens35—as human rights derive from the fact of being a human person rather than from citizenship.36 29 30 31 32 33 34 35

36

Ibid para 13. For more on the notion of ‘culture’ under art 15 icescr, see Roger O’Keefe, ‘The “Right to Take Part in Cultural Life” under Article 15 of the icescr’ (1998) 47 International & Comparative Law Quarterly 904. hrc, ‘Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed’ (2011) UN Doc A/HRC/17/38, paras 7 and 77. Elissavet Stamatopoulou, ‘The Right to Take Part in Cultural Life’ (9 May 2008) E/C.12/40/ 9, 4. General Comment no 21, Sections E and F. Ibid paras 34, 42. Stamatopoulou (n 31). On the application of cultural rights to non-nationals, see also cescr, ‘General Comment No 20. Non-Discrimination in Economic, Social and Cultural Rights (Art 2, para 2, of the International Covenant on Economic, Social and Cultural Rights)’ (2 July 2009) E/C.12/GC/20, para 30. Martin Ruhs, The Price of Rights. Regulating International Labor Migration (pup 2013) 13.

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The concept of human (cultural) rights assumes the existence of State duties. Without these obligations human rights would be meaningless. General Comment no 21 provides that, depending on the situation, icescr States Parties are under a negative obligation to refrain from interference with the exercise of cultural practices and with access to cultural objects, and under a positive obligation to take measures to guarantee participation in, access to, and enjoyment of cultural heritage.37 As far as migrants are concerned, States must recognize, promote, and protect the following rights: the right to artistic freedom; the right to freely access cultural information; the right to organize and access cultural, artistic, and intercultural events; the right to freely and actively participate in cultural life; the right for the children of migrants to be educated in accordance with their culture and ethnic traditions; the right to maintain links with the country of origin or with the culturally distinct group to which they belong; and the right to participate in decision-making processes in cultural matters.38 The actual enjoyment of these rights are of special significance as they empower migrants to preserve their own cultural identity in environments dominated by different cultural models.39 By contrast, migrants and their heritage would be marginalized if the host State failed to ensure effective and concrete opportunities for migrants and migrant communities to fully enjoy their heritage.40 The recognition that migrants are entitled to cultural rights in the host State leads to the following considerations. First, it demonstrates that the cescr elaborated on an up-to-date interpretation of the right to culture; one that is not limited to a mere individual entitlement to participate in the ‘national culture’—i.e. the freedom to participate in the culture of the dominant group and to access the major artworks representing the cultural achievements of that group—but one that encompasses the right ‘to know and understand his or her own culture and that of others (…), [and to] benefit from the cultural heritage and the creation of other individuals and communities’.41 Migrants should be perceived as cultural beings, interested not only in having access to and enjoying their own culture (they tend to maintain and affirm their individual and collective culture and 37 38 39 40 41

General Comment no 21, paras 6, 44–59. In particular, the cescr highlighted that the Covenant imposes three types of obligations on States Parties: to respect; to protect; and to fulfil. Céline Romainville, ‘The Right to Participate in Cultural Life under European Union Law’ (2015) 2 Jounal européen des droit de l’homme 145, 150. Federico Lenzerini, ‘Migrants (Cultural Rights of M.)’ in Andreas J. Wiesand and others (eds), Culture and Human Rights: The Wroclaw Commentaries (De Gruyter 2016) 227. Ang (n 7). General Comment no 21, para 15(b).

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identity through connections with the compatriots that remain in the country of origin or that live in the same or other States),42 but also to the culture of the host State and of the other non-dominant communities within the host country. This means that the inhabitants of a host State have multiple overlapping identities at their disposal, as they can dip into different cultural systems and benefit from intercultural dialogue.43 This also means that the assumption that immigrants’ communities want to remain isolated from the population of the host State in order to preserve their culture and language is not tenable. In reality, although they often cluster in ethnic communities, immigrants do meet and mix with the rest of the population. Second, in the cescr’s view the right to take part in cultural life embraces the concept of cultural diversity: ‘[t]he protection of cultural diversity (…) requires the full implementation of cultural rights, including the right to take part in cultural life’.44 Likewise, the 2001 unesco Universal Declaration on Cultural Diversity states that ‘[c]ultural rights are an integral part of human rights’, and that ‘[t]he flourishing of creative diversity requires the full implementation of cultural rights’ as defined in Article 27 of the 1948 Universal Declaration on Human Rights (udhr) and in Articles 13 and 15 icescr. Furthermore, the 2005 unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005 unesco Convention)45 provides that cultural diversity ‘can be protected and promoted only if human rights and fundamental freedoms (…) are guaranteed’.46 It also emphasizes that ‘[e]quitable access to a rich and diversified range of cultural expressions from all over the world and access of cultures to the means of expressions and dissemination constitute important elements for enhancing’ the right to participate in cultural life. Third, the cescr recalled that the rights related to cultural heritage cannot be invoked to infringe upon other human rights,47 and that ‘no one shall be discriminated against because he or she chooses to belong, or not to belong, to a given cultural community or group, or to practise or not to practise a particular cultural activity’.48 With the former argument the cescr pointed out that migrants cannot expect the receiving State to respect practices that may be harmful towards certain categories of individuals. In other words, the ­argument that certain traditions belong to their heritage cannot be used to excuse human 42 43 44 45 46 47 48

Ang (n 7) 83–4, 86–7. O’Nions (n 16) 242–43. General Comment no 21, para 40. (Adopted 20 October 2005, entered into force 18 March 2007) 2440 unts 311. All EU Member States and the EU have ratified or acceded to the 2005 unesco Convention. Ibid, art 2(1). General Comment no 21, paras 17–20, 64. Ibid paras 21–24.

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rights violations. Indeed, international law rejects the ‘cultural relativist’ argument that harmful cultural practices should be shielded from scrutiny. On the other hand, the cescr confirmed that the authorities of the host country should ensure that migrants and their rights are respected based on equality, human dignity, and non-discrimination despite their ethnic, religious, or cultural differences from the mainstream population of that country.49 Turning now to the iccpr, Article 27 provides that ‘[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture (…)’. This provision is important because the formation of minorities within a receiving State—that is, non-dominant and numerically inferior groups of citizens different from the main population of the host country—invariably derives from the progressive arrival of migrants into that State. Indeed, in General Comment no 21 the cescr included ‘minorities’ next to migrants among the most disadvantaged and marginalized groups whose right to take part in cultural life should not be neglected by States. In particular, the cescr affirmed that States have an obligation ‘to recognize, respect and protect minority cultures as an essential component of the identity of the States themselves’, and that ‘States must respect free access by minorities to their own culture, heritage and other forms of expression, as well as the free exercise of their cultural identity and practices’.50 Inasmuch as Article 27 speaks about the rights of ‘persons’ belonging to minorities, one could conclude that it contemplates only individuals and not group right-holders. However, the United Nations Human Rights Committee (unhrc) has repeatedly affirmed that the right of Article 27 iccpr can only be realized meaningfully when exercised ‘in community’.51 Furthermore, the unhrc has frequently declared that ‘the enjoyment of Covenant rights (…) must (…) be available to all individuals, regardless of nationality or ­statelessness, such as asylum seekers, refugees, migrant workers (…)’.52 In effect, 49

50 51

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Vincent Chetail, ‘The Transnational Movement of Persons under General International Law. Mapping the Customary Law Foundations of International Migration Law’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar 2014) 67. General Comment no 21, para 49(d). See, e.g., Ilmari Länsman et al. v Finland, No 511/1992, 14 October 1993; and Bernard Ominayak, Chief of the Lubicon Lake Band v Canada, No 167/1984, 26 March 1990. See also hrc, ‘General Comment no 23. Article 27 (Rights of Minorities)’ (26 April 1994) CCPR/C/21/ Rev.1/Add.5, para 6(2). hrc, ‘General Comment no 31. Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) CCPR/C/21/Rev.1/Add.13, para 10; and hrc, ‘General Comment no 15. The Position of Aliens under the Covenant’ (11 April 1986) UN Doc A/41/40, paras 1–2.

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Article 27 provides rights for ‘humans’ rather than for ‘citizens’. This means that the enjoyment of Covenant rights does not depend on a formal bond of citizenship between the members of a group and a State, but on the display of stable characteristics by a group, which distinguishes it from the rest of the population. 3

Looking for Migrants’ Cultural Rights

This section focuses on the EU instruments adopted in the areas of culture and migration.53 The objective is to examine whether and to what extent EU law and policy refer to and have an impact on the cultural heritage and the cultural rights of migrants. At this juncture it must be stressed that the EU does not possess an integrated mechanism to protect human rights. In the EU, human rights are guaranteed through the combined action of the systems deployed by individual EU Member States and of the relevant international human rights treaties, especially the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (echr)—as interpreted by the European Court of Human Rights (ECtHR). While an in-depth analysis of the legislation of all the EU Member States and of the entire echr is beyond the scope of this Chapter, for the purposes of the present inquiry the following elements must be taken into account. First, the core international human rights conventions provide the legal framework for the realization of the human rights of ‘everyone’—including migrants—in keeping with the idea that migrants’ rights are also human rights.54 Under international human rights law, States have an obligation to guarantee, ensure, and protect the human rights of all persons within their jurisdiction, regardless of nationality.55 However, there is often a large gap between the rights that international human rights law guarantees to refugees, migrant workers, and other groups, on the one hand, and the hurdles that they actually face in the host State on the other. Indeed, often migrants’ rights are neglected, if not violated. In this connection, it must be recalled that the individual right to leave any country, including the country of birth—which is recognized by 53 54 55

See also Yannis Ktistakis, Protecting Migrants under the European Convention on Human Rights and the European Social Charter. A Handbook for Legal Practitioners (CoE Publ 2013) 13–15. New York Declaration for Refugees and Migrants (n 4) para 6. See also Chetail, ‘The Transnational Movement of Persons’ (n 49) 67. Ktistakis (n 53) 19.

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Article 13 udhr, Article 12 iccpr, and Article 2 of Protocol No. 4 echr—is not matched by an equal duty on the part of the State of destination to welcome immigrants. Under customary international law, every State has the sovereign right to allow, or not to allow, migrant aliens to enter its territory—in the absence of different treaty provisions.56 There is an exception to this rule: international law recognizes that all persons seeking international refugee protection have the rights to request asylum, to due process, non-refoulement, and non-discrimination. Second, the human rights framework that applies to EU Member States comprises norms that can ensure the protection of the migrants’ rights connected to cultural heritage. Article 2 of Protocol No. 4 echr covers the freedom of movement of individuals and the right to leave any country, including one’s country of origin, whereas Article 1 of Protocol No. 12 echr reiterates the prohibition of discrimination.57 In addition, although the echr does not contain any provision on cultural rights, the ECtHR case law demonstrates that the right to culture or the right to take part in cultural life can be protected under core civil rights,58 such as the right to respect for private and family life,59 the right to freedom of expression,60 freedom of association,61 and the right to education.62 Similarly, the 2000 Charter of Fundamental Rights of the European Union (cfr) guarantees the right to asylum63 and reaffirms the principle of non-refoulement.64 Moreover, Articles 13 and 22 of the cfr recognize that the promotion and protection of cultural rights and cultural identities are essential 56 57

58 59 60 61 62 63 64

Vincent Chetail, ‘Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel’ (2016) 27 ejil 901. In numerous judgments and decisions the ECtHR has upheld the application of the echr to migrants and refugees (see Ktistakis (n 53)), and has examined the application of certain EU norms, notably the Dublin Regulation (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31). This Chapter does not consider the case law of the European Court of Justice or of the ECtHR. For an examination of the case law of these courts see Chapter 5 by Mateusz Bieczyński in this volume. ECtHR Research Division, ‘Cultural Rights in the Case-Law of the European Court of Human Rights’ (2017). To date there are no cases expressly dealing with the cultural heritage of migrants. Art 8 echr. Art 10 echr. Art 11 echr. Art 2 of Protocol No 1 echr. [2000] OJ C364/1, art 18. Ibid, art 19.

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preconditions for safeguarding cultural diversity. The right to participate in cultural life is explicitly mentioned at Article 25. This provision, however, does not safeguard this right for everyone, but only for the elderly. Finally, it must be observed that only a few of the international treaties adopted to govern the status and the rights of all categories of migrants contain references to cultural rights. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families looks at migrants not only as labourers, but also as human beings. Accordingly, it guarantees their cultural rights: Article 26 provides that ‘States Parties recognize the right of migrant workers (…) [t]o take part in meetings and activities of associations (…) with a view to protecting their (…) cultural (…) interests (…)’; according to Article 31, ‘States Parties shall ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin’; Articles 43(1)(g) and 45(1)(d) state that migrants ‘shall enjoy equality of treatment with nationals of the State of employment in relation to (…) access to and participation in cultural life’; and finally, Article 64 establishes that the States Parties shall take into account the cultural needs of migrants. The 1951 Convention Relating to the Status of Refugees (‘1951 Geneva Convention’) does not contain explicit references to cultural rights. However, pursuant to Article 1(A)(2) on the definition of ‘refugee’, a violation of the right to take part in cultural life might constitute persecution and thus lead to refugee status, provided that the violation is severe, that it infringes on the very core content of such right on a discriminatory basis, and that it has the effect of depriving the right-holders of the ability to live a worthy life.65 Migrants’ Cultural Rights in the EU Instruments Adopted in the Field of Culture A discussion of the cultural rights of migrants within the EU requires an examination of the EU programmes adopted in the cultural field. EU action in the field of culture is envisaged by Article 167 of the Treaty on the Functioning of the European Union (tfeu).66 This establishes that the EU ‘shall contribute to the flowering of the cultures of the Member States, while respecting their 3.1

65 66

Andreas Zimmermann and Claudia Mahler, ‘Article 1 A, para 2’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol. A Commentary (oup 2011) 354–58. Pursuant to the Treaty of Lisbon (Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2008] OJ C115/1), the Treaty of Rome was replaced by the tfeu (Consolidated Versions of the Treaty on European Union

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national and regional diversity and at the same time bringing the common cultural heritage to the fore’. It also states that EU actions ‘shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the (…) conservation and safeguarding of cultural heritage of European significance’. In addition, Article 6 tfeu explains that the EU ‘shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States’ in the area of culture. Moving on to the Treaty on European Union (teu), Article 3(3) provides that one of the EU’s aims is to ‘respect its rich cultural and linguistic diversity, and (…) ensure that Europe’s cultural heritage is safeguarded and enhanced’. Creative Europe is the latest framework cultural policy programme of the EU Commission.67 Adopted for the period 2014–20, this programme aims, ­inter alia, ‘to safeguard, develop and promote European cultural and linguistic diversity and to promote Europe’s cultural heritage’,68 to facilitate the ‘transnational mobility of cultural and creative players, in particular artists’, and to ‘improve access to cultural and creative works in the Union and beyond’.69 The driving forces underlying the Creative Europe Programme—similarly as with its predecessors—are of an economic nature. Indeed, the aim of these programmes is to capitalize on the economic value of the cultural heritage of the EU Member States, i.e. to stimulate culture as a source of growth, competitiveness, and employment.70 The preamble of Regulation 1295/2013 establishing the Creative Europe Programme explicitly refers to Articles 11, 21, and 22 of the cfr and the 2005 unesco Convention.71 These provisions are evoked to emphasize that they are an important platform for freedom of expression and for the promotion of respect for cultural and linguistic diversity, and that the cultural sector makes an important contribution to the fight against all forms of discrimination. It also emerges from Regulation 1295/2013 that, while cultural heritage protection is primarily a matter for Member States, the EU has crafted for ­itself

67 68 69 70 71

and the Treaty on the Functioning of the European Union [2012] OJ C326/1) and the teu was amended. Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC [2013] OJ L347/221. Ibid art 3. Ibid art 4. Romainville (n 38) 157, 166. All EU Member States and the EU have ratified or acceded to the 2005 unesco Convention.

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an express, albeit limited, competence in the field of culture in keeping with the principle of subsidiarity. There is no contradiction between national ­responsibilities and EU action: heritage is always both local and European. Nevertheless, only Member States can directly shape cultural policies and support artistic and cultural projects which can facilitate the inclusion of migrants and refugees. Finally, it should be observed that the Creative Europe Programme is not limited only to safeguarding the interests and rights of the citizens of EU Member States or the cultural heritage of EU Member States. In effect, many of the projects that have been funded under the Creative Europe Programme72 focus on contemporary migrations, with the aim: to develop a multicultural Europe where people are eager to empathize with migrants (regardless of their legal status) and to confront intolerance, prejudices, and fear; to promote intercultural dialogue and openness towards other cultures and the integration of migrants; and to recognize, promote, and protect the right of migrants to participate in cultural life (be they performers or recipients), such as the right to artistic freedom, the right to freely access culture, and the right to maintain links with the country of origin or with the culturally distinct group to which they belong.73 This not only means that the Creative Europe Programme can contribute to safeguarding and promoting Europe’s cultural and linguistic diversity, but also that it can help citizens to acknowledge that such rich diversity is (also) the upshot of the past migrations of peoples into the European continent. In various EU meetings held in 2015, Member States agreed that tackling the migration and refugee crisis is a common obligation which requires a comprehensive strategy in a spirit of cooperation and solidarity. International cooperation is needed to assist host countries and communities. No one State can manage the current massive movements of people on its own. Solidarity with, and support for, the millions of people who, for reasons beyond their control, are forced to uproot themselves and their families from their homes is also essential. As a result, a number of research projects have been carried out under the auspices of EU institutions aimed at exploring how culture and cultural institutions can bring individuals and peoples together—particularly those from migrant communities—in order to promote cultural diversity and

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The list of projects is available at: http://ec.europa.eu/programmes/creative-europe/ projects/ce-projects-compendium/. Romainville (n 38) 150.

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intercultural dialogue.74 These developments were triggered by the realization that—‘after providing for migrants’ and refugees’ immediate needs’—the EU and EU Member States must ensure the social, economic, and cultural integration of migrants.75 Another reason is that the increased migration into Member States—coupled with the financial crises—has brought about tensions that put at risk not only the diversity of Europe, but the whole European project.76 Interestingly, these studies demonstrate that, firstly, culture is a key instrument for EU governments to deal with the reality of migration, because cultural projects can: (i) produce humanitarian benefits for refugees and migrants immediately after arrival; (ii) validate and raise migrants’ skills and talents; (iii) provide a more balanced perception of the issue of migration in public opinion; (iv) improve mutual understanding between individuals and groups; contribute to the integration of migrants and refugees in host societies. Secondly, these studies emphasize that cultural actions in connection with the phenomenon of migration require substantial support from both the EU institutions and EU Member States, and not only in terms of funding. It is submitted that the success of the EU action in the fields of culture and migration is subject to the recognition, promotion, and protection of the cultural rights of migrants by both policy-makers and law-makers.77 Finally, the Cultural Diplomacy Platform is worthy of mention. Launched in March 2016 by the EU Commission, it aims at supporting the EU institutions and other actors—including governments, regions, cities, and civil society organizations—in the implementation of the EU Strategy for International Cultural Relations.78 Adopted in June 2016, this Strategy focuses on ­advancing cooperation with partner countries across three main strands: (i) supporting culture as an engine for social and economic development; (ii) promoting intercultural dialogue for peaceful inter-community relations; and (iii) reinforcing 74 75 76 77 78

‘Report on the Role of Public Arts and Cultural Institutions in the Promotion of Cultural Diversity and Intercultural Dialogue’ (January 2014) accessed 14 February 2019. ceu, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, amending the Work Plan for Culture (2015– 2018) as regards the priority on intercultural dialogue’ [2015] OJ C417/44. ‘Report on the Role of Public Arts’ (n 74) 5. Voices of Culture Platform, ‘The Role of Culture in Promoting Inclusion in the Context of Migration’ (September 2016). See European Commission, ‘Joint Communication to the European Parliament and the Council: Towards an EU strategy for international cultural relations’ join (2016) 29 final. See also ceu, ‘Council conclusions on an EU strategic approach to international cultural relations’ [2017] OJ C189/38.

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cooperation on cultural heritage. Essentially, the Cultural Diplomacy Platform aims at providing expertise, recommendations, and advice to the relevant EU institutions regarding the role of culture in external relations. As such, the Platform focuses on the cultural heritage of migrants. In effect, it recognizes the potential contribution of migration towards the cultural enrichment of host EU Member States and neighbouring countries, and the development of cultural and creative industries. To ensure effectiveness and policy coherence and to avoid duplication, the Platform pursues its objectives through existing instruments, including the Creative Europe Programme.79 Migrants’ Cultural Rights in the EU Instruments Adopted in the Field of Migration EU law provides for the free movement of EU citizens and economically active persons—including visitors to the EU—within the Schengen area. At the same time, following the abolition of previously-existing internal borders the EU has developed policies and instruments to limit and control the entry and stay of third-country migrants in the EU and to combat irregular migration.80 The Schengen Information System, the Dublin Regulation,81 and the additional instruments that have been developed by the EU due to the recent migration movements are key components of this common migration policy. In this area of law EU Member States may exercise their competences to the extent that the EU has not done so.82 This means that all actions at the national level regarding migration control—such as the enactment of laws setting out conditions and controls for the entry and stay of third-country migrants—must be within the limits set out at the EU level.83 This is why national governments 3.2

79 80 81 82 83

See at: www.cultureinexternalrelations.eu. EU law provides non-EU nationals with a number of rights as regards e.g. entry, residence, and family reunification. See n 57. Art 2(2) tfeu. Since the judgments issued in the cases of van Gend en Loos (Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ecr 1) and Costa (Case 6/64 Flaminio Costa v enel [1964] ecr 585), it has been established that EU law has direct effect on EU Member States and that, in case of conflict, national law must yield to EU law. Not only does this mean that individuals can rely on the direct effect EU law, but also that national judges have to set aside national laws that violate EU rules. Bruno De Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in Paul Craig and Grainne De Burca (eds), The Evolution of EU Law (oup

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often perceive EU migration rules as a danger, because they can drastically limit their discretion to legislate in this area. Pursuant to Article 67(1) tfeu, the EU has established an Area of Freedom, Security and Justice (afsj), which must be in accordance with the ‘fundamental rights and the different legal systems and traditions of the Member States’, and ‘shall frame a common policy on asylum, immigration and external border control (…)’. Moreover, Article 67(3) tfeu provides that the EU ‘shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia’. Pursuant to the treaty norms regulating the afsj, EU institutions are required to prevent irregular immigration and to protect the rights of migrants. Article 78(1) tfeu provides that ‘[t]he Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement’, and that this policy must be in accordance with the 1951 Geneva Convention and other relevant treaties. Article 79(1) states that [t]he Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings. Finally, Article 79(3) authorizes the EU to conclude agreements with third countries for the readmission of irregular migrants. Directives 2011/95/EU84 and 2013/32,85 which have been adopted to flesh out the general objectives set out in the tfeu, consider the issues of cultural heritage, the rights associated with it, and cultural diversity.

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2011); and Moritz Jesse, ‘Legal Risks from, to, and within EU Migration Law: An Inventory’ in Emilia Miscenic and Aurelien Raccah (eds), Legal Risks in EU Law (Springer 2016) 188. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60.

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Article 10 of Directive 2011/95 states that ‘when assessing the reasons for persecution’, Member States should ensure that: (c) the concept of nationality shall not be confined to citizenship or lack thereof but shall, in particular, include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State; (d) a group shall be considered to form a particular social group where in particular [a:] members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and [b:] that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Directive 2013/32/EU establishes common procedures for granting and withdrawing international protection pursuant to Directive 2011/95/EU. Article 10 provides that ‘the personnel examining applications and taking decisions have the possibility to seek advice, whenever necessary, from experts on particular issues, such as (…) cultural, religious, (…) or gender issues’. Likewise, Article 15 provides that ‘the person who conducts the interview is competent to take account of the personal and general circumstances surrounding the application, including the applicant’s cultural origin (…)’. It follows that the issue of cultural diversity is a key component of the assessment of the claims filed by persons seeking international protection, both in terms of process and in terms of content. With the onset of the unprecedented migration and refugee crisis in the Mediterranean, migration quickly became a central priority of EU institutions. As a result, in 2015 the EU Commission launched the European Agenda on Migration.86 This focuses on four areas of action. The first relates to reduction of the incentives for irregular migration and the fight against smugglers and traffickers. The conclusion of international agreements with the countries of origin and transit—such as the agreement concluded in 2016 by the EU and Turkey—is one of the strategies envisaged to achieve these goals. The second objective is to enhance border management in order to save lives and secure external borders. Search and rescue efforts have been stepped 86

See n 1.

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up through the establishment of various instruments, such as Frontex,87 the ‘Hotspot’ approach,88 and the operation eunavfor Med.89 The third area of action is the development of an effective common asylum policy for the reception of asylum-seekers inside the EU. The Commission has pointed out that the EU must continue to offer protection to those in need. However, although the EU and its Member States have a legal obligation to protect asylum seekers who have allegedly fled persecution, EU Member States have enacted repressive and segregationist measures against them in some instances. Fourth, the Agenda calls for a new policy on legal migration and for the social and economic integration of third-country nationals regularly settled in Europe. In this sense, the Commission emphasizes that immigration constitutes an essential tool to enhance the sustainability of the welfare systems of Member States and the growth of their economy in light of the ageing of the active population and the shortage of highly-skilled workers. The solutions envisaged to reap the benefits and address the challenges deriving from migration include enhanced management of regular migration and effective integration policies. In the words of the Commission, integration policies can contribute to making Europe ‘a more prosperous, cohesive and inclusive society’.90 With respect to integration, the Commission also emphasized that migrants who have been legally admitted by Member States should not be faced with ‘reluctance and obstruction’. Rather they should be given every opportunity and assistance to integrate in their new communities.91

87

See Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L349/1, which was repealed by Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC [2016] OJ L251/1, establishing the European Border and Coast Guard Agency. 88 See Federico Casolari, ‘The EU’s Hotspot Approach to Managing the Migration Crisis: A Blind Spot for International Responsibility?’ (2015) 25 Italian Yearbook of International Law 110. 89 See Marco Gestri, ‘EUNAVFOR MED: Fighting Migrant Smuggling under UN Security Council Resolution 2240 (2015)’ (2015) 25 Italian Yearbook of International Law 21. 90 European Commission, ‘Action Plan on the integration of third-country nationals’ (Communication) COM (2016) 377 final, 2. 91 Ibid.

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EU Immigration and Integration Policies: Some Critical Remarks

The foregoing examination of the legal and policy measures adopted by the EU in the fields of culture and migration demonstrates that the protection of the cultural heritage of migrants and the rights related to it—particularly the right to participate in cultural life—is regarded as essential to deal with the reality of migration movements. However, it also emerges that the efficacy of these legal and policy measures is not fully supported by Member States. In effect, it appears that—albeit to differing degrees—EU Member States undermine the proper implementation of the instruments adopted to ensure the protection and integration of migrants within the host society, above all in response to the pressure of the xenophobic and nationalist, populist discourse of the groups belonging to the right and extreme right of the political spectrum. For instance, States have introduced unilateral controls and material barriers at the internal borders (or have threatened to do so), criminalize migrants, use immigration detention, and have supported the conclusion of agreements with neighbouring States to prevent migrants from entering the European continent.92 This zero-tolerance attitude to migratory pressures brings about various risks. For instance, it has been demonstrated that migrants may face violence and ill-treatment—if not death—in all phases of the journey toward Europe, especially as a result of push-back operations and detention in the camps created in Italy or Greece.93 In particular, prolonged detention has a devastating effect on migrants’ mental health—for example by contributing to post-traumatic stress disorder, anxiety, and depression—not only because of the lack of effective access to healthcare and to physical, recreational, and cultural activities, but also because of unacceptable hygienic conditions in toilets, shower facilities, and kitchens.94 Needless to say, under these circumstances migrants are unable to claim their cultural rights effectively. As it is impossible to address all the questions associated with this within the confines of this Chapter, only two sets of problems are examined. The first relates to the objective of reducing the incentives for irregular migration and enhancing border management.95 In this respect it is worth

92 93 94 95

On this see also Crépeau and Purkey (n 4). Human Rights Watch, ‘World Report 2017. European Union, Events of 2016’; and Human Rights Watch, ‘EU Policies Put Refugees at Risk. An Agenda to Restore Protection’ (23 November 2016). Human Rights Watch, ‘Boat Ride to Detention’ (18 July 2012). See European Agenda on Migration (n 1) 7–10, and 10–12.

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f­ocusing on the EU-Turkey agreement of March 2016.96 Through this agreement Turkey committed itself to readmit migrants who have not applied for asylum in Greece or whose application has been found inadmissible or unfounded under the Asylum Procedures Directive 2013/32. In exchange, the EU agreed that for every Syrian being returned to Turkey from Greek islands, a Syrian will be resettled from Turkey to the EU (with a maximum of 72,000 persons). The EU also committed agreed to: accelerate visa liberalization for Turkish citizens; reconsider the accession of Turkey to the EU; and provide financial assistance to Turkey for the realization of projects on education, infrastructure, and food for the refugees located in Turkey. This agreement has been widely criticized for creating a real risk that the human rights of migrants will be overlooked. The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, emphasized that the agreement might lead to collective expulsions and may not give asylum-seekers an effective opportunity to apply for international protection in the EU.97 Furthermore, in focusing on its practical repercussions Vincent Chetail argued that the deal would transform Greece into a vast prison for victims of war and persecution, and would provoke the relocation of asylum-seekers to a third country—Turkey— that cannot be deemed ‘safe’ under the Asylum Procedures Directive.98 More generally, the EU-Turkey agreement has been criticized as a manifestation of the inability of EU governments and institutions to show leadership and solidarity and to manage the current migration crisis in full compliance with its own core values and well-established international human rights laws. In this context it must be recalled that pursuant to Article 6(3) teu, ‘[f]undamental rights, as guaranteed by the [echr] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’. Even a cursory appraisal shows that most EU Member States ensure the protection of some components of the right to participate in cultural life at the constitutional level. In addition, it appears that the constitutions of most Member States encapsulate the right to asylum. Therefore, it can be argued that the general principles of EU law on which European societies are founded include obligations concerning 96 97 98

See European Council, ‘EU-Turkey statement, 18 March 2016’ (18 March 2016) Press release 144/16 accessed 6 February 2019. Office of the High Commissioner for Human Rights, ‘UN Rights Chief Expresses Serious Concerns over EU-Turkey Agreement’ (24 March 2016). Vincent Chetail, ‘Will the EU-Turkey Migrant Deal Work in Practice?’ (The Graduate Insti­ tute, 29 March 2016) accessed 6 February 2019.

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the protection of the rights associated with cultural heritage and the right to asylum.99 In addition, according to Article 2 teu and Article 18 of the cfr, the right to asylum can be considered as one of the fundamental rights under EU law, because it embodies the political values on which European societies are supposedly founded.100 On the other hand, the EU-Turkey agreement shows that the EU increasingly expects its neighbours to prevent asylum seekers from reaching its borders, an approach to the migration crisis which creates a lot of opportunities for human rights violations.101 It has also been argued that the EU seeks to prevent people from reaching its borders—by stopping arrivals via visa programmes, carrier sanctions, enhanced airport inspections, and interception at sea—in order to avoid the application of available human rights guarantees (especially the principle of non-refoulement).102 This means that the protection of its outer borders against immigration has become one of the primary aims of the EU, while the international protection of immigrants is relegated to a secondary objective.103 The second set of problems worth examining here derives from the objective to develop a new policy on legal migration which includes the full integration of third-country nationals regularly settled in EU Member States.104 Despite the absence of a clear definition of the concept of ‘integration’ in EU law, it can be argued that it entails measures to remove barriers on access to the labour market and essential public services in the host State, as well as measures to enhance the contacts of migrants with the institutions and the culture of the receiving society. These measures are a necessary pre-condition for the full enjoyment of fundamental individual rights and for a gradual increase in the quality of life—both personal and collective—of migrants. Integration policies fall within the competence of individual EU Member States and normally are determined in accordance with the needs and expectations of the receiving State’s society, its history, and the legal framework. 99

100 101 102 103 104

The fact that EU Member States and the EU have ratified or acceded to the 2005 unesco Convention can be seen as an additional ground to recognize the right to participate in cultural life as a general principle of EU law and as another source of obligations for the EU. Romainville (n 38) 154–56. Marie-Laure Basilien-Gainche, ‘Leave and Let Die: The EU Banopticon Approach to Migrants at Sea’ in Violeta Moreno-Lax and Efthymios Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill/Nijhoff 2016) 330. Human Rights Watch, ‘EU Policies Put Refugees at Risk’ (n 93). Basilien-Gainche (n 100). Samuel Cogolati and others, Migrants in the Mediterranean: Protecting Human Rights (European Parliament 2015) 59–60. European Agenda on Migration (n 1) 14–17.

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­Accordingly, EU Member States have responded very differently to the question of how to cope with the long-term challenges associated with the integration of newly arrived non-EU migrants, and more specifically, with the new cultural diversity of the population. Most EU Member States have opted—albeit to differing degrees—for an assimilationist approach. This means that most national integration policies are designed to defend the majority culture, relying on the ideals of national unity and cultural homogeneity, and to ensure that migrants learn the language and the cultural values and mores of the majority society. These type of measures have been labelled ‘cultural defense policies’.105 Pursuant to these measures, third-country immigrants have to fulfil integration conditions, which often consist of language courses as well as civic courses about the institutions, the political system, the culture, and the core values of the receiving country. The law of most EU Member States provides that these courses are mandatory106 and have to be taken before immigration. This means that some level of incompatibility between the immigrant’s way of life and the host society’s culture can become a ground for exclusion.107 This also means that, inasmuch as integration conditions for cultural assimilation must be fulfilled in order to acquire legal status (e.g. rights of residence or citizenship), the enjoyment of the rights set out in the law of the EU and of the relevant Member State is a reward for integration rather than a tool for achieving it.108 Pursuant to such an assimilationist approach, migrants can be blamed for maintaining links with their cultural heritage—including speaking the language of their country of origin—as this allegedly reduces opportunities to integrate in the receiving country. This means that the States that have opted for an assimilationist approach claim to protect liberal values through the violation of the very same values.109 This perspective, which entails a competition between the culture of the receiving country and the culture of origin, presupposes that cultures are incompatible and that integration can only be completed by cutting ties with the society of origin.110 But this perspective is incompatible with the current understanding of culture, of the right to p ­ articipate in cultural 105 Liav Orgad, The Cultural Defense of Nations: A Liberal Theory of Majority Rights (oup 2015) 4–6. 106 See EU Agency for Fundamental Rights, Together in the EU. Promoting the Participation of Migrants and Their Descendants (EU Publ Office 2017) 51–3. 107 Orgad (n 105). 108 Jesse (n 83) 187. 109 Orgad (n 105) 1, 4–7. 110 Sonia Gsir and Elsa Mescoli, Maintaining National Culture Abroad. Country of Origin, Culture and Diaspora (INTERACT Research Report 2015/10, eui 2015) 12–13.

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life, and of cultural diversity. As outlined above,111 keeping up cultural ties with the country of origin is not an obstacle to integration. To the contrary, maintaining cultural ties with one’s country of origin constitutes an asset in the integration process. This is so because integration also means respecting the fundamental principles of a democratic society, including pluralism. Likewise, discovering migrants’ culture is an asset for the citizens of the receiving society.112 As has been indicated, within the EU the sovereign power of Member States to decide on how to regulate immigrants’ integration is not unlimited. The application of integration measures at the national level should be proportionate and functional to the objective of integration. In addition, the room for manoeuvre for Member States to introduce integration conditions is—at least in theory—severely limited by EU law. In effect, the EU has developed a complex framework providing for the minimum standards that must be complied with by EU Member States, as well as incentives and support113 for the Member States engaged in the complex and long-term process of integrating new arrivals.114 One of the first interventions of the EU was the adoption of the Common Basic Principles on Integration by the Justice and Home Affairs Council in 2004115—principles which have been reaffirmed by the EU Council in June 2014. According to these Principles, migrants must become familiar with the host society’s language, history, and institutions. They also insist on the importance of frequent interactions between immigrants and the citizens of the receiving State. Based on these Principles, EU institutions assist Member States in formulating integration policies for third-country nationals residing legally in their territory, especially to ensure equal treatment in terms of employment, education, and social inclusion. In contemporary times, when discrimination, prejudice, and xenophobia are on the rise, it is imperative to ensure that all those who are legitimately in the EU can participate actively in the society of the host State and enjoy fundamental rights and freedoms. 111 See Section 2. 112 Gsir and Mescoli (n 110). 113 Funding is provided by, e.g., the Asylum Migration and Integration Fund and the European Regional Development Fund for initiatives concerning language skills, inter-cultural exchanges, and awareness campaigns. 114 The EU’s mandate to promote integration is found in art 79(4) tfeu and in the Multiannual Programmes of the EU Council: https://ec.europa.eu/migrant-integration/ main-menu/eus-work/mandate. 115 ‘Common Basic Principles for Immigrant Integration Policy in the EU’ (19 November 2004).

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Among the 2004 Common Basic Principles on Integration two are worthy of special consideration here. The first provides that integration implies respect for the basic values of the EU, including the principles of liberty and democracy, the rule of law, and the human rights and fundamental freedoms as set out in the cfr.116 The second provides that the practice of diverse cultures is guaranteed under the cfr and must be safeguarded, unless such practice conflict with inviolable human rights or with national law.117 It follows that the practices and traditions that immigrants bring with them as part of their culture should be safeguarded, not only because they can ease their transition into the new society but also because they may lead to enrichment of the identity of host nations. These principles resonate in a number of EU measures, such as the Asylum Migration and Integration Fund, the Handbooks on Integration, the European Integration Forum, the European Migration Forum, the European Integration Modules, and the European Agenda for the Integration of Non-EU Migrants.118 Interestingly, Regulation 516/2014 establishing the Asylum, Migration and Integration Fund119 provides that the Fund shall support, inter alia, actions enabling third-country nationals who are residing legally in a Member State to become aware of their rights and obligations, to participate in the cultural life in the receiving society, and to share the values enshrined in the cfr.120 In addition, the European Agenda for the Integration of Third-Country Nationals121 stresses that successful integration relies on immigrants’ participation (which includes participation in cultural matters), and that the migrants’ culture must be respected by the receiving society, just as migrants are required to respect the rules and values of the receiving society.122 It also emphasizes that, if properly managed, the presence of migrants in schools presents a means of further

116 Ibid 19. 117 Ibid 23. See also, European Commission, ‘Action Plan on the integration of third-country nationals’ (n 90) 12–13, and fns 47 and 48 and related text. 118 All measures adopted by the EU to ensure integration are available on the European Website on Integration: https://ec.europa.eu/migrant-integration/main-menu/eus-work/ actions. 119 Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC [2014] OJ L150/168. 120 Ibid art 9(1)(c). 121 com (2011) 455 final, 3. 122 Ibid 4.

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opening up national education systems and the society of the receiving country as a whole to other European and non-European cultures.123 At the same time, a number of national initiatives echo the notion of integration as a dynamic, two-way process of mutual accommodation by immigrants and residents as spelled out by the 2004 Common Basic Principles on Integration. Two examples come from Italy, namely the ‘Charter of Palermo’124 and the ‘MigrArti Project’. While the former has received scarce international attention due to its boldness,125 the latter has been greatly successful in that it aims to support, raise awareness, and promote the cinematography, music, theatre, and art of the different generations of migrants that make up the Italian society.126 Other examples have been reported by the International Network for Contemporary Performing Arts in a March 2016 study.127 This research examines a sample of projects being produced across Europe and neighbouring countries by which artists—be they migrants or not—seek to support, solidarize, and engage with displaced persons and to combat marginalization. 5

Conclusions

The foregoing analysis offers considerable evidence that migrants are entitled to protection based on international law, in particular international human rights law, humanitarian law, and migration law. Furthermore, it emphasizes that the recognition, promotion, and respect of the cultural heritage and the cultural rights of migrants is one of the results of the growing concern of the international community with the preservation of cultural pluralism and diversity. Regrettably, EU law and policy are at variance with these standards. As demonstrated, the cultural heritage and cultural rights of migrants are neither recognized nor adequately protected within the EU. At present, the EU initiatives in the fields of cultural heritage and migration seem ambivalent and inconsistent, in the sense that the programmes and actions aimed at building a cohesive and multicultural European society are hampered by the ­schizophrenic 123 Ibid 6. 124 Available at: https://www.iom.int/sites/default/files/our_work/ICP/IDM/2015_CMC/ Session-IIIb/Orlando/PDF-CARTA-DI-PALERMO-Statement.pdf. 125 The Charter advocates the abolition of the residence permit and the establishment of a right to mobility as a basic right of human beings. 126 See at: www.beniculturali.it/migrarti. 127 Yasmin Fedda, Daniel Gorman, and Tory Davidson, Creation and Displacement. Developing New Narratives Around Migration (ietm 2016).

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stance that EU institutions and EU Member States have toward immigration control. In effect, the same EU institutions and EU States that have set out the Creative Europe Programme to celebrate the contribution migrants make to cultural diversity in Europe frantically respond to the most unprecedented mass movement of migrants and refugees since the end of the Second World War by building legal and material barriers. Furthermore, one can criticize EU migration governance for being paradoxical also in the light of the participation of some EU Member States to the International Alliance for the Protection of Heritage in Conflict Areas. Established in December 2016 by France and the United Arab Emirates, this foundation focuses on the protection of cultural heritage in war zones through the adoption of preventive measures, post-conflict interventions, and emergency actions.128 This means that the EU Member States participating in this project are interested in the protection and preservation of the cultural heritage of conflict-affected States, whereas they are not disposed to welcome and assist the people who are fleeing such conflicts even though, crucially, they are the people whose identity and history are associated therewith.129 As one scholar has pointed out, within the EU the movement of people has become ‘a suspicious activity potentially linked with criminality and organized crime’.130 It has also been claimed that today’s EU is connoted by diffidence, inability to share cultural values, and recurrence of racial intolerance.131 Another scholar has argued not only that the retreat from multiculturalism in the EU is real and has become law and policy, but also that culture has become a dominant factor in immigration selection in the sense that, by means of immigration laws, States tend to create an image of a culturally homogenous group and to impose it on immigrants in order to promote cohesion and unity.132 128 See unesco, ‘unesco, France and the Emirates Launch an International Alliance for the Protection of Heritage’ (20 March 2017) accessed 10 February 2019. 129 Ironically, these measures also include the creation of ‘safe havens’, that is, protected spaces where the movable cultural objects threatened by armed conflict in the country of origin can be stored temporarily for safekeeping. On safe havens see Alessandro Chechi, ‘Rescuing Cultural Heritage from War and Terrorism: A View from Switzerland’ (2015) 2(1) saaclr 83. 130 Sergio Carrera, Towards a Common European Border Service? (ceps Working Document 331, 2010) 2. 131 Francesca Galgano, ‘Should Europe Be Looking into Turkey’s Byzantine Past to Discover Its Own Future?’ in Giovanni C Bruno and others (eds), Migration and Development. Some Reflections on Current Legal Questions (cnr Edizioni 2016) 9. 132 Orgad (n 105) 4–5, 87, 113, 114.

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Furthermore, it appears that, despite a multitude of legal, policy, and funding instruments, the integration strategies of EU Member States are often at variance with the 2004 Common Basic Principles on Integration133 and the Action Plan.134 It has also been proven that national integration strategies are not systematically monitored to assess their impact on the ground, and that they often fail to focus on vulnerable and sensitive segments of migrant communities, namely women, migrant youth, and descendants of migrants.135 As a result, migrants might not receive real opportunities to participate in a meaningful way in the cultural life of the host country. This social exclusion might bring about risks of intolerance, discrimination, marginalization, alienation, exclusion from the main society, and the rise of extremisms.136 In this Chapter it is submitted that the recognition, promotion, and protection of the cultural heritage and cultural rights of migrants, as well as the promotion of cultural diversity and intercultural dialogue within the EU, require a different approach to the problem of integration on the part of EU institutions and EU Member States.137 Arguably, this approach should be one that complies with the legal instruments on international protection that EU Member States have contributed to develop;138 and one that reinforces the argument that the safeguarding of cultural heritage and the rights associated with it are key to coping with today’s migration crisis. Effective integration policies should be developed by host EU Member States in order not to miss the benefits that may arise from the proper management of migrations. In this perspective, it should be emphasized that, generally speaking, the objectives that are promoted by a legal regime normally influence the development of the tools that are used to achieve such objectives under that legal regime. Therefore, the EU and EU Member States should strengthen existing measures and/or develop new tools in order to achieve the professed objectives, as stated in both legal and policy documents: to protect cultural heritage 133 134 135 136 137

See n 115 and related text. See n 90 and related text. EU Agency for Fundamental Rights (n 106) 7–9. Ibid 61. See also François Crépeau and Idil Atak, ‘Managing Migrations at the External Borders of the European Union: Meeting the Human Rights Challenges’ (2014) 3 European Journal of Human Rights 591; and hrc, ‘Report of the Special Rapporteur on the Human Rights of Migrants, François Crépeau’ (2013) UN Doc A/HRC/23/46. 138 See the set of commitments that apply to refugees and migrants laid down in the New York Declaration for Refugees and Migrants (n 4) paras 21–87. The Declaration paves the way for the adoption of two new global compacts in 2018: a global compact on refugees and a global compact for safe, orderly, and regular migration.

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in all its forms, to challenge the prejudices that fuel diffidence, and to raise awareness about the powerful creative potential of migration. In addition to the few examples reported above, the establishment of migration museums can serve as a tool to change the perspective of the non-migrant citizens of host States, so that they can become aware that their country is the product of successive migratory waves, and that migration flows should be regarded as a constituent component of the country’s identity.139 Indeed, the lesson of history is that many of the achievements of our societies are closely interrelated to past Diasporas. The migration flows that occurred throughout history have not only changed the demographic composition of nation-States, they have also contributed greatly to the development of European societies and to the evolution of art and culture. Present-day migration should thus remind everyone of our common humanity, and of the value of cultural diversity as an enrichment rather than a danger to the cultural heritage and identity of EU Member States.

139 Of course, this is possible only if the migration narrative is represented truthfully and accurately.

Chapter 13

Intangible Cultural Heritage, Europe, and the EU: Dangerous Liaisons? Hanna Schreiber* 1 Introduction ‘United in Diversity’ (lat. in varietate concordia) is well-known—either as the European Union’s empty slogan or as its first commandment, depending on whether we choose the sceptical or the optimistic narrative concerning the content used to fill in this motto. It rhetorically expresses the goal of the European project, which is to achieve unity among EU Member States while at the same time acknowledging and fostering the diversity of their cultures. Although it is a catchy phrase on paper, it seems to be hard to enforce in reality, and the significant challenges that the EU has been facing in recent years have undermined the faith in this motto. In order to counteract this trend and find a safe way out of the EU’s economic and political crisis (sometimes described as ‘Europe’s sustained decay’1), one option is to reach (again) for the ‘culture argument’ (the values, norms, and heritage which are to be ‘shared, common and European’) and embed it into the ‘homogenising rhetoric’.2 It should be noted that this is not happening for the first time in EU history. The economic and integrative crisis of the EU in the 1970s evoked the same kind of actions and reflections, which eventually resulted in the adoption of the 1973 Declaration on European Identity,3 a tool of legitimization and an answer to * The author would like to acknowledge Julia Krzesicka for her help in organizing and clarifying the data used in this paper and in the report available at www.heuright.eu, as well as to thank Markus J. Prutsch, Benedetta Ubertazzi, the editors, and an anonymous reviewer for their constructive comments on the previous version of this Chapter. The author would also like to express her gratitude to the many ich experts and officers who devoted their time to give interviews, thus making it possible to become acquainted with insiders’ points of view. 1 Iliana Olivié and Manuel Gracia, Elcano Global Presence Report 2016 (Real Instituto Elcano 2016) 17. 2 Elisabeth Niklasson, ‘The Janus-Face of European Heritage: Revisiting the Rhetoric of Europe-Making in EU Cultural Politics’ (2017) 17(2) Journal of Social Archaeology 138, 139. 3 ‘Summit Conference of the Heads of State or Government of the Member States of the ­European Community, Copenhagen, 14–15 December 1973. Declaration on European Identity’ (1973) 12 EC Bull 118.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_015

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the ­perceived lack of identity in order to foster the process of integration4 and help define the place which [the then EC] occupy in world affairs. These beliefs in the power of culture, including cultural heritage, in times of crisis (especially those sometimes called ‘multiculturalism retreats’, underpinned with fears that the accommodation of diversity has gone too far),5 seems to also have been an important underlying factor in proclaiming the European Year of Cultural Heritage in 2018, which came about after decades of developing EU cultural (heritage) policies. Accordingly, it has been emphasized that Cultural heritage plays an important role for community cohesion at a time when cultural diversity is increasing in European societies. (…) New participatory and intercultural approaches to heritage policies and educational initiatives that attribute equal dignity to all forms of cultural heritage have the potential to increase trust, mutual recognition and social cohesion.6 In this regard, Irina Bokova, the former unesco Director-General, stated at the Abu Dhabi Culture Summit that ‘[t]here is a global awakening about the power of culture for security and development’.7 The UN’s ‘intellectual agency’—unesco—has to be credited for the creation and adoption of the most successful legal instrument pertaining to cultural heritage in recent decades, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (the 2003 Convention), with its broad and all-encompassing definition of intangible cultural heritage, understood as follows: the practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artefacts and cultural spaces associated therewith—that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly 4 Monica Sassatelli, Becoming Europeans: Cultural Identity and Cultural Policies (Palgrave Macmillan 2009) 39. 5 Will Kymlicka, ‘The Rise and Fall of Multiculturalism? New Debates on Inclusion and Accommodation in Diverse Societies’ (2010) 61 issj 97. 6 Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1, para 11. 7 unesco, ‘“There Is a Global Awakening about the Power of Culture for Security and Development”, says unesco Director-General in Abu Dhabi Culture Summit’ (11 April 2017) accessed 28 January 2019.

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recreated by communities and groups in response to their environment, their i­nteraction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.8 The examples from Europe, already labelled according to this definition and inscribed as ich, include, inter alia: Art of Neapolitan ‘Pizzaiuolo’ (Italy); Basel Carnival (Switzerland); Craft of the miller operating windmills and watermills (the Netherlands); Cultural practices associated to with 1st of March (Bulgaria, The Former Yugoslav Republic of Macedonia, Republic of Moldova, Romania); Kolo, traditional folk dance (Serbia); Multipart singing from Horehronie (Slovakia); Organ craftsmanship and music (Germany)—to mention just a few of latest inscriptions made into the Representative List of ich in December 2017.9 They usually belong to, but need not be limited to, one of the listed Convention domains: oral traditions and expressions, including language as a vehicle of intangible cultural heritage; performing arts; social practices, rituals, and festive events; knowledge and practices concerning nature and the universe; and traditional craftsmanship. The chosen elements for inscription have to be compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups, and individuals, and of sustainable development (Article 2 of the 2003 Convention). In order to be nominated to the Representative List they have to first be inscribed into a national ich inventory (Article 12 of the 2003 Convention). This Chapter seeks to answer two major questions: What is the place of Europe in the global ich safeguarding regime?; and How has the EU introduced the ich concept following the adoption of the 2003 Convention?10 In order to answer these questions it analyses the number of inscriptions stemming from European countries to the Representative List of ich, taken as a proof of the 8

unesco Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 unts 1, art 2. 9 accessed 28 January 2019. 10 It is important to underline that this Chapter deliberately omits the issue of concepts, regulations and documents aimed at protection of elements that belong to traditional cultural expressions, such as geographical indications, traditional knowledge/medicine, or the ‘indigenous exception’ present in the EU regulation on trade in seal products. Though they also form what is defined today as intangible cultural heritage, the history of their presence at the level of the EU is a separate issue (see e.g. the PhD dissertation by Lily Martinet, Les expressions culturelles traditionnelles en droit international, Sorbonne Law School 2017, unpublished). Here, the history of the mutual EU-unesco recognition with the reference to the concept of ich and the 2003 Convention is at the centre of the analysis.

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interest shown by States Parties to the 2003 Convention. It also examines how the EU defines ‘intangible cultural heritage’ in practice, e.g. via diverse funds and programmes, with the aim of seeing how close (or how far) it is to the 2003 Convention’s definition. At the end the Chapter presents the challenges and possible pitfalls that might be encountered in the process of including ich in the current EU heritage policies and actions. The structure of this Chapter follows the sequence of the above-mentioned issues. In order to provide a clear referential framework, the research presented in this Chapter is based on an interdisciplinary approach, involving the legal, institutional, and political dimensions. In terms of the sources used, information was drawn from international organizations (EU and unesco) primary sources—e.g. conventions (with a focus on the 2003 Convention), institutional agreements, directives, memoranda of understanding (especially those between the EU and unesco), policy documents, operational directives, open calls for funds, and others. Ethnographic methods (participant observation and semi-structured interviews, conducted during four research visits to unesco Headquarters in Paris and to the EU Commission and Parliament between June 2016 and September 2017) are also used to provide an important source of information relevant for this analysis. 2

Europe, the EU, and the Lists of the 2003 Convention: ‘The West over the Rest’ Again?

The idea of safeguarding non-material heritage and its depositaries is actually rooted in Asia, and the first legal initiatives launched to protect the bearers of folklore and traditional culture were established at the national level by Japan (in 1950), and subsequently by South Korea (1962) and the Philippines (1972). The formal proposal to establish a unesco system of ‘Living Cultural Properties’ was made by the Republic of Korea in June 1993 to the unesco Executive Board.11 At its 142nd session in 1993, the Executive Board of unesco adopted a resolution on the creation of the Living Human Treasures programme.12 This was, following the Recommendations on the Safeguarding of 11 12

unesco Section of Intangible Heritage and Korean National Commission for unesco, ‘Guidelines for the Establishment of Living Human Treasures Systems. Updated Version (2002)’ (2002) 13–15. unesco, ‘Establishment of a System of “Living Cultural Properties” (Living Human Treasures) at unesco’ (10 August 1993) UN Doc 142 EX/18 and unesco, ‘Draft decisions recommended to the Executive Board by the Programme and External Relations Commission’ (21 October 1993) UN Doc 142 EX/48.

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Traditional Culture and Folklore (1989)—adopted a decade earlier—another important step towards appreciating the intangible aspects of cultures and their bearers.13 However, it had a limited impact and no legal power to introduce more profound changes. Koichiro Matsuura, a Japanese citizen who was appointed as unesco Director-General in 1999, decided to bring this idea to the unesco forum again and work on the preparation of the new legal instrument commenced the same year.14 However, the arguments for protecting not only tangible but also intangible heritage had already been raised when the Convention Concerning the Protection of the World Cultural and Natural Heritage (the 1972 Convention) was being drafted,15 with the Bolivian proposal formulated a year later (in 1973) to protect folk arts and cultural heritage of the various nations of the world and create the International Register of Folkloristic Cultural Property.16 The undisputed success of the most recognizable international ‘promotion machine’ for cultural heritage—the List of the World Cultural and Natural Heritage (whl) established by the 1972 Convention and now comprised of more than 1,000 entries—served as a model for the 2003 Convention, which established the Representative List of the Intangible Cultural Heritage of Humanity. This list currently includes 429 inscriptions from 118 countries (as of December 2018). The listing system is the most visible (and controversial) similarity between these two Conventions, which otherwise differ widely. In both cases, it requires professional and efficient administrative personnel, who must deal with heritage protection and safeguarding; appropriate allocation of financial resources to cultural policy, including for the promotion of heritage abroad; and conduct of effective diplomacy at the international level, which includes the skilful crafting of coalitions in order to gain an entry on the selected list. Inscription on any international heritage list is, therefore, the culmination of a complex process, taking place mainly, but not only, within the sphere of cultural diplomacy.17 The current enlargement of the international heritage arena leads even 13

14 15 16 17

Janet Blake, Commentary on the unesco 2003 Convention on the Safeguarding of the I­ntangible Cultural Heritage (Institute of Art & Law 2006). See also Janet Blake, ‘From Traditional Culture and Folklore to Intangible Cultural Heritage: Evolution of a Treaty’ 3 (2) saaclr 41. ‘Cécile Duvelle Talks to Hanna Schreiber and Lucas Lixinski’ (2017) 3(2) saaclr 21. unesco Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 unts 151. Cécile Duvelle, ‘A Decade of Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage: Challenges and Perspectives’ (2014) 36 Ethnologies 27, 29. Hanna Schreiber, ‘Intangible Cultural Heritage and Soft Power—Exploring the Relationship’ (2017) 12 International Journal of Intangible Heritage 43, 48.

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to the conclusion that a distinct field has emerged—that of heritage diplomacy.18 An important difference between the two Conventions concerns the aims of their respective lists. The whl objective is to inscribe sites of outstanding universal value, which also meet at least one out of ten established criteria (Article 11 of the 1972 Convention), whereas the Representative List seeks to ensure better visibility of the intangible cultural heritage and awareness of its significance [as a whole, not only the elements listed—HS], and to encourage dialogue which respects cultural diversity (Article 16 of the 2003 Convention). Soon after the adoption of the 1972 Convention, the whl proved to be not only a great success story but also a promotional machine—but mainly for one region of the world: Europe, which has the majority of inscribed sites.19 This situation caused growing international consternation throughout the 1980s, and in the 1990s a number of mechanisms were invented to correct this imbalance, including the launch in 1994 of the Global Strategy for a Representative, Balanced, and Credible World Heritage List.20 Despite these initiatives, European hegemony on the whl remains in place, making it still a ‘most European Convention’. Thus it comes as no surprise that one of the arguments raised at the time of drafting the 2003 Convention was that this instrument should finally mitigate this imbalance by raising and promoting the richness of traditions, customs, rituals, and traditional craftsmanship of African, Asian, and Latin American origin.21 The hopes for having a 2003 ‘non-Western Convention’ did not materialize however. While indeed in the wings of unesco one may hear ‘off the record’ comments that ‘unesco is not for Europe, and Europe does not need the 2003 Convention’, or that ‘the governing bodies are clear that they invest only in developing countries, like Africa, Latin America’22 the statistics show that Europe as a region can handle this neglect quite well. The number of inscriptions are a visible proof of the frozen power structure in the global heritage regime, in which Europe has played a key role for decades. Europe, as a region,

18 19

20 21 22

Tim Winter, ‘Heritage Diplomacy’ (2015) 21 ijhs 997. For more on the history of creating regional groups in the framework of the 1972 Convention, with the aim to ensure an equitable representation of the different regions and cultures of the world, especially in the context of the elections to the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (art 8 of the 1972 Convention), see Lynn Meskell, Claudia Liuzza, and Nicholas Brown, ‘World Heritage Regionalism: unesco from Europe to Asia’ (2015) 22(4) ijcp 437. Ibid 438; Christoph Brumann and David Berliner, World Heritage on the Ground: Ethnographic Perspectives (Berghahn Books 2016) 11. Brumann and Berliner (n 20) 12. Interviews in July 2016.

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has been highly successful in operationalizing the 2003 unesco Convention (or in other words, in ‘capitalising on the new possibilities’)23 as regards the presence of intangible cultural elements originating from Europe on the Representative List of the Intangible Cultural Heritage of Humanity. Out of the five world regions, Europe has 132 inscriptions, which constitutes the largest share (35%) in the regional representation. The next step in the analysis of the widespread European presence on the ich international arena, understood partly through Brumann’s definition of the ‘arena’ as a ‘familiar playing field with agreed-upon rules, (…) detailed procedural routines and set expectations of diplomatic rhetoric and etiquette’,24 reveals the central role of the activities undertaken by the 27 EU Member States in heritage diplomacy. These activities have resulted in the large number of inscriptions on the Representative List, forming at the same time an overwhelming majority of the inscriptions representing Europe as a geographical region on this unesco list. As of December 2016, out of the 46 states forming Groups i and ii, (generally representing Europe as a regional group), 27 EU Member States possess 91 elements out of 132 (representing Europe see figure 13.1). All current EU Member States—with the exception of the UK, which is however currently in the process of leaving the EU—are also States Parties to the 2003 Convention (with Malta joining last in spring 2017). The States Parties to the 2003 Convention are divided into six regional groups:25 as of March 2018 Group i is comprised of 22 states, representing the region of Western Europe and North America (including Turkey, although neither the US or Canada are States Parties to the Convention); Group ii has 24 states (Central and Eastern Europe, with only a few States from Central Asia, such as Tajikistan or Uzbekistan); Group iii has 32 states (Latin America and the Caribbean); Group iv has 39 states (Asia and the Pacific); Group Va has 42 states

23 24

25

Brumann and Berliner (n 20) 11. Christoph Brumann, Multilateral Ethnography: Entering the World Heritage Arena, Max Planck Institute for Social Anthropology Working Papers No 136 (Max Planck Institute for Social Anthropology 2012). In the definition of the ‘arena’, he also includes the feature that it is ‘governed by standard spatial arrangements in the meeting room’, which limits the notion only to the activities taking place during the regular and official sessions and meetings. Here, thus, the ‘arena’ is understood in a wider way and includes all diplomatic and scientific activities taking place between, and against the background of, the regular unesco meetings. This was decided at the 1 General Assembly of States Parties to the 2003 Convention in Paris, June 2006, ITH/06/1.GA/CONF.201/6A paragraph 4.

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8% 30

Europe and North America / EU Member States

24%

Europe and North America / Others

91

14% 52

331

Asia and the Pacific 8% 31

41

129 34%

Africa 11%

Latin America and the Caribbean Arab States

Figure 13.1 Regional groups and the EU Member States according to the number of inscriptions on the Representative List of ich of Humanity (2008–16). Note: Only unique inscriptions were counted for each region (multinational inscriptions were counted as 1 per each region). Only unique inscriptions for the whole group were also counted for EU Member States. Source: own elaboration

(Africa), and Group Vb has 18 States (Arab).26 In 2010, out of the 44 elements inscribed that year 18 of them represented Groups i and ii, which together— for the needs of comparison to the 1972 Convention—were merged below to form the Europe and North America Group of States. The EU Member States form the strong core of Groups i and ii, which cover Western Europe (and North America), as well as Eastern and Central Europe respectively (see Figure 13.1). The EU Member States (considered as forming a geographic area) also occupy first place when promoting good practices in ich safeguarding on the unesco Register of Good Safeguarding Practices. Out of 19 practices (as of December 2017), 13 come from countries belonging to Groups i and ii, with inscriptions from Spain (3), Belgium (2), Bulgaria (2), and Hungary (2) at the top. The one non-EU Member State represented in the Register of Good Safeguarding Practices, Norway, inscribed the ‘Oselvar boat—reframing a traditional learning process of building and use to a modern context’ in December 2016. The aim of the Register is to promote national, sub-regional, and regional programmes, projects, and activities for the safeguarding of the heritage which best reflect the principles and objectives of the 2003 Convention. Somewhat ironically—as there is no inscription from Africa and none from the Arab 26

For the current number of States ascribed to each specific regional group, please check ich.unesco.org.

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States—it should take into account the special needs of developing countries (Article 18 of the 2003 Convention). Although the number of inscriptions do not solely or necessarily reflect the potential, richness, or status of ich in a given country, they generally reflect the financial and diplomatic capacities of the EU Member States, which have already been mentioned. Thus, it is not surprising that the countries from Groups i and ii show much less interest in the last of the three existing ich lists: the List of Intangible Cultural Heritage in Need of Urgent Safeguarding (Article 17 of the 2003 Convention). Out of 52 elements, corresponding to 28 countries, only 10 of them come from Groups i and ii (and out of these 10 only five come from EU Member States: Latvia, France, Croatia, and Portugal—with two elements being endangered: manufacture of cowbells and Bisalhães black pottery manufacturing). Presence on this List makes it possible to receive international assistance (Article 20) and resources (financial support) from the Intangible Cultural Heritage Fund (Article 25). It has been noted27 that the differences in countries’ conditions (e.g. professional personnel, academic expertise, financial resources, cultural policy, political will, and diplomatic efficiency, to mention just a few factors) impact on their nomination capacities, which are in turn likely to affect the number of sites or other elements of heritage inscribed on any international list. This is why more European heritage examples are on the unesco Lists—because they usually stem from richer countries, and although the economic condition of a country is not the sole factor influencing the number of inscriptions (see e.g. the United States) it enhances the chances for visibility of a State’s cultural heritage on the international level. It must be underlined, however, following Meskell and others in relation to the 1972 Convention,28 that this does not imply that poorer nations have fewer outstanding heritage sites or are less representative of ich traditions—they just have fewer resources to mobilize towards attaining unesco nominations. The large number of inscriptions may even be a proof of inadequate interest in the nomination process, what is again unofficially admitted by some unesco experts: being on the Representative List too much means you do not do anything else. Having a few nominations is OK, but being every year able to 27

28

Brumann and Berliner (n 20) 445; Enrico E Bertacchini and Donatella Saccone, ‘Toward a Political Economy of World Heritage’ (2012) 36(4) Journal of Cultural Economics 327; Bart JM van der Aa, ‘Preserving the Heritage of Humanity? Obtaining World Heritage Status and the Impacts of Listing’ (PhD thesis, Netherlands Organisation for Scientific Research 2005), after Meskell, Liuzza, and Brown (n 19). Meskell, Liuzza, and Brown (n 19) 446.

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propose several nominations means most of time you don’t do anything else. (…) But the people very often are attracted for the wrong reasons, because they are not quite informed about the purpose of the list. Because nobody wants to tell them what the purpose of the list is. So for them it is a replica of the 1972 Convention. They want to be on the list; this is normal. But it is clearly a wrong interpretation. The description of the reason for the Representative List is not the same as the World Heritage List, it is not the outstanding, exceptional thing. It is to better understand what the ich is.29 It is also important to note in this regard that this ‘European hegemonic trend’ could not have been easily foreseen before the entry into force of the 2003 Convention and the first inscriptions to the Representative List, as it was Asia and the Pacific that had the most nominations during the first two years of the functioning of the Representative List (2008–10). The results of the programme directly preceding the 2003 Convention—the Masterpieces of the Oral and Intangible Heritage of Humanity, launched in three editions: 2001, 2003, and 2005—had similarly put Asia and the Pacific in the forefront. Open to every unesco Member State and financially supported by Japan, the Proclamation of Masterpieces ended with 90 inscriptions, which, according to the Article 31 of the 2003 Convention, formed the first group of ich elements inscribed on the Representative List. Asia and the Pacific had 26 masterpieces, followed by Europe with 20, Latin America and the Caribbean with 19, 18 from Africa and 7 from the Arab States. This situation changed in December 2010, when the number of inscriptions coming from Europe grew significantly in number, in part due to an increase in ratifications of the 2003 Convention by European States. Since 2012, Europe has been on the cutting edge of heritage regimes. It must be underscored, however, that the gap between inscriptions from Europe and those from Asia and the Pacific is not significant at the moment. Whether it will grow in the same way as the regional gap between Europe and the rest of the world on the whl remains to be seen in the future. 3

EU, unesco, and the 2003 Convention: An Unclear Picture

One may ask: Did the EU, as a regional organization, play any supportive role in the process of drafting of the 2003 Convention and further the growing 29

Interview at unesco HQ, September 2017.

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recognition of ich within the EU Member States and on the international ich arena, especially in comparison to its visible later engagement in the drafting and adoption of the 2005 Cultural Diversity Convention?30 In order to answer this question, one has to investigate the legal and institutional basis for the cooperation between the EU and unesco. The first step in the relations between unesco and the European Communities can be considered to have taken place already in 1964, via an exchange of official letters between the European Economic Community, which was eventually transformed into the EU, and unesco. The next exchange of letters occurred almost a decade later, in 1973.31 In 1995, unesco and the European Commission concluded a framework agreement harmonizing their administrative and financial procedures in order to strengthen their cooperation.32 In February 2004 a new unesco-Commission agreement was signed, which amended the previous one and allowed unesco to accede to the Financial and Administrative Framework Agreement (fafa) concluded between the UN and the Commission in 2003.33 The Commission is also involved as an official observer in the institutional discussions developed by the unesco bodies, i.e. the General Conference and the Executive Board. In this context, the Commission gained visibility within unesco during the negotiations on the 2005 Convention for the Protection and Promotion of the Diversity of Cultural Expressions (2005 unesco Convention).34 This followed a mandate from the EU Council of Ministers to the Commission to negotiate on behalf of the European Community and its Member States.35 On this occasion, the Commission was granted enhanced observer-status by the Executive Board and by the General Conference, which enabled it to negotiate on behalf of the European 30 31 32 33

34 35

Lucia Cavicchioli, ‘The European Community at unesco: An Exceptionally Active Observer?’ in Jan Wouters, Frank Hoffmeister, and Tom Ruys (eds), The United Nations and the European Union: An Ever Stronger Partnership (T.M.C Asser Press 2006). Edith Drieskens and Lien De Tavernier, ‘The EU Performance in Relation to Palestine’s Membership of unesco’ in Spyros Blavoukos and Dimitrios Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances (Palgrave Macmillan 2017) 213. unesco, ‘Co-operation between the European Commission and unesco’ (13 December 1995) UN Doc 147 EX/44. ‘Financial and administrative framework agreement between the European Union represented by the European Commission and the United Nations’ (2014) accessed 28 January 2019. (Adopted 20 October 2005, entered into force 18 March 2007) 2440 unts 311. Commission of the European Communities, ‘Recommendation from the Commission to the Council to authorise the Commission to participate, on behalf of the Community, in the negotiations within unesco on the convention on the protection of the diversity of cultural contents and artistic expressions’ sec (2004) 1062 final.

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­ ommunity. Today, this still remains the most visible example of cooperation C in the field of culture between the EU and unesco, although the process encountered severe difficulties at the beginning and the EU’s role and capacity to operate were only hammered out in the negotiation process itself.36 An analysis of this process, carried out by Psychogiopoulou,37 Cavicchioli,38 Wouters and others,39 seems to indicate that the focus and engagement of the EU (since 2001) in the process of drafting and adopting the 2005 Convention were, as part of the Barroso-Ashton Strategy,40 driven by clearly formulated economic interests (e.g. the protection of internal cultural markets from US dominance) and might have resulted in its lack of interest in the parallel process of drafting and adoption (since 1999) of the community-driven 2003 Convention and the EU’s lack of awareness of its potential future role as well as its incredible success.41 As the analysis conducted in this Chapter demonstrates, even to this day the EU does not recognize the 2003 Convention as an important legal instrument that might lie in the interests of the EU. Following up on the establishment the unesco Liaison Office in ­Brussels in 2011, unesco and the EU signed a new Memorandum of Understanding (MoU) on 8 October 2012, with a view toward enhancing their dialogue, strengthening their cooperation, and fostering the exchange of best practices.42 The field of cultural heritage, however, was not mentioned separately in this document. Section C of this MoU—concerning areas for dialogue and 36

37

38 39 40

41

42

Jan Wouters and others, ‘Improving the European Union’s Status in the United Nations and the UN System: An Objective Without a Strategy?’ in Christine Kaddous (ed), The European Union in International Organisations and Global Governance: Recent Developments (Hart 2015) 72. Evangelia Psychogiopoulou, ‘The Convention on the Diversity of Cultural Expressions and the European Union: The Quest for Competence and Implementation’ in Toshiyuki Kono and Steven Van Uytsel (eds), The unesco Convention on the Diversity of Cultural Expressions: A Tale of Fragmentation in International Law (Intersentia 2012). Cavicchioli (n 30). Wouters and others (n 36). European Commission, ‘Communication to the Commission from the President in agreement with Vice-President Ashton. Strategy for the progressive improvement of the EU status in international organizations and other fora in line with the objectives of the Treaty of Lisbon’ C (2012) 9420 final. The only reference to the EU during the process of drafting the Convention appears at the expert meeting in Paris from 23 to 27 September 2002. The Representative of Denmark stressed, in the name of the EU (this was during the Danish presidency) that it is ­important to take the time to prepare a normative instrument thoroughly and to carefully take all relevant points into consideration. Doc.CLT-2003/CONF.205/5. ‘Memorandum of Understanding. Concerning the establishment of a partnership between the United Nations Educational, Scientific and Cultural Organisation Secretariat and its subsidiary bodies (hereinafter referred to as “unesco”) and the European Union’

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cooperation—lists the following fields: education and culture, media, science, technology, innovation, maritime policy, human rights, especially freedom of expression, bioethics and ethics of science, and new technologies. The latest unesco initiatives bringing the EU and unesco closer have been undertaken by national commissions for unesco. A very important regional initiative established a European Network of National Commissions, in order to include all EU Member States as well as those four in the European Free Trade Association (Iceland, Liechtenstein, Norway, and Switzerland). Following a meeting organized by the German Commission for unesco in Bonn in February 2015, the network was formally launched. Its goal is to strengthen the cooperation within the EU.43 This forum has the potential to allow for more reflexive discussions on the relationship between the EU and the 2003 Convention in the future. Cooperation between the EU and unesco is also taking place via the EU Liaison Office in Paris and the unesco Liaison Office in Brussels, set up after the Lisbon Treaty. However, research visits and interviews revealed that the topic of the 2003 Convention has not yet come to the particular attention of either office. The answers given several times to questions about the EU’s possible interest in the 2003 Convention (on both EU and unesco sides) contained a simple explanation, eg: ‘They [the EU bureaucrats] have no idea about it’, ‘they just do not understand what ich is’, ‘they think it is for tourists’.44 Nevertheless unesco, through the Regional Bureau for Science and Culture (based in Venice, Italy) as well as the Regional Centre for the Safeguarding of Intangible Cultural Heritage in South-Eastern Europe in Sofia (unesco Category 2 Centre), support the cooperation with and between States from SouthEastern Europe (some of them being non-EU Member States, i.e. Albania, Bosnia and Herzegovina, Moldova, Montenegro, Serbia, The Former Yugoslav Republic of Macedonia, and Turkey) in the field of ich via a network of ich experts and regular meetings (since 2007) as well as training in the field. When it comes to the cooperation of these actors with the EU however, one may hear on one hand that ‘cooperation with the EU is a process full of uncertainties and question marks, but we do attach a great importance to it’; and on the other— specifically regarding the interest and awareness of the EU about ich: ‘[They are asking] what is ich? [And they say:] We do not want to s­ upport folklore

43 44

(8 October 2012) accessed 30 January 2019. [2014] Polish National Commission for unesco Review Bulletin accessed 29 January 2019. Interviews in July 2016 (with Liaison Office in Brussels and with unesco Venice Office), April 2017 (European Parliament), and September 2017 (unesco HQ).

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studies. We [ich experts from the region] always receive these questions when coming to the European Commission with projects including ich. (…) There is still a lot of work to be done on building understanding’.45 Interestingly, the EU is presented as a strategic partner for unesco according to the statements on the unesco website.46 As one unesco insider put it: ‘They have much more money than unesco’, but at the same time, ‘They have a wrong idea even for tangible heritage. They have an idea of a very economic nature of heritage’.47 No one among my respondents at the unesco HQ, unesco Liaison Office in Brussels, as well as the unesco Venice Office, was able to mention even one person working at any EU institution that they could contact and ask about ich and the 2003 Convention: ‘[For us] the most important partners are the European Commission and European Parliament (…) There is no specific competence on ich in the EU, maybe in DG Culture people know [something], but they are not requested to do it’.48 4

Introducing ‘Intangible Heritage’ and the 2003 Convention into EU Policies and Actions

The engagement of the EU in the field of cultural heritage is part of both its involvement in the field of culture and the discussion related to European values and identity. Its legal basis was determined first by the provisions of Article 128 of the Treaty establishing the European Community (tec) under the Maastricht reform (1992), then Article 151 as amended by the Treaty of Amsterdam (1997), and finally the present Article 167 of the Treaty on the Functioning of the European Union (tfeu).49 In analysing the provisions of Article 167, one can observe that cultural heritage, in the light of EU treaties, is promoted and protected as long as it is perceived as ‘common’ and as ‘having European significance’. The vagueness of these formulations has been widely and critically addressed, including in this volume.50 The idea of ‘respecting’ national and regional diversity limits the activity of the European Community. ‘Bringing the common cultural heritage to the fore’ thus acts as a counterweight against diversity. Therefore, the principle of subsidiarity, meaning that the Union shall act only if and insofar as its 45 Interviews in July 2016. 46 accessed 30 January 2019. 47 Interview at unesco HQ, September 2017. 48 Interviews in July 2016. 49 Consolidated version: OJ C 326, 26.10.2012, pp. 47–390. 50 See Chapters by Cynthia Scott and Evangelia Psychogiopoulou in this volume.

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action is more efficient than that taken at the national, regional, or local level, is enhanced in the field of cultural heritage. This excludes the harmonization of national laws and regulations in this area. Cultural heritage itself has not been precisely defined in the treaties nor in any EU policies or actions. However, subsequent actions taken after the adoption of Article 128 of tec (Maastricht) present a somewhat narrow perception of cultural heritage, as material, tangible heritage that shall be first and foremost reconstructed or conserved.51 This trend—reducing cultural heritage only to tangible assets—was visible also in the pre-Maastricht actions on the EU level.52 In 2007, the EU adopted the European Agenda for Culture in a Globalizing World, where cultural heritage again appears in the following context: ‘­Europeans share a common cultural heritage, which is the result of centuries of creativity, migratory flows and exchanges. They also enjoy and value a rich cultural and linguistic diversity, which is inspiring and has inspired many countries across the world’.53 [emphasis added] It was later explained that: Since the adoption of the Agenda in 2007, heritage has been a priority for the Council’s work plans for culture, and cooperation at the European level has advanced through the Open Method of Coordination. Political interest at the EU level has steadily grown—cultural and heritage stakeholders recently highlighted in the Declaration on a New Narrative for Europe: ‘Europe as a political body needs to recognise the value of cultural heritage. Heritage reveals what it has meant to be a European ­throughout time. It is a powerful instrument that provides a sense of belonging amongst and between European citizens’.54 The above description of the role of heritage at the EU level comes from the EU document referring to cultural heritage adopted in Brussels in July 2014 by the Commission: ‘Towards an integrated approach to cultural heritage for Europe’, in which the definition of cultural heritage and its place in the EU Agenda is presented as follows: Europe’s cultural heritage, both tangible and intangible, is our common wealth—our inheritance from previous generations of Europeans and our legacy for those to come. It is an irreplaceable repository of 51 52 53 54

See Chapter 14 by Kristin Hausler in this volume. As discussed in Chapter 3 by Evangelia Psychogiopoulou in this volume. Commission of the European Communities, ‘European agenda for culture in a globalizing world’ (Communication) com (2007) 242 final. European Commission, ‘Towards an integrated approach to cultural heritage for Europe’ (Communication) com (2014) 477 final.

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knowledge and a valuable resource for economic growth, employment and social cohesion. It enriches the individual lives of hundreds of millions of people, is a source of inspiration for thinkers and artists, and a driver for our cultural and creative industries. Our cultural heritage and the way we preserve and valorise it is a major factor in defining Europe’s place in the world and its attractiveness as a place to live, work, and visit. Cultural heritage is a shared resource, and a common good.55 Point 2.3 of this Communication is devoted to cultural heritage in EU external relations, importantly listing two priority organizations for co-operation in this field: the Council of Europe and unesco.56 The resolution of the European Parliament under the same title, adopted on 8 September 2015,57 mentions in its Preamble, among numerous EU instruments, only two non-EU legal instruments: the 2005 unesco Convention and the Council of Europe’s Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) of 13 October 2005.58 Another short reference to intangible heritage can be found in the Council conclusions of 21 May 2014 on cultural heritage as a strategic resource for a sustainable Europe: cultural heritage consists of the resources inherited from the past in all forms and aspects—tangible, intangible and digital (born digital and digitized), including monuments, sites, landscapes, skills, practices, knowledge and expressions of human creativity, as well as collections conserved and managed by public and private bodies such as museums, libraries and archives. It originates from the interaction between people and places through time and it is constantly evolving.59 The Council’s definition again attributes a very specific role for cultural heritage in achieving the Europe 2020 strategy goals for a smart, sustainable, and inclusive growth (point 7).60 55 56 57

Ibid (emphasis added). Ibid 11. European Parliament resolution of 8 September 2015 towards an integrated approach to cultural heritage for Europe, P8_TA-PROV(2015)0293 accessed 30 January 2019. 58 (Adopted 27 October 2005, entered into force 1 June 2011) cets 199. 59 Council conclusions on cultural heritage as a strategic resource for a sustainable Europe [2014] OJ C183/36 (emphasis added). 60 Ibid.

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Other provisions which are relevant for analysing the references to the field that might be described as ich include the following formulations: the EU Member States draw ‘inspiration from the cultural, religious and humanist inheritance of Europe’ (the Preamble of the teu), ‘spiritual and moral heritage’ (the Preamble of the Charter of Fundamental Rights), and respect the EU Member States customs relating ‘to religious rites, cultural traditions and regional heritage’ (Article 13 tfeu, referring to animal welfare). The latest EU document where cultural heritage is deemed to be important, entitled ‘Towards an EU strategy for international cultural relations’, adopted in 2016, is even more interesting as it states in its first paragraph that: promoting diversity through international cultural relations is an important part of the EU’s role as a global actor. This involves a commitment to both promoting ‘international cultural relations’, through the support and assistance the EU provides to third countries, and supporting the promotion of the Union and the diverse cultures of EU Member States through ‘cultural diplomacy’. As a key partner of the United Nations (UN), the EU cooperates closely with unesco to safeguard the world’s cultural heritage.61 While intriguing for every ich expert working within the unesco ich paradigm, this last formulation is also a puzzling one, as it refers only to ‘the world’s cultural heritage’ and thus can be read as either excluding ich from EU cultural heritage policies or—which is more probable—‘embracing’ ich and placing it under the ‘world heritage’ umbrella.62 The term ‘world heritage’ is however, according to the unesco Evaluation Body, established to examine nominations

61 62

European Commission, ‘Joint Communication to the European Parliament and the Council: Towards an EU strategy for international cultural relations’ join (2016) 29 final (emphasis added). An anonymous reviewer offered the following comment: ‘World Heritage with capital letters is related to the WH convention (which comprehends cultural and natural heritage), while “world heritage” is not, or not necessarily so. The reference to the “world’s cultural heritage” in this document rather echoes the Agenda 2030, sdg 11.4. This broad reference to the cultural heritage of the world (which, again, is not the same thing as World Heritage) can be legitimately interpreted as comprehending ich’. I believe, however, that the term ‘world heritage’ as such echoes, for a majority of readers, the meaning of this term transmitted via the 1972 Convention, and although one can legitimately interpret this term as embracing ich, it unfortunately remains a matter of interpretation, and does not reflect a clear and visible intent and awareness on the part of the drafters of this text.

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to the 2003 Convention’s three lists (Representative List, Urgent Safeguarding List and Register of Good Practices) , on the list of ‘taboo words’:63 Inappropriate language and unwarranted publicity. Submitting States are reminded to avoid inappropriate language, such as ‘world(wide)/global heritage’, ‘masterpieces’, ‘original’, or ‘unique(ness)’ that is not in keeping with the spirit of the 2003 Convention. Unnecessary publicity for specific organizations or personalities should also be avoided. This wording clearly shows the lack of ich experts within the EU institutions where these documents are created and adopted. It is also a visible sign of the perspective which continues to reign in the EU cultural heritage policy generally, namely the ‘world heritage’ paradigm. Nevertheless, the decision of the European Parliament and of the Council on the European Year of Cultural Heritage (2018) repeated the definition of cultural heritage adopted by the Council in the 2014 Conclusions on cultural heritage as a strategic resource for a sustainable Europe, which mentions intangible heritage resources inherited from the past, adding only one new category: film heritage (Paragraph 7). Perhaps a better way to contain ich within the EU’s initiatives is on the expert level, i.e. through the Open Method of Coordination (omc), which has been established in the field of culture since 2008.64 The omc gathers together experts, on a voluntary basis, to work in specially-dedicated working groups. During the last decade four working groups (out of 14 groups set up to discuss topics related to culture65) have been dealing with the topic of cultural heritage, but none of them are focused solely on ich.66 Interestingly, the working group established in March 2017 on sustainable cultural tourism is directed to consider ‘ways to create a European tourism offer based on tangible and 63

Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, ‘Report of the Evaluation Body on Its Work in 2016’ (31 October 2016) UN Doc ith/16/11.com/10, 8 (emphasis added), para 31. 64 See Evangelia Psychogiopoulou, ‘The Cultural Open Method of Coordination: A New Boost for Cultural Policies in Europe?’ (2017) 24(2) mjecl 264. 65 accessed 30 January 2019. 66 See ceu, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on a Work Plan for Culture 2008–2010’ [2008] OJ C143/9; ceu, ‘Conclusions of the Council and the Representatives of the Governments of Member States, meeting within the Council, on the Work Plan for Culture 2011–2014’ [2010] OJ C325/1; ceu, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on a Work Plan for Culture (2015–2018)’ [2014] OJ C463/4.

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intangible cultural heritage as a competitive factor to attract new forms of sustainable tourism’.67 As the topics for omc are chosen and agreed upon by the EU Member States and are part of the Work Plans for Culture, adopted every three years since 2005 by EU Culture Ministers (identifying priority areas for action by the ceu, the Commission and the Member States), they show a specific way of interpreting the potential role of ich in the EU, as is detailed below.68 5

Intangible Cultural Heritage in the ‘World Heritage’ Trap and on ‘the EU Heritage Market’

The analysis of the place of ich in EU policies and actions reveals two important problems: the first is the prevalence of the tangible heritage paradigm, referred to here as the ‘World Heritage’ trap; and the second is the economy-driven approach to heritage, described below as creating ‘the EU heritage market’. The tangible heritage paradigm clearly has its roots in the European dominance on the whl,69 as well as in the ‘Authorised Heritage Discourse’ as identified by Laurajane Smith.70 Rooted in the 19th century archaeological and conservation doctrine, this Western-centric way of thinking about heritage as having to be material, authentic, historic, and universal, is massively reflected in the language of the 1972 World Heritage Convention. To make the picture more complicated however, this specific, tangible, ‘material’ approach seems to be grounded at the EU level in the abstract discourse of a ‘common, shared and European heritage’. This wording is vague and theoretical, and thus very problematic, even though it has been present in the EU heritage policies since the 1970s, with its own aims and objectives.71 As emphasized by Niklasson: 67

68

69 70 71

European Commission, ‘Mapping of Cultural Heritage Actions in European Union Policies, Programmes and Activities’ (August 2017) 7 accessed 30 January 2019 (emphasis added). This topic goes in line with the adopted Conclusions on the Work Plan for Culture 2011–14, where in ‘Priority Area B: Cultural and Creative Industries’, the description of actions to be taken by the Commission states the following: ‘In the context of the Commission Communication on the new policy context for tourism in Europe, the Commission will establish close collaboration between its services, including Enterprise DG, in order to promote the development of cultural tourism and related industries and to identify good practices in sustainable management of cultural tourism, including tangible and intangible heritage, in an integrated regional development strategy’. See point 2 of this Chapter. Laurajane Smith, Uses of Heritage (Routledge 2006). For more, See Cris Shore, ‘Inventing the “People’s Europe”: Critical Approaches to European Community “Cultural Policy”’ (1993) 28 Man 779.

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‘monuments and sites were expected to work, not only as economic assets and a means to anchor a sense of European belonging to something solid, but as an origin myth for the institutions themselves’.72 This ‘heroic discourse’ of ‘values, norms, identities’ that are ‘common, shared and European’ today produces ‘an imagined cultural community’ of Europe which is ‘united in diversity’.73 However, because it is so abstract and based on specific EU rhetorical language, it needs anchoring in reality in order to make it understandable. This has led to critical academic reflections74 which describe the process of its materialization into concrete objects and sites, thus keeping the EU cultural heritage policy in the tangible ‘World Heritage’ trap: The abstract character of a common European cultural heritage in EU policy discourse is, however, concretized when the policies are put into practice. The EU initiatives seek to make a European cultural heritage concrete by fixing its abstract and intangible meanings to material objects and physical sites.75 This explains why the EU cultural heritage policies reach so enthusiastically for material labels and prizes. By taking the European Heritage Label (ehl), ‘the most emblematic heritage initiative as of yet’ as an example that has already been applied with regard to 29 material sites,76 it is interesting to note that three of those inscriptions are of an interpretative, documentary, and intangible character, which had to be linked to a physical site in order to be given the ehl. For example, the Union of Lublin (1569) from Poland is materialized via three historic monuments: the Chapel of the Holy Trinity; the Union of Lublin monument; and the Dominican monastery, all of which are linked to the signing of the Union of Lublin in 1569.77 Although the official description says that ‘the Union was an exceptional case of the democratic integration of two countries with peaceful and inclusive coexistence of people from various ethnic and religious backgrounds’, while considering its intangible, heroic 72 73

74 75 76 77

Niklasson (n 2) 144. Tuuli Lähdesmäki, ‘Rhetoric of Unity and Cultural Diversity in the Making of European Cultural Identity’ (2012) 18 ijc Policy 59; Luca Zan, ‘Economic Discourse and Heritage Conservation: Towards an Ethnography of Administrations’ (2013) 6(2) Heritage & Society 167, 181–82. Lähdesmäki, ‘Rhetoric of Unity’ (n 73) 59. Tuuli Lähdesmäki, ‘Politics of Tangibility, Intangibility, and Place in the Making of a European Cultural Heritage in EU Heritage Policy’ (2016) 22 ijhs 766, 768 (emphasis added). Niklasson (n 2) 152. European Heritage Label, ‘2014 Panel Report’ (19 December 2014) 8 accessed 30 January 2019.

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significance it still needed ‘a site’ and concrete objects (chapel, monument, monastery) to be anchored within the EU heritage arena. In two other cases (The 3 May 1791 Constitution, Warsaw, Poland; and The Charter of Law of Abolition of the Death Penalty [1867], Lisbon, Portugal), a very similar and interesting re-classification occurred. As both historical documents are definitely not sites but birthplaces of ideas, reflecting strong non-material content, the possibility to classify them as such was resolved by references to the places in which they are stored: The State Archives (Archives of Historical Records) in Warsaw, and the strongroom in the National Archive of Torre do Tombo.78 Another example of the existence of the tangible paradigm is visible within the EU Prize for Cultural Heritage/Europa Nostra Awards. Over the past 15 years, organizations and individuals from 39 countries have submitted a total of 2,720 applications for these Awards. With regard to the categories, Conservation has had the most submissions (1,606).79 Moreover, the limited understanding of what constitutes ‘cultural heritage’ is also reflected in Part 3.3 of Joint Communication 2016 ‘Towards the strategy…’, devoted solely to cultural heritage. The Communication describes heritage as fragile and often threatened by disasters, wars, looting, and pillaging, with tangible artefacts sold on the black market as possible sources to support terrorist activities.80 Among the three mechanisms for reinforcing cooperation on cultural heritage, there are none which could be applied to the topic of ich. These three priorities for cooperation include: (1) research with the aim of preservation and management of cultural heritage in Europe that is jeopardized by climate change; (2) taking steps to create a legislative proposal to regulate the import of cultural goods into the EU, based on the results of a recently launched study aimed at identifying gaps in national legislation; and (3) contributing to international efforts led by unesco to set up a rapid reaction mechanism for the protection of cultural heritage sites. The EU will include the expertise to assess damages to cultural heritage as part of its post-disaster and post-conflict recovery measures.81 This Joint Communication also tellingly encapsulates the narrow, economic approach to cultural heritage. Its first paragraphs present culture, cultural exchange, and cultural expressions as ‘stimulating jobs and growth’ ‘bringing economic benefits’, being ‘a central element in the new 78 79 80 81

Ibid 11, 13. Next comes Education, Training and Awareness-Raising (457), then Research (340), and, finally, Dedicated Service to Heritage (317), accessed 30 January 2019. join (2016) 29 final (n 61). See also Chapter 14 by Kristin Hausler in this volume. Ibid 3.3.

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economy driven by creativity, innovation and access to knowledge’, ‘promoting creative industries’, and ‘attracting tourism and boosting economic growth’.82 Perhaps the only cultural heritage programme that allows for wider consideration of ich is the European Heritage Days, launched by the Council of Europe in 1985 and joined by the EU in 1999. Among the 23 categories of events, many may serve as an umbrella for including ich in a way that satisfies the unesco definition: dance, music, tradition, crafts, heritage education, cultural routes, landscape/nature, creativity and innovation, family heritage, shared history, theatre, or sport.83 Indeed, the chosen themes and organized events quite often refer to a broader understanding of cultural heritage, focusing on communities, traditions, and processes of transmitting knowledge, thus presenting a quite unique offer in this regard. At the same time it should be noted that the scope of the analysed EU documents related to cultural heritage and referring to ich seems quite wide and all-encompassing at the moment. This means that there are no real obstacles to adopting the unesco perspective and its definition of ich. However, the prevailing understanding and interpretation of the goals that are to be accomplished by introducing ich and cultural heritage more broadly locate ich in the context of the ‘EU heritage market’. Moreover, the prevailing way of thinking about cultural heritage is dominated by the ‘World Heritage’ paradigm. Within the above-mentioned framework, as well as within the described conceptual limitations, financial support for actions and research embracing the ich field has been established. However, as noted by Niklasson, funding is not only a question of outside interference with the autonomy of researchers or how their findings are used, but something which influences the values, hierarchies, and content of the heritage domain.84 This is why, when describing the ways of implementation of ich into the EU actions and policy, one cannot omit this important aspect of the process (see Table 13.1). Interestingly, the funding field is the first one with a clear reference to ich and the 2003 Convention. When the Creative Europe Programme (2014–20) was adopted, with a budget of €1.46 billion, the phrase ‘intangible heritage’ appeared for the first time.85 The programme builds on and brings together the former 82 Ibid. 83 accessed 30 January 2019. 84 Niklasson (n 2) 140. 85 Within the scope of the preceding Culture Programme (2007–13), ‘Implementation of the programme actions: multi-annual cooperation projects; cooperation measures; special action (third countries); and support for bodies active at European level in the field of culture’ [2010] OJ C204/7, the term ‘intangible’ does not appear at all (‘heritage’ appears twice); and a similar situation occurs in the Education, Audiovisual and Culture

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Table 13.1 Possible sources of ich projects—funding within EU (after the entry into force of the 2003 Convention)

Area

Source

Searched phrase

2007–13 2014–17

culture

The Culture Programme (2007–13)a Creative Europe (2014–17)b Europeanac

intangible culture

9

–

intangible heritage

6

–

intangible culture intangible heritage intangible culture intangible heritage education erasmus+d intangible culture intangible heritage research & cordis (Horizon intangible culture innovation 2020, FP7, FP6)e intangible heritage maritime policyf European Fisheries intangible culture Fund (eff) intangible heritage 2007–14 European Maritime intangible culture and Fisheries Fund intangible heritage (emff) 2014–20 common European intangible culture agricultural policy Agricultural intangible heritage Fund for Rural Development (eafrd)g European intangible culture Network for Rural intangible heritage Development culture (keyword) (enrd)h food and drink (keyword) local food (keyword) internal market, cosme Programme intangible culture industry, (2014–20)i intangible heritage tourism and enterpreneurship

– –

3 7 2 3 nda

100 42 37 244 139 57 17 12 nda

nda

nda

nda

nda

nda

nda

nda nda

nda nda

0 0 15 3 17 – –

0 1

347

Intangible Cultural Heritage, Europe, and the EU

Area

Source

Searched phrase

2007–13 2014–17

development

European Regional Development Fund (erdf) European Social Fund (esf) Cohesion Fund (CF) Keep.eu (Interreg, Interreg ipa cbc, and eni cbc)k European Development Fund (edf) Development Cooperation Instrument (dci)— Human and Social Development

intangible culture

nda

nda

intangible heritage nda

nda

intangible culture intangible heritage intangible culture intangible heritage intangible culture intangible heritage

nda nda nda nda 0 12

nda nda nda nda 0 4

intangible culture intangible heritage

– –

1 1

intangible culture intangible heritage

– –

2 2

and external relationsl

a Based on search results of phrases ‘intangible heritage’ and ‘intangible culture’ via Creative Europe website accessed 28 January 2019. b Ibid. c Based on search results of phrases ‘intangible heritage’ and ‘intangible culture’ via Europeana website accessed 28 January 2019. d Based on search results of phrases ‘intangible heritage’ and ‘intangible culture’ via Erasmus+ Projects website accessed 28 January 2019. e Based on search results of phrases ‘intangible heritage’ and ‘intangible culture’ via cordis website, aggregating the research and innovation projects, realized within Horizon 2020, FP7, FP6, FP5 and earlier programmes stretching back to 1990 accessed 28 January 2019. f There is no official project database for eff and emff funds. g There are no official databases with all European Agricultural Fund for Rural Development’s projects—each country provides information on the beneficiaries of the fund separately. h Based on search results of phrases ‘intangible heritage’ and ‘intangible culture’, and filtering projects via ‘culture’, ‘food and drink’, ‘local food’ keywords via enrd official website accessed 29 January 2019.

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i Based on search results of phrases ‘intangible heritage’ and ‘intangible culture’ via cosme official data website accessed 29 January 2019. j There are no official databases aggregating erdf, esf, and CF projects data—each country provides information on the beneficiaries of each fund separately. A part of data concerning erdf is provided within Keep.eu website accessed 29 January 2019. Regional funds project’s data could be also browsed via European Commission Regional Policy website accessed 29 January 2019, but provided search infrastructure does not allow finding exact project data. k Based on search results via KEEP.eu website, the source of aggregated data regarding projects and beneficiaries of EU cross-border, transnational, and interregional cooperation programmes within the EU, and between Member States and neighbouring countries accessed 30 January 2019. l Based on search results of phrases ‘intangible heritage’ and ‘intangible culture’ via European Commission International Cooperation and Development Website accessed 30 January 2019.

Culture, media, and media Mundus Programmes (2007–13).86 Paragraph 6 of the Preamble of Creative Europe Programme states the following aim: promoting tangible and intangible cultural heritage, in the light of, inter alia, the 2003 unesco Convention for the Safeguarding of the Intangible Cultural Heritage and the 1972 unesco Convention Concerning the Protection of the World Cultural and Natural Heritage, should also contribute to the enhancement of the value of the relevant sites whilst giving to peoples a sense of ownership of the cultural and historical value of such sites.87

86

87

Executive Agency, ‘Programme Guide. Culture Programme (2007–2013)’ (May 2010) accessed 30 January 2019, where ‘heritage’ appears five times without any references at all to ‘tangible’ or ‘intangible’ heritage. However, as the table 13.1 shows, ‘intangible heritage’ appeared in the description of the projects financed by this programme—but they were accepted and implemented not because of the topic itself but because of the fact that they fulfilled the requirement of cooperation between different EU Member States. The Programme Guide uses the vague notion of ‘common cultural heritage (…) with a view to encouraging the emergence of European citizenship’ (Education, Audiovisual and Culture Executive Agency, ‘Programme Guide’ 8). The Programme was aimed at three specific objectives: promotion of the trans-national mobility of people working in the cultural sector; support for the trans-national circulation of cultural and artistic works and products; and promotion of inter-cultural dialogue. The legal basis for the programme is Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020—the Framework Programme for Research and Innovation (2014–2020) and repealing Decision No 1982/2006/EC [2013] OJ L347/104. Ibid para 6 of the Preamble (emphasis added).

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However, even here ich is directly linked to relevant ‘sites’, not to intergenerationally transmitted knowledge, skills, or identity. ‘Intangible heritage’ also appears as part of the definition of ‘cultural and creative sectors’ (Article 2(1)) and an element of the Culture Sub-Programme priorities (Article 12). Interestingly, the amendment to this programme, a­ dopted in 2017,88 introduced a novel concept that combines intangible heritage with cultural production, outlined in the part devoted to the description of the European Union Youth Orchestra, one of the objectives of which is to promote ‘the intangible heritage of local, regional and European cultural production’.89 Cultural Programmes preceding the Creative Europe Programme had never included any ‘intangible heritage’ terminology in their descriptions or guidelines.90 Interestingly, the Creative Europe Programme is not the only one that funds projects designed for safeguarding ich. The European Regional Development Fund and Cohesion Fund also provide financial support for ich. The references to ich began to appear and grow in visibility also in more (or less) appropriate configurations in Horizon 2020 and Interreg.91 It needs to be noted that the only project funded by both the EU and unesco which was devoted solely to ich—Mediterranean Living Heritage (medliher)—was realized outside the EU (2010–12) and aimed at supporting the implementation of the 2003 Convention in Egypt, Jordan, Lebanon, and Syria (with a total budget of €1.34 million, co-funded up to 80% by the EU through the Euromed Heritage 4 Programme).92 According to an unofficial opinion presented within unesco, it did not however prove to be efficient. The administrative staff on the EU side did not consider the aims of the 2003 Convention and the potential subsequent cooperation between unesco and 88

89 90

91 92

European Commission, ‘Amendment of the 2017 Annual Work Programme for the Implementation of the Creative Europe Programme’ (6 June 2017) 9 accessed 30 January 2019. Ibid 8. Among the three pilot programmes (so-called first-generation programmes) which have been introduced since 1996 (until 1999), one was specifically devoted to cultural heritage, i.e. Raphael (formally established by the European Parliament and Council Decision of 13 October 1997). Although the objectives and areas of the Raphael programme were set quite broadly, only the projects related to tangible cultural heritage were covered by the programme funding of €70 million. It ended in 2000 and was substituted by the programme Culture 2000–2006 (with a budget of €240 million), and subsequently Culture 2007–2013, with a budget of €400 million to support projects and activities designed to protect and promote cultural diversity and heritage. For detailed data on the number of projects in each funding stream, please refer to Table 13.1. A more detailed analysis of the number of projects referring to ich and intangible culture in all EU funds and programmes is presented in Table 13.2 attached to this Chapter. See accessed 30 January 2019.

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the EU in the ich field, and the project did not produce any concrete steps for the future.93 Despite the fact that ‘EU engagement in heritage has always been linked to the developments within unesco and the Council of Europe’,94 the adopted terminology in the above-mentioned programmes veers far away from the ich definition as contained in the 2003 Convention, and instead places ich merely in the sphere of ‘cultural and creative industries’, thus including it in the strong ‘economy-based paradigm’, with the role of bringing ‘comparative advantage in an increasingly competitive tourism marketplace’ (see below). In the Ex post evaluation of Cohesion Policy programmes 2007–2013, focusing on the European Regional Development Fund (erdf) and Cohesion Fund (CF)—Work Package nine: Culture and Tourism, adopted in November 2014, one can read two interesting passages that reveal the understanding of the role of culture as an ‘intangible product’ and heritage as a mainly tangible asset (whether natural, historical, or cultural) which must be preserved and restored. If we extract from this paragraph ich elements such as music, crafts, or performing arts, we see that they work in the broader context of ‘culture and creative industries’, although the drafters of this text also admit that culture is an ‘intangible product’ and that there has been a move away from product-based definitions to process-based definitions of culture.95 When referring to cities, the document introduces another cultural term: ‘tangible and intangible cultural assets’, which are identified and used with the sole aim of rendering places more attractive to tourists, other visitors, or to live, work, and invest in.96 93

94 95

96

Interview at unesco HQ, September 2017. There is yet however an ongoing large scale unesco-EU project (€1.07 million) funded by the EU entitled ‘Protecting Cultural Heritage and Diversity in Complex Emergencies for Stability and Peace’, implemented in Iraq, Libya, Syria, and Yemen. One component is dedicated to the safeguarding of ich: community-based needs identification of intangible cultural heritage at risk and developing of safeguarding plans; implementing safeguarding plans with concerned communities with a focus on identification and/or (re)creation of cultural spaces needed for practice and transmission of ich at risk, as well as implementation of safeguarding activities. See unesco, ‘Protecting Cultural Heritage and Diversity in Complex Emergencies for Stabilization and Peace’ accessed 30 January 2019. First actions related to ich are planned to be conducted in Mosul in the second half of the 2018. Niklasson (n 2) 141. European Commission, ‘Ex Post Evaluation of Cohesion Policy Programmes 2007–2013, Focusing on the European Regional Development Fund (erdf) and Cohesion Fund (CF)—Work Package Nine: Culture and Tourism’ (November 2014) 8 accessed 30 January 2019. Ibid 9.

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‘Intangible’ terminology appearing at the EU level thus presents a whole spectrum of diverse connotations. In the ehl Panel Report on Monitoring, ­issued on 19 December 2016, one can find a reference to the ‘intangible value of a site’ and a specific example of such a site: the heart of Ancient Athens, which conveys ‘intangible values of specifically European origin: philosophy, democracy and political theory, theatre and music and all kinds of visual arts that were developed and practiced in these places’.97 On the occasion of the presentation of the logo of ehl, readers could learn that alongside elements constituting European heritage such as entire sites, landscapes, places of remembrance, cultural goods, or objects, other ‘intangible treasures’ also exist.98 And in the discussions concerning the experiences of the European Capitals of Culture programme, one can become acquainted with the fact that the longterm development of cities is also based on ‘intangible factors’.99 This terminological versatility of ‘intangible’, linked mainly with products, assets, treasures, and tourism, is proof of a very remote understanding of what constitutes ‘intangible cultural heritage’ under the 2003 Convention. 6

Concluding Remarks

EU policy documents and actions that introduce ‘intangible’ aspects into the EU heritage discourse seem to acknowledge only the presence of this new heritage dimension, but without taking into serious consideration the way in which it is defined by the 2003 Convention. The vagueness of the ‘intangible’ terminology used in the diverse EU actions and policies leads to the fragmentation of ich’s presence and visibility on the EU level. As a result, there is no coherent EU policy and strategy for the safeguarding of ich and no real implementation of unesco’s understanding of ich within the broader framework of the EU cultural heritage policies and actions. There is, however, a very strong post-Maastricht trend to promote ‘­European cultural heritage’ as a tool for boosting EU Member States’ economic markets. This visible but merely instrumental trend, referred to as creating ‘the 97 98 99

European Heritage Label, ‘Panel Report on Monitoring’ (19 December 2016) 11 accessed 30 January 2019. European Heritage Label, ‘Graphic Charter’ 4 accessed 31 January 2019. Tim Fox and James Rampton, ‘Ex-Post Evaluation of the 2015 European Capitals of Culture, Final Report, November 2016’ (November 2016) 117 (123) accessed 31 January 2019.

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EU ­heritage market’, must be taken into consideration and confronted with the delicate and identity-driven nature of ich. By doing so, it is argued in this Chapter that the way in which ich (as defined by the 2003 Convention) is integrated into the current EU heritage practices (actions and policies) might create in some cases not only problematic but also dangerous liaisons. A possible soothing of this tension could be the concept of sustainable development, which is rooted firmly in the 2003 Convention, unesco actions, as well as in the EU policies, thus offering a bridge to overcome existing threats and gaps to the presence of ich in the EU. The current research reveals that this idea has not yet been adequately explored and remains a topic for further analysis, which should deal with the potential opportunities and developments of cooperation for both organizations in this field. Europe, taken as a geographical region divided into two unesco regional groups (Groups i and ii), has been highly effective in operationalizing the possibilities of all cultural conventions. This effectiveness is not, however, due to efforts stemming from the strongest regional organization—the EU. Despite attempts, mainly by the European Parliament, to create a narrative on the ‘values’, ‘norms’ and ‘identity’, or ‘musical and ethno-anthropological heritage’ and ‘culture of ethnic, religious and linguistic minorities’ linked to what is called ich today,100 it has not changed the main narrative of tangible cultural heritage as an ‘economy booster’, which is vivid and visible in EU policies and actions dispersed throughout the EU. Though many ich elements are related to economic development and to income generation (a link which is not in contradiction to the 2003 Convention itself), finding a balanced approach to this matter is crucial. ‘Commercialisation, (…) should not lead to over-commercialisation’,101 which constitutes a threat to ich in general and is also a problem at the unesco level regarding inscriptions on the Representative List, including those coming from the EU Member States. In addition, an analysis of the funding of projects which include ‘intangible’ cultural heritage references creates a very fragmented and incoherent picture, with serious gaps, misunderstandings, and a very loose interpretation of ich.102 The quest for a European ‘common’ and ‘shared’ heritage might even collide with one of the main goals of the 2003 Convention, which is to ensure respect for the ich of communities, groups, and individuals as bearers of diverse cultural identities, through their empowerment (including their involvement at 100 European Parliament resolution on stronger Community action in the cultural sector [1983] OJ C342/127, point 16. 101 Benedetta Ubertazzi, ‘EU Geographical Indications and Intangible Cultural Heritage’ (2017) 48 iic—International Review of Intellectual Property and Competition Law 562, 567. 102 See Tables 13.1 and 13.2.

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all stages of safeguarding ich, as well as the obligation to obtain the free, prior, and informed consent of communities, groups, and individuals for any actions concerning their ich, in accordance with the bottom-up approach); and to adopt the meaning of ich as developed by the ich bearers themselves, not by its ‘common’ or ‘shared’ top-down application (as is done at the EU level). There is also another significant threat to ich with regard to the activities undertaken by States Parties at the national level which eventually flow into the EU arena—that of reducing the meaning of ich and considering only its representational character on the Representative List of ich, which would in this context emanate from the trend to label, prize, and list cultural heritage at the EU level. Cultural differences in Europe definitely tell a more profound story than what Yasmin Alibhai-Brown describes as the ‘3Ss’: saris, samosas, and steeldrums.103 This kind of thinking about cultural diversity through iconic examples coming in fact from the ich domains: culinary practices (samosas), traditional clothing (saris), and music traditions (steeldrums) is dangerous as it provides an extremely superficial image of ‘the Other’ and concentrates only on celebrating differences, while ignoring the ongoing processes of adaptation, mixing, or mélange.104 Nevertheless, at the same time it captures the ‘logic of global capitalism to sell cosmopolitan cultural products’.105 The ‘economy-booster’ role ascribed to cultural heritage in the narrative prevailing in the EU might thus easily reduce the impact and meaning of the 2003 Convention, making it yet another product on ‘the EU heritage market’. Viewed in this perspective, inscriptions to the Representative List coming from EU Member States, such as the ‘Beer culture in Belgium’, ‘Mediterranean diet’, ‘Traditional violin craftsmanship in Cremona’, ‘Flamenco’, ‘Gastronomic Meal of French’, ‘Horezu ceramics’ from Romania or ‘Gingerbread craft from Northern Croatia’ (just to mention a few) are, due to their character, especially and specifically vulnerable to oversimplification and commercialization. From this standpoint, no other meanings and aims except for the growing number of tourist visits to the sites—where ich practices can be touched, bought, eaten, drunk, and digested—can be transmitted or introduced. The tourism industry constitutes, however, ‘an integral process of heritage-making’.106 The supposed credo of the 2003 Convention, ‘communities first’, seems thus to be in contradiction to the process of heritage-making at the EU level, which appears to focus on ‘economy first’. 103 Yasmin Alibhai-Brown, After Multiculturalism (Foreign Policy Centre 2000). 104 Will Kymlicka, Multiculturalism: Success, Failure, and the Future (Migration Policy Institute Europe 2012) 4–5. 105 Ibid 5. 106 Laurajane Smith, ‘Intangible Heritage: A Challenge to the Authorised Heritage Discourse?’ (2015) 40 Revista d’etnologia de Catalunya 133, 139.

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Therefore, I argue here that the EU policy towards intangible cultural heritage is still a ‘work in progress’, and that the great potential associated with bringing ich onto the European cultural agenda has not yet been raised or adequately addressed. There are more than one possible explanations for this state of affairs. In light of the research provided in this Chapter, based on official EU and unesco documents, field visits to Paris and Brussels, and interviews conducted with involved stakeholders, this is mainly the case because of: (i) the EU’s lack of knowledge about the 2003 Convention and, what follows in particular, its lack of understanding of what the Convention’s principles are and how they differ from tangible heritage and the concept of cultural diversity (as enshrined in the 1972 World Heritage Convention and the 2005 Cultural Diversity Convention, which are already very well integrated within the EU institutions as well is in the whole of Europe); (ii) the EU’s lack of will to distribute funding to support the safeguarding of intangible cultural heritage as defined by the 2003 Convention and in cooperation with unesco; (iii) the EU’s continuing preference for the ‘common European cultural heritage’ narrative combined with the tangible paradigm, which is in contrast with the 2003 Convention paradigm of local identities and transmitted practices; and (iv) the EU’s lack of political will and competencies to act more extensively in the field of intangible cultural heritage. Moreover, one can also assume that at least some EU Member States have little or no political interest in raising the issues of local identities and regional traditions at the EU level, and instead want to keep them out of the scope of interest and discussion of the EU and continue to treat its role as only complementary, as was designed in the treaties (Article 167 tfeu). Other Member States lack financial and administrative capabilities. One must acknowledge, however, that there is also a clear, growing trend in the establishment of project agreements between the EU and unesco, including with respect to cultural heritage. The volume of cooperation and direct financial support from the EU to unesco through extra-budgetary activities is increasing, and its scope is growing wider.107 Thus, the question remains not only of how to sensibly unlock the ich potential for the EU in a way that would prevent the key message of the 2003 Convention from becoming lost in translation (and lost in terms of its implementation into EU policies), and how to avoid its consequent transformation into a simple product sold to tourists on ‘the EU heritage market’; but also, whether it is even possible—or desirable—to do so. It remains to be seen whether the ‘all-encompassing’ objectives of eych will result in any concrete recommendations regarding the proper and adequate visibility of ich at the EU level. At this point in time, the relationship between the ich concept and 107 I would like to thank an anonymous reviewer for underlining this trend.

Intangible Cultural Heritage, Europe, and the EU

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the EU seems to amount to both dangerous (due to the visible commodification tendency), as well as ambiguous liaisons. A possible and somewhat promising path to transform them into a more stable and mutually beneficial relationship lies in the concept of sustainable development, which has been enhanced by both the 2003 Convention—especially after the adoption in June 2016 of Chapter vi of its Operational Directives, which are dedicated to the relation between ich and sustainable development—as well as within many EU policies and actions which have been regularly updated since the adoption in 2001 of the EU Sustainable Development Strategy.108 In the context of unesco, this way was paved by the 2013 Hangzhou Declaration,109 which called for an attempt to inscribe culture into the newly drafted UN development goals for the next 15 years.110 Although promising, this sustainable development bridge remains only a potential development at present. However, future research into this path, accompanied by and joined with concrete steps, may open the door to more relevant actions between both institutions, providing that they demonstrate both an interest in it and the will to act on it. The current absence of interest in the 2003 Convention from the EU side, mixed with the non-official intra-unesco opinion that ‘unesco is not for Europe’, give a picture of mutual neglect, which, in light of the analysed documents, is not necessarily an unfortunate scenario for ich, for Europe, and for other regions in the world. It may be the case that no action may be better than ‘bad’ actions. The future analysis of the opportunities embedded in the sustainable development discourse, known and shared by both organizations, may yet provide evidence that a closer and expanded cooperation between unesco and the EU in the field of ich could be very beneficial for ich, for Europe, and for other regions of the world, as well as for the bearers of ich living in the EU Member States. And perhaps the strengthening of ich within the EU in a vitally different manner, more profound and sensitive to its complexity, will fulfil the popular saying: ‘better late than never’. 108 accessed 31 January 2019. 109 unesco, ‘The Hangzhou Declaration: Placing Culture at the Heart of Sustainable Development Policies, Adopted in Hangzhou, People’s Republic of China, on 17 May 2013’ accessed 31 January 2019. 110 It needs to be noted that although culture did not make it as an independent point on the list of 17 new Sustainable Development Goals, it appears in many different forms (local culture, cultural diversity, intercultural understanding, culture of peace) in a number of places on the Agenda (point 8, point 36, and goals 4, 8, 11, and 12). See Hanna Schreiber, ‘10 Remarks on 10th Anniversary of the Entry into Force of the 2003 Convention’ in Hanna Schreiber (ed), Intangible Cultural Heritage (National Heritage Board 2017) 459.

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Table 13.2 Creative Europe (2014–17) projects defined in activity type as ‘intangible culture’ Project title

SubAction programme

Réseau Tramontana All Strings Attached: Pioneers of the ­European ­Puppetry ­Behind the Scenes „CU TENDA”— STORIES, IMAGES AND SOUNDS ON THE MOVE [Living memory of southeastern Europe] POLYPHONY—­ Collection of the disappearing ­European Heritage Common Cultural Connections FOLLOW THE VIKINGS

Culture

MUSIC AND MEMORY Digitally crafting new communities of practice Intangible Cultural Heritage and Museums Project Euro Fabula Loci

Culture

Culture

Call Start date year

End date

EU Grant Participating award in €a countries

Cooperation 2014 2014-04-01 2016-01-31 200,000.00 FR,IT, projects ES,PT Cooperation 2015 2015-09-30 2017-09-30 199,476.00 IT,ES, projects HR,SI

Culture

Cooperation 2015 2015-10-01 2019-09-09 199,725.65 RO,BG, projects IT,MK

Culture

Cooperation 2017 2017-05-19 2019-03-18 200,000.00 HU,FR,UA projects

Culture

Cooperation 2014 2014-10-01 2016-04-01 191,866.59 UK,ES,FR projects Cooperation 2015 2015-07-01 2019-06-30 1,960,000.00 UK,SE,DK, projects FI,IE,NO, ES,IS Cooperation 2015 2015-05-01 2017-04-30 200,000.00 BE,BG, projects CZ,TR Cooperation 2016 2016-05-01 2018-04-30 189,998.44 SE,EE,IT projects

Culture

Culture

Culture

Cooperation 2017 2017-07-10 2020-04-17 200,000.00 BE,FR, projects IT,NL

Culture

Cooperation 2014 2014-10-01 2017-12-01 180,599.40 FR,IT,PL projects

Intangible Cultural Heritage, Europe, and the EU

Call Start date year

Project title

SubAction programme

Arts, Rediscovery, Traditions, Eclectic, Contemporary ECHOES from invisible landscapes Participatory Art for Invisible Communities Theatrum Mundi—a journey trough European performing arts EDN21: strengthen-impactimagine Shared History

Culture

Cooperation 2015 2015-11-01 2017-10-31 200,000.00 RO,HU, projects FR,ES

Culture

Cooperation 2016 2016-05-02 2018-07-31 200,000.00 AT,SI,HR projects

Culture

Cooperation 2016 2016-05-01 2018-10-31 196,900.00 HR,ES, projects DK,SI

Culture

Cooperation 2016 2016-07-01 2017-12-31 200,000.00 IT,EL, projects FR,NL

Culture

Networks

Crosssectorial

European Opera Digital Project

Culture

an Orchestra Network for Europe—ONE® is more Europe Grand Central Urban Layers— New Paths in Photography

Culture

Refugee 2016 2016-12-01 2018-11-30 174,312.00 SE,PL,LV Integration Projects Cooperation 2014 2014-10-01 2017-07-31 1,855,688.02 BE,FI,FR, projects DE,IT,LV, NL,NO,PL, ES,UK,AT Cooperation 2015 2015-07-01 2019-03-31 1,997,528.15 FR,DE,CZ, projects BG,UK,PL, SK,SI

Understanding Territoriality: Identity, Place and Possession Sharing the Wor(l)d

Culture

Cooperation 2015 2015-04-10 2017-06-30 200,000.00 UK,MK, projects IT,BE

Culture

Cooperation 2015 2015-05-01 2017-04-30 200,000.00 SI,HR,IE projects

Culture Culture

End date

357 EU Grant Participating award in €a countries

2017 2017-09-01 2018-08-31 250,000.00 ES

Cooperation 2015 2015-09-01 2017-08-31 200,000.00 SE,EL,IT projects ,PL,FR,DE Cooperation 2015 2015-05-01 2017-03-01 200,000.00 IT,ES,EL projects

358

Schreiber

Table 13.2 Creative Europe (2014–17) projects defined in activity type as ‘intangible culture’ (cont.) Project title

SubAction programme

RISK CHANGE

Culture

SHAKESPEARE IN AND BEYOND THE GHETTO FAMILY SEPARATION THROUGH IMMIGRATION: DRAMATISING ANECDOTAL EUROPEAN HISTORY Living & virtual visiting European World Heritage Ecouter le monde

Culture

Call Start date year

End date

EU Grant Participating award in €a countries

Cooperation 2016 2016-06-01 2020-05-31 1,570,520.90 SI,MT,EL, projects UK,FR,RS, HU,LV,HR, NL Cooperation 2016 2016-06-01 2018-12-31 199,189.07 IT,DE, projects UK,RO

Culture

Cooperation 2016 2016-10-01 2018-09-30 199,998.62 EL,BG,PL, projects RO,SE,IT

Culture

Cooperation 2016 2016-10-01 2020-09-30 200,000.00 PT,ES,IT projects

Culture

Cooperation 2016 2016-06-01 2019-03-30 200,000.00 FR,IT,BE projects Cooperation 2016 2016-09-01 2018-06-30 197,978.37 SI,RS,IT projects

Digital Stories of Culture Small Historic Towns POETRY Culture WANDERS THE STREETS Orpheus & Majnun Culture / Orfeo & Majnun Réseau Tramontana Culture iii Areas of Inspiration Culture

Cooperation 2016 2016-05-01 2017-11-30 200,000.00 ES,FR,PT,IT projects Cooperation 2017 2017-06-01 2020-12-31 1,999,868.00 BE,NL, projects PT,PL,AT, FR,MT Cooperation 2017 2017-07-01 2019-06-30 200,000.00 PT,PL,FR, projects IT,ES Cooperation 2017 2017-06-01 2019-05-31 192,000.00 SK,UA,AT, projects CZ,EE

Intangible Cultural Heritage, Europe, and the EU

Call Start date year

Project title

SubAction programme

BORDERLINE OFFENSIVE: laughing in the face of fear New Mappings of Europe Q.THEATRE— Theatrical Recreations of Don Quixote in Europe Mainstreaming Heritage European Music Council (network of European music organizations) European Music Council—Network of European Music Organizations Sharing Heritage— Sharing Values European Industrial Heritage 2020 and beyond—Fit for the Future frh Connect Re-build Refuge Europe

Culture

Cooperation 2017 2017-08-01 2020-12-31 480,453.00 SE,EL,RS, projects HR,BG, NL,SK

Culture

Cooperation 2017 2017-10-01 2019-09-30 200,000.00 SI,RS, projects UK,AT Cooperation 2017 2017-09-01 2019-08-31 199,567.53 ES,IT,FR, projects PT,UK

Culture

End date

359 EU Grant Participating award in €a countries

Culture

Networks

2014 2014-09-01 2015-08-31 250,000.00 NL

Culture

Networks

2014 2014-05-01 2015-04-30 229,000.00 DE

Culture

Networks

2017 2017-05-01 2018-04-30 250,000.00 DE

Culture

Networks

2017 2017-09-01 2018-08-31 249,999.94 NL

Culture

Networks

2017 2017-10-01 2018-09-30 223,824.00 DE

Culture Crosssectorial

Networks Refugee Integration Projects Refugee Integration Projects Cooperation projects

2017 2017-06-01 2018-05-31 250,000.00 BE 2016 2016-12-29 2018-11-30 200,000.00 UK,FI,ES, DE,SE

ORPHEUS xxi— CrossMusic for Life and sectorial Dignity Corpus—European Culture network for performance practice

2016 2016-11-01 2018-10-31 200,000.00 FR,NO,ES

2014 2014-10-01 2017-12-31 612,298.90 NL,ES,DE, LT,BE,UK

360

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Table 13.2 Creative Europe (2014–17) projects defined in activity type as ‘intangible culture’ (cont.) Project title

SubAction programme

eeemerging, Culture Emerging European Ensembles Project In/visible cities— Culture International Festival of Urban Multimedia openHUB Europe Culture lpm 2015 > Culture 2018—Live Performers Meeting EUROPEAN Culture NETWORK FOR CONTEMPORARY AUDIOVISUAL CREATION WE ARE EUROPE Culture

EX(S)PORTS

Culture

PHONE HOME (Working title) IMAGINE 2020 (2.0)—Art, ecology & possible futures REENGINEERING THE MOVING IMAGE Flâneur—New urban narratives

Culture Culture

Culture

Culture

Call Start date year

End date

EU Grant Participating award in €a countries

Cooperation 2014 2014-10-01 2018-09-30 1,971,374.59 FR,SI,UK, projects RO,DE,LV, IT Cooperation 2014 2014-09-10 2015-12-30 199,957.50 IT,HR,UK, projects NL,SI

Cooperation 2015 2015-05-04 2016-12-31 180,177.00 DE,PL, projects BE,IT Cooperation 2015 2015-06-01 2018-05-31 740,000.00 IT,AT,EL, projects PL,ES,DE, CZ,BE,NL, TR,HU,UK Cooperation 2015 2015-04-30 2017-10-31 200,000.00 ES,AT,RS, projects DE,FR

Cooperation 2015 2015-08-01 2018-12-31 1,912,500.00 FR,ES,EL, projects NO,RS,DE, AT,NL Cooperation 2015 2015-05-01 2017-01-31 137,400.00 FR,UK,BE projects Cooperation 2015 2015-07-15 2017-01-31 167,165.10 EL,DE,UK projects Cooperation 2015 2015-07-01 2019-06-30 2,000,000.00 BE,HR,UK, projects LV,NL,PT, FR,SI,DE Cooperation 2015 2015-11-06 2017-11-05 127,872.91 FR,NL,DE projects Cooperation 2015 2015-03-16 2017-05-30 541,097.00 PT,IE,LT, projects LV,PL,UK, IT,FR

361

Intangible Cultural Heritage, Europe, and the EU

Project title

SubAction programme

Call Start date year

Manufactories of caring space-time In Public, In Particular Bite my Skype

Culture

2015 2015-05-01 2017-06-30 200,000.00 BE,ES,FR

ALTER CITIES

Culture

Midstream. New Ways of Audience Development in Contemporary Art IN SITU ACT

Culture

Cultural Hybridation In Common SHared ARt EXhibitions European Light Expression Network Shared Cities: Creative Momentum Meet the Neighbours Artistic Multi Sensorial Experiences Brave Kids Artistic Instructor Training and Practical Dissemination Project

Culture

Culture Culture

Culture

Culture Culture

Cooperation projects Cooperation projects Cooperation projects Cooperation projects Cooperation projects

End date

EU Grant Participating award in €a countries

2015 2015-10-01 2018-12-31 200,000.00 FI,IE, BE,HR 2016 2016-09-01 2018-08-31 199,725.00 UK,TR, FI,RO,IT 2016 2016-06-01 2018-12-31 169,956.00 FR,IT,TR 2016 2016-09-01 2018-08-31 199,980.00 AT,ES,LV

Cooperation 2016 2016-11-01 2020-10-31 1,940,000.00 FR,CZ,DK, projects AT,UK,NL, BE,IT,HU, NO Cooperation 2016 2016-07-01 2017-12-31 200,000.00 FR,IT,LV, projects ES,BE Cooperation 2016 2016-06-01 2018-05-31 192,570.12 FR,BE,EL projects Cooperation 2016 2016-05-01 2018-10-19 199,921.37 UK,NO,IT projects

Culture

Cooperation 2016 2016-06-01 2020-02-28 1,616,423.92 DE,SK,HU, projects PL,RS,CZ

Culture

Cooperation 2017 2017-06-01 2020-01-31 199,978.00 UK,PL,FR projects Cooperation 2017 2017-10-01 2019-09-30 182,554.15 MT,LT, projects IT,NL

Culture

Culture

Cooperation 2017 2017-05-01 2019-01-01 57,889.80 projects

PL,UA, GE,SK,RO

362

Schreiber

Table 13.2 Creative Europe (2014–17) projects defined in activity type as ‘intangible culture’ (cont.) Project title

SubAction programme

Call Start date year

Our Lives

Culture

Culture for Solidarity Colab quarter

Culture

2017 2017-08-01 2019-04-30 198,026.00 DE,SI ,CZ,FR 2017 2017-12-01 2020-05-31 200,000.00 NL,ES,PL

Cultural Luggage

Culture

LUCity

Culture

Living Realities

Culture

Women Equal Share Presence in the Arts and Creative Industries The Universal Sea—Pure or Plastic!? Exploring new business models for artists and cultural actors Socially Inclusive Literature Operation MAPS—Mapping and Archiving Public Spaces From Conflict to Conviviality through Creativity and Culture

Culture

Culture

Cooperation projects Cooperation projects Cooperation projects Cooperation projects Cooperation projects Cooperation projects Cooperation projects

End date

EU Grant Participating award in €a countries

2017 2017-09-01 2019-09-01 200,000.00 FR,UA,ES 2017 2017-11-01 2019-10-30 199,096.39 EL,IT,SE 2017 2017-08-01 2019-03-31 60,000.00

SI,IT, UK,PT 2017 2017-06-01 2018-12-01 200,000.00 AT,EL,CZ 2017 2017-09-01 2021-08-31 1,566,890.33 ES,SI,UK ,HR,FR, FI,IE,LT

Culture

Cooperation 2017 2017-08-01 2019-03-31 200,000.00 DE,PL,HU projects

Culture

Cooperation 2017 2017-09-01 2019-08-31 199,983.39 BE,HU, projects DK,PT, RS,ES Cooperation 2017 2017-06-01 2019-09-30 195,000.18 SI,CZ,BG, projects RS,CY,AT

Culture

Culture

Cooperation 2017 2017-07-01 2021-06-30 1,781,818.52 PT,LT,UK, projects DE,DK,SE, FR,ES

Intangible Cultural Heritage, Europe, and the EU

Call Start date year

End date

363

Project title

SubAction programme

ENGAGE. YOUNG PRODUCERS. BUILDING BRIDGES TO A FREER WORLD Network of European Museum Organizations CIRCOSTRADA NETWORK European Hub for circus and outdoor arts EUROPEAN DANCEHOUSE NETWORK 14-17 ExTEND_JMI efa RISE 2: The rise of the community CIRCOSTRADA • European Network for Circus Arts and Street Arts jmi CONNECT encatc

Culture

Cooperation 2017 2017-05-01 2019-10-31 199,998.76 ES,UK, projects PL,SE

Culture

Networks

2014 2014-04-01 2015-03-31 136,500.00 DE

Culture

Networks

2014 2014-09-01 2015-08-31 118,905.00 FR

Culture

Networks

2014 2014-09-01 2015-08-31 198,507.98 ES

Culture Culture

Networks Networks

2014 2014-10-01 2015-09-30 250,000.00 BE 2017 2017-04-01 2018-03-31 250,000.00 BE

Culture

Networks

2017 2017-09-01 2018-08-31 241,700.00 FR

Culture Culture

Networks Networks

2017 2017-10-01 2018-09-30 250,000.00 BE 2017 2017-04-01 2018-03-31 250,000.00 BE

Upgrade— Culture Connect—Reach out, Raising Awareness for Collective Singing in Europe The Network of Culture European Museum Organizations

Networks

2017 2017-09-01 2018-08-31 250,000.00 DE

Networks

2017 2017-04-01 2018-03-31 217,500.00 DE

EU Grant Participating award in €a countries

364

Schreiber

Table 13.2 Creative Europe (2014–17) projects defined in activity type as ‘intangible culture’ (cont.) Project title

SubAction programme

Call Start date year

Performing Arts in (a world in) Transition ii IN SITU Platform Refugee Engagement And integration through Community Theatre Sounds of Changes

Culture

Networks

2017 2017-04-01 2018-03-31 250,000.00 BE

Culture Crosssectorial

Platforms Refugee Integration Projects

2014 2014-11-01 2015-10-31 500,000.00 FR 2016 2016-09-28 2018-09-27 196,304.62 UK,NL,IT

Culture

Cooperation 2017 2017-09-01 2019-09-30 200,000.00 SE,SI, projects DE,FI,PL

End date

EU Grant Participating award in €a countries

a This amount represents the grant awarded after the selection stage and is indicative. Please note that any changes made during or after the project’s lifetime will not be reflected here.

Chapter 14

Cultural Heritage within the European Union’s External Relations: More than a Policy Objective? Kristin Hausler* ‘Rock and roll, culturally speaking, was a decisive element in loosening up communist societies and bringing them closer to a world of freedom’. andras simonyi1

1 Introduction Among the reasons listed in the decision establishing the 2018 European Year of Cultural Heritage (eych), the European Parliament and the Council highlighted the external relations initiatives in the field of cultural heritage, in particular as a reaction to the deliberate destruction of heritage in the Middle East but also with regard to candidate and potential candidate countries.2 Emphasis was given to ‘the role of cultural heritage in EU external relations, including conflict prevention, post-conflict reconciliation and rebuilding destroyed cultural heritage’ as one of main objectives of the eych.3 The way the role of cultural heritage within the EU external action is now understood is the result of more than a decade of policy change. Long before the EU put culture on its external action agenda, States have individually used culture to strengthen their political power and build alliances.4 At the turn of the last century, these efforts became institutionalized, with the e­ stablishment * The author is grateful to Damien Helly, Diego Marani, and Robert McCorquodale, for having commented on an earlier version of this Chapter, as well as to Richard Mackenzie-Gray Scott and Michele D’Addetta for their research assistance. 1 Ambassador of Hungary to the United States from 2002 to 2007. 2 Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1, paras 21 and 22. 3 ceu, Press Release 68/17 (15 February 2017) accessed 4 February 2019. 4 See Jessica CE Gienow-Hecht and Mark C Donfried, ‘The Model of Cultural Diplomacy – Power, Distance, and the Promise of Civil Society’ in Jessica CE Gienow-Hecht and Mark C Donfried (eds), Searching for a Cultural Diplomacy (New York: Berghahn Books, 2013) 17. © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_016

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of cultural sections within a number of ministries of foreign affairs.5 This practice, developed not only to showcase political power but also for example to render a State more attractive for investment, has been referred to as ‘soft power’ which, in contrast to ‘hard power’ or coercion, is meant to lead others ‘to want what you want’.6 Gradually, such unilateral nation-branding exercises evolved into a bilateral ‘exchange of ideas, information, art, and other aspects of culture among nations and their peoples in order to foster mutual understanding’, which became known as ‘cultural diplomacy’.7 Accordingly, this form of diplomacy requires ‘listening to others’ messages with an eye to understanding their views (…)’.8 This process has been distinguished from cultural relations, which ‘grow naturally and organically, without government intervention’ and are generally practiced by non-state actors, while cultural diplomacy takes ‘place when formal diplomats, serving national governments, try to shape and channel this natural flow to advance national interests’.9 However, this distinction has become blurred, with measures falling within governmental action being sometimes understood as part of ‘cultural relations’, as a way to refer to a form of cultural diplomacy that is mutually beneficial and based on reciprocal exchanges. After developing at the national level, cultural diplomacy ‘has since the Second World War included a multilateral dimension whereby states work through intergovernmental organizations’,10 including at the European regional level. During the Cold War, the Council of Europe (CoE) launched a cultural heritage programme to close the divide existing at the time between the East and the West by cultivating mutual understanding.11 Following the example 5

6

7 8 9 10 11

See Anthony Haigh, Cultural Diplomacy in Europe (Council for Cultural Cooperation 1974) 21, where he notes the establishment of the section of Art and Science within Germany’s Ministry of Foreign Affairs and the Bureau des Écoles et des oeuvres françaises à l’étranger within its French counterpart. See Joseph S Nye Jr, Bound to Lead: The Changing Nature of American Power (Basic Books 1990), who coined the term ‘soft power’, including therein not only culture but also political values, such as democracy and human rights. This terminology was adopted to steer from what could be deemed to amount to propaganda, which has a negative connotation. Milton Cummings, Cultural Diplomacy and the United States Government: A Survey (Center for Arts and Culture 2009). The term ‘heritage diplomacy’ is used where the focus is strictly on past resources, see Tim Winter, ‘Heritage Diplomacy’ (2015) 21 ijhs 997. Patricia M Goff, ‘Cultural Diplomacy’ in Andrew F Cooper, Jorge Heine, and Ramesh Thakur (eds), The Oxford Handbook of Modern Diplomacy (oup 2013) 422. Richard T Arndt, The First Resort of Kings: American Cultural Diplomacy in the Twentieth Century (Potomac Books 2005) xviii, and Ien Ang, Yudhishthir Raj Isar, and Phillip Mar, ‘Cultural Diplomacy: Beyond the National Interest?’ (2015) 21 ijc Policy 365–66. Goff (n 8) 425. See, in this volume, Krzysztof Pomian, ‘European Heritage and the Future of Europe’.

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of the CoE, the EU also integrated culture in its ‘external relations’,12 the term generally preferred by the European institutions and which indicates a will to develop cultural partnerships rather than exercise soft power unilaterally.13 This was the favoured approach when the EU initiated in its reflections on the matter, as it was deemed that ‘[t]he development of cultural components for EU external relations and policies would allow the Union to accentuate its role as a “partner” for third countries as well as support multilateral diplomacy rather than unilateral action’.14 Furthermore, introducing those cultural components into the EU’s external policy could also entail an acknowledgement that the EU is not only an economic and political union, but also a ‘social and cultural project’.15 This Chapter analyses how cultural heritage gradually secured its place within the EU’s external action. It highlights the key instruments adopted at both the policy and the legal levels, which eventually led in 2016 to the adoption of ‘Towards an EU strategy for international cultural relations’, the Joint Communication to the European Parliament and the Council. This Chapter also examines whether the EU’s external action in the field of cultural heritage may contribute to the implementation of legal obligations, and thus go beyond cultural diplomacy or cultural relations. In particular, it seeks to assess whether the EU’s external action in the field of cultural heritage supports the fulfilment of some of the Member States’ international legal obligations, such

12

13 14

15

Ang, Isar, and Mar (n 9) 369; see also Yudhishthir Raj Isar, ‘“Culture in EU Exte rnal Relations”: An Idea Whose Time Has Come?’ (2015) 21 ijc Policy 494. One exception to this can be found in the European Commission’s ‘Towards an integrated approach to cultural heritage for Europe’ (Communication) com (2014) 477 final, p. 11, where it is stated that ‘[c]ulture is an essential asset of Europe’s public diplomacy’. Nevertheless, this falls under the sub-title ‘Cultural heritage in EU external relations’. One may note that EU Member States, unlike EU institutions, often refer to cultural diplomacy, e.g. France (diplomatie culturelle), Italy (diplomazia culturale), and Poland (Departament Dyplomacji Publicznej i Kulturalnej). Diane Dodd, Melle Lyklema, and Kathinka Dittrich van Weringh, A Cultural Component as an Integral Part of the EU’s Foreign Policy? (Boekmanstudies 2006) 8, who added that ‘[t]his would enable the Union to realise its potential as a “soft power” which seeks communication on matters of difference, hoping to reach mutual understanding as opposed to resolving conflict by military or economic means. It is in the Union’s interest to voice its own authentic, well-articulated and unique values on a global scale’. See also page 19, where the authors note that ‘a Europe of cultural diversity, if properly managed, could be a very successful programme of external policy, as it would be progressive and respectful and demonstrate the principles of human rights’. Rod Fisher, A Cultural Dimension to the EU’s External Policies. From Policy Statements to Practice and Potential (Boekmanstudies 2007) 8.

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as, for example, their duty to cooperate towards the realization of the human right to participate in cultural life.16 If this is the case, it may present the EU with an additional reason to further develop the role of cultural heritage in its external action and for its Member States to support it. 2

The Integration of Cultural Heritage within the EU’s External Action

While the EU founding treaties state that any activity undertaken by the Community concerning culture, including those relating to cultural policy and the safeguarding of cultural heritage, must be in line with the values declared therein,17 the Community has never been granted direct competences in the area of culture. The legal basis for the EU’s action in the field of culture lies in its complementary competence, i.e. the competence to ‘carry out actions to support, coordinate or supplement the actions of the Member States’.18 With regard to foreign policy in general, the competence of the EU has not been defined as either exclusive, shared, or complementary. According to Article 2 of the Treaty on the Functioning of the European Union (tfeu), the EU ‘shall have competence (…) to define and implement a common foreign and security policy’,19 supporting, coordinating, or supplementing the actions of the Member States but ‘without thereby superseding their competence in these areas’.20 The EU’s level of competence externally depends on the subject matter, i.e. if the EU develops a foreign policy covering culture, its competence to act in this area externally is thus complementary to that of the Member States. Having established the type of competences the EU has in the field of culture and foreign policy, the following section highlights some of the first external EU programmes concerned with cultural heritage and discusses the pivotal ­decisions which have led to the eventual establishment of cultural heritage as an integral part of its external action. 16 17 18 19 20

United Nations General Assembly, ‘Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed’ (21 March 2011) UN Doc A/HRC/17/38, para 78. Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47, arts 167 and 3. Ibid, art 6, which lists the areas of complementary competence, to be distinguished from the areas of exclusive or shared competences. Ibid, art 2(4). Ibid, art 2(5). See also art 4(4), according to which, with regard to development cooperation, ‘the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs’.

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2.1 Introducing Cultural Heritage within the EU’s External Relations In the Maastricht Treaty (1992), culture was mentioned for the first time as an element of the integration process, with the Community and its Member States committing themselves to ‘foster cooperation with third countries and the competent international organizations in the sphere of culture, in particular the Council of Europe’, and with the Community having to ‘take cultural aspects into account in its action under other provisions’ of that treaty.21 In the areas of ‘improvement of the knowledge and dissemination of the culture and history of the European peoples’; ‘conservation and safeguarding of cultural heritage of European significance’; ‘non-commercial cultural exchanges’; and of ‘artistic and literary creation, including in the audio-visual sector’, the common action was ‘aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action’. So far, the EU has only adopted a limited number of common strategies in these areas, mostly referring to subsidiary actions supplementing Member States’ policies. Applying its indirect competence in the area of non-commercial cultural exchanges, the EU nevertheless sought to develop partnerships to promote cultural understanding and exchanges beyond its borders. The Barcelona Declaration (1995), which launched various partnerships between the EU and Southern Mediterranean States, included a partnership agreement focused on social, cultural, and human affairs.22 This agreement initiated a dialogue amongst officials and experts in order to make proposals for action in the field of cultural heritage, among others.23 It was also meant to contribute to the success of other efforts undertaken in the interests of peace, stability, and development in the region, thus acknowledging the role of heritage in the realization of these long-term objectives. Cultural heritage has also been recognized as a valuable asset in cooperation agreements focused on development.24 An early example of its inclusion can be found in the 2000 Cotonou Agreement between the EU and the African Caribbean and Pacific Group of States,25 which notes that cooperation in the 21 22 23 24 25

Consolidated version of the Treaty on European Union [2002] OJ C325/5, art 128. However, note that the EU was already intervening in the cultural field within the framework of the Rome Treaty, even if no specific provision on culture was contained therein. ‘Barcelona Declaration Adopted at the Euro-Mediterranean Conference – 27-28/11/95’ accessed 4 February 2019. Cultural actions form part of Chapter iii ‘Partnership in social, cultural and human affairs’. Ibid, 12. This is the core of the third pillar. For the place of cultural heritage in the EU’s trade agreements see Chapter 11 by Francesca Fiorentini in this volume. Partnership agreement 2000/483/EC between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member

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area of culture must recognize, preserve, and promote ‘the value of cultural heritage’, and support ‘the development of capacity in this sector’.26 In addition to including cultural heritage within partnership or cooperation agreements, the EU has, since 1997, dedicated funds for cooperation programmes specifically focused on culture. In accordance with the subsidiarity principle, these programmes have supported and developed actions taken by EU Member States, not only within the EU but also through cooperation with third States. The first of those programmes to focus on cultural heritage – Raphael (1997–2000)27 – sought the conservation and restoration of cultural heritage of European importance, which could be situated beyond the borders of the EU; the development of transnational cooperation for the preservation of European cultural heritage; and the application of new technologies in the heritage sector, among others. Cooperation partners could include third countries, as well as international organizations such as the CoE or unesco. To this day, the EU continues to fund cultural cooperation programmes, which include the objectives that fell under Raphael. Its immediate successor, the Culture 2000 Programme (2000–06), provided for activities specifically aimed at cultural cooperation with third countries, including the support of cultural heritage projects.28 The operators able to participate could be located in one of the then 25 EU Member States, but also in the European Economic Area (eea) Member States or in a then-candidate country for EU membership.29 Culture 2000 even funded projects in potential candidate countries, such as the Bosnian Triptych project in Bosnia and Herzegovina, which centred on the massacre in Srebrenica and the role of cultural

26

27

28

29

States, of the other part, signed in Cotonou on 23 June 2000 – Protocols – Final Act – Declarations [2000] OJ L317/3. It was subsequently revised in 2005 and 2010. Ibid, art 27: culture and development. At the European level, it should also be noted that the ‘European consensus on development’ was adopted by the Council in November 2005. It identified culture as being part of the European Community’s human development policy and contributing to local development and economic growth. European Commission, ‘RAPHAEL – A Cultural Heritage Programme for Europe’ (12 November 1997) accessed 4 February 2019. See also European Commission, ‘OTH-RAPHAEL – Community Action Programme in the Field of Cultural Heritage: The Raphael Programme, 1996–2000’ (1996) accessed 4 February 2019; EU funding for programme: 70,000,000 eur. Decision No 508/2000/EC of the European Parliament and of the Council of 14 February 2000 establishing the Culture 2000 programme [2000] OJ L63/1. European Commission, ‘Culture 2000 Programme: Cultural Cooperation in Third Countries’ (2001) accessed 4 February 2019. Iceland, Liechtenstein, or Norway, and Bulgaria or Romania, respectively.

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heritage in its aftermath. Using the reconstruction of the Old Bridge (Stari Most) in Mostar as a way to draw lessons from the war in Bosnia, this project addressed the challenges associated with multiculturalism, a concern to the EU as a whole.30 By including candidate countries in the calls for proposals and funding projects in potential candidate countries, Culture 2000 also acknowledged the role of cultural heritage in the enlargement process. In general, Culture 2000 sought to promote ‘a common cultural area, characterized by its cultural diversity and shared cultural heritage’, referring to a European cultural heritage, albeit not necessarily situated on EU soil.31 In addition to those in candidate and potential candidate countries, a number of projects were located in the Mediterranean region, in line with the EuroMediterranean Partnership (before the creation of the Union for the Mediterranean in 2008). For example, it supported a project aimed at disseminating knowledge about the restoration and preservation of the city of Alexandria in Egypt, including the integration of European culture within the local culture.32 It thus supported the promotion of European cultural heritage beyond the borders of the EU, as well as a partnership between European and Egyptian heritage experts to develop technical expertise. Having the aim of defining a shared cultural heritage, it also funded a project concerned with architecture in the crusaders’ era, focused on castles and fortresses in the Mediterranean region, including in Syria.33 Culture 2000 also supported projects further afield, in States which could not become part of the European Neighbourhood Policy (enp).34 For example, 30 European Commission, ‘Culture 2000 Programme: Cultural Cooperation in Third Countries’ (2005) accessed 4 February 2019. 31 See the website of the Culture 2000 Programme accessed 4 February 2019. This programme combined former cooperation programmes, including ‘Kaleidoscope’ (arts), ‘Ariane’ (literature), and ‘Raphael’ (heritage), which was established by Decision No 2228/97/EC of the European Parliament and of the Council of 13 October 1997 establishing a Community action programme in the field of cultural heritage (the Raphael ­Programme) [1997] OJ L305/31. 32 European Commission, ‘Culture 2000 Programme…’ (2001) (n 28). 33 See Nicolas Prouteau, Un patrimoine commun en Méditerranée: Fortifications de l’époque des croisades (icomos 2008). 34 The enp was created after the 2004 enlargement of the EU, i.e. during Culture 2000. In particular, from 2004 to 2006 it included a programme specifically dedicated to cultural cooperation in third States; see, for example, European Commission, ‘Culture 2000 Programme: Cultural Cooperation in Third Countries’ (2004) accessed 4 February 2019.

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it supported a project on the African art of healing, with the Museum of Medicine in Brussels coordinating inventories of collections housed in the Museum of Dakar, Senegal, and organized a travelling exhibition.35 Culture 2000 also funded a project which considered how various architectural styles, including those stemming from the colonial past, impact on the development of contemporary African identity.36 Although the above selection of projects is limited, it nevertheless demonstrates that, by the time Culture 2000 ended in 2006, the EU had already supported a wide variety of cultural heritage initiatives beyond its borders. Their diverse nature arose not only from the types of heritage covered (including both movable and immovable objects, as well as intangible heritage), but also from their locations, with projects active in countries which became part of the enp and beyond. Furthermore, their activities were not solely concerned with the identification, conservation, restoration, or sharing of knowledge or expertise, but also with using cultural heritage as a tool to promote European values, strengthen diplomatic relations towards enlargement, support economic development, and address issues of concern to the EU, such as the challenges associated with multiculturalism, for example. In order to meet these objectives, these projects often sought to identify a shared cultural heritage between the EU and a third State (or an entire region). In addition, as some of these projects covered post-conflict and post-colonial contexts, such as those in Balkan or African States, cultural heritage was also used to promote peacebuilding and reconciliation. 2.2 Establishing Cultural Heritage within the EU’s External Relations Despite supporting a flurry of activities pertaining to cultural heritage outside of its borders, the EU did not start assessing the matter in a comprehensive manner before the middle of the first decade of the 2000s. In 2005, a reflection on the concept of ‘culture in EU external relations’ was initiated by the

35 36

See Culture Lab, ‘L’art de guérir en Afrique – entre tradition et modernité (2004–2005)’ accessed 4 February 2019. This project focused on Benin and the Democratic Republic of the Congo; see Associazione Giovanni Secco Suardo, ‘Le patrimoine colonial: une identité à partager’ accessed 4 February 2019. See also, Johan Lagae, ‘From “Patrimoine partagé” to “Whose Heritage”? Critical Reflections on Colonial Built Heritage in the City of Lubumbashi, Democratic Republic of the Congo’ (2008) 21 Afrika Focus 11.

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i­ndependent European Cultural Foundation (ecf).37 At the time, Culture Action Europe, an advocacy organization, also voiced the need for a cultural strategy within the EU foreign policy.38 In 2006, the creation of the European Union of National Institutes for Culture (eunic) was a first response to the need for coordinating the actions of those institutes, which were each conducting their own ‘external’ cultural activities. At the EU level, the importance of cultural heritage in external relations was emphasized in the 2006 Decision of the European Parliament and the Council establishing the Culture Programme (2007 to 2013),39 which succeeded the Culture 2000 Programme. This Decision argued for ‘improving the external visibility’ of the EU through the promotion of its common cultural heritage.40 It also affirmed the link between investing in culture and economic development, as well as the role of culture in combating exclusion and strengthening democratic values. With regard to the complementary nature of the EU’s role with regard to cultural cooperation, it noted that enhancing the European cultural area, based on a common heritage, ‘cannot be sufficiently achieved by Member States owing to their transnational character’. The EU thus asserted its complementary role to Member States in the field of cultural cooperation, in particular because action on a certain scale might be required to achieve the desired aims. Its role was thus seen not only as complementary, but also as necessary. In addition, this Decision also stressed the need to ensure compatibility between the Culture Programme and other activities, including all of those that are part of the EU’s external relations.41 In 2007, the European Commission went a step further with its Communication on a European agenda for culture in a globalizing world,42 recognizing culture as ‘an important part of the EU’s main cooperation programmes and instruments, and in the Union’s bilateral agreements with third 37 38 39 40 41 42

This led to the publication of Dodd, Lyklema, and Dittrich van Weringh (n 14), as well as a study by Fisher (n 15) and the ‘Diversity Makes the Difference’ conference held in The Hague in 2007. For more on the start of this process, see Isar (n 12) 498. Isar (n 12) 499. Decision No 1855/2006/EC of the European Parliament and of the Council of 12 December 2006 establishing the Culture Programme (2007 to 2013) [2006] OJ L372/1. Ibid, Preamble paras 2 and 30, art 3. Ibid, art 7. Commission of the European Communities, ‘European agenda for culture in a globalizing world’ (Communication) com (2007) 242 final; later endorsed by the Resolution of the Council of 16 November 2007 on a European Agenda for Culture [2007] OJ C287/1, which centred on the promotion of: (a) cultural diversity and intercultural dialogue; (b) culture as a catalyst for creativity; and (c) culture as a vital element in the Union’s international relations.

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countries’.43 More specifically, culture was acknowledged as a ‘key element of the co-operation developed with the Council of Europe, which has allowed the joint implementation of the European Heritage Days as well as some actions in the Western Balkans’.44 Therefore, one of the stated objectives within the Communication was the ‘promotion of culture as a vital element in the Union’s international relations’,45 in accordance with the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (‘Convention on Cultural Diversity’),46 to which the EU had acceded in 2006. This treaty was further integrated within the EU’s external relations with the adoption by the Council of conclusions on ‘the promotion of cultural diversity and intercultural dialogue in the external relations of the Union and its Member States’.47 In addition to setting new objectives, the 2007 Communication highlighted the ways cultural heritage had so far been included in the ‘EU’s external relations’, as follows: (1) the provision of financial and technical assistance to developing States, such as for the preservation or restoration of heritage sites or museums, the circulation of works of art, the capacity-building of local heritage professionals, and the organization of major cultural events;48 (2) support for human rights, including cultural rights, Indigenous rights, and the rights of minority groups; (3) the use of intercultural dialogue for peace and conflict prevention; and (4) a reinforcement of public diplomacy to convey information about Europe and its identity.49 In order to guide its future work, the Commission adopted thematic programmes for the period 2007–13, such as 43

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com (2007) 242 final (n 42), where references are made to the Cotonou Agreement, the Neighbourhood and Partnership Programme with neighbouring countries and Russia, and the Development and Cooperation instrument concerning Asia and Central and Latin America. Ibid, para 2.2. Ibid, para 3. (Adopted 20 October 2005, entered into force 18 March 2007) 2440 unts 311 (‘Convention on Cultural Diversity’). According to this Convention, the parties shall ‘endeavour to strengthen their bilateral, regional and international cooperation for the creation of conditions conducive to the promotion of the diversity of cultural expressions’ (art 12); ‘endeavour to support cooperation for sustainable development and poverty reduction, especially in relation to the specific needs of developing countries’ (art 14); and ‘ cooperate in providing assistance to each other, and, in particular to developing countries’ (art 17). ceu, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the promotion of cultural diversity and intercultural dialogue in the external relations of the Union and its Member States’ [2008] OJ C320/10. com (2007) 242 final (n 42) para 3.3 ‘Culture as a vital element in international relations’. Ibid, para 2.2.

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‘Investing in People’ and ‘Non-state Actors and Local Authorities in Development’, taking into account the views of EU citizens and leaders who wished for a Europe that would be more present in the world, with an external policy reflecting its values.50 It is also worth noting that, at the time the 2007 Communication was released, a number of initiatives in line with its objectives were put into place in relation to specific countries or regions. For example, the new Euromed strategy on culture recognized the necessity to integrate culture within development and aid programmes.51 The first phase of the Instrument of PreAccession Assistance, which was established in 2007 to support reforms in EU candidate (and potential candidate) countries, included cultural heritage rehabilitation programmes. The Eastern Partnership Culture Programme, which was approved in 2009, not only included heritage rehabilitation programmes but also led to the Tbilisi Declaration (2013), which supported culture as a driver for development and stability in the region.52 Developing a Strategy for Cultural Heritage within the EU’s External Relations Following the recognition that culture formed a ‘vital element in the Union’s international relations’,53 the risk of an inconsistent approach to culture in external relations led to calls for the development of a strategy, for example in the already mentioned Council’s conclusions on intercultural dialogue in external relations.54 In 2011, a number of bodies, including the ecf – which 2.3

50 51 52

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It was during this time that the European Council approved the Commission’s proposal ‘Europe in the World – Some Practical Proposals for Greater Coherence, Effectiveness and Visibility’ (Communication) com (2006) 278 final. European Commission Office de coopération EuropeAid, Strategy for the Development of Euro-Mediterranean Cultural Heritage: Priorities from Mediterranean Countries (2007– 2013) (Office for Official Publications of the European Communities 2007) 2.1. ‘The Tbilisi Declaration (2013)’ accessed 4 February 2019. See also the Commission of the European Communities, ‘Eastern Partnership’ (Communication) com (2008) 823 final, which recognized cultural cooperation and intercultural dialogue as an integral part of external policies. See n 45. ceu, ‘Conclusions… on the promotion of cultural diversity’ (n 47), which called for ‘drawing up a European strategy for incorporating culture consistently and systematically in the external relations of the Union and contributing to the complementarity of the Union’s activities with those of its Member States; establishing specific strategies with regions and countries outside the Union with a view to clarifying objectives and approaches in the area of cultural relations; these strategies will in particular be tailored to the features

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had been continuously advocating for more coordination at EU level55 – joined ‘MORE EUROPE – external cultural relations’, a public-private partnership exclusively dedicated to strengthening the role of culture in the EU’s external action.56 In addition, although the 2007 Lisbon Treaty did not change the EU competences in the area of cultural heritage,57 it amended the legal and institutional frameworks, including a consolidated legal personality for the EU; a deeper integration of Member States; a required EU accession to the echr; as well as providing for greater coordination and consistency in EU foreign policy. Against this backdrop, an EU-level process was initiated to streamline the cultural dimensions of the EU’s external action, with the European Parliament Committee on Culture and Education releasing a report in which fragmentation was noted as an obstacle to the efficient use of cultural resources and the development of a visible common EU strategy. The report also called on the European External Action Service (eeas) to incorporate culture in a consistent and systematic manner.58 Based on these findings, the Parliament adopted a resolution stating that ‘culture needs to be taken into consideration in all EU external policies’ as cultural cooperation and cultural dialogue are the ‘building blocks of cultural diplomacy’, which can serve as ‘instruments for global peace and stability’.59 As a budget had been agreed along with the adoption of this resolution in 2011, the Parliament was able to launch a Preparatory Action on ‘Culture in EU external relations’ the following year in order to establish future actions in the area. The Preparatory Action was implemented by a consortium, led by the Goethe Institute, through a mapping and consultation process which covered 54 countries, including Neighbourhood Countries and 10 EU Strategic Partners, culminating with the 2014 publication of ‘Engaging the World: Towards Global Cultural Citizenship’.60 This Report called for and sustainable development prospects of their cultural sectors, to the state of cultural exchanges with the Union and to their economic and social situations’. 55 See n 37. 56 For more information, see accessed 4 February 2019. 57 Art 167 tfeu. 58 European Parliament, Committee on Culture and Education, ‘Report on the cultural dimensions of the EU’s external actions (2010/2161(ini))’ (4 February 2019) 5. 59 European Parliament resolution of 12 May 2011 on the cultural dimensions of the EU’s external actions (2010/2161(ini)), paras J and 1. 60 For the full list of consortium members, independent experts, and associated partners, See accessed 4 February 2019. This Report was complemented by 23 country reports.

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reciprocity and mutuality, in particular with regard to listening and learning from non-EU parties.61 It also highlighted that new projects should include all stakeholders from their conception, including those in third countries, in a spirit of shared rights and responsibilities. Acknowledging that competencies for external relations remain the Member States’ prerogative, it underlined the importance of achieving subsidiary complementarity and delivering ‘European’ projects that are not limited to compiling national ones. The Report also included operational recommendations, such as the establishment of a coordination mechanism within the eeas, the adoption by EU institutions of a flexible approach allowing a shared system of governance, the development of new methods of funding (including co-funding and public-private partnerships), and an increased focus on young people, as well as on cities and towns, etc.62 Overall, while recognizing the potential of cultural relations for ‘enhancing European influence and attraction in the rest of the world as well as for enhancing awareness, in Europe itself, of other cultures’, the Report called for the elaboration of a ‘coherent international cultural relations strategy’. The year the Preparatory Action Report was published, the European Commission adopted ‘Towards an integrated approach to cultural heritage for Europe’, another milestone towards increased coherence at the EU level in the field of cultural heritage.63 Mirroring the findings of the Preparatory Action, this Communication considered cultural heritage not only as a shared asset but also as a shared responsibility. In doing so, it recalled the Declaration on a New Narrative for Europe, according to which the value of tangible and intangible cultural heritage must be recognized by the EU as a political body.64 With regard to the promotion of culture as a vital element of the EU’s international dimension, it highlighted the respect for European expertise in cultural heritage protection and the willingness of Member States to share their knowledge.65 Acknowledging cultural heritage as an ‘essential asset of Europe’s public diplomacy’, it also underlined the risks to which heritage is exposed, such as illicit trafficking. The Communication highlighted some current initiatives, 61 62 63 64

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Yudhishthir Raj Isar and others, ‘Engaging the World: Towards Global Cultural Citizenship’ (2014) 9. Ibid, 10–12. com (2014) 477 final (n 12). ‘The Mind and Body of Europe’ (2014) was drafted by a committee of European artists and intellectuals, established in 2012 by the Parliament to develop a ‘New Narrative for Europe’, going beyond the Unity in Diversity concept in order to consider the position of Europe in the world. com (2014) 477 final (n 12) 6, 12.

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such as the provision of development aid for the heritage sector in the Mediterranean region; the Ljubljana Process, which focuses on the rehabilitation of cultural heritage in South-Eastern Europe; and the Kyiv initiative with Eastern Partnership countries, which considers heritage management as a priority.66 It concluded with a call for a ‘multi-layered, multi-stakeholder framework’ to increase cooperation at the EU level.67 Building on this Communication, the Council then adopted its ‘Council Conclusions on participatory governance of cultural heritage’, acknowledging the need for a people-centred approach in order to address the needs of all members of society, and also calling for enhanced cooperation at the international level to promote a participatory approach to cultural heritage governance.68 In November 2015, the Council adopted its ‘Conclusions on culture in the EU’s external relations with a focus on culture in development cooperation’, where it called upon the Commission and the High Representative of the Union for Foreign Affairs and Security Policy to propose a more strategic approach to culture in the EU’s external relations.69 In response to this call, a Joint Communication ‘Towards an EU strategy for international cultural relations’ was adopted in June 2016,70 nearly ten years after the Commission’s recognition that culture formed a key component of international relations. Prepared by the eeas and the Commission, the Joint Communication encourages cultural cooperation between the EU and its partner countries, promoting a global order based on peace, the rule of law, freedom of expression, mutual understanding, and respect for fundamental values. With the Joint Communication focusing on cultural ‘relations’, rather than ‘external action’, the Preparatory Action recommendation to learn and listen to the ‘other’ on an equal footing has been taken into account. The Joint Communication’s proposed guiding principles seek to ensure that EU external action in the cultural field promotes human rights, diversity, and inter-cultural dialogue, while at the same time respecting the subsidiarity and complementarity principles and retaining policy coherence by promoting culture within existing partnership frameworks. The Joint Communication also links future EU action with the goals and targets set out by the United Nations 2030 Agenda for Sustainable 66 Ibid, 12. 67 Ibid. 68 Council conclusions on participatory governance of cultural heritage [2014] OJ C463/1, para 26. 69 Council conclusions on culture in the EU’s external relations with a focus on culture in development cooperation [2015] OJ C417/41, para 1. 70 European Commission, ‘Joint Communication to the European Parliament and the Council: Towards an EU strategy for international cultural relations’ join (2016) 29 final.

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Development, which underlines that culture, including cultural heritage, can have an important role in securing a development that is both inclusive and sustainable.71 The Joint Communication thus anchors culture within the EU’s cooperation for development. The Joint Communication identifies three main strands of action to advance towards an EU strategy for international cultural relations: (1) supporting culture as an engine for sustainable social and economic development; (2) promoting culture and intercultural dialogue for peaceful inter-community relations; and (3) reinforcing cooperation on cultural heritage. Cultural heritage is understood as one of the elements constituting the broader concept of culture, together with inter-cultural dialogue, cultural diversity, artistic creation, and creative industries, among others. The link between the various components is also acknowledged, with cultural heritage deemed a manifestation of cultural diversity that needs to be protected. While rehabilitating and promoting cultural heritage are highlighted as enablers of tourism and economic growth, the Joint Communication also notes the role of cooperation in the field of cultural heritage in international relations and in development policies in general. In addition, the following three sub-strands are identified with regard to cultural heritage: (1) research; (2) combatting trafficking; and (3) protection. For each of the sub-strands, actions and programmes which are already being implemented or are to be carried out by the EU are explicitly outlined. The research strand focuses on the Horizon 2020 Programme, which ‘supports research and innovation for cultural heritage activities through multinational, interdisciplinary projects that also engage local and regional authorities, businesses, and civil society, aimed at new solutions for the preservation and management of cultural heritage in Europe that is jeopardized by climate change’.72 The largest EU research and innovation programme of its kind,73 it allows non-EU countries to participate but focuses on projects 71 72

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Transforming our World: The 2030 Agenda for Sustainable Development, unga Res A/RES/70/1 (25 September 2015), Goal 11.4. Funding for cultural heritage, one of the key areas in Horizon 2020, is 100 million eur for 2018–20, accessed 4 February 2019. It has 80 billion eur of funding available until 2020. Further information on Horizon 2020 is available at: accessed 4 February 2019.

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developed within EU countries,74 which means that the Joint Communication refers to an action that is not explicitly directed towards non-EU countries. As for the fight against illicit trafficking, the Joint Communication goes into more detail, outlining concrete actions to be carried out, including the Proposal for a Regulation of the European Parliament and of the Council on the import of cultural goods,75 which builds on previous directives restricting the import of cultural goods from Iraq and Syria. The Joint Communication also mentions the ‘Action Plan for strengthening the fight against terrorist financing’ as a tool for a wider response to combating terrorism financing.76 These initiatives echo resolutions adopted at the global level, for example by the United Nations Security Council (unsc).77 Lastly, with regard to protection the Joint Communication mentions actions aimed at sharing satellite imagery of cultural heritage sites at risk with, inter alia, unesco through the Copernicus Emergency Management Service, in order to evaluate damage and plan possible reconstruction. Another action set out is the Regional Fund in Response to the Syrian Crisis, which also contributes to protecting cultural heritage and promoting cultural diversity. Therefore, the Joint Communication addresses current concerns with regard to cultural heritage, in particular its possible damage or destruction in the context of armed conflicts, such as those in Iraq, Syria, and Afghanistan. The Joint Communication also identifies the CoE and unesco as its key partners in the field of cultural heritage, giving a project in Syria as an example of cooperation with unesco, and the Ljubljana Process as an example of cooperation with the CoE. The Joint Communication also specifically addresses two issues in relation to cultural heritage: that of the Enlargement Countries, stating that the EU should continue working closely with those countries to help protect their cultural heritage; and that of cross-border cooperation programmes, which also support the preservation of culture and cultural heritage. While the Joint Communication gives a large role to culture in general, the role of cultural heritage appears constrained to research, combating trafficking, and protection, overlooking the potential role cultural heritage may play in the EU’s cultural relations more generally, a role which was identified 74

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For a list of Horizon 2020 Associated Countries, see the European Commission, Directorate-General for Research & Innovation, ‘Associated Countries’ accessed 4 February 2019. com (2017) 375 final, 2017/0158 (cod). European Commission, ‘Action Plan for strengthening the fight against terrorist financing’ (Communication) com (2016) 50/2. See, for example, unsc Resolution 2347: Maintenance of international peace and security (2017) UN Doc S/RES/2347.

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through earlier projects under the cooperation programmes. Mentioning the role of cultural heritage specifically as another possible tool for sustainable social and economic development and for the promotion of intercultural dialogue for peaceful inter-community relations, among other areas, would have further asserted the existing role of cultural heritage in the EU’s cultural relations. The Joint Communication may thus be deemed as a first step in the right direction, with the European Parliament calling ‘for the development of an effective EU strategy for international cultural relations’ a year after its adoption.78 The Parliament also noted the Joint Communication’s lack of ‘thematic and geographic priorities, concrete objectives and outcomes, target groups, common interests and initiatives, financing provisions, sound financial management, a local and regional perspective and challenges and implementation modalities’.79 Nevertheless, the Joint Communication has the merit of clearly defining key priority areas and providing a workable framework for immediate action.80 It was well received, with the then-unesco Director-General stating that ‘[t]his strategy is the result of a shared vision and unesco is pleased to have contributed to it. We stand ready to work with the European Commission to implement this landmark initiative’.81 The increased recognition of culture in the development strategy of the EU, a shift already perceived during the 2016 European Development Days, was also highlighted, along with the influence of the Sustainable Development Goals (sdgs) in the work of the EU, providing for a ‘culture sensitive development action’.82 Since the adoption of the Joint Communication, the role of culture in international relations has been further confirmed. For example, in its Global 78

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European Parliament resolution of 5 July 2017 on Towards an EU strategy for international cultural relations (2016/2240(ini)), Objective 1; see also the European Parliament, Committee on Foreign Affairs and Committee on Culture and Education, ‘Report on Towards an EU strategy for international cultural relation (2016/2240(ini))’ (13 June 2017). European Parliament, Committee on Foreign Affairs and Committee on Culture and Education (n 78) para P. Note that the Cultural Diplomacy Platform, first set up in 2016, supports their implementation through the dissemination of policy advice, training programmes, and other activities, gathering all of those involved in external cultural relations, accessed 4 February 2019. unesco, ‘unesco welcomes new EU strategy on culture in international relations’ (8 June 2016) accessed 4 February 2019. Damien Helly and Greta Galeazzi, ‘Culture in EU Development Policies and External Action – Reframing the Discussion’ (2016) 92 ecdpm Briefing Note 2 accessed 4 February 2019.

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Strategy on the EU’s Foreign and Security Policy adopted a few months afterwards, the ceu specifically mentioned the role of cultural diplomacy.83 In May 2017, in its Conclusions on an EU strategic approach to international cultural relations, the Council underlined that the strategic approach should be ‘bottom-up and should respect the independence of the cultural sector’. Amongst the objectives of the eych 2018, the promotion of cultural heritage has also been identified as an important element of the EU’s international dimension, building on the interest for Europe’s heritage and expertise.84 In this regard, the European Commission stressed that heritage ‘plays a major role in several programmes in the area of external relations, mainly – but not exclusively – in the Middle East. The promotion of the value of cultural heritage is also a response to the deliberate destruction of cultural treasures in conflict zones’.85 There is therefore a clear link between the eych, which is primarily focused on EU countries, and the external dimension of the EU action. Reflecting the Joint Communication, the external dimension of cultural heritage within the eych is again centred on the risk of destruction and need for protection, as a response to the current concerns raised by situations of armed conflict and the intentional destruction in the hands of the Islamic State. Finally, and beyond the eych, even the election to European Capitals of Culture (ECoC), the ‘flagship cultural initiative’ of the EU,86 will be systematically extended, from 2021 onwards and every three years, to a city located in a candidate or potential candidate country.87 As underlined by the EU Commissioner of Education, 83 84 85

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ceu, ‘Council conclusions on the Global Strategy on the European Union’s Foreign and Security Policy’ (17 October 2016). European Commission, ‘Proposal for a Decision of the European Parliament and of the Council on a European Year of Cultural Heritage’ com (2016) 543 final. Ibid 3 and 10, where it also states that ‘[i]t will be important to ensure complementarity between the European Year of Cultural Heritage and all external relations initiatives developed within appropriate frameworks. Actions to protect and promote cultural heritage under relevant external relations instruments should, amongst other things, reflect the mutual interest associated with the exchange of experiences and values with third countries. It will promote mutual knowledge, respect and understanding of the respective cultures’. European Commission Directorate-General for Education, Youth, Sport and Culture, ‘European Capitals of Culture 2020 – 2033. Guide for Cities Preparing to Bid’ (December 2014) 4. Previously, only cities in EU Member States or eaa countries were eligible, with the exception of Istanbul which was ECoC in 2010; see the Decision No 445/2014/EU of the European Parliament and of the Council of 16 April 2014 establishing a Union action for the European Capitals of Culture for the years 2020 to 2033 and repealing Decision No 1622/2006/EC [2014] OJ L132/1, and Decision (EU) 2017/1545 of the European Parliament and of the Council of 13 September 2017 amending Decision No 445/2014/EU establishing

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Culture, Youth and Sport, ‘the opening of this prestigious European programme to those countries seeking full membership is a way to bring them closer to and reinforce their cultural links with the Union’.88 These examples show that the number of heritage initiatives within the EU’s external action has grown exponentially following the Preparatory Action, which begs the following question: to what extent do these actions complement those undertaken by the Member States, which retain exclusive competence in this area? 3

The Rationale and Legal Basis for Integrating Cultural Heritage in the EU’s External Relations

The following section considers how the EU’s external action complements the actions of its Member States in the field of cultural heritage, in particular with regard to the realization of their international legal obligations. In doing so, it first addresses the EU’s rationale for acting externally in the area of cultural heritage, then analyses the international legal obligations of EU Member States in the field of cultural heritage, which may in turn be complemented by the EU’s initiatives. 3.1 Cultural Heritage as a Common Good The integration of cultural heritage within the EU’s external action is premised on the universal value attached to it, which makes it an ideal vector for the development and maintenance of international relations. The idea that cultural heritage is ‘common’ to mankind has been affirmed through various international instruments. According to the unesco Declaration of Principles of International Cultural Co-operation (1966): ‘In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind’.89 This perspective had already been adopted in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (‘the Hague Convention’), which affirmed that ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people

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a Union action for the European Capitals of Culture for the years 2020 to 2033 [2017] OJ L237/1. See The European Capital of Culture in 2021 in candidate countries and potential candidates for membership of the EU - The Selection Panel’s report, Final Report (Brussels, November 2016) accessed 4 February 2019. Art 1(3).

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makes its contribution to the culture of the world’ and ‘that the preservation of the cultural heritage is of great importance for all peoples of the world’.90 This was reaffirmed in several unsc resolutions, which have considered the protection of cultural heritage from man-made damage as a means for the maintenance of international peace and security.91 The nearly universally ratified 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (‘the World Heritage Convention’) also considers that ‘parts of the cultural (…) heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole’.92 A similar view was again enshrined in the widely ratified 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (‘the Intangible Heritage Convention’), as ‘the States Parties recognize that the safeguarding of intangible cultural heritage is of general interest to humanity’.93 The Convention on Cultural Diversity, to which the EU itself is a party, considers that cultural diversity, of which cultural heritage is an expression, ‘forms a common heritage of humanity and should be cherished and preserved for the benefit of all’ and that there is a ‘need to incorporate culture as a strategic element in (…) international development policies, as well as in international development cooperation’.94 The global value of cultural heritage was even acknowledged within the 2030 Agenda for 90

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(Adopted 14 May 1954, entered into force 7 August 1956) 249 unts 240, Preamble. See also the Abu Dhabi Declaration on Safeguarding Endangered Cultural Heritage (3 December 2016), which calls world cultural heritage ‘a mirror of mankind, a guardian of our collective memory and a witness to the extraordinary creative spirit of humanity’. This includes unsc Res 2347 (n 77), the first unsc Resolution exclusively dedicated to cultural heritage; see Sabrina Urbinati, ‘The Evolving Role of the United Nations Security Council and the Protection of Cultural Heritage in the Event of Armed Conflict’ (Questions of International Law, 31 March 2018) accessed 4 February 2019. Also, in the Al Mahdi case the Trial Chamber viii stated that the destruction of unesco World Heritage sites ‘does not only affect the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also people throughout Mali and the international community’, see Prosecutor v Ahmad Al Faqi Al Mahdi, Judgment and Sentence (No icc-01/12-01/15-171, 27 September 2016) para 80 (emphasis added). (Adopted 16 November 1972, entered into force 17 December 1975) 1037 unts 151, Preamble. See Andrzej Jakubowski, ‘A Constitutionalised Legal Order – Exploring the Role of the World Heritage Convention (1972)’ in Andrzej Jakubowski and Karolina Wierczyńska (eds), Fragmentation vs the Constitutionalisation of International Law: A Practical Inquiry (Routledge 2016) 183, where he notes that world cultural heritage is often associated with the notion of ‘global commons’, thus comprising a shared duty to co-operate in order to safeguard and conserve world heritage in the general interest of humankind. (Adopted 17 October 2003, entered into force 20 April 2006) 2368 unts 1, art 19(2). Convention on Cultural Diversity (n 46) Preamble.

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Sustainable Development, which underlined the need to ‘strengthen efforts to protect and safeguard the world’s cultural and natural heritage’.95 Finally, at the European level the States Parties to the CoE’s 2005 Framework Convention on the Value of Cultural Heritage for Society (‘the Faro Convention’) declared that they ‘recognise individual and collective responsibility towards cultural heritage’,96 and the European Commission called cultural heritage a ‘shared resource and a common good held in trust for future generations’.97 Although the concept of cultural heritage as a common good that transcends borders has long been affirmed within international instruments, it is not without limitations. Cultural heritage may amount to both a global common good and a domestic good; it may also have private (rather than public) ownership rights attached thereto. Overall, individual States still retain sovereignty, and primary responsibility, over cultural heritage matters.98 With regard to public cultural goods, States retain the prerogative to restrict the movement of their ‘national treasures’;99 and it is States that usually nominate cultural heritage to a protected list, as for example under the 1954 Hague Convention, the World Heritage Convention, or the Intangible Heritage Convention. Beyond the State, and in accordance with the emergence of participatory heritage governance, local communities may also for example be entitled to restrict the access to (or use of) certain cultural heritage to those belonging to their communities. Despite these limitations, the widely recognized ‘common goods’ nature of cultural heritage has been deemed to entail some level of shared responsibilities, meaning that States should not only safeguard and promote the cultural heritage located on their territories, but beyond their borders as well, while 95 96

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Transforming our World (n 71) Goal 11.4. (Adopted 27 October 2005, entered into force 1 June 2011) cets 199, art 1(b). Eight EU Member States are party to the Faro Convention (Austria, Croatia, Hungary, Latvia, Luxembourg, Portugal, the Slovak Republic, and Slovenia) and another four are signatories (Belgium, Bulgaria, Finland, and Italy). com (2014) 477 final (n 12). On the notion of cultural heritage as a common good, see Federico Lenzerini and Ana Filipa Vrdoljak, International Law for Common Goods – Normative Perspectives on Human Rights Culture and Nature (Hart 2014) 137–268. This approach has also been defined as ‘cultural internationalism’ (versus ‘cultural nationalism’) by John Henry Merryman, ‘Two Ways of Thinking About Cultural Property’ (1986) 80 ajil 831. Merryman’s view was discussed by Andrzej Jakubowski in ‘Global Commons, Cultural Nationalism and the International Protection of Cultural Heritage’, in his paper at the esil conference 2017, where he argued that despite the development towards an understanding of cultural heritage as a global public good, States still retain sovereignty over cultural heritage, which means that cultural heritage cannot be fully considered as such. See Chapter 4 by Michele Graziadei and Barbara Pasa in this volume, Section 6.

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also respecting the principle of cultural diversity.100 Within the ‘common goods’ perspective States, as well as regional organizations, may thus integrate cultural heritage within their foreign policy to fulfil those shared responsibilities. This may be the case for the EU, which funds heritage conservation projects abroad, in particular in the Middle East which has been highlighted as an area of focus for the eych.101 It may also be the case with regard to actions that promote European heritage abroad, as European heritage also has a value for the rest of the world to the extent that it represents a common good. External action in cultural heritage matters may thus be deemed a natural consequence of its ‘common goods’ nature and the shared responsibilities one may attach thereto. 3.2 External Action on Cultural Heritage as a Legal Obligation? Beyond the motivation to act externally in cultural heritage matters because of the latter’s universal value, States may also have an international obligation to do so. According to the unesco Declaration of Principles of International Cultural Co-operation, ‘[c]ultural co-operation is a right and a duty for all peoples and all nations, which should share with one another their knowledge and skills’,102 and which must be exercised in accordance with the general principles of sovereign equality and non-intervention.103 Being contained in a declaration, this provision does not give rise to a legal obligation on the part of unesco’s Member States. However, EU Member States may be required to cooperate with (or assist) non-EU States in the field of cultural heritage as the result of obligations contained in treaties to which they are party. According to the World Heritage Convention, to which all EU Member States are party, ‘it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an efficient

100 See, for example, Francesco Francioni, ‘Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity’ (2004) 25 Michigan Journal of International Law 1209, and, by the same author, ‘Public and Private in the International Protection of Global Cultural Goods’ (2012) 23 ejil 719. 101 Dec (EU) 2017/864 (n 2) para 21. 102 unesco Declaration of Principles of International Cultural Co-operation, art v. 103 See the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, unga Res A/Res/25/2625 (24 October 1970).

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complement thereto’.104 While this treaty provides that the State Party has the primary ‘duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural (…) heritage (…) situated on its territory’, it adds that the State Party must do all it can ‘to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain’.105 States Parties to the Intangible Heritage Convention, to which all EU Member States are party (with the exception of the United Kingdom which is due to leave the EU in 2019), ‘undertake to cooperate at the bilateral, subregional, regional and international levels’. Under this Convention, international cooperation refers to, inter alia, ‘the exchange of information and experience, joint initiatives, and the establishment of a mechanism of assistance to States Parties in their efforts to safeguard the intangible cultural heritage’.106 International assistance may take various forms, including studies, the provision of experts and equipment, staff training, the elaboration of standard-setting and other measures, the creation and operation of infrastructures, or financial assistance.107 In addition to being a key element of the safeguarding of cultural heritage, international cooperation has also been acknowledged as essential in the combat against trafficking in cultural goods. For example, the Preamble of unsc Security Resolution 2347 recognizes ‘the indispensable role of international cooperation in crime prevention and criminal justice responses to counter trafficking in cultural property and related offences in a comprehensive and effective manner’.108 In accordance with the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, to which 25 EU Member States are party, ‘international co-operation constitutes one of the most efficient means of protecting each country’s cultural property’.109 This Convention also provides that its States Parties may call on one another if their patrimony is in jeopardy from 104 World Heritage Convention (n 92) Preamble. 105 Ibid, art 4. Article 7 mentions the ‘system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage’. 106 Intangible Heritage Convention (n 93) art 19(1). 107 Ibid art 21. 108 It also noted the efforts of the CoE and the Nicosia Convention. 109 (Adopted 14 November 1970, entered into force 24 April 1972) 823 unts 231, art 2(1). Within the EU, Ireland, Latvia, and Malta are not parties.

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pillage in order to implement measures to curb international trade in the material in question.110 With regard to cooperation in criminal matters, the Second Protocol to the Hague Convention, to which 22 EU Member States are party,111 calls for mutual legal assistance ‘in connection with investigations or criminal or extradition proceedings brought in respect of the offences set forth in Article 15, including assistance in obtaining evidence at their disposal necessary for the proceedings’.112 The offences in question include attacking cultural property or using it for military purposes, as well as theft and pillaging, in situations of armed conflicts. Beyond obligations emanating from treaties pertaining to cultural heritage, EU Member States may also have to act externally in this area as a result of human rights obligations. While there is no right to cultural heritage per se, the right of access to and enjoyment of cultural heritage has been recognized as part of the human right to participate in cultural life.113 Therefore, States that are party to a treaty that provides for the right to participate in cultural life, such as Article 15 of the 1966 International Covenant on Economic, Social and Cultural Rights (icescr),114 to which all EU Member States are party, have an obligation to respect, protect, and fulfil this right in relation to all individuals under their jurisdiction. This generally includes all individuals living on their territory, without any citizenship requirement, but it can also, in limited circumstances, include individuals situated outside of their respective territories. Therefore it can be considered to include an obligation on part of the State to enable and protect the right to participate in cultural life externally, such as when a State exercises control over another territory or person. In addition to the extraterritorial dimension of human rights obligations as a result of a form of control exercised beyond their borders, States may have to support each other with respect to the realization of this right outside their territory because of the obligation to cooperate towards the universal 110 Ibid, art 9. 111 Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Lithuania, Luxembourg, Netherlands, Norway, Poland, Romania, Slovakia, Slovenia, and Spain. 112 Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 26 March 1999, entered into force 9 March 2004), 2253 unts 212, art 19(1). 113 UN Doc A/HRC/17/38 (n 16); see also United Nations Committee on Economic, Social and Cultural Rights, ‘General Comment No 21, Right of Everyone to Take Part in Cultural Life (art 15, para 1a of the Covenant on Economic, Social and Cultural Rights)’ (21 December 2009) E/C.12/GC/21, in particular paras 49(d) and 50. 114 (Adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3.

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realization of all human rights.115 According to the UN Charter, Member States ‘pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55’,116 which includes ‘international cultural and educational cooperation’ and ‘universal respect for, and observance of, human rights and fundamental freedoms for all’ without discrimination. Article 22 of the UN Universal Declaration of Human Rights further provides that [e]veryone, as a member of society, (…) is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.117 Referring to its General Comment No 3 (1990), the Committee on Economic, Social and Cultural Rights (cescr) drew ‘attention to the obligation of States parties to take steps, individually and through international assistance and cooperation, especially through economic and technical cooperation, with a view to achieving the full realization of the rights recognized in the Covenant’.118 It added that 115 Unlike the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171, the icescr does not contain a jurisdiction clause limiting its scope. 116 Charter of the United Nations (26 June 1945) art 56 (emphasis added). See also unga Res A/Res/25/2625 (n 103). 117 Universal Declaration of Human Rights (adopted 10 December 1948) unga Res 217 A(iii). 118 United Nations Committee on Economic, Social and Cultural Rights, ‘General Comment No 21’ (n 113) para 56 (emphasis added); see also art 2(1) icescr, which states that ‘[e]ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means’; see also art 23 icescr, according to which ‘international action for the achievement of the rights recognized in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in conjunction with the Governments concerned’. The cescr added that ‘in the absence of an active programme of international assistance and cooperation on the part of all those States that are in a position to undertake one, the full realization of economic, social and cultural rights will remain an unfulfilled aspiration in many countries’, see United Nations Committee on Economic, Social and Cultural Rights, ‘General Comment No 3, The Nature of States Parties’ Obligations

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[i]n the spirit of Article 56 of the Charter of the United Nations, as well as specific provisions of the International Covenant on Economic, Social and Cultural Rights (art. 2, para. 1, and arts. 15 and 23), States parties should recognize and promote the essential role of international cooperation in the achievement of the rights recognized in the Covenant, including the right of everyone to take part in cultural life, and should fulfil their commitment to take joint and separate action to that effect.119 While the Covenant may provide its States Parties with obligations beyond their borders, the cescr has not clarified the nature of those obligations,120 i.e. whether they are legally binding or not.121 In order to clarify this point, the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (the ‘Maastricht Principles’) were adopted by a group of experts in 2011. According to its Principle 3, ‘[a]ll States have obligations to respect, protect and fulfil human rights, including civil, (art 2(1) of the Covenant)’ (14 December 1990) E/1991/23, para 14; see also para 13, where the Committee notes that ‘to the maximum of its available resources’ was intended to refer to both the resources of a State and those available through international cooperation and assistance. 119 United Nations Committee on Economic, Social and Cultural Rights, ‘General Comment No 21’ (n 113) para 56. Note also that art 15(4) icescr provides that ‘[t]he States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields’. International cooperation was further highlighted by the Committee on the Rights of the Child, which stated that States Parties ‘take upon themselves obligations not only to implement it within their jurisdiction, but also to contribute, through international cooperation, to global implementation’; see UN Committee on the Rights of the Child, ‘General Comment No 5 (2003): General measures of implementation of the Convention on the Rights of the Child’ (27 November 2003) CRC/GC/2003/5, para 5. 120 Fons Coomans, ‘The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights’ (2011) 11 hrlr 1. Note also that, in fulfilling these obligations extraterritorially, States must also respect other human rights such as the right to self-determination and the right to participate in decision-making. However, while the ‘receiving’ State retains the right to refuse assistance and cooperation, there is a ‘strong presumption it will accept suitable support’; see Olivier De Schutter and others, ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2012) 34 hrq 1157. 121 Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 hrq 156, 188–90; UN Economic and Social Council, ‘Report of the Open-ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on Its Third Session’ (14 March 2006) UN Doc E/CN.4/2006/47, paras 78, 82.

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cultural, economic, political and social rights, both within their territories and extraterritorially’. Extraterritorial obligations including taking ‘action, separately, and jointly through international cooperation, to realize human rights universally’,122 in ‘situations in which the State, acting separately or jointly, whether through its executive, legislative or judicial branches, is in a position to exercise decisive influence or to take measures to realize economic, social, and cultural rights extraterritorially, in accordance with international law’.123 In addition, the Maastricht Principles provide that ‘States should coordinate with each other (…) in order to cooperate effectively’,124 which action at the EU level can support. Despite the adoption of the Maastricht Principles, States have not recognized international cooperation as an enforceable obligation in relation to the realization of escr. Notwithstanding pressure from developing countries during the drafting process of the Optional Protocol to the icescr (2008), which allows individuals to lodge communications at the international level regarding alleged violations of the icescr, the final text of the Protocol provides that Communications can only be ‘submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party’.125 While the Committee can critisize States for their lack of cooperation, a failure by another State party to provide international assistance and cooperation is not directly enforceable before the Committee.126 This is also the case with regard to the obligation to cooperate stemming from cultural heritage treaties, as there is also a lack of enforcement mechanisms with regard to those obligations. In addition to obligations pertaining to its Member States, the EU itself has treaty obligations, such as through its adherence to the Convention on Cultural Diversity, which allows a ‘regional economic integration organization’ to accede to it as long as it clarifies the distribution of responsibilities with its Member State(s) when one or more Member States are also a party thereto.127 122 123 124 125 126

Principle 8(b) of the Maastricht Principles. Ibid, Principle 9(c); see also Principles 28–35. Ibid, Principle 30. Art 2 OP-icescr. Coomans (n 120) 34–5. Note that, according to art 14 OP-icescr, the Committee may make recommendations to UN bodies with regard to communications that ‘indicate a need for technical advice or assistance’. 127 Convention on Cultural Diversity (n 46) art 27(3). On this topic, see Jan Loisen, ‘The Implementation of the unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions in EU External Relations’ in Evangelia Psychogiopoulou (ed),

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Therefore, when acceding to this treaty, the EU attached a declaration stating what competences have been transferred to it by its Member States, listing a number of provisions such as the ones regarding its development cooperation policy (Articles 177–81) and its policy of cooperation with industrialized countries (Article 181a), as well as a number of its partnership agreements with third countries. The Convention on Cultural Diversity promotes international cooperation and states that preferential treatment must be granted to cultural professionals and cultural goods from developing countries,128 underlining the need to support ‘cooperation for sustainable development and poverty reduction’.129 It states that ‘in situations of serious threat to cultural expressions’, parties shall assist each other.130 It also provides that parties shall interpret other treaties they are party to in accordance with it and ‘undertake to promote the objectives and principles of this Convention in other international forums’.131 With regard to human rights, although the EU is not a party to the key international treaties, the EU adopted its second Action Plan in 2015 in order to guide its work ‘towards the advancement of human rights and democracy worldwide’, including the human right to take part in cultural life. More generally, under the Maastricht Treaty the EU and its Member States have committed themselves to ‘foster cooperation with third countries’.132 In addition, in line with developments at the international level,133 as well as with the understanding of cultural heritage as a ‘common good’ which calls for ‘common responsibility’,134 the EU has also embraced the principle of participatory governance.135 According to the Council, the participatory approach ‘helps triggering new opportunities brought by globalization, digitization and new technologies which are changing the way cultural heritage is created, accessed and used’.136 As a result, the Council has invited the Members States and the Commission ‘to enhance cooperation with international organizations such as

128 129 130 131 132 133 134 135 136

Cultural Governance and the European Union, Protecting and Promoting Cultural Diversity in Europe (Palgrave Macmillan 2015) 210–24. Convention on Cultural Diversity (n 46) arts 12 and 16. Note that cultural professionals and cultural goods may include cultural heritage professionals and those goods that can be considered as cultural heritage as well. Ibid, art 14. Ibid, art 17. Ibid, arts 20(1)(b) and 21. However, note that the EU was already intervening in the cultural field within the framework of the Rome Treaty, even though no specific provision on culture was contained therein. See, for example, the Council conclusions on participatory governance (n 69) para 4. com (2014) 477 final (n 12) 2. Council conclusions on participatory governance (n 69). Ibid, para 12.

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the Council of Europe and unesco to promote a participatory approach to cultural heritage governance’,137 as well as to foster cooperation with third countries, in particular candidate countries, potential candidate countries and countries of the European neighbourhood policy and with the competent international organizations in the field of culture, including the Council of Europe, including via regular meetings with the third countries concerned.138 Therefore, the EU’s external action in the field of cultural heritage must also apply the principle of participatory governance to any action regarding cultural heritage. Participatory governance is a principle which rests on the engagement of a variety of stakeholders including, for example, communities that are external to the Member States. 4 Conclusion Cultural heritage has gradually affirmed its place within the EU’s external relations, including the need to involve non-EU partners on an equal basis and listen to their views. Over the past decade in particular, EU institutions have sought to streamline their external actions pertaining to culture and cultural heritage. Following the Preparatory Action, the adoption of the Joint Communication in 2016 – nearly ten years after the European Commission recognized culture as a key component in international relations – was lauded as a major step towards the development of a strategy on culture within the EU’s external relations. The Joint Communication has the merit of providing a clear framework for immediate action with regard to research, combating trafficking, and protection, but it does not specifically acknowledge all the facets of the role cultural heritage may play in the EU’s cultural relations, such as a tool for sustainable development and for intercultural dialogue and peaceful interrelations. A subsequent European Parliament resolution, referring to cultural heritage as a ‘universal legacy’, called ‘for the development of an effective EU strategy for international cultural relations’,139 highlighting that further work in the area is needed. Given that the promotion of cultural heritage has also 137 Ibid, para 26. 138 See ceu, ‘Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on a Work Plan for Culture (2015–2018)’ [2014] OJ C463/4, 7. 139 Under Objective 1 of the European Parliament resolution of 5 July 2017 (n 78).

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been identified as an important element of the EU’s international dimension within the objectives of the eych, the EU has to build on its recent efforts in order to fully harness the potential of cultural heritage in strengthening its external relations, as well as affirm the role of the EU in international development and in maintaining peace and security. While it is clear that integrating cultural heritage within external relations has been affirmed as a key policy objective over the past decade by the EU, external action in the field of cultural heritage may also contribute to the fulfilment of legal obligations, and thus go beyond ‘cultural diplomacy’. All EU Member States, as well as the EU itself, have international obligations with regard to cultural heritage, stemming from their participation in treaties addressing an aspect of cultural heritage or human rights treaties. These treaties also include a duty of international assistance and cooperation in order to fulfil the aims contained therein. For example, all EU Member States must assist third States Parties to the World Heritage Convention in protecting sites that have world heritage status; almost all EU Member States must also cooperate in the safeguarding of intangible cultural heritage with third States Parties; most EU Member States must also cooperate with third States in order to curb the illicit trafficking in cultural objects; and all EU Member States have an obligation to cooperate and assist third States in realizing their duty to fulfil the human right of those under their jurisdictions to access and enjoy cultural heritage. While the EU may not fulfil these duties in lieu of its Member States, its external action in these areas may support and complement their international legal obligations to provide assistance and cooperation. It is therefore in the interests of Member States to have the EU seize its subsidiary competence in external cultural heritage matters. Thus, strengthening the external action of the EU in the field of cultural heritage goes beyond the realization of foreign policy objectives, such as supporting sustainable development or the establishment of democracy. Strengthening the external action of the EU in the field of cultural heritage also fulfils the EU’s own international legal obligations, as well as supports and complements the actions of its Members States, including towards the fulfilment of their international legal obligations. Member States should therefore encourage the EU to further develop its strategy on cultural heritage in its international relations, in line with the European Framework for Action on Cultural Heritage which has identified the reinforcement of international cooperation as a priority area.140 140 The European Framework for Action on Cultural Heritage was presented at the closing conference of the EYCH 2018 (Vienna, 7 December 2018) accessed 4 February 2019.

Chapter 15

The Protection of Cultural Landscapes in the European Union Amy Strecker 1

Normative Developments in International Landscape Law ‘[T]he word landscape was, historically, a thoroughly humanized word’.1

Kenneth Olwig has shown how ‘the identification of country as polity characterized by a socially constituted political landscape became subordinated, in many ways, to the idea of country as scenic physical landscape’.2 Indeed, many early national laws were focused on the ‘beauty’ and ‘character’ of landscapes and sites.3 This was also the case in the first international instruments dealing with landscape protection.4 Landscape was often conceived of as a static or bucolic entity, not as something socially and culturally dynamic. However, the legal conception of landscape in international law began to change towards the end of the 20th century, particularly after 1992, when World Heritage categories were broadened to include the listing of ‘Cultural Landscapes’ within the scope of the World Heritage Convention.5 Cultural landscapes constituted a recognition of the intangible and associative values attached to certain landscapes, to sustainable agricultural practices, and to ‘people and communities’, i.e. essentially the human dimension of landscapes.6 This broadening of the 1 Yi Fu Tuan, ‘Foreword’ in Kenneth Olwig, Landscape, Nature, and the Body Politic: From Britain’s Renaissance to America’s New World (University of Wisconsin Press 2002) xix. 2 Ibid. 3 For example, the Belgian Law of 12 August 1911 on the Conservation of the Beauty of Landscapes, the Spanish 1916 Ley de Parques Nacionales, which refers to ‘remarkable natural landscapes’. The 1947 Italian Constitution refers to the safeguarding of the landscape and the cultural and artistic heritage of the nation (art 9). The German Constitution of 1949 mentions landscape alongside nature protection, as does the 1874 Swiss Constitution (art 24). 4 unesco, ‘Recommendation concerning the Safeguarding of Beauty and Character of Landscapes and Sites’ (11 December 1962). 5 On 27th March 1992, at its 16th session, the Operational Guidelines incorporating the categories of Cultural Landscapes were adopted by the World Heritage Committee. Decision 16 com xiii.1–3. 6 Mechtild Rössler has defined the opening of the World Heritage List to cultural landscapes as a shift towards ‘people and communities’. Mechtild Rössler, ‘World Heritage Cultural © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_017

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concept of landscape was taken even further with the adoption by the Council of Europe of the European Landscape Convention (elc) in 2000.7 The elc conceives of landscape above all as a people’s landscape, and provides for the active participation of the public in their planning and management.8 It also recognizes that landscapes have an ‘important public interest role in the cultural, ecological, environmental and social fields’, and that it is a ‘basic component of European natural and cultural heritage’.9 Being largely the initiative of the Council of Europe’s Congress of Local and Regional Authorities, the elc was borne out of a concern over the increasing degradation and fragmentation of Europe’s rural landscapes. As stated in Recommendation 40 on the draft European Landscape Convention, the demand for the elc derived from the ‘importance that Europe’s citizens attach to their environment (…), the fact that citizens have come to realise that the quality and diversity of many landscapes are declining (…) and that this is having an adverse effect on their everyday lives’.10 Furthermore, it was felt that ‘landscape should become a mainstream political project, since it plays an important role in the well-being of Europe’s citizens, for whom it is no longer acceptable that their surroundings are transformed by technical and economic changes in which they have no say’.11 Widely seen as a reaction to the damaging effects on European landscapes of the EU’s Common Agricultural Policy,12 the elc has 38 State Parties, 25 of which are EU Member States.13 The elc reflects a paradigm shift visible in heritage law, which places emphasis on the relationship between people and the place/practice/site they value, rather than on the idea of an ‘intrinsic’ value of heritage itself. For example, the Framework Convention on the Value of Cultural Heritage for Society (Faro

Landscapes: A unesco Flagship Programme 1992–2006’ (2006) 31 Landscape Research 333–335. 7 European Landscape Convention (adopted 20 October 2000) ets 176. Since August 2016, the elc has been officially renamed the Council of Europe Landscape Convention. See the Protocol amending the European Landscape Convention (opened for signature 1 August 2016) cets 219. As stated in the protocol, the aim of this amendment is essentially to promote European co-operation with non-European States who wish to implement the provisions of the Convention. For reference purposes it will still be referred to here as the European Landscape Convention. 8 Arts 5(c) and 6(d). 9 Preamble. 10 Congress of Local and Regional Authorities of Europe, ‘Recommendation 40 (1998) on the draft European landscape convention’ (27 May 1998). 11 Ibid. 12 Graham Fairclough and Stephen Rippon (eds), Europe’s Cultural Landscape: Archaeologists and the Management of Change (eac 2002) 6. 13 Malta has signed but not ratified; Germany and Austria have yet to do so.

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Convention) also adopts a more people-centred approach to heritage, and recognizes the link between heritage, human rights, and democracy.14 Just as the elc recognizes that landscape ‘entails rights and responsibilities for everyone’, the Faro Convention also recognizes that rights relating to cultural heritage are inherent in the right to participate in cultural life.15 These rights, however, relate to access and participation in the formulation of plans and policies, and not to justifiable rights in the sense that they can be used to challenge in court public decisions relating to landscape or cultural heritage.16 Given that they are heritage instruments, there is no complaint mechanism similar that which exists for cultural rights under certain instruments of international human rights law.17 14 15 16

17

Council of Europe Framework Convention on the Value of Cultural Heritage for Society (adopted 27 October 2005, entered into force 1 June 2011) cets 199. Art 1(a). This can be inferred from the explanatory reports of both conventions. ‘The right to cultural heritage is presented as the ability to be involved with the heritage, helping to enrich it or add to it, and also to benefit from activities linked to it’. Council of Europe, ‘Explanatory Report to the Framework Convention of the Council of Europe on the value of cultural heritage for society’ (14 October 2005) DGIV/DC-FARO (2005) 11 accessed 30 January 2019. Paragraph c of the same section makes clear that cultural heritage is viewed more as a responsibility of the State (within the State’s margin of appreciation in the public interest) than a justifiable right to challenge public decisions: ‘The clause approving a restriction on the exercise of rights and corresponding freedoms relies for its interpretation clearly upon the spirit and arrangements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Public interest considerations (see Article 5(a)), for example to protect important elements of the cultural heritage, must always be balanced against the need to protect individual property rights’. The explanatory report to the elc states, in relation to landscape, that ‘[t]he public is accordingly encouraged to take an active part in landscape management and planning, and to feel it has responsibility for what happens to the landscape’. Council of Europe, ‘Explanatory Report to the European Landscape Convention’ (20 October 2000) accessed 30 January 2019, para 36. Rights are not mentioned in the explanatory report. In particular, art 15 of the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3 (icescr) provides for ‘the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests from any scientific, literary or artistic production of which he is the author’. The recent optional protocol to the icescr provides for the consideration of complaints by ‘individuals’, ‘individuals in association with others’, and ‘groups’ with respect to rights enshrined in the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, unga Res A/RES/63/117 (10 December 2008). The communications procedure already existed for complaints related to the iccpr art 27, but art 27 refers only to minorities, not to everyone.

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The Impact of EU Agricultural Policy on European Cultural Landscapes

As previously mentioned, the EU’s Common Agricultural Policy (cap) has exerted perhaps the most substantial impact on European landscapes than any other area of EU policy.18 This was due to the focus of agricultural policy, in the early years of the cap, almost entirely on quantitative production and efficiency.19 At the end of the 1980s and early 1990s, however, structural funds were reformed and increasing attention was paid to the side effects of productive agriculture.20 A third phase for cap was outlined in Agenda 2000, where agriculture was linked to rural development and issues such as the environment, and landscapes were also taken into consideration (albeit to a lesser extent). They became eligibility criteria for the funds allocated to support agriculture.21 These changes were driven by the same concerns underlying the adoption of the elc: that cap was encouraging over-production, over-industrialization, and accelerating rates of change, leading to the loss of character of landscapes. While the environmental part of the changes in the cap agenda was significant, it was dominated by nature conservation, and not much attention was paid to the cultural heritage dimension of landscapes.22 Indeed much of the literature dealing with cap has focused on maintaining the rural character of the landscape, or ‘countryside’, and on alternative approaches to rural management and stewardship of the landscape from ecological perspectives.23 Rural 18 19 20

21 22

23

Fairclough and Rippon (n 12) 6. Council Regulation (eec) No 797/85 of 12 March 1985 on improving the efficiency of agricultural structures [1985] OJ L93/1, as modified, constitutes a good example of this approach. For example, Council Regulation (eec) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs [1991] OJ L198/1; Council Regulation (eec) No 2328/91 of 15 July 1991 on improving the efficiency of agricultural structures [1991] OJ L218/1, as modified; Council Regulation (eec) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs [1992] OJ L208/1. See, for example, Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (eaggf) and amending and repealing certain Regulations [1999] OJ L160/80. Fairclough and Rippon (n 12) 7; Jane Grenville (ed), Managing the Historic Rural Landscape (Routledge 1999); Franz Fischler, ‘The European Union’s Rural Development Policy: Protecting Our Heritage’ (2001) 95 Naturopa 20; David Stanners and Philippe Bourdeau (eds), Europe’s Environment: The Dobris Assessment (European Environmental Agency 1995). Council Regulation (eec) No 2078/92 of 30 June 1992 on agricultural production methods compatible with the requirements of the protection of the environment and the

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landscapes are of course cultural landscapes, in the sense that they represent the interaction of people and agricultural customs and practices over time. However, it should be noted that they represent only one aspect of the cultural dimension to landscapes in general. Other aspects, such as historical sites, intangible and associative landscapes, urban landscapes, or landscapes important for uses other than agriculture (such as, for example, rights of way on walking routes) fall outside the scope of agricultural reforms. 3

Cultural Landscape Protection in the EU?

The Treaty Establishing the European Economic Community (Rome, 25 March 1957)24 refers in Article 151 to a ‘common culture’, which can be understood to mean ‘shared’ … by more than one.25 The Lisbon Treaty (tfeu) elaborates on this by providing that the ‘Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’.26 The common cultural heritage of Europe implies that there is an obligation not only to preserve the cultural heritage, but to ensure a degree of public access to it.27 Article 167 also refers to the ‘dissemination of the culture and history of the European peoples’, which points to the democratization of culture. This objective was recognized by the European Commission as far back as the 1970s and is linked to the idea of cultural rights enshrined in Article 27 of the Universal Declaration of Human Rights and Article 15 of icescr.28 The right to participate in cultural life has also been considered an aspect of citizenship.29 The developments made in the field of cultural heritage law, particularly the elc and the Faro Convention, have clearly influenced the thinking concerning cultural heritage in recent EU policy documents. In a Communication by the Commission to the Parliament entitled Towards an integrated approach to cultural heritage for Europe, it was recognized that ‘[c]onservation is increasingly geared towards preserving and enhancing a whole cultural landscape rather

maintenance of the countryside [1992] OJ L215/85 established a clear relationship between agriculture and landscape 24 298 unts 11. 25 Rachael Craufurd Smith, Culture and European Union Law (oup 2004) 284. 26 Art 167 tfeu (ex art 151), para 1. 27 Smith (n 25) 285. 28 See n 17. 29 See Nick Stevenson, Culture and Citizenship (sage 2001).

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than an isolated site, and is also becoming more people-centred’.30 Cultural heritage is defined as ‘a shared resource’, and ‘a common good’ and it is acknowledged that ‘while heritage protection is primarily a matter for national, regional and local authorities, the EU has a role to play in line with the EU Treaties and in respect of the principle of subsidiarity’.31 The same document mentions ‘development priorities such as the empowerment of civil society in local governance, conflict resolution and human rights promotion’.32 Of significance here are the recent Conclusions on participatory governance of cultural heritage adopted by the ceu in 2014,33 which aside from reiterating some of the points made by the Commission in the above communication, as well as mentioning the Faro Convention as a point of reference, recognizes the importance of participatory governance in cultural heritage. It invites the Member States and the Commission to cooperate on issues related to participatory governance and, importantly for the present purposes, ‘to enhance cooperation with international organizations such as the Council of Europe and unesco to promote a participatory approach to cultural heritage governance’.34 This echoes Article 167(3) tfeu, which provides for cooperation with ‘competent international organizations in the sphere of culture, in particular the Council of Europe’. The role envisaged for the Commission in the field of cultural heritage is that of facilitator rather than standard-setter. The Commission is invited ‘to promote evidenced based research on the impact of participatory approaches in cultural heritage policies’ and ‘to continue dialoguing with civil society organizations’ in this regard.35 Landscape is clearly considered to fall within the scope of cultural heritage as conceived by the EU,36 and indeed certain projects funded within the Seventh Framework Programme (FP7) deal with cultural landscapes.37 Article 167 refers to incentive measures, but does not refer to the harmonization of laws and regulations of the Member States in this area.38 In addition, Article 167 states that action taken by the Union shall be 30

European Commission, ‘Towards an integrated approach to cultural heritage for Europe’ (Communication) com (2014) 477 final, s 1.3. 31 Ibid. 32 Ibid s 2.3. 33 Council conclusions on participatory governance of cultural heritage [2014] OJ C463/1. 34 Ibid para 26. 35 Ibid paras 27 and 28. 36 ceu, ‘Draft Council conclusions on cultural heritage as a strategic resource for a sustainable Europe’ [2014] 8892/14 cult 58, 2. 37 For example, the HERCULES project on Sustainable Futures for Europe’s Heritage in Cultural Landscapes . 38 Art 167(5) tfeu.

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aimed at encouraging cooperation between Member States, as well as supporting their actions in the ‘conservation and safeguarding of cultural heritage of European significance’.39 However, it is not clear what ‘European significance’ means in this context—unlike the Natura 2000 Network, there is no common network of protected areas for cultural landscapes (discussed in further detail below), and while projects dealing with cultural landscapes are supported and financed by the EU and cap now contains measures for the maintenance of rural landscapes, the Union does not have any specific policy with respect to cultural landscape protection per se. 4

Special Conservation Areas and the Natura 2000 Network

In contrast to cultural heritage, the environment is a specific area of competence for the EU and landscape is implicated in a number of environmental policies and directives, ranging from special areas of conservation protected under the Natura 2000 Framework to environmental impact assessment directives and more recently, the Aarhus package.40 Perhaps the legislation with the greatest conservation reach is Council Directive 92/43/eec on the conservation of natural habitats and of wild fauna and flora (more commonly known as the ‘Habitats Directive’), which complements the earlier Wild Birds Directive 79/409/eec. The Wild Birds Directive was the first nature protection law to be adopted at the European level. It protects all birds that are naturally occurring in Europe and aims to conserve the key habitats of threatened, vulnerable, or rare species, such as the golden eagle, the spoonbill, the Cyprus warbler, and migratory birds in general.41 The Habitats Directive extended protection beyond birds to include rare, threatened, or endemic plants and animals, as well as habitat types such as heathlands, peatbogs, and coastal meadows, 39 40

41

Art 167(2) tfeu. The decision to adopt the Aarhus Convention by the EU was adopted on 17 February 2005. See Council Decision No 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1. See also Commission of the European Communities, ‘Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters’ com (2003) 624 final, and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13. Kerstin Sundseth, Natura 2000. Protecting Europe’s Biodiversity (EU Publ Office 2008) 15.

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and therefore certain natural landscapes. Interestingly, the Habitats Directive was a somewhat delayed result of the obligations arising out of the Council of Europe’s Berne Convention on the Conservation of Habitats and Wildlife in Europe, which was ratified by the EU in 1982. The Natura 2000 Network was subsequently established to designate ‘special areas of conservation’ and ‘special protection areas’ across the EU.42 Over 25,000 sites have been included in the Network,43 affecting large tracts of the European landscape. In addition, the Network is not a system of strict nature reserves excluding all human activity. While it includes strictly protected nature reserves (including on privately owned land), it also includes much wider areas centred on people working or living together with nature. Under the Natura 2000 network, Member States formally designate the areas under national law in order to protect them from damaging activities. Under the Habitats Directive, specific assessment provisions are designed to help protect the EU’s richest concentrations of biodiversity from the threats posed by various plans and projects. The impact assessment provisions of the Habitats Directive are found in Article 6(3) which provides that: Any plan or project not directly connected with or necessary to the management of the site but likely to have significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications on the site in view of the site’s conservation objectives. In light of the conclusions of the assessment (…) the competent authorities shall agree to plan the project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. These provisions relate to the first step of a process governing the approval of plans or projects likely to affect sites making up the Natura 2000 network. In practice, the importance of the assessment provisions stems from the physical extent of the network and the network’s role in ensuring the long-term status of the EU’s biodiversity. The scope of the assessment here is both broader and narrower than Directive 85/337/eec (discussed below); broader because it refers to plans and encompasses all project types (instead of being limited to those listed in an annex), and narrower because it is solely concerned with 42 43

Council Directive 92/43/eec of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7, art 6. Sundseth (n 41) 21.

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impacts on nature, while environmental impact assessment directives include a cultural dimension within their scope of application. 5

Cultural Landscape Protection and Environmental Impact Assessment

Environmental Impact Assessment (eia) is a predictive tool created originally in the late 20th century in the United States, and is the product of many disciplines, particularly land-use planning and environmental sciences. It essentially amounts to a process of gathering information and using it in taking decisions likely to have an effect on the environment (which can include both cultural heritage and landscape). eia is therefore preventative in nature, as it seeks to minimize problems from the outset, rather than addressing them once they emerge. The initial Directive 85/337/eec of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (eia Directive) has been amended four times, with the most recent amendment having occurred in 2014 (Directive 2014/52/EU of 16 April 2014) following an extensive review process.44 The eia Directive requires not only the consideration of environmental factors, including human health, land, soil, water, and air, but also material assets, and cultural heritage and the landscape.45 The most recent amendment to the eia Directive specifies that ‘the protection and promotion of cultural heritage comprising urban historical sites and landscapes, which are an integral part of the cultural diversity that the Union is committed to respecting and promoting in accordance with Article 167(4) tfeu’, as well as the fact that the definitions and principles developed in relevant Council of Europe Conventions, in particular the European Convention for the Protection of the Archaeological Heritage of 6 May 1969, the Convention for the Protection of the Architectural Heritage of Europe of 3 October 1985, the European Landscape Convention of 20 October 2000, the Framework 44

45

Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L124/1 (eia Directive); Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30; and Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/eec on the assessment of the effects of certain public and private projects on the environment [1997] OJ L73/5. eia Directive, art 3(d).

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Convention on the Value of Cultural Heritage for Society of 27 October 2005 can be useful.46 However, despite referencing these instruments, the concept of landscape itself is narrowly construed to mean ‘view’ or ‘scenery’: ‘In order to better preserve historical and cultural heritage and the landscape, it is important to address the visual impact of projects, namely the change in the appearance or view of the built or natural landscape and urban areas, in environmental impact assessments’.47 Landscape, as defined in the elc and being well within the scope of the definition of cultural heritage in the Faro Convention, accounts for more than just the ‘appearance’ of a place.48 As previously mentioned, it also refers to the various relationships between people and place, as well as historical significance, which brings it closer to the notion of custom. A key requirement of these directives is that of integrating the prior environmental impact assessment with the decision-making process. An assessment is obligatory for projects listed in Annex 1 of the Directive, which are deemed to have a significant effect on the environment due to their nature, size, or location. They include public and private projects, such as, inter alia, long-distance railway lines, large airports, motorways, express roads, roads of four lanes or more, waste or water treatment plants, and other installations. Projects listed in Annex ii are not automatically assessed and are subject to an eia on a case-by-case basis. However, the eia Directive obliges all relevant national authorities, local authorities, and national courts to ensure that projects likely to have a significant effect on the environment (including the landscape) are subject to the assessment procedure.49 All of the information gathered from the developer through consultation and assessment must be taken into account in the planning approval process.50 The decision regarding the project must be a reasoned one and must include ‘a description, where necessary, of the main measures to avoid, reduce and if possible, offset the major adverse effects’.51 At this stage the eia may raise issues of substantive 46 47 48

49 50 51

Ibid para 16. Ibid (emphasis added). Art 2(a) of the Faro Convention defines cultural heritage as a ‘group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions’. Landscape, as defined by the elc in art 1(a), means an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors. eia Directive, art 2. Ibid art 8. Ibid art 12.

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c­ ompliance with other EU environmental legislation, such as effects on water quality, or habitats and species. Non-compliance can take two forms: either failure to carry out obligations under an eia—which can be challenged; or failure to properly carry out such obligations—which can lead to infringement proceedings by the Commission. The European Court of Justice (ecj) has confirmed that under certain circumstances, an individual is entitled to invoke before a national court the provisions of the eia Directive in relation to a failure to properly carry out an eia.52 It is possible for the Commission to suspend the payment of EU funds where no eia is undertaken for an EU financed project. It is also possible for the Commission to seek interim relief, i.e. to ask the ecj to halt a project being executed pending the completion of an eia. The first time the Commission resorted to this option was in 2007, in order to halt the construction of the Augustów and Wasilków bypasses through the Rospuda Valley in Poland (protected under the Habitats Directive and the Natura 2000 network).53 By contrast, in a case concerning the failure to properly carry out an eia in a cultural landscape arguably of European importance (in Ireland), infringement proceedings were initiated by the Commission but no further action was taken.54 This was due to the lack of any other form of protection at the European level for the cultural landscape in question, unlike the case of Rospuda Valley in Poland. During the 1990s, compliance with the eia Directive became a touchstone issue in environmental controversies concerning major projects across the EU, particularly in Member States undergoing a phase of rapid infrastructural development, such as Ireland, Spain, Portugal, and Greece. Among the environmental complaints submitted to the Commission and the European Parliament, the eia Directive was the most cited EU instrument.55 As a result of two reports carried out by the Commission on the implementation of the eia Directive,56 as well as the developing case law of the ecj and international developments, the eia Directive was amended in 1997, clarifying and 52 53 54 55 56

Case C-201/02 The Queen on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions [2004] ecr i-723. Case C-193/07 Commission of the European Communities v Republic of Poland (ecj, 18 April 2007). Case C-50/09 European Commission v Ireland [2011] ecr i-873. For an account of early implementation of the eia Directive, see Ludwig Kramer, Focus on European Environmental Law, vol 2 (Sweet & Maxwell 1997) 240–57. Commission of the European Communities, ‘Report from the Commission of the implementation of Directive 85/337/eec on the assessment of the effects of certain public and private projects on the environment and annex for the United Kingdom’ com (93) 28 final; ‘Directive 85/337/eec: Report’ (1997) accessed 30 January 2019.

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reinforcing a number of key provisions, such as those concerning the selection of individual projects required to undergo an eia. In 1999 and 2001, the European Commission published a series of guidelines to assist practitioners and other stakeholders on several aspects of the eia Directive.57 The influence of the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters resulted in the adoption of Directive 2003/35/EC, which amongst other things introduced provisions on public participation and access to justice in environmental matters. 6

eia and Access to Justice in Landscape Matters

While the elc provides for public participation in the ‘definition and implementation of landscape policies’ as well as ‘consultation’ in ‘identification and assessment’, the Aarhus Convention gives greater substance not only to the meaning of public participation, but also to the right to review procedures to challenge public decisions.58 Notably, landscape is specifically mentioned within the definition of environment in Article 3.59 Articles 6–8 of the Aarhus Convention identify three occasions for participation of the public: participation in decisions on specific activities; participation concerning plans, programmes, and policies; and participation during the preparation of executive regulations and/or generally applicable legally-binding regulatory instruments. Furthermore, parties to the Convention must ‘inform people of decisions taken on proposed activities of all kinds which are likely to affect them’ as well as ‘ensure that, when the final decision is taken on any proposed activity, the results of the public participation procedure are taken into consideration by the competent authorities’.60 The term ‘public’ in the Convention is given a broad meaning.61 This is extremely significant for landscape, as it involves not only 57 58 59 60 61

European Commission, Guidelines for the Assessment of Indirect and Cumulative Impacts as well as Impact Interactions. May 1999 (Office for Official Publications of the European Communities 2001). Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 unts 447. Ibid art 3(a). Wiecher Schrage, ‘La Convention sur l’accès a l’information, la participation du public au processus décisionnel et l’accès a la justice en matière d’environnement’ [1999] Revue juridique de l’environnement 5. Art 4 states that ‘the “public” means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups’. Art 2(5) states: ‘“The public concerned” means the public affected or likely to be affected

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the inhabitants or those directly affected by a planning decision, but also the wider public.62 Accordingly, the Aarhus Convention entitles ‘non-governmental organizations promoting environmental protection’ as having a sufficient ‘interest’ to be entitled to access to a review procedure before a court of law.63 The EU became party to the Aarhus Convention in May 2005.64 Already in 1990 the Council of the European Communities introduced Directive 90/313/eec on the freedom of access to information on the environment.65 On 24 October 2003 the Commission presented a Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters.66 This proposal was part of the Aarhus package, which also consisted of a proposal for a decision to ratify the Convention and another proposal for a regulation to apply the provisions of the Convention to EU institutions and bodies. In 2003, two Directives concerning the first and second pillars of the Convention were adopted: Directive 2003/4/EC of 28 February 2003 on public access to environmental information; and Directive 2003/35/EC of 26 May 2003 providing for public participation and access to justice in respect of certain plans and programmes relating to the environment.67 The rest of the Aarhus package proposal was adopted on 6 September 2006 in the form of Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies.68 It entered into force on 28 September 2006 and became applicable on 17 July 2007. This means that the provisions of the Aarhus Convention are now binding on all Member States. It is significant that the eia Directives specifically refer to landscape and cultural heritage within the scope of environmental factors, and that a key requirement of these directives is integrating prior assessment with the decision-making

62

63 64 65 66 67

68

by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’. Furthermore, public participation in the early stages of every landscape policy is a very ambitious objective. As noted by Luginbühl, although public participation is referred to in a number of texts, it is still a principle which is not strictly applied. See Council of Europe, Landscape and Sustainable Development (Council of Europe 2006) 48. Art 2(5). The decision on the conclusion of the Aarhus Convention by the EC was adopted on 17 February 2005. See Dec 2005/370/EC (n 40). [1990] OJ L158/56. com (2003) 624 final (n 40). Which amended, with regard to public participation and access to justice, Council Directive 85/337/eec of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 (amended by Dir 97/11/EC) and Dir 2001/42/EC (n 44). [2006] OJ L264/13.

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process. This means that Member States are bound legally to provide access to information, procedures for public participation, and possibilities for judicial redress for breaches involving landscape and cultural heritage. However, much will depend on the scope and definition of the latter within national law, as well as the nature of standing requirements in various jurisdictions. In Ireland, for example, standing requirements are narrowly interpreted, whereas in the Netherlands public interest proceedings are often entertained before national courts.69 The Charter of Fundamental Rights of the European Union provides for the right to information (Article 42), the right to be heard—essentially the right to participate (Article 41), and the right to an effective remedy and fair trial (Article 47). It also contains an article on environmental protection, providing that ‘a high level of environmental protection and improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’ (Article 37). Since the entry into force of the Lisbon Treaty in December 2009, the provisions of the Charter now have full effect for the Member States. Yet before landscape and the cultural heritage can become a sufficient basis on which to base a claim for judicial review, two things must happen, which also can greatly facilitate and indeed benefit from international cooperation with unesco and the Council of Europe. First, the concept of landscape and its interpretation within the context of environmental impact assessment must be developed. As it stands, the landscape component of an eia has often been neglected—it is only one component for consideration amongst many others, such as soil, water, air quality, archaeology, and as a result is hardly considered in the overall assessment.70 As pointed out by Sas-Bojarska, in the opinion of many experts, landscape is the least important element of the environment because it is not countable and undergoes only subjective assessments or visual impact assessments.71 According to Holder, there are some serious doubts about the ability of environmental assessment to draw the public into decision-making about ‘fairness’ 69 70 71

Berthy van den Broek and Liesbeth Enneking, ‘Public Interest Litigation in the Netherlands. A Multidimensional Take on the Promotion of Environmental Interests by Private Parties through the Courts’ (2014) 10(3) ulr 77. See, for example, Julie Martin Associates, Landscape Character Assessment (lca) in Ireland: Baseline Audit and Evaluation (Heritage Council 2006) 66. Aleksandra Sas-Bojarska, ‘Landscape Protection – The Challenge for Sustainable Planning’ 46th isocarp Congress 2010 accessed 30 January 2019. Sas-Bojarska carried out the Landscape Impact Study for the alternative route through the Rospuda Valley.

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in any meaningful way because of the technical and scientific nature of the procedure, which works to exclude dialogue with the public, the result being that landscape and ethical problems are not taken into account.72 Some components of eia will be given more weight than others, particularly habitats and species protection, as they benefit from an increased level of protection under the Birds and Habitats Directives.73 In addition, the latest elaboration of landscape within the consideration of eia relegates it, yet again, to a scenic interpretation. Second, although the EU has adopted the tenets of the Aarhus Convention (now part of eia), and although landscape and cultural heritage fall within the definition of environment, without a special network of cultural landscapes of European significance, comparable to the Natura 2000 Network, many important cultural landscapes will be open to abuses of power in the name of the general interest of society, as decided by the Member States. The Faro Convention defines a heritage community as consisting ‘of people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations’. At present this includes participation, but not access to justice, when breaches of eia concerning cultural landscapes occur. 7

The Protection of Cultural Landscapes in the European Court of Human Rights

Due to the lack of landscape cases before the ecj, and for the purposes of further interpretation, this section will briefly outline the case law of the European Court of Human Rights (ECtHR) dealing with cultural landscape issues. The European Convention on Human Rights and Fundamental Freedoms74 makes no reference to landscape, cultural heritage, or the environment in its text or protocols. However, rights to landscape (envisaged as either the right to use or access a landscape, or as ‘landscape protection’) can be indirectly protected through the Convention in a number of ways. First, the protection of other rights guaranteed in the Convention might require the safeguarding 72 73 74

Jane Holder, ‘Building Spatial Europe: An Environmental Justice Perspective’ in Joanne Scott, Environmental Protection: European Law and Governance (oup 2009) 123. All projects are subject to an eia. Furthermore, species and habitats are based on scientific criteria, not subjective or intangible values. Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14 (adopted 4 November 1950, entered into force 3 September 1953) ets 005.

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of a landscape of quality. This represents an indirect form of landscape rights. Second, the right to property might entail more than mere ownership, and include other usufructuary or customary rights, such as in the case of Indigenous Peoples. Third, the ‘general interest in a democratic society’ permits restrictions on the exercise of some rights and freedoms, such as the private right to property or those contained in Articles 8, 9, 10 and 11 of the Convention,75 in favour of upholding the rights of others to access or enjoy landscapes of value. In most cases in front of the ECtHR dealing with landscape, landscape ‘protection’ (as part of environmental, cultural heritage, and town planning measures) comes into conflict with other human rights, and is in fact the reason for the alleged violation. Such cases usually concern complaints by persons concerning restrictions on the use of their property, where the ECtHR (and formerly also the European Commission on Human Rights) has held that these restrictions are justified by the need to protect the environment, and as such are necessary in the ‘general interest’ or for the ‘protection of the rights and freedoms of others’. An early example of this was seen in the case of Herrick v the United Kingdom (1985), which involved a restriction on the use of a bunker owned by the applicant on the island of Jersey.76 The restrictive measure involved the refusal to grant an official permit authorizing her to own it as a summer residence. The Commission decided that the decision of the local authority was justified on the grounds of the ‘general interest’ in safeguarding a landscape of particular interest, a green zone reputed to be one of the most outstanding features on Jersey. In upholding the restriction, the Commission stated that ‘planning controls are necessary and desirable in order to preserve areas of outstanding natural beauty for the enjoyment of both the inhabitants of Jersey and visitors to the island’. Similarly, in the case of Kozacioğlu v Turkey, the Court upheld Turkey’s conservation policies against the private claim of the owner of a property in a zone of historical and archaeological significance.77 The Court considered ‘that the protection of a country’s cultural heritage is a legitimate aim capable of justifying the expropriation by the state of a building listed as “cultural property”’, and further stated that ‘the conservation of the cultural heritage and, where appropriate, its sustainable use, have as their aim, in addition to the maintenance of a certain quality of life, the preservation of the historical, cultural and 75 76 77

Maguelonne Déjeant-Pons, ‘L’insertion du droit de l’homme à l’environnement dans les systèmes régionaux de protection des droits de l’homme’ (1991) 3 Revue universelle des droits de l’homme 461. App no 11185/84 (1985) 42 DR 275. Kozacioğlu v Turkey App no 2234/03 (ECtHR, 19 February 2009).

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artistic roots of a region and its inhabitants’.78 In the case of Depalle v France,79 which concerned the protection of coastal zones for public use and enjoyment, the Court held that the State’s interference with the applicant’s right to property was in pursuance of a legitimate aim in the general interest: to promote unrestricted public access to the shore. The Court recognized the State’s wide discretion in issues concerning regional planning and environmental conservation policies where the community’s general interest was pre-eminent. In these cases, rights to landscape (conceived as right to the protection of natural and cultural spaces) were viewed by the Court as a pre-eminent concern, and that it was well within the scope of the State’s margin of appreciation to override other individual rights and freedoms. In a way, they represent the triumph of public rights to landscape protection over private rights to property. At the same time however, in these cases the question of landscape only enters the realm of the Court’s reasoning in an indirect way—that is, as an external factor which impinges on the right or freedom in question. The applicants’ claims were not based on the notion of a right to landscape. The second type of landscape cases to come before the ECtHR involve claims brought by ethnic minorities, such as the Roma or Irish Travellers, concerning their use and access to landscapes for dwelling purposes. Here rights to landscape are in a sense the object of the applicants’ claim, but their claims often come into conflict with established landscape protection measures, thereby creating two different forms of landscape rights in direct conflict with one another: landscape preservation vs landscape use. This conflict has been evident in a number of cases before the Court. In the case of Chapman v the United Kingdom,80 the applicant alleged that planning and enforcement measures against her occupation of caravans violated her right to respect for her home and private and family life (Article 8). She complained that the restrictions also entailed an interference with the peaceful enjoyment of her possessions (Article 1, Protocol 1), and that she suffered discrimination contrary to Article 14 of the Convention. The land in question was a designated ‘Landscape Conservation Area’ within a Green Belt zone. The applicant sought planning permission and was refused on the grounds that the occupation of her land was ‘detrimental to the rural character’ of the area. The Court found that the interferences did not constitute a violation of her rights under the Convention, and that the decision of the local authorities was ‘necessary in a democratic society’. A similar ruling was reached in the case of Buckley v the 78 79 80

Ibid 53. App no 34044/02 (ECtHR, 29 March 2010). App no 27238/95 (ECtHR, 18 January 2001).

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United Kingdom,81 whereby the applicant, a member of the Roma community, was refused planning permission for three caravans on the grounds that the planned use of the land would detract from the ‘rural and open quality’ of the landscape. In a dissenting opinion, Judge Pettiti stated that the government’s approach in this case was to give ‘priority to protection of the landscape over respect for family life’. In these cases, we see a similar line of reasoning by the Court as in the set of cases examined above, even though the upholding of restrictions in the general interest may not necessarily respect the interests of those of a different cultural or ethnic identity. The third type of landscape cases to come before the ECtHR involve Indigenous Peoples’ claims, and these focus on the right to use certain lands or protect them from destructive development, rather than to acquire title in the lands in question. In relation to Indigenous land rights, however, the ECtHR has adopted a conservative stance. First, many cases involving Indigenous rights to landscape have been dismissed by the Court for procedural issues (for example, Könkämä and 38 other Sami villages v Sweden; Hingitaq 53 and Others v Denmark).82 Second, in cases that have been held admissible, the burden to prove ancestral occupation or customary use is often onerous. For example, in an early case before the European Commission, G and E v Norway,83 two Sami applicants claimed that the construction of a hydroelectric dam authorized by Norway violated their property rights because the dam caused the loss of part of what they considered to be their traditional lands. According to the Commission, the applicants could not provide sufficient proof of their precise connection with the flooded land, and hence the Commission found that they had not established any property rights over the site of the dam and were not entitled to compensation. Indeed, the Commission appeared quite resistant to the idea that ‘traditional use’ of the land by the Sami (for hunting, fishing, and reindeer grazing) could be interpreted as ‘possession’ within the meaning of the Convention. However, it was prepared to admit that the dam could affect their traditional way of life in the area in a way that triggered the application of Article 8 (right to family and private life). Interestingly, the Commission later reversed its view on ‘possession’ by stating, in relation to another case, that Sami hunting and fishing rights could be ‘regarded as possessions within the meaning of Article 1 Protocol 1 of the Convention’.84 In a more recent case 81 82 83 84

App no 20348/92 (ECtHR, 29 September 1996). Könkämä and 38 other Sami villages v Sweden App no 27033/95 (Commission Decision, 25 November 1996); Hingitaq 53 and Others v Denmark echr 2006-i 345. App no 9278/81 & 9415/81 (joined) (Commission Decision, 3 October 1983). Könkämä (n 82).

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involving an Indigenous right to access landscape, Handölsdalen Sami Village and Others v Sweden,85 the Court was asked to rule on the admissibility of winter grazing. The case was brought because the Sami applicants had lost their case in Swedish courts seeking to have their traditional winter grazing rights recognized on land belonging to private parties. The applicants argued that this violated their rights under Article 1 Protocol 1. However, the Court found that the right to access private property for the purposes of reindeer grazing had no basis in law and was inadmissible. In her dissenting opinion, Judge Ziemele referred to the developments in international law concerning Indigenous rights and challenged the Court’s decision. Other authors have criticized the ECtHR for its conservative approach to Indigenous land rights cases.86 This stands in contrast to the approach of the Inter-American Court and Commission, which have elaborated a significant case law recognizing Indigenous customary rights to lands despite lack of title.87 What these cases illustrate is that the ECtHR is rather conservative in the realm of rights to landscape, except when those rights entail landscape protection or preservation in the ‘general interest of society’. This implies two things: first, landscape protection, as decided by local authorities, is considered important enough to be within the State’s margin of appreciation to override other rights and freedoms. Yet this is still a negative form of protection, meaning that landscape preservation was not the aim of the applicants, but the problem. Second, non-traditional forms of property rights, such as rights of use or access, are not seriously considered by the Court, neither in the case of minorities nor Indigenous peoples. Part of the reason is due to the lack of any specific mention of cultural rights in the Convention, in addition to the fact that the right to property does not have collective but rather individual connotations,88 and 85 86 87

88

App no 39013/14 (ECtHR, 30 March 2010). See, for example, Ghislain Otis and Aurélie Laurent, ‘Indigenous Land Claims in Europe: The European Court of Human Rights and the Decolonization of Property’ (2013) 4 Arctic Review on Law and Politics 156. See, for example, Maya Indigenous Community of the Toledo District v Belize, Case 12.053, Report No 40/04, Inter-American Commission of Human Rights, oea/Ser.L/v/ii.122 Doc 5 rev 1 (2004) 153, 194; Case of the Xákmok Kásek Indigenous Community v Paraguay, Judgment, Inter-American Court of Human Rights Series C No 214 (24 August 2010); Case of the Saramaka People v Suriname, Judgment, Inter-American Court of Human Rights Series C No 172 (28 November 2007) para 88; Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment, Inter-American Court of Human Rights Series C No 79 (31 August 2001). Unlike the Inter-American Court of Human Rights, which has developed quite a progressive jurisprudence on the collective dimension to property in relation to ancestral and customary lands (n 87). For a greater discussion of this case law in relation to cultural

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is restricted to the enjoyment of one’s possessions, despite the Commission’s pronouncement that it can also include hunting and fishing rights. Ultimately, the relevant case law shows that cultural landscape protection in the context of the European Convention on Human Rights is: (a) a matter of national competence; and (b) still retains a scenic or preservationist meaning, rather than connoting a relationship (of use/practice) between people and a place over time. The ECtHR has on occasion referred to instruments of the Council of Europe dealing with cultural heritage (as the European Commission has done in its policy documents), but only in the context of upholding the rights of States to interfere with individual rights and freedoms in favour of the general interest, not in relation to any of the rights contained in the Convention itself. Lastly, standing is also an issue before the ECtHR. In cases where applicants have tried to argue for a right to landscape protection, they have largely been dismissed due to lack of locus standi and lack of identifiable victims.89 8

Concluding Remarks

This Chapter has analysed the protection of cultural landscapes in the EU. It has shown that while there is no specific policy in relation to cultural landscapes, other areas of competence such as agriculture, and more importantly environmental protection, do contain measures which favour cultural landscape protection. In particular, EU law on environmental impact assessment includes consideration of the effects of certain projects on not only environmental elements, but also on cultural heritage and the landscape. In addition, recent policy documents acknowledge that ‘conservation is increasingly geared towards preserving and enhancing a whole cultural landscape rather than an isolated site, and is also becoming more people-centred’.90 However, despite the influence of recent Council of Europe treaties on EU policy documents and the most recent amendment to the eia Directive, the conceptualization of landscape remains a rural, scenic one—emphasizing natural values over cultural ones, i.e. not connoting the various ways in which people interact

89 90

landscapes, see Amy Strecker, Landscape Protection in International Law (oup forthcoming). This collective interpretation of property brings it closer to its earlier etymological origins, when property constituted more than abstract title and also referred to the mutual relationship between the owner and the owned. For a broader discussion on the early legal etymology of property, see Nicole Graham, Lawscape: Property, Environment, Law (Routledge 2010). See, for example, the case of Kyrtatos v Greece echr 2003-vi 257. com (2014) 477 final (n 30) s 1.3.

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with and relate to cultural landscapes. This is evidenced by the equation of landscape with ‘view’ in the recent eia Directive, the emphasis on maintaining the rural scenic quality of agricultural landscapes in the cap, and on the emphasis placed on nature and habitats protection within EU environmental law. Interestingly, this is mirrored in the case law of the ECtHR dealing with landscape issues, which also confirms that: (a) cultural landscape policy is a matter of national competence; and (b) it still retains a scenic or preservationist meaning, rather than connoting a relationship (or use/practice) between people and a place over time. The ECtHR has on occasion referred to instruments of the Council of Europe dealing with cultural heritage (as the European Commission has done in its policy documents and environmental law), but only in the context of upholding the rights of States to interfere with individual rights and freedoms in favour of the general interest in landscape protection, not in relation to any of the rights contained in the Convention itself.91 Lastly, standing is also an issue before the ECtHR. In cases where applicants have tried to argue in favour of landscape protection by articulating it in human rights terms, their cases are almost always dismissed due to lack of locus standi and lack of identifiable victims.92 Likewise in the context of access to justice for breaches of environmental impact assessments, narrow standing requirements at the national level, coupled with the marginal status of cultural heritage and landscape within the eia Directive, means that accessing justice for breaches relating to cultural landscapes remains tenuous. Bearing this in mind, two areas of action could contribute to improving the protection and governance of cultural landscapes at the European level: first, future funds need to be allocated to evidenced-based cultural landscape research, including those disciplines and civil society organizations concerned with the cultural dimension to landscape (conceived as both the historical dimension and the intangible dimension relating to use and practice);93 second, there needs to be some policy action in order to properly protect and promote ‘cultural heritage comprising historical sites and landscapes’.94 Although cultural heritage is not perceived to be within the competence of the Union, it nevertheless falls within the area of the environment, and this o­ ffers some scope for elaborating the content of landscape, both in relation to its 91 92 93

94

See ns 76–9. See, for example, the case of Kyrtatos (n 89). While cultural geography and anthropology are included within the HERCULES project on Sustainable Futures for Europe’s Heritage in Cultural Landscapes, much of the project consortium is focused on natural sciences and the rural dimension of landscape: . Dir 2014/52/EU (n 44) para 16.

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s­ ignificance within an eia, as well as in the creation of a possible network for cultural landscapes similar to the Natura 2000 Network. Importantly, the Conclusions on participatory governance of cultural heritage, adopted in 2014,95 invite the Member States and the Commission ‘to enhance cooperation with international organizations such as the Council of Europe and unesco to promote a participatory approach to cultural heritage governance’.96 This echoes Article 167(3) tfeu, which provides for cooperation with ‘competent international organizations in the sphere of culture, in particular the Council of Europe’. A network of cultural landscapes would complement the existing Natura 2000 network, as well as the World Heritage Convention and Council of Europe Treaties, while also being well within the competence of the EU as outlined in Article 167. Lastly, it would bolster the level of protection afforded to cultural landscapes across the Member States, and provide clearer channels and standing for judicial review when abuses of power occur.

95 Council conclusions on participatory governance of cultural heritage (n 33) s 2.3. 96 Ibid.

Chapter 16

Digitization: Towards a European Cultural Heritage Ewa Manikowska 1

The New Renaissance: The Quest for the EU’s Cultural Identity and Cultural Primacy

The European Community (EC) began to show an interest in culture and technology in its Fifth Framework Programme for Research and Technological Development (1998–2002). The eEurope 2002: An Information Society for All, endorsed at the Feira European Council in 2000, identified the need to coordinate digital heritage projects at both the national and European levels.1 Having that end in mind, the EC commissioned the Technological Landscapes for Tomorrow’s Cultural Economy: Unlocking the Value of Cultural Heritage (DigiCULT) study, which aimed to provide a ‘roadmap’ for navigating the ­political, organizational, and technological challenges faced by European museums, libraries, and archives in the period 2002–06.2 The turning point in the discussion on the role played by the new internet technologies in preserving, providing access, and managing cultural heritage from an EU perspective took place in 2005 in the ‘Digital Library Letter’ of Jacques Chirac and the Prime Ministers of five other Member States addressed to the President of the European Commission. The idea proposed—to create a European Digital Library—was materialized in 2008, and fully put into motion in 2010.3 In parallel, wider digitization aims and paths were established and explained in two Commission Recommendations on the digitization and online accessibility of cultural material and digital preservation (2006/585/EC4 and 2011/711/EU5), which strongly influenced the Member States’ policies and their relative expenditures. 1 Commission of the European Communities, ‘eEurope 2005: An information society for all. An Action Plan to be presented in view of the Sevilla European Council’ (Communication) com (2002) 263 final. 2 See Bernard Smith, ‘Digital Heritage and Cultural Content in Europe’ (2002) 54(4) Museum International 41. 3 Dušan Miletić, ‘The Political Background of Europeana.eu Portal’ (2010) 2(1) Sintesis 131. 4 Commission Recommendation of 24 August 2006 on the digitisation and online accessibility of cultural material and digital preservation (2006/585/EC) [2006] OJ L236/28. 5 Commission Recommendation of 27 October 2011 on the digitisation and online accessibility of cultural material and digital preservation (2011/711/EU) [2011] OJ L283/39. © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004365346_018

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The general framework of the European digitization policy and approach to cultural heritage is based on a 2010 report commissioned by Neelie Kroes, the then European Commission Vice-President for Digital Agenda to a high-level reflection group, the Comité des Sages, comprised of the director of one of the EU’s largest national libraries (Elisabeth Niggemann, the general director of the Deutsche Nationalbibliothek), a Belgian writer and publicist (Jacques De Decker), and a Moroccan-French businessman in a multinational advertising and PR company (Maurice Lévy, the IT director of Publicis). The report, entitled The New Renaissance, symbolically refers to the bloom of European art and sciences and provides a programme aimed not only at giving new life to the cultural heritage kept in European museums, libraries, and archives, providing for both their preservation and access, but also at the re-establishing of Europe’s symbolic prestige, cultural status, and economic influence both at home and abroad.6 The idea of creating a virtual European library, which marks the kick-off of a European digitization strategy, was actually inspired in great part by the Google Books project. In announcing a digital universal library of the world of knowledge on 14 December 2004, the multinational company headquartered in the US had the ambitious aim of digitizing—in the time-span of six years—the astonishing number of 15 million out-of-print books.7 Google Books was not the first digital library (to name just one, the Project Gutenberg was ­founded by Michael S. Hart as early as 1971), but with its ambitious scope of digitizing the world’s book holdings as a whole it was the first to give digitization a truly global reach. The participation of such prominent academic and library institutions as the New York Public Library and the universities of ­Harvard, Stanford, Oxford, and Michigan guaranteed the feasibility and authority of Google’s apparently utopian and perhaps unachievable plan. It should not come as a surprise that Jean-Noël Jeanneney, the then-director of the French National Library, a renowned institution in microfilming library holdings, took Google’s initiative as a challenge to Europe. His article When Google Challenges Europe8 was published in ‘Le Monde’ and inspired French President Jacques Chirac to launch a competitive project and to give it a European breadth. The letter which postulated the creation of a European digital library, already mentioned above, is considered as the ‘foundation stone’ of the European digital 6 European Commission, The New Renaissance. Report of the ‘Comité des Sages’ on Bringing Europe’s Cultural Heritage Online (EU Publ Office 2011) accessed 31 January 2019. 7 Jean-Noël Jeanneney, Google and the Myth of Universal Knowledge: A View from Europe (University of Chicago Press 2005) 3. 8 Ibid 8.

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approach to cultural heritage. José Manuel Barroso, the then-President of the EC, responded positively to the letter from the six Heads of the State and Government, and the following year Recommendation 2006/585/EC was adopted by the EC, and in 2007 the resolution on ‘i2010: towards a European Digital Library’ was issued.9 Thus, from its beginnings, the EU digitization policy has been based on the idea of a pan-European cultural heritage. Moreover, already at its origins it was framed in a global perspective. Indeed, there is a sense of competitiveness, a need to manifest Europe’s primacy and superiority underlying the idea of cultural heritage as defined in the EU’s digitization strategy. This is clearly expressed in the ‘Digital Library Letter’: The heritage of the European libraries is of an incomparable richness and variety. It reflects the universalism of its content, which through the ages has inspired the rest of the world. If such heritage will remain undigitised and not accessible online, tomorrow it might lose the place that it occupies in the geographies of knowledge.10 Thus, Europe’s competitiveness was and still is framed not only in the eco­ nomic context, but also in the cultural and symbolic one. The Google Books Project was launched by a private multinational company and its challenge was viewed as coming from the ‘other side of the Atlantic’. In the wake of Google’s announcement that it would digitally scan books from the collections of five major research libraries and make them searchable online, Jeanneney warned of ‘the risk of a crushing domination by America in the definition of the idea that future generations will have of the world.’ The European digital library was thus a response to the blooming digitization industry in the realm of cultural heritage in the US and in such world powers as China and India. It is not surprising that at the same time another digitization project of a global reach, the Million Book, was announced. Carried out by the Carnegie Mellon University (sponsored by the American National Science Fund), it involved the governments and research partners in India, China, the US, and several European institutions in the creation of yet another ambitious universal library. 9

10

See the timeline and links to documents: European Commission, ‘Timeline of Digitisation and Online Accessibility of Cultural Heritage’ (23 July 2014) accessed 31 January 2019. Ibid, letter by Jacques Chirac and others to José Manuel Barroso, 28 April 2005.

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Accessibility and Participation: New-Old Ways of Creating a European Cultural Heritage

One of the main aims of the digitization of Europe’s cultural heritage, as expressed in The New Renaissance, is to ‘make it accessible to the greatest number of people without distinction or barrier.’11 In the Commission Recommendation 2011/711/EU, the target group is further specified as ‘the citizens throughout Europe’. Thus, the EU digitization programme resembles, in its ambitious aim to create a large pan-European accessibility, one of the oldest and wellestablished EU cultural initiatives: the European Heritage Days (ehd). This joint initiative of the Council of Europe and the EC, conceived as early as 1985 and launched in 1991 with all the 50 signatory States of the European Cultural Convention, is a cyclic event, boasting the largest participation among the EU cultural programmes.12 It is estimated that each year in September, within the time-span of a few days and under the heading of ehd, around 20 million individuals from the participating countries visit numerous, often inaccessible, sites and monuments which are opened freely to the public, and take part in various heritage events (festivals, guided tours, etc.). Thus, the ehd are considered as the most widely celebrated participatory cultural event shared by Europeans. From the beginning, the EU agenda for the digitization of cultural heritage has been based on the idea of a common European digital platform. Launched in 2007 as Europeana and, since then, successively enlarged and improved, it gives a clear European dimension to the various digitization projects pursued by the Member States.13 With its stress on free-of-charge accessibility, its use of the increasing number of available internet tools, as well as their year-round activities, the EU cultural heritage digital programmes should theoretically be able to boast a much larger participation of individuals than the ehd and, indeed, its reach should be considered not only in the European borders. However, looking at the statistics of Europeana viewers, the numbers seem on their face disappointing: ca. 7 million views in 2014 and 8 million views in 2015.14 But a closer look is required to put the numbers in perspective. 11 12 13

14

European Commission, The New Renaissance (n 6) 1. See accessed 4 February 2019. Jon Purday, ‘Think Culture: Europeana.eu from Concept to Construction’ (2009) 27 The Electronic Library 919. For more on Europeana, see Bjarki Valtysson, ‘EUROPEANA: The Digital Construction of Europe’s Collective Memory’ (2012) 15(2) Information, Communication and Society 151; Elizabeth Stainforth, ‘From Museum to Memory Institution: The Politics of European Culture Online’ (2016) 14(2) Museum & Society 328. See Europeana statistics accessed 30 January 2019.

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The EU digital project is conducted through individual institutions and its output is provided online in the first place by the institutions or the appropriate national digital platforms (aggregators). Europeana acts as the main aggregator: access to digital objects is always performed through the provider’s site or database. Thus, analysis of the impact of the EU digital project by focusing on the statistics of the individual institutions and national platforms provides a very different picture. There are no such statistics for all the EU Member States, however a large number of institutional and national aggregators carefully monitor their own viewers. By way of example, POLONA (the digital platform of the Polish National Library) noted ca. 5 million visitors in the time-span of just January-March 2015.15 The Rijksstudio—an innovative digital application launched in 2013 which makes a large share of the Rijksmuseum in Amsterdam collection available online—can boast of 260,000 permanent, truly involved users; moreover the statistics show that this number is constantly increasing.16 The German Digital Library (Deutsche Digitale Bibliothek), a national aggregator launched in 2012, which makes the museum, archival, and library film collections digitized by more than a hundred German institutions available online, noted ca. 3.6 million visitors only in the first few days after its inauguration.17 Needless to say, the collections available online of the individual European museums, archives, or library institutions are the primary focus of national interest in the first place. Viewed in this light, the European digital project does not differ much from the ehd. The events organized within the framework of the ehd are usually of a national and local character and attract the attention of the local individuals in the first instance. Accordingly, ‘the Europeanism’ of the ehd consists in the simultaneous Europe-wide celebration of the event,18 in their European ‘logo’, and in their focus on specific subjects and issues, which 15

16

17 18

See ‘Kultura Dostępna. Konferencja prof. Małgorzaty Omilanowskiej, minister kultury i dziedzictwa narodowego z udziałem dyrektora BN’ (Biblioteka Narodowa, 19 March 2015) accessed 31 January 2019. See ‘Redesigned Rijksstudio: Ready for the Mobile Era’ (Rijksmuseum, 14 June 2016) and Peter Gorgels, ‘Rijksstudio: Make Your Own Masterpiece!’ (Museums and the Web 2013, 28 January 2013) accessed 31 January 2019. See ‘German Digital Library Goes Live’ (Deutschland, 20 December 2012) accessed 31 January 2019. Oriane Calligaro, ‘EU Action in the Field of Heritage’ in Marloes Beers and Jenny Raflik (eds), Cultures nationales et identité communautaire: un défi pour l’Europe? (Peter Lang 2010) 92.

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vary from year to year.19 Importantly, the idea of ehd was modelled on already on-going national events,20 and has inspired similar initiatives organized and celebrated at only the national level on different days.21 Europeana, with its catchy name and logo, should thus be considered as a similar European-wide aggregator as the ehd. The success of both the ehd and of digitization as prominent EU strategies in the realm of cultural heritage are thus grounded in similar strategies, means, tools, and ideas, applied in parallel at the national, regional, and institutional levels. 3

Accessibility and Participation. The EU Legal Framework

The main goal of the Commission Recommendation 2011/711/EU is the full digitization of all cultural heritage kept in the public institutions of the Member States. With its focus on the online accessibility of all public heritage resources, the Recommendation reflects wider aspects of the EU cultural heritage policy and objectives: protecting and promoting cultural diversity and the right to participate in cultural life; facilitating fair and equitable access to cultural resources; and promoting cultural participation. Directive 2013/37/EU amending Directive 2003/98/EC on the re-use of public sector information harmonizes the differences in rules and practices between the Member States with respect to the exploitation of public cultural heritage resources.22 Addressed to public museums, libraries, and archives, it aims at ensuring a greater access to such resources through digital means and calls upon the Member States to supply the marginal costs for such practices. Still, the current legislation (EU, national, and international agreements) assumes that cultural material should be digitized and made available online only under the condition that it is in the public domain or after obtaining the copyright from the right-holders. This makes access to large sections of cultural heritage (i.e. cinematographic material, 20th-century literature) problematic and often very 19 20 21 22

By way of example, the 2017 ehd were dedicated to nature and the human environment. In particular the Journée Portes ouvertes des monuments historiques launched by the French Ministry of Culture in 1985. A good example is the Giornate del Fondo Ambiente Italiano di Primavera, organized yearly in May and launched in Italy simultaneously with the ehd (1992), which can boast of a similar, or even greater, interest on the part of visitors. Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information [2013] OJ L175/1.

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expensive. Thus, apart from financial and infrastructural restrictions, which vary between the Member States, one of the greatest obstacles in achieving the goals of the Commission Recommendation 2011/711/EU lies in the lack of licensing solutions for out-of-commerce but copyright-protected works with indeterminate or uncontactable owners (so-called ‘orphan works’). In order to deal with, at least partially, the problems raised by copyright issues, in 2012 the European Parliament adopted the Directive on certain permitted uses of orphan works by cultural heritage institutions.23 As the recent research project titled ‘Enhancing access to 20th Century cultural heritage through Distributed Orphan Works clearance’ (EnDOW) has shown, despite the fact that Directive 2013/37/EU has been implemented almost literally in all of the 20 surveyed Member States, it still had not brought about the desired effects.24 In fact, determining the right-holders requires a diligent search, which is time-consuming, costly, and often impossible to achieve. Thus, as of today only 10,000 orphaned works are registered in the Orphaned Works Database run by the European Union Intellectual Property Observatory.25 The EnDOW project is elaborating a harmonized and simplified research methodology applicable in all the EU heritage institutions. Its application might improve the digitization process vis-à-vis orphaned works. However, this still seems only a half-measure, and reform of the EU copyright legislation so as to enable more European heritage collections to be available online seems indispensable. This means a revision of the provisions of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society26 (2001 InfoSoc Directive), which harmonized copyright and related rights in the EU. The 2001 InfoSoc Directive related to the issue of orphaned works has turned out to be inadequate, outdated, and does not meet the present-day digitization tasks of cultural heritage institutions. According to that Directive, such institutions are allowed to publish for viewing (but not for distribution) works for which a ‘due-diligence search’ of the rightful owners did not bring about any outcome. In 2015 the first European Parliament evaluation report of the 2001 InfoSoc Directive was issued,27 followed by an open letter addressed by

23 24 25 26 27

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works [2012] OJ L299/5. See accessed 3 February 2019. See accessed 3 February 2019. [2001] OJ L167/10. Julia Reda, EU Copyright Evaluation Report accessed 3 February 2019.

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29 directors of major European heritage institutions to the then Budget and Human Resources Commissioner, Günther Oettinger.28 Both were written in view of the pre-announced proposition of the Commission to reform the European copyright rules as part of the strategy to create a European single digital market. The copyright reform proposal, presented by the Commission in September 2016, has however given rise to many controversies. The draft has been accused of not presenting a clear vision, nor the right solutions to copyright problems in the digital age. In particular, the abandonment of the initial idea of a Digital Single Market, as well as the scant attention paid to protecting and expanding the public domain, were the most prominent objections.29 Its detailed provisions, including those related to the issue of Orphaned Works, were also criticized by museum and library professionals. The Europeana network has, in the name of European heritage institutions, called for a clear and simplified legislative package and proposed to add a clearly-defined exception to allow cultural heritage institutions to make both out-of-commerce and neverin-commerce works in their collections available online for non-commercial purposes.30 In 2012, the French parliament adopted a regulation which allowed for the publishing of digital editions of orphaned 20th-century out-of-print books. This was a regulation addressed to the French National Library, the institution entrusted with registering the works in question in a special database and of granting 10-year copyrights to publishers for their digital republication.31 The re-issuer was obliged to pay a fee of 15% to 20% of the sales revenue to SOFIA, a special agency established in order to administer the copyrights to the orphaned works and to search for the copyright holders (authors and editors) and pay them the copyright fee. The regulation provided that copyright holders could claim their copyrights within a 6-month time frame from the moment of the database entry of the work in question. If the claim was made by a publisher—it was automatically obliged to republish the work in q­ uestion 28

29 30 31

See Jill Cousins, ‘Open Letter on Copyright Reform for Online Access to Cultural Heritage’ (27 October 2015) accessed 3 February 2019. Paul Keller, ‘Europeans Deserve a Better Copyright Reform’ (Communia, 14 September 2016) accessed 3 February 2019. ‘Commission Proposal on Copyright in the Digital Single Market Library and Cultural Heritage Institution Responses’ accessed 4 February 2019. In the framework of the ReLIRE project. See accessed 4 February 2019.

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within a two-year time frame. From the beginning, the new legislation was strongly criticized by authors and editors as a violation of intellectual property rights. In 2013, a group of authors and editors went to court against the French Prime Minister and the French Minister of Culture. The case eventually ended up in the European Court of Justice, which in December 2016 declared that the republishing of works without previously obtaining the copyright violated the InfoSoc provisions, among others, and that it was illegal.32 This recent case demonstrates very well the urgency and importance of obtaining a new EU directive on copyrights, which takes into account the recent changes brought about by digitization and by the current EU cultural heritage policy. While digital access to public domain works is becoming more and more free, meaningful, and innovative, a large portion of cultural heritage preserved in the EU cultural institutions remains inaccessible through digital means. 4

Digitization, Cultural Heritage, and European Integration

From its very inception digitization has been seen as an important means of European integration and of consolidating the cultural heritage of the EU Member States. Jeanneney, in his above-mentioned article calling for taking up the Google challenge, clearly referred to the then-recent European Constitution referendum defeats in France and the Netherlands arguing: Some members seem to harbour the idea that a great shared cultural project, although not repairing the damage done by the No votes – would mean that there was still hope for progress, particularly in the realm of culture, where cooperation has been historically difficult.33 The idea of digitizing the cultural heritage in various European libraries (and later also museums and archives) and making it accessible to all online by means of a common European digital platform was realized a few years later, when a consensus over the co-financing and co-guidance of an all-European digitization programme was achieved among the Member States. While initially Europeana was based primarily on the contributions of those Member States which had already successfully implemented digitization programmes

32 33

Case C-301/15 Marc Soulier and Sara Doke v Premier ministre and Ministre de la Culture et de la Communication [2016] ECLI:EU:C:2016:878. Jeanneney (n 7) 13.

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and strategies (in 2009 47% of the Europeana content came from France),34 nowadays the contributions of the individual Member States are more even.35 The formulation of digitization as a tool and means for implementation of EU cultural heritage policy took place at the time of the 2004 enlargement of the Union and was also used as a tool in the integration of the new Member States (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia, Malta, and Cyprus). The 2005 ‘Digital Library Letter’ bears the signatures of Aleksander Kwaśniewski and Ferenc Gyurcsány, President of Poland and Prime Minister of Hungary respectively; two States which had just joined the EU. While digitization was already commonplace in the public cultural heritage institutions of several among the most developed Member States (France, the Netherlands, Sweden) at the time of the drafting of the first Commission Recommendation, in the former Eastern Bloc countries it still constituted a novelty. The two progress reports on the implementation of the Commission Recommendation 2011/711/EU (for the years 2011–13 and 2013–15 respectively) show that in the new Member States the launch and progress of the Commission’s recommendations was (and in some cases still is) made possible mainly thanks to the EU structural funds. Both reports have shown that in the case of Poland, Slovakia, Lithuania, and Latvia they constitute the main source of funding (in particular the European Regional Development Fund). Moreover, the 2016 report has shown that Bulgaria, Romania, and Croatia have recognized the structural funds of the 2014–20 perspective as crucial for the implementation of the Commission Recommendation.36 The European Economic Area (eea) and Norway Grants, financed by Norway, Iceland, and Liechtenstein and addressed to 15 EU developing Member States with the aim to strengthen bilateral relations and to reduce economic and social disparities in the eea, consider the protection of cultural heritage as a priority sector for financing. Thus, they play a significant role in launching and implementing digitization projects in the ‘new’ EU countries. A good example is provided by Bulgaria. Within the framework of the ‘Digitisation of cultural heritage – accessible gateway to historical memory’ project, with a 34 35 36

Ricky Erway, ‘A View on Europeana from the US Perspective’ (2009) 19(2) Liber Quarterly. The Journal of the Association of European Research Libraries 103. Although the German and French contributions are still predominant. European Commission, ‘Implementation of Commission Recommendation on the Digitisation and Online Accessibility of Cultural Material and Digital Preservation: Progress Report 2011–2013’ (September 2014) 19; European Commission, ‘Implementation of Commission Recommendation on the Digitisation and Online Accessibility of Cultural Material and Digital Preservation: Progress Report 2013–2015’ (June 2016) 18–19.

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720,833 euro budget (612,708 euro from eea Grants) conducted in collaboration with the Norwegian Institute for Cultural Heritage Research, four digital centres for cultural history documentation in the main museum and library institutions of Sofia have been established.37 Importantly, the financial support of Iceland, Liechtenstein, and Norway in the implementation of the Commission Recommendation 2011/711/EU accorded to Bulgaria over 1.5 million euro (until now) expressively for the digitization of cultural heritage, which is comparable to the support from structural funds received by this Member State.38 The provisions of Commission Recommendation 2011/711/EU, the generous support provided by the structural funds and the eea and Norway Grants, together with the international harmonization and collaboration required by the Commission Recommendation have strongly affected the heritage institutions of the new Member States. Well-equipped modern digital labs and workshops are today commonplace even in the smaller provincial libraries or museums in Poland or Lithuania.39 Visually marked with the logo of the EU structural funds or of the eea and Norway Grants, such interiors are often the showcases of the institution, and their young staff are at the forefront of the wider (European and global) approach of such institutions. Following the EU’s recommendations, the Member States in recent years have also established—in their governing networks related to the administration and management of culture and cultural heritage—agencies responsible for coordinating digitization actions in the cultural heritage institutions, which participate in larger, panEuropean networks. The participation in the eea or Europeana projects requires numerous meetings with similar teams from other Member States and Associated Countries, as well as study visits in museums, libraries, or archives abroad. Thus, the large-scale digitization undertaken in the public institutions of the new Member States have put them on a new, European track and blurred the distance between the still greatly underfinanced heritage sector of the Eastern Bloc countries and the most prominent institutions in the West. Importantly, this has helped to overcome deep-rooted national cultural complexes. The EU digitization policy, with its stress on quantity (as well as 37 38 39

See accessed 3 February 2019. In the 2014–20 perspective, Bulgaria plans to allocate 3 million euro of the structural funds for the digitization of cultural heritage. In Poland, for example, in the framework of the structural funds regional digitization workshops were/are established, i.e. Regional Digitization Workshop of Warmia and Mazury () or the Virtual Museum of the Region of Małopolska (), which operate in the smallest regional museums.

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its stress on 2D objects) and on the equal share of all Member States, indeed shrinks the distance between the Western canon and the ‘provincial’ Eastern European art, and between such museums as the Rijksmuseum or the Accademia di Brera and the art museums of Eastern Europe. Within the framework of the EU digitization projects, the institutions and the cultural heritage of the various Member States are equal partners and each national heritage merits equal attention. Digitization is also an important tool for implementing common European approaches to cultural heritage and harmonizing the Member States’ heritage policies. A good example is the Infrastructure for Spatial Information (inspire) Directive 2007/2/EC of the European Parliament and of the Council,40 which urges the Member States to create an EU spatial data infrastructure for the purposes of its environmental policies and other policies or activities which may have an impact on the environment. Digitization then becomes a key tool for the Member States to harmonize and share the information regarding 34 spatial data themes that are to be included in the spatial data infrastructure. According to the Directive, heritage is considered an important part of the environment, which needs protection, and its linking with the Geographical Information System, easily accessible through the inspire database, constitutes a way of monitoring the protected European heritage sites at risk. Within the framework of the protected sites, inspire thematic cluster experts from the Member States involved in implementing the Directive have been using common standards of cultural heritage description.41 The EU digitization strategy has also had a strong impact on the policies of the States aspiring for EU membership and/or recognition. For example, the 2017–27 National Strategy for Cultural Heritage of the Republic of Kosovo proposes to integrate the various EU cultural heritage directives and principles into the country’s cultural heritage policy.42 The document highlights the importance of digitization in Kosovo’s future national strategy. In the part devoted to the Advancement of the Legal and Institutional Framework three orientation actions are listed: 1. The advancement, harmonization, and implementation of law; 2. Development of cultural heritage institutions; 3. Inventorying and digitization of cultural heritage. The document stipulates that it will 40

Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (inspire) [2007] OJ L108/1. 41 See accessed 5 February 2019. 42 Florina Jerliu, National Strategy for Cultural Heritage 2017–2027 (Ministria e Kulturës, Rinisë dhe Sportit 2017) accessed 5 February 2019.

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be implemented ‘under the guiding principles of the EU and unesco criteria, and best practices in the region and the world.’43 The Strategy, which refers to the objectives of the EU-Kosovo Stabilization and Association Agreement signed in October 2015, also refers to the EU Work Plan for Culture (2015–18) and is directed towards an approximation of national cultural heritage legislation with EU legislation. 5

Framing Cultural Heritage in an Economic Perspective

The 2010 Collections Trust Report, commissioned by the Comité des Sages, estimated the total costs of digitizing Europe’s cultural heritage at 105.31 billion euro.44 The report was based on an estimation of the overall cultural heritage objects kept in the public institutions and took into account the varying costs required for the digitization of the objects in different formats. The massive estimated costs of such an as complete-as-possible digitization of Europe’s cultural heritage (library, archival, museum, and audio-visual material) constitute the main challenge and obstacle to the realization of the Commission Recommendation 2011/711/EU. In EU policy, cultural heritage is increasingly considered as a sector in its own right, with an enormous, and still undervalued, potential to contribute to Europe’s economic growth. In recent years, the measuring and valuing of the economic impact of cultural heritage has become an important issue, included in the final recommendations of the Commission to the 2014 ceu’s Conclusions on cultural heritage as a strategic resource for a sustainable Europe.45 Despite the fact that such studies are still in their infancy,46 the 2014 Commission Communication on the integrated approach to cultural heritage attempts to delineate the main economic areas in which cultural heritage makes a substantial contribution: e.g. the construction industry or tourism.47

43 44

Ibid 29. Nick Poole, ‘The Cost of Digitising Europe’s Cultural Heritage. A Report for the Comité des Sages of the European Commission’ (November 2010) accessed 5 February 2019. 45 accessed 4 February 2019. 46 See Cornelia Dümcke and Mikhail Gnedovsky, ‘The Social Value of Cultural Heritage: Literature Review’ (eenc Paper, July 2013) accessed 5 February 2019. 47 European Commission, ‘Towards an integrated approach to cultural heritage for Europe’ (Communication) com (2014) 477 final.

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The Commission Communication places particular emphasis on the application of the newest technology, considered as a substantial factor in its own right, which can give economic value to the heritage sector: ‘digitized cultural material can be used to enhance the visitor’s experience, develop educational content, documentaries, tourism, application and games.’48 Directive 2013/37/EU assumes that the digital resources produced in European museums, libraries, and archives are ‘a potential base for digital content products and services and have a huge potential for innovative re-use in sectors such as learning and tourism.’49 Thus the Directive not only promotes the availability of cultural heritage objects in the public domain, but it also foresees their economic potential, stating that ‘wider possibilities for re-using public cultural material should, inter alia, allow Union companies to exploit its potential and contribute to economic growth and job creation.’50 Even if not explicitly stated, the ‘digital turn’ in the EU’s approach to cultural heritage should be seen in the wider framework of the current European growth strategy. The 2015 Report of the Horizon 2020 Expert Group on Cultural Heritage stresses the economic benefits of cultural heritage and its potential to contribute to Europe’s gdp, and urges the EU to ‘vigorously promote the innovative use of cultural heritage for economic growth and jobs, social cohesion and environmental sustainability.’51 The massive expenditure estimated in the 2010 Collections Trust Report for the total digitization of Europe’s cultural heritage is framed in the context of other serious public investments leading to economic development and to the wellbeing of the European society. In the report, the digitization costs are juxtaposed with the costs of the development of the Joint Strike Fighter on the one hand, and with the average costs of building 100 km of a major highway in the EU.52 The latter costs, estimated at 750 million euro, are equivalent to: the full digitization of ca. 7% of the whole stock of rare books in European libraries; of 40% of the stock photographs in European institutions; of 4% of man-made or 5% of natural artefacts in European museums; of 2% of the pages of the European archival holdings; or of 14% of video hours; or of 48% of film hours. Framed in such an economic perspective, the projected cost of 105.31 billion euro seems proportionate and acceptable. Thus, this sum is taken 48 Ibid 4. 49 Dir 2013/37/EU (n 22). 50 Ibid. 51 European Commission, Getting Cultural Heritage to Work for Europe (EU Publ Office 2015) accessed 5 February 2019. 52 Poole (n 44) 75–6.

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s­ eriously into consideration and the aim of the EU’s digitization policy is to make the whole stock of European cultural heritage accessible online. Digitization, being such an important factor in the current EU policy, is considered as one of the pillars of the EU’s economy—a key factor in its development and in the EU’s global competitiveness. The Commission has, given this recent perspective, fostered important initiatives aiming at the fullest and most competitive use of digital technologies and at merging them with industrial production. Considering the role that the internet and digitization play in the development of manufacturing technologies, they can be seen as the first step of a new industrial revolution. Under the label of Industry 4.0, beginning in the last decade special programmes and funds towards the development of digitized manufacturing have been launched and supported by several Members States (Germany, Italy, France, and the UK) and by the EU. Since 2008 the Commission has supported actions and issued recommendations and key communications which shifted the attention and EU policy towards a European digital economy. The 2014 Communication ‘For a European Industrial Renaissance’, declaring that digital technologies are essential to increase European productivity through redefining business models and creating new business paths, established the target of increasing the share of manufacturing in total value added in the EU to 20% by 2020.53 Cultural heritage is indeed only a small, but important, area of the EU’s digitization strategy. Most significantly, it has created completely new ways of approaching and consuming cultural heritage (commercial, entertaining, innovative) and has framed it within the EU’s global economic strategies. 6

Cultural Heritage as a ‘Countable’ Commodity

The EU digitization policy has also transformed cultural heritage into a measurable commodity. The analysis of the various reports and strategic plans commissioned by the Commission to various think-tanks and agencies can give one the impression that statistics are the most authoritative tool in the description of the European cultural heritage. As early as in 2007 the Commission launched a programme, led by the Institute of Public Finance and Accountancy (UK), aimed at elaborating the methodology for assessing the issue of digitization of cultural heritage in the EU. During the time-span of three years (2007–09), the NUMERIC project led 53

European Commission, ‘For a European Industrial Renaissance’ (Communication) com (2014) 014 final.

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to the elaboration, testing, and development of statistics and data-collection methods for assessing the state of digitization in Europe.54 The methodology elaborated within the project was used and further developed by the ENUMERATE project, financed by the Commission and realized in the years 2011–14 by a pan-European consortium led by the Collections Trust (UK), an institution responsible for setting the standards of museum collections management.55 ENUMERATE not only elaborated questionnaires and survey methodologies as well as an organized set of digital heritage indicators, but on their basis it carried out in-depth surveys on digitization in European cultural heritage institutions. The above-mentioned 2010 The Costs of Digitising Europe’s Cultural Heritage Collections Trust survey offers a perfect exemplification of the new ‘countable’ approach to cultural heritage.56 According to the survey, European cultural heritage is defined as the total number of objects in the different kinds of institutions: ca. 77 million book titles (libraries); 265 million man-made artefacts and 221 million natural objects (museums); 26.98 billion pages of archival records (archives); 10.81 million hours of audio material; 12.14 million hours of video material; 1.03 million hours of film (audio-visual collections). 7

Digitizing National Masterpieces: Towards the European Heritage Canon

The authors of The New Renaissance, while distancing themselves from any kind of selection of the cultural heritage worthy of being digitized,57 nevertheless put particular emphasis on the category of ‘national masterpieces’. The ambitious plan designed in the report assumed that by 2016 ‘Member States should ensure that all public domain masterpieces of their cultural heritage are digitized and made available on Europeana within the coming 5 years.’58 Such an 54

55

56 57 58

Roswitha Poll, ‘NUMERIC: Statistics for the Digitization of European Cultural Heritage’ (2010) 44(2) Program 122. In 2014 the project, led now jointly by the Collections Trust and the Dutch Knowledge Centre for Digital Heritage, became a part of the Europeana programme. ‘ENUMERATE: A European Survey for Statistical Intelligence on Digitization, Digital Preservation and Online Access to Cultural Heritage’. See the project’s documentation at accessed 4 February 2019. Poole (n 44). ‘On what grounds would we have the right to lay down selected criteria for what should and should not deserve to be protected?’ See European Commission, The New Renaissance (n 6) 5. Ibid 30.

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approach was taken over by the Commission, which in its Recommendation 2011/711/EU stated that all public domain masterpieces of the Member States should be available on Europeana by 2015. The masterpieces were defined as ‘key cultural or historical works and objects, as determined and selected by the Member States’.59 Moreover, while establishing indicative targets for minimum contributions to Europeana for each Member State, the Recommendation 2011/711/EU further stressed the qualitative aspects of selection, inviting the Member States to take into account the need for making all public domain masterpieces available on Europeana.60 Such recommendations highlight the effort being made to establish a European cultural heritage canon, seen as a patchwork of national canons. The Report on the implementation of the Recommendation 2011/711/EU in the years 2011–13 pointed out, however, the problematic issue of the criteria for determining ‘national masterpieces’, and the failure to realize the formation of a European cultural heritage canon via digitization and Europeana. Thus far, only four countries have reported initiatives towards making national masterpieces available through Europeana (Latvia, Germany, Belgium, and Hungary), while the remaining Member States have left the selection criteria to the individual institutions involved in public digitization projects and/or stressed that mass digitization of cultural heritage will in any case bring the masterpieces online.61 Moreover, two tasks expressed in the Recommendation 2011/711/EU— mass digitization (counting in hundreds of thousands and millions) and the selective digitization of ‘national masterpieces’—are in a way exclusive. The 2012 ENUMERATE survey on the digitization of cultural heritage in Europe’s institutions has shown that in order to meet the deadlines and tasks of the Recommendation 2011/711/EU, two-dimensional objects constituted the most frequently digitized type of object Europe-wide.62 Digitization of 2D objects is indeed more efficient, as it requires smaller funds and expertise. Photographs in particular, due to their format, in most cases fit in an A4 scanner and not surprisingly belong to the most frequently digitized museum objects.63

59 Rec 2011/711/EU (n 5) para 15. 60 Ibid. 61 European Commission, ‘Implementation of Commission Recommendation (…) Progress Report 2011–2013’ (n 36) 41. 62 Natasha Stroeker and René Vogels, ‘Survey Report on Digitisation in European Cultural Heritage Institutions 2012’ (May 2012) 12 accessed 5 February 2019. 63 Ibid.

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Accordingly, it is mainly the activity of Europeana—its various campaigns and projects—that brings about a wider perception and the sharing of cultural heritage as European. Financed and supported directly by the EU (within the framework of its grant programme)64 this is a multilingual portal, a ‘common European cultural project for accessing and showcasing the European cultural heritage’, managed by a Dutch-based private Europeana Foundation.65 Europeana not only acts as a common aggregator for the digitized cultural heritage projects of the Member States, but it also coordinates special actions, projects, and initiatives which bring the idea of a common European cultural heritage into focus. A good and very recent example is the Europeana 280 cross-border campaign, launched in April 2016 and dedicated to European art.66 The campaign involved all 28 Member States and Norway, and was coordinated by the respective culture ministries. Each country was supposed to provide at least ten digitized national masterpieces which have significantly contributed to the development of a European artistic style. The national stakeholders mainly involved the main State museum and library institutions: for example, the Polish choice was taken mostly from the holdings of the National Library and of the National Museum in Warsaw; France’s from that of the Louvre, Musée d’Orsay, and the Versailles Palace; and Italy’s was mainly limited to the collection of the Museo di Brera. Europeana provided a platform for sharing the more than 300 nominated and digitized artworks and involved the wider public with the European heritage, exemplified through the choices made. It also designed specific virtual and live social events to promote the project: virtual exhibitions, competitions, games, special apps, social media campaigns, etc. The Europeana strategy in a way reflects the way of Europeanizing heritage expressed in a recent initiative: the European Heritage Label (ehl).67 This initiative, a result of an intergovernmental action conceived by the EU’s Ministers of Culture in 2005, is modelled on the unesco World Heritage List but aims to establish a list of monuments, cultural sites, and historical landscapes

64

However, from 2017 part of the costs are supposed to be covered within the framework of the EU procurement. 65 ceu, ‘The role of Europeana for the digital access, visibility and use of European cultural heritage: Council conclusions (31 May 2016)’ accessed 30 January 2019. 66 See accessed 5 February 2019. 67 See European Commission, ‘European Heritage Label’ accessed 3 February 2019.

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characterized by a European orientation.68 Thus, the ehl is composed of sites bringing to life the European narrative and history behind them, thus focusing on the promotion of such European dimension; moreover, it comprises sites that can be enjoyed as part of a larger, supranational European network. As with the digitized ‘national masterpieces’ idea, the ehl seeks to label a limited number of appealing sites and objects and promote them among the wider national and European public as elements of a shared European heritage. The selection of the sites for the ehl, as in the case of the Europeana 280 initiative, is formalized on the national governmental and EU levels. Every two years, each of the participating Member States,69 through commissions established by the culture ministers, selects the monuments and sites for consideration for the ehl, which is subsequently granted by a commission of independent experts established by the Commission. As in the case of the digitized masterpieces in the Europeana, the ehl monuments and sites are promoted through special programmes (exhibitions, web-pages, promotional programmes, touring) and provided with the ehl logo (recalling the EU flag), both on the monument itself and on its promotional web-pages, flyers, post-cards, albums, etc., which identifies them as having a European value and importance. Moreover, the Europeana Foundation and other Europeana networks finance special projects and programmes which involve cultural heritage institutions and associations from the various Member States and which focus on trans-European topics and phenomena. The subjects of the Europeana pro­ jects, as well as the countries involved, vary. The Biodiversity Heritage Library (bhl-Europe, 2008–10) involved a network of natural history museums and zoological gardens focused on the digitization of the cultural and historical heritage (mostly library material) on biodiversity.70 The Daguerreobase, involving institutions from the UK, the Netherlands, France, Italy, Belgium, Denmark, Finland, Norway, Austria, and the Czech Republic, is an example of a project focused on the daguerreotype, the first photographic technique, which flourished throughout Europe for a very short time-span of ca. 20 years (1839–60), and of which only a limited number of examples are still preserved today in the European collections.71 Similarly, the Europeana Regia (2010–12) resulted in the creation of a European corpus of digitized, mostly illuminated, royal manuscripts from three primordial medieval and early modern royal collections belonging to the Carolingian rulers, to Charles v of France, and 68 69 70 71

Oriane Calligaro, Negotiating Europe: EU Promotion of Europeanness since the 1950s (Palgrave Macmillan 2013) 12–13. 24 of the 28 Member States participate in this programme. See accessed 31 January 2019. See accessed 31 January 2019.

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to the Aragonese Kings of Naples.72 The Europeana 1989 (2012–14) aimed to sensitize the European public to the recent history of Central and Eastern Europe, focusing on the countries of the former Eastern Bloc (Poland, Germany, the three Baltic states, Hungary, and the Czech Republic).73 Such projects as the Europeana Food and Drink (2014–16) or Europeana 1914–1918 (focused on the collection and digitization of not only museum and library resources, but also of private collections and memories pertinent to the Great War) follow and designate new universal trends in the perception and understanding of cultural heritage and frame them in a European perspective.74 The Europeana programmes, with their focus on co-operation between cultural heritage institutions and organizations in the EU Member States and on the identification of common European values and cultural heritage, resembles another well-established EU programme: the Cultural Routes of the Council of Europe. Set up in 1987, based on an initiative of the Council of Cultural Co-operation and affirmed in the 1998 Resolution on the Cultural Routes of the Council of Europe,75 the project aims at the manifestation and revitalization of historical cross-border cultural routes linking the regions and towns of Europe. By supporting the establishment of a common graphic and information system of the Santiago de Compostela Pilgrim Route, addressed to all (equally to believers and non-believers, Christians and nonChristians), the implementation of the Resolution was grounded on both a successful model of European cooperation in the realm of cultural heritage and on the establishment of fundamental European values. Thus, from 1998 the European Institute of Cultural Routes, a technical agency set up under the agreement between the Council of Europe and the government of the Grand Duchy of Luxembourg, established similar projects evoking important European historical routes (such as the Phoenician’s Route); networks and alliances (the Hansa); trans-regional cultural and historical phenomena (the Cluniac Sites in Europe; the European Route of Ceramics); artistic styles (i.e. the Réseau Art Nouveau Network); and historical personalities (In the Footsteps of Robert Louis Stevenson; Destination Napoleon).76 As in the case of EU-supported 72 73 74 75 76

See accessed 31 January 2019. See accessed 31 January 2019. See and accessed 31 January 2019. ‘Resolution 98(4) on the Cultural Routes of the Council of Europe’ in Council of Europe, The Council of Europe and Cultural Heritage 1945–2000: Intergovermental Work (CoE Publ 2001) 278–86. For a complete list and description of the routes see the Cultural Routes of the Council of Europe web-page: accessed 2 February 2019.

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cultural projects, the certificate of the Cultural Route of the Council of Europe depends on having obtained the participation of at least three Council of Europe Member States, the creation of a collaborative institutional network, establishing the European values and dimension of the proposed route, as well as a programme of common promotional and educational actions. Again, like in the case of the ehl and Europeana, a common visibility (logos, signs, etc.) allowing not only the identification of the monuments and sites of the Route but also its European dimension, forms a primordial means of giving a European mark to the given route. 8

European or Global?

The digitization projects which can be arguably considered as most interesting and valuable are often undertaken by the European cultural heritage institutions outside the public funding scheme, on the margins of the EU Directive, in a global cultural environment. The projects sponsored by the Polonsky Foundation77 serve here as a good example. Created by Leonard Polonsky, who as a US soldier was witness to the wwii destruction of the German National Library in Berlin, as well as of the libraries in Hiroshima and Nagasaki, the Foundation focuses on the preservation of the priceless world heritage of libraries, in particular by cross-border collaborative projects between emblematic world libraries. One of its main commitments is the democratization of access to such heritage and the sharing of intellectual resources on a global scale. Thus, the Foundation willingly finances digitization projects under the condition that the beneficiaries make the digitized objects available online without any restrictions. A ground-breaking project sponsored by the Foundation involves the Biblioteca Apostolica ­Vaticana and the Bodleian Libraries, which thanks to the support of 2 million pounds in the time-span of four years (2013–17) will make available online, both to scholars and the general public, their collections of Greek, Latin, and Hebrew manuscripts as well as a selection of the most valuable early printed books in their holdings.78 Another emblematic example of transnational collaboration in the area of digital heritage is the Institute of Digital Archaeology, based in the US (­Harvard University) and in the UK (Oxford University). The Institute has both a complex transnational foundation (based on a combination of public and 77 78

‘Preserving Knowledge and Culture. An Interview with Leonard Polonsky and Georgette Bennett, The Polonsky Foundation’ (2016) 39(2) Leaders Magazine 71. See the project’s web-page: accessed 31 January 2019.

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private funds) as well as international collaborative schemes (involving multidisciplinary scientific institutes, museums, international heritage organizations, private enterprises). Founded in 2012 to promote the fusion of new digital imaging and traditional archaeological techniques, the Institute is generously sponsored in particular by the United Arab Emirates and operates in collaboration with the Dubai Future Foundation and unesco.79 It specializes in the application of 3D digital technologies to the documentation of archaeological sites and objects, in particular those under threat of destruction from armed conflict. The programme Hitchcock 9, undertaken by the British Film Institute (bfi), is an example of a successful digitization project based on fundraising. The bfi, as guardian of one of the earliest and most important copies of Alfred Hitchcock’s movies, endorsed a scientific restoration project conducted using digitization. To meet the enormous costs, in 2010 it launched a successful campaign—Rescue the Hitchcock 9—aimed at raising funds for the restoration and digitization of the nine Hitchcock silent movies in its holdings.80 A similar project was undertaken by the Friedrich Wilhelm Murnau Foundation in collaboration with the international media company Bertelsmann. The Foundation, as owner of the copyrights to The Cabinet of Dr. Caligari, one of the world’s most famous silent movies, together with Bertelsmann, the main sponsor, has endorsed a comprehensive digital restoration of the movie and its wide distribution (in cinemas, on dvd, Blue-ray).81 The European institutions also willingly collaborate in the global digitization projects and actions launched by Google. Google Books is already working in collaboration with several university libraries in the UK, France, Germany, and Belgium. The more recent Google Art Project (2011), aimed at providing online high resolution access to the most renowned masterpieces in prestigious art museums worldwide, involved numerous European institutions. In its first editions 17 museums and galleries from Russia, the US, and Europe (the Uffizi, the Tate, the Royal Museum of Fine Arts in Antwerp, the Gemäldegalerie

79

For a complete list of partners See accessed 31 January 2019. 80 ‘bfi’s Restoration of the Silent Hitchcock 9’ accessed 31 January 2019. 81 Susanne Erdl, ‘Post-Restoration. “The Cabinet of Dr. Caligari” Shines in Digital Cinema Quality’ (Bertelsmann, 27 January 2014) accessed 31 January 2019.

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in Berlin, the Thyssen Bornemisza Museum, and the Rijksmuseum, among others) were involved and this number has recently grown. Individual European institutions often endorse innovative, groundbreaking, and challenging projects on their own. A good example here is the Rijksstudio, launched in 2012—an online, expanding platform of the ­Rijskmuseum giving free-of-copyright access to high quality scans of 125,000 masterpieces of its collection. The ambition of its authors and founders was to create the most exhaustive digital museum project, not only in Europe but also in the world. Its aim is to fully digitize the Museum’s collection (estimated at 1 million objects) by 2020 and to make it freely available online in high resolution on a creative commons basis. The project also fosters a popular way of the mass enjoyment and use of heritage—images can be downloaded, altered, and used as a motif for tattoos, T-shirts, or even toilet paper.82 To encourage such new ways of access to and enjoyment of art and cultural heritage, the Rijksstudio (the museum’s online archive site) even provides online manipulation tools. The project is motivated by the idea that museums should make their entire collections available to the public, and that online accessibility is crucial to accomplish this. The Rijksstudio is thus one of the first projects in which the commercial re-use of art masterpieces was not only facilitated, but even encouraged. Thus, in the first months of its existence, it has launched several competitions on the most creative and entrepreneurial uses of the images of the artworks in the museum’s collections. The Rijksstudio is indeed expanding on the Dutch tradition and experience in the digitization of cultural heritage.83 The Dutch museums adopted computer technologies for use in the museum as early as in 1960, and were among the world pioneers in computer registration, and in the elaboration and launching of museum web sites and digital catalogues. Throughout the years they also elaborated effective funding schemes (from governmental grants to crowdfunding), as well as institutional and knowledge networks.84 Thanks to its ground-breaking attitude to copyright issues and to the commercial potential of artworks, together with the launching of an innovative internet platform, 82

Tim Cushing, ‘Amsterdam’s Rijksmuseum Does Digital Archives Right – Hi-Res Downloads and a Suite of Online Editing Tools’ (Techdirt, 31 May 2013) accessed 3 February 2019. 83 Trilce Navarette, ‘A History of Digitization: Dutch Museums’ (PhD thesis, University of Amsterdam 2014) accessed 31 January 2019. 84 Netherlands Coalition for Digital Preservation. See accessed 4 February 2019.

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the Rijksmuseum has gained the reputation of one of the most vanguard museums in the world, and is establishing both the present and future digitization standards for museums.85 9 Conclusions Digitization is one of the most expensive long-term programmes with respect to EU cultural heritage. Its output, if considered through the lens of the carefully measured numbers of the digitized objects in the EU public institutions, and the equally carefully measured numbers of online visitors to the Europeana and national aggregators, is impressive. Digitization is nowadays an important element of the EU cultural heritage policy, both in the political and symbolic sphere. It follows the EU policy concept of Europeanization by harmonization. It is the sum of actions performed in a top-down process in the 28 Member States by various agencies and institutions, which often reflect different approaches, goals, and levels of financing. The transnational expert commissions and networks, aimed at harmonizing the different criteria and strategies and at levelling the inequalities between the Member States caused by underfinancing, are based on generous EU funding and on Norway and eea Grants. By shifting the world of cultural heritage from analogue to digital, digitization has obliterated the symbolic and physical national frontiers and barriers, the gap between national and provincial cultures, and the present and the past. Thus, the virtual sphere has become a platform where a new concept of European cultural heritage is being negotiated and consumed. Based on the examples of well-established EU cultural programmes, it brings a sense of European identity not only to cultural landscapes, monuments, and routes, but also to the millions of objects (books, films, photographs, artworks, etc.) preserved in public institutions. Based on the pillars of democratization, participation, and access, digitization also constitutes an important means of integrating the ‘new’ and underdeveloped Member States as well as of preparing the path to future accession for those States aspiring to EU membership. Such Europeanization of cultural heritage is addressed both inwards (as an element of EU integration) and outwards (as an element of building up the global cultural, political, and economic status of the EU, an exemplification of ‘what makes Europe great’). Moreover, digitization is nowadays an important part of the heritage sector, 85

‘Striking the Balance. How nmdc Members are Balancing Public Access and Commercial Reuse of Digital Content. A Report by the Collections Trust Commissioned by the nmdc’ (September 2015) accessed 31 January 2019.

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which thanks to public funding creates and maintains workplaces. It is framed as a measurable commodity and as a challenge in the wider economic perspective, as a European response to similar programmes performed by other global economies, and as an important motor for growth in the nearest future. Thus, one could conclude by recommending that the European Commission and the Member States just follow the EU’s law and policy instruments mentioned in this Chapter. However, there is another side to the coin. The consistent digitization policy has indeed created a new and strong Europe-wide cultural industry, the maintenance and development of which is very expensive. This sector has created numerous new jobs, depending on public funding, and it requires specialized and expensive infrastructure and equipment. At the same time, such expansion of digitization in the strategies of the heritage institutions often forms a threat to other aspects of their activities. This is well manifested by the example of various photography museums and libraries, which in recent years have noticed a shortage of funding for researching their analogue collections and making them accessible. The most recent ‘victim’ is the world-famous Royal Photographic Society collection, housed in the National Media Museum in Bradford. Under an agreement between the Science Museum Group, which runs the Bradford institution, and the Victoria and Albert Museum (V&A), this world-famous collection will be transferred, digitized, stored, exposed, and researched at the V&A.86 This decision, caused by financial cuts in the assistance offered by local and national governments, will affect not only the future of the collection of the Bradford museum, but also of the UK museum sector as a whole. The Bradford example clearly shows the ongoing centralization and ‘metropolization’ of cultural activities and cultural heritage institutions, at the expense of the provincial centres and communities, a process which is observed not only in the UK but also in other EU Member States. Thus, paradoxically a policy aimed at granting a wider and equal access to cultural heritage can yield an opposite effect. The standardized and institutionalized EU digitization strategy is characterized by a mania for digitizing everything, which questions the propriety of such a public investment in this cultural sector. Moreover, this ‘overproduction syndrome’ calls into doubt what heritage really is and what its role is in contemporary society. This is well reflected in the way in which the recipients of the programme and strategy are characterized in the reports on the progress of the EU’s digitization recommendations. They are not individuals, with their own 86

Josh Halliday and Sam Jordison, 'Bradford Photography Collection M0ve to V&A Reviled as Vandalism' (The Guardian, 2 February 2016) accessed 31 January 2019.

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i­ dentity and history, but anonymous viewers who participate in the world of European heritage by accessing the Europeana web-page for a time-span usually counted in minutes, and eventually by downloading digital images. In this context, democratization, as one of the pillars of EU digitization, seems a mere claptrap. In such important areas as the building of regional and local identities; the preservation of the cultural heritage of ethnic minorities; the realm of building a stronger awareness of European cultural identity among its citizens; or contemporary challenges (as for example the current destruction of cultural heritage in Syria), the EU’s macro-, top-down digitization policy does not play any role. Arguably, the main problems caused by the digitization of cultural heritage spring from the way in which this policy defines cultural heritage. At its origin, digitization indeed followed the premises of earlier attempts to use technology for preserving, cataloguing, and providing access to world cultural heritage and knowledge. The idea of a digital library is a contemporary reincarnation of the hopes once put on photography and microfilm as potent tools for preserving and organizing the world of knowledge as a whole. The rise of the microfilm technology in the 1920s and 1930s led to the formation of wider transatlantic networks of research and heritage institutions, as well as common strategies aimed at the preservation of the world library and knowledge heritage. At the same time, however, digitization reflects ever more the imprint of the recent trends in globalization and democratization, and of the role played by the internet on the way in which cultural heritage is perceived and what its role is in contemporary society. Moreover, digitization introduces cultural heritage into the realm of the global economy, making it a factor that can contribute to gdp growth and to the competitiveness of the economy. These new global trends in the approach to cultural heritage clash with the still strong traditional 19thcentury understanding of cultural heritage as a showcase of identity, and with the traditional classification and preservationist ideas. Moreover, such traditional understanding is still focused almost exclusively on material culture preserved in the public institutions. Thus, large shares of heritage (privateowned, intangible) still remain on the margins of the EU digitization policy. The EU digitization policy takes the existence of a common European cultural heritage and identity for granted. However, the recent crises which have strongly shaken the EU have called into question whether this is true. In commenting on the recent crises in the EU (Brexit, immigration, and the rise of populism in Poland and Hungary), the American historian Timothy Snyder noted that the EU has not built among its citizens a wider and unifying sense of a common and shared European history.87 This crisis of identity is well 87

Timothy Snyder, comment during a panel at the inauguration of the Museum of the Second World War, Gdańsk, 17 January 2017.

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reflected in the way in which digitization has created the idea of a common European heritage. On one hand, it seems that its stress on national masterpieces and programmes has just added another symbolic block next to such initiatives as the ehd, ehl, or the European Capitals of Culture, which build a symbolic sphere, an ‘EU-invented tradition’. On the other hand, digitization follows the European political process based on harmonization, not unification. Thus, in light of the contemporary challenges the EU should reshape the symbolic and historic basis on which its cultural heritage policy has been built. A new kind of The New Renaissance Report, together with a fundamental discussion between prominent cultural, educational, and scholarly authorities, might yield the new and refreshing impulse that is really needed to address the contemporary challenges the EU faces. Recently, Sweden has re-defined its cultural heritage policy by integrating the most recent academic critical heritage research in the country’s official policy and cultural heritage strategy. Thus, two of the main Swedish museum organizations—the National Historic Museums and the Museums of World Culture—will receive additional funds ‘to improve the prospects for a knowledge-based and reflective historiography’ as ‘the way people use history and cultural heritage is an important force for democratic development in society.’88 Swedish cultural policy, and its recent modifications, might serve as an example that could lead to future changes in the EU’s approach to digitization and to cultural heritage in general. As noted by Carolina Jonsson, the Swedish cultural heritage policy resembles, and in many ways even outruns, the EU provisions. The basic idea behind Sweden’s current cultural heritage policy is that cultural heritage is constantly developed and shaped by people, and that it can contribute to the creation of an inclusive society.89 Thus, the 2017 Budget Bill allocates funds for the safeguarding of not just cultural heritage, but of an open and accessible cultural heritage. These statements are not just mere claptraps. They have been present in Sweden’s cultural policy from as early as 1974, the date of the first parliamentary bill devoted to the issue. According to it, as well as the subsequent bills of 1996 and 2009, provisions were introduced which make cultural accessibility and democratization an achievable goal, and not just a prerequisite on paper. Sweden has adopted important and innovative provisions and solutions in the areas of culture and heritage—from the 88 89

See Government Offices of Sweden, ‘A Living and Shared Cultural Heritage’ (21 September 2016) accessed 31 January 2019. Carolina Jonsson Malm, ‘Access to Culture – Policy Analysis. National Report: Sweden’ (May 2014) accessed 31 January 2019.

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2011 Cultural Cooperation Model, which delegates the management (power and financial) of sources of culture from the national government to the regions; to the granting of free admission to several of the most popular State museums in 2016. These solutions have strongly affected the Swedish society. This partly explains, why in the 2013 Eurobarometer survey on cultural access and participation, Sweden was the top-ranking country and noted an increase in cultural participation in all the surveyed areas.90 On one hand, these results spring from the country’s stable economy, well-being, and the generous funding allocated to the culture and heritage sectors, while on the other they were the result of a consistent and focused cultural policy. In Sweden digitization, just like other programmes and actions, is performed as a bottom-up process and, importantly, is an integral part of the larger strategy for culture and cultural heritage. But it is too early to predict how the new Swedish policy will affect the role cultural heritage plays in contemporary society. Only in some years we will be able to assess whether the re-defined digitization will truly nurture societal cohesion. However, the main premises of the Swedish policy; in particular its bottom-up approach and constant redefinition, can be seen as an interesting potential path for the EU to follow in shaping its digitization and wider cultural heritage strategies. A forthcoming significant change of the EU approach towards the world of European heritage and digitization can be foreseen in the 2016 Recommendation of the Committee of Ministers on the internet of citizens.91 Recognizing that digital culture is one of the key issues of cultural policy, the Recommendation invited the Member States to implement its guidelines. In short, digital culture’s positive potential should be fully exploited to build a culture of democracy, democratic citizenship and participation, while safeguarding against related threats such as infringement of privacy, breaches of data security, hate speech or manipulation. Indeed, the Recommendation forms a response to the present-day threat of media manipulation, from which culture and cultural heritage are not immune. At the same time, however, the guidelines promote the human and cultural dimension of the internet as a counterbalance to the Internet of Things. Moreover, they put stress on citizenship and democratic values as essential and biding elements of European heritage and identity. 90 91

European Commission, ‘Special Eurobarometer 399. Cultural Access and Participation: Report’ (November 2013) 4, 39 accessed 31 January 2019. Council of Europe, ‘Recommendation of the Committee of Ministers to Member States on the Internet of citizens’ (10 February 2016) CM/Rec(2016)2 accessed 31 January 2019.

Final Conclusions Andrzej Jakubowski, Kristin Hausler and Francesca Fiorentini* The European Year of Cultural Heritage (eych 2018)1 was the culmination of years of efforts undertaken by the EU in order to integrate cultural heritage into its policies and actions. However, as this volume indicates, it should not be considered as the conclusion of reflections on the meaning and role of cultural heritage within the EU, but rather as a springboard for filling the remaining gaps in the area, many of which have been discussed in the preceding Chapters. By focusing on how the EU frames and addresses cultural heritage in its law and policy, this volume has sought to respond to a number of questions that are key to these reflections: (1) What is the concept of cultural heritage? What are the values attached to it and on which the EU's common action is based? Who are the stakeholders able to identify these values? (2) How have these values been operationalized within both the internal legal governance of the EU and its external action on the global arena? (3) Is the human (anthropological) dimension of cultural heritage recognized by the EU and, if so, to what extent? What is the place of cultural heritage within the human rights framework in Europe? (4) How does the EU protect, support, and enhance cultural heritage and the human rights attached to it? Consideration of these framework questions makes it possible to identify a number of areas that require an in-depth analysis, and from which recommendations could be drawn in order to strengthen the protection, access to, and governance of cultural heritage within the institutional, operational, and legal structures of the EU. 1

Cultural Heritage as an Evolving Concept

1.1 Developing a Sense of Shared Cultural Heritage and Identity By designating 2018 as the ‘European Year of Cultural Heritage’, the European Parliament and Council have sought to strengthen ‘a sense of European * While the conclusions have been elaborated by all the authors, Andrzej Jakubowski has authored Sections 4–5, Kristin Hausler Sections 1–2, and Francesca Fiorentini Section 3. 1 See Decision (EU) 2017/864 of the European Parliament and of the Council of 17 May 2017 on a European Year of Cultural Heritage (2018) [2017] OJ L131/1 (hereinafter Decision (EU) 2017/884).

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i­dentity’ through highlighting European values.2 While the eych 2018 has highlighted cultural heritage as a matter of particular interest for the EU, it is a field that had already attracted the attention of European institutions even prior to the Treaty of Maastricht. The efforts to strengthen the feeling of belonging to the European polity and advance European integration through the creation of a common market led to a number of initiatives in the field. Accordingly, the notion of a shared, common, or European heritage was already introduced by the European Communities in the 1970s and 1980s. As the decision to launch the eych 2018 shows, since these early efforts to establish a sense of shared and common heritage, the concept of cultural heritage has vastly expanded, and has come to include not only architectural monuments and sites, museums, libraries, and archives, but also ‘traditions, transmitted knowledge, and expressions of human creativity’.3 The concept of ‘European cultural heritage’ is thus understood to also include a ‘shared source of remembrance, understanding, identity, dialogue, cohesion and creativity, [which] contributes to economic growth and social cohesion’.4 Furthermore, Europe’s common cultural heritage transcends the sum of Member States’ heritages, serving as an important, axiological foundation for the EU. Yet this is not always made clear in the EU’s cultural heritage initiatives such as, for example, the initiative pertaining to the digitization of cultural heritage, which appears on the surface to focus mainly on national masterpieces. The evolving conceptualization of cultural heritage needs to be considered in light of the developments in other fields, such as technology. Digitization, an area in which the EU has heavily invested, has performed a particular role in our understanding of European cultural heritage. By making borders and gaps between regions (and between the past and present) disappear, digitization has played a part in the sense of a European identity related to the millions of objects (books, films, photographs, artworks, etc.) preserved in public institutions, in addition to sites and monuments. Despite the fact that the conceptualization of cultural heritage has greatly developed over the past decades, a number of obstacles associated with its understanding, including its understanding in the legal field, still prevent it from becoming truly inclusive and 2 ‘European Year of Cultural Heritage in 2018: celebrating the diversity and richness of our European heritage’, ceu Press Release 52/17. 3 Ibid. 4 The formulation ‘European cultural heritage’, asserted in the following Legislative Train Schedule, marked a significant expansion of the terminology, ‘Europe’s cultural heritage’, used in Decision (EU) 2017/864. See: Legislative Train Schedule, Culture and Education, ‘European Year of Cultural Heritage 2018’ accessed 6 February 2019.

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thus unleashing its full potential vis-à-vis the strengthening of the European identity. 1.2 Specific Challenges in Conceptualizing Cultural Heritage Conceptualizing cultural heritage is in itself difficult as its content is in constant flux. In addition, defining European culture is linked to national contexts and sometimes conflicting perspectives on history. As a result, the conceptualization of European cultural heritage is generally broadly-encompassing, but also unclear. However, while the concept of cultural heritage encompasses a wide array of aspects, emphasis has often been placed on certain specific forms of cultural heritage which have been formally recognized as part of ‘European cultural heritage’, such as those falling under the European Heritage Label (ehl). For example, while the ehl has been granted principally to monuments or sites, such as the European District of Strasbourg, which ‘bears witness to European integration, the defence of human rights, democracy and the rule of law’, the label has also been granted to the Maastricht Treaty itself. Thus, despite a focus on physical sites, there has been an effort to consider their figurative importance in promoting European values, rather than their aesthetic values. Enhancing certain aspects of cultural heritage because they are deemed of utmost importance for Europe has brought together a wide variety of cultural heritage representations into one category. This generates some issues as different types of tangible cultural heritage require different measures of protection, depending on whether they are antiquities, monuments, or more modern objects. Similarly, intangible cultural heritage, which includes traditional practices or performing arts, also call for a different approach, both with regard to their protection and their instrumentalization by the EU. With regard to intangible cultural heritage in particular, it can be argued that the EU has not yet sufficiently taken advantage of its potential in strengthening European identity and supporting European development, for example. While EU policy documents and actions do include ‘intangible’ aspects into the EU heritage discourse (see for example the attempts by the European Parliament to create a narrative on ‘values’ or ‘musical and ethno-anthropological heritage’), they do so in an imprecise manner, which leads to a fragmented EU policy and strategy for the safeguarding of intangible cultural heritage. Despite the use of ‘European cultural heritage’ to promote the EU Member States’ economic development, the EU has so far continued to focus on tangible heritage as a vector for economic development. Similarly, while it is not fully clear what can be understood as ‘landscapes’ under cultural heritage law (including the CoE’s treaty law), its conceptualization within EU law has so far been limited, emphasizing the natural values of rural and/or landscapes,

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rather than enhancing cultural values and the various ways in which people interact with and relate to those landscapes. This limitation is reflected in the recent a­ mendment to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (eia Directive),5 which equates landscape with a ‘view’; in the Common Agricultural Policy (cap), where the focus is on maintaining the rural scenic quality of agricultural landscapes; as well as within EU environmental law, where the emphasis is placed on nature and the protection of natural habitats. However, cultural landscapes also entail intangible elements as a result of the ways in which they are used, a dimension that should also be considered in their effective protection. There are a number of gaps in the general conceptualization of cultural heritage, which means that is not adequately protected under EU law at present. A lack of a holistic approach to cultural heritage also results in an inadequate instrumentalization of cultural heritage in relation to the wider aims of the EU. In order to fill those gaps, additional funds should be allocated to conduct evidence-based research in those cultural heritage fields that are still misunderstood (and thus lack effective protection), such as, inter alia, intangible cultural heritage and cultural landscapes. 1.3 The Conceptualization of Cultural Heritage in Practice Beyond the general conceptualization of cultural heritage in law, cultural heritage has also evolved over time into a powerful legal concept linked to the identity of nations, communities, and individual persons in practice. Yet, when balancing national interests and human rights, the legal sphere, judicial mechanisms in particular, must also make further efforts to adopt a holistic approach when considering cultural heritage matters. Both the ECtHR and the cjeu (formerly the ecj) have often considered States’ interests in protecting cultural heritage vis-à-vis individual rights and freedoms. In fact, the two courts often address similar cases, pertaining for example to the export of cultural objects which may fall within a category of objects protected under domestic law due to their links with national heritage while also having an economic value for their private owners. However, each court has addressed these cases from a different perspective and on a different legal basis. On the one hand, the ECtHR has balanced the human right to property vis-à-vis the legitimate aim of a State to protect its national cultural heritage. In other words, the ECtHR tends to recognize certain limitations to the individual human right to property when there is a conflicting national interest in preserving cultural her 5 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L124/1.

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itage. It considers the human right to enjoy cultural heritage primarily as one belonging to the general public, and not to individuals to enjoy privately.6 On the other hand, the cjeu appears to offer greater protection to individual interests in cultural property than to national interests in protecting cultural heritage, based on the core freedoms of the EU (such as free movement of goods) rather than a human right to enjoy cultural heritage. It thus seems that the cjeu is more favourable to protecting individual interests in the enjoyment of cultural heritage as private property within the EU Single Market, whereas the ECtHR tends to balance private property rights within a broader context of cultural heritage considerations of a given State and its society. Considering the need for EU law to adopt a consistent human rights policy, including with regard to the rights attached to cultural heritage, in view of the future EU’s accession to the ECtHR, such a difference in approaches to similar cases may become an issue.7 The cjeu has also not yet considered the application of Article 167(4) tfeu as the basis for a cultural exception to free trade within the EU Single Market, which could in turn protect cultural heritage as a common good while also serving as a way to bring the jurisprudence of both Courts into accordance in cases involving cultural heritage. Although EU primary law does not offer a formal definition of cultural heritage, its constitutional principles derive from international human rights instruments, which today also comprises reinforced cultural human rights. The general principles of EU law thus include the rights guaranteed by the echr, including those that have been applied to enforce access to Europe’s cultural heritage. Accordingly, everyone is a holder of the human right to create, maintain, and enjoy their heritage in a society based on freedom, democracy, equality, and the rule of law, which allows cultural diversity to flourish. The EU Treaties also refer to ‘Europe’s cultural heritage’, ‘bringing the common cultural heritage to the fore’ and preserving ‘cultural heritage of European significance’, and EU institutions have addressed the ‘commonalities’ along with references to cultural diversity. In addition, the EU and its Member States are subjects of international law and thus are bound to comply with their international human rights law obligations in the realm of cultural heritage. The humanization and constitutionalization of cultural heritage law will thus affect the notion and content of the cultural heritage provisions of EU law, particularly those referring to Europe’s common cultural heritage. Hence, cultural heritage as a legal concept should not only refer to what is relevant to Europe but also encompass universal values. 6 See Beyeler v Italy echr 2000-i 57 para 113. 7 See Philip Alston and Joseph HH Weiler, ‘An “Ever Closer Union” in Need for a Human Rights Policy’ (1998) 9 (4) ejil 658.

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Despite the need to take into account the ECtHR jurisprudence, this is not as straightforward as it may seem given that the conceptualization of cultural heritage within the ECtHR is not yet holistic. For example, the ECtHR case law concerned with landscapes adopts a narrow understanding of the concept, one that is limited to their scenic or preservationist character, rather than including the relationship (or use/practice) between people and a place over time, as understood under cultural heritage law. While the ECtHR has on occasion referred to CoE instruments dealing with cultural heritage (as has the European Commission in its policy documents and environmental law), it has only done so in order to uphold the rights of States to interfere with individual rights and freedoms in favour of the general interest in landscape protection, not in relation to any of the rights contained in the Convention itself. Standing has also been an issue before the ECtHR. When applicants have argued for landscape protection on the basis of human rights, their cases have been almost always dismissed due to a lack of locus standi and lack of identifiable victims.8 Therefore, the ECtHR has yet to adopt a conceptualization of cultural heritage in line with its global understanding, a conceptualization that may then trickle down to the cjeu, which does not yet refer to cultural heritage but rather still uses the term ‘cultural objects’ (formerly ‘cultural goods’) even when referring to objects that have a symbolic value for a nation. Of course, the limited conceptualization of cultural heritage by the cjeu also stems from the limited types of disputes it hears on the topic, i.e. cases involving national treasures and a national interest in preserving cultural heritage. 2 The EU’s Role in the Field of Cultural Heritage The EU has sought to strengthen its role in cultural heritage governance, affirming that ‘cooperation in heritage preservation, conservation and promotion, can only be achieved at the EU level’.9 Nevertheless, in accordance with the division of competences, its key role remains limited to that of coordinator and supporter of the Member States as they carry out their respective national competences. As mentioned in Decision (EU) 2017/864: Policies for the maintenance, restoration, conservation, reuse, accessibility and promotion of cultural heritage and related services are primarily national, regional or local responsibilities. Nevertheless, cultural heritage 8 See, for example, Kyrtatos v Greece echr 2003-vi 257. 9 Legislative Train Schedule (n 4).

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has a clear European dimension which is addressed, in addition to cultural policy, through other Union policies such as education, agriculture and rural development, regional development, social cohesion, maritime affairs, environment, tourism, the digital agenda, research and innovation, and communication.10 Taking into account the broadly-encompassing understanding of cultural heritage, the EU has integrated the contribution of cultural heritage to social, (inter)cultural, political, educational, symbolic, economic, and environmental values in a variety of policy areas beyond culture. However, the basis for its actions has not been consistent. The EU has sometimes based its actions on the ‘transnational element’ of the relevant activities concerned and the promotion of partnerships and networks, and other times, it has highlighted the European significance of heritage assets and events at the national or local level, as well as the duty of its institutions to promote cultural diversity and sustainable development. In most instances, even if its intrinsic value is acknowledged, EU institutions have adopted an instrumental approach to cultural heritage,11 developing actions to fulfil its own aims, such as strengthening the European identity, fostering intercultural dialogue, supporting economic and social development, and promoting social inclusion, as discussed in the following section. The concept of ‘national treasures’ particularly demonstrates the tensions associated with the issue of competences and the means to overcome them. While Member States themselves define their ‘national treasures’ (the trade of which may be restricted under domestic law), harmonization has been pursued through a variety of means, such as soft-law provisions like codes of ethics or guidelines, diplomatic channels for restitution, as well as through an EU-specific mechanism, i.e. the Open Method of Coordination. The EU has adopted various initiatives to enable Member States to protect their national treasures after the establishment of the Single Market, despite having no competence over cultural matters that could lead to legal harmonization. Its support has in turn improved the protection of cultural heritage at the national level. With regard to national treasures, the EU has adopted instruments aimed to protect Member States’ heritage from the threats of its removal outside the EU customs borders12 and to facilitate the return of national treasures 10 11 12

Decision (EU) 2017/864, Preamble, 1st recital. Council conclusions on cultural heritage as a strategic resource for a sustainable Europe [2014] OJ C183/36, para 9. See Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods (Codified version) [2009] OJ L39/1.

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within the internal market. Most significantly, Directive 2014/6013 strengthens administrative cooperation between Member States for the return of national treasures, while Member States retain their competences in regulating and designating what constitute national treasures. In addition to being creative in the means it has used to impact the cultural field, the EU has also sometimes been able to address culture through other areas, despite its limited competences. For example, through its remit in the fields of agriculture, and even more so in environmental matters, the EU has managed to adopt measures that protect cultural landscapes. In particular, environmental impact assessment directives include the requirement to assess the effects of projects not only on environmental elements, but also on cultural heritage and the landscape. As a result, it may be possible to allege a breach of an environmental impact assessment even if the status of cultural heritage and landscape is marginal within eia Directive. Recent policy documents also acknowledge that ‘conservation is increasingly geared towards preserving and enhancing a whole cultural landscape rather than an isolated site, and is also becoming more people-centred’.14 However, this also means that access to justice is challenging with respect to landscape matters related not to environmental breaches but to cultural ones. Even in cases which fall within environmental matters through breaches of environmental impact assessments, the standing requirements at the national level are narrow. To sum up, despite the lack of EU competence in the field of cultural heritage, there needs to be some policy action in order to properly protect and promote cultural heritage. This protection may be afforded through other areas in which the EU has competence. For example, with regard to cultural landscapes, given that it falls within environmental matters there is some scope for elaborating the content of landscape, both in relation to its significance within an eia, as well as in the creation of a possible network for cultural landscapes similar to the Natura 2000 Network. 3

Instrumentalizing Cultural Heritage: Benefits and Limits

Cultural heritage may serve not only as a tool for dialogue, but also give rise to conflict and even rupture. Therefore, the instrumentalization of cultural 13 14

Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 [2014] OJ L159/1. European Commission, ‘Towards an integrated approach to cultural heritage for Europe’ (Communication) com (2014) 477 final, s 1.3.

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­ eritage requires considerable reflection. EU policy has largely acknowledged h the role that cultural heritage may play in supporting not only cultural identities and diversity, but also the economy, trade, and sustainable development. Access to and participation in cultural practices may serve to measure economic and social growth. While the debate about common goals is ongoing, there is some degree of consensus with regard to safeguarding of cultural heritage to support economic development, for example. Travelling exhibitions is a traditional way for the public to not only become acquainted with foreign cultures, but also with their own common cultural heritage. They thus fit nicely within the aims of the 2018 European Year of Cultural Heritage, i.e. to ‘encourage people to explore Europe’s rich and diverse cultural heritage’.15 Therefore, securing the mobility of collections is a key element in establishing a sense of shared cultural heritage. While immunity from seizure is required to guarantee the mobility of collections, Member States have long held that this issue belonged to their national competences as sovereign States and should not be considered as a community competence. They have however recommended that the Commission should provide a platform for sharing and exchanging best practices, although this platform has yet to be established. At the same time, not all EU Member States have domestic legislation in place to guarantee the mobility of collections, with a number offering different levels of protection depending on whether the object on loan belongs to a foreign State or a foreign individual. Finally, a number of EU States are not signatories of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property which, although it has not yet entered into force, still constitutes another instrument to support the mobility of collections and thus the aims of the eych 2018. The EU has also gradually integrated the use of cultural heritage within its external relations in order to realize foreign policy objectives, such as supporting sustainable development or democracy. The adoption of the Joint Communication in 2016,16 nearly ten years after the Commission recognized culture as a key component in international relations, was a major step towards the development of a strategy on culture within the EU’s external relations. However, while the Joint Communication provides a clear framework for immediate action with regard to research, combating trafficking, and protection, it does not approach cultural heritage in a holistic fashion, neglecting its potential role with regard to sustainable ­development, intercultural dialogue, and peaceful 15  accessed 14 March 2019. 16 European Commission, ‘Joint Communication to the European Parliament and the Council: Towards an EU strategy for international cultural relations’ join (2016) 29 final.

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interrelations. At the same time, by identifying the promotion of cultural heritage as an important element of the EU’s international dimension within the objectives of the eych 2018, the EU now has to sustain its efforts in order to fully harness the potential of cultural heritage in strengthening its external relations, as well as affirm the role of the EU in international development and in maintaining peace and security. In addition to fulfilling foreign policy objectives, external action in the field of cultural heritage may also contribute to the fulfilment of legal obligations, and thus go beyond ‘cultural diplomacy’. All EU Member States, as well as the EU itself, have international obligations with regard to cultural heritage, stemming from their participation in treaties addressing various aspects of cultural heritage as well as human rights treaties. These treaties generally include a duty of international assistance and cooperation in order to fulfil the aims contained therein. Thus all EU Member States must assist third States Parties to the World Heritage Convention in protecting sites that have World Heritage status; almost all EU Member States must also cooperate in the safeguarding of intangible cultural heritage with third States Parties; and most EU Member States must also cooperate with third States in order to curb the illicit trafficking in cultural objects; and all EU Member States have an obligation to cooperate and assist third States in realizing their duty to fulfil the human rights of those under their jurisdictions to access and enjoy cultural heritage. While the EU may not fulfil these duties in lieu of its Member States, its external actions in these areas may support and complement their international legal obligations to provide assistance and cooperation. Member States should thus support the EU in seizing upon its subsidiary competence in external cultural heritage matters and encourage the EU to further develop its strategy on cultural heritage in its international relations. Within the EU’s external action, cultural heritage has also been instrumentalized in EU trade agreements with third countries. However, the implementation of cultural heritage considerations by the EU via its Common Commercial Policy (ccp) is flawed. Cultural heritage provisions are not aimed, despite their growing number and importance and even when they are placed in Cultural Cooperation Protocols, at cultural heritage protection per se, but are used instead as instruments to reach other goals or to better implement other policies of the EU. Culture and cultural heritage seem to remain, at the practical level, a matter for Member States to decide, both within the internal market and within external relations. Arguably, the inclusion of obligations regarding the protection of cultural heritage in trade agreements could help implement sustainable development goals, but such an approach would require improving coordination between the relevant DGs of the European Commission, Trade

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and Culture, and more systematically engaging stakeholders and civil society in this field, including making better use of the new role attributed to the European Parliament in the ccp by the Treaty of Lisbon. While intangible cultural heritage may be used for economic development, this raises serious issues as that form of cultural heritage is particularly rooted in the identity of communities. However, using the framework of sustainable development may be a means to integrate intangible cultural heritage within economic development, as sustainable development is not only part of the 2003 Convention and unesco actions but also of EU policies. Increased attention to this area, as well as further cooperation between unesco and the EU, may lead to the adoption of a balanced approach to integrating intangible cultural heritage in a manner that respects the 2003 Convention while also supporting the aims of the EU. Digitizing the collections of European museums, libraries, and archives provides a means to preserve cultural heritage while also democratizing it and thus increasing participation. In addition, digitization also reinforces Europe’s symbolic prestige and cultural status, both within the EU (as an element of integration) as well as towards the rest of the world. In particular, it is an important means for integration with regard to the enlargement process. Inasmuch as its implementation has required the creation of jobs and an entire industry across Europe, digitization has also served as a motor for economic growth for the EU, as well as a means to exercise economic influence around the world. However, the strong EU policy with regard to digitization has also become a threat with respect to other activities undertaken by cultural institutions, such as research into collections, the funding of which has sometimes been cut in order to support the expensive process of their digitization. Thus, a policy aimed at granting a wider and more equal access to cultural heritage can also limit access to it from another perspective. Another limitation lies in the fact that the EU digitalization policy is principally concerned with cultural heritage housed in public institutions, thus not directly supporting the inclusion of those objects that are part of private collections or the intangible cultural heritage of minority groups, which remain on the margins of the EU digitization policy. The implementation of the 2016 Recommendation of the Committee of Ministers on the internet of citizens may allow for the potential of digitization to be fully exploited.17 The Recommendation addresses the current threat of to the use of the internet 17

Council of Europe, ‘Recommendation of the Committee of Ministers to Member States on the Internet of citizens’ (10 February 2016) CM/Rec(2016)2 accessed 6 February 2019.

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(infringement of privacy, breaches of data security, hate speech and/or manipulation), which may also impact digitized cultural heritage, while at the same time promoting the human and cultural dimension of the internet. The EU has thus sought to gain political, cultural, and socio-economic benefits in relation to its action in the field of cultural heritage, and in recent years the socio-economic potential of cultural heritage has been emphasized. However, this ‘heritagization’ of EU policies may harm the other benefits that cultural heritage may bring, and even its intrinsic value. For instance, an overinstrumentalization may curtail actions aimed at addressing some of the pressing challenges faced by cultural heritage, such as environmental threats and urbanization pressures, illicit trafficking, looting and destruction of cultural sites in conflict areas, etc. Budget cuts may also endanger the management and safeguarding of cultural heritage. The EU must thus be aware of both the opportunities as well as the risks associated with the instrumentalization of cultural heritage. A number of tools may be used in order to properly instrumentalize cultural heritage, including the use of indicators, education programmes, and a valuebased approach. With regard to the use of indicators to link cultural heritage and economic growth, the EU may learn from the experience of unesco and unwto. Although these two bodies take a very different approach to obtaining reliable data about culture within the development framework, they both rely on indicators to foster dialogue across institutions and policy sectors and aim at building consensus in decision-making on a specific subject. Indicators bypass traditional law-making processes, which has both positive and negative aspects. On one hand, they provide a communication platform which enables not only target states, but also non-state actors such as non-governmental organizations and civil society, to highlight specific issues through the collection of data and statistics. On the other hand, by highlighting specific topics or priorities, indicators might also fail to provide a full picture of the issues. However, despite the risk of putting certain issues in the shadows, indicators are a valuable tool to present a shared view on the cultural policies to be implemented, even in the absence of political consensus. Their soft law approach may also yield better results than legal measures in terms of the implementation of EU strategies for economic growth through the valorization of cultural heritage. Finally, the bottom-up approach used by these indicators, which involve the relevant stakeholders, allows for the collection of reliable data that may support initiatives undertaken by the EU in the field of cultural heritage. As the same Directorate coordinates measures relating to education and culture, the strong links within those two complementary areas may serve to improve the instrumentalization of cultural heritage. The EU uses the concept

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of Europe’s cultural heritage within education programmes as a tool not just to raise awareness of cultural heritage itself, but also to foster economic development, social integration, and intercultural dialogue. While some projects that have used this concept, such as the common history book for the EU or the House of European History, have either failed or faced criticism, they have also stimulated discussions about the EU and its common goals, something which should be considered as beneficial in itself. However, developing a common cultural heritage may also lead to focusing on a limited number of representations of that cultural heritage (such as through the adoption of legal protections), thus excluding others that may not fall within the accepted concept of a common European cultural heritage. Also, if educational policies are based on radical nationalism for example, they can threaten the cohesion of the EU. Nevertheless, education projects concerning Europe’s cultural heritage should continue to be strongly supported, as the potential benefits associated with them outweigh the risks. In order to resolve conflicts arising from the various aims sought to be achieved via the use of cultural heritage, the use of a method stemming from cultural economics and called ‘value-based approach’ can be suggested. This method aids in the selection and realization of chosen sets of values in projects that pertain to cultural heritage. It is based in the involvement of all relevant stakeholders in order to assess what is important to them and thus consider the different values at stake in order to resolve conflicting views and support cooperation, for example by establishing a public/private partnership. While this is an idea worth exploring, it does bring with it a number of challenges, such as, among others, the identification of relevant stakeholders. While instrumentalizing cultural heritage is not inherently a negative endeavour, a holistic and integrated approach to cultural heritage must be implemented in order to ensure that cultural heritage does not support economic growth at the expense of the realization of human rights or deter the fostering of more inclusive societies. Thus, a conceptualization of cultural heritage which is both holistic and anthropological is key to its adequate instrumentalization. 4

Cultural Heritage Governance: Making the Participatory Model Work

The cultural heritage of communities (and minorities in particular) is protected within human rights law as a means to exercise cultural rights, as well as within the right specifically belonging to minorities to enjoy their culture. While the EU has indirectly protected the cultural heritage of some ­minorities

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and Indigenous (Saami) groups, it has not done so in a consistent manner and has not developed adequate principles applicable to cultural heritage initiatives that relate to minorities. There has been a renewed interest on the part of the EU in the cultural heritage of new migrants, partially to counter some discriminatory measures adopted by certain States. However, minority communities (including migrants who have long been established in the EU) generally only benefit from more general measures protecting regional or local cultural heritage, but not from measures specifically protecting the heritage of minorities. Their heritage is even at risk of being appropriated by the majority and presented as national heritage. At the EU level, the concept of Europe’s cultural heritage may exclude minority heritage, which may not be deemed as representative enough. The ‘participatory governance model’ being promoted in the EU should minimize the risks to minority cultural heritage (perhaps also through the development of the value-based approach noted above). In order for the participatory model to be truly successful, policies should be adopted to ensure that minorities, communities, and vulnerable persons are seen as stakeholders in the same way as national experts and historians. The migration crisis is one of the key challenges for the EU at present, and offering sufficient protection to the cultural heritage of migrants may be one of the keys to successfully address it. With regard to new migrants in particular, despite some interest on the part of the EU, their cultural heritage is neither adequately recognized nor protected within the EU. At present, initiatives in the fields of cultural heritage and migration appear inconsistent, with programmes and actions aimed at building a cohesive and multicultural European society being limited by those actions adopted by the EU institutions and Member States to control immigration. For example, those EU institutions and EU States that have established the Creative Europe Programme to celebrate the contribution migrants make to cultural diversity in Europe have responded to the recent mass movement of migrants and refugees by building legal and material barriers. It may also appear paradoxical that while the EU is putting a lot of resources into the safeguarding of cultural heritage in conflict areas, the cultural heritage of those fleeing those conflicts and arriving in Europe does not fall under any specific protection measures. More critically, it appears that the integration strategies of EU Member States do not always abide by EU standards (in particular the 2004 Common Basic Principles on Integration and the Action Plan). There is a need not only for Members States to adopt integration strategies that safeguard cultural heritage, but also to monitor their implementation in order to ensure that they are adequate with regard to the vulnerable and sensitive segments of migrant communities (including women and children). Again, this would support the development of a successful

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­ articipatory model in cultural heritage governance, one where all migrants p may participate in a meaningful way in the cultural life of the host country. In turn, this facilitates a strengthened social inclusion, and aids in avoiding marginalization and the rise of extremism. Awareness-raising is also important in this regard, and should be aimed at educating the host state population about the migrants’ cultural heritage, as well as about past waves of migration. While the close relationship and need for cooperation between education and culture has already been noted, it could be strengthened with regard to the Directorate dedicated to Migration and Home Affairs. The rights of the duty-bearers of intangible cultural heritage (communities, groups and individuals, although not necessarily members of minority groups), are particularly at risk of being disrespected through the search for Europe’s common cultural heritage. As already mentioned, a majority population may wish to claim a minority heritage, including intangible cultural heritage, as part of its own. This would violate the principles of the 2003 Convention, which provide for the involvement of duty-bearers at all stages of safeguarding intangible cultural heritage, as well as the requirement to obtain their free, prior, and informed consent for any actions concerning the heritage in question. There is therefore a need, with regard to both intangible cultural heritage as well as other forms of minority cultural heritage, to follow a bottom-up approach, which adopts the definition of cultural heritage from the duty-bearers themselves, and not a top-down approach stemming from the EU level. Another threat to intangible cultural heritage may result from States (and in turn the EU) focusing on their listed representational character. In addition, certain inscriptions to the Representative List coming from EU Member States, such as the ‘Beer culture in Belgium’ or the ‘Mediterranean diet’, are particularly vulnerable to oversimplification and commercialization, which may fit with the EU’s focus on the economic value of heritage, but go against the value of the duty-bearers themselves. In order to fully integrate the potential of intangible cultural heritage, while also protecting it adequately, more efforts should be made at EU level to understand the 2003 unesco Convention (including how it differs from the 2005 unesco Convention and the 1972 World Heritage Convention). The lack of competencies of the EU in the area is an issue, particularly when States may not wish to raise the profile of certain local communities within their territories; while some other States may simply lack the capacities to do so and thus welcome EU action in the area. The EU digitization policy is also problematic as it follows a macro, topdown approach, being conducted by various agencies and institutions in the Member States. In addition, while the EU digitization strategy supports the

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digitization of any form of cultural heritage, there is not sufficient reflection on the meaning and role of cultural heritage for all stakeholders. In particular, more analysis should be undertaken on the role of digitization with regard to the building of regional and local identities, and the preservation of the cultural heritage of ethnic minorities. A better-tailored digitization policy would also be more apt to address some of the contemporary challenges facing the EU. Finally, the Conclusions on participatory governance of cultural heritage, adopted in 2014, invite the Member States and the Commission ‘to enhance cooperation with international organizations such as the Council of Europe and unesco to promote a participatory approach to cultural heritage governance’.18 This echoes Article 167(3) tfeu, which provides for cooperation with ‘competent international organizations in the sphere of culture, in particular the Council of Europe’. Increased cooperation would be particularly welcome with regard to intangible cultural heritage as well as cultural landscapes. As this would reinforce the level of protection afforded to cultural heritage across the Member States, it would also in turn strengthen access to justice when rights attached to cultural heritage are allegedly violated. 5

Final remarks

Despite its lack of a specific competence in the field of cultural heritage, the EU must continue to seek to establish a European cultural heritage, through more coordination and cooperation at different institutional and policy levels. The conceptualization of a ‘shared’ cultural heritage, particularly in the legal sphere, is not without risks, and it must respect cultural diversity and the rights attached to minority heritage. Notwithstanding the difficulties, the EU has a lot to gain in working towards the acceptance of a common cultural heritage, as it contributes to the idea of a common heritage of mankind and thus to the emergence of global norms and standards accepted at both the international and national levels. Thus, by contributing to this important concept, the EU also asserts itself as a global actor. At a time when the EU is facing pressing challenges - including armed conflicts and humanitarian crises in neighbouring regions, migration, threats to democracy and to the EU legal framework and integrity (including Brexit), ­terrorism, populism, and economic difficulties - cultural heritage should continue to serve as an anchor for peace and a vector for the wellbeing and 18

[2014] OJ C463/1, s 2.3.

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development of the EU’s members. As noted by Krzysztof Pomian in his Foreword, the current challenges facing Europe should not just be addressed ‘with rational arguments, but also with strong and positive emotions’, based on ‘a shared heritage and thus on a vision of a shared future’. The existence of a common European cultural heritage and identity should not be taken for granted. The recent crises may support the view that the EU has not yet established a unifying sense of a common and shared European history. The instrumentalization of cultural heritage by EU institutions is still relevant to foster the EU project, but it must be conducted with care in order to reinforce a positive vision of a shared Europe and European identity which are now vacillating. eych 2018 can serve as a springboard for more reflection pertaining to the role of cultural heritage in forging a stronger and truly inclusive sense of European identity.

Index access to culture 46–47, 118, 123, 218, 249, 287, 301–302, 443 See also access to cultural heritage, cultural life, right to take part/participate in, participation, right to cultural heritage access to cultural heritage 9, 53, 69, 119–120, 137–138, 195, 209, 221, 235, 255, 424, 432, 441, 455 access to information 46, 121, 401, 406–408 access to justice 8, 401, 406–409, 415, 452, 460 accession to the eu 27, 34, 82, 112, 315, 375, 440 accession of the eu to echr 38–40, 47, 131–134, 138, 276, 278, 376, 449 Afghanistan 380 Agenda 2000 398 Albania 199, 229, 336 Algeria 179, 200, 205 See also Mediterranean nonsmember countries (meda countries) all-European identity 425 See also collective identity, Europe’s common heritage American Alliance of Museums (aam) 80 See also art market, self-regulation Andorra 198 archaeological heritage 23, 27, 59, 63–65, 69, 81, 85–88, 94–96, 100–101, 103–104, 106, 110–112, 123, 126, 136, 170, 177, 234, 279, 403, 410, 438 architectural heritage 20–24, 27, 32, 63–65, 74, 147, 159, 177–178, 371–372, 403, 446 Area of Freedom Security and Justice (afsj) 311 Ariane Programme 371 Armenia 201, 229 armed conflict ix, 3, 42, 81, 85, 275, 297, 321, 380, 382–384, 388, 438, 460 art loan(s) xiii–xiv, 7, 88–90, 213–240 See also cultural exchange, mobility of collections

art market 81–84, 119, 208–209 illicit trafficking 50, 63, 67, 78, 81, 85–87, 104, 111, 179, 182, 205, 209, 215, 219, 225, 237, 240, 377, 379–380, 387, 393, 394, 453–456 self-regulation 6, 80, 88–89, 105, 451 See also art market, cultural good(s), cultural object(s), cultural property(ies), due diligence artistic freedom 39, 301, 308 See also freedom of expression arts xvii–xviii, 39, 81, 91, 94, 106, 126, 136, 147, 155, 204, 222–223, 250–251, 258, 296, 299, 320, 326, 328, 350–351, 354–356, 359–360, 438–439, 447 artwork(s) xiii–xvi, 24, 28, 63–67, 81, 85–86, 89, 91, 94–96, 102–103, 106, 124, 136, 157–158, 214–217, 222–224, 228, 232–237, 270, 275, 296, 298, 301, 325, 346, 374, 430–434, 439–440, 446 See also arts, cultural good(s), cultural objects, cultural property(ies), monument(s) Association of Art Museum Directors (aamd) 80, 88 See also art market, self-regulation asylum 303–305, 311–316, 318–319 Asylum Migration and Integration Fund 318–319 audiovisual policy 190, 195–196, 244 audiovisual sector 3, 24, 28–29, 41, 91, 125, 147, 189–191, 195–196, 203–210, 244, 256, 272, 352, 357, 369, 429, 432 Australia 170, 193 Austria 44, 99, 215, 217, 227–229, 233, 385, 388, 396, 435 Azerbaijan 54, 201 Belarus 229 Belgium 16, 219, 229, 233, 331, 353, 362, 385, 388, 433, 435, 438, 459 biodiversity 51, 205, 402, 435 Biodiversity Heritage Library (bhl) 435 Bolivia 328 Bosnia-Herzegovina 199, 336, 370–371

464 Brazil 192 Brexit 3, 35, 54, 139, 442, 460 built heritage 157–159, 172–173 See also architectural heritage Bulgaria 119, 326, 331, 370, 385, 388, 426–427 Canada 190, 201–202, 208–209, 289, 330 capacity-building 73, 151, 160, 270, 370, 374 cariforum 196, 202–207 Central America 196, 203–206 Chile 201 China xiv, 192–193, 419 Cold War 1–2, 366 collective identity 13, 31, 41–43, 47, 70, 119, 137, 269–270, 301–302 See also all-European identity, cultural identity, national culture collective right(s) 5, 36, 43–47, 49, 52, 118–121, 136–138, 270, 279, 301–303, 413–414 Colombia 196, 203–206 colonialism xiv–xv, 245–246, 372 See also decolonization Committee of Legal Advisers on Public International Law (cahdi) 228–229, 239 Committee on Economic, Social and Cultural Rights (cescr) 299–303, 388–391 Committee of the Regions 211 common agricultural policy (cap) 346, 396, 398–399, 448 Common Basic Principles on Integration  318–322, 458 common commercial policy (ccc) 7, 184–212, 454–455 common foreign and security policy  368–369 See also eu external action common goods 41–42, 49–53, 56, 61–62, 107–108, 252, 339, 383–386, 392, 400, 449 See also global commons common heritage of humanity/ mankind  ix, xiii, 88, 106, 112, 256, 328–333, 384–386, 460 See also world heritage, Europe’ common heritage

Index Community Research and Development Information Service (cordis) 346–347 constitutional traditions 35, 46–48, 56, 130, 315–316 constitutionalism 35–42, 49–52, 54–56 constitutionalization of international law 36–40, 49–52, 56, 449 copyright 7, 23, 123, 273, 422–425, 438–439 See also eu Intellectual Property Observatory, intellectual property rights, orphan(ed) work(s) Council of Europe (CoE) ix–x, xii–xiv, 18, 20, 22–23, 28–30, 33–35, 42–47, 50, 54, 63, 66, 80, 87, 113, 116, 133, 172–173, 180, 215, 221, 228, 239, 256, 274, 278, 290, 304, 341, 347, 359, 366–367, 369–370, 374, 380, 385, 393, 396, 400, 402–403, 408, 414–416, 420, 436–437, 447, 450, 460 Council of the European Union (ceu) 57, 60–62, 65, 68, 72–73, 75, 86, 117, 187, 189–190, 206, 211, 216–220, 225, 232, 244–245, 248–250, 254, 256, 272–273, 285–287, 291, 318, 334, 340–343, 365, 367, 373, 375, 378–382, 392–393, 401, 407, 423, 428, 445 country of origin 122, 278, 285, 295–296, 301–302, 305, 308, 317–321 Court of Justice of the European Union (cjeu) 37, 59–60, 114–117, 122–129, 134–140, 190, 276, 278–279, 448–450 See also European Court of Justice (ecj) Creative Europe programme ix, 15, 66–67, 71–72, 75, 90–92, 255–258, 287, 307–310, 321, 345–346, 348–360, 458 See also creativity creativity 3, 32–33, 45, 51, 54, 60–63, 71–72, 102, 179, 216, 249, 286, 325–326, 338–339, 345, 362, 373, 446 See also Creative Europe programme Croatia 261, 332, 353, 388, 426 cultural awareness 247–255, 264 cultural cooperation xvi, 25–30, 58, 64–68, 71, 77, 143, 194–198, 202–210, 216, 370–378, 383, 386, 436, 444 See also cultural diplomacy, Cultural Diplomacy Platform, Cultural Cooperation Protocols, international cooperation

Index Cultural Cooperation Protocols 194–198, 202–206, 210–212, 454 See also cultural cooperation, cultural diplomacy, Cultural Diplomacy Platform, international cooperation cultural development 40, 43 See also Culture for Development Indicators (cdis), sustainable development, United Nations 2030 Agenda for Sustainable Development cultural diplomacy 5, 8, 31, 328, 342, 366–367, 376, 381–382, 394, 454 See also cultural cooperation, Cultural Diplomacy Platform, Cultural Cooperation Protocols, heritage diplomacy, international cooperation Cultural Diplomacy Platform 309–310, 381 See also cultural cooperation, cultural diplomacy, Cultural Cooperation Protocols, heritage diplomacy, international cooperation cultural diversity xxi, 2–4, 6–7, 14–15, 17–18, 24–26, 34–35, 40–41, 45, 51–56, 58–59, 62–63, 70, 73, 76–77, 84, 88, 111, 126–128, 138–139, 143–146, 149–153, 185–186, 189–191, 194–197, 202, 208–209–211, 218, 224, 242–245, 249–252, 254–258, 264, 271–281, 286–292, 297, 302–309, 311–312, 317–323, 324–326, 329, 334, 340, 358–359, 362–364, 371–373–380, 383–386, 391–392, 403–404, 422, 449, 451–453, 458, 460 See also cultural expression(s), language/ linguistic diversity, multiculturalism, religion cultural exchange 3, 22–25, 40–41, 125, 195, 203, 209, 227, 240, 247, 253, 344, 369, 375–376 See also art loan(s), mobility of collections cultural expression(s) 41, 51, 54, 56, 84, 122, 145, 149–153, 186, 202, 247, 279–282, 287, 291–292, 302, 307, 316, 326, 334, 341, 347, 374, 392, 459 See also artwork(s), cultural object(s), cultural property(ies), cultural ­diversity, language/linguistic diversity, multiculturalism

465 cultural exception 80, 93, 124, 138–139, 190–191, 202, 449 cultural goods xi–xii, 3, 21, 44, 67, 69, 79, 82–92, 95, 102–104, 111, 124–125, 136–137, 190–191, 195, 203, 205, 208–209, 213, 215, 222–225, 230, 234, 240, 253, 280, 344, 351, 380, 385–387, 392, 450 See also artwork(s), cultural object(s), cultural property(ies) cultural/heritage governance 2–4, 7, 9, 15, 21, 23, 26–28, 31–32, 55, 61, 67, 72, 143–144, 155, 378, 400, 415–416, 445, 450, 457–460 cultural human rights 4, 6–7, 39–48, 54–55, 101, 113–116–122, 128–129, 137–140, 155, 269, 276, 279–281, 294–314, 320–323, 374, 388–391, 397, 399, 413, 449, 457 See also human rights, right to cultural heritage cultural indicators 143–162 See also cultural development, Culture for Development Indicators (cdis), sustainable development, United Nations 2030 Agenda for Sustainable Development cultural industry(ies) 151, 202, 207, 213, 262, 441 cultural life, right to take part/ participate in  25–26, 44, 46, 59, 212, 298–303, 305–306, 308, 314–315, 319, 322, 367–368, 388–390, 392, 397, 399, 422, 459 See also access to culture, access to cultural heritage, cultural human rights, participation, right to cultural heritage cultural object(s) 6, 50, 65–67, 69, 80–100, 104–105, 110, 119, 136–138, 205, 209, 213–220, 222, 225, 227–240, 291, 296, 301, 394, 448, 450, 454 export of 31, 82–83, 91, 93, 125, 148, 448, 451 import of 83, 86, 93, 111, 225, 347, 380 movement of 3, 7, 59, 83, 92–94, 124–126, 138, 213, 237, 385, 449 restitution and return of 6, 65, 69, 91–93, 95, 98, 101, 104–106, 110, 120, 232, 234, 291, 451–452 See also artwork(s), cultural good(s), cultural property(ies)

466 cultural identity 4, 21, 25, 46–47, 118, 202, 269, 278, 301–303, 306, 417, 442 See also all-European identity, collective identity, national culture, pan-­ European identity cultural landscapes 8, 65, 69, 112, 395–416, 440, 447–448, 452, 460 See also landscape protection cultural life, right to take part/participate in 26, 44, 46, 59, 212, 298–303, 305–306, 308, 314–315, 319, 322, 368, 388–390, 392, 397, 399, 422, 459 See also access to culture, access to cultural heritage cultural mainstream 59, 70 cultural pluralism 320 See also cultural diversity, multiculturalism cultural practices 6, 116, 169, 301–303, 326, 453 See also cultural expressions, cultural life, right to take part/participate in, cultural traditions, intangible cultural heritage cultural property(ies) ix–xiii, 23, 42, 50, 80, 85–89, 93, 95, 98, 105–107, 109–110, 119, 121, 136, 156, 227–229, 232, 235–239, 275, 327–328, 383–384, 387–388, 410–411, 449 See also artwork(s), cultural object(s), national treasures cultural traditions 19, 32–34, 40–41, 44, 56, 59, 67, 110–111, 104, 120, 157, 168, 177, 205, 269, 277, 280, 296–299–302, 319, 326–332, 340, 347–349, 362–363, 372, 404, 412–413, 446–447, 453 See also constitutional traditions, cultural expressions, cultural practices, intangible cultural heritage, national cultureCultural Routes of the Council of Europe436 Culture 2000 programme 15, 66, 71, 370–373 Culture (2007–13) programme 15, 66, 258 Culture for Development Indicators (cdis) 145–146, 151–155, 160–161 See also cultural development, sustainable development, United Nations 2030 Agenda for Sustainable Development customary international law 51, 220, 226–230, 236, 240, 278–279, 305 See also general international law customary rights and laws 410, 413

Index customs union(s) 187, 199, 208 Cyprus 388, 401, 426 Czech Republic 215, 227–229, 235, 261, 284, 388, 426, 435–436 Denmark 16, 276, 335, 412, 435 decolonization 2 See also colonialism democratization 46, 399, 437, 440, 442–443 See also rule of law developing countries 151, 158, 187, 195, 209–210, 329, 332, 391–392 digitization 8–9, 60, 179, 181, 192, 205, 209, 216, 218, 221, 249, 252–253, 255, 258–259, 342, 392, 417–444, 446, 455–456, 459–460 due diligence 82, 89–92, 98, 238, 423 See also art market self-regulation, illicit art trade Eastern Partnership 375, 378 See also common foreign and security policy, European Neighbourhood Policy (enp), eu external relations education ix, xvii–xviii, xx–xxi, 5–7, 19, 28, 52, 68, 73, 75–76, 81, 91, 148, 154–155, 163, 173–174, 179–181, 189, 215, 218, 234, 236–237, 239–240, 241–265, 272, 284–286, 288, 297, 315, 318–320, 325, 335, 338, 347, 376, 382–383, 389, 430, 437, 443, 451, 456–457, 459 right to 46, 47, 118, 277–278, 299, 305 Education, Audiovisual and Culture ­Executive Agency 244, 357 eea and Norway grants 426, 427 Egypt 200, 349, 371 See also Mediterranean non-member countries (meda countries) environment xii, 2, 5, 52, 68, 69, 74–77, 91, 123, 127, 143–144, 159, 175, 178, 179, 180, 181, 193, 202, 253, 260, 262, 299, 325–326, 396, 398, 401, 403–416, 428, 430, 448, 450–452 Environmental Impact Assessment (eia) 8, 401, 403–407, 409, 414–416, 447–448, 452 environmental protection 8, 19, 70, 188, 209, 211, 407, 408, 414 era Net programme 255 Erasmus+ programme 241, 254–255, 346–347 Estonia 229, 269, 284, 388, 426

Index Ethiopia 106 EU Cohesion Policy 260 EU external action 4, 8, 184, 187, 194, 197, 365, 367–368, 376, 378, 383, 386, 393–394, 445, 454 See also common foreign and security, European External Action Service (eeas) EU external relations 8, 15, 18–19, 123, 185, 208, 224, 250–251, 288, 310, 341, 365– 367, 369, 372–378, 382–383, 393–394, 453–454 See also common foreign and security policy, EU external action, European External Action Service (eeas) EU Intellectual Property Observatory 423 See also intellectual property rights, orphan(ed) work(s) EU Prize for Cultural Heritage 66, 344 EU Strategy for International Cultural ­Relations 8, 143, 309, 340, 367, 378–379, 381, 393, 453, 381, 453 See also common foreign and security policy, cultural cooperation, cultural diplomacy, Cultural Cooperation Protocols EU Structural Funds 181, 260, 398, 426–427 Eurobarometer survey 444 Euromed Heritage programme(s) 179–181, 349, 375 See also common foreign and security policy, cultural cooperation, European Neighbourhood Policy (enp), EU external relations Euro-Mediterranean Partnership 199–200, 209, 371, 375 See also common foreign and security policy, European Neighbourhood Policy (enp), EU external relations Europe’s common heritage xviii, 2, 5, 13–32, 35, 46, 54, 117, 121, 246, 262, 264, 292, 345, 360, 428, 434, 442–444, 446 See also all-European identity, collective identity, European Heritage Label (ehl) European Agenda for Culture 57, 89, 218–219, 249, 338, 373 European Agenda for the Integration of Third-Country Nationals 319 European Agenda on Migration 294, 312, 314, 316

467 European Capital(s) of Culture 253, 257, 286–287, 351, 382–383, 443 See also European City of Culture European citizenship 39, 55, 71, 242, 244, 254, 257, 348 European City of Culture 65 See European Capitals of Culture European Council 117, 145, 147, 220, 222, 224, 248, 290, 417 European Court of Human Rights (ecthr) 6, 46, 47, 55, 114–122, 129–139, 187–188, 276, 304, 405, 409, 448 European Court of Justice 6, 38, 48, 50, 94, 114–116, 122–138, 187, 405, 425 See also Court of Justice of the European Union European Cultural Strategy for the 21st Century 290 European Digital Library 417–419 See also digitization, Europeana European Economic and Social Committee 211 European Economic Area (eea) 258, 370, 426–427, 440 See also eea and Norway grants European Experts Network on Culture 290 European External Action Service (eeas) 376–378 See also common foreign and security policy, EU external action European Heritage Days (ehd) 66, 68–69, 345, 374, 420–422, 443 European Heritage Label (ehl) ix, 62, 66, 68–69, 72, 253, 256, 343, 351, 434–435, 437, 443, 447 European Historical Monuments and Sites Fund (ehmf) 27 European integration xi, xv–xvi, xx–xxi, 2, 4, 33, 35, 38–39, 43, 62, 69, 76, 89, 138, 242, 249, 252–255, 285, 319, 425, 446–447 European Neighbourhood Policy (enp) 200, 209, 371–372, 393 European Network on Culture (eenc) 224 European Parliament 20, 23, 27, 31–32, 33, 54, 60, 62–64, 68, 72–73, 75, 86, 117, 187, 189–190, 194, 211–212, 225, 232, 241, 250, 254, 256, 270, 272–273, 275, 278, 286–287, 291, 327, 337, 352, 365, 367, 373, 376, 380–381, 393, 399, 405, 407, 423, 428, 445, 447, 455

468 European Regional Development Fund (erdf) 70, 242, 260, 318, 347–350, 426, 358–359, 426 European Social Fund (esf) 347–348 European Statistical System Network on Culture (essnet-Culture) 146–148 See also cultural indicators European Year of Cultural Heritage (eych) 2, 3, 9, 14, 32–33, 52–55, 61–62, 66, 72–76, 86, 116, 144, 239, 241, 265, 287, 291–293, 297, 325, 341, 365, 382, 386, 394, 445–446, 453–454, 461 Europeana 181, 346–347, 417, 420–422, 424–427, 432–437, 440–442 Europeanization 7, 16, 434, 440–441 Euroscepticism 54 Eurostat 146–149 extremism(s) 244–245, 322, 459 federalism xiv, 35, 38–39, 231 Finland 229, 231, 233, 270, 284–285, 388, 435 Forget Heritage Project 242, 259–264 Former Yugoslav Republic of Macedonia 199, 326, 336 France ix, xix, 1, 16, 38, 81, 99, 101–102, 119, 191, 233, 321, 332, 367, 388, 411, 425–426, 431, 434, 435, 438 free movement/freedom of movement 7, 59, 83, 92–97, 123–125, 130, 136, 138, 213, 310, 449 See also cultural objects, movement of, mobility of collections freedom of association 305 freedom of expression 46–47, 118, 130, 155, 277, 305, 307, 336, 378 See also artistic freedom freedom of thought and conscience 46, 118, 273, 277 fundamental rights and freedoms 7, 19, 35, 39–40, 42, 46–48, 55, 59, 61, 101, 113–114, 128–130, 131–137, 271–273, 276, 278, 285, 287, 305–307, 311, 316–319, 340, 408 See also human dignity, human rights Georgia 199, 208, 229, 288–289 Germany xiv–xvi, 1, 16, 81, 98, 119, 124, 127, 164, 231, 233, 246, 261, 326, 338, 388, 395–396, 421, 431, 433, 436–438 Greece xvii, 1, 27, 219, 314–315, 388, 405

Index general international law 49–51 general interest 49–50, 384, 409–415, 450 global commons 49–50, 384–385 Google Art Project 438 Google Books Project 418–419, 438 G7 Florence Declaration 2017 145 heritage community/ies 9, 45, 290, 409 heritage diplomacy 5, 13–32, 329–330, 366 See also cultural diplomacy, soft power heritage studies 4–5, 31, 245, 255 heuright project 198, 255, 324 high culture 63 Horizon 2020 EU’s Framework Programme for Research and Innovation 70, 181, 255, 346–349, 379–380, 430 House of European History 1, 246, 264, 457 human dignity 39–40, 43, 49, 52, 243, 271, 303, 389 See also fundamental rights and freedoms, human rights human rights 1–2, 4–8, 34, 39–40, 42–43, 45–48, 51–52, 54–55, 62–63, 72, 103, 113– 119, 122, 128–138, 193, 243, 246, 269–271, 274–280, 282, 292, 294–295, 298–305, 315–316, 319–320, 326, 336, 366–368, 374, 378, 388–392, 394, 397, 400, 409–410, 415, 445, 447–450, 454, 457 See also fundamental rights and freedoms, human dignity Human Rights Council (hrc) 43, 113, 275, 283, 297, 300, 303, 322 See also Special Rapporteur in the Field of Cultural Rights Hungary 44, 54, 139, 215, 219, 229, 233–235, 240, 261, 331, 365, 385, 388, 426, 433, 436, 442 icom 80, 88, 90, 166, 238–239 immigration/migration 3, 9, 54, 108, 282, 294–323, 358, 442, 458–460 See also migrants immunity for cultural property on loan  89, 213–240, 453 See also art loan(s), cultural exchange, and mobility of collections Indigenous 7, 81, 205, 326 people(s) 8, 104, 269–293, 410, 412, 458 rights 269–293, 374, 412–413

469

Index See also collective identity intangible cultural heritage 8, 68, 77, 84, 91, 120–121, 163, 256, 270, 275, 282, 296, 324–364, 377, 384, 387, 394, 447, 454–455, 459–460 integrated approach to cultural heritage 7, 52–53, 181, 251–253, 290–292, 338, 367, 377, 399–400, 429, 457 intellectual property rights 3, 186, 188–189, 193, 423–425 See also copyright, eu Intellectual Property Observatory, orphan(ed) work(s) intercultural dialogue 3, 7, 15, 45, 71–74, 77, 116, 218, 244–245, 247, 250, 255, 257, 264, 282, 302, 308–309, 322, 374–375, 379, 381, 393, 451, 453–454, 457 International Confederation of Art & ­Antique Dealer Associations (cinoa)  80, 88 See also art market, self-regulation international cooperation 84, 229, 259, 265, 308, 348, 374, 387, 390–392, 394, 408 See also cultural cooperation, Cultural Cooperation Protocols International Law Association (ila) 7, 215–216, 236–240 Interreg programme 259–263, 347–349 intolerance 308, 321, 322 Iceland 198, 336, 370, 426–427 India xv, 192, 419 Iran 101 Iraq 50, 84–86, 122, 201, 226, 297, 350, 380 Ireland 16, 125, 229, 387, 405, 408 Israel 200 See also Mediterranean non-member countries (meda countries) Italy xv, xviii, 16, 81, 103–105, 119, 123–124, 173–176, 226, 261, 314, 320, 326, 336, 367, 385, 388, 422, 431, 434–435 Japan xiv, 82, 102, 193, 327–328, 333 Jean Monnet programme 253–255 Jews xv, 270, 277 Joint Programming Initiative on Cultural Heritage and Global Change 181, 255 Jordan 200, 349 See also Mediterranean non-member countries (meda countries)

Kaleidoscope programme 371 Kazakhstan 201 Kosovo 199, 428–429 landscape protection 8, 395–416, 450 See also cultural landscapes language/linguistic diversity 3, 34, 40, 56–59, 62, 64, 84, 111, 123, 143, 189–191, 243, 254–256, 271–274, 285–286, 298, 307–308, 338 See also cultural diversity, multiculturalism, religion Latin America 329–331, 333, 374 Latvia 44, 135, 226, 229, 284, 332, 426, 433 Lebanon 179, 200, 349 See also Mediterranean non-member countries (meda countries) Leadership Group (leg) on cultural statistics 146 See also cultural indicators League of Nations (LN) xiv–xvi legitimate aim 118–119, 277, 410–411, 448–449 liberalism xiv, 39, 54–55, 192, 317 Libya 106, 350 Liechtenstein 227, 233, 336, 426–427 Lithuania 388, 426–427 Luxembourg 16, 44, 114, 133–134, 137, 146, 147, 217, 229, 385, 388, 436 majority culture 43, 317 See also collective identity, national culture Malta 330, 396, 426 media programme 348 media Mundus programme 348 Mediterranean Living Heritage (medliher)  349 Mediterranean non-member countries (meda countries) 179 Mexico 201, 226 migrants 7, 104, 174, 177, 282–284, 287, 291, 292, 294–298, 300–306, 308–311, 313–322, 458, 459 See also immigration/migration minorities 8, 39, 44, 47, 64, 113, 161, 243, 252, 269–275, 277–288, 290–293, 297, 303, 352, 397, 411, 413, 442, 457–458, 460 See also collective identity

470 Minority SafePack 272–273 mixed agreement(s) 188, 190 See also common commercial policy (ccp) mobility of collections 7, 67, 89–90, 213–240, 249–250, 453 See also art loan(s), cultural exchange, immunity of cultural property on loan Moldova 199, 208, 326, 336 Montenegro 199, 336 monument(s) xii–xiii, xvi, 27, 32, 60, 64–66, 69, 86–87, 96, 102, 123, 147, 157, 159, 164, 166, 205, 275, 296, 339, 343– 344, 420, 434–435, 437, 440, 446–447 See also arts, artwork(s), cultural goods, cultural objects, cultural property(ies) Morocco 200 See also Mediterranean non-member countries (meda countries) multiculturalism 54–55, 194, 321, 325, 371–372, 458 See also cultural diversity, language/­ linguistic diversity, religion nation-State(s) xxi, 35–37, 40, 49, 110, 298 See also sovereignty, Westphalian order national culture xxi, 17, 24–26, 48, 60, 70, 96, 101–103, 110–111, 155, 191, 235, 292, 295, 298–301, 428, 448, 458 See also national treasures national treasures 6, 59–60, 69–70, 79–112, 123–126, 135, 138, 191, 208, 385, 450–452 See also cultural good(s), cultural object(s), cultural property(ies) Natura 2000 network 401–403, 405, 409, 416, 452 natural heritage 20–21, 47, 70, 118, 212, 275, 289, 328, 340, 348, 384–387 See also common heritage of humanity/ mankind, landscape, world heritage Netherlands xviii, 16, 38, 215–216, 228–233, 240, 326, 408, 425–426, 434–435, 439–440 Network of European Museum Organizations (nemo) 221–222 New Renaissance Report 417–418 non-discrimination 39, 54, 94, 111, 118, 123, 191, 243–244, 271–274, 277, 279–280, 285, 292–293

Index non-governmental organization(s) 31, 44, 117, 157, 161, 407, 456 non-refoulement, principle of 305–306, 311, 316 Norway 198, 331, 336, 412, 426–427, 434–435, 440 See also eea and Norway grants Open Method of Coordination (omc) 6, 66–67, 88–90, 147, 219–220, 222–223, 225, 239, 242, 248, 250–251, 263, 338, 341, 451 orphan(ed) work(s) 423–425 Palestinian Authority 200 See also Mediterranean non-member countries (meda countries) participation 6, 21–22, 32, 44, 46, 53–54, 66, 72, 79, 147–148, 155–156, 180, 195, 209, 248, 258, 262, 272, 287, 290, 301, 306, 319, 321, 394, 396–397, 406–409, 416, 418, 420, 422, 427, 437, 440, 444, 453–455 See also access to culture, access to cultural heritage, cultural human rights, cultural life, right to take part/ ­participate in, right to cultural heritage peace-building 372 Peru 196, 203–206 Poland 46, 54, 96, 119–120, 139, 215, 219, 233–235, 240, 261, 270, 434–344, 367, 388, 405, 426–427, 436, 442 populism 3, 139, 442, 460 Portugal 1, 27, 44, 219, 229, 332, 344, 385, 405 public interest 60, 119, 396–397, 408 See also general interest public private partnership (ppp) 173, 175–176, 178, 183, 376–377, 457 Raphael programme 15, 65, 71, 349, 370–371 reconciliation 1, 74, 365, 372 refugee(s) 282–284, 287, 292, 297, 303–309, 312, 315, 321, 357, 359, 364, 458 religion xvi–xxi, 16–21, 44, 46–47, 118, 168, 269, 273, 277, 284, 285, 298–300 See also cultural diversity right to cultural heritage 6, 44, 46, 113–116, 118, 120–122, 135–140, 276, 298, 388, 397

471

Index Roma (Romani people) 120, 177, 277, 284, 411–412 Romania 219, 229, 326, 353, 370, 388, 426 rule of law 33–34, 39–40, 45–46, 54, 56, 61, 63, 130–131, 131, 243, 271, 282, 319, 378, 447, 449 See also democratization Russia 54, 198–199, 214–215, 229, 231–233, 235, 289, 438 Saami 270, 285, 292, 458 See also Indigenous peoples San Marino 198 Senegal 372 Serbia 199, 326, 336 Seventh Framework Programme (fp7) 400 shared goods 171 shared heritage 41, 352, 461 Slovakia 44, 226, 229, 326, 388, 426 Slovenia 44, 261, 388, 426 soft power 31, 84, 366–367 See also cultural diplomacy sovereignty xxi, 21, 35–40, 79, 87–88, 133, 227, 239, 243, 295, 305, 318, 385–387, 453 See also nation-State(s), Westphalian order South Africa 201 South Korea 196, 202–207, 327 Spain 1, 27, 119, 219, 256, 331, 388, 405 Special Areas of Conservation 401–402 Special Rapporteur in the Field of Cultural Rights 280, 297, 322 See also Human Rights Council (hrc) sustainable development 3, 4, 6–7, 9, 52, 72–73, 145, 149–151, 153–154, 159–161, 172, 178–179, 181, 194–195, 202, 209, 211–212, 247, 253, 264, 326, 352, 355, 374, 381, 384–385, 392–394, 408, 451, 453–455 See also cultural development, United Nations 2030 Agenda for Sustainable Development Sweden 121, 412–413, 426, 443–444 Switzerland 198, 215, 233, 326, 336 Syria 50, 85–87, 177, 179, 297, 315, 349–350, 371, 380, 442 See also Mediterranean non-member countries (meda countries)

Tajikistan 330 Trade Agreement(s) (ta(s)) 7, 184, 186, 187, 193–196, 198, 203, 211, 454 See also Free Trade Agreement(s) (fta(s)) xliii, 194, 211 Tunisia 179, 200 See also Mediterranean non-member countries (meda countries) Turkey 47, 54–55, 119, 121, 169–170, 173, 176–178, 179, 183, 198, 208, 231, 312, 315–316, 330, 336, 410–411 See also Mediterranean non-member countries (meda countries) Ukraine 199, 208, 231–233 unesco ix, xiii–xiv, 8, 20–23, 49–51, 80–89, 99, 106, 110, 113, 145–146, 149–156, 160– 164, 173–175, 178–179, 185–186, 194–196, 203–205, 209, 232–234, 238–239, 256–257, 275, 279–281, 287, 290–292, 296, 302, 307, 316, 325–355, 370, 380–381, 383–384, 386, 393, 400, 408, 416, 429, 434–435, 438, 455–456, 459–460 unidroit 80–82, 87–89, 91–92, 97, 110, 232 United Arab Emirates 321, 438 United Kingdom (uk) 16, 89, 120, 217, 219, 233, 238, 276, 330, 387, 410–411, 431–432, 435, 437–438, 441 See also Brexit United Nations 2030 Agenda for Sustainable Development 3, 52, 145, 179, 194, 212, 340, 378–379, 384 United Nations Human Rights Committee (unhrc) 275, 283, 303 United Nations Security Council (unsc) 49, 52, 80, 84–86, 91, 380, 384, 387 United States of America (usa) xiv, 7, 82, 190, 191, 231, 332, 403 ‘unity in diversity’ 14, 377 Uzbekistan 330 valorization 27, 73, 144, 156, 160, 162, 165–172, 176, 182, 289, 456 value based approach 6, 165, 167–169, 171–172, 176, 182–183, 457–458 Westphalian order 36–37 See also nation-State(s), sovereignty

472 world heritage 20, 49–50, 163, 173, 205, 256–257, 275, 328–329, 333, 340–345, 350, 354, 356–357, 358, 363, 384–387, 394, 395, 416, 434, 437, 454, 459 World Intellectual Property (wipo) 290 World Tourism Organization (unwto) 145– 146, 156–162, 456 World Trade Organization (wto) 80, 93–95, 100, 108, 185–186, 188–193, 196–197, 202, 208

Index Work Plan for Culture 2011–2014 57, 67, 145, 222–223, 250, 341–342 Work Plan for Culture 2015–2018 57, 67, 144, 147, 224, 251, 290, 341, 429 xenophobia 254, 295, 311, 314, 318 See also intolerance